WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190110
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Oral Hearing
HEARD by: K. Gordon, Appeals Resolution Officer
DATED: July 19, 2019
ISSUE
The worker, through his representative, is objecting to the Eligibility Adjudicator’s (EA) decision dated October 9, 2015 that denied initial entitlement to a left knee injury.
PRELIMINARY ISSUE
It should be noted here that the employer representative was unable to attend the hearing in person. Instead, the representative participated in the hearing through a telephone conference. The worker representative and the employer representative agreed prior to the hearing that the employer representative would provide his closing argument as a written submission after the hearing. Both parties agreed the employer representative was to provide the closing argument to the worker representative and to file by July 9, 2019. The worker representative would then submit a response to the employer’s closing argument by July 17, 2019.
BACKGROUND
The worker submitted a Worker’s Report of Injury, Form 6 dated September 2, 2015. On the Form 6, the worker states he developed a left knee injury that he relates to the repetitive and prolonged kneeling required in his regular job duties. Specifically, the worker relates the left knee injury to kneeling for prolonged periods of time while putting away freight at low levels. The worker stated the left knee pain started approximately six (6) months after starting work with the employer. At first, the worker tried to accommodate for the left knee pain by putting cardboard under his knee when he was required to kneel. The worker would also try to kneel on his right knee instead of the left. The pain progressively got worse and in July 2015, the worker reported the left knee pain to both his co-workers and his supervisor. On July 3, 2015, the worker sought medical attention and was diagnosed with left patellofemoral syndrome and bursitis in the left knee.
In the decision dated October 9, 2015, the EA denied entitlement to the left knee condition as the EA determined the worker’s regular job duties were not compatible with the diagnosis provided for the left knee. As compatibility between the diagnosis and the worker’s job duties could not be established, the EA denied initial entitlement to the left knee injury.
The worker provided additional information to file and requested a reconsideration of the decision that denied entitlement in this claim. On June 8, 2016, the EA reviewed the new information submitted which included a physical demands analysis (PDA) for the freight team associate job. Although the EA reconsidered the decision, the original decision that denied entitlement to the left knee injury was upheld.
The worker representative submitted the Appeal Readiness Form (ARF) dated November 30, 2018 confirming their objection to the denial of initial entitlement in this claim.
The worker’s objection to the denial of initial entitlement for a left knee injury forms the basis of this claim.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
ANALYSIS
Having considered all of the evidence, I find the worker does have initial entitlement to a left knee injury. In reaching this decision, I have considered the information in the claim file, the worker’s testimony, as well as the appropriate Operational Policies.
During the hearing, the worker representative argued the evidence on file, as well as the worker’s testimony support the worker’s left knee injury did arise out of and in the course of employment. As such, the representative argued the worker should be granted entitlement to a left knee injury in this claim. The representative also argued the evidence supports the worker’s job duties require the worker to repetitively kneel on his left knee for prolonged periods of time while restocking the shelves. The representative stated the diagnosis of bursitis is compatible with the mechanism of injury being claimed. For these reasons, the representative has requested initial entitlement be allowed for the worker’s left knee injury.
As per the employer representative’s written submission dated July 8, 2019, the representative argues the worker’s left knee injury is not work-related. The representative states the physical demands of the worker’s job does not support constant, frequent and sustained pressure on the left knee. As such, the representative argues the work duties are not a significant contributing factor in the development of the worker’s left knee bursitis. The representative is requesting the decision that denied initial entitlement to the left knee bursitis be upheld.
According to Policy 15-02-01, “Definition of an Accident”, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable, unintended event which causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of work duties. In this case, the worker is claiming a disablement type accident as the worker is relating the left knee injury to the repetitive kneeling required in his regular job duties.
It is important to note the presumption clause does not apply when determining entitlement in disablement cases. Consequently, the onus is on the worker to demonstrate the injury occurred during the course of the employment and arose out of the employment. It is not sufficient to establish a possible relationship with the workplace activities.
Policy 11-01-01 states that a five point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident, and compatibility of the diagnosis to the accident or disablement injury. In this case, the issue to be determined is whether the left knee diagnosis is compatible with the worker’s regular job duties.
During the hearing, the worker testified he has worked for the employer for seven (7) years. The worker has two (2) job titles. The first is that of a freight associate, and the second is a kitchen and bath associate. The worker’s job duties include moving four by four skids with product to the store floor using a pump truck. The worker then scans the boxes on the skids and restocks the store shelves with the products. For the products that need to be placed on higher shelves, the worker would use a ladder or an order picker. The worker stated without the use of a ladder, the shelves that need to be restocked range from the ground to six feet high.
The worker testified he works from 10pm to 2am, and the store is closed while he is working. The worker therefore does not work when the customers are in the store. The worker regularly works four (4) hour shifts. The worker stated there was one (1) year that he did work from 8pm to midnight, but then his hours were changed back to 10pm to 2am. The worker stated he has one fifteen minute break per shift.
The worker testified that during every shift he was required to kneel in order to stock the lower shelves. The worker would also have to kneel to tie plastic wrap around the product on the bottom of the skids. The worker stated that during each shift he kneels for approximately two (2) hours of the four hour shift.
The worker testified he is left side dominant. As a result, when he kneels on the floor, he kneels on his left knee. The worker confirmed he was not using knee pads while kneeling, and he would kneel on a concrete floor to restock the lower shelves.
The worker testified he started to develop left knee symptoms approximately six (6) months after starting with the employer. The left knee pain started in the kneecap, and he would experience a sharp pain. The worker confirmed he did not have any left knee problems prior to starting work with the employer. The worker testified that he relates the left knee injury to kneeling on his left knee while restocking the store shelves that are lower to the ground.
The worker testified he has not lost time from work due to the left knee injury. The worker did attend physiotherapy for the left knee during the day, but since his shifts were at night, the worker did not have to lose time from work due to treatment.
The worker testified that he did have a prior right knee injury, but did not seek medical attention for it. The right knee pain went away, and is not related to the left knee injury being claimed.
Based on my review of the evidence, I note the employer submitted two (2) PDA forms to file. The first is for the job of Kitchen and Bath Associate. The PDA is dated May 9, 2002. The postural physical demands included on this PDA are as follows:
Position Frequency
Standing Occasional to Frequent
Sitting Never
Walking Occasional to Frequent
Crouching Rare to Occasional
Stooping Occasional to Frequent
Kneeling Never to Rare
Twisting Occasional
Bending Occasional
Balancing Occasional to Frequent
Climbing stairs Never to Rare
Climbing ladder Never
The PDA also states the kitchen and bath associate job typically can range from sedentary to medium in physical demands. The PDA also states the freight team now restocks the shelves at night, and as such the lifting requirements of the kitchen and bath associate have been greatly reduced. As with all departments, if the items are deemed too heavy or awkward for the associate to move safely, other associates can be called upon for assistance.
It should be noted here that the information provided with the above PDA states the worker is also required to serve customers in this department. Customer service is a large part of the job duties.
The second PDA submitted is for a freight team associate. This PDA is dated May 9, 2002.
The postural physical demands include the following:
Position Frequency
Standing Frequent to Constant
Sitting Never to Rare
Walking Frequent to Constant
Crouching Occasional to Frequent
Stooping Occasional to Frequent
Kneeling Rare to Occasional
Twisting Occasional to Frequent
Bending Occasional to Frequent
Balancing Frequent to Constant - does not apply
Climbing stairs Occasional to Frequent - no stairs
Climbing ladder Occasional to Frequent - frequent
The PDA also states this job requires work in the ranges from sedentary to heavy in its physical demands, depending on the weight of the items and the number of items moved per any given shift. As with all departments, if the items are deemed too heavy or awkward for the associate to move safely, other associates can be called upon for assistance.
During the hearing, the worker reviewed the two (2) PDAs noted above. The worker first reviewed the PDA for the kitchen and bath associate position. The worker testified the PDA for this position was incorrect as the worker works after store hours, and does not serve customers. The worker stated the PDA is also incorrect in stating kneeling is either never or rarely performed. The worker noted that instead of crouching or stooping as indicated on the PDA as occasional to frequent, the worker prefers to kneel to do the same duties.
The worker also reviewed the PDA for the freight team associate position. The worker also did not agree with this PDA as the form indicates kneeling is again rarely required. The worker noted the form states that crouching is frequent. The worker testified that instead of crouching to perform the restocking on the lower shelves, the worker would kneel. Prior to the onset of left knee pain, the worker found it more comfortable to perform the lower shelf restocking duties while kneeling, not crouching.
The worker testified that his job duties also involve wrapping the skids in plastic. The worker stated that every skid that goes up in the air (on a lift) has to be wrapped in plastic. The plastic has to be weaved through the holes in the skid. While wrapping the plastic around the skid, the skid is on the ground. The worker stated he would have to kneel down to get the first three wraps around the skid. The worker stated that prior to reporting the left knee injury, he would wrap approximately three (3) to four (4) skids per shift. The worker would have to kneel to wrap the bottom of each skid. The worker stated he does not have to kneel any longer to do this, as after he reported the left knee injury the skids were brought to him at waist high.
In my review of the medical evidence on file, I note a Health Professional’s Report of Injury, Form 8 dated August 7, 2015. This form shows a diagnosis of left knee bursitis. The worker also underwent an assessment at the musculoskeletal Program of Care (POC) on August 10, 2015. The diagnosis provided on the assessment report is left patella bursitis and left patella femoral syndrome.
I note the worker provided a statement to the EA as noted in the memorandum on file dated
September 21, 2015. The worker advised he started to notice discomfort in early May 2015. The worker advised that although he has been with the company for over three (3) years, he has only been in the kitchen and bath department since December 2014. The worker feels the kitchen and bath department has a lot of low shelves that require stocking and facing. This requires the worker to kneel. The worker also stated there is a lot of opportunities for him to strain his knees given he is handling heavy items by hand. The worker stated he first reported the left knee pain to his direct supervisor who asked the worker if it was a work-related injury. At the time, the worker did not know if it was. The worker then went to the doctor who took x-rays, and the doctor told the worker it was work-related. The worker provided two names of co-workers that were aware of the worker’s left knee complaints.
The worker testified he still has left knee pain now when he is going up and down stairs or when he has walked for a long time. The worker has not lost time from work. The worker stated his supervisor and co-workers are aware of his left knee condition, and he is no longer required to kneel on the floor. The worker stated that now he is generally provided with restocking duties that are at waist height.
Having considered all of the evidence before me, I am persuaded to accept the worker’s left knee bursitis is a result of the worker kneeling while at work. In making this determination, I have placed significant weight on the worker’s testimony and the description provided as to how the worker would restock the lower shelves. While I note the PDAs on file do not support kneeling is regularly involved in the worker’s work duties, I am not convinced the PDAs are an accurate reflection of the worker’s work duties. As noted in the kitchen and bath PDA, the job was noted to involve more customer service. This would not pertain to the worker as the worker works when the store is closed. Both PDAs also confirm the restocking of the shelves is done at night, and the restocking of the lower shelves is what the worker relates the injury to.
I have also placed weight on the worker’s testimony in which the worker stated he found it more comfortable to kneel on his left knee instead of crouch or stoop while restocking the lower shelves.
The PDA for the freight team associate job states that kneeling is rare, but it does state that crouching and stooping is occasional to frequent. As I accept the worker’s testimony that he would kneel instead of crouch or stoop, I also accept the worker would kneel from occasionally to frequently. I find it significant to also note the worker was kneeling on a concrete floor.
I have also placed significant weight on the medical reports received to file. The worker’s doctor completed a Form 8 dated August 7, 2015. The diagnosis provided on this report is left knee bursitis. The worker also underwent an assessment at the musculoskeletal Program of Care (POC) on August 10, 2015, and the diagnosis provided on this report is also left patella bursitis. Based on my understanding of bursitis, one of the most common causes of bursitis is a trauma such as extensive kneeling. As such, I accept the diagnosis of left knee bursitis is compatible with the mechanism of injury being claimed.
For the reasons stated above, I accept the worker’s left knee bursitis arose out of and in the course of employment, and that proof of accident has been established. I find the worker does have initial entitlement for the left knee bursitis.
CONCLUSION
The worker does have initial entitlement to left knee bursitis.
The worker’s objection is allowed.
I ask the Operating Area to determine benefits flowing from this decision.
DATED: July 19, 2019
Kelly Gordon
Appeals Resolution Officer
Appeals Services Division