The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 9, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On December 10, 2018, the worker reported an injury to his left knee to the WCB, indicating on the Worker Incident Report that the injury occurred at work on January 5, 2016. He described the accident as taking place when he began to rise from a crouching position to his feet. He reported:

“As I started to get up, there was a pop and sharp pain in my knee. The knee swelled up and I had a hard time walking on it. I thought it would get better but several days later it did not, so I went to the doctor. I don’t think I reported it to my employer…My co-workers were aware that I had a knee injury for a long time afterwards.”

When the WCB discussed the claim with the worker on December 11, 2018, the worker confirmed the mechanism of injury and advised that it occurred when he was working the night shift and “…he didn’t think he could tell anyone about it, unless he was supposed to report it to someone else, he didn’t know.” He also confirmed that he did not have issues with his left knee prior to January 5, 2016. The worker advised that he saw his family physician a couple of days after the workplace accident but could not recall a specific date. He further advised that he sought treatment on a regular basis for his knee with his family physician and on August 1, 2018, he underwent an arthroscopy.

The WCB contacted the worker’s treating physician and requested copies of all medical information related to the worker’s left knee. The information received on December 12, 2018 noted the worker’s first complaints regarding his left knee occurred on January 11, 2017. The worker was referred to an orthopedic surgeon in February 2018 and had a left knee partial synovectomy on August 1, 2018. At a follow-up appointment with the surgeon on September 5, 2018, physiotherapy was recommended.

The worker attended for a further appointment at his family physician’s clinic on December 10, 2018. At that time, he reported that his knee pain was a longstanding issue and he had persistent pain in his knee for several years after a workplace injury. The physician noted the worker had orthopedic consultations and eventually, surgery but the worker reported that the pain in his knee bothered him all the time and he had difficulty standing and walking. After examining the worker, the treating physician indicated the worker had full range of motion with no instability, all ligaments in his left knee were stable and no swelling, bruising, deformity or effusion was noted. The physician recommended ongoing physiotherapy and noted the worker “Could likely do work with minimal standing/walking e.g. office work.”

The employer filed an Employer’s Accident Report with the WCB on December 17, 2018 indicating that the injury was never reported to them and they were not aware the worker had sustained an injury on January 5, 2016.

On January 18, 2019, the WCB advised the worker that his claim was not acceptable as it could not establish that an accident occurred. The WCB noted the worker had difficulties with his left knee but that a relationship between those difficulties and a workplace accident could not be established.

The worker requested reconsideration of the WCB’s decision to Review Office on April 8, 2019 noting that his injury occurred during the night shift with not many people around to witness it. Further, he felt the injury would resolve on its own and continued to work and he felt that as he was seeking medical treatment for his knee, his employer should have been aware of his injury as he was in a lot of pain and could not work to his full abilities. The worker also included a letter dated April 2, 2019 from his treating family physician in support of his request which indicated the first documented visit at the clinic for his left knee was on January 11, 2017, with no prior record of appointments related to pain in his left knee or the reported workplace injury.

On May 21, 2019, Review Office determined the worker’s claim was not acceptable. Review Office acknowledged the worker had difficulties with his left knee as he sought treatment with several healthcare providers regarding those difficulties; however, Review Office could not establish the worker injured his knee in a work-related accident. Review Office noted the employer was not aware of a workplace accident and had advised the worker continued working his regular duties until a shortage of work in December 2017. Further, Review Office found the worker delayed seeking medical treatment for his knee for a year, and that the chart notes for appointments on January 11, 2017 and thereafter did not confirm that a workplace accident was the cause of the worker’s left knee difficulties.

The worker filed an appeal with the Appeal Commission on April 20, 2020. A teleconference hearing was arranged and took place on September 9, 2020. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was provided to the interested parties for comment. On December 10, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by 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 as well as occupational disease.

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. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in s 39 of the Act, or medical aid to cure and provide relief from injury arising out of a compensable accident, as provided under s 27 of the Act.

The Act requires in s 17(1) that an injured worker report an accident to their employer within 30 days after the injury occurs. Further, the Act requires in s 19(2) that an application for compensation be filed with the WCB within one year after the date of injury. These time periods are subject to s 109 which allows the WCB to enlarge a time period where an injustice would result as a result of failing to do so.

Worker’s Position

The worker appeared in the hearing on his own behalf. He provided a brief oral submission outlining his position and provided answers to questions posed to him by panel members.

The worker’s position is that the claim should be acceptable because he injured his left knee at work. The worker believes that people at work knew of his injury, as he would tell his manager if he had to be away for an appointment to treat the injury and noting that when asked by coworkers how he was doing, he would say that he still hurt.

On questioning by members of the panel, the worker described the specific tasks he was engaged in at the time he states the injury occurred. He described working on his knees and that as he rose to his feet, his left knee “popped” and “buckled”. He was able to continue working his full shift after this occurred. He noted he had some time loss in May 2016 and March 2017 that he believes was related to the knee injury, but that he continued to work through to December 2017 when he was laid off.

The worker advised the panel that he sought treatment sometime after the injury, during the winter months although it may have been later than January 2016. He noted he regularly saw a chiropractor who treated his knee as well as other issues.

The worker described to the panel that after the surgery, he continued to have pain in his left knee that worsens if he walks a lot. He tries to keep his leg elevated when he is able to do so.

In sum, the worker’s position is that as a result of the incident he described as taking place at work on January 5, 2016, he hurt his left knee, which led to the surgery in August 2018 and his continuing left knee problems. On this basis, the worker believes that the claim should be accepted by the WCB.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for determination is whether the claim is acceptable. To find that the claim is acceptable, the panel would have to determine that the worker was injured as a result of an accident that occurred arising out of and in the course of his employment. The panel was not able to make such a finding for the reasons that follow.

The panel noted that the worker’s report of injury to the WCB was not made until nearly three years after the reported incident occurred. The panel finds this delay to be significant and notes that such a lengthy delay in reporting an injury makes it challenging to determine whether there is a causal link between the worker’s job duties and his injury. Adding to the challenge arising from the delay in reporting is the lack of reporting an injury by the worker to anyone, whether medical professionals or colleagues or others at the time or shortly after the time the reported incident occurred.

The medical reporting supports that the worker first sought treatment for symptoms of injury in his left knee on January 11, 2017 although the chart notes do not indicate any reported cause of injury. The physiotherapist’s chart notes record that the worker, in May 2017, related his left knee symptoms to an injury that occurred approximately 1 ½ years earlier when he was getting up from the ground.

On February 7, 2018 the worker reported to a physician that he had left knee pain for two years, which he related to when “...he was working on his knees at work and felt locked.” He was referred for an orthopedic consult on February 13, 2018 “...with left knee pain for 2 years, started after kneeling on his knees for a long time.” The orthopedic surgeon concluded that “...most of his knee is intact and in good condition and that he likely has a degree of extensor mechanism problems that are contributing” to his ongoing symptoms. Ultimately, the worker underwent a partial synovectomy surgery on August 1, 2018 which confirmed the diagnosis of left knee extensor mechanism disorder.

The evidence confirms to us that the worker’s left knee was injured and required treatment, but the panel must also find that the injury was the result of a workplace accident. In considering whether there was an accident as defined by the Act the panel must consider whether the evidence supports a finding that there was a chance event or an event arising out of and in the course of employment that resulted in injury to the worker.

The worker provided testimony to the panel as to how he believes the injury occurred, when he experienced a popping and buckling as he rose to his feet from his knees at work but was not certain exactly when this occurred. His testimony to the panel as to the mechanism of injury is consistent with the information provided in his Worker Incident Report to the WCB in December 2018. He reported to his treating physician early in 2018 that the injury occurred when he was working on his knees and felt his knee lock. In his report to the orthopedic surgeon in April 2018, the worker stated the injury occurred as a result of extended kneeling at work and actually began around late 2015.

Apart from the worker’s own testimony and reports, there is no evidence that there was any workplace incident resulting in injury to his left knee that took place on or around January 5, 2016.

The employer confirmed the worker did not report any injury during this period and that he continued to work his regular duties without accommodation for nearly 2 years afterward, through to his layoff on December 10, 2017. The employer noted the worker had time off with a physician’s note during May 2016 and again in March 2017 but was not advised that this was related to a work injury.

Although the worker asserted that he sought medical attention a few days following the reported injury, the medical reporting confirms the worker did not seek medical attention for his left knee until more than one year later. The first mention in the medical chart of any related concerns is on January 11, 2017 when the worker’s physician records “issues with his left knee and left elbow.” 

Chiropractic chart notes from March 17, 2016 indicate the worker reported injury to his neck and upper back six months prior to that date, while skateboarding but does not make any note of injury to his left knee. In April 2016, the chiropractor recorded “pain in body” and subsequent reports in 2016 indicate treatment of the worker’s left shoulder, right ankle, neck and shoulder. The first mention of any specific left knee concerns is on May 15, 2017 when the chiropractor noted “Something fell on l[eft] foot on Friday at work, has a bit of a bruise and some swelling but is improving. L[eft] knee also is still quite sore often.” Then, on June 23, 2017 the chiropractor noted the worker was seeking physiotherapy for his left shoulder and left knee and that the worker reported his left knee “...is almost always sore – wears knee brace at work all the time.”

Physiotherapy reporting from May 19, 2017 indicated the worker reported hurting his left knee one and one-half years earlier while “getting up from the ground” and includes a diagnosis of left knee patellofemoral syndrome, or PFS. While the timing would correlate with the date of reported workplace injury, there is nothing in the physiotherapist’s notes to confirm that the worker reported the injury did occur in the course of work.

Considering all of the evidence presented and on file, the panel is unable to conclude on the standard of a balance of probabilities that the worker’s left knee injury occurred as a result of an accident arising out of and in the course of his employment. There is no evidence from the time of the injury to support the worker’s assertion that he injured his left knee in the course of his job duties on January 5, 2016. More than two years passed before any record was made relating the worker’s left knee symptoms to his work duties and even then, the reports to the medical professionals are not consistent as to how the injury occurred.

The panel therefore concludes that the evidence does not establish on a balance of probabilities that there is a causal relationship between the reported incident at work on January 5, 2016 and the worker’s left knee complaints. The claim therefore is not acceptable, and the worker’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of January, 2021