Decision #151/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on September 25, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on December 5, 2018 reporting that he injured his left knee in an incident at work on July 20, 2018. The worker indicated "For 49 years I've been climbing ladders, climbing stairs, pushing wheel barrels, and I think it just wore out." He noted that in July 2018, his knee started bothering him and on July 26, 2018, he was doing ladder work all day and he had been limping since then.
A Doctor's First Report was completed by the worker's family physician on December 5, 2018. The worker reported to the physician on August 3, 2018 that he had been working hard at work, squatting a lot and developed left knee and left foot pain. The physician noted tender collateral ligaments in the worker's left knee, full range of motion and tendons on the worker's left sole were tender to palpitation. Osteoarthritis in the worker's left knee was also noted. The worker was diagnosed with a left knee strain and a left foot strain. An x-ray of the worker's left knee on August 6, 2018 noted "Quite mild medial tibiofemoral narrowing is present".
At a follow-up appointment with his family physician on December 11, 2018, it was noted his left knee pain was continuing and he had been referred to an orthopedic surgeon for an MRI. The worker was seen by the orthopedic surgeon on December 6, 2018. The surgeon provided a provisional opinion that the worker had a "…torn lateral meniscus of left knee…" subject to review of a scheduled MRI. The MRI study conducted on December 21, 2018 indicated "Degenerative partial tearing involving the posterior root of the medial meniscus and associated moderate to severe osteoarthritis of the medial tibiofemoral compartment."
On January 10, 2019, the worker's claim was reviewed by a WCB medical advisor. The WCB medical advisor opined that based on the MRI report there was "…no evidence of an acute meniscus tear, or acute injury…" to the worker's left knee. Instead, the WCB medical advisor noted that there was evidence of degenerative changes which existed prior to the July 20, 2018 workplace accident. On January 11, 2019, the worker was advised by the WCB that his claim was not acceptable as there was no evidence of a specific accident or incident that caused the worker's left knee difficulties.
The worker requested reconsideration of the WCB's decision to Review Office on January 16, 2019. In his submission, the worker noted that his knee difficulties were caused by his repetitive climbing of ladders and twisting while performing his job duties.
Review Office determined on February 27, 2019 that the worker's claim was not acceptable. Review Office found that the worker's left knee injury was not an acute injury but rather a result of longstanding degenerative changes in the worker's knee and this pre-existing condition was not caused or structurally changed due to the worker's job duties in July 2018.
The worker filed an appeal with the Appeal Commission on March 4, 2019. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 19, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
The Act defines accident in s 1(1) as a chance event occasioned by a physical or natural cause, including "…any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment…and as a result of which a worker is injured."
WCB policy 44.05 Arising out of and in the course of Employment provides in part:
Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
WCB Policy 220.127.116.11, Pre-Existing Conditions (the "Policy") addresses pre-existing conditions. The Policy states that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not an injury by accident arising out of and in the course of the employment. The WCB is only responsible for personal injury as a result of accidents that arise out of and in the course of employment. The Policy goes on to state that:
When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker represented himself in the hearing and made an oral submission in the course of the hearing. The worker answered questions put to him by members of the panel.
The worker's position is that he was injured while performing his stuccoing duties on July 20, 2018 and July 26, 2018.
More generally, the worker felt that performing these duties since 1970, his knee was just worn out. He described that on or about July 20, 2018 while stepping from a scaffold to a ladder to a roof he first felt pain in his left knee. On July 26, 2018 he experienced another pain incident that was described as more severe while wheeling a wheelbarrow at a jobsite.
The worker told the panel that after these events he was unable to continue working and he has not returned to his employment since.
The worker stated that he delayed his reporting of the incident based on his physician telling him that it would heal. Subsequent discussions with his doctor lead them to believe there was more damage than initially indicated. An MRI and diagnostics by the radiologist and orthopedic surgeon led to arthroscopic surgery on April 5, 2019.
In sum, the worker's position is that he was injured as a result of the workplace duties undertaken leading up to and including July 26, 2018.
The worker is self-employed.
The issue for determination by the panel is whether the claim is acceptable. In order to determine that the claim is acceptable, the panel must find that the worker suffered an injury as a result of an accident arising out of and in the course of his employment. The panel was not able to make that finding.
The position taken by the worker was that his knee was worn out and that he injured it while performing the physical duties of his job on two occasions.
The panel noted that the worker, in his testimony, pointed to two specific incidents as cause of his compensable knee injury. The worker stated that his employee witnessed both these accidents. The panel sought evidence from the employee who was present during the timeframe of the incidents. The employee testified that he was aware of a knee problem but was unable to recollect a specific incident related to the reported injury.
The medical imaging and reports by the worker’s doctors were reviewed by the panel. They indicate the presence of degenerative issues.
• The interpreting radiologist reported on December 21, 2018 that there is no evidence of an acute meniscus tear and there is a moderate to severe osteoarthritis of the medial tibiofemoral compartment.
• The orthopedic specialist provided an opinion on January 4, 2019 that the left knee difficulties were long-standing and degenerative in nature.
• The post-operative report dated April 5, 2019 indicated a medial meniscus cleavage tear of the posterior horn with some fraying and a complex tear of the same. Comments related to osteocronosis and degenerative changes were noted.
The panel is unable to determine that a compensable accident took place. The mechanism of injury could not be established based on the information available. The doctors first report of his examination that took place on August 3, 2018 was not reported to WCB until December 5, 2018 and does not refer to a specific incident or incidents and includes foot pain and refers to squatting at work but does not isolate a specific cause of injury such as was described to the panel by the worker. The delay in reporting and inconsistency in details of the incident communicated to WCB and the worker’s physician, along with reports of his knee locking up on multiple occasions does not support the claim of an acute injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's knee injury is not causally related to the reported workplace incidents. The panel therefore finds that the worker's appeal should not be accepted as being a consequence of a workplace accident. The worker's appeal is dismissed.
B. Hartley, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of December, 2019