The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal panel hearing was held on July 19, 2005, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on several occasions, the last one being January 26, 2006.

Issue

Whether or not the claim for a left knee injury occurring either October 25, 2000 or about June/July 2003 is acceptable; and

Whether or not a relationship can be established between the worker's left knee condition and the compensable injuries involving the right ankle and right knee.

Decision

That the claim for a left knee injury occurring either October 25, 2000 or about June/July 2003 is not acceptable; and

That a relationship cannot be established between the worker's left knee condition and the compensable injuries involving the right ankle and right knee.

Decision: Unanimous

Background

During the course of his employment as a welder and fitter on September 20, 1984, the worker twisted his right ankle when he stepped over a pipe. Medical information confirmed that the worker sustained a ligamentous sprain injury to his right ankle as a result of the accident and was treated accordingly. On February 21, 1989, a medical officer with the Workers Compensation Board (WCB) determined that the worker was entitled to a 2.4% permanent partial disability (PPD) rating for the 15 degree loss in range of motion of his right ankle.

File information revealed that the worker continued to seek medical attention for chronic right ankle pain. In a November 20, 1992 report, the treating physician noted that the worker's symptoms were not severe enough to prevent him from working and there were little objective findings other than tenderness and minimal soft tissue swelling.

On December 13, 2000, a chiropractor reported that the worker complained of ongoing pain and disability related to his foot, ankle, knee(s) and lower back. It was the chiropractor's opinion that the worker's ongoing right foot/ankle pain and dysfunction was related to "incomplete healing of soft tissues - ligaments/tendons from his inversion sprain."

In a February 8, 2001 report, the treating physiotherapist noted that the worker's range of motion in his right ankle was decreasing in relation to his left ankle.

In April 2001, the treating physician stated that the worker's right knee "locks at times" and that the worker wished to be examined by a specialist for his right knee and right ankle complaints.

On June 12, 2001, the worker's right ankle was re-evaluated for the purposes of establishing whether or not he had an increase in his PPD. The worker stated that his ankle pain was becoming more severe and that his ankle was progressively becoming weaker. He believed that his knee problems had been caused by the way he walked to protect his ankle from giving way. Prior to recommending a PPD rating, the medical advisor suggested that further neurological investigations be carried out.

In a January 24, 2002 report, a neurologist reported that the worker complained of continuous pain around the lateral aspect of his right ankle, pointing to the lateral malleolus. Following his assessment, no neurological disorder was found. As the worker complained of persistent pain over the lateral aspect of his right ankle, the neurologist thought it was quite possible that the worker could have been favoring his right leg.

On May 13, 2002, the WCB informed the worker that his right ankle PPD award would be increased from 2.4% to 2.7%.

On January 11, 2001, the worker twisted his right knee while crawling into a vessel crawl space. The claim for compensation was initially denied by the WCB but the decision was overturned on April 16, 2002. On September 16, 2002, the worker underwent a right knee arthroscopy with partial medial meniscectomy. The post-operative diagnosis was medial meniscus tear of the right knee plus Grade III chondromalacia medial femoral condyle. On December 4, 2003, the WCB awarded the worker a 4% permanent partial impairment (PPI) award in recognition of his right knee condition.

On December 19, 2003, the worker contacted the call centre at the WCB to file a claim for left knee difficulties related to a September 30, 2003 accident. In part, the worker described his left knee difficulties as follows: "Since my injury to my right ankle, and right knee, favouring my right ankle and right knee, leaning towards my left, putting all the pressure on my left knee all the time when walking, and for all over movements, I am experiencing locking, pain, and swelling to my left knee.…"

Medical information dated October 2, 2003, stated that the worker had ongoing trouble with his left knee lasting 3-4 months and that it worsened when he went down stairs and that his knee seemed to flip back. The worker was assessed with a possible "medial cartilage problem - Patellofemoral syndrome."

In a report dated November 26, 2003, the orthopedic surgeon stated, "He is well known to us from his previous right knee surgery, where he had a torn medial meniscus. He has had similar symptoms in the left, which he says started about three months ago. I think this is from kneeling down to close his curtains at night. He gets a sharp medial pain and a sensation of the knee catching or locking. He has also had some swelling just above the patella." The specialist reported that the worker had features compatible with a medial meniscus tear and that an arthroscopy would be performed.

X-rays taken of the left knee on October 2, 2003 revealed a small osteophyte arising from the upper pole of the patella consistent with very mild osteoarthritis. No other abnormality was identified.

On April 13, 2004, the worker had surgery to both knees. The post-operative diagnosis was chondromalacia right knee and a medial meniscus tear of the left knee.

In a telephone conversation with a WCB adjudicator on April 21, 2004, the worker indicated that he was going down the back alley stairs at work in June or July 2003 when he turned to go back upstairs and he pivoted on his left knee to turn around and in doing so twisted his left knee and felt a pop. He stated that he had experienced on and off clicking noises in his left knee for years and since the incident on the stairs the clicking had become louder and constant. On April 22, 2004, an employer representative advised the WCB that there was no report of any incident on the stairs or injury to the worker's left knee.

On May 26, 2004, a WCB medical advisor reviewed the file information and opined that the degenerative tear in the worker's left knee was not related to his complaints of an altered gait resulting from his previous right knee and right ankle surgeries.

On May 27, 2004, primary adjudication determined that the worker's claim for left knee difficulties was not acceptable as it was unable to establish a relationship between the development of his left knee symptoms and an accident arising out of and in the course of employment.

In a submission dated September 8, 2004, a worker advisor asked Review Office to reconsider the May 27, 2004 decision which denied acceptance for the worker's 2003 claim. The worker contended that during the treatment and recovery period from his right ankle injury and his right knee injury, he compensated by putting additional stress on his left leg. It was the worker's opinion that the additional stress resulted in the development of degenerative medial meniscus tear in his left knee. The worker made reference to medical reports to support his position that his left knee condition was aggravated by his compensable right leg injuries and was further exacerbated by the October 25, 2000 workplace accident.

On September 13, 2004, Review Office referred the case back to primary adjudication to further investigate the issues that were raised by the worker advisor.

In a letter to the worker dated October 22, 2004, the adjudicator noted that the accident employer's chiropractor confirmed that the worker came to his office on October 26, 2000 reporting that he had injured his left knee the previous night when he slipped and twisted his knee while going down some steps at the plant. The diagnosis was a left knee strain. This was the one and only occasion during which the worker's left knee was examined. The October 25, 2000 incident was not reported to the employer. After a final review of the file, it was decided that the decision of May 27, 2004 would stand.

In a memo to file dated December 20, 2004, a senior adjudicator reaffirmed the position that the 2003 claim is not acceptable.

On December 29, 2004, a WCB medical advisor was asked to review the worker's three files and to comment on the current left knee diagnosis and its possible relationship, if any, to the worker's right ankle and right knee injuries. The medical advisor responded on January 7, 2005 that there was no evidence of a relationship.

On January 10, 2005, a WCB case manager advised the worker that based on the WCB medical advisor's opinion, there was no cause and effect relationship between his compensable right knee and ankle injuries and his present left knee difficulties. It was felt that the worker's current left knee complaints were due to a non-compensable pre-existing degenerative condition and that the WCB was unable to assume responsibility for any associated medical treatment or time loss.

On March 18, 2005, Review Office determined that the claim was not acceptable for a left knee injury occurring either October 25, 2000 or about June/July 2003 as it was unable to establish that the worker suffered a personal injury arising out of and in the course of his employment during these time periods. Review Office noted that the worker did not report a work related injury or accident to his employer or to the WCB despite knowing proper reporting procedures. Review Office considered the November 26, 2003 orthopedic surgeon's report wherein he noted that the worker's left knee symptoms started three months previous from kneeling down to close his curtain at night. Review Office did not consider this to be a work related incident. Review Office stated that it had no corroborative evidence to verify the accident history provided to the treating chiropractor on October 26, 2000.

Review Office indicated there was no evidence, medical or otherwise, to establish a relationship between the worker's degenerative medial meniscal tear as verified at surgery and the compensable right knee or ankle injuries. In reaching this conclusion, Review Office considered the opinions/comments expressed by WCB medical advisors on January 7, 2005, May 26, 2004 and May 31, 2004 along with the information outlined by the orthopedic surgeon in his report dated November 26, 2003. On May 9, 2005, the worker advisor appealed Review Office's decisions and an oral hearing was arranged.

Following the oral hearing, the panel met to discuss the case and requested information from a second orthopedic surgeon. On July 29, 2005, the worker was provided with the information that was submitted by the second surgeon and was asked to provide comment.

On August 3, 2005, the worker advised the Appeal Commission that he was undergoing an MRI assessment of both knees. On the same day, the worker was advised that the Appeal panel would wait for the MRI results and the follow-up report before discussing his appeal further.

On January 11, 2006, the worker was provided with copies of the medical information that the panel received from the second orthopedic surgeon and was asked to provide comment. On January 26, 2006, the panel met further to discuss the case and render its decisions.

Reasons

There are two issues to be addressed in this worker's appeal. The first issue is whether the worker's claim for a left knee injury occurring either October 25, 2000 or about June/July 2003 is acceptable. For the appeal of this issue to be successful, the panel must find that the worker suffered an injury by accident arising out of and in the course of his employment as provided by The Workers Compensation Act (the Act). The panel did not reach this conclusion.

The second issue under appeal is whether a relationship can be established between the worker's left knee condition and the compensable injuries involving the right ankle and right knee. For the appeal of this issue to be successful the panel must find a causal relationship between the worker's right knee and ankle injury and the worker's left knee injury. The panel did not find a causal relationship.

The appeal on both issues was denied.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel.

The worker described his duties as a welder and fitter. Theses duties involve climbing into boilers, climbing stairs and ladders, lifting heavy pipe, working on scaffolds, x-bar grating, and landings.

The worker described the October 25, 2000 incident. He stated he was walking down stairs and he twisted his left knee. He made this comment about the injury and frequency of problems with his left knee:

"And that day it kind of twisted, my left knee, and I put all the weight onto it and I just felt a sharp pain into my knee, which, by the way, would be a normal day or a normal thing that happened anyway to my left knee, and then that day it just didn't seem to want to go away.

I probably had done that in the year from 1984 until 2000, I don't know, 20, 30, 40, I don't know, lots of times, I couldn't even tell you. I'd be walking down the road and, you know, you guys probably have done it, and you go stop on a rock and you kind of catch yourself.

Well, if I catch myself and go to the right side, I would suffer on my right ankle. So I'd let everything to my left side and I've been doing that, like I said, for years."

He also described the June/July 2003 incident as follows:

"I was going down the stairs….And I went to go turn and then I twisted that right knee, taking - again leaning to the side to let the whole weight go back to my left knee, and again it just-

This time it kind of locked in on me, my left knee and it just wouldn't go away that day. It just locked and it stayed there."

The worker's representative asked the worker to explain why he believes his left knee injury is related to his right knee and ankle injury, he responded:

"Well, like I said, I've walked with a - I've limped for many years until I actually had surgery on my knee, where it helped some, and with me going always to the left side, I believe that that pounding - going down stairs were always my worst. I could actually feel when I come down, I could feel it, you know, hitting because I was always putting my weight to my left side.

And I think through the years, just moving to my left side and like walking to my left side, or even when I lift, I always lift to my left side because there's no way, with my ankle the way it is and my knee, I never lift to my right side because I can't."

The worker described his current condition and interactions with his physicians. He advised that he had surgery to his left knee in April 2004 and would like the WCB to accept responsibility for the surgery.

The worker's representative noted that the worker believes that the nature of his duties contributed to his left knee difficulties. She noted the worker's evidence that he injured his left knee during the course of his employment in October 2000 and June/July 2003. She also noted the worker's testimony that compensating for his right ankle and right knee injuries for many years has added stress to his left knee.

Analysis

The panel has considered all the evidence including the worker's testimony at the hearing.

With respect to the first issue, the panel accepts the worker's evidence that incidents have occurred involving his left knee. However, the panel finds that the requirements of the Act have not been met. Specifically that the worker did not suffer a personal injury by accident arising out of and in the course of his employment.

The panel notes the worker's evidence that "I twisted that knee so many times, it was just an ongoing thing for me…" The panel finds that the incidents referred to were part of the "ongoing thing". The panel finds that the incidents were not significant and notes that the worker did not report the incidents to the WCB nor the employer when they occurred even though he was familiar with the WCB claims process, having had approximately 13 prior claims with the WCB since 1984. The panel also notes that the worker did not miss time from work after either incident, which also supports the finding that the incidents were not significant.

Regarding the October 2000 incident, the panel notes that the worker saw a chiropractor on one occasion following this incident. The worker continued to see the chiropractor on other occasions but did not refer to his left knee. This is supportive of the panel's findings that the October 2000 incident was not significant.

The panel notes that the worker underwent surgery for his left knee and places significant weight on the treating orthopedic surgeon's notes which indicate "At the time of his recent left knee arthroscopy a degenerative appearing tear of the medial meniscus was identified and treated." This opinion supports the panel's finding that the surgery was due to a degenerative condition and not trauma from an accident.

The panel is unable to establish, on a balance of probabilities, that the worker suffered personal injury by accident. The appeal on this issue is dismissed.

The second issue was whether there is a relationship between the worker's left knee and his compensable right ankle and right knee injuries. The worker argued that his left knee condition was caused by compensating for his right ankle and knee injuries. He indicated to the treating orthopedic surgeon and the WCB that his left knee problems began about 1999 and were related to his right ankle and knee problems.

At the hearing, the worker testified that he has had left knee symptoms since 1986 or 1987. This suggests a longstanding problem and not one which has developed as a result of compensating for another injury since 1999.

When asked what was happening to his left knee from 1986 until April 2004 the worker replied:

"A: It was getting worse. I mean I'd done, twisted it so many times but, again, like I said, I lived with it. You know, I knew if I twisted to that right side and let all the weight go there -

Q: Yes.

A: -- I'd suffer for - like it just didn't go away in a day. It would be two, three, four weeks I'd limp worse on that. They guys at work seen me limping. They knew. They knew I'd done something to it."

The panel relies on the opinions of the WCB medical advisors dated May 26, 2004 and January 7, 2005 and notes these opinions suggest there is not a relationship between the right ankle and knee injuries and the left knee injury. A medical advisor responded "No" to the question of whether there is any medical evidence to support a direct cause and effect relationship between the injuries.

The panel also notes the opinion of a second orthopedic surgeon in a report dated July 18, 2005 that the worker has mild arthritic changes retropatellar in both knees. This suggests the worker's difficulties are due to degeneration.

The panel is unable to find, on a balance of probabilities, that the worker's left knee condition is causally related to his right knee and ankle injuries. The panel also notes the previously referenced evidence that the injury was noted as a degenerative tear.

The appeal on this issue is dismissed.

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 24th day of February, 2006