Decision #112/09 - Type: Workers Compensation
Preamble
The worker is presently appealing decisions made by Review Office of the Workers Compensation Board (“WCB”) on March 3, 2009 which determined that her back complaints were unrelated to her compensable left knee injury and that she was not entitled to wage loss benefits or physiotherapy treatment beyond January 13, 2009. A hearing was held on September 29, 2009 to consider the matter.Issue
Whether or not wage loss benefits and physiotherapy treatment should be authorized beyond January 13, 2009; and
Whether or not the worker’s low back complaints are related to the compensable knee injury of October 14, 2006.
Decision
That wage loss benefits and physiotherapy treatment should not be authorized beyond January 13, 2009; and
That the worker’s low back complaints are not related to the compensable knee injury of October 14, 2006.
Decision: Unanimous
Background
On October 14, 2006, the worker reported that she smashed her left knee on a bracket that was underneath her office chair. The worker was initially diagnosed with a patella contusion to the left knee but was later diagnosed with left quadriceps tendonitis.
The claim for compensation was initially denied by primary adjudication on the basis that the worker delayed in seeking medical treatment. The decision was later overturned and the worker received time loss benefits for the dates she missed from work.
When seen for treatment on May 9, 2007, a physiotherapist reported that the worker had difficulties with sitting, standing and squatting activities, ascending/descending stairs and difficulties with activities of daily living. The diagnosis rendered was myofascial and joint hypomobility post patellar fracture. Responsibility for physiotherapy treatment was accepted by the WCB.
In a report dated June 29, 2007, an orthopaedic specialist noted that the worker continued to have discomfort in her left knee and was unable to carry out her normal work related activities. An MRI of the left knee was arranged.
In July 2007, the treating physician noted that the worker was awaiting the MRI but was fit for sedentary duties. On July 12, 2007, the worker was provided with a letter stating that the WCB arranged for her to return to work on July 14, 2007.
An MRI of the left knee was carried out on July 31, 2007. The radiological findings were read as follows: “Vertical tear extreme periphery body and posterior junctional zone medial meniscus”.
In a progress report dated September 7, 2007, the treating physician reported that the worker’s knee was more painful and she also had low back pain.
On September 7, 2007, the worker advised her case manager that her back pain was attributable to her compensating for her left knee injury.
On September 7, 2007, the physiotherapist applied for additional funding noting that the worker developed low back issues/antalgic gait. The request for funding was denied by the WCB on September 21, 2007 on the basis that the worker’s low back condition had not been adjudicated as a WCB responsibility.
A WCB medical advisor reviewed the file information on November 15, 2007 which included a follow-up report from an orthopaedic specialist dated September 24, 2007. The medical advisor was of the opinion that the meniscal tear shown on the MRI was not consistent with the mechanism of injury (a direct blow to the front of the knee) and was a pre-existing condition. He noted that the lateral release surgery recommended by the specialist was not being done to treat the abnormality on the MRI but was being done to treat the patellofemoral pain which was thought to be related to the direct blow (mechanism of injury).
On November 15, 2007, the WCB wrote to the orthopaedic surgeon to advise that the WCB was accepting financial responsibility for the costs of the left knee arthroscopy with lateral release but was not accepting that the meniscal tear was related to the compensable injury. Any surgery related to the meniscal tear was not a WCB responsibility.
In an adjudicative letter dated December 12, 2007, the worker was advised that a review of her file had been undertaken by the WCB’s healthcare branch and that based on the mechanism of injury and the fact that her symptoms were not reported until September 2007 (11 months after the compensable accident), the case manager was unable to establish a relationship between the compensable injury and her current low back symptoms. She further noted that the progress report of September 7, 2007 from the treating physician noted complaints of back pain but no objective findings related to the back were reported. Therefore, the WCB was unable to accept responsibility for any medical treatment including physiotherapy that may be required in relation to her low back symptoms.
The worker underwent left knee surgery in January 2008. The post-operative diagnosis was left knee chondromalacia. The worker was subsequently treated with physiotherapy and a work hardening program.
On November 4, 2008, the worker advised her case manager that her knee had felt good after completing the reconditioning program but since then her knee felt worse and was progressively deteriorating (cracking and grinding under the knee cap).
On November 25, 2008, the WCB case manager spoke with the treating physiotherapist. The physiotherapist noted that when the reconditioning program was completed, the worker began her return to work program (50% sitting and 50% doing rounds). The worker seemed to be managing well but then a flare up occurred when the worker began 6 hour shifts with no real indication as to why she was unable to work. The worker complained of extreme pain; however, there were no new objective findings. He stated there were degenerative changes in the worker’s knee that may have become worse due to the injury but reported that this was hard to determine. The therapist indicated that the worker could go back to 4 hour shifts at 50/50 but needed to watch out for stairs, as stairs were the biggest obstacle.
A WCB call in examination took place on November 27, 2008. In the opinion of the WCB medical advisor, it was felt that the workplace accident aggravated the worker’s pre-existing chondromalacia patella and because surgery in the form of debridement was performed, this would make it an enhancement. The medical advisor noted that this claim only affected the patellofemoral joint and had not affected the medial or lateral compartments. The medical advisor indicated that clinical findings revealed normal range of motion and good strength in the knee. While the worker had positive patellofemoral tests to the knee, this would not itself necessitate workplace restrictions and full functional recovery would still be expected.
Regarding the worker’s low back complaints, the medical advisor opined that the worker did not have an antalgic gait nor had one been reported by her external caregivers. The worker had minimal objective clinical findings to support a significant diagnosis for her pain complaints. The medical advisor could not relate the worker’s low back symptoms to her knee injury.
Following the call in examination, file reports showed that the WCB was arranging for the worker to commence a graduated return to work program starting at four hours per day leading up to a return to full regular duties at the end of four weeks.
A surveillance video was taken of the worker’s activities between November 20 and December 10, 2008. The video was reviewed by the WCB medical advisor who examined the worker on November 27, 2008. In a memo dated December 18, 2008, the medical advisor outlined what she observed on the video. She concluded the following:
“…the worker did not walk with an antalgic gait. It was thought that her altered gait may have caused low back pain. Since there’s no evidence of altered gait, I cannot relate any low back problems to this C/I. The video further does not support any impairment due to the back with normal, fluid range of motion and no limitation activity.
With regards to the knee, there appears to be no limitation to her activity away from the workplace. This supports recovery from the effects of the C/I and compensable restrictions would not be needed. Due to the enhancement of pre-x, she should limit deep squatting on a preventative basis.”
In a letter dated December 30, 2008, the worker was advised of the WCB’s position that she had recovered from the effects of her left knee injury and that the WCB was unable to accept responsibility for her low back condition. The case manager noted that based on the WCB call in examination of November 2008, it was concluded that the worker had no compensable work restrictions related to her left knee but that the WCB was recommending that she limit deep squatting as a preventive measure due to her pre-existing knee condition. The case manager also noted to the worker that the surveillance video further substantiated that she had recovered from the effects of her compensable injury. With regard to the low back complaints, the case manager found no evidence to support that the worker’s back condition resulted from the effects of her compensable knee injury of October 14, 2006. The case manager pointed out that the video evidence did not support any impairment to the back with normal/fluid range of motion and no limitation in activity. The worker was advised that wage loss benefits would end effective two weeks from the date of the letter or January 13, 2009.
In a memo to file dated January 13, 2009, the WCB case manager stated there was no basis for a graduated return to work plan and there were no compensable restrictions to support same.
Medical reports were received from the treating orthopaedic specialist dated December 19, 2008 and from the treating physician dated January 22, 2009. These reports were reviewed by a WCB orthopaedic consultant on February 6, 2009. The consultant concluded following review of these reports that there was need for ongoing preventive restrictions but that there were no compensable restrictions arising out of the workplace injury. On February 17, 2009, the WCB case manager advised the worker that no change would be made to the decision of December 30, 2008.
On March 3, 2009, Review Office reviewed the claim based on an appeal submission from the worker dated February 25, 2009. Review Office determined that wage loss benefits and physiotherapy treatment would not be authorized by the WCB beyond January 13, 2009 and that the worker’s low back condition evident since September 2007 was deemed unrelated to the compensable injury of October 14, 2006.
Review Office outlined the opinion that there was no evidence of the worker having a back condition until 11 months post compensable injury. Therefore it was concluded that there was no evidence on file to support the worker’s contention that her low back condition arose from the compensable knee injury.
Review Office further indicated that from a clinical objective point of view, there was very little evidence found in any of the medical reports over the past half year to substantiate the worker’s subjective left knee pain complaints. Review Office felt that the WCB medical advisor’s comment that there was no pain behavior exhibited by the worker in the video surveillance was accurate. Review Office felt that there was an expectation that the worker’s knee would be able to withstand the job expectations placed on it through her employment noting that the worker was not expected to constantly walk stairs or squat. On April 30, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
The Worker’s Position:
The worker was self represented at the hearing. It was her position that during the time she was in receipt of WCB compensation benefits, she was always willing to participate in offers of returning to work. She disagreed with the WCB’s assessment that she was capable of returning to her occupation in January, 2009. She indicated that at that time, she continued to have ongoing pain and required physical therapy. Her job required her to walk for prolonged periods, climb stairs, and wear a heavy belt on a daily basis. She needed to have the ability to pivot, run or defend herself at any given time and as she could not safely fulfill these functional abilities, she was not able to perform her job. She had expected a gradual return to her own or alternate occupation, however her benefits were ceased prematurely. The worker submitted that activities recorded on surveillance were consistent with what she had reported to the WCB in regard to her daily activities.
With respect to her back problems, the worker submitted that she never had back problems that limited her ability to function prior to her compensable knee injury and the low back problems evolved due to the mechanics of walking in a way to avoid excruciating pain in her knee. She submitted that as a result of the knee injury and learning how to walk to avoid the pain, she developed low back pain that she would not have had if she had not injured her knee at work.
The worker asked that her benefits be reinstated effective January 12, 2009, that she be allowed to continue physiotherapy, and that her injury be acknowledged by the WCB in the event that she had problems that pertain to her compensable injury in the future.
The Employer’s Position:
Two representatives from the employer were present at the hearing to be available to answer any questions the panel may have. The employer did not take a position on the issues other than to say that the decision ought to be based on the available medical evidence.
Analysis:
There are two issues before the panel. Each will be addressed separately.
1. Whether or not wage loss benefits and physiotherapy treatment should be authorized beyond January 13, 2009.
The first issue concerns the worker’s entitlement to benefits and services beyond January 13, 2009. Under subsection 4(1) of The Workers Compensation Act (the “Act”), where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
In order to determine the worker’s appeal on this issue, the panel must examine the worker’s status as of January 13, 2009 and the condition of her compensable left knee injury at that time. On a balance of probabilities, we find that as of January 13, 2009, the worker’s left knee had sufficiently recovered such that she was not entitled to any further wage loss benefits or physiotherapy treatment at that time.
With respect to the wage loss benefits, we find that by January 13, 2009, the worker’s earning capacity was no longer impaired by her knee injury. The file material indicates that she had started a graduated return to work at modified duties in September, 2008. She started at four hours per day and was able to maintain this until early October, when she took two weeks vacation time to attend a very important event. When she returned in mid October, her shifts were increased to six hours and she was assigned to a different area which required her to walk up stairs frequently. This caused her to develop more pain in her knee, which was then exacerbated one day while she was stretching her knee. She was scheduled to take a shift on November 3, 2008, but was unable to work due to the flare-up in her knee.
The worker remained off work after this flare-up in her knee. She spoke to her WCB adjudicator in early December, 2008 about a graduated return to work, and a WCB memorandum to file dated December 15, 2008 indicates that plans were being put in place for a four week graduated return to work, at the end of which it was anticipated that the worker would be able to perform full regular duties.
At the hearing, the worker confirmed that as at the beginning of December, 2008, the flare-up in her knee had settled down and she was physically ready to start her return to work. Coincidentally, however, while the graduated return to work plans were being put into place, the WCB received surveillance video and felt that the video evidence did not support the need for a graduated return to work plan. The arrangements for a graduated return to work were then discontinued by the WCB. By letter dated December 30, 2008, the worker was advised that her wage loss benefits would end in two weeks, which would be January 13, 2009.
The panel agrees with the worker that the video surveillance did not reveal her doing anything which she did not previously disclose to the WCB. The surveillance would suggest, however, that she was capable of a degree of activity consistent with a full return to work. The worker admits this and says that she never refused to return to work.
The panel notes that if the graduated return to work plan had been put into place in mid-December, 2008, it would have been completed by mid-January, 2009. In fact, the worker did not return to graduated work until March 10, 2009, and did not return to full regular shifts until July 20, 2009. The worker’s evidence at the hearing was that she did not return to work sooner as her union representative was involved in trying to sort out matters with the WCB and the employer, and that there had been some miscommunication regarding paperwork. When the worker did finally meet with her supervisor on March 10, 2009 to discuss her return to the workplace, things progressed quickly and she was assigned to a shift the following Monday. She was assigned to an area which did not have stairs and where she has since been able to maintain her employment without any significant difficulty with her knee.
Although it is unfortunate that the worker’s wage loss benefits were terminated so abruptly (from the worker’s point of view), the panel must look at the worker’s capacity to earn income as of January 13, 2009. We are unable to see any reason why she could not resume earning her pre-accident income at that time. She admits that her knee was feeling good enough to work at that time. The panel’s impression of the employer is that it has been accommodating throughout the claim and there is no reason to question whether appropriate work would have been made available by the employer in January 2009. The fact that the employer had suitable work readily and immediately available for the worker in March 2009 after just one meeting leads the panel to conclude that the same type of work would have been offered to the worker two months earlier. We also note that if the graduated return to work had been put in place in mid-December, 2008, the worker would have been back to full duties by approximately January 13, 2009, in any event. Finally, notice of the ending of coverage was given December 30, 2008, which still gave the worker two weeks to approach her employer and ask for duties to be assigned. The fact that other factors intervened to delay her return to work until March, 2009 does not change the fact that she was physically capable of returning to work in January. As a result, we find that wage loss benefits should not be authorized beyond January 13, 2009.
With respect to physiotherapy treatment, the worker’s evidence at the hearing was that she had not received any physiotherapy for her left knee since January 13, 2009, nor has any been recommended by a medical practitioner. She did attend a number of physiotherapy sessions in May and September of 2009, but these sessions related to her low back pain. In the reasons to follow, the panel has determined that the low back pain is not compensable and therefore there would be no coverage for any treatments related to the back.
Given that to date, no treatment has been required or recommended for her left knee, we find that physiotherapy should not be authorized at this time. We note, however, that it remains open to the worker to contact the WCB in the future should she experience a recurrence of difficulties with her left knee. At that time, she could be entitled to further coverage for physiotherapy treatments if the medical evidence supports that the recurrence is related to the compensable left knee injury of October, 2006.
The worker’s appeal on this issue is dismissed.
2. Whether or not the worker’s low back complaints are related to the compensable knee injury of October 14, 2006.
The worker claims that she now suffers from low back pain as a result of her left knee injury. The worker described the pain as an aching pain located predominantly in her low back near the sacroiliac joint on the right side. The pain has now progressed to also include her mid-back area. She believes the pain to be muscular in nature, and attributes it to overcompensation on her right side because of the left sided knee injury. She stated that for two years, she used her right side to do most of her weightbearing, and this unevenness has caused her to develop pain in her back.
In order for the worker’s appeal on this issue to succeed, the panel must find that the etiology of her low back condition is somehow related to the compensable injury. After reviewing the medical evidence, we find that there is insufficient medical support to establish that the low back condition was caused by the left knee injury.
As noted earlier, the worker attributes her back pain to the overuse of her right leg. Her treating physiotherapist holds a different view and he attributes the back pain to an altered gait. In an extension request for physiotherapy dated December 12, 2009, authorization is requested for physiotherapy directed at the low back. It states: “(Medical Advisor) at WCB has apparently recommended a course of therapy for her low back. Focus on restoring normal muscle tone/flexibility and stabilization program.” The diagnosis is described as low back pain due to altered gait.
The difficulty with the physiotherapist’s diagnosis is that the existence of an altered gait is not supported by either the video surveillance or the WCB call-in examination which took place during the same time frame. The call-in examination notes specifically state that the worker did not have an antalgic gait with regular walking. Similarly, the worker did not exhibit any pronounced limp or unevenness in walking in any of the surveillance footage. The panel therefore does not accept that the worker’s low back pain was caused by an altered gait.
With respect to the worker’s suggestion that her low back pain was caused by overuse of her right leg, the panel finds that there is no medical support for her proposed etiology. As such, the panel cannot accept that overuse of the right side caused the back pain to develop.
It should also be noted that the worker’s evidence was that her low back condition has worsened since July 2009. It does not make sense that the condition would have worsened in 2009 at a time when her left knee injury has largely resolved and she is using both sides of her body more evenly.
Overall, the panel accepts the analysis of the WCB medical advisor in the medical opinion of November 15, 2007 where she concludes that the low back difficulties are not related to the compensable knee injury.
For the foregoing reasons, we find that the worker’s low back complaints are not related to the compensable knee injury of October 14, 2006. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of November, 2009