The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The issue before the panel concerns whether the trochanteric bursitis the worker has developed in his left hip is related to his compensable left knee injury and subsequent total knee replacement. WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers 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 Further Injuries Policy provides:

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 direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Worker’s Position:

The worker appeared on his own behalf at the hearing accompanied by his partner. He submitted that he had two knee operations from his 1977 accident, one of which was intrusive. The meniscus in his left knee was removed. This accelerated osteoarthritis in his knee got to the point where he could no longer work. In 2006, he had a total knee replacement. After the operation, his leg became misaligned. He went through the initial rehabilitation period for his knee and while dealing with the direct pain of his knee, he ignored other aspects of his medical condition, most notably, the constant numbing ache he felt in his left buttock and hip. It was only when the pain of his knee subsided that he began to notice the bursitis. This was approximately a year to 18 months after the knee replacement surgery. He assumed that this pain was simply part of the healing process and that it would go away after a period of time, but it did not. Overall, the worker attributed his bursitis to misalignment caused by the total knee replacement surgery. He also suggested that infection from his stay in the hospital or clamping of his leg during the surgery may have contributed to the development of the condition.

Employer’s Position:

A representative from the employer was present at the hearing and the employer’s position was that the bursitis was not related to the compensable injury. It was noted that the medical reports make no mention of hip discomfort until November 2008. It was submitted that the appeal dealt purely with the medical issue of whether or not the bursitis was a medical condition that was due to the total knee replacement procedure. Up to four WCB medical advisors felt that there was no causal relationship. The treating surgeon sat on the fence and said that it may or may not be related. In the circumstances, it was submitted that no relationship could be established.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that his left trochanteric bursitis is predominantly attributable to the compensable left knee injury. On a balance of probabilities, we are unable to reach that conclusion.

In the panel’s opinion, there is insufficient evidence to establish that the worker’s left knee replacement caused him to develop trochanteric bursitis in his hip. In coming to this conclusion, the panel relied on the following:

• There is no opinion from a medical doctor to support a causal relationship between the total knee replacement and the trochanteric bursitis. The WCB orthopedic consultant, after consulting with two other orthopedic surgeons, concluded that the conditions were not related. The medical consultant to Review Office reviewed the causes of trochanteric bursitis and concluded that there was no probable cause/effect relationship in this case. The closest any doctor came to supporting a causal relationship was the treating surgeon who stated that the bursitis may or may not be related to the realignment of the worker’s leg which was performed at the time of the knee replacement surgery. The statement “may or may not” is not sufficient to establish causation on a balance of probabilities.
• There is a significant delay in time between the knee replacement surgery and the onset of hip discomfort. The first reference to hip pain was in the treating orthopedic surgeon’s letter of November 27, 2008. In that letter, he refers to the hip pain as a “new problem”. At the hearing, the worker explained that the hip problem was only new to the surgeon, as he had not previously reported it to the surgeon during his follow-up visits. The worker’s evidence was that he first noticed the hip pain in about November or December, 2007. Even if the panel accepts the worker’s evidence that the hip pain was first present in November, 2007, this is still approximately 15 months since the knee replacement surgery was performed.
• The panel considered the worker’s explanation that the medications he was taking for the knee replacement surgery masked the hip symptoms. He further indicated that as the focus was on his knee, he paid little attention to his hip, as comparatively, this was more minor. The difficulty with this position is that the masking would only explain to absence of symptoms for the first several months after the surgery. As noted earlier, approximately 15 months elapsed before the worker claims he first noticed the problem in his hip.
• The worker and his partner also gave evidence about the bruised state of his hip following surgery. His partner indicated that during the worker’s recovery in hospital, she was advised by the nursing staff that a large clamp had been placed on the worker’s hip during surgery. The worker felt that a soft tissue injury, as evidenced by the bruising, could be responsible for the bursitis. Again, the difficulty with this position is the delay in onset of the hip symptoms. If soft tissue damage had been caused by the clamping, presumably the hip difficulties would have manifested at a much earlier date.
• The worker suggested that the bursitis may be septic or infectious in origin and submitted information regarding the prevalence of infection in hospitals. This is a very speculative position and there is no evidence on file that the worker’s bursitis is septic in nature. On the contrary, the fact that the suggested treatment by the worker’s physicians was anti-inflammatories/steroid injections (as opposed to antibiotics) suggests that the bursitis was not related to an infection.