The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right knee complaints are not related to the compensable accident and that she was not entitled to further benefits after March 1, 2016. A hearing was held on September 20, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after March 11, 2016.

Decision

That the worker is not entitled to further benefits after March 11, 2016.

Background

On December 15, 2015, the worker slipped on ice during the course of her employment and suffered an injury to her right knee and right ankle. When speaking to the WCB about the accident, the worker noted that she had a pre-existing condition of osteoarthritis in her right knee and that surgery had been discussed.

The worker sought medical attention on December 15, 2015, and was diagnosed with a right knee and right ankle sprain.

In a report dated December 21, 2015, an orthopedic surgeon noted that the worker was seen for follow-up of her severe osteoarthritis of the right knee with valgus deformity. The worker stated that she had exhausted all conservative treatment and wanted to proceed with a right total knee replacement. The surgeon advised that following discussion of the risks and benefits of operative versus non-operative options, the worker wished to proceed with the surgery.

When speaking with her WCB case manager on December 29, 2015, the worker advised that the orthopedic surgeon gave her a note to be off work until February 1, 2016 and provided her with a booklet on how to prepare for knee replacement surgery. The worker said she was told by the orthopedic surgeon that the accident at work made her pre-existing condition worse, and that surgery might be done as early as six months from December 21, 2015.

On January 6, 2016, the worker's treating physiotherapist noted that the worker was experiencing general knee pain and swelling causing instability with walking, stairs, etc. The diagnosis was a possible meniscal tear.

On February 24, 2016, a WCB orthopedic consultant reviewed the claim information and stated:

• The probable diagnosis as related to the December 15, 2015 injury was a sprain right knee, sprain right ankle. X-rays of the right ankle showed evidence of previous fracture treatment with a screw in the distal fibula and evidence of early degenerative osteoarthritis of the ankle joint. 

• There was evidence of significant longstanding advanced degenerative osteoarthritis, and the claimant had been a potential candidate for total knee replacement arthroplasty for some time. The workplace incident may have resulted in an additional component of traumatic synovitis in relation to the advanced degenerative articular changes. 

• There was no suggestion from the clinical notes and imaging studies that the compensable injury had resulted in an aggravation of the longstanding pre-existing condition of degenerative osteoarthritis right knee joint.

On March 2, 2016, the worker was advised by Compensation Services that following review of the file information and the WCB medical opinion, it was determined that she sustained a right knee and right ankle sprain on December 15, 2015, and that the medical evidence supported that her current complaints were not related to the workplace accident. Ongoing wage loss benefits or costs associated with medical treatment would therefore not be accepted beyond March 11, 2016.

In a report dated June 3, 2016 (as corrected on July 20, 2016), the treating orthopedic surgeon stated, in part:

We felt that because of her function she is not a candidate for knee replacement yet but maybe in the future. I would like her to continue using the braces. She has issues with WCB regarding declining her claim but I understand that she has osteoarthritis. The problem with osteoarthritis is wear and tear and this could be hereditary but she had two histories of fall that could have exacerbated her symptoms and that could make her osteoarthritis worse and I think this is what happened with this lady. (Emphasis in original)

In a memo to file dated June 9, 2016, the WCB case manager acknowledged the June 3, 2016 report. The case manager noted that the matter was addressed by the WCB on February 17, 2016, and the WCB orthopedic consultant had advised that "…There is no suggestion from the clinical notes and imaging studies that the compensable injury has resulted in an aggravation of the longstanding pre-existing condition of degenerative osteoarthritis right knee joint…"

On July 22, 2016, the Worker Advisor Office appealed the decision that there was no entitlement to benefits beyond March 11, 2016. The worker advisor's position was that the workplace injury enhanced the worker's pre-existing condition of osteoarthritis of her right knee and was responsible for her current difficulties. In support of that position, reference was made to the comments made by the worker's treating orthopedic surgeon in his reports of March 10, 2015 and June 3, 2016.

In a submission to Review Office dated August 5, 2016, the employer's representative submitted that the worker's actual work injury was a straightforward sprain/strain and that she recovered from that injury well before March 11, 2016. After that point, all of the worker's symptoms and any disability could be fully explained by the non-compensable pre-existing conditions.

A rebuttal to the employer's submission from the worker advisor dated October 3, 2016 is on file.

On October 4, 2016, Review Office determined that there was no entitlement to benefits beyond March 11, 2016.

Review Office found that based on the mechanism of injury and initial medical findings, the compensable injuries were a right knee and ankle sprain and that recovery norms for these injuries are of short duration. It was determined that the worker's right ankle sprain had recovered.

Regarding the worker's right knee complaints, Review Office agreed with the WCB orthopedic consultant's medical opinion that the compensable injury may have resulted in a temporary traumatic synovitis which could prolong recovery from the compensable diagnosis of sprain and that this would respond to treatment with an anticipated recovery to pre-injury status in a six to eight week period. Review Office also accepted the orthopedic consultant's opinion that there was no suggestion that the compensable injury had resulted in an aggravation of the worker's longstanding pre-existing condition of degenerative osteoarthritis of the right knee joint.

On March 30, 2017, 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.

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 states 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 (the "Policy") 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:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

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.

Worker's Position

The worker was represented by a union representative and was accompanied by her husband at the hearing. The union representative provided a written submission, including medical reports, in advance of the hearing and made an oral submission to the panel. The worker responded to questions from her union representative and the panel.

The worker's position was that she is entitled to further wage loss and medical aid benefits, as she had not recovered from the effects of her December 15, 2015 workplace accident when her benefits ceased on March 11, 2016. It was submitted that the difficulties which the worker had experienced since March 11, 2016 were due to the combined effect of her December 15, 2015 workplace injury and a pre-existing degenerative condition.

The union representative noted that the worker had slipped and fallen previously, on January 28, 2015. Although she did not file a WCB claim, the worker maintained that this was a workplace accident. She returned to work shortly after the accident, and fully engaged in her work activities without any limitation or restriction. She saw an orthopedic surgeon for her right knee, but was still able to function, both at home and at work, prior to her December 15, 2015 accident.

The representative submitted that the worker's right knee condition deteriorated significantly as a result of her compensable injury on December 15, 2015. Her symptoms and restrictions were no longer manageable. The representative described the accident as being forceful and traumatic. The worker went back to see the orthopedic surgeon on December 21, 2015, and he suggested she would be scheduled for total knee replacement surgery.

It was submitted that the initial diagnosis of a sprain/strain injury on December 15, 2015 was a provisional diagnosis only, and the worker was told to follow up with her doctor. It was noted that the worker's condition could not be confirmed by imaging, as the worker could not have an MRI due to an unrelated medical condition. Relying on his history with, and clinical examination of, the worker and the worker's reported symptoms and functional capabilities, the orthopedic surgeon concluded that the December 15, 2015 accident resulted in an aggravation of her pre-existing osteoarthritis. It was submitted that the worker's lack of progress in the months that followed reinforced the surgeon's assessment that the accident had actually changed the course of her condition, and that further treatment was required in order for the worker to recover.

The union representative stated that since the initial decision to deny ongoing responsibility for the worker's condition, the treating orthopedic surgeon had provided a number of reports advocating on her behalf. In a letter dated August 21, 2017, which had been filed in advance of the hearing, the orthopedic surgeon had reiterated his opinion that the worker's workplace accident caused a progression in her osteoarthritis and ultimately necessitated a total right knee replacement. While the surgeon had commented that the January 28, 2015 fall had exacerbated her right knee osteoarthritis, he pointed to the workplace fall of December 15, 2015 as the trigger for the further worsening of her condition. The orthopedic surgeon had argued that the worker's clinical presentation and functional status were both evidence of a significant change in her condition, most probably due to cartilage damage and/or microfractures, which occurred as a consequence of her falls.

The union representative noted that the worker ultimately underwent total knee replacement surgery on her right knee on July 21, 2017, and that a copy of the operative report from that surgery had also been provided to the panel in advance of the hearing. He submitted that the worker had been working on her post-operative rehabilitation, and had been doing very well since the surgery.

In conclusion, it was submitted that the worker was entitled to further benefits because the accident resulted in a worsening of her pre-existing condition. It was further submitted that as the worker required and subsequently underwent a total knee replacement, the accident also resulted in an enhancement of that pre-existing condition, and the worker was entitled to both medical aid and wage loss benefits in respect of that procedure.

Employer's Position

The employer was represented by an advocate. The employer's position was that there is no further entitlement to benefits after March 11, 2016, as the worker's ongoing symptoms and difficulties were a result of her significant pre-existing conditions.

The employer's advocate noted that the worker slipped on ice and injured her right knee and ankle on December 15, 2015. She sought treatment that day and was diagnosed with a right knee and right ankle sprain. It was submitted that the recovery norms for such an injury are short in duration.

The advocate noted that the worker advised the WCB that she had pre-existing osteoarthritis and her orthopedic surgeon had said he would look at doing a knee replacement in five years. She submitted that this was confirmed in a December 21, 2015 report from the surgeon, who stated that the worker was seen in his clinic for follow-up of her severe osteoarthritis, and that she said she had exhausted all conservative treatment, the treatment had failed, and she wished to proceed with right total knee replacement. The advocate noted that there was no reference to the December 15, 2015 accident in that report.

The advocate submitted that the February 17, 2016 report from the WCB medical advisor confirmed the original diagnosis of a sprain injury and that the estimated recovery time to pre-injury status was six to eight weeks. The employer agreed with the WCB medical advisor's assessment that the worker's pre-existing condition was not materially influenced or aggravated by the workplace accident, and that by March 11, 2016, the worker had recovered from her compensable injury.

In conclusion, it was submitted that the evidence showed that the worker had recovered from her compensable injury, and that all ongoing symptoms and disability were the result of her significant degenerative pre-existing condition. As the Policy states that the WCB will not provide benefits for disablement resulting solely from the effects of a pre-existing condition, the worker was not entitled to benefits beyond March 11, 2016.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits after March 11, 2016. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after March 11, 2016 as a result of her December 15, 2015 workplace accident. The panel is unable to make that finding, for the reasons that follow.

At the outset, the panel notes that the union representative confirmed at the hearing that they were not dealing with any injury to the worker's ankle, and were only concerned with the injury to the worker's right knee injury on this appeal.

There was no dispute and the panel is satisfied that the medical information on file shows that the worker had a significant longstanding pre-existing condition of osteoarthritis in her right knee.

The worker's evidence at the hearing was that she was nevertheless working more than full-time hours prior to her December 15, 2015 accident, doing both her regular and some additional pick-up shifts, which resulted in probably 48 to 52 hours of work a week. She said that the job was physical and she would be on her feet most of the day.

The worker described her January 28, 2015 fall where she hurt her right knee. She said she was not off work very long, and was already back working when she saw the orthopedic surgeon in March 2015. At some point she got a brace for her knee, and when she saw the orthopedic surgeon in March, he recommended that she continue wearing the brace. Between March and December 2015, she felt that her knee was getting stronger and would wear the brace almost every day, for stability, although she was not wearing the brace on December 15, 2015. Based on the information before us, the panel is satisfied that the worker was not asymptomatic prior to December 15, 2015.

At the hearing, the worker described her fall on December 15, 2015 and what happened afterwards. The panel is satisfied, based on the evidence, that the mechanism of injury that day was not particularly significant. The worker indicated that when she fell, a man helped her up, and she limped into the office, where she reported her injury. She was able to drive home, then her husband drove her back to the hospital, which was in the same building as the office where she had reported her injury. At the hospital, the attending doctor diagnosed the worker with a right knee and ankle strain/sprain.

The worker then made an appointment with the orthopedic surgeon she had seen previously, and saw him on December 21, 2015. In his letter to the worker's family physician following that attendance, the orthopedic surgeon wrote that the worker was seen today in clinic:

…for follow-up of her severe osteoarthritis of the right knee with valgus deformity. She stated that she has exhausted all conservative treatment, this has failed, and now she is using a brace but with no significant improvement. She would like to proceed with right total knee replacement.

The panel notes that there is no reference in that letter to the worker having fallen on December 15, less than one week earlier, which in our view, further supports that the accident was not particularly significant.

The panel accepts the February 24, 2016 opinion of the WCB orthopedic consultant that the probable diagnosis as related to the December 15, 2015 injury was a sprain right knee, sprain right ankle, which we find to be consistent with the initial diagnosis and clinical evidence on file and our view of the mechanism of injury.

The panel also places significant weight on the WCB orthopedic consultant's opinion that "there is no suggestion from the clinical notes and imaging studies that the compensable injury has resulted in an aggravation of the longstanding pre-existing condition of degenerative osteoarthritis right knee joint," which is also consistent with our understanding of the medical information on file.

The panel notes that the treating orthopedic surgeon acknowledged in his June 3, 2016 report that the worker has osteoarthritis, which was pre-existing and was not caused by her December 2015 workplace injury. Under the heading "Investigations," the surgeon noted that "X-ray shows tricompartmental osteoarthritis with valgus deformity of both knees."

The treating orthopedic surgeon went on in his report to state that the worker's condition could be hereditary but "she had two histories of fall that could have exacerbated her symptoms and that could make her osteoarthritis worse…" The panel finds that this statement as to what could have happened is speculative, and does not support a finding that this is probable. While the orthopedic surgeon went on to opine that "I think this is what happened with this lady," the panel finds that this opinion is not supported by clinical evidence.

The panel reviewed the operative report from the worker's July 21, 2017 surgery, and notes that the preoperative and postoperative diagnosis as stated on that report was "severe osteoarthritis right knee with valgus deformity and flexion deformity." The panel is unable to find any indication in that report that the worker's symptoms or findings from that surgery were related to her December 15, 2015 workplace accident.

The panel has also considered the August 21, 2017 report from the treating orthopedic surgeon. While the surgeon has surmised in that report that there was possible cartilage damage and small microfractures, that suggestion is again speculative. The panel further notes that even though the report is dated after the worker's knee surgery, there is again no clinical evidence or findings to support the suggestion of possible cartilage damage or small microfractures in the worker's knee. Accordingly, the panel attaches less weight to that report.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable workplace accident did not result in an aggravation or enhancement of her pre-existing condition and the worker would have recovered from her December 15, 2015 right knee injury by March 11, 2016.

The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid after March 11, 2016 as a result of her December 15, 2015 workplace accident, and the worker is not entitled to further benefits after March 11, 2016.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 17th day of November, 2017