The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 21, 2006, at the request of a worker advisor, acting on the worker's behalf. The worker and his worker advisor appeared as did the employer's comptroller and safety officer.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 29, 2004.

Decision

The worker is entitled to wage loss benefits beyond July 29, 2004.

Decision: Unanimous

Background

Reasons

Claim History

On June 21, 2002, the worker suffered injury to his right knee arising out of and in the course of employment. His claim was accepted by the Worker's Compensation Board (hereafter the "WCB"). He received wage loss benefits until July 29, 2004, at which time the WCB case manager determined that the worker had recovered from the effects of his compensable injury. The worker appealed this decision to the Review Office. On March 1, 2005, the Review Office upheld the case manager's decision. It is this March 1, 2005 decision that the worker appeals to the Appeal Commission.

Background

The worker became a roofer in 1994 when he was thirty years old.

In November or December, 2001, he started to experience knee pain upon kneeling. He consulted his family doctor as well as an orthopaedic specialist (hereafter 'the orthopaedic specialist'). The orthopaedic specialist summarized his examination of the worker in a January 13, 2002 report:

"[The worker was] seen regarding a bilateral patellofemoral syndrome, aggravated a great deal by his work. He will be sent for physio for this initially, as well as some knee supports, and was given some further information on risks and benefits of arthroscopy. If conservative treatment is not working, will arrange arthroscopy to search out also for other problems such as a meniscal tear."

The worker remained off work until January 7, 2002, at which time he returned to full time duties. It was the worker's evidence at the hearing that he did not suffer any further knee pain until June 21, 2002, when he suffered a compensable injury to his right knee.

The worker testified that on June 21, 2002, he was working on a roofing job. As he was mopping tar onto the roof, he pulled the mop back, and then turned left to place the mop back into the tar tub, which was behind him. At that point, his entire body turned left, except his right foot, which had become stuck in the asphalt. He felt a sudden sharp pain in his right knee then numbness. He took some aspirin and completed his shift.

Over the next couple of days the worker iced his knee and, in his words, 'took it easy'. He returned to work on June 26, 2002. After a couple of hours into his shift however, he went home and called his doctor, who he saw that day.

The doctor found the worker's knee tender to palpation along the medial tibial plateau but did not find any swelling. He diagnosed the worker with right knee strain and prescribed anti-inflammatories with heat and ice applications, and activity as tolerated. He advised the worker to remain off work until July 2, 2002.

On July 2, 2002, the worker returned to the doctor with complaints of right knee pain; he reported that his knee symptoms were improving until he walked on an uneven surface and exacerbated his injury. The doctor advised the worker to remain off work for a further four days.

The worker returned to work on July 10, 2002 for a ten hour shift. On July 11, 2002 he worked for approximately one hour then stopped because of right knee pain. He saw another doctor (hereafter 'the physician') that day who advised him to remain off work until further notice. The physician reported that the worker suffered from pre-existing chronic patellofemoral syndrome which could affect his recovery. A referral was made to the orthopaedic specialist.

Despite the physician's advice, the worker attempted a return to work with modified duties on July 15 and 16, 2002 but found that his right knee pain was too much to bear.

On September 15, 2002, the orthopaedic specialist examined the worker and thought that it was likely that he had sustained a medial meniscal tear at work on June 21, 2002.

A partial medial meniscectomy of the right knee was performed on December 11, 2002. The orthopaedic specialist noted the following:

"...the lateral compartment is in excellent condition aside from Stage I tibial chondromalacia symmetrically distributed over the tibial surface. Intercondylar notch also satisfactory. The patellofemoral compartment shows only minimal patellofemoral chondromalacia. There is a medial synovial plica. This was left as is. The medial compartment shows a horizontal cleavage tear in the posterior two-thirds of the medical meniscus. This is stable..."

The WCB accepted the worker's medial meniscal tear as a compensable injury.

Given the worker's previous patellofemoral problems and his meniscal tear, the orthopaedic specialist recommended that the worker avoid crouching, kneeling and unnecessary climbing.

Despite this advice, the worker returned to regular duties on April 1, 2003 until May 6, 2003 when he stopped once again because of recurring right knee pain.

On May 12, 2003, he returned to the orthopaedic specialist who thought that the worker's knee complaints could be due to either the development of a meniscal cyst or a flare-up of arthritis. Arthritis was ruled out as a diagnosis after a weight-bearing x-ray was negative for a specific or progressive arthritis. A meniscal cyst was confirmed. It was drained and the orthopaedic specialist recommended that the worker avoid his roofing job as well as crouching and kneeling.

The meniscal cyst was eventually accepted by the WCB as related to the compensable injury and time loss was granted to the worker.

The worker returned to the orthopaedic specialist in August, 2003 with further complaints of chronic knee pain and localized swelling. An MRI on October 11, 2003 revealed that the worker had suffered a further tear within the mid body of the medial meniscus extending peripherally into a multilocular parameniscal cyst. The orthopaedic specialist thought that this subsequent tear and cyst were related to the compensable injury.

A WCB orthopaedic consultant (hereafter "the WCB orthopaedic consultant") did not share this opinion. On October 10, 2003, he stated:

"The claimant had been seen before [the compensable injury] because of patellofemoral syndrome. At the time of his surgery (Dec 02) degenerative changes were noted on the tibial surface and there was minimal patellofemoral chondromalacia. The meniscal tear was of a horizontal cleavage type which is typically a degenerative tear. Meniscal cysts are not of traumatic origin in my opinion.

I think the claimant's ongoing symptoms are due to degenerative changes in the knee."

He later added:

"…there may have been some enhancement of the tear by the compensable injury. I do not think that the cysts would be directly due to an injury."

A medical advisor to the WCB thought that both the medial meniscus tear and cyst were a possible enhancement of the worker's compensable injury. On this basis, the WCB accepted responsibility for the worker's ongoing right knee symptoms.

A second arthroscopy of the right knee was carried out on November 26, 2003, which confirmed a tear of the medial meniscus and a meniscal cyst; the medial meniscus was debrided and the cyst was excised. In addition, the orthopaedic specialist found degenerative changes to the peripheral portion of the meniscus where the cyst had developed.

The worker was seen in follow-up by the orthopaedic specialist on December 8, 2003 and February 16, 2004. The worker complained of persistent medial pain and the orthopaedic specialist opined that his prognosis for return to work at his regular duties was not particularly good. He recommended that the worker find a more sedentary job.

The WCB orthopaedic consultant agreed that the worker should "get a less strenuous job with less heavy lifting, climbing and kneeling". However, he thought that he could start looking for work immediately.

On May 10, 2004, the orthopaedic specialist recommended an "unloader brace" for the worker on the grounds that the two meniscectomies could lead to the progressive development of medial compartment arthritis.

The WCB orthopaedic consultant did not agree:

"I am not sure of the rationale for using an unloader brace for this claimant. I feel this type of brace should be used where there is degenerative arthritis in one side of the knee. Although the claimant had a degenerative type of tear of his medial meniscus, no degenerative change was reported in the tibio-femoral articulations. Since there is no arthritic change in these joint surfaces I do not think an unloader brace would help. Perhaps the brace was ordered because the tear was associated with degenerative changes in the meniscus.

I feel he should avoid strenuous work - heavy lifting. Avoid squatting and excessive use of stairs & ladders. This could be re-assessed in 3[months]."

The worker testified that he never returned to work after May 6, 2003. He did look for alternative work in the construction industry in March or April, 2004 by asking ten or eleven acquaintances about potential jobs. He also thought about applying for a Red River College program but did not enroll in any courses.

On July 22, 2004 the case manager discussed the worker's knee condition with the WCB orthopaedic specialist. On the basis of this discussion, the case manager stated:

"There is no objective medical evidence to indicate the pre-existing arthritis condition in the [worker's] knee has been enhanced.

The compensable injury accepted, and subsequent surgeries, was for a tear of the meniscus. Normal recovery time for these surgeries are long over. Prescribing of unloader brace would not be considered to be related to symptoms relating to meniscus, but to arthritis condition on one side of the knee, which is the [worker's pre-existing] problem. This would also indicate that ongoing symptoms are not related to [the compensable injury]."

The case manager notified the worker that wage loss benefits would be paid to July 29, 2004 inclusive and final.

This decision was appealed to the Review Office. An additional medical report from the orthopaedic specialist dated January 17, 2005, was provided in support of the worker's appeal. This report states, in particular, that:

- with respect to pre-existing conditions, there "was patellofemoral syndrome…but this [has] not been the main limiting condition for him…"

- "the question of enhancement is really only applicable to his meniscal injury and damage, which was enhanced in the form of development of the meniscal cyst, after his return to work after his first arthroscopy."

On February 9, 2005, the Review Office consulted with a WCB orthopaedic consultant to the Review Office. A summary of this discussion follows:

"We discussed the operative procedures repairing the meniscal tear and the cyst. He stated that the cleavage tear was indicative of a degenerative tear. He agreed that the worker could return to work to his pre-accident duties as he had recovered from the surgeries.

He noted that the worker had pre-existing degenerative conditions in his knee however it was his opinion that these did not prevent him from resuming his regular work activities."

Relying on this discussion, the Review Office upheld the case manager's decision on March 1, 2005. It was the Review Office's opinion that the worker had recovered from the compensable injury and that his ongoing symptoms were not related to the compensable injury.

Issue

The issue before us is whether the worker is entitled to wage loss benefits beyond July 29, 2004.

As the WCB accepted the worker's claim for compensation for the meniscal tear to his right knee, as well as the meniscal cysts and subsequent meniscal tear in this same knee, the first determination that must be made is whether we find on a balance of probabilities that the worker has recovered from his compensable injury. If the answer to this first question is no, the next question then becomes whether the worker is entitled to the relief sought, i.e. wage loss benefits beyond July 29, 2004.

Worker's Position

The worker contends that he has not fully recovered from his compensable injury and that he will be permanently restricted from performing the regular duties of a roofer. He says that his condition has not changed since 2004; he has to be careful going up and down stairs, turning, pivoting, and standing up. He relies on the orthopaedic specialist's reports which speak to his inability to perform the regular duties of a roofer.

Given his inability to work as a roofer, the worker says that the WCB is bound to accept responsibility for wage loss benefits beyond July 29, 2004. It cannot deny further responsibility, as it has, by stating that his on-going complaints are related to a non-compensable pre-existing degenerative condition. Indeed:

i) the WCB accepted the June 21, 2002 meniscal tear and subsequent cysts and tear as being compensable. It cannot now say that his symptoms are solely related to a pre-existing degenerative condition;

ii) Even if the June 21, 2002 meniscal tear is as a result of a pre-existing degenerative condition, the WCB took the position that the degenerative condition was enhanced by the compensable injury. In these conditions, and pursuant to WCB policy, the WCB must accept full responsibility for this enhancement.

Employer's Position

The employer submitted that the Review Office decision should be upheld. It took the position that the orthopaedic specialist's reports were contradictory and should not be relied upon.

Analysis

Section 39 of The Workers Compensation Act provides, in part, that when a worker suffers an injury which results in a loss of earning capacity, wage loss benefits are payable to him until the loss of earning capacity ends.

WCB policy 44.10.20.10 on pre-existing conditions states that where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident, unless:

i) the worker recovers from the workplace accident to the point that it is no longer contributing to a material degree to a loss of earning capacity, and

ii) the non-compensable pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of employment.

In the case before us, the worker suffered from a non-compensable pre-existing patellofemoral condition in his right knee which was later confirmed during the December 11, 2002 arthroscopy.

The worker's reported symptoms from the patellofemoral syndrome were right knee pain upon kneeling. He was advised to avoid kneeling. It was his evidence at the hearing however, that he was able to resume his full time duties as a roofer up until June 21, 2002.

In addition to this non-compensable patellofemoral syndrome, the worker suffered a meniscal tear. The WCB orthopaedic consultant appears to suggest that the meniscal tear was caused by pre-existing degenerative changes to the worker's knee and that this pre-existing tear may have been enhanced by the compensable injury.

We do not accept this suggestion. The December 11, 2002 arthroscopy shows three different conditions in the worker's right knee:

i) a stage I patellofemoral condition, which pre-dated the June 21, 2002 workplace accident;

ii) stage I lateral arthritis, which pre-dated the June 21, 2002 workplace accident; and

iii) a meniscal tear to the medial meniscus with no degenerative changes.

There is therefore, in our opinion, no cogent evidence that the meniscal tear pre-dated the June 21, 2002 workplace accident.

In any event, the meniscal tear was accepted by the WCB as a compensable injury. Further, the subsequent meniscal tear and meniscal cysts were accepted as an enhancement of this compensable injury.

Therefore, in considering whether the worker continues to suffer a loss of earning capacity, we must determine whether the compensable injury and enhancement of the compensable injury continue to contribute to a material degree to the worker's loss of earning capacity. In our opinion, the answer to this question is yes.

Indeed, the orthopaedic specialist opined that both the pre-existing non-compensable patellofemoral syndrome and the compensable meniscal tears and cysts require the worker to change careers in favour of a more sedentary type of work. It was however his opinion that the patellofemoral syndrome was not the worker's main limiting condition.

We accept this opinion given the evidence before us. The evidence indicates that subsequent to June 21, 2002, the worker has experienced great difficulty in returning to work as a roofer. In fact, when he did return to full time duties in April, 2003, he developed a meniscal cyst and a further meniscal tear. Further, the worker testified that since his June 21, 2002 accident, he now has to be careful with respect to going up and down stairs, pivoting, and standing for extended periods of time.

In these circumstances, we find, on a balance of probabilities, that the worker was not recovered from the June 21, 2002 workplace accident on July 29, 2004, and continued to suffer a loss of earning capacity.

That said, the worker testified at the hearing that his right knee condition has not changed since 2004, and at that time he was capable of standing, walking and sitting. The medical opinion of both the orthopaedic specialist and the WCB orthopaedic consultant was that the worker was able to work within his restrictions at that time. We note that the worker has not worked since the termination of his benefits, and has only made cursory attempts at re-employment in other fields. Based on this evidence, we find that the worker was not totally disabled and was capable of some earning capacity within his physical restrictions of no bending, kneeling or squatting as of July 29, 2004. This will be a matter for adjudication by the WCB.

Conclusion

In conclusion, we find that the worker is entitled to wage loss benefits beyond July 29, 2004, but that these benefits should be paid in consideration of the worker's potential earning capacity at that time.

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 28th day of March, 2006