The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his left knee injury by May 1, 2015. A hearing was held on October 26, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 1, 2015.

Decision

That the worker is not entitled to wage loss and medical aid benefits after May 1, 2015.

Background

The worker filed a claim with the WCB for a left knee injury that occurred on March 10, 2015. The worker described the accident as follows:

I was walking down the stairs. On the last step, I landed on my left leg and it bent backwards instead of forwards. There was nothing on the step, it just popped backwards.

Medical reports showed that the worker sought treatment on March 10, 2015 and was diagnosed with a left knee sprain.

On March 12, 2015, a sports medicine physician noted the following:

March 10 at work. He was walking down stairs and his left knee hyperextended, "it almost popped out backwards" no fall….Similar episode 1/7 ago states his knee feel (sic) loose and he has medial pain. ? some swelling. He has good ROM [range of motion] - though painful, the pain radiates to his hamstring. Ambulatory. No previous knee issues.

The physician diagnosed the worker with a possible ligament tear.

On March 23, 2015, the worker provided the WCB with further details related to the March 10 accident. He said he was descending a flight of stairs at a regular pace when his left leg went backwards (hyperextended) as he took the last step. There were no hazards on the step or any twisting or turning of his leg as it landed on the step. He then felt and heard a pop and felt immediate pain. The worker was questioned about the comments made by the sports medicine specialist regarding a 'similar episode a week ago'. The worker indicated "that's when the accident happened." Worker confirmed that he had no prior issues with his left knee. 

On April 3, 2015, a left knee MRI revealed:

• Chronic appearing complete tear of the ACL.

• Mild impaction type bone contusion in the posterior aspect of the lateral tibial plateau.

• Partial low grade tear of the popliteus tendon at its femoral attachment.

• A possible avulsion fracture is queried.

• Complex multidirectional tear posterior horn and body of the medial meniscus.

• Small inner margin radial tear of the lateral meniscus is queried.

The worker spoke with a WCB adjudicator on April 14, 2015. He said he has not had any prior injuries to his left knee. When he was 16 years of age, he hurt the ligaments to one of his knees but could not recall which one. He was, however, able to perform his regular work duties prior to the injury of March 10, 2015.

On April 15, 2014, a WCB medical advisor provided an opinion regarding the worker's left knee condition.

On April 15, 2015, the worker was advised that based on WCB medical opinion, the likely diagnosis in relation to the March 10, 2015 accident was a mild impaction type bone contusion injury to the posterior aspect of the lateral tibial plateau and a partial low grade tear of the popliteus tendon of the left knee on the background of the following significant pre-existing conditions: Complete tear ACL and complex medial meniscus tear. The worker was advised that responsibility would be limited to wage loss and medical costs in relation to the compensable diagnosis and injury and that no responsibility would be accepted for the pre-existing complete tear of the ACL and complex medial meniscus tear.

On June 29, 2015, the treating sports medicine specialist wrote the WCB to support that the ACL tear was a compensable condition. The specialist stated, in part:

As he was going down the stairs and approached the last step to turn the corner, her (sic) unexpectedly stepped down on an extended left leg. He had immediate pain, accompanied by a snapping sound of his left knee. This injury was witnessed by co-workers. [Worker] has no history of any previous problems with the left knee and had a good functioning knee with no instability until this incident. WCB is of the opinion that this mechanism of injury would not lead to an ACL tear. This mechanism of injury by having impact on an extended leg while changing direction at the same time, can cause an ACL tear in my opinion. This was also accompanied by typical symptoms of immediate pain and an audible snap or pop in the knee.

The worker was seen at the WCB's office on August 19, 2015 for a call-in assessment. On October 8, 2015, the worker underwent a left knee arthroscopy with partial and lateral meniscectomies, and ACL reconstruction. On November 6, 2015, a WCB orthopedic consultant opined that the recent medical information did not change the compensable diagnosis and there remained no WCB financial responsibility for any part of the October 8, 2015 surgery.

In a decision dated November 12, 2015, the worker was advised that the medical information did not support an ACL or meniscus tear in relation to the March 10, 2015 accident. The decision further stated:

Test results show a pre-existing chronic degenerative condition, the mechanism for an acute meniscus tear is that of knee flexion (bending) and rotation (twisting). This type of mechanism was not reported by yourself at the time of the injury or weeks following. Although you made subjective complaints, the clinical findings were not consistent with your subjective complaints. Although you stated you had not had problems in the past the medical notes you have had similar episodes a week prior. As such the WCB is unable to accept the conditions of ACL or meniscus tear…You reported in your injury report and during our discussion on March 23, 2015 that there was no hazard of the steps. You were walking at a regular pace holding onto a rail. You did not pivot or bend. Your knee just suddenly bent backwards for no reason. As such, consideration for your claim was made in error…no further wage loss will be considered beyond May 1, 2015 and medical expenses will be considered until November 17, 2015, 1 week from the date you were advised of this decision.

On December 7, 2015, the worker appealed the decision to Review Office.

On January 21, 2016, Review Office determined that an accident occurred on March 10, 2015 as defined by subsection 1(1) of the Act and that the claim was acceptable for a left knee injury.

Review Office also determined that the worker was not entitled to wage loss or medical aid benefits beyond May 1, 2015. Review Office concluded that the worker's left knee injury was a mild bone contusion in the posterior aspect of the lateral tibial plateau and a partial low grade tear of the popliteus tendon. It found that the MRI diagnoses of "complete tear ACL and complex medial meniscus tear" were pre-existing conditions that were not materially altered by the workplace accident. Review Office was unable to establish that the mechanism of injury of walking down the stairs and hyperextending the left knee would lead to a torn ACL. It agreed that the MRI findings were atypical of an acute ACL tear.

On June 28, 2016, a worker advisor, acting on the worker's behalf, appealed Review Office's decision to the Appeal Commission and a hearing was arranged. On October 19, 2016, the worker advisor submitted a letter to the worker's treating physician, the physician's response to the letter and the worker's Record of Employment.

Following the hearing held on October 26, 2016, the appeal panel asked an independent radiologist to read the MRI of April 3, 2015 and provide an opinion on whether the findings were in keeping with an acute or chronic tear of the ACL. The response from the independent radiologist was received and was forwarded to the interested parties for comment. On January 4, 2017, the panel met further to discuss the case and rendered its decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

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.

WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

The definition portion of the Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from his representative and the panel.

The worker's representative noted that the WCB accepted diagnoses of a mild bone contusion in the posterior aspect of the lateral tibial plateau and a partial low grade tear of the poplieteus tendon as resulting from the worker's March 10, 2015 workplace accident. However, the WCB did not accept that the accident also caused the worker's anterior cruciate ligament tear, which was surgically repaired on October 8, 2015.

He indicated that the worker is seeking further benefits in relation to the ACL tear that required ongoing medical care, and created the need for restrictions which, according to the worker, the employer could not accommodate beyond mid-May of 2015.

The worker's representative advised that, in support of their position regarding the ACL tear, the worker relies upon the expressed opinions of the worker's treating sports medicine physician, particularly his June 26, 2016 narrative report. He asked that the panel attach more weight to this physician's opinion compared to those provided by WCB medical consultants.

He also noted that the treating sports medicine physician saw the worker just over 2 weeks after the accident occurred and diagnosed an ACL tear. In addition, it appears the same diagnosis was suspected by the physician who examined the worker two days after his accident. He noted that the first physician did not diagnose an ACL tear, it is not apparent from that doctor's report that he tested for ACL issues. The first physician diagnosed a knee sprain which, is a medical term often used to describe a stretched or torn ligament. He suggested that the knee sprain diagnosis is not inconsistent with an ACL tear.

The worker's representative noted that the medical consultant relied upon a radiologist's interpretation of the MRI imaging, and the clinical findings in the initial medical reports, to conclude that the ACL tear was a pre-existing condition, not aggravated or enhanced by the work place accident.

He noted that the treating sports medicine physician had a different view of the MRI imaging and that he consulted with a different radiologist who provided a supportive opinion.

The worker's representative also noted that in the worker's first conversation with the adjudicator, the worker reported feeling significant pain immediately, followed by nausea, and that he limped to his car prior to the completion of his scheduled shift. It was also noted in the initial doctor's report that the worker was barely able to weight bear.

It was also noted that income tax information on file suggests that the worker worked full time in the year before the accident.

The worker's representative submitted that if the accident did not cause the ACL tear, the panel should find that the accident enhanced a pre-existing ACL tear and is compensable as an enhancement. The worker is seeking medical aid and wage loss for the period of his recovery.

In reply to questions, the worker provided information about the accident, the resulting injury and the medical treatment. The worker advised that he had been working on bridge building before he began working with the accident employer. He said the bridge building involved "A lot of climbing on scaffolding, mostly cement work, framing in and doing cement work" and that his job with the accident employer was similar. He said his duties included climbing up scaffolding and attaching 4 x 8 sheets of cement board to the wall.

Regarding the accident, the worker confirmed that the description he provided the WCB medical advisor was accurate. It indicated that he descended two flights of stairs at a normal pace and had his right hand on the rail and when he stepped with his left foot to the floor below, his knee buckled back. He said that he braced his fall with both hands and cannot remember whether he hit his knee. A couple co-workers helped him get up and he then wobbled down six more flights of stairs. He reported to the employer, left work and hopped to his car which was parked about one half block away.

The worker advised that he worked at light duties for a short time and was then told that the employer did not have any suitable work for him. He ultimately recovered and returned to work in January 2016. The worker's representative asked that the panel find that the worker is entitled to wage loss until his return to work in January 2016.

The worker's representative advised that the worker is not taking a positon on the origins and compensability of his meniscus tear.

Employer Position

The employer did not participate in the hearing.

Analysis

The worker has an accepted claim for a workplace injury on March 10, 2015. The issue before the panel is whether the worker is entitled to wage loss and medical aid benefits beyond May 1, 2015. As noted in the worker's position, the worker believes that in addition to the accepted injuries, he also injured his ACL and that this injury caused his loss of earning capacity and need for medical aid, beyond May 1, 2015. For the worker's appeal of this injury to be accepted, the panel must find, on a balance of probabilities, that the worker injured his ACL or aggravated or enhanced a pre-existing ACL injury.

The panel noted that there were two different opinions on the origins of the ACL tear. The positions advanced relied, in part, upon the interpretation of the April 3, 2015 MRI of the worker's left knee. The radiologist of record found the ACL tear to be chronic appearing, consistent with a pre-existing tear while the treating sports medicine physician obtained a second opinion which supported a finding that the condition was not pre-existing.

To assist with the adjudication of this appeal, the panel obtained an opinion from an independent radiologist regarding the May 3, 2015 MRI and the noted ACL tear. The independent radiologist's impression indicates, in part:

The ACL tear appears remote as there is no joint effusion or significant bone bruise in an ACL pattern. The ACL remnant also appears scarred. In addition, there appears to have been a remote partial tear of the deep MCL with dystrophic ossification.

The panel finds that this interpretation is consistent with the opinion of the WCB medical advisor that the ACL tear is chronic and likely a pre-existing condition. It is also more consistent with the opinion of the radiologist of record who offered the impression of a "chronic - appearing complete tear of the ACL."

In addition to relying upon the opinion of the WCB medical advisor, the radiologist of record and the independent radiologist, the panel also relies upon the November 6, 2015 opinion of the WCB orthopedic specialist who reviewed the medical information and concurred with the opinion of the WCB medical advisor.

The panel considered the mechanism of injury. The panel notes that on March 23, 2015, the worker was interviewed by a WCB staff member. The file memo indicates:

Do you recall twisting or turning the knee? Worker replied, as far as he knows, he didn't. Worker said in his mind, his knee went straight backwards. He felt and heard a pop.

The panel finds there was nothing unusual about the stairs or his action in walking down the stairs. The panel's understanding of the mechanism of injury is that this action is not likely to cause an ACL tear. The panel agrees that the claim is acceptable for a mild bone contusion in the posterior aspect of the lateral tibial plateau and a partial low grade tear of the popliteus tendon. The panel finds on a balance of probabilities that the accident did not cause, aggravate or enhance the worker's ACL tear and that the worker is not entitled to wage loss and other benefits beyond May 15, 2015. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Campbell, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of January, 2017