Decision #122/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee injury that occurred in the workplace on July 3, 2002. The WCB accepted the claim and wage loss benefits were paid to the worker to January 5, 2004 when it was concluded by primary adjudication that the worker’s ongoing knee complaints were related to multiple pre-existing conditions and not to the compensable injury. This decision was confirmed by Review Office on two occasions. The worker disagreed with the decision and an application to appeal was filed by a worker advisor, acting on the worker’s behalf. A hearing was held on August 21, 2008 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond January 5, 2004.Decision
That the worker is entitled to wage loss benefits beyond January 5, 2004.Decision: Unanimous
Background
On July 3, 2002, the worker twisted her right knee at work when she was ascending a flight of stairs while carrying a load of laundry. She was taken by ambulance to a hospital where she was diagnosed with a possible ligament injury. On July 4, 2002, the worker returned to the hospital for treatment of her knee and the diagnosis rendered was a possible lateral femoral condylar fracture. X-rays of the right knee, however, revealed no fracture or dislocation.
As the worker continued to complain of right knee pain, arrangements were made for her to be examined by a WCB medical advisor on August 26, 2002. It was noted at the examination that the worker suffered from morbid obesity and had a history of arthritic pain of the right hip and probably some degenerative chondromalacia and/or some minor osteoarthritis of both knees sometime prior to her compensable claim. The medical advisor opined that it was quite possible that the worker enhanced any pre-existing degenerative changes to her right knee at the time of her compensable claim. He said it was possible that the worker damaged the medial meniscal area.
In an October 7, 2002 report, an orthopaedic specialist opined that the worker may be suffering from a torn cartilage of the knee and that he was awaiting the results of an MRI assessment.
An MRI of the right knee was taken on October 23, 2002 and the following findings were reported:
- Pre-patellar bursitis;
- Moderate to severe chondromalacia patella; and
- A horizontal cleavage tear lateral meniscus complicated by an intrameniscal cyst.
The worker was seen by an orthopaedic surgeon on November 8, 2002 and he commented:
“…The bulk of her discomfort appears to be in the anterolateral joint-line region which would be consistent with the cleavage tear of the lateral meniscus and intrameniscal cyst. She also has significant chondromalacia patella, moderate to severe and this could certainly be a factor in producing pain with climbing up and down stairs and mobilizing after having been seated for any length of time. Her general condition is such that I would be somewhat hesitant to consider her immediately for any arthroscopic decompression of this meniscal tear…I have discussed with her that there could be no guarantee that following surgical treatment of her meniscal tear that this would have any bearing whatsoever on the pain that she experiences climbing up and down stairs and mobilizing from a seated position…I thought it would be appropriate to try her on some anti-inflammatories and review her in a month in the hopes that some of these complaints will at least start to abate.”
On December 6, 2002, the worker was seen again by the orthopaedic surgeon. He noted the MRI results of October 23, 2002. He commented “The bulk of her pain does appear to be lateral joint line, but I am somewhat reluctant to consider this for an arthroscopic assessment at this point… If she continues to have symptoms, particularly laterally, she may well have to be considered for an arthroscopic decompression of the lateral meniscal tear. Recognizing however, that some portion of her pain may well be coming from the patellofemoral component which would not likely respond favorably.”
In a hand written note dated March 27, 2003, the orthopaedic surgeon reported that the worker had been recovering from cellulitis and that it was in the same knee as her meniscal tear. He reported that the combination renders the worker unable to do her normal work related duties.
On June 11, 2003, the orthopaedic surgeon indicated that the worker’s cellulitis was now under control and that weight bearing x-rays showed moderate osteoarthritis.
The case was reviewed by a WCB medical advisor on June 16, 2003 at the request of primary adjudication. In his opinion, the pre-existing findings in the worker’s right knee had not been enhanced or accelerated as a result of her compensable injury as “…injury appears to have produced new injury i.e. lateral meniscus tear.”
In a July 16, 2003 decision, the worker was advised that wage loss benefits would be paid to January 5, 2004 inclusive and final. The case manager noted that the worker had several pre-existing medical conditions. Although she had been diagnosed with a torn meniscus as related to her work injury, the surgeon chose not to perform a repair due to these pre-existing medical conditions. “Should surgery have been performed, it would be expected that recovery would occur within a 12 week time frame. As such, we have contacted the surgeon’s office and been advised that currently, bookings for surgeries are taking place for October 2003. I have therefore calculated 12 weeks from mid-October 2003.”
On September 26, 2003, the worker appealed the decision to Review Office. It was the worker’s position that the pre-existing conditions had no bearing on the surgeon’s decision not to operate. She felt the decision was based on his comment that he was not confident the operation would be beneficial because there was no guaranties the operation would be successful.
On November 19, 2003, Review Office confirmed the case manager’s decision that the worker was not entitled to wage loss benefits beyond January 5, 2004. Review Office indicated that it was clear that the second orthopaedic specialist was indicating that he did not feel there was a high likelihood of success with the knee surgery due to the numerous non-compensable pre-existing conditions evident on file. The specialist’s opinion was that these numerous conditions would undermine any potential success with the surgery and, in fact, in numerous pieces of correspondence, the orthopedist has explained that the pre-existing conditions in the worker’s knee were still going to be causing pain and problems in handling stairs regardless of the meniscus surgery.
The next medical report is dated February 15, 2006. The physician reported that the worker was seen on a number of occasions between October 2003 and January 2006. He noted that the worker had no significant improvement in her knee pain and he believed her problems related largely to the 2002 original compensable injury.
On June 20, 2007, the worker asked the WCB to re-open her claim as she was still having knee pain. This led to the WCB requesting medical information from the treating physician. In a report dated September 13, 2007, the physician stated the following:
“Further to my report of February 15, 2006, [the worker] has made 14 visits to the office since that time. Some of these have been in relation to other medical problems, but on many occasions she complains about her knee. Her most recent visit was on August 15, 2007, at which time the examination of her knee was unchanged; that is, it is tender and there is reduced range of motion. No further investigations have been performed on her knee. The current diagnosis is osteoarthritis. I still believe most of her knee problems were as a result of her 2002 injury.”
On September 20, 2007, the worker advised a WCB adjudicator that she had lots of pain in her knee and hips. She was taking two types of medication for pain but nothing was helping her. She walked with a cane and a knee brace and had homecare to assist her. The worker indicated that she has not worked since the accident. The worker noted that the surgeon did not want to operate on her knee back then because of blood clots and this was still an issue to date. She advised that her meniscus was completely gone and her knee cap was rubbing on bone.
On January 8, 2008, a WCB adjudicator advised the worker that case management was unable to take further action on her case as a decision had already been reached by Review Office. It was suggested that the worker contact the Worker Advisor Office to assist her with her appeal.
On April 4, 2008, a worker advisor asked Review Office to reconsider its decision of November 19, 2003. The worker advisor argued that the worker had not recovered from the effects of her compensable accident, a torn lateral meniscus, and that the worker incurred a loss of earning capacity beyond January 5, 2004. He noted that since there had been no surgery to correct the injury, the injury currently remained a compensable condition. In support of his position, the worker advisor relied on the evidence provided by the worker’s physician dated March 31, 2008 and WCB Policy 44.10.20.10, Pre-existing Conditions.
In an April 23, 2008 decision, Review Office confirmed that the worker was not entitled to wage loss benefits beyond January 5, 2004. Review Office was of the opinion that the MRI findings of moderate to severe chondromalacia, taking into consideration the worker’s obesity, which places tremendous stress on the knee, support that the worker’s current subjective complaints of pain are related to the pre-existing chondromalacia and obesity as opposed to the meniscus tear. With regard to the worker advisor requesting consideration of the WCB’s policy on pre-existing conditions, Review Office noted that the worker received coverage for the meniscal tear for a year and a half. On April 29, 2008, the worker advisor appealed Review Office’s decision and a hearing was arranged.
Reasons
Worker’s submission:
The worker was represented by a worker advisor at the hearing. The position put forward on behalf of the worker was that benefits remain payable so long as a loss of earning capacity continues to exist as a result of the compensable accident. In this case, the weight of the evidence currently on file does support that the injury is contributing to the worker’s loss of earning capacity. It was noted that there are no medical opinions from any physician to support that the worker has recovered from the effects of her compensable injury. At the start of the claim, the WCB medical advisor conducted an examination on August 26, 2002 and opined that it was quite possible that the worker enhanced any pre-existing degenerative changes to her right knee and that the medial meniscal area was damaged. The most recent medical report is from the worker’s physician dated March 31, 2008. This report continues to provide medical support that the worker’s diagnosis remains a torn lateral meniscus and osteoarthritis and that there is a continued relationship between the worker’s current problems and her compensable accident of July 3, 2002. As this opinion is no different than the medical opinion of the WCB medical advisor at the beginning of the claim, benefits should still be payable. The compensable accident continues to play a material role in the worker’s current loss of earning capacity and pursuant to Policy 44.10.20.10, the WCB is responsible for the full injurious result of the accident.
Employer’s submission:
An advocate on behalf of the employer was present at the hearing and the decision of the Review Office was supported. The length of expected recovery time post surgery would have been 12 weeks and this was an appropriate amount of time for wage loss benefits. The evidence on file clearly indicates that the worker’s significant pre-existing conditions of severe chrondromalacia, an intrameniscal cyst and pre-patellar bursitis were the cause of any ongoing symptoms after January 2004. The orthopedic surgeon indicated that a large component of the worker’s pain and functional disability were due to her pre-existing conditions and even with surgery, her pain and function limitations would likely remain the same. The WCB provided coverage for a year and a half for the meniscal tear and on a balance of probabilities, the ongoing symptoms were more likely related to the pre-existing conditions.
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 44.10.20.10 Pre-Existing Conditions (the “Policy”) deals with adjudication of claims where a worker has a medical condition that existed prior to the compensable injury. The Policy states:
1. Wage Loss Eligibility
a. 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 Workers Compensation Board will accept responsibility for the full injurious result of the accident.
b. Where a worker has:
1. recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2. the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and
3. the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker’s inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.
Analysis:
To find that the worker is entitled to benefits beyond January 5, 2004, we must find on a balance of probabilities that the worker continues to suffer a loss of earning capacity as a result of her compensable injury. We are able to make that finding. In the panel’s opinion, the July 3, 2002 injury permanently enhanced the worker’s pre-existing condition and continues to impair her earning capacity.
At the hearing, the worker’s evidence was that prior to the accident, her knee was “good.” In the pre-accident period, she was able to maintain employment as a nursing aid, a security guard and a cook. At the time of her accident, she was working full time in a nursing home where she was required to go up and down a flight of stairs to bring up laundry. She was able to perform these duties until she twisted her knee on July 3, 2002.
Although the emergency/outpatient report from the hospital documents “history of knee problems”, file material shows no indication that prior to the accident, the worker was missing time from work or receiving medical treatment for her right knee. As noted earlier, at the hearing, the worker advised that her knee was not causing her any problems at work. It would appear that prior to the accident, the worker’s right knee was functional and that she had no significant problems with her knee which would affect her earning capacity.
Although the worker had no significant problems with her knee before the accident, the MRI performed October 18, 2002 indicates that degenerative changes were occurring. The MRI revealed that she had pre-patellar bursitis and moderate to severe chrondromalacia. The panel therefore finds that the worker had pre-existing degenerative changes in her right knee which were not yet symptomatic prior to the accident.
In addition to the degenerative changes, the MRI revealed that the worker had a horizontal cleavage tear to her lateral meniscus, complicated by an intrameniscal cyst. On the day of the accident, the worker describes “twisting her knee” when carrying laundry up the stairs. The mechanism of injury is consistent with the finding of a tear to the lateral meniscus and the panel finds, on a balance of probabilities, that the worker suffered the meniscal tear while she was working on July 3, 2002.
As pointed out by the worker advisor, both the WCB medical advisor and the worker’s treating physician have opined that as a result of the tear, the worker has suffered an enhancement of her pre-existing condition. The August 26, 2002 examination notes of the WCB medical advisor state: “It is quite possible that the claimant enhanced any pre-existing degenerative changes to her right knee at the time of her compensable claim. It is possible that she did damage to the medial meniscal area.” The March 31, 2008 report of the treating physician states: “I believe that there is a relationship between her compensable accident on July 3, 2002 and her present problem.” He goes on to state: “I believe on the balance of probabilities that the accident of 2002 enhanced her pre-existing knee problems…I do not believe she has recovered from the compensable accident of July 3, 2002.” The panel accepts these reports and finds that the worker’s pre-existing right knee condition has been enhanced as a result of the workplace injury.
Our findings are supported by the evidence given by the worker at the hearing as to the location of the pain in her knee. The worker indicated that she continues to experience pain on the outer and inner edges of her kneecap. When questioned about whether she has pain under her knee cap (which would suggest that the pre-existing chondromalacia is the primary cause for her knee difficulties), the worker stated that she has a little bit of pain under her knee-cap but that the biggest problem is the pain on the sides of her knee.
The report of the orthopaedic surgeon dated November 8, 2002 confirms that the bulk of the worker’s discomfort appears to be in the anterolateral joint-line region and that the location of the pain would be consistent with a cleavage tear of the lateral meniscus.
As surgery is not recommended for the worker (due to non-compensable reasons), the meniscal tear remains unrepaired and, in the panel’s opinion, the tear is a contributing factor to the worker’s ongoing difficulties with her right knee.
In the circumstances, the Policy is applicable. According to the Policy, where the loss of earning capacity is caused in part by the compensable accident and in part by a non compensable pre-existing condition, or a relationship between them, the WCB will accept responsibility for the full injurious result. As the tear to the lateral meniscus in the worker’s right knee remains a contributing factor, to a material degree, to her impaired earning capacity, the panel finds that the worker is entitled to wage loss benefits beyond January 5, 2004. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of September, 2008