Decision #126/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits beyond August 7, 2019. A teleconference hearing was held on May 12, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after August 7, 2019.
That the worker is not entitled to benefits after August 7, 2019.
The worker filed a Worker Incident Report with the WCB on April 2, 2019, indicating he injured his right knee in an incident at work on March 29, 2019. The worker noted that:
I was scrapping out - removing old pieces of drywall and debris from a room. I was loading the material…to take it out to the garbage…It was hard to maneuver around the space…
As I was doing my job, I stepped on a piece of scrap plywood with my boot and my right knee just gave out. I continued working and finished my shift that day.
No pops or cracks. I screamed. My knee twisted towards the outside. It felt weak, like a spaghetti noodle. It was swollen and sore to touch on the right side.
On March 31, 2019, the worker attended a sports medicine physician, complaining of tenderness and pain in his lateral right knee. The sports medicine physician diagnosed the worker with a lateral knee strain and queried a meniscus injury. The physician recommended the worker use crutches, avoid weight bearing and be restricted to sedentary work.
On April 3, 2019, a WCB adjudicator contacted the worker to discuss his claim. The worker confirmed the mechanism of injury, and advised that he had no prior right knee injuries and had been working his full regular duties before the workplace incident. On April 5, 2019, the WCB's Compensation Services advised the worker that his claim was accepted and payment of benefits commenced.
On April 17, 2019, the worker underwent an MRI of his right knee which showed:
1. Complex tear posterior horn/body lateral meniscus
2. Mild degenerative change involving patellofemoral and lateral femorotibial compartments
3. No evidence for cruciate ligament or posterolateral corner injury.
On May 8, 2019, the worker's file was reviewed by a WCB sports medicine consultant, who opined that the probable diagnosis related to the workplace accident was a "right knee synovitis / strain occurring within a pre-existing degenerative environment" and that "recovery norms would be in around 12 weeks." The sports medicine consultant further opined that the MRI findings were pre-existing age-related changes, and the workplace accident was likely not forceful enough to cause a material change to the worker's pre-existing condition. The consultant recommended temporary work restrictions which were provided to the employer on May 13, 2019, and the worker returned to work on May 28, 2019 with modified duties.
On June 19, 2019, the worker advised his WCB case manager that his knee was "…not doing so well after work yesterday" and that his left knee was hurting as well. On July 3, 2019, the worker saw his treating sports medicine physician, who noted that the worker reported he "resumed light duties, and had to stop June 21, after lifting heavy beams," and recommended the worker remain off work "unless sedentary / office work available." At a physiotherapy appointment on July 12, 2019, the physiotherapist provided an additional diagnosis, noting the worker "…injured his low back - back spasmed when getting up one morning (July 2nd), right buttock and glute pain," and indicated the worker was currently off work due to his low back difficulty.
In a telephone conversation on July 16, 2019, the worker and his WCB case manager discussed the reports from the worker's treating sports medicine physician and physiotherapist. The worker advised that he had not returned to work since June 18, 2019, and as such, the sports medicine physician's report of an incident involving him lifting a beam on June 21, 2019 was incorrect. The worker further denied having suffered a new back injury when he woke up on July 2, 2019, as reported by his physiotherapist. With respect to his ability to return to work, the worker indicated he could not do so, as his doctor had not cleared him for work.
On July 25, 2019, the worker attended a call-in examination with a WCB orthopedic consultant. Following that examination, the orthopedic consultant opined that the worker's current diagnosis with respect to his right knee was a complex tear of the lateral meniscus, while the diagnosis in relation to the workplace incident was a strain/sprain injury of the right knee. The orthopedic consultant opined that the configuration of the tear was typical of a chronic degenerative lesion; that worker's current loss of physical capacity was related to his pre-existing degenerative tear, not the workplace injury; and that the effects of the worker's strain/sprain injury were considered to have resolved.
On July 31, 2019, Compensation Services advised the worker that they had determined he had recovered from his workplace injury and any ongoing difficulties he continued to experience were related to his pre-existing tear. Compensation Services advised that he was therefore not entitled to benefits after August 6, 2019.
On August 6, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker provided a chronology of his injury and treatment and noted he was still experiencing difficulties from the workplace accident.
On September 16, 2019, Review Office determined that the worker was entitled to benefits to August 7, 2019. Review Office placed significant weight on the July 25, 2019 opinion of the WCB orthopedic consultant that the worker's diagnosis in relation to the March 29, 2019 workplace incident was a right knee strain/sprain, the effects of which were considered to have resolved by July 31, 2019. Review Office went on to note, however, that as August 5, 2019 was a statutory holiday, the worker was entitled to one additional day of benefits, and extended the period of notice with respect to payment of benefits by one day, to August 7, 2019 inclusive.
On January 10, 2020, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on May 12, 2020.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and was forwarded to the interested parties for comment. On November 3, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of 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.
Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
The WCB's Board of Directors has established WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated purpose of the Policy is identified, in part, as follows:
The Workers Compensation Board (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 "personal 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 are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that he suffered a tear of the lateral meniscus in his right knee as a result of his March 29, 2019 workplace incident, from which he had not recovered, and is entitled to benefits beyond August 7, 2019.
The worker submitted that when he first attended physiotherapy, he was being treated for a sprain injury and being asked to do exercises which he could not do and which caused pain to the outer part of his knee. He switched to another physiotherapist who came up a program which would treat a complex tear and his condition began to improve. The worker submitted that this was an important point, as the delay in appropriate treatment possibly delayed his ability to do well and his future progress.
The worker said he was happy to return to work at the end of May 2019, with modified duties, and his employer was "awesome." He found, however, that the pain became unbearable after a few hours walking, and he ended up being off work again. When he experienced pain in his other knee and back pain, this was due to overcompensating for his injury.
The worker noted that his case manager then consulted a WCB orthopedic consultant, who arranged for a call-in examination. The worker submitted that the orthopedic consultant only examined him lightly at the call-in examination and was not as thorough as his treating physicians. Based on that examination, the consultant concluded he was healed, and his benefits were cut off immediately after that.
The worker stated that he was subsequently seen by an orthopedic surgeon, who did a more thorough examination. The worker noted that the orthopedic surgeon provided a report to the WCB, in which he opined that the worker's tear injury would be in keeping with the mechanism of injury and that it was unclear why the worker's benefits had been cut off.
The worker submitted that since his benefits ended, his knee has become worse and he has suffered financial difficulties. He had been scheduled for surgery on his knee, but his surgery was subsequently bumped and has not yet been rescheduled.
The employer was represented by its Safety Manager, who made a presentation to the panel.
The employer's position was that they agreed with the Review Office decision that the worker suffered a knee strain to his right knee on March 29, 2019, and that he had sufficiently recovered from that strain injury.
The employer's representative stated that he had carefully reviewed the file, and submitted that the imaging reports and medical opinions supported that the worker had a pre-existing condition which did not change as a result of his injury. The employer's representative stated that they sympathized with the worker and understood his frustration with injuries, but they did not believe the worker was entitled to benefits beyond August 7, 2019 in relation to his workplace injury.
The issue before the panel is whether or not the worker is entitled to benefits after August 7, 2019. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond August 7, 2019 as a result of his March 29, 2019 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a right knee synovitis / strain injury occurring within a pre-existing degenerative environment. The worker has argued that the injury he suffered was not a strain, but a lateral meniscus tear. Based on our review of all of the evidence which is before us, on file, and as presented at the hearing and provided subsequently at our request, the panel is unable to accept that argument.
The panel carefully reviewed the mechanism of injury with the worker at the hearing. The worker indicated that:
…it was a very cold winter…And the project we were working on was a very frozen site…Now the garbage had been piling up in this room almost as high to the ceiling…the other trades had been throwing their scraps of plywood into that room and us having to go and take the garbage out…we had to maneuver through – we were basically on piles of scrap. And in that process, I stepped on one of these plywood cut-offs that weren’t supposed to be in the room, rolled the ankle, the knee gave out. I screeched in pain.
I was in a room that was filled…almost to the roof with scrap drywall. It was like a mountain, like Mount Everest. In order to get…the garbage…you have to walk around the side of Mount Everest, you have to go out a three and a half foot…door and dump the garbage.
During one of my trips, I had a load in my hands. I stepped on a cut-off. I did not slip. I stepped on a cut-off, stepping on the outer edge, making the little piece of wood, which would have been about six inches in length, unstable because it wasn't nailed down. Due to the fact that there was loose gravel and loose drywall underneath, the drywall and gravel was unstable, causing the piece of plywood to move, which allowed the foot positioning, when I stepped down, for my knee to go outward. The piece of plywood slipped out, or my boot must have made the plywood slip out, which made my knee go to the outside somehow.
Now I can't remember all that I stepped on a piece of wood and my knee gave out and it went out. Like I can't really – the mechanism that happened was, during the path of me going to take the garbage out, I stepped on a piece of wood and my knee gave out, but it gave out to the outside. And when it gave out to the outside, I didn't really hear a pop…I didn't hear—like it pops now and it clicks and it locks now. And at the time it was so swollen, like I tried to walk up the stairs, I went out and I started limping, and then I walked up to the other building because it was warm…and I went up there and I walked to the stairs and said I can't do this.
The April 17, 2019 MRI of the worker's right knee showed, in part, that the worker had a complex tear of the posterior horn/body of the lateral meniscus. Based on our review of the evidence on file, and as presented at the hearing, the panel is not satisfied that the mechanism of injury, as described, would have resulted in a complex tear of the posterior horn/body of the lateral meniscus as shown on the MRI.
The panel acknowledges the report of the orthopedic surgeon, who saw the worker in consultation on August 8, 2019 and wrote that he presented "…as basically a textbook case of lateral meniscal tearing…" and that the "…complex tear certainly is in keeping with what would be induced following the mechanism as described." The panel notes that the report does not indicate how the mechanism had been described to the surgeon, other than to state at the beginning of the report, that the worker "…injured his right knee on March 29th on the job site, when he twisted it in the performance of his duties…"
The panel does not dispute that the worker has a complex tear of lateral meniscus of his right knee. As previously stated, however, the panel is not satisfied, based on our review and understanding of the evidence, that the mechanism of injury would have resulted in a complex tear of the lateral meniscus as shown on the MRI. Rather, the panel is satisfied, on a balance of probabilities, that the worker suffered a sprain/strain injury to his right knee as a result of the March 29, 2019 workplace incident and that the complex lateral meniscus tear was a pre-existing condition.
The panel has also considered whether the workplace incident or compensable injury aggravated or enhanced the worker's pre-existing tear or right knee condition. While the pre-existing right knee condition may have, and likely did, prolong the worker's recovery from his compensable injury, the panel is satisfied that the evidence does not support that the workplace incident or compensable injury aggravated or enhanced that condition.
In conclusion, the panel is satisfied, on a balance of probabilities, that the worker had recovered from his compensable right knee injury by July 31, 2019. The worker's benefits were therefore terminated on August 7, 2019, in accordance with WCB Policy 44.30.60, Notice of Change in Benefits or Services.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid beyond August 7, 2019 as a result of his March 29, 2019 workplace incident. The worker is therefore not entitled to benefits after August 7, 2019.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of December, 2020