The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss and medical aid benefits after December 29, 2017. A hearing was held on April 30, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits after December 29, 2017.

Decision

That the worker is entitled to further wage loss and medical aid benefits after December 29, 2017.

Background

Date of Accident - June 14, 2017

On June 19, 2017, the worker reported to the WCB that he injured his right knee when responding to an incident at work on June 14, 2017. The worker stated that he ran to the area of the incident "…and stood by in a supportive stance. When I went to return to my home unit I felt my right knee was very sore."

The worker attended a medical clinic on June 15, 2017, and an x-ray was taken of his right knee which showed:

There is chondrocalcinosis of the medial and possibly the lateral meniscus. The joint spaces are maintained. Mild spurring is present is (sic) the patella. No acute bone or joint abnormality is identified.

The worker was diagnosed with right patella femoral chondromalacia, with reactive synovitis. The claim was accepted and wage loss benefits were paid for June 15, 2017.

On January 9 and January 12, 2018, the worker contacted the WCB and advised that he had never fully recovered from his injury and could still feel pain on his knee. He said that he had responded to another incident on December 28, 2017 and his knee was hurting worse.

On January 12, 2018, the worker's claim was reviewed by a WCB medical advisor, who opined that the likely diagnosis for the June 14, 2017 injury was a right knee sprain, which would normally recover in two to six weeks. On February 1, 2018, Compensation Services advised the worker that they were unable to establish a causal relationship between his ongoing right knee difficulties and his June 14, 2017 accident. Compensation Services advised that they would therefore not accept responsibility for the worker's ongoing difficulties.

Date of Accident - December 28, 2017

In a Worker Incident Report filed January 12, 2018, the worker reported to the WCB that he injured his right knee when responding to an incident at work on December 28, 2017. He noted that he "…felt a pain on the inside right knee while running." In a further Worker Incident Report dated January 15, 2018, the worker stated that while responding to the incident, he felt his right knee "pop" and had to stop running.

The worker was seen at the medical clinic on December 29, 2017. It was noted that the worker previously attended the clinic in June 2017 with right knee pain, and his knee "has never been good since then." The attending sports medicine physician reported that the worker had a mild antalgic gait, medial joint line tenderness and a positive McMurray test. The physician diagnosed the worker with a medial meniscus tear and referred him for an MRI.

On February 6, 2018, the WCB's Compensation Services advised the worker that his claim for the December 28, 2017 accident was accepted for the accident only, and responsibility would not be accepted beyond the date of the injury, as a causal connection between the diagnosis of a tear and his workplace accident could not be established. Compensation Services noted that the worker had a prior WCB claim for his right knee and had advised that his knee never fully recovered from that prior claim.

On April 17, 2018, the WCB received a copy of a letter from the worker's attending sports medicine physician for a referral to an orthopedic surgeon, together with the report of an MRI of the worker's right knee dated March 3, 2018, which indicated:

IMPRESSION:

1. Multidirectional tear body medial meniscus. 

2. Chondromalacia at the medial and patellofemoral compartments.

On April 30, 2018, Compensation Services advised the worker that the additional information had been reviewed and there was no change to the February 6, 2018 decision.

On June 15, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker advised that he sought medical attention the day after the workplace accident and his treating physician felt he had a meniscal tear. The worker noted that based on the March 2018 MRI, his treating physician confirmed he had a medial meniscus tear in his right knee. The worker further advised that he was requesting the review as he felt that he was misdiagnosed on his previous WCB claim, and as a result of that misdiagnosis, suffered this second acute injury on December 28, 2017.

On June 20, 2018, Review Office returned both of the worker's WCB claims to Compensation Services for further investigation. On June 29, 2018, a WCB orthopedic consultant reviewed the worker's files and opined as follows, in response to questions from Compensation Services:

1) What is/was the probable diagnosis as related to each of the workplace injuries on June 14/17 and Dec 28/17?

For the June 2017 incident, there was no actual injury and the worker informed case manager on June 29, 2017, that he missed one day from work and had returned to work.

For the December 2017 incident, the description is almost identical to earlier incident with no actual injury or fall or twist, and two incident reports, the second adding a feeling of a "pop".

This information would not likely qualify for a diagnosis of strain/sprain.

2) Please review the March 3/18 MRI and explain the findings and the causes of each diagnosis.

Insufficient attention has been addressed to the diagnosis on the straight x-ray of chondrocalcinosis. Calcium pyrophosphate dihydrate disease (CPPD), sometimes referred to as pseudogout, involves deposition of these crystals in articular and meniscal cartilage with progression to irreversible degenerative cartilage changes and associated degenerative osteoarthritis.

This would involve the identified patellofemoral Grade 3 chondromalacia and Grade 1 medial compartment chondromalacia, but also the complex degenerative tearing of the medial meniscus.

…

3) Are the clinical findings demonstrated in the MRI of March 3/18 medically accounted for in relation to either of the workplace accidents? If so, which one (or both)?

Negative. The details of mechanism of injury in both incidents would not likely result in an injury which could result in a degenerative meniscus tear or Grade 2 and Grade 3 chondromalacia, nor an aggravation of the imaging abnormalities.

4) If not, on a balance of probabilities, are the findings of the MRI degenerative in nature and unrelated to the workplace injuries?

Affirmative.

On July 6, 2018, Compensation Services advised the worker that based on the WCB orthopedic consultant's opinion, the previous decisions were unchanged.

On August 21, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The union representative provided a further description of the mechanism of the worker's injury, noting that when responding to the incident, the worker had to exit a door, take a turn to the left and proceed down the hall about 200 metres, and that it was when he exited the door and turned left that he felt the "pop" in his knee. The representative suggested that this information confirmed that there was a twisting force to the worker's knee at the time. The union representative submitted that the evidence supported that the December 2017 workplace accident caused tearing which had aggravated or enhanced the worker's condition and now required surgery. On October 19, 2018, the employer's representative provided a submission in support of Compensation Services' decision, and the union representative provided a response to that submission on October 25, 2018.

On October 26, 2018, Review Office determined that the worker was entitled to medical aid benefits for December 29, 2017. Review Office placed weight on the WCB orthopedic consultant's June 29, 2018 findings, and found, on a balance of probabilities, that the right meniscal tears were a pre-existing condition, which was not caused or structurally altered by the workplace accident. Review Office stated that on a balance of probabilities, they were unable to account for the worker's current difficulties in relation to the compensable injury, and concluded that there was no entitlement to further benefits, apart from the December 29, 2017 medical treatment he sought.

On November 19, 2018, the worker's union representative appealed the Review Office 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.

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 44.10.20.10, 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 that:

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.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his union representative and the panel.

The worker's position was that he is entitled to wage loss and medical aid benefits beyond December 29, 2017 because he continued to suffer the ongoing effects of his compensable right knee injuries beyond that date. Specifically, the worker was seeking wage loss and medical aid benefits in relation to the October 4, 2018 arthroscopic surgery on his right knee.

The union representative noted that the WCB accepted both of the worker's claims, thereby acknowledging two separate accidents and injuries. The WCB limited responsibility for each of those claims to a single day's time loss, being the day on which the worker sought medical attention. The representative submitted that while the WCB initially accepted the June and December 2017 claims on the basis that the worker sustained strains to his right knee, the WCB orthopedic consultant had disagreed and concluded on June 29, 2018, that the evidence did not establish an accident, let alone an injury. The representative noted that a determination as to whether there is an injury, however, is an adjudicative decision, to be decided by an adjudicator.

The union representative submitted that the orthopedic consultant's conclusion in this regard likely influenced his subsequent opinion. He suggested that the consultant's opinion was based on false assumptions and speculation, and accorded no weight to the worker's own reported history. The representative submitted that the orthopedic consultant's position that the worker's knee complaints were solely due to pre-existing degeneration which was neither caused nor made worse by his workplace accidents, was unreasonable given the existing evidence on file.

The worker's union representative stated that they did not dispute that the worker may have had degenerative changes within his right knee prior to his workplace accidents, but submitted that there was no evidence he had any symptoms or limitations before the June 14, 2017 accident. After that date, however, he had persistent pains. He was able to continue working subsequent to the June 2017 incident, with restrictions for the first two weeks. Then, following the December 28, 2017 incident, the worker reported an acute exacerbation of his pain as well as a limp which did not go away. The worker was restricted from responding to incidents at work, initially up until the MRI was done, and then until he underwent surgery to repair his medial meniscal tear on October 4, 2018.

The union representative stated that the worker has reported that his right knee pain has improved significantly since the October 4, 2018 surgery and he returned to his full-time regular duties on October 27, 2018.

In conclusion, it was submitted that if not for the workplace accidents, the worker would not have had a progressive knee condition or the meniscal tearing that required surgical treatment on October 4, 2018. The representative submitted that the worker is entitled to wage loss and medical aid benefits in relation to his surgery, because the surgery was required to treat the effects of his compensable injuries.

Employer's Position

The employer was represented by its Workers Compensation Specialist. The employer's position was that they agreed with the Compensation Services and Review Office decisions that there is no entitlement to any further benefits or services in relation to either the June 2017 or December 2017 claims.

The employer's representative submitted that the medical evidence did not support any relationship between work-related incidents and the initial diagnosis of chondromalacia patella or a complex tear of the medial meniscus. In the employer's view, the worker's right knee issues and resulting surgery were solely due to pre-existing issues that were not caused, aggravated or enhanced by the worker's activities at work on June 14 or December 28, 2017.

The employer's representative submitted that the June 14, 2017 incident was very minor in nature. There was nothing that would have resulted in any changes in the worker's knee or been responsible for ongoing knee complaints. Having noted that the WCB had suggested the injury resulted in a sprain, the representative stated that if it did, that was all it was. There would not have been any specific acute injury or tearing as a result of that running injury.

It was submitted that the December 28, 2017 incident involved virtually the same mechanism or injury. The representative stated that there was no report of any twisting issue, or description of a twisting motion or anything like that at the time. The representative noted that a later submission suggested there were mechanics of turning left, but even if these were to be given merit, the mechanics do not make sense and would not lead to a torsional injury in the right knee.

The employer's representative asked that the panel give significant weight to the MRI findings of a complex tear to the body of the medial meniscus, and varying levels of chondromalacia, which typically suggest more of a degenerative issue than something developed from an acute torsional injury.

The representative asked that the panel consider the WCB orthopedic consultant's opinion, which he submitted was a thorough and comprehensive review. The representative noted, in particular, that the consultant provided a very strong and definite opinion that none of the clinical findings in the MRI were related to either of the workplace incidents.

In conclusion, the employer's representative submitted that the worker's current medial meniscus issues were solely the result of a degenerative process and there was nothing to support in any objective way that the worker running on either day resulted in the worker's actual meniscal tear or aggravated degenerative pre-existing issues.

Analysis

The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits after December 29, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after December 29, 2017 as a result of his June 14, 2017 and/or December 28, 2017 workplace injury. The panel is able to make that finding.

Based on our review of all the information on file and as presented prior to and at the hearing, the panel is satisfied that the worker's right knee medial meniscus tear, as identified on the March 3, 2018 MRI and during surgery on October 4, 2018, was causally related to the worker's December 28, 2017 workplace injury. The panel is further satisfied that medical aid and wage loss benefits associated with that specific tear, including surgery, are related to the December 28, 2017 workplace injury and are compensable.

The panel notes that we are unable to find that the worker's ongoing knee issues and complaints are related to the worker's June 14, 2017 workplace accident and compensable injury. The panel is of the view that the June 14 incident was relatively minor, and resulted in a sprain/strain injury which would have resolved prior to the December 28, 2017 incident.

The panel is satisfied, however, that the December 28, 2017 workplace accident was more serious. The worker reported the accident to his supervisor immediately after it occurred. Early the next morning, he attended a sports medicine physician who reported that he had a mild antalgic gait, medial joint line tenderness and a positive McMurray test. The physician provided him with a new diagnosis of a medial meniscus tear and referred him for an MRI. At the hearing, the worker described the pain he was feeling as a result of that injury as much worse that the June injury and rated it as 10 out 10.

In response to questions at the hearing, the worker stated that in attending to the December 28, 2017 incident, he was running and had to turn "to head in a straight line towards the…unit, and I felt my knee was kind of, like it hurt, as I was running." With respect to his reference to turning, the worker stated that "…because I was running, there's a wall, it's called [name], it's basically in the middle of the [facility], and if you keep running straight you're going to hit a wall, so you have to kind of angle yourself to head in that other direction." The panel accepts the worker's evidence in this regard. While the employer's representative commented that there was no reference to a turn or twisting movement closer to the time of the accident, the panel notes that the employer did not dispute that the worker would have to turn to the left to go around a wall or other barrier in order to respond to such an incident. Based on our review of all of the information before us, the panel is satisfied that a medial meniscus tear is consistent with the mechanism of injury on December 28, 2017, which involved lateral and rotational/twisting forces on the knee.

The panel is also satisfied that the worker had an already compromised right knee joint in December 2017, as indicated on the March 3, 2018 MRI which revealed significant pre-existing degenerative conditions. Given the mechanism of injury, the worker's body habitus and the worker's already compromised right knee, the panel is of the view that it would not have taken much to trigger a change or tear in the worker's right knee.

The panel is further satisfied that surgery was appropriate and required to treat the worker's medial meniscal tear. Moreover, evidence since the surgery shows that it was successful in treating that injury. The worker was able to return to his full-time regular duties on October 27, 2018, approximately three weeks after the surgery. At the hearing, the worker said that he felt "100%" after the surgery, that it was "amazing," and that he feels really good now.

The panel notes that the operative report from the October 4, 2018 surgery states that the indication for procedure was "Medial meniscus tear, mediofemoral chondromalacia and synovitis." The panel is satisfied that responsibility should be accepted for the procedure to address the medial meniscus tear only as being related to the December 28, 2017. The panel is unable to find that the chondromalacia is related to that incident.

In the circumstances, the panel finds that the WCB is responsible for the October 4, 2018 surgery to address the medial meniscal tear only.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid after December 29, 2017 as a result of his December 28, 2017 workplace injury.

The panel therefore finds that the worker is entitled to further wage loss and medical aid benefits after that date.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of June, 2019