Decision #152/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 27, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being November 12, 2003.Issue
Whether or not responsibility should be accepted for future ACL reconstruction surgery to the worker's right knee.Decision
That responsibility should be accepted for future ACL reconstruction surgery to the worker's right knee.Decision: Unanimous
Background
On January 8, 2001, the claimant twisted his right knee when he slipped on ice while getting out of his truck. On his application form for benefits, the claimant noted that he had injured his right knee back in 1992 or 1993 when he was training a horse.Initial medical reports revealed that on January 6, 2001, the attending physician diagnosed the claimant with ACL deficient/subluxation. The physician also noted that the claimant had been having progressive problems with his right knee for one year. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. On January 16, 2001, the claimant returned to his regular duties wearing a knee brace for stability.
On February 26, 2001, the claimant underwent an MRI of his right knee. The results revealed a chronic ACL tear, mild chondromalacia medial compartment and complex tear posterior horn and body of medial meniscus.
In a report dated March 13, 2001, an orthopaedic surgeon noted that the claimant was asymptomatic while wearing his brace. The specialist indicated that should the claimant have mechanical symptoms such as locking or buckling in the brace or persistent pain and swelling, then a possible ACL reconstruction and partial meniscectomy would be discussed. The specialist also made the following comments: "Although the patient did have an injury back in the 1990's which probably either completely tore his ACL or partially tore his ACL, he functionally had no difficulties until his work-related injury where he twisted the knee getting out of his truck. Since that time he has had a dysfunctional unstable knee. Whether or not the ACL was completely torn back in the 1990's is irrelevant in my opinion as he functionally did well up until the work-related injury. Recheck on a prn basis."
On December 10, 2001, surgical procedures were performed to the claimant's right knee, namely right knee arthroscopy, partial medial meniscectomy, ACL stump debridement, medial femoral condyle and patella chondroplasty.
On December 28, 2001, a senior WCB medical advisor wrote to the orthopaedic surgeon indicating that the WCB would only "accept the medial meniscal tear as being related to the compensable injury as, in our opinion, the chronic ACL tear is pre-existing and not related to the compensable injury. WCB will not be responsible for any future ACL reconstruction."
In a letter to the senior WCB medical advisor dated January 23, 2002, the orthopaedic surgeon stated that he agreed the ACL was most likely injured back in 1990. He noted, however, that the claimant had no instability episodes up until his work-related injury in January of 2001. "This would infer that if the ACL was partially torn in 1990 then this work-related injury probably completed his tear as well as caused meniscal damage. Thereafter the patient had an unstable knee. He was doing well after his knee scope. Should he need ACL reconstruction I would feel it would be appropriate for you to reconsider the WCB's position on this matter."
On February 7, 2002, a WCB orthopaedic consultant reviewed the file contents and provided the following commentary:
In a letter dated February 8, 2002, the treating orthopedic surgeon was notified that the WCB would not be responsible for any future ACL reconstruction as it was felt the ACL condition was not related to the compensable accident. On March 21, 2001, a union representative appealed this decision to Review Office and the Review Office in turn wrote to the treating orthopaedic surgeon for additional information."I think the claimant ruptured the ACL at the time of his injury in 1994. He may have torn the medial meniscus at the same time or he may have gradually torn it since because of joint instability. The description of the chondromalacia and the meniscus tear on the MRI in January 2001 are more typical of chronic/degenerative change.
The first med. report of January 8/01 reports a 'progressive problem x 1 yr.' I feel he has had a chronically ACL deficient knee to some extent for several years."
On October 11, 2002, Review Office considered all of the information on file as well as the following documents:
- A report from the treating orthopaedic surgeon dated May 16, 2002;
- a September 17, 2002 submission by the employer's representative which included the opinion of an independent orthopaedic surgeon specializing in knee surgery/joint replacement dated August 27, 2002;
- a further submission by the union representative dated September 30, 2002; and
- the opinion expressed by a WCB orthopaedic consultant on October 8, 2002.
Based on the preponderance of medical opinion, Review Office concurred that no responsibility could be accepted for any future ACL reconstruction surgery involving the worker's right knee. On November 26, 2002, the union representative appealed Review Office's decision and an oral hearing was convened on February 27, 2003.
Following the hearing and discussion of the case, the Appeal Panel requested additional information from an orthopaedic specialist whom the claimant saw in 1994 for his right knee difficulties. A report from the specialist dated March 31, 2003 was later received and was forwarded to the interested parties for comment.
On April 22, 2003, the Panel met again to discuss the case and considered a submission by the employer dated April 11, 2003. Following discussion of the case, the Panel requested additional information from the claimant's family physician as well as from the claimant's treating orthopaedic surgeon. On June 26, 2003, all interested parties were provided with a report from the family physician dated May 2, 2003. The parties were also notified that the treating orthopaedic surgeon had been out of the country for over a year and would not be responding to the Panel's letter for additional information.
In a letter dated July 3, 2003, the treating orthopaedic specialist wrote to the Appeal Commission to advise that he would respond to the Panel's request for additional information if he was provided with his office notes, operative reports and all documentation from his previous office/clinic.
On July 16, 2003, the Panel met further to discuss the case and it decided that it would provide the treating orthopaedic surgeon with the necessary documentation that he requested from his previous clinic in order that he could respond to the Panel's letter of May 9, 2003. A response form the orthopaedic surgeon was later received dated October 16, 2003 and was provided to the interested parties for comment. On November 12, 2003, the Panel met again to discuss the case and considered a final submission by the employer's representative dated November 5, 2003.
Reasons
An MRI taken of the claimant's right knee on February 26th, 2001 revealed a chronic ACL tear, mild chondromalacia medial compartment and a complex tear posterior horn and body of medial meniscus. The general medical consensus appears to be that in all likelihood the claimant tore his ACL sometime in the 1990's. The medical opinion is mixed as to whether there was a complete tear or only a partial tear prior to the 2001 compensable injury. However, we note the following comments of the treating surgeon, which are contained in a letter dated January 23rd, 2002:"It is my opinion that, although he may have injured the ACL back in the early 1990's, he had a stable and functional knee up until his work-related injury in 2001. Either this completed his ACL [tear] and tore the meniscus or just the meniscus tear caused the instability. The patient did do well for a ten year period. This would correlate more with a partial ACL disruption and a complete tear at the time of his work-related injury."
The claimant attended the WCB on February 20th, 2001 in response to a request to provide additional information with respect to his claim. He advised that prior to the compensable injury his knee would pop out on occasion if he slipped or twisted it the wrong way. The knee would be a bit sore, but this would soon go away. On the day of the accident, he advised that he twisted his right knee at which time it buckled and he dropped to the ground. In addition, he further stated that his knee popped out and then popped back in, but this time the knee began swelling immediately. We accept the claimant's foregoing evidence and as well that functionally he had no difficulties with his right knee until his work related injury when he twisted it getting out of the truck.
We were very impressed with the strong arguments presented by both parties to this appeal; however, in arriving at our decision, we chose to attach more weight to the opinion expressed by the claimant's treating sports medicine specialist in his letter to the Appeal Commission dated October 16th, 2003:
"Most probably although difficult to know for sure the patient had a complete MCL +/- incomplete ACL injury back in the 1990's. I suspect that if he had torn completely both his MCL and ACL at that time the knee would have been dysfunctional/unstable. This was not the case. He was functionally stable.
At the time of the accident in January, 2001 he most likely completed the ACL tear, tore his medial meniscus +/- re-injured the MCL. The fact that he recalls a 'pop' with significant swelling is consistent with a complete ACL disruption."
After having considered all of the evidence, we find that the complete ACL tear discovered at the time of the MCL surgery was, on a balance of probabilities, as a result of the January 8th, 2001 compensable injury, which arose out of and in the course of the claimant's employment. We further find that responsibility should be accepted for future ACL reconstruction surgery to the worker's right knee. Accordingly, the claimant's appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. 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 December, 2003