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 April 24, 2018. A teleconference hearing was held on October 20, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after April 24, 2018.

Decision

The worker is not entitled to benefits after April 24, 2018.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 62/20, dated June 9, 2020. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for an injury to their left knee that occurred at work on April 10, 2018, described as:

“… [I was] bent down cleaning the floor area and when I got up, I smashed my knee on the plastic bar railing that sticks out. There was intense pain at first, then bruising – I continued working. As the days went on the knee area began to swell and it became more difficult for me to walk and stand. I then reported the injury to my employer and saw a doctor.”

The WCB contacted the worker May 11, 2018 to discuss the claim and confirmed the mechanism of injury. They advised they initially treated the injury with ice and anti-inflammatories as they thought it would get better. The worker continued working their regular duties until they attended a pre-scheduled appointment with an orthopedic surgeon on April 24, 2018, where after x-rays, the worker was diagnosed with osteoarthritis in the left knee. An urgent MRI was requested and the orthopedic surgeon recommended the worker remain off work until it was conducted. The report from that visit contains no description of a workplace accident. The worker's treating family physician agreed the worker should remain off work until the MRI study at an appointment on May 11, 2018. The employer advised the WCB the worker was offered modified duties on May 15, 2018 and provided the WCB with a copy of the Early and Safe Return to Work form; however, the worker remained off work.

A WCB orthopedic consultant reviewed the claim file on May 31, 2018 and provided the worker’s current diagnosis was of osteoarthritis of both knees, supported by the x-ray taken by the worker’s orthopedic specialist on April 24, 2018. The diagnosis related to the workplace accident was of a contusion of the worker’s left knee, with a natural history of resolving within a couple of weeks without medical intervention. The WCB orthopedic consultant opined there would be no need for physical restrictions or treatment arising out of the diagnosis of a contusion and that the worker was considered to have recovered from the workplace accident. The osteoarthritis in the worker’s knees was determined to be a longstanding pre-existing condition. On May 31, 2018, the WCB advised the worker the claim was not accepted as a causal relationship between their left knee difficulties and their job duties could not be established.

On August 10, 2018, the worker submitted a chronology of their injury along with the June 17, 2018 MRI study report and an August 8, 2018 report from a sports medicine physician. The sports medicine physician noted that the MRI study indicated “…an insufficiency fracture of the lateral femoral condyle, corresponding to the location where [the worker] reports striking her knee” and requested that the WCB reconsider the worker’s claim. A WCB orthopedic consultant reviewed the new medical information on September 5, 2018 and concluded the MRI findings were consistent with severe osteoarthritis and that a “…bump on the front of the knee would not cause an insufficiency fracture of the posterior part of the bone.” Further, the worker’s pre-existing osteoarthritis was determined to be the cause of the current symptoms in their left knee, not the workplace accident. On September 21, 2018, the worker was advised there would be no change to the earlier decision.

On October 30, 2018, the worker requested Review Office reconsider the WCB’s decision and on November 6, 2018, Review Office determined that the worker’s claim was not acceptable, relying on the WCB orthopedic consultant's opinion that the worker’s significant pre-existing osteoarthritis in both their knees was likely the cause of the worker’s current difficulties in their left knee and not the workplace accident. On June 9, 2020, the Appeal Commission overturned the decision of Review Office and determined there was sufficient medical evidence to support the worker injured their left knee as a result of the April 10, 2018 workplace accident and returned the worker's file to the WCB's Compensation Services for further adjudication.

In a discussion with the worker on June 23, 2020, the WCB advised their file had been reviewed and based on the mechanism of injury and the medical information on file, the WCB had determined they had sustained a contusion type injury, which resolves in days to two weeks. As the workplace accident took place on April 10, 2018 and the worker continued with their regular duties to April 24, 2018, the WCB found the worker was not entitled to wage loss benefits. Further, the WCB determined the worker's need to for time off work after April 24, 2018 related to their pre-existing osteoarthritis and not the compensable injury.

The worker requested reconsideration of the WCB's decision to Review Office on February 8, 2021. In their submission, the worker argued "…the injury I sustained caused an exacerbation of a pre-existing condition as I was vulnerable to a greater impact of injury from such a cause (in my case, due to osteoarthritis)." The worker went on to note their treating healthcare providers continued to recommend they remain off work due to their current left knee difficulties.

Review Office determined on March 2, 2021, the worker was not entitled to benefits after April 24, 2018. Review Office agreed with and accepted the opinion of the WCB orthopedic consultant that the worker sustained a contusion injury, which would have resolved within a couple of weeks, without the need for medical intervention. Review Office determined the April 10, 2018 workplace accident did not alter the worker's pre-existing changes in their left knee.

The worker filed an appeal with the Appeal Commission on June 15, 2021. A teleconference hearing was arranged for October 20, 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 February 3, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

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.

Subsection 4(2) of the Act provides that where a worker is injured in an accident, the worker 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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…”. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

The Workers Compensation Board 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 Workers Compensation Board 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 Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) 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 Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) 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 following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: 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.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker’s position

The worker represented herself at the hearing. The worker’s position was that her current and ongoing knee problems are related to the workplace injury of April 10, 2018.

The worker acknowledges that she had pre-existing osteoarthritis in her knees. She submitted, however, that despite the pre-existing condition, she was mobile. She was able to climb flights of stairs and move around without difficulty. She was able to go to work, clean her house, and look after the farm. As a result of the accident, her mobility has been significantly reduced. She now requires use of a cane, particularly when moving up or down stairs. She needs to rely on others to assist her in many of her daily activities and was forced to sell her animals because she was unable to care for them. In her view, her pre-existing condition made her vulnerable to a greater impact from the workplace injury than she otherwise would be. It was, therefore, her position that she ought to be entitled to further benefits.

Employer’s Position:

The employer was represented by a team advisor. It was the employer’s position that the WCB decision ought to be upheld.

The workplace injury was a contusion of the left knee. The claim for that injury was accepted. The ongoing difficulties that the worker is experiencing with her knee, while unfortunate, are not related to the workplace accident. On the contrary, the employer notes that all objective evidence confirms the presence of a degenerative and pre-existing condition which was not caused, contributed to, nor exacerbated by the workplace injury. As such, the appeal should be dismissed.

Analysis:

The issue before the panel is whether the worker is entitled to further benefits in relation to the April 10, 2018 workplace accident. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker experienced a further loss of earning capacity and/or need for medical treatment as a result of the accident. For the reasons that follow, we are unable to make that finding.

The panel has carefully reviewed the medical information on file. The panel also obtained further medical information subsequent to the hearing. The medical information received confirms that the worker suffered from bilateral osteoarthritis prior to the workplace injury. In addition, imaging conducted subsequent to the workplace injury revealed a medial meniscus tear and a small insufficiency fracture of the lateral femoral condyle. Although the medical reports note a temporal association between the workplace injury and the anatomic defect on the MRI, the medical reports do not establish a causal relationship. The medical reports do not support a cause and effect relationship between the accident and the noted degenerative changes in the worker's knee. Further, the insufficiency fracture is a non-traumatic fracture that typically occurs as a result of repetitive stress. As such, it is unlikely that the fracture occurred as a result of a direct blow to the knee and it was therefore unlikely that the described workplace injury was the cause of the defect seen on the MRI.

Given the medical evidence, the panel is unable to find that the worker’s ongoing knee complaints are causally related to the April 10, 2018 work place injury. Although the evidence supports that the worker suffered a contusion injury in April 2018 as a result of a workplace injury, the available medical evidence shows that the worker suffered pre-existing degenerative issues in her knees and an insufficiency fracture which were not caused by the workplace accident. Consequently, while the panel accepts that the worker has continued to suffer from ongoing knee issues, the panel is unable to find that any ongoing difficulties are causally related to the workplace accident.

The panel therefore finds that the worker is not entitled to further benefits in relation to the April 10, 2018 workplace accident and the appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of March, 2022