The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 29, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 29, 1999 and November 9, 1999.

Issue

Whether or not responsibility should be accepted for the claimant's bilateral knee complaints, including surgery and time loss from work as being related to the compensable injury of March 4, 1997.

Decision

That responsibility should not be accepted for the claimant's bilateral knee complaints, including surgery and time loss from work as being related to the compensable injury of March 4, 1997.

Background

During the course of his employment as an electrician on March 4, 1997, the claimant alleged he was descending a roof hatch onto a ladder when he slipped on ice banging both knees on the metal frame of the roof hatch. On the same day the attending physician indicated pain in the left knee (a later report from the same physician dated October 29, 1997, indicated that it was the right knee and not the left knee that was causing the claimant's pain after the work mishap). The ligamentous exam was normal and examination of the meniscus was incomplete due to an effusion. The claimant was treated with medication and continued working.

On May 27, 1997, the claimant was assessed by an orthopaedic specialist at the request of the attending physician. The specialist reported that the claimant had been having problems with his left knee joint for at least two years. The initial onset was after playing a game of baseball when he developed pain in the left knee followed by swelling. The specialist further noted that the claimant sustained a direct injury over the same knee joint while climbing a ladder. The claimant told the specialist that his knee never really went out of place at the time of accident.

The orthopaedic specialist diagnosed the claimant's condition as a possible tear of the medial meniscus of the left knee. It was recommended that the claimant undergo an arthroscopic evaluation of the left knee as the history was somewhat suggestive of recurrent problems with the left knee joint. The claimant was then booked for surgery on September 5th. There was no reference in this report to any problems with the right knee.

On September 12, 1997, the claimant underwent "arthroscopy and arthroscopic partial medial meniscectomy with debridement of the medial femoral condyle right knee". The post-operative diagnosis was "degenerative tear posterior horn medial meniscus right knee."

On October 16, 1997, a signed statement was obtained from the claimant. Briefly, the claimant confirmed that his left knee had bothered him from playing baseball with his wife over two years ago but that nothing ever came of it. With regard to the right knee surgery, the claimant indicated the following:

"After the injury, on March 4th, I didn't take any time off work. I went to see Dr. [name] on March 4th. He gave me anti-inflammatories. The left knee really hurt, but it was the right knee that was swollen. The pills didn't really help. I went back to see Dr. [name] about two weeks later. He decided to send me to a specialist. I saw Dr. [specialist's name], in late May. Because I couldn't bend my left leg, he wanted to operate on my left leg first. My right knee was swollen all summer. He scheduled surgery for September 5th but it was postponed until the 12th. Because it was my right that was still swollen, I asked him whether he could do the right knee first. He agreed and repaired the cartilage and scraped the area clean."

On October 20, 1997, a Workers Compensation Board (WCB) Medical Advisor reviewed the case at the request of primary adjudication. The medical advisor reviewed the operative report and indicated there were no intra operative findings attributable to the effects of the compensable injury. The medical advisor commented that the findings indicated pre-existing disease in the knee joint. On October 22, 1997, primary adjudication informed the claimant that it was unable to establish a cause-effect relationship between the March 4, 1997, workplace injury and his current right knee condition. The claimant was advised that no responsibility would be accepted for the right knee surgery or for any time loss from work as a result.

On October 29, 1997, the attending physician sent in a clarification to primary adjudication about the initial onset of right knee difficulties versus left knee difficulties experienced by the claimant. The attending physician stated, in part, the following:

"After reviewing my notes, I suspect that some of the confusion regarding the claim was due to an error in my 'Doctor's First Report' submitted to the WCB. Since the claim was submitted after the fact (dated September 2, 1997), I referred to Dr. [name] report when filling out the report. Upon closer examination of my own notes, enclosed for your reference, it was his right knee that was noted to cause him pain after his work mishap.

Your letter of October 22, 1997 refers to left knee problems. He had twisted and struck his right knee when he had initially hurt himself at work. He also had a prior left knee problem which relates to a baseball injury. Since his left knee was also giving him problems, there were indications that both knees may require scoping."

At the time of his surgery, the right knee was more problematic and was scoped. The operative report is enclosed. It was his right knee that was hurt at work."

On November 5, 1997, an adjudication supervisor confirmed that the non-acceptance for the surgical procedure was that no intra-operative findings could be specifically contributed to the affects of the work place injury. The post-operative diagnosis for the right knee complaints was a degenerative tear of the posterior horn of the medial meniscus and the post-operative diagnosis pointed to the cause of the problems being a pre-existing disease in the right knee joint.

A follow up report was received from the attending orthopaedic specialist dated December 5, 1997. The specialist contended that even though the degenerative tear of the right knee was related to pre-existing degenerative damage to the meniscus, this tear could have occurred as a result of the compensable accident.

At the request of a union representative the attending orthopaedic specialist provided a report dated March 16, 1998. On May 4, 1998, this report along with all file documentation was reviewed by a WCB medical advisor at the request of primary adjudication. The medical advisor's comments were as follows:

"[The attending physician] now indicates it was the R knee.

[The attending orthopaedic specialist] consultation report still described the L knee findings and makes no mention of the R knee until the surgical report. On the basis of medical information on file there is no documented evidence to indicate a reason for R knee surgery or that same was resultant from C.I.

The degenerative tear could have occurred at any time and may or may not relate to C.I."

Based on the above, primary adjudication confirmed on May 14, 1998, that a cause-effect relationship could not be established between the workplace accident and the claimant's current knee condition. On June 23, 1998, the union representative appealed the decision to the Review Office. The employer in turn presented Review Office with its appeal submission dated September 15, 1998, which included a report from an independent orthopaedic specialist dated August 31, 1998.

On October 23, 1998, the Review Office determined that the claim was acceptable and that no responsibility would be assumed for the right knee surgery or for any related time loss. When rendering its decision, Review Office quoted the following comments expressed by the independent orthopaedic consultant on August 31, 1998:

"...degenerative changes affecting the articular cartilage (smooth lining) of the medial femoral and tibial condyles developed slowly over a period of years so would be present before the accident of March 4, 1987. At the same time, degenerative changes of the medial meniscus would develop and could tear spontaneously (i.e., without a definitive twisting injury that the patient remembers)." ;

"...in my opinion, on the balance of probabilities, the mechanism of the injury, this is, a direct blow to the front of both knees, would not tear a degenerative medial meniscus, as there was no twisting of the knees described, weight was not borne on the legs, and no recorded effusion in the available file".

Review Office agreed with the orthopaedic consultant to the employer. It also noted that the difficulty expressed by the claimant was of the left knee and that the right knee was not bothering him immediately following the accident. It was the left knee that the orthopaedic specialist examined in April 1997. There was no pre-surgical examination of the right knee to indicate any difficulty related to the original compensable injury. Review Office concluded there was no substantive evidence that, on a balance of probability, the mechanism of injury was sufficient to tear the degenerative medial meniscus, as there was no twisting of the knees involved. "The claimant struck the front of the knees when he slipped on the steel ladder, and this would not have caused the tearing."

Subsequent file documentation showed that the union representative appealed the Review Office's decision to the Appeal Commission and that additional issues were brought forward concerning the case. Specifically, the union representative asked that consideration be given toward the left knee including treatment and time loss and that a Medical Review Panel (MRP) be convened. On December 14, 1998, the Appeal Commission's Appeal Administrator referred the case back to the Review Office for further handling.

Before considering the appeal, Review Office referred the case to primary adjudication to consider the outstanding issues. Both issues were denied by primary adjudication and the case was referred back to Review Office to consider the new issues. Review Office reviewed the case on June 18, 1999, and considered a submission from the union representative dated May 3, 1999, and from the employer dated June 1, 1999.

On June 18, 1999, Review Office determined that no responsibility could be accepted for the worker's left knee complaints, any proposed surgery and any resulting time loss from work as these were not considered related to the March 4, 1997, accident. It also determined that a MRP would not be convened. Review Office stated that the mechanics of the present compensable accident led it to the conclusion that the worker sustained a direct blow to both knees when he slipped on ice while descending a ladder on March 4, 1997. There was no available evidence to show that the worker had ongoing difficulties because of the blow to his left knee and in fact the orthopaedist had not yet provided a definitive diagnosis of the left knee condition. Given the mechanics of the accident, Review Office did not believe the worker would have ongong difficulties from a direct blow to the left knee. With regard to a MRP, Review Office stated there was no recorded difference of medical opinion regarding the adjudicative decisions that have been made on the worker's file. In summary, the elements of Section 67(1) and Section 67(4) had not been made according to Review Office.

On July 21, 1999, the union representative appealed the Review Office's decision and an Appeal Panel hearing was held on September 29, 1999. The issue being appealed was whether or not responsibility should be accepted for the claimant's bilateral knee complaints including surgery and time loss from work as being related to the compensable injury of March 4, 1997.

Subsequent to the hearing, the Appeal Panel received a submission from the union representative dated September 30, 1999, regarding evidence that was provided at the hearing by the employer's representative. Consequently, the Appeal Panel provided the union representative with the opportunity to provide written response with respect to the evidence and the employer's representative was given the same opportunity. The Appeal Panel later received and considered submissions from the union representative dated October 14, 1999 and from the employer's representative dated October 21, 1999. The Panel considered a final response from the union representative dated November 3, 1999. On November 9, 1999, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether or not responsibility should be accepted for the claimant's bilateral knee complaints, including surgery and time loss from work as being related to the compensable accident of March 4, 1994.

The claimant alleges he suffered an accident at work which involved both knees when he slipped on some ice and hit both knees on the metal frame of a roof hatch. The file reveals that, at different times, the claimant suffered various symptoms with respect to both the left and right knees and the claimant's position is that all the consequences to both knees should be accepted as the responsibility of WCB as related to his accident and he should be compensated accordingly.

The processing of this claim has not been straight forward because the WCB file was not opened until approximately six months after the accident, and the timing of receipt of appropriate documentation was therefore delayed or done in hindsight. We also note from the evidence on file and given at the hearing that the entire claim contains numerous inconsistencies which we find undermine the claim.

Dealing with the date of the accident, we note throughout the file, based on the information as it was submitted, that the accident date was accepted as March 4, 1997. The first medical report from the attending physician, dated September 2, 1997, was received by the WCB September 17, 1999 with the date of injury recorded as March 4, 1997.

Similarly, the Employer's Report of Injury was dated September 12, 1997, received by the WCB on October 7, 1997 and recorded an injury date of March 4, 1997. The Worker's Report of Injury was signed August 28, 1997, received by the WCB on September 17, 1997 and also recorded an injury date of March 4, 1997.

We note, however, at the hearing, the employer introduced evidence which showed that the claimant had filled out and signed two Notice of Injury documents (Green Cards) on two different dates:

“ banged his right knee cap into a Ladder while climbing to roof top.”

• this form also bore a initialed notation dated August 27, 1997 that this card should be cancelled and replaced with a new card.

• a second Notice of Injury (Green card) card indicates an accident date of March 4, 1999 and is signed and dated by the claimant, March 4, 1997 and describes a different mechanism of accident indicating that the claimant struck both knees;

• the claimant’s evidence was that in late August, 1997, when he spoke to the employer about initiating a WCB claim, he was told that the original Notice of Injury (Green Card) was lost and was asked by his supervisor to fill in a new card. He was then unsure of the original date of the accident and called his attending physician who advised him he had been seen on March 4, 1997. The claimant further testified that he then filled out the new card on or about August 27, 1997 and signed and dated it for March 4, 1994 and attributed the accident to that date.

With respect to the points outlined above: we note that the Worker’s Report of Injury was signed by the claimant on August 28, 1997 and that this date closely coincides with the dated notation of August 27, 1997 on the Notice of Injury (Green Card) signed February 27, 1997 which reports a particular mechanism of injury involving only the right knee.

At the hearing, the claimant acknowledged that there was one incident during that period, and that the February 27, 1997 Notice of Injury (Green Card) was the one he had originally prepared and submitted to the employer. At the hearing, the claimant also indicated that he had seen his attending physician a few days after the accident. As the first visit to the attending physician is recorded as March 4, 1997 this gives support to a finding that the accident did not actually occur on March 4, 1997 as has been assumed throughout this file. Accordingly we find that the evidence reveals, on a balance of probabilities, that the accident occurred on February 27, 1997.

At issue in this appeal are the difficulties suffered by the claimant with respect to his right and left knees.

Dealing firstly with the left knee, we note that subsequent to the injury the claimant first sought treatment from his attending physician on March 4, 1997. File documentation suggests that there was initially some confusion over which knee the attending physician was examining and treating.

We note that the claimant’s attending physician submitted a clarification letter to the WCB dated October 29, 1997 to attempt to establish which knee was involved and at what time. With the clarification letter the attending physician included a copy of his actual chart notes recorded at the time of his actual examination of the claimant on March 4, 1997. We note the following from the respective reports:

From the attending physician’s clarification letter to WCB dated October 29, 1997, he states in part:

“ Your letter of October 22, 1997 refers to left knee problems. He had twisted and struck his right knee when he had initially hurt himself at work. He also had a prior left knee problem which relates to a baseball injury. Since his left knee was also giving him problems, there were indications that both knees may require scoping.”

From the attending physician’s actual chart entries recorded contemporaneously with his examination on March 4, 1997 we note that the attending physician only recorded information about the claimant’s right knee and indicated the following:

• struck knee while climbing ladder
• ache in right knee
• able to work
• mild ache
• ligaments normal

The claimant was seen and examined by a consulting orthopaedic surgeon. In his report dated May 27, 1997, the consultant indicates that the claimant had been having problems with his left knee for approximately two years with initial onset following a baseball game. He further notes that “ the history is somewhat suggestive of recurrent problems with the knee joint.”

We place weight on the evidence as outlined as it is contemporaneous with the event and has consistency and therefore reliability.

We therefore find that the most proximate evidence demonstrates that no left knee problems were initially reported, in the Notice of Injury (Green Card) dated February 27, 1997 to the employer or to the attending physician at the first visit following the accident. We further note that both the attending physician and the orthopaedic consultant note a prior injury as the onset of the claimant’s left knee symptoms.

Based on the above, we conclude that there was no accident sustained at work involving the left knee and therefore the claimant is not entitled to benefits for the consequences of any left knee problems.

With respect to the right knee, we find that the evidence supports, on a balance of probabilities, a finding that there was an accident involving the right knee sustained at work. However, as previously outlined, based on the February 27, 1997 Notice of Injury (Green Card), and the claimant’s own testimony, that he did not see his attending physician until a few days after the accident, we find the date of accident, on a balance of probabilities, to be February 27, 1997.

The claimant was referred to an orthopaedic consultant by his attending physician. In a report dated May 27, 1997 we note the consulting orthopaedic surgeon deals with, and examines, only the left knee and makes no reference at all to right knee symptoms some three months after the accident. It is apparent from his report that the clear focus throughout the examination involves the left knee.

The claimant was scheduled for surgery on his left knee, and we note that no pre-authorization for the surgical procedure on either the right or the left knee was sought from the WCB. At the time of surgery the orthopaedic surgeon operated on the right knee and not the left as planned as the claimant indicated the right knee was giving him the most problems.

The operative report of the right knee arthroscopy revealed a degenerative tear of the posterior horn and body of the medial meniscus and some irregularity of the medial, tibial and femoral condyles as well as minimal changes at the patellar articular surface.

We have reviewed all the evidence on file and received during the hearing process. We find that the mechanism of accident to the right knee did not appear to involve any significant twisting force and would not, on a balance of probabilities, lead to the findings as outlined in the operative report.

Although the orthopaedic surgeon has suggested that even though the damage in the knee was degenerative, the accident could have played a role, we place greater weight on the medical evidence from the attending physician in his clinical notes of March 4, 1997 which indicates that the claimant’s symptoms and findings in his right knee immediately following the compensable event were relatively minor.

We also note that it was not until September 1997 that the claimant sought further medical treatment for his right knee which brings into question the relationship of the operative findings to the compensable event involving the right knee approximately six months earlier.

We find the weight of the evidence, on a balance of probabilities, supports a finding that there was no significant physical injury to the right knee at the time of the accident as supported by the attending physician’s office notes of March 4, 1997 and the accepted mechanism of accident from the most proximate evidence involving the right knee. We therefore find that the subsequent surgery to the right knee cannot be related to the compensable event. The claimant’s appeal on both issues is therefore 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 15th day of November, 1999