Decision #56/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 11, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 11, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On December 21, 2000, the claimant submitted an application for compensation benefits in which he attributed the loosening of his right hip prosthesis to his work duties as an assistant mechanic.

In letter dated December 7, 2000, the family physician indicated that the claimant had fractured his right hip in 1989 and was treated with open reduction. A hip replacement was performed in 1993. Recently, the treating orthopaedic surgeon advised the claimant that the reason for the loosening of his prosthesis was due to the work he was doing for the accident employer. He since advised the claimant to modify his duties. "Because the loosening of his prosthesis has been attributed to the type of work he was doing, Mr. [the claimant] wishes to place a claim with the Workers Compensation Board (WCB)."

On January 8, 2001, an advocate for the employer opposed the acceptance of the claim for the following reasons:
  • The claimant had not worked with the company since August 30, 1999 when he was placed on disability insurance benefits with Great West Life.

  • The claimant had a significant medical condition apparently caused by a snowmobile accident that pre-dated his employment with the company. This pre-existing condition was significant enough that he had a permanent limp to his gait.
On January 17, 2001, an orthopedic surgeon reported that he initially assessed the claimant on August 30, 1999, with a failed right total hip arthroplasty. The claimant then underwent revision of his right total hip arthroplasty on April 12, 2000. The claimant required grafting and complete revision of all components. The claimant was continuing to rehabilitate at an appropriate level, but was unable to return to normal activity. With respect to his job with the employer, the surgeon suggested that a workplace assessment be done to determine the appropriateness of the claimant's future return to work.

On March 29, 2001, a WCB orthopaedic consultant was asked to review the file (which included x-ray reports, two operative reports dated February 3, 1993 and April 12, 2000, and a copy of the claimant's job description) at the request of primary adjudication. On March 30, 2001, the orthopaedic consultant stated the following:
    Loosening of the prosthesis is a common complication of total hip replacement. It is increased by excessive physical activity. After the arthroplasty has been revised it should be about as good as it was before it loosened. Therefore the loosening may be considered an aggravation because the condition has been corrected and was not permanent.

    The previous total hip replacement was a pre-existing condition. The surgery of April 2000 would be considered work related as the loosening is probably due to strenuous activity in his job. He must avoid strenuous work because he has had a hip replacement. This restriction is due to his pre-existing condition.

    Usual recovery period after hip replacement is about five months.
On May 8, 2001, the claimant was advised by primary adjudication that the WCB had accepted the claim on a limited basis. The WCB considered the claimant's hip prosthesis to be a pre-existing condition that was aggravated by his employment and that following surgery and an appropriate recovery period, the aggravation of his right hip prosthesis had resolved. Wage loss benefits would be paid from August 31, 1999 to September 12, 2000, inclusive and final. On June 21, 2001, the employer's advocate appealed the WCB's decision to accept responsibility for the claim and the case was forwarded to Review Office for consideration.

On September 21, 2001, Review Office considered a letter of appeal from the claimant's union representative dated June 28, 2001 and a WCB orthopaedic consultant's September 13, 2001 opinion. Review Office also obtained further information from the claimant with respect to jobs that he held prior to work for the current employer.

Review Office was of the opinion the claim should not have been accepted as the evidence had not established that the claimant sustained a personal injury by accident arising out of and in the course of his employment. The following reasons were given for the decision:
  • there was no accident;

  • the 1993 surgery was related to a traumatic incident unrelated to work. The April 12, 2000 surgery was found, on a balance, directly related to the first surgery and was not a result of a personal injury by accident arising out of and in the course of the claimant's employment;

  • the opinion expressed by the orthopaedic consultant to Review Office. "loosening of the total hip arthroplasty is a recognized complication of the operation. It can occur in any age group. Loosening of a total hip arthroscopy can either occur in the short or long term. The younger the patient in which it is performed, the more likelihood the patient is going to require a second operation in his lifetime for loosening of one or more of the components of the total hip arthroplasty. The procedure was performed for loosening of a total hip arthroplasty. It can occur with ordinary activities of daily living and not as a result of activities carried out as an industrial mechanic."
On November 22, 2001 the union representative appealed Review Office's decision and an oral hearing was held on April 11, 2002.

Reasons

Section 4 (1) of the Workers Compensation Act (the Act) provides for payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
    "Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a worker, compensation as provided by this part shall be Paid by the board out of the accident fund, subject to the following subsections."
In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as,
    "a chance event occasioned by a physical or natural cause; and includes
    1. a wilful and intentional act that is not the act of the worker,
    2. any
      1. event arising out of and in the course of, employment, or
      2. thing that is done and the doing of which arises out of, and in the course of, employment, and
    3. an occupation disease
    and as a result of which a worker is injured."
In arriving at our decision, we attached considerable weight to an opinion expressed by one of the WCB's orthopaedic consultants. He stated the following comments in a memorandum dated March 30th, 2001:
    "Loosening of the prosthesis is a common complication of total hip replacement. It is increased by excessive physical activity. After the arthroplasty has been revised it should be about as good as it was before it loosened. Therefore the loosening may be considered an aggravation because the condition has been corrected and was not permanent.

    The previous total hip replacement was a pre-existing condition. The surgery of Apr 2000 would be considered work related as the loosening is probably due to strenuous activity in his job."
There is also a memorandum on file dated March 16th, 2001, which records certain comments by the employer with respect to the claimant's work duties. He stated the duties of an industrial mechanic were physically demanding and many involved twisting, turning, torquing, lifting, working in awkward positions, crawling and being on one's feet for the entire shift. Some climbing up and down of ladders was required from time to time.

We find based on the weight of evidence that the claimant's job duties promoted the loosening of his prosthesis, which in effect resulted in his having it to be replaced in 2000. We further find that this case meets the definition of accident that is the "thing that is done and the doing of which arises out of, and in the course of employment". Accordingly, the claim is acceptable and the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of May, 2002

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