Decision #152/07 - Type: Workers Compensation
Preamble
On July 20, 2005, the worker filed a claim with the Workers Compensation Board (WCB) for a left knee injury that occurred on July 6, 2005. The WCB accepted the claim and the worker was paid benefits up until the time that his orthopaedic specialist found that he was fit to return to his pre-accident duties on January 2, 2006. The worker disagreed with the decision and appealed to the Review Office. On July 6, 2006, Review Office determined that the worker had recovered from his compensable injury. This decision was appealed by a worker advisor and a hearing took place on September 12, 2007. The panel then discussed the case on September 12, 2007 and again on October 10, 2007.Issue
Whether or not the worker is entitled to benefits beyond January 2, 2006.Decision
That the worker is not entitled to benefits beyond January 2, 2006.Decision: Unanimous
Background
The worker filed a claim with the WCB for a left knee injury that occurred on July 6, 2005. On this date, he was cleaning a crawl space when his left knee hit a rock and it bent outwards and his knee popped to the side. When seen for treatment on July 7, 2005, the family physician diagnosed the worker with a soft tissue injury/sprain of his left knee. Physiotherapy treatments were arranged.
On August 2, 2005, an employer representative advised the WCB that she thought the worker had some previous problems with his knee and had his knee cap “pop out before”.
On August 10, 2005, an orthopaedic specialist examined the worker’s knee and concluded that the diagnosis was a sprain of the left knee. At follow up visits on August 24, 2005, September 13, 2005, September 27, 2005 and November 3, 2005, the worker’s lateral left knee was injected with cortisone.
The worker was examined by a WCB medical advisor on October 31, 2005 due to the nature of his ongoing complaints and his inability to return to work. Based on the history and physical examination, the medical advisor concluded that the worker presented with non-specific left knee pain likely related to a soft tissue contusion. The examination was marked by the absence of soft tissue swelling, joint effusion or limited range of motion. Ligamentous structures appeared to be intact and there was no convincing evidence of a meniscal injury. He also stated the examination was marked by moderate pain behaviors and in his opinion, exaggeration of response to gentle palpation in certain areas of the left knee. The medical advisor thought the worker was not completely disabled from work and would be able to perform standing duties and avoid repetitive bending and crouching and walking on uneven surfaces.
An MRI of the left knee was done on November 24, 2005. The results showed no evidence of a meniscal tear.
When seen on December 6, 2005, the orthopaedic specialist stated the worker complained of ongoing pain in the lateral aspect of the left knee. The examination revealed that both hips and knees had full movements. There was slight pain over the lateral left knee joint line. The knee ligaments were stable and the worker could squat down on both legs. When seen on December 20, 2005, the specialist stated the worker still had pain in his lateral left knee and noted that the MRI assessment was normal. He stated the worker was fit to return to work on January 2, 2006 and was to continue with active exercises and ambulation.
On December 22, 2005, the case manager left a message on the worker’s voice mail that benefits would be paid to December 31, 2005 given that he was considered fit to return to work according to the orthopaedic specialist.
On January 10, 2006, the orthopaedic specialist diagnosed the worker with chondromalacia and synovitis of both knees. He advised the worker to live with his knee pain and reiterated that the worker could resume work on January 2, 2006.
On February 15, 2006, the worker advised the case manager that he had not returned to work due to continued difficulties related to his injury. He said he could not do anything with his leg as his knee kept giving out.
On February 15, 2006, the orthopaedic specialist noted that the worker complained of chronic pain in his left knee and had difficulty with climbing stairs. The specialist’s opinion was that the worker’s obesity was aggravating his left knee complaints.
In a medical note dated February 21, 2006, the family physician commented that the worker injured his left knee at the end of October 2005 and that his knee was still painful and he was unable to walk long distances. The worker was seeing a second orthopaedic specialist on June 1, 2006 and he was unable to work until that time.
In a letter dated March 2, 2006, the worker was informed by a WCB case manager that the findings provided by his physicians did not provide any information to substantiate that his current left knee difficulties were attributed to his compensable injury.
On May 25, 2006, the family physician assessed the worker’s condition as a loose left patella and possible chondromalacia. On May 29, 2006, the WCB case manager advised the worker that this report did not provide any additional information that would warrant a change to the decision of March 2, 2006.
The WCB then obtained a report from the second orthopaedic specialist whom the worker attended on June 1, 2006. The specialist outlined his view that the worker has traumatic chondromalacia of his left patella. The worker denied any previous problems with his left knee prior to the accident. The specialist recommended that the worker undergo an arthroscopic debridement given that he had a fair bit of mechanical symptoms.
On June 14, 2006, the case manager advised the worker that in the opinion of the WCB, his current disability was the result of an underlying or pre-existing condition, the progression of which was not enhanced or accelerated by the accident at work and that he had recovered from the compensable injury. Therefore no change would be made to the decision of March 2, 2006. On June 26, 2006, the worker appealed the decision to Review Office.
Prior to considering the worker’s appeal, Review Office sought medical advice from a WCB orthopaedic consultant. It was the consultant’s opinion that based on the mechanism of injury, the most probable diagnosis was patellofemoral pain. He further indicated that the diagnosis of traumatic chondromalacia was a speculative diagnosis based on the worker’s reported symptoms and had not been verified. He stated the worker’s current symptoms would not prevent him from performing his pre-accident duties.
On July 6, 2006, Review Office determined that the worker had recovered from his compensable injury. This decision was based on the opinion expressed by the WCB orthopaedic consultant and the fact that the examination findings by the attending practitioners and WCB medical advisor did not provide any objective findings to support that the worker had not recovered from his compensable accident. Review Office also felt that the diagnosis of bilateral knee synovitis and chondromalacia was not related to his compensable accident. On June 14, 2007, a worker advisor appealed the decision to the Appeal Commission and a hearing was requested.
In a report to the worker advisor dated August 9, 2007, the second orthopaedic specialist commented that the possible clinical diagnosis of traumatic chondromalacia of the patella was not confirmed at arthroscopic surgery carried out on June 12, 2007. He said the most likely diagnosis was patellofemoral pain in the worker’s left knee and that this pain could be directly related to the workplace injury if the worker had not been successful in strengthening his quadriceps muscles. Regarding disability, the specialist noted that an individual’s response to patellofemoral pain was highly variable and varied from individual to individual. The worker would generally be able to return to work as a security guard and would be capable of doing moderately heavy duties as a labourer if he was able to successfully strengthen his quadriceps muscles.
Following the hearing on September 12, 2007, the panel requested an update of the worker’s left knee medical status from the second orthopaedic specialist. A report from the specialist dated September 17, 2007 was received and was forwarded to the interested parties for comment. On October 10, 2007, the panel met to discuss the case and considered final comments from the worker advisor dated September 25, 2007.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. Subsection 39(2) of the Act provides that wage loss benefits are payable until the worker’s loss of earning capacity ends. The WCB determines when the loss of earning capacity ends based upon medical and other evidence.
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on behalf of the worker. The worker answered questions from his representative and the panel.
It was noted at the commencement of the hearing that the worker is appealing the WCB decision on another claim pertaining to his left knee that arose after this injury. The hearing on that claim followed this hearing.
The worker described his job duties at the time of the injury. He explained that he was employed removing mould and asbestos from basements, crawl spaces and confined spaces. He was required to put the material into bags which could weigh 150 to 200 pounds. On some days he would haul up to 200 bags of material. He described the accident in which he injured his left knee. He said he was in a crawl space on his knees hauling a bag of material when his left knee hit a rock. He stated that his knee “just popped and started rolling around” and that he had to hit his knee to get it back into place. He said there was an immediate stabbing feeling. His supervisor noticed that he had a problem and advised him to seek medical attention.
Regarding his current status, the worker advised that he has not recovered. He said his knee is the same as it was when he was injured. He advised that the arthroscopic surgery did not help. He indicated that his knee still swells up and that it gives out on him when he does activities like climbing stairs. He said that when he walks his knee gets loose. He described the exercises he has been given to strengthen his knee. His primary exercise is walking.
On the issue of returning to work, he said that he told the first orthopedic surgeon that he could go back to work because his financial situation was bad. The WCB benefits were not enough for him to support his family. He advised that he eventually found work as a flagman at a construction site but was only able to work for about one month. He has recently been looking for work.
The worker’s representative advised that the only diagnosis of the worker’s condition, after all the investigations, is patellofemoral pain. The worker advised that he never had a problem with his knee until the workplace injury occurred and that the pain is due to the workplace injury.
The representative submitted that the worker is left with an unstable left knee and that it is unclear what further treatment may provide success in recovery. He noted that the worker has attempted all of the exercises that have been suggested to him, but to no avail. He said the worker’s left knee continues to be unstable and cause pain. He stated that the worker needs to obtain proper extensive treatment to his quadriceps, which will hopefully lead to recovery.
Analysis
The issue before the panel is whether the worker is entitled to benefits beyond January 2, 2006. For the appeal to be successful, the panel must find that the worker continued to have symptoms and suffer a loss of earning capacity as a result of the workplace injury. In other words, the panel must find that the worker was unable to work as a result of the workplace injury. The panel is not able to make this finding.
The panel has considered all the evidence on file and provided at the hearing, including medical opinions and treatments, and the worker’s description of the accident and current symptoms. The panel finds, on a balance of probabilities, that the worker has recovered from the July 2005 workplace injury and that the worker is not entitled to further benefits.
In arriving at this conclusion the panel places significant weight on the following:
- an MRI scan done on November 24, 2005 showed no abnormalities and found no evidence of a meniscal tear.
- the first orthopedic specialist’s opinion noted in a progress report dated December 20, 2005 that the worker was able to return to work on January 2, 2006
- an arthroscopic examination conducted on June 12, 2007 that was entirely normal. The second orthopedic specialist who conducted the arthroscopic examination dismissed a diagnosis of traumatic chondromalacia of the patella. The operative report indicated:
“The patella was normal. The femoral trochlea was normal, the medial gutter was normal. The medial meniscus was visualized and was probed and was normal. The articular surfaces were normal. Anterior cruciate ligament normal. The lateral meniscus was visualized and probed and was normal, and the articular surfaces were normal.” The report also indicated that no abnormalities were noted in the patellofemoral joint.
- a report dated August 9, 2007 in which the second orthopedic specialist stated there is no confirmed diagnosis but that the likely clinical diagnosis is patellofemoral pain. He stated further that the worker would be able to return to work as a security guard and would be capable of doing moderately heavy duties as a labourer if he strengthened his quadriceps. In a report dated September 18, 2007 the specialist commented that he had no treatment recommendation other than an ongoing aggressive quadriceps strengthening program.
- the orthopedic consultant to Review Office indicated in a memo dated July 5, 2006 that the worker’s current symptoms would not prevent him from resuming his pre-accident duties as a labourer.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 14th day of November, 2007