Decision #31/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee and back injury that occurred on September 28, 2005. The worker was paid wage loss benefits and services to January 2, 2008, when it was determined by primary adjudication and Review Office that there was no objective explanation for the worker’s subjective complaints of instability and pain in his right knee. The worker disagreed with the decision and an application to appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on January 29, 2009, to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond January 2, 2008.

Decision

That the worker is not entitled to wage loss benefits beyond January 2, 2008, but is entitled to certain medical aid benefits beyond January 2, 2008.

Decision: Unanimous

Background

On September 28, 2005, the worker injured his right knee and right low back in a work related accident when he slipped off the back of a work vehicle. Medical information showed that the worker’s back condition was diagnosed as a contusion to the right paraspinal area and a strain to the lumbar paraspinal muscles. An MRI of the right knee taken December 5, 2005, revealed a tear in the medial meniscus, a possible short segment tear posterior lateral meniscus and no evidence of an ACL tear. On February 20, 2006, the worker underwent right knee surgery and the post-operative diagnosis was meniscal tears of the medial and lateral right knee.

On March 22, 2006, the family physician reported that the worker’s right knee pain was worse now than it was with the initial injury. The knee was locking and it seemed like it was going to give out.

In a follow-up report dated April 6, 2006, the orthopaedic surgeon reported that the worker complained of medial pain in his knee. He commented that there were few findings on clinical examination. The worker had good range of motion, medial tenderness, no significant effusion and no evidence of infection. Weight bearing x-rays showed some early medial compartment narrowing without degenerative secondary changes.

A repeat MRI of the right knee taken April 27, 2006, revealed “Evidence of previous partial meniscectomy medially. A cleft in the posterior horn of the meniscus is noted, which is reminiscent in configuration to the cleft noted on the previous MRI. No other changes are observed.”

In a follow-up report dated May 31, 2006, the orthopaedic surgeon reported that the recent MRI revealed nothing particularly conclusive. His recommendation was to scope the knee again to try to improve the medial compartment.

The worker’s right knee was assessed by a second orthopaedic surgeon on August 21, 2006. He noted that the previous operative report described a complex meniscal tear which was appropriately resected and that the worker had some chondromalacia. Due to the worker’s persistent right knee pain, a second knee scope was recommended.

On September 25, 2006, the family physician reported that the worker had difficulty walking more than 15 minutes at a time and was unable to do any heavy lifting or carrying and had marked difficulty climbing stairs or ladders. The worker had been encouraged to increase his physical activity but riding a bicycle worsened his knee condition.

The worker underwent a second right knee surgery on November 17, 2006, which involved debridement of lateral femoral condyle and medial femoral condyle and partial medial meniscectomy. The post-operative diagnosis was mild chondromalacia and a small residual medial meniscal tear.

In November 2006 and January 2007, the family physician reported that the worker still complained of pain, cracking and locking of his right knee.

On February 27, 2007, a WCB medical advisor examined the worker’s knee and low back. With regard to the right knee, the medical advisor indicated that the cause of the worker’s ongoing knee symptoms was not readily apparent. The examination was essentially normal aside from diffuse medial knee tenderness and slight limitation of knee flexion. The cause of his reported lateral knee symptoms and feelings of instability was not apparent. The medical advisor stated there was a degree of pre-existing degenerative osteoarthrosis present at the right knee on both x-ray and at arthroscopy. Regarding the worker’s low back, the medical advisor noted some discomfort at end ranges of motion but the exam was unremarkable. The worker attributed his ongoing low back symptoms to his altered gait related to his right knee symptoms. The medical advisor outlined restrictions for a 12 month period pertaining to the worker’s knee and low back.

In May 2007, the worker commenced a work hardening program. A discharge report dated June 25, 2007, outlined the worker’s progress. It stated that the worker did not complete the program as he was discharged prior to completion because he was not participating and spent most of his time occupying a treatment room and sleeping with heat. The worker’s status at the end of the program was unchanged and he demonstrated a sedentary strength level.

On July 5, 2007, the first treating orthopaedic surgeon reported that he saw the worker and there was little new on physical examination. He indicated that the worker seemed to have “some sort of complex regional pain syndrome” which needed to be addressed.

The worker was assessed at the WCB’s offices on July 17, 2007. The WCB medical advisor stated, “The etiology of [the worker’s] ongoing reportedly severe and disabling right knee symptoms is not apparent. There were no specific abnormalities noted on examination other than those generated by limitations related to reported discomfort. Specifically the reduction in knee range of motion and discomfort reported on lateral collateral ligament stress reflect subjective symptoms but not objective abnormalities. Therefore, restrictions regarding the right knee are based on reported symptoms rather than any objective abnormalities found on exam. As previously suggested, restrictions would include avoiding prolonged standing and walking, avoiding stair and ladder climbing, and avoiding kneeling, squatting and crouching.”

The worker was interviewed at the WCB’s Pain Management Unit (“PMU”) on July 12, 2007. At a subsequent meeting held on August 28, 2007, it was determined by PMU that the worker did not meet the criteria for chronic pain syndrome and that he did not appear to be experiencing any Axis I disorder.

On November 22, 2007, a WCB orthopaedic consultant reviewed a surveillance videotape of the worker’s personal activities on July 12, 2007; July 17, 2007; September 11, 2007, and compared them to the worker’s reporting of right knee complaints at the time of his two WCB call-in examinations. He concluded that there was no evidence of residual loss of function arising out of the injury to the right knee joint of September 28, 2005, and that the restrictions outlined on July 17, 2007, were rescinded.

On December 3, 2007, a WCB case manager rescinded the worker’s restrictions and advised the worker that he was considered fit to resume full time regular work duties. The worker was then paid wage loss benefits to January 2, 2008, inclusive. On January 14, 2008, the worker appealed the decision to Review Office.

On February 6, 2008, Review Office confirmed that wage loss benefits and services should not be extended beyond January 2, 2008. Review Office noted that different physicians have indicated that the worker was using a cane in the wrong hand. Review Office felt that the video surveillance evidence was compelling and justified the decision rendered by the WCB case manager. It stated that the worker’s physical presentation to the WCB and the medical community was not in harmony with his physical presentation when he was involved in his personal activities. Review Office also agreed with the WCB medical advisor’s findings of July 17, 2007, that from a clinical objective point of view, the worker’s subjective complaints of pain were not in line with the imaging studies on file nor the physical exams and that there was no explanation for the worker’s ongoing complaints of pain and impaired function. This decision was again confirmed by Review Office on April 28, 2008. On August 8, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Worker’s submission:

The worker was assisted by a worker advisor who submitted that the worker has not recovered from his injury and that he has permanent compensable restrictions. It was submitted that far too much weight had been given by the WCB to the surveillance video that was taken in this case. While the panel may conclude that the worker is more functional at times than was indicated on his file, there was still evidence of a need for restrictions due to both the result of the surgeries and the subjective symptoms indicated by the worker. Regardless of the current level of function, restrictions would apply, given the state that the worker’s knee had been left in after the operations. These restrictions would prevent him from returning to his previous work and as a result, wage loss should still be payable to the worker. It was suggested that the WCB and the worker would have been better served by a work hardening plan which was not as intense from the start which would have allowed the worker to progress through conditioning that would have allowed him to resume his place as a productive member of the workforce.

Applicable Legislation:

Pursuant to Section 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.

Analysis:

The issue before the panel concerns the worker’s continuing entitlement to wage loss benefits and services. The WCB discontinued the worker’s benefits effective January 2, 2008. This was approximately 13 months after the worker’s second arthroscopic knee surgery. To find that the worker is entitled to wage loss benefits and services beyond January 2, 2008, we must find on a balance of probabilities that at that time, the worker continued to suffer a loss of earning capacity or require medical aid as a result of his compensable injuries.

The worker’s claim was accepted by the WCB based on a diagnosis of an injured right knee and a contusion/strain to right lower back. After reviewing the evidence as a whole, it is the panel’s decision that the right lower back injury has resolved and the worker is not entitled to any further wage loss benefits or services related to this injury. With respect to the worker’s right knee, the panel finds that the worker may continue to have restrictions related to his right knee, but these restrictions do not preclude the worker from earning income at his pre-accident wage rate in the same or similar occupation. As a result, the worker is not entitled to any further wage loss benefits related to this injury, although he may be entitled to some further medical aid.

At the hearing, the worker gave the following evidence:

  • He experiences varying degrees of pain in his right knee, which at the best of times would be about 3 on a scale of 10. On these days, he would be able to engage in some activity for a few hours at a time.
  • On bad days, the pain is 8/10 and he is required to take Tylenol #3. He will take 1-2 pills, which may or may not relieve the pain. He does not consistently achieve relief when taking the pills. He consumes 100 pills approximately every 3 months.
  • The worker’s sleep is disrupted by his knee pain and he takes a sleep aid at night.
  • The worker tries to stay active and performs work around the house including vacuuming, dishes, laundry, cooking, putting wood in the stove, and taking out the garbage. He can stand at his workbench and is able to bend down to get into his crawlspace (although he would not be bending or squatting for a prolonged period). He can supervise activity (for example, he supervised the rebuilding of his house and he is teaching his sons how to repair snowmobiles and quads) but he is limited from engaging much in the activity himself.
  • The type of activity the worker indicated he is able to do on his good days included cutting wood (for about 10 minutes at a time), running errands, and shopping for groceries.
  • The worker indicated that he would physically be able to maintain full-time employment in a sedentary position, so long as he had the ability to get up periodically and stretch. He noted, however, that he lacks the training to be able to obtain such a job.
  • He is able to drive, and is currently giving consideration to obtaining a Class 1 drivers license. He does not know, however, whether he would be able to drive for the whole day. The most he has driven is for 4 hours at a time.
  • At the present time, there is no further treatment or investigation of the knee condition being offered to the worker by his physician. He goes to his physician every three months for prescription refills and monitoring.

We have considered the worker’s activities recorded on video surveillance. The manner in which the worker walked and moved in the video does not appear consistent with the pain and disability described by the worker to the WCB medical advisors on the dates in question. Similarly, the length of time the worker spent in the stores and running errands suggested a significant degree of stamina and an ability to walk and remain ambulatory for several hours at a time. The panel acknowledges the worker’s explanation given at the hearing that between the time of his appointment on July 12, 2007, with the WCB medical advisor and his visit to the supermarket, he consumed two Tylenol #3 painkillers. As a result, the pain in his knee was masked while he was grocery shopping. The worker also explained that his physician had instructed him to avoid limping and to try to walk as normally as possible, because the right sided limp was causing strain to his left side. Even if we were to accept the worker’s explanation as it relates to the footage taken on July 12, 2007, we find that the three days of surveillance video as a whole, nevertheless, demonstrates an ability on the part of the worker to be mobile and functioning for several hours at a time.

Following the July 17, 2007, call-in examination, the WCB medical advisor expressed concerns that there were no specific objective abnormalities to support the worker’s complaints of pain and disability. The radiological, arthroscopic and exam-based evidence all indicated normal ligamentous structures at the right knee. The reduction in knee range of motion and discomfort reported by the worker reflected subjective symptoms but not objective abnormalities. The surveillance footage would seem supportive of these concerns. Even the family physician who provided a letter in support of the worker’s claim was not able to provide any clear clinical findings on knee pathology. It is notable that there are no plans for any further investigations or treatment of the worker’s knee.

The panel’s overall impression is that while the worker’s knee may not have been restored to its pre-accident condition, there is significant magnification of pain symptomatology. While there are undoubtedly underlying changes in the worker’s knee due to his surgery, we find that these changes are not disabling and there is no resulting impairment to the worker’s earning capacity. There may still be a need for compensable restrictions, but in the panel’s opinion, these restrictions should not prevent the worker from earning income comparable to his pre-accident wages. The evidence demonstrates that the worker is capable of a significant degree of activity.

As a result, it is the panel’s decision that there is no further entitlement to wage loss benefits beyond January 2, 2008. The underlying surgical changes, however, may nevertheless entail an ongoing need for medications related to pain control and sleep dysfunction. The panel finds that the worker is entitled to this medical aid retroactively back to January 2, 2008, and the WCB should continue to monitor any ongoing need for these medications.

The worker’s appeal is allowed in part.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of March, 2009

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