WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150101
DECISION DATE: February 12, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: February 4, 2015 - Toronto, Ontario
HEARD by: D. Giannobile, Appeals Resolution Officer
ISSUE
The worker requests initial entitlement for bilateral knee injuries.
BACKGROUND
The worker is requesting initial entitlement for both knees related to an onset of pain while working in a cold room at a warehouse on September 14, 2010. He is employed as a Building Maintenance Mechanic with 25 years’ experience.
His claim is denied because the Case Manager (CM) could not identify an accident that caused his pain. The CM also noted the worker delayed in seeking medical attention for his injury until September 28, 2010.
Reconsideration, with details of the worker’s job duties, did not alter the decision. The worker had surgeries consisting of an arthroscopy, meniscectomy and debridement to both knees on February 28, 2012 but these were not accepted as part of the entitlement in this claim.
The decision letters are dated November 4, 2010, June 19, 2013 and June 25, 2014.
AUTHORITY
Applicable policies:
11-01-01 – Adjudicative Process
11-02-02 – Lost Time Claims
15-02-01 – Definition of an Accident
15-02-02 – Accident in the Course of Employment
ANALYSIS
I conclude there is insufficient proof of a work-related condition compatible with the onset claimed by the worker on September 14, 2010, so I deny his appeal.
The worker testified that he has worked at the employer’s head office/warehouse for many years and his job duties include performing repairs or maintenance in the warehouse including ground maintenance, painting and moving furniture. He claimed and testified that he suffered an onset of bilateral knee pain at work on September 14, 2010 while dismantling and assembling racking in the warehouse area. The employer was standardizing the rack sizes in the warehouse so he and other maintenance workers spent their time dismantling and assembling these racks for about 1-2 months prior to his onset.
Assembling these racks involved more kneeling, crouching, bending and twisting than normal. He generally worked in a crew of 2 or 3 people. The parts consisted of metal uprights about 42” wide and 10.5’ high and 8’ cross members.
He has a prior claim from 1997 for his left knee wherein he had surgery and received an 18% Non-Economic Loss (NEL) award. The injury caused him occasional discomfort over the years, like pain and swelling, but he worked his regular duties throughout and only occasionally modified his duties to accommodate his pain. He denied participation in sports or other activities away from work that contributed to his knee impairment.
He denied any major issues with either knee in the 1-2 months leading up to his onset of pain on September 14, 2010. He recalled he had no real issues with his knees when he arrived at work on September 14, 2010 but he noticed his knees swelled as the day progressed then he felt a sharp pain in his left knee and reacted by kneeling down on one leg. He noticed both knees were swollen so he applied ice to them and advised his supervisor.
He did not seek medical attention for a few days. He testified that his family doctor closed his practice while he was trying to get an appointment so he obtained treatment at an emergency department on September 28, 2010 then followed-up at a walk-in clinic. A surgical consultation followed and bilateral knee surgery occurred on February 28, 2012. He returned to modified work about three months after his surgery and remains on modified work to date.
The worker’s representative argued that the claim met the criteria for entitlement under operational policy 11-01-01 and that compatibility existed between the accident and the resulting injury. The worker testified that his duties had become more strenuous prior to his onset which caused his pain on September 14, 2010. He also noted the initial medical report on file listed “repetitive injuries knees” which he believed was compatible with the worker’s description of his onset of pain. He disputed the notion that his knee condition was a consequence of the normal aging process because it was a bilateral condition.
The employer’s representative believed the evidence was clear that the worker’s knee issues were related to normal degeneration caused by aging. He relied on the surgical report to support his argument and noted that the repairs done to both knees were for arthritic conditions which are not generally caused by injuries.
He also pointed to the fact that the operative reports indicated arthritic degeneration in both knees, worse in the right than the left, despite the fact that the worker had a known sudden injury to the left knee and arthroscopic repair in 1997.
They did not dispute the worker’s testimony about the job changes prior to his onset of pain but they did not believe that the job change equated to an allowable claim.
After carefully considering all the relevant information, I do not see that the onset described by the worker fits the definition of “accident” as defined in WSIB policy or law.
Under Workplace Safety and Insurance Board (WSIB) law and policy, an accident includes
a wilful 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.
His testimony suggested that he suffered a disablement related to more strenuous work leading up to September 14, 2010 but despite this possibility, there is not a corresponding compatible diagnosis that would satisfy the criteria for an allowable claim in policy 11-01-01. That policy states in part:
An allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history
The initial diagnosis was knee effusion (or swelling) which was said to be caused by repetitive use of the knees. Presumably, this is a reference to the more strenuous duties he performed in the months prior to his pain but he testified that there were no significant issues with his knees when he arrived for work on the accident date or in the two months prior when these increased duties started. There was also no identified accident or incident that caused his increased knee pain that day.
His doctors initially recommended he ice the knees and take anti-inflammatories which are not unlike the treatments he used in the past when his left knee flared up.
There are no medical reports on file from late-2010 until his bilateral knee arthroscopy, meniscectomy and debridement on February 28, 2012. The evidence contained in the operative report supports the surgery was required for non-occupational arthritic conditions. This is most clearly illustrated in the references to Grade II and Grade III changes throughout the knee and complex meniscal tear of the right meniscus. The worker did not describe an accident history occurring on September 14, 2010 that is compatible with those degenerative findings. There is no mechanism of injury identified in the file or through the worker’s testimony.
Therefore, I do not see sufficient proof the worker suffered an accident at work on September 14, 2010 that would qualify him for entitlement in this claim nor do I find a compatible diagnosis that can be reasonably related to the job duties he claimed caused his pain that day.
For those reasons, I confirm the decision to deny initial entitlement in this claim.
CONCLUSION
The decision to deny initial entitlement is confirmed.
The worker’s objection is denied.
DATED February 12, 2015
Mr. D. Giannobile
Appeals Resolution Officer
Appeals Services Division