WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100032
OBJECTION BY: Employer
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
ISSUE
Initial entitlement and the payment of benefits in the claim.
HOW THE ISSUE ARISES
On July 20, 2009, the worker, a 40 year old nurse, was walking during the night shift when at about 11 p.m. she quickly turned left while her left leg was planted on the floor. This resulted in immediate pain in her left knee. She completed her shift in the morning and went home to bed. When she woke up, she was unable to straighten her left knee and had pain on weight bearing.
The worker worked on the orthopaedic floor. She was given modified duties on July 27, 2009, her next scheduled shift. During the shift, the left knee pain and swelling increased. She attended the emergency department the next day and was diagnosed with an MCL strain and medial meniscus injury. She was authorized off work for the remainder of the shift and the next day. She returned to modified duties on August 1, 2009, her next scheduled shift.
The worker saw Dr. Sanders, orthopaedic surgeon on August 4, 2009. He noted that she was working with crutches but this was not working well. He arranged for diagnostic testing including an MRI to examine the soft tissues of the knee and a Doppler to rule out a blood clot. Modified duties were not offered noting the possibility of a blood clot. The blood clot was ruled out but further modified duties were not offered. She understood from the employer that modified duties were not offered because Dr. Sanders was concerned about the swelling.
The worker saw Dr. Sanders again on September 1, 2009. A meniscal tear was ruled out. She was diagnosed with a medial gastrocnemius tear as shown on MRI. The worker returned to modified duties effective September 2, 2009 and graduated her hours of work over time.
Partial benefits were paid on July 28, 2009. Full benefits were paid for the period July 29, 2009 to August 3, 2009 inclusive. Partial benefits were paid on August 4, 2009. Full benefits were paid for the period August 5, 2009 to September 1, 2009 inclusive.
The employer objected to the allowance of the claim on the basis that the worker’s entitlement arose out of walking which should not have been accepted as an injury. A Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision was provided in support of this. The adjudicator noted that WSIAT decisions do not set precedent. She was satisfied that the merits of this case supported the allowance of initial entitlement. The worker representative was advised by letter dated November 24, 2009 that initial entitlement and the payment of health care benefits and loss of earnings benefits were in order.
AUTHORITY
11-01-01 Adjudicative Process
11-01-04 Determining the Date of Injury
11-02-01 No Lost Time
11-02-02 Lost Time Claims
15-02-01 Definition of an Accident
15-02-02 Accident in the Course of Employment
RESOLUTION METHOD & PROCESS
A 60 day option form was completed requesting an expedited decision using the information in the claim.
ASSESSMENT OF THE EVIDENCE
The Employer’s Position
The letter dated August 12, 2009 set out the employer’s objection to the allowance of entitlement in this claim.
The employer representative noted that walking is an ordinary fact of life. This includes turning and stopping. In this case, there was no employment factor or external event that caused the injury. It was argued that there was no accident which arose out of the employment. WSIAT decision 900/06 was provided to support that entitlement should not have been granted for this injury.
Policy
Section 2(1) of the Workplace Safety and Insurance Act (the Act) states:
In this Act, “accident” includes,
(a) a wilful and intentional act, not being the act of the worker
(b) a chance event occasioned by a physical or natural cause, and
(c) disablement arising out of and in the course of employment
Section 13(2) of the Act states:
Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of employment and, where the accident occurred in the course of employment unless the contrary is shown, it shall be presumed that it arose out of employment.
In the case of a chance event such as a trip or a fall, section 13(2) applies. In the case of a disablement, it is not clear that the accident arose out of or in the course of employment. There must be evidence that demonstrates that the disablement arose out of and in the course of employment. A causal relationship must be demonstrated between the work being performed and the disablement.
A disablement is a condition which emerges gradually over time or as an unexpected result of working duties. Entitlement is accepted as an unexpected result of working duties when there is a sudden onset of pain with a specific lift, twist, turn or straining motion while performing regular work activities.
In cases where the compatibility of the diagnosis to the accident history is not obvious, the adjudicator seeks the opinion of a medical adviser.
Analysis
Section 119 of the Workplace Safety and Insurance At indicates that:
(1) The Board shall make its decision based on the merits and justice of a case and it is not bound by legal precedent.
(2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.
WSIAT decisions can provide a helpful analysis which may influence how an appeal is decided. They do not set precedent or directly impact on the decision making process.
I was not persuaded the WSIAT decision that was referenced applies to this case, as it appears that entitlement was granted for a chance event in that decision. In this claim, entitlement was granted as an unexpected result of working duties. Entitlement is accepted as an unexpected result of working duties when there is a sudden onset of pain with a specific lift, twist, turn or straining motion while performing regular work activities.
In this case, entitlement was accepted for a turn of the knee while the foot remained planted which wrenched the knee. I am satisfied that this wrenching motion could result in injury. This occurred when the worker realized she forgot something at the nurses’ station and she turned quickly to the left. I am satisfied that this injury arose out of and occurred in the course of this worker’s employment.
I reviewed the medical reporting for any evidence that the attending doctors did not find the injury compatible with the reported accident history. I note the suspected diagnosis of meniscal tear was not confirmed but there is no indication that the confirmed gastrocnemius tear was related to anything other than the twisting incident at work.
I also considered that the medical report by Dr. Sanders, orthopaedic surgeon dated September 1, 2009. This noted that the worker’s job involved a lot of lifting, carrying and bending, twisting, squatting, climbing etc. Given these physical demands, he recommended against returning to this work for another 4 weeks.
Physical exertion can fatigue the muscles of the body and predispose a worker to muscle injury. I accept that a gastrocnemius tear is compatible with a twisting injury to the knee and that the worker’s duties as a nurse on the orthopaedic floor may have fatigued the muscles of the leg and contributed to this.
The medical reporting in the claim supports that the worker required health care treatment which included medication, crutches and physiotherapy. The medical reporting also supported that the worker remain off work pending diagnostic investigation by MRI and Doppler. Modified duties were not available to the worker during the period August 4, 2009 to September 1, 2009 given the medical reporting. Therefore, I am satisfied that the payment of health care benefits and loss of earnings benefits was appropriate.
CONCLUSION
Initial entitlement is confirmed.
The payment of health care benefits and loss of earnings benefits are confirmed.
The objection is denied.
DATED April 21, 2010
J. Cantwell
Appeals Resolution Officer
Appeals Branch