Decision #78/19 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits. A hearing was held on April 29, 2019 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further benefits.
Decision
That the worker is not entitled to further benefits.
Background
The worker reported to the WCB on November 24, 2017 that he injured his right knee and head in an incident at work on November 20, 2017, which he described as follows:
Around 7:30am, I was on the bobcat trailer and my right foot got caught on a strap. It twisted my leg and my right knee hung on the strap. I fell off the trailer. I rolled and landed on the back of my head.
The worker attended at a local emergency department on November 20, 2017, and was diagnosed with a mild head injury and a knee strain. An x-ray of the worker's right knee/patella taken at that time noted "There is a small joint effusion. No acute fracture is seen. Patellar position appears normal."
At an appointment with a sports medicine physician on November 29, 2017, the worker reported that he was unable to bend his knee and felt symptoms of his knee locking since the workplace accident. The treating physician noted tenderness and medial pain, along with a small effusion, and the worker was referred to an MRI.
The worker's claim was accepted and payment of wage loss and other benefits commenced.
On December 12, 2017, the worker was seen for a follow-up appointment with the treating sports medicine physician. The physician provided a diagnosis of a bucket-handle medial meniscus tear/locked knee and requested that the WCB facilitate a referral to an orthopedic surgeon.
The worker was seen by an orthopedic surgeon on January 5, 2018. The orthopedic surgeon noted that he was familiar with the worker as he previously performed an "…arthroscopic intervention on the right knee…on May 15, 2013. This was for a flap tear of the medial meniscus." The orthopedic surgeon further opined:
[The worker] continues to experience ongoing disability and pain in the medial aspect. On physical examination, the right knee was effused, with tenderness along the medial joint line. With certain movements, he experiences a snapping sensation. Ligaments, collaterals, and cruciates are of normal integrity.
MRI performed on December 17, 2017, makes mention of unstable tearing of the medial meniscus with a flipped fragment.
It should be noted that on March 15, 2017, [the worker] had an MRI performed of the right knee, with no clearly defined meniscal tear. The December 17 post injury MRI shows evidence of a flipped fragment posteriorly, consistent with the mechanism of injury.
On January 17, 2018, the WCB authorized the proposed right knee arthroscopy for the worker's right knee medial meniscus tear, and the surgery was performed on March 7, 2018.
After the surgery, the worker attended for follow-up appointments with his treating orthopedic surgeon and started post-surgery physiotherapy treatments. At a physiotherapy appointment on May 25, 2018, the physiotherapist noted that the worker had an ache to his right knee, increased pain with end range movements and decreased range of motion. It was further noted, however, that the worker could return to his regular duties on May 25, 2018.
On May 29, 2018, the worker had a further follow-up appointment with his treating orthopedic surgeon. The orthopedic surgeon noted that the worker had "diffuse knee pain" and that an x-ray taken that day noted "subtle signs" of arthrosis of the worker's right knee. The orthopedic surgeon stated that the worker was to be considered for an injection. The worker received the injection from the treating sports medicine physician on June 6, 2018.
On June 19, 2018, the worker advised the WCB that he would be returning to his full regular duties on June 25, 2018.
At a follow-up appointment with the treating sports medicine physician on July 25, 2018, the worker advised that the injection did not help and he was still having symptoms of intermittent locking in his knee. The physician referred the worker for a repeat MRI of his right knee. The MRI was performed on August 15, 2018, and indicated:
IMPRESSION:
There is mucoid degeneration of the ACL now with further bone marrow edema within the tibial insertion site.
A small horizontal tear is present within the medial meniscal remnant posteriorly.
Hyaline cartilage changes as previously.
On August 29, 2018, the worker's file was reviewed by a WCB orthopedic consultant, who opined, in part:
The diagnosis of the compensable injury was accepted as a partial tear of residual medial meniscus right knee.
This has been addressed by the surgical procedure of March 7, 2018.
The current diagnosis relates to pre-existing bi-compartmental degenerative changes identified at surgery, a straight x-ray, and two MRI studies. Note also that the MRI identification of mucoid degeneration of the anterior cruciate ligament is unusual, and unrelated to the compensable injury, and may be a source of symptoms particularly affecting full knee flexion.
…
It is now almost six months since surgical treatment of right knee arthroscopy and minimal residual meniscectomy.
Recovery from this procedure to full time regular duties would be anticipated in 10-12 weeks maximum.
…
The prior restriction of:
• Unable to perform heavy work, kneel, squat or twist, was considered recovered by June 13, 2018.
• There is no indication to resume workplace restrictions.
On September 5, 2018, the treating sports medicine physician recommended that the worker be referred to another orthopedic surgeon for a second opinion.
On September 6, 2018, the worker was verbally advised by the WCB that his current knee difficulties were not related to his workplace injury. The worker advised the WCB that he would be seeking further information from his sports medicine physician to support his current symptoms were related. On September 12, 2018, the treating sports medicine physician provided the WCB with his opinion that the worker's persistent symptoms were a result of his compensable injury and that he was still recommending that the worker be referred for a second opinion. The medical information from the treating sports medicine physician was provided to the WCB orthopedic consultant who advised, on September 19, 2018, that his August 29, 2018 opinion that the worker's current difficulties were not related to his compensable injuries remained unchanged.
On September 21, 2018, the WCB's Compensation Services advised the worker that he was not entitled to further benefits as it had been determined that he had recovered from his compensable injury and his ongoing difficulties were due to significant pre-existing findings in his right knee.
On September 25, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that he had constant pain in his knee, with no improvement post-surgery. He further submitted that his latest MRI indicated that there was still horizontal tearing and his treating sports medicine physician had recommended surgery to repair the tear which could address the ongoing pain.
On November 20, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office accepted the WCB medical advisor's opinion that medical literature research did not identify a relationship between the etiology of mucoid degeneration of the anterior cruciate ligament and knee trauma. Review Office found that the injection to the worker's right knee on June 6, 2018 was treatment directed to the worker's pre-existing right knee condition.
Given the accepted diagnosis of a partial tear of the medial meniscus, the worker's return to his regular job duties and the WCB medical opinions provided, Review Office further found, on a balance of probabilities, that the worker had recovered from the workplace injury and his ongoing right knee complaints were a result of his pre-existing degenerative knee condition which was neither caused nor structurally changed by the workplace accident.
On November 27, 2018, the worker 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 self-represented. The worker provided a written submission in advance on the appeal, and made a presentation to the panel. The worker's position is that he has not recovered from his compensable injury and is entitled to further benefits.
The worker reviewed the history of his right knee injuries. The worker submitted that the pre-existing condition with his knee is a work-related medial meniscus injury, which dated back to 2012 and was not processed as a WCB claim as he was told the surgery could be expedited if it was not dealt with as a WCB claim.
The worker's position is that he has continuous knee pain post-surgery, with no improvements. He noted that the treating sports medicine physician recommends follow-up knee surgery to repair remaining tearing in his knee and address the constant pain.
The worker said he underwent surgery on May 15, 2013 to address his right knee injury, which went well. The surgery provided instant relief and five or six days later he was back at work with no residual pain.
The worker said he experienced a "tweak" in his back in early 2017 and returned to see his sports medicine physician. Then, on November 20, 2017, he injured his knee at work and filed this claim. He noted that an MRI showed damage to his right knee again. The WCB accepted his claim but advised that they would only cover surgery for a meniscal tear. The worker described various treatments that he went through over the next few months, without much success. He said that on August 15, 2018, he had another MRI, which he hoped would provide a starting point to address his difficulties, but the WCB cut off his benefits shortly after that, saying that they had fixed what they were going to fix and he was on his own.
The worker submitted that he subsequently tried injections but they did not work. He said he is not getting better, and feels broken. He had further surgery on his knee on March 4, 2019 and managed to take four weeks off work for that, but was scrambling to do so. He has been doing what he can, but is looking for help so he can get better.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to further benefits. 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 November 20, 2017 workplace injury. The panel is unable to make that finding.
The worker has an accepted claim for a right knee medial meniscus tear.
The panel notes that the worker has had three surgeries since 2013 for his right knee, each of which was successful in its own way. The worker advised that the 2013 surgery was good, and provided him with immediate relief. At the hearing, he also indicated that between 2013 and 2017, his knee felt pretty good, about 90% of what it was before.
Following the November 20, 2017 accident, right knee arthroscopic surgery was authorized for treatment of the right knee medical meniscus tear, and performed on March 7, 2018. Medical information on file indicates that the surgery was generally successful in addressing this injury.
Information on file and at the hearing shows that the worker was subsequently able to return to work and has continued to engage in physical labour. The panel recognizes that the worker continues to experience some discomfort and is unable to engage in various activities to the same extent as previously, but is unable to find that this is as a result of his compensable injury.
Based on the information on file and as presented at the hearing, the panel is satisfied that the worker's compensable injury has been successfully addressed.
In reviewing the information which is before us, the panel has also been unable to identify a causal relationship between the worker's ongoing symptoms or complaints and his compensable injury which was surgically addressed.
MRI's of the worker's right knee had also shown significant findings of pre-existing conditions, including chondromalacia and other degenerative conditions which were not accepted as part of the claim. The panel notes that MRI's of the worker's right knee done December 17, 2017 and August 15, 2018, respectively, show a continuing progression in such degenerative findings over a period of less than one year. The panel is satisfied that these degenerative findings and conditions are not related to the compensable injury.
The panel notes that the worker indicated his treating physician suspected that he had an ongoing tear in his right knee. In a letter dated December 6, 2018, the treating sports medicine physician stated, in part:
In summary, [the worker] had an injury to his knee as above with injury to the medial meniscus. Unfortunately his symptoms have remained unchanged despite arthroscopy. Give the temporal onset between pain symptoms and his injury and given the information provided above, it is my opinion that on balance of probabilities his current symptoms remain as a result of his compensable injury.
The worker was referred to a second orthopedic surgeon, who noted in a letter dated February 21, 2019, that the worker:
…would like to try another knee arthroscopy with a view to performing partial medial meniscectomy. While I do think this has a good chance of improvement I am concerned that at least a portion of his pain is stemming from his underlying arthritis and as such would not likely change much post-operatively. There is no question that at some point in the future barring any other medical concerns that [the worker] would likely require knee replacement surgery.
The panel notes that the treating orthopedic surgeon performed the third surgery on the worker's right knee on March 4, 2019, and in a follow-up report dated March 21, 2019, the surgeon reported that they "…did not find a dramatic recurrent tear which was somewhat hoped for to explain his ongoing disability."
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 November 20, 2017 workplace injury. The panel therefore finds that the worker is not entitled to further wage loss or medical aid benefits.
The worker's appeal is dismissed.
Panel Members
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 28th day of June, 2019