The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to her compensable claim. A hearing was held on April 20, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits.

Background

The worker filed a claim with the WCB for an injury to her left knee and ankle that occurred on March 9, 2016. The worker reported:

I opened up the back of my van, I went to move a displayer into a cart. As I was doing this my left foot twisted, I did not fall down. It hurt to walk after that. I continued working.

The worker indicated that she did not report the accident to her employer until March 11, 2016 as she did not think her injury was serious.

The worker's claim for compensation was accepted based on the initial diagnosis of a left ankle sprain, hip buttocks strain and a left knee injury.

On May 16, 2016, the worker underwent a left knee MRI which was read as showing:

1. Radial tear posterior root ligament of medial meniscus.

2. Tricompartmental osteoarthritis, moderate to severe at the patellofemoral joint and mild at the femorotibial compartments. Several intra-articular bodies.

3. Popliteal cyst. A small amount of fluid inferior to the cyst could reflect cyst leakage or rupture.

On June 2, 2016, a WCB medical advisor reviewed the claim at the request of the case manager. The medical advisor noted that the treating physician and sports medicine specialist documented lateral joint line tenderness and the May 2016 left knee MRI did not demonstrate pathology to the lateral meniscus. He noted that a radial tear of the posterior horn of the medial meniscus was likely degenerative in nature rather than an effect of the workplace accident as there was no medial joint line tenderness documented by the treating physician beyond the March 11, 2016 treating sports medicine specialist report. Given these findings, the current diagnosis was a left knee strain.

In a further opinion dated June 4, 2016, the WCB medical advisor stated: "…the current left knee symptoms is (sic) an effect of the tricompartment degeneration and the degenerative tear rather than still an ongoing effect from the March 9, 2016 workplace accident. It is expected that an uncomplicated left knee strain would have recovered 4 months from the workplace accident."

In a decision dated June 8, 2016, Compensation Services advised the worker that based on a review of all file information, it was determined that she had recovered from her compensable injuries and that no responsibility would be accepted for the radial tear to the medial meniscus. It was the case manager's opinion that the worker's current left knee symptoms were an effect of the tricompartment degeneration and the radial degenerative tear rather than an ongoing effect from the workplace injury of March 9, 2016.

Subsequent to the case manager's decision, a report was received from an orthopedic surgeon dated June 8, 2016. The surgeon stated:

We have discussed possible arthroscopy…She is aware that this will not address the underlying arthritic component to her knee. Furthermore, she also understands that the osteoarthritis likely predated her injury and will continue to deteriorate over time. Arthroplasty is certainly a possibility in the future. It is highly likely, however, that her injury did result in the meniscal pathology and may have resulted in the development of the free loose bodies within the knee. These may have developed on a pedicle prior to injury.

On June 17, 2016, the WCB medical advisor stated:

The described twisting of the knee on March 9, 2016 less likely would have applied enough force to the knee to result in a meniscal tear. Rather the prior factors documented of advanced age, female predominance and elevated BMI would be factors that would be associated with tearing of the meniscus in the environment of a degenerative knee joint.

 As such concordant with my prior opinion, the meniscal tear on the balance of probabilities is less likely materially the effect of the March 9, 2016 workplace accident.

On July 20, 2016, the worker submitted to Review Office that her current left knee condition was related to the compensable accident. Included with the submission was a report from the treating physiotherapist dated July 10, 2016. After speaking with a review officer on July 21, 2016, the worker provided Review Office with a further submission dated July 24, 2016.

The employer's representative wrote Review Office on August 25, 2016 stating that they agreed that entitlement should be limited to the work injury of March 9, 2016 for an ankle/knee sprain and with the closure of benefits on June 2, 2016.

File records show that the worker underwent left knee surgery on August 8, 2016. In a memo to file dated September 14, 2016, Review Office noted that the worker's file was being referred back to Compensation Services to review the surgery findings and to provide the worker with another decision.

At the request of the case manager, a WCB orthopedic surgeon reviewed the surgery report and stated:

The diagnoses based on the left knee arthroscopy report dated 8-Aug-2016 include:

a) Loose body left knee

b) Posterior horn tear of lateral meniscus

c) Posterior horn tear of medial meniscus

d) Patella chondromalacia Grade III

e) Lateral tibia plateau chondromalacia Grade III

f) Medial femoral condyle chondromalacia Grade III

g) Intra-articular loose body 0.75 x 0.5 cm dimension

The above diagnoses are most likely the result of chronic degenerative pathology rather than the result of an episode of trauma. They are the result of longstanding wear and tear effects on the knee. The extent of the arthroscopic surgery twenty years ago is not known.

The worker reported a workplace injury on 9-March-2016 which was described as a twist of the entire left lower limb. Had this twist caused any of the pathology in (1) above, it would be expected that there would be sudden onset of knee pain. The reported pain and tenderness was non-specific involving the entire lower limb.

It is concluded that all of the pathology in the left knee is of a degenerative rather than traumatic etiology.

On October 6, 2016, Compensation Services wrote the worker to advise her that, based on the recent WCB orthopedic medical opinion, no change would be made to the previous claim decision. On November 2, 2016, the worker appealed the decision to Review Office.

On December 15, 2016, Review Office determined that the worker was not entitled to additional benefits. Review Office referred to the worker's statement to Compensation Services on March 29, 2016 that she did not initially realize she had twisted her knee. She initially felt she had injured her left ankle. The worker also indicated to her doctor that she did not feel she had suffered a tear in her knee and that it was a strain/sprain injury.

Review Office noted the worker's contention that she did have pre-existing osteoarthritis but that the workplace accident caused the loose bodies in her left knee to dislodge. The worker said she had a prior injury to her left knee approximately 20 years ago. It was unknown if this was impacting her current left knee difficulties.

Review Office stated that it accepted the WCB medical opinions outlined on June 2, June 17 and October 5, 2016. It concluded that the worker's current left knee difficulties were not a result of her workplace accident. On January 10, 2017, 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 WCB's 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 the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work 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.

Worker's Submission

The worker attended the hearing and provided her submission with the assistance of her spouse.

The worker advised the panel that at the time of the injury the worker was employed in the retail sector and her duties involved, in part, the presentation and stocking of retail products within various retail outlets.

The worker stated that on March 9, 2016, she went out to her van that was parked in a parking lot at one of the retail stores she services to get a "displayer" and a few other items she required. She had a shopping cart with her to transport the supplies she needed from her van into the store. She explained that a displayer is a cardboard panel approximately four feet high, two and half feet long and a "couple of inches wide" used to display products in the stores.

She stated that it was windy on that day and when she was removing the displayer from the back of her van, the wind caught the displayer and she slipped on the ice. Although she didn't fall to the ground, she twisted her body to the left. She banged her knee against the van when she slipped.

The worker stated that at first she thought she had twisted her left ankle.

The worker stated that she started limping as she returned to the store from the parking lot with her supplies in the shopping cart. She put up the displayer and then left that location.

The worker stated that she had previously made a commitment to assist another merchandiser at another location with a "product reline". She clarified that this involved removing all the product from the display shelves and realigning it. The worker stated that this would have been a huge project for the other merchandiser to do on her own and she felt obligated to assist her.

The worker stated that she was in pain when she arrived at the second location and that the pain worsened during the few hours that worker was assisting her colleague. Her colleague was aware of the worker's situation. The worker said that once she finished the task with the co-worker, she went home and took some Advil and put ice on her leg for the evening.

The next day the worker stated that she went to work but by noon hour the pain was so bad that she went home. The worker then attended a clinic the following morning (March 11, 2016) at which time her left leg was examined and she was advised by the attending physician to wear a leg cast and to not weight bear for two weeks.

The worker began attending physiotherapy on March 15, 2016 and attended a different physician at the same clinic on March 28, 2016. At that time, the worker was advised to restrict her work to three to four hours a day.

The worker stated that her knee problems persisted which resulted in an MRI being requested and scheduled for May 18, 2016.

The worker stated that the MRI noted that there were several internal articular bodies in the anterior aspect of the knee as well as a 1.3 centimeter tear involving the posterior root of the medial meniscus.

The worker was referred for a surgical consult on June 7, 2016 and underwent her left knee surgery on August 8, 2016.

The worker is seeking additional benefits beyond June 2, 2016.

Employer's Submission

The employer's representative participated via a conference call.

The employer's representative stated that the surgery that occurred on August 8, 2016 was not related to the workplace accident of March 9, 2016.

She stated:

In order for this kind of surgery to have resulted from that injury, that injury would have had to be quite severe, and in all indications of that March 9th injury, which wasn't reported until two days later, it seemed to have been very, a very minor kind of twist.

The employer's representative also raised concern the worker did not initially report that her knee hit her van and further that the worker's stated reason on her initial Workers Incident Report for the delay in reporting was that she did not feel it was serious.

The employer's representative pointed out that the comment of the accident as being a "minor injury" is stated repeatedly throughout the file.

The employer's representative also raised the concern about the degenerative changes within the worker's knee that were identified in the May 18, 2016 MRI and that such conditions would not be the result of the March 9, 2016 workplace accident.

The employer's advocate asked the panel to note the WCB's medical advisor's June 4, 2016 opinion which indicated the left knee symptoms were the result of degenerative changes.

The employer's representative also asked the panel to note the same WCB's medical advisor's opinion dated June 17, 2016 which stated:

The described twisting of the knee on March 9, 2016 less likely would have applied enough force to the knee to result in a meniscal tear.

The employer's representative concluded her presentation by stating that she believed benefits should have been limited to a "simple strain" and that the worker would not be entitled to further benefits resulting from her August 8, 2016 surgery.

Analysis

The worker is appealing the WCB decision that she is not entitled to further benefits in relation to her accepted accident of March 9, 2016. For the worker's appeal to be approved, the panel must find that the worker sustained a further loss of earning capacity and/or required additional medical aid benefits. The panel is able to make this finding.

The panel finds, on a balance of probabilities, that the worker is entitled to further benefits in relation to her accident of March 9, 2016. The panel finds that the worker enhanced the pre-existing medial/lateral meniscus tear/deterioration as a result of the workplace injury.

The panel notes that the differing medical opinions in the file appear to be based on differing views of the mechanism of injury in the parking lot on March 9, 2016. At the hearing, the panel carefully questioned the worker and accepts the worker's evidence of a significant and quick twisting of her body on her left planted foot caused by a big gust of wind while she was removing a large cardboard displayer from her vehicle. In the panel's view, this led to a significant twisting and consequent injury to the worker's left knee, which the panel understands are the factors associated with the development of meniscal injuries. The panel therefore accepts that the mechanism of injury led to further injury to the worker's left medial and lateral menisci.

In support of this finding, the panel places significant weight on the initial medical reporting from the worker's March 11, 2016 attendance at the medical clinic which refers to a twisting injury and early evidence of left knee meniscal pathology.

The intake nurse at the clinic wrote the following at 12:29 PM March 11, 2016:

Sudden onset 2/7 ago of left knee pain when slipped on ice in…parking lot. Did not fall, twisted left knee. Pain to knee and lateral calf. Unable to flex leg today. Constant aching. Some swelling to lateral calf. Has been icing. Has some tingling to toes. Taking Aleve PRN with minimal relief. Able to WB (weight bear) but limping. PHx (previous history) left knee scope for meniscus tear and removal of bone chips.

The attending physician wrote the following in his report on that date, which also referred to left knee pathology and in particular a positive McMurray's test and suspected meniscus injury:

slip no fall and pain to leg unable to wt bear…hx scope 20 years ago and was fine…O: no b b change…radiation to lateral leg nd lateral calf…no radiation to foot/ankle…ankle lateral pain drawer mild pain no laxity…df pf intact eversion pain lateral ankle...foot normal…knee medial pain mcl laxity…lateral pain to joint and tib fib…extn intact fln intact with pain…acl no laxity patella grind nil pain…mcmurray pain to medial knee…slr lateral knee calf pain…l ankle sprain knee injury? Meniscal, hip buttock strain…some mild radicular pain…P xray and pt and brace knee and rehab.

The treating physiotherapist also noted clinical findings on March 15, 2016 that supported a diagnosis of a left medial meniscus MCL sprain.

In the panel's view, the early medical findings support that the workplace accident that occurred on March 9, 2016 was substantively more than a minor incident given that the worker's knee was predisposed to injury, and therefore concludes that the mechanism of injury was a significant event leading to permanent changes (enhancement) of previously asymptomatic pre-existing conditions in her knee, as evidenced in the MRI and operative report.

While the panel accepts that the MRI shows pre-existing degeneration, the medical providers all concur that everything changed on the date of accident, and further the panel notes that the knee was asymptomatic prior to the workplace accident.

The panel also relies on the orthopedic surgeon's June 8, 2016 medical opinion given that it is consistent with the panel's findings as to the mechanism of injury:

It is highly likely, however, that her injury did result in the meniscal pathology and may have resulted in the development of the free loose bodies within the knee. These may have developed on a pedicle prior to the injury.

The panel finds on a balance of probabilities, that the pre-existing meniscus pathology was enhanced by the worker's March 9, 2016 injury and to that extent the worker's claim for further benefits is accepted.

As a result, the worker is entitled to further benefits.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2017