The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 24, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker has recovered from the effects of the December 19, 2000 left knee injury; and

Whether or not the left knee injury occurring August 4, 2002 is related to the December 19, 2000 compensable injury.

Decision

That the worker has recovered from the effects of the December 19, 2000 left knee injury; and

That the left knee injury occurring August 4, 2002 is not related to the December 19, 2000 compensable injury.

Decision: Unanimous

Background

On December 19, 2000, the worker slipped on ice during the course of his employment and twisted his left knee. The worker said he knew right away that his knee was out because he felt his knee cap off to the right. He immediately popped it back into place and was sent home. The worker also noted on his claim form that his knee popped out in 1995 when he fell down a snow hill.

Medical information from the attending physician diagnosed the worker with "dislocation left patella with strain left MCL and medial meniscus damage". On January 4, 2001, responsibility for the worker's left knee condition was accepted by the Workers Compensation Board (WCB).

On May 9, 2001, the worker underwent a left knee arthroscopy. The post-operative diagnosis was chondromalacia patella of the left knee. In a follow-up report dated May 29, 2001, the orthopaedic surgeon reported that the worker's knee was settling down and that he had actually returned to work. He stated, "The impression is for a traumatic chondromalacia of the patella secondary to patellar dislocation."

On June 4, 2001, the worker advised the WCB that he had returned to his full pre-accident work duties. The worker was paid wage loss benefits to June 1, 2001.

In August 2002, the worker contacted the WCB to state that he was getting up from a chair on August 4, 2002 when he felt excruciating pain in his left knee and that he had been missing time from work. He attributed his left knee difficulties to his December 2000 accident.

Medical information revealed that the claimant attended a hospital emergency facility on August 4, 2002. The diagnosis rendered was "dislocated patella".

A diagnostic imaging report of the left knee dated August 4, 2002 revealed no joint effusion, fracture or dislocation.

A Doctor's First Report dated August 14, 2002 reported pain and decreased range of motion of the left knee with grinding. The diagnosis rendered was strain of the left knee and meniscus damage. Chondromalacia patella was noted as the pre-existing condition that was affecting recovery.

Following consultation with the WCB's healthcare branch, primary adjudication advised the worker that it was the WCB's position that he had recovered from the effects of his December 19, 2000 work injury and that his left knee injury of August 4, 2002 was not related to the effects of his work injury. It was felt that the incident of August 4, 2002 was related to the significant pre-existing degenerative conditions present in his knee.

On November 7, 2002, a worker advisor appealed the above decision to Review Office. Based on WCB board policy, the worker advisor argued that the December 19, 2000 workplace fall had enhanced the pre-existing condition of the worker's left knee and that he was now predisposed to recurrent dislocations of this nature. She also believed that the August 4 dislocation was causally related to the December 19, 2000 compensable condition resulting in a loss of earning capacity.

Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant as to the status of the worker's left knee before and after the compensable injury of December 19, 2000.

On January 10, 2003, Review Office determined, based on a balance of probabilities, that the worker would have continued to have increasing problems with the knee and would eventually have required chondroplasty of the left patella, regardless of the incident occurring December 19, 2000 and that the one incident would not have caused the stage II and III findings of chondromalacia patella. Review Office also opined that there was no evidence to support that the injury incurred at home on August 4, 2002 would have been a direct result of the compensable injury of December 19, 2000.

On March 25, 2003, the worker advisor asked Review Office to reconsider its earlier decision based on new medical evidence from the treating surgeon dated April 9, 2003.

In a decision dated June 10, 2003, Review Office confirmed its earlier decision that the claimant had recovered from the effects of his December 19, 2000 left knee injury and that the left knee injury on August 4, 2002 was not related to the December 19, 2000 injury. Review Office felt there was insufficient evidence to support that the August 4, 2002 incident at home had any cause/effect relationship to the compensable incident occurring on December 19, 2000 and that there was insufficient information to support the position that the worker had not recovered from his compensable injury occurring December 19, 2000.

On September 27, 2004, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Reasons

We were asked to address two issues at this hearing. The first issue was whether the worker has recovered from the effects of his December 19, 2000 compensable left knee injury. For the worker's appeal to be successful on this issue, we must find that the worker did not recover from the effects of this injury. We were not able to make this determination; we found that the worker had recovered from the injury.

The second issue was whether the worker's left knee injury occurring on August 4, 2002 is related to the December 19, 2000 compensable injury. For the appeal to be successful on this issue we must find that the December 2000 compensable injury caused or contributed to the August 2002 injury which occurred at home. We did not find a causal relationship between the two injuries.

Law and Policy

The Workers Compensation Act (the WCA) provides that the WCB will pay wage loss and other benefits to a worker who is injured as a result of a workplace accident. This is set out in Subsection 1(1) and 4(1) of the WCA.

The worker's injury of December 2000 was accepted under these provisions. As noted in the background, this injury occurred when the worker slipped on ice at his workplace.

The August 2002 injury did not occur at work. It is not an injury that arose out of or in the course of employment. This injury is compensable only if the December 2000 compensable injury is found to have enhanced the worker's pre-existing left knee condition as provided by WCB Policies 44.10.20.10, Pre-Existing Conditions and/or if the December 2000 injury is found to have contributed to the August 2002 injury under WCB Policy 44.10.20.50, Recurring Effects of Injury.

Worker's Evidence and Position

The worker was represented by a worker advisor who made a presentation on the worker's behalf. The worker answered questions posed by his representative and by the Panel.

The worker acknowledged that he had had a problem with his knee prior to the December 2000 compensable injury. He stated that his first knee dislocation occurred in November 1995 when he slipped while playing at a tobogganing hill. He was 14 years old at the time of this injury. He indicated that he had recovered completely from this injury. He denied any intervening dislocations even though his family physician reported that "At his annual check-up on July 31, 1997, [the worker] stated that he still experienced an occasional dislocation of his left patella." The worker stated that the next problem with his knee was in December 2000 when he slipped at work. The worker stated that he never completely recovered from the December 2000 compensable injury, and that he had ongoing symptoms. With respect to a comment he made to a WCB staff person on May 16, 2001 that his knee was "100% better than before the surgery", he advised that he meant that he was no longer in constant pain but that his knee was not perfect.

The worker provided details of the August 2002 accident, the current status of his knee injury and the impact of the August 2002 injury on his life. The worker advised that he is no longer able to do physical labour and would like to be retrained for a more sedentary occupation. It was noted that the worker is seeking wage loss benefits, medical aid benefits and vocational rehabilitation benefits.

The worker's representative argued that the December 2000 compensable injury enhanced the worker's pre-existing condition, specifically, that "The 2nd significant dislocation (December 2000), in our opinion, was the dislocation that permanently and adversely affected [the worker's] left knee mechanics."

It was further argued that the December 2000 workplace injury significantly contributed to the August 2002 injury. The worker's representative suggested that as provided by WCB Policy 44.10.20.10 the August 2002 injury is compensable because "…the cause of the further injury is predominantly attributable to the compensable injury:.."

Analysis

As recorded above we were not able to find in the worker's favour on either of the two issues.

With respect to the first issue we found on a balance of probabilities that the worker recovered from the December 2000 compensable injury, which we consider to have been an aggravation of the worker's pre-existing knee condition. On the second issue we found, on a balance of probabilities, that the August 4, 2002 injury was not related to the December 2000 compensable injury. These dislocations, including the one in August 2002, are related to his pre-existing condition. We found that the worker suffers from a pre-existing knee problem and had experienced dislocations before the December 2000 compensable injury. In arriving at these conclusions we placed significant weight on the following:

• report from the worker's family physician dated November 6, 2003 which notes that on November 24, 1995, the worker presented with a cast and advised the physician that he had a dislocation and spontaneous reduction of his left patella five days earlier. This report also notes that the worker advised the physician in 1997 that he experienced an occasional dislocation of his left patella.
  
  
• the worker returned to work with his accident employer in June 2001, following the December 2000 compensable injury. The worker did not report any problems to the WCB until the August 2002 injury occurred nor did he seek any medical attention during this period.
  
  
• in May 2001 the treating surgeon reported that the worker had returned to work and commented:

  "The impression is for a traumatic chondromalacia of the patella secondary to patellar dislocation. He has been given some maintenance exercises, does not really feel he requires much physical therapy as he had chiefly modalities in the past and he has been doing quite well with the home exercise program and has therefore been discharged from follow-up unless he does have further problems and long-term prognosis is good."

We note that the worker did not report any further difficulties to the surgeon.

• a WCB medical advisor reviewed the file in May 2001 and commented:

  "The CI [compensable injury] was an aggravation of a significant pre-ex. Most recent discussion of CM [case manager] with clm't [claimant] indicates marked improvement post-op. It is expected that with appropriate post-op physiotx [physiotherapy treatment] clm't will return to his pre-accident state, which was symptomatic of patellofem. problems occurring from age 14 when he had his first dislocation. His pre-existing problem may well progress considering how symptomatic he is at a young age and his weight."

• the same WCB medical adviser commented on September 5, 2002 that "… it is expected that his non-CI [compensable injury] related chronic knee problems would recur, and they have; at home." She commented further that "this is not related to the CI [compensable injury], but pre-ex."
  
  
• in a report dated April 20, 2003, the treating surgeon responded to several questions posed by the worker's representative. He was asked whether the December 2000 injury and related surgery made the worker's knee more prone to dislocation. The surgeon responded:

  "Surgery would not make the knee more prone to dislocate. The injury did not likely lead to an increased likelihood of dislocation, as postop physiotherapy and a patellar sleeve, if required would help stabilize the knee. Medial dislocations are quite uncommon, and there was no lateral instability as far as I know."

• a WCB orthopedic consultant commented

  "The stage II and stage III findings of chondromalacia patella are not the direct result of the one CI occurring Dec. 19/00. They are indicative of longer standing patello-femoral problems which has resulted in 3 recurrent patellar dislocations, the first dating back to his teens. He appears to have patellar instability with perhaps mal tracking of the patella leading to the development of chondromalacia patella and at least 3 dislocations episodes."

The worker's appeal is therefore denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of December, 2004