Decision #109/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his ongoing right knee difficulties beyond October 28, 2009 were related to pre-existing factors and not to his April 24, 2008 workplace accident. A hearing was held on June 5, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond October 28, 2009.

Decision

That the worker is not entitled to wage loss benefits and services beyond October 28, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right knee injury that occurred on April 24, 2008. The worker indicated that his left leg slipped out laterally on ice while climbing out of his truck. His right leg took the weight which caused his right knee injury. The claim for compensation was accepted by the WCB based on an acute strain of the medial right knee ligaments and benefits and services were paid to the worker.

On July 8, 2008, an MRI of the right knee, tibia and fibula showed the following findings:

A very small joint effusion and there is cartilage loss overlying the medial tibial plateau with some marrow edema in the medial tibial plateau. There is some blunting of the mid to posterior horn of the medial meniscus. This does not appear to be an acute tear and may be degenerative or a chronic tear. No other abnormality is seen.

A WCB medical advisor stated on July 23, 2008: "Both the physiotherapist and physician have indicated that the claimant is fit for modified duties. The accepted diagnosis was an MCL sprain with possible meniscal tear (confirmed on MRI, but thought to be degenerative)." Temporary knee restrictions were outlined for a period of 4 to 6 weeks.

On October 9, 2008, a WCB medical advisor commented that the MRI findings of medial joint degenerative changes including a degenerative meniscal tear were not caused by the workplace injury but the twisting injury to the knee in April 2008 could have aggravated it. The presence of an effusion supported that there had been an acute aggravation of the intra-articular pathology. It was felt that the aggravation had not yet resolved.

The worker underwent a left knee/tibia/fibula MRI on October 17, 2008. A medial meniscus complex tear was identified.

In a report dated November 13, 2008, an orthopaedic specialist reported that the worker was undergoing an arthroscopy of both knees to address the medial meniscus tears. He noted that the worker injured his right knee in May when he slipped on ice. The worker subsequently developed left knee pain with some mechanical symptoms of catching and giving way. On November 25, 2008, the WCB accepted responsibility for the right knee arthroscopy which was later performed on March 20, 2009.

In a follow-up report dated July 16, 2009, the orthopaedic surgeon reported that the worker's left knee was doing nicely but the worker had ongoing medial sided right knee pain that was worse with any stair or ladder climbing. He stated: "At the time of arthroscopy he is noted to have an area of grade 3 chondromalacia of the medial femoral condyle as well as a large complex medial meniscus tear which was resected. This man has ongoing medial-sided knee pain, presumably from the ongoing chondromalacia of his medial femoral condyle."

On July 30, 2009, a WCB physiotherapy advisor documented to the file that grade 3 chondromalacia of the medial femoral condyle was a pre-existing non-compensable condition and that the prescribed unloader brace was not a WCB responsibility.

A WCB orthopaedic consultant reviewed the file on September 24, 2009. He said the pre-existing diagnosis was osteoarthritis ("OA") of the right knee and that there was no medical evidence that the compensable injury had enhanced the condition or aggravated the osteoarthritis. He said the period of aggravation was considered to be completed when recovery was achieved from the arthroscopic meniscectomy which would be about three months after surgery.

On October 26, 2009, initial adjudication wrote the worker to advise that wage loss coverage or claim costs would end on October 28, 2009. It was the case manager's position that the worker's ongoing problems with his right knee were not directly related to the compensable injury but were related to degenerative conditions in his knee that pre-existed the compensable injury. On December 16, 2009, the worker appealed the decision to Review Office. He stated that his right knee injury disabled him from working at his present and future employment and that he had no problems before his compensable injury occurred.

In a report dated December 28, 2009, the family physician disagreed with the WCB's recent decision. The physician provided medical records from October 27, 2000 onward to confirm that the worker did not have any symptoms respecting his right or left knee prior to his workplace injuries. He said the worker's right knee condition was still symptomatic despite the off-loader brace and the knee scope. He felt that the worker's current disability was related to his compensable injuries.

On February 19, 2010, the WCB orthopaedic consultant reviewed the December 28, 2009 report. He stated that the compensable injury was no longer causing the worker's knee symptoms. The knee symptoms were entirely caused by degenerative joint disease of the knees. There was no objective medical evidence that the arthroscopic procedures enhanced the pre-existing condition or aggravated it. Although the worker had no significant knee symptoms before April 2008, the degenerative process would have been at an early stage.

In a letter dated March 1, 2010, initial adjudication advised the worker that the additional medical information had been reviewed and no change would be made to the decision outlined on October 26, 2009.

On March 9, 2010, a union representative outlined the position that the workplace accident enhanced the worker's pre-existing condition and there was no evidence to suggest that he had recovered to his pre-accident status. On June 16, 2010, the employer outlined the view that the WCB decision of October 26, 2009 should be upheld.

On July 15, 2010, Review Office determined that the worker was not entitled to wage loss benefits and services beyond October 28, 2009. Review Office placed weight on the WCB's orthopaedic consultant's opinions of September 24, 2009 and February 19, 2010. It stated that the worker's ongoing complaints were related to pre-existing factors and that the April 24, 2008 workplace accident was not contributing to a material degree to the worker's loss of earning capacity beyond October 28, 2009. On March 21, 2012, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing the appeal panel met to discuss the case and requested additional information from the worker's orthopaedic surgeon. The surgeon's report was later received and was forwarded to the interested parties for comment. On August 29, 2012, the panel met further to discuss the case and rendered its final 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(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. 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.

The worker’s position:

The worker was self-represented at the hearing. It was the worker's position that he should be entitled to further wage loss and services. Prior to the accident, he had no problems and was able to be active. He played soccer with his grandchildren and rode a bike. Since his injury, he has never been the same and his right knee never fully recovered. Despite the fact that his right knee continued to cause him problems, the worker pushed himself to return back to work, largely because he had to in order to sustain himself. To make it through the day, the worker had to take painkillers and he felt that he should not have to be working in pain. Although the WCB told him that he had developed arthritis, the worker submitted that he never had arthritis before and it was never a problem.

The employer’s position:

Two representatives from the employer appeared at the hearing. The employer's position was that it agreed with the WCB's decision that the worker was not entitled to wage loss benefits and services beyond October 28, 2009 in relation to the injury of April 24, 2008. In their view, the ongoing right knee complaints beyond October 28 were, on balance, related to pre-existing medical issues rather than the compensable injury. This was supported by the medical evidence, including the MRI results of July 9, 2008, and the medical opinions of the WCB medical advisor, physiotherapy advisor and orthopaedic consultant. It was therefore submitted that the panel maintain the decision of the WCB that the worker was not entitled to wage loss benefits and services beyond October 28, 2009.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss benefits and services beyond October 28, 2009. The key question concerns whether the worker’s ongoing right knee difficulties are related to the workplace accident of April 24, 2008. In order for the appeal to be successful, the panel must find that the worker's compensable knee strain and aggravation of a degenerative tear of the medial meniscus of the right knee are the cause of his ongoing problems. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, the injuries suffered by the worker on April 24, 2008 have resolved and the worker's ongoing symptoms are due to the progressive degenerative disease/OA which is present in his right knee. In coming to this conclusion, the panel relied on the following:

  • The MRI imaging taken July 9, 2008 showed medial joint degenerative changes, including a degenerative meniscal tear. The accepted compensable diagnosis was a right knee strain and possible aggravation of the medial side meniscal tear.
  • The July 16, 2009 medical report from the treating orthopaedic surgeon identified chondromalacia as the likely cause of the worker's ongoing pain following the March 2009 right knee arthroscopy. The panel understands chondromalacia to be a progressive degenerative condition which would not have been caused by the workplace accident.
  • The September 24, 2009 and February 19, 2010 medical opinions of the WCB orthopaedic consultant both clearly identify pre-existing degenerative joint disease and OA as the cause of the worker's ongoing complaints.
  • Although the worker did not have any right knee symptoms prior to the workplace accident, degenerative joint disease and OA are progressive conditions which may have been worsening at the same time as when the worker was recovering from the compensable knee strain and meniscal aggravation injury.
  • Following the hearing, the panel obtained a copy of the operative report from a right knee arthroscopy which was performed on December 10, 2010. Following the surgery, the post-operative diagnosis was: "Chondromalacia right knee." This would tend to confirm that the cause of the worker's ongoing right knee problems is the pre-existing degenerative joint disease.
  • It was also notable that the operative report stated: "Medial meniscus showed a partial medial meniscectomy but no new tearing." Thus the compensable aggravation of the degenerative medial meniscal tear was unchanged, again suggesting that the pre-existing degeneration was the cause of the worker's problems.

Overall, the panel finds that the weight of the medical evidence supports the finding that pre-existing degeneration, rather than the compensable injury, is the cause of the worker's ongoing right knee difficulties. As a result, we find that the worker is not entitled to wage loss benefits and services beyond October 28, 2009. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of October, 2012

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