The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 20, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 20, 2001.

Issue

Whether or not the claimant has recovered from the effects of his 1997 compensable injury; and,

Whether or not the claimant is entitled to vocational rehabilitation assistance in relation to his 1982, 1990 or 1997 claims.

Decision

That the claimant has not recovered from the effects of his 1997 and/or 1990 compensable injuries; and,

That the claimant is entitled to vocational rehabilitation assistance in relation to his 1982, 1990 or 1997 claims.

Background

Right knee injury of August 23, 1982

On August 23, 1982, while employed as a Parts/Service Clerk, the claimant slipped off of a 8 - 10 foot ladder twisting his right knee and injuring his left heel.

Medical treatment was sought on the day of accident at a local hospital emergency facility and the claimant was diagnosed with a medial ligament strain of the right knee. Subsequent x-rays revealed no fractures. Treatment included no weight bearing along with passive exercises followed by physiotherapy treatments. The Workers Compensation Board (WCB) accepted financial responsibility for this claim on September 9, 1982 and the claimant was provided with payment of total temporary disability benefits.

On November 29, 1982, an orthopaedic surgeon reported that the claimant had undergone an arthrogram examination on November 12, 1982 and that the examination did not demonstrate any torn cartilage. The posterior cruciate ligament appeared normal but the anterior cruciate was not fully demonstrated. A subsequent arthroscopy of the right knee dated April 6, 1983, diagnosed the claimant with osteochondritis of the femoral condyle.

In March of 1985, the orthopaedic surgeon reported that the claimant was again seen for treatment of his right knee. A request was made to re-open the case based on the continuing aggravation of a pre-existing disease. The WCB considered the request but it was felt that the claimant's right knee condition was related to osteochondritis which was pre-existing and was not affected by the 1982 accident.

Right knee injury of November 27, 1990

While employed as a Car Salesman on November 27, 1990, the claimant reported that he slipped and fell from a steel ramp while brushing snow off a car. The claimant reported injuries to his right knee, lower leg, back and head. Medical treatment was sought from the family physician on the day of accident and a diagnosis of medial ligament tear and lacerations was made. An x-ray was performed which revealed no significant bone or joint abnormality. A referral was made to an orthopaedic surgeon.

When seen by an orthopaedic surgeon on December 3, 1990 the claimant was diagnosed with an anterior cruciate (ACL) tear of the right knee. Reconstruction of the ACL was recommended. The claimant was then treated with a knee brace and physiotherapy. Surgical reconstruction of the ACL was carried out on September 10, 1991.

The claimant was paid benefits until June 8, 1992, when it was determined by the orthopaedic surgeon that the claimant was fit to return to work.

In March 1993, information was submitted to the WCB advising that the claimant was continuing to experience difficulty with his right knee. Arrangements were made for an arthroscopic examination of the knee which was carried out on June 25, 1993. Responsibility for the surgery as well as 8 weeks of wage loss benefits was approved by the WCB. Temporary total disability benefits were paid from the date of surgery to August 19, 1993 inclusive.

In September 1994, the claimant was examined at the WCB for the purposes of establishing a Permanent Partial Disability award (PPD). Based on the examination results, the claimant was awarded a PPD award of 16.2% and was provided with a lump sum settlement.

Right knee injury of May 21, 1997

On May 21, 1997, the claimant sustained a third injury to his right knee while attempting to exit a vehicle which had been parked on uneven ground. On May 22, 1997, the attending physician diagnosed the claimant with a chronic arthritis affecting the right knee. The claim was accepted by the WCB on July 8, 1997 and the claimant was provided with wage loss benefits.

On July 9, 1997, an orthopaedic surgeon reported that the claimant presented with signs and symptoms suggesting a torn right medial meniscus or traumatic femoral condyle chondromalacia. Surgery was recommended and authorized by the WCB.

On September 18, 1997, arthroscopic probing of the right knee was carried out. The post operative diagnosis was chondromalacia and arthritic changes.

By letter dated December 2, 1997, the WCB wrote to the claimant to advise that responsibility for the claim would end on December 9, 1997. In reaching this conclusion, the WCB indicated that based on the arthroscopic findings, the diagnosis was early arthritis of the right knee which had been temporarily aggravated by the compensable injury of May 21, 1997. The WCB was of the opinion, that the claimant had recovered from the arthroscopic procedure and that his ongoing difficulties were due to his pre-existing condition.

Subsequent to the WCB's discontinuing its responsibility on this claim, several reports were received from the treating orthopaedic surgeon advising that the claimant continued to be symptomatic with respect to his right knee. In a report dated August 18, 1998, the orthopaedic surgeon was of the opinion that the claimant could not return to his previous car sales duties because of his knee condition. He felt that a functional capacity evaluation (FCE) would be useful to see what the claimant was capable of performing and if there should be restrictions.

On September 4, 1998, the claimant was advised by primary adjudication that his case together with the orthopaedic specialist's report had been reviewed by a WCB medical advisor. It was the medical advisor's opinion that the claimant's ongoing knee problems were attributable to his pre-existing condition and that he was capable of returning to his pre-accident occupation. The claimant was also advised that his file had been reviewed by the WCB's Vocational Rehabilitation Department and that he did not qualify for vocational rehabilitation benefits and services because he did not experience a loss of earning capacity.

In January 2000, a worker advisor appealed the above decision to Review Office and submitted a November 15, 1999, report from the treating orthopaedic specialist for consideration. Prior to Review Office's considering the appeal, the case was referred back to primary adjudication to review the new medical information and to render a decision.

On February 25, 2000, Rehabilitation and Compensation Services determined that the May 21, 1997 injury was an aggravation of the claimant's pre-existing condition and that wage loss benefits would be extended on that claim. It was also recognized that the claimant still had ongoing problems with his knee and that a decision with respect to the claimant's entitlement to further wage loss benefits would be made with respect to the 1990 claim.

In a decision dated April 13, 2000, Rehabilitation and Compensation Services determined that the WCB was unable to accept responsibility for wage loss benefits beyond August 19, 1993 and that the claimant was still capable of performing the duties of a salesman. This decision was reached based on the medical information on file including the results of a WCB medical advisor's examination of the claimant on March 22, 2000.

On July 17, 2000, Review Office determined that the claimant had recovered from the effects of the 1997 right knee injury, that the claimant's ongoing right knee complaints were a sequelae of his 1990 injury, and that there was no entitlement to vocational rehabilitation assistance.

In reaching the above decisions, Review Office stated that the injury sustained in 1997 was relatively minor in nature and that recovery had occurred by the time wage loss benefits ceased in December 1997. It was noted that the claimant had been working as a car salesman when he was injured in 1990 and that after a period of convalescence he returned to that job or an allied one. As Review Office did not accept that the 1997 injury had a lasting effect, it followed that the claimant could have returned to work as a car salesman following his recovery from that injury.

On October 17, 2000, an application to appeal was submitted by a worker advisor requesting an oral hearing. Subsequent to clarifying the issues under appeal, an oral hearing was convened on March 20, 2001.

Reasons

We find that the claimant has not, on a balance of probabilities, fully recovered from the effects of the 1997 and/or 1990 compensable injuries. In this regard, we accept and rely on the evidence of the claimant's treating orthopaedic specialist. The most compelling portion of the specialist's evidence is contained in his opinion letter dated November 15th, 1999 to the claimant's worker advisor. In that letter he states the following:

"On August 18, 1998, I stated Mr. [the claimant] had a knee at risk and it would be expected to deteriorate with the passage of time. It was my interpretation that the problems of Mr. [the claimant's] right knee were predominantly from the 1980's injury (the exact date again is not known). It was further aggravated by work-related injuries in 1990, then in 1997. X-rays over the last couple of years have shown significant deterioration and progressive osteoarthritis. There has been a dramatic change from August 1998 until November 1999."

Therefore, there has been extensive worsening of the right knee condition that is now overtly arthritic, especially in the lateral compartment. It is now causing secondary effects more proximally. He is markedly restricted in his range of motion and continues with pain.

At present Mr. [the claimant] is unemployable. It is unrealistic to think that he could return to a car salesman's duties requiring him to be up and down, walking a lot, and getting in and out of vehicles with ease. It is unclear what he might be able to work at considering his background, and now progressive osteoarthritis and compromise, and his relatively young age."

"The overall prognosis is poor and there will be continual worsening. At some point he will require a right total knee replacement.

The right knee osteoarthritis is the result of the anterior cruciate instability to the right knee and subsequent wear. The likelihood of the arthritis being on the basis of a pre-existing genetic or developmental condition is not possible as the standing AP x-ray of the left knee is essentially normal.

Mr. [the claimant's] restrictions are now marked. He would be compromised with prolonged sitting, standing, climbing or bending. A full sedentary job may not be the answer either because of the progressive osteoarthritis of the right knee. Certainly he would have to be vocationally evaluated and a decision made what he might be able to do or be trained to do. Also, an assessment would have to be made re his endurance and could he in fact work part-time or full-time. Keep in mind it is anticipated that the arthritic condition will continue to worsen with the passage of time.

It is my opinion that Mr. [the claimant] would not be able to return to work as a car salesman because of the progressive osteoarthritis in the right knee. This would limit his abilities to walk, climb in and out of cars, do stairs or stand for a prolonged period of time.

I am not able to state what specific type of duties Mr. [the claimant] would be capable of performing. However, it would require nothing physical and also require him to have the abilities to sit or stand for short periods."

The foregoing commentary was endorsed and accepted by a WCB medical advisor, who examined the claimant on March 22nd, 2000. We note, in particular, the opinion expressed by the medical advisor in his examination notes bearing the same date.

"The examination today shows a claimant with considerable evidence of muscle wasting and restriction of range of movements of the knee with some evidence of internal laxity of the ligaments of the knee. His knee also shows evidence of a fusion. For restrictions see below.

Based on this history, the injuries of 1990 and 1997 combined with the evidence of imaging studies this claimant in my opinion has suffered an enhancement of his pre-existing condition of 1990 and/or 1997. The evidence for enhancement is based on the physical examination but is also based on the imaging studies of 1998 and 1999 as included in the text of Dr. [treating orthopaedic specialist's] letter dated November 15, 1999 to the Worker Advisor."

As to the second issue, we find the evidence confirms that the claimant, as a result of his compensable injuries, is not capable of returning to his occupation as a car salesman. We are in agreement with the WCB's medical advisor that the claimant should have the following restrictions imposed upon him. "No prolonged sitting, no prolonged standing, no stairs, no walking over rough ground, no repeated crouching, bending or stooping. These restrictions would likely be permanent." In addition, we subscribe to the medical advisor's suggestion that there should be a referral of the claimant to Vocational Rehabilitation. We further find therefore that the claimant is entitled to vocational rehabilitation assistance in relation to his various claims. The claimant advised the Panel at the hearing that he was currently involved in a retraining program.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 24th day of April, 2001