Decision #14/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker sustained a knee strain as a result of his July 2008 workplace injury and that he had recovered by January 28, 2009. It was felt that the worker's ACL injury and lateral meniscus tear was related to a non-compensable event. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on January 12, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after January 28, 2009.

Decision

That the worker is entitled to benefits after January 28, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB on August 6, 2008 for a left knee injury that occurred on July 28, 2008. The worker reported that he was coming down a ladder and he missed the last rung. He twisted his left knee. The worker indicated that he saw a doctor on July 29 who indicated that he may be off for a few weeks but could not tell as swelling was still on the knee.

On August 18, 2008, the worker advised the WCB that two months prior to the July 28, 2008 work injury he had injured his left knee playing soccer. While playing soccer he had gone to reach for the ball when his left leg went one way and his leg folded sideways. He sought medical treatment and was told that he sprained the outside ligament on his left knee and x-rays showed that he may have had a small partial tear. The worker indicated that he returned to work within one to two weeks and was able to return to his full regular duties without any ongoing difficulty. When he returned to work he was 90 to 95% back to normal. He wore a knee brace for two weeks. Initially, there was looseness in the knee and swelling which went down quite quickly. The worker noted that on July 29, 2008, he was up on a ladder changing a light bulb and when he was coming down the ladder he missed the last rung and landed on both feet but thought his left knee bent backwards or may have twisted. He said he came down pretty hard on his feet.

On October 17, 2008, the worker's file was reviewed by a WCB medical advisor at the request of primary adjudication. The medical advisor was asked to state what the diagnosis was in relation to the June 8, 2008 incident and to the work injury of July 28, 2008. His response was as follows:

"The worker had a knee sprain on both occasions. However the most recent work injury appears to involve his medial meniscus, as well as the MCL and ACL. The worker tells us that he was at about 90% recovered by the time the work injury occurred. I take this to mean that he still had some symptoms. This would be likely given the natural history of a knee sprain. In my opinion, the initial soccer injury likely made him more susceptible to the second work related injury. The laxity of the ACL following the first injury is noted as 1+; this is similar following the second injury. The difference is the medial joint tenderness. This would be a new injury to the knee joint. However the knee laxity from the first injury was likely a significant pre-existing condition."

The worker's claim for compensation was accepted and wage loss benefits were approved.

In a report by an orthopaedic specialist dated November 28, 2008, it was indicated that the worker had mild swelling of his left knee with a normal alignment. He had a positive Lachman and a positive pivot shift test. There was joint line tenderness medially and laterally. The specialist noted that based on a recent MRI, a complete ACL tear and a tear of the posterior horn of the lateral meniscus was noted. It was suggested that the worker undergo an arthroscopic ACL reconstruction with a hamstring tendon graft and a possible repair or debridement of his lateral meniscal tear. It was indicated that the worker would need physiotherapy rehabilitation after his surgery for about four months.

On December 12, 2008, a WCB medical advisor reviewed the file and outlined the opinion that the mechanism of injury and the clinical findings suggested that the worker had a significant pre-existing injury to his left ACL prior to the work related incident. It was indicated that the pre-existing injury was likely impacting the worker's recovery. The medical advisor recommended that a WCB orthopaedic consultant review the case prior to authorizing surgery given that the worker had a significant pre-existing injury to his affected knee preceding the incident at work.

On January 16, 2009, the WCB orthopaedic consultant outlined the opinion that the proposed surgery was not required because of the workplace injury but was due to the worker's non-compensable soccer injury which resulted in a complete ACL tear and possible other intra-articular injury. He felt that the compensable injury, missing the last step of a ladder, resulted in a temporary recrudescence and symptomatic flare up and awareness of the pre-existing injury, without causing an aggravation of that injury.

In a decision dated January 21, 2009, the worker was advised that in the opinion of the WCB, his ACL injury was a result of the soccer injury which pre-dated the workplace accident. The WCB was also of the view that "The compensable injury, missing the last step of a ladder, resulted in a temporary recrudescence and symptomatic flare up and awareness of the pre-existing injury, without causing an aggravation of that injury." The worker was advised that wage loss benefits would be paid to January 28, 2009 and final.

On March 30, 2009, the worker provided the WCB with new information from his treating physician and a physiotherapist for consideration.

In a report dated February 10, 2009, the physiotherapist stated, in part:

"After his initial injury, a partial ACL tear was in question. He subsequently reinjured his knee at work six weeks later. An MRI in October, 2008 confirmed a complete ACL tear and a posterior horn tear of the lateral meniscus of the left knee. It is difficult to discern when [the worker] completely tore is (sic) ACL since imaging was done after his second injury."

In a report dated February 17, 2009, the treating physician stated, in part:

"…As is evident by my notes, my suspicion for his first injury was of a partial ligament tear, which had shown signs of recovery on follow-up examination. Further and enhanced injury, I felt was related to his work-related injury, reflected by a significant increase in ligament laxity (ie. complete ACL disruption). Therefore, my opinion is that surgery reconstruction is warranted due to his work-related injury."

On May 1, 2009, the WCB orthopaedic consultant reviewed the new submitted information and stated that his opinion remained unchanged. On May 6, 2009, a WCB case manager advised the worker that it was still the WCB's position that his ACL injury to his left knee pre-dated his workplace injury and therefore no change would be made to the decision of January 21, 2009.

In a submission to Review Office dated June 11, 2009, a worker advisor contended that the facts of the case met the definition of an enhancement under WCB policy 44.10.20.10 Pre Existing Conditions: "Where a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition." The worker advisor asked Review Office to find in favor of granting entitlement to benefits and services beyond January 28, 2009.

On June 15, 2009, Review Office referred the case back to primary adjudication to make a determination on several issues. In particular, whether the worker's lateral meniscal tear was a result of the workplace accident.

On June 30, 2009, the case manager spoke with the worker's employer. It was reported that the worker was off work approximately 2 weeks after the soccer injury and then he returned to regular duties. They were working on a commercial project so it was all flat surfaces without any uneven ground. The worker did not make any ongoing complaints but it was obvious the worker was sore and tender as he had the knee in some sort of wrap. The employer reported that there was no time loss between when the worker came back from the soccer injury until the workplace accident.

On July 24, 2009, the WCB orthopaedic consultant outlined the opinion that on a balance of probabilities, the torn ACL and torn lateral meniscus arose out of the soccer injury on June 12, 2008 and not the workplace injury of July 28, 2008.

In a decision dated August 17, 2009, the case manager advised the worker that in the opinion of a WCB medical advisor, his ACL injury and lateral meniscal tear was related to the soccer injury and not the compensable injury.

On August 31, 2009, the worker advisor submitted to Review Office that the worker was progressing well in his recovery after the soccer injury (referring to the July 30, 2009 case manager conversation with the employer) and that the subsequent work injury caused a significant and enduring aggravation of his knee condition. The worker advisor submitted that the worker's compensable injury was responsible for his time loss after January 28, 2009 and his need for surgery performed on May 4, 2009.

On October 20, 2009, a medical consultant to Review Office answered four questions posed by Review Office. The consultant outlined the following opinions:

  • the worker had a classic manifestation of an ACL tear with the soccer injury and that the majority of such injuries were accompanied by lateral meniscal tears. Given that the worker would have been ACL deficient after the soccer injury, a pivot shift mechanism coming down the stairs would lead to similar physical findings. There were no substantial differences in the worker's clinical presentation.

  • the worker would have been able to perform activities that did not require stop/start or change direction prior to the workplace injury of July 28, 2008.

  • the compensable event of July 2008 was a manifestation of an underlying ACL deficiency and it was possible that he caused a subsequent cartilage tear. On a balance of probabilities, the cartilage tear happened after the first event.

  • that the worker's ACL injury and lateral meniscal injury would have happened at the same time.

Review Office provided the worker advisor with a copy of the consultant's October 20 opinion and asked her to comment on it. The worker advisor's response to Review Office is dated November 13, 2009. She stated:

"The question that needs to be addressed, then, is whether the worker would have needed the surgery when he did, or if at all, were it not for the compensable injury. As [the consultant to Review Office] confirmed, [the worker] likely experienced greater impairment of the knee following the compensable injury. Unlike the effects of the soccer injury, however, the impairment which developed following the compensable injury did not resolve on its own and surgery was eventually required. It remains our position that the facts of this case constitute an enhancement…".

On November 16, 2009, Review Office asked the WCB medical consultant to Review Office, to review the definitions of aggravation and enhancement and to clarify his opinion. On November 23, 2009, the consultant wrote to Review Office and indicated that:

  • the worker had neither an aggravation or an enhancement of his underlying anterior cruciate deficiency. He did not think that the July 2008 event changed the underlying anterior cruciate ligament or the underlying meniscus;

  • by November 2008, the worker was back to his baseline status based on the assessments of the physiotherapist and the orthopaedic surgeon; and

  • surgery for anterior cruciate ligament deficiency was elective.

On December 4, 2009, the worker advisor responded to the consultant's opinion of November 23, 2009. She outlined the position that the worker continued to have symptoms and restrictions related to the compensable injury that led to the need for surgery. In regard to the opinion that the surgery was elective, she considered this to be strictly a medical matter.

By decision dated December 10, 2009, Review Office concluded that the worker was not entitled to benefits after November 28, 2008 and that the claim costs after November 28, 2008 should be removed from the employer's cost experience. Review Office placed weight on specific file information to support its position that the worker sustained an ACL tear and lateral meniscus tear as a result of his non work related accident on June 8, 2008. It found that the worker did not aggravate or enhance his pre-existing condition which was the ACL tear and a lateral meniscus tear of the left knee. It felt that the worker's claim should have only been accepted for a left knee joint sprain and that the worker had recovered from this injury by November 28, 2008. On July 26, 2010, the worker appealed Review Office's decision to the Appeal Commission and an oral 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. This case deals with a request by the worker for ongoing benefits. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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.

The Board of Directors has established policy 44.10.20.10, Pre-existing Conditions, which deals with injuries that involve pre-existing conditions. It provides, in part, as follows:

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer

contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an

accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker represented himself at the hearing. He answered questions posed by the panel regarding his claim.

The worker described his workplace injury. He advised that he had just completed changing light bulbs, was descending from a ladder but missed the last rung on the ladder and landed hard on his left leg. He stated that his left knee buckled and he heard a major pop. He fell to the ground.

The worker acknowledged that he sustained an injury to his left knee while playing soccer on June 8, 2008. He said that he injured his left knee while participating in a scrimmage game between parents and children at the end of the childrens' soccer practice. He denied he was playing in a league game and said that he was not making a competitive effort.

In answer to questions from the panel, the worker compared the workplace injury to the soccer injury. He said the pain was much greater in the workplace injury. He rated the immediate pain in this incident to a 10/10 versus 4/10 in the soccer injury. He also advised that the swelling began within 10 minutes of the workplace injury, whereas; in the soccer injury the swelling was not immediate, developing over night. He said the swelling lasted for about 6 weeks with the workplace injury compared to about 2 weeks with the soccer injury.

Regarding the use of a brace, the worker advised that after both accidents he used braces, but that he continued to wear a brace after the workplace injury while he did not need a brace three weeks after the soccer injury. The worker advised that he wore a brace up to the date of surgery, and continues, as of the date of the hearing, to wear a brace for most activities.

Analysis

The issue before the panel was whether the worker is entitled to benefits after January 28, 2009. For the worker's appeal to be successful, the panel must find that the worker had not recovered from the workplace injury as of this date. The panel finds, on a balance of probabilities, that the worker is entitled to benefits beyond January 28, 2009.

The panel found the worker to be forthright and honest in answering its questions, and accordingly found his evidence to be credible on matters relating to the impact of both injuries on his ability to work, the degree of pain experienced and physical symptoms resulting from each injury.

The panel accepts the worker's evidence that the pain and swelling were significantly worse after the work injury.

Regarding his ability to work after the injuries, the worker advised that after the soccer injury he was off work for approximately two weeks. At the time of the workplace injury, approximately 7 weeks after the soccer injury, the worker was employed at regular duties. The worker advised that he was off work for approximately six weeks after the workplace injury and returned to light duties on September 8, 2008. The worker did not return to full regular duties until after the surgery. The worker said that after the soccer injury he was near 99% recovered and that prior to the surgery he was 75% recovered.

The panel also notes that until the workplace injury, the worker's medical file does not identify a need for surgery. The panel notes the worker's description of the accident and finds that the workplace accident was more severe. The worker missed the bottom rung on the ladder, landed hard on his left leg and fell to the ground.

The panel finds, on a balance of probabilities, that the worker is entitled to benefits after January 28, 2009. The panel finds that the workplace injury enhanced the worker's pre-existing condition.

With respect to the ACL tear, the panel acknowledges that this condition may have been caused by the soccer injury. However, the panel finds, on a balance of probabilities, that the worker's meniscus injury likely resulted from or was enhanced by the workplace injury.

In reaching this conclusion, the panel considered the opinion provided by the WCB Medical Advisor to Review Office on October 20, 2009. The panel notes that the physician commented that it is possible that a subsequent cartilage tear could have occurred in the workplace injury, although his view was that it likely happened in the soccer injury. The physician also commented that from a strict statistical perspective, ACL joint injuries are accompanied by meniscal tears from 60-80% of the time. In a subsequent memo, the physician opined that the worker had a perturbation of the knee joint and by November 28, 2008 had returned to baseline status (the same as the worker's pre-accident status).

The panel prefers the evidence of the worker, regarding the extent and impact of the workplace injury over the statistical information provided by the physician. Specifically the panel finds the worker's evidence regarding the impact of each injury including the evidence of his functionality after the soccer injury and lack of functionality after the workplace injury support the finding that the worker's prior soccer injury was enhanced by the workplace injury. Relying on this evidence, the panel also finds that the worker had not returned to his pre-accident status by November 28, 2008.

As a final note, the panel points out that a WCB medical advisor opined on October 17, 2008 that the medial joint tenderness was a new injury after the workplace accident and that the treating sports medicine physician concluded that surgery is warranted due to the work related injury.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 10th day of February, 2011

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