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 benefits in relation to the July 7, 2009 accident. A hearing was held on October 3, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss benefits in relation to the July 7, 2009 accident.

Decision

The worker is not entitled to further wage loss benefits in relation to the July 7, 2009 accident.

Background

On July 15, 2009, the worker who was employed as a plumber, reported to the WCB that he injured his left knee at work on July 7, 2009. He reported that after crouching down, and then getting up from that position, he felt a sharp shooting pain in the back of his left knee. The worker reported that he continued working that day and the next, and then sought medical treatment on July 9, 2009. 

The report from the worker's family physician arising out of the July 9, 2009 visit noted the worker was unable to squat or crouch down, had no swelling with good extension and flexion, but was tender and tight at the back of his knee. No diagnosis was provided and the physician referred the worker for physiotherapy, recommending he could work with restrictions of no squatting, bending or kneeling and limited duties for one to two weeks. 

The WCB accepted the worker's claim on July 21, 2009. 

The worker attended for a follow-up appointment with his family physician on July 22, 2009. The physician reviewed the x-ray of the worker's left knee taken on July 16, 2009, indicating no bone or joint abnormality, and diagnosed the worker with a soft tissue injury. On July 30, 2009, the worker contacted the WCB and advised that his employer could no longer accommodate him with his restrictions of no squatting, bending or kneeling. 

On August 17, 2009, the worker was discharged from physiotherapy as the worker's treating physiotherapist reported the worker's injury had resolved and he had full range of motion, strength and functional abilities in his left knee. The physiotherapist stated that the worker could return to full duties. 

On August 19, 2009, the worker's treating physician reported that the worker was ready to return to work and he did so on August 20, 2009. 

On September 15, 2009, the worker contacted the WCB to advise that he had reinjured his left knee at work on September 9, 2009. He reported that while squatting at work, the symptoms had returned. He stated the July 7, 2009 workplace injury had resolved but that after September 9, 2009, he had difficulties again. The WCB advised the worker to file a new claim for this injury. In July 2012, the WCB canceled the September 9, 2009 claim and combined both accidents into the present claim. 

In a discussion with the WCB on July 31, 2012, the worker advised that he was let go by the employer in April 2010 and began working for another employer in August 2011. He stated that by December 2011, he was again having difficulties with his left knee due to bending and kneeling while performing his job duties. Due to the ongoing and increasing symptoms, the worker's family physician referred him for an MRI study and to see an orthopedic surgeon. The worker advised that the orthopedic surgeon recommended arthroscopic surgery and related the ongoing difficulties to the worker's July 2009 workplace accident. 

The WCB received a copy of the worker's MRI study of his left knee conducted on May 4, 2012 which indicated an inferior extending horizontal tear of the posterior horn of the lateral meniscus. The July 16, 2012 report from the worker's orthopedic surgeon indicated that the worker had reported to the surgeon that he had episodic trouble with his left knee since the workplace accident in 2009. The surgeon noted he discussed the MRI with the worker who wanted to proceed with the arthroscopic surgery. 

The medical information was reviewed by a WCB medical advisor on August 13, 2012 who was of the view that the meniscal tear shown on the May 4, 2012 MRI was degenerative and not related to the workplace accident. The WCB medical advisor further opined that the worker's diagnosis arising out of the accident of July 7, 2009 was a soft tissue injury that had resolved by the time he returned to work in August 2009. 

On August 16, 2012, the worker was advised that he was not entitled to further benefits as a relationship between his current difficulties and his 2009 workplace injury could not be established. 

On October 9, 2012, the worker's treating orthopedic surgeon provided a letter to the WCB stating that the worker's initial diagnosis was incorrect and that the mechanism of injury was compatible with a tear. The orthopedic surgeon disagreed with the WCB medical advisor's opinion that the worker's meniscal tear was degenerative. 

On October 30, 2012, the WCB medical advisor opined that the MRI findings of May 4, 2012 showed a degenerative tear and not a traumatic one. Further, the WCB medical advisor provided that the length of time between the workplace accident of July 7, 2009 and the MRI study of May 4, 2012 was too long and another incident may have occurred. The worker was advised on October 31, 2012 that the WCB's earlier decision remained unchanged. 

After meeting with the worker on November 1, 2012, the WCB requested a copy of the October 10, 2012 surgery report from worker's left knee arthroscopy surgery. The worker's file, along with the surgery report, was reviewed by a WCB orthopedic consultant on November 12, 2012. The WCB orthopedic consultant opined that the worker's ongoing difficulties and arthroscopic surgery were as a result of long-standing degenerative changes and not related to the workplace accident of July 7, 2009. 

The worker was advised by letter dated November 16, 2012 the WCB would not accept responsibility for his October 20, 2012 surgery and he was not entitled to further benefits. 

The worker's representative requested reconsideration of the WCB's decisions to Review Office on February 6, 2019. In his submission, the worker's representative provided a further medical report dated October 17, 2016 from the worker's orthopedic surgeon, together with copies of imaging studies taken of both the worker's knees. 

Review Office determined on February 21, 2019 that the worker was not entitled to additional wage loss benefits on the basis that the worker had made a full recovery from his July 7, 2009 workplace accident and as there was no evidence to support a relationship between the worker's current ongoing difficulties and the July 7, 2009 accident. 

The worker's representative filed an appeal with the Appeal Commission on March 12, 2019. 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. 

Section 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 s 4(2), a worker 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. 

Worker's Position 

The worker was represented by legal counsel who made submissions on his behalf. The worker answered questions posed by his counsel as well as those of members of the panel. 

The worker's position, as stated by his counsel, is that the meniscal injury, first identified by the MRI study of May 4, 2012 was the result of the worker's compensable workplace accident of July 2009 and that the injury incurred in 2009 did not ever fully heal and was the cause of the worker's continuing complaints of pain through the period following that accident. 

The worker's counsel noted that there are conflicting medical opinions as to the causation of the worker's ongoing left knee concerns and urged the panel to rely upon the opinion of the orthopedic surgeon set out in his October 17, 2016 report, indicating that the worker's pre-patellar bursitis was clearly work related and that the worker is unable to continue in his pre-accident employment as a result of the meniscal tear and associated wear and tear changes in the worker's knees. 

The worker's counsel stated that the worker is seeking wage loss benefits from 2009 to the present, as the worker is no longer able to do the work of a plumber. The worker, in his testimony, confirmed to the panel that he has experienced pain in his left knee on and off since this accident and as a result has missed work from time to time. He noted fluctuating pain since 2011 that is aggravated by kneeling activities. He indicated that the knee is not symptomatic when he is not kneeling on it. Sometimes, the knee is aggravated by his preferred sleep position; however, the worker indicated he has made accommodations to address this. 

The worker testified that in 2011 he noted his left knee would ache when driving or in a position where it was bent more than 90 degrees. This led him to seek further medical attention, ultimately resulting in the MRI study of May 4, 2012 and referral to the orthopedic surgeon and the arthroscopic surgery that took place on October 10, 2012. 

In sum, the worker's position is that the injury to the worker's left knee incurred on July 7, 2009 was more than just a soft tissue injury and did not resolve in a few months, but rather resulted in the meniscal tearing first identified in 2012 and continues to impact the worker's ability to engage in his pre-accident employment. The worker should therefore be entitled to ongoing wage loss benefits for the period since 2009. 

Employer's Position 

The employer did not participate in the hearing

Analysis 

The question for determination is whether or not the worker is entitled to further wage loss benefits in relation to the July 7, 2009 accident. In order for the worker's appeal to succeed, the panel must find that the worker's current left knee difficulties flow from the compensable injury sustained as a result of the accident of July 7, 2009. The panel is not able to make that finding. 

The panel considered the clinical findings set out in the medical reports following the accident of July 7, 2009: 

• On July 9, 2009, the worker's family physician noted no swelling with good extension and flexion, with tenderness and tightness at the back of his knee. 

• The July 16, 2009 x-ray of the worker's left knee indicated no abnormalities in the bone or joint. 

• On July 20, 2009, the treating physiotherapist noted the worker could fully weight-bear, but had pain with resisted flexion, negative leg tests, tenderness along the medial joint line and tenderness and pain in the biceps femoris. 

• On July 22, 2009, the worker's family physician reported no swelling and good flexion when seated, with the worker still unable to squat. 

• On August 4, 2009, the worker's family physician diagnosed a soft tissue injury to the worker's left knee and again noted no swelling, with the worker reporting aching and positive results from physiotherapy. 

• The August 17, 2009 physiotherapy discharge assessment report indicated that the worker's complaints have resolved and that he has full range of motion and strength and his functional abilities are resolved. 

• The August 19, 2009 report from the worker's family physician indicates that the worker feels much better and is ready to return to work. 

These reports suggest that the symptoms of the worker's knee injury arising out of the accident of July 7, 2009 were resolved by the time he returned to work on August 20, 2009. 

The worker claimed re-injury of his left knee in September 2009 and attended a sport medicine clinic. The chart notes from that visit on September 10, 2009 indicate the worker was experiencing pain behind his right knee with bending. Swelling was noted. The physician recommended physiotherapy and noted pain with resisted flexion and full passive extension. The notes indicate no concerns resulting from McMurray's testing or relating to effusion. 

The worker also attended a physiotherapy assessment on October 14, 2009. The physiotherapist noted swelling in the pre-patella bursa and tenderness to palpation at the back of the worker's knee, over the plantaris muscle. A home stretching program was recommended and the worker did not return for any further treatment. 

The worker confirmed to the panel that he returned to work after the September injury, at first on modified duties and by January 2010 on regular duties. He stated that his left knee has continued to be painful when aggravated since that time. However, by the worker's own reports in his testimony before the panel, there were periods of time after fall 2009 when he was symptom-free. He indicated, for example, that he was able to play sponge hockey in the period of 2009-2012, although he quit playing at some point thereafter due to ongoing back complaints. 

There is no medical information relating to the worker's left knee for the period between October 2009 and April 2012 when the worker requested his family physician to order x-rays of both knees. The note from the left knee x-ray, taken April 13, 2012 indicated no findings. 

The May 4, 2012 MRI study revealed the worker's inferior extending horizontal tear in the posterior horn of the lateral meniscus. The worker's position is that the tear, first identified in May 2012, was caused by the accident of July 7, 2009 or the re-injury of September 9, 2009. 

To support this position, the worker relied upon the report of the orthopedic surgeon dated October 17, 2016 that sets out the worker's pre-patellar bursitis involving the left knee is clearly work-related. The panel notes however that the orthopedic surgeon does not, in this report, specifically relate the worker's meniscal tear to either the accident of July 7, 2009 or September 9, 2009. 

Further, in the same report, the orthopedic surgeon sets out that: 

"Lateral meniscal tearing in [and] of itself should not suffice to disable one from carrying out the normal duties intended upon a plumber. The associated wear and tear changes however and the combination, particularly with involvement of both knees, can overall make it difficult for one to carry out the repetitive squatting, crouching and climbing etc…." 

The panel considered the reported mechanism of injury. The worker's report indicates the injury occurred simply as a result of standing up from a crouched position, without any indication of trauma, torsion or twisting. The panel finds that this mechanism of injury is not consistent with the degree of tearing of the worker's meniscus as indicated in the MRI study of May 4, 2012. 

The medical findings rather point to the worker's ongoing problems in his left knee as arising out of a degenerative condition. Two WCB medical advisors reviewed the file in October and November 2012 and came to the same conclusion, namely, that the worker's left knee shows evidence of degenerative changes that "…are of extreme long-standing and did not arise out of the compensable injury of July 7, 2009." 

The evidence before the panel does not provide a foundation to determine that the left knee meniscal tearing that resulted in arthroscopic surgical intervention in October 2012 was related to the workplace injury of July 7, 2009, nor the further injury of September 9, 2009. 

Having considered the totality of the evidence on the worker's file and presented by the worker in the hearing, the panel finds the evidence does not support a causal relationship between the current left knee difficulties and the injury incurred in 2009. The panel concludes on a balance of probabilities that the worker's current left knee difficulties do not flow from the compensable injury sustained as a result of the accident of July 7, 2009. The worker is therefore not entitled to further wage loss benefits arising out of the accident of July 7, 2009. 

The worker's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of November, 2019