The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for left knee medial meniscus tear as being a consequence of the March 13, 2017 accident. A hearing was held on September 12, 2018 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for left knee medial meniscus tear as being a consequence of the March 13, 2017 accident.

Decision

Responsibility should be accepted for left knee medial meniscus tear as being a consequence of the March 13, 2017 accident.

Background

The worker reported to the WCB on April 11, 2017 that he injured his inner left knee on March 13, 2017 in an incident that he described as:

Twisted my left leg as I was entering the back truck box to move tools.

On March 15, 2017, the worker attended a physiotherapist appointment where he reported that he re-injured his left knee and he was unable to squat, kneel or pivot or climb a ladder. The physiotherapist noted that the worker was capable of modified duties as he had a second employee accompanying him and the worker could avoid any squatting, kneeling or climbing on ladders.

The worker saw a sports medicine specialist on March 24, 2017 who noted that the worker had originally injured his knee in January 2017 and had reinjured his knee by twisting it, "(plant and pivoted medially)." The sports medicine specialist diagnosed the worker with a "left knee medial meniscal peripheral detachment vs tear" and referred the worker for an MRI.

At a follow-up physiotherapy appointment on April 24, 2017, the physiotherapist recommended restrictions of no crouching, kneeling or squatting and for the worker to minimize the time he was weight-bearing.

On June 16, 2017, the worker had an MRI conducted of his left knee. The MRI found:

Complex tearing of the medial meniscus at the body and posterior horn. There is displaced meniscal tissue from the body to the inferior meniscal tibial recess and small flap of displaced meniscal tissue is noted from the posterior horn to the intercondylar notch. Chondromalacia.

The worker's file, including the MRI, was reviewed by a WCB medical advisor and based on advice received from the WCB medical advisor, on July 14, 2017, the WCB advised the worker that they were accepting his claim based on a diagnosis of a left knee strain. The WCB advised the worker that the WCB medical advisor had reviewed his claim and provided the opinion that the likely diagnosis for his January 2017 injury was a left knee strain that occurred in the environment of pre-existing degenerative changes. Noting that the clinical findings were largely the same in terms of reduced mobility and medial tenderness, the WCB felt the March 2017 workplace incident was likely a re-injury of the January 2017 workplace incident. The WCB further advised:

Medial meniscus tears can be the result of degenerative changes over time or they can arise from a loaded twist type injury. The June 16, 2017 MRI reveals complex tears at the back section called the posterior horn and in the middle section called the body. Degenerative tears generally have a complex tear pattern and are predominantly found in the posterior horn and the mid-body. Therefore it is likely that the meniscal injury your (sic) have is related to degeneration rather than the worker place injuries in January and March 2017.

On September 19, 2017, the worker requested that the WCB review his January 24, 2017 and March 13, 2017 claims as he stated that both he and his doctor relate the results of the MRI to his workplace injuries. The WCB advised the worker that they reviewed both claims and there was no change to their decision that his accepted diagnosis was a left knee strain. The WCB advised the worker that the results of the MRI were pre-existing degenerative changes.

Again on October 4, 2017, the WCB advised the worker that his claim was accepted for a left knee strain in the environment of pre-existing degenerative changes and no responsibility was accepted for a left knee medial meniscus tear diagnosis and wage loss or medical treatment related to that diagnosis.

The worker requested reconsideration of the WCB's decision to Review Office on October 13, 2017. The worker disagreed with the WCB medical advisor's opinion that he had pre-existing degenerative changes in his left knee. The worker noted that he had no past problems or issues with his left knee and provided letters from his doctor noting same.

Review Office requested the WCB orthopedic advisor to review the worker's claim and on October 26, 2017, the WCB orthopedic advisor opined that the worker's current diagnosis was a complex tear and extrusion of the left medial meniscus, supported by the worker's physiotherapist reports and the MRI conducted on June 16, 2017. It was the WCB orthopedic advisor's opinion that the clinical and imaging findings indicated that the worker had degenerative changes in his knee more so than traumatic etiology. The WCB orthopedic advisor also noted that "complex tears of the menisci are more often seen in degenerative joint disease then in acute trauma. However, it is possible that some component(s) of the complex tear may have resulted from acute trauma to a meniscus that was already weakened by degeneration…" This opinion was shared with the parties.

On November 7, 2017, Review Office advised the worker that responsibility for the left knee meniscus tear as being a consequence of the March 13, 2017 accident was not accepted. Review Office accepted the WCB orthopedic advisor's opinion that, on a balance of probabilities, the worker's left medial meniscus tear was a pre-existing condition, which was not caused or structurally altered by either the January 24, 2017 or March 13, 2017 workplace accident. Review Office concluded that the worker's January 24, 2017 compensable diagnosis was a left knee sprain and the March 13, 2017 compensable diagnosis was a left knee strain. Review Office was unable to establish a connection between the worker's left knee medial meniscus tear or either the January 24, 2017 or March 13, 2017 workplace accidents. As the left knee medial meniscus tear diagnosis was not compensable, there was no entitlement to wage loss or medical aid benefits for that condition.

The worker filed an appeal with the Appeal Commission on January 20, 2018. An oral hearing was arranged.

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 January 10, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 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.

In this case, the worker has a pre-existing condition. WCB Board Policy 44.10.20.10, Pre-Existing Conditions, provides, in part:

The Workers Compensation Board of Manitoba 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 Workers Compensation Board 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.

Under the policy benefits are paid in limited situations where a pre-existing condition has been aggravated or enhanced as a result of a workplace accident.

The worker has an accepted claim for a workplace injury on March 13, 2017. He is appealing the WCB decision which denied responsibility for a left medial meniscus tear as being a consequence of the March 13, 2017 accident.

Worker's Position

The worker was self-represented. He advised that he had two incidents which affected his left knee. The first incident occurred on January 24, 2017 and the second incident occurred on March 13, 2017. He said that he considered it to be one accident.

He advised that on January 24, 2017 he injured his left knee when he was loading tools into the back of a car while standing on icy ground. He said it hurt when he over-extended his knee and that it was sore "on the inside of the leg, inside of the kneecap where it bends". He did not miss time from work.

The worker saw a physiotherapist January 31, 2017 to obtain an opinion on his injured knee. In February he went on vacation for two weeks and his knee felt better. He returned on March 1, 2017.

In reply to a question about how his knee felt in early March, he replied:

Well, I'm not going to say they're worse. You know, basically the same. I have limited movement of my leg. I'm kind of like, you know, it's, it's sore, you know, so I don't push it. Especially on holidays, I don't want to be ruining my holidays when I was out there.

On March 13, 2017, he said that he injured his left knee again when he was loading tools into the back of his truck. He stated:

I'm on the bumper, then I've got a leg inside, into the box to get my tools, and that's when I twist the knee again.

He said he was reaching down to get his tools, and slipped on the plastic liner in the box of the truck. His foot started to slide out when he was turning and aggravated his knee. He said that in both incidents, he never fell and managed to catch himself.

Regarding how his knee felt after the second injury he said:

Oh, it was a burning sensation. I'm going to say not as severe as the other one, but it was pretty sore, though. Like it wasn't -- the first one was like a real sharp burning. This one was more of a dull -- it was a burn, but nowhere near like -- but, ache. Oh, it was crazy.

He said the pain was along the right side, inside of his knee. After the incident, he stayed in the office and did some paperwork. He put his knee up and iced it.

He saw his physician on March 24, 2017. He attended physiotherapy and was referred to an orthopedic surgeon who performed a left knee scope, partial meniscectomy, medial compartment chondroplasty and synovial trim.

The worker said that he missed very little time from work. He said that he is seeking reimbursement for medical expenses arising from his injury, but is not seeking payment for time loss.

Employer's Position

The employer did not participate in the hearing. The employer's representative advised that the employer is not disputing the claim.

Analysis

The worker has complained of incidents involving his knee in 2017. He has two claims; one for a January 2017 injury and one for a March 2017 injury. The issue before the panel is whether responsibility should be accepted for the worker's left knee medial meniscus tear as being a consequence of the March 13, 2017 accident. For the worker's appeal to be approved the panel must find a causal relationship exists between the worker's March injury and the resulting surgery. For reasons that follow, the panel finds, on a balance of probabilities, that there is a causal relationship between the worker's workplace injuries and the left knee medial meniscus tear.

The worker's evidence is that he did not have left knee difficulties until the January 2017 incident and that it worsened with the March 2017 incident. The panel sought information from the worker's family physician regarding any history of left knee problems. The family physician advised that he had no clinical records regarding the worker's knee.

The panel also obtained a copy of the operative report, dated January 10, 2018 pertaining to the worker's left knee surgery. The note indicates, in part:

At arthroscopy the suprapatellar compartment was normal, undersurface of patella was well preserved and tracked well, in the medial compartment for the most part joint surfaces were actually almost pristine. There was a small area of chondromalacia on the femoral condyle near the posterior horn toward the notch of grade 1-2 chondromalacia and there was similar amount of chondromalacia on the tibial plateau, again just in the region of the posterior horn meniscus tear. The meniscus itself had several large tears in it with a bucket handle component.

The panel also notes that the orthopedic surgeon, in a "Visit Note" dated January 18, 2018, noted that:

[Worker] was seen after recent arthroscopy left knee where essentially the major problem in his knee was a significant medial meniscus tear. He has report this to WCB but they had in fact denied him because of an MRI report of early degenerative changes in the medical compartment, in fact this knee is actually quite well preserved, the major pathology in this knee was the meniscus tear which is compatible with this reported injuries that he had. I have advised him to take this up with the WCB.

The panel acknowledges that the WCB medical advisors have a different opinion on the cause of the worker's knee problem. However, the panel attaches greater weight to:

• the opinion of the orthopedic surgeon who performed the operation and viewed the damaged knee.

• the evidence of the family physician that the worker did not report any left knee problems prior to the January workplace incident.

• the worker's evidence that he had no left knee impairment until after the workplace accidents.

• the October 5, 2017 letter from the worker's treating physiotherapist who opined that the two twisting incidents reported by the worker provide a reasonable mechanism of injury for the worker's meniscal injury.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of February, 2019