The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after June 24, 2022 and are not entitled to a knee brace. A videoconference hearing was held on April 5, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss and medical aid benefits after June 24, 2022; and 

2. Whether or not the worker is entitled to a knee brace.

Decision

1. The worker is not entitled to wage loss and medical aid benefits after June 24, 2022; and 

2. The worker is not entitled to a knee brace.

Background

The worker filed a Worker Incident Report with the WCB on December 30, 2021, reporting they injured their ankles, right knee, low back and hip as the result of an incident that occurred at work on December 17, 2021. The worker described coming down steps and "…all the steps were Icey (sic) and snow covered and I lost my balance on my right foot and I was suspended in air a little while and wiped out completely on my right hip, my knee hyperextended when I hit that Ice (sic) and then I fell down on my back and side and kind of rolled over. I injured my ankles right hip and right knee and lower back."

On January 5, 2022, the WCB contacted the worker to gather further information regarding the claim. The worker confirmed the mechanism of injury set out on the Report and advised the steps were icy and had no hand rails; when they were going down the stairs, their right leg gave out and jarred their right knee causing them to land on their buttocks and right side; and they were wearing traction cleats provided by the employer. The worker reported the incident to the employer at the end of their shift on December 17, 2021 and finished their next shift on December 20, 2021, but had increased symptoms and sought medical treatment on December 23, 2021. The worker advised their current symptoms included clicking and tenderness in their right knee, right ankle and right hip soreness, mid low back pain and pain from their right buttock down to the bottom of their right leg. The worker further advised they were supposed to return to work with modified duties on December 28 or 29, 2021 but did not attend as they were "…still in a lot of discomfort" and were waiting for their treating physician to clear them to return to work.

A copy of the Doctor First Report for the worker's appointment on December 23, 2021 was received by the WCB on January 2, 2022. The treating physician indicated that the worker was seen virtually, and noted the worker reported slipping down stairs that were covered in snow and ice and injuring their right knee and hip, with some pain to their ankles and slight back pain. The physician noted the worker reported they finished their shift then returned the following Monday but felt pain. When asked, the worker advised the physician they had difficulty moving and a slight antalgic gait but no bruising. The physician recommended the worker remain off work until December 24, 2021, and could return on December 27, 2021 at regular duties, if tolerated. A diagnosis was not provided.

The worker attended a virtual follow-up appointment on January 6, 2022, reporting they remained off work due to ongoing pain to their right knee, right hip and low back. It was noted that the pain appeared to be worse in the lateral area of their right knee and there was no swelling. The physician recorded the worker intended to return to their full regular duties on January 10, 2022, was doing their own stretches at home, and was taking over the counter medication for pain. A diagnosis of a right knee sprain with hip pain was noted, and physiotherapy was recommended.

At a further follow-up appointment on January 13, 2022, the treating family physician noted the worker reported they were not ready to return to work due to right knee pain and instability. The worker advised the physician they were using a treadmill and stair climber for at least five minutes per day, and doing home stretches but were concerned about the instability in their right knee. After examining the worker, the treating family physician noted the worker's right knee was "…tender lateral to patella and lateral joint line…" and had slight swelling with negative ligament testing. Pain on full extension and when squatting was noted, along with tenderness in the medial area of the worker's right ankle. The treating physician provided the diagnosis of a right knee sprain, recommended physiotherapy and pain medication and recommended the worker remain off work for another week, with a reassessment at that time for a return to work on light duties. On January 24, 2022, the worker was advised their claim was accepted and the payment of various benefits commenced.

The worker attended a further follow-up appointment with the family physician on January 26, 2022, and was referred for an MRI to rule out a meniscal injury. It was noted the worker could return to work on February 1, 2022 with restrictions of light duties, including a weight restriction of occasionally up to 20 pounds, frequent up to 10 pounds; occasional/frequent lifts; frequent walk/carry – ie 1/3 to 2/3 of a shift. On February 4, 2022, the worker advised the WCB they would be returning to work on February 7, 2022 for a 10 day assignment.

The worker underwent an MRI on their right knee on February 16, 2022. The MRI indicated complex irregular tearing of the medial meniscus with flipped fragments; tear of the anterior horn of the lateral meniscus; and osteoarthritis, noted to be mild-moderate in the medial compartment and mild in the patellofemoral and lateral compartments.

On February 25, 2022, the worker saw their family physician for a further follow-up appointment and to review the MRI results. The physician noted the worker worked two weeks of regular duties, not modified duties but had improved right knee pain and swelling. Minimal swelling, full range of motion and ability to squat, with normal ligaments was noted on examination. The physician recommended the worker continue to work regular duties as they were able to do so and referred the worker to an orthopedic surgeon.

In a conversation with the WCB that same day, the worker advised they missed work on February 17 and 18, 2022 due to pain in their right knee and were seeking further medical treatment. In an email from the worker dated March 14, 2022, the worker advised they had not worked since February 16, 2022 as they were awaiting the results of the MRI and "…due to the work related injury."

On March 11, 2022, the worker attended a further appointment with their treating family physician, reporting they experienced increased symptoms in their right knee since their last appointment, and noting they had not returned to work since February 18, 2022. On examining the worker, the treating physician found a "…slight reduction in flexion/extension, tender medial joint line, ligaments intact, positive Mcmurrey (sic)" and noted the worker was wearing a brace on their knee. Restrictions of sedentary level duties with a weight lift maximum up to 10 pounds on an occasional (up to 1/3 shift) frequency, and occasional walk/carry were provided, and it was noted that the worker's referral to an orthopedic surgeon was still pending.

The worker attended an initial physiotherapy assessment on March 24, 2022 and was diagnosed with a meniscal irritation/tear and sprain/strain of their ankle. Restrictions of avoid walking on slippery uneven surfaces and heavy lifting were provided.

At a follow-up appointment with the treating family physician on March 25, 2022, it was noted there were ongoing difficulties with the right knee, and the physician reviewed the worker's job duties with the worker and determined they should remain off work until April 14, 2022.

At a follow-up physiotherapy appointment on April 20, 2022, and a follow-up appointment with the family physician on April 21, 2022, it was recommended the worker remain off work. A physiotherapy discharge report was provided to the WCB on May 5, 2022 noting the worker had "plateaued" and recommending restrictions for the worker of avoiding uneven slippery surfaces for one week.

The worker was seen by the orthopedic surgeon on April 25, 2022. After examining the worker and reviewing the diagnostic imaging, the surgeon opined the worker had "…some early arthritic changes in terms of minor joint space narrowing as well as complex tearing to both the medial meniscus and to a lesser degree his lateral meniscus" and recommended a pain injection, which the worker agreed to and was done during the appointment. The treating surgeon recommended a follow-up in three weeks' time.

On May 5, 2022, the worker's treating family physician noted the worker's right knee flexion was slightly reduced, but with pain on flexion and extension and slight swelling, pain and tenderness both laterally and medially with movement and a positive McMurray test. The physician continued to recommend the worker remain off work, noting the treating orthopedic surgeon had recommended they do so until the follow-up appointment on May 16, 2022.

At the May 16, 2022 follow-up virtual appointment, the worker advised the treating orthopedic surgeon that they had not experienced relief from the April 25, 2022 pain injection and were still finding their knee giving out on them. The surgeon opined the worker had "…grade 2-3 changes to his medial compartment as well as some grade 2 changes to his lateral compartment as well as an MRI that noted mild to moderate chondromalacia to the medial compartment and a likely ACL (anterior cruciate ligament) deficient knee." The surgeon further opined the worker's feeling of their knee giving out was "…likely more functional than true mechanical instability as I do not have any significant concerns from the stability standpoint when I saw him last time in terms of varus and valgus stressing," and recommended an in-person appointment to discuss possible surgical intervention.

On June 6, 2022, the worker attended an in-person appointment with the treating orthopedic surgeon, who advised the worker against arthroscopic surgery but recommended further injections and an uploader brace for their knee. The surgeon further recommended an additional three weeks off work but advised the worker they should progress to modified full time duties, while noting it was "…unclear as to whether or not he will be able to given his osteoarthritic changes." On the same date, the WCB received a call from an athletic supply company requesting approval for the knee brace, which the WCB did not provide.

At the request of the WCB, the worker's file was reviewed by a WCB orthopedic specialist on June 10, 2022. The specialist opined the worker's diagnosis with respect to the workplace accident was a right knee sprain, which had not recovered within the natural history of recovery being six to eight weeks. The specialist went on to opine the worker did not require workplace restrictions for the compensable diagnosis of a right knee sprain, which they had now recovered from, and opined the worker's continued right knee difficulties related to their "…significant pre-existing degenerative osteoarthritis involving both menisci and all articular surfaces." The WCB orthopedic specialist further opined that the worker's treating orthopedic surgeon prescribed the knee brace "…specifically…for advancing degenerative osteoarthritis involving in this case, the medial joint compartment," and as such, was not approved.

On June 21, 2022, the WCB advised the worker it had been determined they had recovered from the workplace accident and their entitlement to wage loss and medical aid benefits would end effective June 24, 2022. The WCB further advised that the brace prescribed by the orthopedic surgeon related to their degenerative osteoarthritis and was not approved by the WCB.

On June 21, 2022, the worker provided a request for reconsideration of the WCB's decision to the Appeal Commission, who forwarded it to Review Office. In their submission, the worker noted they did not have difficulties with their right knee prior to the December 17, 2021 workplace accident, and as a result of that accident, they continued to experience right knee instability with locking and clicking, and required the prescribed knee brace to help with the instability.

On July 25, 2022, Review Office determined the worker was not entitled to a knee brace and was not entitled to wage loss or medical aid benefits after June 24, 2022. Review Office agreed with and accepted the WCB orthopedic specialist's opinion that the orthopedic surgeon prescribed the knee brace for the worker's pre-existing degenerative changes in their right knee and could not establish a causal relationship between the need for the brace and the workplace accident. Review Office further found the worker sustained a strain type of injury as a result of the December 17, 2021 workplace accident, from which they had recovered, and did not find any medical evidence to support the workplace accident aggravated or enhanced the worker's pre-existing degenerative condition.

The worker filed an appeal with the Appeal Commission on August 29, 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 June 29, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA").

Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in section 2 of the GECA to include "…a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Subsection 4(2) of the GECA provides that a federal government employee who is usually employed in Manitoba is entitled to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act of Manitoba (the "WCA").

The Appeal Commission and its panels are bound by the WCA, regulations under the WCA and policies established by the WCB's Board of Directors.

A worker is entitled to compensation under subsection 4(1) of the WCA when it is established that the worker has suffered personal injury by accident arising out of and in the course of employment.

Subsection 4(2) of the WCA 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 WCA provides 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 WCA 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.

The WCB's Board of Directors has established Policy 44.10.20.10, Pre-existing Conditions, which 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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented at the hearing. The worker made an oral submission and responded to questions posed by members of the appeal panel in the course of the hearing.

The worker's position was that they have not recovered from the right knee workplace injury that they suffered as a result of their December 17, 2021 workplace accident and are entitled to further benefits including a right knee brace.

The worker submitted that they suffered a severe injury to their right knee as a result of a serious slip and fall injury at work, which consisted of not only a right knee sprain but also a medial meniscus tear. The worker submitted that the medial meniscus tear is a long-term injury and they experience debilitating ongoing difficulties as a result of that fall.

The worker noted that they had been working the same type of job for over two years before the accident, without difficulty. Since the accident, however, they have restricted range of motion and instability in the right leg, as well as crunching and other associated pain. The worker noted their quality of life and lifestyle have been significantly compromised by this workplace accident and injury.

In response to questions, the worker said they did not deny they had degeneration and would have expected arthritis to be present at their age. They emphasized, however, that they had been working up until the date of the accident, and had not had problems or been compromised in their work by their right knee.

The worker submitted they have always had a strong work ethic, they wanted to return to work as soon as possible and completed all of their treatments, but continued to experience instability in the right knee joint.

With respect to the issue of the brace, the worker submitted that their treating orthopedic surgeon prescribed a right knee unloader brace specifically for the type of injury they suffered.

In conclusion, the worker submitted that they continue to suffer from the effects of the workplace accident and their right knee injury, and their appeal should be granted.

Employer's Position

The employer was represented by legal counsel who provided a written submission in advance of the hearing. The employer's counsel also made an oral submission at the hearing and responded to questions posed by members of the appeal panel.

The employer's position, as outlined by their counsel, was that they agreed with and adopted the reasoning in the Review Office decision, and the worker's appeal should be dismissed.

Counsel referred to the WCB orthopedic consultant's findings in their June 10, 2022 medical opinion in particular, and submitted that those findings were unimpeachable.

Counsel submitted that the worker's diagnosis of a right knee sprain which was accepted by the WCB has resolved. It was submitted that the worker had essentially fully recovered from their sprain-type injury when they were discharged from physiotherapy on April 22, 2022. Wage loss benefits were paid to June 24, 2022, which was well beyond the usual healing time for a right knee sprain.

Counsel noted that it is not disputed that the worker has a pre-existing degenerative condition. Counsel submitted that it is clear that the osteoarthritic conditions in the worker's right knee were not caused by their compensable right sprain injury, particularly as those conditions were identified so close in time to the accident. It was submitted that the medical reports from the treating orthopedic surgeon and the WCB's orthopedic specialist clearly note the worker's condition is degenerative osteoarthritis. It was further submitted that the meniscal tears in the worker's right knee were degenerative in nature.

Counsel also submitted that the accident did not result in an aggravation of the worker pre-existing condition, and the worker's ongoing symptoms of residual pain and loss of function are the result of meniscus tears in the knee which are non-compensable and related to the worker's osteoarthritis.

Finally, counsel submitted that the request for funding of an unloader brace is not a consequence of the workplace injury. Counsel noted that an unloader brace is prescribed for severe degeneration in the knee, and is therefore not necessary or an appropriate medical aid benefit for a right knee sprain.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss and medical aid benefits after June 24, 2022.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity and/or required medical aid benefits beyond June 24, 2022 as a result of their December 17, 2021 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The worker has an accepted claim for a right knee strain injury as a result of their December 17, 2021 workplace accident. It is the panel's understanding that a sprain type injury would typically resolve within six to eight weeks. The panel notes that our understanding in this regard is consistent with what is stated by the WCB orthopedic specialist in their June 10, 2022 opinion. The panel further notes that the worker did not rely at the hearing on an argument that they continued to suffer from a right knee sprain injury. The panel is satisfied, on a balance of probabilities, that the worker's right sprain injury would have resolved by June 24, 2022, or more than six months after the accident, when their benefits ended.

The worker has argued, however, that the accident resulted in a more severe injury, namely a medial meniscus tear.

The panel notes that there is no dispute in this case that the worker has pre-existing conditions in his right knee, as identified on the February 16, 2022 MRI of that knee. The worker has argued that the medial meniscus tearing that is revealed by the MRI was caused or impacted by the workplace accident, noting in particular that they were able to work, and were never compromised by their right knee in their work, up until the time of the accident.

There was some evidence at the hearing that the worker had a basic form of brace for their knee which they wore "off and on" because of the weather and asked for as a "preventative" measure. Following the hearing, the panel requested and received chart notes from the worker's treating family physician and treating orthopedic surgeon. In our review of the chart notes from the family physician, the panel found that there were indications that the worker had experienced problems with their right knee prior to the workplace accident. Chart notes from the family physician relating to an appointment on November 24, 2021 thus note as part of the history that the worker "wears knee brace for R knee; injured hamstring in university; patella is lax." It is further noted that a prescription was provided at that time for "right knee brace for patellar stability secondary to past patellar injury."

Based on our review of the information which was before us at the hearing, the panel also found that there was an absence of clinical evidence to indicate a causal link between the meniscal tear that was identified on the MRI and the workplace accident. Following the hearing, the panel therefore also requested that the treating orthopedic surgeon advise as to whether, in their opinion, the workplace accident impacted the worker's right knee degenerative condition.

In their response to that inquiry, the treating surgeon advised they could not comment on the worker's conditions prior to seeing them on April 25, 2022, but stated that based on the worker's report that they did not have any significant issues or concerns with their knee prior to the accident, it

…would stand to reason that if [the worker] was working well prior to his injury for which he had no issues or concerns. (sic) It is reasonable to conclude that his injury at work falling resulted in exasperation of his pre-existing arthritic changes for (sic) which certainly is not an uncommon event.

The panel has considered the orthopedic surgeon's opinion in this regard, but finds that we are unable to place any weight on that opinion, as we note that it is based on incorrect information and speculative.

In the circumstances, and based on our review of all of the available information, the panel is unable to find that the workplace accident caused, aggravated or enhanced the worker's right knee medial meniscus tear.

Based on the foregoing, and on a balance of probabilities, the panel finds that the worker's compensable right knee injury had resolved and the worker did not have a loss of earning capacity or require medical aid benefits beyond June 24, 2022 as a result of their December 17, 2021 workplace accident. The worker is therefore not entitled to wage loss and medical aid benefits after June 24, 2022.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to a knee brace.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker requires a knee brace to cure and provide relief from their compensable injury.

Given our findings on Issue #1 above, the worker's compensable right knee injury had resolved and the worker was not entitled to wage loss and medical aid benefits after June 24, 2022 as a result of their December 17, 2021 workplace accident, the panel is unable to find a knee brace is required to cure or provide relief from the worker's compensable injury.

The worker's appeal on this issue is therefore also dismissed.

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 22nd day of August, 2023