The Appeal CommissionThe Workers Compensation Act of Manitoba

• When the worker was assessed in relation to the September 1984 knee injury, no ligamentous injuries were able to be verified and there was no fluid or inner joint pathology.
• The worker returned to his occupation and during 1989, had three injuries (left knee, left foot, and back strain) reported to the WCB. During the evaluation of these three individual injuries, there were no complaints of right knee disability or symptomatology.
• The arthrogram of January 14, 1991 which revealed a torn medial meniscus was not reported to the WCB as being related to a workplace injury.

In a decision to the worker dated April 9, 1992, the WCB adjudicator stated “…The orthopaedic consultant was of the opinion that there is no clinical evidence to support the assumption that the 1984 compensable injury had resulted in a tear of the medial meniscus. Also, the torn medial meniscus is diagnosed in the January 1991 arthrogram, and therefore cannot be related to the September 1991 compensable injury. As the objective medical evidence cannot relate the surgery to repair [the worker’s] medial meniscus tear to either the September 1984 or the September 1991 compensable injuries, the authorization to accept responsibility for this surgical procedure has been revoked.” The worker was further advised that the WCB considered him to have recovered from his September 9, 1991 compensable injury and that benefits would be paid to April 16, 1992 inclusive and final.

In April 1992, when his crew was called back to work, the worker returned to his regular seasonal duties with the accident employer. The proposed arthroscopic surgery was not performed.

1999:

On May 12, 1999, the worker twisted his right knee while getting out of a truck. When seen for treatment on May 14, 1999, the treating physician noted tenderness over the medial meniscus and swelling. His diagnosis was a torn medial meniscus. The worker was referred to a sports medicine clinic. On May 25, 1999, the worker was seen by a sports medicine physician, who noted tender medial joint line, small effusion and stable ligaments.

A right knee tunnel view x-ray was done on May 25, 1999. The radiological report indicated the following:

“There is no significant joint effusion. There is moderate degenerative narrowing identified affecting the medial joint compartment associated with marginal spurring. The lateral and patellofemoral compartments are relatively well preserved.”

On June 9, 1999, a third orthopaedic specialist’s examination findings of the worker’s knee revealed the following, “…He had a mild effusion in the right knee. His range of motion is full. He has an obvious ACL (anterior cruciate ligament) insufficiency with positive Lachman’s and at least a Grade I pivot shift. He has quite marked medial joint line tenderness. X-rays show some early medial compartment degenerative changes in this knee. This is a combination of unstable knee with probable mechanical symptomatology as well. He has had numerous episodes of this knee giving way both in and out of work. I think the treatment of choice would be to go ahead and scope the knee, deal with any intra-articular pathology, and carry out an ACL reconstruction to stabilize it. This unfortunately will not undo the medial compartment degenerative changes that are already present…”

On July 22, 1999, a WCB orthopaedic specialist reviewed the file and stated:

“The claimant was noted to have pre-existing degenerative joint disease primarily involving the medial compartment of the right knee on an x-ray reported May 25, 1999, 13 days after the CI of May 12, 1999. Historically, he would not appear to have sustained any major anterior cruciate ligament disruption or tear as he did not develop a major hemarthrosis within the knee joint.

The [orthopaedic specialist] notes on a subsequent examination dated June 9, 1999, only a grade I pivot shift. He was only off work for eight days apparently following this incident.

The claimant is also reported on review of the file to have had a tear of the medial meniscus noted on an arthrogram carried out January 14, 1991.

The CI of May 12, 1999 may have merely aggravated the pre-existing changes noted radiologically and/or the previous medial meniscus tear.”

In a decision dated August 23, 1999, the worker was advised that the WCB was accepting his 1999 claim but no responsibility would be accepted for a knee brace or the proposed surgery to his right knee as it was the WCB’s opinion that he suffered a temporary aggravation of his pre-existing right knee medial meniscus tear and degenerative joint disease.

On September 13, 1999, the worker questioned why the WCB was considering the tear in his right knee as pre-existing when it was present during his 1984 claim. He reported that he spoke with his treating physician and there was documentation in 1984 that he had a tear in his right knee. The worker advised that his union was taking a look at all his claims in helping him appeal the WCB’s decision not to accept responsibility for surgery.

On November 16, 1999, surgery was performed. The pre-operative diagnosis was “Anterior cruciate deficient unstable right knee”. The post-operative diagnosis was “The same, plus medial meniscus tear and medial compartment osteoarthritis”. In a follow up report dated November 22, 1999, the treating surgeon noted that the worker’s incisions were healing satisfactorily and that physiotherapy would soon commence.

Following his recovery from the surgery, the worker returned to his seasonal work with the accident employer. In 2003, the worker obtained full time permanent employment with the accident employer in a more physically demanding job. He stayed in this position until 2005.

2004:

In November 2004, the worker re-engaged contact with the WCB. He advised that his right knee was now “bone on bone” due to wear and tear from his first compensable injury. He indicated that his doctors were recommending a plastic knee.

Primary adjudication requested and obtained additional medical information. On December 3, 2004, the orthopaedic surgeon reported that the next time he saw the worker after November 22, 1999 was on August 30, 2000 when the worker had a further hyperextension injury when he was going down some stairs. When seen again on October 26, 2004 this was for the worker’s known chronic ACL insufficiency with reconstruction and underlying arthritic changes in the knee. The worker was having more medial joint pain. A weight-bearing AP x-ray showed that he had progression of the medial joint arthritis so that he was down to bone on bone contact. The surgeon further stated “By history he in fact had three major injuries to this knee, all work related, any of which could have resulted in his ACL insufficiency and subsequent degenerative changes in the knee. I suspect that his first injury which occurred back in the early 1980’s when he caught his leg in a culvert was probably the most likely culprit for the original ACL tear in his knee.” The specialist concluded that the worker would eventually require a full total knee replacement.

On March 18, 2005, a WCB medical advisor noted the opinion expressed by the orthopaedic surgeon that the 1984 claim resulted in the original right ACL tear. The medical advisor indicated that the history outlined in the orthopaedic specialist’s report of January 2, 1985 did not provide any evidence of ACL pathology (i.e. giving way). Instead, the claimant reported pain and swelling at the front of the right knee joint. The only finding on exam was apprehension on deep palpation of the undersurface of the right patella. The medical advisor also noted that the treating physician’s report of September 20, 1991 indicated that the worker had been complaining of right medial knee pain for a “few years”. Unless there were ongoing reports of right knee complaints made from the date of the 1984 compensable injury, he found it difficult to conclude the tear found on the January 14, 1991 arthrogram resulted from the 1984 accident.

In a report from the treating physician dated August 30, 2005, he stated there was no documentation of injury to the worker’s right knee from March 22, 1985 until October 22, 1990 when he again complained of pain. At that stage he was referred to an orthopaedic surgeon who carried out an arthrogram. The orthopaedic surgeon indicated that the worker complained of pain over the medial side of the right knee with locking and clicking. He did not express an opinion as to how this medial meniscal tear arose. The treating physician indicated “I still believe that his original injury on September 6, 1984 caused the meniscal tear.”

The worker provided the WCB with a report from the orthopaedic surgeon dated November 30, 1991. The orthopaedic surgeon stated, “I reviewed this gentleman on the 20^th of November 1991 regarding his right knee complaints. This gentleman’s history and physical findings certainly do suggest that he has a tear of the medial meniscus.”

On March 15, 2006, the WCB case manager indicated to the worker that the report of November 30, 1991 did not establish a link between a possible torn medial meniscus or an ACL rupture and his compensable injury in September 1984. Therefore no change would be made to the decision outlined on August 23, 1999.

On November 19, 2007, a total right knee replacement surgery was performed on the worker. A report dated February 22, 2008 from the orthopaedic surgeon indicated:

“[The worker] had several injuries to his right knee all work related. This resulted eventually in an ACL deficient unstable knee which went on to quite severe degenerative arthritis necessitating his knee replacement. His most recent x-rays taken of both knees prior to his knee arthroplasty revealed very arthritic right knee with essentially normal left knee. Therefore this is not just age related degenerative changes but in fact degenerative changes secondary to an ACL deficient unstable knee with recurrent injuries. The history that I have of this gentleman indicates that he’s never had a significant injury to his right knee outside of the workplace. The initiating injury was the fall into the culvert which I think is compatible with his subsequent ACL insufficiency.”

The case was again considered by primary adjudication on July 3, 2008. The case manager indicated that the WCB was unable to accept that the worker’s total knee replacement was related to the September 6, 1984 compensable injury. As a rationale for his decision, the case manager indicated that the WCB was unable to establish any continuity of treatment or complaint between 1985 and 1990. He noted that a WCB orthopaedic consultant reviewed the file on June 25, 2008 and stated, “the claimant was examined by an orthopaedic surgeon who found no evidence of internal derangement, either meniscus tear or cruciate ligament tear after the initial workplace injury of 1984”, and that “I have found no new medical information on further review of these files to change that opinion.”

On July 15, 2008, a worker advisor asked Review Office to reconsider the decisions made by primary adjudication. The worker advisor outlined his position that the medical evidence supported that on a balance of probabilities, the worker’s right knee condition developed as a result of his prior workplace injuries and would not have progressed to its current stage had it not been for his 1984 compensable injury.

A submission was forwarded to Review Office from the employer’s representative dated August 20, 2008. He outlined the position that the evidence failed to establish the necessary nexus between the need for a total knee replacement and the worker’s compensable injuries. The representative suggested that the orthopaedic specialist’s report of November 26, 1984 was the best evidence in terms of whether a tear of the meniscus or ACL emanated from the 1984 compensable injury. He indicated that although the most recent orthopaedic surgeon was supportive of a relationship, his initial involvement with the worker did not occur until almost 15 years post 1984 incident and his theories were not supported by the medical evidence gathered at that time and there appeared to be a degree of reliance on the self reporting of the worker.

On September 29, 2008, Review Office determined that the worker’s ACL insufficiency, medial meniscus tear and subsequent degenerative changes in the right knee which led to the 2007 right knee replacement were not the result of the compensable knee injuries from 1984, 1991 and 1999 and that the total right knee replacement was not the WCB’s responsibility. Review Office’s rationale was as follows: