Decision #130/07 - Type: Workers Compensation

Preamble

This appeal deals with the relationship between the worker’s left knee condition and the pre-existing condition affecting his knees. The worker injured his left knee in November 2005 and again in December 2005. He applied to the Workers Compensation Board (WCB) which accepted responsibility for his knee injury up to January 12, 2006. However, the WCB determined that the worker’s problems beyond January 12, 2006 were due to his pre-existing condition. The worker appealed to Review Office which upheld the WCB’s decision. The worker then appealed to the Appeal Commission and a hearing was held on September 13, 2007.

Issue

Whether or not responsibility should be accepted for the worker’s left knee condition beyond January 12, 2006.

Decision

That responsibility should not be accepted for the worker’s left knee condition beyond January 12, 2006.

Decision: Unanimous

Background

On December 1, 2005, the worker filed a claim with the WCB for an injury to his left knee that he related to two specific incidents. On November 21, 2005 he slipped on ice and landed onto his wrist and hurt his shoulder. His knee started to hurt a couple of days later. On December 1, 2005, the worker felt something pop in his left knee when he wheeled a cart full of chicken into a cooler.

When speaking with a WCB adjudicator on February 1, 2006, the worker stated that he injured his left knee at work on November 21, 2005 and filed a claim for that injury. He said the claim was accepted for his left wrist and shoulder but not for his left knee. The worker related his current left knee difficulties to the November 21, 2005 accident as his knee had been getting worse since then. Then, on December 1, 2005, he turned to walk into a cooler while pulling product when his knee popped out and swelled. He said his chiropractor told him that he probably pulled a ligament in his knee when he fell on November 21, 2005.

Initial medical reports showed that the worker was treated on December 1, 2005 for knee pain. The physician noted that the worker “slipped on the ice several days ago, but there had not been any pain for several days. Was not able to keep his appt. with Ortho last year”. Examination of the knee showed mild effusion, no articular line tenderness, McMurray’s was negative and ligaments were intact.

X-rays of the left knee dated December 2, 2005 revealed “…an intra-articular joint effusion. Degenerative changes of the patella are noted. There is slight spurring of the medial tibial plateau also but the joint spaces are preserved. No loose body, fracture or other abnormality is identified.”

On December 13, 2005, the treating chiropractor diagnosed the worker with a left medial meniscus/medial collateral ligament sprain.

The worker was treated again by his physician on January 12, 2006. Objective findings were reported as “Knees NAD. No effusion. Ligaments intact.”

On February 21, 2006, the WCB accepted responsibility for the worker’s left knee strain and approved six weeks of chiropractic treatment to January 12, 2006. Any difficulties experienced by the worker beyond that date were considered by the WCB to be solely attributed to his pre-existing condition affecting his knees.

The worker underwent a left knee MRI examination on November 7, 2006. On January 29, 2007, the worker was advised that the MRI findings did not change the decision that was made on February 21, 2006. The worker disagreed with the decision and appealed to the Review Office.

On April 20, 2007, Review Office confirmed the case manager’s decision that no responsibility would be accepted for the worker’s left knee problems beyond January 12, 2006. Review Office’s position was that the worker had recovered from his left knee condition based on the attending physician’s examination findings dated January 12, 2006. On June 7, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Worker’s Position

The worker attended the hearing with his spouse. He described the work incidents which occurred on November 21, 2005 and December 1, 2005. He believes his current condition was caused by these incidents. He also noted that he had worked for the employer for 20 years. He said that his work had caused wear and tear of his knees. He advised that he is a truck driver and climbs in and out of the cab and back of the truck all day long. He carries heavy boxes up and down stairs. He noted that carpal tunnel which is caused by repetition can be covered by WCB and submitted that wear and tear of his knees should also be covered. He advised that he does not play sports or engage in other activities that could wreck his knees.

The worker advised that he was referred to an orthopedic surgeon, three years before the accident, because his knees were aching. He explained that he cancelled this appointment with the orthopedic surgeon for family reasons and did not see the orthopedic surgeon.

The worker advised that he requires surgery but is awaiting the outcome of his appeal before proceeding with the surgery. He has not missed time from work due to the injury but expects to miss time due to the surgery.

Employer’s Position

The employer was represented by an advocate who made a submission on behalf of the employer. The employer representative advised that the employer was supportive of acceptance of the worker’s claim. However, she indicated that the employer agreed with the WCB and Review Office that the injury was an aggravation of the worker’s well defined pre-existing condition which had resolved.

Relevant 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.

The WCB Board of Directors has made WCB Policy No. 44.10.20.10, Pre-existing Conditions, which sets out the circumstances when the WCB will accept responsibility for an injury involving a pre-existing condition. Generally the WCB will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.”


Analysis

The issue before the panel was whether responsibility should be accepted for the worker’s left knee difficulties beyond January 12, 2006. For this appeal to be successful, the panel must find that the worker’s symptoms after January 12, 2006 are related to the 2005 workplace injury or alternatively that the worker’s pre-existing condition was aggravated by the 2005 incidents and that the aggravation continued beyond January 12, 2006. The panel was not able to make this determination.

The panel finds, on a balance of probabilities, that the worker recovered from the workplace injury, which was accepted as a strain, as of January 12, 2006, and that any ongoing symptoms were solely related to his pre-existing knee condition. In making this decision, the panel relies upon the following evidence:

  • on January 12, 2006 the attending physician reported “No effusion. Ligaments intact.” The findings indicated that the worker had recovered from the injury.

  • the worker has long standing symptoms affecting his knees. He was initially referred to an orthopedic surgeon approximately three years prior to the 2005 workplace injury but did not attend the appointment with the orthopedic surgeon.

  • the worker has a pre-existing condition affecting his knees. Regarding the worker’s left knee, a November 2006 MRI noted that the worker has chondromalacia and a degenerative type tear involving the anterior horn of the medial meniscus. Both these conditions are degenerative and would not arise from the 2005 incidents.

At the hearing, the worker submitted that his knees have suffered from wear and tear as a result of 20 years of employment and asked that responsibility be accepted for the degenerative condition in his knees. The panel finds that the evidence does not establish a relationship between the degenerative condition and the worker’s employment.

The worker’s appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 3rd day of October, 2007

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