Decision #73/12 - 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 further compensation benefits in relation to his claim for a right knee injury that occurred on July 31, 2007. A hearing was held on June 4, 2012 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits beyond September 14, 2007.Decision
That the worker is not entitled to wage loss and medical aid benefits beyond September 14, 2007.Decision: Unanimous
Background
In August 2007, the worker filed a claim with the WCB for a twinge he felt in his right upper back and right knee that occurred on July 31, 2007 while assisting hospital emergency room staff in removing a bed that was stuck in a doorway. The worker was employed as a security officer when the incident occurred.
Initial medical reports on file date back to 2003 relating to the worker's knees. X-rays taken October 14, 2003 of the AP and lateral right knee were read as showing osteoarthritis. X-rays of both knees taken March 2, 2005 revealed osteoarthritis of both knees, worse on the right. In November 2007, the worker underwent a right total knee replacement and in March 2008, a left total knee replacement.
With regard to the July 31, 2007 accident, the worker was seen by a chiropractor on August 5, 2007 and the diagnosis rendered was a right knee sprain/strain and a thoracic sprain/strain. In a follow-up report dated August 21, 2007, the chiropractor noted that the worker had right knee pain/discomfort and his thoracic spine was feeling much better.
On August 22, 2007, the WCB denied the worker's claim as it was felt that he removed himself from the course of his employment by participating in an activity that was beyond his job duty description. On July 17, 2008, the decision to deny the claim was overturned by initial adjudication and the worker was issued wage loss benefits to September 14, 2007, the date that the WCB felt he had recovered from the July 2007 injury. The decision letter stated:
"Information from the chiropractor you attended on August 5, 2007 diagnosed your injuries to be a right knee and thoracic back strain/sprain. Reports on file suggest you have a significant history of bilateral knee problems predating the July 31, 2007 injury. In July 2008, a discussion took place between a WCB chiropractic consultant and your attending chiropractor. Your chiropractor indicated you were treated nine times in August and no treatment was sought in September 2007. He indicated that after the treatments in August you "got better quick". The WCB chiropractic consultant was of the opinion you were capable of resuming your pre-accident employment as a security guard as of late August 2007."
The worker's advocate provided the WCB with a chiropractic report to support his position that the worker was entitled to benefits beyond September 14, 2007. The chiropractor stated:
"…[the worker] suffered pain in the right knee and mid back following the incident at work. He suffered from an acute right knee sprain/strain and thoracic sprain/strain. This work incident had enhanced and aggravated his pre-existing condition. [The worker] was not able to return to work after his visits as his pain still persisted. Without a rigorous rehabilitation program and consultation from his specialist I would not recommend [the worker] return to work at this time.
On August 22, 2008, the worker was advised that the new information did not support the extension of wage loss benefits beyond September 14, 2007. The WCB's opinion was that the July 2007 accident did not precipitate the need for right knee surgery on the basis of an enhancement of the worker's pre-existing condition. Any suggestion regarding an inability to work at present would not be related to the effects of the July 2007 injury.
On August 4, 2009, a second orthopaedic surgeon advised the WCB that the worker was seen at the clinic on August 4, 2009 because of ongoing pain in his right knee following a total knee arthroplasty. The second surgeon reported that the worker initially injured his knee in 1970 and underwent an open meniscectomy at that time. The worker indicated that his knee was asymptomatic up until an event in August 2007 when he was working as a security guard. The second surgeon concluded his report by stating:
"My impression of [the worker] is that, while his arthritis itself likely relates back to his surgery in 1970, his knee was symptom free until his fall and injury in August 2007, which clearly exacerbated whatever arthritis had been present prior to that fall. The fall did clearly occur at work and was the starting point of the pain in his knee. Had he not fallen, he likely would have been able to continue to work up to his previously scheduled surgery on the contralateral knee in November 2007. His recovery time to return to work would also likely have been two to three months earlier had he not required the surgery on his right knee given the fact that having the surgery on his right knee postponed the already necessary surgery on his left knee by two to three months."
In a letter dated September 3, 2009, the worker was advised by initial adjudication that there was no new information in the surgeon's report of August 4, 2009 that would warrant a change in the decision of August 27, 2008. On January 2, 2011, the worker' advocate appealed the decision to Review Office on the following basis:
"The claimant's right knee, prior to July 31, 2007, had not had any impact on his employment activities. However, since this period he has had two surgeries, loss of income, chronic pain and uncertain future. Dr. [name] clearly opines the relationship between the compensable injury and the effects the claimant has experienced since July 31, 2007. We ask that the claimant receive benefits beyond September 14, 2007."
On January 21, 2011, Review Office determined that there was no entitlement to medical and wage loss benefits beyond September 14, 2007. Review Office noted that the worker sustained a work-related strain/sprain to his right knee resulting from the July 31, 2007 incident. There was no mention of a "fall" and the worker stated he felt a "twinge" in his right knee. Review Office accepted the opinion of the WCB chiropractic consultant that the July 31, 2007 compensable strain/sprain injury had recovered to the point that it was no longer contributing, to a material degree, to the loss of earning capacity by mid-September.
Review Office noted that the worker had significant pre-existing osteoarthritis of the right knee for a number of years prior to his work incident. In March 2005, an orthopaedic surgeon reported that the worker required a total knee replacement and that he had not been able to work as a taxi driver because of pain in his knees. Review Office referred to the worker's letter of November 2007 wherein he stated: "I have since October 2003 been working with a lot of pain". Review Office found no medical evidence to support the position that the compensable strain/sprain of July 31, 2007 made the degenerative right knee condition worse and caused the need for surgery.
On July 15, 2011, the worker's advocate submitted a report from the second orthopaedic surgeon dated April 28, 2011. The surgeon stated:
"…the injury to his right knee in 2007 and the subsequent poor outcome from his knee arthroplasty could explain the five years out from surgery…My management has been to deal with the instability in his right total knee arthroplasty following the surgery. It was [specialist's name] who was managing his osteoarthritis and I do not have access to those films nor was I involved with his care at that time…it appears that his acute injury at work in 2007 combined with what was probably some preexisting degenerative changes prompted [specialist's name] decision to proceed with a total knee arthroplasty. Again, I cannot speak of [specialist's name] thought process as I was not involved with his care at that time…the decision to proceed with a total knee arthroplasty and the execution of the arthroplasty did result in the subsequent surgery that I had to perform because of the instability that followed…The injury to his right knee in 2007 did lead to his knee arthroplasty by [specialist's name]."
On October 13, 2011 Review Office determined that no change would be made to its decision of January 21, 2011 following its review of the new medical report. On February 14, 2012, the worker appealed the decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
The WCB has accepted the worker's claim arising from his July 31, 2007 workplace accident. The key issue to be determined by the panel is whether the worker's wage loss after September 14, 2007 is due to the workplace injury. As the worker has a pre-existing condition, WCB Policy 44.10.20.10, Pre Existing Conditions, is applicable.
Worker's Position
The worker attended the hearing and explained his reasons for appealing.
The worker advised that he injured his left knee in 2003 when he slipped on ice while working as a taxi/van driver. He said that he recovered from the surgery and was able to return to driving after the incident.
On July 31, 2007, while working as a security guard at a healthcare facility, the worker injured his right knee while helping to move a patient. He said that he tried to return to work but could not work because of his right knee. The worker advised that he was scheduled to have a left knee replacement in November 2007 but because his right knee was so bad, the surgeon recommended that the right knee instead be replaced in November. He submitted that the right knee replacement was required because of the accident and that he is entitled to benefits beyond September 14, 2007.
The worker denied that his right knee was problematic before the July 2007 accident, although he acknowledged that he had surgery on his right knee in 1970. He advised that he was not aware that he had arthritis in his knees. He stated:
"There was never a mention on my knee that there was arthritis. I tore the ligaments and everything in my knee. Never was there a mention of arthritis in my right knee and, yeah, November came along and I had the replacement surgery and January I had my left knee done."
The worker said that he did not return to work after September 14, 2007. He had the right knee replacement surgery in November 2007 followed by a left knee replacement in 2008. It was later determined that the 2007 right knee replacement required correction resulting in further surgery on August 23, 2010.
The worker said that he has had difficulty finding and maintaining work after his surgeries. The worker is seeking wage loss benefits commencing after September 24, 2007.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond September 14, 2007. For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity after this date is due to the July 31, 2007 workplace injury. In other words, to be successful the panel must find that the worker was not able to work after September 14, 2007 because of the workplace injury. In addition, for the worker to be entitled to medical aid benefits, the panel would have to find that the worker's ongoing physical complaints continue to be related to the July 31, 2007 workplace injury. The panel was not able to make these findings. The panel finds that the worker's loss of earning capacity and his ongoing medical problems (such as the necessity for his right total knee replacement surgery) after September 14, 2007 were not due to his workplace injury.
The panel found the worker to be honest and forthright but a poor historian as it relates to his medical history and employment history which is described more fully below. As a result, the panel was not able to rely on the worker's memory of the sequence of events, but instead relied upon the evidence which is more contemporaneous with the event and for which recorded notes are available. The panel also placed little weight upon the opinion of the second surgeon who performed the worker's second right knee replacement because his narrative appears to be based upon the worker's explanation of events and was written many years after the event. The second surgeon's narrative is inconsistent with the reports made prior to and nearer the time of the July 2007 workplace injury; in the panel's view the second surgeon's narrative is reliable in terms of the worker's current medical conditions, but not in establishing a causal relationship.
The worker told the panel that he had no problems with his right knee before the surgery other than his surgery in 1970. He also said that he was not aware that he had arthritis in his right knee. Contrary to the worker's position, the evidence on files shows the worker had a long history of knee problems and had osteoarthritis in both his right and left knees. In support of this finding we note and rely upon the following:
- 1970 right knee medial meniscus tear repair
- 2002 left knee surgery
- March 2, 2005 x-ray report of both knees indicating "osteoarthritis of both knees worse on the right."(underlining added)
- March 2, 2005 report of surgeon indicating that the worker suffers from bilateral knee pain and noting that x-rays showed some chondrocalcinosis and osteoarthritic changes. The surgeon commented that "I think this gentleman is reaching the point where he will require total knee replacement."
- October 19, 2006 note from surgeon indicating that "X-rays of the knees show an advanced degree of osteoarthritis, particularly on the right. This gentleman would benefit from a right total knee replacement." (underlining added)
- November 22, 2007 operative report noting pre-operative diagnosis of right knee osteoarthritis.
- November 23, 2007 surgical pathology report of bone from right knee found "degenerative articular changes consistent with osteoarthritis."
- January 7, 2008 note from surgeon noting that the worker had right knee replacement on November 22, 2007 and noting that the worker is starting to complain about left knee pain and is interested in left knee replacement.
The worker submitted that the November 2007 right knee replacement was a direct result of his July 2007 workplace injury. The panel was not able to make this finding. The panel finds that the July 2007 workplace injury likely aggravated the worker's pre-existing osteoarthritis in his right knee, did not enhance this condition and that the worker had recovered from the workplace injury by September 14, 2007.
In making this finding, the panel notes the worker saw his treating chiropractor on August 5, 2007. The chiropractor diagnosed the worker with a right knee and thoracic back strain/sprain. File information shows the worker was treated on nine occasions in August 2007 and that no treatment was sought in September 2007. A July 17, 2008 report from a WCB chiropractic consultant indicates that the consultant contacted the worker's chiropractor in July 2008. The consultant opined that "In my opinion, after the series of treatments in Aug., the claimant did get better quickly and probably was at his pre-incident status by the end of Aug. It is understood that he still had the knee problems which had been there for years. I think he probably was able to return to the same type of work (security) which he had been doing at least by mid -Sept." The panel accepts this opinion and finds that the aggravation had resolved by September 14, 2007, the date on which the WCB had terminated the worker's wage loss benefits.
As noted above, the panel was not able to find a relationship between the workplace injury and the right knee replacement. The panel notes that the November 22, 2007 right knee replacement was first recommended by the surgeon in a clinical note dated October 19, 2006, more than 9 months before the workplace injury.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
C. Anderson, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 18th day of June, 2012