The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny responsibility for the meniscus tear in her right knee as being a consequence of the work injury she sustained on January 29, 2016. A hearing was held on June 29, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's meniscus tear as being a consequence of the January 29, 2016 accident.

Decision

That responsibility should not be accepted for the worker's meniscus tear as being a consequence of the January 29, 2016 accident.

Background

While setting up work equipment on January 29, 2016, the worker, a registered nurse, reported that she turned quickly and felt a sharp pain to the outside of her right knee. The worker reported:

I didn't think that it was anything. I felt a sharp pain, but had tried to walk it off. We were also very busy. I was done my shift within an hour and 20 minutes and was hoping it would be okay. When I got home, it started to swell. I iced it and reported it the following day while trying to work that day.

The Employer's Accident Report dated February 2, 2016, confirmed the accident events as described by the worker.

Following review of initial medical reports, consultation with a WCB medical advisor, and discussion with the worker regarding the onset of her knee complaints and the accident of January 29, 2016, the claim for compensation was accepted on February 29, 2016 based on the diagnosis of a right knee strain in the environment of degenerative changes. The diagnosis of a horizontal tear of the posterior horn of the medial meniscus of the right knee was not accepted as part of the claim, as it was felt that it was due to degeneration of the right knee and not related to the accident of January 29, 2016.

Information was received from the worker's treating surgeon who recommended surgery to repair the torn meniscus. Responsibility for the surgical procedure was denied by the WCB.

On April 4, 2016, the worker submitted an appeal to Review Office requesting reconsideration of the decision dated February 29, 2016. The worker referred to claim information which indicated that she was bowling a few weeks prior to her injury of January 29, 2016. The worker indicated that the information was not accurate. The bowling injury was in December 2014. At that time, she did not lose function or any work time until the injury on January 29. Since then, despite rest and some work hardening, she was not able to increase her work shift more than 6 hours due to right knee tightness, swelling and unexpected "catching" in her right knee. The worker indicated that she now required surgery to get back to her full time work capacity.

On April 27, 2016, Review Office referred to specific file evidence which included the following WCB medical opinion dated March 24, 2016 to support that the worker's meniscus tear was not a compensable condition nor was it caused or enhanced as a result of the work accident:

The work accident would not have caused the OA (osteoarthritis) but would make the knee vulnerable to injury. So a minor twist could cause clinical effects.

By February 26, the doctor indicated that the pain had resolved. The worker had full ROM [range of motion], still with some swelling, but no tenderness and normal gait. These exam findings support that any perturbation of the degenerative process in the knee had resolved. There would be no material change to the pre-x [pre-existing] condition, the natural history was not changed.

The MRI supports this opinion, showing truncation and horizontal tearing of the meniscus. These are features of degeneration. The chondromalacia is also indicative of degeneration.

On February 7, 2017, the worker's union representative submitted an appeal to the Appeal Commission.

On February 10, 2017, the Appeal Commission's assistant registrar spoke with the union representative and it was clarified that the only issue available for the panel to address would be the relationship of the worker's meniscus tear to the compensable accident. The union representative agreed and a hearing was held at the Appeal Commission on June 29, 2017 to determine whether or not responsibility should be accepted for the worker's meniscus tear as being a consequence of the January 29, 2016 accident.

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 Position

The worker was represented by an advocate from her union.

The worker's advocate took the position that on the date of the injury, the worker sustained an enhancement of her pre-existing conditions within her right knee. The worker is appealing the WCB's decision to deny responsibility for the surgery that occurred on June 20, 2016.

The worker's advocate asked the worker questions and reviewed the events surrounding the January 29, 2016 workplace accident and the ongoing problems that the worker experienced after she returned to work on March 3, 2016 on a graduated basis.

The worker's advocate confirmed that the worker continued to receive WCB benefits until the date of her surgery June 20, 2016.

The worker explained to the panel the difference between January 29, 2016 right knee injury and December 30, 2014 injury to the same knee while bowling. She said that the bowling incident involved no time loss. She stated that when the 2014 incident occurred there was some swelling and then the knee resolved. There were no further symptoms to her knee until January 29, 2016. The worker explained to the panel that following her injury, once her hours of work were increased to 6 hours per shift, she started to develop pain in her right knee after working 5 hours of the shift.

The worker continued on modified duties from May 3, 2016 to June 20, 2016 (the date of surgery).

The worker's advocate reviewed medical information on file provided by her treating physicians and physiotherapist as well as the findings of the MRI of the right knee that was performed on February 10, 2016 that noted, in part, the following findings:

There is free edge tearing involving the inner margin of the medial meniscus with a small horizontal tear at the posterior horn. There is associated low grade chondromalacia.

The worker's advocate explained that the worker was referred to an orthopedic surgeon. The orthopedic surgeon examined the worker on March 17, 2016 and he offered to perform an arthroscopy to repair the meniscus tear, which the worker accepted.

The orthopedic surgeon reported the following with respect to his examination of the worker on that date:

Clinically she walks without a limp today. She has tenderness well localized along the posterior aspect of the medial joint line. Range of motion is well maintained. No instability.

The orthopedic surgeon also stated in his report "An MRI has shown a medial meniscus tear of uncertain age."

After the June 20, 2016 surgery, the worker was again examined by the orthopedic surgeon on July 13, 2016. The report from that exam states, in part:

…She is asking whether the meniscus tear can be identified as being acute or degenerative and unfortunately, we cannot make a determination of this based on the arthroscopy. As her symptoms followed an injury at work, it could be deduced that this, in fact, was the inciting factor. However, based on the arthroscopy, the age or etiology of the horizontal cleavage tear of the medial meniscus cannot be ascertained. There are some associated degenerative chondromalacia changes in her knee which would suggest some early degeneration, but this does not exclude an acute or chronic situation from her workplace injury.

The worker's union representative wrote to the worker's orthopedic surgeon on July 12, 2016 requesting that he respond to the following questions:

1. On the balance of probability, could the mechanism of injury as described above caused (sic) an enhancement to [the worker's] pre-existing conditions (osteoarthritis of the right knee and chondromalacia), which resulted in the tear? 2. Could the level of arthritis that she had in her knee cause the tear to occur? 3. Please provide any additional information that you believe would assist with [the worker's] appeal.

The worker's orthopedic surgeon provided a response on September 6, 2016 which stated, in part:

The patient gives a history of having injured her right knee while at work in January 2015… She has not had any prior knee problems and has had symptoms on going since the time of the workplace injury. ….

The history of injury, absence of prior symptoms and consistency of symptoms following the injury are all in keeping with a meniscus tear related to that particular injury.

The worker's advocate reminded the panel that the worker's knee was asympomatic prior to her injury on January 29, 2016 and asked the panel to rely on the worker's orthopedic surgeon's medical opinion when determining acceptability of the worker's claim.

As a result, the worker requested that responsibility be accepted by WCB for the worker's meniscus tear as being a consequence of the January 29, 2016 accident and that the worker's claim should be accepted until the date that the worker returned to full time hours and duties.

Employer's Position

At the hearing, the employer was represented by an advocate.

The employer's advocate was in agreement with the WCB decision to not accept responsibility for the worker's meniscus tear as it was a pre-existing condition caused by degenerative changes.

The employer's advocate also reviewed the mechanism of injury and the medical evidence on file that she requested the panel rely on to deny the worker's appeal.

The employer's advocate highlighted the February 3, 2016 medical report which describes the injury as an exacerbation of osteoarthritis of the right knee as well as other medical evidence that she believed supported the employer's position.

In summary, the employer's advocate stated:

We believe that the medical information shows that the meniscus tear was caused by degeneration and not by the accident on January 29, 2016. As such we agree with the Review Office decision that the meniscus tear is not a compensable injury.

Analysis

The worker is appealing the WCB decision that she is not entitled to wage loss or medical aid benefits resulting from her right meniscus surgery that occurred on June 20, 2016. For the worker's appeal to be accepted, the panel must find that the meniscus tear (and resulting surgery) was a consequence of the January 29, 2016 workplace accident. The panel is not able to make that finding.

The panel finds, on a balance of probabilities, that the right meniscus tear was not a consequence of the worker's January 29, 2016 workplace accident for the reasons that follow.

• Early medical reports note that the initial complaints were to the lateral (outside) of the knee rather than the medial side, where the medial meniscus is located. • The initial description of the injury by the worker was that while preparing a bed and machinery for incoming patients, she turned quickly and felt a sharp pain to the outside of her right knee. The pain became progressively worse throughout the evening. • A physician examined the worker on January 30, 2016. The report from that examination stated, in part:

Subjective Complaints: Twisted knee at work, turned and could feel a snap in her (right) knee lateral side.

Objective Findings: Mild effusion (right) knee McMurray's test positive on lateral side ? Meniscal injury

• A second physician examined the worker on February 1, 2016. The report from that examination stated, in part:

Subjective Complaints: sudden pain to anterior knee after twisting on planted foot… Swelling, pain and limping after incident.

Objective Findings: Moderate knee effusion including tender Baker's cyst. Restricted range of motion to 90 degrees of flexion and full extension. Tender medial and lateral joint lines. Crepitus present. Normal ligamentous exam, Thessaly test negative.

Under the section "Describe any pre-existing conditions that may affect recovery" the treating physician stated:

Similar pain and swelling for one month after twisting right knee while bowling on Dec 30/14.

• The treating physician's diagnosis was that the injury was an "exacerbation of osteoarthritis right knee." • A subsequent report from the worker's second treating physician dated February 26, 2016 stated the following under subjective complaints:

Pain has resolved. Able to go outside for walks and ascend and descend stairs without pain. Exercise bike riding caused increased effusion and anterior knee pain. Today she is pain free.

• The treating physician prescribed a graduated return to work beginning with 4 hour shifts three times per week for two weeks and then for the worker to increase her hours of work to 6 hour shifts in the third week.

The panel accepts that the reported mechanism of injury that occurred on January 29, 2016 as well as the medical reporting at the time of the injury are consistent with a lateral knee sprain/strain type of injury within an environment of degenerative changes, which had essentially resolved as of February 26, 2016. This type of injury is consistent with what the worker previously experienced from bowling on December 30, 2014.

The panel's finding is supported by the worker's treating physician's reports of January 30, February 3 and 26, 2016 as well as by a report by the WCB medical consultant dated February 21, 2016 that states, in part, the following:

2. To summarize, the worker presented with knee pain and swelling after a low force twist. In an otherwise normal knee, this may result in a knee sprain. If there is a pre-x [pre-existing)]condition to the knee, that may get aggravated by the twist.

3. OA [osteoarthritis] is caused by aging with risk factors of genetics, elevated BMI (Body Mass Index), and prior serious structural injury (fracture, ACL tear, meniscus tear requiring removal) so this dx [diagnosis] would not be related to the C/I [compensable injury]. But a twist could make the OA temporarily symptomatic. All should settle down over a few weeks. (Consistent with the worker's previous episode after bowling.) (NOTE: a twist can cause a meniscus tear but there would typically be a radial component on imaging. A horizontal tear and fraying are more consistent with degeneration.)

The panel notes that the worker's initial injury and symptoms were reported to be on the lateral (outside) of her knee. However, the meniscus tear identified on the MRI was on the medial (inside) side of the knee. There were no acute findings on medial side of the worker's knee at the time of compensable injury and none were noted until the March 3, 2016 physiotherapy report.

The panel also notes that after February 26, 2016, the symptomology to the lateral area of her knee had resolved and ongoing symptomology surrounds the medial area of the worker's knee, where the tear is located.

The worker's advocate asked the panel to place significant weight on the September 6, 2016 opinion provided by the worker's orthopedic surgeon. The panel is unable to do that.

The panel finds that the worker's orthopedic surgeon's opinion incorrectly states that the worker had no previous history of knee problems and that the worker experienced ongoing knee problems since the date of the injury. The panel finds that neither of these comments are consistent with the information on file. The worker is reported to have experienced a history of previous knee problems and the medical reports support that the symptoms of the worker's January 29, 2016 injury had resolved. The panel also notes that the worker's orthopedic surgeon does not provide any insight into why the worker's initial symptoms arose on the lateral area of the knee and the symptoms he identified, and that the worker's physiotherapist identified, are located within the medial area of the knee.

The panel's finding is supported by the opinion of a WCB medical advisor, who reviewed the information in the September 6, 2016 letter provided by the worker's orthopedic surgeon and stated, in part, the following on November 9, 2016:

[Orthopedic surgeon's] response to [union] representative has been reviewed. It provides no new information to change the previous medical opinion put to file.

He notes that the worker's meniscus tear had to be related to the C/I (compensable injury) since the MOI (mechanism of injury) could have caused the meniscus tear, she didn't have symptoms before, but had symptoms after.

The surgeon would not have access to the family doctor's report from February 26, 2016 - 4 weeks after the accident - noting that the pain had resolved and exam findings had normalized. If the accident at work had caused an acute meniscus, it's not likely that there would have been a resolution of symptoms and findings within that time period. This progress is far from keeping with the accident having caused an exacerbation of the pre-x (pre-existing) degenerative changes on MRI…

For the reasons outlined, the worker's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 20th day of July, 2017