Decision #145/12 - Type: Workers Compensation

Preamble

The worker appealed the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he had recovered from the effects of his compensable knee injury by February 1, 2010. A hearing was held on September 12, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond February 10, 2010.

Decision

That the worker is not entitled to wage loss benefits beyond February 10, 2010.

Decision: Unanimous

Background

On September 25, 2008, the worker filed a claim with the WCB for a left knee injury that occurred at work on September 22, 2008. The worker reported that he twisted his left knee when his left foot got caught between two pallets. The compensable diagnosis related to the workplace accident was a chondral defect of the left femoral trochlea. On March 12, 2009, the worker underwent a left knee arthroscopic lateral release. The postoperative diagnosis was left knee patellofemoral pain and chondromalacia of the lateral trochlea. On March 27, 2009, the treating orthopaedic surgeon reported that the normal course of recovery from the surgery would be in the neighborhood of six weeks.

Subsequent file records showed that the worker attended physiotherapy treatments in relation to his left knee. In a physiotherapy report dated May 13, 2009, it was reported that the worker complained of knee pain, difficulty with bending/straightening his knee and frequent catching with painful popping of the patella. Examination findings were swelling, pain and patellar dysfunction.

On May 20, 2009, a WCB orthopaedic consultant advised primary adjudication that the worker's current symptoms in his left knee appeared to be related to the compensable injury and that a repeat MRI may be required if symptoms persisted.

On July 22, 2009, the worker advised the WCB that he received a cortisone injection on June 23, 2009 and found relief from pain for the first three days, but shortly afterwards his symptoms returned. He continued to attend physiotherapy treatment and he noticed a slight improvement with range of motion in his knee but he had difficulty with weight bearing and bending down. The worker said he was climbing the stairs a few weeks ago to do his laundry when his knee buckled and he fell back hitting his knee on the wall. He said he lost his balance and grabbed the wall for support. He was holding laundry weighing about 20 pounds at the time.

On August 19, 2009, the WCB orthopaedic consultant noted to the file that he was arranging an MRI, as the exact cause of the worker's ongoing symptoms in his knee was unclear.

An MRI carried out on October 7, 2009 revealed the following impression: "Focal areas of chondromalacia are noted within the femoral trochlea and the posterior femoral condyles."

On October 14, 2009, the WCB orthopaedic consultant noted the following:

  • the MRI demonstrated chondral changes of the patella-femoral joint, which are probably related to the CI [compensable injury] diagnosis of chondral injury. Chondromalacia of the posterior aspects of the femoral condyles was not related to the CI.
  • the MOI [mechanism of injury] cannot have caused chondromalacia of the posterior femoral condyles. The recent MRI findings confirm these changes.
  • a call-in exam was necessary to determine what was causing current symptoms, and the relationship to the CI.

The worker was seen at a WCB call-in examination on November 25, 2009. Following his assessment of the worker, the WCB orthopaedic consultant stated in part that the diagnosis of the compensable injury was considered to be chondromalacia of the femoral trochlea caused by momentary subluxation of the patella. He noted that the response to arthroscopic lateral release of the retinaculum of the left knee joint capsule has been unusual and that the worker's left knee symptoms could not be explained by the objective findings on clinical examination or by the MRI findings.

On August 28, 2009, a surveillance video was undertaken of the worker's activities. On January 13, 2010, the worker underwent a Functional Capacity Evaluation ("FCE") to evaluate his work capabilities.

On January 27, 2010, the WCB orthopaedic consultant reviewed the FCE findings and the surveillance evidence. In his opinion, the FCE observations were based on subjective rather than objective findings. He said more weight should be placed on collateral evidence of observed everyday activities which would lead one to conclude that no medical restrictions related to the compensable injury were indicated.

In a decision by primary adjudication dated February 8, 2010, the worker was advised that wage loss benefits would be paid to February 5, 2010 inclusive and final as it was the WCB's position that he had recovered from his left knee injury of September 22, 2008. The decision was based primarily on the opinion expressed by a WCB orthopaedic consultant dated January 27, 2010. In April 2010, the worker appealed the decision to Review Office.

On April 23, 2010, the worker advised Review Office that he cannot do the job required of a truck driver as it involved climbing, squatting and his knee couldn't take it. He said his treating sports medicine specialist supported this and said he needed re-training in a different occupation.

On May 18, 2010, Review Office determined that there was no loss of earning capacity due to the worker's compensable left knee injury after February 1, 2010. Review Office reached its decision by giving significant weight to the MRI findings, the opinion of the WCB orthopaedic consultant and the video surveillance, in comparison with the worker's account of his physical abilities in relation to his knee. Review Office noted that the worker was seen walking and getting in and out of his vehicle (standard transmission) with no apparent difficulties and there was no apparent limp or any pain symptoms during the video surveillance. Review Office felt there was insufficient evidence to support the position that the worker was unable to return to work as a result of his compensable left knee injury.

On November 28, 2011, a worker advisor, acting on the worker's behalf, provided Review Office with new evidence dated November 8, 2011 from the sports medicine physician to support the position that the worker was entitled to benefits beyond February 1, 2010.

In his report to the worker advisor dated November 8, 2011, the sports medicine specialist reported that his current diagnosis was post-injury patella and lateral chondromalacia with secondary chronic knee pain. He stated that these symptoms had been persistent since the worker's original injury in 2008 and have never fully resolved. The specialist noted that he recommended permanent restrictions in the past regarding repetitive climbing, squatting and kneeling and restrictions from heavy lifting and carrying. As to prolonged standing and walking, he felt that the worker was capable of these activities but would be at a limited level. The specialist stated: "I have not offered further treatment to [the worker] as I have no other recommendations to suggest other than continued analgesia on an as needed basis, continued exercise and progressive strengthening."

Following review of the medical report dated November 8, 2011 and the worker advisor's submission of November 28, 2011, Review Office indicated that no change would be made to its decision of May 18, 2010. Review Office felt there was insufficient evidence to support that the worker was not capable of returning to his pre-accident job duties. On April 17, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on September 12, 2012.

Following the hearing and discussion of the case, the appeal panel requested additional medical information from the worker's treating orthopaedic surgeon. On November 13, 2012, the Appeal Commission received a response from the orthopaedic surgeon dated October 16, 2012 and a copy was provided to the worker advisor for comment. On December 3, 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.

The worker is appealing the WCB decision that he is not entitled to benefits beyond February 1, 2010. 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 time as the worker’s loss of earning capacity resulting from the accident ends.

Worker's Position

The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions from his representative and the panel.

The worker advisor submitted that the evidence confirms that the worker has an ongoing left knee condition. She reviewed the medical information on the file. She noted that on December 2, 2009 the WCB orthopaedic consultant commented that "Chondromalacia was probably not a pre-existing condition. Rather it is related to trauma which caused a discrete five millimeter lesion identified on the pre-op x-ray."

The worker advisor noted that in January 2010 the worker participated in a FCE. She said that he passed three of five validity checks and that the FCE is considered a valid test. She said that this "…objective examination supports a continuing ongoing disability in the left lateral joint line, anteriorly and medial aspect of the patella, which has been ongoing from the onset of this accident." She also said that the FCE confirmed that the worker's physical abilities were of a medium demand.

The worker advisor disagreed with the Review Office decision which relied upon video surveillance. She said that none of the activities shown on the video confirm that the worker can perform his heavy physical duties.

The worker advisor referred to the November 8, 2011 medical report from the treating sports medicine physician. She noted that the physician:

· provided a diagnosis of post-injury patella and lateral chondromalacia with secondary chronic pain,

· reported that these symptoms have been persistent since the accident,

· confirmed permanent restrictions on repetitive climbing, squatting, kneeling, limited standing and walking, and restrictions from heavy lifting and carrying.

· opined that the symptoms have been persistent since the original injury and that the worker has not fully recovered from the injury.

In answer to questions, the worker described the injury and resulting symptoms. He said that he has constant pain, between a 2/10 and 6/10, everyday. He said his left knee still gives out. He described his job duties which involved loading and unloading a truck, and delivering merchandise. He said that the job involves extensive squatting, climbing, and bending.

The worker stated that the surgeon who performed the surgery advised him that there is nothing else he could do. He referred the worker back to the treating physician.

The worker advised that he eventually found employment which accommodated his left knee restrictions and that he is still employed. The worker advisor confirmed that the worker is seeking wage loss benefits from February 1, 2010 and forward including any loss of earning capacity as a result of his current employment.

In response to the October 16, 2012 report from the treating orthopaedic surgeon, the worker advisor submitted that the report supports the worker's position that he has not recovered from the accident and is experiencing a loss of earning capacity.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel was whether the worker is entitled to wage loss benefits beyond February 1, 2010.

For the worker's appeal to be approved, the panel must find that the worker's loss of earning capacity beyond February 1, 2010 is due to the workplace injury. The panel was not able to make this finding.

In reaching this decision, the panel places considerable weight on the opinions of the WCB orthopaedic consultant. The worker was examined by the WCB orthopaedic consultant on November 25, 2009. He noted that the worker was using 2 crutches with light weight bearing on the left lower limb. His findings included:

  • no swelling of the left lower limb
  • standing alignment was satisfactory
  • pulses in popliteal and ankle areas were equal and normal
  • crepitus was not a feature
  • strength of quadriceps was graded as 5/5 on both sides
  • strength of hamstrings was graded as 5/5 on both sides
  • straight leg raising was 90 degrees on right and left
  • limb strength from ASIS to medial malleolus was equal on both sides
  • knee joint, calf and thigh circumferences were equal
  • no clinical instability on testing either knee with valgus, varus or AP stress
  • could not perform pivot test noting tenderness on lateral and medial stressing of the left patella, but not the right
  • knee and ankle reflexes were equal bilaterally
  • no wasting of the gluteal musculature
  • local tenderness present in most areas around the left knee
  • minor discomfort in the middle of the popliteal fossa
  • diminished pinprick and light touch sensation of the left knee

The consultant opined that the diagnosis of the compensable injury, based on a mechanism of a twisting/pulling injury, was chondromalacia of the femoral trochlea. He found the worker's response to the release of the retinaculum of the left knee joint capsule to be unusual. He also noted pain focused behavior. In his opinion the reported symptoms could not be explained by the objective findings on the clinical examination or by the MRI findings.

The WCB orthopaedic consultant provided a further opinion on January 27, 2010, after reviewing the FCE findings and surveillance evidence obtained by the WCB. He discounted the FCE as it was based on subjective findings and placed greater weight on the surveillance evidence. He concluded that no medical restrictions related to the compensable injury are indicated.

The panel notes that the worker has multiple medical difficulties in his left knee, some pre-existing and one compensable, that being the chondromalacia of the femoral trochlea. The panel finds that while the worker's physician might be inclined to place restrictions on the worker regarding his left knee difficulties, they are not related to the compensable component of the worker's left knee difficulties.

The panel also reviewed the video and notes that the worker was able to perform activities which he previously said he could not perform. The panel also places little weight upon the FCE findings.

While the panel sought further information from the treating orthopaedic surgeon, we find his report did not address the status of the worker's condition resulting from the surgery and is not relevant to the issue in front of the panel.

Based on our findings, the panel is not able to relate the worker's ongoing symptoms on a balance of probabilities, to his compensable injury or the related surgery.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 27th day of December, 2012

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