The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident. A teleconference hearing was held on October 20, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident.

Decision

The worker is entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident.

Background

A Worker Incident Report was filed with the WCB on June 14, 2019, indicating the worker injured the back of their left knee and calf area on June 11, 2019 after they put their foot underneath the driver's seat of the vehicle they were driving and "…hit a bump, the seat compressed down and pressed against the back of my knee and calf area."

The worker sought treatment at a walk-in clinic on June 12, 2019 reporting left knee joint pain, with dull aching pain. The walk-in clinic physician noted mild swelling in the worker's left knee, decreased range of motion and mild limping. An x-ray taken that day revealed no fracture and the worker was diagnosed with a knee sprain. The next day, the worker sought a second opinion from a physician's assistant at another clinic, reporting injury to the back of their left knee and calf area after their leg was under the seat when the vehicle went over a bump and their leg was caught, leading to a hyperflexion injury with immediate pain with swelling to the knee joint. The physician assistant diagnosed a knee sprain and recommended the worker remain off work for one week and pursue physiotherapy.

On June 20, 2019, the worker confirmed the mechanism of injury in discussion with the WCB and advised they had taken some reenactment photographs with the employer to investigate how the injury occurred. The WCB confirmed the accepted diagnosis was a soft tissue injury to the left knee/calf and the worker advised of their return to work on June 18, 2019. The worker again contacted the WCB on June 24, 2019 to advise they had reaggravated their left knee at work on June 22, 2019 and believed they had returned to their regular job duties too soon. The worker also advised of a pending appointment with a physiotherapist.

When the worker attended for physiotherapy assessment on June 24, 2019, they reported pain in their calf, intermittent pain in their right lateral shin and increased pain with attempted return to work or walking. The physiotherapist diagnosed an iliotibial band (“ITB”) strain and noted the worker was off work. At follow-up on June 28, 2019, the physician assistant recommended the worker could return to work after July 5, 2019 on reduced hours per shift. On July 10, 2019, the employer advised the WCB that the worker returned to work on modified duties on July 8, 2019.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on October 17, 2019. On examination, the medical advisor provided an opinion that the worker’s initial diagnosis was a left knee sprain, with a natural history of gradual resolution of symptoms in four to six weeks, and that the current diagnosis was non-specific left knee pain and left patellar tendon pain in the presence of left knee osteoarthritis. The medical advisor recommended the worker undergo an MRI of their left knee to clarify the diagnosis and provided restrictions of avoiding prolonged walking on uneven ground and limiting the amount of repetitive climbing in and out of the truck in an 8-hour shift for one month.

On December 4, 2019, the treating physician noted an MRI had been requested. The employer advised the WCB on December 18, 2019, the worker had returned to their full regular duties.

The MRI study of the worker’s left knee on January 7, 2020 revealed the following findings:

1. Complete tear of the anterior cruciate ligament from its proximal attachment. The acuity of this is questioned. 

2. Radial tear at the posterior horn of the medial meniscus near the posterior root attachment with resultant extrusion of the meniscal body. Myxoid change at the lateral meniscal body. 

3. Chondromalacia within the patellofemoral and medial tibiofemoral compartments.

The WCB case manager requested a medical opinion from a WCB medical advisor on January 14, 2020 and on January 27, 2020, the WCB medical advisor requested a review of the worker’s file by a WCB radiology consultant. The radiology review was completed on February 2, 2020 and on February 3, 2020, the WCB medical advisor provided an opinion that the worker’s initial diagnosis was a left knee sprain in the environment of pre-existing conditions and the current diagnosis was non-specific left knee pain in the environment of pre-existing conditions. The medical advisor described the worker’s pre-existing condition as a “…remote tear of the anterior cruciate ligament, radial tear of the posterior medial meniscus, and mild degenerative change involving the patellofemoral articulation” based on the MRI and radiological review. The WCB medical advisor further opined the worker’s current left knee symptoms were due to the progression of their pre-existing condition and not due to the June 11, 2019 workplace accident.

On February 12, 2020, the WCB advised the worker it had determined they were recovered from the workplace accident and as such, were not entitled to further benefits.

On February 27, 2020, the WCB received a February 25, 2020 report from the worker’s treating orthopedic surgeon noting the January 7, 2020 MRI findings and recommending arthroscopic surgery. The worker requested reconsideration of the WCB’s decision to Review Office on March 27, 2020. In their submission, the worker noted the MRI indicated a meniscal tear for which surgery was recommended and a knee brace was recommended.

Review Office found on April 16, 2020 that the worker was not entitled to further benefits, relying upon the WCB medical advisor’s opinion that the worker’s current difficulties were related to the progression of their pre-existing condition and not the workplace accident. As such, the worker was not entitled to coverage for the proposed knee surgery or the requested knee brace or further benefits.

The worker’s representative filed an appeal with the Appeal Commission on May 6, 2021. A teleconference hearing was arranged for October 20, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On November 23, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 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 their employment is entitled to compensation. "Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which 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.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The 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.

The Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but 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 Policy allows for consideration of evidence concerning the progression of a pre-existing condition based on statistical norms or predictions based on the best available data. The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as 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 and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made an oral submission on behalf of the worker in the hearing and provided a written submission in advance of the hearing. The worker provided testimony in response to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that at the time the WCB terminated their benefits the worker remained symptomatic due to the diagnosed medial meniscus tear, which explains both the onset of the worker’s symptoms on the date of accident and their subsequent lack of recovery. As a result, the worker continued to sustain a loss of earning capacity and to require medical assistance in relation to the compensable injury. Therefore, the worker should be entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident.

The worker advisor pointed out to the panel that although the WCB medical advisor’s opinion of February 12, 2020 does not support a link between the worker’s meniscal tear injury and the compensable accident, the treating surgeon stated that the medial meniscal tear likely was related to the workplace accident and the treating physician supported this position. The worker advisor noted that it was also possible that the patellofemoral changes indicated on the MRI study were caused by or aggravated by the workplace injury, noting that there is no evidence of any prior left knee symptomology. The worker advisor stated the worker accepts the medical opinions on file suggesting that they had a pre-existing anterior cruciate ligament (“ACL”) tear which had been reabsorbed.

The worker advisor also noted that given the worker’s pre-existing and degenerative left knee changes, they were more likely to sustain new and further injury to their left knee, with less trauma and further, that the worker’s recovery from any such injuries sustained would likely be prolonged as a result of the pre-existing left knee condition.

The worker described their job duties with the employer at the time of injury and provided a detailed description of how the injury occurred. The worker described hitting a big hole in the roadway with their truck, propelling them up toward the ceiling of the cab and then, on landing back on the seat, compressing the back side of their left leg which was partially under the seat. The worker indicated that the injury was immediately painful, especially in the calf area and that they believe their left knee was bent quite a bit on landing. The worker indicated that they informed their supervisor immediately and that their symptoms increased through the subsequent hours, particularly on the left side of their knee.

The worker testified that with physiotherapy following the injury they were able to maintain status quo at first but eventually their symptoms worsened. The return to work on June 18, 2019 soon resulted in an aggravation of the worker’s symptoms and decreased mobility, such that they were taken off work for a period, ultimately returning to modified duties with restrictions.

The worker further testified that they underwent arthroscopic surgery approximately 6 weeks prior to the hearing date to repair the meniscal tear. At the time of the hearing, the worker remained off work recovering from surgery and awaiting follow up with the surgeon, but noted they no longer had any left knee symptoms and were getting stronger daily.

In response to questions from panel members, the worker confirmed that immediately prior to the accident, they had some knee stiffness but were able to maintain an active life. The worker described that after injuring their ACL previously, they worked to build up their knee strength to an extent that they were able to play sports again afterward.

In sum, the worker’s position is that the left knee injury remained symptomatic well beyond the expected recovery period for a sprain/strain injury and those symptoms were consistent with a medial meniscal tear from the time of the accident. The medical opinions provided by the treating physicians support a finding that the workplace accident could have caused the medial meniscal tearing and the worker continued to experience symptoms from that injury beyond the date of when the WCB terminated their benefits. The evidence supports a finding that the worker had not recovered from the compensable injury but continued to experience a loss of earning capacity and require further medical aid. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by a representative who made an oral submission on behalf of the employer.

The employer’s position is that the evidence nearest the date of injury supports that the worker sustained no more than a soft tissue injury, from which they should have recovered, typically, in 4-6 weeks. The medical findings support this diagnosis, which aligns with the mechanism of the worker’s injury and do not support that the worker’s ongoing left knee pain is related to the workplace injury of June 11, 2019. The employer’s representative stated that it is more likely than not that the worker’s ongoing left knee symptoms relate to their pre-existing left knee condition, which is not compensable. Therefore, the worker should not be entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident.

The employer’s representative urged the panel to place significant weight upon the medical findings most contemporaneous to the date of accident which support the WCB’s determination that the compensable injury was no more serious than a sprain/strain of the worker’s left knee. The worker ought to have recovered from such a soft tissue injury in 4 – 6 weeks and as such, the medical aid provided to the worker was far in excess of what would have been expected or should have been required.

The employer’s representative argued that the later medical assessments on file do not support a causal link between the worker’s injury and the findings. Further, the MRI findings support a determination that the worker’s ongoing concerns relate to pre-existing left knee degeneration as suggested by the WCB medical advisor in their February 3, 2020 opinion. The employer’s representative stated that the worker’s physician is engaged in patient advocacy in their December 2020 and February 2020 opinions, rather than providing an objective medical opinion and therefore their views should be given less weight.

In sum, the employer’s position is that based upon the early medical findings, the worker sustained only a left knee sprain/strain injury in the compensable accident and the evidence does not support that the later medical findings are causally related to the workplace injury. Therefore, the worker should not be entitled to further medical aid or wage loss benefits in relation to the June 11, 2019 accident. 

Analysis

The question on appeal is whether the worker is entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident. For the panel to grant the worker’s appeal we would have to determine that the worker’s ongoing left knee difficulties, beyond February 12, 2020 were causally related to the workplace accident and further, that as a result, the worker required further medical treatment and sustained a further loss of earning capacity beyond that date. The panel was able to make such findings as outlined in the reasons that follow.

The earliest medical reporting, as noted by the employer’s representative in the hearing, supports the WCB’s determination that the worker sustained a sprain injury to their left knee in the accident. We note that the early reporting also suggested that the worker’s ACL was intact, which the later diagnostic testing revealed to be incorrect. The treating physiotherapist at first assessment diagnosed an ITB strain, but by late June noted “significant tightness, tenderness, and weakness” of the worker’s hamstring and at that time queried whether there was a partial tear. Subsequent reporting indicated the worker’s symptoms continued and that little progress was being made toward recovery despite ongoing physiotherapy and workplace restrictions.

The October 17, 2019 WCB call-in examination confirmed that the worker remained symptomatic, which the medical advisor attributed to “nonspecific left knee pain, left patellar tendon pain in the presence of left knee osteoarthritis”. The worker’s restrictions were continued for another month and an MRI was proposed to “try to clarify the diagnosis of the left knee pain.”

The January 7, 2020 MRI study of the worker’s knee revealed a complete tear of the worker’s ACL from its proximal attachment, a radial tear of the posterior horn of the medial meniscus and chondromalacia within the patellofemoral and medial tibiofemoral compartments. The WCB radiology consultant reviewed these findings on February 2, 2020 and concluded that the ACL tear was not the result of a recent or acute traumatic event. They stated that the acuity of the radial tear of the medial meniscus is “indeterminable” as was the acuity of the degenerative change and lateral meniscus tearing. Finally, the radiology consultant stated that acuity of the mild degenerative change in the patellofemoral articulation was uncertain but not “in keeping with immediate sequelae of an acute or traumatic event.”

On reviewing the radiology consultant’s report, the WCB medical advisor concluded that “All the findings of abnormalities on the January 7, 2020 MRI report are likely pre-existing, based on the mechanism of injury, and the radiological review” and that “The current symptoms in the left knee are likely due to the progression of the pre-existing conditions.”

In a referral for surgical consult dated February 25, 2020, the treating orthopedic physician outlined that “The mechanism of injury is not typical for an ACL tear, and there was some suggestion on the MRI that this might be an older pre-existing problem….In any event the knee is not grossly unstable. There are multiple things that maybe contributing to [their] problem related to the arthritic change and meniscal tearing and the [ACL] tear."

The treating orthopedic surgeon outlined in a report to the treating orthopedic physician dated January 25, 2021 that the MRI revealed:

“…likely an old ACL tear as well as a radial tear at the medial meniscus close to the root with some extrusion. There is some chondromalacia in the medial compartment and patellofemoral compartment. I discussed with [the worker] today that [they do] have a combination of arthritis as well as that medial meniscus tear. Given that it has been over a year, [they do] seem to have meniscus like symptoms, and [they have] a memorable injury, I think it would be reasonable to try a knee arthroscopy to treat that meniscus tear.”

The treating orthopedic physician provided a further opinion dated April 6, 2021 in support of the worker’s position that the meniscal tearing was caused by the workplace accident. They stated:

“…the mechanism of injury was consistent with tearing a meniscus but not tearing the anterior cruciate ligament. The abnormalities in the MRI regarding the lateral meniscus are mainly asymptomatic as [their] pain is all medial. Some of the MRI changes in [their] patellofemoral joint may have been pre-existing but the symptoms related to [the] patellofemoral joint only came on after [their] accident. In addition, the unusual mechanism of injury in this worker would be expected to put an unusually high load on the patellofemoral joint. It would not be surprising if by itself it caused a persistent patellofemoral syndrome. The force may have also enhanced pre-existing patellofemoral changes, which are often symptomatic to a long-term symptomatic problem.”

The physician further noted that the workplace accident “…is considered to have caused the medial meniscal tear. [The worker’s] history is of an axial compressive load onto a flexed knee…. This would be sufficient to cause a symptomatic meniscal tear which has remained symptomatic.”

The panel also reviewed the operative report from July 15, 2021 which confirms the left knee arthroscopy took place with a number of procedures undertaken, including debridement of the medial meniscus tear.

The panel considered that both the treating orthopedic physician and the treating orthopedic surgeon related the medial meniscal tearing to the “memorable injury” that the worker sustained on June 11, 2019. Although the WCB radiology consultant stated that the acuity of the tearing is “indeterminable” in this case, the WCB medical advisor interpreted this statement as meaning it was likely pre-existing the date of accident. The panel takes a different view and understands that indeterminable means that based on the imaging alone, it cannot be definitively determined whether the meniscal tearing was pre-existing, occurred at the time of the accident or even subsequently.

In the result, the panel gives greater weight to the opinion of the treating orthopedic surgeon and the treating orthopedic physician as to the possibility that the medial meniscal tearing evident on the MRI study and repaired by the surgeon could have resulted from the workplace accident as described by the worker. We are satisfied that the medical evidence both from the time of injury and thereafter supports a finding that the worker sustained an injury that was more complex than a sprain/strain of their left knee.

Further, we are satisfied that there was tearing to the worker’s meniscus, as ultimately confirmed by MRI imaging and surgical repair and that this tearing was, more likely than not, the result of the workplace accident. This finding is supported by the opinions of the treating orthopedic physician and orthopedic surgeon. The WCB radiology consultant was not able to draw any conclusion on this point from the imaging alone, but the panel also had the benefit of the evidence that the worker had no symptoms immediately prior to the accident and was able to do their job and live an active life without knee symptoms, but subsequently struggled to recover and for a period of time was unable to continue working at all, and further, the worker’s testimony regarding the outcome of the meniscal repair surgery in July 2021.

The WCB relied upon recovery norms in reaching its decision to terminate the worker’s benefits. The panel notes that while such recovery norms are useful in claim management, where the medical evidence supports that there was non-recovery despite the passage of time and appropriate treatment having been provided, further assessment or investigation may be required to determine whether some other issue is at play. The evidence here clearly supported the worker’s position that they had not recovered from the injury sustained as a result of the compensable workplace accident within the expected period of 4 – 6 weeks following the injury, and although the worker’s initial symptomatic presentation and mechanism of injury suggested only a sprain/strain injury, further investigation ultimately revealed that the worker also sustained meniscal tearing, in an environment of other pre-existing, degenerative changes.

The panel agrees that the evidence supports a further finding that the worker’s ACL tear, chondromalacia and patellofemoral joint changes are more likely than not pre-existing the accident, and we are satisfied that these pre-existing conditions were not aggravated or enhanced by the workplace injury and therefore are not compensable.

The panel accepts the evidence that the worker required surgical repair of the medial meniscal tear and that as a result, the worker sustained a further loss of earning capacity arising out of the compensable injury.

We are satisfied based on the evidence reviewed and on the standard of a balance of probabilities, that when the WCB discontinued the worker’s entitlement to benefits, the worker was not recovered from effects of the compensable injury of June 11, 2019 but continued to require both medical aid and wage loss benefits arising out of that injury. Therefore, we determine that the worker is entitled to further wage loss and medical aid benefits in relation to the June 11, 2019 accident.

The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of December, 2021