Decision #69/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They were not entitled to benefits after May 24, 2013 in relation to the November 15, 2012 accident; and
2. Responsibility should not be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident.
A teleconference hearing was held on April 22, 2021 to consider the worker's appeal.
1. Whether or not the worker is entitled to benefits after May 24, 2013 in relation to the November 15, 2012 accident; and
2. Whether or not responsibility should be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident.
1. The worker is not entitled to benefits after May 24, 2013 in relation to the November 15, 2012 accident; and
2. Responsibility should not be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident.
The worker filed a Worker Incident Report with the WCB on January 2, 2013 reporting an injury to their right knee that occurred at work on November 15, 2012 when they slipped getting out of a vehicle and fell onto their right knee. The worker reported having “…throbbing pain in the inner right knee after.” The worker attended for medical treatment with a sports medicine physician on January 2, 2013. The worker advised the physician they had sought treatment for a similar type of injury to their right knee approximately 2.5 years previously and physiotherapy had been recommended. The treating sports medicine physician noted a normal right knee x-ray, tenderness in the worker’s medial joint, full range of motion and a positive McMurray test. The physician queried a diagnosis of a right knee meniscal irritation vs a tear and provided the worker with a prescription for physiotherapy. Modified duties were recommended.
On January 3, 2013, the WCB contacted the worker to discuss their claim. The worker confirmed that they reported the incident to the employer right after it happened but continued to work as their knee did not bother them at first; however, the difficulties with their knee worsened and they advised the employer they were not able to work overtime due to the difficulties. They further noted they were currently performing light duties.
A Physiotherapy Initial Assessment was conducted on January 7, 2013. The worker reported a constant throbbing in their right knee and was diagnosed with a medial collateral ligament strain of their right knee. The worker underwent an MRI study of their right knee on March 20, 2013 which indicated a peripheral horizontal tear of the body of the medial meniscus and a remote injury to the superficial medial collateral ligament. At a follow-up appointment with the treating sports medicine physician on April 4, 2013, a medial unloader brace was recommended for the worker while performing their job duties requiring them to walk. A gradual return to work over a period of 6 weeks was also recommended.
At a further follow-up appointment with the sports medicine physician on June 11, 2013, the worker advised the physician they felt their knee was improving but noted their right hip was irritated from using the unloader brace. The treating sports medicine physician recommended the worker continue with physiotherapy and wean off the use of the brace. On July 4, 2013, the worker’s treating physiotherapist applied to the WCB for funding for additional treatment, noting the worker’s right hip and buttock area were painful, and requested permission to assess and treat the worker’s right lumbar/pelvis/hip as a side effect of using the unloader brace. The worker’s file was reviewed by a WCB physiotherapy advisor on July 18, 2013 who opined the worker’s right hip and low back had not been adjudicated as part of their claim and as no clinical findings had been provided, no additional funding for physiotherapy was recommended.
On September 16, 2013, the worker was seen for a further follow-up appointment with their treating sports medicine physician. The physician updated the worker’s diagnosis to a right hip capsular sprain/strain and gluteal strain and noted the worker’s reporting of right hip and lower back issues due to wearing the unloader brace. On October 17, 2013, the WCB advised the worker it had been determined their hip/low back difficulties were not related to their right knee injury sustained as a result of the November 15, 2012 workplace accident.
The worker requested reconsideration of the WCB’s decision to Review Office on October 31, 2013. In their submission, the worker provided a chronology of their claim relating to their right hip difficulties and noted their disagreement with the decision not to provide coverage for those difficulties. Review Office spoke with the worker on November 18, 2013 to gather further information. The worker advised they had not had issues with their low back or hip prior to the workplace injury but did have normal aggravation related to their job duties that involve walking. Further, the worker noted it was one to two weeks after they started using the unloader brace that they began to experience difficulties in their hip and their treating sports medicine physician had advised those difficulties were related to their use of the brace. At the request of Review Office, the worker’s file was reviewed by a WCB medical advisor on November 18, 2013. The advisor opined the “…use of an unloader knee brace is not typically associated with symptoms/impairments of the hip, pelvis or lower back.” Review Office determined on December 17, 2013, the worker’s right hip condition was not related to the use of the unloader brace in their recovery from the compensable right knee injury. Review Office noted the worker’s treating sports medicine physician had provided a new diagnosis of right hip osteoarthritis aggravation and lumbar strain, which did not support the cause of the worker’s right hip difficulties being related to the use of the unloader brace.
On December 19, 2013, a Doctor Progress Report was received by the WCB for the worker’s follow-up appointment on December 16, 2013 with their sports medicine physician. The physician noted the worker was initially treated for their right knee with the unloader brace, which the worker reported caused issues with the right hip and low back. Further, the physician noted the worker advised they had not had issues with those areas prior to the workplace accident; however, an x-ray indicated pre-existing osteoarthritis in the worker’s right hip. On December 30, 2013, the worker requested Review Office review the new medical information provided by the sports medicine physician and reconsider the earlier decision. Review Office again requested the worker’s file be reviewed by a WCB medical advisor, who provided on January 21, 2014, “Such an aggravation or strain is unlikely to be caused by use of a knee brace. Use of a knee brace allows for improvements of function at the affected joint and is not recognized to cause problems…Such splints and braces would not be used in thousands of patients around the world if their use was likely to be associated with the development of additional injuries at other sites.” On March 17, 2014, the employer provided Review Office with a submission in support of the earlier decision; the worker provided a response to that submission on April 4, 2014. On April 8, 2014, the worker was advised the new information had been reviewed by Review Office but there would be no change to the December 17, 2013 decision.
The WCB received a report from an orthopedic surgeon on March 8, 2016. The surgeon assessed the worker’s right knee and noted the worker reported having difficulties with that knee since the workplace accident in 2012. The surgeon requested authorization from the WCB to perform a medial meniscus repair. The worker’s file was reviewed by a WCB medical advisor on May 9, 2016 who provided that the worker had regained function in their right knee by the latter part of 2013 and as there was no further medical information on the worker’s file since that time, the worker’s current right knee difficulties were not medically accounted for in relation to the November 15, 2012 workplace accident. On May 11, 2016, the worker’s treating orthopedic surgeon was advised funding for the proposed right knee surgery was not approved by the WCB. The worker was advised by the WCB on June 6, 2016, responsibility for their current right knee difficulties was not accepted and they were not entitled to further benefits.
The worker underwent a further MRI study of their right knee on January 17, 2017 which indicated a horizontal undersurface tear junction of the body and posterior horn medial meniscus with interiorly flipped fragment and a possible nondisplaced vertical tear anterior horn lateral meniscus. A report of the worker’s treating orthopedic surgeon was received on February 13, 2017 and noted the worker was tentatively scheduled for an arthroscopic procedure and again requested authorization from the WCB for the procedure. The worker’s file was again reviewed by a WCB medical advisor on February 27, 2017 who opined the January 17, 2017 MRI indicated the natural progression of the worker’s pre-existing degenerative condition in their right knee. The worker was advised on March 8, 2017, there would be no change to the earlier decision and they were not entitled to further benefits in relation to their current right knee difficulties.
On September 5, 2017, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. The representative noted the workplace accident may have enhanced or aggravated the pre-existing condition in the worker’s right knee. The employer provided a submission in support of the WCB’s decision to Review Office on October 31, 2017. The worker’s file was again reviewed by a WCB medical advisor who provided on November 2, 2017, the pre-existing condition of the worker’s medial meniscus was not materially affected by the workplace accident. A copy of the medical advisor’s opinion was provided to the worker’s representative, who provided a response on November 16, 2017. Review Office found on November 29, 2017 the worker was not entitled to benefits after May 24, 2013. Review Office agreed with and relied on the opinion of the WCB medical advisor that the worker’s pre-existing condition was not aggravated or enhanced by the November 15, 2012 workplace accident.
The worker’s representative filed an appeal with the Appeal Commission on September 14, 2020 with respect to the worker’s entitlement to benefits after May 24, 2013 and on December 17, 2020 with respect to responsibility for the worker’s right hip difficulties. A teleconference hearing was arranged for April 22, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act ("the WCA"), regulations and policies of the WCB's Board of Directors.
As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act ("the GECA"). Subsection 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of his employment or is disabled by reason of an industrial disease due to the nature of the employment is entitled to compensation. Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.
Subsection 4(3) of the GECA provides that compensation under subsection (1) shall be determined by the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty.
Subsection 4(1) of the WCA provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) of the WCA provides that 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 WCA 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 WCA 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.
Section 37 of the WCA provides that where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
The WCB's Board of Directors has established WCB Policy 18.104.22.168, Pre-existing Conditions (the "Policy"), which addresses the issue of pre-existing conditions when administering benefits. The stated purpose of the Policy is identified, 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 an advocate who provided a written submission and responded to questions from the panel.
The worker’s position with respect to entitlement of benefits after May 24, 2013, in relation to the November 15, 2012 accident can be summarized as:
• The mechanism of injury was capable of causing, and more likely than not, caused traumatic tearing of the medial meniscus.
• The worker's treating healthcare providers diagnosed a symptomatic medial meniscal tear at the initial medical appointments following the workplace accident.
• The March 2013 MRI results provided diagnostic evidence to corroborate the earlier clinical diagnosis.
• While the worker may have experienced symptomatic and functional improvement of the right knee in the spring of 2013, such improvement does not equate to healing of the medical meniscal tear.
• The worker continued working with a compensable medial meniscal tear, with that injury eventually needing a surgical repair.
The worker's advocate referenced the May 31, 2017 report from a physician with an interest in occupational medicine that the horizontal medial meniscal tear seen on March 2013 MRI was "consistent with the November 15, 2012 mechanism of injury and the initial clinical diagnosis."
The worker's advocate responded to statements made by WCB medical consultants that the type of tearing seen on MRI is typically degenerative in nature. The advocate pointed out these were general statements and the information on file, including opinions from the WCB medical consultants are mixed with regards to the compensability of the worker's medial meniscal tear.
The worker's advocate referred the panel to earlier decisions of the Appeal Commission that involved horizontal tears of the medial meniscus.
The worker's advocate submitted the panel should conclude that the mechanism of injury was capable of causing acute medical meniscal tearing.
The worker's advocate reviewed many of the medical reports on file and submitted they establish that while the worker's medical meniscal tear had improved by the spring of 2013, it remained present and continued to affect the worker. The worker experienced a prolonged course of difficulty with the right knee, which was the catalyst for surgery.
The worker's advocate submitted the worker is entitled to additional wage loss and medical aid benefits, inclusive of coverage for the right knee surgery and recovery from that procedure.
The worker's position with respect to responsibility for his right hip difficulties related to the November 15, 2012, accident can be summarized as:
• A medial unloader brace was prescribed for the right knee that was injured on November 15, 2012. The WCB accepted financial responsibility for the brace.
• The worker reported experiencing onset of new right hip area difficulties after approximately two months of use. The worker was participating in a graduated return to work at that time.
• The right hip difficulties are compensable based on WCB Policy 22.214.171.124 that refers to further injuries subsequent to a compensable injury.
The worker's advocate noted the brace was prescribed in relation to the worker's right knee injury and the WCB accepted financial responsibility for it. The advocate referred to medical reports that support the worker's right hip area difficulties were likely initially caused by an altered gait and walking pattern due to wearing the brace.
The advocate submitted the worker continued to suffer right hip difficulties even after discontinuing use of the brace given the continued involvement in job duties and lack of effective treatment for the injury.
The worker's advocate further submitted that if the worker's right hip area difficulties were due to osteoarthritis, as has been suggested, the physical therapy treatment the worker received in spring/summer 2017 would not have resolved the hip difficulties. It is also likely that the worker would have experienced subsequent hip area difficulties after resuming regular work duties in the summer of 2017, which has not happened.
The worker advocate asked the panel to conclude that the worker's right hip area/gluteal muscular injury arose predominantly because of the worker's use of a medial unloader brace, which caused need for both medical aid and an ongoing loss of earning capacity.
The employer was represented by a human resource specialist who made a presentation to the panel and responded to questions from the panel.
Respecting the entitlement to benefits after May 24, 2013 for the right knee, the employer noted there are several reports that indicate the worker had regained function of his right knee:
• April 4, 2013 report from sports medicine doctor that states the worker’s right knee pain was improving with mild medial joint line tenderness and a negative McMurray’s test, that was noted previously to be positive.
• April 22, 2013 physiotherapy report that showed a numeric pain scale of 2 and lower extremity function of scale of 60, no clinical findings with a recommendation of a return to full duties. Discharged from physiotherapy.
• June 10, 2013 report from sports medicine physician indicated the worker was doing well with minimal tenderness of right knee medial joint line and full range of motion.
• September 16, 2013 report from sports medicine physician indicated the worker reported no pain to his right knee.
• October 24, 2013 report from sports medicine physician that indicated worker’s knee was doing well.
• February 22, 2017 report of WCB Medical Consultant states "On the basis of the clinical findings of minimal medial joint line tenderness and full range of motion as identified in the June 10, 2013 medical report, [the worker’s] physician recommended a return to work on June 11, 2013.
The employer also noted:
• Worker claims to have had ongoing issues since 2013 with his right knee. There are no medical reports on file for his right knee after the later part of 2013. It is not until 2016, on a report from orthopedic surgeon, there is mention of his right knee. This is an approximate 3-year time frame, where there is no medical evidence (clinical or otherwise) to support an ongoing issue.
• In October 2018, five years after being discharged from treatment for his injury in August, 2012, the worker indicated that he was having ongoing problems with his knee. WCB noted that there was no objective medical or employer reports to verify this, and as such they did not accept responsibility for the claim.
Respecting the responsibility for the worker’s right hip difficulties in relation to the November 15, 2012 accident, the employer submits the difficulties are not compensable. The basis for this position is related to multiple medical reviews and diagnoses that point to a long-standing condition of osteoarthritis:
• Worker’s treating physician in 2013 had diagnosed the worker's right hip area difficulties as being due to osteoarthritis. On November 18, 2013 the treating physician reported that the worker had aggravated his osteoarthritic right hip.
• On January 29, 2013, the worker indicated he attended a chiropractor regularly for back maintenance and that his hip was out when he was assessed for his knee.
• On November 18, 2013 the worker stated that he has always had issues with his back and hip being sore. He stated that he attended a chiropractor regularly to keep his body in shape so that he had less issues with his job in general.
• A November 18, 2013, letter from worker's physician, “the unloader brace was used for his right knee medial meniscal peripheral tear and was successful with no further complaints of knee pain.” It continues "…he was last seen in June 2013 and had been doing well regarding his right knee.” It further continues “…X rays were done on today’s visit of both of his hips as well as his lower back revealing a normal lumbar spinal architecture however his right and left hips show degenerative osteoarthritic type changes, particularly worse on his right hip. His arthritis is however, pre-existing from his condition and MAY have likely been aggravated with the use of the unloader brace.”
• On January 21, 2014 the WCB Medical Consultant writes: "Use of a knee brace allows for improvements of function at the affected joint and is not recognized to cause problems further along the kinetic chain as suggested by the sports physician." The employer notes this is consistent with the treating physician’s statement that the use of the brace was successful with no further complaints of knee pain.
The worker has an accepted claim for compensation related to their workplace accident on November 15, 2012. The worker is appealing two issues:
Issue 1: Whether or not the worker is entitled to wage loss or medical aid benefits after May 24, 2013. 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 medical aid beyond May 24, 2013, as a result of their workplace accident. The panel is unable to make that finding.
Issue 2: Whether or not responsibility should be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that worker's right hip symptoms/difficulties are causally related to, or a consequence of the workplace injury. The panel is unable to make that finding.
Based on our review of all the information and submissions which are on file and were presented in advance of and at the hearing, the panel is satisfied, on a balance of probabilities, that the worker had functionally recovered from the workplace injury by May 24, 2013 and that the worker's right hip symptoms/difficulties are not causally related to the compensable injury.
The panel reviewed the worker's entire claim file and considered the evidence and submissions made at the teleconference hearing. The panel noted the complexity of the claim due to comingling of medical opinions related to the right knee injuries, left knee injury and right hip difficulties. We will address each issue separately.
Issue 1: Whether or not the worker is entitled to benefits after May 24, 2013 in relation to the November 15, 2012 accident
The panel notes there are multiple medical reports which indicate that functional recovery from the right knee injury occurred. The panel placed weight on the WCB medical advisor’s opinion from November 17, 2017, that stated in part:
“It is considered that recovery has occurred with respect to the workplace injury of November 12 (sic), 2012, whether the injury at that time involved the medial collateral ligament or was non-specific in nature. The current difficulties are most likely related to the natural history of pre-existing medial meniscal pathology.”
In addition, the panel references other medical reports related to the right knee function.
April 4, 2013 “…right knee pain improving with mild medial joint line tenderness and a negative McMurray’s test, previously noted to be positive.”
April 19, 2013 “…numerical pain scale of 2…no clinical findings and recommend a return to full duties."
June 10, 2013 “…minimal tenderness of the right knee medial joint line and full range of motion.”
October 24, 2013 “…horizontal tears of the medial meniscus are typically pre-existing and degenerative in nature rather than manifestations of acute trauma…the natural history of the pre-existing degenerative condition of a meniscus is of generally progressive waxing and waning of symptomology…”
November 18, 2013 “…the unloader brace was used for his right knee medial meniscus peripheral tear and was successful with no further complaints of right knee pain.”
November 9, 2016 “…appeared that the worker regained right knee function toward the latter part of 2013….no further medical information October 24, 2013, until March 8, 2016 report from an orthopedic surgeon…”
The panel reviewed the May 31, 2017 report from a physician with an interest in occupational medicine. The panel found that it did not provide sufficient causal connection or clinical evidence of a relationship between the November 15, 2012 workplace injury and the symptoms described approximately over 3 years later.
There was an absence of further treatment of the right knee after May 24, 2013 until the orthopedic surgeon became involved in 2016. The panel acknowledges the worker’s comments that stated “the knee felt off” in relation to his state of recovery, however, it is believed that this is consistent with a diagnosed degenerative condition of the medial meniscus.
The panel finds the worker had functionally recovered from the right knee injury by May 24, 2013 and notes the worker did not seek further treatment of the right knee after May 24, 2013 until 2016. The panel determines the worker is not entitled to benefits after May 24, 2013.
Issue 2: Whether or not responsibility should be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident.
The panel acknowledges that the right hip symptoms were noted during the time that the worker utilized an unloader brace related to the accepted treatment of his right knee injury. However, the unloader brace was used for less than 10 weeks and the worker was weaned off of it when he reported irritation in that area. The worker returned to their regular duties at that time.
The panel considered the May 31, 2017 review and assessment made the physician with an interest in occupational medicine related to the worker’s right hip and lower back issues. The physician states in part: “Diagnosis of chronic myofascial strain and dysfunction of right gluteal musculature is, therefore, causally related to his 2012 right knee meniscal injury. [The worker] did not have these indicative symptoms prior to the right knee work injury… He does have mild range restriction of the right hip more than the left, which correspond to the radiographic changes on which the diagnosis of hip osteoarthritis is based. However, the correlations of this diagnosis to his symptoms and clinical exam findings is weak.”
The panel prefers and accepts the WCB medical consultant opinion that “… pelvis/hip issues appear to have predated use of the brace…use of an unloader brace is not typically associated with symptoms/impairments of the hip, pelvis or lower back.”
The panel places weight on the evidence related to pre-existing right hip osteoarthritis, and, based on the balance of probabilities, finds the pre-existing osteoarthritis was the primary causal factor in creating the hip difficulties in question. It was noted that issues and treatment related to the right hip had been identified prior to the November 15, 2012 knee injury.
The panel finds that responsibility should not be accepted for the worker's right hip difficulties in relation to the November 15, 2012 accident.
In summary, the panel finds that the worker did not suffer a loss of earning capacity or require medical aid after May 24, 2013 as a result of the November 15, 2012 workplace accident. The panel accepted medical opinions that osteoarthritis was the primary cause of the worker's right hip difficulties, and therefore responsibility should not be accepted for the worker’s right hip difficulties in relation to the November 15, 2012 accident.
The worker’s appeal is dismissed.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of June, 2021