Decision #42/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing right knee complaints are not related to his September 25, 2009 compensable accident.
A hearing was held via teleconference on September 16, 2013 and on April 7, 2014 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits beyond October 14, 2010.Decision
That the worker is not entitled to wage loss and medical aid benefits beyond October 14, 2010.Decision: Unanimous
Background
The worker filed a claim with the WCB for a right knee injury that occurred at work on September 25, 2009. The worker reported that he was pushing a sheet of plywood through a table saw when he twisted his knee to the right. He said his right knee hurt a bit after the incident and about one to two hours later his knee started to throb. He did not seek medical attention right away as he thought his knee condition was due to dampness. On September 27, 2009, he was driven to the hospital for treatment as he could not weight bear on his knee. The diagnosis according to the hospital report for September 27, 2009 was a medial meniscal injury.
A Doctor First Report for an examination on October 5, 2009 diagnosed the worker with a musculoligamentous strain of the right knee and the worker was referred to physiotherapy.
X-rays of the right knee and patella taken October 6, 2009 showed no joint effusion.
On October 21, 2009, the worker was diagnosed with a grade 2 MCL sprain by his treating physiotherapist.
On November 27, 2009, a WCB medical advisor commented that the current diagnosis appeared to be a right knee MCL sprain with possible associated medial meniscus injury based on the mechanism of injury and the medical reports. This condition generally improves without specific treatment over a period of several weeks and total disability would not be accounted for by this condition. Restrictions were outlined for a 4 to 6 week period.
On December 1, 2009, the WCB advised the worker that wage loss benefits would be paid to November 27, 2009 as his employer had modified duties available that were within his restrictions and that his current loss of earning capacity was a result of his non-participation in a return-to-work program. Based on an appeal submitted by the worker, the decision was overturned and the worker's benefits were reinstated effective December 11, 2009.
In January 2010, the worker underwent an MRI of his right knee and was also seen at the WCB's offices for a call-in examination. The MRI of January 18, 2010 revealed a mid body medial meniscal tear. The WCB call-in results confirmed that the most probable diagnosis was a right medial meniscal injury and that the worker could return to work with restrictions.
On February 4, 2010, the WCB's Review Office determined that the worker was entitled to wage loss benefits for the period November 28, 2009 to December 7, 2009.
The WCB arranged for the worker to see an orthopaedic surgeon and to attend physiotherapy treatment to strengthen his knee. On March 3, 2010, the worker underwent right knee surgery.
On April 12, 2010, a WCB medical advisor stated: "The type of tear described at surgery, is likely to cause ongoing pain and possible locking episodes. Some meniscal tears will heal sufficiently to become symptom-free. The current diagnosis is medial meniscal tear right knee, debrided at surgery….I would suggest that he could perform modified duties at this time."
In May 2010, the worker advised the WCB that he was experiencing sharp pains and locking in his right knee which caused him to fall on a couple of occasions. His left knee was also bothering him from over-compensating for his right knee.
Following a WCB call-in examination, a WCB medical advisor stated on May 31, 2010, that the worker's left knee complaints were not related in any way to the effects of his right knee compensable injury.
On September 18, 2010, the worker underwent a second MRI of his right knee which was read as follows: "Minimal partial meniscectomy medially with no re-tear or no new abnormality otherwise."
The worker was seen by a WCB orthopaedic consultant at a call-in examination on September 22, 2010. The consultant outlined the opinion that the cause of the worker's persisting right knee discomfort cannot be determined by the physical examination or by the MRI. He said there was no evidence of a relationship between the injury to the right knee and the current symptoms in the left knee.
On October 12, 2010, based on the medical information which included the call-in exam and the MRI results, it was determined by the WCB that the worker was fit for full duties and all other issues with his knee were unrelated to his claim. The worker was paid wage loss benefits from July 13 to October 14, 2010 inclusive as the WCB considered him to be fit to return to his regular pre-accident job duties.
In a submission dated November 24, 2010, a worker advisor submitted that the worker may have sustained a more significant injury than was originally diagnosed and he continued to experience the effects of his injury. Included with the submission were reports from the worker's treating physician.
On December 1, 2010, the WCB's orthopaedic consultant reviewed updated medical information and stated:
- the initial diagnosis related to the compensable injury was a medial meniscus tear of the right knee.
- the January 18, 2010 MRI noted the medial and lateral collateral ligament complexes to be intact so there was a very low probability of concomitant medial ligament tear or strain.
- the currently reported symptoms were not explained by the clinical findings at the WCB call-in examination nor the MRI of September 20, 2010. The MRI demonstrated what would normally be expected after the appropriate correction by partial meniscectomy - truncation of the meniscus. There was no reported ligament injury on MRI. The slight laxity or pseudo-laxity of the knee on valgus stressing was explained by loss of some of the substance of the medial meniscus and would not be a clinical finding related to symptoms.
- as the cause of the reported symptoms has not been explained by clinical and imaging study, any relationship to the compensable injury would be speculative.
On December 6, 2010, the WCB advised the worker that no change would be made to the WCB's earlier decision based on the opinion outlined by the WCB orthopaedic consultant. It was felt that the worker was fit to return to his regular pre-accident job duties and no benefits were payable beyond October 14, 2010.
On January 11, 2011, Review Office confirmed that the worker was not entitled to wage loss benefits beyond October 14, 2010 or to ongoing medical services related to the compensable right knee injury of September 25, 2009. Review Office opined that there was no clinical explanation for why the worker had the level of subjective complaints of pain 16 months post-injury. It noted that the worker's representative was focusing on the possibility of a ligament injury incurred from the September 2009 injury but the WCB orthopaedic consultant pointed out that there was no reported ligament injury found during either MRI examination. Review Office indicated that a ligament injury at the time of the compensable injury was speculative and was not medically supported.
In a report dated April 14, 2011, the treating orthopaedic specialist stated:
Clinical findings unchanged from the last examination. The right knee is functioning quite well, there is no swelling, no effusion, range of motion is fully preserved except terminal flexion which is slightly tender. Some tenderness over the medial joint space. Knee is stable and meniscal sign negative. Spite of patient complaints, I cannot detect any significant pathology to explain patients discomfort. To rule out any underlying problem I am booking the patient for bone scan…
A bone scan dated May 19, 2011 revealed no abnormalities.
A physiotherapist report dated September 9, 2011 noted that the worker had decreased range of motion and severe atrophy in the quad/hamstring region.
Review Office considered the worker's file again on September 14, 2011. Review Office concluded that the treating orthopaedic specialist's reports were in harmony with the orthopaedic reports already on file regarding the lack of a clinical, objective explanation for the worker's pain complaints.
On August 1, 2012, the worker underwent a right knee arthroscopy. The post-operative diagnosis was Grade 1 chondromalacia medial tibial plateau, no obvious mechanical abnormality.
On February 4, 2013, the attending physiotherapist noted that "since his surgery he no longer has had any locking or giving way of his knee. However, he has continued to experience a constant ache throughout his leg with associated pins and needles, burning and numbness...His subjective reports of the nature of the pain he was experiencing were not consistent with a knee issue rather sounded more like a nerve irritation issue from his lumbar spine causing referral of pain onto his leg and knee which led to assessment of his lumbar spine as well as his knee."
On March 7, 2013, a WCB orthopaedic consultant commented as follows in regards to a physiotherapy report dated February 4, 2013:
The findings reported by the attending physiotherapist by letter dated 4-Feb-2013 are entirely consistent with a diagnosis of a lumbar nerve root problem causing radiculopathy in the right lower limb. Previous medical examinations, including neurological specialist assessment on 11-Oct-2011 did not find similar clinical abnormalities. Nevertheless, the physiotherapy findings are credible, and support the conclusion that current symptoms in the right lower limb are not caused by knee joint pathology.
On April 12, 2013, legal counsel representing the worker filed an Appeal of Claims Decision form to the Appeal Commission with respect to Review Office's decision of January 11, 2011. It stated that Review Office's decision should be overturned on the basis that it "improperly focused on minor problem with left knee when the larger compensable injury is to the right knee which has not yet healed completely."
A hearing was held at the Appeal Commission September 16, 2013 and the hearing reconvened on April 7, 2014.
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 benefits beyond October 14, 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(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 was represented by legal counsel. They participated in the hearing by teleconference. The representative asked the worker questions and made a submission in support of the worker's appeal. The worker and representative answered questions from the panel.
The worker described his workplace accident. He said that he had placed a heavy sheet of plywood on a work table. While standing at the back end of the sheet he made a twist motion, twisted his knee and back at the same time and fell to the ground.
The worker advised the panel that:
· he had no pre-existing condition
· he had no prior claims
· he had no prior problem with his knee or back
· at the time of the accident he worked 70 hours per week in a carpentry shop, building forms at $32.50 per hour
· at the current time he works 120 hours per week moving heavy equipment by truck and trailer at $24.00 per hour
· he started this employment in May 2013, after completion of physiotherapy treatments in April 2013.
Regarding the termination of his benefits in October 2010, the worker said that he could not return to regular duties because he required a brace and a cane. He said that he was unable to work between October 2010 and May 2013.
The worker said that the last month of treatment from the physiotherapist in 2013 was on his lower back and hip. He said he received total relief from treatment of his lower back.
The worker's representative submitted that the worker injured his knee and back in the September 2009 accident. He noted that the worker was not able to return to work until after he received extensive physiotherapy. He said he has completely recovered.
When asked whether he was suggesting a back injury occurred at the time of the accident the worker's representative said that it must have been injured. He said that the worker did not have a back injury before the knee injury. He said that it was obviously overlooked. He suggested that the worker's knee injury was corrected in the first surgery and the back was not treated until the physiotherapy in 2013. He also said that it is possible a long term knee problem could cause a back problem, by way of compensating for the knee injury.
Employer's Position
The employer was represented by its Manager, Safety and Health. The representative acknowledged that the worker sustained an injury at work. He said that the employer did everything the WCB instructed it to do with regards to the worker's claim. He said the worker could not wear work boots, could not work outside and could not perform carpentry work. He said the worker was given duties in the lunchroom and that the employer encouraged the worker to work the alternate duties. When the contract ended, the worker was laid-off.
Regarding the worker's medical condition, the representative said the employer was not aware of an injury to the worker's back.
Analysis
The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond October 14, 2010.
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 required medical aid benefits after October 14, 2010 as a result of the workplace injury. In other words, the injury interfered with the worker's ability to work and the worker required medical treatment because of the workplace injury. For the reasons that follow, the panel was not able to make these findings.
The panel finds that the worker's knee difficulties after October 10, 2010 are not related to the September 25, 2009 workplace accident. The panel notes that the worker's benefits were terminated by the WCB after a September 22, 2010 examination by a WCB orthopaedic consultant who opined that:
"The cause of persisting discomfort in the right knee cannot be determined by physical examination or by MRI. There is no evidence of a relationship between the injury to the right knee and the current symptoms in the left knee."
The panel notes that the worker had another MRI and saw several physicians and specialists after October 10, 2010 and that the physicians did not identify an injury to the right knee that can be attributed to the workplace accident. The panel notes that:
· on December 10, 2010, the WCB orthopaedic consultant who had originally reviewed the claim, opined that "Current symptoms cannot be demonstrated to be accounted for in relation to the workplace injury. As the cause of currently reported symptoms has not been explained by clinical and imaging study, any relationship to the compensable injury would be speculative.
· on October 10, 2011, a neurologist examined the worker. He noted that the worker denied numbness in the lower extremity and any low back pain. On examination he noted that both lower extremities demonstrate normal bulk and tone in the thigh and leg. There was no muscle atrophy or involuntary movement. He did not find any peripheral nerve or muscular abnormalities.
· on October 28, 2011, an orthopaedic surgeon examined the worker and reported that the worker had "no pain along the medial joint line with tenderness, no erythema, or swelling." This physician noted that a recent MRI showed a mild truncation in the central portion of the medial meniscus and recommended an arthroscopic knee surgery to explore whether the MRI finding represents a meniscal tear or an artifact of the exam.
· on August 1, 2012 a second orthopaedic surgeon performed the recommended arthroscopic surgery. The surgeon found no evidence of a meniscal tear or meniscal instability, no loose flap or any mechanical explanation for "any of [worker's] symptoms." He found no obvious mechanical problems. He concluded that "Certainly after this MRI and our clinical exploration there is nothing in his knee to be causing his symptoms."
The panel relies on the above information and finds, on the balance of probabilities, that the worker had recovered from his right knee difficulties by October 2010 and that the knee problems complained of by the worker after this date were not related to the compensable injury.
At the hearing, it was suggested that the worker's problems were related to his back and that he injured his back in the accident or as a result of compensating for the knee injury. It is noted that a physiotherapist treated the worker for his back. The physiotherapist opined that the worker "presented with typical signs and symptoms consistent with that of mechanical low back pain with referral through the L3/4 nerve distribution into his knee." He indicated that the improvement in all pain symptoms confirms that his knee pain was a referral issue from his lumbar spine rather than a knee issue. The worker reported that he has totally recovered after the physiotherapy treatments.
With respect to a back injury, the panel has reviewed the full claim file and found no reference to a back injury before the physiotherapist's February 2013 report. As well, the panel notes that a neurologist who examined the worker in October 2011, conducted the same neurological tests as the physiotherapist and found no peripheral nerve or muscular abnormalities. The 2011 tests were normal while in 2013 the tests were not. The panel cannot attribute this late appearance of low back medical issues to the 2009 compensable right knee injury which was considered to have been resolved in 2010.
In the Worker Incident Report, which was completed shortly after the accident, the worker indicates that "I was pushing a sheet plywood (4 x 8-3/4) through the table saw and I was in the carpenter shop and I had to twist the sheet of plywood to get it against the saw and I had to twist to my right and then after my right knee started to hurt." (underlining added) The panel notes this description of the accident differs from the description provided by the worker at the hearing in which he said he twisted his knee and back and fell to the ground. The panel places greater weight on the description provided at the time the claim was submitted. The panel finds that the worker sustained a local injury to his knee and did not injure his lower back in the accident.
In conclusion, the panel finds, on a balance of probabilities, that the worker is not entitled wage loss and medical aid benefits beyond October 14, 2010.
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 14th day of April, 2014