WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100137
OBJECTION BY: Worker
EMPLOYER: Participating
HEARING DATE: September 15, 2010
REPRESENTATIVES: Worker Representative, Employer Representative
ATTENDEES: Worker, Employer, Worker Representative, Employer Representative, Witness, Interpreter
ISSUE:
The worker in this case requests initial entitlement for a bilateral knee condition from November 20, 2007 and loss of earnings (LOE) benefits from December 19, 2008 on the basis that he sustained compensable injuries as a result of his work duties which prevented him from continuing to work.
HOW THE ISSUE ARISES:
On November 20, 2007 this then 43 year old worker noted bilateral knee pain. He sought medical treatment on November 29, 2007 and was diagnosed with left knee strain. At the time of injury the worker had been employed with Nelmar Drywall as a drywall installer since January 3, 2004. Pre injury wages were not reported.
The worker continued with regular duties until he laid off on December 19, 2008.
After review the adjudicator denied entitlement for the bilateral knee condition on the basis that there was a lack of medical continuity.
The worker formally objected to the denial of his claim and the denial of loss of earnings (LOE) benefits on July 14, 2009.
AUTHORITY
Policy No: 11-01-10 : Adjudicative Process Policy No: 15-02-01 : Definition of Accident Policy No: 18-03-02 : Payment of LOE benefits
SUBMISSIONS:
#1: 3 page worker submission : November 2008 : Discussion paper regarding Osteoarthritis.
#2: 15 page worker submission : union work history record.
ASSESSMENT OF THE EVIDENCE
The worker representative argued through worker testimony, file documents, and the submissions that the worker had an extensive history as a drywall installer and this had contributed to the bilateral knee condition.
It was argued that while the worker was diagnosed with osteoarthritis that the repetitive nature of the job duties had caused an aggravation of this condition.
It was further argued that the resulting surgery was directly related to the sustained damage in the knees and that this was directly work related.
The employer representative argued through the witness testimony that the worker did not report any accident as indicated. Further, that the medical evidence supported that the worker suffered from osteoarthritis in both knees and that this was a non-compensable condition.
Worker Testimony:
The worker testified that he had been a drywall installer since 1987. He stated that this work involved repetitive lifting, bending, walking, and carrying.
The worker denied any prior knee injuries and that in November 2007 he first noted knee pain after carrying drywall. He stated that when he sought medical treatment in December 2008 that he was told to stop work for treatment and recovery.
The worker testified that on August 19, 2009 right knee surgery was performed and that this has resulted in some minor improvement. He stated that he still is in constant pain and has limitations to standing and walking.
Witness Testimony:
The witness testified that he was a foreman for the employer and had known the worker for approximately 18 years. He stated that all workers received training in reporting an accident.
He testified that the worker at no time reported any injury to the employer and had no idea why the worker had stopped working.
He further stated that over the years the worker had complained periodically of prior knee pain.
In reaching this decision I had regard for the worker and employer arguments, the worker and witness testimony, Operational Policy, and the Act.
Policy 11-01-10, adjudicative process, stipulates:
"An allowable claim must have the following five points:
- an employer
- a worker
- a personal work related injury
- proof of accident
- compatibility of diagnosis to accident or disablement history"
Policy 15-02-01, definition of accident stipulates:
“Accident includes
- a willful and intentional act, not being the act of the worker
- a chance event occasioned by a physical or natural cause, and
- a disablement arising out of and in the course of employment.
Chance event A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.”
Policy 15-01-02 further stipulates:
Disablement “The definition of disablement includes
- a condition that emerges gradually over time”
- an unexpected result of working duties”
Policy 18-03-02, payment of LOE benefits, stipulates:
"A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings benefits beginning when the loss of earnings begins. The payment continues until the earliest of
- the day on which the worker’s loss of earnings ceases
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of injury
- 2 years after the date of injury, if the worker was 63 years of age or older on the date of injury, or
- the day on which the worker is no longer impaired as a result of the injury
If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker’s LOE benefits.”
In reviewing the circumstances of this case it is noted that the worker suffers from a significant osteoarthritis condition which has affected both knees.
The worker was trained and aware of the necessary reporting obligations but failed to report to the employer any work related condition until 2009 when he filed the claim with the WSIB.
The MRI scan of May 3, 2010 clearly identifies a large complex baker’s cyst with synovitis and a recent rupture. However, the worker has not worked since 2008 so there is no causality for the rupture as being work related.
In the medical report dated June 8, 2010 the physician in his summary indicates the possibility of a re-tear of the medial meniscus. Again this re-tear cannot be considered as work related as the worker has not worked since 2008.
It is also of note that in the text of this medical report the physician indicates that he first assessed the worker for his left knee on April 8, 2008 and indicates that the worker claimed to have developed left knee pain after a twisting injury in November 2007.
This history contradicts the worker’s testimony that there was no twisting incident.
Of further concern is the fact that there is no reporting of any right knee condition until 2 months after the worker stopped working. As for the left knee which precipitated the worker seeking medical treatment there is no continuity of treatment for this condition.
While the worker representative argues that the repetitive nature of the drywall activities aggravated the osteoarthritis condition there is insufficient proof of the actual repetitiveness of the job duties.
On the basis of this evidence I find that initial entitlement cannot be extended as there is insufficient proof of accident.
CONCLUSION
I conclude find that initial entitlement cannot be extended as there is insufficient proof of accident.
The worker’s objection is, therefore, denied.
DATED : September 29, 2010
R. Sheridan
Appeals Resolution Officer
Appeals Branch