Public Decisions | The Appeal Commission

Decision #122/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 7, 1999, at the request of the employer. The Panel discussed this appeal on April 7, 1999, and August 10, 1999.

Issue

Whether the claimant is entitled to benefits for the effects of right ACL problems which developed subsequent to a work-related accident in November 1996; and

Whether medical aid should be paid for the costs of healthcare treatment associated with this ACL injury.

Decision

That the claimant is entitled to benefits for the effects of right ACL problems which developed subsequent to a work-related accident in November 1996; and

That medical aid should be paid for the costs of healthcare treatment associated with this ACL injury.

Decision: Unanimous

Background

On June 11, 1993, the claimant jumped from a truck box to a grass boulevard when he felt his right knee go sideways causing pain and swelling. The claim was accepted by the Workers Compensation Board (WCB) as a no time loss injury. On October 25, 1993, a right knee MRI showed a complex tear at the posterior horn of the medial meniscus and probable vertical tear of the posterior horn of the lateral meniscus. An incomplete tear at the femoral origin of the anterior cruciate ligament was also likely.

During the course of his employment on November 17, 1996, the claimant sustained a further injury to his right knee while trying to exit a snow clearing machine when he slipped and fell awkwardly on his right leg. X-rays taken on November 19, 1996, revealed a small joint effusion with no other significant abnormalities. On November 25, 1996, the attending physician reported tenderness along the medial aspect of the right knee and an effusion was noted. A diagnosis of a medial collateral ligament and possible meniscal injury was reported.

Subsequent reports showed that an orthopaedic specialist requested approval from the WCB for a right knee arthroscopy as a medial meniscal tear was suspected. The surgery was then authorized by the WCB and the operative report dated March 18, 1997, revealed in part:

"The medial compartment showed a complex medial meniscal (sic) tear, extending from the body and coming off the posterior horn. Partial medial meniscectomy was then performed to the stable rim. The notch showed a previous ACL tear. Only a small amount of fibre was attached to the original femoral insertion. Much of the remaining fibre was attached to the PCL. Intraoperative anterior drawer test showed relatively good function of the residual ACL." In a follow up report dated September 9, 1997, the orthopaedic specialist requested the WCB's approval to proceed with ACL reconstruction surgery which would require prolonged rehabilitation on the part of the claimant. It was noted that the claimant complained of a "giving out sensation" with his ACL tear despite physiotherapy treatments. The specialist stated in part, "It was noted with his previous magnetic scan that he had a complex tear of the medial meniscus as well as tear to the lateral meniscus and also incomplete tear of the ACL with the MRI scan. It was noted with the arthroscopy that this pathology was confirmed. Also, it was noted that he actually had a complete ACL tear."

On October 7, 1997, the orthopaedic specialist was advised by a WCB medical advisor that the proposed ACL reconstruction would not be the responsibility of the WCB. The opinion expressed was that the ACL tear was unrelated to either the 1993 or 1996 work place accidents. This decision was confirmed by primary adjudication in a letter dated October 15, 1997.

The case was considered again by a WCB medical advisor in December 1997 following receipt of additional medical reports regarding the 1993 work place accident. Based on this new information, the medical advisor commented that the pathology in the claimant's knee most likely resulted from a dirt bike accident in 1989. It was further noted that the claimant had numerous accidents since he was a teenager but the 1989 episode would certainly appear to have had a major impact regarding knee pathology.

The medical advisor commented that in retrospect, it could be questioned as to whether the arthroscopic surgery which was authorized in February 1997 was truly related to the effects of the 1996 compensable injury. The medical advisor stated, "Despite this comment, however, the mechanism of injury described in the accident of November 17, 1996 could have caused aggravation of or additional damage to, the pre-existent pathological menisci and I therefore feel that the previous decision which I had made prior to sending out a letter of authorization, namely that the compensable injury had aggravated or enhanced the pre-existing condition, was the most reasonable." The medical advisor further stated, "At no time during that period of the file review nor subsequently, was it ever considered that the ACL damage related to the 1996 compensable injury but, unquestionably related to a remote incident as confirmed in the 1993 MRI and the probable etiology of the ACL damage would revert back to 1989."

The medical advisor's comments outlined above were relayed to the claimant in a letter dated January 7, 1998. Primary adjudication reiterated that the proposed ACL reconstruction surgery was not related to either the 1993 or 1996 work place injuries and that it was more likely related to the non-compensable 1989 motor bike accident.

On May 25, 1998, the claimant and his union representative appealed the decisions rendered on October 15, 1997, and January 7, 1998. New medical evidence was submitted from the treating orthopaedic specialist dated April 6, 1998, which stated in part, “In summary, it was my feeling that the 1996 work injury most probably enhanced his ACL pathology that was present in 1993. The partial tear to his right knee ACL documented in 1993 was either caused directly by the 1993 work accident or further aggravation from his recreational injury in 1989.” The union representative contended the following:

that the WCB erred in denying the reconstructive surgery and the associated time loss and medical aid to recover the procedure.

the available evidence contained in the file supports that the WCB position is nothing more than pure speculation.

the opinion from the orthopaedic specialist was clearly in keeping with the evidence in the file and the claimant’s documented history.

Following receipt of file documentation, the employer provided its own submission to the Review Office dated September 15, 1998 which included the opinion of an independent orthopaedic consultant dated September 1, 1998. The employer contended that it was not the WCB’s responsibility to determine the etiology of the ACL damage but rather to determine whether the totality of evidence established any relationship to a compensable event. The employer believed that the weight of evidence, on a balance of probabilities, failed to establish any relationship between a compensable event and the ACL damage.

On November 6, 1998, the Review Office determined that the claimant was entitled to benefits for the effects of right ACL problems which developed subsequent to a work related accident in November 1996 and that medical aid should be paid for the costs of healthcare treatment associated with this ACL injury. Briefly, the rationale provided by Review Office was as follows:

the weight of medical evidence supported a conclusion that the claimant’s work-related accident in June 1993 more likely than not contributed significantly to the cause of his right ACL damage as first identified by MRI examination in October 1993.

the current medical evidence did not indicate that the right ACL problem had been a pre-existing condition at the time of the work related accident in June 1993 or had more likely resulted from the claimant’s personal accident in 1989.

the current medical evidence did not clearly or objectively support a determination that the claimant’s right ACL damage was made worse (enhanced) by the later work-related accident in November 1996.

historical evidence tended to show that the claimant’s right ACL injury had some type of relationship to both of his work related accidents in June 1993 and November 1996. This historical information was sufficient to establish a probable causal connection to the accident in June 1993 but was not convinced that a causal or enhancement relationship to the accident in November 1996 had sufficient support to satisfy a test based on balance of probability. It was noted that examination findings of ACL instability did not become evident for almost nine months subsequent to the claimant’s work related accident in November 1996.

The Review Office summarized that the claimant’s work-related accident in June 1993 was the initial cause of right ACL damage and therefore contributed to the later problems which were medically diagnosed about August 1997. Review Office did not find there was current evidence to show that the claimant’s later work related accident in November 1996 had, on a balance of probability, contributed to the cause or the enhancement of his right ACL problem.

On April 7, 1999, an Appeal Panel hearing took place at the request of the employer who appealed the Review Office’s decision. Following discussion of the case, the Appeal Panel requested additional information prior to rendering a final decision. This consisted of a complete job description from the employer and a report from the family physician. On June 22, 1999, all parties were provided with a copy of the attending physician’s report dated June 8, 1999 and a copy of a job description supplied by the employer was submitted to the claimant and his union representative for comment. On August 19, 1999, the Panel met to render its final decision.

Reasons

The issues in this appeal are whether or not the claimant is entitled to benefits for the effects of right ACL problems which developed subsequently to a work related accident in November 1996 and whether or not medical aid should be paid for the costs of health care treatment associated with this ACL injury.

The relevant subsections of the Workers Compensation Act (the Act) are subsection 4(1) which provides for compensation for personal injury to a worker by accident arising out of and in the course of employment and subsection 27(1) which provides for the provision of medical aid.

We reviewed all the evidence on file and given or received at the time of the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claim is acceptable and the claimant is entitled to benefits and services for the right ACL problems which developed subsequently to his work related accident in November 1996.

As the background illustrates the claimant has had two work related accidents involving his right knee, the first on June 11, 1993 when the claimant jumped from a truck box causing his knee to go sideways causing pain and swelling which was accepted by the WCB as a no time loss claim. A further injury to the right knee was sustained by the claimant on November 17, 1996 when the claimant was trying to exit a snow clearing machine that was on fire, when he slipped, fell awkwardly, and his right leg became caught.

The claimant also sustained a non-work related injury to his right knee in 1989 when he was riding a dirt bike and this event has been the subject of much of the debate surrounding the causation of the claimant's current knee problems. Further debate has also been generated by the fact that one of the claimant's attending orthopaedic surgeons, when he saw the claimant in July 1993, suggests that the claimant had sustained several knee injuries as a teenager prior to the 1989 dirt bike incident.

We accept the evidence of the claimant in this regard that he had had no right knee problems prior to the incident in 1989 and feel that the particular attending orthopaedic surgeon was mistaken. We note, in this regard, that the claimant has indicated that he was seen by this attending specialist on only two occasions which is substantiated in a letter to the WCB dated September 10, 1997 from the attending orthopaedic specialist.

We also find the claimant's evidence that he had no right knee problems prior to 1989 to be substantiated by the claimant's attending physician who indicates that he has been the claimant's attending physician since 1984 and has no record or history of any injuries to the claimant's knee prior to 1989. We note further substantiation that in 1989 and early January 1990 the claimant was seen for right knee problems by his attending physician and three independent orthopaedic specialists and note that none of these specialists indicate in their reports any history of prior right knee injuries. In this regard we do not accept the employer's argument that wasting is unlikely to occur within two weeks of a significant injury and therefore implies prior injury.

With respect to the 1989 event we note that the claimant's attending physician has indicated that he first assessed the claimant for this injury on October 25, 1989. The claimant was also seen by a number of attending orthopaedic specialists. We note in a report dated November 9, 1989 an attending orthopaedic specialist examines the claimant and suspects a medial meniscus tear which should be treated by arthroscopy and further indicates in his report that " there was no evidence of ligamentous laxity."

A second attending orthopaedic specialist saw the claimant on November 21, 1989 and suspects a capsular tear or damage to the meniscus and further indicates in his report that " the medial and lateral joint lines are not tender and the collateral and cruciate ligaments are clinically taught." (sic/taut)

A third attending orthopaedic specialist indicates in a report dated January 18, 1990 that there may be a meniscal problem but recommends conservative treatment as the evidence is not definitive. We note in this report the specialist does not reference any problems associated with the ACL. We therefore conclude that the most proximate evidence suggests, that there was no ACL problem suspected or shown clinically at the time of the 1989 injury to the claimant's right knee.

We note that the first indications of any ACL problem occur following the claimant's work related right knee injury of June 11, 1993. In a report dated July 6, 1993 a fourth attending orthopaedic specialist indicates that the claimant's knee " behaved reasonably well until he jumped off a truck from eight feet high on June 11, 1993." The specialist further states "this man's present symptoms seem to be due to synovitis of the knee associated with ligamentous strain. If his knee still remains symptomatic, he should possibly have further assessment as an associated torn medial meniscus cannot be totally ruled out." At this time the specialist orders magnetic resource imaging (MRI) to assess the claimant's right knee.

We specifically note that the clinical information section in the MRI report dated October 25, 1993 records, " Pain right knee. Suspect torn meniscus associated with partial tear of anterior cruciate. The MRI report further records " complex tear of posterior horn of the medial meniscus and probable vertical tear of the posterior horn of the lateral meniscus. An incomplete tear at the femoral origin of the anterior cruciate ligament is also likely. "

The MRI report further records " The anterior cruciate ligament is well visualized but there is a small localized fluid collection at the femoral origin and a partial tear cannot be excluded." (emphasis ours)

Following the second work related accident to his right knee on November 17, 1996, the claimant underwent right knee arthroscopy, which was pre-authorized by WCB, on March 18, 1997, and which included both partial medial and lateral menisectomies. The operative report records in part " the notch showed a previous ACL tear. Only a small amount of fibre was attached to the original femoral insertion. Much of the remaining fibre was attached to the PCL. Interoperative anterior drawer testing showed relatively good function of the residual ACL."

In a later report dated September 1997 the same attending orthopaedic surgeon describes the above finding as a complete tear, " it was noted with his previous magnetic scan that he had a complex tear of the medial meniscus as well as tear to the lateral meniscus and also incomplete tear of the ACL with the MRI scan. It was noted with the arthroscopy that this pathology was confirmed. Also, it was noted that he actually had a complete ACL tear."

We also note the attending orthopaedic surgeon's finding at the time of arthroscopy that "Interoperative anterior drawer testing showed relatively good function of the residual ACL" (which had become attached to the PCL). We find this substantiates other evidence on this file that the claimant seemed to be able to manage and continue notwithstanding relatively significant findings and we note that the evidence reveals that this claimant appears to have a history of findings and continuing symptomatology yet attempts to keep going with the aid of tensor bandaging for support of his knee.

We find that the evidence reveals a continuity of knee symptoms notwithstanding that the claimant attempted to work through these complaints and we note the proximity of the ACL problems to the 1993 and 1996 incidents at work. We find that there was a progression of symptoms following the 1996 work related event. We have also considered the mechanism of injury where the claimant's right leg was caught and twisted as he attempted to hurriedly exit a machine in a dangerous situation and find that a progressive ACL tear knee injury as well as the other injuries sustained would be consistent with such an event. In this regard we note the Employer's Report of Injury dated November 28, 1996 which indicates that the claimant's state of panic because of the fire, when he jumped out of the burning machine, contributed to the accident. We also find that the ACL pathology progressed from a partial to a complete tear as the operative report of the arthroscopy indicates " only a small amount of fibre was attached to the femoral insertion. Much of the remaining fibre was attached to the PCL."

Based on the evidence as outlined we accept and place weight on the evidence of the claimant's attending orthopaedic surgeon who performed the right knee arthroscopy on March 18, 1997 and subsequent ACL reconstruction on January 1, 1999. We note in a report dated April 6, 1998 that the attending orthopaedic surgeon indicates in part:

In summary, it was my feeling that the 1996 work injury most probably enhanced his ACL pathology
that was present in 1993."

We concur with the above as we find this evidence to be corroborated by other evidence on file, particularly the reports of the specialists involved at the time of the 1989 recreational injury, the diagnostic and procedural reports and the claimant's attending physician who has seen and examined the claimant since 1984 and with respect to all three right knee injuries, both recreational and compensable. We find that the evidence supports a finding, on a balance of probabilities, that the ACL problems were related to both the 1993 and 1996 compensable events and not the non work-related event in 1989. We find that the 1996 event enhanced the prior ACL problem noted on MRI following the work related accident in 1993. Therefore, the claimant is entitled to benefits and services including medical aid for his health care treatment associated with the ACL injury. The employer's appeal on both issues is denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of August, 1999

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