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. Under subsection 4(1) of the Act, when a worker is injured in an accident (as defined under the Act) they are entitled to wage loss and medical aid benefits provided under the Act.

Employer's Position

The employer was represented by legal counsel who participated in the hearing by teleconference. The employer's representative advised that the employer disagrees with the Review Office decision.

The employer representative noted that the worker had a history of degenerative problems related to her right knee before the compensable injury of June 11, 2008. She referred to the medical information, including:

• A medical report from a physician dated November 2007 indicating pain in right knee leading to difficulty climbing stairs.
• Following the June 11, 2008 compensable injury, the worker's treating physician continued to note the presence of long-standing symptomatic degenerative condition in her right knee.
• During the initial medical visit, on June 18, 2008, there was no diagnosis of a meniscal tear.
• The treating physician first detected meniscal signs of the right knee on August 20, 2008 which was more than two months following the initial workplace injury on June 11, 2008.
• The initial referral to the orthopaedic surgeon, August 2008, noted knee problems for the last year.
• The October 14, 2008 report from the orthopaedic surgeon noted that she had a history of long-term concerns about arthritis in the right knee.
• X-ray and MRI report that noted moderately severe osteoarthritis in the right knee.
• The WCB medical advisor acknowledged that the MRI showed a horizontal cleavage tear of the medial meniscus which is consistent with degenerative osteoarthritis.
• Orthopaedic report dated January 20, 2009 states that the worker has arthritis in her right knee and refers to the worker's acute troubles in May 2008 but did not comment on a possible causal connection between eventual need for surgery and workplace injury on June 11, 2008.
• May 11, 2010 surgery report. Operative and the post-operative diagnoses reported as degenerative arthritis in the right knee.

The employer representative submitted that the primary purpose of the surgery was to alleviate symptoms caused by the degenerative arthritis. She acknowledged that the operative report shows that the worker also had a partial medial meniscectomy or repair of a meniscal tear, but submitted that there is no evidence that this tear was work-related. She also stated that the employer disputes the notion that the tear was the reason the worker needed the surgery. She stated that even if the worker did not have the workplace injury on June 11, 2008, she would have required the knee surgery due to the degenerative osteoarthritis. She stated that the primary purpose of the worker's visit on June 18, 2008 was not her knee contusion but for follow-up of test results.

The employer representative submitted that it is impossible to link a meniscal tear diagnosis to the workplace since so much time has elapsed, and the medical evidence of the worker's degenerative osteoarthritis makes her knee very vulnerable to meniscal tears. She said the worker could have undertaken any number of activities during this two month period that could have caused the tear. There was no reason to definitively conclude that this was a work-related injury. She noted that the worker believed she could manage her pain with her current prescription for osteoarthritis, which supports the view that the worker believed that her pain and symptoms were related to her osteoarthritis. She submitted that the pain and symptoms following the June 11, 2008 injury were not distinguishable from the arthritic pain and symptoms and this is the reason that the worker did not seek immediate medical attention.

Worker's Position

The worker attended the hearing with her union representative. The worker's representative made a submission on the worker's behalf.

The worker's representative noted several areas where the worker and employer agreed. These included:

• There is a meniscal tear that seemed to require surgical correction.
• The worker had osteoarthritis prior to her compensable accident.
• The worker’s osteoarthritis is not due to any workplace causes.

The worker's representative provided the following chronology:

• The first medical report dealing with osteoarthritis in right knee was in November of 2007 when the worker attended the physician for pain in her right knee. The physician examined the worker, suspected that she had right-knee osteoarthritis and referred her to physiotherapy.
• The worker attended physiotherapy for one week only. The physiotherapist did an initial assessment, noted some pain in certain areas of her knee, but also noted that there were no deficiencies in strength, there were no deficiencies in terms of range of motion, and that after one week of physiotherapy, the worker had improved 50 percent and was discharged.
• On May 27, 2008, 15 days before the workplace accident, the worker attended her family physician for a check-up. The physician did not report any signs of a meniscal tear and did not refer the worker to a specialist or for treatment for her knee.
• The worker next saw her family physician on June 18, 2008. The physician did not make any note about a suspected meniscus tear but did note swelling, bruising and difficulty with flexion. The worker's representative said this is the first reference of a meniscal tear symptom.
• In August, 2008 the physician noted difficulty with flexion and knee locking. The physician noted a possible meniscal tear and referred the worker to an orthopedic specialist.
• The worker saw an orthopaedic specialist in October, 2008 who also suspected a meniscal tear and ordered an MRI.
• The MRI conducted on January 5, 2009 confirmed a meniscal tear.
• Twelve days later, the worker saw an orthopaedic specialist who noted the worker's condition was improving. Surgery was delayed.
• In May 2010, the orthopaedic surgeon performed surgery for degenerative arthritis of the right knee and medial meniscal tear.
• The orthopaedic surgeon identified a bucket-handle tear which, he suggests happened in the June, 2008 workplace injury.

The worker's representative noted that medical literature shows and the Review Office noted that bucket-handle meniscal tears are almost always caused by trauma. The worker's representative stated that MRI's do not identify the type of tear but the orthopedic surgeon who performed the surgery was able to do this.

The worker's representative submitted that, on a balance of probabilities, the worker tore her meniscus in the workplace accident of June 11, 2008.

In answer to questions from the panel, the worker provided a detailed description of the workplace accident. She said she was standing on two milk crates holding a fairly large box. She attempted to place the box on a shelf just above her eye level. The worker said that "I actually had to reach for the box on the left-hand side, twist to the right and then lift up to the corner."

The worker explained that the milk crates slipped causing her to fall. She said "Yeah, one -- the top one slipped away and -- and slipped away from my footing where I was on the crate, and I can’t -- because I was above and I can’t see what happened at the bottom, all I know is when I came down, the milk crates had fallen already. So, all I know is when I -- when I went forward with the boxes, I -- it slipped away and my -- my whole body went up against the shelving unit and my knee came down on the -- on the shelf."

Analysis

The employer is appealing two issues arising from the worker's June 11, 2008 injury.

Issue 1: Whether the worker is entitled to wage loss and medical aid benefits after June 18, 2008.

For the employer's appeal to be successful, the panel must find that the worker's loss of earning capacity or need for medical aid benefits after June 18, 2008 was not related to the worker's workplace injury. The panel was not able to make this finding. We find that the worker is entitled to wage loss and medical aid benefits after June 18, 2008.

In making this decision, we place significant weight upon the chronology of the worker's meniscus injury symptoms. Specifically, we find that the worker was not symptomatic prior to the workplace accident and became symptomatic after the workplace accident as noted in the following summary:

• In May 2008, 15 days before injury, the worker was examined by her family physician who reported that the worker complained of increased arthritis pain in her knees and feet, but no symptoms suggestive of meniscal pathology.
  
• June 8, 2008: worker injured at work.
  
• June 18, 2008: the worker's family physician noted a problem with extension of the worker's right knee, also noted faded bruising and mild swelling.
  
• August 20, 2008: the family physician noted symptoms associated with meniscal injury, specifically, occasional locking of knee and increased pain in full flexion. The family physician referred the worker to an orthopaedic surgeon.
  
• The orthopaedic surgeon's report of October14, 2008 noted he suspects the worker "probably has meniscal tear."
  
• January 5, 2009: an MRI identifies meniscal tear.

• May 10, 2010 operative report: indicates a post-operative diagnosis of degenerative arthritis plus medial meniscus tear of right knee. The report notes a bucket handle tear in the middle and posterior thirds of the medial meniscus and states "with respect to her previous work-related injury, before which her knee was asymptomatic, clearly in retrospect, she has had an asymptomatic patellofemoral arthritis and some medial compartment changes, and it is assumed that the acute injury from the work injury has rendered her more symptomatic with the medial meniscal tear."

In finding that the meniscal tear was caused by the workplace accident, we have considered the MRI report which states "…in the midbody of the medial meniscus there is a horizontal focal area of high signal which may be a very focal tear, likely degenerative." However, we attach greater weight to the opinion of the orthopaedic surgeon who performed the surgery on the worker's knee and actually saw the torn meniscus. He reports that the tear was a bucket-handle tear and was likely the result of the workplace injury. We also accept that bucket-handle tears are more likely to be traumatic than degenerative.

We found that the information on file regarding the accident was vague but at the hearing we had the opportunity to obtain a detailed description. The mechanism of injury, as described by worker at the hearing, involved a twisting fall, hitting a shelf with her knee and an uncontrolled landing on the ground. We find, on a balance of probabilities, that the June 8, 2008 workplace accident caused the worker's medial meniscal tear.

We note that a WCB medical advisor reviewed the file and provided a report dated July 22, 2010. The medical advisor commented that the worker's ability to continue with unrestricted duties in a job requiring standing, walking and climbing stairs is not consistent with the presence of a significant acute meniscus tear. However, we note that the facts of this case are that the worker was able perform her duties after the medial meniscal tear had been found on the MRI and confirmed during arthroscopic surgery. We do not consider the medical advisor's comments to be relevant to this case.

The employer's appeal of this issue is dismissed.

Issue 2: Whether responsibility should be accepted for the worker's May 10, 2010 partial medial meniscectomy.

The employer argued that the medial meniscal tear was not caused by the accident and additionally that the surgery was not necessitated by the medial meniscal tear but was required for the worker's pre-existing osteoarthritis.