Decision #22/10 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee injury that occurred on June 26, 2008 during the course of her employment as a nurse’s aide. The claim for compensation was accepted and benefits were paid to the worker up to April 1, 2009 when it was determined that the worker had recovered from the effects of her compensable injury and that her current knee complaints were attributable to advanced osteoarthritis. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on December 10, 2009 to consider the matter.Issue
The worker filed a claim with the Workers Compensation Board (“WCB”) for a right knee injury that occurred on June 26, 2008 during the course of her employment as a nurse’s aide. The claim for compensation was accepted and benefits were paid to the worker up to April 1, 2009 when it was determined that the worker had recovered from the effects of her compensable injury and that her current knee complaints were attributable to advanced osteoarthritis. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on December 10, 2009 to consider the matter.Decision
That the worker is not entitled to wage loss benefits beyond April 1, 2009.Decision: Unanimous
Background
The worker reported that she injured her right knee at work on June 26, 2008 from the following accident:
“I caught a patient just before he hit the floor. He was falling backwards. I had my knee behind him to stop him from falling. I felt a really funny feeling in the back of the knee. I knew I had gone too far.”
Initial medical reports diagnosed the worker’s right knee condition as an MCL strain or a possible medial meniscal tear.
On July 30, 2008, the worker underwent an MRI assessment which revealed early osteoarthritis with chondromalacia patella. Joint effusion was also present but no cause had been identified. The radiologist indicated that this could relate to non-specific synovitis. No meniscal tears were found.
When seen by an orthopaedic specialist on August 21, 2008, the examination revealed no right knee effusion. The worker had full range of motion and no gross ligamentous laxity of the collaterals or cruciate. The worker had quite exquisite tenderness over the medial joint line, accentuated on McMurray’s test. The specialist suspected a meniscal tear in spite of the negative MRI. A knee scope was suggested for diagnostic purposes and to assess the degree of arthritis, a pre-existing disease.
On October 1, 2008, the worker underwent right knee surgery which revealed a medial meniscus tear of the right knee and medial compartment arthritis. In a follow-up report dated October 8, 2008, the treating surgeon indicated that the incisions were healing satisfactorily and the worker was prescribed physiotherapy treatment. The specialist also commented that given the significant arthritic changes in the knee, the worker may require a total knee arthroplasty at some point down the road.
Reports were received from the physiotherapist indicating that the worker complained of ongoing pain in the right knee post surgery.
On November 8, 2008, the treating surgeon noted that the worker had been attending physiotherapy but was not back to normal. He recommended a further three weeks of physiotherapy, following which it was felt the worker could return to modified duty work at half days for three weeks while avoiding prolonged standing and walking or heavy lifting.
When speaking with her case manager on January 14, 2009, the worker indicated that her treating surgeon told her that she should not be standing for prolonged periods of time and that she should go on long term disability. When asked how she was progressing at work, the worker said she found it hard to stand for any period of time and that her leg has been really hot to the touch.
A report from the treating surgeon dated January 14, 2009 indicated that the worker was continuing with physiotherapy but found that she was quite sore toward the end of the work day with stiffness in the knee. He indicated that the worker had some bouts of swelling. The specialist stated that the worker was not going to be able to advance her hours at the moment and that she needed to avoid prolonged standing and impact loading on the knee as much as possible.
In a discharge report dated January 30, 2009, the treating physiotherapist noted that the worker was currently ambulating with a normal gait, and she had nearly full range of motion and strength in her right leg. She noted that the worker’s return to work had been relatively successful given the extent of her knee complications.
On February 11, 2009, a WCB medical advisor discussed the information on file with a WCB orthopaedic consultant and the following opinion was expressed:
· there was no evidence of aggravation or enhancement of the pre-existing degenerative changes in the right knee. The diagnosis related to the compensable injury was a medial meniscal tear.
· the worker had recovered from the medial meniscal tear and partial medial meniscectomy. The worker also had advanced pre-existing and unrelated medial compartment osteoarthritis, with recent chondroplasty for that condition and the prognosis for the advanced arthritic condition was not good.
· there was no relationship between the osteoarthritis/need for possible knee joint replacement surgery and the compensable injury.
On March 25, 2009, the worker was advised that her WCB benefits would be discontinued on April 1, 2009 based on the opinion that she had recovered from the effects of her meniscal tear injury and that her ongoing symptoms were directly related to the advanced pre-existing degenerative changes in the knee.
On April 1, 2009, the family physician submitted that the worker had no arthritis in her knee after her compensable injury but currently has arthritis in her knee according to a February 2009 x-ray. He felt that the advancement of osteoarthritis was related to her compensable injury, a meniscal tear.
On April 2, 2009, the worker appealed the case manager’s decision to discontinue benefits. The worker indicated that she was unable to advance beyond four hours of modified duties due to pain related to the meniscal tear and repair. She felt that the diagnosis of arthritis and need for joint replacement was not known prior to the injury and should not be an indication for the discontinuation of benefits.
On June 4, 2009, Review Office determined that there was no entitlement to wage loss benefits beyond April 1, 2009. Review Office noted that the medical information on file did not support the attending physician’s opinion that the advancement of osteoarthritis was due to the compensable injury. In making its decision, Review Office placed weight on the following evidence:
· the MRI which showed early osteoarthritis with chondromalacia patella;
· the orthopaedic specialist’s opinion that the worker’s arthritis was a pre-existing condition;
· the operative report showing a tear of the posterior horn of the medial meniscus in association with quite advanced arthritic changes; and
· the opinion of the WCB medical advisor made on February 11, 2009.
Review Office concluded that the workplace accident was no longer contributing, to a material degree, to the worker’s loss of earning capacity beyond April 1, 2009.
On June 26, 2009, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested and received additional information from the worker’s treating orthopaedic surgeon and this information was shared with the interested parties for comment. On February 8, 2010, the panel met further to discuss the case and render a decision.
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.
Under subsection 4(1) of 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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years.
The worker’s position:
The worker was accompanied by her family physician at the hearing. The worker submitted that prior to the workplace accident, she missed only a few days of work in her life. She never had any problems with her legs before, but now she experiences a great deal of pain. She advised that she is scheduled for partial knee replacement surgery in May, 2010.
The family physician advised that the worker had been his patient for almost 24 years. From a work ethic perspective, he never had any concerns about malingering and he always believed she was in pain subsequent to her compensable injury. When asked whether the worker’s ongoing symptoms were attributable to a medial meniscal tear or to osteoarthritis, the family physician stated that it was impossible to compartmentalize the various processes in play, but logically, it was very possible that the arthroplasty and chondroplasty procedures performed on October 1, 2008 accelerated the degenerative process. He stated that he was not saying that the worker’s osteoarthritis had nothing to do with the claim, but in his opinion, the events of the past 18 months had accelerated the process.
The employer’s position:
An employer advocate represented the employer at the hearing. It was submitted on behalf of the employer that the medical information on file showed that the worker had a pre-existing osteoarthritis. The fact that the osteoarthritis was asymptomatic before the workplace accident did not mean that her current knee problems were subsequently due to a partial medial meniscal tear. It was submitted that the worker’s current knee problems were attributable to the advancing osteoarthritis, which was present at the time of the injury. The compensable diagnosis was a medial meniscal tear and there was no indication that the osteoarthritis had been enhanced by the meniscal tear. The upcoming knee replacement surgery had been forecasted from the onset and it was clear that it was the pre-existing degeneration which created the need for the surgery.
Analysis:
The issue before the panel is whether the worker is entitled to wage loss benefits beyond April 1, 2009. The key question concerns whether the worker’s ongoing right knee difficulties (most notably, her recommended total knee joint replacement surgery) are related to the workplace accident of June 26, 2008. In order for the appeal to be successful, the panel must find that the recommended knee replacement surgery (which has not yet been performed) is now required because of the knee injury which the worker suffered at work in June, 2008. After reviewing the evidence as a whole, we find on a balance of probabilities that the current prognosis is not a result of the injury sustained in the June 26, 2008 accident and accordingly, the worker is not entitled to wage loss benefits beyond April 1, 2009.
It was undisputed that the worker had pre-existing degeneration in her knee. Prior to the accident, however, it was asymptomatic and she had never experienced any difficulties with her knee. Her family physician was able to confirm that his chart notes, which dated back almost twenty years, had no record of treating the worker’s right knee. Since the time of the accident, the worker has had continuous pain and limitation in her right knee, and now a partial knee replacement surgery is scheduled for May, 2010.
Part of the difficulty the panel faced in considering this appeal was the fact that the October 1, 2008 surgery, which was performed after the worker sustained her compensable injury, involved three procedures: a partial medial meniscectomy, a femoral and tibial chondroplasty and a femoral abrasion arthropathy. Only one of the procedures, namely the partial medial meniscectomy, related to the worker’s compensable diagnosis of a medial meniscal tear.
It was suggested by the family physician that it was possible that the procedures performed during the October 2008 arthroscopic surgery accelerated the degenerative process. He said that it was logical to conclude that the surgical repair of the compensable medial meniscal tear altered the timelines from needing a new knee in ten years to requiring a new knee six months from now. He admitted, however, that this was speculative, and was impossible to specifically identify the reason for the accelerated rate of osteoarthritis progression in the worker’s knee.
Following the hearing, the panel requested the opinion of the orthopedic surgeon who performed the October 1, 2008 surgery. The question posed was: “If the October 1, 2008 surgery had been limited to only the partial medial meniscectomy, and did not include the femoral and tibial chondroplasty and femoral abrasion arthropathy, what effect, if any, would surgery have had on the progression of the arthritic changes in (the worker’s) knee and the timing for joint replacement surgery?”
The response provided by the orthopedic surgeon was as follows:
To answer your question regarding the partial medial meniscectomy being the only operation done on (the worker’s) knee with no underlying arthritis would have had no effect on the need or timing of her joint replacement surgery. Patients who have had meniscectomized knees usually develop degenerative changes over a period of many years whereas her progression from arthroscopy to total knee arthroplasty was essentially less than a year. The arthroplasty was therefore done for the underlying degenerative disease present in the knee, not for anything contributed by the meniscus or subsequent meniscectomy.
The panel accepts the opinion of the orthopedic surgeon and therefore finds that the ongoing knee problems which the worker has experienced since April 1, 2009, are not related to her compensable meniscal tear injury, but rather are attributable to the underlying degenerative processes present in her knee. As a result, the worker is not entitled to wage loss benefits beyond April 1, 2009. 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 March, 2010