The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond July 22, 2020. A teleconference hearing was held on March 22, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after July 22, 2020 in relation to the November 26, 2019 accident.

Decision

The worker is not entitled to further benefits after July 22, 2020 in relation to the November 26, 2019 accident.

Background

On November 29, 2019, the worker filed a Worker Incident Report with the WCB indicating he injured his right knee and leg in an incident at work on November 26, 2019. The worker described the incident as:

I was working at installing fans and I was on a 6 foot ladder but was only up about halfway. As I was mounting the fans, I mounted the one fan. I went to mount the other fan and as I was coming down the ladder, I missed the last two steps and I fell. I hit my knee on the railing of the ladder and twisted my leg on the floor when I went down.

The worker advised he did not seek medical treatment immediately after the incident, had not missed any time from work, and had been performing his regular duties except for going up ladders.

On November 29, 2019, due to increasing pain, the worker sought treatment at a local urgent care facility, where he reported he had fallen three days previously and landed on his right knee. The worker further reported that his right knee pain had not improved; that his knee was locked and he was unable to fully extend or bend it. The treating physician noted findings of no swelling or bruising on the worker's right knee and tenderness in the lateral superior joint line, a positive McMurray's test and limited range of motion due to pain with motion and locking. An x-ray was taken and did not indicate a fracture. The physician diagnosed the worker with a right knee meniscal injury with locking, prescribed non-steroidal anti-inflammatory medication, and recommended the worker use crutches.

On December 2, 2019, the WCB spoke with the worker to gather further information on his claim. The worker confirmed the mechanism of injury and advised the WCB that he had a helper working with him the day after the workplace accident, and the helper did all the required ladder work that day. The worker noted he was still sore and was limping all day due to pain. As the pain increased and he could not move his knee, he sought medical treatment on November 29, 2019. The worker advised he had not returned to work because of his knee, but would contact his treating physician to discuss restrictions and his return to work. On December 3, 2019, the worker saw his family physician, who diagnosed him with a right medial meniscus tear and recommended he remain off work.

On December 12, 2019, the worker was seen by an orthopedic specialist, who recommended an MRI to rule out any meniscal injuries and referred the worker for physiotherapy. On December 17, 2019, the worker attended an initial physiotherapy assessment and reported to the physiotherapist he had sharp, burning pain superior to his knee cap and deep into his knee with going up or down stairs, prolonged walking or standing, bending or squatting, lifting his leg, and getting in and out of the car. On examination, the physiotherapist noted minor edema to the superior knee, an antalgic gait, pain and guarding at end range and through the transitional movement from flexion to extension in the knee, and pain on straight leg raise testing. The physiotherapist queried a diagnosis of quadriceps/patellar tendon strain/sprain versus a medial meniscus injury, noting an MRI was pending. Restrictions of sedentary work at regular hours; limiting standing/walking to 5 to 10 minutes; no stairs or ladders; no squatting/bending; and no lifting were recommended. On December 19, 2019, the WCB advised the employer of the restrictions, and on December 20, 2019, the employer advised they could not accommodate the worker with modified duties.

At a physiotherapy session on January 3, 2020, the worker reported the range of motion in his knee was improving, and walking and going up and down stairs was getting easier. The worker's restrictions were updated to change the limit on standing and walking to 10 to 20 minutes. On January 9, 2020, the WCB advised the employer of the updated restrictions, and the employer advised that they were unable to accommodate the worker.

On January 6, 2020, the worker underwent the MRI of his right knee, which indicated no ligament or meniscal tear and minimal osteoarthritis at the patellofemoral joint.

At a further physiotherapy session on January 24, 2020, the worker reported that his knee was continuing to improve and he had more mobility and function. The pain continued to be superior and lateral to the patella, with occasional flare ups. The treating physiotherapist noted the worker continued to have an antalgic gait, but no longer required the use of a mobility aid and had minimal pain and some guarding at end range. The physiotherapist also noted that transitional movement from flexion to extension had become easier, with on and off sharp pain, and straight leg raise testing was improving. The worker's diagnosis was updated to a quadriceps/patellar tendon strain/sprain with enthesopathy of the quadriceps tendon insertion on the patella, and the physiotherapist recommended restrictions of sedentary work, regular hours; limiting standing/walking to one hour; minimal stairs, no ladders; minimal squatting/bending; and no lifting greater than 20 pounds.

On May 14, 2020, the worker's restrictions were further updated to 4-hour shifts and no lifting greater than 35 pounds, with no changes to the other restrictions. On May 22, 2020, the employer advised that they could not accommodate the worker within his restrictions.

The worker's treating family physician provided a chart note to the WCB for an appointment on May 28, 2020, noting physiotherapy was helping for the worker's right knee pain, but the physiotherapist was also working on the worker's right hip. The family physician reported the worker could not bend, do ladders or go down stairs, and recommended he remain off work as work would not be safe at this point.

On July 4, 2020, the worker's file was reviewed by a WCB sports medicine consultant due to the worker's slow recovery. The sports medicine consultant opined that the worker sustained a right knee strain as a result of the November 26, 2019 workplace accident, with the normal recovery time from a strain being in the range of 2 to 8 weeks. The consultant went on to opine that the worker's current diagnosis was degenerative changes of the right knee, and his current presentation was not medically accounted for in relation to the workplace accident.

On July 8, 2020, the WCB contacted the worker to discuss the reported symptoms in his right hip and back. The worker advised that initially after the November 26, 2019 workplace accident, the pain was much worse in his right knee, so medical treatment was focused on that area. His treating physiotherapist later noted, however, that he appeared to have symptoms from his right hip area as well. The worker confirmed he did not have any problems with his right knee or right hip/back prior to the workplace accident.

On July 13, 2020, the worker's file was reviewed by a WCB orthopedic consultant, who confirmed the initial diagnosis was a sprain/strain to the right knee, with no contusion, which had a normal recovery period of 4 to 6 weeks. The orthopedic consultant noted there were now reports of pain and loss of function in the worker's lateral right hip and thigh which the worker appeared to note would prevent him from working. The orthopedic consultant opined that this was a new diagnosis of ilio-tibial band syndrome. The consultant noted that ilio-tibial band syndrome refers to symptoms arising out of "…extremely repetitive sports activities including running, swimming, weight lifting and others" and that this diagnosis arose long after the worker's right knee injury had recovered and was not accounted for in relation to the compensable injury.

On July 15, 2020, the WCB's Compensation Services advised the worker that he was not entitled to benefits after July 22, 2020, as he was considered to have recovered from the November 26, 2019 workplace accident.

On July 30, 2020, the worker submitted additional medical information from his treating family physician and treating physiotherapist, and requested that Review Office reconsider Compensation Services' decision. On July 31, 2020, Review Office returned the worker's file to Compensation Services for further investigation.

On August 12, 2020, Compensation Services requested that the WCB orthopedic consultant review the worker's file and the new medical reports which had been submitted. On August 14, 2020, the orthopedic consultant noted that the letters from the treating family physician and physiotherapist did not include any new clinical information. The consultant opined that his previous opinion remained unchanged and the information included in the reports confirmed the worker's ongoing diagnoses developed long after the worker had recovered from the compensable diagnosis of a right knee sprain/strain. The consultant further stated that as most of the recent medical information was provided by the worker's treating physiotherapist, he would request that a WCB physiotherapy consultant review the submitted diagnoses and treatment modalities in relation to the compensable diagnosis. After discussions with the worker's treating physiotherapist, it was determined that a call-in examination would be arranged to clarify the diagnosis.

On October 21, 2020, the worker attended the call-in examination with a second WCB orthopedic consultant, who completed his report on November 10, 2020. Based on his examination of the worker and review of the worker's file, including the actual imaging studies, the orthopedic consultant opined that the worker had functionally recovered from his compensable right knee tendon strain by May 6, 2020 and his current right leg condition was not medically accounted for in relation to the November 26, 2019 workplace accident. On November 12, 2020, Compensation Services advised the worker that there would be no change to the July 15, 2020 decision that he was not entitled to further benefits after July 22, 2020.

On December 22, 2020, the worker again requested that Review Office reconsider Compensation Services' decision. In his submission, the worker noted he continued to suffer the effects of the workplace accident, as supported by reports from his treating healthcare providers. On February 11, 2021, the employer provided a submission in support of the worker's appeal.

By letter dated February 11, 2021, Review Office determined that there was no entitlement to benefits beyond July 22, 2020. Review Office preferred and placed weight on the WCB orthopedic consultant's October 21, 2020 opinion and found that the worker sustained a soft tissue strain as a result of the November 26, 2019 workplace accident, from which he had recovered, and that his ongoing difficulties were not medically accounted for in relation to the workplace accident.

On September 13, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

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(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that 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.

Subsection 27(1) of the Act 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."

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 "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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.

With respect to wage loss eligibility, the Policy states, in part, 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 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 was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position was that he had not recovered from the effects of his November 26, 2019 workplace accident and injury at the time his benefits were terminated, and he should be entitled to further benefits.

The worker's representative noted that the worker's benefits for his knee claim were terminated after the WCB sports medicine consultant noted his current presentation was no longer accounted for in relation to the compensable injury and the WCB orthopedic consultant indicated hip symptoms arose long after the knee had recovered. The representative noted that following the Review Office decision, the worker was seen and examined on two occasions by a physician with an interest in occupational health medicine ("occupational health physician"), who provided a report dated August 24, 2021. The worker then appealed to the Appeal Commission.

The worker's representative stated that the basis of their appeal was that the worker had not recovered from the knee injury he sustained in the workplace accident. The representative submitted that the evidence on file clearly shows the worker continued to have pain and limitations in movement and activities related to the knee. The areas of the knee as identified by the treating physiotherapist and the treating family physician, by the WCB physician at the call-in examination, and by the occupational health physician are all consistent with the original area of difficulty after the accident.

The worker's representative relied on the August 24, 2021 report from the occupational health physician. The representative noted the physician explained the mechanism of injury and his opinion on the original compensable injury. The physician indicated that the issue was the enthesopathy at the quadriceps tendon insertion at the superior pole of the patella. The physician opined that there was a sprain/strain complicated by the knee being hit at the point of insertion of the quad muscle into the patella, which was the exact location of the pain and the enthesopathy. The physician reviewed the imaging findings with the radiologist, and noted that the enthesopathy was probably pre-existing as a result of more than 40 years working in the trade, but opined that the accident enhanced the enthesopathy from being clinically asymptomatic to being the site of chronic irritation and pain with loading activities.

The worker's representative noted that the occupational health physician had provided a medical article in support of his opinion, which outlined that the etiology of enthesopathy is often unclear, but can lead to malalignment problems, muscle weakness, muscle imbalances and flexibility issues, which is what they believe occurred in this case.

The worker's representative submitted that the worker was unaware of the pre-existing medical conditions prior to the accident, including the enthesopathies or degeneration found in any of his joints. It was submitted that pre-existing conditions do not shield workers from sustaining new acute injuries; on the contrary, they represent a weakness which allows a worker to be injured with less force, and tends to result in more severe injuries and longer recovery times. The representative submitted that in this case, both the degeneration and the enthesopathies in the patella insertion would mean the worker was more vulnerable to the effects of the accident.

The worker's representative submitted that the WCB's decision that the worker had recovered was based solely on time, and the call-in examination showed he continued to have pain and symptoms in the knee. The representative noted that the evidence clearly shows some improvement in the knee function at physiotherapy, but that this was not sufficient to enable him to return to his work duties or work safely for a full shift. The worker has therefore not recovered and has a continued loss of earning capacity and need for medical aid.

In conclusion, the worker's representative advised that they agreed with the occupational health physician's opinion that the enthesopathy in the worker's right knee has been enhanced by the accident. That opinion is backed by medical literature, the radiologist, and the fact that the pain and symptoms are within this area. The representative submitted that there is no evidence on file of recovery from the knee injury, and in the absence of such evidence, the worker should be entitled to further benefits.

Employer's Position

The employer was represented at the hearing by its owner and president, who spoke in support of the worker and his appeal.

The employer's representative noted that the worker had been working with him since 2015, on modified duties, and had shown himself to be very honest and a hard-worker. The representative noted the worker was definitely hurting, and said he felt that unforeseen and unfortunate events, including the pandemic, had created a sort of domino effect in this case, and had hindered his recovery and their ability to get him back to work. The representative said he believed the worker would probably have been able to recover from the original injury, and they would probably have got him back to work, even to somewhat modified work, but due to the timing and the way the claim had proceeded, this did not occur.

In conclusion, the representative stated that he did not usually become involved in such matters, but that he was passionate in his belief that in this case, the worker's benefits should be extended to help him get back to a normal life, never mind getting back to work.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits after July 22, 2020 in relation to the November 26, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer from the effects of his November 26, 2019 workplace accident and injury beyond July 22, 2020. For the reasons that follow, the panel is unable to make that finding.

The worker has an accepted claim for a right knee tendon sprain/strain injury at or near the insertion into the superior patella.

The worker's representative advised, and confirmed in response to questions from the panel, that the focus of their appeal was on the worker's right knee and the injury suffered to that knee as a result of the November 26, 2019 workplace accident. With respect to other issues or problems which been referred to previously on the worker's file, including those related to iliotibial band or hip issues, the representative indicated that those matters did not form part of the appeal, but she was leaving them open.

The worker's representative has argued that the November 26, 2019 workplace accident caused an enhancement of the worker's pre-existing condition of enthesopathy. In advancing that argument, the representative relied on the August 24, 2021 report from the occupational health physician. The representative confirmed that it was her understanding from that report that the occupational health physician was saying that when the worker hit his knee on the ladder at the time of the accident, he made the enthesopathy worse. Based on our review of all of the evidence and the submissions which are before us, the panel is unable to make such a finding.

The panel notes that the occupational health physician provided a medical article in support of his August 24, 2021 report and opinion. The panel reviewed that article, and notes that it refers to injuries which are basically the result of overuse, particularly with respect to athletes, including in that context, some sort of degenerative changes. The panel was unable to find reference, however, to enthesopathy resulting from trauma, or an indication that the right kind of hit to a limb would result in a flare-up of enthesopathy or irritation of a tendon where it attaches to the bone.

When the worker's representative was asked if there was something she could point the panel to in this regard, she responded that:

…No, I did not see anything regarding actual trauma, from a standpoint of a trauma hit.

It does talk about trauma in overuse, and I would say that those would be sprain/strain type of injury, yet, still acute injury, which also would have occurred when he not only banged that exact spot causing inflammation there, but there may – and like the WCB has said, that he did in fact have a sprain/strain of that particular tendon where it inserts into that area.

So I think that there is some trauma, the overuse being, of course, like a sprain/strain type of situation…

It also talks about…when you have this enthesopathy…it can cause variations, malalignment problems, imbalance and weakness, flexibilities, that would be an effect that the worker is actually having, and it could have been made worse by the accident.

The panel acknowledges the worker's representative's comments in this regard, but is unable to place weight on the medical article as supporting that the workplace accident resulted in an enhancement of the worker's right knee injury or to find that the worker's having hit his knee on the ladder at the time of the accident made the worker's enthesopathy worse or resulted in a enhancement of his enthesopathy.

The panel is satisfied, based on the evidence which is before us, that the worker had recovered from his compensable right knee injury as at July 22, 2020. The panel notes that physiotherapy reports from December 2019 to March 17, 2020 indicate there was a steady progression in terms of his pain levels getting better and his mobility increasing. The worker confirmed at the hearing that "…the physiotherapy was doing great work, because at first when my pain was super high, I couldn't even bend my knee or whatever…it was totally locked. She worked it through." The worker noted that the physiotherapist "…was working on the knee, basically, and then she moved it to the whole leg by working the hip, the side of the leg and the knee all together a little bit later on, and that started feeling better…"

The panel is further of the view that the June 23, 2020 report from the treating physiotherapist indicates that the worker's knee injury had essentially resolved, and the hip appeared to be the problem. The physiotherapist thus reported that the knee range of motion was within normal limits and pain-free, and strength testing of the lower limb was within normal limits. The physiotherapist stated that she believed the problem started at the pelvic and hip level which was causing the worker pain down the chain to the knee. When asked about this, the worker's representative stated that "…the part that I see as unresolved is where the thigh or the quadriceps muscle inserts into the knee…" The representative went on the state: "So, do I think that maybe he had more issues going on with the knee right after the accident? Probably. He probably had some muscle strain, et cetera, throughout the knee. But the part that hasn't gotten any better is where the knee and the thigh muscle kind of join together."

In conclusion, the panel acknowledges that the worker continues to experience significant difficulties. The panel is not satisfied, however, that the evidence establishes that the worker's ongoing difficulties are related to his November 26, 2019 workplace accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable right knee injury had resolved as at July 22, 2020. The panel therefore finds that the worker did not continue to suffer from the effects of his November 26, 2019 workplace accident and injury beyond July 22, 2020, and is not entitled to wage loss or medical aid benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of May, 2022