Decision #137/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to medical aid benefits including physiotherapy treatment beyond January 29, 2021. A file review was held on September 28, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to medical aid benefits including physiotherapy treatment after January 29, 2021.
That the worker is not entitled to medical aid benefits including physiotherapy treatment after January 29, 2021.
The worker filed a Worker Incident Report with the WCB on May 29, 2020, reporting an injury to his right knee and ankle from an incident at work on May 28, 2020. The incident was described by the worker as "I was taking some training for motorcycle riding. I was on the bike and doing a slow speed turn around. I lost control of the bike and my foot got caught underneath. I fell down and twisted my ankle and knee."
The worker sought medical treatment at a minor injury clinic on May 29, 2020. The worker reported that he twisted his right knee and had posterolateral knee pain radiating to the lateral shin in his right knee, which was aggravated by using stairs and weightbearing. With respect to his right ankle and foot, the worker noted pain in the dorsum of the foot radiating to the anterolateral part of the ankle, which was aggravated by stairs and weightbearing, and a small amount of swelling was noted. The attending physician examined the worker and referred him for x-rays of his right knee, foot and ankle, all of which came back normal. The physician diagnosed the worker with a right leg contusion, recommended light office duties for one week, and referred the worker for physiotherapy.
At an initial physiotherapy assessment on May 29, 2020, the worker reported sharp pain in the right posterior knee and lateral ankle with twisting, moving the ankle up, bending the knee/squatting or straightening the knee fully. The physiotherapist diagnosed the worker with a right knee/ankle strain.
On June 2, 2020, the WCB advised the worker that his claim was accepted. The worker stated he was already seeing improvement in his symptoms and had returned to modified duties on June 1, 2020. At a follow-up appointment with the minor injury clinic physician on June 5, 2020, the physician noted the worker was reporting persistent knee pain and recommended he continue working modified duties, with a targeted return to full duties on June 15, 2020.
Due to ongoing symptoms in the right knee, the worker's family physician referred him for an MRI on June 29, 2020. The MRI, performed July 17, 2020, indicated:
1. No evidence of ligamentous or meniscal injury.
2. Tricompartment chondromalacia as described.
3. Small Baker cyst which contains an osteochondral body.
4. Small volume of medial collateral ligament bursal fluid.
On August 11, 2020, the worker was seen by an orthopedic surgeon, who examined the worker and reviewed the July 17, 2020 MRI. The surgeon opined that "The underlying source of his pain is not clear at this point. It was explained to him that the popliteal cyst, despite its presence, is not usually a traumatic entity, and therefore is not likely contributing. The report of the small osteochondral fragment is somewhat atypical. He does not have demonstrated meniscal tear, which would be a common sequelae of this type of injury. There may be an articular cartilage defect which has come on at this time." The surgeon referred the worker to another orthopedic surgeon for further review and evaluation. On September 28, 2020, the worker's family physician cleared him to return to full regular duties.
On October 15, 2020, the worker was seen by the second orthopedic surgeon. The surgeon examined the worker, had a further x-ray taken of his right knee, and opined:
X-rays have been taken and reviewed. There is some mild to moderate degenerative narrowing to the medial compartment of the knee. A little bit of mild narrowing to the patellofemoral region particularly to the lateral side. Some slight osteophyte spurs associated with that centrally and along both peripheries and the patella. There is an MRI available from July which details principally some medial compartment early chondromalacia as well as a bit of patellar chondromalacia to the lateral side. There is a small Baker's cyst, a little bit of bursal fluid around the MCL [medial collateral ligament] and no other ligamentous or meniscal injury identified.
I think [the worker] principally has a flare up or exacerbation of some preexistent mild osteoarthritic degeneration to his right knee. He certainly had very likely a contusion or sprain to the knee at the time of the injury and I think that is largely settling and may be taking a little while to completely resolve owing to the chondromalacia and mild arthritic symptoms.
The orthopedic surgeon recommended further conservative treatment, including a steroid injection and physiotherapy, with a follow-up in one month's time.
On November 4, 2020, a WCB orthopedic consultant reviewed the orthopedic surgeon's report and the worker's file, and opined that the worker's current compensable diagnosis appeared to be a right knee sprain and contusion in the environment of pre-existing degenerative osteoarthritis. The consultant further opined that "If requested, after further consideration, it may be appropriate to support funding for a diagnostic right knee arthroscopy, with no treatment of the pre-existing conditions."
At a follow-up appointment on November 20, 2020, the treating orthopedic surgeon recommended a diagnostic arthroscopy for the worker's right knee. On December 1, 2020, the WCB orthopedic consultant advised the orthopedic surgeon that the WCB accepted financial responsibility for arthroscopy of the worker's right knee joint, and surgery was performed on December 22, 2020.
On December 30, 2020, the worker attended an initial physiotherapy assessment, where the treating physiotherapist noted the worker's report of intermittent right knee soreness with activity and indicated the worker was able to start sedentary duties. The restrictions were provided to the employer on January 6, 2021, and the worker returned to modified duties on January 11, 2021.
On January 13, 2021, the worker's file was again reviewed by the WCB orthopedic consultant, who opined that the December 22, 2020 surgical report from the treating orthopedic surgeon "…has identified treatment predominantly for pre-existing degenerative articular and meniscal pathology." The orthopedic consultant further opined that the WCB-approved portion of the surgery was a diagnostic arthroscopy, recovery from which would be expected in at most three to four weeks' time, and that any restrictions beyond that period of time would relate to the worker's pre-existing osteoarthritis.
On January 25, 2021, the WCB's Compensation Services advised the worker that after reviewing his file, they had determined he had functionally recovered from the effects of his compensable injury and post-surgery physiotherapy treatment was not approved. Compensation Services further advised that as of January 23, 2021, restrictions were no longer supported and the WCB would not be responsible for further wage loss or medical aid benefits.
On March 18, 2021, the worker's union representative requested reconsideration of Compensation Services' decision. The representative submitted that the May 28, 2020 workplace accident exacerbated the worker's pre-existing degenerative knee condition. The representative provided a March 12, 2021 letter of support from the worker's family physician, in which the physician opined that "The nature of his injury was significant and either caused or contributed to trauma to his knee joint and cartilage structures with the knee structure." On May 3, 2021, the employer provided a submission in support of Compensation Services' decision.
On May 20, 2021, Review Office determined that the worker was entitled to medical aid benefits to January 29, 2021, with no additional physiotherapy being authorized. Review Office noted that Compensation Services had not provided the worker with the seven days' notice required under WCB policy, and found that as such, the worker was entitled to be reimbursed for any medical aid expenses he had incurred in relation to his claim up until January 29, 2021. Review Office went on to find that the worker was not entitled to any additional physiotherapy treatment, as post-surgery physiotherapy was not required for the WCB-approved arthroscopic portion of the December 22, 2020 surgery, but was for reasons which were unrelated to the workplace accident.
On June 2, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Applicable Legislation and Policies
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 27(10) states, in part, that "Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board..."
The WCB's Board of Directors has established WCB Policy 126.96.36.199, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy states that the 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.
WCB Policy 44.120.10, Medical Aid, sets out general principles regarding a worker's entitlement to medical aid, which is defined to include treatment or services provided by a health care provider. The Policy provides that the WCB determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. The Policy also provides that the WCB's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries.
The worker was represented by a union representative. The worker's position was that he required further medical aid beyond January 29, 2021, and in particular further physiotherapy treatments, to enable him to recover from the knee injury he suffered at work on May 28, 2020.
The worker noted in his Appeal of Claims Decision form that the March 12, 2021 letter from his physician supported that he had no previous documented injuries to his right knee. The worker submitted that if this accident at work had not occurred, he would not have needed physiotherapy treatments for his knee and would not have had to pay for them out of his own pocket.
In a further letter dated September 2, 2021, the worker submitted that treatments he received both before and after January 29, 2021 were all related to or part of the same workplace incident. The worker noted that the frequency of treatments was reduced from the end of January 2021 forward, as would have been expected with improvement of the knee injury he suffered at work. He stated that he is back to working the regular duties he was performing prior to his injury, and that no further treatment was required beyond April 5, 2021.
The employer was represented by its Workers Compensation Coordinator, who provided a written submission dated September 21, 2021. The employer's position was that they agreed with the Review Office decision that the worker was not entitled to further medical aid benefits beyond January 29, 2021 as a result of his compensable injury, and the appeal should be denied.
The employer's representative submitted that the worker sustained nothing more than a sprain/strain injury to his right knee as a result of the workplace incident. The representative noted that the findings on the July 2020 MRI were deemed to be pre-existing, and the only procedure which the WCB authorized and accepted was a diagnostic arthroscopy, from which recovery would have occurred within a maximum of three to four weeks. The eight other surgical procedures which were performed related to the pre-existing issues and not the compensable injury.
The employer's representative submitted that the evidence confirmed, on a balance of probabilities, that the worker's continuing right knee issues and the need for physiotherapy beyond January 29, 2021 were accounted for on the basis of pre-existing degenerative changes in his knee, which were not materially altered or enhanced by the compensable injury.
The issue before the panel is whether or not the worker is entitled to medical aid benefits including physiotherapy treatment after January 29, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that further medical aid, including physiotherapy treatment, was required beyond January 29, 2021 to cure and provide relief from the worker's injury resulting from the May 28, 2020 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker sustained an injury to his right knee during a training exercise on May 28, 2020 when he lost control of his motorcycle while making a slow turn, caught his right foot under the motorcycle and fell, twisting his right ankle and knee.
Information on file shows that the worker's ankle difficulties resolved, but he continued to report right knee difficulties. As a result, the worker underwent an MRI of his right knee on July 17, 2020. The panel is satisfied that the findings on the MRI were largely degenerative in nature.
The panel notes that information on file further shows that the worker reported to the WCB on September 15, 2020 that his symptoms were improving. On September 22, 2020, the then treating orthopedic surgeon also indicated that the worker had been improving and was "heading in the right direction," and on September 28, 2020, the worker's family physician cleared him to return to work.
The panel places weight on the October 15, 2020 opinion of the treating orthopedic surgeon, who noted that the worker principally had a flare up or exacerbation of some preexistent mild osteoarthritic degeneration to his right knee and that he "certainly had very likely a contusion or sprain to the knee at the time of the injury and I think that is largely settling and may be taking a little while to completely resolve owing to the chondromalacia and mild arthritic symptoms." The panel notes that in his subsequent report dated November 20, 2020, the treating orthopedic surgeon again noted that the worker's knee was "essentially somewhat arthritic."
As the worker continued to experience difficulties, diagnostic arthroscopy was recommended. The panel notes that on December 1, 2020, the WCB accepted financial responsibility for arthroscopy of the worker's right knee joint, with the matter of further funding being deferred pending receipt of the surgical report.
The surgery was performed on December 22, 2020, and the Operative Report of that surgery identified nine different procedures which were performed, the first of which was "Right knee scope." The panel is satisfied that the remaining eight procedures were directed towards the worker's pre-existing degenerative conditions and were not related to the workplace accident.
In this regard, the panel places weight on the January 13, 2021 opinion of the WCB orthopedic consultant who stated, following receipt and review of the December 22, 2020 Operative Report, that the Report had identified "…nine procedures eight of which are directly related to the pre-existing degenerative osteoarthritis." The orthopedic consultant further opined that none of these eight additional surgical procedures were related to the compensable injury or acceptable for WCB funding.
The WCB orthopedic consultant further confirmed in his January 13, 2021 opinion that the current compensable diagnosis of the worker's injury was a right knee sprain and contusion in the environment of pre-existing degenerative osteoarthritis. The panel accepts and agrees with that diagnosis.
The panel further finds that the medical evidence does not support that physiotherapy treatments were required following the December 22, 2020 surgery with respect to the workplace accident or directed to the compensable injury. The panel accepts that that recovery from a diagnostic arthroscopy would have been expected within three or four weeks, and is satisfied that physiotherapy was not required to cure or provide relief from the diagnostic arthroscopy itself.
The panel acknowledges the March 12, 2021 letter of support from the worker's family physician, stating he believed the worker's "right knee problems" were related to the May 28, 2020 accident. The panel is unable to find, however, that the medical evidence supports that any ongoing knee complaints or difficulties beyond January 29, 2021 were related to the workplace accident or injury. The panel is therefore unable to attach any weight to that letter.
Based on the foregoing, the panel finds, on a balance of probabilities, that no further medical aid, including physiotherapy treatment, was required beyond January 29, 2021 to cure and provide relief from the worker's injury resulting from the May 28, 2020 workplace accident. The worker is therefore not entitled to medical aid benefits, including physiotherapy treatment, after January 29, 2021.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of November, 2021