The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 4, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits and services beyond December 1, 1997; and

Whether or not responsibility can be accepted for the surgical procedure carried out on April 15, 1999.

Decision

The claimant is entitled to payment of wage loss benefits and services beyond December 1, 1997; and

Responsibility can be accepted for the surgical procedure carried out on April 15, 1999.

Background

On March 3, 1997, the claimant sustained a compensable right knee injury during the course of his employment as a food clerk. The initial diagnosis was reported as a possible meniscus tear. On November 25, 1997, the Workers Compensation Board (WCB) determined that wage loss benefits would be paid to December 1, 1997, as it was considered that the claimant had recovered from the compensable injury and his inability to return to work was due solely to a pre-existing patellofemoral syndrome. The following is a brief summary of the medical documentation which led to this decision:

• on April 9, 1997, an orthopaedic specialist suspected that the claimant aggravated his patellofemoral syndrome from kneeling at work.

• on April 22, 1997, the attending physician stated that the claimant’s knee was not improving with light duties and a referral was made to a sports medicine specialist for a second opinion.

• the sports medicine specialist’s impression, in a report, dated April 30, 1997, was that the claimant had a meniscal tear with 2° patellofemoral pain. The specialist suggested an orthopaedic referral for scoping and for the claimant to continue with physiotherapy to the patellofemoral area.

• in a report, dated May 14, 1997, the orthopaedic specialist reported that the claimant was fairly obese. No effusion was noted and the claimant’s gait appeared normal. There was tenderness along the medial retinaculum, lateral retinaculum, tenderness also over both joint lines, tenderness over the patellar tendon and tender to patellar grind test. Ligament testing revealed stable ligaments. X-rays appeared normal. The specialist thought that the claimant had right patellofemoral pain. The claimant was encouraged to lose weight, use ice, try physiotherapy and to continue with quadriceps exercise. The claimant was also given a prescription for a knee brace. The specialist commented that the claimant was going to try light duties for another month and then try going back to regular duties with his brace. If this nonsurgical treatment failed, the specialist recommended a right knee arthroscopy and lateral release.

• on September 17, 1997, the claimant underwent an MRI of the right knee. This revealed no abnormality.

• on October 10, 1997, the attending physician indicated that the claimant still had pain in the right knee with stair climbing and pain was also noted in the left knee. The physician indicated that the claimant was awaiting a lateral release and had lost 24 pounds.

• the claimant was assessed by a WCB orthopaedic consultant on October 16, 1997. As part of the assessment, the consultant reviewed the MRI x-ray films. He noted the radiologist reported these as being negative and that the patellofemoral joint was unremarkable. The consultant stated that after his review he suspected a degenerative sub-chondral cyst towards the lower pole of the patella. Following examination of the claimant, the consultant thought there was some degree of patellar chondromalacia. He stated that the claimant gave a history of prior knee discomfort when kneeling at work. The consultant felt that the snapping of the quadriceps expansion over the lateral femoral condyle was not pathological. He thought that the chondromalacia was at least partly due to the claimant’s obesity. He did not feel that it could be specifically caused by one episode of kneeling. The consultant concluded that there was no need for surgical treatment and doubted that a lateral release or a chondroplasty would be of any significant value.

• in a report, dated November 18, 1997, the orthopaedic specialist reiterated his examination findings from previous visits and confirmed that the diagnosis was right knee patellofemoral pain or patellar chondromalacia. The specialist commented that this condition was the sole factor preventing the claimant’s returning to his pre-accident duties based on the information given to him from the claimant and the clinical examination. The specialist recommended a lateral release and an arthroscopy and noted that the results of such treatment were not highly successful.

On January 21, 1998, a union representative submitted to the WCB two additional medical reports from the attending physician who was of the view that the claimant’s pre-existing condition had been enhanced by his work related injury to the point that surgery was required. Based on this opinion, the union representative requested the WCB to continue its responsibility for the claim in the form of wage loss benefits and medical services.

Prior to considering the case, Review Office requested an opinion from a WCB orthopaedic consultant on February 2, 1998. In response to questions posed by Review Office, the consultant stated that the claimant’s patellofemoral pain was a symptom and not a diagnosis. The consultant was of the view that the diagnosis of chondromalacia patella could not be made until it was observed with the naked eye or through an arthroscope. Until the claimant had an arthroscope, it was his view there was no confirmed diagnosis. A lateral release or a chondroplasty would only be indicated if significant chondromalacia was found and the external orthopaedic consultant had already commented on the short comings of this type of surgery. The consultant also stated that the single incident of March 3, 1997, would not have caused the chondromalacia patella although this incident could have aggravated a pre-existing problem.

On February 6, 1998, Review Office confirmed that no responsibility would be accepted for the worker’s claim beyond December 1, 1997. Review Office indicated that all physicians were in agreement that the single kneeling episode at work on March 3, 1997, did not cause the worker to have chondromalacia patella, if in fact this was the correct diagnosis. Review Office agreed that the March 3, 1997, kneeling episode did aggravate a pre-existing condition in the worker’s knee for a temporary period of time. The main issue, according to Review Office, was whether or not the worker’s continued claim of loss of earning capacity was due to the compensable incident or to the non-compensable pre-existing condition.

Review Office further indicated that the attending physician had initially stated on November 30, 1997, that the single episode of kneeing caused “an exacerbation” of the pre-existing patellofemoral syndrome. In his second report, dated December 14, 1997, the physician offered the opinion that the work related injury permanently enhanced the pre-existing patellofemoral condition. In neither report, did the physician provide any particular reasons for his conclusions.

Review Office did not believe that the single kneeling incident of March 3, 1997, continued to be responsible for the workers claim of disability resulting in a loss of earning capacity. The accident of March 3, 1997, no longer played a material role in the claimant’s claimed disability beyond December 1, 1997. Review Office did not endorse the proposed surgery recommended by the orthopaedic surgeon as a WCB’s responsibility, but was prepared to review the worker’s case, if the surgery was carried out and a report was submitted to the WCB.

On April 15, 1999, the claimant underwent arthroscopic surgery to his right knee. The pre-operative diagnosis was patellar malacia. The operative report indicated evidence of grade 3 chondromalacia in the medial facet. There was no evidence of any loose bodies. The medial/lateral compartments were inspected and the articular cartilaginous tissues were normal. The anterior cruciate was intact. The accompanying report from the attending surgeon indicated that there was no doubt in his mind the claimant’s daily work related activities laid the ground work for the eventual episode of acute knee dysfunction and subsequent disability and surgery. This sequence of events was not at all unusual in cases of symptomatic chondromalacia. In summary, the surgeon was of the opinion that the patellofemoral malacia was probably initiated and certainly enhanced by the work related activities in the past and on the date in question.

On August 16, 1999, Review Office asked the WCB’s orthopaedic consultant to review the operative report and confirm a diagnosis. The consultant replied that the operative report confirmed a grade 3 chondromalacia on the medial aspect of the patella. When asked whether the March 3, 1997, compensable accident caused the claimant’s problem the consultant answered in the negative. The consultant also was of the opinion that the incident at work caused the knee to become symptomatic.

In a further decision, dated August 20, 1999, Review Office confirmed that the claimant was not entitled to benefits beyond December 1, 1997 and that no responsibility could be accepted for the surgical procedure carried out on April 15, 1999. Review Office was of the opinion that the majority of the claimant’s problems involved a pre-existing condition known as patellofemoral chondromalacia. It accepted the WCB’s orthopaedic consultant’s opinion that the condition did not develop as a result of the claimant’s employment or the single episode at work on March 3, 1997. Review Office was of the view that there was no evidence to support the treating orthopaedic surgeon’s opinion that there had been a demonstration of enhancement of this pre-existing condition through either the single incident or the claimant’s general work activities.

The union representative subsequently appealed Review Office’s decision and an oral hearing was arranged.

Reasons

An orthopaedic consultant to the WCB was asked to comment on what was the most probable diagnosis and etiology of the claimant's right knee condition. In a memorandum, dated February 2nd, 1998, he replied:

"The claimant has patello-femoral pain which is a symptom and not a diagnosis. A diagnosis of chondromalacia patella (which is only one cause of anterior knee pain) cannot be made until it is observed with the naked eye or through an arthroscope. Until arthroscopy is done we do not have a diagnosis which is reasonable. A lateral release and or abrasion chondroplasty is only indicated if significant chondromalacia is found and Dr. [treating orthopaedic surgeon] has already outlined the shortcomings of this type of surgery. The one incident of Mar 3/97 would not cause chondromalacia patella but could aggravate a pre-existing problem."

On April 15th, 1999, the claimant underwent arthroscopic surgery, which according to the operative report revealed evidence of grade III chondromalacia in the medial aspect of his patella. The WCB's orthopaedic consultant did not consider that the claimant's work activities or the March 3rd, 1997, episode caused this problem. However, he did concede that "the incident at work caused the knee to become symptomatic."

We find, based on the evidence and on a balance of probabilities that the claimant suffered an aggravation of his pre-existing condition (patellofemoral chondromalacia). We note that in order to determine the eventual diagnosis it was necessary to perform arthroscopy. It should be pointed out that all modalities of conservative treatment with respect to this aggravation had not been at all successful. As pointed out by one of the treating orthopaedic specialists, surgery was the last resort in the treatment of the aggravation to the claimant's grade III chondromalacia. According to the claimant's oral evidence, the surgery was a success and it restored him to his pre-accident state.

In arriving at our decision, we also attached considerable weight to the opinion expressed by the orthopaedic surgeon who performed the surgery. "There is no doubt in my mind that Mr. [the claimant's] daily work related activities (stocking shelves for over twenty years) laid the groundwork for the eventual episode of acute knee dysfunction and subsequent disability and surgery. This sequence of events is not at all unusual in cases of symptomatic chondromalacia. From all of the preceding you can presume that I believe his patellofemoral malacia was probably initiated - certainly enhanced by work related activities (in the past and on the date in question)".

Inasmuch as we have concluded the surgery should be accepted, it necessarily follows that the claimant is also entitled to payment of wage loss benefits and services beyond December 1, 1997. It was through no fault of the claimant that the resulting surgery was excessively delayed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of November, 1999