Decision #36/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker’s claim is acceptable. A teleconference hearing was held on March 2, 2021 to consider the employer's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
On May 15, 2019, the employer provided the WCB with an Employer’s Incident Report indicating the worker had injured their left knee in an incident at work on April 29, 2019, which was reported to the employer on May 9, 2019. The employer noted the worker reported “…pain in his left knee that he attributes to performing his regular duties.” The worker’s Worker Incident Report was received by the WCB on May 16, 2019. On their report, the worker noted they had a non work-related injury to their right knee and had missed work on April 27, 2019 due to that injury. They further indicated:
I told my boss that my knee wasn’t very good and that I can’t do much of my regular duties. He indicated to do what I could do and if it’s too much to contact [lead hand].
It started off by a little bruise on my knee, I continued to work and didn’t think anything of it. It got worse and worse, got to the point it was swollen and I could hardly walk on it. This is when I decided to report it.
This is how my left knee started is because I had to kneel on it instead of using my right knee.
The worker first sought treatment with a sports medicine physician on May 10, 2019, with the Doctor’s First Report received by the WCB on May 16, 2019. The worker reported they had sustained a “plant and twist injury” to their right knee on April 25, 2019 which caused them to favour their left knee while at work. On examination, the physician noted “prepatellar effusion” and “Point tenderness” over the patella. Other testing and x-rays were reported as normal. The treating sports medicine physician diagnosed left patellar femoral syndrome/bursitis and recommended physiotherapy and for the worker to be off work for one week.
When the worker attended an appointment with their family physician on May 17, 2019, the physician noted “tender soft swelling in front of tibial tuberosity” in the worker’s left knee with mild swelling and normal range of motion. The physician diagnosed bursitis and imposed restrictions of office work and recommended avoiding kneeling or bending for one week.
The WCB contacted the worker on May 23, 2019 to discuss their claim. The worker confirmed they injured their right knee on April 25, 2019 in a non work-related injury and missed a day of work on April 27, 2019 due to that injury. The worker further advised on May 9, 2019, they reported the injury to their left knee to the employer and sought medical treatment as their knee was “…really swollen and sore.” On May 17, 2019, the worker advised the employer they could return to work on sedentary duties, and that the employer was trying to determine if the worker’s claim was for a workplace accident and if they had appropriate modified duties available. The worker further advised they were attending an appointment with their treating sports medicine physician the next day for a follow-up appointment to determine if they could perform their regular duties.
On May 24, 2019, the WCB contacted the worker again and gathered further information on their job duties performed after the workplace accident. Further information was gathered from the employer on May 28, 2019, who noted the worker injured their knee in a non-work related accident, which the WCB clarified was an injury to right knee and the worker’s claim was for their left knee. On May 30, 2019, the WCB clarified with the worker’s supervisor the non-work related injury was to the worker’s right knee and the claim was for the worker’s left knee.
The employer’s representative provided an objection letter to the WCB on May 30, 2019. The representative provided the worker injured their knee in a non-work related activity and noted the diagnosis of patellar bursitis appeared consistent with a non-work related injury rather than one sustained while performing their regular job duties.
On May 30, 2019, a WCB medical advisor reviewed the worker’s file and provided an opinion that “Prepatellar bursitis typically arises following periods of prolonged kneeling (ie kneeling for more than one hour per day, typically overall several consecutive days). Swelling and redness may develop with (sic) 24-48 hours of increased kneeling.”
On May 30, 2019, the WCB advised the worker their claim was accepted for left knee bursitis and ongoing medical aid benefits only. The WCB further advised the diagnosis of patellofemoral syndrome provided by the worker’s treating sports medicine physician was noted to be caused by “…vigorous physical activities that put repeated stress on the knee, such as jogging, squatting and climbing stairs” and that in order to accept that diagnosis, the WCB would have had to find that a traumatic incident or a specific job duty to cause that injury. The WCB advised the reported mechanism of injury did not meet that criteria for a diagnosis of patellofemoral syndrome related to the workplace accident. The worker continued to seek treatment and was discharged from physiotherapy on June 27, 2019 and returned to full regular duties by July 2019.
On February 3, 2020, the employer’s representative requested reconsideration of the WCB’s decision to accept the worker’s claim and provided a submission to Review Office noting their belief the worker sustained an injury to their left knee while engaging in the same non-work related activity as the prior right knee injury.
Review Office found on March 9, 2020 that the worker’s claim was acceptable. Review Office accepted the May 27, 2019 opinion of the WCB medical advisor that prepatellar bursitis was caused by periods of prolonged kneeling and found the worker developed left knee bursitis from their job duties. While the employer’s representative related the worker’s left knee difficulties to their non-work related activities, Review Office did not find evidence to support that the worker’s activities outside of work caused the injury.
The employer’s representative filed an appeal with the Appeal Commission on September 9, 2020. A teleconference hearing was held on March 2, 2021.
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.
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 or medical aid as required to cure and provide relief from injury arising out of a compensable accident or other compensation as provided for under the Act.
The employer was represented in the appeal by a claims specialist, who made an oral submission on behalf of the employer and provided answers to questions posed by members of the appeal panel.
The employer’s position is that based upon the evidence on file it cannot be proven that the worker sustained the left knee injury arising out of and in the course of completing their work duties. More specifically, the employer’s representative noted the evidence does not establish that the worker did not sustain the left knee injury at the same time as the right knee injury, doing the same activity which was not work-related. Alternatively, the employer’s representative noted that the worker’s claim outlined that the symptoms first appeared after work hours when the worker was kneeling with their child, suggesting that this may have been the mechanism of injury.
The employer’s representative highlighted that the worker is known to be an active person, involved in sports and that it was due to the worker’s outside of work activities that the worker injured their right knee a few days prior to the claimed date of injury of the left knee. The worker missed work on April 27, 2019 as a result of the right knee injury, and two days later, noted symptoms in their left knee.
The employer’s representative pointed out that the worker did not report the left knee injury to the employer until May 9, 2019 and did not seek medical attention until May 10, 2019, calling into further question whether the injury arose at work on April 29, 2019 as claimed. The employer also noted the worker did not seek medical attention for the right knee injury but that the worker claims the left knee was injured by kneeling in order to favour the injured right knee.
In sum, the employer’s position is that the evidence does not support a finding that the worker was injured as a result of an accident arising out of and in the course of employment. For that reason, the worker’s claim should not be accepted, and the employer’s appeal should be granted.
The worker did not participate in the appeal.
The sole issue for determination by the panel is whether or not the worker’s claim is acceptable. In order to grant the employer’s appeal, the panel would have to find that the worker was not injured as a result of an accident arising out of and in the course of employment. For the reasons outlined below, the panel was not able to make such a finding.
The basis for the worker’s claim is that the worker injured their left knee arising out of kneeling in the course of undertaking work duties, with symptoms first noted on April 29, 2019. The worker was later diagnosed with both prepatellar bursitis and patellofemoral syndrome, and the WCB accepted only the diagnosis of prepatellar bursitis as being related to and arising out of the worker’s employment.
The employer’s position is that the worker’s prepatellar bursitis could not have arisen out of and in the course of the worker’s duties, noting that the information provided by the worker to the WCB as to the job duties on April 29, 2019 was not accurate in that the worker would only have had to move approximately one-half of the number of packages claimed and would not have been required to kneel throughout the entire day. Further, the employer confirmed that there was no change, or increase in the worker’s job duties on that day or prior to it that could account for the worker’s development of left knee symptoms of pain and swelling on April 29, 2019.
Further, the employer suggests that given the evidence that the worker had already injured their right knee as a result of participating in non-work related activities, there was a greater likelihood that the left knee injury also arose out of those same activities than out of the work-related activities.
The panel noted the worker’s information provided to the WCB that, after the worker sustained the right knee injury, the worker increased their left-knee kneeling in the course of their completion of job duties so as to protect the right knee by allowing the leg to remain in an extended position. The panel also noted that the non-compensable activity that the worker acknowledged caused their right knee injury is not an activity that requires extensive periods of kneeling such as might be expected to cause development of prepatellar bursitis, although it is an activity that could contribute to a diagnosis of patellofemoral syndrome.
The medical reporting supports that on May 10, 2019 the worker reported left knee pain with swelling and tenderness that began on April 29, 2019, and which was diagnosed as patellofemoral syndrome/bursitis. The WCB medical advisor, in an opinion dated May 27, 2019 outlined that the diagnosis of prepatellar bursitis “...typically arises following periods of prolonged kneeling (ie kneeling for more than one hour per day, typically over several consecutive days). Swelling and redness may develop with (sic) 24-48 hours of increased kneeling.”
The information the worker provided to the WCB indicates that the worker’s job duties daily required kneeling over the course of the day, and while there is some disagreement between the worker and employer as to how many packages were moved by the worker on April 29, 2019 there is no dispute that the worker would have necessarily spent at least some portion of their workday kneeling in the course of employment. Further, the evidence supports that the worker continued to work their regular duties, including kneeling on the left knee, until the worker noted significant left knee swelling on May 9, 2019 which led the worker to seek medical attention on May 10, 2019. The panel accepts the worker’s explanation that their non-compensable right knee injury necessitated more kneeling on the left knee only in order to protect the right knee.
The diagnosis of prepatellar bursitis is consistent with the worker’s reported mechanism of injury and on this basis, the WCB accepted the worker’s claim. The panel finds no reason to interfere with that decision. There is no evidence before the panel to support the employer’s position that there is another non-work related cause for the injury.
The panel therefore finds, on a balance of probabilities, that the evidence supports a determination that the worker sustained injury to their left knee arising out of and in the course of employment. Therefore, the worker’s claim is acceptable. The employer’s appeal is denied.
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 18th day of March, 2021