Worker had underlying, degenerative condition and didn’t miss time or require accommodation until after surgery 11 months later
An Ontario worker’s appeal for workers’ compensation benefits for a aggravation of an underlying knee condition has been denied for a lack of evidence that the workplace accident actually worsened the condition, which was already progressive and degenerative.
The 62-year-old worker first joined the accident employer — a company that operated casinos — in 2002 as an accountant. Six years later, she joined the employer’s housekeeping department at another location, where her job duties involved vacuuming the floors of the casino, wiping down gaming machines, and moving around chairs during vacuuming. She had a degenerative condition in her right knee but it wasn’t serious enough to affect her work or cause any physical limitations.
The worker was cleaning a large gaming room at the casino where she worked on Feb. 2, 2013. It was decided to vacuum the floor of the room that night, though it was a Saturday and the task was usually done on weeknights when it could be split up. The worker’s job was to push all 400 chairs back into place after another worker moved them out and a second worker vacuumed the floor — normally, they would do half the room in a night and the worker would only have to push 200 chairs back into place. Each chair weighed less than 10 pounds.
After the cleaning was finished and all the chairs were back in place, the worker noticed her right knee was swollen and she felt a shooting pain. She told her supervisor about it and when she went home she iced the knee and took a pain relief pill. However, she returned to work for her next shift two days later and didn’t miss any time or require any accommodation as her mobility wasn’t affected.
A few days later, the worker saw her family doctor, who referred her to an orthopaedic surgeon with a suspected strain. The worker visited her doctor three more times up to December 2013, and during each visit she complained of right knee pain.
Surgery 11 months after workplace accident
The worker claimed entitlement to health care benefits, saying the workplace injury was caused by having to move twice as many chairs as usual and aggravated the underlying degenerative condition in her right knee, which was initially granted by the Ontario Workplace Safety and Insurance Board (WSIB) in March 2013, but this was overturned on Dec. 30 because she didn’t miss any time from work. Two weeks later, on Jan. 13, 2014, the worker had arthroscopic surgery on her right knee, which revealed osteoarthritis and other degenerative conditions in the knee.
The worker returned to work on modified duties six weeks later and requested a reconsideration of her claim. However, the original denial of her claim was upheld and the worker appealed again, taking her claim to the Workplace Safety and Insurance Appeals Tribunal and providing a report from the orthopaedic surgeon from September 2014 that stated the worker’s “work duties on Feb. 2, 2013, aggravated an underlying degenerative condition in the right knee. It is not clear that her work duties on Feb. 2 actually caused the condition in her knee,” but the surgeon noted that the worker didn’t have any significant problems with her knee prior to the workplace accident.
The worker retired from her job in July 2015.
The tribunal referred to the WSIB’s policy document defining an accident as well as the Ontario Workplace Safety and Insurance Act. The former states that a chance event is one that is unintended and identifiable that causes an injury, and a work-related disablement is “an unexpected result of working duties” that can also emerge gradually over time. The act also indicates an accident must arise out of and in the course of employment and be either a chance event or an intentional act by someone other than the worker.
The tribunal also noted that on the day of the workplace accident, the worker was performing “very similar functions” to her regular job duties, with the only difference that she had to push more chairs than usual. It also found it telling that the worker didn’t miss any time from work as a result of the injury or any resulting treatment and didn’t require any modification of her duties until she underwent surgery 11 months later.
The tribunal found that there was no compatibility between the diagnosis of the worker’s knee condition and the accident history. Other than some brief pain on the day of the accident, the worker was able to perform her regular job duties the same as she had before the accident without any interruption for almost a year. Although she experienced some pain that she described to her doctor, there was no medical evidence that established the pain was disabling or was a result of the injury rather than the degenerative condition that was later identified — and was “inherently progressive” — said the tribunal.
The tribunal also pointed out that the orthopaedic surgeon’s report acknowledged that the workplace accident aggravated the underlying condition in the worker’s right knee, but he couldn’t specifically state that the worker’s duties actually caused it.
“I find specifically that the medical evidence does not provide the necessary demonstration of significant contribution between the action of pushing 400 chairs two to three feet over carpet and the aggravation of her underlying, asymptomatic, arthritic condition which was sufficiently advanced and resulted in the diagnosis of an impairment, osteoarthritis, that led to the worker having surgery in January 2014,” the tribunal said. “I find that there is no persuasive evidence before me to support a proposition that the worker’s duties over the course of the day on Feb. 2, 2013, changed the natural course of he worker’s underlying degenerative condition in her right knee.”
The tribunal denied the worker’s appeal.
For more information see:
• Decision No. 3634/17, 2017 CarswellOnt 19911 (Ont. Workplace Safety and Insurance Appeals Trib.).
