Public Decisions | The Appeal Commission

Decision #69/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 10, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 10, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits and services beyond May 7, 1998.

Decision

The claimant is entitled to wage loss benefits and services from May 7, 1998 to December 1999.

Background

While performing the duties of a home care attendant on February 1, 1997, the claimant twisted her left knee. The diagnosis rendered by the attending physician was a sprain of the medial ligament of the left knee and a low back strain. It was also noted that the claimant had previous left knee difficulties and that she had undergone cartilage surgery in 1995. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on February 13, 1997.

On March 19, 1997, an orthopaedic specialist examined the claimant's left knee and reported medial joint pain. An MRI examination was then arranged and was subsequently performed on May 8, 1997. The impression read, "No ligamentous abnormality is identified."

On June 24, 1997, a WCB medical advisor reviewed the file and stated that there was a direct cause-effect relationship between the compensable injury and the current diagnosis which was a sprain of the left knee. It was anticipated that the claimant would be capable of returning to work by July 15, 1997.

A copy of an operative report dated April 27, 1995, concerning the claimant's previous surgery to her left knee was obtained. The pre-operative diagnosis was left anterior knee pain. The postoperative diagnosis was chondromalacia of the patella and medial patellar plica syndrome.

On August 14, 1997, the claimant's left knee was examined by a WCB medical advisor and the following opinions were outlined:

the claimant was still suffering from left knee pain as a result of patellofemoral problems and possible medial meniscus tear.
from the 1995 operative report, the claimant likely had pre-existing chondromalacia of the patella which may have been aggravated by the compensable injury;
although the MRI scan was negative, the medical advisor believed there was still a possibility that the claimant had a tear in the medial meniscus.
the claimant was only fit to perform sedentary work with restrictions for three months.

On October 30, 1997, the claimant underwent a left knee arthroscopy and lateral release of the patella. Financial responsibility for this procedure was accepted by the WCB.

In April 1998, a WCB orthopaedic consultant examined the claimant's left knee. He concluded following the examination, that the claimant had largely recovered from the February 1, 1997, strain injury to her left knee and that her continuing disability was the result of her pre-existing condition and not due to the compensable injury. Based on these findings, primary adjudication advised the claimant that her wage loss benefits would be issued to May 7, 1998, inclusive and final.

A further medical report was received from the treating orthopaedic specialist dated January 8, 1999 requesting that the WCB accept responsibility with respect to further left knee surgery. The specialist indicated that the claimant had a very prominent painful bipartite component which he believed to be directly related to the work place injury of February 1997. On February 3, 1999, a WCB medical advisor denied responsibility for this surgery stating that the WCB was unable to identify any causal relationship between this condition and the compensable injury.

On July 29, 1999, a union representative wrote to Review Office indicating that the claimant was scheduled to have surgery with respect to bipartite patella in September 1999. She stated that the bipartite patella had been problematic for the claimant ever since her work related accident and that to date, the claimant has not been able to return to work as a home care attendant. The union representative's position was that the WCB had not considered what ongoing relationship the bipartite patella had with the February 1, 1997, compensable injury.

On August 20, 1999, Review Office determined that the claimant was not entitled to wage loss benefits and services beyond May 7, 1998. Review Office noted that the claimant had severe chondromalacia of the patella and the femoral condyle prior to the February 1, 1997 work injury. Review Office was satisfied that the compensable injury was nothing more than a strain of the medial joint capsule and the medial collateral ligament and that no enhancement of the pre-existing condition had occurred. Review Office referred to the WCB's orthopaedic consultant's opinion that the bipartite patella condition was developmental in origin, i.e. occurring when the patella develops from two centers of ossification instead of one. Review Office accepted that the bipartite patella was a pre-existing condition which was unaffected by the compensable strain injury.

In February 2000, an application was received from the union representative appealing Review Office's decision of August 1999. An Appeal Panel hearing then took place on May 10, 2000 but was adjourned sine die to allow for further preparation. The hearing reconvened on June 20, 2000.

Reasons

At the time of her compensable injury, the claimant sustained what was diagnosed as a sprain of the medial collateral ligament of the left knee. Benefits were discontinued on the basis that the claimant had largely recovered from her left knee injury and that her continuing disability was attributable to a non-work related pre-existing condition. This condition was identified as an advanced degree (Grade II to Grade III) of chondromalacia patella and of the femoral condyle.

On appeal to Review Office, the claimant's union representative advised that the claimant was scheduled to have surgery for her left knee bipartite patella. Apparently this condition had been problematic for the claimant since her compensable accident in 1997. The union representative asked Review Office to consider the relationship of the bipartite patella to the compensable injury.

Prior to making a decision, Review Office consulted with a WCB medical advisor as to the etiology of this condition. The medical advisor responded by saying, "It is a developmental variant of the patella in which the patella develops from 2 centres of ossification instead of one." Review Office concluded that the bipartite patella was a pre-existing condition which was unaffected by the compensable injury.

The claimant testified at the hearing that since the time of her injury she had persistent left lateral knee pain, tenderness and swelling up to the time of her surgery in September 1999. We note the attending physician's progress report provided to the WCB on April 22nd, 1997 recorded the following commentary: "Lately sharp pain over lateral aspect. Tenderness medial and lateral aspect of left knee below patella." In addition, the physiotherapist's final report of April 29th, 1998 stated, "This patient still walks with a definite limp and does present with swelling."

On or about September or October of 1998, the claimant sought the opinion of a second treating orthopaedic surgeon. He provided a report to the treating physician together with a copy to the WCB stating in part:

The surgeon believed that the claimant's very prominent painful component was directly related to her February 1997 work injury.

In support of the claimant's appeal to the Appeal Commission, the union representative requested an updated report from the second orthopaedic surgeon. A number of questions were asked regarding the claimant's bipartite patella.

A. On first seeing this patient she had already had arthroscopy performed with lateral release on the retinaculum which had not helped her. The long and short of physical exam and her story were that up to the episode where she twisted on her knee, she did not have the specific superolateral pain which has persisted since that time. Examination revealed tenderness specifically in the area of the superolateral aspect of the patella which is in the area of the bipartite component. It is quite common that bipartite patellae are non-symptomatic and then with a traumatic event, develop a degree of motion at the fibrous union between the bipartite component and the patella which is a developmental abnormality and then becomes symptomatic. I feel that her story and examination point to that.

Q. Was her bipartite patella enhanced as a result of her work-related injury?

A. This is difficult to say because prior to this her bipartite patella may have been completely asymptomatic and as such then it is not a problem in which case it is a brand new injury. However it could be argued that it is a developmental abnormality which is enhanced by the traumatic episode she describes.

Q. Can you provide information that shows examination of her knee prior to surgery and post surgery (September 1999)? Has the surgery improved her situation and is rehabilitation progressing?

A. Examination is no different pre and post-surgery however the patient's pain is dramatically different superolaterally and her rehab is progressing. I think this is the best indicator that this has been the site of her problem.

We find based on the preponderance of evidence that the claimant's continued left knee problems since the termination of her WCB benefits were on a balance of probabilities related to the compensable injury of February 1, 1997. We take particular note of the fact that the claimant concluded her rehabilitation physiotherapy following surgery sometime around December 1999. Accordingly, we further find that the claimant is entitled to wage loss benefits and services from May 7th, 1998 to December 1999.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of July, 2000

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