Decision #95/17 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding the purchase of a walker and her entitlement to benefits after March 12, 2015. A hearing was held on May 4, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 12, 2015; and

Whether or not responsibility should be accepted for the purchase of a walker.

Decision

That the worker is not entitled to benefits after March 12, 2015; and

That responsibility should not be accepted for the purchase of a walker.

Background

The worker twisted her left knee on January 16, 2014 when her shoe got stuck to the floor as she was entering an elevator at work.

On January 23, 2014, the worker sought medical treatment and was diagnosed with lateral compartment osteoarthritis ("OA"), lateral meniscal chondrocalcinosis, perturbed by workplace event and walking.

File records show that the worker underwent a left knee MRI on February 19, 2013 and the results were read as showing:

1. Moderate - severe chondromalacia patella.

2. Degenerative fraying medial meniscus. No distinct tear identified.

3. Ossified ossified (sic) loose body.

On May 8, 2014, the worker underwent a further MRI assessment of the left knee which showed:

1. Advanced degenerative change patellofemoral articulation.

2. Moderate degenerative change medial femorotibial compartment.

3. Degenerative change and radial tearing medial meniscus.

On June 27, 2014, a WCB medical advisor reviewed the file and stated:

• The probable diagnosis related to the January 16, 2014 incident was a medial meniscus tear (radial) as noted on the 2014 MRI.

• A tear was not apparent on the MRI of February 19, 2013.

• It was speculative as to whether a tear had developed between February 19, 2013 and May 8, 2014.

• There was no compelling evidence of aggravation or enhancement. Only mild degenerative fraying was present on the 2013 MRI. Pre-existing   patellofemoral OA was an unrelated condition.

• The presence of pre-existing OA as noted on the 2014 MRI might be contributing to the delay in recovery from the more acute radial tear of the medial meniscus. Pre-existing patellofemoral OA was unlikely to be a factor in this case.

On July 16, 2014, a WCB medical advisor wrote the treating surgeon to advise that the WCB was accepting responsibility for the proposed arthroscopy of the left knee to address the medial cartilage tear. The surgeon was also advised that the WCB was not accepting financial responsibility for any surgical treatment directed at the left knee with respect to the MRI of May 8, 2014 which documented degenerative changes of the patellofemoral articulation and moderate degenerative changes to the medial femorotibial compartment.

On September 12, 2014, the worker underwent left knee surgery, and the pre-operative diagnosis outlined on the operative report was a left medial meniscal tear and patellofemoral arthrosis.

On October 1, 2014, a WCB orthopedic consultant reviewed the claim file and stated:

• Only the diagnosis of medial meniscus tear would be related to the workplace injury.

• Recovery to pre-injury status within three months would reasonably be expected after resection of the torn meniscus.

• The grade III chondromalacia and crystal arthropathy of the patello-femoral and medial compartments of the knee joint were considered to be pre-existing conditions and were not related to the workplace injury and not enhanced by the workplace injury.

• Regarding the worker's request for a walker due to weight bearing difficulties, the requirement for walking aids would be extremely unusual after resection of a meniscus alone. However, debridement of the articular surfaces as described in the operative report might well be expected to cause problems with weight bearing.

In November 2014, the worker commenced a graduated return to work program.

In a report to the WCB dated January 26, 2015, the treating orthopedic surgeon stated that the worker's ongoing difficulties were likely in relation to the arthritic process as opposed to any post-operative effects of the medial meniscus surgery.

On February 12, 2015, the WCB orthopedic consultant opined that the worker's persisting symptoms beyond six months after the surgery (March 12, 2015) would be due to the pre-existing OA of the left knee rather than the effects of the workplace injury. The consultant noted that the natural history of OA of the knee is of episodes of pain, stiffness and loss of function, the episodes increasing in frequency and severity over the year. The worker's long term prognosis was the result of the pre-existing OA rather than the effects of the workplace injury. There was no objective medical evidence that the workplace injury aggravated or enhanced the OA of the knee.

In a doctor progress report dated February 18, 2015, the treating physician indicated that the worker could not tolerate stairs or unsteady ground and that she had trouble with her graduated return to work. He said there was swelling in the worker's knee, but no locking, buckling or other mechanical features. He noted that the worker would require permanent restrictions for her shoulders and knee.

On February 19, 2015, Compensation Services advised the worker that wage loss benefits and medical aid expenses would be paid to March 12, 2015 inclusive and final, as it was the opinion of the WCB that she had recovered from the effects of the January 16, 2014 work accident and subsequent surgery.

On February 24, 2015, the WCB orthopedic consultant stated:

X-ray dated 17-Feb-2015 confirms degenerative changes of the left knee including some loss of joint space and calcification of menisci. The attending physician reports dated 17-Feb-2015 and 18-Feb-2015 infer that symptoms are caused by the medial meniscal tear. In my opinion, the symptoms expected to continue after 12-March-2015 would be related to the natural history of the pre-existing OA of the left knee and not related to the meniscal tear. The ongoing symptoms are typical of OA of the knee.

On March 25, 2015, the worker was advised by the medical aid department of the WCB that she would not be reimbursed for the walker she purchased on November 5, 2014 as the expense was not related to the workplace injury.

On April 7, 2015, the worker was advised by Compensation Services that the additional information provided by her physician had been reviewed in consultation with a WCB orthopedic advisor and that no change would be made to the decision outlined on February 19, 2015.

On April 21, 2016, the WCB orthopedic consultant reviewed a report from the treating orthopedic surgeon dated November 18, 2015 that was received by the WCB on April 11, 2016. He said the clinical and radiological diagnoses were of OA of both knees and that a left total knee replacement was planned. He said there was no new information which would lead him to change his previous opinion that the current OA was not related to the workplace injury.

On April 26, 2016, the worker was advised by Compensation Services that no changes would be made to the WCB decision of February 24, 2015 based on the opinion expressed by the WCB orthopedic consultant dated April 21, 2016. The letter also stated:

You also requested I review the authorization for payment of the walker that you purchased. I have reviewed your file and note that the WCB Orthopedic Advisor commented that difficulties walking to a degree that walking aids are required would be extremely unusual after resection of a meniscus alone. However, debridement of the articular surfaces as described in the operative report might well be expected to cause problems weight bearing. As the WCB only authorized the resection of the meniscus we will not be responsible for the purchase of a walker.

On August 17, 2016, the worker submitted an appeal to Review Office as she disagreed with the WCB decisions dated February 19, March 25 and April 7, 2015, and April 26, 2016. On October 11, 2016, the employer's representative submitted to Review Office that they agreed with the WCB that the worker had recovered from the effects of the compensable medial meniscal tear and that her ongoing difficulties were solely due to advanced degenerative OA which pre-existed the January 16, 2014 workplace injury.

On October 31, 2016, Review Office determined that there was no coverage for the purchase of a walker and that there was no entitlement to benefits beyond March 12, 2015.

With respect to the issue concerning a walker, Review Office stated that it agreed with the WCB orthopedic consultant that the need for a walking aid would be "extremely unusual" following the compensable surgical procedure and a long term requirement for any type of mobility aid would not be required. Review Office concluded that the worker's decision to purchase a walker for long term use was a personal choice unrelated to the compensable injury of this claim.

With respect to the issue concerning further benefits, Review Office placed weight on the WCB orthopedic consultant's opinion that the worker's ongoing symptoms were typical of OA of the knee and that this opinion was supported by the orthopedic surgeon's position that the worker's ongoing left knee difficulties were not related to "any post-operative effects of the medial meniscus surgery." Review Office found that the pre-existing OA in the worker's left knee was not structurally changed or enhanced by the compensable injury and/or treatment associated with this injury. The total left knee replacement performed in 2016 was not the WCB's responsibility.

On December 28, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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's Board of Directors.

Subsection 4(1) of the Act provides that 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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, Pre-existing Conditions, addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

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

The following definitions are set out in the Policy:

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

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

WCB Policy 44.120.10, Medical Aid, allows for the provision of recommended devices. The Policy sets out a coordinated approach to delivery of medical-aid services to injured workers. As it relates to the provision of medically prescribed devices and related accessories, the Policy provides as follows:

2. Medically Prescribed Treatments, Devices and their Related Accessories

To minimize the impact of workers' injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including prescription drugs, over-the counter medical supplies, braces, prosthetic devices, wheelchairs, dentures, hearing aids, eye glasses, contact lens and other devices.

a. Medically Prescribed Treatments and Prosthetic Devices

i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.

Worker's Position

The worker was self-represented. The worker provided a written submission in advance of the hearing and made a presentation at the hearing.

The worker's position was that she has still not recovered from her initial injury in January 2014 and is therefore entitled to benefits. She said that she has the same restrictions now as she had just after the accident. She emphasized that she was fully functional before the accident with no symptoms of any OA, and noted that an MRI which was done one year before the accident showed no definitive diagnosis of OA.

The worker said that she was relying on her submission to Review Office, which was on the file, and noted that she was seeking the continuation of benefits up until the resolution of her left knee issue. The worker referred to medical reports which she had submitted in advance of the hearing, to provide the panel with an update of her medical condition.

The worker's position with respect to the walker was that she required it as a result of her workplace injury. WCB had provided her with a walker for one month after her first surgery, in September 2014, but she had a problem with the design. She had therefore returned the walker and purchased one to suit her purposes. The worker said that she had used it repeatedly, and still used it, when necessary, depending on the weather. She said she was scheduled for a fifth surgery to her knee in a couple of weeks, following which she would be back to relying on the walker. She submitted that her request for the walker was not unreasonable, as she has two torn shoulders and is therefore unstable with a cane. The walker helps her function and gives her independence.

Employer's Position

The employer was represented by an advocate and its WCB Coordinator. The employer provided a written submission in advance of the hearing.

The employer's position was that the worker is not entitled to benefits after March 12, 2015 and that responsibility should not be accepted for the purchase of a walker.

With respect to the issue of further benefits, the advocate questioned the worker's position that her symptoms of OA emerged and developed from the initial repair of the medial meniscus and that her left knee was asymptomatic. The advocate reviewed in detail a number of medical reports from just before and after the incident. It was noted that diagnostic testing all indicated that there were severe pre-existing degenerative changes in the worker's knee prior to the incident. The advocate submitted that this was not changed by the relatively minor mechanism of injury. In their view, the degeneration was not caused or affected by the workplace injury. The advocate noted that there were similar findings in both knees, which would also point to a non-compensable problem.

It was submitted that the WCB made it clear from the outset that they were only accepting responsibility for the meniscal tear. All indications after the surgery were that the worker was recovering well from the effects of the meniscal surgery. The advocate noted that the WCB orthopedic consultant reviewed the file no less than eight times, and was unequivocal in his opinion that the workplace injury did not enhance the worker's pre-existing knee conditions and that her ongoing symptoms were related to OA and not the medial meniscal tear. This opinion was shared by the worker's orthopedic surgeon in his January 26, 2015 letter. The advocate submitted that six months of benefits was generous and reasonable, and any ongoing difficulties were due solely to the worker's pre-existing OA and not the meniscal tear.

With respect to the issue of the walker, the employer agreed with the WCB orthopedic consultant that requiring a walking aid would be extremely unusual after resection of a meniscus alone. In any event, it was submitted that the WCB did provide a rental walker on a discretionary basis, which the worker did not find satisfactory and she chose to purchase her own. That is not the responsibility of the WCB.

Analysis

Issue 1. Whether or not the worker is entitled to benefits after March 12, 2015.

For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after March 12, 2015 as a result of her January 16, 2014 workplace incident. For the reasons that follow, the panel is unable to make that finding.

The worker has a compensable diagnosis of a medial meniscus tear of the left knee. The panel is satisfied that the worker's compensable injury is an acute radial tear of the medial meniscus.

In support of this finding, the panel notes that the mechanism of injury (twist of the left knee) is consistent with a meniscal tear. The panel also places weight on the June 27, 2014 comments to file of the WCB medical advisor, who identified the probable diagnosis due to the January 16, 2014 incident as a "medial meniscus tear (radial) as noted on 2014 MRI," and stated:

The most recent MRI (May 2014) has demonstrated a degree of medial compartment degenerative osteoarthrosis, which was not specifically noted (beyond mild fraying of the medial meniscus) on the prior MRI of Feb 2013. The presence of pre-ex osteoarthrosis as noted on the 2014 MRI may be a factor contributing to delay in recovery from the more acute radial tear of the medial meniscus. Pre ex patellofemoral OA is unlikely to be a factor here.

As to the recovery period for the medial meniscus tear, the panel finds that the medical evidence on file indicates that in terms of the repair of the medial meniscus tear, the surgery on September 12, 2014 was generally successful. This is noted by the worker's orthopedic surgeon in the months following the surgery, and is supported as well by the WCB orthopedic consultant's reviews of the file. The panel places greater weight on these findings than the worker's generalized evidence that she had increased medial pain once she started weight bearing.

The panel finds that there is no clinical evidence to support that the worker's signs and symptoms, four months after the date of surgery, were related to the WCB approved surgery.

The panel is also unable to find that the worker's left knee OA was caused, aggravated or enhanced or was a consequence of surgery.

The panel places significant weight on and accepts the opinion of the WCB orthopedic consultant on October 1, 2014 that "only the diagnosis of medial meniscus tear would be related to the workplace injury" and that the "grade III chondromalacia and crystal arthropathy of the patello-femoral and medial compartments of the knee joint were considered to be pre-existing conditions and were not related to the workplace injury and not enhanced by the workplace injury."

The panel also places significant weight on and accepts the January 26, 2015 opinion of the treating surgeon who stated that "It seems likely at this point that her ongoing difficulties are in relationship to that arthritic process, as opposed to any postoperative affects of the medial meniscus surgery."

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing left knee difficulties or condition after March 12, 2015 were not related to her compensable injury. The panel finds that the worker did not suffer a loss of earning capacity or require medical aid after March 12, 2015 as a result of her January 16, 2014 workplace incident, and the worker is not entitled to benefits after March 12, 2015.

The worker's appeal of this issue is dismissed.

Issue 2. Whether or not responsibility should be accepted for the purchase of a walker.

For the appeal on this issue to be accepted, the panel must find that the purchase of a walker is required and appropriate as a result of the worker's January 16, 2014 workplace incident. The panel is unable to make that finding.

The panel places weight on and accepts the opinion of the WCB orthopedic consultant on October 1, 2014 that:

…the requirement for walking aids would be extremely unusual after resection of a meniscus alone after resection of a meniscus alone. However, debridement of the articular surfaces as described in the operative report might well be expected to cause problems with weight bearing.

Nevertheless, the WCB provided the worker with a walker for a one-month period following the surgery. The evidence indicates that the worker returned that walker in the middle of that one month period. The worker then borrowed and ultimately purchased a walker which she found more suitable for her.

Based on the foregoing, the panel finds that the purchase of a walker was a personal choice, and was not required by reason of her compensable injury. The panel therefore finds that responsibility should not be accepted for the purchase of a walker.

The worker's appeal of this issue is dismissed.

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 28th day of June, 2017

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