Decision #110/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss and medical aid benefits after August 27, 2017. A hearing was held on March 26, 2018 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after August 27, 2017.
Decision
The worker is entitled to wage loss and medical aid benefits after August 27, 2017.
Background
The worker reported injuring her left knee while at work on June 19, 2017. She described in a Worker Incident Report of walking and turning the corner and feeling a pain in her left knee. In her initial conversation with the WCB, the worker advised that she continued working her next few shifts but had an appointment to see her doctor on June 23, 2017.
On June 23, 2017, at the worker's doctor's appointment, the worker reported increasing swelling in her left lower leg and knee pain, worsening over the previous two days. The nurse practitioner referred the worker to the local emergency room for an ultrasound as a precaution to rule out a deep venous thrombosis (DVT). An ultrasound of the worker's left lower extremity was conducted on June 24, 2017 and no evidence was found of a DVT above her calf but the radiologist reviewing the ultrasound suspected a ruptured Baker's cyst.
At an initial appointment with a physiotherapist on July 12, 2017, the worker was diagnosed with a lateral meniscus irritation and a tear was questioned. The physiotherapist advised that the worker was capable of modified duties which included no deep squatting, no ladders, no standing for prolonged periods of greater than fifteen minutes and no lifting greater than twenty pounds for a period of two weeks.
The worker advised the WCB in a discussion on July 19, 2017 that she could only work half of her shift that day as when she was turning, she felt an even worse sharp pain in her left knee. The worker saw both her physiotherapist and her doctor on July 20, 2017 who recommended that she be off work. The worker's doctor referred the worker for an MRI on her left knee. The MRI was conducted on August 2, 2017 and found a Baker's cyst, full-thickness chondral loss in the posterior lateral femoral condyle and the anterior medial femoral condyle and a horizontal tear with the lateral meniscus.
On August 14, 2017, a WCB medical advisor reviewed the worker's file and provided the opinion that the worker's most likely diagnosis was that of a ruptured Baker's cyst. This opinion was supported by the medical examination of the worker on June 23, 2017 by the nurse practitioner and the emergency room physician who documented normal left knee examinations with calf swelling, pain and tenderness reported. The June 24, 2017 ultrasound indicated findings of a recently ruptured Baker's cyst. The WCB medical advisor provided that the natural history of a ruptured Baker's cyst involves pain and swelling of the back of the knee and the calf that will persist for several days, up to approximately two weeks and that there was no specific treatment required in relation to a ruptured Baker's cyst. The WCB medical advisor further opined that the findings of the August 2, 2017 MRI, being two areas of chondral loss, a horizontal tear of the lateral meniscus and a Baker's cyst, were all degenerative changes and were not accounted for in relation to the workplace injury.
The worker was advised on August 24, 2017 that the WCB was unable to accept responsibility for her ongoing left knee difficulties and as such, she would not be entitled to any further benefits after August 28, 2017.
On August 23, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker disagreed with the WCB's decision as she noted that she had never had problems with her knee before but had pain and swelling since the workplace injury.
Review Office upheld the WCB's decision in their October 16, 2017 decision. Review Office accepted that the worker suffered a ruptured Baker's cyst as a result of the June 19, 2017 workplace incident. Review Office noted that given the clear evidence of pre-existing conditions on the MRI, the worker likely aggravated her pre-existing conditions on June 19, 2017, in addition to the ruptured Baker's cyst. Review Office also found that the worker did not mention the incident of turning and feeling a sharp pain in her left knee to her doctor when she saw him on July 20, 2017. As such, Review Office concluded that the worker further aggravated her pre-existing conditions while at work on July 19, 2017 and that there was no evidence to connect the June 18, 2017 incident to the horizontal lateral meniscus tear. Review Office found that as the worker was off work for approximately five weeks and received a course of physiotherapy, she had sufficient time off work and treatment for the aggravation of her pre-existing conditions to resolve and is not entitled to further benefits beyond August 27, 2017.
The worker filed an application with the Appeal Commission on October 25, 2017. An oral hearing was held March 26, 2018.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 12, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
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.
Worker's Position
The worker is seeking further wage loss and medical benefits after August 27, 2017.
The worker was self-represented. She described the workplace accident and subsequent actions:
• she was turning and pivoted, and got pain.
• she thought she just twisted her knee, moved funny.
• she worked until 9:00 PM.
• she applied cold packs and after 24 hours put heat on it.
• the next day she told two coworkers about the accident.
• a day and a half to two days later, it started to swell.
• she noted that she was dragging her leg and couldn't walk properly.
• a coworker noticed that her knee was swollen through her pant leg.
• she then reported the accident.
• she saw her doctor (nurse practitioner) after work.
• she was told that because of the swelling it looked like a blood clot.
• she attended an emergency ward at a local hospital.
• she was given injections in case it was a blood clot.
• she went for an ultra sound the next day and was told she had a Baker's cyst.
• she should wear compression socks and take Tylenol for the pain.
• it was not improving so she saw a sports therapist who said it was a tear not a cyst.
• she then had an x-ray and ultra sound.
• she was told she had a cyst which was caused by the tear.
• she had surgery on January 19, 2018.
In reply to a question from the panel, the worker advised that she was not carrying anything at the time of the accident. She said there was nothing unusual about the step, she was just turning. She said:
Just the turning, the pivoting and then the pain.
She said that her leg became swollen "from the knee straight down." The worker said that she went to a medical centre where she saw a nurse practitioner and then went to an emergency department.
Employer's Position
The employer was represented by its Assessments Director.
The employer representative stated that the worker's injury may have been present prior to the incident, and may be a pre-existing condition. He commented that there may be a difference of opinion between doctors. He said the worker's knee condition was not something that was building because of the work, it just happened to be at work but was not likely work related. He noted the employer has modified work when workers do injure themselves.
Analysis
The worker is appealing the WCB decision that she is not entitled to wage loss and medical aid benefits after August 27, 2017. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker is entitled to wage loss and medical aid benefits after August 27, 2017. In other words, the panel must find that the worker was not able to return to her pre-accident duties and sustained a loss of earnings capacity after August 27, 2017 arising from the June 19, 2017 accident.
The panel is able to make this finding. The panel finds, on a balance of probabilities, that the worker aggravated her June 19 left leg injury in an incident at work on July 19, 2017 and that she continued to suffer the effects of the aggravation after August 29, 2017.
The panel notes that the worker was examined by both a nurse practitioner and ER physician after the first incident in June 2017 and both found the worker's knee to be normal:
• the nurse practitioner saw the worker on June 23, 2017. Her note indicates that the primary concern on that date was related to the left calf swelling, warmth and tenderness. The remainder of the knee examination was unremarkable.
• the emergency department notes dated June 23, 2017 indicate that an ER physician noted the worker had left calf pain and swelling, range of motion was described as good, with the MCL and LCL were described as intact.
• a left leg ultrasound was performed on June 24, 2017 to rule out a DVT, but it noted findings consistent with presence of a ruptured Baker's cyst.
There was no diagnosis of meniscal tear at that time, only reference to a Baker's cyst.
The worker then further injured her left knee while at work on July 19, 2017. The panel attaches significant weight to the incident noted by the case manager in a memorandum dated July 19, 2017. The memorandum provides a summary of the events/activities surrounding the worker's claim. It indicates, in part:
Continued to work her regular hours and shifts until July 19/17 when she was turning she felt an even worse sharp pain in her left knee at which point she could only work half her shift 8:30 to- 12:30 (was scheduled until 5:00 PM)
The panel notes the medical symptoms and findings subsequent to this incident, including pain along the lateral joint line. The panel finds, on the balance of probabilities, that the worker sustained an aggravation to her left knee injury on July 19, 2017, which had not resolved by August 27, 2017.
The worker's appeal is approved, the worker is entitled to benefits beyond August 27, 2017.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of July, 2018