The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 17, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on February 17, 2005 and again on March 15, 2005.

Issue

Whether or not the restriction to avoid the cold is required as a direct result of the compensable left knee claim;

Whether or not there should be further entitlement to medical aid benefits and services for the left knee condition; and,

Whether or not the worker is entitled to wage loss benefits beyond September 2, 2003.

Decision

That the restriction to avoid the cold is required as a direct result of the compensable left knee claim; and,

That there should be further entitlement to medical aid benefits and services for the left knee condition; and,

That the worker is entitled to wage loss benefits from January 15, 2004 to the April 2004 return to work date.

Decision: Unanimous

Background

The worker incurred compensable injuries to his right knee, shoulder, elbow and neck during the course of his employment as a meat cutter on November 18, 2002. With respect to his right knee condition, the worker underwent an MRI examination on May 2, 2003. The MRI showed a focal tear in the medial meniscus posteriorly.

In a follow-up report dated July 3, 2003, a sports medicine specialist outlined his examination findings regarding the worker's right knee status and decided that the worker was ready to begin a graduated return to normal duties, starting at two hours of regular duties and six hours of modified duties per day.

In a memo to file dated July 31, 2003, a Workers Compensation Board (WCB) case manager recorded that he met with an employer representative and was advised that the worker had been working 2 hours on regular duties and 6 hours in the laundry area when he complained of left knee difficulties. Subsequently, the WCB established a new claim for the worker's left knee difficulties. The worker attributed his left knee difficulties to overcompensating with his left leg because of his right knee difficulties.

In a physiotherapist's report dated August 1, 2003, the worker's subjective complaints were recorded as medial joint line pain of the left knee. The diagnosis rendered by the therapist was a questionable medial meniscal irritation/tear.

In a September 7, 2003 report, the treating sports medicine specialist reported that the worker was assessed on August 21 and September 2, 2003 for increasing difficulties with the left knee involving swelling, pain and difficulty with forward flexion. X-rays of the left knee dated August 21, 2003 revealed narrowing of the medial aspect of the joint with minor degenerative changes. There was a small joint effusion present. The specialist outlined his opinion that the worker likely had left knee medial compartment difficulties, either articular cartilage or meniscal in origin. He felt that the worker developed knee difficulties by altering his weight-bearing pattern of gait because of his compensable injury. The specialist's treatment plan included an unloading knee brace, range of motion exercises and non-steroidal anti-inflammatory agents. By September 7, 2003, the specialist indicated that the worker could begin a graduated return to work program and that he should not engage in squatting or heavy pivoting activities on the left knee for at least four to six weeks.

On September 18, 2003, a WCB medical advisor reviewed the file information and opined that the worker may have had a temporary aggravation of his pre-existing degenerative disease which should have lasted only a few days. He was also of the view that the worker was capable of performing light duties, i.e. folding and handing out gloves, and that the proposed knee brace was not a WCB responsibility since it pertained to the worker's pre-existing disease.

On September 22, 2003, a WCB adjudicator accepted responsibility for the worker's left knee difficulties based on the opinion expressed by the WCB medical advisor on September 18, 2003. This entitled him to wage loss benefits up to August 11, 2003. By August 12, 2003, it was felt that the worker's temporary aggravation of his pre-existing condition had resolved and that he would have been capable of performing the light duties that were offered to him by his employer. The adjudicator also specified that any requirement for a knee brace would be for the pre-existing condition and was not a WCB responsibility.

On September 26, 2003, a WCB case manager agreed with the decision of September 22, 2003. He pointed out that since the worker's ongoing knee complaints were the result of a pre-existing condition, the WCB considered the worker to have recovered from the effects of his compensable injury.

In a letter dated October 5, 2003, the sports medicine specialist made reference to the WCB's decision letter of September 22, 2003 and the opinion expressed by the WCB medical advisor dated September 18, 2003. The specialist outlined his opinion that the worker's left knee condition had not resolved and that he was medically prohibited from returning to his occupation prior to August 12, 2003. He stated that the worker had ongoing pain, a small effusion, and difficulties with forced full flexion and forced full extension.

Following review of all file information which included a consultation with a WCB chiropractor advisor, the WCB case manager determined the following on November 5, 2003:

• the WCB would cover the worker's time loss between August 12 and September 2, 2003 as both the sports medicine specialist and treating chiropractor were explicit in their instructions for the worker to remain off work completely;
  
  
• the WCB would cover the costs associated with the prescribed knee brace on a one time basis only;
  
  
• the WCB would not cover the costs associated with physiotherapy and chiropractic treatments as "No further formal treatment is required for the management of the workplace aggravations to your knees."
  
  
• the worker was capable of working with restrictions.

On January 13, 2004, the sports medicine specialist provided the WCB with a written medical certificate stating "[the worker] has a chronic knee arthropathy. He is experiencing gelling with cold and sitting exposure. I have recommended he minimize cold exposure and alternating between sitting/standing and walking."

On January 14, 2004, the WCB case manager asked the sports medicine specialist to answer specific questions pertinent to the hand written medical certificate. In a response dated January 31, 2004, the specialist outlined the following opinions:

• the worker's restrictions were secondary to his compensable injury which involved a perturbation of medial compartment arthrosis of the left knee.
  
  
• the cold restriction could be modified through the use of heavier clothing and a heating device, but not tropical applications. Six degrees Celsius was the ambient temperature of the cold room in question and sitting for more than an hour in this temperature was likely to increase the worker's symptoms but not worsen his underlying condition.

On February 3, 2004, the WCB case manager referred the case to a WCB medical advisor to review the file information and to answer several questions pertinent to the two compensable claims. The medical advisor responded that the left knee diagnosis was an aggravation of pre-existing degenerative disease. He noted that there was no injury to the left knee and that the pathology in the knee was all pre-existing. The medical advisor felt that the worker may have preventive restrictions only.

In a decision dated February 5, 2004, the WCB case manager determined that the worker's current ongoing left knee complaints were entirely related to his pre-existing degenerative conditions in that knee. The compensable injury had aggravated that pre-existing condition and the aggravation had since ceased to play a role in the worker's symptomatology. Any workplace restrictions recommended by the worker's doctors relative to the left knee were preventive in nature and were directly related to the worker's pre-existing condition. The case manager further indicated that the medical evidence did not identify any significant functional impairment related to the compensable right knee injury given that he had a brace for that knee. The restrictions of no kneeling, squatting or frequent use of stairs would be appropriate given the nature of his right knee injury. The restriction against exposing his knees to the cold environment was not recognized in relation to the worker's compensable injury. Given the nature of the limited compensable restrictions, there was no reason for the worker not to participate in his regular work duties or the duties on the production floor.

On March 17, 2004, the worker's union representative provided Review Office with a detailed submission outlining several issues for consideration. Prior to determining these issues, Review Office asked a WCB orthopaedic consultant to review the case and to respond to certain questions. The consultant's response to Review Office is dated June 15, 2004.

In a decision dated June 28, 2004, Review Office determined that the left knee condition had a relationship to the right knee injury; that wage loss benefits were not payable beyond September 2, 2003; that the cold restriction was not deemed related to the left knee claim and that no further entitlement to medical aid benefits or services for the left knee condition was authorized beyond those already covered on the claim. In brief, Review Office concluded the following:

• on a balance of probabilities, the altered gait the worker temporarily incurred through the right knee injury had a negative effect on the left knee and aggravated the underlying osteoarthritic left knee condition.
  
  
• it was difficult to determine when the aggravation ceased to exist. Even though the worker may have had left knee symptoms beyond September 2, 2003, Review Office felt it would not lead to disability requiring time off from work as it was not felt that the knee was functionally impaired to the point of disability.
  
  
• the modified duties offered to the worker were suitable and the worker had the opportunity to do whatever was required to alleviate any increase in his symptoms.
  
  
• the "cold" restriction was preventive in nature as the osteoarthritis in the left knee was not a compensable condition.
  
  
• with respect to ongoing coverage for medical aid services, Review Office agreed with the WCB's position that ongoing physiotherapy or chiropractic care was not required for the left knee.

On September 21, 2004, the union representative appealed Review Office's decisions and an oral hearing was convened.

Following the hearing and after discussion of the case, the Appeal Panel asked the WCB case manager to expand on the September 19, 2004 discussion that he had with the accident employer to accommodate the worker back into the workplace. A response from the case manager was later received dated February 24, 2005 was forwarded to the interested parties for comment. On March 15, 2005, the Panel met further to discuss the case and to render its final decisions with respect to the issues under appeal.

Reasons

As the background notes indicate, the worker has brought forward three issues on appeal. For organizational purposes, we will respond firstly to the third issue dealing with the entitlement to wage loss benefits.

Although the third issue speaks of entitlement to wage loss benefits beyond September 2, 2003, we note that the worker did in fact work alternate duties from September 2, 2003, up to and including January 14, 2004. Therefore, we will be dealing with entitlement subsequent to the foregoing January 2004 date.

The attending physician issued the following note on January 13, 2004. "[The worker] has a chronic knee arthropathy. He is experiencing gelling with cold and sitting exposure. I have recommended he minimize cold exposure and alternating between sitting/standing and walking." Also of significance was the response provided by a WCB orthopaedic consultant, when asked to discuss the attending physician's contention that the claimant's left knee problems stemmed from the right knee claim through altered gait. On June 15, 2004, the orthopaedic consultant responded by saying, "OA [osteoarthritis] may have been temporarily aggravated by altered gait due to RT [right] knee problems."

Based on the weight of evidence, we find that the worker's left knee condition, which was reported on July 21, 2003, had not, on a balance of probabilities, resolved by January 14, 2004. We further find therefore that the worker is entitled to wage loss benefits from January 15, 2004, to his return to work in April 2004.

Inasmuch as we have determined that the worker's left knee condition had not resolved by January 14, 2004, it necessarily follows that there should be further entitlement to medical aid benefits and services for the left knee condition.

Finally, we find that the restriction to avoid the cold is a direct result of the worker’s left knee condition. In this regard, we attached considerable weight to the following comments recorded by the treating physician in his letter of January 31, 2004, to the WCB.

“We have discussed the temperature of 6º Celsius as being the ambient temperature of the cold room in question. In my opinion, sitting for more than an hour in this temperature is likely to increase Mr. [the worker’s] symptoms, but not worsen his underlying condition. Common sense would indicate that the colder the temperature, the more significant symptoms an individual will complain of.”

The worker’s appeal with respect to all three issues is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of April, 2005