The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her current right knee condition was not related to her compensableaccident of January 27, 2014.  A hearingwas held on July 29, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to furtherbenefits.

Decision: Unanimous

Background

On January 27, 2014, the worker fell onto her right knee and jarred her neck when she slipped on icy ground while walking with a co-worker in the parking lot of a satellite office. When seen for medical treatment on January 28, 2014, the attending physician reported: "...pt slipped and fell on R knee yesterday, during working hours...no pop, no crackle, effusion right away, no previous knee injury, no giving way, effusion now, full rom, effusion, acl intact, pcl intact, cml intact, lcl intact. patellar tenderness, swollen. A/R knee prepatellar bursitis."

On February 14, 2014, the worker was seen by a physiotherapist for an initial assessment with complaints of right knee pain, swelling, and pain with stairs and dressing. The knee examination showed tenderness at the MCL, infrapatellar fat pad and positive right patella compression. The diagnosis noted was a right knee contusion and neck strain.

The claim for compensation was accepted based on the diagnoses of a right knee contusion with associated pre-patellar bursitis and a cervical strain.

On May 9, 2014, a physiotherapy progress report stated that the worker had minimal neck complaints and had right knee pain when walking on stairs, etc. The worker was provided with a home exercise program and was reported to be working full time duties.

Via e-mail correspondence dated May 27, 2014, the worker advised the WCB that her last physiotherapy appointment was on May 29, 2014. The worker stated "while my knee was feeling a lot better, after doing yard work (cutting grass) and other things I do every week/years, my knee is really acting up. I had to ice for two days because I could hardly bend it. My physiotherapy told me that if it happened again, I might need an MRI to see what is going on in there. It feels to me, like something "shifted" in my knee since I fell on it."

On June 3, 2014, the attending physician reported: "jobaction (sic) bending, stretching causes swelling, pain on ROM, effusion right away, effusion now, no giving way, locking weight bearing."

On June 20, 2014, the treating physiotherapist requested additional funding for physiotherapy treatment as the worker still had pain and crepitus in her right knee. On July 8, 2014, a WCB physiotherapy advisor denied the request for additional funding as it was felt that further in-clinic treatment was not warranted.

On September 5, 2014, an MRI of the right knee revealed:

1. Tricompartmental chondromalacia.
2. Possible short segment lateral meniscal tear.

On October 3, 2014, a WCB medical advisor reviewed the file and stated that the initial diagnosis appeared to be a right knee contusion with associated pre-patellar bursitis and that the current diagnosis was degenerative arthrosis of the right knee with an associated lateral meniscus tear. The medical advisor provided rationale to support that the current right knee diagnosis was not related to the effects of the January 27, 2014 fall.

In a decision dated October 14, 2014, the worker was advised that the WCB was unable to accept further responsibility for her claim as it was felt that her current symptoms were unrelated to the original right knee contusion with associated pre-patellar bursitis.

In a report to the WCB dated October 22, 2014, the treating physician stated:

"Currently it is my belief that this patient, when she injured her right knee, did indeed injure her lateral meniscus which has caused a meniscus tear. I do agree that joint arthrosis and arthritis is a chronic, longstanding condition, but can be aggravated by an acute knee injury. It is my personal opinion that this patient's lateral meniscus tear as well as associated joint arthrosis was contributed by her right knee injury that was sustained on January 27, 2014."

By letter dated October 24, 2014, a WCB case manager advised the worker that after a review of the October 22, 2014 medical report, the WCB was still of the opinion that her current right knee symptoms were not related to the original right knee contusion with associated pre-patellar bursitis. On December 3, 2014, a worker advisor appealed the case manager's decision to Review Office.

On January 29, 2015, Review Office found that the worker was not entitled to further benefits. Based on the mechanism of injury and medical evidence, Review Office concluded that the compensable diagnosis was a right knee contusion and by May 12, 2014, the worker was close to finishing physiotherapy treatment. On May 27, 2014, the worker advised that her knee was acting up after doing yard work. Review Office felt that a material change occurred to the worker's right knee condition following yard work activity that was unrelated to her employment. Review Office agreed with the WCB medical consultant's opinion dated October 3, 2014. On February 3, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on July 29, 2015.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information from the treating orthopaedic surgeon prior to discussing the worker's appeal further. The additional information included a copy of an operative report pertaining to the worker right knee surgery that was performed in late August 2015 and a copy of the initial consultation report. On September 29, 2015, the interested parties were provided with a copy of the new medical information and were asked to provide comment. On October 19, 2015, the panel met further to discuss the case and to render its final decision.

Reasons

Applicable Legislation

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

As the worker is employed by a federal government agency or department, her claim is therefore adjudicated under the Government Employees Compensation Act (the "GECA"), which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

Subsection 39(1) of the WCA 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 WCA 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.

The worker has an accepted claim for an injury arising from a January 2014 accident. She is seeking further wage loss and medical aid benefits.

Worker's Position

The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker advisor provided a written copy of her submission. The worker answered questions posed by the worker advisor and the panel.

The worker advisor submitted that the worker's ongoing right knee difficulties are related to her January 2014 accident and that she is entitled to further coverage. She reviewed the medical reports from the treating physician and the physiotherapist and concluded that the reports on file show the right knee symptoms have persisted since the workplace injury.

The worker described her accident which involved slipping and falling on ice. She advised that she hit her right knee hard upon the ground and suffered a whiplash type injury to neck. In her opinion, her physician and physiotherapist were more concerned about her neck injury and did not pay sufficient attention to her knee. She feels that they did not properly examine and record her symptoms.

In answer to questions regarding her symptoms, the worker advised that her symptoms have remained the same since the accident. She said that she has had popping, snapping, cracking and locking since the accident. She also said that her knee has been swollen since the accident.

The worker advised that she has been referred to a surgeon and is scheduled to have surgery on August 31, 2015. She met with the surgeon and explained the surgery. He commented that it is not always successful and that she eventually may require a knee replacement. She acknowledged that he referred to degeneration and aging in regards to her knee.

While the worker said that her symptoms remained the same throughout the claim, she also advised that her symptoms increased in May when she started cutting the lawn on uneven ground.

The worker advised that she followed the physiotherapist's instructions and performed the recommended exercises.

In reply to the information obtained from the operating surgeon after the oral hearing concluded, the worker responded that she had post-surgery physiotherapy. She noted that the physiotherapist reported that he was "absolutely thrilled" with the success of the surgery. The physiotherapist told her she was only 2 degrees off of full range of motion due to the surgery and it will be another 6 to 12 weeks before her knee would be completely healed.

Employer's Position

The employer was represented by its disability management professional.

The employer's representative confirmed that the employer agrees with the Review Office decision and noted that no new information has been added to the file at the hearing.

In reply to the information obtained from the surgeon, after the close of the oral hearing, the employer's representative commented that:

The new medical evidence provided by the [hospital] - Operative report dated August 31, 2015 clearly indicates the exhibition of grade 3 chondromalacia to the distal femoral condyle and, plateau. We therefore have to maintain that the meniscus tear was not linked to the January 2014 injury sustained at the [employer's], but most likely linked to non-compensable degenerative condition - as indicated in the medical opinion provided on October 04, 2014 by [WCB medical advisor].

Analysis

In a decision dated October 14, 2014, the WCB found that the worker was not entitled to further benefits. The worker disagreed and is seeking further benefits. For the worker's appeal to be approved the panel must find that the worker continued to sustain a loss of earning capacity and required medical assistance as a result of the workplace accident. The panel was not able to make this finding.

To assist with its adjudication of this appeal, the panel obtained copies of the surgeon's consultation report dated March 27, 2015 and his operative report dated August 31, 2015.

The panel notes, that in the consultation report, the surgeon comments that the worker "appears symptomatic to right knee osteoarthritis." The surgeon comments that "She is at the end stage of her disease progression here she may be looking at knee replacement." The panel finds that the condition noted by the surgeon is a degenerative condition. The panel cannot relate this condition to the worker's workplace accident.

The panel also notes that the operative report provides preoperative and postoperative diagnoses of "Right knee osteoarthritis." The balance of the operative report also refers to degenerative findings, including a degenerative tear. The panel notes that the surgeon makes no reference to traumatic injuries arising from a fall on the worker's knee. The panel notes that these findings are consistent with September 2014 MRI findings. The panel cannot relate the surgeon's findings in the operative report to the worker's workplace accident.

In the consultation report, the surgeon referred to a history provided by the worker of a 14 month period of locking, popping and clicking. The panel finds that this history is not supported by the information on the claim file. The panel notes that the treating physician's July 15, 2014 report indicates that absence of a history of locking, giving way or of crepitus. The panel attaches greater weight to the treating physician's report than to the history noted in the surgeon's report. The panel notes that the reports of clicking and popping began after a non-work incident in late May 2014, which involved cutting grass on uneven ground. The panel also notes that prior to this incident the worker indicated that she was "close to finished with physio."

In conclusion, the panel finds on a balance of probabilities that the worker is not entitled to further benefits. The panel finds that the worker's ongoing difficulties and surgery were not related to the compensable injury, which was diagnosed as a contusion with pre-patellar bursitis. This had resolved by the time the worker had completed her physiotherapy treatment as noted in the Physiotherapy Discharge Notice dated June 20, 2014.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of November, 2015