Decision #50/19 - 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 the accident of November 1, 2017. A hearing was held on February 12, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the accident of November 1, 2017.
The worker is entitled to further benefits in relation to the accident of November 1, 2017.
The worker reported to his employer on November 3, 2017 that he injured his right knee on November 1, 2017 in an incident he described as:
I was carrying a patient down 3 flights of stairs. On the last step, my foot slipped. Put my my (sic) right leg down to brace myself, injuring my knee.
On November 6, 2017, the worker sought medical treatment from a sports medicine physician. The worker reported that he was "carrying person (sic) downstairs and while weight fully on R (right) leg felt giving way and sharp pain." He further reported that he finished his shift and that the pain started the next day. The sports medicine physician noted that the worker had a previous anterior cruciate ligament ("ACL") tear in his right knee in 1998 and has hardware in both of his ankles. The worker was diagnosed with a lateral meniscus injury, referred for an MRI and physiotherapy.
At the worker's initial physiotherapy assessment on November 21, 2017, he reported increased pain when sitting and having his knee flexed and sharp pain when walking the first few steps. The physiotherapist questioned a possible lateral collateral ligament sprain, medial meniscus strain of the right knee and noted that the worker's doctor had diagnosed a lateral meniscus tear.
The MRI conducted on the worker's right knee on December 29, 2017 indicated:
1. Torn ACL which may be chronic
2. Linear split in the proximal PCL associated with 1 cm cystic structure presumably a ganglion
3. Torn posterior horn lateral meniscus
4. Focal 5 mm area of cartilage loss weightbearing surface of the lateral femoral condyle associated with some moderate bone edema
Based on the results of the worker's MRI, the WCB case manager requested, on January 4, 2018, a WCB orthopedic specialist to review the worker's claim. On January 22, 2018, the WCB orthopedic specialist advised that they were seeking further advice regarding the worker's previous MRI studies conducted on November 17, 2010, May 14, 2013 and December 29, 2017 with a radiologist.
The worker attended for an examination with an orthopedic surgeon on January 30, 2018. The orthopedic surgeon noted that the worker had "…two right knee arthroscopies also done by [orthopedic surgeon] and old right ACL tear, old intrameniscal lateral meniscus tearing or degeneration. Bilateral ankle open reduction internal fixations." It was recommended that the worker undergo a further diagnostic arthroscopy to assess his knee to determine whether the injury was a new injury.
On February 21, 2018, the WCB orthopedic specialist advised that the report from the radiologist has been received and reviewed. The WCB orthopedic specialist opined that the worker's initial diagnosis on November 1, 2017 was of a right knee soft tissue injury/sprain substantiated by the clinical findings of no swelling or pain noted on November 6, 2017 and the December 29, 2017 MRI which did not indicate any structural change to the worker's right knee. It was further noted that the functional recovery time from a soft tissue injury of the knee would be expected to be over four to eight weeks. The WCB orthopedic specialist further opined that the worker's current diagnosis was "right knee patellofemoral osteoarthrosis" which diagnosis was supported by the imaging results reviewed by the radiologist and the worker's reporting to the orthopedic surgeon of constant pain at the anterior region of his right knee while sitting. The WCB orthopedic specialist further provided:
The degenerative process of [the worker's] right knee is pre-existing and not accounted for by the November 1, 2017 workplace accident.
The WCB advised the worker on February 23, 2018 that he was not entitled to further benefits in relation to the November 1, 2017 workplace accident.
The worker underwent arthroscopic surgery on February 26, 2018 and the operative report was received by the WCB on March 5, 2018. The operative report was reviewed by the WCB orthopedic specialist who opined, on March 5, 2018, that the findings of the February 26, 2018 arthroscopy did not change the February 21, 2018 medical opinion and there was no medical evidence to "…support an alteration, either temporary or permanent, of the pre-existing degenerative right knee condition." The worker was advised on March 14, 2018 that there was no change to the WCB's previous decision that he was not entitled to further benefits.
On June 15, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker noted disagreement with the WCB decision and felt that he had suffered an acute injury on November 1, 2017 that required surgery to correct.
Review Office determined on September 6, 2018 that the worker was not entitled to further benefits. Review Office noted that the medical evidence on the worker's file supports that the worker had a pre-existing condition in his right knee. Review Office accepted and agreed with the WCB orthopedic specialist's opinion that the December 29, 2017 MRI did not indicate an acute structural change to the worker's right knee and recovery from a soft tissue injury to the knee would have been expected over four to eight weeks. Review Office further noted that the worker's treating orthopedic surgeon provided that the worker's right knee condition was pre-existing and degenerative. The orthopedic surgeon further offered that the November 1, 2017 workplace accident could have enhanced the injury but did not provide any medical evidence to support that opinion. As such, Review Office found that the injury to the worker's right knee that occurred as a result of the November 1, 2017 workplace accident had resolved and that the worker's ongoing knee problems are related to his degenerative osteoarthritis condition.
The worker filed an appeal with the Appeal Commission on September 25, 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 April 18, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 provides that the WCB may provide a worker with such medical aid as is considered 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 184.108.40.206, 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.
The worker was self-represented. He made a presentation at the hearing, and responded to questions from the panel.
The worker explained that while working on November 1, 2017 around 3:00 or 4:00 in the afternoon, he and his co-worker had to attend a medical call to an apartment complex. He said they had to assist a patient.
The worker explained that the building had narrow stairwells and hallways and, as a result, they could not use a "chair stair" or stretcher on the stairway, which alleviates all the real lifting work. Instead he and his co-worker had to carry the patient down the stairs.
The worker said that:
And on my second last step, I slid out because of all the debris on it. And I don't know what the proper term is, jammed my knee or buckled my knee a bit. It hurt initially but not overly bad, I'm kind of accustomed to little pains once in a while. So we finished the call, put her in the ambulance, went back to work that day. I never filled out the WCB thing at that point because my shift was over and I just wanted to get home, long day.
That night when I was sitting at home it was starting to ache, just in certain areas. Like if I was sitting it would start aching and I would have to straighten it out. So when I went back in the next night or day… I did the WCB form.
He said that later on he couldn't sit with his knees bent for any period of time. He had to keep getting up to straighten his leg because he was getting pains in his knee.
He said that he felt the pain on the outside of his knee. He described the pain at the time of the incident as a "hot flash" and expanded this to:
Is the best I can say it. A twinge you could say if you wanted to. If anybody has played sports growing up, it would be like a stinger in the neck where initially it flashes with pain and then it just subsides basically right afterwards.
The worker saw his physician who referred him to the surgeon who had previously operated on his knee. He then had surgery which was successful. He said that the WCB said that the surgery was for deterioration. The worker submitted that:
It was not deterioration because as a result of that trip on the stairs that the pain came, up until that point there was no pain. And after I had the surgery the pain went away.
The worker admitted that he may have had some deterioration but he submitted that an incident happened at work which caused the irritation.
The worker explained that between November 1, 2017, the date of the injury, and February 26, 2018, when the surgery was done he had constant pain if he was sitting for any period of time. He acknowledged that he played hockey until around December 19 or 20, 2017. He also worked out, doing planks, push-ups, sit-ups. But could not do squats.
The worker advised that he did not miss work between the accident and surgery.
The employer did not participate in the hearing.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to his accident of November 1, 2017. 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 further medical aid as a result of his November 1, 2017 workplace injury. The panel is able to make that finding.
The key issue before the panel is whether the worker injured his right knee in the workplace accident or whether his pre-existing degenerative condition simply worsened in the normal course of life. The WCB's and its medical advisor's positon is that the worker's ongoing symptoms after the incident are due to his pre-existing condition. The WCB medical advisor who was asked "if the surgical report of February 26, 2018 materially changes the opinion from February 21, 2018". He responded in part:
The February 26, 2018 right knee arthroscopy report indicated the findings of a degenerative condition of the patellofemoral compartment, a degenerative condition of the lateral compartment and degenerative tearing of the lateral meniscus.
The arthroscopic findings are congruent with the imaging findings as outlined in the January 25, 2018 radiology review of the right knee MRI studies. No additional injury to right knee structures was identified at arthroscopy.
There is no evidence, either clinically, on imaging studies, or arthroscopic examination to support an altercation (sic), either temporary or permanent, of the pre-existing degenerative right knee condition.
This contrasted with the opinion of the orthopedic surgeon who operated, who noted in the February 26, 2018 Operative note that:
…the conclusion is that his knee condition was pre-existing, however it was enhanced by the most recent work-related injury.
In response to a request from the Appeal Commission, the orthopedic surgeon advised:
With regard to your letter dated March 4th, 2019, enhancement is a standard medical legal term, and I adhere to the definition. This means that the injury that occurred to the above named patient increased his level of disability on a permanent basis and to a new state of increased disability.
Considering the various medical opinions and the worker's evidence, the panel finds, on a balance of probabilities, that the worker suffered an enhancement to his pre-existing condition which was repaired in the February 26, 2018 surgery. The panel attaches greater weight to the opinion of the orthopedic surgeon who operated on the worker's injured knee. The panel finds further that the enhancement of the worker's knee has been repaired.
The panel also attaches weight to the worker's evidence that he felt pain while carrying the patient down stairs and that the pain persisted until the surgery was performed. The panel notes the worker's evidence that:
So I felt that it was a success. I went back to work, everything was fine, I could walk, run and jump and sit down if I wanted to without pain.
The panel also notes the written evidence from the co-worker (Exhibit 1) who confirmed, that after the workplace incident, the worker complained of pain and difficulty with his knee. He also advised that when the worker returned to work after surgery, the worker seemed to have recovered.
The panel further finds that the worker has recovered from the workplace injury.
The worker's appeal is approved.
A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of April, 2019