The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker’s claim is acceptable. A hearing was held on August 7, 2024 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On February 21, 2023, the WCB received a report from a local hospital’s emergency department, regarding the worker’s attendance on January 5, 2023 for a painful right knee. The worker reported to the attending physician they had injured their right knee that morning while at work when they lost their balance and twisted their knee. The worker indicated that they felt an acute onset of right lateral knee pain and were unable to bend their knee or weight bear. Upon examination, the physician noted no obvious bruising or swelling, zero to 20 degrees range of motion and tenderness over the lateral joint line. The treating physician queried a possible meniscal tear and recommended an x-ray to rule out a fracture. The x-ray taken on the same date confirmed there was no fracture present. It was recommended the worker remain off work for a week and the worker was referred to an orthopedic surgeon. The worker was seen by their family physician on January 30, 2023, reporting an injury to their right knee joint following an injury at work on January 7, 2023. It was noted the worker had a follow-up appointment with an orthopedic specialist and an MRI study pending. On February 21, 2023, the worker’s treating family physician referred the worker to an orthopedic surgeon for further treatment, noting the MRI study had found a “…radial tear of medial meniscus and subtle tear of the lateral meniscus.”

A Worker Incident Report was provided to the WCB on October 30, 2023. The worker reported that they injured their right knee on January 5, 2023 and stated:

I was working and tried to fix a loose screw. When doing a side step trying to avoid a metal table, I heard a crack in my knee. After that, I could barely step anymore. I called attention to my supervisor first, and they didn’t think it would swell that fast. It was swollen so I went to emergency by myself.

On the same date, the WCB contacted the worker to discuss their claim. The worker advised the WCB that the injury occurred around 7:30am on the morning of January 5, 2023, when they stepped to avoid the table, and twisted their right knee stepping around the table. They noted they heard a crack and felt immediate pain and swelling in their knee, which they reported to their supervisor. The worker left work to seek medical treatment at a local emergency department. The treating physician took an x-ray, placed their knee in a splint and recommended they remain off work for a week. The worker advised that they attended a follow-up appointment with an orthopedic specialist approximately two weeks later and were referred for an MRI. The worker confirmed the MRI was conducted on May 31, 2023. When asked by the WCB why they waited so long to report their injury to the WCB, the worker stated they were waiting for the results of the MRI study and then were advised by their treating physician they would require surgery related to the January 5, 2023 workplace injury. The WCB advised the worker further information gathering would be required.

A copy of the May 31, 2023 report from the worker’s treating orthopedic surgeon was received by the WCB on November 2, 2023. The report noted the worker’s reporting of “…trying to step to the side to move a part around and caught their foot on a rail or a footing and ended up twisting around and putting their knee into a valgus-type of position” resulting in an immediate sore and irritated knee. The surgeon recorded the worker’s reporting of pain when flexing their knee to go into a kneeling position, or when attempting stairs. Upon examining the worker, the surgeon indicated some medial discomfort on McMurray’s testing, lateral-sided discomfort, with a small amount of discomfort with patellofemoral grind testing. The surgeon reviewed the February 17, 2023 MRI study which indicated:

1. Radical tear through the posterior root of the medial meniscus. 

2. Possible subtle peripheral vertical tear of the lateral meniscus. 

3. Strain injury of the medial gastrocnemius origin. 

4. Large knee joint effusion. Multiloculated cyst in the popliteal fossa could be a synovial cyst or potentially a parameniscal cyst dissecting from one of the meniscal tears. 

5. Moderate chondromalacia at the patellar apex.

The surgeon opined the worker’s symptoms were primarily from the medial meniscal root tear and recommended surgical repair.

On November 14, 2023, the employer provided the WCB with an Employer Incident Report. The employer indicated on the Report that the worker approached their supervisor on January 5, 2023 and reported they injured their right knee on a treadmill at home on the weekend and requested to leave work as their knee was bothering them. The employer noted they did not immediately report the injury to the WCB as it was reported to them as a non-work-related injury. The WCB contacted the employer on the same date and spoke with the worker’s supervisor. The supervisor confirmed the worker came to them to report they hurt their knee and could not continue to work. The supervisor asked the worker to go to the staff lunchroom, at which time, the worker reported they fell on their treadmill at home the night before, hitting their right knee and they were having difficulty walking. The supervisor also confirmed an incident report was not completed that day as the worker reported they had been injured at home, not at work. Also on the same date, the WCB contacted the worker to advise of the employer’s reporting of the injury happening at home. The worker advised the WCB they had not injured their knee on a treadmill at home prior to January 5, 2023.

The worker’s file was reviewed by a WCB medical advisor on November 28, 2023. The advisor opined the worker’s treating orthopedic surgeon noted the worker’s reporting of a “…symptomatic medial meniscus tear…”. A “minor degree” of pre-existing age-related degeneration of the worker’s right knee was also indicated on the February 17, 2023 MRI study. On November 29, 2023, the WCB advised the employer that the worker’s claim was accepted for a workplace accident on January 5, 2023. Wage loss benefits for January 6, 2023 to January 12, 2023 were paid to the worker on December 1, 2023. A further review by a WCB medical advisor took place on December 7, 2023, and on December 11, 2023, a surgical authorization letter was provided to the worker’s treating orthopedic surgeon. The worker underwent a right knee scope and debridement, medial meniscectomy and medial meniscal root repair on December 8, 2023 and was placed back on full wage loss benefits by the WCB.

The employer requested reconsideration of the WCB’s decision to accept the worker’s claim to Review Office on January 3, 2024. The employer submitted that the worker had advised their supervisor their knee hurt, not that they had hurt their knee at work and that they had fallen the previous evening at home on their treadmill. The employer also noted the worker had reported inconsistent mechanisms of injury for how their right knee injury occurred. The employer presented the argument that the worker had not injured their knee at work and as such, their claim should not be accepted by the WCB. On January 18, 2024, the Review Office determined the worker’s claim was acceptable. The Review Office found the medical evidence supported the worker attended for medical treatment on January 5, 2023, reporting a work-related injury to their right knee and further found the employer’s reporting the worker went to work that day with a previous injury was unsubstantiated. The Review Office accepted the worker’s explanation they did not initially seek a WCB claim until they received further medical treatment and found the delay in pursuing a WCB claim did not change that the worker sustained an injury in the course of their employment.

The employer’s representative filed an appeal with the Appeal Commission on April 17, 2024 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 November 18, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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. The provisions of the Act in effect at the time of the accident are relevant.

The definition of an accident set out in section 1(1) of the Act includes “a chance event occasioned by a physical or natural cause” or “an event or condition, or a combination of events of conditions, related to the worker's work or workplace” as a result of which a worker is injured. When it is established that a worker has been injured as a result of an accident as defined by the Act, the worker is entitled to benefits under section 4(1) of the Act.

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under section 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in section 39 of the Act, or medical aid to cure and provide relief from injury arising out of a compensable accident, as provided under section 27 of the Act.

The WCB acknowledges that workers who experience a workplace injury may also have a pre-existing condition and has therefore established Policy 44.10.20.10, Pre-Existing Conditions, to define a pre-existing condition and to explain the principles governing payment of compensation for an injury when the worker has a pre-existing condition (the “Pre-ex Policy”). The Pre-ex Policy explains that a pre-existing condition may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Under the Pre-ex Policy, when a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.

The WCB has also established Policy 44.05, Arising Out of and in the Course of Employment, which outlines the process the WCB uses to determine whether an accident is related to the employment (the “Arising Policy”). The Arising Policy sets out that a worker’s accident arises in the course of their employment when it occurs at or during work. In determining whether a worker's accident arose in the course of employment, the WCB generally focuses on evidence regarding the time and location of the accident.

Worker’s Position

The worker did not participate in the hearing.

Employer's Position

The employer was represented at the hearing by their legal counsel and the co-owner/director of finance. A witness, the employer’s director of research and new product development, also attended the hearing on behalf of the employer. The witness provided testimony through answers to questions posed to them by the employer’s legal counsel and by members of the appeal panel. The employer’s representative also posed questions to the co-owner/director of finance who provided testimony at the hearing.

The employer’s representative made an oral submission in support of the appeal and relied upon the written submission provided to the Appeal Commission in advance of the hearing.

The employer’s position is that the evidence does not support a finding that the worker suffered a workplace injury. The employer also notes the inconsistencies in the worker’s description of the injury, the delay in reporting and the witness’ testimony that the worker indicated that an injury occurred on a treadmill at home. For these reasons the employer states that the worker’s claim should not be acceptable.

The employer outlined that the worker had arrived at work on January 5, 2023 and shortly thereafter informed their supervisor that they had hurt their knee and was told to go to the lunchroom. The employer submits that the worker spoke to their supervisor and other co-workers in the lunchroom and indicated that they had hurt themselves at home. As a result of those conversations, it was determined that the injury was not work related and the worker was sent home for the day.

The employer noted that they were contacted by the WCB in early November 2023 and advised of the worker’s claim, the employer indicated that this was the first they were hearing of the worker’s claim.

The witness indicated during questioning that the worker was seated in the lunchroom and that the worker told the witness that they had hurt themselves on a treadmill on the weekend. The witness later stated that the worker said they had aggravated their knee on a treadmill at home.

In their submission, the employer pointed out discrepancies and inconsistencies in the claim file information, including the following:

- The reporting of a workplace and a non-workplace injury; 

- The mechanism of the workplace injury is described in several different ways; 

- The worker states that they reported that their knee was sore to their supervisor but the supervisor’s statement is consistent with that of the witness present at the hearing; 

- The witness states that the worker told co-workers on January 5, 2023 that they hurt their knee using their treadmill; 

- The worker goes to the hospital the same day and reports that the injury was a workplace injury; 

- The worker has an appointment with their treating general practitioner on January 30, 2023 and reports that the injury again is due to using the treadmill; 

- The worker receives a referral to an orthopedic surgeon and tells the surgeon on June 5, 2023 that they were injured at their workplace; and 

- The worker reports the injury to the WCB on October 30, 2023 (10 months after the incident).

The employer notes that there was no witness to the workplace injury and submits that the evidence before the panel is that the worker told co-workers that it was not a workplace injury.

The employer is seeking that the decision of the Review Office be overturned and that the Appeal Commission find that there is no compensable injury that took place on January 5th, 2023.

Analysis

The issue before the panel is whether or not the claim is acceptable. In order to find in favour of the employer, the panel must determine that the worker was not injured as a result of an accident arising out of and in the course of their employment. The panel was unable to make that finding, as outlined in the reasons that follow.

The panel has reviewed the medical information on file, and notes that when the worker first sought medical attention, they indicated that the pain to their knee was due to a workplace injury.

The panel is of the view that the differences in the descriptions of the mechanism of the injury are not significant enough to cause the panel to doubt the worker’s credibility. The panel finds that the inconsistencies can be explained due to differences in relaying of details to different individuals and of their own note taking. The description of stepping or twisting laterally is consistent. The panel also notes that the worker was at a different workstation than they usually worked at when the injury occurred.

The panel is satisfied that the inconsistencies in the reporting of the injury are due to the worker being uncertain as to what caused the knee pain. The worker advised their general practitioner on January 30, 2023 that the pain to their knee started at home using the treadmill but got worse after they “sprained their knee at work.” The panel is also of the view that the worker’s uncertainty as to the cause of their knee pain may have caused the delay in reporting their injury to the WCB.

The panel notes that there was no witness to describe the worker’s appearance or gait when they arrived at work, and no witness to the injury at work. The panel further notes the witness stated that the worker had “aggravated” their knee on a treadmill at home.

The panel finds that the worker injured their knee on their treadmill and this injury was enhanced as a result of the incident at work on January 5, 2023. The medical evidence supports that the worker's knee condition was permanently worsened because of the workplace injury..

On a balance of probabilities, the panel finds that the evidence supports that the worker’s knee issues were enhanced by the acute event of twisting their knee while working on January 5, 2023. We find the enhancement of a non-compensable condition to be an injury that occurred a result of an accident arising out of and in the course of the worker’s employment, and therefore the claim should be accepted.

The employer’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. MacKay, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of January, 2025