The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 16, 1999, at the request of legal counsel, acting on behalf of the claimant. The Appeal Panel discussed this appeal on December 16, 1999.

Issue

Whether or not the symptoms experienced by the claimant in October 1998 are causally related to the compensable injury of September 7, 1997.

Decision

The symptoms experienced by the claimant in October 1998 are related to the compensable injury of September 7, 1997.

Background

On September 7, 1997, the claimant was attempting to gain access to a burning building when he kicked both the back and front doors several times with his right leg. As a result, the claimant sustained a sore right knee and smoke inhalation. On September 8, 1997 the attending physician diagnosed questionable loose bodies in the right knee. The claimant did not lose time from work as a result of the accident but was referred to an orthopaedic consultant.

The orthopaedic consultant, on September 26, 1997, indicated that the claimant was likely suffering from a tear of the medial meniscus of his knee. Suggestions were made for an arthroscopy to be carried out. On October 20, 1997, surgery was performed to the right knee and the post-operative diagnosis was a "Grade III & IV chondromalacia of the inferior pole of the patella and a chondral fissure involving the lateral femoral condyle."

On October 22, 1997, a sports medicine specialist responded to questions posed by a Workers Compensation Board (WCB) adjudicator. In particular, the specialist noted that the claimant was seen prior to the September 7, 1997, compensable accident. On August 19, 1997, the claimant complained about his right knee with increased physical activity such as running. He felt knee pain posteriorly with flexion. There was tenderness noted at the medial joint line with no swelling. The claimant was prescribed athletic therapy with good results. The specialist concluded that the claimant's symptoms appeared to have resolved prior to his work related accident in September 1997.

A WCB medical advisor reviewed the case on November 3, 1997. The medical advisor stated that the claimant had findings suggestive of a possible meniscal injury although the mechanism of the compensable injury would not likely have caused it. Diagnostic arthroscopy would be one option to expedite diagnosis. The medical advisor stated, "However operative findings show extensive pre-existing disease with no evidence of injury directly related to CI".

On December 4, 1997, an occupational health physician examined the claimant and stated that the claimant was now fit for light duties. He was optimistic that the claimant could return to full duties after December 18, 1997. Wage loss benefits were paid to between October 22, 1997, to December 18, 1997, inclusive.

A personnel memo, dated October 21st, 1998, indicated the following:

"Please be advised that the captionally noted member has booked off Injured on Duty with a recurrence of his right knee injury effective 98 10 20, 1:00 p.m. after completing six hours. (He was working 2nd relief, 7:00 a.m. to 5:00 p.m.)"

On October 21, 1998, based on an examination of October 20, 1998, the attending physician reported that the claimant developed pain in his right knee following a light skate. The claimant was now limping and could not flex without pain.

In November 1998, a WCB adjudicator spoke with the claimant with respect to the October 1998, recurrence. The claimant indicated that he has had problems with his knee since the 1997 compensable injury. He had not been skating or playing any sports due to his knee problems. While walking the beat, his knee was aggravated and he would apply ice, which didn't help. He stated that he saw his doctor about this and received cortisone injections.

The case was discussed in February 1999, by a WCB medical advisor and a WCB adjudicator. The medical advisor was of the view that in the absence of a new injury to the knee, any difficulties experienced by the claimant would be related to chrondromalacia and not the compensable injury.

On February 1, 1999, primary adjudication wrote to the claimant. It was the opinion of primary adjudication that the claimant had essentially recovered from the effects of the September 7, 1997, work place injury and that any ongoing right knee difficulties were due to a pre-existing condition namely grade III and IV chondromalacia.

On July 5, 1999, a solicitor, acting on behalf of the claimant, presented argument that the recurrence of the injury experienced by the claimant in October 1998, was directly related to the incident of September 7, 1997. In support, legal counsel referred to a letter from the treating physician, dated March 12, 1999:

"Prior to the compensable injury Mr. [the claimant] was asymptomatic in his knee. He was able to perform his duties at work and was also able to engage in vigorous recreational activities without any trouble. Since the injury, he has had repeated problems with the knee.

It would seem then, that on a balance of probabilities, his ongoing knee problems are as a result of his compensable knee injury."

In a submission, dated August 6, 1999, an employer's representative was of the view that the adjudicative decision of February 1, 1999 should stand. The employer's representative referred to the comments expressed by the WCB medical advisor in his memo, dated November 3, 1997. It was suggested that the case be referred to a WCB orthopaedic consultant to determine whether, in his opinion, the ongoing knee problems were, on a balance of probabilities, related to the compensable incident of September 7, 1997.

Prior to considering the case, Review Office obtained an opinion from the WCB orthopaedic consultant, dated September 2, 1999. On September 3, 1999, Review Office determined that no further benefits were payable under the Act beyond December 15, 1997 or for the effects of the claimant's work related accident of September 7, 1997.

Briefly, Review Office stated that the claimant did not have a normal right knee and could expect further symptoms with skating, jogging, stair climbing and descending, or full squat positions. It was the opinion of Review Office that the non-compensable underlying condition, i.e. chondromalacia, can become aggravated by numerous activities. In this instance, one of the activities that aggravated the knee symptomatology was the kicking incident of September 7, 1997. This incident was viewed as one of many aggravating factors, which had a negative effect on the underlying condition of chondromalacia. Review Office was unable to conclude that the claimant's condition of October 1998, was related to the compensable accident of September 12, 1997.

On September 29, 1999, legal counsel acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was convened.

Reasons

We find, based on the evidence and on a balance of probabilities, that the claimant suffered in October 1998 an aggravation of a severely advanced pre-existing condition while performing his work duties. The evidence reveals that the claimant was forced to book off during the course of his shift. A personnel memo dated October 21st, 1998, confirms this fact:

"Please be advised that the captionally noted member has booked off Injured on Duty with a recurrence of his right knee injury effective 98 10 20, 1:00 p.m. after completing six hours. (He was working 2nd relief, 7:00 a.m. to 5:00 p.m.)"

The claimant testified at the hearing that in the month of October 1998 his job duties had changed wherein he was required to do a considerable amount of walking.

Also in arriving at our decision, we attached weight to the opinion expressed by the orthopaedic consultant to Review Office. In a memorandum dated September 2nd, 1999, he recorded the following comments:

"The condition of the knee noted at arthroscopy is obviously pre-existing but the changes are rather marked. Kicking a door in is just one more incident that can aggravate the knee as does jogging activity, stair climbing and descending, prolonged periods of squatting, etc. The door kicking incident is not causal for the condition. This age described chondromalacia could well be a precursor of the subsequent development of degenerative joint disease.

Chondromalacia characterized by periods of exacerbation and remission depending upon the patient's level of activity. He was not asymptomatic prior to the compensable injury and continues to be symptomatic following his surgery which consisted of an abrasion chondroplasty which can have variable results.

The claimant does not have a normal knee and can expect further symptoms with skating, jogging, stair climbing and descending, full squat positions, etc."

We find that the symptoms experienced by the claimant in October 1998 are related to his compensable injury of September 7th, 1997, in that he suffered a recurrence of an aggravation to a pre-existing condition. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 20th day of December, 1999