Decision #96/14 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she no longer had a loss of earning capacity related to her compensable injury beyond October 27, 2011. A hearing was held on June 12, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond October 27, 2011.

Decision

That the worker is not entitled to benefits beyond October 27, 2011.

Decision: Unanimous

Background

On August 15, 2011, the worker filed a claim with the WCB for injury to her knees and back that she attributed to a work-related accident on August 4, 2011. The worker reported that her shoe got caught on a piece of flooring and she fell forward landing on her left knee. She grabbed the counter top to prevent herself from striking her face and back. She said she twisted backwards and assumed that she twisted her right knee.

A doctor's first report dated August 10, 2011 indicated that the worker's left foot caught on an uplifted tile at work. The worker landed directly on her left patella and her right knee twisted. The diagnosis reached was a left collateral ligament strain and a possible meniscal injury.

Bilateral knee x-rays were taken on August 8, 2011 and the results indicated that there was no bone or joint abnormality and small bilateral joint effusions were evident.

In a follow-up report dated August 22, 2011, the treating physician reported that the worker's right knee still had clicking, pain, instability and locking. The left knee was feeling better. It was also noted that the worker complained of right shoulder pain for one week. The suspected diagnosis was right shoulder tendonitis.

On August 23, 2011, the WCB advised the worker that wage loss benefits were approved from August 8 to August 22, 2011 and that her claim for right shoulder tendonitis was still under review.

In late August 2011, the employer advised the WCB that they had modified duties available for the worker that involved computer work. On September 1, 2011, a WCB medical advisor indicated that there was no medical information on file to support that the worker could not undertake the described modified duties. Restrictions were outlined to avoid repetitive stair climbing, no lifting greater than 5 pounds and the opportunity to change position as needed.

By letter dated September 2, 2011, the employer advised the worker that modified duties were available commencing September 5, 2011.

On September 7, 2011, the worker spoke with a WCB adjudicator regarding a fall she suffered at home on September 5, 2011. The worker indicated that around 10 a.m., she was going up stairs with her hands full and her left knee gave out. The worker indicated that her left knee had been intermittently unstable since the date of accident. The worker said she fell down the last 3 or 4 stairs, hitting the edge of the stairs with both knees. The worker indicated that her left knee was now swollen and that her right knee was still swollen since the fall.

An MRI of the right knee was done on September 20, 2011. The impression read:

  1. Chondromalacia medial femoral condyle.
  2. Full thickness chondral defect weight-bearing surface lateral femoral condyle.
  3. No evidence for a meniscal tear.

On October 7, 2011, the worker advised the WCB that she worked October 5 and 6 for four hours each day. She was doing hands-on care and feeding patients. She had the opportunity to sit and change positions. The worker said her knee was really sore and that she felt her knee pop one night.

An MRI of the left knee taken October 11, 2011 revealed:

  1. Chondromalacia medial femoral tibial compartment.
  2. Focal full thickness chondral defect lateral femoral condyle.
  3. Short segment horizontal tear body of lateral meniscus.

On October 25, 2011, a WCB medical advisor responded to questions posed by the case manager with respect to worker's current status and its relationship to the compensable injury. The medical advisor stated:

  • the current diagnosis was MRI documented bilateral knee degenerative changes/nonspecific left knee patellar region pain.
  • the current presentation affecting both knees were not accounted for by the August 2, 2011 workplace injury.
  • the right and left MRI demonstrated pre-existing degenerative changes at each knee.
  • the medical evidence did not indicate a delay in recovery from the left knee contusion/right knee strain due to the degenerative changes in the knees.
  • the current diagnosis related to the right shoulder was right shoulder tendonitis and it was not related to the workplace injury.
  • with respect to the fall at home and the worker attributing the fall to knee instability, the reported instability was not a likely consequence of a knee strain/contusion in that these diagnoses would not result in a mechanical alteration of the internal knee structures to account for instability symptoms.
  • further requirement for bilateral knee restrictions were not related to the workplace injury.
  • the left lateral meniscal tear was not related to the workplace injury.

In a decision dated October 31, 2011, the WCB advised the worker that wage loss and medical aid entitlements would end on October 27, 2011. The case manager concluded that a relationship between the worker's bilateral knee complaints, shoulder complaints and the mechanism of injury could not be medically supported based on the MRI results and consultation with the WCB medical advisor. It was felt that the weight of medical evidence indicated that any ongoing signs or symptoms affecting the worker's knees or left shoulder were related to documented pre-existing medical conditions and not the compensable incident.

Subsequently, the worker provided the WCB with a report from her treating physician dated December 22, 2011, which stated in part: "I am unable to state definitively that the meniscal tears in her left knee are related to her injury. However, it is quite possible that this injury was the direct cause of the tears."

On April 30, 2012, a WCB medical advisor reviewed the December 22, 2011 report and stated:

Notwithstanding the December 22, 2011 correspondence from the treating physician indicating an opinion that the meniscal tearing of the left knee could be a direct consequence of the workplace injury, the medical evidence on file indicates otherwise. The anticipated clinical findings suggestive of lateral meniscal tearing including presence of lateral joint line tenderness is not mentioned throughout the medical report subsequent to the date of injury.

Based on the WCB medical opinion of April, 30, 2012, the worker was advised that no change would be made to the previous WCB decision dated October 31, 2011. On July 24, 2013, the worker appealed the decision to Review Office through her union representative.

On September 30, 2013, after considering the worker's appeal which included a medical opinion provided by an orthopaedic surgeon and a submission made by the accident employer's representative, Review Office concluded that the worker did not have a loss of earning capacity in relation to her compensable injury after October 27, 2011. Review Office determined that by October 25, 2011, the worker had recovered from her bilateral compensable knee injuries sustained on August 2, 2011 and that there was no direct connection between the worker's fall and an injury to her right shoulder.

On October 15, 2013, Review Office responded to a further submission made by the worker's union representative dated October 7, 2013. Review Office stated that it was unable to vary its decision dated September 30, 2013. It concluded that the worker's reported fall at home on September 5, 2011 was not a compensable secondary event nor did it materially impact the worker's symptoms by October 25, 2011. On February 6, 2014, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

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.

Worker’s submission:

The worker was assisted by two union representatives at the hearing. It was submitted that the worker was entitled to benefits beyond October 27, 2011 as she had not recovered from the effects of her August 3, 2011 workplace accident. The worker had a pre-existing condition in her knees which was enhanced as a result of her compensable injury. In October 2012, the worker had an arthroscopy performed on her right knee, and a left knee arthroscopy was done in April 2013. A September 17, 2013 report from the treating orthopedic surgeon stated that he believed that the accident had clearly enhanced the worker's pre-existing bilateral knee condition which required surgical intervention. The WCB policy on pre-existing conditions indicated that benefits would be continued when a pre-existing condition has been enhanced. It was submitted that the worker's pre-existing condition would have remained asymptomatic and would not have impacted her ability to work had she not fallen at work in August.

It was noted that the worker had experienced setbacks with her recovery from the compensable injury, with a secondary fall, physiotherapy which was not effective, a failed attempt at return to work and surgeries which were unsuccessful. Overall, it was submitted that the worker had not recovered from her compensable injuries and that she was entitled to ongoing benefits beyond October 27, 2011.

Employer's submission:

The employer was represented by an advocate at the hearing. The employer's position was that the worker sustained a left knee contusion and a right knee strain on August 2, 2011. The findings on MRI for both knees and later in subsequent arthroscopies were purely degenerative. There was no evidence of any enhancement of the pre-existing condition. Additionally, the employer was able to accommodate the worker in light duties, which would have eliminated any loss in earning capacity. It was submitted that the panel should put greater emphasis on the October 25, 2011 opinion of the WCB sports medicine specialist who reviewed the worker's file, including the MRI, mechanism of injury, and initial diagnosis. The WCB specialist stressed that for a lateral meniscal tear to be considered related to the workplace injury, there must be evidence of clinical features related to same in temporal relation to the date of injury. In the worker's case, this was not so. It was therefore the employer's position that the WCB decision to end benefits should be supported.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits beyond October 27, 2011. For the worker’s appeal to be successful, we must find that after October 27, 2011, the worker continued to suffer from the effects of her August 2, 2011 workplace accident. On a balance of probabilities, the panel is not able to make that finding.

The worker underwent arthroscopic surgery on both her right and left knees and she contended that these surgeries to repair meniscal pathology and chondromalacia bilaterally were related to her workplace injury. The panel finds that the evidence from the initial period following the workplace fall does not support this position. In particular, the panel placed weight on the following:


  • Although the worker could not recall specific timelines at the hearing, the file material indicates that the worker was able to complete her shift on August 2, 2011 and also worked her shift on August 4, 2011. While this does not negate the existence of the worker's bilateral knee injuries, it does suggest that the injuries were not as serious as has been contended.
  • When the worker was seen by a sports medicine physician on August 8, 2011, his diagnostic impression was "sprain with effusion" and "mild osteoarthritis."
  • Two days later, on August 10, 2011, the worker was seen by her regular family physician. The family physician performed the standard array of tests, all of which were negative. In particular, McMurray's test which is used to identify a meniscal tear, was indicated as negative.
  • Importantly, lateral joint line tenderness, which would be expected with meniscal tearing, was not noted on either knee.
  • The panel accepts the October 25, 2011 and April 30, 2012 analysis of the WCB medical advisor wherein she concludes that the medical evidence on file does not support that the worker's meniscal tears were either caused by or aggravated/enhanced by the workplace injury.
  • The panel views the subsequent fall at home on September 5, 2011 to be an important event. On the file, the worker was recorded as stating that she was going up stairs with her hands full when her left knee gave out and she fell down the last 3 or 4 stairs, hitting the edge of the stairs with both knees. This statement was made on September 7, 2011. In the panel's view, walking up stairs with her hands full (i.e. not holding onto the rail) would suggest that by that date, the worker's bilateral knee condition had significantly improved. The ability to walk up stairs unsupported requires a fair degree of strength and good range of motion.
  • At the hearing, the worker's evidence was that when going up the stairs, she held on to both the rail and the wall, due to instability in her right knee. When asked about the
  • discrepancy with her earlier statement, the worker acknowledged that her memory would likely have been more accurate at the time rather than two and a half years later. Given the significant lapse in time, the panel relies on the information given by the worker a few days after the fall, rather than the evidence given at the hearing.
  • In the panel's opinion, the worker's course of recovery and progression to a graduated return to work was altered by the effects of the September 5, 2011 fall. On September 1, 2011, the adjudicator was discussing a graduated return to work with the worker which would entail 4 hours per day of modified duties. The worker's only recorded comments were that her knees were still bad and that they burned at night. At that time, the right was worse than the left, she was limping, and she was not using crutches. There was no indication that the worker would not be able to attempt the proposed graduated return to work.
  • After the fall down the stairs, the worker's family physician wrote a report on September 6, 2011 which indicated that the worker was not capable of returning to work in any capacity, that the right knee limited walking severely and that the worker could sit for only short periods of time. This was a significantly different presentation than was reflected prior to the fall, and the panel therefore concludes that the worker suffered a distinct worsening of her condition after the September 5, 2011 fall.

Overall, the panel feels that the evidence indicates that injuries suffered by the worker in her August 2, 2011 workplace fall were limited to a left knee contusion and a right knee strain. We find that the knee conditions which led to surgery (meniscal pathology and chondromalacia) cannot be attributed to the workplace accident of August 2, 2011.

With respect to the contention that the fall on September 5, 2011 was a secondary injury caused by the effects of the original workplace injury, the panel finds that the evidence does not support this position. In coming to this decision, the panel accepts the WCB medical advisor's conclusion that the reported instability which caused the worker to fall on September 5, 2011 was not a likely consequence of the worker's knee strain/contusion.

At the hearing, the union representative placed significant emphasis on the September 17, 2013 opinion of the treating orthopedic surgeon which attributed the worker's surgical findings to the mechanism of injury of the August 2, 2011 workplace accident. The panel notes, however, that the surgeon did not refer to the subsequent fall on September 5, 2011 and it would appear that he was unaware of the subsequent fall and the fact that just prior to falling down the stairs, the worker's condition was improving and she was ready to commence a graduated return to work. As the orthopedic surgeon did not consider these very important factors when formulating his opinion, the panel places limited weight on his conclusions.

It is therefore the panel's decision that the worker is not entitled to benefits beyond October 27, 2011. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 21st day of July, 2014

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