WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100169
OBJECTION BY: Worker
REPRESENTATIVES: Worker
EMPLOYER: Participating
ISSUE
The worker objects to the decision dated March 2, 2009 and seeks initial entitlement for a bilateral knee impairment
HOW THE ISSUE ARISES
This claim was established upon receipt of a Worker’s Report of Injury (Form 6). The worker claimed an aggravation of a bilateral knee impairment attributed to prolonged standing in her employment on assembly and machining lines.
The claim was listed for a field investigation and following a review by the Case Manager, entitlement was denied on the basis that there was no work accident and the general job duties would not have caused or contributed to a right knee injury.
The worker’s representative, on behalf of the worker, objected to the decision and the file was referred to the Appeals Branch for further consideration.
AUTHORITY
Operational Policy Document 11-01-01 Adjudicative Process
11-01-02 Decision Making
15-02-01 Definition of Accident
18-03-02 Payment of LOE Benefits
RESOLUTION METHOD AND PROCESS
The worker’s representative completed a 60 day decision option on August 12, 2010 requesting that the Appeals Resolution Officer render a decision with the information on file.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file and the applicable law and policy.
I note that on the Form 6, dated January 14, 2008, the worker wrote:
- I have worked for the past 30 years on assembly and machining lines performing work on unprotected concrete floors involving routine climbing, continuous walking and standing for extended periods of time. This continually aggravated and permanently worsened what was originally a non-occupational, bilateral knee impairment and necessitated numerous surgeries.
The worker recorded that she reported this to the nurse and that she began to lose time from work as of November 27, 2007.
An Employer’s Report of Injury (Form 7) was not submitted. When contacted the employer informed the Case Manager that they were unaware of a work injury, although they were aware of the worker’s history of significant knee problems.
This worker does have a prior claim for an injury sustained on September 7, 1979. The claim was accepted for contusions to the right shoulder, right leg and right knee and temporary total (TT) benefits were approved from September 10, 1979 to December 3, 1979. As of December 3, 1979 it was determined that any effects of the compensable accident had resolved and the further surgeries and impairment were related to the pre-existing, non-compensable right knee impairment. This decision was upheld by the Appeal Board in a decision of April 12, 1984.
There is ample evidence of this worker’s non-compensable right knee impairment that commenced with right knee surgery in 1971. Further surgery was carried out on August 8, 1978, September 26, 1979, June 19, 1981, October 18, 1982, January 9, 1984, and December 1997. The worker went on to have a high tibial osteotomy of the right knee on January 3, 2001, and a total left knee replacement on August 12, 2004. The worker also underwent a right total knee replacement in December 7, 2005.
As well, a review of the file supported numerous non-work related accidents:
June 6, 2008, MVA internal derangement right knee
June 19, 2006, getting off lawnmower, left knee internal derangement
February 16, 2006, bad fall, strained right knee
June 20, 2005, internal derangement right knee
March 4, 2004, internal derangement left knee
April 25, 2002, fell down stairs, internal derangement to both knees
September 28, 2000, fell off a ladder, injury to both knees
January 17, 1995, torsion injury to right knee
A report dated February 21, 2007 indicates the worker fell at home on December 31, 2006 injuring her left knee. I further note the visit to the employer’s Health Department recorded that the worker fell again at home on January 15, 2007 and injured her right knee. This is supported by the Statement of Claim for Sickness and Accident (S&A) Benefits form whereby the worker wrote:
- Slipped on front stairs which were covered in ice due to freezing rain – fell on left knee (inside left knee)
Medical attention was sought with the family doctor on January 17, 2007 and there were findings of pain, bruising and swelling. The diagnosis rendered was internal derangement left knee and the worker was seen by Dr. Cameron on January 29, 2007. Dr. Cameron’s report refers to the fall but indicated no damage to the knee was sustained.
The Health Department notes also refer to an accident of August 9, 2007 whereby the worker slipped off a ladder and injured her right knee. The worker once again made a claim for S&A benefits and the family doctor noted a twisting injury to the right knee. On an insurance medical form the family doctor noted a painful and swollen right knee and the worker was having difficulty weight bearing. The family doctor diagnosed internal derangement of the right knee.
The worker participated in an Independent Medical Examination (IME) at the request of her insurance carrier. The report is dated October 11, 2007 and confirmed injury to the right knee in an accident while painting her home. Dr. Offierski mistakenly identified the date of the accident as February 9, 2007 instead of August 9, 2007. Dr Offierski wrote:
- [The worker] continue to have a very sore right knee which feels unstable to her. On clinical examination, she does have swelling and a painful range of motion of her right knee, I suspect that she does have a problem with the knee replacement, possible relating to the patellofemoral joint. [The worker’s] job was that of a tool setter which required her to stand on her feet for an eight-hour shift and with a lot of kneeling. On examining her today, it is my opinion that [the worker] is unable to carry out these duties and would be disabled from resuming her job as a tool setter.
On November 21, 2007 the worker informed the Health Department that she was able to return to work on November 26, 2007 to her own job, on the afternoon shift. The worker returned to work, however, reported to the duty nurse that she was unable to perform the job as it involved squatting.
On a Supplementary Report of Claim for Sickness and Accident Benefits the family doctor indicated that his patient had been disabled from work since November 28, 2007 due to internal derangement of both knees. The doctor indicated on this form that the worker disability was not caused by her employment.
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.
The definition of disablement includes
a condition that emerges gradually over time
an unexpected result of working duties.
An allowable claim must have a personal work-related injury, proof of accident and compatibility of diagnosis to the accident or disablement history. When determining entitlement there must be confirmation that the work activity contributed to the onset of the injury/disablement. These conditions have not been met for the following reasons:
there is an absence of a work injury
there was no reporting of a work accident
there is a long history of non-compensable knee problems requiring medical attention, treatment and numerous surgeries over a span of 20 years
there were numerous non-work related accidents and periods of impairment
Based on the information on file, there is insufficient evidence to accept entitlement for a bilateral knee impairment. The evidence does not support that the worker sustained injury by accident arising out of and in the course of employment. Noting the history of chronic bilateral knee problems as far back as 1971, multiple non-work related accident and surgeries, I must also conclude that the work was not a significant contributing factor to this worker’s chronic bilateral knee disability.
No evidence has been submitted to support that the work performed was a significant contributing factor to the aggravation of the worker’s symptoms or to the increased symptoms resulting in disability. The weight of the evidence does not support a conclusion that this worker’s performance of duties at work played any role in the worker’s onset or progression of bilateral knee osteoarthritis. To the contrary, there is ample evidence of non-work related accidents resulting in further and ongoing knee injuries.
Having assessed all evidence before me, I find that the worker’s duties neither caused the degenerative condition nor aggravated it and therefore the worker’s symptoms are not reflective of a compensable exacerbation of the bilateral knee degenerative osteoarthritis and initial entitlement is denied.
CONCLUSION
For the reasons outlined in the body of this decision, the worker does not have entitlement for a bilateral knee impairment.
The objection is denied.
DATED September 20, 2010
P. Luck
Appeals Resolution Officer
Appeals Branch