The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to additional benefits in relation to his left knee injury. A hearing was held on January 9, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to any further benefits in relation to his left knee injury:

1. Coverage for chiropractic treatment costs; 

2. Coverage for physiotherapy treatment and costs; 

3. Coverage for orthotics; 

4. Time loss and wage loss benefits; .

5. Coverage for prescriptions; and 

6. Acceptance of a recurrence of injury in May 2016 and related wage and time loss coverage.

Decision

That the worker is not entitled to further benefits, with the exception of further prescription benefits as indicated herein.

Background

The worker reported that on March 29, 2014, he was stepping backwards out of a truck, and when he planted his left foot on the ground, he felt a pinch in the back of his left knee. The worker advised that he sought medical attention on April 1, 2014 and started missing time from work on April 21, 2014. On April 22, 2014, the worker was diagnosed with a first degree MCL strain with left superior tibia/fibula dysfunction and mechanical low back pain. The worker's claim for his left knee injury only was accepted as a WCB responsibility, and wage loss benefits were paid for April 21 and 22, 2014.

On April 25, 2014, Compensation Services advised that physiotherapy treatment was authorized for treatment of the left knee.

On May 8, 2014, Compensation Services advised the worker that the WCB would not cover chiropractic treatment with regards to his injury as it was felt that he would be able to make a full recovery from his knee injury based on his current treatment plan with the physiotherapist.

On May 16, 2014, the worker contacted the WCB to advise that while working in the back of a truck on May 6, 2014, he slipped on a wet floor and twisted his left knee. On May 20, 2014, the worker sought medical attention and was diagnosed with a symptomatic medial meniscus tear. Wage loss benefits were paid from May 7 to 28, 2014. On May 29, 2014, the worker returned to his full duties and continued with physiotherapy treatment.

On June 10, 2014, the worker advised the WCB that his physiotherapist had given him some new exercises, and his back and hamstrings had frozen up and he was in significant pain. Wage loss benefits were paid for time missed from work on June 6 and 7, 2014. The worker resumed his regular work duties effective June 9, 2014.

On July 21, 2014, Review Office determined that there was no entitlement to chiropractic treatment arising out of the claim. It was noted that the worker was seeking chiropractic treatment for his lower back which he attributed to the consequences of his compensable left knee injury. Review Office was unable to find that the worker had an injury to his low back that occurred either as a result of the March 29, 2014 workplace accident or as a further injury subsequent to the left knee injury, which necessitated chiropractic treatment.

On August 17, 2014, a WCB physiotherapy advisor noted to the file that he had reviewed a report from the worker's sports medicine physician dated July 31, 2014, and stated: "The only finding was tenderness over the medial joint line. Range was full and McMurray's test was negative. Further therapy was not suggested. At 4.5 months post CI [compensable injury], there is no indication for physiotherapy treatment." On August 19, 2014, Compensation Services advised the worker that the WCB was unable to approve an extension of physiotherapy treatment for the left knee, as it felt that in-house therapy was not warranted and a home program would be appropriate.

In September 2014, the worker advised the WCB that without physiotherapy treatment, his leg muscles were "seizing up" and his progress was now going backwards. On October 11, 2014, Compensation Services advised the worker that the WCB was unable to issue wage loss benefits for time missed from work on September 3 to 10, 2014 and September 18, 2014 onward, as it was felt that his ongoing difficulties were not related to his compensable left knee injury.

On July 21, 2015, Review Office determined that the worker was not entitled to physiotherapy treatment benefits after July 28, 2014. Review Office noted that there had been no medical findings or information related to the worker's left knee which would suggest the need for further physiotherapy treatment beyond that which had already been approved.

Review Office also determined that the worker was not entitled to wage loss benefits beyond June 7, 2014 in relation to his left knee injury. Review Office noted that a report from a treating physician dated October 14, 2014 stated that the worker's left knee range of motion was normal, there was no effusion and his ligaments were grossly stable. The follow-up reports from the treating sports medicine physician did not show evidence that the worker was unable to attend the workplace due to the effects of his compensable left knee injury.

In November 2015, the worker requested coverage with respect to a custom orthotic. On November 13 and December 7, 2015, Compensation Services advised the worker that his request had not been accepted, as the WCB could not relate the orthotics to his compensable condition.

On April 25, 2016, Review Office upheld its decision of July 21, 2015 that the worker was not entitled to physiotherapy treatment after July 28, 2014 or to wage loss benefits after June 7, 2014. Review Office also determined that the worker was not entitled to an orthotic for his compensable left knee injury.

In May 2016, the worker advised the WCB that he suffered a recurrence of his left knee injury on May 22, 2016 while performing exercises at the gym as part of his WCB-approved home exercise program. On July 28, 2016, the worker was advised by Compensation Services that based on a review of further medical information in conjunction with a WCB medical consultant, there was no medical indication that the problems he continued to have would be related to the compensable injury and diagnosis originally listed on his claim.

The worker appealed that decision to Review Office, and on October 4, 2016, Review Office determined that the worker was not entitled to additional benefits in regards to his left knee. Review Office noted that the worker advised the WCB on June 1, 2016 that he had not sought any medical treatment for his left knee in 2016 and was having no difficulty with tasks at home. This indicated to Review Office that the worker was not having ongoing difficulties with his left knee.

Review Office said it was unable to determine why the worker was performing a home program for his left knee close to two years after he had made a full recovery from his compensable left knee injury. Review Office stated there was no medical evidence to support an ongoing need to perform exercises for his left knee in relation to the workplace injury.

Review Office placed little weight on the worker's claims that he continued to take medication beyond August 2014 for his compensable left knee injury. Review Office was also unable to relate cortisone shots the worker received in April and November 2015 to the workplace accident.

Review Office acknowledged and dismissed the opinion of a WCB sports medicine consultant who stated on November 12, 2015 that:

At present, the likely diagnosis at the time of initial injury was a left knee medial meniscal tear (initially listed as a knee sprain), with signs and symptoms ongoing.

Review Office noted that the medical information on the worker's claim file did not support a tear occurring, nor was there any medical evidence to support that the worker suffered a meniscal tear. Review Office noted that the treating sports medicine physician indicated on November 1, 2015 that:

[Worker] was diagnosed with a left medial meniscus irritation vs tear. This is a clinical diagnosis as evidenced by findings on physical exam including joint line tenderness, positive thessaly' testing, effusion, stable ligaments and tender calf and thigh muscluture (sic). This is further supported by the mechanism of injury and the noted recovery with treatment of said diagnosis.

Review Office found that, regardless of the diagnosis, there was no medical evidence to support an ongoing cause and effect relationship between the worker's current left knee difficulties and the workplace accident. Review Office found that the worker suffered a new injury on May 27, 2016, unrelated to his workplace accident.

On February 27, 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 44.120.10, Medical Aid (the "Medical Aid Policy"), presents a comprehensive and coordinated approach to delivery of medical aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible.

As it relates to the provision of medically prescribed and recommended treatments, devices and related accessories, the Medical Aid Policy provides, in part, 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…

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

The worker was self-represented, and provided several written submissions in advance of the hearing. The worker made a presentation at the hearing and responded to questions from the panel.

The worker's position was that he suffered a long-term injury to his left knee as a result of his March 29, 2014 and May 6, 2014 incidents, which has been diagnosed by his treating specialist as a medial meniscal tear. The worker submitted that he has had ongoing difficulties and further injuries which are related to his knee injury and for which he is entitled to be compensated. He stated that his left knee injury continues to cause him significant problems, and he can only do a limited amount of work without his knee causing him a lot of pain and spasms.

While the worker had specifically referred to the October 4, 2016 Review Office decision in his appeal form, he submitted at the hearing that his appeal also related to other decisions by Review Office in this claim in which he had been denied benefits. In particular, the worker indicated that he was seeking:

• Coverage for chiropractic treatment costs; 

• Coverage for physiotherapy treatment and costs; 

• Coverage for orthotics; 

• Time loss and wage loss benefits; 

• Coverage for prescriptions; and 

• Acceptance of a recurrence of injury in May 2016 and related wage and time loss coverage.

The employer's representative confirmed that he was comfortable with those issues being dealt with at the hearing, and the hearing proceeded on that basis.

Chiropractic Treatment

The worker specified that he was seeking coverage for 2 chiropractic visits in May/June 2014. He stated that those visits were directly related to the exercises and treatment he had been receiving for his left knee injury at that time. He had been experiencing severe pain and tightness in his lower back as a result of his exercises and treatment, to the point that his lower back would lock up, and sought treatment from the chiropractor to relieve that pain and tightness.

Physiotherapy Treatment and Costs

The worker stated that he was seeking ongoing coverage for physiotherapy treatments and costs from July 28, 2014 to the date of the hearing and beyond.

The worker noted that the WCB decided in the summer of 2014 that his knee should have been healed by then, that he had a home program which should be enough, and that no further physiotherapy was needed. His treating physiotherapist disagreed and applied for additional treatments, but that request was denied.

The worker said that he had been making progress with his treatments, but as soon as physiotherapy was cut off, he started regressing, and his muscles began stiffening and freezing up. The worker said that he should have been allowed at least another 6 visits, as requested by his physiotherapist, to monitor his progress and help the healing process a little more, but that did not happen. He said that because his muscles were tightening up, he kept going to physiotherapy in August 2014 and for a while after that, which he paid for out of his own pocket.

The worker said that after his physiotherapy benefits were cut off, he continued to do the home program at his gym. He said that range of motion became an issue, and the stretching at home and the gym were not as effective. When his muscles began tightening, he found that the program was too much and had to break the exercises into groups and rotate through them. The worker said that he continues to do the home program.

Orthotics

The worker stated that he has custom orthotics arising out a previous WCB claim, which were paid for by WCB. The worker said that his orthotics were assessed by a therapist in October 2015, at which time it was suggested that the angle of the orthotics was not appropriate for his knee injury and should be changed. The worker submitted that coverage for custom orthotics was required to change the incline of his existing orthotics, so that he could hopefully get back to full regular duties.

Time Loss and Wage Loss Benefits

The worker advised that he was seeking all time loss and wage loss benefits, including sick loss benefits, from June 7, 2014 to the date of the hearing and beyond.

In response to a question as to whether there were any specific periods of time which he had in mind that he wanted that panel to address, the worker stated that his time loss would basically have started in September of 2014 and would include different issues or periods of lost time, including lost sick time after that. The worker was generally unable to identify any specific dates in this regard. The worker acknowledged that there were a number of different periods of time where he was working and where he was not working, and a lot of time loss for various different reasons, including losses relating to other claims and a variety of other non-work-related issues.

Prescriptions

The worker indicated that he was seeking coverage for prescriptions from April 2014 to the date of the hearing and beyond.

The worker referred to two items in particular under this heading. He submitted that he had been prescribed Diclofenac from the beginning by his treating sports medicine physician, and had continued to use that since then as an anti-inflammatory and pain reliever. The sports medicine physician had also begun treating him with cortisone injections starting in October 30, 2014. The worker said that he had experienced immediate pain relief with the cortisone injections and no more muscle stiffness. He had received 3 injections over a period of 18 months.

The May 22, 2016 Incident

The worker stated that he was seeking recognition of a recurrence of his left knee injury as a result of a further incident in May 22, 2016 and benefits with respect thereto.

The worker said that he had been doing his home program at the gym on May 22, 2016, and his knee locked on him as he was performing a lateral move. He set up an appointment to see his treating sports medicine physician immediately. His physician told him that it was the same injury on that side, and there was not much they could do about it. The worker said that the knee slowly loosened up, and it took about three days for it to "kind of release."

The worker submitted that the injury he suffered on May 22, 2016 was directly related to his compensable knee injury as it occurred while he was doing the home program that was recommended and authorized by his treating physician and the WCB. He noted that his treating sports medicine physician and his family physician had both confirmed that this was the same injury, and submitted that he should be covered for benefits relating to that injury.

Employer's Position

The employer was represented by its Workers Compensation Coordinator.

The employer's position was that the weight of evidence demonstrates, on a balance of probabilities, that the worker recovered from the effects of his left knee injury, and is not entitled to additional benefits under this claim.

Analysis

The issue before the panel is whether or not the worker is entitled to any further benefits in relation to his left knee injury. For the worker's appeal to be successful, the panel must find that the worker sustained a further loss of earning capacity and/or required additional medical aid benefits as a result of his March 29, 2014 workplace injury. The panel is able to make that finding, in part.

The worker has an accepted claim for a left knee injury that occurred on March 29, 2014. The worker suffered a further injury to his left knee on May 6, 2014, which has also been accepted by the WCB.

The treating sports medicine physician has diagnosed the worker's injury as a left medial meniscus irritation vs tear. The panel accepts that diagnosis as being that of a medial meniscus irritation only, which we find to be consistent with the medical information on file and with the mechanism of injury of the May 6, 2014 injury in particular.

The panel does not agree with the worker's interpretation of that diagnosis as being that of a medial meniscus tear. While the worker claims that there has been clicking and locking of his knee from the beginning, the panel notes that there is no reference in initial medical reports to findings with respect to clicking or locking. Given the absence of reported clinical findings of clicking and locking on testing and the absence of an MRI of the worker's left knee, the panel is unable to find that the worker suffered a medial meniscal tear as a result of his workplace injury. Even if the worker did suffer a medical meniscus tear, the panel is satisfied that it was asymptomatic and had no significant impact on the worker's long-term functioning.

Chiropractic Treatment

The panel is unable to find that chiropractic treatment was required as a result of the worker's compensable injury.

The worker's claim has been accepted for a left knee injury. The Medical Aid Policy provides that the WCB "will generally pay for medically prescribed treatment…when required by reason of a compensable injury…" Based on our review of the medical information on file, the panel is unable to find that chiropractic treatment was medically prescribed in 2014 or required by reason of the worker's compensable left knee injury.

The panel notes that in response to a question at the hearing, the worker was unable to identify that the worker's back difficulties had been accepted by the WCB as being directly related to his left knee injury. The panel accepts the worker's comment that chiropractic treatment was beneficial for him. The panel finds, however, that there is no compelling reason why the worker would have required chiropractic treatment in 2014 for his low back in addition to the physiotherapy treatment he was receiving at that time.

The worker's appeal with respect to this issue is dismissed.

Physiotherapy Treatment and Costs

The panel is unable to find that the worker was entitled to physiotherapy treatment or costs beyond July 28, 2014.

The panel places significant weight on the August 17, 2014 report of the WCB physiotherapy advisor, who reviewed the worker's file and obtained and reviewed the July 31, 2014 medical report from the treating sports medicine physician. After referring to the clinical findings set out in the treating physician's report and noting that the physician had not suggested further therapy, the advisor concluded that at 4.5 months after the compensable injury, there was no indication that physiotherapy would be warranted. The panel agrees with and accepts the WCB physiotherapy advisor's opinion.

The panel also notes that in response to questions at the hearing, the worker described his exercise regimen. The panel is satisfied based on his description, that his regimen had expanded significantly since 2014, suggesting significant improvement without the need for physiotherapy treatment. The panel is further satisfied that whether the worker continued with physiotherapy on his own or not, the evidence indicates that his home exercise program progressed and his strength and endurance increased over time.

The worker's appeal with respect to this issue is dismissed.

Orthotics

The panel is unable to find that custom orthotics are required as a result of the worker's March 29, 2014 compensable injury.

Information on file indicates that the worker was referred to a physiotherapist by a treating physician for a "reassessment of orthotics current pair 2012."

The panel places weight on the October 28, 2015 report by the physiotherapist, who documented her assessment and provided a diagnosis of "pronation and pes planus arch structure of feet contributing to biomechanical strain at the L knee, likely will be helped by updated orthotics to increase control of rearfoot EV [eversion]."

The panel finds that the worker's left knee injury did not create the need for the worker's prescribed orthotics. Rather, the new orthotics were due to factors not related to the compensable injury. As indicated in the physiotherapist's report, the need for the originally prescribed and updated orthotics was due to the "pronation and…structure" of the worker's feet. Updated orthotics were recommended "to increase control of rearfoot EV" and it was the pronation and arch structure of the worker's feet which were "contributing to biomechanical strain." The proper or updated orthotics would help alleviate the mechanical strain to the worker's left knee which was caused by the structure of his feet (flat feet).

The panel therefore finds that the updated orthotics were not required to "cure and provide relief" from the compensable injury.

The worker's appeal with respect to this issue is dismissed.

Time Loss and Wage Loss Benefits

The worker is seeking time loss and wage loss benefits from June 22, 2014 forward. Based on the information which is before us, the panel is unable to find that the worker is entitled to any such benefits as a result of his compensable left knee injury.

The panel notes that the worker has missed significant amounts of time from work since June 22, 2014 for a variety of different reasons, many of which are not work-related. The worker has not identified particular dates for which he believes should be covered or the basis on which he would be entitled to coverage.

In the panel's view, it is significant that the treating sports medicine physician did not impose modified duties or restrictions on the worker, who works in a position with heavy job demands, but only suggested in a letter dated July 15, 2014 that the worker remain in a worksite which would be considered to be not as busy as others.

The panel finds that there is insufficient medical information before us to support any time loss beyond June 22, 2014 with respect to his compensable injury.

Based on the evidence, the panel finds that the worker is not entitled to time loss or wage loss benefits.

The worker's appeal with respect to this issue is dismissed.

Prescriptions

While the medical information does not support any time loss after June 22, 2014, the panel is not satisfied that the worker had fully recovered at that point in time. The panel notes that reports from the treating sports medicine physician continued to talk of his knee problems, with reference to consistent symptomatology, and the physician treated those problems with cortisone injections and Diclofenac.

Based on the evidence before us, the panel is satisfied, on a balance of probabilities, that those treatments were required to "cure and provide relief" from the worker's compensable left knee injury.

The panel places weight on the November 1, 2015 letter from the treating sports medicine physician, who stated that the worker:

…was diagnosed with a left medical meniscus irritation vs tear. This is a clinical diagnosis as evidenced by findings on physical exam including joint line tenderness, positive thesally' testing, effusion, stable ligaments and tender calf and thigh muscluture. (sic) This is further supported by the mechanism of injury and the noted recovery with treatment of said diagnosis.

Given the reference in the November 1, 2015 letter to the "noted recovery with treatment," the panel accepts that the worker is entitled to medical aid benefits for Diclofenac and cortisone injections to November 1, 2015.

The worker's appeal with respect to this issue is allowed, in part.

The May 22, 2016 Incident

Based on the information which is before us, the panel finds that the May 22, 2016 incident is not related to the worker's compensable left knee injury and is therefore not acceptable.

The panel has previously accepted medical aid benefits in respect of prescriptions up to a stated recovery date of November 1, 2015. The May 22, 2016 incident occurred subsequent to that date.

The injury arising from that incident does not fall within the scope of the Further Injuries Policy, as it did not arise out a situation over which the WCB exercised direct specific control.

To the extent that the worker was following the home exercise program which was provided to him, the panel finds that he was doing so as part of a regular health regime.

The worker's appeal with respect to this issue is dismissed.

Conclusion

In conclusion, the panel finds that with the exception of prescription benefits, the worker is not entitled to any further benefits in relation to his left knee injury. With respect to prescription benefits, the panel finds that the worker is entitled to medical aid benefits for Diclofenac and cortisone injections to November 1, 2015.

The worker's appeal is allowed, in part.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of March, 2018