Decision #29/23 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits for the diagnosis of a left anterior cruciate ligament tear as being related to the April 12, 2021 accident. A videoconference hearing was held on February 9, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for the diagnosis of a left anterior cruciate ligament tear as being related to the April 12, 2021 accident.

Decision

The worker is entitled to benefits for the diagnosis of a left anterior cruciate ligament tear as being related to the April 12, 2021 accident.

Background

The WCB received the Employer's Incident Report on April 19, 2021 reporting the worker injured their left knee in an incident on April 12, 2021 during unpaid defense tactics training. Following the injury, the worker was taken to a local emergency department for treatment. The treating emergency physician noted the worker had a hyperextension injury during defensive training and reporting pain to the lateral aspect of their left knee, with full range of motion and neurovascular testing with tenderness at the lateral aspect of their left knee. The treating physician recommended the worker rest and ice their knee and provided restrictions of no physical exertion.

On April 15, 2021, an orthopedic surgeon assessed the worker on referral by the emergency physician. The worker described hyperextending their left knee and feeling a pop and reported feeling their knee occasionally giving away and catching. On examining the worker's left knee, the surgeon recorded no swelling, normal range of motion, slight tenderness on palpitation medially and posteriorly, stable medial collateral ligament testing, negative Lachman, pivot shift and McMurray's testing and a normal x-ray. The surgeon noted the worker was improving a little and "…may have escaped with no major injuries" but referred the worker for an MRI study of their left knee.

When the WCB contacted the worker on April 26, 2021 to discuss the claim, the worker described that their left knee buckled, and they felt a pop on the exterior side while training. The worker stated their left knee still felt achy but no pain, and further advised they were continuing with their job training but not doing anything physical. The worker advised that they were referred for an MRI study and could return to regular training on May 15, 2021 pending clearance from the physician. The WCB advised the worker their claim was accepted with no time loss.

In a progress report received by the WCB on June 1, 2021 for the worker’s appointment on May 6, 2021, the treating physician recorded that the worker was “…back to completely normal two weeks after the fact” and could return to their full duties.

An MRI study of the worker’s left knee conducted on August 19, 2021 indicated an “Anterior cruciate ligament tear. No evidence for meniscal tear.”

On September 13, 2021, the worker submitted their Worker Incident Report to the WCB detailing the April 12, 2021 incident. The WCB then sought additional information from the worker and the employer. The employer confirmed the worker returned to work on May 29, 2021 and the worker confirmed they continued to seek medical treatment and had been referred to an orthopedic surgeon.

On October 19, 2021, the WCB received a request for a custom brace for the worker’s left knee. A WCB physiotherapy consultant reviewed the worker’s claim file on October 25, 2021 and concluded the medical information on file did not support the need for a custom brace, noting that a medical management plan for the worker’s injury had not been developed. The WCB advised the worker on October 26, 2021 that it would not approve coverage for the custom knee brace.

A WCB medical advisor reviewed the worker’s file on November 8, 2021 and provided an opinion that the initial diagnosis was a left knee strain as a result of the April 12, 2021 workplace accident. The medical advisor noted the treating orthopedic surgeon reported the worker was “…completely back to normal and could return to full work duties…” in their May 6, 2021 report, which was consistent with the expected natural recovery from a knee strain. The WCB medical advisor noted the current diagnosis was a left knee anterior cruciate ligament (ACL) tear based on the August 19, 2021 left knee MRI study, and concluded this diagnosis was not medically accounted for in relation to the workplace accident. The medical advisor noted the worker’s symptoms reported shortly after the workplace accident were not consistent with an acute left knee ACL injury as the worker’s treating orthopedic surgeon reported no swelling in the left knee, normal range of motion and negative testing for ACL injuries. The medical advisor also concluded the worker did not require further treatment or ongoing restrictions with respect to the workplace accident.

On November 12, 2021, the WCB advised the worker that the left knee ACL tear could not be medically accounted for in relation to the April 12, 2021 workplace accident and that the WCB determined the worker had recovered from the left knee strain injury and was not entitled to further benefits.

The WCB received an additional medical report from the treating orthopedic surgeon on December 2, 2021, in which the surgeon noted the worker had positive Lachman, drawer and pivot glide testing and did have “…giving away with pivoting history.” The surgeon updated their notes to indicate the worker reported giving away symptoms at their initial examination. The treating surgeon provided the initial injury was a hyperextension injury that occurred in April 2021, with the worker having no other injuries before or after and went on to state that the initial physical examination was negative because “…it takes a while to stretch out secondary restraints…” to get good testing results. The surgeon further provided the worker’s giving away was sufficiently significant that the worker required a brace and was referred for consideration for an ACL reconstruction.

The new medical report and the worker’s file were reviewed by a WCB medical advisor on December 15, 2021. The medical advisor was of the view that the new evidence would not medically account for a left knee ACL tear in relation to the April 12, 2021 workplace accident. The WCB advised the worker on December 17, 2021 that there would be no change to the earlier decision.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on January 12, 2022. The representative submitted the worker continued to experience left knee instability and as such, required workplace restrictions and ongoing medical treatment as their symptoms were a direct result of the April 12, 2021 workplace accident. The employer provided a response in support of the WCB’s decision, and the representative submitted a further response on February 24, 2022.

On March 1, 2022, Review Office determined the worker was not entitled to benefits in relation to the diagnosis of a left knee anterior cruciate ligament tear. Review Office found the worker sustained a left knee strain on April 12, 2021 and recovered from that injury. Review Office relied upon the medical evidence in closest proximity to the workplace accident, which indicated negative test results and no findings associated with an ACL tear. Further, Review Office found the worker returned to work and had no further contact with the WCB until four months later and as such, a causal relationship between the left knee ACL tear found on the August 2021 MRI and the workplace accident could not be established.

The worker’s representative filed an appeal with the Appeal Commission on August 9, 2022 and a videoconference hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

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 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. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared in the hearing, supported by a union representative who made an oral submission on behalf of the worker and in support of the appeal. The worker provided testimony through answers to questions posed by the union representative and by members of the appeal panel.

The worker’s position is that they are entitled to benefits in relation to the left knee ACL tear as there is evidence that they sustained this injury in the workplace accident of April 12, 2021, which was accepted by the WCB as compensable, although the ACL tear was not diagnosed until August 19, 2021.

The worker’s representative noted that the evidence supports a finding that the worker did not have any pre-existing injury to their left knee, pointing to the worker’s pre-employment medical assessment, the worker’s testimony and the fact that the worker was able to engage in the physical aspects of their training until the injury of April 12, 2021. Further, the worker’s description of the mechanism of injury in which there was a hyperextension of the left knee, followed by a pop and a feeling of instability is consistent with an ACL tear injury. Although the worker did not initially miss any work as a result of the injury, the worker’s testimony confirms that they were committed to completing their unpaid training so that they could start their new job, after moving into a new community in a new province take that position. The representative submitted that the ACL tear was sustained in the workplace accident of April 12, 2021 but was missed on initial assessment, although the worker’s symptoms throughout were consistent with such an injury, being soreness, weakness and instability of their left knee.

The worker’s representative urged the panel to give greater weight to the opinions and medical reporting by the worker’s treating orthopedic specialist and surgeon than to the opinion of the WCB orthopedic consultant, noting that the WCB consultant’s opinions are overstated whereas the opinions of the treating physicians are more consistent with the reality of the worker’s post-accident experience.

In testimony, the worker described doing a physically demanding job prior to moving to Manitoba to train for their new role. The application process for this position required an assessment by their family physician as to their fitness for the job. This was provided in January 2021. The worker confirmed that they injured their knee near the end of the first day of self-defense training. At the time, the worker both heard and felt a pop in their left knee and immediately fell to the ground. The worker described feeling that their knee “gave in” and “just collapsed.” The worker indicated their belief that they have a high pain tolerance and described the pain in their knee as being like an “extreme ache” or “extreme growing pain, times ten”. After the injury, the worker was helped to their feet. They could stand but their left knee felt extremely unstable, and they could walk with a “really bad limp”. The worker rested and iced their knee until the training day concluded approximately 20 minutes later and then was taken to hospital for assessment. The worker described the treating physician as looking at the knee and doing an assessment, and referring the worker to an orthopedic surgeon a few days later, with recommendation to rest, ice and elevate the knee in the interim. The worker was able to continue their training, observing only, while keeping their leg elevated and icing the knee. The worker noted that when assessed on April 15, 2021, the orthopedic surgeon moved their leg from side to side but did not do all the same tests that the second orthopedic surgeon did when they assessed the worker’s knee later in 2021. The worker also noted that the orthopedic surgeon ordered an MRI study of the knee to rule out any injury more severe than a sprain/strain and that at that time, their knee remained unstable with walking. The worker stated they used an over-the-counter knee brace purchased at a local store during this period. The worker testified that six weeks following the injury, they resumed more physical activity following approval from the treating orthopedic specialist based upon a telephone consult, but continued to self-monitor their movements, and still felt instability in the knee.

The worker described staying after hours during training to make-up for their missed time until the training was concluded. The worker testified to adapting their movements to rely more on their right leg for stability. In terms of their end-of-training testing, the worker indicated that they were tested for approximately one hour in self-defense and conflict de-escalation techniques. The testing involved simulations and role-play in various job-related circumstances where the worker was required to assess the situation and take steps to address it, including use of restraint and self-defense techniques as appropriate.

The worker noted that when they began working, Covid-19 pandemic restrictions were in place and, as such, at that time their job duties were less physical than normal. At first, the worker shadowed and observed other employees for approximately two weeks, and then took on their full duties in mid-June, which involved spending a significant portion of each shift sitting and observing, with limited walking about. The worker described keeping their left knee wrapped and braced, but that it felt very achy and weak. Although colleagues asked about the injury from time to time, the worker would say it was fine, noting they were not there to complain. The worker described spending their free time sleeping or camping, but not being active. The worker described their knee continuing to give out and feeling instability especially when walking. As a result, the worker said they were very cautious when walking both at work and outside of work.

In their testimony, the worker confirmed they did not return for further medical attention as there was no change in the condition of their knee and they were waiting for the MRI study to take place. The worker also noted they did not have a family doctor at that time, and that they were unsuccessful in arranging physiotherapy as the physiotherapist only offered short notice, cancellation-list appointments that did not align with the worker’s schedule. The worker described being called in for an appointment to review the MRI findings with their treating orthopedic surgeon, who advised that the worker had a torn ACL and referred them to another orthopedic surgeon, while recommending only light duties at work. The worker confirmed that on first assessment by the second orthopedic surgeon, the surgeon conducted numerous tests and confirmed that based upon the worker’s description of what they felt and how they fell at the time of injury, the ACL tear would have occurred at that time.

The worker confirmed that they continued working light duties until their surgery but did not return to their regular duties following the surgery. The worker advised that they had some complications in their recovery and when their employment insurance benefits ran out, they were not yet physically capable of a return to work with the accident employer. The worker advised the panel that they were just off using crutches, post-surgery, when they obtained new employment with another employer. This new role was full time but at a reduced income from the accident employer and did not require the same degree of physical ability. The worker described ongoing difficulties with their injured knee, noting a need for strengthening. The worker stated that they had only recently started physiotherapy treatment.

In sum, the worker’s position is that the evidence supports a finding that they sustained a tear to their left ACL in the workplace accident and as such should be entitled to benefits in relation to that diagnosis.

Employer’s Position

The employer was represented in the appeal by its WCB coordinator who provided an oral submission to the panel outlining the employer’s position in respect of the worker’s appeal.

The employer’s position is that the worker should not be entitled to benefits in relation to the diagnosis of a left knee ACL tear as the evidence does not support a finding that this injury occurred as a result of the workplace accident of April 12, 2021.

In their oral submissions, the employer’s representative provided an overview of the medical reporting in relation to the worker’s injury sustained on April 12, 2021 noting that the treating physician reported that as of May 6, 2021, the worker was “now back to completely normal two weeks after the fact.” The employer’s representative pointed to the evidence provided by the worker in their September 20, 2021 conversation with the WCB in which the worker noted some ongoing pain and a feeling that their knee was going to give out, but that they were working full time and overtime and had not made any ongoing complaints regarding their knee at work. The employer’s representative relied upon the November 8, 2021 opinion of the WCB orthopedic surgery consultant that the worker’s diagnosis of left ACL tearing was not medically accounted for in relation to the workplace accident as the early clinical findings were not consistent with the tear having occurred at that time and the worker’s subsequent presentation was also inconsistent with having experienced an acute ACL tear injury. The employer’s representative also relied upon the WCB orthopedic surgery consultant’s December 15, 2021 opinion that discounted the explanations offered by the treating orthopedic surgeon in their December 2, 2021 report for the lack of early clinical findings that would relate to an ACL tear.

In sum, the employer does not accept that the worker’s left knee ACL tear occurred as a result of the workplace injury of April 12, 2021. Rather, based upon the evidence, the employer’s position is that the worker sustained a knee strain injury which resolved within a few weeks as would be expected, and therefore the worker is not entitled to benefits in relation to the left ACL tear.

Analysis

The question on appeal is whether the worker is entitled to benefits for the left knee ACL tear in relation to the workplace accident of April 12, 2021. For the worker’s appeal to succeed, the panel would have to determine that the worker’s left knee ACL tear was a result of that workplace accident. As outlined in the reasons that follow, the panel was able to make such a determination and therefore, the worker’s appeal is granted.

The evidence in the WCB claim file and heard by the panel confirms that while in the course of participating in job-related training on April 12, 2021, the worker sustained an injury to their left knee. The worker described that at the time of the injury, they heard and felt a pop in their knee and immediately fell to the floor. Subsequently, the worker continued to report a feeling of ongoing instability and pain, although they were able, after the initial period of recovery, to walk without assistance, but used a knee brace and proceeded with caution. The panel noted the worker’s testimony that, following the injury, they self-treated the injury with a brace, pain medication, rest and ice, and that they self-modified their movements so as to minimize reliance upon their left knee as it remained both painful and unstable.

The employer’s position is that the initial medical findings suggest the worker sustained a sprain/strain type of injury to their knee, pointing as well to the fact that the worker was able, after a few weeks, to continue and complete their job-training and begin work without missing any hours. The employer’s position relies upon the opinions of the WCB orthopedic surgery consultant that the absence of certain clinical findings immediately following the injury suggests that the worker did not sustain an ACL injury at that time. The panel noted however that the WCB orthopedic surgery consultant also confirmed that “…the reported left knee hyperextension mechanism of injury can cause an ACL injury” although concluding that “none of the findings in the medical reports shortly after the workplace incident are consistent with an acute left knee ACL injury having occurred….”

The panel considered that the diagnostic findings confirm the existence of the ACL tear as of August 19, 2021. The panel noted that there is no evidence in the file record to suggest that the left ACL tear occurred prior to the date of the workplace accident, nor is there any evidence before us to account for the development of an ACL tear following the date of the accident and before August 19, 2021. Rather, the evidence confirms that the worker was capable of meeting their training requirements prior to the injury on April 12, 2021 and could no longer fully do so afterward. Further, the evidence confirms that the mechanism of injury described in the worker’s evidence and the employer’s reporting is consistent with an ACL tear injury. Although not immediately diagnosed, the panel noted that the treating orthopedic surgeon immediately referred the worker for a diagnostic MRI study, which unfortunately did not take place until four months later. In the meantime, the worker was told to seek further medical attention only if their symptoms worsened, and testified that they implemented various techniques that made it possible to complete the training and start their new job despite the injury. Further, as noted by the worker, during this period, their job duties were somewhat less active than usual given the constraints and limitations imposed within the workplace due to the Covid-19 pandemic. The worker testified to continuing to work their regular duties until after the MRI study and the removal from regular duties to light duties in September 2021.

The panel accepts that the fact the worker continued with their training and was able to successfully complete testing at the conclusion of that training does not indicates that the worker did not injure their left ACL on April 12, 2021, but rather that the worker was quite motivated to complete that training despite their injury. The panel noted the worker’s testimony that they moved to Manitoba expressly for this job opportunity and that their training was unpaid and accepts that these are significant motivational factors that could account for the worker’s persistence in completing their job training even in the face of an unresolved injury.

The panel also considered the opinions provided by the treating medical professionals. The second treating orthopedic surgeon outlined in their April 21, 2022 letter to the worker’s representative that:

“…the ACL tear is in fact quite likely related to the injury. The mechanism of injury, the associated pop sensation, the subsequent swelling and the subsequent pain and instability are all highly typical of an acute ACL tear. Furthermore, the patient reports no previous knee symptoms or instability prior to the injury. Furthermore, the patient’s leg size makes it difficult to assess for an effusion or subtle ligament instability considering that there may be considerable guarding impeding a proper examination of the ACL.”

The surgeon went on to confirm that the “lack of a corroborating clinical diagnosis initially does not exclude” the possibility that the ACL tear was caused by the workplace accident of April 12, 2021. The initial treating orthopedic surgeon explained in their letter to the WCB of December 8, 2021 in respect of their December 2, 2021 assessment of the worker that the worker did have “giving way symptoms” on initial assessment, although noting that the physical examination at that time was negative. They explained the lack of clinical findings to indicate an ACL tear as likely because: “…it takes a while to stretch out secondary restraints to get a good Lachman, a good drawer and a good pivot-shift” noting that even at that time, the worker’s findings just showed Grade 1 Lachman and drawer findings. The initial orthopedic surgeon went on to confirm their view that “…this was not a sprain or strain, it was a complete ACL tear that occurred while training back in April.”

The panel noted that the WCB orthopedic consultant opinion of December 15, 2021 disputed the explanations offered by the initial treating orthopedic surgeon in relation to the absence of clinical findings to indicate an ACL tear in April 2021 and noted that “knee laxity following an acute ACL injury is evident right after the injury (quite frequently on the same day as the injury).” The WCB orthopedic specialist also confirmed their November 8, 2021 opinion that “…based on the medical evidence on file and my personal experience as a knee specialist, the left knee ACL tear identified in the report from the August 19, 2021 left knee MRI cannot be medically accounted for in relation to the April 12, 2021 workplace incident.”

While the panel acknowledges the stated expertise of the WCB orthopedic consultant, we also note that both treating orthopedic surgeons came to a different conclusion than the WCB consultant. Where there are differences in the opinions provided by the treating and consulting physicians in this claim, the panel accepts and gives greater weight to the opinions of the treating orthopedic surgeons who had the benefit of hearing directly from the worker as to their post-accident symptoms.

The panel finds that the evidence indicates the worker did experience swelling and instability in their left knee immediately following the accident. The panel accepts the worker’s testimony that they were medically instructed to apply ice and elevate the knee in the days following the injury, which is a common treatment for swelling, as well as by the worker’s testimony in relation to their continuing feeling of instability, or “giving in” from the date of the accident until the ACL repair surgery. We note that the WCB orthopedic consultant also emphasized in their November 8, 2021 opinion that these are critical findings, stating that “…I have not come across a single case where an individual sustained an acute ACL injury to their knee and had no swelling, normal range of motion, and negative anterior drawer/Lachman/pivot-shift testing in the affected knee after the injury.” While not all of the listed clinical findings are recorded, we are satisfied on the basis of the totality of the evidence, including the conclusions reached by both treating orthopedic surgeons that the mechanism of injury and subsequently reported and recorded symptoms support a finding that the worker sustained a tear to their left knee ACL at the time of the workplace accident. We note that this conclusion is further supported by the WCB orthopedic consultant’s confirmation that the mechanism of injury in this case could have caused an ACL tear.

On the basis of the totality of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker is entitled to benefits for the diagnosis of left anterior cruciate ligament tear as being related to the April 12, 2021 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of March, 2023

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