Decision #51/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 10, 2003, at the claimant's request. The Panel discussed this appeal on April 10, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond March 15, 2002; and

Whether or not an overpayment in the amount of $2,078.51 currently exists on the claim.

Decision

That the claimant is not entitled to wage loss benefits beyond March 15, 2002; and

That an overpayment in the amount of $2,078.51 does not exist on this claim.

Decision: Unanimous

Background

On February 23, 2001, the claimant injured his right knee during the course of his employment as a pressman. The claimant described his injury as follows: "I was walking around a stool. I went to move it with my foot. When I was putting it back down, I twisted my knee. I buckled to the floor."

Medical information showed that the claimant attended a physician for treatment on February 27, 2001. The diagnosis was right knee pain, possibly a strain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the claimant for two days and then he returned to his regular duties.

On June 5, 2001, the claimant sought treatment again from his attending physician complaining of a right knee pain. Examination findings revealed tenderness over the medial joint line and an orthopaedic assessment was recommended.

On July 3, 2001, the claimant's right knee was x-rayed. The results revealed a deformity of the proximal tibial shaft related to a remote healed fracture. There was minor joint space narrowing affecting the lateral compartment. This was consistent with early osteoarthritis.

In a memo to a WCB medical advisor dated October 2, 2001, a WCB adjudicator noted that the claimant fractured his right leg in a motorcycle accident in 1967, however, the claimant did not have any knee problems following this accident. The medical advisor was asked to review the claimant's job description and to respond to several questions. The medical advisor commented that the current diagnosis was "unclear, early degenerative osteoarthritis definitely, not clear underlying cause of claimant's symptoms." With respect to a cause and effect relationship between the compensable injury and the current diagnosis, the medical advisor stated the following: "Claimant indicates, and employer confirms, ongoing signs and symptom problems from date of accident to next appointment in June. Symptoms consistent and progressive. I feel they are related to compensable injury; diagnosis is likely more than a simple strain, likely an aggravation to pre-existing."

In a November 7, 2001 report, the orthopedic surgeon stated that the claimant's right knee was swollen and sore medially. It was suspected that the claimant incurred a work related meniscal tear and surgery was recommended.

On November 10, 2001, a WCB medical advisor authorized the above arthroscopy and stated that "total WCB responsibility decision will have to await arthroscopic findings." On December 10, 2001, the medial advisor wrote to the surgeon and stated, in part, "Please be informed the Workers Compensation Board agrees, and accepts financial responsibility for all costs associated with the procedure."

The claimant underwent an arthroscopy on March 12, 2002. The pre-operative diagnosis was a medial meniscal tear and the post-operative diagnosis was a torn lateral meniscus.

On May 2, 2002, a WCB medical advisor was of the opinion that the lateral meniscal tear was not in any way consistent with the mechanism of injury and was not consistent with the clinical assessments carried out by the claimant's doctor and his orthopedic surgeon. All findings were medial and the pre-operative diagnosis was medial meniscus tear. The medical advisor could not see how the lateral meniscus tear could be due to the compensable injury. She felt that any aggravation of the pre-existing condition likely resolved long ago. The widespread severe nature of the problems found at the arthroscopy was best explained on the basis of post-traumatic changes from his prior tibial fracture with deformity. This could become symptomatic at some point and would explain the medial joint line symptoms the claimant had on examination.

In a letter dated May 23, 2002, a WCB case manager informed the claimant that the operative procedure was unrelated to the accident. The case manager noted that the WCB authorized surgery on the basis of a medial meniscus tear and that the lateral meniscus tear found at surgery was not consistent with the mechanics of the compensable injury nor was it consistent with any of the assessments by the family doctor or the orthopaedic surgeon. The claimant was informed that he would only be entitled to wage loss benefits for the period March 12, 2002 to March 15, 2002 which was the recovery time for the arthroscopy procedure. The letter also confirmed that the claimant had been overpaid benefits in the amount of $2,137.90 for the period March 18 to May 6, 2002, minus $59.39 that he previously submitted to the WCB, making the total overpayment amount being $2,078.51.

On September 13, 2002, Review Office considered the case at the claimant's request. Review Office noted that there were consistent complaints of medial joint line problems on file leading into the surgery but the findings at the time of surgery were mostly lateral and severe underlying conditions evident. There was no evidence to establish that the lateral meniscus tear occurred at the time of the February 23, 2001 incident. Review Office agreed with the case manager's decision that the WCB should only cover the normal three days recovery period for a diagnostic arthroscopy and that wage loss benefits for the claimant's disability period beyond March 15, 2002 were unrelated to the compensable injury. Review Office confirmed that the overpayment amount of $2,078.51 had been properly assessed and would not be rescinded. On December 26, 2002, the claimant disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant sustained an injury on February 23rd, 2001 when he pushed away a stool with his right foot. While performing this maneuver, he twisted his right knee. Since the file’s inception there has been considerable confusion and uncertainty with respect to, not only, the mechanism of injury, but also, its pathology. For the next several months, the claimant’s right knee difficulties and symptoms continued to plague him. The treating orthopaedic specialist suspected a work-related meniscal tear and requested the WCB’s approval for surgery. In a memorandum dated December 6th, 2001, a WCB medical advisor recorded the following comments: “In my opinion, a medial meniscus tear could be consistent with the mechanism of injury. However, diagnosis remains to be confirmed; likely a scope will also see non-compensable injury related degenerative changes.”

A second WCB medical advisor also expressed similar comments a few days later in a memorandum to file: “Would authorize arthroscopy. Total WCB responsibility decision, will have to await arthroscopic findings.” What in effect he was saying in our view, was that the arthroscopy would establish a diagnosis as to what was wrong with the claimant’s right knee? In a formal letter to the treating orthopaedic surgeon dated December 10th, 2001, a WCB medical advisor confirmed that the WCB agreed with the proposed right knee arthroscopy and that the WCB would accept financial responsibility for all costs associated with this surgical procedure.

The March 12th, 2002 operative report disclosed that the medial meniscus was in fact intact, that the posterior cruciate ligament was also intact and that the anterior cruciate ligament was absent. As well, in the lateral compartment there was irregularity and tearing of the anterior horn of the lateral meniscus. It is our considered opinion the WCB clearly anticipated that the authorized surgery was exploratory in nature and that the continued payment of wage loss benefits would be conditional upon the results of the arthroscopy i.e. whether or not the underlying pathology was causally related to the compensable injury. For whatever reason however, the claimant’s operative report was not received by the WCB until the 1st of May 2002 and the only major piece of correspondence on file immediately preceding this date is the WCB’s December 10th, 2001 letter of authorization to the orthopaedic surgeon.

There is absolutely no question that the findings at surgery were contrary both to the clinical disclosures and to the mechanism of injury. On May 2nd, 2002, a WCB medical advisor reviewed the claimant’s file and recorded the following comments:

“In reviewing this file, I’m rather struck how minimal the mechanism of injury was i.e. it was not something that would be likely to cause any injury at all unless there was a pretty abnormal knee already. Be that as may be (sic), a lateral meniscus tear is not in any way consistent with the mechanism of injury, but also very importantly, not consistent with the clinical assessments carried out by his MD and Orthopaedic Surgeon.

All findings were medial and the pre-op diagnosis was medial meniscus tear. I can't’ see how lateral meniscus tear could be due to compensable injury.”

In a letter dated May 23rd, 2002, a case manager advised the claimant as follows:

“Your operative report was recently reviewed by one of our medical consultants. As you are aware, the pre-op diagnosis was a medial meniscus tear, but when they operated they found a torn lateral meniscus, as well as the following: Grade 3 chondromalacia, an absent ACL and a medial meniscus, which was completely intact.

When we provided authorization for surgery, the diagnosis provided by your physicians was a medial meniscus tear. In our medical advisor’s opinion, a lateral meniscus tear is not consistent with the mechanics of your compensable injury, nor is it consistent with any of the assessments that have been done by your family doctor or your orthopaedic surgeon. All the findings were medial in origin.

Following a thorough review of all the information available on file, it is the opinion of Rehabilitation and Compensation Services, that your operative procedure is unrelated to the accident of February 23, 2001, and as such, we cannot accept any financial responsibility for same beyond what we would normally cover for a diagnostic arthroscopy, which would be a few days.”

The surgery was approved with the view that it might possibly assist in diagnosing the claimant’s right knee symptomatology and its relationship to the compensable injury. It was not until early May 2002 after the surgery when the WCB was conclusively able to determine that the claimant’s knee problems were not causally related to his compensable injury. Based on the weight of evidence, we find that the claimant is not therefore entitled to wage loss benefits beyond March 15th, 2002.

However, section 3(i) of WCB policy 35.40.50 states, in part, that “All overpayments receivable will be pursued for recovery, unless: (i) they resulted from an adjudicative reversal …”. We find that the May 23rd, 2002 adjudicative decision is a reversal of the position taken by the WCB on December 10th, 2001. Accordingly, we further find that the overpayment to the claimant resulted from an adjudicative reversal and as a consequence should not be pursued for recovery.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 9th day of May, 2003

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