The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable right knee injury by March 14, 2013. A hearing was held on September 30, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits beyond March 14, 2013.

Decision

That the worker is not entitled to wage loss or medical aid benefits beyond March 14, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right knee injury that occurred at work on July 29, 2011. The worker described the accident as follows:

I was taking the casing out and the ladder started moving. I tried to hold onto something. On one side was the fireplace and the other side was a stereo system. I jumped off the ladder and landed on my right knee on a ceramic tile. I had a knee replacement on this knee in Oct. 2010.

On the same day of his accident, the worker attended a hospital emergency facility for treatment and was diagnosed with a contusion to his right knee/leg. His claim for compensation was accepted by the WCB and benefits were paid to the worker.

On August 23, 2011, an orthopaedic surgeon reported that the worker had undergone elective right knee arthroplasty in the past and post-operatively he achieved good range of motion and was essentially pain-free. While on a ladder about 3 weeks ago, he slipped and fell at a height of about 8 to 10 feet landing directly onto the right knee. Since then the worker had swelling and pain in his knee. The surgeon noted that recent x-rays demonstrated that the total knee arthroplasty components were in good position with no evidence of subsidence or loosening. The surgeon recommended physiotherapy sessions and for the worker to increase weight bearing. If the worker continued to have ongoing symptoms, a bone scan and exploration of the knee was suggested.

As the worker continued to complain of knee pain, a bone scan was done on October 7, 2011. An acute trauma/occult fracture was not suspected and soft tissue inflammation in the right knee regions were likely.

On November 1, 2011, the treating surgeon reported that the worker was complaining of pain in the posterior aspect of the knee near the heads of the gastroc or insertion of the hamstring tendons. The surgeon could not explain the etiology of the worker's knee pain and was not comfortable performing an exploratory surgery at that time.

On November 29, 2011 an MRI of the right knee showed no fracture or bone edema, no joint effusion, popliteal cyst or hematoma, no muscle injury and no mass lesion. Some mild diffuse muscle atrophy was identified. The extensor mechanism appeared intact. The impression was: "The cause of the patient's symptoms is not identified. As expected images are limited by hardware artifact."

The worker was seen by a second orthopaedic specialist on April 20, 2012. He noted that the worker had chronic pain in his right knee but he could not find any mechanical issues that would lead to the degree of pain experienced by the worker. The specialist noted that x-rays did not show dramatic arthritis in the hip and the worker did not have numbness or tingling or obvious sciatica-type symptoms that could explain the great deal of pain that he was in. The specialist recommended diagnostic knee injections and if these showed little benefit, a hip injection was suggested.

On June 21, 2012, a WCB medical advisor stated:

Based on the ongoing nature of the complaints and pain symptoms it appears more likely than not that the pre-existing knee arthrosis and consequent total knee arthroplasty are considered to be pre-existing and likely causing significant delay in recovery from the reported workplace injury.

On August 10, 2012, the WCB medical advisor outlined the following medical opinion:

• the current diagnosis was axial compression injury to a total knee arthroplasty with persistent pain of undetermined cause.
• it appeared probable that the current presentation related causally to the injury reported to have occurred in July 2011. An alternate diagnosis was not apparent and various healthcare providers had been consistent in this regard. Unrestricted function had been reported prior to the incident involving falling/jumping from the ladder.
• the worker would be capable of work. Specific restrictions were outlined.

The worker was seen by a WCB physiatrist at a call-in examination on December 18, 2012. The physiatrist's impression was as follows:

This 53 year old construction laborer has a history of multiple joint osteoarthritis and a prior right sided total knee replacement. He has a claim history of a fall on to the right knee July 29, 2011, now one and one half year ago with onset of severe knee pain. The current clinical examination suggested mechanical knee pain symptoms but no other findings. The claimant has had thorough appropriate medical management of his symptomatic complaints, without identification of any pathoanatomical or structural diagnosis for his symptomatic complaints.

On February 21, 2013, the first orthopaedic surgeon reported that the worker had been seen by two surgeons and that both surgeons agreed that there did not appear to be any mechanical reason for the ongoing pain of the joint and that revision surgery would likely be of no benefit. The physician believed that the worker had significant underlying pain which affected his activities of daily living but also felt that further surgical intervention would not likely help.

On March 7, 2013, the WCB determined that the worker was not entitled to further medical expenses or wage loss benefits beyond March 14, 2013 as it was felt that his ongoing difficulties with his right knee were no longer related to his workplace accident. The worker was advised that the WCB physiatrist was unable to medically account for his ongoing pain complaints. The case manager noted that the worker had been originally diagnosed with a contusion and now 1 year 7 months later, the WCB was unable to account for his ongoing pain.

In a report dated April 19, 2013, the treating surgeon commented that the worker was not capable of working due to his knee condition and further physiotherapy treatment was recommended.

On April 22, 2013, the WCB case manager indicated that she had reviewed reports from the worker's physiotherapist dated March 28, 2013 as well as reports from the worker's treating physicians dated February 21, 2013 and April 2, 2013. The case manager was unable to find additional evidence to support a pathoanatomical condition that could explain the worker's ongoing difficulties.

On April 30, 2013, the WCB case manager reviewed information provided by the worker's treating surgeon dated April 19, 2013. The case manager noted that the surgeon attributed the worker's ongoing knee difficulties to his pre-existing total knee arthroplasty. The case manager stated that no further medical evidence was presented to support an ongoing work-related condition.

Based on an appeal submitted by the worker and after review of the file information, Review Office determined that there was no entitlement to wage loss or medical aid benefits beyond March 14, 2013. Review Office referred to specific file evidence and concluded the following:

• the worker had a history of multiple joint osteoarthritis and a right sided total knee replacement in October 2010. These were considered to be pre-existing conditions.
• the claim was accepted based on a right knee contusion. Further laboratory tests did not identify a more significant injury.
• there were no physical or patho-anatomic diagnosis to explain the worker's symptomatic complaints.
• the deterioration of the knee joint was a pre-existing condition that was not aggravated or enhanced as a result of the compensable knee contusion.
• based on the mechanism of injury and the compensable diagnosis of a right knee contusion, it was felt that the worker had recovered from his compensable injury.
• any loss of earning capacity or need for medical treatment could not be accounted for in relation to the compensable diagnosis.

On June 13, 2013, the worker appealed Review Office decision to the Appeal Commission and a hearing was arranged. On July 19, 2013, the worker's legal representative submitted physiotherapy progress reports for consideration.

Following the hearing, the appeal panel requested additional information from the worker's treating orthopaedic specialist on two occasions and the surgeon's reports were provided to the worker and his legal representative for comment. On March 5, 2014, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

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 has an accepted claim. He is seeking further wage loss and medical aid beyond March 14, 2013. 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.

Worker's Position

The worker attended the hearing with his legal counsel.

The worker's representative asked the worker a series of questions. Regarding his employment history, the worker advised that he is 54 years old, has grade 9 education and has worked in the construction industry all his working life. The worker advised that before the accident he had right knee problems which resulted in a total knee replacement in 2010. He advised that he was able to return to work to his pre-accident employment with the same employer. His duties with the employer involved general construction activities.

In answer to questions, the worker described the accident and the resulting injury. He said he was on the 3^rd rung of a ladder cutting insulation around a window when the ladder began to slide. He jumped off the ladder to avoid crashing through a window. He had hoped to land on his left leg but landed on his right knee. He went to the hospital emergency ward for care. His right knee has bothered him since the day of the injury.

The worker advised he attempted a return to work a week after the accident but was not able to remain at work due to excruciating pain. He has not worked since.

The worker advised that he has seen three surgeons, including the surgeon who performed his knee replacement in 2010, but has not been given an explanation of his condition. He described his pain as 10 out of 10 at most times including the morning of the hearing. He told the panel about his pain medications. He said that he did not use medication prior to the hearing so that he would be alert to answer questions.

The worker advised that he has had extensive physiotherapy but this has not improved his injury or his ability to work.

The legal counsel submitted that the worker's injury is a classic workplace injury. He said that the 2010 knee replacement is irrelevant as the worker was able to return to full duties after the surgery. He said the worker had an accident at work and as a result has not been able to work since 2011. He asked that the panel approve the appeal and order retroactive benefits.

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 March 14, 2013. For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker continued to have a loss of earning capacity and require medical aid after March 14, 2013 as a result of the workplace injury. The panel was not able to make this finding.

To assist with the adjudication of this appeal, the panel obtained a report from the orthopaedic surgeon who performed the worker's first knee replacement surgery. In a report dated October 4, 2013, the treating orthopaedic surgeon advised that:

"[The worker] continues to complain of severe pain in his right knee and a sense of locking and instability. He has been unable to demonstrate any obvious mechanical instability issues on clinical assessment and he has been seen by two other fellowship trained arthroplasty surgeons aside from myself. He was functioning well up until his fall off the ladder at work in 2011 as you are well aware. At this point, he continues to have to mobilize using crutches. We have discussed in the past that because we cannot put our finger on the exact reason as to why he is having the mechanical instability or what the mechanical aberration is within his knee, the probability of success with revision is low...Given there is nothing else that I can offer to him and given that he is so debilitated with his sense of instability in his leg that was relatively sudden in onset after a period of well functioning with his previous knee arthroplasty, it is reasonable to consider revision. There is potential that we may find that the components have debonded from the cement and that it is not visible on x-ray. I have seen that a couple of times in the past and that may be the case."

The orthopaedic surgeon advised that he would perform the surgery. The panel notes that the surgery was performed on December 23, 2013. The panel received a copy of the operative report for the revision of the worker's right total knee arthroplasty. The panel notes the following findings reported by the orthopaedic surgeon:

"There were no signs of any loosening of the implants. The tibial and femoral components both had slight internal rotation. There was some mild laxity on the lateral side in 20 degrees of flexion. The patellar tracking was good. There was a small amount of osteolysis on the medial margin of the patella. An osteotome was able to get under a few millimeters under the lateral margin of the implant, but the implant itself was not loose from the bone. There was minimal damage to the patella consistent with wear, being only a few years old. The polyethylene was in good condition. There were no signs of any fracture of bone. All the components including the patella were removed."

The panel notes that the findings do not identify the potential concern "that the components have debonded from the cement" as noted in the October 4, 2013 report of the orthopaedic surgeon or any other findings that could be related to the worker's fall at work on July 29, 2011. The panel also notes that the surgeon found nothing sinister which would explain the worker's ongoing inability to use his right knee and return to work.

In conclusion, the panel finds, based on a balance of probabilities, based on the available evidence including the operative report findings, that the worker does not continue to have a loss of earning capacity and require medical aid after March 14, 2013 as a result of the workplace injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of March, 2014