Worker v. Employer, 2022 CanLII 68189

20220074

REPRESENTED by:

N/A

HEARD by:

DATED:

MAY 1, 2022

ISSUE

The employer, through their representative, objects to the Eligibility Adjudicator’s (EA) decision dated September 15, 2021, which accepted initial entitlement to a right knee strain.

BACKGROUND

This now mid fifty year old labourer for an automotive parts facility claimed a right knee injury occurring on March 2, 2021, when they slipped on some oil causing their foot to twist and their knee to hit a bin. The worker reports mentioning this to their manager at the time of occurrence, however was able to continue to perform their regular job duties. A claim was not established at this time.

The worker was off for approximately two (2) months following the knee injury for an unrelated surgery.

On September 3, 2021, the worker reported to their employer that they were seeking medical attention related to the right knee injury that occurred in March 2021. The worker advised that they had x-rays done on the knee on March 18, 2021, and now had an MRI scheduled for October 17, 2021. The employer noted they did not recall the worker communicating an injury and were unable to find a record of the initial injury being reported. The employer submitted an Employer’s Report of Injury (Form 7) on September 10, 2021, further to the receipt of the worker’s information.

On September 15, 2021, the EA obtained a statement from the worker regarding the accident history. The EA provided the decision on the same date, which accepted initial entitlement for health care benefits for a right knee strain/sprain type injury.

The employer objected to the acceptance of initial entitlement to a right knee injury, noting that proof of accident had not been established. The EA reconsidered and upheld their decision on October 8, 2021.

The employer’s objection to the EA’s decision of September 15, 2021, forms the basis for this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01, Adjudicative Process

November 3, 2008

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on my review of the evidence I find the worker does not have entitlement to a right knee injury. My findings and analysis are explained below.

The employer and their representative objected to the acceptance of initial entitlement in the claim and submitted an Appeal Readiness Form (ARF) dated November 16, 2021. They have provided their position that there is no evidence that the worker’s knee condition is work-related and proof of accident has not been established. They note that the worker’s manager denies that an injury was reported to them, and there has been no medical documentation submitted which supports a work-related injury, and in fact, the clinical notes refer to the worker having a traumatic past with their knee and motorsport injuries. There was no Health Professional’s Report of Injury (Form 8) submitted to the claim file that diagnosed a right knee strain, yet entitlement in the claim was accepted for this diagnosis. Additionally, the worker was able to continue performing their full job duties without accommodation for the next several months. They submit that initial entitlement should be reversed.

The worker did not complete a Participant Form and is not participating in the appeal. The worker indicated in communication with the Case Manager on January 26, 2022, when discussing entitlement in the claim, that they feel the tear in their knee was caused by the work accident of March 2, 2021. They have not provided any additional submissions, other than what is contained in the claim file, regarding the matter at hand.

With respect to establishing initial entitlement, operational Policy 11-01-01, Adjudicative Process, states that all decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

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 employer employed the worker at the time of the reported incident on March 2, 2021. An employer/worker relationship exists and there is no dispute around this.

In this case, the worker has claimed a chance event type of incident, causing injury to his right knee.

The issue before me in this case is to determine proof of accident. In determining proof of accident, the policy suggests decision makers consider a number of factors. These include, whether an accident or disablement situation existed, whether there are any discrepancies in the date of accident and the date the worker reported the injury and/or stopped working, whether there was any delay in the onset of symptoms or in seeking health care attention, and whether there were any witnesses.

The worker provided a statement to the EA on September 15, 2021, advising that on March 2, 2021, they were walking around bins, when they slipped causing their foot to hit the bin and their leg to twist inward and give out on them. As they were right by the office, they mentioned the incident to their manager, and told them that they would monitor it. The worker stated that they spoke with their doctor on March 3^rd, 4^th, and 10^th, 2021. They were referred for x-rays, which were done on March 18, 2021. The worker stated that the claim took so long to be reported because they were off for an unrelated surgery for two (2) months and during this time, their knee continued to get worse. The worker noted that they had been offered modified duties, however did not require this as they felt they could still perform their job duties.

The worker advised that “[they have] always had pain in [their knee], but [they] just work through it”.

The information provided by the employer was that there was no record of the worker reporting the injury, prior to their conversation on September 3, 2021. The date of injury was recorded as March 10, 2021, and the worker advised that of a similar accident history as what was provided to the EA, however noted that when they slipped, their foot twisted sideways causing their knee to impact the bin. The employer noted that the manager nor the worker’s team lead or group leader were aware of any report of injury/incident. The worker has continued to perform their regular job duties.

On March 28, 2022, complete clinical chart notes were submitted to the claim file from the worker’s family doctor. The relevant information is summarized as follows:

June 29, 2020 – follow up re: mental health; worker smashed knee at work, has hematoma, advised to monitor knee for sudden swelling, warmth or skin changes, otherwise likely soft tissue injury
March 4, 2021 – follow up re: mental health; worker notes some right knee pain and instability, right knee is giving out, ? osteoarthritis; x-ray of right knee
March 18, 2021 – x-ray bilateral knees – right knee – no fracture or focal osseous lesion, joint spaces are maintained within the medial tibiofemoral, lateral tibiofemoral, and patellofemoral compartments. A trace joint effusion is suspected. No periarticular soft tissue abnormality is identified.
March 26, 2021 – follow up re: x-ray results; no OA in right knee which is the symptomatic knee, worker does endorse a very traumatic past with knee, motor sport injuries, ? meniscal tear, recommend physio and if no improvement will consider MRI
July 20, 2021- follow up re: mental health; worker has right knee pain, pain described as sharp pain along the medial joint line, aggravated by walking up stairs, has done extensive physio with no improvement, no locking but gives out; ? right meniscal injury, MRI for knee
October 18, 2021 – MRI – small degenerative tear and mild to moderate myxoid degeneration within the posterior horn of the medial meniscus; mild chondromalacia patella; ligaments are otherwise intact
November 9, 2021 – follow-up re: MRI; patient thinks they aggravated this at work; patient slipped at work; requesting note saying they can only work 40 hrs per week as by the end of the week they are physically tired and in pain from previous injuries, working more than 40 hrs does not allow them to recover, Right meniscal damage, recommend physio

In addition to above clinical notes, the reports from Workplace Solutions (kinesiologist) were obtained, which provided the following information:

June 21, 2021 – worker advised that approximately 3.5 months ago they slipped and their right foot hit a bin causing quick lower leg internal rotation. The worker was off for two (2) months after that and their knee worsened during that time while walking around. Static positioning and going

up stairs are aggravating factors. Assessment: ACL laxity in the right knee, ? ACL injury, recommends the worker get imaging done through their physician.

September 9, 2021 – worker reports low back pain with prolonged standing and walking; sore from limping motion on right side; difficulty getting in and out of car. Swelling through knee reducing range of motion.
September 23, 2021 – knee and back issues, no major knee changes since previous; Assessment: complex knee injury, signs of meniscus irritation, possible ACL involvement, upcoming MRI

In determining whether proof of accident has been established in this case, I consider the following information relevant in reaching my conclusion:

The worker stated that they reported the injury to their manager at the time it occurred. The manager has not corroborated this information, and the employer advised that they were first aware of the incident on September 3, 2021.
In the worker’s statement to the EA, they state that they have “always” had pain in their right knee, and have worked through it.
According to the clinical note of March 4, 2021, the worker had an appointment with the doctor for an unrelated follow-up. The worker did not mention to their doctor that they had a slip at work and twisted their leg. The worker noted right knee pain and instability, and the doctor queried osteoarthritis. There was no diagnosis of a strain type of injury related to a sudden twisting event.
There was no Form 8 completed, and the worker’s doctor has not submitted a Form 8 to date.
In a follow-up appointment on March 26, 2021, there is still no mention of an incident at work according to the clinical notes; notably the doctor indicates the worker reports trauma from prior motor sport injuries.
Following the claimed incident on March 2, 2021, the worker continued to perform their regular job duties, and was then off work for a two (2) month period, during which time they reported that their knee pain increased.
The worker reported an incident at work causing knee pain to the kinesiologist on June 21, 2021.

In my review, I find that the evidence does not support the worker sustained a right knee injury arising out of and in the course of their employment on March 2, 2021. In considering that there is discrepancy between whether the worker reported the injury to their employer or not, I place more weight on the contemporaneous clinical notes from the worker’s family doctor. Based on my assessment of the medical documentation, I find that there is no evidence of the worker reporting a work-related incident to cause their knee pain until more than three (3) months later, when it is mentioned to the kinesiologist.

The worker did not relay this information regarding a work accident to their doctor until November 2021, which I find to be significant. Due to the conflicting information regarding the reporting of the injury to the employer, the worker’s continued ability to perform their regular duties, and the significant delay in reporting the injury as work-related to their treating physician, I am unable to confirm the worker injured themselves at work and thus, cannot establish proof of accident.

Consequently, in light of the fact that I have concluded that proof of accident has not been established, I find that the criteria for an allowable claim as noted in Policy 11-01-01 has not been met. As a result, I find the worker does not have entitlement to a right knee strain under the claim.

CONCLUSION

The worker does not have initial entitlement for a right knee injury, as proof of accident is not established. The employer’s objection is allowed.

DATED May 1, 2022

Appeals Resolution Officer Appeals Services Division