Decision #18/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 5, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on February 5, 2003.

Issue

Whether or not responsibility should be accepted for the proposed right knee surgery.

Decision

That responsibility should not be accepted for the proposed right knee surgery.

Decision: Unanimous

Background

On January 19, 1998, the claimant was standing/leaning in front of a car to test a wire for power when the car accidentally surged forward striking both knees.

A doctor's first report dated January 23, 1998, reported that the right leg pain had resolved and that the claimant's left knee exhibited posterior pain. The diagnosis rendered was a hyperextension injury to the left knee. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the claimant for one week. He then returned to light duty work on February 3, 1998.

In a letter to the family physician dated April 8, 1998, an orthopaedic surgeon reported that the claimant was seen with respect to bilateral knee pain which was worse on the right side. In a further report dated September 16, 1998, the surgeon recommended a right knee arthroscopy as the claimant's symptoms were not subsiding. The WCB accepted financial responsibility for the right knee arthroscopy which was later carried out on November 24, 1998. The post-operative diagnosis was recorded as "ligamentum mucosum, Grade II chondromalacia trochlea of the femur." In a follow-up report dated January 13, 1999, the orthopedic surgeon indicated that the claimant was doing much better although he still had some anterior knee pain and crepitus. The claimant was continuing with therapy and was to return to modified duties on January 19, 1999.

In a report dated March 5, 2001, the orthopaedic surgeon noted that the claimant was having increased pain with regard to his right knee and that clinical examination revealed tenderness along the medial joint line. An MRI assessment was recommended to rule out a possible new meniscal tear. The MRI examination dated April 25, 2001 revealed "Degenerative fraying posterior horn medial meniscus complicated by small partial horizontal cleavage tear."

In a report dated May 16, 2001, the orthopaedic surgeon noted that the claimant recently injured his right foot which aggravated the mechanical aspects of his right knee. "Most of the pain in the right knee seems to be medial and he previously had medial joint line tenderness. An MRI shows a horizontal cleavage tear of a small size. We are booking him for a scope and arthroscopic meniscectomy."

On May 30, 2001, a WCB medical advisor wrote to the treating orthopaedic surgeon indicating that the WCB would not accept financial responsibility for the proposed arthroscopic meniscectomy of the right knee. The medical advisor felt that since there was no reported injury at work, it was the WCB's position that the medial meniscal tear was likely due to degeneration. This decision was appealed by the claimant and the case was forwarded to Review Office for consideration.

Prior to considering the appeal, Review Office wrote to the treating orthopaedic surgeon for additional information. A response from the orthopaedic surgeon dated November 16, 2001 was received and considered by Review Office. The following is an excerpt from that correspondence:
"His present symptoms are thought to be a result of that MVA which is also a work related injury. The knee arthroscopy revealed some chondromalacic changes in the femoral groove and this present process is thought to be an extension of the previous process. The meniscal pathology may or may not be accounting for some of his symptoms and this would be considered a new finding unrelated to the previous 1998 injury. The exact extent of meniscal versus patellofemoral pathology will be assessed at the time of arthroscopy and we may have a better handle as to which of these two pathologies are accounting for the majority of symptoms."
In a decision dated December 21, 2001, Review Office determined that the WCB would not accept responsibility for the proposed scope and arthroscopic meniscectomy to the claimant's right knee. Review Office based its decision on the following evidence:
  • there was no tear found at the time of the previous right knee surgery in November 1998.
  • there were no signs of a meniscal injury in the initial post-accident medical reports.
  • there were no complaints by the claimant relating to this area immediately following the accident.
  • the opinion expressed by the WCB medical advisor that the medial meniscal tear was not related to a work injury." the orthopaedic surgeon's opinion that the meniscal pathology would be considered a new finding unrelated to the previous 1998 injury.
  • there had been no work related accident involving the medial meniscus of the right knee.
On March 13, 2002, a worker advisor asked the Review Office to reconsider the statements that were made on November 16, 2001 by the treating orthopaedic surgeon regarding the compensability of further surgery. The worker advisor noted that if the claimant had fully recovered from his compensable knee problem and subsequent surgery, there would be no need for further exploratory arthroscopic surgery. She felt that it was not unreasonable for the WCB to approve surgery given that the meniscal tear may or may not be of any significance.

On March 28, 2002, a Section Head in the WCB's healthcare branch reviewed the case along with the November 16, 2001 report from the treating orthopaedic surgeon. In answer to Review Office's question as to whether or not the proposed surgery was a WCB responsibility, the consultant stated, "In my opinion no because I believe the problem is likely related to the meniscal tear because MRI didn't reveal any patellar problem."

In a decision dated April 5, 2002, Review Office confirmed its decision that the claimant's current problems and resultant need for surgery were not directly related to the 1998 compensable right knee injury or its 1998 surgery. Review Office concluded that the need for surgery was, on a balance of probabilities, related to the recent MRI findings of 'degenerative fraying of the posterior horn of the medial meniscus complicated by a small partial horizontal cleavage tear' and not because of the workplace injury or its surgery.

Subsequent file records showed that the worker advisor wrote to Review Office on June 14, 2002 and October 9, 2002 and submitted additional information from the treating orthopaedic surgeon for consideration. On September 4, 2002 and November 1, 2002, Review Office confirmed its original decision to deny responsibility for the proposed surgery on the claimant's right knee. On November 14, 2002, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who injured his knees in a workplace accident in January 1998. His claim for compensation was accepted and benefits paid accordingly.

The injury to his left knee healed relatively quickly. However, his right knee required surgery, which was carried out in November 1998. He returned to work, on modified duties, in January 1999.

Over two years later, in March 2001, he visited the orthopaedic surgeon with renewed complaints about his right knee. The board, however, did not accept this as related to his workplace injury and any further benefits, including medical aid, was not granted. This decision was upheld on reconsideration by the Review Office, on four separate occasions. Following the last reconsideration, he appealed to this Commission.

The issue before the Panel was whether or not the board should accept responsibility for further surgery on his knee.

For the appeal to succeed, we would have to determine that there is clear evidence linking the claimant's current knee problems with the workplace accident. We were not able to make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as conducting an oral hearing, at which we heard testimony from the claimant, his representative and a representative of the employer.

In our consideration, we took particular note of the following:
  • Operation, November 1998

    In the medial compartment, there was no evidence of chondromalacia and the medial meniscus was intact. The anterior cruciate appeared to be normal. In the lateral compartment, there was no chondromalacia and the meniscus was intact.

    A Grade II chondromalacia was found in the trochlea of the femur. The undersurface of the remainder of the patella was normal.

    A ligentum mucosum was identified anteriorly. To address this, the plical band was resected.

  • Two months later, the worker was cleared to return to modified duties. There are no medical reports of further problems with the knee until more than two years later.

  • MRI, April 2001

    Found the patella and the patellar cartilage to appear normal. Found the anterior and posterior cruciate, medial and collateral ligaments to be intact.

    Found fraying and irregularity involving the posterior horn of the medial meniscus, as well as a small partial cleavage tear extending to the superior surface.

    Found the lateral meniscus to be intact.

    The physician's impression was: "Degenerative fraying posterior horn medial meniscus complicated by small partial horizontal cleavage tear."
His treating specialist is of the opinion that there are two pathologies at play:
  • One is the tear to his medial meniscus shown on the MRI, which he believes is a new finding unrelated to the 1998 injury.

  • The second is "medial joint line tenderness and some crepitus referable to the patellofemoral area." He believes this to be an extension of the previous process which showed chondromalacic changes in the femoral groove. In his view, these current symptoms are a result of the compensable injury.
The specialist states that arthroscopy is necessary to determine which of these two pathologies is responsible for the majority of the symptoms.

We have concluded that the first of these problems - the meniscus tear - is clearly not related to the workplace injury. The arthroscopic surgery in 1998 showed the meniscus to be intact. There has been no report of a workplace event, in the interim, which might have caused his problem. We have to assume that it was caused by factors or an event not related to work or the compensable injury.

In respect of the second, we have concluded - on a balance of probabilities - that the problem is not related to his workplace injury of January 1998. We note that no diagnosis has been made as to what this problem is, other than pain in the patellofemoral area. The only subjective evidence - the MRI - found no problem with the patella or the patellar cartilage. We did note the specialist's comment that MRI is not particularly good at finding patellofemoral changes. Still, there is no substantive or clear medical evidence linking the current problems with his right knee with the 1998 accident.

Thus, we uphold the decision of Review Office that the board is not responsible for the proposed surgery.

The appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of February, 2003

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