Decision #161/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that his left knee and back difficulties were not caused by or related to his compensable right knee injury of April 26, 2011. A hearing was held on October 22, 2013 to consider the matter.Issue
Whether or not responsibility should be accepted for the worker's left knee and back complaints in relation to compensable right knee injury of April 16, 2011.Decision
That responsibility should not be accepted for the worker's left knee and back complaints in relation to compensable right knee injury of April 16, 2011.Decision: Unanimous
Background
On April 26, 2011, the worker twisted his right knee when he stepped off some machinery at work. File records also showed that the worker had prior claims with the WCB for right knee injuries that occurred in 1998 and 2004. The claims showed that the worker underwent two arthroscopic procedures which included a right partial medial meniscectomy in 1999 and treatment for a degenerative medial meniscus tear and chondromalacia of the medial femoral condyle in 2005.
Based on the results of an MRI assessment dated May 23, 2011, the worker was diagnosed with a right knee medial meniscus tear, patellofemoral arthritis and severe medial compartment arthritis.
On June 27, 2011, the worker's treating orthopaedic surgeon recommended a right knee arthroscopy which was accepted as a WCB responsibility. In September 2011, the worker returned to modified duties with restrictions.
The worker was assessed by a WCB sports medicine consultant on December 12, 2011. The medical consultant stated that the clinical presentation appeared to be consistent with a recovering surgically repaired medial meniscal tear with ongoing medial compartment irritation secondary to degenerative changes.
In August 2012, the worker advised the WCB that he was having difficulties with his back and left knee which he attributed to his posture and gait related to his right knee difficulties.
In a doctor progress report dated August 15, 2012, the treating physician noted that the worker complained of left knee and recent low back pain radiating to his right hip and upper leg. Recommendations were made for physiotherapy treatment related to the worker's back condition.
On August 15, 2012, the worker had x-rays taken of his lumbar spine and both knees. The lumbar spine findings were "mild degenerative disc disease noted at L4-5 and mild facet osteoarthritis at L4-5 and L5-S1." The left knee findings were mild patellofemoral compartment osteoarthritis.
On September 5, 2012, a WCB case manager requested a medical opinion regarding the diagnosis related to the worker's left knee and back conditions and whether or not the diagnosed conditions were related to the worker's compensable right knee injury.
On September 10, 2012, a WCB medical advisor stated that he could not identify a specific event on his file review that would result in an injury to the worker's left knee or back. Based on the August 15, 2012 doctor progress report and the August 15, 2012 x-rays, it was felt that the worker's left knee and low back symptoms were secondary to a mild degenerative process. The medical advisor also stated:
The medical evidence available indicates that an injury in one extremity, (in this case [the worker's] right knee) rarely causes a major problem in the opposite, uninjured extremity, (in this case [the worker's] left knee) due to overcompensation or increased usage of the opposite extremity. Similarly medical evidence available indicates that an injury in one extremity, (in this case [the worker's] right knee) rarely causes a major problem in the back due to overcompensation or increased usage of an extremity.
In a decision dated September 12, 2012, the WCB case manager advised the worker that the WCB was unable to accept responsibility for his current left knee and back difficulties as being related to his compensable right knee injury. It was felt that the worker's left knee and back difficulties were secondary to a mild degenerative process based on the clinical assessment by his treating physician and available imaging studies.
In October 2012, the worker appealed the decision of September 12, 2012 to Review Office. The worker stated: "In discussion with my doctor that this condition is a common issue…when injury of the right or left knee you will compensate which in turn change your body posture when walking or working on your feet. I would like to remind you that I had three surgeries to this knee…"
On November 29, 2012, the employer's representative submitted to Review Office that there were no grounds to vary the case manager's decision of September 12, 2012. The representative believed that the totality of evidence failed to establish the necessary nexus between the compensable incident of April 2011 and the onset of left knee and low back problems in August 2012.
On December 11, 2012, Review Office upheld that responsibility should not be accepted for the worker's left knee and back difficulties in relation to his compensable right knee injury. In making its decision, Review Office noted that the worker did not report any difficulties with his left knee or back until 16 months after his compensable injury or a year after his surgery. It found that the modified duties performed by the worker were within his work restrictions and there was nothing onerous which would cause his left knee and low back conditions to develop. It noted that the medical documentation did not provide diagnoses for the left knee and lower back and that the medical evidence did not support that the degenerative changes were caused, aggravated or enhanced by the compensable right knee injury. On a balance of probabilities, Review Office indicated that the worker's left knee and low back conditions were not related to the compensable right knee injury of April 26, 2011. On June 9, 2013, the worker appealed Review Office's 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(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.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:
A further injury occurring subsequent to a compensable injury is compensable:
(i) where the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.
A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.
Worker’s Position:
The worker was self-represented at the hearing. The worker explained that over the years, he has had three serious injuries to his right knee and his doctor told him that because he had so many injuries to this particular part of the body, most of the support had been shifted over to the left side. As a result of that shift, he had put more impact and wear and tear on the left side which had left him with a back injury and a left knee injury. He was a right-handed person and because of the right knee injury he had moved all of the workload to the left side. The worker was now required to have viscosupplementation injections into his left knee, which he was paying for out of his own pocket. The worker noted that the WCB covered him for the same injections in his right knee and he felt that the injections for the left knee should also be covered by the WCB.
The Employer’s Position:
The compensation coordinator appeared at the hearing on behalf of the employer. It was submitted that the preponderance of evidence on a balance of probabilities failed to establish a relationship between the worker's right knee injury of April 26, 2011 and the onset of low back and left knee complaints in August 2012. It was noted that the medical reports made no mention of difficulties with either the left knee or the low back from April 26, 2011 to the follow-up examination of August 15, 2012, some 16 months post-accident. The employer submitted that degenerative changes shown in imaging studies would be consistent with the worker's age and most probably were the pain generators in those two areas. The employer relied on the WCB medical advisor's opinion of September 10, 2012 and noted that although the worker's doctor provided a brief note dated October 8, 2013, the note was devoid of any pathophysiological explanation that would establish a nexus between the compensable incident of April 26, 2011 and the onset of low back and left knee pain sixteen months post-accident. The doctor also did not even address the contributory factor of degeneration noted in both anatomical sites. The panel was called upon to uphold the decision of the WCB.
Analysis:
In order for the worker’s appeal to succeed, the panel must find that his left knee and back complaints qualify as a “further injury” under one of the three tests set out in the Further Injuries Policy. The test applicable to the worker’s left knee and back complaints would be the one contained in paragraph (i), that is, whether or not the cause of the further injury is predominantly attributable to the compensable injury.
The administrative guidelines to the Further Injuries Policy provide as follows:
A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:
1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g. unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.
After reviewing the evidence as a whole, the panel is not satisfied, on a balance of probabilities, that the worker’s compensable right knee injury caused or significantly contributed to the development of his left knee and back difficulties.
At the hearing, the worker was asked to describe the activity he has been engaged in since his workplace accident of April 26, 2011. After he had recovered from his August 16, 2011 arthroscopic surgery, the worker returned to work at modified duties. He was not to kneel or squat and was to restrict stairs to a minimum. Walking was limited to no more than two kilometers. The worker confirmed that he was able to stay within those restrictions. His first accommodated position was as a parking attendant where he sat for most of the day. At the time of the hearing, he was placed in an office job. The job was about fifty percent standing and fifty percent sitting, but he was not required to stand for more than a maximum of five minutes at a time. He did not have to move anything heavy and he did not have to climb any ladders.
In his home life, the worker indicated that he kept walking to a minimum. He would make one round of the grocery store, then go find a place to sit down. His wife would take care of the rest. The worker stated that he was very careful of what he would do and would be careful not to overextend himself.
Given the worker's sedentary lifestyle with minimal walking, the panel has difficulty accepting that there has been an increased burden on his left knee and back such as to cause injury. We see nothing in his work or home life which would result in excessive loading or unusual usage of those body parts. At the hearing, the worker alluded to shifting the workload over to his left side while he was still working as a heavy mechanic, but the panel notes that his complaints of left sided knee and back pain did not come up until August 2012, long after he had ceased the heavy mechanic work. Even then in his later years as a mechanic, he worked in a supervisory position where there was more sitting involved.
The October 8, 2013 note from the worker's doctor states only:
Left knee has pain post injury and will also be negatively affected by right knee's inability to properly support the patient. Right knee has been a chronic issue with increasing left knee pain over time.
The panel does not view this note as being an opinion that the left knee difficulties are predominantly attributable to the compensable right knee injury. Based on the WCB medical advisor's opinion of September 10, 2012 combined with the degenerative disc disease and osteoarthritis noted on the imaging studies, the panel finds that the worker's current left knee and low back difficulties are more likely related to the natural degenerative processes of aging.
For the foregoing reasons, we find that responsibility should not be accepted for the worker’s left knee and back complaints as having a relationship to the compensable right knee injury of April 26, 2011. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 4th day of December, 2013