Decision #37/11 - Type: Workers Compensation
Preamble
On November 26, 2008, the worker slipped and fell during the course of her employment as a store clerk. Her claim with the Workers Compensation Board ("WCB") was accepted and benefits were paid to January 9, 2009 when it was determined that the worker's right hip, thigh and back condition had resolved. The worker has since appealed that decision contending that she still suffers from the effects of her compensable injuries and has a loss of earning capacity beyond January 9, 2009. A hearing was held on November 29, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond January 9, 2009.Decision
That the worker is entitled to wage loss benefits beyond January 9, 2009.Decision: Unanimous
Background
During the course of her employment as a store clerk on November 26, 2008, the worker slipped on a silk blouse that was laying on the floor and twisted her hips and upper legs.
A Doctor's First Report showed that the worker was treated on November 26, 2008 and was diagnosed with contusion to the right hip and thigh. There was tenderness in the paravertebral discs bilaterally. On December 5, 2008, the treating physician reported swelling and a large bruise and hematoma on the right hip and thigh.
A progress report dated January 5, 2009 indicated that the swelling and hematoma resolved and that there was increased range of motion in both hips. On January 21, 2009, the treating physician indicated that the worker was capable of full time hours as of January 12, 2009.
The worker received wage loss benefits to January 9, 2009 inclusive.
A progress report dated February 10, 2009 indicated that the worker had right knee pain when standing on her feet for prolonged periods of time. There was tenderness over the medial compartment on palpation. A right knee x-ray was ordered and the results did not identify bone, soft tissue or articular abnormality.
On March 12, 2009, the treating physician reported that the worker had some tenderness over the lower thigh, and right hip and bicep. Range of motion in the right knee was painful.
The next progress report is dated May 28, 2009. The worker was reported to have some discomfort in the right thigh and hip. Medication was prescribed.
On June 17, 2009, the treating physician noted that the worker had pain and tenderness in the right thigh, more after 4 to 5 hours on her feet. There was some tenderness over the biceps and medial aspect of the right knee. Physiotherapy was recommended and to reduce workday to 4 to 5 hours for a couple of weeks.
On June 29, 2009, a WCB medical advisor reviewed the file and stated that the original diagnosis was a contusion of the right hip and thigh and low back strain. The natural history of recovery from such conditions was 2 to 6 weeks. The January 21, 2009 report indicated resolution of the conditions with a return to regular duties. He said it was not clear if the right hip and knee symptoms reported on June 26 were materially related to the effects of the compensable injury. The medical advisor indicated that a definite relationship between the current right hip and knee symptoms was difficult to appreciate. A resolution appeared to be completed by the end of January 2009.
In a decision dated June 30, 2009, the worker was advised that there was no medical evidence between January 2009 to June 2009 to support that her ongoing right knee and hip difficulties were related to the injury sustained in 2008.
On September 22, 2009, the worker was assessed by a physical medicine and rehabilitation specialist. He noted that the worker initially experienced hip, low back, knee and thigh pain and now had hip, thigh and mainly right knee symptoms with trouble walking and during activities. The worker reported a give-way of the right knee. He suspected multi-compartmental osteoarthritis of the right knee and possible aggravation of some degenerative meniscal tears or new meniscal tears, or possibly other knee internal derangement. There was some thigh soft tissue tenderness of uncertain exact significance. He felt that this could be residual symptoms of the earlier strain/contusion or secondary to hematoma, or secondary to altered biomechanics of movement with pain in the knee.
In October 2009, the worker was seen by a physician at a sports clinic. The physician outlined the opinion that the worker may have had a strain to the hamstring musculature which had persisted and resulted in some stiffness to the leg and there may also be some internal derangement at the knee. He noted that the worker appeared pain focused on the examination. A scan of the knee was suggested.
On December 2, 2009, the worker was examined by a WCB medical consultant. The medical consultant opined that the likely diagnosis at the time of the compensable injury was a right thigh contusion, hamstring strain or tear and possible knee injury including possible medial meniscus injury. He noted that the worker's subsequent return to unrestricted work duties at 8 hours per day for several months would be consistent with the above noted diagnosis. He felt the worker had developed a degree of pain focus and had restricted movements and activities with the right leg. A period of physiotherapy was suggested.
In a decision dated December 21, 2009, it was determined by the WCB that the worker was not entitled to wage loss benefits beyond January 2009 as there was no correlation between the worker's current symptoms and her compensable injury. On January 31, 2010, the worker appealed the decision to Review Office.
Prior to considering the worker's appeal, Review Office contacted the worker's employer on March 24, 2010. The employer confirmed that the worker returned to work on January 12, 2009 and worked until September 18, 2009 inclusive. During this time period, the worker complained to the manager and her co-workers about her leg and knee difficulties. The worker did not report any new accidents during this time period.
Review Office obtained a copy of the MRI report of the right knee taken February 23, 2010. The results showed a small joint effusion and a small Baker's cyst. The impression read "Chondromalacia of the patellofemoral joint."
At the request of Review Office, a WCB orthopaedic consultant reviewed the case on March 31, 2010. In his opinion, the compensable injury of November 26, 2008 was a contusion and hematoma of the right thigh and it was reasonable to expect that the conditions would have resolved within three months with no residual symptoms. With respect to the right knee, the consultant felt there was no objective medical evidence to demonstrate a causal relationship between the compensable injury and knee symptoms reported after January 2009. He noted that chondromalacia of the patello-femoral joint was a degenerative condition which was probably a pre-existing condition. The clinical findings and the MRI findings did not demonstrate objective evidence of any aggravation or enhancement of this pre-existing condition because of the compensable injury.
On April 8, 2010, Review Office provided the worker with the information that it obtained and the worker was invited to make a written response to the new information. On April 20, 2010, the worker provided Review Office with her submission.
On April 28, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond January 9, 2009. Review Office accepted that part of the worker's compensable injury was a hematoma to her right hip and thigh and based on reports from the attending physician, the worker had recovered from the effects of her hematoma in January 2009.
Review Office stated that it was unable to relate the worker's report of medial right knee symptoms to the workplace accident, noting that the medical reports following the worker's accident did not demonstrate any specific right knee injury. Review Office agreed with the WCB orthopaedic consultant's opinion that there was no objective evidence to support that the worker's condition was aggravated or enhanced as a result of the compensable injury. It felt that the Baker's cyst and small joint effusion found on the MRI 15 months after the workplace injury was not related to the workplace accident.
Review Office concluded that a strain to the worker's hamstring musculature could have occurred as a result of the workplace accident but that the injury alone, persisting beyond January 2009, would not have prevented the worker from performing her regular work activities with regularly scheduled breaks.
Review Office noted that the worker was thought to have demonstrated pain behaviors during multiple examinations but felt the evidence currently on file did not support that these behaviors were related to the accepted compensable injuries or would have precluded her from working.
On June 1, 2010, the worker was interviewed at the WCB's Pain Management Unit (PMU). In a subsequent case conference held on June 17, 2010, it was determined that the worker was not experiencing any Axis 1 Disorder or psychological disturbance causally related to the compensable injury.
On June 24, 2010, the worker appealed Review Office's decision dated April 8, 2010 to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel requested additional information from the worker's physician and treating physiotherapist. The information was later received and was forwarded to the interested parties for comment. On March 17, 2011, the panel met further to discuss the case and rendered its final decision.
Reasons
Applicable Legislation
The issue in this case is whether the worker is entitled to wage loss benefits beyond January 9, 2009.
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(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 time as the worker’s loss of earning capacity ends.
Worker's Position
The worker attended and with the assistance of an interpreter explained her position and answered questions posed by the panel. The former manager of the store attended the hearing with the worker.
The former manager of the store described the worker's duties at the time of the injury. She advised that the worker's first position was in the production area working as a sorter. The worker was moved to the selling floor where she was responsible for hanging clothes, putting them out on the floor, keeping the departments neat and tidy, and helping customers. She was working on the selling floor when she was injured.
The former manager also described the worker's duties and modifications that were made when she returned to work after the injury. She advised that the worker returned to the sorting area.
The worker explained that after the injury it has been difficult for her to work a full 8 hour day and that she often works reduced hours, being supplemented by sick leave and vacation entitlements. The former manager confirmed this information.
The worker explained that she was injured when she stepped on an article of clothing causing her to slip and do the splits. She demonstrated how her legs split apart and she hit the inside of her right knee on the corner of the change room doorway.
On a diagram (exhibit 1), she marked the areas where she initially felt pain and had swelling and where the current pain and swelling are located. The worker indicated that she immediately felt pain across her knee, behind her knee and up the back of her thigh.
Regarding her knee injury, she said that information on the internet indicates that chondromalacia can be caused by aging and trauma. She feels the WCB is wrong to attribute her condition to aging and not to the trauma of hitting her knee on the edge of the change room.
Although the worker returned to work in January 2009 as recommended by her treating physician, she had difficulties at work. She explained that she had to lay-off work again in September 2009 because the pain killers were not working, she should could not sleep and was "completely broken."
Employer's Position
The employer was represented by its Regional Human Resources Manager. The former manager of the store where the worker was employed was present and also provided information.
The employer's representative advised that the employer was supportive of the worker's claim. The former manager indicated that the worker was able to perform her duties without problems before the accident but could not perform her duties after the accident, so she was provided modified employment. She described the modifications which were made to the worker's duties and work area. She explained that the worker returned to the sorter position as it was considered lighter duties. The worker was provided with a stool to sit on, was given more breaks, allowed to rest on a sofa in the staff room, and received assistance from co-workers moving the heavier bags of clothing. She stated that even with modifications, the worker could not perform all the duties.
The former manager confirmed that before the injury the worker had no difficulty performing her duties. She said after the injury, there were days when the worker could not work the assigned hours. She allowed the worker to leave early on her "bad days" and apply her sick pay or vacation to supplement her reduced hours. She noted that after the injury, the worker had difficulty walking and complained of pain, behind her knee in the lower thigh area. She was not aware of complaints specifically regarding the front of the knee.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond January 9, 2009. In order for the worker’s appeal to be successful, the panel must find that the worker was unable to resume her pre-accident employment due to the ongoing effects of her workplace injury. On a balance of probabilities, the panel is able to make that finding.
To assist with its deliberations the panel sought additional medical information from the treating physician and the treating physiotherapist. The treating physician provided a detailed narrative report which included information not previously on the file. The additional information provides continuity and ongoing evidence of the condition in the worker's knee area. Of particular relevance are the reports of continuing swelling/puffiness of the popetiel fossa and the posterior aspect of the right thigh from the date of the workplace accident and beyond January 9, 2009. The panel finds, on a balance of probabilities, that these conditions and related flare-ups, were caused by the workplace injury and have caused functional limitations which impaired the worker's ability to work.
The panel also notes the information provided in the attending physician's narrative report confirms the worker's ongoing difficulties in attempting to return to full-time employment.
The worker's appeal is allowed. The file is returned to the WCB to adjudicate matters related to specific entitlements beyond January 9, 2009.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of March, 2011