The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on September 25, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker filed a Worker Incident Report with the WCB on August 23, 2022, reporting injury to their left knee that occurred at work on August 1, 2022 when an object fell onto them, knocking them off the ladder they were standing on and their left leg was stuck between the ladder and floor. The worker attended a local urgent care centre on August 21, 2022 reporting pain in the medial area of their left knee after falling off a ladder and getting their left leg caught 10 days previously at work. An x-ray of the worker’s left knee taken the same date indicated no fracture or dislocation and normal alignment. The attending physician noted slight effusion of the left knee and tenderness along the medial aspect, a positive McMurray test and that the worker walked with a slight limp and diagnosed sprain of the left knee with a possible meniscal tear. The physician recommended one week of light duties and follow up with a sports medicine physician.

When the worker sought treatment from a sports medicine physician on August 22, 2022, they indicated they were unsure of the injury date but noted they were knocked off a ladder and twisted their left knee when they fell due to their leg getting caught between the steps of the ladder. The worker further advised the physician they initially thought they had pulled a muscle in their leg, so they continued working until their symptoms worsened. The worker described pain in the medial and posterior of their left knee that radiated to the medial aspect of their leg to their foot, slight swelling to the left knee, and pain on weight-bearing. On examining the worker, the sports medicine physician noted a suspected osteochondral fracture or bucket handle tear and requested an urgent MRI study. The physician provided the worker with a note removing them from work until September 16, 2022.

On August 26, 2022, the worker confirmed to the WCB how the injury occurred and noted they were in significant pain at the time of the injury but did not feel it was serious and continued to work their regular duties, until their symptoms progressed. The worker explained that when, on August 17, 2022, they tried to move a heavy object at work and could not do so due to pain, they advised their supervisor and have not attended work since that date. The worker advised the WCB that they tried to obtain medical treatment from a walk-in clinic at that time but did not succeed and then went to the urgent care centre on August 21, 2022. The worker confirmed they were working alone at the time of the workplace accident but travelled to and from work with their supervisor.

The supervisor, when contacted by the WCB, advised the worker did not work on August 1, 2022, as it was a holiday, and the incident had to have occurred on August 2, 2022. The supervisor noted the worker had mentioned falling off the ladder to them but did not provide details.

The WCB determined the claim was acceptable and advised the worker.

The MRI study conducted on August 30, 2022 indicated a "Horizontal tear of the medial meniscus with associated parameniscal cyst."

The WCB received the Employer Incident Report, a copy of the employer’s internal incident report and a statement from the worker’s supervisor on September 7, 2022. In the Report, the employer noted there were no witnesses to the incident, and that the worker continued to work shifts after the incident “…showing no signs of injury” and, on August 23, 2022, reported to their supervisor that they had attended a local hospital for x-rays after injuring themselves at work on August 2, 2022. The employer’s internal incident report noted the worker’s report on August 23, 2022 of the August 2, 2022 injury, and the supervisor’s report indicated the worker had advised them on August 23, 2022 that they had injured their knee at work on August 2, 2022 but had not sought medical attention until August 23, 2022.

The worker attended follow-up appointment with the sports medicine physician on September 8, 2022, reporting persistent left knee pain. The sports medicine physician examined the worker and found no swelling but medial joint line tenderness and distal hamstring tenderness and provided an updated diagnosis of a medial meniscus tear and parameniscal cyst on the worker’s left knee, recommending the worker remain off work.

On October 4, 2022, the worker’s claim was transferred to another WCB case manager. On October 12, 2022, the new case manager contacted the employer and advised a further review of the worker’s file was being conducted to determine if the claim was acceptable, noting the employer’s concerns had not been addressed. On October 12, 2022 and October 13, 2022, the employer provided the WCB with a work log for the site where the worker claimed the injury occurred, including photos, for the period from August 3, 2022 to August 12, 2022.

After a further follow-up with the sports medicine physician on October 12, 2022, the worker was referred to an orthopedic surgeon for further treatment.

On October 24, 2022, a WCB medical advisor reviewed the worker’s file and stated that an acute horizontal medial meniscus tear typically results from an injury with a twisting component of the knee, with symptoms including swelling, medial joint line tenderness, decreased range of motion and difficulty weight-bearing on the affected leg, all of which would “…usually lead the affected individual to seek prompt medical attention…”. The WCB medical advisor concluded that an individual with an acute medial meniscus tear likely would be unable to continue performing job duties involving frequent heavy lifting, walking on uneven ground and climbing ladders. The medical advisor went on to note that the August 30, 2022 MRI study indicated “…findings of extrusion of the left knee medial meniscus and a parameniscal cyst…” and stated these findings likely existed prior to the workplace accident. The WCB medical advisor noted “Extrusion refers to flattening of the meniscus that occurs over a period of years following a meniscal tear” and that parameniscal cysts “…generally take months to develop following a meniscus tear…”. On October 25, 2022, the WCB case manager advised the worker the initial decision of the WCB adjudicator was overturned and the claim was not acceptable as the WCB could not establish the worker sustained an injury to their left knee at work, taking into account the medical evidence on file, and the delay in reporting the incident and seeking medical treatment.

On January 23, 2023, the worker provided the WCB with an email message from their supervisor setting out that the worker had advised them of their knee difficulties due to an incident at work, and noting the worker had only been working for a short time and was afraid of losing their employment if they reported the incident. On the same date, the WCB advised the worker the new information was reviewed but there would be no change to the earlier decision their claim was not acceptable.

The worker requested reconsideration of the WCB’s decision to Review Office on February 16, 2023. On April 5, 2023, the employer provided a submission in support of the WCB’s decision to deny the worker’s claim, a copy of which was provided to the worker on the same date. The worker provided a response on April 26, 2023, noting they injured their knee at work and sought medical treatment when the symptoms advanced to where they could no longer work.

Review Office found on April 28, 2023 that the worker’s claim was not acceptable. Review Office relied upon the opinion of the WCB medical advisor that if the worker sustained an acute meniscal tear on August 2, 2022, they would have sought medical treatment prior to August 23, 2022 due to the symptoms. As such, Review Office found the file evidence did not support the worker sustained an injury arising out of or in the course of their employment on August 2, 2022.

The worker’s representative filed an appeal with the Appeal Commission on June 5, 2023. A hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. The Act defines accident, in s 1 as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

The Act requires in s 17(1) that a worker injured by accident shall provide notice of their injury and the circumstances of it to the employer “as soon as practicable” but in any case within 30 days of the date of accident.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission to the panel in support of the worker’s appeal, and the worker provided testimony in the hearing through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that as a result of a fall from a ladder at work in early August 2022, they sustained injury to their left knee which required medical treatment, and therefore, their claim should be accepted.

The worker advisor submitted that the evidence establishes that the worker sustained an injury arising out of and in the course of their employment on a date after August 2, 2022 and before August 17, 2022 and that the worker advised their supervisor of their injury and continued with light duties provided by the supervisor after that until August 17, 2022 when the worker’s symptoms increased to the point where they decided they needed to seek medical treatment.

The worker advisor noted that although the worker did not initially report the accident to the WCB, they did advise their supervisor that they hurt their knee, which resulted in the offered modified duties and they also reported the details of the accident to the treating medical providers on seeking treatment. The worker advisor submitted that the worker reported their accident and injury within 30 days as required by the Act.

The worker advisor noted that the reported mechanism of injury is consistent across the various medical reports, although there is confusion as to the date of injury. The worker advisor submitted that the panel should rely upon the reporting most proximal to the likely date of injury, which is the medical reporting of August 21 and 22, 2022. The August 21, 2022 medical report indicates the worker stated they fell from a ladder approximately 10 days earlier, and the August 22, 2022 report indicates the worker fell approximately August 12, 2022. Furthermore, the worker advisor noted the absence of any evidence that the worker was not capable of performing their regular job duties before they sustained this injury to their knee.

The worker explained to the panel in their testimony that they were reluctant to report an accident to their supervisor within weeks of starting their job as they had been off work for some five years when they got the job. Furthermore, the worker indicated that they initially believed that the injury was minor and that they could “walk it off”. The worker testified to self-treating their symptoms arising from the fall with opioid-based pain relief medication that they had on hand at home.

Having reference to the work logs and photos submitted by the employer to the WCB, the worker testified that the injury occurred while doing the job pictured in the logs for August 8 and 9, 2022. The worker testified that they did not work on August 10, 2022 as there was no work available that day, and they believe they were already injured at that time. The worker also recalled that they were working light duties in the work pictured in the logs for August 11-12, 2022. The worker testified that after August 12, 2022, the next working day was August 16, 2022. The worker described that on August 17, 2022 they tried to move something heavy while at work and had to squat to lift it but could not do so because the pain was too severe. It was this event that caused the worker to seek medical attention. The worker noted that they tried without success to see a doctor at two walk-in clinics before going to the urgent care department of a hospital on August 21, 2022. At that time, the worker testified, they did not have a family doctor.

The worker testified that they had no symptoms before the fall off the ladder in early August 2022 and noted that one of the first tasks they did for the employer at this site involved working on a scaffolding, which took place over the course of a week and required the worker to be able to climb up and down from the scaffolding multiple times each day. After the injury occurred, the worker stated that they were unable to climb.

Employer’s Position

The employer did not participate in the hearing.

Analysis

This appeal arises from the WCB’s decision that the worker’s claim is not 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 employment. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The worker’s position is that the evidence confirms they sustained an injury to their knee in early August 2022 when they fell while on a ladder at work. The worker testified to immediately feeling pain in their knee, which they treated with opioid-based pain relief medication that they already had on hand at home. The worker testified they noted swelling a few days later and that when they advised their supervisor that they hurt their knee, they were provided with light duties that did not involve heavy lifting or climbing. The panel reviewed the medical information from August 21 and 22 and noted that the worker presented with pain to their left knee and was walking with a limp. Initial findings on August 21, 2022 included slight effusion on the knee, tenderness along the medial aspect and a positive McMurray test. The physician noted a diagnosis of sprain with possible meniscal tear. On August 22, 2022, similar findings were noted at the sport medicine clinic and the worker received a diagnosis of suspected osteochondral fracture or bucket handle tear. On the basis of the medical reporting, the panel is satisfied that the worker sustained an injury to their left knee in August 2022.

The panel noted that the adjudication of this claim was complicated by confusion as to the exact date of injury. While the WCB claim form indicates the injury occurred on August 1, 2022, the employer confirmed the worker was not at work that day, and therefore, suggested the injury occurred on August 2, 2022. The panel further noted that the evidence most proximate to the date of injury is contained in the initial medical reporting. On August 21, 2022, the worker indicated to the medical providers that they hurt their knee 10 days earlier and on August 22, 2022, the worker indicated to the medical providers that they hurt their knee approximately August 12, 2022. The worker testified in the hearing that they recall hurting their knee while working on the job that the work log materials provided by the employer indicate took place on August 8 and 9, 2022 and further that the jobs they did as described in the log for August 12, 2022 were light duties as provided by the supervisor. The panel accepts the worker’s testimony, and we are satisfied that although the worker did not immediately report the circumstances of their injury to the employer, the worker did hurt their knee upon falling off a ladder at work at some point between August 2, 2022 and August 12, 2022. The panel accepts the worker’s description of how that injury occurred and we are satisfied that the worker was engaged in their job duties at the time the injury occurred.

Although the WCB determined that the worker could not have sustained an injury to their knee as described in the medical reporting, and continued working, the evidence before the panel confirms that this was indeed the case. The panel accepts the worker’s testimony that they were able to continue working because they relied upon pain relief medication and because their supervisor provided them with lighter duties until their symptoms increased on August 17, 2022, which led the worker to seek medical treatment and resulted in their removal from work due to the injury. The evidence confirms that after the injury, the worker’s supervisor, who knew that the worker had somehow hurt their knee, offered the worker duties that did not involve climbing or carrying heavy loads. We are further satisfied that the evidence indicates the worker’s supervisor provided modified duties to the worker after the injury occurred and until August 17, 2022 although the supervisor may or may not have been aware of how the worker’s injury occurred.

The panel considered the worker’s testimony that after working in the industry since they were young, primarily in the family business, they were unemployed for some 5 years immediately before they obtained this job with the employer just a few weeks before the injury occurred. As such, we accept that this worker was motivated to continue working despite their injury and to avoid reporting a workplace accident, if possible, for fear of losing their employment. This provides an explanation for the delay in seeking medical attention and in reporting the injury to the WCB. The panel noted, however, that the worker did report the circumstances of their injury to the employer within 30 days of the event as required by the Act.

The medical evidence from the treating orthopedic surgeon lends support to the worker’s position that they may have had a pre-existing but asymptomatic degenerative or other condition in their left knee which was aggravated or enhanced by the acute injury in the workplace. The panel noted, however, that there is a lack of evidence that the worker was unable to meet the physical demands of the job prior to their injury and being offered light duties, and we accept the worker’s evidence that when they started the job, they spent the first week on duties that required working on a scaffolding, with the necessary ability to climb up and down that structure multiple times daily. As such, we find that the evidence supports that the worker was capable of doing their job until the injury occurred. While the WCB medical advisor discounted the possibility of an asymptomatic pre-existing left knee condition, the panel noted that the medical advisor did not consider that the worker was taking an opioid-based pain relief medication and undertook only light duties after the injury occurred, nor did the medical advisor take into account that this worker, having just started their job after some five years of unemployment, was very motivated to keep working and earning an income in spite of the pain in their knee resulting from the fall. The panel also noted that there is a lack of evidence of any other cause for the worker’s left knee injury than the incident claimed by the worker.

On considering the totality of the evidence before us, and applying the standard of a balance of probabilities, the panel is satisfied that the worker was injured as a result of an accident arising out of and in the course of their employment. Therefore, the worker’s claim is acceptable, and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of October, 2023