The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current left knee difficulties were not related to his compensable accident of August 23, 2010.

A hearing was held on July 22, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits after December 10, 2010.

Decision

That the worker is not entitled to wage loss or medical aid benefits after December 10, 2010 in relation to meniscal injuries.

Decision: Unanimous

Background

While employed as an autobody technician on August 23, 2010, the worker suffered injury to his left knee when his leg was crushed between a vehicle and his work bench. On August 24, 2010, the worker sought medical treatment and was diagnosed with a lateral collateral ligament left knee tear. The claim for compensation was accepted and benefits were paid to the worker. Physiotherapy treatments were also authorized by the WCB.

On September 2, 2010, the worker underwent a CT scan which revealed the following:

"Impression:

No acute fracture is seen involving the distal femur, proximal tibia or patella.

Collection of small ossific fragments, possibly a fragmented loose intra-articular body, or multiple loose intra-articular bodies.

An MRI of the left knee may be helpful for further assessment, to assess for marrow edema or contusion, and ligaments, cartilaginous and bony integrity."

In progress notes dated September 14, 2010, the treating physician reported that the worker had shown significant improvement over the past two weeks with decreased swelling, increased range of motion and improved function. He stated that the worker should continue with regular physiotherapy treatments and perform home-based exercises. The physician stated: "I anticipate that he will be back to full function rather quickly. I will review him in two weeks' time."

In October 2010, the treating physiotherapist indicated that the worker was ready to begin a graduated return to work program at four hours per day with certain work restrictions. The worker was also prescribed knee pads to assist with his return to work given that he had to kneel on concrete and had patellar bruising from his injury.

In progress notes dated October 27, 2010, the treating physician assessed the worker with "Recovering post-patellar contusion." With respect to further treatment, the physician stated:

"Continue avoiding kneeling and prolonged crouching. Otherwise no restrictions on activities. Continue to increase rehabilitation. Program to improve quadriceps recovery. At this point in time he is discharged from care."

On December 13, 2010, the worker was discharged from physiotherapy treatment. The treating physiotherapist reported that the worker still had difficulty with prolonged kneeling and that further physiotherapy would not help his knee recovery. Home exercises were suggested to improve range of motion and strength.

By letter dated December 17, 2010, the WCB notified the worker that the WCB was closing his claim as the information on file showed that he was currently performing his full regular duties and was no longer attending medical treatment in relation to his compensable injury.

On January 24, 2013, the worker advised his WCB case manager that his knee had always been sore since treatment ended in 2010 and that he just toughed it out. The worker indicated that he was no longer working with the accident employer and had started working with another employer about six months ago. He indicated that he complained to the shop foreman about his sore knee. The case manager instructed the worker to seek medical treatment related to his knee complaints.

Following receipt of medical reports from the worker's family doctor and an orthopaedic surgeon which included MRI results, the worker's file was reviewed by a WCB orthopaedic consultant on September 18, 2013. The consultant's medical opinion was as follows:

• the current diagnosis based on the available medical information was a tear of the posterior horn of the medial meniscus of the left knee (MRI results of April 23, 2013). May 30, 2013 x-rays demonstrated some early cystic changes of the left hip OA (osteoarthritis) caused by femoral-acetabular impingement.

• the initial medical findings dated August 24, 2010 was tenderness of the lateral aspect of the left knee. A subsequent CT dated September 2, 2010 noted loose bodies in the left knee but it was not confirmed that these were related to the workplace contusion. It was apparent that recovery occurred, with return to pre-injury function.

• on balance of probabilities, the worker's current left knee difficulties were not related to the August 23, 2010 workplace injury.

By letter dated September 24, 2013, the worker was advised that the WCB was unable to accept that his current knee symptoms were related to his injury of August 23, 2010. The decision was based on the findings that the worker had recovered from his 2010 contusion injury based on the medical information from his treating physician and physiotherapist, the fact that he did not seek treatment for more than two years and had been performing his full regular duties since November 2010. The decision was also based on the WCB medical opinion outlined on September 18, 2013.

On December 10, 2013, the worker's advocate requested reconsideration of the WCB's decision dated September 24, 2013. In further correspondence dated December 11, 2013, the advocate provided the WCB with a copy of an operative report dated November 20, 2013 and a letter from the treating physician dated December 10, 2013.

On December 18, 2013, the file was reviewed by the WCB's orthopaedic consultant who stated:

"The physiotherapist noted pain on strong patellar compression and some patello-femoral crepitus, signs that would not be related to meniscal pathology. The O.R. documented tears of lateral and medial menisci, as well as synovitis. There is no reason to alter my opinion stated in the HCSR dated 18-Sept-2013."

On January 29, 2014, the WCB advised the worker's advocate that the new medical information had been reviewed in consultation with a WCB orthopaedic specialist and that no change would be made to the decision outlined in the September 24, 2013 decision letter. The case was then forwarded to Review Office for consideration.

On February 14, 2014, Review Office confirmed that the worker was not entitled to wage loss or medical aid benefits after December 10, 2010.

Review Office noted that at the time of his injury in 2010, the worker had a possible tear of the lateral collateral ligament and a significant contusion to the patella of his left knee. These were accepted injuries by the WCB. The worker was later found to have lateral and medial meniscal cartilage tears and synovitis in his left knee which led to surgery, post-operative physiotherapy and an absence from work. Review Office stated that it did not find evidence in the file to establish a direct or causal relationship between the worker's knee difficulties in 2013 and what was found at surgery to the original workplace injury. Therefore the related loss of earning capacity or requirement for treatment was unrelated. On March 14, 2014, the worker 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.

The worker has an accepted claim for a workplace injury and is seeking wage loss and medical aid benefits after December 10, 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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented by a worker advocate. The worker's representative made a submission on the worker's behalf.

The worker's representative reviewed the accident and mechanism of injury. He noted that the worker's left knee was pinned sideways between the plywood doors of a commercial workbench and the bumper of a pick-up truck. He said the door was made of 3/4 inch plywood and was shattered by the impact. The worker's knee was pinned between the workbench and vehicle for about 20 seconds. He said at the time of the impact there was no weight on the worker's leg. Once released, the worker fell to the ground.

The worker's representative submitted that the worker's knee was more likely to be twisted because it was not planted on the ground. This increased the likelihood that a meniscal tear would occur.

The worker's representative reviewed the medical information noting that an MRI was originally recommended but not ordered. When the MRI was finally conducted, it identified meniscal tears for which the worker subsequently underwent surgery. He advised that a second MRI has been ordered because of ongoing problems with the knee.

The worker's representative noted that the worker returned to work on a graduated basis in October 2010 and full duties in November 2010. Approximately 3 months after returning to work the worker was fired but was allowed to collect Employment Insurance benefits. The worker began working for a new employer in July 2012. The representative noted that the worker's new employer confirmed that the worker mentioned knee pain related to his prior accident.

In response to a question on how the worker was able to return to his work full-time in 2010, the worker said that he was not doing deep squats and other movements he usually did when performing his duties. He noted that his left knee is not his dominant knee. He said he used pain medication to reduce the pain when he was working. He expected his knee to improve over time. He believes that his right knee was carrying more of the load to compensate for the left knee. The worker also explained that he was unemployed for a year and did not exert his knee during that time.

With respect to the November 2013 surgery, the worker advised that he returned to work on a graduated basis in February 2014. The worker said his knee continued to be sore in the area where it was originally injured. He advised that a second MRI has been ordered. He continues to work.

The worker's representative submitted that the worker's menisci injuries were caused by the 2010 accident but that it was missed by treating professionals until an MRI was conducted in 2013. He asked the WCB to compensate the worker for wage loss and medical aid expenses incurred since December 2010.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel was whether the worker is entitled to wage loss or medical aid benefits after December 10, 2010. The worker's position at the hearing was that his left knee medial and lateral meniscal tears are related to his August 23, 2010 workplace injury and that he is entitled to benefits related to the meniscal tears.

For the worker's appeal to be successful, the panel must find that the worker's left menisci were damaged when he was injured at work on August 23, 2010. The panel is not able to make this finding. The panel finds that it is not probable that the worker sustained menisci injuries in the 2010 accident which was not identified until April 2013, approximately 30 months after the injury and after receipt of treatment from a sports medicine specialist and physiotherapists. The panel also notes that late 2010 until April 2013, the worker did not seek treatment for left knee difficulties.

In arriving at this decision, the panel has carefully considered the medical reports and treatments the worker received immediately after the workplace accident. In particular, the panel focused on whether there were clinical or diagnostic findings early in the claim, that were suggestive of menisci tears to the left knee. The panel found:

• Lack of Positive McMurray Test:
  

A positive McMurray test is an indicator of injury to the meniscal structures while a negative test suggests there is not a problem with the mensicus. The worker underwent McMurray tests on 2 occasions and on both occasions the test results were negative. One negative test was performed at the local hospital where the worker attended on August 24, 2010. The Outpatient and Emergency Report Form notes McMurray test negative. The worker was also tested by a sports medicine physician on September 14, 2010. The sports medicine physician's September 14 report notes "McMurray is negative."

• Lack of Joint line Tenderness:

The panel understands that a finding of tenderness on the joint lines is suggestive of a meniscal injury, and accordingly the absence of tenderness suggests there was no meniscal injury. The sport medicine physician saw the worker on October 27, 2010. At that time the physician examined the worker's knee and noted that the worker's medial and lateral joint lines are non-tender. The physician's diagnosis at that time was "Recovering post-patellar contusion."

Lack of Cracking or Locking:

With reference to cracking which can be indicative of meniscal tears, the treating physiotherapist found the cracking to be located at and related to the patellar femoral joint. This is a different anatomical site in the knee than the menisi.

The panel also notes:

• the worker was examined by a physiotherapist On October 7, 2010. The physiotherapist did not report any symptoms or propose a diagnosis indicative of a meniscus tear.
• the worker was discharged from physiotherapy in December 2010 with no indication of meniscal injury during the extended period of treatment of the left knee.

The panel also relies upon the opinion of the WCB orthopedic specialist who reviewed the medical file in September 2013 and opined that "on balance of probabilities, the current difficulties with the left knee are not related to the workplace injury of 23-Aug-2010."

Regarding the worker's concern that an MRI was recommended but not convened, the panel considered the medical evidence on file after the injury, and is of the view that the medical information at the time did not support a suspicion of a meniscal tear and the need for further testing to confirm that diagnosis.

The panel finds, on a balance of probabilities that the worker is not entitled to wage loss or medical aid benefits after December 10, 2010 in relation to meniscal injuries. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of July, 2014