Decision #86/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond October 7, 2018 in relation to the January 26, 2018 accident. A videoconference hearing was held on February 23, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after October 7, 2018 in relation to the January 26, 2018 accident.
That the worker is not entitled to benefits after October 7, 2018 in relation to the January 26, 2018 accident.
On February 1, 2018, the worker filed a Worker Incident Report with the WCB reporting an injury to his right knee that happened at work on January 26, 2018. The worker reported that he stepped off a 3 step bench "…awkwardly and when I landed I twisted my right knee."
The worker sought medical attention on January 30, 2018, reporting immediate pain along the medial aspect of the right knee, with swelling and increasing pain with weight bearing and twisting motion. The treating physician noted tenderness in the mid medial joint line and a possible positive Lachman test. The worker was diagnosed with a grade 1 medial collateral ligament sprain and possible anterior cruciate ligament (ACL) tear, and it was recommended he remain off work for two weeks. The worker also sought treatment from his chiropractor on February 1, 2018, who diagnosed him with a grade 1 to 2 degree medial collateral ligament strain with mild medial cartilage strain of the right knee.
The WCB contacted the worker on February 5, 2018 to discuss his claim. The worker confirmed the mechanism of injury and advised that he worked on January 30, 2018, but performed light duties only. The worker further indicated that he suffered a previous injury to his right leg in late 2005 or early 2006. On February 8, 2018, the WCB advised the worker that his claim was accepted and payment of various benefits started.
At a follow-up appointment with the treating physician on February 14, 2018, the worker was referred for an MRI of his right knee. The MRI, performed February 28, 2018, indicated chronic-appearing partial high grade ACL tear; medial meniscus tear; and suspicion for a tear at the anterior horn of the lateral meniscus.
The worker's file, including the MRI report, was reviewed by a WCB medical advisor on March 7, 2018. The medical advisor opined that the worker's current compensable diagnosis was a right medial ligament strain, as supported by the mechanism of injury and there was no evidence of acute structural derangement on clinical examination or imaging studies. The medical advisor further opined that the "chronic appearing partial high grade tear of the…ACL" and the "horizontal tear of the medial meniscus" were pre-existing in nature. The medical advisor also opined that recovery from a strain-type injury would be in the range of four to eight weeks, and that at five weeks post-injury, the worker was within the expected recovery timeframe. On March 27, 2018, the WCB Healthcare Department approved a request from the worker's treating physician for a facilitated consult with an orthopedic surgeon.
On April 10, 2018, the WCB medical advisor reviewed the worker's previous WCB claim file relating to a 2006 right knee injury. The mechanism of injury on that file was noted to be a fall from a four to five foot height, with the worker landing on his right leg and twisting his right knee. It was noted that a March 27, 2006 follow-up report from the then treating orthopedic surgeon indicated the worker had full range of motion and a stable right knee.
The worker was seen by another orthopedic surgeon on April 13, 2018, and arthroscopic surgery was recommended. On April 24, 2018, the WCB medical advisor reviewed the worker's file and advised that the WCB would fund a diagnostic arthroscopy of the worker's right knee joint, which surgery was performed on May 30, 2018.
On July 9, 2018, the WCB medical advisor reviewed the worker's file again. The medical advisor opined that the tearing of the medial and lateral menisci noted in the May 30, 2018 surgery report was likely medically accounted for in relation to the January 26, 2018 workplace accident. The WCB medical advisor further opined that other noted issues concerning a lax ACL, osteochondral loose body and tibial articular cartilage lesions were not medically accounted for in relation to the workplace accident.
On September 10, 2018, the worker attended at the WCB for a call-in examination with the WCB medical advisor. Following that examination, the WCB medical advisor opined that the worker's ongoing difficulties were not related to the accepted medial and lateral menisci tearing or repair of that tearing. The medical advisor also opined that the worker's treating orthopedic surgeon reported the worker's complex medial meniscus tear had been dealt with during the May 30, 2018 arthroscopic surgery, and the worker had reported no activity or accident since the surgery that would account for a new injury to that area. As such, the WCB medical advisor opined that "…a pathoanatomical explanation for [the worker's] current medial right knee pain and right knee tenderness is not evident."
The WCB medical advisor further opined that "There is no evidence on file, or by the information obtained at this call-in examination, to indicate that an alteration to the pre-existing ACL pathology or lateral tibial articular cartilage pathology, occurred from the January 26, 2018 workplace accident." On October 1, 2018, the WCB's Compensation Services advised the worker that they had determined he had recovered from the effects of the January 26, 2018 workplace injury and would not be entitled to further benefits after October 7, 2018.
On October 30, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted he continued to be in constant pain over his entire right knee and provided letters from his treating healthcare providers in support of his continued difficulties. On November 29, 2018, the employer provided a submission in support of the Compensation Services' decision to end the worker's entitlement to benefits.
On December 19, 2018, Review Office found that there was no entitlement to benefits beyond October 7, 2018. Review Office placed weight on the opinion of the WCB medical advisor, including his report of a telephone conversation with the worker's treating orthopedic surgeon on October 30, 2018. Review Office found that the worker's compensable diagnoses were right knee medial and lateral menisci tears, and that a more significant injury did not occur. Review Office further agreed with the medical advisor's opinion that the January 26, 2018 workplace accident did not structurally alter the worker's pre-existing condition. Review Office concluded that the worker's current difficulties were not related to the January 26, 2018 workplace accident, and that the worker was not entitled to further benefits beyond October 7, 2018.
On January 24, 2019, the worker's treating orthopedic surgeon provided a letter to the WCB indicating the worker continued "…to be symptomatic in terms of pain and instability, and is unable to carry out his normal strenuous work-related duties on that account." The surgeon also stated that while there were no plans for further surgical intervention at that time, he recommended the worker perform modified work that "…does not involve walking on uneven ground, carrying heavy loads, climbing ladders or squatting."
On January 29, 2019, the worker asked that Review Office reconsider their December 19, 2018 decision using the new medical information from his treating orthopedic surgeon. On March 4, 2019, the employer provided a submission in support of Review Office's decision, and the worker provided a response to that submission on March 15, 2019. On March 20, 2019, Review Office upheld their earlier decision that the worker was not entitled to benefits beyond October 7, 2018.
On May 19, 2020, the worker's representative filed an appeal with the Appeal Commission and a videoconference hearing was arranged and held on February 23, 2021.
Following the hearing, the appeal panel requested updated file information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 25, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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 4(2) 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 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 22.214.171.124, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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 from the panel.
The worker's position was that the evidence supported he continued to have ongoing difficulties beyond October 7, 2018 related to his January 26, 2018 workplace accident, and is entitled to benefits beyond that date.
The worker's representative noted that initial medical reports provided a diagnosis of a medial collateral ligament strain. Based on the February 28, 2018 MRI, the WCB accepted the injury as right medial and left lateral meniscus tears, and surgery was approved.
It was submitted that the October 15, 2018 report from the treating surgeon confirmed that the worker continued to suffer from persisting medial joint pain, which had been consistent since the time of the original injury. The representative noted that although the surgeon was not able to provide a reason for the pain, he opined that "…following partial menisectomy (sic), in individuals with ACL insufficiency, there is an increase in instability-related issues following the loss of a fully competent medial meniscus." The representative submitted that this opinion supported a relationship between the accepted compensable surgery for the meniscal tears which was a direct consequence of the January 26, 2018 accident and the worker's ongoing issues.
The worker's representative submitted that the worker was able to perform his work duties prior to January 26, 2018, without restrictions, and that the January 26, 2018 accident was responsible for his ongoing inability to return to his pre-accident employment and his loss of earning capacity. The representative noted that medical information under the 2006 claim file confirmed that as of March 27, 2006 the worker had full range of motion with a stable knee and was ready to return to work. The information further showed that the worker did not need to seek right knee treatment in the intervening 12 years and was able to perform his full regular duties prior to the January 26, 2018 accident.
The worker's representative submitted that an April 8, 2020 report from a physician with an interest in occupational health medicine ("occupational health physician"), which they had provided in advance of the hearing, also supported that there was an ongoing relationship between the worker's ongoing symptoms and the January 26, 2018 accident.
The worker's representative noted that the occupational health physician examined the worker and provided confirmation of ongoing medical findings in April 2020 of right knee pain predominantly in the medial aspect, and also involving the anterior and lateral areas. The representative submitted that the medial and lateral aspects of the right knee were accepted as compensable areas of injuries directly related to the January 26, 2018 accident, and that the occupational health physician's examination continued to confirm ongoing symptoms and disability beyond October 7, 2018.
The worker's representative submitted that the occupational health physician also supported the opinion of the treating orthopedic surgeon that there is an increase of instability-related issues following a partial meniscectomy and the loss of a fully competent medial meniscus. The occupational health physician disagreed with the WCB medical advisor's opinion that this was simply theoretical, and submitted medical literature countering the medical advisor's opinion. The representative asked that the panel accord greater value to the opinions of the treating orthopedic surgeon and occupational health physician, whose opinions were supported by medical literature.
The worker's representative submitted that the occupational health physician further opined that the worker's right knee instability had been enhanced as a result of the combined effect of the compensable 2006 workplace injury and the consequences of the 2018 work injury for which the WCB had authorized bilateral partial meniscectomy.
In conclusion, the worker's representative submitted that as a result of the 2018 accident, there was a significant change in the worker's disability and ongoing symptoms, and that the evidence supported that an enhancement occurred as a result of that accident. It was submitted that the evidence supported the worker has not been able to work in his line of work since the January 26, 2018 workplace accident, and his knee injury has not returned to its pre-accident state, which has resulted in a loss of earning capacity. Accordingly, the worker is entitled to benefits beyond October 7, 2018 in relation to the January 26, 2018 accident, and his appeal should be granted.
The employer was represented by its Safety Manager and its VP of Operations, both of whom participated in the hearing by telephone.
The employer's position was that the worker was not entitled to benefits after October 7, 2018 on this claim, and his appeal should be dismissed.
The employer's representative submitted that the medical evidence overwhelmingly supported that any ongoing issues the worker was facing would be related to his 2006 workplace accident rather than his 2018 workplace accident or injury. The representative referred in particular to the report from the WCB medical advisor, noting that the medical advisor physically examined the worker at a call-in examination in September 2018. His opinion was therefore not theoretical, as had been suggested, but based on his own interview and examination of the worker. The representative also pointed to reports from the treating orthopedic surgeon, including the surgeon's August 13, 2018 report, where he confirmed that the complex tear of the meniscus arising out of the January 26, 2018 accident was dealt with on surgery.
The employer's representative submitted that it was noted in multiple reports that the mechanism of injury and pressure on the worker's knee at the time of the 2018 accident would not account for the worker's ongoing pain, and that there was no evidence to support that it did.
The employer's representative submitted that the recent report from the worker's current orthopedic surgeon on his 2006 claim file, dated December 17, 2020, also made it clear that the worker's ongoing issues were related to that claim, and not to the 2018 claim or injury.
In conclusion, the employer's representative stated that they believed the WCB fully satisfied the requirements of the Act and Policy, and that the worker was not entitled to benefits after October 7, 2018 in relation to his January 26, 2018 workplace accident.
The issue before the panel is whether or not the worker is entitled to benefits after October 7, 2018 in relation to the January 26, 2018 accident. 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 October 7, 2018 as a result of the January 26, 2018 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The panel has reviewed and considered all of the evidence which is before us, on file and as presented at the hearing and provided following the hearing in response to a request from the panel, and the submissions of the parties. Based on our review, the panel is unable to find that the worker's ongoing right knee pain or difficulties are causally related to the worker's January 26, 2018 workplace injury or surgery arising from that injury.
The panel is satisfied that the evidence indicates the surgery which the worker underwent on May 30, 2018 was successful and the worker's compensable injury had been addressed and his condition was improving. In his August 13, 2018 report, the treating orthopedic surgeon thus noted that the worker "…had been doing well post-operatively following his medial menisectomy (sic), but with more activity, he has had troubles. He has had longstanding issues of instability and is awaiting fitting for an ACL brace. He seems capable of doing light work now, but not his full duties." The surgeon went on to state that "At surgery, he did have a complex tear of the meniscus which was dealt with."
The panel notes that there is reference in subsequent reports to complaints of ongoing pain in particular, including medial knee pain. Based on the medical information which is before us, the panel is unable to account for such ongoing or increasing pain symptoms. In this regard, the panel notes that in his report of September 11, 2018, the surgeon indicated the worker had persisting pain at the medial knee, but that this was "not expected based on pathology." On October 1, 2018, the physician further noted that the worker still had medial knee pain, but "reason for same unclear."
On October 15, 2018, the treating orthopedic surgeon further wrote that the worker's "Pain appears to be the present issue rathermore than any instability" and that "The reason for the persisting medial joint pain remains somewhat uncertain. It has been a consistent feature right from the time of the original injury."
While the worker has argued that the instability or increased instability in his right knee is related to his January 26, 2018 workplace accident and/or surgery, the panel is unable to make that finding. The panel notes that the worker is relying on the October 15, 2018 report of the treating orthopedic surgeon, who stated, in part, that "Not infrequently, following partial menisectomy (sic) in individuals with ACL insufficiency, there is an increase in instability-related issues following the loss of a fully competent medial meniscus." (emphasis added) The panel finds that this assertion is of a general nature, and there is an absence of clinical findings to support that this occurred in this case.
In this regard, the panel places weight on the WCB medical advisor's subsequent conversation with the treating orthopedic surgeon on October 30, 2018, as documented in a memorandum to file and in his letter to the orthopedic surgeon dated October 31, 2018, where the WCB medical advisor confirmed what had been discussed with the orthopedic surgeon, in part, as follows:
We discussed, in our conversation that you could not verify by your assessments, including visualization of the ACL at the May 30, 2018 right knee arthroscopy, that there was evidence that the lax ACL was influenced by the January 26, 2018 workplace injury.
You also indicated that there were no clinical findings of greater ACL deficiency following the May 30, 2018 right knee arthroscopic surgery and any worsening of ACL deficiency following partial meniscectomy is theoretical.
You did indicate that [the worker's] right knee pain appears to be the present issue rather that symptoms of instability and that the reason for his existing right knee pain is unclear.
Please do not hesitate to contact me should there be any aspect of our conversation that you wish to clarify or discuss.
The worker's representative has also relied on the report of the occupational health physician, with attached medical literature, as supporting that the worker's ongoing symptoms and instability are related to the 2018 workplace injury and surgery. The panel has reviewed and considered that report, but is of the view that it is theoretical and speculative in nature and is not supported by the clinical evidence, and is unable to place much weight on that report. The panel is unable to find that the worker's symptoms and instability were causally related to, or enhanced by, the 2018 workplace injury and/or surgery.
The worker also had a 2006 right knee claim and has ongoing issues in that claim file with respect to his ACL. The worker indicated at the hearing that the WCB had recently approved surgery for his ACL injury in that claim. Following the hearing, the panel requested and obtained updated information on both the 2006 and 2018 files.
The panel notes that in a report from the worker's current orthopedic surgeon on the 2006 claim file, dated December 17, 2020, the surgeon opined, in part, that:
After we have put this all together, it seems that [the worker] is most likely symptomatic from the ACL deficiency of his right knee. At the time of…surgery in 2018, there was a medial meniscal tear which was debrided as well as the chondromalacia to the lateral compartment related to the injury. The ACL appeared lax.
I have discussed the plan with [the worker]. This would be for again revision knee scope and ACL reconstruction and debridement as required…In my opinion, this is directly related to the injury he sustained in 2006…
The panel places weight on the December 17, 2020 report and opinion of the worker's current orthopedic surgeon as further supporting that his ongoing symptoms and difficulties are not related to his 2018 workplace accident.
The panel acknowledges that in response to questions from the panel at the hearing, the worker's representative argued that we were dealing with two separate kinds of injuries, one of which was the ACL deficiency, which they acknowledged was a compensable injury connected to the 2006 claim. The representative argued, however, that there was also surgery for the meniscus tears, and the worker's ongoing symptoms and loss of earning capacity were connected to the 2018 accident. The representative argued that from the 2018 accident, these two areas of injury surfaced and continued beyond October 7, 2018, and there was still pain in those areas as well, which is what was before the panel at this time.
As indicated previously, the panel is unable to accept the worker's arguments with respect to the 2018 claim. In the circumstances, the panel acknowledges the worker's position that he continues to experience pain and instability and has not been able to return to his pre-accident duties, but is unable to relate his ongoing difficulties and symptoms to his January 26, 2018 workplace accident or compensable arthroscopic surgery.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid beyond October 7, 2018 as a result of the January 26, 2018 workplace accident. The panel therefore finds that the worker is not entitled to benefits after October 7, 2018 in relation to the January 26, 2018 accident.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of June, 2021