Decision #57/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s anterior cruciate ligament (ACL) tear and his workplace accident. The worker injured his left knee at work on March 29, 2004. The Workers Compensation Board (WCB) accepted responsibility for the claim but concluded that the ACL tear was likely due to a prior sports injury and was not the responsibility of the WCB. The WCB refused to pay wage loss benefits after October 28, 2005 as it considered that the worker’s symptoms after this date were due to the ACL tear. The WCB’s Review Office agreed with this position. The worker appealed to the Appeal Commission and a hearing was held on March 14, 2007.Issue
Whether or not responsibility should be accepted for the worker’s anterior cruciate ligament tear; and
Whether or not the worker is entitled to wage loss benefits beyond October 28, 2005.
Decision
That responsibility should not be accepted for the worker’s anterior cruciate ligament tear; and
That the worker is not entitled to wage loss benefits beyond October 28, 2005.
Decision: Unanimous
Background
On March 29, 2004, the worker filed an application for compensation for a work related left knee injury. He described the accident as follows: “I walked over to go to the bathroom and I opened the door and there was something in my way, I tried to walk around it and as I did I twisted my left knee and I heard a pop.”
The worker attended a hospital emergency facility for treatment on March 29, 2004 with complaints of pain and swelling in his knee. The report stated that the worker had a bad injury about one year earlier from playing volleyball when he came down on his left knee.
A left knee x-ray taken on March 29, 2004 stated the following: “There appears to be a small separated bony fragment adjacent to the articulating surface of the lateral tibial plateau and a loose body is suspected. Whether this is recent or long standing is not certain. Clinical correlation is required.”
A hospital emergency report dated August 14, 2002 indicated that the worker suffered a left knee injury from playing volleyball when he landed/twisted on his left knee and felt a pop. An x-ray taken on the same day noted that the alignment of the knee was within normal limits and no fracture was seen. There was radiographic evidence of a joint effusion and internal derangement of the knee could not be ruled out.
On April 7, 2004, the worker was seen by an orthopaedic specialist. It was reported that the worker either had a left knee medial meniscal tear or a left knee loose body. Surgery was suggested in the form of a left knee arthroscopy and intra-articular surgery.
The worker had surgery on June 29, 2004. The post-operative diagnosis was a left knee medial and lateral meniscal tear and a complete anterior cruciate ligament tear.
At a follow-up appointment on September 1, 2004, the treating orthopaedic specialist reported that the worker complained of popping and giving out of his knee, mostly on stairs. The physical exam revealed grade 1 Lachman, Grade 1 Drawer. A left knee MRI arthrogram was suggested.
An MRI of the left knee dated November 19, 2004 revealed “Truncation of the posterior horn of the medial meniscus with loose bodies present. As well, a tear of the anterior cruciate ligament.”
A second orthopaedic surgeon saw the worker on June 20, 2005. He outlined his view that the worker required an ACL reconstruction.
On August 25, 2005, the orthopaedic surgeon was advised in writing that the WCB would accept responsibility for an arthroscopy of the left knee to assess the extent of the worker’s intra-articular pathology. It would not, however, accept responsibility for any treatment related to the ACL as this pathology was entirely related to a sports injury and was not related to the work place accident.
The worker underwent an arthroscopy on September 19, 2005 and a tear of the ACL was confirmed.
On October 13, 2005, a WCB case manager informed the worker that wage loss benefits would be paid to October 28, 2005 as it was felt that any ongoing disability would be related to his non-compensable anterior cruciate ligament. The worker disagreed and appealed to Review Office. He outlined his view that the tear to his anterior cruciate ligament was related to his compensable accident rather than his prior volleyball injury of 2002.
On February 24, 2006, Review Office determined that no responsibility would be accepted for the worker’s anterior cruciate ligament tear and that no wage loss benefits were payable beyond October 28, 2005. Review Office consulted with a WCB orthopaedic consultant who stated that the worker’s surgery on June 29, 2004 was not compatible with the mechanism of injury on March 29, 2004. It was his opinion that the March 29, 2004 episode at work was either due to pre-existing ACL deficiency with the knee giving way or the bucket-handle tear of the medial meniscus momentarily displacing. He felt the volleyball accident was far more likely to have caused the internal derangement of the worker’s left knee than the March 29, 2004 incident. On October 10, 2006, the worker appealed the Review Office’s decision and a hearing was arranged.
Reasons
Worker’s Position Evidence at Hearing
The worker attended the hearing with his mother who assisted him in presenting his case. The worker answered questions posed by the panel.
In answer to questions, the worker provided a detailed description of his workplace accident. He advised that:
· he had entered a large washroom
· he had to get around a large industrial sized garbage can which was in the way
· the garbage can weighed between 20 and 30 pounds
· he was picking up the garbage can to move it
· the concrete floor was wet
· “I just moved it, and the floor was a little bit wet and I just torqued my leg the wrong way and just (sic) I heard a popping…”
· he had slowed down to a stop when the incident happened
· his foot slipped as there was a little bit of water on the floor
· he stumbled but did not fall down
The worker acknowledged that he injured his left knee in 2002. He said:
“I just hurt my leg again at the volleyball game. I don’t remember exactly what happened. I think I jumped up to hit the ball and something in my knee and my ankle at the same time – like, I don’t know, I hurt them.”
Regarding the 2002 accident, the worker confirmed that he landed on his leg and fell back. He estimated his weight at the time as probably 200 pounds. The worker confirmed that he was on crutches for five days and did not receive any medical treatment other than at an initial visit to a hospital.
The worker advised that following the 2002 injury he had no problems with his left knee. He began working for the accident employer in January 2004. When asked about a reference by the employer that he had a limp when he started work, he replied that he walked perfectly and denied having a limp.
The worker advised that he played many sports including volleyball, basketball, football, and tennis prior to the 2002 injury. In answer to a question he advised that he did not play sports after the 2002 injury. He stated that he lost interest in sports.
In response to a question about having denied to the WCB that he had a prior knee problem, the worker explained that the pain from the 2002 accident was through his whole left leg. He said that he did not consider the pain to be from the knee rather it was in his ankle and calf area.
Regarding his activities since the WCB discontinued wage loss benefits, the worker advised that he did not initially look for work but has recently begun to look for work. He advised he would like to return to work for the accident employer but understands that the employer is not hiring. His mother confirmed that in the fall of 2006 he had surgery to repair his ACL tear.
The worker’s mother noted that the worker’s physician supported the worker’s claim and commented that the damage sustained by the worker is consistent with the mechanism of injury.
The worker’s mother also noted that the worker did not receive medical attention after the initial treatment for the 2002 injury. It was not until two years later when he was injured at work that he received treatment. She questioned how the worker would get by with an ACL tear for two years without medical attention.
Analysis
There were two issues before the panel. The first issue was whether responsibility should be accepted for the worker’s ACL tear. For the appeal of this issue to be successful, the panel must find a relationship between the workplace accident and the ACL tear. The panel must find that the worker injured his ACL in the workplace accident or, if the ACL tear was pre-existing, the condition was aggravated or enhanced by the workplace accident. The panel was not able to make any of these finding. The panel finds, on a balance of probabilities, that the worker’s ACL tear was a pre-existing condition and was not aggravated or enhanced by the workplace injury.
In arriving at its decision, the panel places significant weight on the descriptions of the 2002 volleyball injury and the 2004 workplace injury. The panel also relies upon the opinion of the WCB orthopedic consultant.
The panel notes that the 2002 volleyball injury involved jumping up into the air, landing on the leg and falling to the ground which required an immediate visit to a hospital emergency department and the use of crutches. The panel notes the worker’s evidence that he probably weighed 200 pounds at the time of the injury. The panel also notes the comments of the WCB orthopedic consultant that this accident was far more likely to have caused the internal derangement of the left knee than the 2004 workplace injury. The panel agrees.
In any case, the panel finds that the worker did not injure his ACL or aggravate or enhance a pre-existing ACL tear in the workplace accident. The panel notes that the worker’s description of the workplace involves no significant trauma. Rather, the worker slipped and stumbled but did not fall to the ground. The panel finds that such an accident was unlikely on a balance of probabilities, to cause an ACL tear and relies on the opinion of the WCB orthopedic consultant who commented on February 23, 2006 that the degree of pathology suffered by the worker was not compatible with the mechanism of injury of the workplace accident.
The panel notes that the worker’s two orthopedic specialists supported the worker’s claim that the injury was due to the March 2004 injury. The panel does not give significant weight to these opinions as neither orthopedic specialist appears to have information about the 2002 volleyball accident and did not appear to consider the impact of this accident upon the worker’s knee. The panel is also concerned that the specialists may not have had a full or accurate description of the mechanics of the workplace accident.
The panel notes in passing that the worker denied any symptoms or problems after the 2002 injury, yet advised that he stopped participating in sports after this accident.
The second issue before the panel was whether the worker is entitled to wage loss benefits beyond October 28, 2005. The panel finds that the medical reason for any time loss after this date is due to the ACL tear and related surgery. Given its decision on the first issue, that this was a non-compensable medical condition, the panel finds that the worker is not entitled to wage loss benefits beyond October 28, 2005.
The appeal is denied on both issues.
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 May, 2007