WORKERS COMPENSATION APPEAL TRIBUNAL [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] AND: APPELLANT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #208 Appellant Respondent Maureen Peters, Work Advisor Representing the Worker Brian L. Waddell, Q.C., Solicitor representing the Workers Compensation Board Place and Date of Hearing March 25, 2015 Loyalist Lakeview Resort 195 Harbour Drive Summerside, Prince Edward Island Date of Decision July 7, 2015

2 WCAT Decision #208 Page 2 of This is an appeal by the Worker of Internal Reconsideration Decision IR # [PERSONAL INFORMATION] dated March 18, 2014, which upheld the prior decision of the Workers Compensation Board (the Board ) to deny the Worker s claim for benefits. EVIDENCE 2. In the mid-afternoon on November 23, 2011, the Worker, a then fifty-three year old [PERSONAL INFORMATION] employed at [PERSONAL INFORMATION] felt and heard a pop in her right knee while walking down the hallway at work. Subsequent to this incident, the Worker experienced a recurring clicking or popping sensation in her right knee and felt that her right knee was unstable, such that she reports that her leg subsequently let go when she was descending the stairs at work at the end of her shift. 3. The Worker did not immediately seek medical attention, and initially went to work the following day, November 24, The Worker subsequently left the workplace during her shift and attended the Emergency Department at Prince County Hospital as a result of her right knee symptoms. 4. On November 24, 2011, the Worker was assessed at Prince County Hospital by Dr. Scott Cameron, an Emergency Room Physician. Dr. Cameron notes that the Worker reported with right knee pain behind the knee and inside of her leg, that the Worker also complained of a tight swollen sensation, and that the Worker was unable to fully extend or flex her knee. Dr. Cameron notes that the onset of the pain occurred when the Worker was walking down the hallway at work when she experienced an abrupt popping sensation and sound which was audible to the Worker and a colleague. The Worker indicated that after this event, she had a clicking popping sensation recurring in her right knee, that the Worker felt that her right knee was unstable, and had subsequently let go. Dr. Cameron also notes Type of injury: incident occurred while walking on level in the hallway, not fall, not twisting and not lifting. Dr. Cameron referred the Worker for an orthopedic assessment. 5. On or about November 29, 2011, the Board received both a Form 6 Worker s Report and a Form 7 Employer s Report, both of which were dated November 24, In the Worker s Report, the Worker described that was moving forward + turned leg + felt + heard a pop in my right knee. The Employer s Report indicates that staff member was walking down hallway with co-worker; when she turned her leg she felt + heard a pop in (R) knee. 6. On December 6, 2011, the Worker was assessed by Dr. G. Stewart Campbell, an orthopedic surgeon. Dr. Campbell noted that the Worker presented with full range of motion in her knee and no swelling or effusion of the knee. Nonetheless, Dr. Campbell requested an MRI of the Worker s knee. 7. On December 22, 2011, the Worker phoned a Board officer and reported to the Board for the first time that about an hour before the popping sensation in the hallway, the Worker was backing up a wheelchair and bumped the back of her knee on a bedrail. The Worker reported that this incident had slipped her mind, but that she did report it to Dr. Scott Cameron who, in the Worker s impression, considered this as insignificant.

3 WCAT Decision #208 Page 3 of Subsequently, on May 9, 2012, a Board officer spoke to a colleague of the Worker who indicated that the colleague and the Worker were [PERSONAL INFORMATION]. The colleague indicated that the Worker complained at the time of soreness and that the Worker reported soreness the remainder of the day. 9. On April 18, 2012, an MRI was taken of the Worker s knee. Dr. Rory Porteous, the interpreting radiologist, reviewed the MRI result and opined in part as follows: (a) Dr. Porteous suspected a high grade partial tear of the anteriour cruciate ligament as it appeared significantly attenuated at its mid-portion; (b) Dr. Porteous observed a complex tear of the posterior horn and body of the medial meniscus; (c) Dr. Porteuous observed a horizontal tear involving a partially discoid lateral meniscus; (d) There was evidence of a partial disruption of the origin of the medial head of gastrocnemius with an undulating thickened and slightly displaced posterior joint capsule, which suggested to Dr. Porteous of a focal capsular disruption; (e) There was some evidence of a grade I MCL strain; and (f) Dr. Porteous observed both a moderate sized Baker s cyst and moderate wear overlying the patellar facet. 10. At the request of the Board, Dr. Steve O Brien reviewed the MRI result, and by an opinion dated July 26, 2012, opined in part as follows: These are very significant MRI findings which would be indicative of significant degenerative osteoarthritic type changes leading to the above changes. A baker s cyst is often a finding associated with osteoarthritic of the knee. The moderate chondral wear is wearing of the weight-bearing surface of the knee. The tears and the complex medial meniscal tear; plus the lateral meniscal tear, if they were related to a traumatic cause, which would have to be very significant type trauma, and the act of backing up and bumping the back of her knee on a metal bed rail would not be considered to be significant enough to cause the extensive changes as described on the MRI. [The Worker] states that if it was not the workplace incident as described, then it was as a result of her long-term employment as a [PERSONAL INFORMATION]. However, in Occupational Medicine Practice Guidelines, Third Edition Volume 4, Page 472 and 473, it states, Cruciate tears and sprains are largely attributed to the consequences of significant trauma. The workplace incident as described on this file, backing into a metal bed rail, would not be considered to be significant trauma. Under Osteoarthrosis, which is another word for degenerative changes, it states,

4 WCAT Decision #208 Page 4 of 12 A minority of cases of osteoarthrosis appeared to arise in the knee after either fracture, removal of the meniscus, torn meniscus, ACL surgery, other surgery, or major trauma or injury. The mechanism of that trauma is usually believed to be responsible for the osteoarthrosis particularly as the magnitude or risk is generally considerable, and this often determines work-relatedness. However, the majority of cases have no significant traumatic history and thus causation is often unclear. Age is a well-documented risk factor for knee osteoarthrosis. Obesity has been shown to be an unusually robust risk factor for osteoarthrosis of the knee Genetic factors have been reportedly strong, and the knee joint is frequently involved in generalized osteoarthrosis (arthritis in other joints). Job physical factors have not been studied in a quality epidemiological study reported to date. The proper study designs have yet to be reported, particularly either cohort studies or at least a well done case-control study with measured job physical factors and adjustments for the non-occupational factors. Purported associated factors have included kneeling, squatting and lifting. However, results are inconsistent, concerns about biases have been noted, risks are nearly always low magnitude when positive, and nearly completely based on retrospective methods without measured job factors. Of all risks, kneeling appears to be most consistently associated with knee OA. [Emphasis added] Dr. O Brien commented that kneeling would not be a major component of the Worker s employment, and Dr. O Brien opined that the Worker s injury(ies) would not be consistent with either the mechanism of injury on file (i.e. banging back of knee into metal rail) or a history of working as a Resident Care Worker. 11. By letter to the Worker dated August 1, 2012, a Board officer opined that while the Board accepted that the Worker did bang her knee [PERSONAL INFORMATION], the Board had determined that the Worker s injuries were inconsistent with both the mechanism of injury asserted by the Worker and/or the Worker s workplace duties. The Board officer indicated that on a balance of probabilities, it was more probable that the Worker s symptoms were related to osteoarthritis. The Board officer concluded that the Board was denying the Worker s claim. 12. Dr. Campbell followed up with the Worker on or about October 25, 2012, and notes in a letter of same date that the Worker had symptoms of instability related to an ACL insufficiency, and that the Worker reported aching and medial joint line tenderness on physical examination. 13. The Worker applied for internal reconsideration of the Board s decision of August 1, 2012, and by letter dated December 19, 2012, the Reconsideration Officer resubmitted the claim back to the Board on the grounds that Dr. Campbell s October 25, 2012 letter constituted new evidence. 14. By letter dated January 30, 2013, a Board officer reviewed Dr. Campbell s October 25, 2012 letter and concluded that this new evidence did not change the Board s decision to deny the Worker s claim.

5 WCAT Decision #208 Page 5 of The Worker subsequently applied for internal reconsideration, and by letter dated June 23, 2013, the Internal Reconsideration Officer dismissed this request, finding that there was insufficient evidence to support that the Worker s right knee symptoms were related to an accident arising out of the course of her employment on November 23, By letter dated August 2, 2013, Dr. Campbell indicated in part as follows: [The Worker] advised me that the mechanism of the injury was that she hit the back of her knee on the [PERSONAL INFORMATION], subsequently twisted her right knee, and felt an audible pop with coincident swelling and discomfort in the right knee, which has persisted. A subsequent MRI revealed evidence of injury co-existing with degenerative changes in the right knee. Of note, the patient has no history of previous injury to her right knee. It is my opinion that in the absence of a history of previous injury, the findings of anterior cruciate ligament tear and medial collateral ligament sprain cannot be explained on the basis of degenerative changes. The other findings, including meniscal tears and chondral wear, can alternatively be explained on the basis of age-related degenerative changes but certainly would be potentially contributed to by the acute injury in November Furthermore, in the absence of symptoms prior to her injury, irrespective of the anatomic pathology, the patient s symptoms are definitely related to her workplace injury as she had no symptoms prior to that. [Emphasis added] 17. Dr. O Brien subsequently reviewed Dr. Campbell s August 2, 2013 letter. Dr. O Brien pointed out that the file indicated some discrepancy in the mechanism of injury. Dr. O Brien then commented as follows: just because [the Worker s] knee became symptomatic at the workplace and with preexisting extensive degenerative changes as acknowledged by Dr. Campbell, does not mean that the workplace activity was the underlying cause of her knee becoming symptomatic as there was nothing unusual initially described; other than normal bodily movement, and the fact that the initial physician stated no slip, twist, etc. would indicate that there was nothing that occurred at the workplace that would ve caused the findings as described by Dr. Campbell as being anterior cruciate ligament tear and medial collateral ligament sprain. In Campbell s Operative Orthopedics, Volume 3, Tenth Edition, Page 2254, it states, The classic history of an anterior cruciate ligament injury begins with a non-contact deceleration, jumping, or cutting action. Obviously, other mechanisms of injury include external forces applied to the knee. The patient often describes the knee as having been hyper extended or popping out of joint and then reducing. A pop is frequently heard or felt. The patient usually has fallen to the ground and is not immediately able to get up.

6 WCAT Decision #208 Page 6 of 12 Resumption of activity usually is not possible, and walking is often difficult. Within a few hours, the knee swells, and aspiration of the joint reveals hemarthrosis (bleeding within the knee). Therefore, if [The Worker s] anterior cruciate ligament tear occurred when she was [PERSONAL INFORMATION] she would felt [sic] the popping sensation immediately and would ve been in considerable distress, rather than an hour later feeling the popping sensation in the hallway. [Emphasis added] 18. Dr. O Brien indicated that his opinion had not changed based on his review of Dr. Campbell s letter of August 2, 2013, and particularly notes that the evidence of the [PERSONAL INFORMATION], would usually not be considered to be a significant traumatic event, especially when the Worker s symptoms did not develop for at least an hour post injury. 19. By letter dated January 15, 2014, the Board indicated that it had reviewed the new evidence, mainly Dr. Campbell s letter of August 2, 2013, and that letter did not change its decision to deny the Worker s claim. The Board extensively cited the opinion of Dr. O Brien in its decision to deny the claim. 20. The Worker subsequently applied for reconsideration, and by letter dated March 18, 2014, a Reconsideration Officer denied the reconsideration request, finding that on the balance probabilities, it was more probable than not that the Worker s symptoms and diagnosis were reasonably related to the order and disease of life and osteoarthritis, rather than the workplace incidents. ISSUE 21. The issue in this matter is whether the Board was correct when it determined that on a balance of probabilities, the Worker s right knee symptoms were not the result of an accident arising out of and in the course of the Worker s employment on November 23, ANALYSIS/DECISION 22. The proper standard of review by WCAT is that of correctness; in other words, an incorrect decision by the Board may be corrected by WCAT. In applying the correctness standard of review, WCAT undertakes its own analysis of the issue to determine whether WCAT agrees or not with the Board s decision and if it does not agree with the Board s decision, WCAT will substitute its own view for that of the Board [per Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, para. 50]. 23. Section 6(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-71.1 (hereinafter referred to as the Act ) provides that a Worker must have suffered a personal injury by accident arising out of and in the course of employment in order to receive compensation. 24. The Board has taken the position that it is more probable then not that the Worker s right knee symptoms were not the result of [PERSONAL INFORMATION]or walking down the

7 WCAT Decision #208 Page 7 of 12 hallway at work, and further, that even if the Worker s right knee symptoms were caused by walking down the hallway at work, the act of walking down a hallway does not constitute an accident within the meaning of the Act. 25. The Worker takes the position that her right knee symptoms were caused by either the [PERSONAL INFORMATION] bedrail or the turning/twisting of her knee while walking down the hall, and that either or both events would constitute an accident arising out of and in the course of employment within the meaning of the Act. 26. There are two preliminary factual issues which this Panel must resolve: (a) Did the Worker [PERSONAL INFORMATION] preceding the incident of the right knee popping while walking down the hallway; and (b) Did the Worker twist her knee before the incident of the right knee popping while walking down the hallway? 27. Firstly, while the Board had accepted that the Worker had [PERSONAL INFORMATION] preceding the incident of the right knee popping while walking down the hallway 1, the Board now appears to cast some doubt in its written submission as to whether this event actually occurred. 28. This Panel accepts and finds as fact that the Worker did [PERSONAL INFORMATION] preceding the incident of her right knee popping. The Worker s version of events is corroborated by a co-worker, and while the bedrail incident was not identified in the Form 6 Worker s Report, it was brought to the Board s attention on or about December 22, 2011, approximately one month after the symptoms manifested. This Panel accepts the Worker s explanation that this incident had slipped her mind and hence why it was not reported to the Board prior to December 22, Accordingly, this Panel finds as fact that the [PERSONAL INFORMATION] which incident preceded the incident of her right knee popping while she walked down a hallway. 30. Secondly, there appears to be some disagreement between the Parties, as evidenced by the Parties written submissions, as to whether the Worker twisted her knee prior to the popping incident. Specifically, the Board submits that any reference to the knee twisting is omitted from the Worker s Form 6 and from the notes of Dr. Scott Cameron relating to the Worker s assessment at the Emergency Department on November 24, The evidence regarding this issue is as follows: (a) In the Form 6 Worker s Report dated November 24, 2011, the Worker notes that she was moving forward + turned leg + felt + heard a pop in my right knee. 1 By letter dated August 1, 2012, a Board Officer wrote at page 3 that I do acknowledge and accept that the incident of bumping the back of your knee occurred

8 WCAT Decision #208 Page 8 of 12 (b) Dr. Scott Cameron notes of the Worker s November 24, 2011 attendance at the emergency department, that Type of injury: incident occurred while walking on level in the hallway, not fall, not twisting and not lifting. (c) The Form 7 Employer s Report notes that staff member was walking down hallway with coworker, when she turned her leg she felt and heard a pop in her (R) knee. (d) Dr. G. Stewart Campbell notes in his December 6, 2011 letter regarding his initial assessment of the Worker, that the Worker sustained a twisting injury to her right knee at work. (e) Dr. G. Stewart notes in his August 2, 2013 letter that the Worker advised me that the mechanism of the injury was that [the Worker] hit the back of [the Worker s] [PERSONAL INFORMATION], subsequently twisted [the Worker s] right knee, and felt an audible pop with coincident swelling and discomfort in the right knee, which has persisted. 32. While the Board is correct in pointing out that Dr. Scott Cameron noted on November 24, 2011 that there was no twisting, the remainder of the evidence noted above indicates that there was some twisting or knee turning which preceded the knee popping incident. This Panel interprets the reference in both the Form 6 and Form 7 to the knee turning as referring to the same type of action as twisting and accordingly, this Panel disagrees with the Board s submission that the Worker did not make mention of the knee twisting in the Worker s original Form Given that the weight of the evidence does indicate that the knee twisted or turned sometime prior to popping, this Panel attributes Dr. Scott Cameron s statement that there was no twisting to be in error, and this Panel has found as fact that the Worker did twist her knee at some point shortly prior to the popping of the Worker s right knee. 34. To summarize, this Panel finds as fact that on November 23, 2011, while at the workplace, the Worker: (a) [PERSONAL INFORMATION] and immediately voiced pain regarding same; (b) While walking down the hall at work, the Worker twisted or turned her right knee; (c) After twisting or turning her right knee, the Worker heard and felt a pop in her right knee; and (d) After this popping incident, the Worker experienced instability in her right knee. 35. In his opinion of August 2, 2013, Dr. Campbell does not isolate whether the [PERSONAL INFORMATION] or the twisting of the right knee in the hallway caused either the anterior cruciate ligament tear or the medial collateral ligament sprain, but opines that neither the tear or the sprain can be explained on the basis of degenerative changes and reasons that as the Worker had no history of right knee injury prior to November 23, 2011, the Worker must have suffered the said tear and sprain as a result of the workplace incident(s).

9 WCAT Decision #208 Page 9 of Dr. O Brien notes in his January 8, 2014 letter to the Board that Campbell s Operative Orthopaedics indicates that with respect to an anterior cruciate ligament injury, a patient often describes the knee as having been hyperextended or popping out of joint and then reducing and that a pop is frequently heard or felt. Dr. O Brien suggests that as the Worker did not experience the popping of her knee after banging her knee against the bedrail, the anterior cruciate ligament injury indicated on the Worker s MRI was not caused by the banging of her knee against the bedrail. 37. Dr. O Brien also indicates that in his opinion, just because the Worker s knee became symptomatic at work, does not mean the workplace activity was the underlying cause of the knee becoming symptomatic, as there was nothing unusual initially described which would have caused either the anterior cruciate ligament tear or the medial collateral ligament sprain. Dr. O Brien appears not to take the allegation of the Worker twisting her knee into consideration in his January 8, 2014 opinion on the grounds that the twisting was not initially reported. 38. In this Panel s opinion, Drs. Campbell and O Brien present conflicting medical information. WCAT is bound by subsection 56(17) of the Act to fully implement Board policies. Section 9 of Board Policy POL-68 (Weighing of Evidence) states in part as follows: 9. Where there is conflicting medical information on a claim, the Workers Compensation Board will analyse the information objectively, using the following criteria: the expertise or degree of specialization of the health care provider giving the opinion; the relevance of the clinical expertise of the health care provider giving the opinion to the medical question being addressed; the accuracy of the information relied upon by the health care provider; objective versus subjective medical information; the relevance of any research referenced by the health care provider; and any issues of bias or objectivity. [My Emphasis] 39. In applying section 9 of Board Policy POL-68, this Panel notes as follows: (a) Dr. Campbell is an orthopaedic surgeon, which is a greater degree of specialization then Dr. O Brien. (b) Dr. Campbell assessed the Worker and Dr. O Brien did not. However, in this Panel s view, in their respective medical opinions of August 2, 2013 and January 8, 2014, both Drs. Campbell and O Brien were providing their opinions with respect to the MRI findings of Dr. Rory Porteous, and there is no evidence that the personal assessment of the Worker by Dr. Campbell gave greater insight to Dr. Campbell in forming his opinion. Accordingly, this factor is neutral. (c) As noted above, Dr. O Brien appears not to have taken into account the allegation that the Worker twisted her knee prior to hearing the knee pop. This Panel has accepted as fact

10 WCAT Decision #208 Page 10 of 12 that the Worker did twist her knee prior to hearing the knee pop. Accordingly, in the Panel s view, Dr. Campbell has relied upon more accurate information in forming his opinion than Dr. O Brien. (d) Dr. O Brien presents his research of medical publications in his opinion of January 8, While Dr. Campbell may have been relying upon his research and study in providing his opinion on August 2, 2013, same is not cited. Accordingly, this factor supports Dr. O Brien. (e) In the Panel s view, there are no issues regarding bias, objectivity, or subjectivity in the opinions of either Drs. Campbell or O Brien. 40. The application of section 9 of Board Policy POL-68 is not merely a counting exercise; In other words, the Panel does not have to accept Dr. Campbell s opinion over Dr. O Brien s solely on the grounds that more of the above factors pointed to accepting Dr. Campbell s opinion than accepting Dr. O Brien s opinion. 41. In considering the above factors, this Panel has decided to accept Dr. Campbell s medical opinion over Dr. O Brien s, chiefly on the grounds that Dr. O Brien does not address what effect the twisting of the Worker s right knee would have on the causation of the anterior cruciate ligament tear and the medial collateral ligament sprain. As noted above, this Panel has found as fact that the Worker did twist her knee in the workplace on November 23, 2011 prior to hearing and feeling her knee pop. 42. Accordingly, the Panel accepts Dr. Campbell s opinion that the Worker s anterior cruciate ligament tear and the medial collateral ligament sprain were caused at the workplace on November 23, 2011 after the Worker [PERSONAL INFORMATION] and subsequently twisted or turned her knee while walking down a hallway. 43. While Dr. O Brien suggests that the [PERSONAL INFORMATION] did not cause the sprain or tear because the popping occurred later, this Panel is not prepared to accept that the [PERSONAL INFORMATION] did not contribute to the said sprain and tear. The fact that the Worker [PERSONAL INFORMATION] as was subsequently injured, the fact that the Worker reported to a co-worker that her knee hurt at the time of this incident, and the fact that the Worker felt and heard her knee pop a relatively short time after this incident, all indicates to the Panel that on a balance of probabilities, the Worker banging the [PERSONAL INFORMATION] was at least a contributing factor in the said tear and sprain. 44. Accordingly, this Panel finds as fact that the Worker s anterior cruciate ligament tear and the medial collateral ligament sprain were caused by a combination of the Worker [PERSONAL INFORMATION] and subsequently twisting her knee while walking down a hallway in the workplace. 45. Given this factual finding, this Panel must now decide whether the factual cause of the said tear and sprain constituted an accident arising out of and in the course of employment, as required by Section 6(1) of the Act.

11 WCAT Decision #208 Page 11 of Section 1(1)(a) and 1.1 of the Act provides as follows: 1(1) In this Act (a) accident means, subject to subsection (1.1) a chance event occasioned by a physical or natural cause, and includes (i) (ii) a willful and intentional act that is not the act of the worker, any (A) event arising out of, and in the course of, employment, or (B) thing that is done and the doing of which arises out of, and in the course of, employment, and (iii) an occupational disease, and as a result of which a worker is injured. (1.1) The definition accident in clause 1(a) does not include stress other than an acute reaction to a traumatic event. [Emphasis added] 47. Section 6(4) of the Act provides as follows: 6(4) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. 48. This Panel is satisfied that both the [PERSONAL INFORMATION] and the subsequent twisting of the knee while walking down the workplace hallway, were both chance events occasioned by a physical cause, which as a result, caused the Worker to be injured. 49. The Panel notes that the [PERSONAL INFORMATION] was a thing which the Worker did arising out of and in the course of her employment, namely, while [PERSONAL INFORMATION]. 50. The Panel also notes that the twisting of the Worker s knee occurred in the course of employment and it was not shown pursuant to section 6(4) of the Act that this twisting did not arise out of the employment. This Panel is therefore satisfied that twisting of the Worker s knee was also a thing or chance event which arose out of and in the course of the Worker s employment.

12 WCAT Decision #208 Page 12 of Accordingly, for the reasons noted above, this Panel finds that pursuant to Section 6(1) of the Act, both the Worker s anterior cruciate ligament tear and the medial collateral ligament sprain, were personal injuries arising by accident out of and in the course of the Worker s employment. As the Board came to the opposite conclusion, this Panel finds that the Board made an incorrect decision and the Panel therefore substitutes its finding for that of the Board. 52. Accordingly, the Panel allows the Worker s appeal and returns the Worker s claim to the Board for determination of the appropriate benefits to be provided to the Worker in light of the Panel s findings herein. Dated this 7th day of July, _ John L. Ramsay, Q.C. Vice-Chair Workers Compensation Appeal Tribunal Concurred: Fairley Yeo, Employer Representative _ Bruce Gallant, Worker Representative _