The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for the worker’s right knee difficulties as being related to the February 4, 2020 accident. A teleconference hearing was held on May 13, 2021 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker’s right knee difficulties as being related to the February 4, 2020 accident.

Decision

Responsibility should not be accepted for the worker’s right knee difficulties as being related to the February 4, 2020 accident.

Background

On February 12, 2020, the employer filed an Employer’s Accident Report with the WCB reporting the worker injured their left knee at work on February 4, 2020 when they slipped while closing a vent door on their truck. The worker sought medical treatment on February 5, 2020 and the Doctor’s First Report provided to the WCB indicates the worker reported slipping and twisting their left knee resulting in significant pain. The treating emergency physician diagnosed a knee sprain noting “…some swelling to the left knee. Pain mainly posteriorly. Able to nearly fully extend, slight restriction due to edema. Unable to tolerate significant stress of MCL/LCL/PCL/ACL but feels to have firm end points to all.” The physician prescribed pain and anti-inflammatory medications and recommended the worker remain off work for 10 days. An x-ray taken the same date noted “No bone or joint abnormality is seen.”

The WCB received a Worker Incident Report on February 14, 2020 in which the worker described the incident as “I went to close the ventilation doors on the trailer. Then I slipped on my left leg and injured my left knee. I fell down but not on the ground, on my truck.” The same day, the WCB advised the worker their claim was accepted and the payment of various benefits began.

The WCB contacted the worker on February 24, 2020 and spoke to their representative. The representative confirmed the mechanism of injury reported by the worker and indicated the worker had immediate pain and swelling after the workplace accident. The worker’s representative noted the worker was given anti-inflammatory medication and a referral to an orthopedic specialist. Further, the worker’s representative advised the worker returned to work on February 16, 2020 but was having some difficulty getting into and out of their truck.

At a follow-up appointment with their family physician on February 28, 2020, the worker was diagnosed with “Pain In Limb” and a referral for an MRI study was made. The MRI of the worker’s left knee conducted on March 17, 2020 indicated a horizontal tear of the medial meniscus; chondromalacia about the medial tibiofemoral and patellofemoral compartments and fissuring with a small flap component of the articular cartilage about the medial patellar facet; osteochondral body about the popliteus recess; and a small joint effusion.

On April 6, 2020, the WCB contacted the worker and spoke with their representative who advised the worker had been off work since March 21, 2020 due to ongoing difficulties with their left knee including pain and swelling. The representative reported the worker was using crutches to ambulate.

A WCB medical advisor reviewed the worker’s file on April 6, 2020 in consultation with a WCB orthopedic consultant. The medical advisor provided an opinion that:

In view of persisting knee difficulties (symptoms and functional limitations) the [attending physician] queried a meniscus tear and arranged MRI. The MRI of March 17 2020 demonstrates a horizontal tear (reflective of pre-existing meniscal degeneration) of the medial meniscus, existing in an environment of pre-existing age-related degenerative change at the medial compartment, and elsewhere. The noted presence of a degree of subchondral edema at the medial aspect of the medial tibial plateau is consistent with recent injury at this location (adjacent to the medial meniscus).

In summary, the reported MOI (mechanism of injury) would account for an injury to the medial meniscus, this occurring in the setting of pre-existing degenerative left knee osteoarthritis and medial meniscus degeneration.

The WCB medical advisor recommended an expedited referral to an orthopedic surgeon as well as physiotherapy, and the worker’s current time off work was reasonable given their ongoing symptoms.

A Doctor Progress Report received by the WCB on September 1, 2020 indicated the worker saw their treating family physician on May 26, 2020, June 1, 2020, June 26, 2020, and August 28, 2020 but those appointments were for the worker’s right knee and “There is no indication that the right knee injury is workplace related.”

The WCB contacted the worker and spoke to the worker’s representative on September 28, 2020. The representative advised the WCB the worker had been seeking treatment for both knees, with the initial appointments related to the left knee as that knee was most painful to walk on after the fall at work. Further, the representative advised that after the workplace accident, the worker favoured their left knee because of the pain and shifted their weight to their right leg to ease that pain and as a result, their right knee started to hurt, with constant pain in both knees currently. The worker’s representative noted “We are convinced now that actually both knees have been injured during the fall but it was first mostly noticeable in the left knee.” The representative also noted an MRI had been conducted on the worker’s right knee the previous day.

The September 27, 2020 MRI of the worker’s right knee indicated multidirectional tearing body and posterior horn of medial meniscus with high-grade radial tearing, partial extrusion and associated chondromalacia; free edge fraying lateral meniscus; small ganglion cyst anterior root ligament insertion; chondromalacia lateral tibial plateau; chondromalacia at the patellofemoral articulation; and a possible hematoma was noted in the anterolateral subcutaneous tissue.

The worker was assessed by an orthopedic surgeon on October 13, 2020. The surgeon reviewed the left knee MRI and noted it indicated “…a medial meniscus tear with some moderate chondromalacia medially and in the patellofemoral compartment” and recommended a left knee arthroscopy, which surgery was authorized by the WCB on October 26, 2020. In their review of the worker’s file to authorize the surgery, the WCB medical advisor stated that the diagnosis related to the worker’s right knee was pre-existing, age-related osteoarthritis but was not accounted for in relation to the February 4, 2020 workplace accident.

On October 27, 2020, the WCB advised the worker responsibility for their right knee difficulties would not be accepted based on a review of their file. In an October 28, 2020 follow-up report, the worker’s treating family physician noted the worker had no pain or injuries in their right knee prior to the workplace accident and provided a diagnosis of “missed meniscal [injury right] knee”.

A WCB medical advisor reviewed this new information on November 2, 2020 noting the treating physician “…appears to propose that a right knee injury occurred in relation to the effects of the [compensable injury], but was missed initially as presumably it was not as severe as the more significant left knee injury. The physician reports that with time, the right knee has become increasingly symptomatic. This proposed sequence of events relied completely on speculation”. The medical advisor also noted there was no reporting of injury to the worker’s right knee.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on October 29, 2020. The representative noted that while the worker’s right knee difficulties were not initially noted and the worker’s treating family physician did not relate the right knee injury to work, after further diagnostic imaging was done, the family physician and the worker’s other treating healthcare providers relate the worker’s injuries to both knees to the February 4, 2020 workplace accident.

Review Office found responsibility would not be accepted for the worker’s right knee difficulties on December 9, 2020, relying on the opinion of the WCB medical advisor that the worker’s compensable left knee injury did not materially affect or alter the worker’s pre-existing degenerative right knee condition. Further, Review Office found the worker’s right knee difficulties were not caused or significantly contributed to by the February 4, 2020 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on December 17, 2020. A teleconference hearing was arranged for May 13, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 19, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The 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.

The Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but 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 Policy allows for consideration of evidence concerning the progression of a pre-existing condition based on statistical norms or predictions based on the best available data. The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.

Worker’s Position

The worker appeared in the hearing represented by their spouse and with the assistance of a translator.

The worker’s position is that their right knee was injured at the same time as the left knee, when the worker fell on February 4, 2020, but that the injury was not reported to the WCB because the treating physician explained that the right knee was only hurting because they were using it more to compensate for the left knee injury. The worker’s representative described to the panel how the injury occurred and the worker’s initial symptoms in their left leg, which were more painful than the right. The representative noted that as the worker’s left leg symptoms decreased, the right leg symptoms increased, and that the treating family physician at first attributed this to the right leg taking the brunt of the worker favouring their left leg.

On questioning by members of the appeal panel, the worker advised that they fell onto both knees and that the left knee hurt very badly, but they didn’t initially pay any attention to the right knee. The worker also stated they reported the right knee concerns to their family physician immediately but that they were told by the physician not to worry about it.

The worker further confirmed returning to their job on February 16, 2020 and using their right leg to drive. The worker continued to work on and off until March 21, 2020 at which point their pain had worsened to the point where they couldn’t walk any longer.

The worker’s representative indicated that when there was evidence of fluid on the worker’s right knee, the family physician requested an MRI which ultimately revealed that the worker had meniscal tearing in their right knee as well as in the left. The worker is awaiting right knee surgery.

In sum, the worker’s position is that their right knee difficulties are directly related to and the result of the workplace accident of February 4, 2020 and therefore the WCB should accept responsibility for this injury.

Employer’s Position

The employer participated in the hearing and was represented by the firm owner and accounting manager. The accounting manager made a submission on behalf of the employer and both the accounting manager and firm owner provided answers to questions posed by members of the appeal panel.

The employer took no position with respect to the issue for determination by the appeal panel. The accounting manager outlined the information in the employer’s possession with respect to the worker’s accident and injury, noting that the employer was notified of the accident by dispatch on February 4, 2020 which set out that while fueling the truck on the employer’s premises around 8:30 p.m., the worker “went to close the ventilation doors on the trailer, slipped on left leg and injured left knee, fell onto the truck.” On October 7, 2020 the accounting manager sent an email to the worker to request information required for a long-term disability claim and first learned about the right knee injury at that time.

The accounting manager also confirmed the worker had not returned to work since March 21, 2020 and that there was very little communication with the worker during the period after the accident occurred. In response to panel questions, the accounting manager confirmed that the worker’s spouse is also an employee of the employer.

The owner provided further description, in response to panel questions, of the step that the worker slipped on and confirmed as well that there was no video available of the accident.

Analysis

The issue for determination on the worker’s appeal is whether or not the WCB should accept responsibility for the worker’s right knee difficulties as related to the accident of February 4, 2020. In order to grant the worker’s appeal, the panel would have to find that the worker injured their right knee in the accident of February 4, 2020, or that as a result of the accident, there was an aggravation or enhancement of a pre-existing condition of the injury to the worker’s right knee. For the reasons outlined below, the panel was not able to make such findings and therefore the worker’s appeal is not granted.

The panel considered the evidence on file and presented in the hearing as to the nature and circumstances of the worker’s injury. The panel noted the following facts in evidence in particular: 

• The initial report to the employer by the worker’s spouse on the date of accident referenced only an injury to the worker’s left knee; 

• The initial reporting to the WCB by the worker on February 14, 2020 referenced only injury to their left knee; 

• In subsequent conversations with the WCB on February 24 and 28, 2020, there was no reference to any right knee injury or complaints; 

• When the worker ceased working on March 21, 2020 it was due to difficulties with their left knee; 

• When the WCB contacted the worker on April 6, 2020, the worker’s representative did not report any right knee concerns; 

• There is no evidence of any right knee injury or complaints until May 26, 2020, some 3.5 months following the date of accident; 

• The WCB was not advised of any right knee concerns until September 1, 2020 and at that time was advised by the worker’s treating physician that these issues had been treated since May 2020 but were not related to the workplace injury; 

• The worker’s representative advised the WCB by email on September 28, 2020 that after the accident, the worker “...had been favoring the left knee because of [their] pains and started shifting weight on [their] right leg to ease the pain. Right after [their] right knee has started to hurt as well, it’s come to the point where [the worker] has constant pain in both knees now. We are convinced now that actually both knees have been injured during the fall but it was at first mostly noticeable in the left knee.” 

• The employer was not advised of any right knee complaints relating to the accident until October 2020.

The panel also noted that although the worker has difficulty with communication in English, the evidence confirms they were able to communicate with both their treating physicians and with the WCB case manager in their own language or with assistance of a family member to translate, such that there is no concern that the worker was misunderstood in their communication as to the nature and circumstances of their injury.

The panel also carefully reviewed the medical reporting on file to determine whether there was any evidence that the injury to the worker’s right knee occurred on February 4, 2020 as the worker’s representative believes, or that the injury caused an aggravation or enhancement of a pre-existing right knee condition.

The early accident reporting and medical reports do not provide any evidence of injury to the worker’s right knee that occurred as a result of the fall on February 4, 2020. In this regard, the panel also notes that in the initial report to the WCB regarding the right knee, on September 1, 2020, the worker’s treating family physician stated: “There is no indication that the right knee injury is workplace related.”

The panel considered the right knee MRI findings of September 27, 2020 which indicate multiple issues including meniscal tearing and fraying, chondromalacia at multiple sites and a lesion within the anterolateral subcutaneous tissues.

On October 5, 2020, the treating family physician reported to the WCB that there was a new diagnosis related to the compensable accident, namely, meniscal tears to the worker’s right and left knee and that the worker injured both knees in February 2020. The October 13, 2020 report from the orthopedic surgeon outlines the worker’s report that the right knee did not become symptomatic until “a couple of days later” than the accident and that since the accident, the worker reported persistent medial side pain in both knees as well as some swelling the right knee.

The WCB medical advisor reviewed the worker’s file on October 26, 2020 and provided an opinion, with respect to the worker’s right knee that the diagnosis “...is pre-existing age-related osteoarthrosis” noting that the MRI findings relate to this degenerative condition. Further, the medical advisor concluded:

“It is not likely that the injury to the left knee materially affected or altered the pre-existing right knee condition. Quite advanced degenerative changes at the right knee were likely associated with a degree of symptoms pre-dating the injury, or if not, the right knee was bound to become symptomatic in the near future, regardless of the occurrence of any acute injury or not.”

On October 28, 2020 the worker’s treating family physician reported to the WCB that the right knee injury was “missed” on initial diagnosis and that the worker had mild right knee pain initially which progressively worsened but that the worker had no right knee symptoms prior to the accident. On reviewing this report, the WCB medical advisor confirmed their prior opinion, noting that the family physician’s “...proposed sequence of events relies completely on speculation” and is not supported by the reports on file by either the worker or their healthcare providers.

The panel requested and reviewed additional medical information from the worker’s treating family physician and noted that the chart notes include the results of a May 27, 2020 x-ray of the worker’s right knee that indicated mild narrowing within the medial compartment but no acute abnormality. This would be consistent with the June 1, 2020 chart notes that record the family physician’s explanation to the worker that they have arthritis in their right knee. The family physician in making a referral to an orthopedic surgeon on August 28, 2020, again described the x-ray as showing osteoarthritis. The chart notes from that date also indicate a history of right knee osteoarthritis.

The panel also noted that the medical reporting confirms significant pre-existing left knee degeneration similar to that found in the worker’s right knee. A second WCB medical advisor described the worker’s left knee condition in an opinion dated February 10, 2021 as “pre-existing complex degenerative tearing” and chronic “pre-existing degenerative joint disease”. The WCB accepted the worker’s left knee meniscal tearing as compensable considering the mechanism of injury occurring in an environment of “pre-existing degenerative left knee osteoarthritis and medial meniscus degeneration.”

While the treating family physician changed their opinion with respect to whether or not the worker’s right knee difficulties are related to the workplace accident, such that the physician indicated that the worker’s right knee injury was a “missed diagnosis” arising out of the compensable accident, the panel notes that there is no evidence in the medical record of any reported right knee concerns prior to the end of May 2020 and that the MRI findings do indicate substantial right knee degeneration. This supports the opinion of the WCB medical advisor that the correct right knee diagnosis is of pre-existing age-related osteoarthrosis and that is it unlikely the February 5, 2020 left knee injury materially affected or altered this pre-existing condition. The panel accepts and relies upon the WCB medical advisor’s opinion in this regard.

The weight of the evidence before the panel supports a conclusion, on the standard of a balance of probabilities, that the worker’s right knee difficulties are not the result of nor related to the workplace injury sustained on February 4, 2020 but are the result of a chronic pre-existing degenerative condition that was not enhanced or aggravated by the workplace accident.

Therefore, the WCB should not accept responsibility for the worker’s right knee difficulties as related to the accident of February 4, 2020. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of August, 2021