The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on April 30, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The employer reported to the WCB on May 1, 2018 that the worker injured her left knee at work on April 10, 2018 when she struck it on a “…black plastic bumper…resulting in discomfort.” The employer also provided the WCB with a Functional Abilities Form (FAF) completed by the worker’s treating healthcare provider and a job description for the worker’s position.

On May 2, 2018, the worker filed a Worker Incident Report with the WCB indicating that she injured her left knee in an incident at work on April 10, 2018 that she reported to her employer on April 20, 2018. The worker described the injury as occurring, as follows: 

“… [I was] bent down cleaning the floor area and when I got up, I smashed my knee on the plastic bar railing that sticks out. There was intense pain at first, then bruising – I continued working. As the days went on the knee area began to swell and it became more difficult for me to walk and stand. I then reported the injury to my employer and saw a doctor.”

The WCB contacted the worker May 11, 2018 to discuss her claim. At that time, the worker confirmed the mechanism of injury described above and advised that she initially treated the injury with ice and anti-inflammatories as she thought it would get better. She continued working her regular duties until she attended a pre-scheduled appointment with an orthopedic surgeon on April 24, 2018. An x-ray was taken and the worker was diagnosed with osteoarthritis in her left knee. The orthopedic surgeon recommended the worker remain off work until an urgent MRI study was conducted. The report from that visit contains no description of a workplace accident.

The worker further advised that when she saw her family physician on May 11, 2018, the physician agreed with the orthopedic surgeon that the worker should remain off work until the MRI study. The physician’s report notes the worker “…hit her left knee against metal bar at work” and had mild swelling by her knee, with decreased range of motion with flexion and extension.

On May 18, 2018, the employer contacted the WCB to note concerns regarding the worker’s claim. The employer noted that the worker continued to work regular duties after her workplace accident of April 10, 2018 and did not advise that the incident occurred until April 20, 2018. She sought medical treatment on April 24, 2018 and was placed off work, pending an MRI study. The employer offered the worker modified duties on May 15, 2018 and provided the WCB with a copy of the Early and Safe Return to Work form; however, the worker remained off work.

A WCB orthopedic consultant reviewed the claim file on May 31, 2018 and was of the view that the worker’s current diagnosis was of osteoarthritis of both knees, supported by the x-ray taken by the worker’s orthopedic specialist on April 24, 2018. The diagnosis related to the workplace accident was of a contusion of the worker’s left knee, with a natural history of resolving within a couple of weeks without medical intervention. The WCB orthopedic consultant opined there would be no need for physical restrictions or treatment arising out of the diagnosis of a contusion and that the osteoarthritis in the worker’s knees was a longstanding pre-existing condition and that the worker was considered to have recovered from the workplace accident. On May 31, 2018, the WCB advised the worker her claim was not accepted as a causal relationship between her left knee difficulties and her job duties could not be established.

On August 10, 2018, the worker submitted a chronology of her injury along with a copy of a June 17, 2018 MRI study report and an August 8, 2018 report from a sports medicine physician. The sports medicine physician explained that the MRI study indicated “…an insufficiency fracture of the lateral femoral condyle, corresponding to the location where [the worker] reports striking her knee” and requested that the WCB reconsider the worker’s claim.

A WCB orthopedic consultant reviewed the new medical information on September 5, 2018 and concluded the MRI findings were consistent with severe osteoarthritis and that a “…bump on the front of the knee would not cause an insufficiency fracture of the posterior part of the bone.” Further, the worker’s pre-existing osteoarthritis was determined to be the cause of the current symptoms in her left knee, not the workplace accident. On September 21, 2018, the worker was advised there would be no change to the earlier decision and her claim was not acceptable.

On October 30, 2018, the worker requested Review Office reconsider the WCB’s decision, resubmitting the additional medical information provided to the WCB on August 10, 2018 and noting that WCB should have contacted her treating healthcare providers regarding the information they provided.

Review Office determined on November 6, 2018 that the worker’s claim was not acceptable, on the basis that a relationship between the injury and the worker’s job duties on April 10, 2018 could not be established due to her delay in reporting the injury to her employer, in seeking medical treatment, and reporting her injury to the WCB. Review Office also relied on the WCB orthopedic consultant’s opinion that the worker’s significant pre-existing osteoarthritis in both her knees was likely the cause of the worker’s current difficulties in her left knee and not the workplace accident.

The worker filed an appeal with the Appeal Commission on February 20, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment. When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.

Worker’s Position

The worker represented herself in the hearing. She made a submission as to why her appeal should be allowed and answered questions from members of the panel.

The worker’s position is, quite simply, that she was injured at work while doing her work and her appeal should therefore be allowed.

The worker confirmed to the panel the mechanism of injury and that she struck her left knee on the side of the knee. She cried out on impact and a nearby coworker who heard her, asked if she was ok. The worker indicated that she said she was ok and returned to her duties, completing her shift. She had the next two days off and saw her doctor, reporting the injury, on April 12, 2018. She noted that after the injury she had a bruise on the side of her left knee.

The worker confirmed to the panel that she worked 5 shifts of 5 hours each after the injury occurred. Her leg and knee were painful during these shifts but she would sit with her leg outstretched and elevated on her breaks, and also used pain medication before and after each shift to manage the symptoms.

The worker confirmed that she had ongoing symptoms in both knees prior to April 10, 2018 but noted that she was nonetheless able to complete her employment duties until that time. Prior to April 10, 2018 she was also able to complete her farm-related and household tasks. She did not walk with a cane before the incident, but now requires the use of a cane to walk. She confirmed that she has not returned to work.

In sum, the worker’s position is that her claim should be acceptable because the evidence shows she injured her knee while at work, in the course of work duties.

Employer’s Position

The employer was represented in the hearing by an advocate, who made a submission and answered questions from panel members.

The employer’s position is that the evidence of diagnosis with respect to the worker’s knee, arising out of testing subsequent to the incident of April 10, 2018 is not compatible with the claimed mechanism of injury.

The employer’s advocate noted that the worker has a known pre-existing degenerative condition in her left knee with symptoms of pain. On this basis, beginning in March 2018, approximately 1 month before the incident, the worker was being accommodated with reduced hours, working 5 hour shifts instead of 8 hours per shift. The employer’s advocate suggested that the medical findings are more likely consistent with a worsening of the worker’s pre-existing condition in her left knee, which was evident prior to the incident, than related to the claimed mechanism of injury.

The employer’s advocate raised a concern that as a result of the worker’s 10-day delay in reporting the incident to the employer and the nature of the injury reported, a bump to the knee, it could not be established that this injury occurred in the workplace. Furthermore, if the fracture ultimately identified were caused by the incident, then immediate reporting would have been expected.

Further, the employer’s advocate noted the employer’s concern about the duration and extent of the worker’s claim, should it be accepted by the WCB. Here, the employer’s advocate pointed to the report of the WCB orthopedic advisor who stated the mechanism of injury resulted in a contusion-type injury that would have a natural history of resolution within a few weeks.

In sum, the employer’s position is that the evidence is not sufficient to establish that the worker injured her left knee at work in the course of her job duties, and that the claim is therefore not acceptable.

Analysis

The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of her employment. The panel was able to make that finding, as outlined in the reasons that follow.

The definition of accident under the Act includes two components that must both be present for the claim to be acceptable. First, there must be evidence of a chance event with a physical or natural cause including any event arising out of and in the course of employment. Second, there must be evidence that as a result of such an event, the worker is injured.

The worker claimed that she injured her knee when she struck it while cleaning her workstation in the course of completing her work duties. Although she did not report the injury to the employer until her shift on April 20, 2018, the evidence on file confirms that the worker did report it to her family physician at an appointment on April 12, 2018. The panel also noted the same mechanism of injury was reported to the physician on April 12, 2018, to the employer on April 20, 2018 and to the WCB on May 2, 2018. The reports from that period are consistent as well with the worker’s testimony to the panel.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the first aspect of an accident has been established. There is evidence of a chance event arising out of and in the course of the worker’s employment.

The second requirement to determine that an accident occurred is that the claimant was injured as a result of the chance event arising out of and in the course of the worker’s employment. In other words, there must be a causal link between the incident and the injury.

Here, the worker claimed injury to her left knee as a result of hitting it against a coated metal bar. She claimed that there was swelling on her knee at first, and then bruising thereafter.

The worker saw her family physician on April 12, 2018. At that time, the medical chart notes she reported that “L[ef]t knee pain worsening after injury at work April 10, 2018 after she hit the knee on the bar that stick[s] out. Pain on anterior knee worse while walking. + swelling.” The physician’s diagnosis, set out in the chart note, is of bilateral knee osteoarthritis and left knee injury, probably soft tissue. It is of note that the worker attended her doctor on that day to review recent MRI study results, which confirmed the pre-existing diagnosis of osteoarthritis.

The worker did not immediately report the injury to the employer but did do so within 10 days of the injury occurring. The employer’s advocate suggested to the panel a bump to the knee could happen anywhere, including outside of work; therefore, prompt reporting to the employer was essential to establish the link to the workplace duties. The employer states that the evidence does not establish a causal link between the injury and workplace duties as a result of the worker’s delay in reporting the injury to her employer. The worker explained to the panel that she did not report the injury at first because she did not believe the injury was significant. Further, she was able to complete her duties that day in spite of the injury. She had the next two days off and it wasn’t until her shift on April 20, 2018 that she felt so bad she needed to go home. That is when the worker did report the injury to the employer and on May 1, 2018, the employer provided notice to the WCB. The panel accepts the worker’s explanation with respect to the delay in reporting.

The worker saw an orthopedic surgeon on April 24, 2018 for a pre-existing appointment but the report from that appointment does not reference any reported mechanism of injury. The worker saw another physician on May 11, 2018 and again reported hitting her left knee against a metal bar at work. At that visit, objective findings include mild swelling by the knee and decreased range of motion.

The WCB orthopedic consultant’s report of May 31, 2018, based on a review of the file documents, concludes that the diagnosis related to the workplace accident was a contusion of the worker’s left knee, with a natural history of resolving within a couple of weeks without medical intervention. The WCB orthopedic consultant went on to note there would be no need for physical restrictions or treatment arising out of that diagnosis.

The conclusion of the WCB orthopedic consultant that the worker suffered a contusion of her left knee is consistent with the worker’s report of swelling and bruising after the incident, and also with her family physician’s findings of swelling of the left knee and diagnosis of a probable soft tissue injury on April 12, 2018.

The panel finds that medical evidence here is sufficient to support, on a balance of probabilities, that the worker injured her left knee as a result of the April 10, 2018 accident arising out of and in the course of her employment.

The panel makes no findings as to the severity of the injury or resulting impact, if any, on the worker’s pre-existing knee condition and notes that the WCB has not made any determinations as to the compensable diagnosis arising out of the workplace injury.

The claim is therefore acceptable. The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2020