The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his compensable left knee condition resolved by February 2012 and therefore he was not entitled to further wage loss and medical aid benefits. A hearing was held on September 8, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond February 24, 2012.

Decision

That the worker is not entitled to wage loss and medical aid benefits beyond February 24, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB on January 23, 2014 for a work-related injury that occurred on October 25, 2011. The worker reported that he was walking up a slope at a construction site when his left foot slipped out laterally away from his body and he felt sudden discomfort in his left knee. The worker reported that he continued working after the injury and experienced periodic pains to his knee. An MRI taken February 14, 2012 confirmed that he tore the medial collateral ligament (MCL). Then in December 2013, he slipped again while dancing and felt a sudden twang in his knee. The worker felt that the December incident had aggravated the 2012 tear in his knee. The worker's last day of work was December 20, 2013.

The worker has prior claims with the WCB for left knee injuries occurring in 1994 and 1996. In 1994 and 1997, the worker underwent left knee surgeries to repair a medial meniscus tear.

The Employer's Accident Report dated January 21, 2014 indicated that the worker slipped on a geo membraning liner and fell on October 25, 2011.

The worker's employer provided the WCB with an Accident/Incident Investigation Report with respect to the October 25, 2011 incident. A WCB adjudicator also spoke with the worker by telephone on February 6, 2014 to obtain further information as to why he delayed in submitting a WCB claim and to obtain further details regarding his ongoing knee symptoms and the December 2013 incident.

Medical information showed that the worker sought medical attention on October 31, 2011. The treating physician's diagnosis was "? "pinched" medial meniscus - no signs symptoms of torn meniscus." When next seen on December 5, 2011, the treating physician noted that the worker's left knee was still very sore since the October 25 injury. The pain was medial and was worse with prolonged walking and prolonged sitting. The diagnosis was "? medial meniscal tear - R/O ACL tear."

An MRI of the left knee taken February 14, 2012 revealed the following findings:

Partially discoid lateral meniscus.

There is now chondromalacia in the medial femoral condyle.

There is a complex tear in the posterior medial meniscus.

On February 24, 2012, the treating physician referred to the February 14, 2012 MRI findings and assessed the worker with "OS (osteoarthritis) left knee meniscal tears mostly asymptomatic."

On February 26, 2014, a WCB medical advisor made the following comments after reviewing the file information:

The worker had an accident to this knee at work in October 2011. He had an MRI 4 months later which showed a complex medial meniscus tear. There are two possibilities for what happened here:

1. The work injury caused the medial meniscus tear

2. The work injury irritated a pre-existing medial meniscus tear

The medical evidence supports that #2 is more likely:

· Current literature notes that a complex tear of the posterior medial meniscus is typically seen on a degenerative basis. There was no effusion seen on the MRI, further supporting that the tear was not acute.

· An acute tear of a meniscus is generally associated with swelling, loss of full extension, and loss of function. This was not seen here where the doctor did not document any swelling, he did document full range of motion, and the worker was able to continue with his regular day.

· The doctor did not think there was a meniscus tear when first seeing the worker after the workplace accident.

· The worker became symptomatic within about 4 months of the injury. He then had no medical attention for this until almost two years later, when he had more symptoms after dancing. This is more consistent with the natural history of a degenerative tear. It is unlikely that an acute tear would have had that long of an asymptomatic period.

SUMMARY:

In retrospect, the initial diagnosis related to the compensable injury was likely an aggravation of a pre-existing degenerative meniscal tear. This appeared to resolve fully in a few months, as evidenced by him becoming asymptomatic and not requiring medical attention for years. There was no evidence of any material change to the meniscus so there was no evidence of an enhancement. Any further aggravations of this pre-x condition would be adjudicated separately and would not be considered related to this compensable injury.

Meniscal pathology can be caused by aging, an acute injury (usually a twist), or repetitive force through the bent knee.

On March 11, 2014, the WCB confirmed to the worker that his claim for accident occurring to his left knee on October 25, 2011 was being accepted, however, he was not entitled to wage loss, medical treatment or medical expenses beyond February 23, 2012. The worker was advised that his claim had been reviewed by WCB healthcare and it was determined that the initial diagnosis related to the October 25, 2011 accident was likely an aggravation of a pre-existing degenerative meniscal tear.

The WCB also advised the worker that "given you were asymptomatic as of February 23, 2012, able to work your full regular duties and did not seek any medical treatment after February 23, 2012 due to the accident you sustained to your left knee on October 25, 2011, the present disability is the result of an accident which occurred outside of work on December 31, 2013 and did not arise out of and in the course of employment." On March 19, 2014, the worker appealed the decision to Review Office.

On April 4, 2014, the worker was seen by an orthopedic surgeon regarding his left knee complaints. The surgeon compared MRI findings from 2012 and 2014. The surgeon stated:

[The worker] has a repeat left medial meniscal tear with early degenerative changes in his left knee. Left knee arthroscopy was recommended...He advises that somebody at WCB told him that this would be a pre-existing condition but from the evidence that I have there is no reason to make that claim.

On May 22, 2014, Review Office agreed that the worker's claim was acceptable for an accident occurring on October 25, 2011 and that the worker was not entitled to wage loss or medical aid costs beyond February 23, 2012.

Review Office noted that the worker had prior left knee difficulties and that he worked his regular work duties for 14 years and did not seek medical treatment of any kind for his left knee since his last knee surgery in 1997. Based on its review of the file evidence, Review Office found that the worker sustained an aggravation of his pre-existing condition in October 2011 and that the aggravation had resolved by February 2012. It also concluded that two years after the workplace accident, a non-work related incident rendered the worker unable to work and resulted in the worker requiring surgery. The evidence did not support that this incident was related to the October 25, 2011 workplace accident. On June 20, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information from the worker's treating orthopedic surgeon. On September 30, 2014, the surgeon provided the Appeal Commission with the requested information and a copy was forwarded to the worker for comment. On October 22, 2014, the panel met further to discuss the case and rendered its decision on the issue under appeal.

Reasons

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 which occurred in 2011. He is seeking wage loss and medical aid benefits after February 24, 2012.

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 self-represented. He explained the reason for his appeal and answered questions from the panel.

The worker noted that he had numerous knee injuries in the past. He advised that he is a certified engineering technologist and worked on construction sites in remote areas, monitoring the work to insure it was prepared to engineers specifications.

With respect to his current knee problem, he noted that it started with an accident in 2011. He injured his knee as he was walking up a slope in a lagoon. He said he lost his footing, his left knee hit the ground and he slipped to the bottom of the lagoon. When he saw his physician about the injury a week later, he was given medication and was diagnosed with a possible pinched meniscus. He said that he had an MRI in February 2012 which showed a tear in the medial meniscus. He advised that his physician did not recommend any treatment. He said he had pain off and on until November 2013.

The worker advised that on November 13, 2013, he was working at another remote site when his left leg went out from under him when he stepped on snow and ice on a slope at a small lagoon causing him to land on his butt. He said that he had pain on the inside of his left knee within an hour of the fall. The next day he had problems bending his knee and had a significant limp. He saw his physician on November 19, 2013 and was prescribed anti-inflammatory medication and advised him to leave it for a while and see what happens. The worker said that he returned to work and his knee seemed to get better. He stopped using the anti-inflammatory medication seven days later. The worker said his knee then appeared to worsen so he saw his physician again around December 5, 2013, and the physician ordered an MRI.

Over the Christmas season, he did not work. He said that his knee worsened further while he was dancing at a social event on December 31, 2013. With respect to the dancing, he said it was like a person would normally dance, "No break-dancing or any kind of crazy moves..." The worker advised that he saw his physician and was referred to a surgeon. Ultimately, he had surgery in July 2014. He said the surgeon told him the knee injury was caused by his fall at work. He acknowledged that the surgeon did mention degeneration but he was not sure what he was referring to. The surgery was successful and he has returned to a different type of work.

The worker expressed the opinion that he learned that he should have had surgery at the time of the injury and not years after the accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity and medical treatments beyond February 24, 2012 are due to a workplace injury. The panel was not able to make this finding.

To assist with the adjudication of the claim, the panel obtained the surgeon's operative report for the July 8, 2014 surgery.

The report indicates:

"Pre-Op Diagnosis: Left knee medial mensical tear, chondromalacia medial femoral condyle and discord lateral meniscus.

Post-Op Diagnosis: left knee medial meniscal tear, grade 2 chondromalacia medial femoral condyle, grade 3 chondromalacia medial tibial plateau."

The physician noted:

"The patellofemoral joint was normal. Medial gutter was normal. The medial meniscus had a horizontal cleavage tear in the posterior half. The medial femoral condyle had grade 2 changes of the chondromalacia. The medial tibial plateau had grade 3 changes of chondromalacia. ACL normal. The lateral meniscus was a bit bigger than normal but was not truly a discoid meniscus." [emphasis ours]

The panel notes the medial meniscus tear was a horizontal cleavage tear which is more likely to be caused by a degenerative process than an acute injury.

The panel also accepts the February 26, 2014 opinion of the WCB medical advisor which is detailed in the background. The medical advisor opined that the medical evidence supports the conclusion that the work injury irritated the worker's pre-existing medial meniscus tear but was not the cause of the tear.

The panel is unable to find a relationship between the worker's 2011 workplace injury and the July 2014 surgical repair of his left knee.

The panel finds that the worker's time loss and medical treatments after February 24, 2012 are not a result of the workplace injury.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 4th day of November, 2014