Decision #11/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to his compensation claim. A hearing was held on November 28, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the July 5, 2016 accident.
That the worker is not entitled to further benefits in relation to the July 5, 2016 accident.
The worker reported to the WCB that he suffered a right knee injury in a July 5, 2016 workplace incident which he described as follows:
I was out to check on a job that someone had told [coworker] I would be doing. Once we got there, I didn't even get out of the truck because I knew it was a two person job just by looking at it. We went back to the shop and [coworker] backed into P1. As I was getting out of the truck, I put my left leg down first and went to bring my right leg out, but my foot got caught under the front driver's door seat and twisted my right knee.
The worker attended at a local emergency room on July 5, 2016. An x-ray of the worker's right knee taken at that time showed that there was "increased soft tissue density in a suprapatellar region consistent with a small joint effusion" but no additional significant bone or joint abnormality was identified. The worker was diagnosed with a right knee injury. The worker's claim was approved and payment of benefits commenced.
On July 25, 2016, the worker was seen by his treating orthopedic surgeon, who noted:
On examination, his right knee is straight. It is not swollen. Range of motion is 0 to 105 degrees. He is tender on the medial joint line, and there is no instability. I reviewed his x-ray from [hospital] on 5 July, and it is normal.
[The worker] could have sustained a sprain of his medial collateral ligament. A medial meniscal tear could also be possible.
The worker was referred for an MRI of his right knee, which was performed on September 23, 2016. The reported impression from the September 23 MRI was "Moderate degenerative change medial femorotibial compartment" and "Degenerative change complex tearing medial meniscus." At a follow-up visit on October 3, 2016, the treating orthopedic surgeon provided a diagnosis of "Right knee medial meniscal tear with mild to moderate osteoarthritis," and recommended right knee arthroscopy.
On October 12, 2016, a WCB orthopedic consultant reviewed the worker's current and 2009 right knee claim files and opined that based on the treating orthopedic surgeon's interpretation of the recent MRI, the current diagnosis was a complex tear of the medial meniscus, and the radial component of the complex tear was probably caused by the July 5, 2016 workplace injury. The orthopedic consultant further opined that the pre-existing condition of the right knee was degenerative joint disease and complex tearing of the medial meniscus. He noted that a partial medial meniscectomy had been performed on April 2, 2010, and there was no objective medical evidence that the pre-existing degenerative condition had been aggravated or enhanced.
By letter dated October 13, 2016, Compensation Services advised that the WCB accepted financial responsibility for the proposed arthroscopy of the right knee joint and meniscectomy or meniscal repair. The worker underwent right knee surgery on February 21, 2017.
On May 15, 2017, the treating orthopedic surgeon reported that the worker's right knee was worse, and that a referral was being made to another orthopedic surgeon for consideration of a right total knee arthroplasty.
On August 16, 2017, the WCB orthopedic consultant again reviewed the worker's files and provided a further opinion to file.
On October 12, 2017, Compensation Services advised the worker that a review of the medical information on his claim did not establish a cause and effect relationship between the worker's current reported difficulties and the workplace accident of July 5, 2016. As a result, there was no further loss of earning capacity related to his injury and the WCB was unable to accept further responsibility for his claim.
On December 5, 2017, the worker requested that Review Office reconsider Compensation Services' decision and provided further medical information in support of his request. The worker stated that he had a meniscus operation for a work-related injury in early 2010, then had no problems with his right knee from April 2010 to July 5, 2016. The worker submitted that the same thing had happened to his left knee, where two meniscus operations led to a total knee replacement. Identical symptoms on his right knee now seemed to be following the same process. He submitted that removing his meniscus twice created a bone on bone situation and the WCB should be responsible for his ongoing difficulties. The employer provided a submission outlining their agreement with the WCB's decision, and the worker provided a response to that submission.
On March 20, 2018, Review Office determined that the worker was not entitled to further benefits in relation to his right knee. Review Office placed weight on the WCB medical advisor's August 16, 2017 report and opinion that the worker's pre-existing osteoarthritis was the cause of his ongoing difficulties. Review Office found that the WCB medical advisor's opinion was supported by the worker's need for a total knee arthroplasty, a procedure which was not related to the compensable injury. Review Office further found that there was a lack of clinical evidence to support that the workplace accident materially changed the pre-existing pathology of the worker's right knee. Review Office therefore concluded that the worker's ongoing loss of earning capacity and need for further treatment or medical aid were not related to the workplace accident, and there was no entitlement to further benefits.
On June 6, 2018, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
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 wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 220.127.116.11, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
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.
The worker was self-represented and provided a written submission 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 his ongoing right knee difficulties and eventual right knee replacement surgery were caused by his compensable injury and he is entitled to further benefits.
The worker briefly reviewed the timeline of his claim. He noted that his prior right knee injury claim was in 2009. Surgery in 2010 fixed his meniscus "and it was perfect." He said he had no issues with his right knee following his 2010 meniscus surgery up until his July 5, 2016 injury. He could do everything with his right knee on July 4, 2016, but not on July 5, 2016.
The worker stated that he had knee replacement surgery on his right knee on September 12, 2018 and has continued going for physiotherapy treatments three times a week.
The worker submitted that his right knee difficulties were no different than what he had experienced with his left knee, for which he had an accepted claim, and they followed the same pattern. He suffered similar kinds of work-related injuries and had two meniscus operations on each knee, followed by a knee replacement. In the worker's view, it did not make sense that the WCB should all of a sudden say it was arthritis and end his benefits for his right knee injury before knee replacement surgery, when a total knee replacement was covered for his left knee.
The worker submitted that every time he injured his knee and it was operated on, this created more arthritis. He said he had been told this by a WCB doctor at an examination on his left knee claim, that arthritis occurs every time you hurt your knee.
The worker said he is ready to go back to work as soon as his physiotherapist clears him to return. He submitted that he should have been entitled to benefits through to the time of his right knee replacement surgery and his recovery from that surgery.
The employer was represented by an Occupational Health Nurse and a Human Resources Manager.
The employer's position was that they supported and agreed with the WCB's decision that the worker's compensable injury had healed effective October 2017 and benefits on this claim should have ended at that time.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the July 5, 2016 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of his July 5, 2016 workplace accident. The panel is unable to make that finding.
Based on our review of all of the information, on file and as presented at the hearing, the panel is satisfied that the worker's ongoing right knee difficulties were not related to his July 5, 2016 compensable injury, but to his pre-existing degenerative conditions or osteoarthritis.
The panel notes that in his October 3, 2016 letter, the treating orthopedic surgeon indicated that he saw the worker in follow-up after the MRI of his right knee. The orthopedic surgeon noted that the MRI indicated, among other things "moderate degenerative changes in the medial compartment of the knee" which had "progressed significantly since the previous examination," done in January 2010. It was noted that there was also "a complex tear of the medial meniscus which is mainly radial, but also oblique." The orthopedic surgeon diagnosed "Right knee medial meniscal tear with mild to moderate osteoarthritis," and recommended right knee arthroscopy.
On October 12, 2016, having reviewed the worker's current and 2009 claim files, the WCB orthopedic consultant opined that the workplace injury caused a new radial tear of the medial meniscus, but there was no clinical evidence that the worker's pre-existing degenerative condition had been aggravated or enhanced by that injury. On October 13, 2016, the WCB advised that they accepted financial responsibility for part of the proposed procedure only, being the arthroscopy of the knee joint and meniscectomy or meniscal repair.
The February 21, 2017 Operative Note indicates that the surgery on that date identified and confirmed the presence of multiple conditions in the worker's right knee, including a medial meniscal and lateral meniscal tear, which were addressed. Physiotherapy treatments were approved and benefits were paid through to October 11, 2017.
Based on our review of the evidence, the panel is unable to find that subsequent difficulties or issues in the worker's right knee were attributable to his compensable injury. The panel finds that the worker's ongoing right knee difficulties and subsequent right knee total replacement were due to pre-existing osteoarthritis and degenerative conditions, which were unrelated to the worker's compensable injury.
In this regard, the panel places weight on the May 15, 2017 letter from the worker's orthopedic surgeon, who indicated that the worker's right knee "is worse now pain 10/10 on a pain scale." The surgeon went on to state, in part:
Right knee was x-rayed today. He has moderately severe osteoarthritis of the medial compartment with almost bone on bone contact.
Plan: Referral to [orthopedic surgeon] for consideration for a right total knee arthroplasty…
The panel is unable to accept the worker's position that his two workplace injuries and right knee surgeries caused the osteoarthritis or degenerative conditions in his right knee, or that they aggravated or enhanced those conditions and led to his total knee replacement. It is the panel's understanding that degenerative joint disease is a result of the natural aging process and can affect different individuals to different degrees regardless of whether the individual has experienced a significant injury. The panel further finds that there is an absence of clinical evidence to support the worker's position in this regard.
The panel places weight on the August 16, 2017 report of the WCB orthopedic consultant, who reviewed the worker's current and 2009 right knee claim files, and opined in part:
1. The workplace injury of 5-July-2016 caused a tear of the remnant of the right medial meniscus.
2. Current difficulties are caused by osteoarthritis (OA) of the right knee.
3. It is more likely than not that recovery from the compensable injury has occurred following surgery on 21-Feb-2017. The surgery included partial right medial meniscectomy and several other procedures related to OA but not related to the compensable diagnosis. There are no physical restrictions related to the workplace injury at this time.
4. The pre-existing condition of the right knee was OA. The natural history of knee OA is of episodes of pain and loss of knee function, such episodes increasing in severity and frequency over the years.
The panel accepts the WCB orthopedic consultant's August 16, 2017 opinion, as set out above, as being consistent with our assessment and understanding of the information on file.
The panel places little, if any, weight on the May 24, 2018 letter from the worker's family physician which was relied on by the worker in support of his appeal. The panel finds that the family physician's letter is not supported by clinical evidence and is based, to a significant extent, on information which is inaccurate or inconsistent with information on file.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of his July 5, 2016 workplace accident.
The panel therefore finds that the worker is not entitled to further benefits in relation to the July 5, 2016 accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of January, 2019