The Appeal CommissionThe Workers Compensation Act of Manitoba

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.

The worker is seeking ongoing benefits beyond October 30, 2006. 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 was represented by a worker advisor who made a submission and answered questions from the panel. The worker answered questions from her representative and the panel.

The worker advisor noted that the worker has had several workplace accidents related to her duties and that it is her position that she never fully healed from those accidents and that they contributed to her inability to return to work after October 30, 2006. She reviewed the various accidents with the worker. The worker described her symptoms at various times.

The worker described her job duties. She indicated that many of the duties required strength, such as bathing patients. Other aspects of her job subjected her to risks; such as walking on icy sidewalks to enter a client's home.

The worker advisor referred to WCB policy 44.10.20.10, Pre-existing Conditions, and asked the panel to consider the combined effect of the diagnosed degenerative changes along with the compensable injuries.

With respect to the February 1999 injury, the worker advisor noted that a WCB medical advisor commented that the surgery was an enhancement to the worker's pre-existing condition.

The worker advisor referred to the opinion of the occupational health specialist and noted he suggested that the individual injuries have interacted with one another and magnified the overall impact on the worker's function.

Employer's Position

The employer was represented by an advocate who made a submission and answered questions from the panel.

The employer's representative stated that the decision to end benefits was made only after extensive medical investigation, including several call-in examinations, a Pain Management Unit assessment, diagnostic testings, MRI's, CT scans, x-rays, arthroscopy, videos surveillance, as well as the opinion from treating specialists and medical practitioners. She said it is the employer's opinion that the worker's difficulties are due solely to significant pre-existing degenerative problems.

The employer's representative reviewed each claim and the related medical information. She submitted that in each claim, diagnostic testing revealed only pre-existing degenerative changes in both knees and the back, with the exception of the partial meniscal tear which was accepted.

The representative contrasted the medical reports provided by the occupational health physician with the report provided by the WCB orthopaedic consultant. She noted that the orthopaedic consultant indicated that the occupational health physician's observation that the worker's chronic pain was from her compensable injuries was made without a clinical diagnosis of musculoskeletal or neurological pathology.

The employer's representative advised that a graduated return to work was planned but that the worker declined to participate.

The employer's representative asked that the panel confirm the decision of Review Office that there is no further entitlement to benefits.

Analysis

The issue before the panel was whether the worker is entitled to benefits beyond October 30, 2006. For the worker's appeal to be successful, the panel must find that the worker's inability to return to work is the result of one of the noted workplace injuries. The panel was not able to make this finding. The panel found that the worker recovered from each of the noted workplace injuries and that there was insufficient evidence to support a finding that the worker's pre-existing condition had been enhanced by the injuries.

In arriving at its decision, the panel has considered each of the three workplace injuries.

1999 Injury

As noted previously, the worker injured her left knee when she slipped and fell on ice. While there was a suspicion of a meniscus tear, an arthroscopy was performed which found the meniscus intact. The post operative diagnosis was a synovial plica, patellofemoral chondromalacia, medial compartment chondromalacia and lateral compartment tibial chondromalacia.

The panel finds, on a balance of probabilities, that the worker recovered from this injury. In support of this finding the panel notes:

• The worker returned to work and no further complaints were received about the left knee.

• On June 24, 1999 a WCB medical advisor indicated the diagnosis was chondromalacia and synovial plica which had been aggravated by the compensable injury.

• On October 28, 1999 the WCB medical adviser opined that "…all findings at operative report are pre-existing, these should by now be recovered from the effects of compensable injury/operative report."

The worker advisor advanced the argument at the hearing that the worker's pre-existing condition had been enhanced by a combination of the three workplace injuries.

Regarding the 1999 injury, the worker's representative noted that on September 15, 1999 the WCB medical advisor examined the worker and commented that the worker should have recovered from her injury and surgery which he considered to be an enhancement of a pre-existing problem.

Although the medical advisor refers to enhancement, the panel notes the medical advisor previously diagnosed an aggravation of the pre-existing condition. The panel also notes that the medical advisor commented that the worker should have recovered from the injury. The panel notes there is no reference to ongoing problems with the right knee in the worker's files. As well, the clinical or diagnostic evidence does not support a finding that the left knee condition has been enhanced.

The worker's representative also submitted that the worker's left knee injury contributed to the enhancement of the worker's pre-existing conditions. She referred to the March 12, 2008 report of the occupational health physician who opined that as a result of the 1999 injury the worker relied on her right leg for strength and stability which contributed to the right knee degeneration.

The panel notes that a WCB medical advisor reviewed the worker's three claim files, considered this suggestion and concluded that it was "speculative." After our review of the evidence, the panel agrees with and adopts this opinion. The panel notes there is no reference in the medical reports on any of the claim files of ongoing problems with the left knee.

2004 Injury

The worker injured her right hip, arm and leg when she slipped on a wet floor. She states that she hit her right hip and landed on her right side, right hip and right leg. Her attending physician reported findings of right sacral muscle spasm with gluteal strain and sciatica.

The panel finds, on a balance of probabilities, that the worker recovered from this injury by November 2004. In support of this finding the panel notes:

• X-rays of the lumbar spine were basically normal.

• April 5, 2004 call-in exam notes by a WCB medical advisor indicate the worker demonstrates some evidence of pain behavior and pain focus. The medical advisor opines that the worker's pain and sensory findings are likely due to myofascial pain and that there may be a significant psychological component to her symptoms. A referral was made to the WCB Pain Management Unit.

• Surveillance video was reviewed by a WCB physiotherapy consultant who concluded that "In general, the claimant walked, stood, and moved her body in a normal way in the video, without the exaggerated postures adopted during the FCE (Functional Capacity Evaluation) August 30, 2004."

• Pain Management Unit Case Conference dated October 1, 2004 : "Based on the Pain Management Unit Assessment as well as the information on file, including the video surveillance, it is the opinion of the Pain Management Unit that the claimant does not meet the diagnostic criteria for a Chronic Pain Syndrome…"

• File review by WCB medical advisor, dated November 8, 2004 found no evidence that would relate to the compensable injury. She could not explain the worker's ongoing difficulties. The medical advisor noted the inconsistencies with her presentation at the FCE and in the surveillance.

The worker's representative argued at the hearing that this injury combined with the 1999 and 2005 injury caused an enhancement of the worker's pre-existing degenerative conditions. The panel notes, however, that when examined by the WCB medical advisor on April 5, 2004, the medical advisor reported that the worker does not have any right leg pain, but only pain to the right hip and then again at the right heel level.

The panel relies upon the May 27, 2008 opinion of the WCB orthopaedic consultant, who reviewed the worker's claim files including the 2004 claim file and concluded there is no relationship between the 2004 workplace injury and the worker's right knee degeneration. He noted the WCB medical advisor's call-in notes and also the absence of any mention of right knee joint pain in the progress reports from her family physician.

The panel is unable to find any relationship between the 2004 injury and the worker's right knee condition.

2005 Injury

The worker tripped on a carpet on stairs and fell injuring her right leg. She reports hearing a pop at the time of the fall. The worker was seen by an orthopaedic surgeon who diagnosed a strain and recommended temporary use of a splint. An MRI performed on January 6, 2006 found a tear of the posterior horn of the medial meniscus, intact lateral meniscus, and moderate degenerative changes in the medial compartment and medial patella. Degenerative changes were also noted in the posterior horn of the meniscus. A WCB medical advisor reviewed all the information and indicated that the accepted diagnosis was a tear of the medial meniscus with underlying, widespread, pre-existing degenerative disease of the knee.

The panel finds, on a balance of probabilities, that the worker had recovered from this injury by November 2004. In support of this finding the panel notes the opinion of the WCB orthopaedic consultant, May 27, 2008. In answer to the question "What affect did the workplace accident of 2005 have on the worker's pre-existing right knee condition?" The WCB orthopaedic consultant opined "The compensable diagnosis was accepted as a tear of the posterior horn of the medial meniscus right knee, with evidence of pre-existing degenerative articular changes….The tear was appropriately treated by limited arthroscopic resection. The pre-existing degenerative changes were not affected by the compensable injury of the claim."

The above opinion was also shared by another WCB medical advisor in a memo dated October 20, 2006. The medical advisor, in reference to January 2006 MRI, stated that the findings indicate there were pre-existing degenerative changes in the knee and that they are likely the cause of the worker's ongoing knee problems.