The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel was convened on January 31, 2006 to hear the worker's appeal of the Review Office's April 27, 2005 decision. The worker attended at the hearing and was represented by a worker advisor. The employer did not attend.

Issue

Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act (the "Act"), and

Whether or not the worker is entitled to wage loss benefits beyond January 6, 2005.

Decision

That a Medical Review Panel should not be convened under subsection 67(4) of the Act; and

That the worker is entitled to wage loss benefits beyond January 6, 2005.

Decision: Unanimous

Background

On October 6, 2003, the worker was employed as a welder's helper. Part of his duties consisted in loading steel ties into the back of a half ton truck lined with a plywood sheet. The steel ties were approximately 5 feet long and 120 lbs. The worker would flip the ties end over end until he reached the truck, then he would push them in.

At approximately 11 a.m. on that day, the worker was loading steel ties when they caught onto the plywood sheet in the back of the truck. His left knee twisted inward to the right, then outward to the left. His body continued to move forward as he was on slag ground and he fell toward the truck. He heard his knee snap and he fell to the ground. He felt excruciating pain and his knee immediately swelled to approximately twice its normal size and turned orangey-green.

The worker was denied a green card and was told to work at light duties. He did so for the remainder of the day, and the next day, until he received a green card.

He then attended for medical care on October 8, 2003. An x-ray was taken which revealed no bone or joint lesion. He was diagnosed with a lateral collateral ligament injury.

The worker attempted to return to work but found that he could not carry out his regular duties. He therefore returned to his family physician who referred him to an orthopedic specialist. On February 3, 2004, he was seen by the orthopaedic specialist. A torn meniscus was suspected and an MRI was arranged to confirm the diagnosis.

The MRI was conducted on June 20, 2004. It revealed a vertical tear of the posterior horn of the medial meniscus as well as a remote and complete tear of the anterior cruciate ligament (ACL). A moderate sized joint effusion was also found. There was no significant abnormality of the collateral or posterior cruciate ligaments. Based on these findings, the orthopedic specialist recommended a meniscectomy. He anticipated that this procedure would deal with all of the worker's knee symptoms and eliminate the need for ACL surgery.

On July 19, 2004, the worker underwent an arthroscopy of the left knee and a partial medial meniscectomy. Examination of the intercondylar notch during the arthroscopy revealed ACL tissue which appeared to be in the correct position but which was significantly lax on probing, indicating an old tear.

The worker gradually returned to work on September 13, 2004, with physical restrictions to avoid heavy lifting, constant bending, climbing, crawling and squatting. Despite some improvement in his knee symptoms however, he continued to experience aching and swelling of his knee and had difficulty walking on an incline.

Unfortunately, the worker twisted his back on October 21, 2004 when his left knee gave out at work. He was diagnosed with low back strain and chronic knee pain. X-rays of the knee taken on October 26, 2004 identified no significant abnormality in the bone or joint.

The worker was referred back to the orthopedic specialist on December 13, 2004. The specialist opined that the worker's knee symptoms were related to instability from his ACL tear. ACL reconstructive surgery was recommended, followed by a six month recovery period.

The WCB (both the case manager and Review Office) refused to accept responsibility for the ACL tear or the six month post-operative recovery period on the basis that:

• the mechanism of the October 6, 2003 injury was not sufficient to cause an ACL tear;
  
  
• the July 19, 2004 arthroscopy revealed an 'old' ACL tear;
  
  
• the October 8, 2003 x-ray did not show any evidence of an effusion in the knee which would have been anticipated had there been frank ACL disruption at that time;
  
  
• an ACL tear would have resulted in bruising and extreme pain as well as an inability to continue working.

Full wage loss benefits were therefore paid to the worker until January 6, 2005, inclusive and final.

ACL reconstruction surgery was performed on the worker's left knee on January 7, 2005.

The worker takes the position that his ACL tear is a compensable injury and that he is entitled to wage loss benefits beyond January 6, 2005. It is on these grounds that the worker appeals the Review Office decision of April 27, 2005.

Reasons

Entitlement to wage loss benefits is governed, in part, by subsections 4(1) and 4(2) of The Workers Compensation Act ("the Act"), which provide as follows:

Compensation payable out of accident fund

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Payment of wage loss benefits

4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

In the case before the panel, the issue is whether the worker is entitled to wage loss benefits beyond January 6, 2005. To make this determination, the panel must find that the ACL tear is causally related to the October 6, 2003 workplace injury.

The documentary and oral evidence reveals that on October 6, 2003, the worker suffered a twisting-pivoting injury to his left knee while loading a steel tie onto a truck, and on uneven loose terrain. This caused the worker excruciating pain and bruising and an immediate reduction in his job duties. This description of the mechanism of the injury and the worker's immediate symptoms are consistent with an ACL tear.

The fact that the ACL tear was not diagnosed until the results from the June 20, 2004 MRI were available, does not detract from this finding. In fact, a clear diagnosis of the worker's injuries was not made until this date.

Further, there is no compelling evidence that the worker suffered any other injury before or after the October 6, 2003 accident, which could account for the worker's ACL tear.

Therefore, on the basis of the evidence presented at the hearing and a review of the worker's file, the panel finds that the ACL tear occurred on October 6, 2003 and that consequently, the worker is entitled to wage loss benefits beyond January 6, 2005. The worker's evidence at the hearing was that his treating orthopaedic surgeon cleared him for return to regular duties as of July 2, 2005.

As wage loss benefits are granted and the panel accepted the ACL tear as being related to a workplace injury, the panel does not need to deal with the issue of convening a Medical Review Panel under subsection 67 (4) of the Act.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of February, 2006