Decision #81/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on May 12, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
A Worker Incident Report was submitted to the WCB on November 12, 2019, reporting an injury to the worker's right knee which occurred at work on July 16, 2019, and was reported to the employer on July 17, 2019. The worker described a medial meniscus tear and ITB (iliotibial band) syndrome due to repeated standing and pivoting motions from seated, kneeling or squatted positions. The worker reported seeking medical treatment from a sports medicine physician on July 16, 2019 (sic).
A further Worker Incident Report was received by the WCB on December 16, 2019, also reporting an injury to the worker's right knee that occurred on July 16, 2019. The incident was described as:
I was getting up from the ground (squatting and turning to the right with my knee turned to the right while foot planted) to grab something from my tool box when I injured my knee. The following day my knee was sore and swollen.
The worker's explanation on that report for the delay in reporting was that he didn't think the injury was "that serious." The worker noted his treating healthcare providers had recommended time off work, and x-rays were taken and an MRI was performed. The worker also noted he had a previous WCB claim for a right knee injury.
A copy of a report and attached chart notes for an initial appointment with the treating sports medicine physician on July 17, 2019 was also submitted on December 16, 2019. The chart notes indicated the worker reported to the triage nurse that he had a previous injury to his right knee in 2015, but did not have surgery, and continued to have ongoing difficulties, with the pain going "in cycles." It was noted that the worker reported he ran the day before and did some stretches, but stopped immediately due to pain and had no strength left in his knee. It was further noted that the worker advised he was unable to straighten his leg, that sitting increased the pain, and that he was having difficulty sleeping. The sports medicine physician diagnosed the worker with IT bursitis, lateral meniscal tear and posterolateral corner strain, and recommended an MRI, physiotherapy, and time off work. A copy of a medical note for the same date indicated the worker might require 1-2 weeks off work to recover, and sedentary work and light duties were "ok." There was no mention of a workplace accident on the chart notes or report.
On December 30, 2019, the WCB received reports from the worker's family physician with respect to appointments on July 30 and August 7, 2019. The July 30, 2019 report noted the area of injury was the worker's right knee and the worker's description of the incident was "Unknown." The report indicated the worker was complaining of a "slightly swollen right knee," and the physician reported findings of slightly decreased range of motion on flexion. At the follow-up appointment on August 7, 2019, the family physician noted findings of good range of motion and an "essentially normal knee," and recommended the worker was fit to return to work on normal duties on August 8, 2019.
On January 10, 2020, the employer filed an Employer Injury Report, noting the worker injured his right knee on July 16, 2019 "…getting up from the floor from a squatting position and turned right," and that the injury was reported to the employer on July 17, 2019.
On January 14, 2020, the WCB spoke with the worker to gather further information on his claim. The WCB advised the worker there were two reports on file, with two different incidents and injuries described. The worker indicated to the WCB that he filed his claim for the meniscus tear and the ITB strain, and related the meniscus tear to his 2015 injury. The worker advised the WCB that he had been having difficulties with his right knee since 2015, as he twisted and squatted constantly at work, and that he believed the ITB strain was as a result of getting up from a squatting position at work on July 16, 2019.
In a subsequent conversation with the WCB on January 17, 2020, the worker clarified that he was not currently missing time from work, but had missed time from work between July 16 and August 8, 2019. The worker said he had not reported his injury at the time it happened because he thought the time loss was related to his 2015 WCB claim. A recent decision on that claim, however, had determined he was not entitled to wage loss benefits for that period, and he had filed a new WCB claim as another physician at the sports medicine clinic had determined he had a new injury. The worker further advised that he had continued receiving physiotherapy treatment and was seeking wage loss benefits for the July to August 2019 time loss and coverage for physiotherapy treatments.
On January 23, 2020, the WCB advised the worker that they were unable to establish he had an accident at work, as he had not reported a work-related cause to his employer or his treating healthcare providers. In a further conversation with the WCB on January 24, 2020, the worker advised that he filed a new claim based on the new diagnosis indicated on an MRI from 2019, being a new tear, which the worker related to the mechanism of injury of being in a squatted position, standing up and pivoting. The worker further advised that he initially thought his injury was related to his previous 2015 claim, and had been waiting for a decision on that claim. He was then told it was not related and he should file a new WCB claim. The WCB advised the worker that a further medical review would be conducted on his claim.
On January 28, 2020, the worker's file, along with the reports of the MRIs performed July 23, 2015 and August 30, 2019, were reviewed by a WCB medical advisor. The medical advisor noted the 2015 MRI indicated the worker had a "…significant patellar chondromalacia with a flap tear," and the 2019 MRI indicated that in addition to the patellar chondromalacia, the worker had a "…radial tear, involving the posterior horn of the medial meniscus". The WCB medical advisor further opined that a workplace injury to account for the change in the MRI findings had not been described in the information on the worker's file, noting the worker had not reported a workplace injury to the attending healthcare providers on July 17 or July 30, 2019.
On February 11, 2020, the WCB advised the worker that they had reviewed his claim, but were unable to establish he sustained an accident at work on July 16, 2019 and his claim was disallowed. On November 20, 2020, the WCB received additional information, including an Employer's Incident Report dated July 17, 2019 and a September 17, 2020 letter from the worker's manager setting out a chronology of events relating to the July 16, 2019 injury date. On December 30, 2020, the worker requested that the WCB review the information and reconsider their decision that his claim was not acceptable. On January 29, 2021, the WCB advised the worker that they had reviewed the additional information and the information on the 2015 claim file, but their earlier decision remained unchanged.
On August 20, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker noted that he initially assumed his injury was related to his 2015 workplace accident, but the August 30, 2019 MRI study revealed a new tear, which the worker related to the July 16, 2019 incident at work and the increase in his right knee difficulties.
On September 20, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the evidence did not support a workplace accident occurred on July 16, 2019. Review Office found that if an event had occurred at work on that date, the worker would have been able to provide this information soon after the event occurred, but the worker did not report a specific accident until December 16, 2019. Review Office concluded that the right knee difficulties which were reported in July 2019 were not the result of a workplace injury.
On December 19, 2021, the worker appealed the Review Office decision to the Appeal Commission and a hearing was arranged.
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. The provisions of the Act in effect as of the date of the July 16, 2019 incident are applicable.
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.
What constitutes an accident is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes:
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
WCB Policy 44.05, Arising Out of and in the Course of Employment states, in part:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker was self-represented and provided a written submission in advance of the hearing. The worker's position was that the evidence supports he injured his right knee at work on July 16, 2019, and the decision to deny his claim and benefits should be overturned.
The worker submitted that he works a very physically demanding job in a very busy shop, and spends a large part of his workday bending, twisting, squatting, kneeling, and lifting heavy weights.
The worker noted that there was some confusion with respect to his claim due to a prior claim for a right knee injury in 2015 and his reporting of the July 16, 2019 right knee injury. The worker said he had no idea what had happened when he injured his knee again in 2019, all he knew was that he had an injury before and another one now. The worker said he was not familiar with the WCB system and found it very difficult to navigate. He had no idea what to do, other than to file a claim for an injury, which he assumed was related to his past injury.
The worker stated that while the WCB and Review Office put a lot of emphasis on the reporting of his injury and irregularities in the reports, he did what he thought was right. He reported the injury to his shop manager the morning of July 17, 2019, while he was sitting in the sports medicine clinic's waiting room, and referred to a screenshot of the text message to the shop manager which he had provided with his written submission. The worker submitted it was not unreasonable for him to think this injury was related to his 2015 injury, especially as he had not felt such pain since the previous injury and did not know what was wrong. The worker noted that his immediate manager had provided documentation which supported his workplace injury and the associated timelines.
The worker indicated that he subsequently learned that his 2015 injury was unrelated to his 2019 injury. While the MRI report from 2015 showed "significant patellar chondromalacia with a flap tear," the new MRI from August 30, 2019 showed he now had an "interval radial tear involving the posterior horn of the medial meniscus." The worker submitted that this new tear in his meniscus was the source of his pain and workplace limitations, and that given the very physical nature of his work, an injury such as this was not outside the realm of possibilities.
The worker noted that he was off work from July 17 to August 8, 2019, and has continued going to physiotherapy at his own expense and working with restrictions he did not have in the past. He wears a brace on his knee every day, and requires surgery for his knee. The worker stated he has managed to continue working in the meantime, with some limitations, and a diligent physiotherapy routine and stretching have enabled him to keep his work production close to what it was prior to his injury, but getting back to his pre-injury state is very important to him.
In conclusion, the worker submitted that there is no doubt he injured his knee in the workplace on July 16, 2019. His injury was reported and supported by the medical evidence on file and by his employer, and his claim should be accepted.
The employer was represented by its office manager, who advised that they took no position as to whether the worker's claim was acceptable or not. The representative noted that by all accounts, the worker has a very physical job, so it was possible he injured his knee at work. The representative noted, however, that she was not there at the time, and based on her review of the file, she was not in a position to say whether the worker suffered a work-related injury or not.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The panel accepts that the worker has a physically demanding job, which involves a lot of repetitive movements, including bending, squatting, kneeling, and twisting. The panel further acknowledges that performing such job duties in the environment of a pre-existing knee condition could be problematic, causing flare-ups and pain from time to time. The panel is not satisfied, however, that the evidence supports that the worker suffered a right knee injury on July 16, 2019 as a result of an "accident" as that term is defined under the Act.
Information on file shows that when the worker sought medical attention for his knee in July 2019, he did not report or describe a particular mechanism of injury or incident at work as having caused or triggered his right knee symptoms or difficulties. The July 17, 2019 chart notes from the treating sports medicine physician, received December 16, 2019, did not refer to a work-related injury having occurred. The Doctor's First Report from the worker's family physician for July 30, 2019, received December 30, 2019, noted the worker's description of incident as "Unknown." The report from the treating physiotherapist of an initial physiotherapy assessment on July 31, 2019 noted a date of incident of 2015 and that the worker described having flare-ups every four to six months.
While the worker referred in his Appeal of Claims Decision Form to poor reporting by the intake nurse at the sports medicine clinic resulting in an initial belief that his complaint was linked to a previous claim, the panel has difficulty accepting that the treating physician at the sports medicine clinic or other treating healthcare providers would not have noted a work-related cause for the worker's seeking medical attention in July 2019 if the worker had indicated any such incident had occurred.
The panel notes that the worker and the employer initially filed reports on the worker's 2015 claim for a re-occurring injury with a date of injury of July 16, 2019. Information on the worker's 2015 claim file also shows that in a conversation with the WCB on July 17, 2019, the worker was specifically asked whether he had experienced any new accidents or incidents at work or home to account for his current symptoms, and his response was "no." With respect to how his condition had progressed since his original claim in 2015, the worker indicated that "Originally my knee got better but was never back to 100%. It started to become aggravated around every 4 months. I can still walk but I walk with a very severe limp." In a further conversation with the WCB on August 1, 2019, the worker also indicated he had carried on with his job duties, but he "started struggling more about a month ago with his knee. He was not doing anything out of the norm his regular job (sic), and it was getting worse."
Information on file shows that the first reference to a particular incident having occurred on July 16, 2019 was five months later, on December 16, 2019, when the worker provided the WCB with a further Worker Incident Report indicating he was "…getting up from the ground…to grab something from my tool box when I injured my knee." The panel is unable to place any weight on that description and is satisfied that the worker only described an event when he realized that he had to make a specific claim.
In his written submission on the appeal, the worker explained that he did not know what happened initially and that when he reported his injury he "did not have the information that I have now" and "did not right away understand what was going on inside my body." The panel is of the view, however, that if something in particular had occurred at work on July 16, 2019, as the worker subsequently claimed, the worker would have known it at that time, regardless of whether he knew precisely what was wrong with his knee or what the diagnosis might be.
When it was put to the worker at the hearing that there did not appear to be any such description of an event having occurred in July 2019 prior to the December 16, 2019 report, the worker responded:
Well, I was just unclear on what the injury was. So, repetitive motion, as I do multiple times a day…Multiple times a day I have to get up off the ground and I'm right-hand dominant so I turn towards the right…So, I'm turning towards the right, very repetitive motion for me…So, I'm up and down, I could be up and down probably 20 times within…10 minutes, and there was multiple times that I would do that quickly, and I would feel, like, a very severe pinch on the outside of my knee. And sometimes I would hear a click. I just…it wouldn't cripple me, I wouldn't fall on the ground out of pain, so I just wouldn't think much of it until July 16th where…the muscle band got overworked, and I just couldn't sustain my weight or keep myself up. I was walking with a severe limp that day and it increased over time.
So, I attribute not being able to go to work on the 17th because of the ITB syndrome, which was the cause of the meniscus tear. When it happened, if it happened earlier that morning, the day before, a month before, I don't know, but…I have noticed sharp pains on the outside of my knee multiple times when I've done that. And usually, the way I correct it is just slowing down my pace a bit, doing the physiotherapy exercises that I was given and light stretching, and Aleve usually would help. But on the 16th, it was just past that point in helping.
While the worker relied on the Employer's Incident Report dated July 18, 2019, where it was noted that the worker "…was getting up off the floor from a squatting position and turned to the right. Felt shooting pain in knee," as supporting that the injury happened at work and was reported in a timely manner, the panel is unable to place any weight on that report. The panel notes that even though the report was dated July 18, 2019 by the manager who completed it (not the manager who attended the hearing), it refers to things that happened after that date and was not filed until November 20, 2020. The worker acknowledged at the hearing, and the panel finds that the Report could not have been completed on the stated date. The panel further notes that the description of the incident in that report is not consistent with the same manager's advice to the WCB on August 2, 2019 (on the 2015 claim) that there had been no new accident at work to account for the worker's difficulties.
The worker also relied on the screenshot of the text message he sent to the employer on July 17, 2019 as being supportive of his position on the appeal. The panel notes, however, that the text message did not talk of a specific incident, indicating only that the worker reported: "I won't be in today. I have re-aggravated my right knee that has been sore for a couple months now, same one that I hurt at work a couple years ago…"
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of July, 2022