Decision #66/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 4, 2002, at the request of a union representative, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that he was not entitled to wage loss benefits beyond June 27, 2001. The Panel discussed the appeal on April 4, 2002.Issue
Whether or not the worker is entitled to wage loss benefits beyond June 27, 2001.Decision
That the worker is not entitled to wage loss benefits beyond June 27, 2001.Decision: Unanimous
Background
On December 21, 2000, the claimant was pulling pallets through a produce area when his left knee buckled from slipping in a puddle of water. The claimant felt a sharp pain in his knee but did not think anything of it until a few days later when his knee started to swell. The diagnosis rendered by the attending physician was a left knee strain with suspected medial and lateral meniscus tears. The Workers Compensation Board (WCB) accepted the claim for compensation and wage loss benefits were paid during the claimant's absences from work.On May 11, 2001, the claimant underwent the following surgical procedure which was authorized by the WCB: a left knee arthroscopy, medial femoral condyle, patella chondroplasty and trochlea microfracturing. The post-operative diagnosis was Grade IV chondromalacia of the trochlea, patella and medial femoral condyle of the left knee.
On June 14, 2001, primary adjudication posed several questions to a WCB medical advisor concerning the claimant's left knee condition. The medical advisor responded as follows:
- the current diagnosis was osteoarthritis of the left knee;
- the recovery norm following surgery would be 4 to 6 weeks;
- there was evidence of a pre-existing condition that was delaying recovery. The knee scope revealed significant pre-existing osteoarthritic changes;
- the compensable injury likely aggravated the pre-existing condition.
- "O/S (orthopaedic surgeon) did not find a torn meniscus which was the pre-op diagnosis and for which the scope was authorized. Current treatment is for Grade IV osteochondritis and chondromalacia. Workplace injury was an aggravation, but there is no WCB responsibility for the morbidity arising out of the arthroscopic procedure (microfracturing chondroplasty). I agree with the generous recovery period of 4-6 weeks after which any ongoing loss of function arises out of the treatment of pre-existing articular degeneration."
A follow-up report was received from the treating orthopaedic surgeon dated June 27, 2001. The surgeon commented that the claimant's recent twisting episode at work could certainly have aggravated his pre-existing chondromalacia requiring him to have surgery. The claimant stated he had no problems in recent years with his knee until he twisted it at work. The surgeon noted that the claimant was non-weight bearing for six weeks and would be starting progressive weight bearing thereafter.
At the request of primary adjudication, a WCB orthopedic consultant reviewed the case on July 17, 2001. It was the consultant's opinion that the orthopaedic surgeon's report of June 27, 2001 did not contain any new information that would change his opinion put forth on June 19, 2001. The claimant had longstanding and severe articular degeneration of the left knee and the recent surgery may not improve or cure the pre-existing condition.
On November 30, 2001, Review Office considered the case following receipt of an appeal by a union representative dated October 11, 2001. Review Office determined that the claimant's knee complaints after June 27, 2001 were not related to his compensable injury.
Review Office felt that the weight of evidence supported that the claimant's left knee complaints after June 27, 2001 were related to his pre-existing left knee condition and not to the December 21, 2000 compensable injury. Review Office stated that its decision was based on the opinions expressed by the two WCB orthopaedic consultants and a WCB healthcare advisor. The evidence did not establish that the compensable injury was contributing to a material degree to the claimant's loss of earning capacity after June 27, 2001. Treatment after this date would appear to be due to his pre-existing knee condition.
Review Office further indicated that the pre-existing condition was not enhanced or was a compensable condition. The request for further wage loss benefits was denied. On January 29, 2002 the union representative appealed Review Office's decision and an oral hearing was arranged.
Reasons
The claimant is a 45 year old male who played football in the NFL and the CFL for eight years as a professional. He also coached college football. Prior to this professional experience, the claimant had played football in a variety of leagues since childhood. During his playing time, the claimant never suffered an injury to his left knee although he had suffered other minor football injuries including one to his right knee. The claimant also provided information that when playing football he used to get hit a lot in the knees playing his position as a kick returner.While working for a soft drink manufacturer on December 21, 2000, the claimant, while pulling pallets, slipped on some water and his left knee buckled. He did not fall to the floor. The claimant was initially diagnosed with a left meniscus tear and a possible lateral meniscus tear by an orthopaedic surgeon.
Surgery was performed on May 11, 2001 and post operatively, the surgeon in his report dated May 11, 2001, indicated that the claimant's left knee showed Grade IV chondromalacia of the trochlea, patella and medial femoral condyle. "There was essentially no cartilage left over the medial femoral condyle except for a very, very thin layer "
The WCB healthcare advisor reviewed the medical evidence on the claimant's file including the post operative report and in a note dated June 19, 2001, explained the post operative diagnosis as having revealed the presence of significant osteoarthritis in the left knee. No torn meniscus was found. He felt that a normal recovery period was four to six weeks and that it was likely that the claimant's pre-existing osteoarthritic changes were aggravated by the compensable injury.
This opinion was supported by the WCB orthopaedic consultant in his notes dated June 19, 2001 and July 17, 2001. It was his opinion that there was no WCB responsibility for the morbidity arising out of the arthroscopic procedure which was originally authorized for a pre-operative diagnosis of a torn meniscus, and identified a microfracturing chrondroplasty. As a result, he was of the view that the workplace injury aggravated the claimant's pre-existing condition. He agreed that a recovery period of four to six weeks from the surgical procedure was appropriate and that any loss of function after that time would be related to the claimant's longstanding and severe pre-existing articular degeneration.
The claimant's surgeon subsequently filed a report dated September 20, indicating that "one would, therefore, have to assume that although the knee had a pre-existing condition of osteoarthritis, the work-related injury certainly exacerbated and caused his knee to become symptomatic."
The surgeon's opinion was reviewed by the orthopaedic consultant to Review Office who agreed that the mechanism of injury "could have aggravated the pre-existing degenerative changes" however it had "not been established that the compensable injury enhanced the condition." He noted that the claimant's continuing symptoms were related to the pre-existing degenerative changes.
On the basis of the above noted medical reports, the Appeal Panel is of the opinion that the claimant, on a balance of probabilities, suffered an aggravation of the severe degenerative condition that his knee was in. This resulted in a temporary aggravation that would have, in all likelihood, ceased to affect the knee within the four to six week period that the WCB medical advisors have referred to. For these reasons, we find that the worker's knee complaints after June 27, 2001, are not related to his compensable injury and he is therefore not entitled to benefits beyond that date.
Panel Members
K. Dunlop, Q.C., Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of May, 2002