The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after June 3, 2019. A teleconference hearing was held on March 23, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June 3, 2019.

Decision

The worker is entitled to benefits after June 3, 2019.

Background

On October 29, 2018, the employer provided the WCB with an Employer’s Accident Report noting the worker injured their right leg in an incident at work on October 27, 2018. The employer reported that as the worker and a co-worker lifted a heavy metal blade, the worker stepped backwards and tripped, losing their balance and falling. As the worker fell, they lost grip of the blade, which struck their right leg above their knee. Included with the Report were medical reports from the worker’s attendance at a local emergency department for treatment.

The Doctor’s First Report noted the worker reported pain and inability to bend their knee or walk. On examination of the worker, the treating physician found mild swelling on the worker’s right knee with a small abrasion noted on the lateral side. Mild tenderness was noted on the tibial tuberosity and moderate tenderness was noted at the kneecap and top part of the patella. The physician diagnosed a right knee trauma crush injury and recommended the worker remain off work for three days, and then follow-up with their treating family physician. A Functional Capabilities Form completed at that time indicated the worker could perform non-weight bearing activities until reassessed on October 31, 2018.

The WCB contacted the worker on October 31, 2018 to discuss their claim. The worker confirmed the mechanism of injury and noted they felt pain to their buttocks and tail bone. The WCB discussed the employer’s offer of modified duties with the worker who advised they refused the duties as they were sick. Further, it was noted the worker was to be laid off by the employer as of October 31, 2018.

The worker attended for a follow-up appointment with their treating family physician on October 31, 2018. The physician noted the worker’s report of a very sore right knee and being unable to weight-bear on their right foot. The physician diagnosed a contusion on the right leg and lower abdomen and referred the worker to physiotherapy. At the worker’s initial assessment on November 2, 2018, the worker was diagnosed with right quad and patellar joint strains.

On November 7, 2018, the WCB accepted the worker’s claim.

On January 8, 2019, the worker’s treating physician provided a progress report indicating the worker reported pain in their right knee, issues with weight-bearing and that the worker was using a cane to get around. Upon examination, the physician noted the worker had a swollen right knee and upper leg and recommended the worker remain off work pending physiotherapy and further treatment. On February 15, 2019, the treating physiotherapist provided restrictions of no walking longer than 20 minutes without a break; no lifting over 30 pounds; and no climbing, to be reviewed in four weeks. The employer advised the WCB on February 19, 2019 they could accommodate the worker with modified duties; however, due to layoffs, the worker could not return to their regular pre-accident duties.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on March 11, 2019. The medical advisor provided an opinion that the initial diagnosis related to the workplace accident of October 27, 2018 was a contusion to the right patellar and quadriceps with a natural history of recovery within one to six weeks, with or without treatment. The WCB medical advisor provided the worker’s current diagnosis was capsulitis of the right knee, due to immobility, supported by medical findings of a lack of active range of motion and deficits in gait analysis. It was noted the worker’s recovery was delayed given the worker’s fear of movement and the noted gait analysis. The medical advisor recommended further treatment focused on active flexion, crouching, gait education and active rehabilitation, as well as recommending restrictions of no resisted repetitive crouching and no walking greater than 30 minutes at a time, to be reviewed after one month. The WCB advised the employer of the restrictions on March 25, 2019.

On May 15, 2019, the worker’s treating physiotherapist updated the worker’s restrictions to limit walking to half an hour to an hour at a time; limit stairs and crouching and to limit kneeling. On May 22, 2019, the worker advised the WCB they spoke to their employer and advised the employer of the updated restrictions; however, the employer advised the worker there were no modified duties available.

A WCB medical advisor reviewed the worker’s file on May 27, 2019 and concluded that the worker’s current presentation could no longer be related to the October 27, 2018 workplace accident as it was beyond the natural history of recovery for the accepted compensable injury of contusions and capsulitis of the knee. Further, the WCB medical advisor recommended the worker return to the regular activities, including their job duties and noted any restrictions would be preventative and not related to the compensable injury.

On May 27, 2019, the WCB advised the worker it had determined they had recovered from the workplace accident and entitlement to benefits would end on June 3, 2019.

A June 11, 2019 letter from the worker’s treating physiotherapist in support of the worker’s appeal was provided to the WCB. The physiotherapist noted the worker continued to have significant pain in their knee and remained incapable of returning to work unless the previous restrictions were in place for a period of six weeks, to be re-assessed. The physiotherapist also indicated the worker’s pain was limiting their ability to return to their pre-accident functions.

On August 19, 2019, the worker formally requested reconsideration of the WCB’s decision to Review Office. Review Office determined on September 23, 2019 that the worker was not entitled to benefits after June 3, 2019. Review Office relied upon WCB medical advisor’s opinion that the worker’s diagnosis was a contusion that later developed into capsulitis and the medical evidence did not support that a more sinister injury occurred. Review Office was unable to account for the worker’s symptoms given the type of injury, the length of time since the workplace accident and the treatment provided. As such, Review Office found the worker was not entitled to benefits beyond June 3, 2019.

On October 3, 2019, the worker submitted a copy of a September 9, 2019 MRI study and requested Review Office reconsider the September 23, 2019 decision. Review Office requested a WCB medical advisor review the worker’s file along with the MRI and provide a further opinion. On October 15, 2019, the WCB medical advisor indicated the new medical information did not change the May 27, 2019 opinion. The worker’s representative provided a submission to the WCB on October 25, 2019, including some additional medical studies. On October 31, 2019, Review Office requested a further opinion from the WCB medical advisor regarding a “multi-locular fluid filled cyst” noted on the September 9, 2019 MRI study. On November 6, 2019, the WCB medical advisor opined that “Trauma to the anterior aspect of the lower limb or trauma causing a knee joint effusion would be unlikely to affect the size or position of the gastrocnemius cyst, which was probably a pre-existing condition.” A copy of the opinion was provided to the worker’s representative, who provided a response on November 13, 2019.

Review Office found on November 15, 2019 that the worker was not entitled to benefits after June 3, 2019. Review Office agreed with and relied on the opinion of the WCB medical advisor that the cyst found on the September 9, 2019 MRI study was a pre-existing condition that was not caused or structurally altered by the workplace accident. Further, Review Office found the previous decision remained unchanged and noted the worker was not entitled to benefits after June 3, 2019.

The worker’s representative filed an appeal with the Appeal Commission on October 5, 2020. A teleconference hearing was arranged and held on March 23, 2021.

Reasons

Applicable Legislation and Policy

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.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Medical aid is provided for under s 27 of the Act which 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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker. The worker provided testimony to the panel through answers to questions posed by the worker advisor as well as questions from the appeal panel.

The worker’s position, as outlined by the worker advisor in the submission to the appeal panel, is that the worker had not, by June 3, 2019 recovered from the compensable injury sustained on October 27, 2018 but that as a result of the injury the worker continued to experience disabling symptoms such that they required medical treatment and continued to experience a loss of earning capacity. Therefore, the worker should be entitled to medical aid and wage loss benefits after June 3, 2019.

The worker described to the panel how the injury occurred, noting that in the course of their work, they were carrying a heavy metal blade together with a colleague. The worker was walking backward and stumbled over a piece of metal cable conduit on the ground, falling back and landing on the ground and on the conduit. As the worker fell, they released their grip from the blade, resulting in the blade falling onto the worker’s right leg. The worker described the mechanism of injury as “I fell, fell over the cable tray with my butts landing on the opposite side and my knee landing on the edge of the cable tray, and the blade coming down on top of my knee and being crushed, and my knee being crushed in between the cable tray and the bar.”

The worker advisor outlined that after the accident, the worker was initially diagnosed with a contusion strain and later capsulitis of the right knee. After the worker attended physiotherapy the WCB determined that the worker had recovered and terminated benefits, but the worker continued to have disabling knee pain and could not walk any distance. Because of the continuing symptoms the worker was unable to return to work when benefits were terminated as they could not perform the basic duties of their job.

The worker advisor noted that the MRI of September 9, 2019 which revealed a multiloculated ganglion cyst measuring 3.8 by1.5 centimeters and involving the lateral head gastrocnemius at the femoral insertion. The location of the cyst correlated to the exact location of the majority of the worker’s pain. Although the WCB medical advisor allowed that a cyst could be caused by trauma or contusion to the back of the knee, the opinion provided was based on the reporting only trauma to the front of the knee. When the worker was referred to a specialist in January 2020, this was the first assessment of the back of the worker’s knee. The worker saw an occupational health specialist in March 2020 who assessed the worker and concluded:

“...by my assessment, the ganglion cyst that is within the gastrocnemius muscle of the lateral femoral insertion behind the knee is definitely responsible for much of [the worker’s] ongoing right leg and knee impairment in walking and other actions that activate or load gastrocnemius muscle, which is the knee and ankle flexor, as well as compression discomfort with knee flexion. [The worker] had no such complaints of impairments prior to [their] October 2, 2018 work injury. While the direct blow of the grader blade on the front of [their] knee was the main focus of the attention, the underside of [their] right knee was also forcefully impacted by landing heavily on the hard edge of the cable shield. This corresponds closely to the anatomic location of the cyst.”

The worker advisor noted that due to being rushed for emergency medical care, the worker did not ever complete an accident report with respect to this incident. But what is of importance from the early reporting is the consistent description of the worker’s injury as a “crush injury” and that a crush injury, by definition, means that there is impact, force and trauma to both sides of the body part in question. Further, a review of the file evidence reveals that the accepted diagnosis is a crush injury to the knee, and this demonstrates there was impact and force to the back of the knee sufficient to cause a contusion and, therefore, the cyst.

The worker’s position is that the cyst is the definitive cause of the majority of the worker’s knee disability. The mechanism of injury explains the location of the cyst. The location of the cyst explains the knee impairments in walking and other actions that activate or load the gastrocnemius muscle and cause compression discomfort with knee flexion.

The worker advisor noted that there is no evidence to support the WCB position that the cyst was a pre-existing condition, not caused by the accident, noting that the worker had no symptoms of any knee issues before the accident and was able to bend, crouch, carry heavy weight long distances while walking, and run up or down stairs. But since the accident the worker cannot walk without the assistance of a cane and there has been a lack of symptomatic improvement. The worker advisor submitted that if the worker had a pre-existing knee condition, including a cyst, it was asymptomatic before the accident, became symptomatic at the exact time of the accident, and has not improved since the accident.

The worker advisor outlined that the prognosis for the worker is that the limitations, because of the cyst, will not resolve without surgery. The medical evidence supports that the worker remains disabled from their pre-accident employment as a result of the limitations arising out of this injury.

In sum, the worker’s position is that the evidence clearly shows lack of recovery from the injury sustained the compensable accident. The cyst revealed in the MRI of September 9, 2019 was caused by the accident, as outlined in the medical opinions that the cyst could have been caused by trauma to the back of the knee. The crush injury sustained here was sufficient trauma to cause the development of the cyst. Although it is possible that this was a pre-existing condition, there is no imaging to confirm that and there is no evidence of any symptomatic presentation prior to the accident. If it were pre-existing, it was asymptomatic, and, therefore, its condition changed at the time of the accident and the WCB would still be responsible for the full injurious effects of the accident. As the worker’s physical restrictions on the knee preclude the worker from completing the majority of the regular duties of their occupation, the worker has a continued loss of earning capacity. Additionally, the worker requires medical aid for the knee. Therefore, the worker is entitled to benefits after June 3, 2019.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine is whether the worker is entitled to benefits after June 3, 2019. For the worker’s appeal to succeed, the panel would have to find that, as a result of the compensable accident of October 27, 2018, the worker continued to experience a loss of earning capacity or required medical aid to cure and provide relief from the injury sustained in the accident, beyond June 3, 2019. The panel was able to make such a finding, for the reasons outlined below.

In considering the question before us, the panel reviewed the evidence with respect to the mechanism of injury. We note that in this case there is no worker report to the WCB outlining the circumstances of the injury. The only information recorded in the file appears to be a file memo from the WCB adjudicator on October 31, 2018 summarizing the worker’s conversation with the adjudicator of that date. The adjudicator recorded: “Worker was doing clean up and was lifting a blade to put it in the rack, when [they] tripped and fell backwards. When [the worker] fell, [they] hit the ground hard and the blade fell on [their] knee.” No other details are noted.

Subsequent medical reporting contains brief summaries of the mechanism of injury described generally as a crush injury that occurred when the worker tripped and fell, dropping a heavy metal blade onto their right leg.

In a report from the consulting occupational health physician to the worker advisor dated July 9, 2020 there is greater detail provided as to the mechanism of injury. The panel notes that the description outlined in that reports aligns with the worker’s evidence before the panel, that as the worker and a coworker were carrying a heavy metal blade, the worker, walking backwards, stepped onto and tripped over a metal cable conduit on the ground, fell backwards and landed on the ground with the metal blade landing with force on the worker’s right leg just above the knee and the knee landing on the metal cable conduit.

The worker advisor noted, in their submission on behalf of the worker, that:

“We do not agree with the Review Office’s position that the information that the knee would have been forcefully impacted posteriorly by the cable tray is new information at the time of the Review Office appeal. It is not atypical for accident descriptions to be brief at the beginning of a claim. They are simply to establish the claim and are based on information of the note taker, either WCB staff or medical staff, assumes is relevant at that time. It is only when worker’s do not recover as expected and are referred to more specialists for answers, then a more detailed picture of the mechanism of injury becomes apparent. This is due to the fact that the specialist will ask further probing questions of the worker about the mechanism of injury in an effort to further diagnose why the injury is not recovering as expected. It is seen in almost every file where the worker does not recovery as expected. It is not, in our opinion, evidence of deception or new evidence. It is our position these more detailed mechanisms of injury are a natural evolution because of more probing questions of specialists when necessary.”

The panel accepts the evidence of the worker as to how the accident took place and that in the course of the accident, there was force applied to the worker’s right knee both anteriorly, as the blade fell onto that aspect of the knee, and posteriorly, as the weight of the blade and the worker’s own weight fell onto the cable conduit that the worker tripped over and fell onto. In the result, there was traumatic injury to the worker anterior and posterior right knee.

The worker’s position is that they had not recovered from the injurious effect of this accident by June 3, 2019 when the WCB discontinued benefits and that this was due to effects of the gastrocnemius cyst, the existence of which was first revealed by the MRI of September 9, 2019. The consulting occupational health physician noted that “...the ganglion cyst that is within the gastrocnemius muscle of the lateral femoral insertion behind the knee is definitely responsible for much of [the worker’s] ongoing right leg and knee impairment in walking and other actions that activate or load gastrocnemius muscle, which is the knee and ankle flexor, as well as compression discomfort with knee flexion.”

In light of the opinion from the occupational health physician that the worker’s continuing right leg and knee impairment is related to the gastrocnemius cyst, the panel considered whether the evidence supports that this cyst was caused by or the result of the traumatic injury sustained by the worker in the accident of October 27, 2018.

The panel noted that the medical reporting confirms a continuation of the worker’s right knee symptoms beyond the WCB’s May 27, 2019 determination that the worker should have recovered and would not be entitled to benefits after June 3, 2019. The treating physiotherapist provided restrictions on May 15, 2019 limiting walking, stairs, crouching and kneeling. In a June 11, 2019 letter to the WCB, the physiotherapist confirmed the need for these restrictions to be in place and reassessed after 6 weeks, given the worker’s continuing reports of significant pain. In a chart note dated June 10, 2019, the treating physician noted the worker had been in “constant pain ever since the injury” and that the worker was “having weight bearing issues with [their] right knee which renders [them] incapable of going up and down the stairways, standing for a longer period of time.” At that time, the physician ordered the MRI study to rule out any ligament or meniscus injury. This evidence supports the worker’s position that they had not recovered from the injury by June 3, 2019.

The September 9, 2019 MRI study report revealed no “significant internal derangement of the knee” but did identify the multiloculated ganglion cyst involving the lateral head gastrocnemius at the femoral insertion. This was a new finding, not previously noted in the reporting of the worker’s right knee injury. Subsequent medical reporting confirms the worker continue to experience right knee symptoms with kneeling and pain with stairs. A January 9, 2020 report outlines clinical findings that support the position that the cyst was causing the worker’s symptoms.

A WCB orthopedic consultant who reviewed the worker’s file, including the MRI results, noted in an opinion dated October 9, 2019 that the previous file information does not support the existence of the MRI findings and concluded that the worker’s early degenerative changes in the articular cartilage noted by the MRI study were unrelated to the mechanism of injury here. It is of note to the panel that the orthopedic consultant was providing an opinion on the basis that the worker sustained an injury only to the anterior of their right knee. No consideration is given to any trauma to the posterior knee.

In a further opinion of November 6, 2019, the WCB orthopedic consultant explained that “...gastrocnemius cysts occur at the back of the knee for no known cause. It is possible that direct contusion or repetitive trauma of the muscle may be causative factors”. The orthopedic consultant noted is it “not possible to state whether or not such a lesion would cause any symptoms”. Noting that it was unlikely that trauma to the anterior aspect of the lower limb would cause such a cyst, and further that trauma to the anterior aspect of the lower limb would be unlikely to affect the size or position of such a cyst, the orthopedic consultant concluded it was “probably a pre-existing condition.” The panel notes that the orthopedic consultant again considered only the possibility of trauma to the anterior right knee and did not reference any clinical findings as a basis for the conclusion that the cyst was pre-existing.

As noted by the worker advisor, no diagnostic imaging of the worker’s right knee is available from the period prior to the accident to establish whether or not the cyst was pre-existing. The worker advisor noted however that there is no evidence that the worker had any pre-existing symptomatic concerns with their right knee and suggests that if the cyst was pre-existing, it was asymptomatic, and, therefore, its condition changed at the time of the accident and the WCB would still be responsible for the full injurious effects of the accident.

The report of the occupational health physician dated July 20, 2020 outlines the clinical findings from the assessment of the worker of March 4, 2020 and concludes “I disagree with [the WCB orthopedic advisor’s] position that in [the worker’s] case “there is no known cause for this cyst’; in fact, direct contusion at the time of injury as described above is the definitive cause of the cyst, not just dismissed as ‘possible cause’.

The panel accepts the worker’s evidence that prior to the accident, they did not have any right knee and leg symptoms and were able to complete their work duties without limitation or restrictions.

The panel considered the evidence of the occupational health physician that the “definitive cause” of the cyst identified in the September 9, 2019 MRI study was the traumatic injury sustained by the worker when they fell backward onto the conduit, in light of the comments of the WCB orthopedic consultant’s comment that “It is possible that direct contusion or repetitive trauma of the muscle may be causative factors” of the gastrocnemius cyst. The panel finds, on the basis of this evidence and on the standard of a balance of probabilities, that the cyst was caused by the workplace accident, given the mechanism of injury and the location of the cyst on the worker’s knee, where the crush injury occurred.

The medical evidence on file confirms that the worker remains subject to physical restrictions that prevented a return to their pre-accident employment, resulting in an ongoing loss of earning capacity, and further, that the worker continues to require medical aid to cure and provide relief from the injury sustained in the compensable workplace accident of October 27, 2018. There is no evidence before the panel to support a finding that the worker was recovered from the injuries sustained in the accident by June 3, 2019.

Therefore the panel concludes, on a balance of probabilities, that the worker is entitled to benefits beyond June 3, 2019. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. MacKay, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of April, 2021