The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 16, 2001, at the request of the claimant. The Panel discussed this appeal on January 16, 2001 and June 28, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond September 27, 1999.

Decision

That the claimant is entitled to wage loss benefits beyond September 27, 1999 up to the expected recovery date from the surgery related to the loose bodies in the knee.

Background

File records indicate that the claimant was taking apart 2 x 4's with a hammer on June 1, 1999, when the hammer struck his left knee. No time loss was incurred as a result of the incident and no immediate medical treatment was sought. On June 26, 1999, the claimant was pulling out trees at work when the root from a tree accidentally hit the same area of his left knee as was injured on June 1st. On June 29, 1999, the claimant reported both injuries to his employer and then sought medical attention for his left knee condition.

A Doctor's First Report dated June 29, 1999, showed that the claimant exhibited a limping gait and discomfort in his left knee. Treatment included physiotherapy, a tensor bandage and left knee x-rays. The diagnosis rendered was a possible contusion.

On June 29, 1999, an x-ray report of the left knee indicated that degenerative change was present in the left knee and there was synovial osteochondromata noted.

In a report dated September 2, 1999, an orthopaedic specialist documented his examination findings with respect to the left knee. He noted that x-rays showed a moderate degree of arthritis of the medial compartment and the presence of loose cartilaginous bodies. The specialist concluded that the claimant's left knee pain seemed to have been triggered by direct injuries while at work. A left knee arthroscopy, possible debridement and removal of the loose body in the knee was booked for the claimant.

On September 9, 1999, a medical advisor with the Workers Compensation Board (WCB) was asked by primary adjudication to review the claim and to provide his opinion with respect to the claimant's left knee status. The medical advisor was of the view that the current diagnosis was extensive degenerative disease of long standing, possibly temporarily aggravated by the compensable injury. He thought that the claimant was restricted in his work capabilities but this was not as a result of the compensable injury. With respect to the arthroscopy, the medical advisor did not feel the surgical procedure was necessary for the recovery of the compensable injury, although it might temporarily improve the claimant's symptoms.

In a letter to the claimant dated September 27, 1999, primary adjudication determined that wage loss benefits would only be paid to September 27, 1999 based on the following factors:

• the weight of evidence suggested that the claimant suffered an aggravation of his pre-existing arthritis to his left knee; and
• on a balance of probabilities, it was determined that the claimant had recovered from his compensable injury and his inability to return to work was due solely to his pre-existing condition.

On October 22, 1999, the case was considered by Review Office at the request of the claimant. Review Office confirmed the decision that the claimant was not entitled to payment of wage loss benefits after September 27, 1999 based on the following factors:

• Review Office believed that the extensive degeneration noted on the x-ray results existed before the work place injury.
• the comments put forth by the WCB medical advisor that the workplace injury had temporarily aggravated the pre-existing pathology in the claimant's left knee;
• the left knee surgery was related to the pre-existing condition and not to the effects of the workplace incident of June 1999.

On June 19, 2000, the claimant appealed the Review Office's decision and an oral hearing was requested.

Subsequent file documentation revealed the Appeal Commission's acting registrar's request for an up-dated report from the orthopaedic specialist with respect to the claimant's left knee status. In a letter dated July 19, 2000, the orthopaedic specialist advised that the claimant had undergone a left knee arthroscopy on November 9, 1999, with removal of the cartilaginous loose body and debridement of the tear of the medial meniscus. A large amount of Grade 4 chondromalacia of the medial compartment was found. The specialist commented that the claimant had now reached the point where a total knee replacement should be considered due to the failed attempt at arthroscopy and local injection of Cortisone.

Arrangements were made for an oral hearing to take place on November 16, 2000. At the request of the claimant, the hearing date was moved to December 13, 2000 and then to January 16, 2001.

Following the hearing on January 16, 2001, the Appeal Panel requested additional information be obtained from the orthopedic specialist who performed the November 9, 1999 left knee arthroscopy. A report from the specialist was later received dated June 4, 2001 and was distributed to the parties with a direct interest for comment. On June 28, 2001, the Panel met to render its final decision on the issue under appeal.

Reasons

As the background notes indicate, the claimant sustained a compensable injury on June 1st, 1999. The claimant described the mechanism of injury as a direct blow with a hammer to the medial aspect of his left knee. He later underwent an x-ray of his left knee on June 29th, 1999. The x-ray identified the following defects: "Small osteophytes are present arising from the articular margins of the patella. There are large calcifications in the knee posteriorly as well as anteriorly. These are considered to be osteochondromata of at least 15 mm. in size." There is no question that these osteophytes can be regarded as a pre-existing arthritic condition.

The attending physician eventually referred the claimant to an orthopaedic surgeon, because of the persistence of the claimant's pain and his development of mechanical symptoms. A left knee arthroscopy was performed on November 9th, 1999 at which time cartilaginous loose bodies found in the medial gutter were removed from the knee. In addition, the surgeon also debrided a tear of the claimant's medial meniscus. The operative report listed the postoperative diagnosis as: removal of osteo cartilaginous loose body, grade IV chondromalacia of the medial compartment and partial degenerative tear of the medial meniscus.

In arriving at our decision, we attached considerable weight to the orthopaedic surgeon's opinion, which is contained in a letter to the Office of the Registrar dated June 4th, 2001. The report stated in part as follows:

"At the time of the scope I found an intra-articular loose body that could be explained with a direct blow to his knee. He had osteophytes in the medial compartment and quite likely one of these osteophytes became loose after one of those injuries.

The development of mechanical symptoms could be related to the presence of a loose body or tear of the medial meniscus. This certainly will aggravate to a certain degree the pre-existing arthritis of this gentleman.

The decision to perform arthroscopic surgery was mostly related to presence of mechanical symptoms which developed after a work-related injury."

After carefully weighing all of the evidence, we find that the claimant is entitled to wage loss benefits beyond September 27th, 1999 for a period which would include the surgery of the intra-articular loose body and a reasonable recovery time following this removal. Accordingly, the claimant's appeal is hereby accepted.

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 16th day of August, 2001