Decision #21/08 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on December 12, 2007, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this case on the same day.
Issue
Whether or not the worker is entitled to benefits beyond February 28, 2007.
Decision
That the worker is entitled to benefits beyond February 28, 2007.
Decision: Unanimous
Background
While employed as a gas bar attendant on April 28, 2006, the worker turned to acknowledge a customer. He experienced a popping sensation in his knee, and felt that it had been dislocated. He manipulated his leg into a straightened position and completed his shift, although he was in extreme pain. The worker did not immediately seek medical treatment. He continued to work for eight weeks, when he was permanently laid off as a result of his inability to perform his duties.
The worker first attended upon his family physician on May 4, 2006 complaining of right knee pain. In a report dated August 21, 2006 the family physician diagnosed the worker with right knee osteoarthritis and a possible medial meniscus tear.
An MRI assessment on August 31, 2006 showed the following findings:
- Extensive degenerative changes throughout the knee;
- An acute chondral injury within the lateral femoral condyle without evidence of marrow change; and
- A tear of the medial meniscus.
On September 14, 2006, the WCB accepted responsibility for the worker’s claim and wage loss benefits were paid to the worker commencing June 24, 2006.
An orthopaedic specialist examined the worker’s knee on October 6, 2006 and determined that the worker had suffered an aggravation of his pre-existing osteoarthritic knee. He felt that surgery was not indicated.
On November 6, 2006, a WCB medical advisor commented that the worker’s medial meniscal tear was a work related compensable injury. He said the worker’s pre-existing knee condition of osteoarthritis was delaying the worker’s recovery, and that the worker was suffering from the combined effect of all three complaints.
On December 14, 2006, the orthopaedic specialist again examined the worker and referred him to a joint replacement specialist.
The file was reviewed by a WCB senior medical advisor on February 8, 2007, who noted that the function would not be restored by a conventional meniscectomy as a result of the worker’s pre-existing condition. In his opinion that condition necessitated a total knee replacement without which the worker would be unlikely to work in the future.
In a decision dated February 21, 2007, the worker was advised that his wage loss benefits would not be paid beyond February 28, 2007. The case manager had determined that the treatment and time loss incurred by the worker related solely to the pre-existing degenerative changes in his knee and that a combined effect, as outlined in policy 44.10.20.10, Pre-Existing Conditions, no longer existed. She found there to be no evidence that the compensable injury had either accelerated or enhanced the pre-existing condition.
On July 31, 2007, a worker advisor appealed this decision to Review Office, arguing that the case manager had misapplied Policy 44.10.20.10 Pre-Existing Conditions. He noted that the WCB had accepted that the meniscal tear to the right knee was a work related event that would likely require surgery. He relied upon the WCB medical consultant’s finding that it was not possible to separate the effects of the three conditions involved in the right knee. He argued that the WCB ought to accept responsibility for the full effect of the injury where the worker’s loss of earning capacity was caused in part by a compensable injury and in part by a non-compensable pre-existing condition.
Prior to considering the worker advisor’s appeal, Review Office obtained an opinion from a WCB orthopedic consultant that the worker had suffered a tear of the medial meniscus in addition to the extensive pre-existing degenerative changes involving all the compartments of the knee joint. He concluded that the ongoing symptoms and the need for a total knee replacement was as a result of the worker’s pre-existing condition and not the simple torn meniscus.
On September 20, 2007, Review Office determined that the worker was not entitled to benefits after February 28, 2007. Review Office relied upon the September 13, 2007, opinion of the WCB orthopaedic consultant that the total knee replacement was related to osteoarthritic changes rather than to the meniscal injury.
On September 27, 2007, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.
Reasons
The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker responded to questions from the panel. The employer did not attend the hearing.
The issue on this appeal is whether the worker is entitled to benefits beyond February 28, 2007. Compensation will be paid by the WCB pursuant to subsection 4(2) of The Workers Compensation Act (“the Act”) where a worker suffers a loss of earning capacity as a result of a workplace accident.
For the worker’s appeal to be successful, the panel must be satisfied that the worker’s ongoing loss of earning capacity is related to the workplace accident of April 28, 2006. After considering all of the evidence the panel is satisfied on a balance of probabilities that the worker’s ongoing symptoms are causally related to the workplace accident and are preventing him from returning to work. In making these findings we have considered the provisions of Policy 44.10.20.10, Pre-Existing Conditions. The Policy provides that 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 the responsibility for the full injurious result of the accident. Where however the workplace injury is no longer contributing to a material degree to the worker’s loss of earning capacity and the non-compensable pre-existing condition has not been enhanced by the workplace injury, the WCB will not pay further wage loss benefits.
The medical evidence before this panel is that the worker suffers from non-compensable pre-existing osteoarthritis in his right knee. Despite this pre-existing condition, the worker was able to work at his job without symptoms up to the date of his accident. At the hearing the worker testified that prior to the accident he considered himself to be a strong person and was capable of performing his job duties. Subsequent to the accident he experienced considerable pain and his mobility was immediately affected. While he continued in his employment for a period of eight weeks, he had and continues to have, difficulty with bending and is able to walk only short distances. He is no longer able to coach his young son’s football and baseball teams as he once did. In response to questions from the panel the worker denied having sustained any prior acute injury to his knee, or having any time loss from work.
The medical evidence supports the conclusion that the workplace injury has contributed to a material degree to the worker’s loss of earning capacity. There is no medical evidence to suggest that the worker has recovered from the effects of the medial meniscus tear, only that surgery will not resolve the worker’s current condition given the need for a total knee replacement. A WCB medical advisor expressed the opinion on November 6, 2006, that the worker was suffering from the combined effect of the compensable injury and the pre-existing condition. A second WCB medical advisor concluded on January 29, 2007, that while the worker’s inability to work was primarily due to the osteoarthritis “we may be looking at combined effect”.
In all of the circumstances, we are satisfied on the balance of probabilities that the worker’s loss of earning capacity is caused in part by the compensable accident and in part by his pre-existing osteoarthritic condition. What was once an asymptomatic condition which required no medical treatment was aggravated by the workplace injury, and the combined effect has caused the worker significant discomfort and disability.
Accordingly, the worker’s appeal is accepted.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 6th day of February, 2008