The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On April 14, 2005 the worker injured her right knee. She applied for and received workers compensation benefits. The worker underwent diagnostic tests and subsequently had an arthroscopy. Her wage loss benefits were terminated after the arthroscopy as the Workers Compensation Board (WCB) found that her injury was an aggravation of a pre-existing condition and that she had recovered from the aggravation. The worker appealed this decision.

An appeal panel hearing was held on June 5, 2006, at the request of an advocate, acting on behalf of the worker. The worker and her advocate provided evidence as did the accident employer's advocate. The panel discussed this appeal on June 5, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits beyond January 13, 2006.

Decision

That the worker is not entitled to wage loss benefits beyond January 13, 2006.

Background

The worker reported that she twisted her right knee on April 14, 2005 and felt a pop. By the end of the shift, her knee was tender, swollen and sore. The worker's last day of work was April 18, 2005 because of her knee difficulties. The worker indicated that she was told by her treating physician that she had an MCL ligament tear.

The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing April 19, 2005.

An x-ray report of the right knee dated April 18, 2005 indicated "there may be a joint effusion. No other finding is noted."

The worker underwent a MRI of her right knee on May 7, 2005 to rule out a medial meniscal tear. The "Impression" of the MRI report indicated:

1. Chondromalacia medial and lateral femoral condyles.

2. Possible partial midsubstance tear posterior cruciate ligament. [PCL]

Medical information showed that the worker attended physiotherapy treatments and continued to attend her family physician on an ongoing basis. As her knee condition did not improve, the worker was referred to an orthopaedic surgeon. On October 12, 2005, an arthroscopy of the right knee was carried out. The post-operative diagnosis was chondromalacia of the medial and lateral condyle.

In a follow-up report dated October 19, 2005, the orthopaedic surgeon stated that the worker had significant arthritic changes. He further stated, "She will need a radiological eye kept on this knee to see if she in fact grows some fibrocartilage into this defect or whether in fact the arthritis progresses."

On November 7, 2005, the WCB case manager advised the worker that the WCB was only accepting responsibility for her recovery time from surgery. The case manager noted that the operative report revealed a pre-existing degenerative condition and that there were no findings related to the April 14, 2005 work injury. Therefore, wage loss benefits would be extended to November 25, 2005 inclusive.

The orthopaedic surgeon noted in a report dated November 24, 2005, that the worker had been attending physiotherapy and her knee was getting stronger but with a tendency to buckle and give way. He stated that the worker "Does have a PCL tear in this knee, which I think is probably attributed to her accident, and does have some chondromalacic changes in the knee as well, which will have longterm implications and these are in fact most likely predating her injury."

On December 14, 2005, a WCB orthopaedic consultant reviewed the file information and stated the worker's knee symptoms are due to the chondromalacia of the medial and femoral condyles and possibly the lateral tibial plateau. The orthopaedic consultant did not think the PCL tear was consistent with the workplace injury.

In a letter dated December 15, 2005, the worker was advised that the WCB was reinstating her wage loss benefits from November 26, 2005 through to January 14, 2006 inclusive and final as it was determined that she had not yet completely recovered from her surgery. The case manager reiterated that the chondromalacia of the medial and femoral condyles pre-existed the April 14, 2005 compensable injury. With regard to the PCL tear, it was determined that this condition was not consistent with the mechanics of the work injury.

An advocate acting on the worker's behalf appealed the case manager's decision to Review Office. The advocate contended that the medical information on file supported that the worker had not returned to her pre-accident status and that she was entitled to further benefits.

On January 13, 2006, Review Office confirmed that the worker had recovered from the effects of her compensable injury. Review Office indicated that the April 14, 2005 injury was an aggravation of her pre-existing condition and that she had recovered from the aggravation. Review Office indicated there was no evidence of enhancement caused by the compensable injury. It was felt that the worker may be disabled from her regular employment activities and that this disability was solely related to non-compensable factors. On February 28, 2006, Review Office's decision was appealed by the worker's advocate and a hearing was arranged.

Reasons

Chairperson Scramstad and Commissioner Finkel:

Worker's Position

The worker attended the hearing with an advocate who made a presentation on behalf of the worker. The worker answered questions posed by her advocate and the panel.

The worker's advocate acknowledged that the worker had a pre-existing condition but noted that this condition was not symptomatic before the workplace injury. He noted that an MRI after the workplace injury suggested a partial PCL tear. He also noted that the treating orthopedic surgeon did not find a PCL tear while performing the arthroscopy, but afterwards opined that the worker has a PCL tear that is probably attributable to her workplace accident.

The worker's advocate suggested there is agreement among the medical practitioners that the worker has a permanent impairment and has permanent restrictions. The advocate submits this is the result of the workplace accident.

The worker's advocate submitted that the worker is entitled to wage loss benefits in accordance with WCB policy 44.10.20.10 which deals with pre-existing conditions. He submitted that the worker's workplace injury aggravated and likely enhanced the worker's pre-existing condition.

The worker described the accident and the symptoms arising from the accident. She advised that she hopes to return to work in a different position. She described her current activities and medical treatments.

The worker advised that she had no problems with her right knee before the workplace injury and was not aware that she had a degenerative condition. Regarding the existence of the PCL tear she stated that during the arthroscopy, the treating orthopedic surgeon pointed out where she had a tear and since the arthroscopy has consistently told her that she had a PCL tear.

Employer's Position

The employer was represented by an advocate who made a presentation on behalf of the employer. The employer's position is that the medical evidence shows that her continuing difficulties are due to the severe degenerative changes in her knee. The employer does not believe the pre-existing condition has been enhanced. The representative noted that although diagnostic tests suggested the presence of a PCL tear, a PCL tear was not found during the arthroscopy. The employer's advocate agreed with the opinion of a WCB orthopedic specialist who opined that the worker's symptoms were due to chondromalacia, and that the mechanism of injury was not consistent with a PCL tear.

Applicable Legislation and Policy

The worker is seeking wage loss benefits after January 13, 2006. Under The Workers Compensation Act (the Act) the worker is entitled to wage loss benefits if she has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

The worker has been diagnosed with a pre-existing condition. Much of the discussion at the hearing was whether the worker had an aggravation or enhancement of her pre-existing condition. WCB policy 44.10.20.10 deals with when the WCB will be responsible for the claims involving pre-existing conditions. It provides:

A. POLICY

1. WAGE LOSS ELIGIBILITY

(a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's (sic) Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker's inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

Analysis

The evidence clearly establishes that the worker has a pre-existing degenerative condition in her knee. The evidence also establishes that the worker injured her knee at work in a twisting motion on April 14, 2005. The issue before the panel is whether the worker's loss of earning capacity after January 13, 2006 is related to the April 14, 2005 injury.

The majority notes that in a report dated August 17, 2005 prior to the arthroscopy, the worker's orthopaedic surgeon made the following comments about the worker's knee: "If all we see were the chondromalacic changes on the condyles, this would pre-date her injury. It would make her long-term employment in a job where she had to be on her feet for long periods to time difficult or impossible."

The worker underwent an arthroscopy on October 15, 2005. The operative report notes that the worker has a Grade 3 chondromalacia with a small area of Grade 4 with bare bone present. We note that this is a serious condition that would have developed over a considerable period of time. The evidence does not support a finding that this condition was caused by the workplace injury.

The worker and her advocate submit that the worker suffered a PCL tear in the workplace injury. The majority notes there is conflicting information on this issue. The orthopaedic surgeon who performed the arthroscopy noted in the operative report dated October 12, 2005 that "What could be seen of the PCL certainly looked normal." In a note dated November 24, 2005, after the arthroscopy, the surgeon expressed the opinion that the worker did have a PCL tear which is attributed to her accident.

Upon review of the evidence, the majority finds on a balance of probabilities that the April 14, 2005 injury did not result in a PCL tear. The majority notes that no evidence of a PCL tear was found during the arthroscopy and there were no clinical findings of a PCL tear. The majority also notes the worker's evidence that she has had no discussions with the orthopaedic surgeon regarding a repair of a PCL tear.

On the issue of whether there was an enhancement of the pre-existing condition, the worker's advocate acknowledged at the hearing that he had no medical reports stating that the pre-existing condition was enhanced. The worker's advocate stated that the worker's condition has been aggravated and the aggravation has not gone away. He noted that the worker now has permanent restrictions.

The majority finds, on a balance of probabilities, that the worker suffered an aggravation to her pre-existing degenerative condition which has resolved by January 13, 2006. The majority finds that any symptoms beyond this date are due to the worker's pre-existing condition. In making this decision the majority places significant weight upon the opinion of the WCB orthopaedic specialist. In a memo dated December 14, 2005 the WCB orthopaedic consultant commented:

"I feel the claimant's knee symptoms are due to the chondromalacia of the medial and femoral condyles & possibly the lateral tibial plateau (linear crack reported here).
I do not think a PCL tear is consistent with the work related injury. No laxity of the PCL was noted. The PCL appeared normal on arthroscopy. On the MRI a 'possible partial mid substance tear was reported.'
She may not have completely recovered from the chondroplasty. I think she should be recovered in another month. I think she will have ongoing problems because of the chondromalacia and arthritis of the knee."

The majority also relies upon the opinion of the WCB medical advisor set out in a memo dated November 2, 2005. The medical advisor opines that the workplace injury caused a temporary aggravation of the worker's pre-existing condition. The medical advisor noted there was no evidence of enhancement as the mechanism of injury was not significant enough to cause permanent change to the chondromalacia.

The majority finds that in accordance with WCB policy 44.10.20.10, the worker is not entitled wage loss benefits.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of July, 2006

Commissioner's Dissent

Commissioner Leake’s dissent:

On April 14, 2005, in the course of her duties as a healthcare aide in a hospital, the worker described pushing a patient on a stretcher while turning to the right, when her body went one way and her knee went the other. She felt a pop in her knee, which gave out. She later noticed swelling in her knee.

She attended a sports medicine physician on April 18, 2005, at which time a diagnosis of a grade II MCL (medial collateral ligament) tear was rendered and a medial meniscal tear was queried. Objective findings included swelling, and complaints of instability and grinding were noted.

The worker’s claim was accepted on the basis of a diagnosis of an MCL tear and various benefits commenced. The worker had some improvement, but did not recover, with physiotherapy treatment.

The evidence shows that the worker never had any symptoms or injuries to her right knee prior to the workplace injury. Since the injury the worker has continued to have problems with her knee and has not been able to return to her previous employment.

Therefore I find the worker has not recovered from her workplace injury and is entitled to wage loss benefits beyond January 13, 2006. I would allow the worker’s appeal.

W. Leake, Commissioner

Signed at Winnipeg, this 28^th day of July, 2006.