Worker’s description of accident didn’t fit with his type of knee injury, but MRI showed consistency with previous injury
An Ontario worker has lost an appeal for workers’ compensation benefits based on a workplace incident that didn’t fit his injury – an injury with symptoms consistent with an injury suffered years earlier.
The 31-year-old worker was hired as a truck driver on a temporary, short-term contract by a large produce farming operation in Ontario. As a condition of employment, the worker underwent a pre-employment medical exam in which the worker disclosed he had had surgery on his left knee about five years earlier. The injury was caused by catching his left foot in a rut while playing softball and twisting his left knee. After spending one-and-one-half years on crutches, the worker reported having no problems with his knee unless he engaged in “extreme” activities. The examiner recommended limitations on squatting for the worker, but the farm operation hired him. He started his employment on July 17, 2012, and worked four more days over the next week.
On July 24 – the worker’s fifth shift on the farm – he injured his left knee. He reported for his shift the next day and worked 13 and one-half hours, but his knee swelled up and was painful, causing him to limp and work more slowly. One of his co-workers asked him how he was and he replied that he had knee pain, but didn’t mention the accident or say anything to management. The knee seemed to improve slightly over the course of the day, but it swelled up again when he went home.
The worker visited his family physician on July 26 and told him about the accident at work, but according to the worker the physician refused to fill out an injury report. He went to a hospital emergency room on Aug. 2 and also checked in with the employer’s physician, who diagnosed a left knee strain. The physician recommended physiotherapy and the use of a knee brace, clearing the worker for modified duties with restrictions on bending and twisting of the left knee, climbing, kneeling, pushing or pulling weights greater than 30 pounds, and left knee flexion greater than twenty degrees.
The worker filed an injury report dated Aug. 3 that described the injury:
“I was emptying the loaded skids from the cooler with a hand jack when I ‘grabbed’ one skid which weighed over 1,500 lbs, I walk(ed) over the scale in order to get to the cooler. I controlled it going downhill to the loading dock and turned it around to be loaded. I began pushing with all my might and halfway into the truck my knee popped, burned, and buckled.”
Worker tried to explain delay in reporting
The worker said he didn’t report the injury on the day it happened nearly two weeks earlier because the knee didn’t swell up initially and he didn’t think the injury was serious. He also said he was afraid he would be fired if he reported the injury so early into his employment at the farm. He eventually explained what happened and the farm operation offered him one of two jobs in which he could sit on a stool: packaging mushrooms on the production line or slicing mushrooms off the line. He didn’t think he could do either job as he had been told to keep his knee elevated.
The farm operation submitted a report of injury to the Ontario Workplace Safety and Insurance Board (WSIB) the same day as the worker’s report, recommending that the worker shouldn’t be entitled to workers’ compensation benefits because he delayed in reporting the injury and he had a pre-existing impairment in the knee.
The worker visited a physiotherapist for assessment on Aug. 8. The physiotherapist reported that the worker had occasional locking of his left knee, could only stand for five minutes at a time, and lacked a good range of motion in his knee. Noting the previous injury, the physiotherapist recommended a return to modified duties with similar restrictions to that indicated by the farm operation’s physician as well as limits on standing and walking. An MRI in September confirmed no meniscal tear or injuries to the ligaments or joints and couldn’t identify the cause of the swelling and locking, but found the injured area was the same area that had been injured five years earlier – the cartilage covering the end of a bone in a joint was torn.
The same day as the physiotherapist’s assessment, the farm operation presented a written offer of modified work: making box lids with no production rate, or weighing mushrooms on the production line with a stool and footrest. The worker rejected the offer and on Oct. 1, the employer – believing the modified work it offered was within the restrictions indicated by the physiotherapist – advised that it would not be extending his contract. The next day, a surgeon recommended arthroscopic surgery.
The WSIB rejected the worker’s claim, finding he didn’t prove that the worker had an accident at work that caused the left knee injury. Both the board and an appeals resolution officer agreed with the employer that “relatively little force is required to move even the heaviest skids with the hydraulic hand-truck” and the employer had reported no other work-related injuries by employees in the truck driver position. They also found the medical evidence didn’t support a new injury arising out of and in the course of the worker’s employment.
The worker’s claim went before the tribunal, which referred to a medical article provided by the employer that such injuries as that suffered by the worker were caused by “direct trauma” leading to a twist or sudden blow to the knee. The worker’s description of his workplace accident didn’t follow such a mechanism, the tribunal said.
The tribunal also agreed that there was no medical opinion supporting a causal relationship between the accident and the nature of the knee injury, and the MRI showed an injury inconsistent with the worker’s description of the accident but consistent with his older injury. While the worker suggested the accident could have aggravated an underlying condition, the tribunal found no medical evidence to support this, either. The symptoms could have come back without an aggravating incident, said the tribunal.
The tribunal also found the fact the worker finished his shift on the day of the accident and worked a long day afterwards didn’t support the fact the worker was disabled by the accident itself. The worker’s reasons for not reporting didn’t hold water, as there was no reason to think he would be terminated, especially since he shared details about his earlier injury. In addition, it didn’t make sense for him to mention to a co-worker his injury but not discuss how to report such injuries.
The tribunal noted that the worker’s delay in seeking medical attention called into question the severity of the symptoms he experienced right afterwards, and also suggested the worker was familiar with certain symptoms from his older injury. In addition, it was unlikely the worker’s physician declined to fill out an injury report but likely the worker simply didn’t report a work-related accident or injury.
The evidence also showed the worker had had some training on the reporting procedure for workplace injuries because he had signed off on an orientation sheet that included training on incident reporting.
The tribunal found the worker wasn’t entitled to workers’ compensation benefits for his knee pain and swelling, which were likely symptoms from a pre-existing condition from his earlier injury.
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