Decision #10/08 - Type: Workers Compensation
Preamble
This appeal deals with the relationship between the worker’s current left knee condition and his compensable injury of November 21, 2005. Both primary adjudication and Review Office determined that the worker had recovered from the effects of his compensable injury and that he was not entitled to wage loss benefits beyond July 21, 2006. The worker disagreed and appealed to the Appeal Commission and a hearing took place on November 27, 2007.Issue
Whether or not the worker is entitled to benefits beyond July 21, 2006.Decision
That the worker is entitled to benefits beyond July 21, 2006.Decision: Unanimous
Background
On November 21, 2005, the worker was walking on a roof when he tripped on an extension cord and his left knee landed on a steel beam causing extreme pain. When seen for medical treatment on November 29, 2005, the first treating physician noted mild swelling overlying the left patella, tenderness over the medial patella area and no visible bruising. X-rays taken of the left knee revealed no fractures. The worker was diagnosed with a pre-patella bursitis and traumatic periostitis of the left knee. The WCB accepted the claim for compensation and benefits were paid accordingly.
On December 15, 2005, the worker was seen by a second physician with complaints of continued left knee discomfort. The physician’s examination findings revealed tenderness over the medial joint line with no abnormalities felt in that area. The worker’s knee was not red, hot or swollen and range of motion was reduced due to discomfort. The physician’s opinion was that the worker likely had a bruise over the medial side of his left knee and instructed the worker to take time off work between December 19 and 31, 2005 and to undergo physiotherapy.
At a follow-up visit with his doctor on January 3, 2006, the worker indicated his knee was still very painful and that four days previously his knee gave out on him when getting out of bed. A referral to an orthopaedic specialist was arranged.
In a report dated January 17, 2006, the orthopaedic specialist determined that the worker had signs of a grade 2 tear medial collateral ligament and a history that fit with a meniscus tear and possible signs of anterior cruciate disruption. An MRI exam later took place on February 28, 2006 and no abnormalities were identified.
On May 9, 2006, the orthopaedic specialist said he could not find objective abnormalities to the worker’s knee although he was starting to show early Sudeck’s onset with regional pain syndrome. A referral to a second orthopaedic specialist was arranged along with a referral to a physiotherapist for desensitization.
In a report dated June 21, 2006, the second orthopaedic specialist examined the worker’s knee and reviewed the results of a bone scan that was carried out on June 9, 2006. He summarized his opinion as “…this man has a 7 month history of severe and incapacitating pain with features suggestive to me of complex regional pain syndrome, or reflex sympathetic dystrophy. The swelling, erythema and skin changes are certainly objectively present to support this. Other softer signs are also present.” The specialist commented that the typical natural history for this condition can take months to recover. He instructed the worker to return to physiotherapy and to attend a pain clinic for possible pharmacological treatment of his condition.
Following consultation with a senior WCB medical advisor on July 12, 2006, the worker was advised by his WCB case manager that he was medically fit to return to his regular job and that benefits would be paid to July 21, 2006 inclusive and final. This decision was appealed by a worker advisor on the worker’s behalf. The worker contended that his duties as a labourer in the construction field required him to walk and stand for long periods of time, lift heavy objects and bend/twist. He felt that the orthopaedic report of June 21, 2006 supported that he was not capable of returning to these duties by July 21, 2006.
Arrangements were then made for the worker to be assessed by a WCB physical medicine and rehabilitation consultant (a physiatrist) on October 12, 2006. He concluded from his examination findings that the worker could return to his prior work duties without any restrictions. He stated:
“Presently, there were no objective findings; specifically there was no evidence of any swelling, heat, redness, change of sweating on examination. There was only the subjective report of sensitivity to touch reported by the claimant to a localized area inner knee. There was no clinical examination evidence or investigation to date to confirm the orthopaedic surgeon’s suggested diagnosis RSD or complex regional pain syndrome to explain his persistent subjective pain complaints. For the presented diagnosis the orthopaedic specialist suggested remobilization and reutilization; however, the claimant has not followed through with these, fearing injury…”.
On November 1, 2006, the WCB case manager advised the worker that he reviewed the report from the orthopaedic specialist dated June 21, 2006 and the report from the WCB consultant dated October 12, 2006 and would not be rescinding his original decision. The case manager was of the view that the worker had recovered from the effects of his compensable injury noting that there was no clinical evidence of RSD and that the consultant’s opinion was that he was fit to return to work without restrictions.
The worker’s left knee was assessed by a pain clinic physician on November 3, 2006. The worker’s condition was reported as follows:
“This patient appears to present with neuropathic pain of his left knee. Whether or not this neuropathic pain is part of an early CRPS or not, is really difficult to judge at the moment. Because of the territory of allodynia and hyperalgesia as well as the ankle pain, this pain may be associated with saphenous nerve injury. Today we did left subcutaneous saphenous nerve block…he had good pain relief of knee and ankle pain after the block. The patient was aware that this block was more diagnostic than part of a treatment…”
On January 24, 2007, the WCB physiatrist reviewed the pain clinic’s findings of November 2, 2006 and provided his opinion to primary adjudication.
In a letter dated February 13, 2007, the WCB case manager confirmed his decision that the worker had recovered from his accident and was able to return to his regular duties. He noted that it was still the opinion of the WCB physiatrist that “although a contusion to the inner knee can cause a saphenous neuropathy, symptoms are not consistent with this. There was a further opinion that on the balance of probability, no objective condition is present that would require any further treatment related to the claim, nor any identified to contraindicate a return to work.”
In a report dated April 16, 2007, the physician from the pain clinic stated the following:
“[The worker] was first assessed in the Pain Management Centre on November 2, 2006 for his left knee pain. … Since the first visit, the pain has been classically neuropathic in presentation. For now, it has been impossible to clearly make a diagnosis of Complex Regional Pain Syndrome, although the patient presents with sensory, motor and atrophic changes, which are all part of the criteria for CRPS. The main reason why a diagnosis of CRPS cannot be made for sure is that the pain has been consistently responding to subcutaneous saphenous nerve blocks. This shows that the pain is mainly discreet in distribution in comparison to what would be found in a CRPS presentation. A bone scan and a Nerve Conduction Study are pending to help us with the diagnosis...Restrictions are, from my point of view, related to pain induced by mobilization.”
On May 30, 2007, the WCB case manager advised all parties that the April 16, 2007 report was reviewed and considered by the WCB physiatrist and that no change would be made to the WCB’s decision that the worker had recovered from the effects of his compensable injury. On June 4, 2007, the worker advisor appealed the decision to Review Office.
In a June 21, 2007 decision, Review Office confirmed that the worker was not entitled to benefits after July 21, 2006. After reviewing the medical information on file, Review Office found no objective medical evidence to explain why the worker’s symptoms have continued to worsen since the workplace injury. It was of the opinion that the diagnoses of saphenous nerve injury, RSD and CRPS have not been medically established and were not causally related to the compensable injury. Review Office was further of the opinion that even though there was no objective evidence to support the diagnosis of a saphenous nerve injury, the WCB consultant’s opinion was that a saphenous nerve injury would not prevent the worker from performing his pre-accident duties. It noted that the pain clinic physician considered the worker limited in activities simply by reason of pain rather than any objective medical evidence.
On August 23, 2007, the worker advisor provided the Review Office with a report from a pain management director dated August 10, 2007 which was in support of the position that the worker’s current left knee difficulties prevented him from returning to his duties in the construction field.
In his letter to the worker advisor dated August 10, 2007, the pain management director stated that the worker satisfied certain diagnostic criteria for the diagnosis of CRPS. He further stated “The fact that we have “no objective medical evidence”, to further support the diagnosis of the complex regional pain syndrome, simply highlights the fact that there is a great deal of additional work that needs to be done to improve our understanding and management of this complex problem.”
On September 14, 2007, Review Office stated that no change would be made to the previous Review Office decision. It stated that the report from the pain management director failed to explain how the diagnosis of CRPS had been reached given the previous diagnosis of a saphenous nerve injury. The report also did not provide information or objective evidence to support a relationship between the worker’s current symptoms and the compensable injury. On September 28, 2007, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s Position
The worker was represented by a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.
The worker’s representative submitted that the worker’s ongoing left knee difficulties are causally related to the November 21, 2005 workplace injury and that the worker is not able to return to his duties as a construction worker.
The worker advised that he had no problem with his knee before the accident. He advised that he tripped and fell on his left knee, hitting the inside of the knee. He had extreme pain and his knee swelled up fast. After the accident he was sent by bus from the jobsite in Alberta to his home in Manitoba where he had to wait to see his doctor. He ultimately saw his doctor about a week later.
The worker described the treatments he received which included physiotherapy and medications. The worker advised that he was given a brace to wear but that it caused significant pain where it made contact with his knee. In answer to a question he stated that the medications he was prescribed to treat CRPS and RSD did not work and he is no longer taking them. He advised that he is currently seeing a pain specialist who has recommended more stretching and movement of the leg. He said the specialist has been injecting freezing into a nerve that actually stops the pain, albeit temporarily.
Regarding his current symptoms, the worker advised that he has swelling on the knee and bruising on the lower inside of his knee and down the leg to the inside of the ankle. He said the bruising is consistently in the same spots on his leg. He also said that he feels pain in the same spot that he injured in the accident.
The worker advised that he could not return to construction work and has found new employment as a maintenance person. He is working full-time but with some restrictions. He indicated that he earns less at the new job than he earned before the accident.
The worker’s representative stated that one of the treating pain specialists indicated that the worker satisfied the criteria for complex regional pain syndrome, but noted the worker’s evidence that the specialist is currently treating the worker’s saphenous nerve and that his condition is improving.
Analysis
The issue before the panel was whether the worker is entitled to benefits beyond July 21, 2006. For the worker to be entitled to benefits, the panel must find that the worker continued to suffer the effects of the workplace injury after this date. The panel has considered all the evidence, including the worker’s evidence at the hearing, and finds on a balance of probabilities that the worker is entitled to benefits beyond July 21, 2006.
The panel notes the worker’s evidence that he did not have any problems with his left knee prior to the injury. The panel also notes the worker’s evidence that the area of his knee that is currently symptomatic is the same area that he injured in the workplace accident. The panel has reviewed the medical reports on file and finds that the worker’s symptoms have been consistently and continuously reported to the WCB. The panel notes that on November 29, 2005, a physician found the worker had mild swelling of the left knee and tenderness over the medial patella and area. The worker’s family physician also noted the tenderness on the medial side of the left knee when examined on December 5, 2005. As well, various reports note swelling and bruising as described by the worker at the hearing.
While the WCB considered that the worker had recovered from the workplace injury, his treating physicians have opined that the worker may be suffering from CRPS, RSD or a saphenous nerve injury.
The panel notes the worker’s evidence that recent treatments have involved the injection of freezing into the nerve on the side of his knee. The worker has reported these treatments are effective in temporarily alleviating pain. This was confirmed in the April 16, 2007 report of a pain specialist who noted that the worker’s pain has been consistently responding to subcutaneous saphenous nerve blocks. The panel also notes the worker’s evidence that drug therapy related to CRPS and RSD, did not appear to be effective. The panel finds that it is most likely that the worker sustained an injury to his left saphenous nerve in the workplace accident which continues to be symptomatic. The panel finds that such an injury is consistent with the mechanism of injury noted on the file and described by the worker at the hearing.
Regarding the worker’s ability to return to work after July 21, 2006, the panel notes that the pain specialists were not recommending a return to work, and had expressed the view the worker’s pain level limited his ability to work. The panel notes that in 2007 the worker’s condition had improved to the point that he was able to find gainful employment and that he was employed at the time of the hearing. The evidence does disclose, however, that the worker did suffer a compensable loss of earnings beyond July 21, 2006.
The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 21st day of January, 2008