The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on June 15, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On December 4, 2019, the worker filed a Worker Incident Report with the WCB reporting injury to their knee in an incident at work on November 22, 2019, reported to the employer on November 25, 2019. The worker described the incident as follows: “I was installing a ladder and I’m not entirely sure what happened but something went wrong. The way we had to get the ladder up to the roof was weird. I didn’t feel anything until the next morning. This is part of my daily work duties.” The worker further noted they initially felt their symptoms the following day when they were at home, took a step and their knee gave away. Further, the worker noted they had previous issues with their knee “A couple of months ago, also at work”.

The worker attended a local urgent care facility on November 25, 2019 for treatment reporting acute right knee pain after lifting a heavy object the day previously and waking up with severe medial right knee pain. The treating healthcare provider noted slight swelling, tenderness along the medial joint line and medial collateral ligament and that the worker was “hobbling”. The provider queried a medial collateral ligament injury or meniscal tear and suggested the worker avoid weight-bearing, use pain medication and non-steroidal anti-inflammatories as needed and referred the worker to a sports medicine physician for follow-up. An x-ray taken the same date found “Small joint effusion. No fracture or malalignment.”

The worker attended an appointment with a sports medicine physician on November 29, 2019. The worker reported developing right knee pain the morning after they were lifting a heavy ladder at work. They reported pain in the medial side of their knee that was worse when walking or going up and down stairs and when bending and that they had a history of previous knee pain a month prior. On examination, the physician noted mild swelling, effusion and tenderness on the medial joint line, with positive ballottement and patellofemoral tests. The physician diagnosed right knee pain, flare up of osteoarthritis and recommended a knee brace and physiotherapy.

On December 4, 2019, the employer provided the WCB with an Employer’s Accident Report indicating they were not aware the worker had injured themselves at work and noted the worker had advised of previous knee difficulties.

The worker attended for an initial physiotherapy assessment on December 3, 2019 reporting pain the morning after doing a ladder installation. The physiotherapist noted tenderness in the medial joint ligament, effusion in the worker’s knee with breakaway weakness and diagnosed a suspected meniscal tear.

The WCB contacted the worker on December 11, 2019 to discuss their claim. The WCB advised the worker of the employer’s concern of previous knee difficulties noted in the Employer’s Accident Report, which the worker stated referred to an incident involving their right knee that occurred a few months previously for which they did not seek medical treatment. The worker advised they were not aware they had osteoarthritis and as such, did not report any prior knee difficulties. The worker confirmed on November 22, 2019, they felt a pain in their right knee when installing a ladder, but completed the installation and finished their shift, without reporting the incident to their co-workers or the employer. The following morning, the worker reported waking with a lot of pain and being unable to walk or weight-bear on their right leg. The worker advised they attended work on November 25, 20219, after the weekend, reported the injury and then sought medical treatment the same day. They have not returned to work since then.

On the same date, the WCB spoke with the employer who confirmed the worker did not make any complaints or report an incident with their right knee on November 22, 2019 but noted the worker had been making ongoing complaints about their right knee and ankle and had missed time due to those difficulties prior to November 22, 2019. The employer further confirmed the worker had not reported any previous incidents or injuries.

On December 19, 2019, the WCB advised the worker that it could not establish there was an accident arising out of or in the course of their employment on November 22, 2019, and therefore the claim was not accepted. The worker contacted the WCB on February 4, 2020 and advised that the employer was aware of their right knee injury and that they continued to suffer the effects of that injury. The worker requested reconsideration of the decision by Review Office.

Review Office determined on March 2, 2020 that the worker’s claim was not acceptable as it could not relate the worker’s right knee difficulties to an incident that occurred at work on November 22, 2019, noting an injury was not reported to the employer that day and file evidence indicated prior right knee difficulties. Review Office found that the worker sustained an acute right knee injury at home on November 23, 2019.

The worker filed an appeal with the Appeal Commission on February 15, 2021. A videoconference hearing was arranged for June 15, 2021.

Reasons

Applicable Legislation

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.

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 of accident includes events arising out of and in the course of employment which result in an injury.

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.

Worker’s Position

The worker represented themself in the hearing and provided an oral submission to the panel outlining why the appeal should be allowed. The worker also provided testimony in response to questions posed by members of the appeal panel.

The worker’s position is that the claim should be acceptable because they injured themselves at work, in the course of carrying a ladder that they were to install as part of their job duties on November 22, 2019.

The worker described the circumstances of the injury to the panel, noting they were carrying a roof access ladder with another worker, into the room where it was to be installed. The worker recalled feeling something in their right knee as they made a turn. The worker noted that as they turned, their right foot slipped a bit on the floor, as their shoes were wet from outside. The worker stated their belief that the other worker saw them slip and that when it happened, they may have said “Ow” or cursed, but noted that they were not one to whine or complain. This was the last job of the day and the workers completed it and then returned to the employer’s compound, arriving there in the early evening, before returning home.

The worker explained to the panel that they did not initially seek medical treatment although they felt pain in their right knee on the day of the accident, as they had previous right knee pain, described as arthritis, that would “act up” from time to time and then resolve within a day or two of rest. The knee was tender on the date of the accident, but the worker stated it was “not too bad” until the next day. The worker described this pain as worsening over the weekend. When they got out of bed the morning of November 23, the worker described falling to the floor with shocking pain. As the weekend progressed, it became harder to walk and bear weight on that leg. The worker stated that this pain was totally different than what they had previously experienced and described as arthritis pain.

The worker confirmed to the panel that they did not have any prior right knee injury and did not recall making such a statement to the treating medical professionals; however, the worker acknowledged prior episodes of right knee pain that would flare up from time to time, beginning earlier in 2019.

The worker confirmed they attended work on November 25, 2019, to inform the employer they were going for medical treatment of their knee. The worker recalled having a conversation with the employer in the parking lot, with the employer seated in their vehicle. The worker remembers telling the employer that their knee did not get better over the weekend, and they were going to get it checked. The worker believes they mentioned that the injury occurred at work on Friday but could not specifically recall.

The worker confirmed that the knee has since been “scoped” but is not fully recovered and continues to be symptomatic.

In sum, the worker’s position is that as a result of slipping on a floor as they made a turn while carrying a heavy ladder in the course of their employment on November 22, 2019, they injured their right knee. Therefore, the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of their employment. The panel was able to make that finding, as outlined in the reasons that follow.

The definition of accident under the Act requires there to be evidence of a chance event, including an event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment. The definition also requires that the worker be injured as a result of any such an event. Where an accident resulting in injury has occurred arising out of and in the course of employment, the claim is acceptable.

The medical reporting confirms that on November 25, 2019 the worker sought medical attention for “severe medial right knee pain” related to lifting a heavy object and presented to hospital with slight swelling and tenderness along the medial joint line and along the medial cruciate ligament. An x-ray taken that day revealed “small joint effusion” and the treating medical professional diagnosed a “most likely” medial cruciate ligament or meniscal tear. The worker was recommended to avoid weight-bearing, use a knee brace and pain relief medication and follow up with a sport medicine clinic.

The worker sought further medical attention from a sport medicine clinic on November 29, 2019 at which time they reported injury at work on November 22, 2019 arising out of installing a ladder. At that time the worker described tolerable pain at rest but with movement pain that “Feels like a hot knife” and was worse when walking, using stairs and bending. The physician noted mild swelling and effusion with tenderness on the medial joint line. A diagnosis was made of “right knee pain, flare up of” osteoarthritis. An x-ray taken that day was consistent with the x-ray of November 25, 2019 and revealed “mild non-specific narrowing of the medial compartment. No secondary arthritic changes are present. There is a small joint effusion. No fracture is seen.”

The worker was assessed for physiotherapy on December 3, 2019 at which time they again reported pain on the morning after a ladder installation at work. The findings from that assessment included tenderness at the medial joint line, pain with movement, breakaway weakness and limited range of motion. The physiotherapist reported a suspected meniscal tear.

A consulting physician who saw the worker on January 14, 2020 reported that the worker “does not have much in the evidence of degenerative change or any other bony abnormalities” but that the worker’s “history and physical examination is suspicious for a meniscal injury.”

A May 2020 MRI report, referenced in a medical report dated February 22, 2021 from the treating orthopedic surgeon, noted the worker had a “very small medial meniscal tear posteriorly” with a “small amount of bone edema in the subchondral area of the medial tibial. There are areas of cartilage thinning but I don’t see any definite full thickness cartilage loss.” The surgeon described the worker as having “early to moderate medial compartment disease of [their] right knee” with “mild OA [osteoarthritis] changes on the imaging studies.”

The worker described their prior right knee issues as arthritis that flared up from time to time with activity and would historically resolve with a day or two of rest. The worker testified that they had not previously sought medical attention for any right knee issues. The worker’s testimony in this regard is consistent with the information provided by the employer to the WCB as well as with the medical findings which confirm that the worker has mild right knee osteoarthritis.

With respect to the reporting of the accident, the worker testified to their belief that they told the employer that they injured their knee at work on Friday. The employer advised the WCB that the worker only said they had a knee injury that required medical attention but did not provide information as to the details of an injury that happened at work. The employer also suggested to the WCB that the fact that the worker reported the onset of symptoms on the day following the reported injury suggests that the worker’s injury occurred when they were at home, rather than at work.

The panel noted the worker did report the injury arose at and out of work when seeking medical attention and that the worker has consistently described the injury as occurring in the course of carrying a ladder or heavy object for installation on Friday, November 22, 2019.

The worker described to the panel that their knee was sore on returning home from work that day, but that they assumed it was just the usual kind of knee pain, that would resolve by Monday. It was only on Saturday morning when the worker was unable to weight-bear on their right leg that they realized this was a different kind of knee issue than they had experienced previously. The worker described to the panel that they spent the weekend resting and using pain relief medication to manage, with no other activity. On Monday, November 25, 2019 the worker first drove to work and reported to the employer that they were seeking medical attention for injury to their right knee. The worker then went to a hospital for treatment and was referred from there to a sport medicine clinic for follow up.

The panel found the worker to be candid and credible in providing their testimony and accepts the worker’s evidence as to the mechanism of injury and the subsequent appearance of new symptoms resulting from that injury, including some swelling and worsening pain, particularly with weight-bearing.

The panel is not concerned by the worker’s failure to seek medical attention until Monday morning, some three days following the reported injury and accepts the worker’s explanation in this regard as sufficient. Further, the panel does not find that the employer’s report the worker did not relate the injury to their work duties when they spoke on November 25, 2019 to be determinative noting the worker did make that connection in reporting to the hospital and other medical treatment providers. The panel accepts the worker’s description of their conversation with the employer as taking place in a parking lot at work, with the employer seated in their vehicle while they talked and notes that in such informal circumstances, it is conceivable that the worker may not have thought to mention how they believed the injury occurred and/or that the employer may not have documented all the details of the conversation accurately.

On the basis of the totality of evidence before us, the panel is satisfied on a balance of probabilities, that an accident occurred arising out of and in the course of the worker’s employment, causing injury to the worker’s right knee. The evidence also supports a finding that this injury occurred in the context of the worker’s pre-existing mild right knee osteoarthritis but there is a lack of evidence that the worker’s injury in any way altered the pre-existing condition, which is non-compensable.

The worker’s claim is therefore acceptable and the worker’s appeal is granted.

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 28th day of June, 2021