The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This case was the subject of an Appeal Panel review was held on November 17, 1998, following receipt of an appeal from a worker advisor, acting on behalf of the claimant.

Issue

Whether the worker is entitled to payment of wage loss benefits beyond July 29, 1996, and

Whether the worker's pre-existing knee condition has been enhanced as a result of the compensable injury.

Decision

That the worker is entitled to payment of wage loss benefits from July 29, 1996, to February 17, 1997; and

That the worker's pre-existing knee condition has been enhanced as a result of the compensable injury.

Background

On February 22, 1996, the claimant slipped and fell while walking on a slushy pedestrian ramp. She reported injuries to her lower back, right knee and calf. The next day the attending physician diagnosed a lumbosacral strain and contusion to the right leg. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits commenced February 23, 1996.

X-rays were taken of the lumbar spine and right knee on February 28, 1996. Degenerative disc disease was noted at the L4-5 levels of the lumbar spine as well as involving the lower apophyseal joints. Degenerative changes were also noted in the right knee involving the medial compartment.

On March 19, 1996, the claimant spoke with a WCB adjudicator indicating that she had been seen by an orthopaedic surgeon on March 6, 1996, and was told that she had pulled ligaments. The claimant stated that she had seen the same orthopaedic surgeon in November 1995 for prior right knee problems and that she was awaiting a right knee arthroscope.

In a report dated April 18, 1996, the family physician outlined the claimant's past medical history with regard to her back difficulties dating back to 1993 and to her right knee difficulties dating back to 1995. According to the physician, the February 22, 1996, injury to the right knee was superimposed on pre-existent pain commencing on October 16, 1995. The physician thought that the claimant likely had a knee strain with possible early osteoarthritis and a meniscal injury to her right knee.

On May 10 1996, a WCB medical advisor authorized the orthopaedic surgeon to proceed with the right knee arthroscopy as being a WCB responsibility. Surgery was later performed on May 16, 1996.

In a follow-up report dated May 22, 1996, the orthopaedic surgeon commented that the arthroscopy showed significant medial compartment osteoarthritis plus medial meniscus tear. He stated the osteoarthritis was obviously long-standing and pre-existing and that the meniscus tear was probably as a result of her compensable accident as it looked "fresher".

On May 30, 1996, a WCB medical advisor reviewed all medical documentation and stated the following:

• on a balance of probabilities, the compensable injury aggravated/enhanced the pre-existing degenerative disease of the meniscus resulting in surgery. The other operative findings confirmed significant pre-existing arthritic disease.
• the claimant would be off work up to 6 weeks as a result of the surgery, after which she should be fit for work.

On June 26, 1996, the orthopaedic surgeon reported that the claimant was making a slow but steady progress, however, back pain had been slowing her down to the extent that it was interfering with her knee therapy. The specialist indicated that as far as the knee was concerned the claimant would be ready to return to work but her back would not allow her to do so.

Subsequent medical information was received from an attending physician dated July 3, 1996. The physician commented the claimant had pain in the low back and right knee.

The case was again reviewed by a WCB medical advisor in July 1996. The medical advisor was of the opinion that the claimant's back symptoms, "well relate to degenerative disease and NOT to the CI (compensable injury)."

On July 22, 1996, Claims Services wrote to the claimant stating that compensation benefits would be paid up to July 29, 1996. In its opinion, the claimant had essentially recovered from the effects of her compensable injury. On July 25, 1996, the claimant appealed this decision to the Review Office.

The attending physician submitted a letter and a progress report to the WCB dated July 24, 1996. The physician reported that the claimant continued to complain of back pain and that her right knee was improving. The physician noted the claimant's range of movement was reasonable and reflexes normal.

In a decision dated August 16, 1996, the Review Office confirmed the claimant was not entitled to wage loss benefits beyond July 29, 1996. This decision was based on certain comments expressed by the attending physician that the claimant's range of motion was reasonable and that her reflexes were normal.

On October 10, 1997, a worker advisor assisting the claimant, asked the Review Office to reconsider its decision of August 16, 1996. The worker advisor contended that the claimant's pre-existing osteoarthritis had been enhanced as a result of the compensable accident and that the claimant had not recovered from the full effects of her compensable accident. A September 8, 1997, medical report was submitted in support of her contention.

On November 28, 1997, the Review Office determined that the medical evidence provided, did not show the worker's knee condition had been enhanced as a result of the compensable injury. The Review Office was further of the opinion that the symptoms experienced by the claimant in her knee and back were the result of her pre-existing condition which had not been enhanced or caused by the compensable accident. The claimant was therefore considered to have recovered from the effects of the compensable accident according to Review Office.

Subsequent file documentation consisted of additional medical reports which were obtained by a worker advisor assisting the claimant. These included reports dated May 4, 1998, and May 5, 1998, from two orthopaedic surgeons. On October 8, 1998, the worker advisor appealed the Review Office's decision and a non-oral file review was conducted.

Reasons

X-rays of the claimant's lumbar spine and right knee, taken shortly following the compensable injury, revealed degenerative disc disease of the lumbar spine together with degenerative changes in the right knee particularly involving the medial compartment. We are satisfied, based on the weight of evidence, that the claimant had a long-standing pre-existing osteoarthritic condition in both her lumbar spine and right knee at the time of her accident. According to a report received from the claimant's consulting orthopedic specialist, dated May 4, 1998, "... the work-related injury caused a prolonged aggravation of the pre-existing cervical and lumbar degenerative disc disease." We prefer to accept this evidence, as well as, his further comment that, "To date there is not (sic) x-ray evidence or possible clinical evidence to state that her condition has been enhanced."

The claimant was examined by her treating orthopedic specialist on February 17, 1997, at which time he determined that she had basically recovered from the effects of her work place injury of February 22, 1996. We agree, on a balance of probabilities, with this finding. Accordingly, the claimant would be entitled to payment of wage loss benefits from July 29, 1996, up to and including February 17, 1997.

With respect to the second issue, the weight of evidence clearly suggests that the claimant's pre-existing knee condition had been enhanced as a result of the compensable injury. In this regard we attached considerable weight to the following body of evidence.

May 30, 1996, WCB medical advisor's memo:

"On balance of probability the CI aggravated / enhanced the pre existing degenerative disease of the meniscus resulting in a tear requiring surgery. The other operative findings confirm significant pre-existing arthritic disease."

May 5, 1998, letter from the orthopedic surgeon to the claimant's worker advisor:

"To again recap, osteoarthritis was present in the knee prior to the accident. The fall was significant and traumatic enough to tear her meniscus and this in itself can lead to articular cartilage damage. To sort that out from pre- existing damage is impossible on clinical grounds. However, the loss of meniscal tissue will certainly accelerate the degenerative arthritic changes in this woman's knee."

We further note the evidence also confirms that the claimant's knee problem had resolved by June 26, 1996. The orthopedic surgeon reported on this same date that, "As far as the knee is concerned she would be ready to return to work now but the back unfortunately will not allow her."

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 6th day of January, 1999