Decision #82/19 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits. A hearing was held on November 7, 2018 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further benefits.
Decision
The worker is not entitled to further benefits.
Background
The worker reported to the WCB on May 19, 2017, that she injured her right hand and left knee on March 24, 2017 at work. She described the incident as follows:
I was coming into work and walking on the sidewalk. I slipped on ice and fell to the ground injuring myself.
In an initial discussion with the WCB on May 19, 2017, the worker advised that she fell on the ice at work on March 24, 2017 and landed on her left side. She advised that she had put out her right hand to stop the fall. She reported the injury to her employer that day. As she had been feeling ongoing symptoms since the accident, she attended at the hospital on May 17, 2017 and was diagnosed with a ganglion on her left foot and a Baker's cyst on her left knee. An x-ray of the worker's left knee taken on the same date indicated "No bone or joint abnormality is identified."
The worker attended at her family doctor's office on May 23, 2017 for a follow-up appointment from the hospital. The worker's doctor noted that the worker had a lump on the back of her left knee and that her knee was "tender along left medial joint line and up medial side" but that it was a "large knee, I can't appreciate a baker's cyst." The doctor diagnosed the worker with a left knee medial collateral ligament strain and recommended the worker attend physiotherapy. Light duties were also recommended for a couple of weeks.
On May 24, 2017, the worker attended an initial appointment with the physiotherapy. She was diagnosed with a grade 2 ulnar collateral ligament strain with respect to her right hand injury and a grade 1 left knee sprain. The physiotherapist recommended the following restrictions for the worker: "avoid pivoting with her left knee and no repetitive deep squatting with her left knee, to be reviewed in two weeks".
The WCB accepted the worker's claim for a left knee strain on May 30, 2017 and payment of wage loss and other benefits commenced.
The worker attended a follow-up physiotherapy appointment on July 6, 2017 at which time her restrictions were amended as follows: "no repetitive gripping, no repetitive deep squatting and no pivoting."
At the request of the WCB, a WCB sports medicine advisor reviewed the worker's file and on July 17, 2017 opined:
1. Based on the injury mechanism (noting the absence of initial medical information in March/April 2017) the probable dx (diagnosis) was a left knee strain and right hand/thumb strain. There is now documentation of right hand pain and reduced grip strength with normal mobility and intact ligament testing on July 6/17 PT reporting. These findings would probably support a current diagnosis of nonspecific right hand pain. Also noted is diffuse knee pain with posterior knee swelling and reduced active mobility, which would be consistent with a diagnosis of nonspecific knee pain.
2. At this point in time, now 16 weeks post injury, the current presentation would no longer be accounted for in terms of a left knee strain or right hand/thumb strain.
3. Recovery times for a strain are usually within the order of 4-6 weeks.
On July 17, 2017, the WCB advised the worker that it had been determined, after a review of the information on her file, that she had functionally recovered from the strain injuries she sustained on March 24, 2017 and there was no further entitlement to benefits after July 24, 2017.
The worker's doctor provided a report dated July 18, 2017 where an MRI study had been requested for the worker as there was now a question whether or not the worker had a meniscal tear of her left knee. The worker was advised by the WCB on July 20, 2017 that the new medical information submitted did not change the earlier decision on her claim.
An MRI study conducted on the workers' left knee on August 14, 2017 was provided to the WCB. The MRI study indicated:
1. Radial tear at the junction of the posterior horn and posterior root ligament of the medial meniscus. Additional undersurface fraying at the body of the medial meniscus.
2. Mild patellofemoral joint osteoarthritis.
The worker's claim was once again reviewed by the WCB sports medicine advisor on September 4, 2017. The WCB sports medicine advisor indicated that the workplace injury was unlikely to cause any condition beyond a knee strain.
The worker was advised by the WCB on September 11, 2017 that based on a review of the medical information submitted by the WCB sports medicine advisor, there was no change to the July 17, 2017 decision.
The worker submitted an October 3, 2017 report from her treating orthopedic surgeon noting that a medial meniscus tear was identified on the August 13, 2017 MRI and surgery to repair the tear was recommended. The report of the orthopedic surgeon was provided to the WCB sports medicine advisor who provided a further opinion on December 12, 2017:
(sic) the medical evidence on this file does not support the development acute meniscus tear in relation to the workplace injury due to the absence of supportive initial medical documentation. The newly submitted medical information from the treating PT citing an examination on May 5/17 in fact notes negative meniscus provocative testing.
The main contention from [the worker's] healthcare practitioners appears to be that the current left knee issues relate to the March 24/17 injury because symptoms were not present prior to the injury, rather they developed after the injury.
On December 18, 2017, the worker was once again advised by the WCB that the new medical information submitted did not change the July 17, 2017 decision.
The worker's representative requested reconsideration of the WCB's decision to Review Office on January 5, 2018. The worker's representative noted that their position was that the worker was entitled to further benefits as her ongoing left knee difficulties, on a balance of probabilities, were a direct result of the March 24, 2017 workplace accident.
In particular, the worker's representative noted that the worker should be entitled to benefits relating to her arthroscopy surgery that was set for February 8, 2018. On February 20, 2018, the employer's representative provided a written submission in response and the worker's representative submitted a further response on February 27, 2018.
The surgical report dated February 8, 2018 was submitted to the WCB and Review Office requested an opinion from the WCB orthopedic advisor, which opinion was provided on March 7, 2018:
1. The arthroscopic findings in the left knee on 8-Feb-2018 included:
a) A large complex tear of the medial meniscus
b) Slight chondromalacia of the medial femoral condyle
c) Small anterior horn tear of the lateral meniscus
2. It is not possible to comment on the chronicity of these findings, based on arthroscopic appearance alone…Complex tears are usually considered to be of degenerative etiology rather than the result of acute trauma.
3. There is a possibility that the workplace injury could have caused some additional tearing of the medial meniscus…Had there been a significant meniscal tear on 24-March-2017, one would have expected considerable difficulty walking and weight bearing, to an extent that an individual would generally seek medical attention within a week or so […].
4. Based on the clinical reports on file, it is my opinion that the need for surgery is related to the natural history of a degenerative medial meniscus tear, rather than the effects of the workplace injury.
The WCB orthopedic advisor's opinion was shared with the parties and the worker's representative provided a further response on March 15, 2018.
On March 22, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office agreed with the WCB orthopedic advisor's opinion that the arthroscopic surgery was related to the natural history of a degenerative tear rather than the effects of the workplace accident.
Review Office noted the delay in the onset of the worker's symptoms did not support a more serious injury beyond a strain and there was no requirement for further benefits as strain type injuries recover within a short period of time.
The worker's representative filed an appeal with the Appeal Commission on March 26, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 22, 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'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 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 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.
The Policy further provides 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 WCB will accept responsibility for the full injurious result of the compensable injury.
Worker's Position
The worker was represented at the hearing by her union representative. In addition, written submissions were provided in advance of the hearing.
At the hearing, the worker's position was that she was entitled to further benefits, specifically in relation to her February 8, 2018 arthroscopic surgery, on the basis that the evidence supports her ongoing knee difficulties being a direct result of her March 24, 2017 accident, on a balance of probabilities.
The worker states that after the accident on March 24, 2017, she reported it to her employer, noting injuries to her left knee and right side of her body. The worker assumed that the report to the employer would also be shared with the WCB, which it was not.
The worker submitted that she continued to work following her fall, doing modified duties based on restrictions that had been in place as a result of a previous workplace injury. The worker maintained that she had ongoing difficulties with her left knee after the accident, but thought that they would resolve on their own with time. That is why the worker did not seek immediate medical attention.
The worker saw a general practitioner, as well as a physiotherapist who had taken over her treatment for her prior injuries. While the worker’s early clinical findings did not implicate a structural injury to her knee, when conservative treatment measures did not address her symptoms, the worker’s treatment provider suspected that she had torn her meniscus. The worker submits that this was eventually confirmed by MRI.
With respect to the MRI, the worker accepts that while it showed changes that likely pre-dated the worker’s accident, the worker disagreed that the persistent symptoms and pain were due solely to a pre-existing degenerative condition, as was concluded by Review Office.
With respect to whether acute meniscus tears are typically associated with an initial period of disability where the symptoms would have been so severe that the worker would have had to seek out immediate medical attention, it was the worker’s position that significant tearing is not required in order to obtain entitlement to benefits. In sum, while the worker accepts that she had degenerative changes in her knee prior to the accident, it is suggested that but for the workplace accident, she would not have the persistent symptoms and would not have required surgery. The worker submitted that the additional information obtained by the panel was supportive of her position.
Employer’s Position
The employer was represented by their Worker's Compensation Coordinator who was in agreement with Review Office’s decision. It was the employer’s position that the worker’s ongoing left knee issues and the need for surgery were, on a balance of probabilities, solely related to the natural progression of a degenerative medial meniscus tear, which was not caused, aggravated or enhanced by the March 24, 2017 accident.
With respect to the worker’s submission that she reported the March 24, 2017 accident, the employer responded that the worker completed a “Notice of Injury to Employer” form, outlining the particulars of the accident.
In the section titled “Do you intend to consult a medical professional”, the worker responded in the negative. On March 27, 2017 the employer signed off on the “Notice of Injury” form. As the worker was not missing time from work as a result of the incident and was not intending to seek medical attention, the employer submitted that there was no obligation on the part of the employer to submit any information to the WCB at that time.
Further, with respect to the worker being off work on March 31, April 20 and April 23, 2017, it was the employer’s position that there was no indication that the worker had specifically informed her employer that she was off because of her left knee on account of the March 24, 2017 accident. Had this occurred, the employer would have prepared and provided the appropriate incident report form because of the time loss being work related.
The employer was not made aware that a WCB Worker Incident Report form was required until the WCB adjudicator contacted the employer on May 19, 2017. After being contacted by the WCB, the employer provided the necessary form and submitted it to the WCB on May 23, 2017. On the whole, in accordance with the evidence on file, it appeared to the employer that the worker did not seek any medical attention for her left knee until early May 2017.
Regarding the issue of whether or not there were any restrictions in place for the worker during the relevant time, the employer submits that a review of the file demonstrates that none of the workers restrictions during the relevant time were related to a specific WCB claim.
Finally, with respect to the additional information obtained by the panel, it was the employer’s position that it was supportive of its position that the workers left knee meniscus tear and the resulting need for surgery were not related to the March 24, 2017 incident.
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 suffered a loss of earning capacity and/or her need for medical aid and is related to the March 24, 2017 workplace accident. The panel is unable to make that finding.
The panel notes that the WCB initially accepted responsibility for a left knee strain and later terminated her benefits as of July 24, 2017. This appeal focuses on whether the worker's ongoing left knee issues, identified in an August 14, 2012 MRI and in a February 8, 2018 arthroscopic surgery are related to this claim.
Based on our review of all the information on file and the evidence provided at the hearing, the panel is satisfied, on a balance of probabilities, that the worker had significant pre-existing left knee issues that were not aggravated or enhanced on March 24, 2017, and that the worker had only a left knee strain which had resolved. The panel further finds that the worker was not under any physical restrictions related to her left knee condition at the time of the accident and that the worker's current knee symptoms were not present at that time.
In arriving at our decision, the panel finds and places considerable weight on the fact that the worker did not report any knee symptoms until many weeks after the March 24, 2017 accident. In particular, upon reviewing the clinical notes provided by the worker’s physiotherapist, whom the worker was seeing on regular visits after March 24, 2017 accident, none of the entries dated March 31, April 12, 18, 20, 25, 27, 2017 make any mention of symptoms or concerns with respect to her left knee. It wasn’t until May 4, 2017 that there appears a first mention of left knee concerns.
Further, given the totality of the information, the panel places significant weight and accepts the WCB medical advisor's opinion of September 4, 2017:
[…]
2. Acute meniscus tears are typically associated with initial period of disability (gait abnormality, effusion, reduced ROM, giving-out, etc.), however there is no medical attention in relation to her left knee until nearly 8 weeks post-injury.
The first medical report is from a May 17/17 ER assessment where no acute inflammatory findings or ligamentous instability is noted. A slight bulging of the left posterior knee was thought to be a Baker's cyst (May 23/17 family physician assessment later noted that a Baker's cyst was not really appreciated) and x-ray findings were normal period radiology reporting. Based on this information, a condition beyond a knee strain does not appear to have been probable as a result of the workplace injury.
Although medial knee pain is noted in subsequent medical reporting, there is no way to determine when the MRI-noted medial meniscus tear arose - note that such tears would be prevalent in the worker's age cohort and can be present on a degenerative basis, as well there is MRI evidence of medial meniscus fraying in addition to tearing which would typically imply the presence of degenerative changes at the meniscus.
Given the available medical information on this file, the development of an acute medial meniscus tear does not appear to be supported in relation to the workplace injury.
The panel is of the view that had the March 24, 2017 accident resulted in the traumatic tear of the worker’s left meniscus as is alleged, the worker would have experienced more immediate pain and discomfort than what has been demonstrated by the evidence.
As a result, the panel finds that the worker is not entitled to benefits.
The worker's appeal is dismissed.
Panel Members
C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
C. Monnin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of July, 2019