The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 10, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 10, 2003.

Issue

Whether or not wage loss benefits are payable beyond August 31, 2001.

Decision

That wage loss benefits are not payable beyond August 31, 2001.

Decision: Unanimous

Background

On May 17, 1988, the claimant jumped onto his truck trailer and felt a pop in his left knee. On his application form for benefits, the claimant said that he twisted his knee on a pallet about nine years ago. The diagnosis rendered by the attending physician was torn ligaments in the left knee. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On July 11, 1988, an orthopaedic specialist reported a definite cartilage tear on the medial side of the left knee. Recommendations were made for surgery, which included an arthrotomy and removing torn cartilage.

The claimant underwent an arthroscopy on August 5, 1988. The operative report stated in part, "…no changes in the medial meniscus but chondromalacia patella Grade 2 plus osteoarthritic changes early on the medial compartment. It was decided not to proceed with the medial meniscectomy."

In an August 26, 1988 report, the orthopaedic specialist reported that clinically, the claimant still had and would always have osteoarthritic changes in the knee medially as well as patellofemoral arthrosis. This would cause pain and discomfort when going up and down stairs excessively and when bending for a long duration. The progress of the condition was not really known and it could stay as it was or it could progress and become more disabling.

A WCB medical advisor reviewed the case on June 28, 1989. He concluded that the claimant had "a degenerative medial meniscus, likely from injury, associated osteoarthritis of knee joint as well as patellofemoral syndrome (arthritis between patella and femoral condyle)." The medical advisor commented that the May 17, 1988 injury aggravated a pre-existing condition, i.e. "grade 2 osteoarthritic changes noted at arthroscopy in August likely old." The medical advisor recommended permanent restrictions pertaining to the osteoarthritis and the partial torn and degenerative medial meniscus.

The file documentary showed that the claimant returned to work with the accident employer at a lesser paying position and that the WCB topped up his wages. In 1991, the claimant was informed by the WCB that he was not entitled to a permanent impairment award with respect to his left knee condition. The case was also forwarded to long term wage loss for supervision.

A WCB medical advisor reviewed the case on February 19, 2001. The medical advisor noted that the claimant underwent an arthroscopy in 1988 and that no torn meniscus was found. There was Grade II chondromalacia plus osteoarthritic changes in the medial compartment which were clearly pre-existing. Given that there was no tear found during the arthroscopy and that there were significant pre-existing conditions, the medical advisor determined that the claimant had recovered from the compensable injury long ago.

In a memo dated April 5, 2001, a WCB case manager recorded that she met with the claimant and informed him that his present knee difficulties were due to pre-existing conditions, not related to the compensable condition, but rather were due to degenerative changes. The case manager advised the claimant that he had been receiving partial wage loss benefits in error for the last several years and that the WCB would not attempt to collect the money back as it had been paid in error. This decision was confirmed to the claimant in writing on April 5, 2001. On May 14, 2001, a union representative disagreed with the decision stating that there was conflicting medical evidence on file.

In a June 4, 2001 memo, a supervisor from Rehabilitation & Compensation Services asked the case manager to obtain updated medical information on the claimant's left knee condition as the last medical report on file was dated December 18, 1990. The case manager was also instructed to reinstate the claimant's partial wage loss benefits effective April 12, 2001 pending the receipt of the updated medical information.

On July 23, 2001, the claimant advised his case manager that he hadn't seen a physician for his left knee condition for the past 10 years as he felt that his knee had plateaued. Given this factor, it was determined that there would be no point in having the claimant see a doctor now for his knee and that further questions would be posed to the WCB's healthcare services branch.

On July 27, 2001 a WCB medical advisor provided responses to several questions posed by primary adjudication. On August 30, 2001, a WCB orthopaedic consultant concurred with the opinion provided by a WCB medical advisor. On September 10, 2001, primary adjudication informed the claimant that it was still the WCB's opinion that his work place injury did not cause or enhance his pre-existing condition of osteoarthritis and patellar chondromalacia and that he had recovered from the effects of the May 15, 1988 workplace injury.

In a submission to Review Office dated July 11, 2002, the claimant's union representative submitted new medical information that she had obtained from a physical medicine and rehabilitation specialist (physiatrist) dated June 19, 2002. Review Office, in turn, referred the case back to the case manager to review the report and to determine whether this new information warranted a change in her previous decision. Following consultation with a WCB medical advisor on August 23, 2002, all parties were notified on September 9, 2002, that no change would be made to the decision that had been rendered earlier. The case was then forwarded to Review Office for consideration.

On November 8, 2002, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond August 31, 2001. After reviewing all of the medical evidence on file, Review Office was unable to find any current medical evidence to support the contention of an ongoing cause and effect relationship between the original workplace injury and the claimant's knee symptoms. The 1988 arthroscopic procedure did not confirm any meniscal damage or any other damage in the knee joint at the time of the scope procedure which could be related to the compensable injury. Review Office agreed with the findings of the three WCB physicians, who had assessed the medical evidence on this claim since the spring of 2001. On December 10, 2002, the union representative disagreed with Review Office's decision and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant underwent arthroscopy shortly following his compensable incident. The procedure revealed "no changes in the medial meniscus but chrondromalacia patella Grade 2 plus osteoarthritic changes early on the medial compartment." In a letter dated August 26^th, 1988 to the WCB, the treating orthopaedic surgeon advised that the claimant was still experiencing and would always have osteoarthritic changes in his knee medially together with patellofemoral arthrosis.

Prior to the termination of the claimant's benefits in August 2001, a WCB medical advisor reviewed his file. We took special note of the following comments recorded in a memorandum to file dated July 27^th, 2001:
     "Currently, there is some question as to the relationship between the compensable injury of the claimant (sic) jumping onto a truck and his knee complaints. Chondromalacia does not occur in a singular event without significant trauma. There is no reported event to satisfy that criteria, in my view. It is my view that the chondromalacia was progressive and degenerative and not relative to a single event. Osteoarthritic changes do not occur after a single event, certainly within two months of the occurrence, and also after what would be considered relatively non-significant trauma. The current diagnosis, in my view, would be osteoarthritis of the left knee. This is a progressive condition, which is reasonably well understood. It does not occur within two months of an injury.
     There are pre-existing conditions as noted above. He has evidence of osteoarthritis in the left knee, which would predate his injury, and patellar chondromalacia, which also would predate his injury.
     It is possible that jumping onto a vehicle could aggravate a pre-existing osteoarthritis and patellofemoral syndrome. The aggravation would not be expected to be prolonged given the mechanism of injury. I would not expect a grade II chrondromalacia to be causally associated with this mechanism. The aggravation would resolve within 3-4 weeks of the injury."

A WCB orthopaedic consultant later substantiated the foregoing comments in an August 30^th, 2001 memorandum. After reviewing the file, he opined:
     "Dr. [the treating orthopaedic surgeon] did an arthroscopy on August 5, 1988 and found NO torn meniscus. He found degenerative changes in the medial and patellofemoral compartments. These changes pre-existed the injury of May 17, 1988. Dr. [the treating orthopaedic surgeon] wrote August 26, 1988 confirming the Pre X.
     There may have been an aggravation of the Pre X of short duration, perhaps a few weeks. There was no enhancement as the surgery was diagnostic -(no procedure was carried out).
     I agree with Dr. [WCB medical advisor's] comments of July 27, 2001. Further medical information would relate to the progress of the pre X conditions, no longer any continuing cause/effect relationship to the workplace injury of this claim."

The claimant's union representative submitted a medical report from the treating physiatrist, which in part supported the claimant's contention that his ongoing left knee difficulties were a result of his compensable injury. While we acknowledge that this report is somewhat supportive of the claimant's case, but given the nature of the injury and the claimant's pre-existing condition, we nevertheless prefer to accept and to attach greater weight to evidence of both the WCB's orthopaedic consultant and medical advisor.

Based on the preponderance of evidence we find that there has, on a balance of probabilities, been no continuing aggravation, enhancement or acceleration of the claimant's pre-existing condition. The claimant testified at the hearing that he has not been under any active medical care for his pre-existing condition for the past 10 years. In addition, he described his condition as having plateaued. We further find that wage loss benefits are not payable to the claimant beyond August 31, 2001. Accordingly, the claimant's appeal is hereby dismissed.

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 14th day of May, 2003