Decision #89/07 - Type: Workers Compensation

Preamble

This appeal deals with the relationship between the worker’s compensable bilateral knee injuries and his ongoing symptoms.

The worker injured both his knees in an accident on January 16, 1998. He applied to the Workers Compensation Board (WCB) and his claim was accepted. In adjudicating the worker’s claim, the WCB determined that a lateral meniscus cyst which was surgically removed on September 29, 1999 was not caused by the workplace accident. The WCB also determined that restrictions affecting the worker’s knees were preventive and not directly due to the workplace accident. The WCB also refused to provide wage loss benefits to the worker during a defined period. The worker appealed to Review Office which upheld the WCB decision. The worker then appealed to the Appeal Commission and a hearing was held on May 16, 2007. The panel discussed the case on the same day. The worker appeared and provided evidence. He was represented by a worker advisor. No one appeared on the employer’s behalf.

Issue

Whether or not the lateral meniscus cyst which was surgically removed on September 29, 1999 was caused by the January 16, 1998 compensable injury;

Whether or not the worker’s bilateral knee restrictions have been correctly established as being required on a preventive basis rather than as a direct result of the January 16, 1998 compensable injury; and

Whether or not the worker is entitled to wage loss benefits between February 17, 2001 and September 9, 2001.

Decision

That the lateral meniscus cyst which was surgically removed on September 29, 1999 was caused by the January 16, 1998 compensable injury;

That the worker’s bilateral knee restrictions should have been established as being required as a direct result of the January 16, 1998 compensable injury; and

That the worker is entitled to wage loss benefits between February 17, 2001 and September 9, 2001.

Decision: Unanimous

Background

On January 16, 1998, the worker suffered injuries to both knees during the course of his employment as a labourer. He described the work accident as follows:

“I was on top of pipe which was on top of a flat deck of truck waiting to receive a load of lumber being hoisted up by the crane. The load shifted sideways…The crane operator swung the load around quickly and dropped load on my legs. I was pinched between the load and the pipe – both legs – in the knee area.”

The worker stated on his application that he had a prior claim with the WCB for a right knee injury and that he had undergone arthroscopic surgery in 1985.

On January 20, 1998, the treating physician noted objective findings of moderate tenderness and pain over the lateral and medial aspects of both knees as well as difficulty with getting in and out of his truck and being unable to kneel. The diagnosis rendered was an acute contusion of both knee joints with associated sprains.

The worker was then seen by an orthopaedic specialist in February 1998. He thought that most of the worker’s pain was coming from a left medial meniscal tear. As an addendum to the report, the specialist noted that x-rays showed slight squaring of the tibia with a small spur in the notch indicating exceedingly early or minimal osteoarthritis, which was probably asymptomatic and on a balance of probabilities, was not the cause of the worker’s knee pain.

A surgical report dated April 21, 1998, revealed the following postoperative diagnoses:

  1. Left medial meniscal tear, horizontal cleavage type.
  2. ACL tear, pulled off the attachment and re-attached to the PCL.
  3. Chrondromalacia of the medial femoral condyle.

On May 11, 1998, the orthopaedic specialist reported that the worker required surgery to repair the medial meniscal tear in his right knee. On November 3, 1998, right knee surgery was carried out and the postoperative diagnoses listed were:

  1. Medial meniscal tear, flap tear with horizontal cleavage tear behind.
  2. Chondromalacia of the femoral condyle and tibial condyle at the medial surface Grade II.
  3. Chondromalacia of the patella.
  4. ACL tear – “his ACL was not inserting off the medial aspect of the lateral femoral condyle on probing, and appeared to be torn off its insertion and healed back to the PCL.”

On December 2, 1998, a WCB medical advisor’s opinion was that the worker’s chondromalacia was a result of his compensable injury.

In a report dated February 17, 1999, an orthopaedic surgeon indicated that the worker’s anterior cruciate ligaments were completely normal according to MRI results dated January 25, 1999.

On April 12, 1999, the orthopaedic surgeon noted that the worker’s left knee was getting better but he was experiencing patellar pain in his right knee that suggested a lateral meniscal cyst. If the cyst did not resolve itself in the next six to eight weeks, excision of the cyst would be considered. On May 26, 1999, the surgeon noted that the lateral meniscal cyst was now larger and very tender laterally.

The worker was examined by a WCB orthopaedic consultant on July 2, 1999. He said he was not convinced that there was a direct cause and effect relationship between the worker’s current complaints of swelling on the lateral aspect of his right knee and the work related injury of January 16, 1998. The differential diagnosis for this swelling was a meniscal cyst, collateral bursitis and ganglion. Arthroscopic surgery was approved however and the cyst was removed on September 29, 1999. In the corresponding operative report, the post-operative diagnosis was “intact meniscus to inspection, chondromalacic changes lateral tibial plateau, medial femoral condyle, and patella.”

In a follow-up report dated October 14, 1999, the surgeon indicated that the cyst was coming from the posterior aspect of his knee.

On June 22, 2000, the WCB orthopaedic consultant reviewed the file information. He said there was no definitive diagnosis for the origin of the lateral meniscus cyst which was exposed by a small open procedure and excised. He wondered whether it may have been a ganglion and if not, it could have been a synovial cyst arising from the collateral ligament, or as the surgeon noted later, from the region of the biceps tendon. In either case, he felt this was not related to the workplace injury. In his opinion, the worker’s right knee injury was a relatively minor tear of the medial meniscus which was adequately treated and a full recovery of function was anticipated. The other problems in the worker’s right knee joint, degenerative changes on the articular surfaces and non-articular swelling were not work related.

In a September 7, 2000 report, the treating surgeon indicated that the worker had full range of movement in both knees with no instability, slight hyperextension and the lateral cyst was palpable. He thought “it is certainly plausible that the cyst is the result of the injury sustained at his work.”

The worker was assessed by a sports medicine and rehabilitation specialist on two occasions in September 2000. He assessed the worker with the following conditions:

  • Mild medial compartment arthropathy with femoral chondromalacia, likely bilaterally;
  • Normal ACL bilaterally;
  • Extra-articular cyst right knee; and
  • A likely chronic medial compartment arthropathy.

In his opinion, there was a direct cause and effect relationship between the worker’s right knee complaints to the most recent compensable injury. He said the suspected chondromalacia with a medial meniscal tear and horizontal cleavage injury would likely not ever completely resolve.

On October 20, 2000, the WCB orthopaedic consultant disagreed with the treating surgeon that the lateral cystic swelling was not a responsibility of the WCB. He recommended that the worker return to full time regular duties and noted that his work hardening program had been successfully completed.

On December 11, 2000, the orthopaedic surgeon reported that the worker’s lateral cyst on his right knee had persisted and a second excision was recommended. Based on the opinion expressed by the WCB orthopaedic consultant on October 20, 2000, authorization to excise the cyst was denied as a WCB responsibility.

In a decision dated February 8, 2001, the worker was advised that WCB wage loss benefits would be paid up to and including February 16, 2001.

On February 16, 2001, surgery was performed to excise the right knee cyst. In part, the operative report stated, “It did appear that there was a connection with the lateral meniscus and more posteriorly around the posterior horn of the lateral meniscus.”

In a follow-up visit on February 22, 2001, the orthopaedic surgeon stated that the worker should go easy with regard to any exercise aside from regaining full extension and flexion. He further stated, “This cyst, I think, did originate from his lateral meniscus which an MRI has documented as being abnormal in the intrasubstinance area.” He further stated in a subsequent report dated April 30, 2001, that the worker was not capable of performing his entire work duties at this point in time.

On March 6, 2001, a WCB medical advisor reviewed the file and reiterated that the origin of the cystic lesion on the worker’s right knee was unknown and there was no causal relationship to the compensable injury based on the previous arthroscopic findings reporting a normal lateral meniscus.

On April 8, 2001, the sports medicine and rehabilitation specialist indicated “In my opinion, where there is any surgery to remove any part of the medial meniscus, the knee will not be the same as pre-operatively. Any meniscectomy, deceases the ability to absorb shock, stabilize, and lubricate the knee joint. In my opinion, chondromalacia of the femur and tibia are accepted complications of meniscectomy. A meniscal injury does not heal in the traditional sense of the word. There will always be a functional deficit after meniscal surgery with meniscectomy, partial or complete.”

On June 21, 2001, a Medical Review Panel (MRP) provided its findings to the WCB. In part, the MRP stated that the diagnosis stemming from the compensable accident was contusion of the soft tissues about the knees with bilateral spraining of the knees, with probable tears of the medial menisci of both knees. It felt that the chondromalacia found at surgery in April and November 1998 was pre-existing and that the pre-existing condition was neither aggravated nor permanently enhanced as a result of the compensable trauma. The MRP also indicated that in its view, the worker had recovered from the effects of his compensable injury and there were no restrictions upon his return to the work force that would be related to the accident.

In a decision dated August 8, 2001, the worker was advised by the WCB that no change would be made to the February 8, 2001 decision after a review of the MRP’s findings.

On August 17, 2001, a WCB orthopaedic consultant was asked to comment on the opinions expressed by the MRP. He stated, in part, “I did not find any objective evidence recorded on file that there was an enhancement or aggravation of the chondromalacia. However, an aggravation would be a reasonable explanation for the symptoms.”

In a memo dated August 29, 2001, the Preventive Vocational Rehabilitation (PVR) committee indicated that the worker was eligible for further consideration. “This view is based on the severity of his pre-existing condition of bilateral chondromalacia. This condition, along with his clearly established claims history, means he is at significant risk for future compensable time loss in light of the nature of his pre-accident work and pattern of injury.” The worker’s benefits were re-instated effective September 10, 2001 by the WCB’s vocational rehabilitation branch.

On November 2, 2001, Review Office considered the case based on an appeal submission from the worker’s representative. It confirmed that the worker was not entitled to wage loss benefits between February 17, 2001 and September 9, 2001. It felt there was medical evidence to show that the worker’s chondromalacia was a pre-existing condition that may have been aggravated at the time of the compensable injury but by February 17, 2001, three years post trauma, it was reasonable to presume that any aggravation which may have occurred on January 16, 1998 had resolved. Review Office indicated there was no medical evidence on file that the cyst condition which was excised during a surgical procedure had a relationship to the January 16, 1998 bilateral knee trauma. It also agreed with the PVR committee that the worker met the criteria on WCB policy related to PVR and that primary adjudication was correct to implement payment of wage loss benefits once it was deemed that the criteria for PVR had been met.

In a submission dated November 21, 2006, a worker advisor asked Review Office to reconsider its decision of November 2, 2001 based on new medical information dated August 1, 2002, March 4, 2003, December 24, 2003 and July 11, 2006. He stated that these reports confirm that the worker’s compensable injury caused an aggravation to his pre-exiting chondromalacia, if not a permanent enhancement, which caused continued symptoms and restrictions that prevented him from returning to his pre-accident employment. He felt that the worker’s restrictions should not be considered preventive in nature but should be considered compensable.

In its decision of January 4, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits between February 17, 2001 and September 9, 2001 and that the worker’s bilateral knee restrictions had been correctly established as being required, on a preventive basis, rather than as a direct result of the January 16, 1998, compensable injury. Review Office made reference to the following opinion expressed by the orthopaedic surgeon in his report dated March 4, 2003:

“This gentleman had no mechanical abnormalities in his knee with regard to any torn structures, but had evidence of chondromalacia, which is impossible to tell the date it began. However, usually it is over a long term. I predicted that this gentleman had some chondromalacia bilaterally, had an injury that set him back and by history, he was able to work for three days after. He had significant disuse from not working and has had difficulty returning to regular function. I think definitely by history, a degree of his injury is related to the event at work, a degree is pre-existing. I believe the majority is secondary to disuse and difficulty rehabbing and returning to function. When I last examined this patient, I put no restrictions on him and suggested he do whatever he was able to. In summary, this gentleman’s symptoms were certainly an aggravation of a pre-existing condition in addition to the possibility of new injuries, ie., meniscal tears. These were performed by another surgeon and dealt with prior to me seeing him. I do agree that the chondromalacia was most likely pre-existing. I disagree if your answer to number 3, that it was not at least aggravated for a period of time, by the accident. This is purely a judgment call and will not be proven one way or another by any objective evidence.”

Review Office also made reference to the treating orthopaedic specialist’s report dated December 24, 2003 where he stated:

“On the balance of probability [the worker’s] condition and restrictions are the result of his workplace injury. By history from the patient pre-accident his knees were fine. Post-accident his knees were not good. As per the knee arthroscopy, his right and left medial meniscus were torn in the accident. The chondromalacia of the femoral condyles were probably pre-existing. There is no way to tell for sure. The chondromalacia of the femoral condyles would be enhanced by the injury sustained. This would occur by causing meniscal tears. Following these knee arthroscopic removal of the meniscal tears would leave less meniscus for shock absorption and knee stability. This increased force and decreased knee stability would accelerate the chondromalacia of the femoral condyles. (Cause increased wear of the knee cartilage.) The patient likely did have a pre-existing condition. This was likely medial and lateral femoral chondromalacia. One cannot say this at 100% certainly as no knee scopes or MRI’s were done prior to the injury. The pre-existing conditions were enhanced by the injury.”

Review Office indicated that the new medical information did not alter its prior decision. It stated that it agreed with the treating physicians that any pre-existing conditions the worker may have had in his knees leading into the January 1998 workplace injury would have been aggravated but felt the worker did receive three years of coverage prior to the WCB determining that he had recovered from the effects of the January 1998 injury. Review Office also noted that the MRP had already ruled on the issue as to whether or not any pre-existing conditions would have been enhanced by the work related trauma. The worker advisor appealed the decision and a hearing was convened.

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 the Act, wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB.

This case involves a pre-existing condition. The Board of Directors has made Board Policy No.44.10.20.10, Pre-existing Conditions, which provides when the WCB will accept responsibility for pre-existing conditions. This policy provides 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 WCB will accept responsibility for the full injurious result of the accident.

Worker’s Position and Evidence at Hearing

The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel. The employer did not participate in the hearing.

With respect to the lateral meniscal cyst in the worker’s right knee, the representative submitted that the medical evidence on file establishes that this cyst was caused by his 1998 compensable injury. The representative referred to medical reports which supported a relationship between the workplace injury and the cyst. The representative submitted further that the WCB is responsible for the cyst as the WCB authorized the initial surgery which caused a permanently enhanced condition.

Regarding the issue of whether the restrictions placed upon the worker are preventive or compensable, the representative referred to various medical reports and concluded that the medical evidence establishes that the worker suffered permanent impairment as a result of his compensable injury and as such his restrictions cannot be considered preventive. The representative submitted that the worker’s functional impairment is permanent, as recognized by a WCB permanent partial impairment award, and so the worker’s restrictions should have been accepted by the WCB as permanent and compensable.

On the final issue before the panel, the worker’s entitlement to wage loss benefits between February 17, 2001 and September 9, 2001, the worker’s representative submitted that the evidence does not establish that the worker recovered from his compensable injury at the time his benefits ended. He submitted that the worker has an ongoing loss of earning capacity because his symptoms and restrictions continued beyond February 17, 2001, as a result of a combined effect of the worker’s chondromalacia and his compensable injury. He referred to various medical reports in support of this position.

The worker’s representative acknowledged that an MRP had been convened to consider the injury suffered by the worker in the workplace accident and provided a report on June 21, 2001. The representative noted that despite the fact that the MRP concluded that there was no evidence that the pre-existing chondromalacia was either aggravated or enhanced by the workplace injury, the WCB accepted the condition to be pre-existing and concluded that its aggravation would have resolved by February 17, 2001. The representative submitted that on a balance of probabilities, the evidence supports that degeneration was present in the worker’s knees prior to the 1998 workplace injury but was permanently enhanced as a result.

The worker described the workplace injury. He indicated that approximately 14 months after the accident date a cyst was discovered on his right knee. He said this occurred while he was participating in physiotherapy. After the first cyst was removed, he advised that a second cyst developed while he was participating in a work hardening program. He confirmed that the second cyst was removed and has not returned.

In answer to questions at the hearing regarding where the cyst came from, the worker advised that the surgeon told him “…he found tunnels from the lateral meniscal area, that’s what he told me. And I can only imagine that a tunnel is where that fluid is escaping out of and he tried to seal that off and hopefully has.”

The worker acknowledged that he had surgery to remove the second cyst on February 17, 2001. Regarding his wage loss from February 17, 2001, the worker commented that “…I was still having problems with the right knee up until that surgery and the surgeon wanted to—I had that other cyst and it was the size of a golf ball again, coming out the side of the right knee, that had to be removed. There was no way that I could do minimal work, not even close to the extensive work that I usually do, or used to do I should say.”

The worker advised that he returned to work in a different field in January 2003. He answered questions on his physical limitations and his ability to do his current job.

Analysis

There were three issues before the panel.

Surgical removal of Cyst

The first issue was whether the lateral meniscus cyst which was surgically removed on September 29, 1999 was caused by the January 16, 1998 compensable injury. For the appeal of this issue to be successful, the panel must find a causal relationship between the development of the cyst and the workplace injury. The panel made such a finding.

The panel finds, on a balance of probabilities, that the cyst was caused by the workplace injury. In arriving at this conclusion the panel notes that the WCB approved the 1999 surgery in which the cyst was removed. The treating orthopedic surgeon identified the possibility of an excision of the cyst in a memo dated May 26, 1999 and the WCB agreed to the surgery on August 3, 1999 after an examination by a WCB healthcare consultant.

The panel attaches significant weight to the opinions of various treating physicians, including the opinion of the surgeon who removed the cyst in September 1999. The surgeon commented in a report dated September 7, 2000 that “…It is certainly plausible that the cyst is the result of the injury sustained at his work. By history, it certainly is the case and I think it is entirely within reasonable probability that it is the case.”

The panel also relies upon the opinion of the sports medicine specialist set out in a report dated July 11, 2006. The physician made the following comments regarding the cyst that formed after the removal of the first cyst in 1999; “The most probable cause of the lateral meniscal cyst was an intra-substance lateral meniscal tear. This would have most probably been a direct consequence of the 1998 hyper-extension, traumatic injury to the right knee. This would be based upon the patient’s history of locking, swelling, and pain after the event of 1998.”

The panel notes as well the explanation given by the treating orthopedic surgeon to the worker regarding the cause of the cysts. The worker advised that the surgeon told him “…he found tunnels from the lateral meniscal area, that’s what he told me. And I can only imagine that a tunnel is where that fluid is escaping out of and he tried to seal that off and hopefully has.” This is consistent with the reports provided by the treating orthopedic surgeon.

Accordingly, the panel finds a causal relationship between the cysts and the original workplace accident.

Preventive or Compensable Restrictions

The second issue before the panel was whether the worker’s bilateral knee restrictions have been correctly established as being required on a preventive basis rather than as a direct result of the January 16, 1998 compensable injury. For the appeal of this issue to be successful, the panel must find that the restrictions arise from the workplace injury. The panel did make this finding.

The panel notes the opinion of the sports medicine specialist in a report dated August 1, 2002 that “with regard to permanent impairment, aggravation and enhancement, it is my opinion that when there is a tear of the medial meniscus and lateral meniscus in a man of [the worker’s] age, they do not heal. They typically lead to permanent changes even though they may be subtle, in the function of the knee. Therefore the individual is typically left with a permanent impairment, which represents an enhancement of any pre-existing condition.”

The sports medicine specialist also wrote in a report dated April 8, 2001 that “In my opinion, when there is any surgery to remove any part of the medial meniscus, the knee will not be the same as pre-operatively. Any meniscectomy, decreases the ability to absorb shock, stabilize, and lubricate the knee joint…There will always be a functional deficit after meniscal surgery with meniscectomy, partial or complete.”

The panel finds, on a balance of probabilities, that the restrictions arise directly from the injuries sustained in the workplace accident. The panel accepts the advice that the nature and number of surgeries on the worker’s knees, in particular the medial meniscus, will lead to specific early complaints and likelihood of later deterioration of one or both knees. On this basis, the worker was provided with work restrictions within a couple of months of the February 2001 surgery. The panel therefore finds the restrictions are compensable not preventive. The panel notes that the treating orthopedic surgeon outlined restrictions in a report dated April 30, 2001.

The panel also relies upon the opinion of the orthopedic surgeon who performed the initial surgery on the worker’s knees on April 21, 1998 and November 3, 1998. This surgeon opined in a report dated December 24, 2003 that the worker’s pre-existing conditions were enhanced by the injury.

Wage Loss Benefits Between February 17, 2001 and September 9, 2001

The third issue before the panel was whether the worker is entitled to wage loss benefits between February 17, 2001 and September 9, 2001. For the appeal of this issue to be successful, the panel must find that the worker’s loss of earning capacity was due to the workplace injury. The panel made this finding.

The panel finds, on a balance of probabilities, that the worker’s inability to work during this period was a result of the surgery that he had on February 16, 2001 to remove a lateral meniscus cyst. The panel finds that this cyst and resulting surgery are related to the workplace injury. This decision flows from the panel’s finding on the first issue that the cyst removed in September 1999 was due to the workplace injury.

The panel relies upon the opinion of the treating orthopedic surgeon noted in a report dated April 30, 2001. The surgeon noted that on exploring the cyst, it did appear that a portion of this was heading into the lateral meniscus which was tied off and that historically the cystic trouble is related to this gentleman’s injury and the rehab relating to the injury. The surgeon advised that the worker was not capable of performing his entire work duties at that time.

The panel also relies upon the opinion of the sports medicine specialist in a report dated July 11, 2006. This physician found that the cyst was most probably a direct consequence of the workplace injury.

The worker’s appeal is allowed on all issues.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of July, 2007

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