Decision #116/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to accidents of January 10, 2017 or July 17, 2017. A hearing was held on July 17, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the accidents of January 10, 2017 and/or July 17, 2017.
That the worker is not entitled to further benefits in relation to the January 10, 2017 accident or the July 17, 2017 accident.
Date of Accident: January 10, 2017
The worker filed a Worker Incident Report with the WCB on January 13, 2017, reporting that she injured her right knee in an incident at work on January 10, 2017. She described the incident as:
I was walking through the gate, as I was walking I ended tripping over a hard snow bank. I landed on my right knee. I finished my shift.
On January 11, 2017, the worker was seen at a walk-in clinic. It was noted that x-rays taken that day were normal and the worker was provided with restrictions of no stairs and no lifting. The worker was seen at another clinic on January 16, 2017 where she reported persistent pain in the medial and lateral aspect of her right knee. The attending physician noted "minimal swelling" and tenderness to the medial joint line. The physician queried whether the worker had a medial meniscus tear to her right knee and recommended she attend an appointment scheduled for January 24, 2017 with a sports medicine physician. The worker's claim was accepted and payment of benefits commenced.
At the appointment with the sports medicine physician on January 24, 2017, the worker noted that the pain in her knee was worse with stairs and weight bearing, but she was feeling better overall. The sports medicine physician examined the worker and noted medial joint line tenderness. The physician queried whether the worker had a medial meniscal tear and took the worker off work for two weeks.
On January 27, 2017, the worker attended an initial physiotherapy assessment, where she reported "pain everywhere in knee, sharp shooting at times, feels very unstable." The physiotherapist noted that the worker had swelling in her knee and a positive McMurray's test, and diagnosed a right meniscus tear/irritation. The physiotherapist recommended restrictions of no repetitive up/down stairs, no squatting, kneeling, crouching, jogging or running, no lifting over 20 pounds, a maximum 15 minutes of walking and rest as required.
On January 29, 2017, the worker returned to work with restrictions. Due to persistent medial knee pain, the treating sports medicine physician referred the worker for an MRI, which was performed on March 8, 2017. The MRI indicated a "small amount of grade 3 chondromalacia on the weightbearing surface of the medial femoral condyle. No meniscal tear demonstrated."
At a follow-up appointment with the treating sports medicine physician on March 16, 2017, the MRI report was reviewed and the physician recommended that the worker continue with restricted duties for a further two weeks, then return to regular duties. On March 30, 2017, the treating sports medicine physician noted that the worker had full range of motion in her knee, with medial joint line tenderness and diagnosed the worker with "medial knee pain secondary to chondromalacia improving." On April 3, 2017, the employer confirmed that the worker returned to her full, regular duties effective March 31, 2017.
On May 3, 2017, Compensation Services advised the worker that as she had not attended for physiotherapy treatment since March 2017 and had been cleared to return to her regular duties as of March 30, 2017, they had determined she recovered from the effects of her January 10, 2017 workplace accident.
Date of Accident: July 17, 2017
On August 4, 2017, the worker reported to the WCB that she had re-injured her right knee, and was advised to file a new claim. On the Worker Incident Report filed with the WCB later that day, the worker reported injuring her right knee in an incident on July 22, 2017, which was later confirmed with the employer to be July 17, 2017. The worker described the incident as:
I ran to a code minimum 1/2 mile away and up hill and my right knee gave out. Walked back and finished my shift. Called into work the next day.
On July 27, 2017, the worker attended the walk-in clinic, where she reported that her knee "flairs (sic) up and calms down" and that she had increased pain. The attending physician recommended light duties for the worker, with restrictions of no stairs, no lifting, no walking more than ten minutes every two hours, essentially only paperwork and sitting, until August 11, 2017. The claim was accepted and payment of wage loss benefits commenced.
On August 15, 2017, the worker was seen by her treating sports medicine physician. She reported that the pain was more on the medial aspect of her knee and seemed to be worse with stairs and standing. The physician noted there was "no swelling or effusion" and the worker's knee was "tender anteromedial joint line." The sports medicine physician diagnosed the worker with right knee pain and queried whether there was aggravation of her underlying chondromalacia and meniscal pathology. The physician recommended that the worker continue on light duties for another four weeks and referred her to an orthopedic surgeon.
The worker was seen by the orthopedic surgeon on August 29, 2017. The worker reported that she had some symptoms of catching and pain in the patellofemoral distribution, but that it had recently improved slightly. The surgeon noted on examination that the worker had full range of motion, a mild patellar tilt and intact ligaments. Treatment options were discussed with the worker and it was decided to try an injection into her knee to see if it would settle her pain symptoms. At a follow-up appointment on September 28, 2017, the orthopedic surgeon noted that the worker was "still struggling with her symptoms" and it was decided to proceed with a right knee arthroscopy and open lateral release.
On December 5, 2017, the worker's files for both claims were reviewed by a WCB medical advisor. The WCB medical advisor noted that the accepted diagnosis for the worker's January 10, 2017 claim was a right knee strain/sprain. The medical advisor further noted that there was a finding of grade III chondromalacia, which was indicative of a pre-existing degenerative process involving the worker's medial right knee. The WCB medical advisor opined that the natural history of the pre-existing degenerative condition was of "generally progressing waxing and waning" of symptoms that may be associated with variably reduced knee function. The WCB medical advisor also noted that the information on the worker's July 17, 2017 claim file indicated the worker described the pattern of her right knee symptoms as "having good days and bad days" and her attending physician indicated that her knee flares up and calms down. The WCB medical advisor opined that this history was congruent with the "waxing and waning" nature of a pre-existing degenerative condition of the worker's right knee medial compartment.
The WCB medical advisor further opined that the medically accounted for diagnosis in relation to the worker's July 17, 2017 claim was a right knee soft tissue injury, which was substantiated by the worker's reported mechanism of injury of running 1/2 mile and up a hill, and the August 15, 2017 assessment from the treating sports medicine physician, who documented the worker's report of right knee medial pain and a clinical finding of right knee anteromedial joint line tenderness. The medical advisor further noted that the natural history of a right knee soft tissue injury is of recovery of function with conservative treatment, and that in the presence of a pre-existing degenerative condition, recovery may be prolonged. The WCB medical advisor noted that the treating orthopedic surgeon had not identified findings regarding the worker's right medial knee in his August 29 and September 5 and 28, 2017 assessments, in contrast to consistent findings of medial joint line tenderness following the January 10 and July 17, 2017 workplace activity, and the resolution of medial knee clinical findings supported that the worker's right knee soft tissue injury had resolved and no restrictions would be required.
On December 11, 2017, Compensation Services advised the worker that she was not entitled to further benefits after December 13, 2017, as they were unable to medically account for the worker's current right knee symptoms in relation to the workplace injury and had determined she had recovered from her injury.
On July 17, 2018, the worker's union representative submitted further medical evidence, including an Operative Report for a March 16, 2018 surgical procedure, and assessment notes and a June 5, 2018 opinion from the treating orthopedic surgeon, and requested that Compensation Services reconsider the May 3, 2017 decision on the January 10, 2017 claim and the December 11, 2017 decision on the July 17, 2017 claim. The union representative submitted that the worker likely had a recurrence of her January 10, 2017 compensable injury when her knee gave out running up a hill to respond to a code call in July 2017. The representative submitted that the worker had intermittent but persistent difficulties with her knee since her initial accident, and the second accident caused her ongoing dysfunction to become a disabling condition that ultimately required surgical intervention. It was submitted that the need for surgery was a WCB responsibility and the worker's benefits should be reinstated because her right knee symptoms and restrictions were the result of a workplace accident.
On August 31, 2018, the worker's claim files, including the medical information submitted by her representative, were reviewed by a WCB orthopedic consultant. The WCB orthopedic consultant opined that the medical evidence did not support the treating orthopedic surgeon's opinion regarding the worker's initial January 10, 2017 injury causing symptoms in her patellofemoral joint. The orthopedic consultant noted that a medical assessment done five days after the January 10, 2017 incident indicated "minimal swelling, no erythema, + tender MJL," an assessment by the worker's sports medicine physician on January 24, 2017 noted "patellofemoral grind negative," and a physiotherapy report of January 27, 2017 suggested a possible meniscal tear, and there appeared to be no evidence of patellofemoral symptoms or signs on these reports. The WCB orthopedic consultant further opined that the worker's diagnosis was a right knee sprain and contusion for the January 10, 2017 workplace injury, and a right knee sprain/strain for the July 17, 2017 workplace injury, both of which would have been expected to recover within at most six to eight weeks.
On September 14, 2018, Compensation Services advised the worker that they were unable to medically relate the current findings to the workplace injuries, and no further responsibility would be accepted for wage loss and medical aid benefits.
On September 21, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The worker's representative submitted that the treating orthopedic surgeon supported their position that responsibility for the worker's surgery should have been accepted by the WCB and that the surgery was necessary to treat the worker's ongoing right knee difficulties which were a direct result of her two workplace accidents. On November 28, 2018, the employer submitted a written response in support of the WCB's decision.
On November 30, 2018, Review Office determined that the worker was not entitled to further benefits with respect to either the January 10, 2017 or July 17, 2017 workplace accident. Review Office accepted that the compensable injuries involved a contusion and sprain/strains, and that recovery from those injuries would happen over a short period of time. Review Office noted that another diagnosis was offered by the treating orthopedic surgeon, but they were unable to find the patellar difficulties/knee tracking complaints were caused at the time of either accident.
On January 8, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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 184.108.40.206, 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 following definitions are set out in the Policy:
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 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 her representative and from the panel.
The worker's position was that the evidence supports that her ongoing right knee difficulties and need for surgery in March 2018 were, on a balance of probabilities, a consequence of her January 10 and July 17, 2017 workplace accidents, and she is entitled to further benefits, including medical aid and wage loss in relation to her March 16, 2018 surgery.
The worker's representative submitted that the medical evidence on the initial claim supports that the worker sustained a structural injury to her knee, which required surgical treatment at the patellofemoral joint and is responsible for her ongoing difficulties.
It was submitted that while the WCB orthopedic consultant opined that the worker's accidents resulted in two minor strain-type injuries, none of the medical reports from her treatment providers support the consultant's diagnoses. It was further submitted that although the WCB orthopedic consultant opined that the worker should have recovered from the effects of those injuries in no more than eight weeks, the evidence on file does not demonstrate that the expected improvement ever occurred.
The worker's representative submitted that despite a lack of documented complaints following the worker's return to work in March 2017, she never achieved the recovery she expected, and continued to experience difficulties, including difficulty with stairs, and pain, swelling and locking of the knee joint. The worker attempted to manage these difficulties on her own, until her knee gave way as she was running in response to a code, and required both time off work and medical attention. The representative noted that the worker maintained that this was not a distinct accident, but rather another instance or sign of her ongoing knee injury.
The worker was referred to the orthopedic surgeon, who concluded that her persistent right knee difficulties were likely coming from the patellofemoral joint, which was likely injured as a result of the original fall at work in January 2017. The surgeon performed arthroscopic surgery on the worker's right knee on March 16, 2018. The worker's representative noted that the worker had reported some improvement in her symptoms as a result of the surgery, but continues to have some difficulties with her right knee and has maintained that it has never been the same as before the January 2017 accident.
In conclusion, it was submitted that the worker's ongoing knee difficulties, and March 16, 2018 arthroscopic surgery are, on a balance of probabilities, a direct result of the injury she sustained at work on January 10, 2017, and the panel should acknowledge that her accidents caused, or at least significantly contributed to, her now-chronic right knee condition.
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 the worker is not entitled to further benefits in relation to the January 10, 2017 and July 17, 2017 accidents, and the worker's appeal should be dismissed.
The employer's representative submitted that based on the available information, neither workplace incident produced a structural injury to the worker's right knee requiring surgical treatment at the patellofemoral joints, and the need for surgery was not related in any way to either compensable injury.
The representative noted that initial reports show that the treating sports medicine physician talked of the worker's knee being stable. The sports medicine physician tested the worker more than once for a patellofemoral issue, but did not find anything, nor did any of the physicians who saw her at the initial stages.
A meniscal tear was initially queried, but the MRI subsequently showed that there was no tear. The MRI demonstrated evidence of mild chondromalacia in the knee joint, which was considered to be possibly creating pain.
Following the July 2017 incident, the worker was referred to the orthopedic surgeon, who suggested something different, and surgery was performed. The employer's representative noted that the treating orthopedic surgeon opined that the diagnosis was right knee patellofemoral pain with associated patellar tracking issues.
The employer's representative submitted that the WCB medical advisor and the WCB orthopedic consultant each provided strong and definite opinions, after reviewing all the information on both files, that there was nothing to suggest that a structural injury creating a patellar tilt requiring surgery was produced by the workplace accidents, and that the need for surgery was not related to either compensable injury. The representative submitted that, by comparison, the terminology used by the treating orthopedic surgeon, including that a patellofemoral injury or patellar tilt may have been caused when the worker landed on her knee, is weak and speculative at best, and does not meet the standard of a balance of probabilities.
The employer's representative stated that they were not denying the worker experiences pain in her knee, but they do not believe there is a link or nexus between the worker's pain and ongoing difficulties and the compensable injuries.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the accidents of January 10, 2017 and/or July 17, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid in relation to the January 10, 2017 and/or July 17, 2017 workplace accidents. The panel is unable to make that finding.
Based on our review of all of the information and submissions which are before us, on file and as presented at the hearing, the panel is satisfied that the worker suffered sprain/strain injuries as a result of the January 10, 2017 and July 17, 2017 workplace incidents. The panel is further satisfied that the worker recovered from her compensable sprain/strain injuries and that there is no entitlement to further benefits.
The panel notes that a diagnosis of a medial meniscus tear was initially queried. This was not supported, however, by either the March 8, 2017 MRI or the March 16, 2018 operative report. The MRI did demonstrate a "small amount of grade 3 chondromalacia on the weightbearing surface of the medial femoral condyle." The March 16, 2018 operative report, approximately one year later, however, shows that "there was some chondromalacia overlying the medial femoral condyle, but there was nothing that needed a particular intervention."
In response to questions at the hearing as to the diagnosis they were relying on, the worker's representative stated that the best evidence they had was the treating orthopedic surgeon's reference to patellofemoral pain, and added that in their view, the evidence as a whole suggested that the worker sustained a structural injury to her knee as a result of the initial incident that was responsible for her persistent difficulties.
The panel is unable to make that finding. In that regard, the panel places weight on the initial medical reports, and the absence of evidence in those reports of patellofemoral symptoms and signs or that the worker's knee was structurally affected. In particular, the panel places weight, on the report of the treating sports medicine physician who specifically assessed the worker for patellofemoral signs on January 25, 2017 and reported a negative patellofemoral grind test, and no indication of a patellar tilt. Following the MRI, the sports medicine physician further noted on March 16, 2017 that there was "nothing structural that we have to be overly concerned about." On August 15, 2017, following the July 17, 2017 incident, the sports medicine physician again assessed the worker and reported a negative patellofemoral grind test.
The panel is further of the view that the lack of findings on the March 16, 2018 operative report would suggest that no acute damage was sustained in the original injury.
The panel places weight on the December 5, 2017 assessment and opinion of the WCB medical advisor, who reviewed the worker's files on both claims and concluded that "etiology for patellofemoral symptomatology has not been established."
The panel also places weight on the August 31, 2018 opinion of the WCB orthopedic consultant who, following his review of the files, opined that "the findings at the surgical procedure do not identify any relationship to the two compensable injuries."
The panel is unable to place weight on the June 5, 2018 report from the treating orthopedic surgeon, who stated with respect to the first injury that the force when the worker landed directly on her knee "may have caused a forceful compression of the patellofemoral joint," and that this "can cause symptoms in the patellofemoral joint." The panel notes the speculative nature of those comments. The panel notes that the orthopedic surgeon first saw the worker on August 29, 2017, subsequent to the second injury. The panel further notes that although the letter is dated June 5, 2018, almost three months after the surgery, the physician does not refer to the findings or outcome of the surgery but rather states that "It is my opinion that the surgery proposed will address her injury that occurred at the workplace…"
The panel notes that the WCB orthopedic consultant was asked to consider whether the second injury in July 2017 aggravated or enhanced the original right knee injury. The panel accepts the orthopedic consultant's August 31, 2018 opinion that the surgery "carried out 16 months after the first right knee injury, and the information provided by the O/S [orthopedic surgeon] would not suggest that there was any deterioration of mild chondromalacia to the extent that would require surgical debridement" and that the "second compensable injury did not involve any direct force to the patellofemoral compartment, and therefore would not be considered capable of resulting in an aggravation of pre-existing chondromalacia."
In conclusion, the panel accepts the WCB orthopedic consultant's diagnoses of the initial injury as a right knee sprain/strain and contusion and the second injury as a right knee sprain/strain. The panel is satisfied that these diagnoses are consistent with the mechanisms of injury on file and as described by the worker at the hearing.
The panel acknowledges the references in information on the files and in the worker's evidence at the hearing to her ongoing pain and difficulties. The panel is unable to find, however, based on the evidence which is before us, that the worker's ongoing difficulties are related to the workplace incidents.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require further medical aid in relation to the January 10, 2017 workplace accident or the July 17, 2017 workplace accident. The panel therefore finds that the worker is not entitled to further benefits in relation to either of those accidents.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of September, 2019