The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on November 20, 2007 at the worker’s request.

Issue

Whether or not responsibility should be accepted for the worker’s right knee difficulties as being a consequence of the compensable left knee injury.

Decision

That no responsibility should be accepted for the worker’s right knee difficulties as being a consequence of the compensable left knee injury.

Decision: Unanimous

Background

The worker was employed as an industrial mechanic on March 5, 1997 when he injured his left knee in a work related accident. On August 8, 1997 an MRI examination revealed a horizontal cleavage tear and a parameniscal cyst involving the left medial meniscus. In November 1997, a left partial meniscectomy was performed. The claim for compensation was accepted by the WCB and the worker was paid various types of benefits.

On September 27, 2001, an orthopaedic specialist reported that the worker was experiencing similar symptoms with his right knee as he had with his left knee. The orthopaedic specialist noted that the worker was suffering from bilateral knee osteoarthritis. On April 17, 2002, a WCB medical advisor was asked to comment on whether there was a cause and effect relationship between the worker’s 1997 left knee injury and his right knee difficulties. The medical advisor replied, “Yes, in part due to the favoring as a result of CI [compensable injury] affected knee but also due to pre-x OA [pre-existing osteoarthritis] and ravages of age and time.”

On October 8, 2002, the worker underwent a cemented MIS unicompartmental left knee arthroplasty based on the diagnosis of left knee osteoarthritis.

In a follow-up report dated September 7, 2006, the treating orthopedic specialist reported that the worker was still having recurrent hemarthroses into his left knee and was requesting a total knee replacement. The worker also requested similar surgery for his right knee which he claimed had been bothering him increasingly over the last year.

On September 25, 2006, primary adjudication sought the medical advice of a WCB orthopaedic consultant as to whether there was a direct cause and effect relationship between the worker’s right knee complaints and the original compensable injury. On November 17, 2006, the orthopaedic specialist indicated that there was no cause and effect relationship between the worker’s right knee and left knee complaints. On November 21, 2006, the worker was advised that the WCB was not accepting responsibility for any treatment costs associated with his right knee difficulties.

In a letter to the WCB dated July 25, 2007, the worker stated that his right knee was quite bad and that a knee replacement was necessary. He said that it was his surgeon’s opinion that his right knee was compensating for his left knee difficulties. The appeal was then forwarded to Review Office for consideration.

In a decision dated August 30, 2007, Review Office confirmed that no responsibility can be accepted for the worker’s right knee difficulties in connection with his compensable left knee injury. Review Office stated that an opinion was solicited from the orthopaedic consultant to Review Office. “He commented that medial compartment arthritis is often bilateral in nature, and that there are little, if any, clinical findings or diagnostic investigations reported on file in regard to the worker’s right knee joint arthritis. It is his opinion that it has not been substantiated that the arthritis in the worker’s knee joint is a sequela of the problems that have been occurring in the left knee joint.” Review Office stated that based on all the available evidence, it was unable to accept, on a balance of probabilities, that the worker’s current right knee problems are predominantly attributable to the 1997 compensable left injury. The worker disagreed with the decision and appealed to the Appeal Commission. A hearing was arranged and held on November 20, 2007.

Following the hearing, the appeal panel requested and received additional medical information concerning the worker’s right knee condition. This information was forwarded to the worker for comment. On December 27, 2007, the panel met and rendered its final decision.

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

Section A of the policy provides in part that a further injury occurring subsequent to a compensable injury is compensable where the cause of the further injury is predominantly attributable to the compensable injury.

WCB Policy No. 44.10.20.10, Pre-existing Conditions, sets out the circumstances where 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.”

Worker’s Submission at Hearing

The worker provided the panel with a written submission which he read at the hearing. He stated that he believed the injury to his right knee occurred at the time of the compensable injury to his left knee, March 1997. He indicated that at the time, he was focused on his left knee as it was the most serious injury. He also referred to contributory environmental factors in the development of osteoarthritis such as 40 years working, walking and kneeling on concrete floors. He advised that he has also had pain in his right foot and hip which he attributed to 10 years of compensating for the left knee pain.

The worker reviewed numerous medical reports which confirmed that he had symptoms in his right knee including:

The worker also referred to 30 reports from his family physician which indicate area of injury as both knees. The first such note was provided in 1997.

In terms of remedies, the worker indicated there is no wage loss but that he wants the WCB to accept responsibility for his right knee replacement surgery.

Analysis

In response to the worker’s comments that his right knee problem may have occurred in the 1997 workplace accident or may be the result of 40 years of work, the panel confirmed that a claim for a separate right knee injury had not been made by the worker or dealt with by the WCB and could not be addressed by the panel. The panel also confirmed that it could not deal with his right foot and hip injuries as these have not been considered by the WCB Review Office.

The issue to be decided by the panel is whether the worker’s right knee difficulties are a consequence of the worker’s compensable left knee injury. The worker’s argument on this issue was that the right knee difficulties were caused by the use of his right knee to compensate for his injured left knee. For this appeal to be successful the panel must find that the right knee difficulties are predominantly attributable to the compensable left knee injury or that the pre-existing right knee condition was enhanced as a result of the compensable left knee injury. The panel was not able to make these findings.

The panel finds on a balance of probabilities that the worker’s right knee difficulties are due to degenerative changes and are not predominantly attributable to the compensable left knee injury. The panel acknowledges that at times the worker may have had a temporary aggravation of his right knee condition due to favouring his injured left knee, but finds, on a balance of probabilities, that this did not result in an enhancement of the right knee condition.

In arriving at this decision the panel notes there is significant evidence that the worker suffers from a degenerative condition affecting both knees, including:

• an x-ray report dated November 11, 1998 which indicates fractional narrowing at the medial compartment of both knees with tiny marginal osteophytes at the right medial compartment.
  
• an operative report by the worker’s surgeon, in September 2000, which notes a diagnosis of osteoarthritis in both knees.

The panel notes the January 1998 report from the worker’s surgeon which states that “his right knee symptoms at this time can be secondary to degenerative changes” and comments that this might be indirectly aggravated by using the right leg more. The panel notes that the surgeon also comments that the WCB may not be responsible for the right knee problem. In this regard the panel relies upon the opinion of a WCB medical advisor that the worker had not worked since March 1997 and therefore overuse of the right leg appears a highly unlikely cause. The medical advisor noted that the worker has pre-existing osteoarthritis which typically will be mildly symptomatic, periodically, life long. The panel further notes that this type of degenerative condition would be progressive in nature and would result in increasing symptoms over time.

On April 25, 2002 a WCB orthopaedic consultant also agreed with the WCB medical advisor’s opinion and stated “In my opinion there is no evidence that the workplace injury…has adversely affected the condition of osteoarthritis of the right knee joint.”

The panel also notes that a WCB orthopaedic consultant opined on September 25, 2006, that there was no causal relationship between the worker’s right knee problems and his left knee injury. As well, the orthopaedic consultant to the WCB Review Office commented in a memo dated August 28, 2007, that it has not been substantiated that the arthritis in the right knee joint is a sequelae of the problems that have been occurring in the left knee joint.

The panel finds that an occasional increase in symptoms of the worker’s right knee by extra use, does not meet the test of Policy 44.10.80.40 that the further injury must be predominantly attributable to the compensable injury and does not support a finding under Policy 44.10.20.10 that the right knee condition was enhanced.

Finally, the panel notes that an MRI performed on May 25, 1998 on the worker’s right knee showed a cleavage tear of the medical meniscus. The panel notes there was no reference to a right knee injury at the time of the accident, and finds, on a balance of probabilities, that the file evidence does not support a finding that this injury was predominantly attributable to the compensable injury.

The worker’s appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of February, 2008