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, 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.

Payment of compensation for an impairment is provided for under section 38 of The Workers Compensation Act (the “Act”), which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment; ….

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02

Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states:

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

Worker's position:

The worker was self-represented in his appeal. In his Appeal of Claims Decision form, the worker wrote that while working on a project, he had the misfortune of having a partner who dropped a large heavy piece of equipment on his knee when they were walking on ice. It pulled his groin and blew out his knee. He acknowledged that although he had surgery prior to this injury, his knee was as good as new and he had no pain or discomfort prior to the mishap. The night before the incident he had done a 3 mile jog and did his regular workout at the camp gym. After the accident he was in pain and was off work for a long time. His knee has continued to cause him pain and discomfort all of the time. He told his doctors that it felt like there was something in it which was causing it to jam up all the time. The worker felt that he tried to tell the WCB about the pain and issues he was having with his knee to no avail. Finally the WCB arranged for surgery and the operative report stated that there was a flap of articular cartilage and that the knee was unstable. The worker submitted that the flap must have been caused by the incident otherwise the surgeon would have removed it from his knee during the prior surgery.

The worker wrote:

I have become very bitter in regards to dealing with this issue. Not only with WCB but with the pain I experience every day still. I am unable to return to running or jogging, and the smallest of tasks that require a strain on my knee such as stairs and riding a bike cause me a great deal of discomfort every day. I am frustrated, frustrated with not being able to have my quality of life that I had prior to this incident and frustrated because I feel that WCB who is supposed to be for the worker but has failed me. I am also frustrated that WCB feels that they can cut into someone's knee and cause pain, scarring and discomfort and then not take any responsibility for that or compensate financially for the pain and permanent scarring they have caused. I believe that WCB needs to take another look at this and make sure that they take into account the pain I have to live with every day and the frustration I feel because of it.

Employer's position:

By letter dated January 10, 2012, the employer provided additional information regarding the workplace incident of April 9, 2009 and the worker's job position with the employer.

Analysis:

There are two issues being appealed. We will address each issue separately.

1. Whether or not the worker is entitled to additional medical aid benefits

The first issue before the panel is whether or not the worker is entitled to additional medical aid benefits. In order for the worker's appeal to succeed, the panel must find that when the worker injured his right knee on April 9, 2009, he suffered more than a sprain/ strain to his right knee joint and required medical aid for this injury beyond June 29, 2009. On a balance of probabilities, we are not able to make that finding.

The worker has had a longstanding history of medical intervention in his right knee. In approximately 1980, he had a complete lateral meniscectomy and in 1997, he had a right knee arthroscopy and arthroscopic chondroplasty of the lateral femoral condyle and lateral tibial plateau. The surgical procedures provided relief to the worker and immediately prior to the workplace accident of April 9, 2009, he was not experiencing difficulty with his right knee. Nevertheless, even though it was asymptomatic, it is clear that the worker had a pre-existing degenerative condition in his right knee. The natural history of the degenerative condition would be to worsen over time.

After the April 9, 2009 accident, the worker's right knee became symptomatic and he has continued to have difficulty with his knee since that time. The question for the panel is whether his ongoing difficulties were caused by injury to the knee from the April 2009 incident, or whether they are due to the pre-existing degenerative condition.

The worker was seen by an orthopaedic surgeon who provided a report dated July 10, 2009. In that report, the surgeon stated: "Presumably there has been an aggravation of a pre-existing arthritic condition. The accident in question has served to aggravate the pre-existing arthritic entity for a period of perhaps 4 months. It is the originally pathological process at work." The panel understands this to mean that it was the pre-existing arthritic condition which was the cause of the worker's difficulties, and while the workplace accident aggravated the condition, this would only have lasted about 4 months.

On May 25, 2010, the WCB agreed to accept responsibility for a diagnostic right knee arthroscopy. An arthroscopy is the best method of assessing the condition of the knee and the WCB agreed to the surgery in order to be certain whether or not there was any injury to the internal structures of the knee. The post-operative diagnosis was grade 3 chondromalacia medial femoral condyle, grade 4 chondromalacia lateral femoral condyle and grade 4 chondromalacia lateral tibial plateau. The WCB orthopaedic specialist noted that these findings identify the natural progression of osteoarthritis.

The operative report also identified a large unstable flap of cartilage on the medial femoral condyle. The worker argues that this was an acute injury suffered in the workplace accident. The panel does not agree with this position for the following reasons:

• A second WCB orthopaedic specialist was asked to comment on the presence of the flap and stated: "Unstable flap of articular cartilage is a frequent finding in OA and it is difficult to relate this pathology of the medial femoral condyle with the mechanism of injury or the immediate post injury clinical findings. Rather, it is probably the natural and inevitable progression of the OA which commenced in the lateral compartment and would be expected to spread to other compartments."
• The clinical findings shortly after the workplace accident pointed to the lateral side of the knee as the probable area of damage, whereas the flap was on the medial side.
• The panel also notes that the early findings did not reference any locking in the knee, which would be a symptom typically associated with a loose flap of cartilage. Reference to complaints of locking does not appear until the orthopaedic surgeon's report of July 10, 2009.

In view of the foregoing, on a balance of probabilities, the panel finds that the large unstable flap of cartilage on the medial femoral condyle was not caused by the workplace accident.

As the arthroscopic surgery findings did not identify any further injury which could have been caused by the workplace accident, the panel accepts the WCB orthopaedic specialist's opinion of July 12, 2010 and concludes that the worker's injury was limited to a sprain/strain of the right knee joint and a strain of the right groin. As per the treating orthopaedic surgeon, this aggravation would only be expected to have lasted for 4 months. The panel therefore finds that the worker's compensable injury has resolved and he is not entitled to additional medical aid benefits. The worker's appeal on the first issue is dismissed.

2. Whether or not the worker is entitled to a permanent partial impairment award

The second issue concerns whether or not the worker is entitled to a permanent partial impairment award. In the reasons set out earlier, the panel found that the worker's injury was limited to a sprain/strain which has resolved. As such, there is no basis for establishing a permanent impairment in respect of the sprain/strain injury.

The WCB accepted responsibility for the diagnostic arthroscopic surgery and it follows from this that the WCB is also responsible for the consequences of the surgery. Although the panel has found that the post-operative diagnoses were not attributable to the workplace accident, the worker is left with some scarring from the surgical incisions.

Appendix A to the Policy makes provision for a cosmetic rating for disfigurement as follows:

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.

The rating for disfigurement is done by the Board’s Medical Department and the degree of disfigurement is determined on a judgmental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical awards for disfigurement are between 1 and 5%. In order to maintain consistency in awards for disfigurement, and to make the awards as objective as possible, Medical staff will make reference to the folio of previous disfigurement awards established as policy by Board Order No. 67/89 and maintained by the Director of Benefits Division as prescribed in Board Order 67/89.

In the notes from the PPI review dated June 7, 2011, the WCB medical advisor wrote: "[Worker] underwent a diagnostic arthroscopy on May 21, 2010. Arthroscopic portal scars would not result in a rateable cosmetic PPI." Following our initial review of this appeal, the panel requested further elaboration regarding the determination that the cosmetic disfigurement was not rateable. The response from the WCB Director of Healthcare Services was as follows:

Small scars resulting from arthroscopic procedures generally would not meet the threshold of 1% whole body impairment. They are typically 1 centimeter in length, or less, and flat with minimal discolouration in relation to the surrounding tissue. They are generally not conspicuous under ordinary observation.

An example of a 1% rating found in the WCB folio involving a knee was reviewed and has the following characteristics:

· 8 to 10 centimeters long

· ½ centimeter wide

· Scar is raised, dark red in colour and otherwise quite prominent

It is important to note that disfigurement ratings should be relatively proportionate to other ratings found within the WCB impairment schedule. To provide some context, our schedule indicates each of the following conditions would result in a 1% impairment rating:

· Loss of spleen

· Amputation of distal joint of ring finger

· Amputation of great toe, one phalanx

The WCB Healthcare Advisors involved in PPI assessments meet and discuss these matters in order to ensure consistency. Consensus with respect to typical arthroscopic portal scars is that they are not prominent enough to receive a 1% whole body impairment rating.