Decision #89/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after February 12, 2019. A teleconference hearing was held on July 9, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after February 12, 2019.
That the worker is entitled to benefits after February 12, 2019.
On September 25, 2018, the worker reported to the WCB that he injured his left knee at work on September 19, 2018. The worker said he was repeatedly "bending down and cutting long thick weeds" and his knee swelled up.
On September 23, 2018, the worker was seen by a sports medicine physician. The worker reported to the physician that he had increasing pain in his left knee after repetitive squatting and bending at work. The physician noted the worker was tender over his medial joint line, which tenderness increased with a McMurray test. The physician diagnosed the worker with an acute medial meniscus tear, queried an old ACL tear, and referred the worker for an MRI. He also recommended that the worker remain off work for 3 days and that restrictions of no run/jump or squat and the ability to sit or stand as comfortable would be required on his return.
In a discussion with a WCB adjudicator on October 1, 2018, the worker confirmed the mechanism of injury, noting that he was crouching down, cutting weeds and sticks that were growing in the yard, and using a garden saw to cut the sticks. He said "…he was kneeling and felt sharp pain that caused him to stand back up. When he crouched he could not stay there he felt in his right side of his left knee right under the knee." The worker's claim was accepted by the WCB on October 4, 2018, and payment of benefits commenced.
At an initial physiotherapy appointment on October 4, 2018, the physiotherapist noted the worker's reporting of left knee pain located in the inside/medial aspect of his knee, pain with full bending of his knee, and inability to fully straighten his leg when standing. The physiotherapist also noted that the worker was walking with a limp. The physiotherapist diagnosed the worker with a medial meniscus tear and recommended restrictions of seated sedentary activities, noting no bending, crouching, lifting, twisting, climbing stairs, squatting, pivoting. On October 9, 2018, the employer advised the WCB they could not accommodate the worker within his restrictions.
On October 16, 2018, the worker underwent an MRI of the worker's left knee, which indicated:
1. Small amount of chondromalacia at the medial patellar facet and a thickened medial patellar plica may be due to medial patellar plica syndrome.
2. Small nonspecific focus of edema in the infrapatellar fat pad anterior to the anterior root of the medial meniscus.
At a follow-up appointment with his treating sports medicine physician on October 18, 2018, the physician updated the worker's diagnosis to "medial patellar plica and fat pad syndrome" and recommended the worker continue with light duties, if available.
On October 31, 2018, the worker's file was reviewed by a WCB sports medicine consultant, who opined that the worker's diagnosis was a soft tissue injury. The WCB consultant noted that although the initial diagnosis was thought to be a medial meniscus tear, the MRI findings later confirmed no acute issues with the meniscus and noted other conditions which were pre-existing in nature. The consultant opined that the mechanism of the workplace injury, repetitive squatting, likely "…led to the development of medial patellar plica/infrapatellar fat pad symptoms." The consultant went on to opine that with conservative treatment and activity modification, improvement in pain and function would usually be expected in 6 to 8 weeks.
On January 4, 2019, the worker attended a further follow-up appointment with his treating sports medicine physician. The physician noted the worker's left knee improved after an injection in December 2018, but as there was only limited improvement, the physician referred the worker for a consultation with an orthopedic surgeon.
On January 28, 2019, the worker attended for a call-in examination with the WCB sports medicine consultant. In her notes from that examination, the consultant noted findings which included no acute inflammation in the worker's left knee, functional left knee mobility, full ligament stability of the left knee, negative meniscal provocative tests, no muscle atrophy at the worker's left thigh or calf, and localized tenderness to the worker's left knee. The consultant opined that the worker's probable diagnosis was non-specific left knee pain, and that a significant physical impairment from the workplace injury was no longer demonstrated notwithstanding reported symptoms.
The sports medicine consultant concluded that "An ongoing medical relationship between the workplace activities…and the current presentation would no longer be supported" and that "…ongoing restriction (sic) are no longer medically recommended in terms of the workplace injury." On February 5, 2019, the WCB's Compensation Services advised the worker that they had determined he had recovered from the effects of his compensable injury and his entitlement to benefits would end on February 12, 2019.
On February 7, 2019, the worker attended a follow-up appointment with his treating sports medicine physician. In his report to the WCB relating to that visit, the physician recommended that the worker attempt a graduated return to work at four hours a day for one week, followed by six hours a day for one week, then full hours.
On February 21, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker indicated that he returned to work on February 13, 2019 and experienced constant pain in his left knee, due to his knee being constantly bumped and run into. He said he advised his employer of his increased symptoms, and the employer told him to remain off work.
On February 22, 2019, Review Office returned the worker's file to Compensation Services for further investigation. On March 12, 2019, in a memorandum to file, the worker's case manager documented discussions with her WCB sector manager and with the worker. On March 18, 2019, Compensation Services advised the worker there was no change to the earlier decision terminating his entitlement to benefits on February 12, 2019.
On June 5, 2019, the worker contacted the WCB to advise that he had surgery on his left knee on May 27, 2019. On June 10, 2019, the worker submitted a copy of the surgical report from the treating orthopedic surgeon dated May 27, 2019, and requested that Compensation Services reconsider their decision to end benefits.
On June 21, 2019, the worker's file, including the surgical report, was reviewed by the WCB sports medicine consultant, who stated that the "…left knee arthroscopy reporting identifies patellar chondromalacia and medial patellar plica" and the additional medical information did not change her March 14, 2019 opinion and its supporting rationale. On June 24, 2019, Compensation Services advised the worker that there would be no change to their earlier determination that he had recovered from the effects of his compensable injury and his current difficulties were not related to that injury.
On July 2, 2019, the worker requested that Review Office reconsider Compensation Services' June 24, 2019 decision. In his submission, the worker indicated that he returned to work but continued to be in great pain, was told by his employer to stay off work, and had not yet returned to work. The worker reported that he had surgery on his left knee on May 27, 2019 due to his ongoing injury, and requested that the previous decisions be reversed.
On July 24, 2019, Review Office determined that the worker was not entitled to benefits beyond February 12, 2019. Review Office found that the worker's difficulties after February 12, 2019, including the May 27, 2019 surgery, were not related to the accepted compensable strain injury but to the worker's pre-existing conditions, and as such, the worker was not entitled to benefits after February 12, 2019.
On January 28, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on July 9, 2020.
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.
Subsection 27(1) of the Act states 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 220.127.116.11, Pre-existing Conditions (the "Policy"), addresses the issue of pre-existing conditions when adjudicating claims. The purpose of the Policy is outlined, in part, as follows:
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.
The worker was represented by a worker advisor, 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 representative, and the worker and his representative responded to questions from the panel.
The worker's position was that he had not recovered from his September 19, 2018 workplace incident as of February 12, 2019, and is entitled to benefits beyond that date.
The worker's representative submitted that the evidence supports the worker suffered an overuse injury to the medial plical band in his left knee as a result of his work activities on September 19, 2018. The representative submitted that the workplace accident enhanced a pre-existing condition of the worker's medial patellar plica, resulting in medial patellar plica syndrome. It was submitted that the workplace accident also enhanced a pre-existing condition of chondromalacia which was in the same area.
The worker's representative submitted that the worker's pre-existing symptoms were asymptomatic prior to September 19, 2018. She noted that the evidence showed that up until that date, the worker was able to perform work which was physically demanding on his knees, and there was no evidence he had any difficulty completing any of his work-related duties.
The worker's representative noted that the worker's symptoms following the workplace incident were consistently in the medial patellar area of his left knee, specifically at the medial patellar plica. The representative submitted that all of the evidence supported that the worker's pain was specifically in this area and related to a thickening of the medical plica in the worker's left knee.
The worker's representative stated that it was important to distinguish between a plica, being a fold of tissue which is a developmental finding, and plical band syndrome, which is an overuse injury. The worker noted that while the worker had a pre-existing condition, he did not experience plical band syndrome until the workplace activities in September 2018. It was submitted that the worker's treating sports medicine physician, his orthopedic surgeon and the WCB sports medicine consultant all confirmed that the worker had plical band syndrome.
The worker's representative noted that conservative treatment was trialed, but did not yield measurable evidence of a sustained improvement in function, and the worker continued to experience symptoms and difficulties with his left knee. It was submitted that the worker had not recovered from his September 18, 2019 incident when he returned to work on February 13 and 14, 2019, and he experienced a recurrence of his injury at that time. His symptoms flared and he was unable to continue to do his work. It was not until the worker underwent surgery on May 27, 2019 that the issue of his thickened medial plica was resolved.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to benefits after February 12, 2019. 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 required benefits beyond February 12, 2019 as a result of his September 19, 2018 workplace incident. The panel is able to make that finding, for the reasons that follow.
The panel is satisfied, based on the medical evidence which is before us, that the worker had pre-existing left knee conditions of medial plica and chondromalacia.
At the hearing, the worker's representative and the panel carefully reviewed with the worker his workplace duties in general, his activities on September 19, 2018, and the mechanism of injury. Based on our review and consideration of the evidence, on file and as presented at the hearing, the panel is satisfied that the worker's work activities on September 19, 2018 were consistent with the onset of an overuse injury.
The panel accepts that the worker's diagnosis of a left knee medial patellar plica syndrome, and finds, on a balance of probabilities, that the onset of this condition was causally related to the worker's September 19, 2018 workplace activities as an enhancement of his pre-existing left knee medial plica.
The panel further finds that the evidence supports that the worker had not recovered from his workplace injury when he returned to work on February 13 and 14, 2019. The evidence shows that the worker attempted to return to work at the time, but his symptoms flared and he was unable to continue working.
The panel notes that the worker remained off work until his surgery on May 27, 2019. In his September 12, 2019 opinion which was submitted in advance of the hearing, the treating sports medicine physician stated that the May 27, 2019 surgery had "…shown an excellent response post operatively." In response to questioning at the hearing, the worker also stated that "…the outcome of the surgery is my knee feels great now. I can bend with no pain…" and that he had not had any problems with his knee since the surgery.
The worker's representative also argued that the worker's pre-existing chondromalacia was aggravated or enhanced by his September 19, 2018 workplace incident. The panel is unable to accept that argument. It is the panel's understanding that chondromalacia is generally age-related and degenerative in nature. While the surgical report indicates that a "blister of chondromalacia involving the extreme medial facet of the patella" was identified and debrided, that panel is not satisfied that the evidence supports that this condition was related to the September 19, 2018 incident.
The panel also notes that the treating sports medicine physician stated in his September 12, 2019 opinion, that the worker likely had some pre-existing chondromalacia of the patellar femoral joint and that "At the very least these activities may have aggravated if not enhanced his patellar femoral changes…" (emphasis added) The physician went on to state that "My clinical impression has been that his symptoms were more related to his medial plica rather then (sic) patellar femoral articular surface…" In the circumstances, the panel is unable to find that the worker's pre-existing chondromalacia was aggravated or enhanced as a result of his workplace incident.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required benefits beyond February 12, 2019 as a result of his September 19, 2018 workplace incident. The worker is therefore entitled to benefits after that date.
The worker's appeal is allowed.
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 4th day of September, 2020