Decision #173/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to compensation benefits after January 24, 2011 in relation to his left knee injury of August 31, 2007. A hearing was held on November 17, 2011 to consider the matter.Issue
Whether or not the worker is entitled to benefits after January 24, 2011.Decision
That the worker is entitled to benefits after January 24, 2011.Decision: Unanimous
Background
The worker twisted his right knee on August 31, 2009, when he stepped down from his truck.
An MRI examination performed on September 22, 2009 revealed moderately severe osteoarthritis. There was also medial meniscus degeneration with degenerative tearing in the posterior horn. The claim for compensation was accepted by the WCB and benefits were paid to the worker.
On November 24, 2009, the worker was seen by an orthopaedic specialist in regards to his knee condition. The specialist noted that the worker had an open medial meniscectomy about 50 years ago and that the worker was symptom-free until the work-related twisting episode. Following examination, the specialist opined that the worker likely suffered a meniscus tear at the time of his accident but he had significant underlying degenerative changes in the knee. The specialist was of the view that the work-related injury was an aggravation of a pre-existing condition. Treatment recommendations were an unloader brace and viscosupplement injections. If these forms of treatment did not work, a total knee replacement would have to be contemplated.
A WCB medical advisor reviewed the orthopaedic specialist's report on December 21, 2009. He felt the treatment prescribed by the specialist was reasonable. He stated: "The response to these treatments should be reviewed prior to surgical intervention discussions. Surgery targeted at the medial meniscus would be related to the noted injury. The proposed total knee replacement would likely be related to pre-existing changes at this time rather than the noted diagnosis of a medial meniscus tear."
On March 16, 2010, the family physician reported to the orthopaedic specialist that the worker noted a 10 to 20% improvement in his knee after receiving three viscosupplement injections. The worker was still wearing the unloader brace and was taking medication for his knee. The physician suggested that the worker undergo another series of injections and/or physiotherapy as the worker was not inclined to have the knee replacement surgery.
On April 13, 2010, the orthopaedic surgeon reported that the worker had some varus of the left knee and some medial tenderness. There was slight pseudolaxity and some crepitus with range of motion. He noted that the worker wanted to avoid a total knee replacement and therefore he was arranging for further viscosupplement injections.
The file was reviewed on April 7, 2010 by a WCB medical advisor. He stated: "Given the mechanism of injury, the assertion that the worker did not have difficulty prior to this injury, and the report from the treating orthopaedic surgeon, it appears that the torn medial meniscus appears to have on the basis of probabilities a partial material influence on his current status."
On June 18, 2010, the WCB medical advisor reviewed the file again and stated that the worker's current presentation, on a balance of probabilities, would be medically accounted for in relation to the workplace injury. There had been no appreciable improvement in symptoms or objective findings to suggest resolution of the worker's knee condition.
On December 10, 2010, the WCB medical advisor stated:
"It appears that treatment at this time is directed to the preexisting tricompartmental osteoarthritis (viscosupplementation, medial unloader bracing, possible total knee replacement and activity modification). The latest report by the treating orthopaedic physician documents "no particular point tenderness" suggesting no clinical evidence of continuing medial meniscus pathology. There is noted crepitus and varus alignment of the knee suggesting degenerative change. It appears that the current symptomology would be consistent with degenerative changes i.e. arthritis of the knee rather than the workplace injury of a medial meniscus tear. As such, the current presentation would not be medically accounted for in relation to the workplace injury."
On January 17, 2011, it was determined by the case manager that the worker had recovered from the effects of his compensable injury and that any ongoing problems were related entirely to his pre-existing knee condition. Based on the decision, the worker was not entitled to compensation benefits beyond January 24, 2011.
Subsequent to the above decision, the family physician referred the worker to a physical medicine and rehabilitation specialist for an evaluation. In his referral letter dated January 24, 2011, the physician outlined his opinion that the worker continued to be disabled and that his current disability was the direct result of the injury he sustained in the work related accident.
In a report dated February 18, 2011, the physical medicine and rehabilitation specialist stated:
Although he likely had degenerative changes affecting the left knee for years prior to this incident, this was not a clinically relevant pre-existing condition. However, after having sustained a medial meniscal tear, his reserve for healing has been sufficiently challenged such that he likely still has evidence of left medial meniscal pathology…On a balance of probabilities, his pre-existing condition has been enhanced as a result of his workplace injury. In other words, the natural history of his previously quiescent and pre-existing degenerative left knee condition was adversely affected and permanently altered by the work-related medial meniscus tear.
A WCB medical advisor reviewed the file and stated on March 12, 2011:
The compensable diagnosis of medial meniscus tear had objectively recovered by the evidence presented. The current diagnosis is asymptomatic OA of the knee for which treatment is being directed. Insofar as the medial meniscus injury is the compensable diagnosis, the noted compensable injury did not permanently alter the medial meniscus as evidenced by the lack of clinical findings to suggest continuing medial meniscus pathology.
On March 21, 2011, the case manager advised the worker that there would be no change to the previous decision based on the medical advisor's opinion of March 12, 2011. On May 12, 2011, a worker advisor appealed the decision to Review Office. It was submitted that the worker's accident had enhanced the pre-existing osteoarthritis in his knee and that he was entitled to ongoing benefits based on WCB policy 44.10.20.10, Pre-existing Conditions.
On June 28, 2011, it was decided by Review Office that the worker was not entitled to benefits after January 24, 2011. Review Office outlined the view that the worker's accident did not enhance the pre-existing degenerative changes in the knee and that the WCB's long term responsibility was limited to the torn meniscus and not the entire meniscus. Review Office noted that the worker would never recover fully from the accident and that the torn meniscus could settle and be asymptomatic which had occurred in this case. It was felt that the aggravation of the pre-existing degenerative changes had ended. On July 22, 2011, the worker advisor appealed
Review Office's decision to the Appeal Commission and a 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.
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 assisted by a worker advisor at the hearing. It was the worker's position that he had not recovered from the effects of the compensable injury and that he continued to suffer from the effects of that injury. WCB Policy 44.10.20.10 provided for benefits to be paid to workers where there is an ongoing relationship between the compensable injury and a pre-existing condition. That was the case in this situation. There was no question that the worker had degenerative changes of his left knee prior to the compensable accident. The workplace accident, however, resulted in an aggravation which caused the degenerated structures to become and remain symptomatic. This was supported by medical opinions from the worker's general practitioner and a physical medicine and rehabilitation specialist. As the demands of the worker's regular pre-accident work were beyond his current capabilities, the worker had an ongoing loss of earning capacity. The panel was asked to recognize the effects of the compensable injury and grant the worker's appeal for entitlement beyond January 24, 2011.
Analysis:
The issue before the panel is whether the worker is entitled to benefits beyond January 24, 2011. In order for the appeal to be successful, the panel must find that the worker's difficulties with his left knee continue to be related to his compensable workplace injury. After reviewing the evidence as a whole, we find on a balance of probabilities that the worker does continue to suffer from an aggravation of the pre-existing degenerative changes in his left knee and accordingly, the worker is entitled to benefits after January 24, 2011.
At the hearing and throughout the file, the worker's evidence was that aside from knee surgery he had over 50 years ago, he never experienced problems with his left knee. The work he was performing pre-accident was very physical and required him to be on his feet 80% of the time, loading and unloading boxes from a five ton truck. His second job, which he performed from 5:00 to 8:00 am in the morning before he reported for his regular position, also required him to be mobile loading and unloading boxes. He often had to pull backwards on a skid and this placed a lot of stress on the knees. The worker's evidence was that he never had any problems performing this kind of work before his accident, despite the pre-existing osteoarthritis. Further, even though degenerative changes were also present in his other knee, he had never experienced any problems on the right side.
It was only since the accident that the worker had problems on the left side. The treatment which he received for his left knee (and for which responsibility was initially accepted by the WCB) was limited to the use of an unloader brace, and visco-supplementation injections. When receiving the injections, the worker indicated that he felt good and regained much of his function. When the treatment stopped, however, he reverted back to the same level and type of pain in his left knee. The same clinical signs were present. In the circumstances, the panel accepts that the aggravation of the worker's pre-existing degenerative changes had not resolved and that the ongoing symptoms continued to be related to his workplace injury.
This decision is supported by the February 18, 2011 opinion of the physical medicine specialist who indicated that the worker's recovery from the trauma sustained in the course of the workplace incident was incomplete. We caution, however, that while the physical medicine specialist opined that the pre-existing condition was permanently altered and therefore enhanced by the workplace injury, the panel is not prepared to make such a finding at this time. We agree only that the worker's recovery is incomplete and that he continues to suffer from an aggravation of his pre-existing osteoarthritis.
With respect to the medial meniscal tear, the panel agrees with Review Office's determination that while the compensable torn meniscus remains present in the worker's knee, that condition has settled and is asymptomatic at this time. In the event that the worker experiences a return of medial meniscal pathology in the future, the WCB may revisit the worker's entitlement to benefits for that condition.
The panel therefore finds that the worker is entitled to benefits after January 24, 2011 at this time. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of December, 2011