Decision #19/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on January 17, 2023 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker provided a Worker Incident Report to the WCB on April 13, 2021 reporting injury to their knees on March 15, 2020. In the report, the worker noted that since mid-March 2020, approximately two weeks after they began working in a new position, they began to:
“…feel pain and swelling in both knees and swelling into my thighs. They started to stiffen up to the point I could not walk. I tried to stay working, even on breaks, as it was hard to get up and moving again after I sat for 20 minutes on break. It was hard for me to function normally and walk. Driving was also difficult as I could not get out of my car due to pain. I also have trouble with stairs. Every once in a while when I turned, I could feel a sharp pain in my left knee.”
The worker reported their job duties include constantly going up and down stairs in and out of a vehicle, approximately 100 times per day, noting that there are two stairs, and the first step up is quite high. The worker also stated that they experience bouncing around of the vehicle while driving in the yard and that this may contribute to their injury, as they drive very slowly to avoid bumps and the vehicle itself vibrates. The worker further advised that they reported their difficulties to their supervisor and coworkers.
The employer submitted an Employer’s Accident Report to the WCB on April 22, 2021, noting the incident involving the worker’s knees was never reported to them. The employer noted at the time of the reported incident, the worker was on a graduated return to work plan related to a non-compensable motor vehicle accident and reported a bruise on one knee and mentioned their knee swelled by the end of the day once during their graduated return to work plan, but the worker did not relate those symptoms to a workplace accident.
On August 12, 2021, when the WCB contacted the worker to discuss the claim, the worker confirmed that they were on a graduated return to work plan and started in their new position approximately one to two months before the onset of their symptoms in mid-March 2020. The worker noted they would experience stiff, sharp pain in their left knee if they sat too long and would try to use their right knee to go up the stairs and try to not use their left leg as much. The worker provided details on their job duties for the previous two years, noting that in their new position, they would be up and down stairs over 100 times a day, twisting and turning. Further, the worker noted that in 2014-2015, they had a diagnosis of a meniscal tear in their left knee, confirmed by way of an MRI and x-ray, but did not have surgery and it healed on its own.
The WCB requested and received medical information from the worker’s treating family physician on October 18, 2021, including copies of February 6, 2021 MRI studies on both of the worker’s knees. The right knee MRI indicated “Chondromalacia as described. New area of focal chondral loss of the posterior lateral femoral condyle” and the left knee MRI indicated “Chondromalacia as described. Tear of the posterior medial meniscus with flipped fragment at the body into the peripheral inferior recess.” The WCB also received a March 8, 2021 report from an orthopedic specialist who noted the worker had “…small Baker’s Cyst on both knees”, “…tenderness with palpitation, particularly on the medial joint line. The knee feels otherwise stable. McMurray Test is positive.” The treating specialist opined that the worker had “…a combination of arthritic post-mechanical symptoms associated to a medial meniscal tear” and recommended a left knee arthroscopy. In a chart note from the treating family physician dated October 14, 2021, the physician noted the worker still had complaints of pain in both knees and could not climb stairs or ladders and was waiting for surgery. On October 30, 2021, the WCB received a narrative report from the worker’s family physician who reported the worker “…injured both knees at work in April 15, 2002 (sic)” and has difficulty with climbing stairs or ladders”, noting that MRI studies of both knees showed Baker’s cysts with chondromalacia. The treating physician also noted the left knee MRI indicated a tear of the posterior medial meniscus and that the orthopedic surgeon recommended surgery. The WCB also received a copy of the October 20, 2021 surgery report, which indicated the worker underwent a left knee arthroscopy in addition to a chondroplasty of the patella, chondroplasty of the medial femoral condyle, chondroplasty of the femoral trochlea, microfracture of the medial femoral condyle, partial medial meniscectomy and partial synovectomy.
Upon reviewing the worker’s file on November 30, 2021, a WCB medical advisor concluded the current diagnosis was bilateral osteoarthritis in the worker’s knee joints, with a natural history of progressive deterioration. Further, the medical advisor provided that the diagnosis was a pre-existing condition and as the worker had not described an injury or incident that may have occurred to their left knee joint, the evidence did not support the worker’s job duties aggravated their pre-existing condition.
On December 1, 2021, the WCB advised the worker their claim was not acceptable as a relationship between their current knee difficulties and an incident arising out of or in the course of their employment could not be established.
On January 11, 2022, the worker submitted a copy of the letter from their treating family physician in which the physician provided the pain in the worker’s knees began with their new position and progressed to the point where they could not walk, with improvement noted after the worker stopped working and had the surgery. The treating physician also stated they could not be certain if the worker’s knee pain was due to their job or not. On January 17, 2022, the worker provided a copy of a January 14, 2022 email message from their personal trainer, who stated they had been working with the worker since November 2021 and found the worker’s right leg is short due to trauma, the worker had an anterior pelvic tilt, lumbar instability, severe lateral collateral ligament and meniscus injuries causing severe intermittent pain and Baker’s cysts behind both knees. The trainer further noted the worker had some improvement in pain and function but recommended the worker not return to their regular duties as in their opinion, the worker “…does not have the structural integrity in [the] affected knee to climb backwards down ladders and steps.” The WCB also received a narrative report from the worker’s physiotherapist on February 7, 2022. The physiotherapist noted the worker underwent a medial meniscus repair surgery on October 20, 2021 and after assessing the worker on February 4, 2022, stated their belief the worker could return to work on light duties and reduced hours, starting at 6 hours per shift. The physiotherapist noted the worker had full range of motion in their knee but still had some pain and swelling, and that after a further 6 weeks of strengthening, they believed the worker could return to full regular duties.
On February 16, 2022, the WCB advised the worker the new information provided had been reviewed but there would be no change to the earlier decision that the claim was not acceptable.
On July 4, 2022, the worker requested that Review Office reconsider the WCB’s decision. In their submission, the worker noted that their job duties of excessive twisting and turning while getting out of the vehicle caused re-tearing of their meniscus and the swelling in their knees and as such, they should be entitled to benefits.
On July 12, 2022, Review Office determined the worker’s claim was not acceptable. Review Office accepted and relied upon the WCB medical advisor’s opinion that the worker’s pre-existing degenerative condition was not structurally altered or enhanced by their job duties and a causal relationship between those duties and the worker’s knee difficulties was not established.
The worker filed an appeal with the Appeal Commission on August 16, 2022 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 on the date of the accident apply.
Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of employment arouse of the employment, unless the contrary is proven. The term “accident” is defined in s 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 it 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.
Occupational disease is also defined in s 1(1) of the Act, as “a disease arising out of and in the course of employment and resulting from causes or conditions” that are peculiar to or characteristic of a particular trade or occupation, or to particular employment or that trigger post-traumatic stress disorder but does not include an “ordinary disease of life” or “stress, other than an acute reaction to a traumatic event”.
WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:
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 WCB has also established WCB Policy 126.96.36.199, Pre-existing Conditions (the "Pre-existing 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 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. 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.
The worker appeared in the hearing on their own behalf and made an oral submission to the appeal panel. The worker also provided testimony through answers to questions posed to them by members of the appeal panel.
The worker’s position is that the claim should be accepted by the WCB because beginning in March 2020, they began to experience pain in their left knee which the worker attributes to their job duties involving numerous and frequent climbs up and down two stairs into a vehicle over the course of each shift as well as getting in and out of the cabin of the vehicle.
The worker clarified to the panel that they were not making a claim in respect of injury to both knees, but only in respect of their left knee. The worker described an earlier, non-compensable injury to their left knee that resulted in a meniscal tear as identified in the June 6, 2018 MRI study. The worker stated they recovered from that injury and did not have further symptoms until beginning their new position with the employer. The worker explained that in the course of this job, they climbed up into a vehicle approximately every 3 minutes over the course of their 12-hour shifts, minus approximately one hour per shift for breaks. The worker described that when they climb up the two-step stair into the vehicle, they get into the cabin and sit awhile before getting up from their set to do some quick inspection checks, and then return to their seat to move the vehicle and then get out again, climbing down the same two-step stair. The worker explained that the first step up onto the vehicle is a high step and the second is nearer the first step in height. The worker indicated that they climb up facing forward and down facing backward so as to maintain three-point contact with the vehicle.
The worker stated their belief that the climbing up into and down from the vehicle, as well as getting into and out of their set in the vehicle cabin caused further meniscal tearing or worsened the previously identified meniscal tear resulting in their symptoms.
The employer did not participate in the hearing of the worker’s appeal.
The worker appeals the Review Office decision that their claim is not acceptable. For the worker’s appeal to be successful, the panel would have to determine that the worker sustained an injury as a result of an accident arising out of and in the course of their employment. As outlined in the reasons that follow, the panel was not able to make such a determination and therefore, the worker’s appeal is denied.
The panel noted that the previous adjudicative decisions by the WCB reference injury to the worker’s right and left knees, but in the hearing, the worker clarified and confirmed that they are not claiming injury to both knees, but only to the left knee. The panel therefore considered the appeal based on the worker’s claim as to only a left knee injury.
The worker submitted that they sustained injury to their left knee as a result of the repetitious nature of their job duties which included walking about on level and sometimes unlevel surfaces to inspect equipment, climbing up and down two steps into the vehicle and taking a seat in the vehicle and getting up from that seat up to 100 times per 10/12 hour day. While the panel accepts that the worker repeats the same activities many times in the course of their workday, the evidence before us indicates that the worker undertakes a number of different work activities each day that are interspersed with other activities through the course of each shift. For example, the worker does not repeatedly climb up and down the steps to the vehicle but climbs up once and then takes a seat to drive the vehicle for a few minutes before rising from the seat and walking to the steps to climb down. As another example, when the worker is not in the vehicle, they are often walking about and inspecting equipment. Relying upon the worker’s description of their job activities, the panel is satisfied that while the worker does repeat various activities multiple times throughout their shift, the activities themselves are not continuously repetitive. Further, we find that the described activities of climbing up and down steps and in and out of a vehicle cabin, interspersed with walking about are more in the nature of the ordinary activities of life. The panel does not find such job activities to be of a forceful nature as might account for development of a repetitive use type of injury, even if there was evidence of sufficient repetition.
In their submission, the worker also referenced their belief that their work activities caused ongoing tearing of their left meniscus, which injury the worker testified they initially sustained during a non-compensable slip and fall injury that occurred in 2018. The panel therefore also considered whether the medical reporting supports a finding that the workplace activities aggravated or enhanced a prior meniscal tear or caused that tear.
The medical reporting confirms that in February 2018, the worker was treated for a left knee “Grade 1 MCL sprain +/- meniscal tear”. Diagnostic imaging results from 2018, 2019 and 2021 also indicate that the worker has significant chondromalacia in their left knee, first described as mild in June 2018, then moderate in March 2019, and moderately severe in March 2021. The panel further noted that in the consult report of March 8, 2021, the orthopedic surgeon stated that the worker “…seems to have a combination of arthritic post-mechanical symptoms associated to a medial meniscal tear.” We also noted that in the operative report from October 2021, the orthopedic surgeon noted findings of type 3 chondromalacia in the patellofemoral joint and medial femoral condyle, and type 4 chondromalacia in the lateral femoral condyle. Further, the operative report contains findings of “an irregular tear with any in-folded flap distally” in the medial meniscus. The worker’s treating family physician noted that the worker reported a progressive increase in the intensity of pain in their knees since beginning this job, but the physician also noted that “I cannot be certain” the pain in the worker’s knee is due to their job.
The WCB medical advisor, in their November 29, 2021 opinion, outlined that the worker’s medical history includes a medial collateral ligament sprain and/or a meniscal tear from early in 2018, with progressive chondromalacia noted since then. The medical advisor concluded that the worker had pre-existing progressive degenerative osteoarthritis in their knee joints and noted that there was no evidence that the worker’s job duties aggravated the pre-existing condition. The medical advisor further noted that the worker did not identify any significant single injury or incident to the left knee joint. We accept and rely on this opinion.
On the basis of the medical reporting and opinions as well as the worker’s testimony and the claim file documents, the panel is satisfied that there is no evidence of a specific mechanism of injury that would or could account for the development of a new medial meniscal tear, nor is there evidence of any aggravation or enhancement of a pre-existing medial meniscal tear. As such, we do not find there is evidence that the worker’s left knee meniscal tear arose out of and in the course of their employment.
On the basis of the totality of the evidence before the panel, and on the standard of a balance of probabilities, the panel is unable to find that the worker sustained an injury to their left knee as a result of an accident arising out of and in the course of their employment. Therefore, the claim is not acceptable and the worker’s appeal is denied.
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 24th day of February, 2023