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 after February 21, 2022 in relation to the December 8, 2021 accident. A hearing was held on May 24, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 21, 2022 in relation to the December 8, 2021 accident.

Decision

The worker is entitled to benefits after February 21, 2022 in relation to the December 8, 2021 accident.

Background

The worker filed a Worker Incident Report with the WCB on December 9, 2021, reporting injuries to his right knee, lower back and left knee that occurred at work on December 8, 2021. The worker described slipping and trying to catch himself while carrying a large item, then landing on top of the item frontwards with his legs "all over." The worker noted the ground was icy but covered with snow. The worker further described:

I first felt pain in my right knee but I did keep working as I was just trying to walk it off. 

When I stopped and sat down, I could feel a burning sensation in my right knee. 

My back then stiffened up. I think I left about a half hour early. I put ice on my right knee. 

This morning when I woke up I felt pain in my left knee. I had surgery on my left knee in May. 

This morning I had to call in sick.

An Employer's Incident Report was provided to the WCB on December 13, 2021, noting the worker had reported he slipped on ice and hurt his right knee and lower back on December 8, 2021.

The WCB received a Doctor's First Report for the worker's appointment with his family physician on December 10, 2021. The physician noted the worker described falling forward on a patch of ice while lifting an item and both knees being hyper-adducted. The worker reported pain in both knees medially, especially with weight-bearing, difficulty walking, and pain in the right lower back area. The physician examined the worker and found tenderness over the medial compartment of both knees and left infrapatellar tendon, and a visible spasm in the worker's right lower back area. The physician noted the worker had a previous history of a back sprain and surgery on his left knee, and diagnosed a sprain in both knees and low back. A note was provided placing the worker off work until he could be reassessed on January 4, 2022.

On December 15, 2021, the worker attended an initial physiotherapy assessment. The worker advised the physiotherapist he "Slipped on ice, landed on knees with legs spread open…" and since that time, he was experiencing constant burning pain in the medial area of his right knee, constant throbbing/achy pain in the medial area of his left knee, constant throbbing/achy pain in his low back, knee pain that increased with standing and low back pain that increased with sitting. Bilateral knee and low back testing found pain at end ranges and decreased strength was noted in the worker's left and right hip adductors. The worker was diagnosed with a grade 2 right and left hip adductor strain, grade 2 low back strain, and possible medial collateral ligament sprain on the right and left knees. The physiotherapist recommended the worker remain off work pending a reassessment on January 3, 2022.

The WCB contacted the worker on December 15, 2021 to discuss his claim. The worker confirmed the mechanism of injury as set out on his incident report and advised that immediately after the incident, he had a burning sensation in his right knee and low back, and his left knee did not initially hurt. The worker advised he noticed swelling in both knees after his shift on December 8, 2021. The worker further advised that his treating physician had prescribed pain medication and muscle relaxants and recommended he attend physiotherapy. The worker also indicated he had not talked to the employer with respect to modified duties, but had provided the employer with the note from his doctor advising that he was to remain off work. The WCB advised the worker that his claim was accepted and payment of various benefits commenced.

At a follow-up appointment with his treating family physician on January 4, 2022, the worker reported ongoing back pain and spasm with very little standing/walking and increased knee pain with weight-bearing. The worker was referred for an MRI of his knees and lumbar spine, and it was recommended he remain off work until a further reassessment on February 15, 2022.

Also on January 4, 2022, the worker attended a further appointment with the treating physiotherapist, who noted the worker was still experiencing intense pain in the left and right medial knees and cramping pain in the right lower back, with the pain shooting from his right gluteal area to his right ankle. Testing indicated decreased active range of motion in both knees and the physiotherapist recommended the worker remain off work as per his treating physician.

On January 15, 2022, the worker underwent MRIs on his left and right knees and lumbar spine. The results of the MRI of the worker's right knee indicated a tear of the posterior medial meniscus, and the results of the MRI of the left knee showed "The radial longitudinal tear of the posterior junctional medial meniscus has progressed since the prior study," with the previous study having been conducted in March 2021. With respect to the MRI on the worker's lumbar spine, it was noted that there were shallow diffuse disc bulges at L3-L4 and L4-L5 and very minimal degenerative changes without nerve root compression or stenosis.

At a further follow-up appointment with the treating physiotherapist on January 19, 2022, the physiotherapist recommended restrictions of no sitting or standing for more than 5 minutes at a time, no walking longer than 5 minutes at a time and for only short distances, no repetitive bending forward through trunk, no carrying greater than 10 pounds and no stairs. The employer was provided with a copy of the restrictions on January 19, 2022.

On January 31, 2022, the worker was seen by an orthopedic surgeon. After examining the worker, the surgeon opined that the worker had bilateral medial meniscal tears after sustaining a fall at work. The surgeon noted that the worker had a recent left knee arthroscopy involving a partial meniscectomy, which appeared to have resulted in improvement in his symptoms, but since his fall in December 2021, he had returned to being symptomatic. The orthopedic surgeon further opined that some of the worker's symptoms might be "…somewhat atypical for a true meniscus pathology…" but that he was not entirely convinced that all of the worker's symptoms were related to the meniscus tears. A pain injection was recommended and administered at the appointment, with a further follow-up to be scheduled in 3 weeks' time.

At the request of the WCB, the worker's file was reviewed by a WCB medical advisor on February 9, 2022. The medical advisor opined that the worker's initial diagnosis as a result of the December 8, 2021 workplace accident was a low back strain and bilateral knee sprains with a natural history of improvement over 1 to 6 weeks, and the worker's current diagnoses were non-specific low back pain and non-specific bilateral knee pain. The medical advisor went on to opine that at more than 2 months past the date of the workplace accident, the worker's reported ongoing difficulties were not medically accounted for in relation to the workplace accident. The medical advisor further opined that there was no evidence the worker's pre-existing left medial meniscus tear was materially contributing to the worker's recovery and no specific medical diagnosis to account for the worker being totally disabled from work.

On February 16 and 17, 2022, the WCB received letters from the worker's treating family physician and treating physiotherapist, respectively, noting they supported the worker's meniscus tears were a result of the December 8, 2021 workplace accident and the worker required further treatment and time off work due to those injuries.

On February 17, 2022, the WCB provided the worker with a decision letter advising his entitlement to benefits would end as of February 21, 2022 as it had been determined he would have recovered from the effects of the workplace accident and his ongoing symptoms could not be medically accounted for in relation to that accident.

On March 8, 2022, the WCB medical advisor placed a note to the worker's file indicating he had been attempting to speak to the worker's family physician regarding her February 16, 2022 letter, but had been unable to do so. The medical advisor opined that the information submitted by the family physician did not change his February 9, 2022 opinion that the worker was recovered from the workplace accident.

On March 9, 2022, the WCB advised the worker there would be no change to their decision that he was not entitled to further benefits after February 21, 2022.

Also on March 9, 2022, the WCB medical advisor placed a further note to the worker's file indicating he had now spoken with the worker's treating family physician. It was noted that the physician indicated she could not provide an alternate specific diagnosis for the worker's reported knee pain, and the medical advisor recommended she discuss with the worker an attempt to normalize his function as tolerated.

On March 10, 2022, the WCB provided a further letter to the worker noting the WCB medical advisor had spoken with his treating family physician, and there was again no change to their decision that he was not entitled to further benefits.

On May 17, 2022, the WCB received a copy of a May 10, 2022 report from a second orthopedic surgeon. The surgeon noted he had performed the left knee arthroscopy on April 17, 2021, with the worker being cleared to return to activities on May 2021. It was noted that the worker reported he had returned to work in July 2021, with minimal discomfort until the December 8, 2021 workplace accident. The worker reported experiencing bilateral medial knee pain since that time similar to the meniscal symptoms he had prior to the April 2021 arthroscopy. On examining the worker, the surgeon noted tenderness to both sides of the worker's knee, with "…significant point tenderness along the medial joint line bilaterally. Ligamentous testing is stable." The worker had advised that he wished to proceed with arthroscopic surgery given the benefit he achieved from the previous surgery but further treatment had been denied by the WCB. The surgeon provided his opinion that the reported mechanism of injury "…would often cause an invert twisting type rotation at the knee" and the fact the worker was able to return to work for several months prior to December 8, 2021 supported he sustained a new injury as a result of the December 2021 accident.

Following receipt of the second surgeon's report, the WCB medical advisor indicated he attempted to speak with the surgeon, but was unable to do so, and in a June 7, 2022 note to the worker's file, the medical advisor advised that the information provided by the second surgeon had been reviewed but his previous opinion had not changed.

On June 21, 2022, the WCB provided a further letter to the worker, advising that their decision that he was not entitled to further benefits remained unchanged.

On July 27, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that his treating healthcare providers supported the meniscal tears were as a result of the workplace accident and the worker was unable to work and required further treatment, including surgery. On September 13, 2022, the employer provided a submission in support of the WCB's decision.

On October 3, 2022, Review Office determined that the worker was not entitled to benefits after February 21, 2022. Review Office relied on and accepted the opinions of the WCB medical advisor that the worker sustained sprain/strain injuries to his left and right knees and lower back as a result of the December 8, 2021 workplace accident, which had since resolved, and the worker's ongoing difficulties could not be medically accounted for in relation to that accident.

On November 9, 2022, 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 made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident 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.

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 wage loss benefits are payable until 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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing. The worker's representative noted at the hearing that they were largely relying on their written submission as setting out their position and arguments. The representative provided brief oral comments in further support of their position, and the representative and the worker responded to questions from the panel.

The worker's representative noted at the outset that they were only focusing on the worker's left and right knee injuries on the appeal, and were not taking a position about further benefits with respect to a back injury. The worker's position was that he suffered bilateral knee injuries which remained symptomatic as at February 21, 2022, and is entitled to benefits beyond that date.

The worker's representative noted that the worker had returned to working his regular full-time duties in July 2021, following his April 20, 2021 surgery on his left knee on another claim. The worker continued performing those duties until the December 8, 2021 accident, as a result of which he suffered acute medial meniscus tearing to both of his knees. The worker reported the accident and sought medical attention in a timely manner, and his claim was accepted for injuries to his knees.

The representative submitted that although the WCB referred to and relied on the family physician's and treating physiotherapist's initial diagnoses of knee sprains, those diagnoses would be better characterized as preliminary and subject to reassessment and change, and the family physician and treating physiotherapist indicated in subsequent letters that they had initially misdiagnosed or underdiagnosed the full extent of the worker's injuries. The representative submitted that it is not uncommon for diagnoses to change as a claim proceeds and further medical information is obtained, such as the January 2022 knee MRI results in this case.

The representative noted that within weeks of the December 8, 2021 accident, the family physician ordered MRIs for both knees, having noted in her January 4, 2022 assessment of the worker that the injury was perhaps more serious. After receiving the MRI results, which showed medial meniscus tears in both knees, the physician referred the worker for an orthopedic assessment, which took place on January 31, 2022, and the orthopedic surgeon spoke of possible future consideration of an arthroscopic intervention for the left, or perhaps both knees.

With respect to the worker's right knee, the worker's representative noted that there was no pre-accident MRI of that knee, or evidence of a symptomatic right knee, and no evidence that the worker's medial meniscal tear was present prior to the accident. The representative submitted that the history suggests the worker experienced a rather rapid change from a pain-free, fully functional right knee up to the accident date, to becoming a potential surgical candidate a little over a month later, and submitted that such a history was not consistent with, or suggestive of, a slowly developing degenerative medial meniscus tear as suggested by the WCB medical advisor.

With respect to the worker's left knee, the worker's representative noted that in light of the comment by the WCB medical advisor that there was no evidence the pre-existing medial meniscus tear was materially contributing to the worker's current presentation, they sought clarification from the WCB regarding a potential relationship between the worker's left medial meniscus tear and the April 2021 surgery which the WCB had accepted on the worker's previous claim. The worker's representative noted that the WCB's Chief Medical Officer and a WCB radiology consultant then became involved, and in a memo dated January 11, 2023, the Chief Medical Office reported that the radiology consultant had concluded that the left medial meniscal tear was of new onset, having occurred sometime after the worker's April 2021 left knee surgery and prior to the January 15, 2022 left knee MRI.

The worker's representative submitted that in the circumstances, given the worker resumed full-time unrestricted work in July 2021, that he continued in that capacity up until the new workplace accident on December 8, 2021, that the left knee MRI was not ordered until after that accident, and that there is no evidence of any other causal event having occurred, the December 8, 2021 accident is the most probable cause of the new medial meniscus tear.

The worker's representative expressed disagreement with comments made and positions taken by the WCB medical advisor as outlined on February 9, March 9 and May 18, 2022. The representative provided detailed comments with respect to a number of points of disagreement, and asked that in the circumstances, the panel attach no weight, or less weight, to the opinions and positions of the WCB medical advisor.

The worker's representative noted that the worker's four treating healthcare professionals, consisting of two orthopedic surgeons, the worker's family physician, and the worker's physiotherapist, all provided written opinions that the medial meniscus tears were the cause of at least some of the worker's symptoms and difficulties. Contrasted with this was the opinion of one WCB medical advisor who did not examine or interview the worker. The representative noted that Review Office reviewed the claim and preferred the opinion of that one medical advisor, and submitted that this one opinion should not outweigh the opinion of four medical professionals who examined and interviewed the worker.

In conclusion, the worker's representative submitted that but for the December 8, 2021 accident, the worker would have continued working his regular duties full-time, in a pain-free and full functional manner, and that the only thing that changed was the accident. The December 8, 2021 accident caused the medial meniscus tears in both of the worker's knees, and those tears were responsible for at least some of the symptoms and functional limitations the worker experienced. It was submitted that the worker continued to experience those effects beyond the benefit end date and to require restrictions which the employer was unable to accommodate with suitable modified or alternate work, and the worker was therefore entitled to further wage loss and medical aid benefits beyond February 21, 2022.

Employer's Position

The employer was represented by its Workers Compensation Coordinator, who made a submission at the hearing and responded to questions from the panel. The employer's position was that the December 8, 2021 incident did not result in a meniscal injury to the worker's right or left knee, and that he has been fairly compensated for his injuries and is not entitled to benefits beyond February 21, 2022.

The employer's representative noted that it was important to understand what took place and what the mechanism of injury actually was. He referred to the description of the mechanism of injury in the Worker Incident Report, as well as additional details documented in the WCB adjudicator's initial contact with the worker on December 15, 2021, including that the worker's "…legs went like the splits when he grabbed the [item]. His knees did not hit the ice, but his legs went side to side. His hips did not move." The representative submitted that the family physician may have incorrectly documented that the worker's knees adducted, noting that the WCB medical advisor had explained that the mechanism of injury as described involved a valgus force and was congruent with abduction. He also said that the employer believed the treating physiotherapist did not have a good understanding of the mechanism of injury, having referred among other things to the worker landing on the medical aspects of his knee.

With respect to the worker's right knee, the employer's representative stated that they believed the December 8, 2021 incident caused nothing more than a right knee sprain. The representative noted that while the January 15, 2022 MRI showed some evidence of a tear in the right medial meniscus, this was described as an undersurface focal horizontal tear. It was noted that the WCB medical advisor opined that this type of tear is most consistent with a degenerative process, and the representative submitted that this is consistent with much of the available literature. It was submitted that the MRI findings with respect to the right knee were therefore more likely degenerative than traumatic and were not related to the December 2021 workplace incident.

With respect to the worker's left knee, the representative noted that the worker underwent left knee arthroscopic surgery in April 2021 with respect to a prior claim, and the WCB accepted responsibility for that surgery. The representative pointed out, however, that in the February 24, 2022 report from the treating orthopedic surgeon which the worker's representative had submitted in advance of the hearing, the surgeon described this April 2021 surgery as being for a degenerative tear. The representative noted that the horizontal tear in the right knee which was identified in the January 15, 2022 right knee MRI was a similar type of tear, which as previously argued, would be degenerative in nature.

The employer's representative acknowledged that the WCB's Chief Medical Officer and WCB's consulting radiologist reviewed the MRIs of the worker's left knee and determined that the January 15, 2022 MRI showed a new radially oriented defect that was not present at the time of the initial March 8, 2021 MRI, and was not in keeping with the prior horizontal tear. The representative noted that the employer interpreted this to mean that there was no relationship between those findings and what had occurred previously. The representative indicated, however, that it was significant that while the Chief Medical Office and radiologist concluded that a new medial meniscus tear occurred sometime between the April 17, 2021 surgery and the January 15, 2022 MRI, they stopped short of saying that this new tear was the result of the December 8, 2021 incident.

In conclusion, it was submitted that the issues with the worker's right knee were nothing more than a sprain to that knee, and the January 15, 2022 MRI findings with respect to that knee were more likely degenerative than traumatic and not related to the workplace accident. With respect to the left knee, the employer relied on the WCB medical advisor's opinion that the mechanism of injury would not have produced a tear in the left meniscus, and the injury would again have been nothing more than a sprain. In the employer's view, ongoing right and left knee issues after February 21, 2022 were therefore not related to the December 8, 2021 workplace incident, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 21, 2022 in relation to the December 8, 2021 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond February 21, 2022 as a result of his December 8, 2021 workplace accident or injury. For the reasons that follow, the panel is able to make that finding. The panel reviewed the mechanism of injury with the worker at the hearing, and is satisfied that the evidence indicates the worker experienced a significant fall, slipping on ice and falling awkwardly, in an erratic and uncontrolled fashion, with his legs flailing. The panel further notes that the worker is a large individual, and is of the view that he would have come down hard when he fell, which would have put extra stress and weight on his knees. In the panel's view, the accident as described would have been sufficient to have altered the structures in the worker's knees.

The panel is further satisfied that the medical evidence supports that the injuries the worker suffered to his right and left knees as a result of his fall were more than strains. The panel notes that while the treating family physician diagnosed the worker with strain injuries at the initial assessment two days after the accident, the physician expressly noted at her following assessment of the worker on January 4, 2022: "perhaps injury more serious → need MRI" and ordered MRIs on an urgent basis. The worker underwent the MRIs of both knees on January 15, 2022, which showed medial meniscus tears in both knees, and was immediately referred to the orthopedic surgeon, who saw him on January 31, 2022. The panel notes that the MRIs and referral to the orthopedic surgeon were both expedited by the WCB.

The panel is further satisfied that the medical evidence supports that the tears which were identified on the January 15, 2022 right and left knee MRIs were new and causally related to the worker's December 8, 2021 workplace accident.

In arriving at that conclusion, the panel places weight on the opinions which were provided by the worker's treating healthcare providers, each of whom was of the view that the tears were related to the accident. In her February 16, 2022 letter, the worker's family physician thus wrote that when she reassessed the worker on January 4, 2022, she noted that the worker had no right knee trouble before his fall and his left knee had been operated on less than a year earlier "…so had recently been internally visualized as well." The physician also noted that the worker had no other trauma, and stated that "To me it seems patently obvious that both tears are new and are from his fall at work."

In her February 17, 2022 letter, the treating physiotherapist wrote that it had been difficult on the initial physiotherapy assessment on December 15, 2021 to gain accurate results on testing "due to pain with most movements and tests on the knees." The physiotherapist also noted that as the worker was not experiencing any pain in his knees prior to his fall on December 8, 2021 and had surgery repairing a tear on his left medial meniscus, there was strong evidence to suggest the left and right medial meniscal tears found on the January 15, 2022 MRIs were due to his fall at work on December 8, 2021.

In his letter dated May 10, 2022, the second orthopedic surgeon, being the surgeon who had performed the previous surgery on the worker's left knee, noted that:

Certainly on the history that he is (sic) provided me, it would be in keeping with the stated pathology as he noted following into the splits, which would often cause an invert twisting type rotation at the knee. In addition, the fact that he was able to return to work for several months without limitations would lend further support that this is a new injury with the onset of symptoms after his slip and fall in December 2021.

In his January 31, 2022 report, the treating orthopedic surgeon noted that he saw the worker with respect to "bilateral medial meniscal tears after a fall he sustained at work." The surgeon noted that he counselled the worker that "certainly some of his symptoms may be somewhat atypical for a true meniscus pathology, but am not entirely convinced that all of his symptomatology is related to the meniscus tears."

In a subsequent report dated February 24, 2022 which was submitted in advance of the hearing, the orthopedic surgeon indicated, with respect to the above comments, that arthroscopic surgery could be considered but he could not say for certainty that this would result in improvement of "all" of the worker's clinical symptoms as "arthroscopic procedures are good for mechanical symptoms and not necessarily for chronic pain…", and went on to state:

I did explain to him that certainly my WCB letter states that he had injured himself at work and it was simply more to discuss the role of arthroscopy and whether or not this would result in complete resolution of his symptoms.

The panel acknowledges that medical information on file suggests, as indicated by the treating orthopedic surgeon, that the worker may have other ongoing issues, but is satisfied that this does not mean that the tears, as identified on the January 15, 2022 MRIs, and at least some of the worker's ongoing difficulties, are not related to his workplace accident.

The panel notes that in arriving at our decision, we carefully reviewed and considered the comments and opinions provided by the WCB medical advisor over the course of the claim, but prefers the opinions of the treating healthcare practitioners who examined and treated the worker.

The panel also places weight on the January 11, 2023 memo by the WCB's Chief Medical Officer where he was responding to a request from the worker's representative on the worker's previous claim file for clarification regarding the WCB's position concerning the worker's left medial meniscal tear. The Chief Medical Officer reported in that memo that the WCB's MSK radiology consultant's assessment, in consideration of the matters outlined in that memo, was that "the January 15, 2022 left knee MRI showed a new onset radial tear of the medial meniscus since the April 17, 2021 surgery." The Chief Medical Officer went on to state that in light of the information provided by the radiology consultant, "it appears that a new radial tear of the medial meniscus occurred sometime between the April 17, 2021 arthroscopic surgery and the January 15, 2022 MRI."

The panel notes that while the January 11, 2023 memo does not address whether the new tear was caused by the December 8, 2021 accident, we are not aware of evidence of any other event having occurred between April 17, 2021 and January 15, 2022 to cause the tears to the worker knees. In the circumstances, the panel finds that the December 8, 2021 accident is the most probable cause of the bilateral medial meniscus tears identified on the January 15, 2022 MRIs.

Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence supports the worker had not recovered from the effects of his December 8, 2021 workplace accident as at February 21, 2022, and continued suffer a loss of earning capacity and require medical aid beyond that date as a result of that accident. The panel therefore finds that the worker is entitled to benefits after February 21, 2022 in relation to the December 8, 2021 accident.

The worker's appeal is allowed.

Panel Members

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 21st day of July, 2023