The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he recovered from his compensable right knee injury and that he was notentitled to benefits after August 18, 2014. A hearing was held on March 5, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits afterAugust 18, 2014.

Decision

That the worker is not entitled to benefits after August 18,2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left knee injury that occurred on May 8, 2014. The worker reported that his left leg twisted by the way he got out of his truck. He felt a "twange" in his knee.

On June 2, 2014, the worker underwent an MRI and the impression was a low grade ACL sprain.

File records showed that the worker has a 2012 WCB claim for a left hip strain/osteoarthritis ("OA") which was not accepted and that a non-compensable left hip replacement operation was scheduled for September 2014.

On July 3, 2014, a WCB medical advisor reviewed the 2014 claim and stated:

• the diagnosis related to the compensable injury was a left knee sprain.
• the worker was capable of sedentary to light duties.
• the worker had slight decreased range of motion in his knee.
• restrictions were outlined with a review in three to four weeks time.
• a normal recovery period was up to 12 weeks post injury.
• low grade chondromalacia was noted.

In a progress report dated July 25, 2014, the treating physician reported that touching the knee caused the worker a lot of pain and that the knee discomfort stemmed from his left hip problems. The physician noted that the worker's knee pain would not improve if his hip was not fixed.

On August 9, 2014, a WCB sports medicine advisor reviewed the worker's knee and hip claims and stated:

• the current presentation involving the left lower extremity was no longer medically related to the workplace injury.
• the workplace injury resulted in a left knee sprain and the anticipated recovery time was six to eight weeks. The marked functional impairment of the left lower extremity was more likely due to pre-existing severe left hip OA slated for next month rather than to the May 8, 2014 knee sprain. This opinion was consistent with the treating physician's comments in his report of July 25, 2014.
• restrictions for the left lower extremity are probably due to the left hip OA rather than the left knee sprain.

By letter dated August 12, 2014, the worker was advised that the WCB was unable to accept further responsibility for his knee claim and it was felt that he had recovered from the left knee sprain of May 8, 2014. The decision was based on the WCB medical opinion of August 9, 2014.

On September 18, 2014, the Worker Advisor Office asked Review Office to reconsider the decision made on August 12, 2014. The worker advisor submitted that the worker had not recovered from his compensable knee injury: "We suggest that the worker's hip condition has certainly complicated the situation, as much as it has complicated his recovery. We suggest however, that the WCB cannot simply presume he ought to have recovered because he has another factor contributing to his disability, especially when there is no definitive evidence to substantiate the opinion."

On November 5, 2014, Review Office determined that there was no entitlement to benefits beyond August 18, 2014. Based on WCB policy, Review Office indicated that the worker's left hip was a pre-existing condition which was not aggravated or enhanced by the compensable injury. Review Office referred to file evidence to support that after August 18, 2014, there was no further requirement for medical treatment related to the worker's compensable left knee injury and that his injury was "no longer contributing, to a material degree, to his loss of earning capacity." On December 23, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

ApplicableLegislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the"Act"), regulations and policies of the Board of Directors.

Subsection 39(1) of the Act provides that wage loss benefitswill be paid: "...where an injury to a worker results in a loss of earningcapacity..." Subsection 39(2) of the Act provides that the WCB will paywage loss benefits until such a time as the worker's loss of earning capacityends, or the worker attains the age of 65. Subsection 27(1) provides that medical aid will be paid by the WCB forso long as is necessary to cure and provide relief from the injury.

The Worker's Position:

The worker was self-represented at the hearing. He describedhow he got injured on May 8, 2014, stepping out of his truck. He indicated thatthe findings of an ACL sprain were not the real injury that he had suffered.His pain at that time was not inside the knee, but rather immediately above theknee and to the outside of the thigh. His position was that at the time of theincident, he also pulled or aggravated the IT band in his left leg as well asthe lateral collateral ligament which all connected up to his left hip. Thesemedical issues were not treated successfully and were continuous from the dateof the accident until he had his total hip replacement surgery.

During his presentation, the worker also discussed hisongoing left hip issues and indicated that that they were causally related to aworkplace injury that he had suffered in 2012, for which he had filed a WCBclaim. The panel discussed with the worker that this hearing was limited to themedical issues that were being appealed under the 2014 claim, and that the lefthip issue was not dealt with in the Review Office decision on the 2014 claim.

The panel advised the worker that while he may still haveoutstanding issues on the 2012 claim, he would have to appeal those issues tothe WCB's Review Office and that if he was not satisfied with those decisions,it would be open for him to appeal those decisions to the Appeal Commission.

Given that the worker felt that his hip and knee problemsare connected, the panel also advised that it was also open for the worker toadjourn this hearing to allow him to have all appeals on both claims dealt withat one time if he so chose. However, if theworker chose to proceed with this hearing, the panel would be bound by thecurrent status of the WCB adjudication on the 2012 claim which states that hisleft hip condition is not a compensable injury. For the purposes of thisappeal, then, the worker's left hip condition would be considered to be anon-compensable pre-existing condition. After considering his options, theworker chose to continue the appeal.

The Employer'sPosition:

The employer did not participate in the appeal.

Analysis:

The worker is seeking to have benefits paid beyond August 18,2014 in respect of his May 8, 2014 workplace accident. For the worker to besuccessful on his appeal, the panel would have to find that he had notrecovered from the effects of his accident, on a balance of probabilities.After reviewing all the evidence on the file and what was presented at thehearing, the panel was unable to make that finding.

The primary focus of the worker's submission was that he hadnot really injured his knee when he had stepped out of the truck on May 8,2014. Rather, he had pulled or aggravated his IT (iliotibial) band on his leftleg, which ran from his hip to his knee. This injury in turn aggravated his hipcondition, and it is these injuries which left him unable to work from the dateof the accident until his eventual total hip replacement surgery.

In our deliberations, the panel noted that the medicalinformation on the file at the time of the May 2014 injury focused more on anacute knee injury, with references to a possible ACL or meniscal tear, which isa different scenario than that described by the worker at the hearing, of aninjury to his thigh or hip. In order to gain greater clarity, the panel afterthe hearing asked for and obtained the chart notes and a narrative report fromthe physiotherapy clinic where the worker was being treated before and afterthe May 2014 incident, as well as medical reports from the worker's treatingphysician and orthopedic surgeon.

Dealingfirstly with the worker's left knee, the panel finds that the evidence supportsa finding that the worker suffered a new and distinct injury to the left kneeon May 8, 2014, and that the left knee issue had resolved by August 2014:

· Theworker's Report of Injury notes an injury "The way I stepped out, I felt atwange in my left knee." The Employer's Accident Report similarly statesthat, "[The worker] said his leg/knee felt like it gave out."

· Theattending physician's chart notes of May 9, 2014 indicate that he could notmanipulate the worker's knee because it was tender. He suspected an internalderangement, noting "suspect medial meniscal injury." On June 23,2014 he notes "Knee throbbing still. Hip is aggravating the problem."

· Inthe worker's first conversation with the WCB on May 15, 2014, he advised that"He twisted his knee getting out of the truck and he felt a pull up theside of his leg and under the knee cap...He was stepping out backwards, plantedthe left leg on the ground, his knee went to the left and twisted and came backto the right quickly...He stated now the low part of his knee cap and into theinside of the knee is swollen still..."

· AnMRI was ordered for the worker's left knee, based on the continuity of paincomplaints to that point in time. The clinical history on June 2, 2014 was a"twisting injury to knee" with MRI findings noted to be a low gradeACL sprain. The panel finds that the worker's mechanism of injury is consistentwith this diagnosis.

· OnMay 20, 2014, the physiotherapist who had been treating the worker prior to theaccident, saw the worker him for the first time after the May 8, 2014 workplaceaccident. She clearly identified a new knee problem, and on June 5, she adoptsthe MRI findings of an ACL strain and provides treatment for that medicalcondition.

· Theworker continued to be treated by the physiotherapist. By July 17, 2014, herreports no longer refer to any localized knee symptoms. Rather, "most painnow seems to radiate from hip to knee on lat aspect of leg." In thepanel's view, this suggests that any localized injury to the left knee hadresolved.

· OnDecember 8, 2014, the worker's orthopedic surgeon assessed the worker's ongoingissues with both his left hip and left knee. The panel notes that the surgeondates the chronology of the worker's left hip condition back to 2012, which is wellbefore the May 2014 injury. As for the left knee complaints, the surgeonindicated that there was not an identifiable left knee diagnosis, as hebelieved that any knee pain was as a result of referred pain from the hip. Histreatment plan was to proceed with the hip replacement and not to worry aboutthe knee as there was no significant instability present.

We then turned our attention to the medical status of theworker's left hip and thigh before and after the May 2014 workplace accident.In our view, the evidence supports a finding that the worker was on tracktowards a total left hip replacement well before May 2014, and that the statusof the worker's left hip was causing all sorts of biomechanical challenges forthe worker before that date, not just in the hip but to various thigh muscles,to the point where his gait was affected:

· Theworker had a workplace injury in 2012 (which is not part of this appeal) to hisleft hip, and a review of the 2012 WCB claim provided considerable insight as tothe various conditions in play prior to May 2014 at that time. The 2012 claim acceptedresponsibility for a left hip strain only. The worker also had osteoarthritis(OA) of the left hip that was severe enough that a total hip replacementsurgery was planned for September 2014. The OA was not accepted as acompensable diagnosis on the 2012 claim and for the purposes of this appeal isconsidered to be a non-compensable pre-existing medical condition.

· Theleft hip was quite symptomatic prior to the May 2014 workplace incident. Theworker was receiving continuous physiotherapy treatment for this conditionthroughout 2013 and 2014 for this condition. The physiotherapist's chart notesof January 14, 2014 (four months prior to this May 2014 claim) indicate thatthe worker was very sore and "feels he is walking funny and affectingother areas. Awaiting hip replacement surgical consult." The worker atthat time was receiving treatments to the left hip area and to a number of areasin the thigh including the IT band and quadriceps.

· Thephysiotherapist's chart notes of April 2, 2014 (one month before this May 2014claim) also note the worker's subjective complaints of increasing back and ITpain by the end of the day and that he was starting to complain of low backpain, with the notation, "Knows its from the [change] ingait...hip." Similarly, on April22, 2014, the worker is noting "outside of leg and calf cramps at nightbut not as consistent as last time."

· Inreviewing the medical evidence, the panel does not note any material change inthe worker's hip and thigh conditions before and after the May 8, 2014workplace accident beyond the general deterioration of function that would beanticipated with the necessity of a total hip replacement surgery. The panelfinds that the evidence does not support that the worker's May 8, 2014 accidentaggravated or enhanced the worker's left hip or thigh conditions.

· Thepanel notes that our findings are consistent with the medical opinion providedby a WCB sports medicine advisor on August 9, 2014.

In conclusion, the panel finds, on a balance ofprobabilities, that the worker suffered a localized ACL strain in his left kneeas a result of his compensable accident on May 8, 2014 and that it resolved bythe time his benefits were terminated in August 2014. The panel further findsthat the worker's left hip and thigh issues preceded the May 8, 2014 accidentand were not caused, aggravated or enhanced by his workplace accident on thatday. On the basis of these findings, the worker's ongoing medical issues afterAugust 18, 2014 are not related to the May 8, 2014 and therefore there is noentitlement to further benefits after that date. The worker's appeal is denied.

Panel Members

A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 10th day of June, 2015