Decision #21/23 - Type: Workers Compensation
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 December 15, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker provided the WCB with a Worker Incident Report on July 14, 2021, reporting injury to their right knee sustained at work on July 27, 2020. The worker described swelling in their knee while performing their job duties on that date and that they sought medical treatment in July, August and September 2020, with an MRI study in April 2021. The worker then advised they were laid off from their employment in December 2020 and returned to work in May 2021 when their knee swelled up again. On July 19, 2021, the employer submitted an Employer’s Accident Report to the WCB. The employer noted the worker reported to their manager on July 27, 2020 that their knee was swelling up. The employer provided a brief description of the worker’s job duties and noted they kneel a lot in performing those duties. Further, the employer indicated the worker was laid off and returned to work on May 4, 2021, but had not worked since that date.
On August 10, 2021, the WCB received medical information for the worker, including an x-ray report from September 30, 2020 that indicated “…a moderately large joint effusion. Small marginal osteophytes are present but there is no joint space narrowing.” A right knee MRI study from April 28, 2021 noted that “The findings within the lateral meniscus may relate to a prior trauma with an associated chondral injury. Mild chondral loss is noted…. No significant ligamentous abnormality is identified. A small joint effusion is present.” The WCB also received a May 5, 2021 report from the worker’s treating family physician, the worker’s complaints of right knee pain, inability to work, with the pain getting worse daily. The physician recorded findings of right knee effusion with limited range of motion due to pain, diagnosed knee osteoarthritis/chondral loss, and referred the worker to an orthopedic surgeon.
When the WCB contacted the worker on August 24, 2021, the worker advised they were assessed by an orthopedic surgeon on August 12, 2021. The surgeon recommended arthroscopic surgery on their knee, which was scheduled for December 15, 2021. The worker confirmed that on July 27, 2020, they were on the ground working and when they got up from the floor, their knee “…just swelled right up.” The worker advised they were on their knees for approximately 10 minutes and noted they had been in the same profession for almost 30 years, performing similar job duties, “…putting a lot of pressure on my knee.” The worker confirmed they sought medical treatment in July, August and September 2020 and were prescribed medications for pain. The worker stated they had two days off work, then returned, only to begin experiencing difficulties with their knee again after three or four days. The worker also confirmed they had been off work since May 4, 2021 and were in receipt of medical disability insurance benefits since then.
The WCB requested and received copies of the worker’s treating physician’s chart notes from September 30, 2020 to July 7, 2021. The chart notes of September 30, 2020 noted the worker’s reporting of right knee pain “…a year ago” and that the worker was “getting more often flare ups” with their knee swelling. The physician noted the worker had a right knee effusion, limited range of motion and was unable to fully flex their right knee but no joint line tenderness was indicated. The physician provided a diagnosis of osteoarthritis and requested diagnostic imaging. On May 5, 2021, the worker attended an appointment with their treating physician reporting worsening knee pain and inability to work. The physician again noted an effusion on the worker’s right knee, with limited range of motion due to tenderness, and again provided a diagnosis of right knee osteoarthritis. The physician discussed the April 28, 2021 MRI with the worker and referred the worker to the orthopedic surgeon. A copy of the referral letter was included with the chart notes. During an appointment on May 12, 2021, the worker reported their right knee pain was not better, with limited range of motion and tender medial joint line noted by the treating physician. On July 7, 2021, the worker reported on and off knee pain and noted their belief the knee pain started at work.
On October 12, 2021, the employer provided the WCB with a list of the worker’s job duties. On October 28, 2021, the worker’s file was reviewed by a WCB medical advisor, who stated the initial diagnosis was right knee effusion and the current diagnosis was right knee lateral compartment arthrosis. The WCB medical advisor noted the worker described to their treating physician on September 30, 2020 right knee pain they had for over a year, with flare ups of pain and swelling, indicating pre-existing difficulties with the lateral compartment of the worker’s right knee. The medical advisor also noted the worker had reported swelling, with no work-related injury, to the employer on July 27, 2020. On November 3, 2021, the WCB advised the worker that a causal relationship between their right knee difficulties and a workplace accident could not be established and as such, their claim was not acceptable.
The worker’s representative requested reconsideration of the WCB’s decision to Review Office on February 7, 2022. In their submission, the representative noted the worker had experienced no difficulties with their right knee prior to July 27, 2020. On that day, the worker was crouching while performing their job duties, when they felt “…a warm like feeling, with pain…” in their right knee and upon standing, felt “…even more extreme pain…”. The worker reported the incident to their supervisor right after it occurred. The representative provided the worker sought medical treatment between July 2020 and September 2020 and attempted to return to work but was not successful and was laid off from their employment in December 2020. The MRI study of April 28, 2021 confirmed the worker had a lateral meniscus tear, along with a chondral injury. The representative noted the worker was unable to work and was awaiting surgery and as such, believed the worker’s claim should be accepted and they should be entitled to wage loss benefits.
On March 14, 2022, Review Office upheld the WCB’s decision and determined the worker’s claim was not acceptable, relying upon the opinion of the WCB medical advisor and the results of the diagnostic imaging. Review Office agreed that the worker had a pre-existing condition, developed over many years, and noted that the finding of a lateral meniscus tear and chondral injury would be the result of an acute traumatic injury like a sudden pivot or twist with a bent knee or a fall or direct blow to the knee, none of which was reported by the worker as the mechanism of injury on July 27, 2020.
The worker’s representative filed an appeal with the Appeal Commission on March 18, 2022 and a hearing was arranged.
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 14, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 arose 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.
Section 4(5) of the Act sets out the presumption that where an accident arises out of the employment, unless the contrary is proven, it is presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it is presumed that it arose out of the employment.
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 188.8.131.52, 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 worker appeared in the hearing represented by legal counsel who made submissions on behalf of the worker. The worker provided testimony in the hearing through answers to questions posed to them by their legal counsel and by members of the appeal panel. A witness on behalf of the worker also provided testimony through answers to questions posed to them by the worker’s lawyer and by members of the appeal panel.
The worker’s position, as outlined in the submissions of their legal counsel, is that the evidence supports a finding that the worker sustained injury to their right knee in the course of their employment on July 27, 2020 and as such, the presumption set out in s 4(5) of the Act applies. The worker submits that, as there is no evidence that the worker’s injury did not arise out of the employment, the claim should be accepted.
The worker’s counsel noted that although the worker’s accident report to the WCB was not made until approximately one year after the injury was sustained, the employer was advised on the date of injury, as is confirmed by the employer’s report to the WCB. Further, the worker testified that after the injury occurred, they recalled their supervisor telling them to take days off as needed rather than making a claim to the WCB. The worker indicated that they kept working until laid off in December 2020. After the April 28, 2021 MRI study revealed that they had a meniscal tear, the worker applied for benefits under their employer-sponsored insurance plan, at the direction of their supervisor. When those benefits ultimately were denied, the employer submitted the worker’s claim to the WCB.
The worker testified that their injury occurred at work on July 27, 2020 while they were working in a kneeling or crouched position, moving with a side to side motion. The worker recalled that as they moved to the left, they felt heat on their right knee, and then stood up to check the knee and noted that it was swollen. The worker stated that they went to find their supervisor and told the supervisor what happened, and that the supervisor advised them to go home to ice and rest the knee. The worker confirmed they did go home to rest and ice their knee, and that they returned to work the next day.
The worker testified that they had no previous right knee injury like this, although they had prior aches and pains, noting that they had worked in the same occupation for some 30 years and it required working on the floor, moving from side to side. The worker also confirmed that they had no prior treatment for a right knee injury or diagnosis related to their right knee.
The worker’s counsel explained that they were unable to confirm any medical treatment in relation to this injury until September 30, 2020. The worker testified that their right knee was
treated with surgical repair in 2022 and that they have not yet been cleared to return to work. The worker described that their knee is not at 100% and that there is still occasional pain when kneeling.
The witness, a co-worker of the worker, testified that they did not see the worker sustain an injury on July 27, 2020 but that they recalled seeing the aftermath, when the worker showed them their swollen knee which was the size of a grapefruit or cantaloupe. The witness testified that they could not recall the date when the worker showed them their swollen knee but remembered that this occurred after they asked the worker why they were wearing sweatpants instead of work pants. The witness also recalled being in the lunchroom and hearing the worker’s supervisor tell the worker to take time off as needed and that the supervisor did not want the worker to make a claim. This witness testified that this conversation occurred on the day after the worker showed them their swollen knee and that they were not part of the conversation but overheard it. The witness stated that they knew the worker for approximately 7-10 years and that the worker had the usual aches and pains in their knee that everyone gets. The witness recalled the worker stating that the swelling was from bending over, squatting and kneeling down in the course of their work.
Counsel for the worker submitted that the evidence supports a finding that the worker was injured in the course of their employment, and as such, s 4(5) of the Act applies so that it is presumed that the worker was injured arising out of their employment unless the contrary is proven. Counsel submitted the evidence does not establish that the worker’s injury did not arise out of their employment, noting that although the worker had some previous “aches and pains” in their right knee, when the worker was undertaking their job duties in a crouched and kneeling positions, moving side to side, on July 27, 2020, they noted that their knee was quite swollen and reported this to their employer. On the basis of this evidence, despite the delay in reporting to the WCB and the worker’s memory lapses, it can be established that the worker sustained injury to their right knee arising out of and in the course of their employment and therefore, the worker’s claim should be accepted.
The employer did not participate in the appeal.
The question on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker was injured 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 unable to make such a determination and therefore the worker’s appeal is denied.
The evidence before the panel confirms that the worker reported a swollen right knee to their employer on July 27, 2020 while at work. At the time, there was no report to the employer of any particular event resulting in injury to the worker’s right knee although the worker’s testimony in the hearing was that as they moved to the left, while in a crouching or kneeling position, they felt heat in their knee and then on rising, noted the knee was swollen. In their report to the WCB of July 14, 2021, the worker stated that “My knee swelled up at work” while they were doing their job duties on July 27, 2020 and further that they believe the cause of their injury is “I think from rolling around on the floor when” doing their job duties, noting “I have weight on my knees on concrete. I’ve been in the industry for about 30 years. So I think from putting a lot of pressure on my knee.”
The employer’s accident report indicates that the worker did not report any cause of the swelling when they reported their symptoms. The witness who appeared at the hearing did not see the worker injure themself, but testified only to seeing the worker’s swollen knee on the day after the worker described the swelling having appeared and to their belief that the swelling was caused by the worker’s job activities. The medical evidence indicates that, although the worker initially indicated they sought medical attention in July and August, 2020, the worker did not seek medical treatment until some two months later, on September 30, 2020, at which time the physician noted the worker’s report of right knee pain “a year ago” and that they were “getting more often flare ups” and swelling. The physician did not record any mechanism of injury and the chart notes of that visit do not suggest there was any discussion of a relationship between the worker’s job duties and their reported symptoms.
The medical reporting indicates a diagnosis on assessment on September 30, 2020 of right knee osteoarthritis, with an MRI ordered at that time. The MRI study of April 28, 2021 indicated “findings within the lateral meniscus [that] may relate to a prior trauma with an associated chondral injury. Mild chondral loss is noted…. A small joint effusion is present.” The worker returned to their treating physician on May 5, 2021 to review the MRI findings. At that time, the treating physician again provided a diagnosis of osteoarthritis. On May 12, 2021, the physician noted a diagnosis of right knee chondral damage and referred the worker to an orthopedic surgeon. On July 7, 2021, the treating physician noted that the worker’s right knee pain was “on and off” and that the worker “thinks it started at work”. The orthopedic surgeon, in a report to the treating physician of August 12, 2021 sets out that the worker’s symptoms “began after an accident at work” but does not specify further, although noting that the worker’s symptoms are reported to be aggravated by extended weight bearing, crouching, kneeling, squatting, walking on uneven ground, workplace duties, quick turns and sports. The orthopedic surgeon provided a diagnosis of a lateral meniscal tear and mild/moderate chondromalacia of the lateral compartment, with recommendation for arthroscopic surgical repair.
The panel considered whether the evidence supports the worker’s claim that they sustained an injury to their right knee as a result of an accident arising out of and in the course of their employment. The worker’s submission relies on the fact that the worker first noted symptoms of an injury, swelling of their right knee, while at work, but the fact that the worker’s symptoms arose while at work does not of itself establish that there was an accident in the course of employment. At the time of the event, the worker reported only swelling in their knee to the employer, as supported by the employer’s accident report and by the testimony of the witness who recalled the worker showing them the swelling the next day. Despite this, the worker did not seek medical attention until two months later and did not, even at that time, report a workplace injury to the treating physician. There was no mention of a work related cause in the physician’s chart notes until July 7, 2021. While in the hearing the worker described feeling heat in their right knee as they moved to their left, and then noting swelling, this more detailed description of the events leading up to the development of the worker’s symptoms is first offered some 2 ½ years after the purported accident.
The panel notes that there is a lack of contemporaneous evidence to support the description of the mechanism of injury provided by the worker in hearing. Further, there was no report to the WCB until nearly one year later. While the worker has provided an explanation for their delayed reporting, that report also does not indicate any clear evidence in relation to the mechanism of injury.
The panel further noted the medical evidence of significant degeneration and arthritis in the worker’s right knee, which we find to be a pre-existing condition, as supported by the opinion of the WCB orthopedic advisor of October 27, 2021 that “The etiology of the pre-existing arthrosis remains uncertain, but clearly antedated July 27, 2020.” The panel also noted that the surgical report of February 14, 2022 indicated that “More osteoarthritis was discovered during the procedure than was anticipated” and that the operative findings note moderately severe chondromalacia in the medial and lateral compartments, and severe chondromalacia in the patellofemoral region. The panel finds that the surgical findings support the opinion of the WCB orthopedic advisor that the worker’s right knee symptoms related to their pre-existing degenerative arthritis.
Counsel for the worker argued that the presumption in s 4(5) of the Act should apply as the worker was injured while in the course of their employment; however, that presumption only applies when it has been determined that an accident as defined by the Act has occurred, whether in the course of employment or arising out of employment. Here, the evidence before the panel does not support such a determination.
On the basis of the totality of the evidence before the panel, and on the standard of a balance of probabilities, we are not satisfied that the evidence establishes that the worker sustained an injury to their right knee as a result of an accident arising out of or in the course of their employment.
Therefore, the worker’s claim is not acceptable, and the 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 10th day of March, 2023