Decision #77/07 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s 2001 left knee injury and his ongoing symptoms. The worker injured his left knee on May 16, 2001. The Workers Compensation Board (WCB) accepted responsibility for the left knee injury and wage loss benefits were paid to the worker until June 30, 2003. The WCB found that the worker’s symptoms beyond this date were caused by his pre-existing chondromalacia and not his workplace injury. The worker appealed to Review Office which found that the evidence did not support a causal relationship between the ongoing symptoms and the workplace injury. The worker appealed to the Appeal Commission.
A hearing was held on April 18, 2007 at the request of a worker advisor, acting on behalf of the worker. The panel discussed the case after the hearing and rendered its decision.
Issue
Whether or not the worker is entitled to wage loss benefits beyond June 30, 2003.Decision
The worker is entitled to wage loss benefits from February 25, 2004 onward.Decision: Unanimous
Background
The worker injured his left knee while working as a painter on May 16, 2001. X-ray examination dated May 18, 2001 revealed a small bone infarct in the distal femur. There were minor osteoarthritic changes in the left patellofemoral joint. The worker was diagnosed with a left knee strain by his physician and was treated with medication and physiotherapy.
On June 28, 2001, an orthopaedic specialist reported that the worker’s knee was getting better until last Saturday when he heard a loud pop followed by increased pain when he tried to squat/sit down on a low chair. After the knee was aspirated, it was felt that the worker may have a traumatic type of synovitis and that a torn meniscus could not be ruled out.
An MRI of the left knee dated July 29, 2001 showed a bucket-handle tear of the medial meniscus associated with displayed fragment in the intercondylar notch. There was moderately severe chondromalacia patella, prior surgery anterior patella and large joint effusion. Based on these findings, the worker underwent arthroscopic debridement of the torn meniscus on September 19, 2001 followed by physiotherapy treatment. On October 30, 2001, a WCB medical advisor opined that the worker should be recovered from the compensable injury 6 to 8 weeks post arthroscopy.
On April 2, 2002, the worker was seen by a WCB medical advisor for his ongoing left knee difficulties. The medical advisor indicated in his report that the worker was unable to return to his regular duties due to ongoing left patellofemoral knee pain. He thought a significant portion of the left knee pain may be secondary to degenerative changes that were demonstrated on the x-rays, the MRI, and also at the time of the arthroscopy. He felt that these changes may have been temporarily aggravated by the surgical procedure. Further treatment suggestions included a course of vigorous strengthening of the left quadriceps muscle and the use of a neoprene sleeve, followed by a graduated return to work.
On May 29, 2002, the treating physiotherapist told a WCB case manager that the worker was suffering from crepitus and had patellofemoral pain which he did not have prior to surgery. She noted that prior to the worker’s compensable injury, there were no indication of knee problems. She felt the worker could return to work as long as he avoided kneeling and squatting.
In a further telephone conversation on June 6, 2002, the physiotherapist advised the WCB that the worker could not kneel, he had difficulty with squatting and decreased balance, and would have ongoing problems with his return to painting work.
On September 30, 2002, the medical advisor who examined the worker on April 2, 2002, indicated that the worker’s ongoing difficulties were unrelated to his compensable injury and were pre-existing and degenerative in nature.
In a progress report dated October 31, 2002, the treating physician reported that the worker had objective findings of left knee medial compartment tenderness which was worse on weight bearing.
On June 23, 2003, the WCB medical advisor advised the WCB case manager that the worker suffered a torn meniscus at the time of his workplace accident. He said the worker’s current symptoms were a result of chondromalacia patella and that there were no clinical signs that the meniscus repair was still responsible for his ongoing symptoms.
In a decision dated June 23, 2003, the worker was advised of the WCB’s position that his wage loss benefits would be ending on June 30, 2003 as it was felt that his problems with pain and kneeling were a result of his chondromalacia and not from the effects of his compensable injury.
A standing left knee x-ray was carried out on February 25, 2004. It stated the medial compartment of the knee was somewhat narrowed and there was slight lipping of the medial- joint margins and patella poles. The appearance was compatible with mild osteoarthritis.
In a February 27, 2004 report to a worker advisor, the treating orthopaedic surgeon noted that the worker was still having difficulties with his left knee as of February 25, 2004. He outlined his opinion that on a balance of probabilities, the worker had an enhancement of the osteoarthritic changes of his knee as a result of the workplace injury but that the osteoarthritic changes are not wholly due to the workplace injury.
In a report to the WCB dated April 6, 2004, the treating orthopaedic surgeon indicated that recent x-rays revealed the worker has early osteoarthritic changes of his knee. He felt the worker may have some continuing impairment of his knee on a permanent basis.
On August 23, 2004, a WCB case manager asked the treating orthopaedic surgeon to provide a narrative report outlining the clinical basis for his opinion that he expressed in his report of February 27, 2004. A response from the orthopaedic surgeon is dated September 14, 2004.
A WCB orthopaedic consultant reviewed the file on October 8, 2004 at the WCB case manager’s request. He stated the worker’s symptoms were likely due mainly to his patellofemoral chondromalacia and that the work related injury would not affect the patellofemoral chondromalacia. He said it was questionable if a torn meniscus would result in osteoarthritis of the knee within four months. “Likely it would result in a slight degree of tibia-femoral chondromalacia.” He did not think the torn medial meniscus would have a causative relationship to the chondromalacia of the patella.
On October 19, 2004, it was determined by the WCB case manager that no change would be made to the June 23, 2003 decision. It was his position that the worker’s chondromalacia was not the result of his workplace accident. He felt the worker was not suffering a loss of earnings related to the compensable accident and that any time loss past June 30, 2003 was related to his pre-existing left knee condition. There was no enhancement of the pre-existing condition in relation to the workplace accident.
In a letter to the worker advisor dated May 3, 2005, the treating orthopaedic surgeon reiterated his opinion that the worker’s patellofemoral arthritic changes in his knee pre-dated the injury and that the medial compartment osteoarthritis was related to the worker’s compensable injury.
On September 8, 2005, a WCB orthopaedic consultant commented that the contents of the May 3, 2005 report did not alter his opinion of October 8, 2004. He felt the worker’s ongoing symptoms were likely related to patellofemoral arthritis and chondromalacia of the patella or osteoarthritis of the medial fibio-femoral joint. He did not feel there was objective evidence that these degenerative changes had been enhanced by the tear of the medial meniscus.
On September 13, 2005, the WCB case manager advised the worker that he still remained of the position that he had recovered from his compensable injury and that no further wage loss benefits or treatment would be covered.
In a decision dated November 9, 2006, Review Office confirmed that the worker was not entitled to wage loss benefits after June 30, 2003. It was her position that the file evidence did not support a causal relationship between the medial joint osteoarthritis of the knee and the compensable injury. She was also of the opinion that the file evidence did not support that the worker’s pre-existing conditions had been enhanced by the compensable injury. This decision was appealed by the worker and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors. In accordance with subsection 39(2) of Act wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB.
Worker’s Position
The worker attended the hearing with a worker advisor who made a submission on the worker’s behalf. The worker answered questions posed by his representative and the panel.
The worker advised that he had been a painter since 1968 but was unable to continue in this occupation after his workplace injury. He also advised that he had no prior problems with his left knee. He advised that after the accident he had surgery to his left knee but that his knee never recovered. He advised that sometimes his knee swells. He stated that he can walk but cannot stand for too long. He also advised that he cannot kneel.
The worker described the job requirements of a painter. He said that the job involved a lot of squatting, for example to put masking tape on baseboards. It also involved climbing and standing on ladders. The worker advised that he has been involved in some sedentary work since the surgery.
In answer to a question regarding the amount of walking he did between the injury in May 2001 and the surgery in September 2001, the worker advised that he did not walk very much.
The worker’s representative submitted that the worker is entitled to wage loss benefits beyond June 30, 2003. The representative acknowledged that the worker may have had some degenerative changes at the time of the injury, but that the degenerative changes did not require medical treatment and did not interfere with the worker’s ability to work as a painter at that time.
The representative noted that the July 2001 MRI refers to moderately severe chondromalacia but that the treating orthopedic surgeon who performed the arthroscopic surgery reported only minimal changes to the patella. The representative implied that the minor degenerative changes are consistent with the fact that the degenerative condition did not affect his ability to earn his income.
The representative noted, according to the operative report, a large portion of the worker’s meniscus was removed. He referred to this as being akin to removal of a shock absorber from the knee. The representative noted that after surgery, the reports indicate that the worker began to develop crepitus in the knee which was not present prior to surgery. He also noted reports that the worker began to develop patella femoral pain after the surgery.
The worker’s representative noted the reports from the treating orthopedic surgeon which identified the development of osteoarthritis in the knee. He also noted the opinion of the WCB orthopedic consultant that tibial femoral osteoarthritis may result from a torn meniscus. The representative noted that a variety of conditions appear to be affecting the worker’s knee at this time and there is evidence of a relationship to the workplace injury.
The worker’s representative advised that the worker is now age 65 and asked the panel to consider the worker’s loss of earning capacity until age 65.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond June 30, 2003. For this appeal to be successful, the panel must find a causal relationship between the worker’s loss of earning capacity and the workplace injury.
The panel finds, on a balance of probabilities, a causal relationship between his current medical condition and the compensable condition, with a resulting loss of earning capacity, but that this loss of earning capacity occurred as of February 25, 2004 and forward. In reaching this decision, the panel relies upon the opinion and findings of the treating orthopedic surgeon. In a report dated May 3, 2005 the orthopedic surgeon noted that the worker had an x-ray of his knee taken on February 25, 2004 which demonstrated that the worker had medial joint space narrowing. The physician also noted that the worker did not have evidence of significant medial joint osteoarthritis on the previous x-ray and that his report on the arthroscopy did not mention there being medial joint arthritis. The physician opined:
“It is my opinion that the problem the patient has with his knee, pain on walking, and standing is not just related to patellar degenerative changes. The patient may well have some of his symptoms related to patello-femoral arthritic changes, which in my opinion pre-dated the injury. I note that my opinion is no different than [WCB orthopedic consultant] in that respect. I do note however it is my opinion that the medial compartment osteoarthritis is related to the patient’s workers compensation injury. The medial compartment osteoarthritis, i.e. tibial femoral is in my opinion also contributing to the patient’s impairment. The patient in my opinion therefore does have an impairment of his knee which is related to the injury the patient sustained in the workplace on May 16, 2001.”
The panel notes there are several conditions which are potentially affecting the worker’s left knee and finds that the medial compartment osteoarthritis, referred to by the treating orthopedic surgeon, had become a significant factor affecting the worker’s earning capacity by February 25, 2004, the date on which the orthopedic surgeon examined the worker and opined that the worker had an enhancement of osteoarthritic changes to his knee.
The panel notes that the WCB orthopedic consultant in a memo dated October 8, 2004 agreed that the osteoarthritis of the knee could cause some problems. He commented that “There may be some problems due to the osteoarthritis of the medial compartment of the knee, the “defect” in the distal femur, and possibly retained portions of the torn medial meniscus.” The panel also notes and accepts the comments by the treating orthopedic surgeon that the surgical removal of the meniscus will accelerate or enhance the degenerative conditions in the worker’s knee.
As to the timing of the enhancement, the panel accepts the premise that enhancement of the degeneration and consequent functional limitation would not be immediate but would take some time subsequent to the meniscal surgery to become a limiting factor affecting his wage loss entitlement. To determine when this occurred, the panel reviewed the medical reports on file and in particular the subjective and objective findings in each report. The panel notes that in the February 27, 2004 report, the functional limitations that could be associated with osteoarthritic changes became clinically apparent. This is approximately 29 months post surgery. The panel finds that there was a compensable enhancement of the osteoarthritic condition in the worker’s knee as a consequence of the compensable surgery, and that it affected his ability to return to his work as a painter as of February 25, 2004.
The panel finds that the worker is entitled to wage loss benefits commencing February 25, 2004. The appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of June, 2007