Decision #54/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a right knee and left inguinal hernia condition that arose out of a work related accident on November 24, 2005. On June 23, 2008, it was determined by primary adjudication that the worker’s subsequent back difficulties were not related to the effects of his compensable right knee injury. This decision was confirmed by Review Office on December 19, 2008. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 24, 2009 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker’s low back complaints in relation to the November 24, 2005 compensable injury.

Decision

That responsibility should be accepted for the worker’s low back complaints in relation to the November 24, 2005 compensable injury.

Decision: Unanimous

Background

The worker reported to the WCB that he injured his right knee and left groin region when he fell off a step ladder on November 24, 2005. The worker was later diagnosed with a left inguinal hernia, and surgery to repair the hernia took place on April 10, 2006.

In a telephone conversation with his WCB case manager on April 6, 2006, the worker indicated that his neck and back were sore. He attributed this difficulty to walking with an altered gait. Later, on May 16, 2006, the worker advised that his physiotherapist gave him home exercises and stretches to perform for his neck and back and that he was good now.

With regard to his right knee condition, an MRI revealed loose bodies in the posterior knee joint that represented osteochondral fragments from a donor site in the patellar articular surface, or alternatively a secondary osteochondromatosis. An arthroscopy and partial meniscectomy was performed on July 19, 2006, followed by physiotherapy treatment.

On October 30, 2006, a WCB medical advisor reviewed the file information and stated that the worker was capable of returning to work in some capacity. Preventive restrictions were outlined to avoid kneeling and crouching for prolonged periods. The employer, however, did not have appropriate duties to accommodate the worker’s restrictions and the file was referred to the WCB’s vocational rehabilitation branch to determine the worker’s eligibility for vocational rehabilitation benefits and services.

As the worker’s right knee pain continued despite treatment, a second MRI examination of the knee was ordered. The results, dated July 14, 2007, revealed that the patella and loose bodies were largely unaltered from the previous examination. There was moderate chondromalacia involving the medial femoral condyle. There appeared to be truncation of the medial meniscus. A second knee surgery took place on January 16, 2008 and the worker then commenced a 12 week post-surgical physiotherapy program.

On April 11, 2008, the worker advised the WCB that he saw his family physician because of ongoing back pain. The worker said he was told by his doctor that since he had been walking with a limp and putting more weight on his knee, he “kinked an artery.”

On April 24, 2008, a progress report from the treating physiotherapist noted subjective complaints of pain to the medial aspect of the knee primarily following the use of stairs or squatting and that low back pain was problematic. He noted that the worker was ready to attempt a graduated return to work in terms of his knee and that he required 2 to 3 weeks to allow his back to settle.

On April 24, 2008, the treating physiotherapist spoke with a WCB staff person and confirmed that the worker had issues with his low back because of his altered gait. He indicated that the worker had stomach issues because of the anti-inflammatory medication he was taking for his back. The physiotherapist related the worker’s sharp left low back pain to a disc strain. He provided the worker with a few treatments and would submit an extension request for more back treatment. He noted that the worker’s knee was pretty stable and that he could walk a reasonable distance.

On April 30, 2008, the worker advised the WCB that his left low back pain started around April 9, 2008. He did not have the back pain until early April, once he recovered from his knee surgery and he started putting more weight on his right side. He had been walking with emphasis on his left leg for the past two years because of his right knee problems. The worker indicated that he had constant left low back pain and feels the pain was under his rib cage.

On May 1, 2008, a WCB orthopaedic consultant reviewed the file at the request of primary adjudication. The consultant indicated that there was no evidence on file to suggest that the worker’s back problems were related to his right knee problems.

In a report to the WCB dated June 3, 2008, the family physician reported that the worker was seen on April 10, 2008, and the examination revealed tenderness in the right mid-abdomen and tenderness in the left SI joint. He noted that x-rays of the lumbosacral spine showed mild degenerative changes. The family physician indicated that the worker felt that his backache seemed to be worse as a result of his injury to his right knee. He stated that the plausible explanation appeared to be that the worker was shifting his weight onto his left knee to reduce the pain in his right knee.

Lumbosacral spine x-rays dated May 5, 2008 revealed normal alignment with no evidence of spondylolisthesis. The disc space was well maintained. There was no fracture or compression deformity and mild degenerative end plate changes were noted. There was mild facet arthropathy at the L5-S1 level.

On June 20, 2008, the WCB orthopaedic consultant indicated that the new medical information did not alter his opinion of May 1, 2008. He noted that the worker’s recent x-rays reported mild degenerative changes that were commonly seen in the worker’s age group. He noted that no back symptoms were reported following the work-related injury or at the time of his call in examination. On a balance of probabilities, the consultant indicated that the worker’s present back problems were not related to his knee problems.

In a June 23, 2008 decision, the worker was advised that the WCB could not establish a relationship between his right knee injury of November 24, 2005 and his low back injury of April 9, 2008. The decision was reached based on the opinions expressed by the WCB orthopaedic consultant that the worker’s current back problems, on a balance of probabilities, were not related to his knee problems.

On August 28, 2008, a chiropractor reported that the worker was seen in the office on May 2, 2008 complaining of low left back pain which had been present for approximately three weeks. The chiropractor noted that the worker underwent an arthroscopic procedure to his right knee after falling from a scaffold while at work. As a result of the fall, the worker related that his ambulation was significantly limited due to the knee injury. The worker stated that after surgery, he became more ambulatory. As he increased his walking, it became apparent that he could not tolerate the walking as his low back area would tighten to the point of intense pain and consequent cessation of walking. This went on for four weeks and it got to the point where he could no longer tolerate the ongoing discomfort and attended the office for treatment. The chiropractor concluded his report by stating:

“Based on the history and my objective findings, the relationship of the patient noticing the low back pain after his orthoscopic procedure has the highest medical probability of being related to his fall from the scaffolding at work.

At the time of his fall, the knee was the most significant of the injuries and subsequently had the attention of the caregivers. His limited mobility did not reveal the other problem until he became much more mobile, that is, post knee surgery. His increased gait (more normal) now required further left leg extension, beyond the range his injured left sacroiliac joint could tolerate, resulting in the increased symptomatic presentation…The etiology of his injury is reasonably associated with his work injury.”

On September 25, 2008, a worker advisor requested reconsideration of the adjudicative decision dated June 23, 2008. The worker advisor noted that medical reports submitted by those treating the worker support that his low back condition was caused by his gait which was altered as a result of his compensable right knee injury. He noted that the worker complained of a sore back when he was assessed at the WCB on March 8, 2007. The worker advisor noted that the worker continued to favor and rely on his left knee for more than two years. Following the second arthroscopic surgery on January 16, 2008, the worker felt a significant improvement in his knee condition and began once again to weight bear on his right side. The worker’s efforts to expedite his recovery and return to a balanced manner of walking caused a correction in his gait. It was suggested that it was this re-adjustment that caused the worker to suffer an injury to his low back. The worker advisor further indicated that the degenerative changes identified by x-ray in the worker’s low back suggested that his back would be vulnerable to aggravation. He submitted that the altered gait and readjustment to bilateral weight bearing would reasonably cause an exacerbation of this pre-existing condition.

Following consultation with a WCB orthopaedic consultant on November 12, 2008, the case manager advised the worker that there was no evidence on file to suggest that his altered gait or pre-existing condition were related to his right knee problems. As a result, there was no change to the previous decision. On November 19, 2008, the worker advisor appealed the decision to Review Office.

On December 19, 2008, Review Office determined that no responsibility could be accepted for the worker’s low back complaints. Review Office considered the evidence on file which included that of the treating physiotherapist, the family physician and the treating chiropractor. It noted that the worker had been having back complaints as far back as early 2007 given that he mentioned an episode of low back pain to the WCB orthopaedic consultant who examined him on March 8, 2007. The consultant then expressed the view that there was no relationship between the worker’s back complaints and the compensable knee injury of November 24, 2005. Based on a review of all the available evidence, Review Office was unable to establish that the worker injured his back on November 24, 2005 or that his low back complaints were predominantly attributable to his compensable injury.

On January 12, 2009, 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.

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 provides in part 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 worker’s position:

The worker was represented by a worker advisor at the hearing. It was submitted that the worker’s right knee injury had, over the years, caused the worker to develop a compensatory gait that had created a muscular imbalance in his lower back. Subsequent to his second surgery in 2007, the worker began a reconditioning program involving a lot more activity. This program also was intended to restore muscular balance in his back, but this adjustment process led to the development of low back complaints. The worker’s position is that the muscular imbalances in his lower back plus the efforts to restore a normal gait were the direct causes of his lower back problems. In support of this position, the worker advisor also relied on a chiropractor report dated August 28, 2008 which asserted that the original workplace accident also caused a left sacroiliac joint injury that was masked by the more obvious knee injury, and was not apparent until the worker’s increased walking activity after the right knee surgery.

Analysis:

For the worker to be successful on his appeal, the panel would have to find that the worker’s low back problems were either caused by the original workplace accident or a subsequent injury causally related to the original workplace injury. The panel was able to make the second finding, and finds, on a balance of probabilities, that the low back problems arose subsequent to the original injury and were causally related to the worker’s compensable knee injury and the rehabilitation process from his right knee surgery.

In reaching this conclusion, the panel relies on the following:

  • The worker suffered a compensable right knee injury in November 2005. He had a first right knee arthroscopic surgery, a partial meniscectomy on July 19, 2006. File documentation notes that the worker continued to have right knee pain after the surgery, with an MRI on July 14, 2007 confirming the continuing presence of right knee pathology. The worker had a second right knee surgery on January 16, 2008, following which the worker started on a 12 week reconditioning program under the supervision of a physiotherapist.
  • The right knee condition affected the way the worker walked. On April 6, 2006, in a discussion with his WCB case manager, the worker reported that he was walking with an altered gait and that his back was sore. This was a temporary problem that was relieved by home exercises. The worker was later examined by a WCB orthopaedic consultant on March 8, 2007. The worker reported ongoing discomfort in his right knee, as well as some soreness in his back, which again had been relieved by exercises and stretches at a gym. The surgeon noted that the worker’s gait was normal, on examination. The panel notes, however, that the worker’s pain complaints after this examination were substantial enough to require a cortisone injection by his surgeon on March 26, 2007, and a prescription in early April 2007 for pain relief. The worker then had a second MRI on July 14, 2007, confirming the presence of degenerative conditions as well as the surgical repairs done in 2006. The worker’s surgeon on September 10, 2007 notes the presence of constant pain in the knee, and advises “no option but to reslate for scope,” which was eventually approved by the WCB.
  • The worker’s evidence at the hearing was that his gait continued to be altered throughout this period of time, stating “I had to baby the right leg because it was so sore.” This continued until the time of his second surgery on January 16, 2008, and into the early phases of his physiotherapy.
  • Following the second surgery, the physiotherapist’s initial assessment, dated February 2, 2008, notes the worker’s antalgic gait. The physiotherapist was later granted an extension of treatment, and his progress report of April 24, 2008 offers a change of diagnosis, noting that the worker developed pain in his left lower back secondary to changes in gait pattern, as well as a stomach irritation secondary to his use of medication. The worker’s back pain is described as “problematic” with tenderness noted in the left L3-S area, and an unsatisfactory recovery. In an April 24, 2008 conversation with the WCB case manager, the physiotherapist notes the worker’s symptoms involve a sharp left low back pain caused by his altered gait, and provides a specific diagnosis of a disc strain.
  • The panel notes that this etiology is supported by the worker’s attending physician, who indicates in a letter dated June 3, 2008 that “The plausible explanation appears to be that he is shifting his weight onto his left knee to reduce the pain on his right knee.”
  • Similarly, the worker’s chiropractor provides a diagnosis of a severe left sacroiliac sprain/strain. The panel does not, however, accept the chiropractor’s assertion that the injury was part of the original compensable injury but was missed because of the more prominent knee issues. This is based on the many medical reports and examinations since the compensable injury in 2005, and the absence of a significant low back pathology noted throughout that period of time. As well, at the hearing, the worker confirmed that his earlier back pain had the characteristics of a backache, while his April 2008 back pain was very different, being of a sharp, stabbing nature. The chiropractor does note, however, that the impact of the post-surgery physiotherapy would be a change in gait (a further leg extension) which would impact on the sacroiliac joint.
  • The panel further notes that x-rays of the worker’s low back indicate only mild degenerative changes and that the worker was not at work in early 2008, while in the physiotherapy program. The panel therefore concludes that the worker did in fact suffer an acute disc sprain/strain in his lumbosacral spine.
  • As to the cause of the disc sprain/strain, the panel notes that the physiotherapist, attending physician, and chiropractor all attribute the problem to the worker’s altered gait, in this case being the correction of an “incorrect” gait over the prior years towards an improved gait. The only contrary opinion is offered by the WCB orthopaedic consultant who, when asked about the relationship of the low back pain to the right knee, states briefly that there is “no evidence” of a relationship.
  • It is the panel’s view that the worker’s acute disc strain was in fact caused by the alterations of his limp before and during his physiotherapy treatment. The panel notes that conditions that displace the centre of gravity of the body away from the spine can increase force transmissions across the spine segments. In the case of adjustments in walking/gait, these forces would be transmitted side to side across the spine and lead to the type of disc injury described by the physiotherapist.
  • The panel acknowledges that the worker’s walking activities were relatively limited while he was in the physiotherapy program, but finds that there was enough focused exercise and rehabilitative activity to lend to the development of a disc strain in a mildly degenerative spine.
  • The panel further notes that the worker’s low back condition was treated successfully, with conservative treatment, further supporting the finding of an acute, rather than a chronic or recurring injury.

Based on this analysis, the panel finds on a balance of probabilities that the worker’s low back complaints were causally related to the worker’s altered gait and his physiotherapy treatment that was undertaken following his right knee surgery. The worker’s low back complaints therefore qualify as a further injury arising from a compensable injury, under WCB policy.

The worker’s appeal is accepted.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 21st day of May, 2009

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