Decision #23/12 - Type: Workers Compensation

Preamble

The worker sustained an injury to his right knee in a work-related accident. He also sustained a secondary injury to his left shoulder while attending a reconditioning program. By September 9, 2009, it was determined by the WCB that the worker had recovered from his left shoulder strain and that his ongoing difficulties with his right knee were unrelated to the compensable accident. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on November 25, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 9, 2009.

Decision

That the worker is not entitled to wage loss benefits beyond September 9, 2009.

Decision: Unanimous

Background

On August 2, 2006, the worker reported that he was placing his work bag into the back of a taxi cab on his way to the next job site when he felt his right knee buckle inwards toward his left knee. An MRI of the right knee taken September 18, 2006 revealed a tear in the periphery of the medial meniscus at the posterior body and posterior horn. There was a bone bruise of the lateral femoral condyle. The claim for compensation was accepted by the WCB and on April 2, 2007, the worker underwent a partial medial meniscectomy, resection of the medial plica, chondroplasty of the patella and removal of a loose body.

Follow-up medical reports showed that the worker commenced physiotherapy treatment but continued to experience right knee pain. When seen by a WCB medical advisor on July 18, 2007, it was confirmed that the current diagnosis was a right medial meniscus tear. The medical advisor noted that the operative report of April 2, 2007 showed some osteoarthritis of the patellofemoral joint and that this was likely a pre-existing condition.

On August 29, 2007, the treating physician reported that the worker's medial meniscal tear appeared to be settling with minimal residual findings at the joint line. The worker, however, still had significant medial knee pain over the vastus medialis and the medial patellar structures. A repeat MRI was arranged.

The second MRI was done on October 11, 2007. The results were read as showing: "Interval improvement since September 2006. Small longitudinal tear in the periphery of the body of the medial meniscus is noted. This has improved."

In a December 14, 2007 report, an orthopaedic specialist reported his examination findings related to the worker's right knee. He concluded that the worker would not benefit from any further surgery and was puzzled as to the genesis of his present ongoing complaints. A work hardening program was recommended.

In June 2008, the treating physician arranged for the worker to undergo a new MRI and to see a different orthopaedic surgeon due to his continued knee complaints.

On August 20, 2008, a WCB orthopaedic consultant commented that the July 31, 2008 MRI of the right knee showed signal intensity within the medial meniscus with no definite extension to the meniscal surface. He noted that the worker was also seen by an orthopaedic surgeon on August 7, 2008 who did not report any new findings. An x-ray of the pelvis and right knee including the patella showed no bony abnormalities. In view of no new findings by the orthopaedic surgeon or in the MRI, the consultant recommended that the worker undergo a functional capacity evaluation (FCE). This was carried out on September 19, 2008.

On October 3, 2008, another orthopaedic surgeon recommended a second knee scope given the worker's ongoing knee pain.

On October 22, 2008, the WCB accepted financial responsibility for the costs associated with the arthroscopic repair or debridement of the medial meniscus of the right knee. The WCB did not accept responsibility for the degenerative joint disease of the patellofemoral joint.

On November 17, 2008, an arthroscopy of the right knee was carried out. The postoperative diagnosis was Grade III chondromalacia medial patellar facet. The operative report indicated: "No meniscus tear could be identified."

In a follow up report dated December 17, 2008, the orthopaedic surgeon reported that the worker was still having some aching laterally which may be due to patellofemoral syndrome secondary to quadriceps weakness. The worker was referred to physiotherapy.

On January 23, 2009, the physiotherapist spoke with a WCB case manager. He stated there were a number of pain behaviors noted and was not sure if the worker's continuing difficulties were related to a pre-existing medical condition (Lyme Disease). The therapist indicated that the worker would benefit from a reconditioning program to prepare him for a graduated return to work.

The worker started the reconditioning program in late March 2009 but injured his left shoulder. The diagnosis made by the treating physician was a left shoulder strain.

On March 24, 2009, the treating physiotherapist reported that the worker developed left shoulder pain after his first treatment session and after seeing a physician, he was advised to wear a sling. Despite this, the worker attended treatment regularly and put forth a reasonable effort. Throughout the 3 weeks of therapy, the worker complained of progressive knee pain with clicking and point tenderness along the medial joint line. Objectively there was no evidence of swelling, effusion, meniscal impingement or instability. It was stated that there had been no change in the worker's subjective pain experience or pain avoidance behaviors.

On May 13, 2009, the worker's right knee and left shoulder were examined by a WCB orthopaedic consultant. The consultant noted that the worker's knee discomfort did not appear any more marked than when he was examined on July 9, 2008. There was no knee effusion and no atrophy, and no signs of a meniscal tear. The consultant stated that the worker's apparent disability was out of proportion to the physical and arthroscopic findings and the imaging studies. The chondromalacia was not consistent with the work related injury and was likely a pre-existing degenerative condition unaffected by the work related injury.

With regard to the left shoulder, the consultant reported no objective physical findings. He indicated that shoulder x-rays dated March 4, 2009 showed mild degenerative changes of the AC joint. He felt that the worker's shoulder strain sustained during his work hardening program should have healed and that the current shoulder complaints were not related to the strain of three months ago.

The consultant indicated that the November 2008 knee surgery confirmed the torn meniscus had been adequately treated. There may be patellofemoral pain from the chondromalacia of the patella but the chondromalacia was likely not due to a work related injury. He said there were no reports on file that would indicate any relationship between the work related injury and Lyme disease.

In a decision dated June 24, 2009, the worker was advised that the WCB would pay him wage loss to September 9, 2009 inclusive. The case manager based her decision on the WCB orthopaedic consultant's opinion from May 2009 that any ongoing right knee and left shoulder difficulties were not related to his August 2, 2006 compensable injury. On July 6, 2009, the worker appealed the decision to Review Office stating that the WCB orthopaedic consultant's report failed to point out numerous facts.

On August 14, 2009, an advocate representing the employer stated to Review Office that she concurred that the worker's right knee symptoms were due solely to grade III chondromalacia patella and that the decision made by the case manager was appropriately based upon exhaustive, extensive medical investigation.

On August 26, 2009, Review Office asked a WCB orthopaedic consultant assigned to Review Office to provide an opinion on whether the worker would require medication on an ongoing basis as a result of his compensable injuries. The consultant responded that a specific medication taken by the worker was not related to his compensable right knee injury but was a requirement for the complications associated with Lyme disease. He said the additional benefit of the medication for knee pain was related to the degenerative joint disease of the right knee which was not related to the compensable injury.

In a decision dated August 26, 2009, Review Office outlined the decision that the worker was not entitled to benefits after September 9, 2009. With regard to the worker's right knee, Review Office noted that the surgery performed on April 2, 2007 consisted of treatment beyond the worker's medial meniscus which was not related to the August 2, 2006 workplace accident. It found that the second surgery performed on November 17, 2008 was performed to another area of the worker's right knee that was also not related to the compensable injury. It noted that on May 5, 2009, the physician recorded: "He still has pain in his knee, chondromalacia." Review Office was therefore of the opinion that the worker's chondromalacia represented a pre-existing condition that was not caused by or aggravated by the worker's accident on August 2, 2006. Further, Review Office accepted the opinion expressed by the WCB orthopaedic consultant on May 13, 2009 that the worker had recovered from the effects of his left shoulder injury.

On December 22, 2009, the Worker Advisor Office provided Review Office with a report from an occupational health physician dated December 9, 2009 to support that there was a causal relationship between the worker's current right knee difficulties and his compensable injury.

In a submission to Review Office dated February 23, 2010, the employer's advocate noted that the occupational health physician argued that the worker's pre-existing condition was enhanced by the compensable incident. She indicated that the repeat diagnostic testing and examination did not bear this out. Based on the medical evidence and the opinion of the specialists on file, the representative asked Review Office to reaffirm the decision to deny the worker's appeal.

On March 2, 2010, the worker advisor responded to the employer's submission of February 23, 2010. The worker advisor noted that the worker was diagnosed with a right medial meniscus tear following the August 2006 injury. He did not recover and required additional procedures on the right medial tibiofemoral, patellofemoral compartments and the pre-existing patellar chondromalacia. The occupational health physician outlined the opinion that the worker's ongoing right knee difficulties were in the patellofemoral compartment. He referred to a research article which stated, "partial meniscectomy may correct a torn meniscus but the loss of cushioning increases contact pressure and may enhance the evolution of degenerative osteoarthritic changes." The worker advisor's position was that the evidence supported that the worker's pre-existing right knee condition was enhanced by the April 2, 2007 surgical treatment and additional procedures and that the WCB should accept responsibility.

On March 12, 2010, Review Office confirmed that the worker was not entitled to benefits beyond September 9, 2009. Review Office indicated that the accepted compensable diagnosis was a medial meniscus tear. The November 17, 2008 surgery report stated in part that no meniscus tear could be identified. Review Office concluded that based on the file evidence, the worker had recovered from the effects of his compensable medial meniscus tear and any ongoing right knee difficulties beyond September 9, 2009 were unrelated.

Review Office agreed that the worker's chondromalacia was treated surgically and that the worker may have difficulties as a result of this condition. It felt, however, that the condition was not compensable. Review Office indicated that the surgeon performed procedures on the worker's pre-existing condition while surgically repairing the compensable condition. This did not mean that a pre-existing condition became compensable. On March 17, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 25, 2010.

After the hearing and discussion of the worker's appeal, the appeal panel requested information from the worker's treating surgeon. The reports from the surgeon dated May 18, 2011, May 17, 2011 and an MRI report April 15, 2011 were later received and copies were forwarded to the interested parties for comment.

On June 29, 2011, the panel met further to discuss the case and arranged for an independent orthopaedic surgeon to review the worker's file and provide an independent medical opinion regarding the diagnosis of the worker's current knee condition and its relationship to his compensable injury. A report from the independent orthopaedic surgeon dated December 6, 2011 was later received and was forwarded to the interested parties for comment. On January 11, 2012, the panel met and rendered its final decision on the issue under appeal.

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. The worker's position was that his diagnosis of lateral patellar subluxation was causally related to the August 2, 2006 compensable injury and therefore the WCB should accept responsibility for benefits and services beyond September 9, 2009. It was noted that the worker had been performing his job duties for over 26 years with no knee difficulties. After the workplace accident of August 2, 2006, the worker thought he dislocated his knee. He underwent surgery for medial meniscal tear, but he did not respond to the repair or the treatment which followed the surgery. Following the surgery, the worker had difficulty walking long distances and climbing ladders. In August, 2010, he saw an orthopaedic surgeon who diagnosed him with a lateral patellar subluxation and stated that he had a well preserved cartilage space. The surgeon recommended a stabilizer brace and the worker found that the brace provided him with exceptional relief such that he could now walk long distances, climb stairs, golf and perform most activities without pain or discomfort. In November, 2010, another orthopaedic surgeon examined the worker and confirmed the diagnosis of subluxation and attributed this condition to the mechanics of the 2006 injury. Overall, the evidence supported that the worker's current diagnosis of lateral patellar subluxation was causally related to the 2006 injury and he should be entitled to benefits beyond September 9, 2009.

The employer’s position:

An advocate appeared on behalf of the employer at the hearing. The employer was in support of the Review Office decision and it was submitted that the worker had been adequately compensated for three years for his work-related right knee injury. There was extensive medical investigation on file and the evidence all confirmed that the worker's ongoing problems were due solely to a non-compensable condition. The compensable condition was a partial tear to the medial meniscus, which was addressed by surgery. Subsequent imaging and findings on arthroscopy indicated that the medial meniscus was stable. It was submitted that any subsequent findings of chondromalacia patella or subluxation were not compensable and not the responsibility of the WCB.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss benefits beyond September 9, 2009. In order for the appeal to be successful, the panel must find that the worker’s ongoing right knee difficulties after September 9, 2009 are related to the knee injury which the worker sustained in the course of his employment on August 2, 2006. After reviewing the evidence as a whole, we find on a balance of probabilities that the worker's current difficulties are not a result of the injury sustained in the August 2006 accident and accordingly, the worker is not entitled to wage loss benefits beyond September 9, 2009.

At the hearing, the worker's evidence was that the pain in his knee: "has pretty well been the same since the injury in 2006." He stated that despite the surgeries, the pain had never moved. The condition never got any worse or any better. He had attempted to participate in return to work reconditioning but continued to be hampered by knee pain.

In August, 2010, an orthopaedic surgeon suggested a patellar stabilizer brace. The worker described having great success with the brace and when he wore it, he no longer had any problems with his knee. The worker found that if he adjusted the brace in a certain way, the brace moved the positioning of his patella and he would be pain free. So long as he wore the brace, he felt that he had no limitations on his ability to mobilize on his right knee.

At the time of the hearing, the worker advised the panel that he had recently been assessed by a new orthopaedic surgeon who specialized in kneecaps and that a further MRI scan was being scheduled. The new surgeon was not prepared to discuss further treatment options with the worker until the MRI had been performed.

Following the hearing, the panel requested updated information regarding the worker's condition. The treating orthopaedic surgeon provided two reports dated May 17, 2011 and May 18, 2011, respectively. In the reports, the orthopaedic surgeon noted the following:

  • the etiology of the worker's right knee complaints seemed to be patellofemoral pain and instability;
  • the worker had ongoing anterior knee pain with a recent MRI, done April 15, 2011, demonstrating lateral subluxation of the patella;
  • The worker's symptoms of chondromalacia persist and were controlled with a patellar stabilizing brace;
  • The surgeon stated: "I do feel that his symptoms are as a result of a work-related injury of 2006. I am enclosing a copy of the recent MRI test. We have talked about further intervention including possible lateral release." The surgeon did not provide further elaboration as to how he formed his opinion on causation.

Following receipt of the information from the new treating orthopaedic surgeon, the panel sought the medical opinion of an independent orthopaedic surgeon with no prior involvement in the claim. The independent orthopaedic surgeon was asked to conduct a comprehensive review of the medical file and provide his opinion on the worker's current diagnosis and whether there was a causal relationship to the workplace injury of August 2, 2006. The independent orthopaedic surgeon produced a 12 page report dated December 6, 2011 which stated as follows:

  1. The description of the injury and how it occurred would be of very low velocity type of injury. It would have been most unusual to cause a significant ligamentous injury, possibilities would be bruising or damage to articular cartilage or possibly a meniscal tear, certainly one would need enough bending or flexion as well as rotation.
  2. There was the possibility of subluxation or dislocation of the patella but one would have anticipated more tenderness along the medial border of the patella and not only tenderness over the medial joint line. Hence the initial impression was of a medial collateral ligament strain, which would have been expected to improve with time.
  3. On the balance of probabilities, there is no ongoing identifiable pathology in or around the right knee that can be causally related to the August 2, 2006 injury.
  4. Symptomatology and complaints vary from the early months to the later years. No examining physician has been able to confirm patellar instability in the initial years until this was brought up by [treating orthopaedic surgeons]. I see no evidence to suggest their findings or impression in any way relate to the August 2, 2006 injury.
  5. The mechanism of injury described though variably described, could be consistent with patellar subluxation or abnormal tracking. However, there is essentially no clinical information or diagnosis of this condition in the first three years post injury.

The panel is of the view that the independent orthopaedic surgeon conducted a thorough analysis of the worker's medical history and we see no reason to vary from his conclusions. We acknowledge the worker's response to the report as per his letter dated December 15, 2011, but the points he raises do not convince us that the conclusions of the independent report should be disregarded. The panel therefore accepts the opinion of the independent orthopaedic surgeon that on the balance of probabilities, there is no ongoing identifiable pathology in or around the right knee that can be causally related to the August 2, 2006 injury. In particular, the panel notes the comments that there was essentially no clinical information or diagnosis of patellar subluxation or abnormal tracking in the first three years post injury. As a result, we find that the worker's ongoing difficulties beyond September 9, 2009 are not related to the August 2, 2006 compensable injury. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of February, 2012

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