Decision #08/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 28, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on September 28, 2004 and again on November 19, 2004.

Issue

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

Decision

That responsibility should be accepted for the proposed right knee surgery.

Decision: Unanimous

Background

In August 2001 the worker sustained a compensable injury to her right knee during the course of her employment as a plastic technician. No time loss was incurred by the worker.

On August 21, 2002, the family physician provided the Workers Compensation Board (WCB) with a narrative report outlining the dates that he had treated the worker with respect to her right knee complaints commencing on August 7, 2001 through to July 15, 2002. In summarizing his report, the physician stated,
"…[the worker] has had no significant history of knee problems. She did state that she did have some discomfort prior to the accident. She has had a linear pattern of symptomatology since the fall in August of 2001. She has had several modalities of management, including anti-inflammatories and injections. She was referred to Dr. [orthopaedic specialist] and he has recommended an arthroscopy. The clinical opinion is that in view of the consistent presentation following a work-related injury, that [the worker's] continuing problems are related to the work incident. The arthroscopy is recommended to evaluate any ongoing pathology as a result of the fall."
On September 25, 2002, a WCB medical advisor provided primary adjudication with his medical opinion with respect to the proposed arthroscopy. The medical advisor stated the following:
"File reviewed. The symptoms reported by the A/P [attending physician] on Aug 7 and 16/01 are in the lateral RT knee. He also reported 3 months of peri-patellar pain in the Rt knee prior to the fall Aug 5/01. Subsequent reports in April/01, July/01, etc. refer to the perio-patellar pain, not the lateral knee pain. The peripatellar pain is pre-x [pre-existing] in this case, and unrelated to the C.I. [compensable injury], in my opinion. Discussed with C.M. [case manager] and she is in agreement."
In a decision letter dated November 19, 2002, primary adjudication advised the worker that it was the WCB's position that she had recovered from the effects of her August 5, 2001 workplace accident and that her ongoing problems were due to a non-compensable pre-existing condition. As such, the approval for surgery was denied. On November 29, 2002, this decision was appealed by the worker's union representative and the case was then forwarded to Review Office.

Prior to considering the appeal, Review Office obtained the results of a February 24, 2003 MRI examination that was carried out on the worker's right knee. Review Office also obtained the medical advice of a WCB orthopaedic consultant concerning a cause and effect relationship between the worker's right knee difficulties and the mechanics of the fall.

On June 27, 2003, Review Office considered the union representative's appeal along with an appeal from the employer's advocate. The employer's advocate presented information in support of the position that responsibility should not be accepted for any treatment or time loss related to the compensable accident.

In its decision of June 27, 2003, Review Office confirmed that the worker sustained an injury to her knee on August 7, 2001 and that all medical aid expenses incurred on the claim would be paid. The employer's appeal was denied.

Review Office also determined that the proposed right knee surgery should not be accepted as a WCB responsibility and that the worker had recovered from her compensable right knee injury by the summer of 2002. Concerning the proposed right knee surgery, Review Office felt that the worker's tear of the lateral meniscus did not occur during her fall at work and that this condition pre-dated the compensable injury. This determination was based on the opinion expressed by the WCB orthopaedic consultant who stated that a meniscal tear was normally caused by a rotational element and that the worker's injury, i.e. falling forward on her right knee, would normally provide a blunt trauma type of mechanism of injury as opposed to any twisting or rotational movement. Review Office also referred to the comments made by the WCB orthopaedic consultant that the tear as evidenced on the MRI was longstanding and that the chondromalacia found at the time of the MRI could be a result of the meniscal tear. In July 2004, the worker's union representative appealed Review Office's decision and an oral hearing was convened.

Following the hearing and after discussion of the case, the Appeal Panel requested and received additional medical information from two of the worker's treating physicians. This information was then distributed to the parties of interest for comment. On November 19, 2004, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the worker sustained a compensable injury to her right knee after she tripped and fell at work on August 5, 2001. In a conversation with a WCB representative, the worker advised that she first had problems with her right knee in early July 2001. She denied any kind of traumatic event happening at that time. She further advised that her problems, including pain, were under her right knee cap.

The worker’s account of her right knee difficulties was corroborated by her treating physician in a letter to the Appeal Commission dated October 25, 2004. He stated, in part, as follows:

“I did a review of the presenting history of [the worker’s] (r) knee problems in this office. On reviewing the history and clinical notes – she was seen on August 2, 2001 for a medical issue unrelated to her knee. At that time however she stated that she had been having some discomfort in her right knee for approximately two months. She stated that she had had no trauma. The area of discomfort was mainly on the outside aspect of the knee. On physical examination directed towards the knee, she was tender on the right lateral aspect of the knee. There were no significant clinical findings.

[The worker] returned to this office on August 16, 2001. She stated that her knee was not improving. She stated that she had fallen at work injuring her knee. She stated that she was having discomfort on the right lateral aspect of the knee radiating into the thigh. On examination she was tender over the lateral joint line. There was noted to be a small effusion. There was (sic) no signs of ligament injuries. The essential difference in both these clinical findings relates to the fact that there was further pain in the knee following the fall into the thigh now associated with inter-articular effusion. This was not present on the previous examination.”

A review of the medical evidence reveals that the treating physicians as well as the WCB medical advisors involved with this case all agreed that the worker’s chondromalacia patella was pre-existing and non-compensable.

In arriving at our decision, we attached considerable weight to the treating orthopaedic surgeon’s opinion of October 25, 2004. We took particular note of the following comments:

“The request for arthroscopy was denied by WCB. The patient subsequently had a magnetic scan performed.

The magnetic scan result showed mild chondromalacia patella and moderate chondromalacic changes in the lateral compartment. There was also horizontal cleavage tear involving the lateral meniscus with a small parameniscal cyst. The magnetic scan was performed on February 24, 2003, about a year and a half following the initial injury. It would be my feeling that the chondromalacia changes observed on the magnetic scan probably were longstanding. One would not expect chondromalacia changes to develop over a relatively short span of time such as a year and a half. The lateral meniscal tear though could be related to the work-related injury. Normally, meniscal tears would require axial loading and twisting. However, in the presence of chondromalacia changes in the lateral compartment, there might have been some degree of degenerative changes in the lateral meniscus making her more prone to a tear to even direct injury. According to my notes, Ms. [the worker] did not have any prior history of right knee symptoms. If this fact could be confirmed by Dr. [name], her family doctor, then I would say the work injury had enhanced the symptoms of the previous asymptomatic conditions, chondromalacia patella and also chondromalacia changes to the lateral compartment. The work injury probably had contributed to the lateral meniscal tear.”

After having thoroughly considered all of the evidence, we find that worker’s suggested right knee surgery is, on a balance of probabilities, related to her compensable injury of August 2001. We therefore further find that responsibility should be accepted for the said right knee surgery by the WCB. Accordingly, the worker’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of January, 2005

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