Decision #41/12 - Type: Workers Compensation

Preamble

The worker is appealing a decision by Review Office of the Workers Compensation Board ("WCB") that by February 3, 2010, she had recovered from the effects of her July 9, 2009 workplace injury. A hearing was held on December 1, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits and services beyond February 3, 2010.

Decision

That the worker is not entitled to wage loss and medical aid benefits and services beyond February 3, 2010.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an injury that occurred at work on July 9, 2009. She reported: "I was walking towards the gate at customer service to talk to Asst. Mgr. and the cord from the hand scanner tangled around my feet causing me to fall, injuring my knees, left arm, jarring my body."

On July 20, 2009, the worker was seen for medical treatment and was diagnosed with multiple contusions. The physician noted that the bruising and swelling had subsided and the main problem was pain in the knees, worse when standing.

The claim for compensation was accepted by the WCB and the worker attended physiotherapy treatment based on the diagnosis of contusion to both knees and right knee patellofemoral dysfunction. In August 2009 she returned to modified duties with restrictions.

On September 1, 2009, the worker advised the WCB that she was still on modified duties but her knee was sore. She questioned whether physiotherapy was helping. Subsequent file records showed that the worker quit physiotherapy as she felt it was making her condition worse.

Bilateral knee x-rays were taken on September 29, 2009. There was mild medial compartment joint space narrowing and no abnormality of an acute nature was noted.

On December 4, 2009, the treating physician advised the WCB adjudicator that there were no findings for the knees. He noted that the worker continued to have pain.

On January 22, 2010, the worker was called in for a medical assessment by a WCB sports medicine consultant. Following the examination, the consultant stated that he was unable to account for the worker's symptoms as being related to a pathoanatomical lesion. Without a specific diagnosis, he said he was unable to relate the present condition to the initial diagnosis of bilateral knee contusion resulting from the July 9, 2009 fall.

In a decision issued on February 3, 2010, the worker was advised that the case manager felt that the worker had recovered from the effects of her workplace injuries to her left shoulder and both knees and that the need for restrictions were no longer related to her July 9, 2009 accident.

The next medical report on file was from an orthopaedic surgeon dated August 31, 2010. He noted that the worker was seen regarding bilateral knee pain since the slip and fall at work on July 9, 2009. He reported that an MRI of the knees dated June 15, 2010 demonstrated some posterior medial meniscus tearing bilaterally. There was also mild chondromalacia especially medially bilaterally. The recommended treatment was arthroscopic debridement of the meniscus tears.

On October 21, 2010 and December 2, 2010, the worker underwent the following surgical procedures:

  1. Right knee arthroscopy with partial medial and lateral meniscectomies and synovial trimming; and
  2. Left knee arthroscopy with partial medial meniscectomy.

On February 8, 2011, the worker's union representative submitted to the WCB that the bilateral tears of the meniscus occurred when the worker tripped and fell on July 9, 2009. He stated: "For both menisci to have been found to be torn following the fall is more than coincidence, especially since she had no prior knee concerns. The balance of probabilities is that the menisci were torn when she fell and remained undiscovered until she was referred for the MRI. As the meniscus tears are the consequence of the compensable injury, the time loss associated with the surgeries and the physiotherapy are the responsibility of the WCB."

On March 11, 2011, a WCB sports medicine consultant was asked to review the new medical information on file and respond to questions posed by primary adjudication. The consultant stated:

  • The probable diagnosis for the July 9, 2009 compensable injury continued to be contusions to both knees as there was no reported plant and twist mechanism in the July accident which would be consistent with traumatic meniscal tears; there were inconsistencies during the WCB call-in examination; there was no documented effusion to the joints; the presence of chondromalacia and meniscal tears would not be considered atypical in the worker's age group and would not necessarily be a specific pain generator.

  • The natural history of knee contusions would resolve in 1 to 2 weeks.
  • There was insufficient clinical evidence to suggest that the meniscal tears would be a result of the compensable injuries. The MRI findings and operative reports identify degenerative changes such as chondromalacia and meniscal tears that do not correlate with the clinical presentation (i.e. physical examination and history) as identifiable pain generators. The diagnosis of symptomatic meniscal tears is a result of correlation of history, physical examination and/or imaging or diagnostic scope. These criteria have not been met according to medical information available. Although imaging and arthroscopic examination describe the noted meniscal tears, the history (including mechanism of injury) and physical examination do not support the diagnosis.
  • The surgeries would not be related to the compensable injury of knee contusions.

On March 11, 2011, the case manager advised that there would be no change made to the original WCB decision of February 3, 2010 based on the medical opinion expressed by the WCB sports medicine consultant.

On April 19, 2011, the union representative appealed the March 11, 2011 decision to Review Office. A copy of his submission was provided to the employer for comment. On June 6, 2011, the employer's advocate submitted that the decision to end entitlement as of February 3, 2010 was correct and should be confirmed. A rebuttal submission was made by the union on June 28, 2011.

Review Office, in a decision dated July 7, 2011, determined that the worker had recovered from the effects of her July 9, 2009 workplace injury and was not entitled to further wage loss benefits or medical aid services/benefits. Review Office stated that when dealing with meniscal tears, the WCB looks for a twisting mechanism and there was no evidence through the description of the mechanics of the injury that the worker incurred a twisting injury to either knee. Review Office stated that it agreed with the WCB sports medicine consultant's opinion that there was insufficient clinical evidence to suggest that the meniscal tears would be a result of the fall. On a balance of probabilities, Review Office determined that the meniscal tears and the chondromalacia were degenerative in nature and pre-existing conditions. Review Office's position was that the worker's bilateral degenerative knee conditions were aggravated during the accident and the worker received half a year of WCB coverage providing for healing from an aggravation concluded the surgical repairs of the worker's bilateral knee problems were not related to the accident and the WCB was not responsible for the surgical correction of the underlying conditions. On August 31, 2011, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on December 1, 2011.

Following the hearing, the panel requested and received additional medical information from the worker's treating physician which was forwarded to the interested parties for comment. On February 15, 2012 the panel met further to discuss the case and render its decision.

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(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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker's position:

The worker appeared at the hearing accompanied by a union representative. It was submitted that the fall on July 9, 2009 was either the cause of the worker's bilateral meniscus tears, or that the fall at least enhanced any quiet pre-existing condition that may have existed prior to the fall. While it was not denied that the worker had pre-existing degeneration and chondromalacia prior to the fall, the question was how did the worker's menisci become torn. If the tears were pre-existing, why did they not exhibit symptoms prior to the fall? A report from the family physician confirmed that his charts going back to 1993 showed no complaints by the worker regarding her knees. It was argued that the worker's knees did not need to be twisted to tear the menisci as the force from the fall would be sufficient to contribute to the worsening of her pre-existing condition. On a balance of probabilities, it was submitted that the evidence supported a conclusion that the fall caused the tears or enhanced any minimal pre-existing condition and this fall resulted in the need for surgical intervention. As such, it was compensable as the injury arose out of and in the course of the worker's employment.

Employer's position:

An employer advocate participated in the hearing via teleconference. The employer's position was that there was no indication that the fall occurring on July 9, 2009 was the cause of the bilateral meniscus tears nor did it enhance existing tears to the point that they required surgical repair. There was no medical evidence to support such a relationship. No alternative medical opinion was provided that would contradict the WCB sports medicine consultant's clinical opinion. During the call-in examination of January 22, 2010, there was no evidence of tears and, from a lay perspective, it was submitted that the meniscal tears likely evolved over time and age and were the result of the normal aging process. It was therefore submitted that the decision made by the WCB to end entitlement as of February 3, 2010 was correct and should be confirmed.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits beyond February 3, 2010. In order for the worker’s appeal to be successful, the panel must find that the workplace accident of July 9, 2009 caused the worker to suffer meniscal tears which led to bilateral surgeries in October and December 2010. After careful consideration of both the evidence surrounding the worker's injuries and the medical reports on file, the panel is not satisfied that the worker suffered meniscal tears to her knees on July 9, 2009, and on a balance of probabilities, we conclude that the compensable injury was limited to knee contusions and a temporary aggravation of pre-existing bilateral degenerative knee conditions. It is therefore our decision that the worker is not entitled to benefits beyond February 3, 2010.

Following the hearing, the panel requested medical charts from the orthopaedic surgeon who performed the surgeries in October and December 2010. In response to the request, the panel received copies of the operative reports and consultation letters regarding the procedures performed on October 21, 2010 and December 2, 2010. The reports confirmed that an arthroscopy with partial medial and lateral meniscectomies and synovial trimming was performed on the right knee, and an arthroscopy with partial medial meniscectomy was performed on the left. Chondromalacia was found bilaterally. There was no additional information in the reports or consultation letters concerning the nature of the meniscal tears which were repaired.

The medical charts also included a copy of a letter dated December 10, 2010 addressed to the union representative from the surgeon. In it, the surgeon advised that he had no way of saying when the worker tore the menisci in her knees.

The only medical opinion on file regarding the cause of the meniscal tears is that of the WCB sports medicine consultant. Neither the treating orthopaedic surgeon nor the family physician were able to offer an opinion in that regard. The WCB sports medicine consultant based his opinion largely on the mechanism of injury and findings on physical examinations. With respect to physical findings, the absence of documented effusion to the joints and inconsistencies during the call-in examination were specifically noted.

The union representative asks the panel to find that the meniscal tears were caused by the fall at work. The union representative's submission relies primarily on the temporal relationship between the change in the worker's knee conditions before and after the injury. Unfortunately, this alone is not sufficient to convince the panel that the fall caused meniscal tears or an enhancement of the worker's pre-existing condition. In the face of the uncontradicted medical opinion of the WCB sports medicine consultant, this evidence does not satisfy the panel on a balance of probabilities that the surgeries are attributable to the effects of the compensable injury.

For the foregoing reasons, the panel concludes that the worker is not entitled to wage loss and medical aid benefits and services beyond February 3, 2010. The worker's appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of March, 2012

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