Decision #04/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the pre-existing condition in the worker’s right knee and a subsequent workplace injury.
The worker injured his right knee in May 2003. The Workers Compensation Board (the WCB) accepted responsibility for this injury and benefits were paid. The WCB determined that the workplace injury had resolved and that any difficulties were due to the worker’s pre-existing condition. On reconsideration, the WCB’s Review Office determined that the workplace injury continued to contribute to the worker’s ongoing right knee complaints after May 21, 2004. The employer disagreed and appealed to the Appeal Commission.
Issue
Whether or not the worker is entitled to wage loss benefits beyond May 21, 2004.Decision
That the worker is entitled to wage loss benefits beyond May 21, 2004.Decision: Unanimous
Background
On May 27, 2003, the worker was swinging a 16 pound sledge hammer when his right knee buckled and he felt something snap in his left shoulder and neck area. He then sought treatment from a chiropractor for his neck/shoulder difficulties and a general practitioner and orthopaedic surgeon for his right knee complaints.
In a consultation report dated July 21, 2003, the orthopaedic surgeon reported that the worker had a past history of a partial medial meniscectomy of the right knee in 1991. He stated that the worker had done well until his most recent injury. He noted that current plain x-rays showed minor early degenerative changes in the medial compartment. It was the surgeon’s opinion that the worker likely sustained a medial meniscal tear and a twisting injury at work. As his condition had not improved with conservative treatment, an arthroscopy was recommended and approved by a WCB medical advisor.
On November 26, 2003, the worker underwent surgery to his right knee. A medial meniscal tear was found and repaired. The post-operative diagnosis was lateral compartment tibial arthritis and patellofemoral arthritis. Following surgery, the worker underwent physiotherapy treatments and began light duty work on December 9, 2003.
The orthopaedic surgeon then advised the WCB that the worker’s right knee condition was worsening. In his report of February 9, 2004, the surgeon reported that the worker had good range of motion in his knee but had persistent medial pain with no evidence of infection and no apparent gross inflammation. X-rays revealed areas of calcification in the residual medial meniscus. Given his knee difficulties, the surgeon suggested that the worker be switched to a more sedentary type of work activity.
A WCB medical advisor and a WCB orthopedic consultant reviewed the file information on March 30, 2004. They concluded that the worker’s compensable injury had resolved. They noted that the compensable injury caused a temporary aggravation of the worker’s pre-existing condition which had resolved.
The orthopaedic surgeon responded to questions posed by a WCB case manager on March 25, 2004. As background information, the orthopaedic surgeon noted that the worker’s knee was back to full function until his re-injury in May 2003. He noted that the worker sustained a significant fall injury in the year 2000 causing injury to his ankle but the right knee did not suffer at that time. It was his view that the worker’s current symptoms were more related to acceleration and enhancement after his May 2003 injury than to his pre-existing condition. He thought the worker’s knee would not likely stand up to prolonged physical work or time on his feet, no matter what conservative medical or surgical treatment was pursued.
On April 7, 2004, the WCB case manager noted that the report from the treating orthopaedic surgeon had been reviewed by the WCB’s medical advisor and orthopaedic consultant and that no change would be made to their previous opinion dated March 30, 2004.
In a WCB decision dated May 14, 2004, the worker was informed that he no longer had a loss of earning capacity as his compensable injury had now resolved. He was therefore not entitled to wage loss benefits beyond May 21, 2004. The decision was appealed by a union representative on June 22, 2004. He presented additional medical information from the treating orthopaedic surgeon along with hospital and office records from 1991, 1993 and 1997 for consideration. In the event that the WCB did not change its decision, a Medical Review Panel (MRP) was requested.
In his report dated June 16, 2004, the specialist outlined his view that the chondromalacia found during a 1991 arthroscopy was probably enhanced by the compensable injury. He thought the worker would have been able to continue working if it were not for the May 27, 2003 injury. He did not believe that the compensable injury had resolved.
On August 19, 2004, a WCB orthopaedic consultant reviewed the file and stated “…the claimant has recovered from surgery for a small tear of the medial meniscus and that the continuing symptoms and claim of loss of function arise out of pre-existing degenerative changes in the knee joint.”
On September 24, 2004, the union representative was advised that it was still the WCB’s position that the workplace injury had now resolved and that any additional difficulties experienced by the worker were directly related to his pre-existing medical condition.
The request to convene an MRP was denied by both a sector service manager and by Review Office. It was felt that the treating orthopaedic surgeon did not provide a full statement of medical facts to support his conclusion that the worker’s pre-existing chondromalacia had been enhanced by the compensable injury.
On March 22, 2005, the union representative provided the WCB with a report from a sports medicine specialist dated February 3, 2005. It was the sports medicine physician’s opinion that the May 27, 2003 work injury had not resolved and that it was responsible for the worker being unable to resume his pre-accident employment.
Review Office sought the medical advice of a WCB orthopaedic consultant on July 13, 2005. The orthopaedic consultant outlined his opinion that the May 27, 2003 injury produced a tear of the medial meniscus and that the further tearing of the medial meniscus in an already abnormal knee could enhance the pre-existing osteoarthritic changes. He felt that the May 2003 injury and subsequent surgery contributed to the enhancement of the pre-existing degenerative changes in the worker’s knee.
On August 18, 2005, Review Office determined that the worker was entitled to partial wage loss benefits beyond May 21, 2004. It accepted the views of the treating orthopaedic surgeon, consulting sports medicine physician and WCB orthopaedic consultant to Review Office that the May 27, 2003 compensable injury continued to contribute to the worker’s ongoing right knee complaints. On August 23, 2005, the employer’s representative appealed Review Office’s decision and a file review was requested. On December 5, 2005, the Appeal Commission was provided with a submission from the employer’s representative along with a copy of a letter from an orthopaedic consultant dated November 7, 2005.
On December 13, 2005, a file review took place and the appeal panel decided to arrange for an MRP in accordance with subsection 67(3) of The Workers Compensation Act (the Act) to assist it with their deliberations of the case. An MRP was later held on September 22, 2006 and its report of October 20, 2006 was distributed to the interested parties for comment. On December 5, 2006, the appeal panel met again to discuss the case and considered a final submission from the union representative dated November 16, 2006.Reasons
Employer’s Position
The employer was represented by its workers compensation co-ordinator. The employer’s representative provided a written submission dated December 5, 2005. He also provided a medical report from an orthopedic surgeon dated November 7, 2005 who had reviewed the file and opined that the worker has a progressive degenerative joint condition and that ongoing symptoms do not appear to be mechanical in nature but are in keeping with degenerative change. The employer’s representative also referred to a written submission he had provided to the WCB dated June 21, 2005 in support of the employer’s appeal.
In the submissions, the employer’s representative reviewed various medical reports on the claim file, including the comments provided by the orthopedic consultant to Review Office. The representative submitted that the orthopedic consultant made statements that were both contradictory and unsupported by any credible scientific evidence. The representative concluded that “…the preponderance of medical evidence would tend to contradict the position adopted by the Review Office.”
The representative asked the panel to undertake an objective review of the medical evidence and, if need be, seek input of an MRP in accordance with subsection 67(3) of the Act.
Worker’s Position
The worker was represented by his union representative who provided a written submission dated December 5, 2005 which supported the decision of the Review Office. The worker’s representative referred to various medical reports on claim file. He noted that prior to the workplace injury the worker was able to perform his regular duties. He submitted that the accident resulted in an aggravation/enhancement of the worker’s pre-accident condition and that the worker may never resume his pre-accident employment.
The worker’s representative provided a further submission dated November 16, 2006, upon receipt of the MRP report. He noted that the MRP suggested that the worker’s current symptoms and disability are due to the combined effects of the meniscal tear and the pre-existing chondromalacia or the procedures performed.
Analysis
In its written submission the employer suggested that the panel consider convening an MRP under subsection 67(3) of the Act. The panel agreed with this suggestion and found this to be an appropriate case to convene an MRP to gain greater clarity with respect to the worker’s knee condition. Accordingly, an MRP was convened and its report of October 20, 2006 was provided to the parties and ultimately considered by the panel.
The issue before the panel was whether the worker is entitled to wage loss benefits beyond May 21, 2004. The issue came before the panel as a result of an appeal by the employer which submitted that the worker is not entitled to wage loss benefits. For the employer’s appeal to succeed, the panel must find that the workplace injury of May 2003 was not contributing to the worker’s loss of earning capacity as of May 21, 2004. The panel was not able to reach this conclusion.
The panel has considered the submissions of the parties and the contents of the claim file including medical reports and the MRP report. The panel finds that the worker is entitled to wage loss benefits beyond May 21, 2004. The panel determines, on a balance of probabilities, that the medical evidence supports a finding that the worker’s loss of earning capacity is due to the combined effects of the workplace injury and the pre-existing condition and that, in accordance with the WCB’s pre-existing conditions policy, No. 44.10.20.10, wage loss benefits are payable beyond May 21, 2004. Specifically, the panel finds that subsection 1(a) of this policy is applicable. This subsection provides:
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 Workers Compensation Board will accept responsibility for the full injurious result of the accident.
In making this decision, the panel relies upon the opinion of the MRP set out in its report of October 20, 2006. The panel notes that the MRP consisted of a chairperson and two orthopedic specialists who interviewed and examined the worker and also reviewed the worker’s claim file. With respect to the MRP’s opinion, the panel notes that the MRP agreed that the May 2003 workplace injury was a recurrent medial meniscal tear, and that the lateral tibial and patellar chondromalacia were pre-existing conditions. The panel notes question # 1 and accepts the MRP’s response to this question:
“Are [the worker’s] current symptoms and disability;
(a) Due to his medial meniscal tear and/or postoperative sequelae of the meniscectomy performed?
(b) Due to his pre-existing chondromalacia and/or postoperative sequelae of the chondroplasties performed?
(c) Due to the combined effects of the meniscal tear and the pre-existing chondromalacia and/or the procedures performed? If yes, what are relative contributions of the meniscal tear and the chondromalacia toward [the worker’s] current right knee symptoms? Please explain the Panel’s response.
The panel is of the opinion that [the worker’s] current symptoms and disability are due to the combined effects of the meniscal tear and the pre-existing chondromalacia/or the procedures performed.
The panel members were unanimous in stating that it is clinically impossible to respond to the question about the relative contributions of the meniscal tear and the chondromalacia towards the workers current right knee symptoms.
The panel’s response is based primarily on the fact that both the symptoms and the findings are on the medial side of the knee. Also the report of a MRI of the right knee performed April 10, 2006 indicates mild medial compartment and patellar chondromalacia consistent with both the history given by the claimant and the findings on clinical examination.”
In addition to the MRP report, the panel notes that other information on the claim file supports a relationship between the workplace injury and pre-existing condition including the opinions of the treating orthopedic surgeon and the orthopedic consultant to Review Office.
The employer’s appeal is therefore denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of January, 2007