The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

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

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Worker’s Position

The worker was self-represented at the hearing and was accompanied by a co-worker. The worker's evidence was that on October 18, 2011, he was performing property inspections. This involved walking over rough and challenging terrain in order to assess the structural integrity of buildings. He started the day in really good condition with no previous problems. By the end of the day, he could no longer work. During the day, he fell and received pain to his left knee and lower back. He described feeling a "warm spur" in his lower back which went up the centre of his back. The pain increased to the point where he could not continue working so he then traded positions so that he stayed in the vehicle while his partner did the walking.

At the hearing, the co-worker confirmed that on the day of the accident, the worker advised him that he thought he hurt both his knee and his back.

The worker expressed frustration with the handling of his claim and indicated that he was hurt on the job and should be eligible for compensation. He sought medical attention and complained, but the people involved with his claim just automatically thought it was his old injury of the left knee. He tried to contact the WCB about extreme pain in his lower back and left leg but his calls were not returned. The worker felt that the focus was all on his previous injuries and he was not properly investigated to find out his real problem.

Employer’s Position

The employer was represented by its WCB coordinator and a human resource consultant. The employer supported the current decisions made by the WCB. The employer did not question the fact that the worker was injured while in the course of employment. There were multiple descriptions on file of a mechanism of injury where the worker twisted his knee and the employer accepted this. With respect to the back, there was no comment on the file about the worker having a fall. It was noted that the focus of the medical documentation was on the knee without mention of the back until some time later. It was submitted that it was difficult to make a connection between the workplace accident and the back condition since it was not presented through the medical documentation or through the description of injury documented on the file.

With respect to the knee, the employer noted that the medical reports indicated that the problems were related to the worker's previous condition and it was hoped that the WCB would be taking a serious look at the worker's 2007 claim with respect to the worker's ongoing issues.

The employer stated that the worker was a valued employee and that it would continue to support and accommodate the worker in his return to the workplace regardless of the outcome of the appeal.

Analysis

The issue before the panel is whether or not the worker's current left knee and low back difficulties are related to the October 18, 2011 compensable injury. In order for the appeal to succeed, the panel must find that the worker's ongoing difficulties with his left knee and low back were caused by the injury he suffered in the course of his employment on October 18, 2011. On a balance of probabilities, we are not able to make that finding.

The worker's low back difficulties consist of pain in his low back which radiates down the left leg with paresthesias and some dysesthesias in the foot. He has weakness of his hip flexors. In May 2012, he was diagnosed by his attending physician as having a herniated L4-L5 disc with associated significant L4 sciatica. After considering the file material and the testimony given by the worker at the hearing, the panel finds that there is not sufficient evidence of radiculopathic back difficulties arising in October 2011 to satisfy us that the worker suffered the L4-L5 disc injury on the date in question. In particular, we note the following:

• The Doctor's First Report dated October 21, 2011 refers only to the left knee as the area of injury. There is no mention of complaints of back pain. Although the worker's evidence at the hearing was that the doctor ignored his back injury and just wanted to prescribe him painkillers for his knee, the panel notes that the Worker Incident Report and the Employer's Accident Report, both dated October 24, 2011, also make no mention of an injury to the back.
• There is some early reference on the WCB file to hip pain, but the panel feels that this is different from the sharp radiating pain and numbness/tingling down the left leg to the foot which is characteristic of a lumbar radiculopathy.
• At the hearing, when asked to describe his back pain in the evening on the day of the accident, the worker's evidence was that his back was "sore." He could not sleep and his back was "discomforting". He likened it to somebody putting a marble underneath your back while you are lying down. Lying flat on his back really hurt with a dull pain.
• Review of a previous 2007 WCB claim file produced a letter dated November 28, 2011 from a treating chiropractor. The letter indicates that on October 4 and 17, 2011, the worker attended the chiropractor with a chief complaint of right sacroiliac and right hip pain. The second visit was just the day before workplace accident. In the panel's opinion, this better explains the generalized symptoms of "soreness" that the worker testified he was experiencing in his back, rather than having suffered a disc injury.
• It is clear that the more pronounced radiculopathic symptoms attributable to a L4-L5 disc herniation did not appear until much later. On April 25, 2012, the worker attended at an emergency room reporting a one week history of left leg pain, sharp, worse with any ambulation. The pain was radiating down the left leg. A CT Scan was performed which revealed an enlargement of the left L4 nerve root which eventually led to the worker's diagnosis of a herniated disc with sciatica.
• The panel does not accept the worker's assertion that the Tylenol #3 narcotic mediation he was taking would have masked his low back symptoms. While this painkilling medication may have been of some benefit, we do not accept that it would have eliminated all of the neurologic pain.
• While the panel acknowledges the statement by the worker's chiropractor that "an L4 nerve root compression can refer severe pain to the knee", we do not accept that the report of knee pain made by the worker immediately following the accident were indicative of an L4 nerve root compression. The pain reported was very localized to the lateral compartment and there were clinical findings of swelling in the left knee, which would be characteristic of a strain injury. The worker did not report the more distinctive sharp radiating pain down the left leg with abnormal sensations in the foot, which would be expected with a nerve root compression injury.

Overall, the panel finds that there is a temporal gap between the date of accident and the worker's complaints of a lumbar radiculopathy. As such, we find that the evidence does not support a causal link between the worker's current low back difficulties and the workplace accident of October 18, 2011.

With respect to the worker's left knee difficulties, it is clear that the worker had a significant previous condition affecting his left knee. He had been involved in a workplace accident in 2007 where he fell approximately 12 feet from a ladder and suffered fracture to his left wrist, knee, ankle and face. As a result of that fall, he had posttraumatic osteoarthritis of the knee. At the time of the workplace accident, the osteoarthritis was not problematic.

Looking at the medical reports immediately following the accident, the Doctor's First Report noted a diagnosis of "(1) lateral meniscus tear ?? of left knee or (2) knee sprain left." The next report dated November 4, 2011 indicated that the swelling of the left knee had subsided, tenderness of the lateral ligament had decreased, range of motion was normal and that the McMurray test was positive. The pain was much improved.

When seen by an orthopaedic surgeon on November 29, 2011, the worker was reported to have issues with his lateral compartment. There had been complaints of clicking, but this had dissipated with time. McMurray test was now negative, but patellar grind was producing some mild discomfort.

The medical information was reviewed by a WCB medical advisor on May 27, 2012. She noted that while the initial diagnosis was of a lateral meniscus strain, by November/December 2011, there were no longer any findings of a meniscus strain, so she opined that the effects of the compensable injury had resolved. The worker's ongoing left knee complaints involved problems with the patella. The WCB medical advisor felt that these complaints were related to the past injury of the patella and were not part of the October 18, 2011 injury. The panel accepts the WCB medical advisor's opinion. The medical reports immediately following the accident clearly identify issues with the lateral meniscus and make no mention of patellar findings. The patellar grind was noted to cause mild discomfort by the orthopaedic surgeon in November 2011, but posttraumatic osteoarthritis is a progressive condition and we find that the worker's ongoing complaints are attributable to the natural progression of this previous degenerative condition.