Decision #73/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her ongoing right knee complaints were unrelated to her compensable injuries of July 16, 2007 or July 23, 2010. A hearing was held on May 9, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits beyond September 23, 2010.Decision
That the worker is not entitled to wage loss and medical aid benefits beyond September 23, 2010.Decision: Unanimous
Background
On July 20, 2007 the worker filed a claim with the WCB for a right knee injury that occurred at work on July 16, 2007. The worker reported that she was assisting a nurse with a resident when her right leg twisted and she felt a sharp pain in her right knee up to her hip.
On September 28, 2007 the worker underwent an MRI examination of her right knee which revealed a horizontal tear of the lateral meniscus with an associated 6 mm anterior parameniscal cyst and a previous posterior lateral tibial plateau fracture.
In a report to the treating physician dated November 2, 2007, an orthopaedic surgeon recommended a right knee arthroscopy given the worker's knee condition.
On November 15, 2007, a WCB medical advisor reviewed the file information and stated:
A horizontal oriented tear of the lateral meniscus as well as a previous lateral tibial plateau fracture were noted in the MRI report. Although horizontal tears are often regarded as degenerative tears, it is opined that the mechanism of injury was sufficient to result in meniscal injury. It is further noted that the clinical course after the workplace injury was consistent with that anticipated for a left lateral meniscal tear. There are consistent reports of lateral joint line pain. The day after the injury, the treating physician indicated his impression of a lateral meniscal tear. It is probable that left lateral meniscal tearing occurred in the course of the July 16/07 workplace injury.
On January 11, 2008 the worker underwent right knee surgery which was accepted as a WCB responsibility. The post-operative diagnosis was a lateral meniscal tear, Grade 2 chondromalacia lateral femoral condyle.
In a follow-up report dated February 11, 2008, the orthopaedic surgeon noted that range of motion in the worker's knee was 0 to 90 degrees but a lot of that limitation was because of the size of her leg. He recommended that the worker continue with physiotherapy and could return to work in two week's time. On February 25, 2008, the worker returned to her full regular duties but continued to experience right knee complaints.
In a further report dated April 17, 2008, the surgeon noted that the right knee had a little bit of excess valgus and range of motion was limited from 0 to 100 degrees with some lateral joint line tenderness. His assessment of the worker's knee was early lateral compartment osteoarthritis ("OA"). The treatment plan included weight loss, muscle strengthening and medication.
On July 16, 2008, a WCB medical advisor opined that the worker's post-operative recovery was not delayed by the presence of pre-existing degenerative changes in her right knee. It was felt, however, that the pre-existing degenerative changes likely contributed to the development of the acute lateral meniscal tear.
On October 8, 2008, a WCB physiotherapy consultant documented to the file that the unloader brace recommended by the treating physician was not likely related to the compensable injury as the brace was indicated for an arthritic joint to help improve alignment and take some of the axial load off of the area.
On June 12, 2009, the treating physician advised the WCB that the worker was having another scan of her right knee as the knee was giving out.
A permanent partial impairment ("PPI") assessment was carried out at the WCB's offices on August 19, 2009. The worker reported that she still had ongoing pain in her right knee and that she wore a patellar femoral brace on a regular basis. A 2.3% PPI award was recommended by the WCB physiotherapy consultant.
On February 24, 2010 a right knee x-ray showed medial narrowing and small osteophytes at the patellofemoral joint. No acute bony abnormalities were identified.
On July 19, 2010, an MRI of the right knee showed advanced (grade four) chondromalacia of the lateral femoral condyle, extensive myxoid degeneration and horizontal tear of the lateral meniscus and small MCL bursa.
On July 26, 2010, the worker filed another claim with the WCB for a right knee injury that occurred at work on July 23, 2010. The worker reported that she was getting up from a chair to go and check on a resident when she twisted her right knee. The Employer's Accident Report dated July 23, 2010 indicated that the worker "stood up, started to walk, right knee buckled and twisted. Walking surface was flat and not obstructed by any objects."
X-rays of the right knee taken July 23, 2010 revealed narrowing and spurring of the lateral compartment. Small spurs were seen in the patellofemoral compartment and a joint effusion was present.
On July 23, 2010, the treating physician reported that the worker was walking to help a resident and felt pain in the knee and the knee started to buckle. The diagnosis was a lateral meniscus tear.
On August 13, 2010, the WCB advised the worker that her claim for a right knee injury occurring on July 23, 2010 which had been diagnosed as a lateral meniscal tear was not acceptable given that the MRI of July 19, 2010 showed that the diagnosis was present prior to the work event.
A report from the treating physician dated August 11, 2010 noted that the worker had been seen on February 24, 2010 regarding right knee complaints. The worker had locking and giving way of the knee and could only squat ¼ of the normal range. It was felt that the worker either had a remnant or re-tear to the medial aspect of the medial meniscus.
On October 6, 2010 a WCB orthopaedic consultant outlined the opinion that the probable diagnosis of the workplace injury of July 23, 2010 was a strain of the right knee. Based on clinical reports and MRI dated July 19, 2010, he noted that the worker had OA of the right knee.
On November 24, 2010, the WCB orthopaedic consultant outlined the view that recovery for a right knee strain would occur within two months following the July 23, 2010 workplace injury and that the worker's current capabilities and restrictions were related to OA of the right knee which was a pre-existing condition.
In a second decision dated November 30, 2010, the WCB advised the worker that her claim for a right knee injury occurring on July 23, 2010 was now being accepted based on the diagnosis of a right knee strain and that the knee strain would have resolved within two months of the date of accident. It also determined that any symptoms currently experienced by the worker were unrelated to the compensable right knee strain. The worker was advised that the WCB would pay for wage loss benefits up to August 10, 2010 and medical/treatment costs to September 23, 2010 inclusive.
On January 20, 2011, a worker advisor, acting on the worker's behalf, referred to the following file evidence to support their opinion that there was a causal relationship between the 2007 compensable injury and the worker's current right knee difficulties:
- The diagnosis of the 2007 injury was horizontal tear lateral meniscus.
- The medical reports supported that the worker sought ongoing treatment for her right knee following the surgical treatment on January 11, 2008.
- The treating physician's June 12, 2009 report suspected that the worker's right knee problems were a re-tear or remnant of the lateral meniscus.
- MRI of July 19, 2010 showed a horizontal tear of the lateral meniscus.
- The treating physician's opinion that the tear was the pain generator and was related to the 2007 injury.
- The worker was performing her full regular duties prior to the July 23, 2010 injury but had not been able to return to full regular duties since the July 23, 2010 incident.
- The 2007 and 2010 injuries were both described as "twisting" mechanisms and were in the same anatomical area.
On March 17, 2011 Review Office determined that there was no additional entitlement to wage loss or to medical aid benefits beyond September 23, 2010. Review Office based its decision on the opinion expressed by a WCB orthopaedic consultant who stated that neither knee claim would have resulted in an enhancement of the pre-existing, underlying OA in the right knee, and that the July 16, 2010 MRI which reported extensive myxoid degeneration and a lengthy inferior surface horizontal tear involving the body of the lateral meniscus was a new finding related to the extensive degenerative changes in the worker's knee joint. He did not associate these findings with the previous injury of July 16, 2007. On April 27, 2011, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was requested.
On April 17, 2013, a hearing was held at the Appeal Commission. The hearing was adjourned so that the Appeal Commission could provide the employer's representative with a copy of the worker's 2010 knee claim. A copy of the 2010 knee claim was provided to the employer's representative and a written submission by the employer's representative was made to the appeal panel. The April 17, 2013 hearing then reconvened on May 9, 2013.
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.
The worker has two claims for injury to her right knee. She is seeking further wage loss and medical aid benefits. 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) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.
The WCB Board of Directors established WCB Policy 44.10.20.10, Pre-Existing Conditions which applies to cases where there has been an aggravation or enhancement of pre-existing condition.
Worker's Position
The worker was represented by a worker advisor. The worker answered questions posed by her representative and the panel.
The worker's representative noted that the worker did not have any knee difficulties prior to her July 2007 injury. She advised that the worker's knee was surgically repaired in January 2008 but that the worker continued to experience symptoms of morning stiffness and pain with bending and kneeling.
The worker's representative noted that the worker sought medical attention for her right knee on several occasions between January 2008 and July 2010. She said that the physician suspected a meniscal remnant or re-tear and ordered an MRI which revealed a horizontal tear of the lateral meniscus.
The worker sustained a second injury, on July 23, 2010, to her right knee when she stood up from a chair at work. After this incident, the worker's right knee became more swollen and she was unable to bear weight. The worker advised that she was not able to return to work after the July 2010 injury.
The worker's representative submitted that the medical information supports that the worker continued to have right knee difficulties following the January 2008 surgery to repair the injury from the July 2007 injury. She submitted that based on the definition of enhancement in WCB Policy 44.10.20.10, it is the worker's position that the July 23, 2010 injury adversely affected the worker's right knee which resulted in a loss of earning capacity.
In answer to a question, the worker advised that she sees her physician for a shoulder injury. She said that because the right knee injury is not covered, the physician only provides assistance with managing the injury.
The worker advised that she uses a brace and that her physician gave her an injection in right knee.
The worker advised that before the 2007 injury she had no problems with her knee. But that after the injury, her knee did not return to its former condition. She said that she worked after the 2007 injury but with great difficulty, and chose less strenuous shifts. She has not worked since the 2010 injury. She said that she wants to work but cannot work due to the injury. She cannot walk and seeks the freedom that mobility provides.
Employer's Position
This appeal involves two accepted claims for workplace injuries. The employer on the 2010 claim did not participate in the hearing.
The employer on the 2007 claim was represented on this appeal by an advocate who made a submission at the April 17, 2013 hearing and provided a written submission for the reconvened hearing. The representative submitted that the worker's ongoing difficulties are not related to her 2007 injury as it occurred nearly 6 years prior and her wage loss benefits ended on February 24, 2008 as she was considered fit to work. He noted that the worker has not worked for this employer since 2007.
The employer representative said that the worker's 2010 injury may have worsened her knee condition and that the 2010 injury should be looked at as the proximate cause of ongoing problems.
The employer representative noted that in 2007 the worker had pre-existing conditions which contributed to the need for surgery. He noted in 2007 the worker had Grade 2 chondromalacia, early osteoarthritis and a subchondral cyst.
The employer representative noted that a WCB orthopaedic consultant commented that the worker had pre-existing degenerative conditions prior to the 2007 and 2010 work accidents and that neither caused her pre-existing conditions to be enhanced. The representative said that the only intervening event was the 2010 workplace accident and that any consideration for renewed WCB benefits should be made against the 2010 claim.
Analysis
The worker has two claims regarding injury to her right knee, arising from July 16, 2007 and July 23, 2010 work incidents. She states that she has not returned to her pre-accident status following her July 23, 2010 injury and argues that she is entitled to further benefits. For the worker 's claim to be successful, the panel must find that the worker's loss of earning capacity and need for medical aid for her right knee are due to her July 2007 and/or July 2010 injuries. The panel was not able to make this finding.
The panel has considered all the evidence and cannot find a relationship between the worker's ongoing right knee problems and her 2007 and 2010 workplace injuries.
With respect to the 2007 injury, the panel notes that the worker underwent surgery in January 2008. The worker had a lateral meniscus tear which was trimmed leaving a stable meniscus according to the operative report. The panel finds that the worker's pre-existing condition was neither aggravated nor enhanced by the arthroscopic procedure.
The worker returned to work and worked until July 2010 when she sustained another injury. Given the time that passed between the January 2008 surgery and the July 2010 accident and the fact that the worker was able to work at two jobs up until the July 2010 accident, the panel, on a balance of probabilities, finds there is no relationship between the worker's current symptoms and the 2007 injury. The panel did not find that the 2007 injury was either aggravated or enhanced by the 2010 injury.
With respect to the July 2010 injury, the panel notes that on July 19, 2010, four days before the July 23, 2010 accident, the worker had an MRI of her right knee. The panel has reviewed the September 28, 2007 and July 19, 2010 MRI reports and notes that the worker's degenerative condition has significantly worsened over the 3 year period. The worker now has advanced (grade 4) chondromalacia of the lateral femoral condyle, extensive myxoid degeneration and horizontal tear of the lateral meniscus and small MCL bursa.
The panel notes that the tear noted on the 2010 MRI was a horizontal tear which is generally considered to be degenerative and not traumatic in origin. It also notes that the tear was clearly present before the July 23, 2010 accident. The panel is unable, on a balance of probabilities, to find that the worker's multiple pre-existing conditions in her right knee or the lateral meniscus specifically were aggravated or enhanced by the July 2010 workplace injury.
The panel accepts the November 24, 2010 opinion of the WCB orthopaedic consultant that the worker's current capabilities and restrictions are related to the non-compensable osteoarthritis of the right knee.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 30th day of May, 2013