Decision #51/09 - Type: Workers Compensation
Preamble
On July 15, 2007, the worker sustained a work related injury to his right knee. On March 13, 2008, it was determined by initial adjudication and later by Review Office of the Workers Compensation Board (“WCB”) that the worker’s current right knee symptoms were not related to his original compensable injury. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on February 3, 2009 to consider the matter.
Following the hearing, the appeal panel requested additional information from the worker’s treating surgeon prior to discussing the case further. This information was later received and was forwarded to the interested parties for comment. On March 12, 2009, the panel met to render its final decision and considered final submissions from the worker advisor and the employer’s representative.
Issue
Whether or not the worker’s ongoing right knee problems are related to the compensable injury of July 15, 2007.Decision
That the worker’s ongoing right knee problems are not related to the compensable injury of July 15, 2007.Decision: Unanimous
Background
An Employer’s Accident Report dated July 17, 2007 indicated that the worker, while in the process of restraining an uncooperative individual on July 15, 2007, incurred a laceration to his right knee when his knee came in contact with a sharp object on the ground. The worker completed his shift and was expected to return back to his regular work duties by July 20, 2007.
On August 23, 2007, the worker sought treatment at a hospital facility and the following information was reported:
“Scraped knee a couple of weeks ago. Same has healed. But now some ongoing soreness, especially with bending down or kneeling. Pain is across the patella. No obvious swelling. Slight lump on the bone below the patella. Has had ligament injuries to the knee in past. Diagnosis patellofemoral syndrome.”
A right knee x-ray was performed on August 23, 2007. A small joint effusion was identified and no fracture or dislocation was seen.
The next report was from a physiotherapist who saw the worker on August 29, 2007. Subjective complaints included worsening right knee pain that was aggravated with stairs, kneeling and running. The physiotherapist’s diagnosis was right patellar contusion with associated patellofemoral symptoms.
A WCB adjudicator spoke with the worker by telephone on September 19, 2007. The worker indicated that he was attended to by a nurse and not a doctor when seen at the medical facility on August 23, 2007. He had a laceration wound which was cleaned. There were no stitches or x-rays taken. The worker indicated that the laceration to his knee started to heal but the pain never went away. He continued to perform his regular duties but had difficulties running up and down stairs, kneeling and weight bearing. He had no problems with walking. His symptoms got worse and he mentioned his difficulties to three co-workers and his supervisor who advised him to get his knee checked. He had no new accidents. The last time he went to the gym was April or May 2007 and did some training in April or May 2007. The worker reported that he had torn a tendon while in the army several years ago and had two other compensation claims for his right knee. The worker indicated that he was continuing with physiotherapy treatment and that his knee was 40% recovered but he still was unable to squat and had difficulty going up and down stairs.
The adjudicator advised the worker that his claim was initially accepted as a laceration to the right knee and that the diagnosis of patellofemoral syndrome was a pre-existing condition that was unrelated to the compensable injury. The adjudicator indicated to the worker that as he was not fully recovered from the incident, she would consider his claim as a strain to the right knee based on the mechanism of injury.
On October 16, 2007, the worker advised his adjudicator that he noticed significant improvement in his knee since attending physiotherapy. He had not missed time from work.
On November 15, 2007, the worker advised his adjudicator that he had not fully recovered from his July 15 accident. He continued to perform his work duties and was able to run and walk without much difficulty. On November 20, 2007 (later file information indicates that the actual date was November 10, 2007) he was playing basketball (in a non-work setting) and was running for about an hour when his knee started to hurt. He went home and iced his knee. The next day he called work to say he was not coming in because of knee symptoms. The adjudicator told the worker that the WCB was unable to accept responsibility for the time he missed from work, as he was not working when the new accident occurred and aggravated his knee condition. The worker was informed that the WCB would not accept further responsibility for any ongoing knee symptoms beyond the normal recovery period for a strained knee (i.e. four to six weeks) as the worker’s knee condition could now be due to a pre-existing condition. This decision was confirmed to the worker in writing on November 16, 2007.
In a report dated December 20, 2007, the treating physician reported that the worker had knee discomfort especially with crawling on his knees. The worker noticed swelling of the knee and did not think it really locked on him. There was no giving way of the knee but it hurt when running or going up and down stairs. An MRI was suggested to rule out a possible meniscus injury to the knee.
On January 27, 2008, the worker attended a hospital facility for treatment. His entrance complaints were right knee pain. The worker indicated that he slipped and fell on ice the day before and that he had a similar injury six months ago. The diagnosis was right knee injury and possible meniscus tear.
An MRI of the right knee, tibia, and fibula was done on January 28, 2008. The results revealed “Lateral subluxation of the patella with a suspected tear of the medial patellar retinaculum.”
On February 20, 2008, primary adjudication asked a WCB medical advisor to review the file and respond to a number of questions in relation to diagnosis and its relationship to the compensable injury. On March 13, 2008, the medical advisor provided the following opinions:
· the current diagnosis was patellar subluxation and that this fit with the clinical picture of January 2008 when the worker slipped on ice and twisted his knee.
· the examination on January 27 was an effusion, significant loss of range of motion and significant peripatellar tenderness. These findings differed significantly from the findings after the July 2007 injury.
· the MRI of January 28, 2008 showed a laterally subluxed patella with a tear to the medial patellar retinaculum. If this occurred from the July 2007 injury, there would have been impairment in gait, loss in range of motion, an effusion, and peripatellar tenderness reported in July. None of these were reported.
· the current diagnosis was not related to the July 2007 workplace injury.
In a decision to the worker dated March 13, 2008, the WCB adjudicator stated that he was unable to relate the worker’s current symptoms or treatments to his original compensable injury. The adjudicator found that the worker sustained a non-compensable injury on January 27, 2008 when he slipped on ice and injured his right knee. On a balance of probabilities, he indicated that this event would likely have produced the worker’s current symptoms and findings that were shown on the recent MRI and clinical assessments since that date.
On March 30, 2008, the worker appealed the adjudicator’s decision to Review Office. The worker contended the reason his knee never healed before was because he had injured his medial patellar retinaculum on July 15, 2007 and was being treated for a different diagnosis. Included in the worker’s submission was a March 25, 2008 report from his physiotherapist. She stated, “It has come to my attention that [the worker’s] MRI results indicate a tear to his medial patellar retinaculum. Although it is unknown when the tear occurred, I strongly feel that symptoms from the original work injury were most likely caused by this tear. The mechanism of injury and associated symptoms may be correlated to a tear of the medial retinaculum.”
Review Office, on April 17, 2008, determined that the worker’s ongoing knee problems were not related to the compensable injury of July 15, 2007. Review Office stated that the worker did not have the type of clinical objective medical evidence following his injury on July 15, 2007 to support the diagnosis of a torn medial patellar retinaculum. It felt that the incidents that occurred in November 2007 and January 2008 could have produced trauma to the knee. In conclusion, Review Office could not relate the tear to the medial patellar retinaculum to the accident of July 15, 2007.
On September 15, 2008, a worker advisor asked Review Office to reconsider its previous decision. The worker advisor contended that the worker did not fully recover from his July 15, 2007 right knee injury and that his ongoing symptoms predisposed him to further injury resulting in his current right knee condition. To support this position, reference was made to the following opinion expressed by the worker’s treating physician on August 22, 2008:
“I first saw [the worker] on December 20, 2007, when he complained about his right knee still causing discomfort after his initial injury of July 15, 2007. There is no history of reinjury of the knee. Since the MRI confirms a medial retinaculum tear of the right patella, I have to conclude that the injury [the worker] suffered initially on July 15, 2007, did predispose the ongoing problem with [the worker’s] knee.”
A letter to Review Office was submitted by the employer’s advocate dated October 17, 2008. The advocate stated that after reviewing the file evidence along with the worker advisor’s appeal submission, he could see little new information on which to revise the decisions already made on the file. The advocate indicated that the worker injured his knee as a result of a valid workplace accident on July 15, 2007 and there was some degree of continuity of complaints and treatment for the months following the incident. The worker did sustain two new non-compensable accidents that seemed to have precipitated a need for more intensive treatment. The advocate felt the worker’s fall on ice in 2008 was the most severe of the three incidents and which seemed to have caused more severe symptoms.
On October 22, 2008, Review Office confirmed its previous decision that the worker’s ongoing right knee problems are not related to the compensable injury of July 15, 2007. Review Office referred to the new medical information submitted by the worker advisor. It stated that the statement made by the physician “there is no history of re-injury of the knee” was not true as the day before the January 28, 2008 MRI, the worker fell on ice and examination findings included significant loss of range of motion and significant peripatellar tenderness. These findings were significantly different from the findings after the worker’s knee injury of July 15, 2007 where a nurse simply noted abrasions to the kneecap and the worker was able to walk normally. From a review of all evidence, Review Office did not feel the new medical evidence altered its previous decision.
On November 24, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
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. Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
WCB Policy 44.10.80.40 – Further Injuries Subsequent to a Compensable Injury (the “Policy”) is applicable to cases where there is 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. The Policy in part provides as follows:
A further injury occurring subsequent to a compensable injury is compensable:
(i) where the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) where the further injury arises out of a situation over which the WCB exercises specific control; or
(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.
The Administrative Guidelines to the Policy provide:
A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:
1. The original injury causes or significantly contributes to the subsequent injury.
…
The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury (e.g., a worker with a shoulder injury trips and falls). If the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.
The key issue to be determined by the panel deals with causation and whether the worker’s subluxation of his right patella and torn medial patellar retinaculum which required arthroscopic surgery were causally related to his compensable injury.
The worker’s position:
The worker was assisted by a worker advisor at the hearing. The worker advisor argued that the worker had not recovered from his July 15, 2007 injury and that his ongoing difficulties were related to the worsening of his right knee symptoms from incident that occurred on November 10, 2007, while participating in a basketball game and from the fall on ice on January 27, 2008. It was submitted that both the original injury and the subsequent incidents involved the patella, and thus there is a relationship between the two conditions.
The employer’s position:
An employer representative was present at the hearing. The submission on behalf of the employer was that the nature of the worker’s July 15, 2007 injury suggests that it was not significant or long-lasting. He reviewed the medical reports before and after the January 27, 2008 incident and noted the minimal findings before the incident and the marked increase in symptoms and the different findings reported by his physician the day following. He argues that the worker sustained a much more serious injury after this third incident.
Analysis:
The issue before the panel is whether or not the worker’s ongoing right knee problems are related to the compensable injury of July 15, 2007. To accept the worker’s appeal, the panel must find that the worker’s subluxed patella and torn medial patellar retinaculum which required arthroscopic surgery was causally related to the earlier compensable injury in July 2007. On a balance of probabilities, we are not able to make that finding.
The crux of the case surrounds whether the worker’s right knee condition, which required arthroscopic surgery, was attributable to the July 15, 2007 workplace incident, or whether it was attributable to some other activity, most notably, the slip and fall on ice which the worker suffered on January 26, 2008, outside of a workplace setting. At the hearing, the worker candidly admitted that his knee was much worse after the January, 2008 slip and fall, but argued that it was simply a continuation of the difficulties he had had in his knee since the compensable incident.
Following the hearing, the panel requested copies of the operative report. The report, dated August 6, 2008, confirmed the pre-operative diagnosis of right patellar subluxation and its repair. The report also notes a grade 1 (mild) chondromalacia, with no repair noted in the operative report.
In the panel’s opinion, the worker’s compensable workplace injury involved a direct blow to the knee, with a laceration noted at that time. While there was ongoing symptomology reported on and off by the worker after that date, it was generally classified as a patellofemoral syndrome which may or may not have pre-existed the workplace injury. The types of symptoms were consistent in the months following, in particular, difficulties using stairs and later, crawling.
The panel notes that the parties referenced a November 10, 2007 basketball game (in a non-work setting) during their presentations. The panel notes, however, that the diagnosis of the worker’s right knee condition did not change as a result of that incident, and that the symptoms that were demonstrated after that date were of the same sort as before the basketball game. Regardless, the worker was able to continue working in his regular duties until the January 27, 2008 incident when he slipped on ice in a non-work setting.
There was a dramatic change in his presentation after that date and it was only after that event that he began to exhibit the classic symptoms associated with a tear to the medial patellar retinaculum, such as impairment in his gait, loss of range of motion, and effusion. Prior to the January 2008 incident, while he did complain of some pain in his knee, he was still able to stay active and he was not disabled from performing his regular work duties. The assessment of the physiotherapist on December 5, 2007, notes the worker’s subjective complaints of “continued R knee pain occasionally, with stairs/squatting.” She placed no work restrictions on the worker at that time.
In the panel’s view, the mechanism of injury associated with the fall on ice was very different from the mechanism of injury associated with the worker’s compensable injury in July 2007 (and the temporary exacerbation in the November 10, 2007 basketball game). Although both incidents resulted in injuries to the right knee area, these were very different injuries. The first involved a direct blow to the knee, while the second involved a major dislocation of the patella. The surgery that was performed dealt only with the major dislocation and tear, and did not deal with or identify any significant pathology that could be related to the July 2007 fall.
As to the cause of the subluxation of the patella, the panel notes opinions on this point from the worker’s attending physician and physiotherapist, and from a WCB medical advisor. The worker’s attending physician suggests on August 22, 2008 that there was no history of a re-injury at the time of the January 28, 2008 MRI, and that he therefore concluded that the first injury had predisposed the worker to the second injury. However, the panel notes that the physician’s report is silent with respect to the major incident (the fall) in January 2008 and its possible role. The physician also does not propose any etiology to suggest either that the worker’s patellar femoral syndrome would predispose someone to a subluxed patella and tear, or that there would be a natural progression from the first diagnosis to the second. The March 25, 2008 report from his physiotherapist also attributes the tear to the first injury: “Although it is unknown when the tear occurred, I strongly feel that symptoms from the original work injury were most likely caused by this tear.”
The panel notes a contrasting position was taken by a WCB medical advisor who analyzed the two incidents and the reported symptoms after each of the incidents, as well as the expected symptoms from each of the diagnoses, in a file memo dated March 13, 2008. The medical advisor concludes that the symptoms reported after the January 2008 fall were substantially different than those reported earlier. The clinical findings after January 27, 2008 matched the classic symptoms for a patellar subluxation and associated tear, which include impairment in gait, loss in range of motion, an effusion, and peripatellar tenderness. None of these were reported at the time of the July incident, and the medical advisor concluded that they relate solely to that later event. After careful consideration of the nature of the incidents and the symptoms experienced by the worker following each of the incidents, the panel agrees with and adopts the analysis and conclusions of the WCB medical advisor, specifically that the patellar subluxation and torn medial patellar retinaculum were caused by the January 27, 2008 fall on ice.
The WCB Policy provides that a subsequent injury will only be compensable where the cause of the second injury is “predominantly attributable to the original injury”. The guidelines also provide that a relationship will be established where the original injury “causes or significantly contributes” to the second injury.
In the panel’s opinion, the worker’s right knee condition after January 27, 2008 cannot be said to have been predominantly attributable to the compensable injury sustained in July 2007. We do not feel that the original injury caused or significantly contributed to the second injury, and therefore on a balance of probabilities, a relationship between the injuries cannot be established.
For the reasons stated above, we find that the worker’s ongoing right knee problems are not related to the compensable injury of July 15, 2007. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 29th day of April, 2009