Decision #119/23 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's left medial meniscal tear should be accepted as being a consequence of the March 2, 2022 accident. A hearing was held on August 30, 2023 to consider the employer's appeal.
Whether or not the worker's left medial meniscal tear should be accepted as being a consequence of the March 2, 2022 accident.
The worker's left medial meniscal tear should be accepted as being a consequence of the March 2, 2022 accident.
On March 18, 2022, the employer provided an Employer’s Incident Report to the WCB indicating the worker injured their left knee in an incident at work on March 2, 2022, which they reported to the employer on March 11, 2022. The employer described that when the worker was using a sledgehammer to loosen some bricks, the hammer bounced back, striking the worker on the right side of their left knee. The employer noted the worker continued to work but since that time, their knee had swollen, and they were having difficulty with walking on it.
The worker sought treatment from a sports medicine physician on March 14, 2022, reporting an impact injury at work to the medial aspect of their left knee and that they continued working afterward. The worker reported increasing symptoms of pain, swelling, bruising, and difficulty with full flexion since the injury. On examination, the physician noted some bruising at the distal medial thigh, just above the knee, no medial joint or medial collateral ligament region tenderness, full range of motion and pain at the end range of full extension and flexion. The physician recorded normal ligament testing, with some tenderness over the medial aspect of the worker’s thigh and diagnosed a contusion, noting “…unlikely internal derangement injury of the knee” and recommending icing, heat, and light activity.
At a further appointment with the sports medicine physician on March 28, 2022, the worker reported ongoing difficulties with their left knee, including tightness and indicated they were limiting their activities as recommended. The physician referred the worker for an x-ray which indicated no abnormalities. Clinical findings included full strength in flexion, extension, adduction and abduction, and the physician indicated the worker was improving and that while still symptomatic, the worker did not have decreased capacity.
When the WCB contacted the worker on April 25, 2022 to discuss their claim, the worker confirmed the mechanism of injury and indicated at the time it occurred, they believed it was a minor injury, but their symptoms increased approximately five days later. The worker advised that they planned to obtain physiotherapy. On April 26, 2022, the WCB contacted the worker’s supervisor who confirmed the incident on March 2, 2022 and advised that the worker “…cried out with pain but was fine and continued to work” after the incident. On April 25, 2022, at initial physiotherapy assessment, the physiotherapist diagnosed a contusion.
The WCB accepted the worker’s claim on May 25, 2022.
On June 9, 2022, the physiotherapist noted the worker’s report of pain with repetitive twisting and bending and difficulty with stairs. They examined the worker and noted limited flexion, a positive medial collateral ligament test and tenderness on palpitation of the medial collateral ligament and joint. The physiotherapist noted the worker’s recovery was not satisfactory and that the worker was seeing their physician for referral for an MRI study. The treating sports medicine physician saw the worker on June 15, 2022, noting medial joint line tenderness, a positive McMurray test medially and slightly limited range of motion with flexion. They referred the worker for an MRI. On June 17, 2022, the physiotherapist updated the diagnosis to a possible/suspected meniscal tear.
The left knee MRI study of August 10, 2022 indicated “…a horizontal tear of the posterior horn of the medial meniscus extending through to the mid body where there is a small flipped fragment into the peripheral inferior recess.” On August 19, 2022, the treating sports medicine physician reviewed the MRI findings with the worker and referred the worker to an orthopedic surgeon for further treatment.
A WCB orthopedic surgery consultant who reviewed the worker’s file on August 25, 2022 concluded based on the March 14, 2022 medical report that the diagnosis arising from the workplace accident was a left thigh contusion, and that the current diagnosis of left knee medial meniscus tear was based on the August 10, 2022 MRI study and the findings of left knee medial joint line tenderness and a positive McMurray’s test from a June 15, 2022 medical report. The consultant opined that the medial meniscus tear was not medically accounted for in relation to the March 2, 2022 workplace accident as the medical information in closest proximity to the workplace accident did not support the worker sustained a meniscal tear. They noted that such a tear presents “…with findings such as medial joint line tenderness, decreased range of motion, (sic) and a positive McMurray’s test in the affected knee in close proximity to the knee injury.” The WCB consultant also noted the natural history of recovery from a thigh contusion to be within three months of the injury.
On September 9, 2022, the WCB advised the worker it had determined they recovered from the March 2, 2022 workplace accident and were not entitled to further benefits. Further, the WCB advised the worker their diagnosis of a left knee medial meniscus tear was not medically accounted for in relation to the workplace accident.
On September 19, 2022, the WCB received a report from the treating sports medicine physician who confirmed the initial medical reports on their file “…indicated more of a contusion to the knee rather than a medial meniscal tear” and went on to state that it was possible, based on the reported mechanism of injury, that the worker tore their medial meniscus; however, the worker’s presentation was “…atypical for a meniscus tear today.” On September 21, 2022, the WCB advised the worker the physician’s report did not provide any new medical information and there would be no change to the September 9, 2022 decision.
The treating orthopedic surgeon submitted a further report to the WCB on October 18, 2022, noting that the worker was currently experiencing some medial joint line pain, with intermittent activity-related swelling but was continuing to work. The surgeon stated that the mechanism of injury did account for a medial meniscus tear “…given the acute onset of pain and swelling and ongoing medial joint line pain symptoms as well as MRI scan findings.” They recommended a left knee arthroscopy with a partial medial meniscectomy if required.
The WCB orthopedic surgery consultant reviewed the new medical information and the worker’s file on November 9, 2022, and noted that the orthopedic surgeon examined the worker’s left knee approximately 8 months after the March 2, 2022 workplace accident and was likely not aware of the March 14, 2022 report by a sports medicine physician that indicated full range of motion in the worker’s left knee, no medial joint line tenderness, no meniscal findings and no reported swelling, all of which did not support a meniscal tear. The WCB consultant concluded the new medical reports did not support a conclusion that the meniscal tear was related to the workplace accident and there would be no change to the earlier opinion.
On January 16, 2023, the worker’s representative requested the WCB reconsider the decision that the worker was not entitled to further benefits, submitting an opinion from the treating physiotherapist and copies of medical articles on asymptomatic meniscal tears. The worker’s representative submitted that the evidence supported a finding that the worker sustained a left knee meniscus tear as a result of the March 2, 2022 workplace accident and should be entitled to further benefits, including the proposed arthroscopic surgery.
On January 23, 2023, the WCB orthopedic surgery consultant outlined in a memorandum to the worker’s claim file that they spoke with the treating orthopedic surgeon and the surgeon agreed the medical evidence, specifically the March 14, 2022 Doctor Report, did not support the worker sustained an acute left knee medial meniscus tear in the workplace accident. On the same date, the WCB advised the treating orthopedic surgeon that the WCB did not accept responsibility for the proposed left knee arthroscopy.
On January 31, 2023, the worker’s representative requested that Review Office reconsider the WCB’s decision. On February 23, 2023, the worker submitted a copy of the January 25, 2023 operative report indicating they underwent a left knee partial medial meniscectomy and a partial synovectomy and provided a chronology of the medical treatment received since the March 2, 2022 workplace accident. On March 1, 2023, the worker submitted a further opinion from their treating orthopedic surgeon, noting disagreement with the opinion provided by the WCB consultant as well as with the characterization of their conversation with the WCB consultant.
On April 14, 2023, the employer provided a submission in support of the WCB’s decision the worker was not entitled to further benefits for a left medial meniscus tear, a copy of which was provided to the worker on April 18, 2023, who provided a further response on May 4, 2023.
Review Office overturned the WCB’s decision on May 5, 2023 and determined the worker’s left knee medial meniscus tear was a compensable condition, returning the worker’s file to the WCB for further adjudication. Review Office found that although the worker’s symptoms were atypical for a meniscus tear, the mechanism of injury, the medical evidence on file and the opinion of the worker’s orthopedic surgeon supported the diagnosis of a left knee meniscus tear that occurred as a result of the March 2, 2022 workplace accident.
The employer filed an appeal with the Appeal Commission on May 11, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on October 18, 2023 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 provisions of The Workers Compensation 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 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.”
The employer was represented in the appeal by its WCB specialist, who made an oral submission on behalf of the employer in support of the appeal and provided a further written submission upon review of the additional information obtained by the appeal panel after the hearing.
The employer’s position is that the evidence does not support a finding of a causal relationship between the worker’s left medial meniscal tear and the workplace accident; therefore, this injury should not be accepted as being a consequence of the March 2, 2022 accident. The employer submitted that based on the opinions of the WCB orthopedic surgery consultant, as well as the medical findings in nearest proximity to the accident, and the absence of specific findings to indicate the worker sustained a traumatic left medial meniscal tear in the accident, the panel should determine that meniscal tear did not occur as a result of the accident. Rather, this was a horizontal complex posterior medial meniscus tear that was pre-existing, and was not caused, aggravated, or enhanced by the March 2, 2022 accident.
The employer’s advocate submitted that Review Office did not give sufficient consideration to the lack of clinical findings in support of the worker’s position, noting that the WCB orthopedic surgery consultant confirmed in their August 25, 2022 opinion that certain clinical findings are necessary to diagnose an acute meniscal tear, and that in the absence of such findings, there is no evidence to support a finding that the worker’s meniscal tear was caused by the workplace accident. The advocate noted that the earliest clinical findings, from the worker’s assessment by their family physician on March 14, 2022 do not indicate that the worker sustained the tearing in the March 2, 2022 accident, and do not indicate any reduced range of motion, nor bruising over the left knee joint, tenderness over the left medial joint line or medial collateral ligament, instability of the left knee or positive McMurray’s test. As noted by the WCB consultant, the “…reported findings are not concordant with a left knee medial meniscus tear having occurred in relation to the March 2, 2022 workplace incident as an acute medial meniscus tears (sic) presents with findings such as medial joint line tenderness, decreased range of motion, and a positive McMurray’s test in the affected knee in close proximity to the knee injury.”
The employer’s advocate further noted the January 23, 2023 opinion of the WCB orthopedic consultant as to the lack of findings noted in the medical report from March 14, 2022, including the absence of findings consistent with a left knee medial meniscus tear, and further, that the horizontal meniscus tear pattern identified in the worker’s August 10, 2022 MRI study is “overwhelmingly degenerative in nature” and therefore more likely to be pre-existing.
The employer’s advocate submitted that the opinion of the treating orthopedic surgeon that the worker sustained a traumatic medial meniscus tear as a result of the workplace accident is speculative and appears to discount the lack of clinical indicators of a traumatic medial meniscus tear on initial assessment.
The advocate also noted the worker’s initial statements to the WCB that they did not at first believe the injury to be serious, that the worker did not formally report the injury to the employer until more than one week later, and that the worker did not seek medical treatment until 12 days after the accident. The advocate submitted that these facts supports their position that the worker did not sustain the medial meniscal tear at that time.
In sum, the employer’s position is that the worker’s left medial meniscus tear should not be accepted as a consequence of the March 2, 2022 accident as the evidence does not support that conclusion.
The worker appeared in the hearing supported by a union representative. The worker made an oral submission and provided testimony in support of their position.
The worker’s position is that the evidence confirms that they sustained a left medial meniscal tear on March 2, 2022 in the compensable workplace accident and therefore the employer’s appeal should be denied.
The worker described how the injury occurred on March 2, 2022, noting that they were positioned on a roof in a squatting position and using a sledgehammer to hit an item situated below their feet when the sledgehammer rebounded from the surface and hit the worker’s right knee, causing their right foot to slip into a “varus position”. The worker confirmed they continued to work to the end of their shift and informed their supervisor of what happened at that time. The worker stated that they took a “walk it off” approach to the injury and worked their next shift as well. The worker confirmed the sledgehammer hit the inside centre point of their knee and that it was painful afterward, causing them to limp. The worker described that bruising appeared five days later, and then swelling, and they sought medical attention at that point, following the instructions of their treating physician to continue working. The worker stated that as their bruising healed, symptoms of a meniscal injury began to appear, and confirmed they treated their symptoms with over-the-counter anti-inflammatory medication and ice.
Noting the WCB orthopedic surgery consultant’s comments in respect of the lack of clinical findings on March 14, 2022, the worker commented that all clinical testing results were negative up to the time of the meniscal repair surgery, despite the findings from the August 2022 MRI study. The worker also noted that the surgical report indicates there were no findings consistent with a degenerative meniscus as suggested by the WCB orthopedic surgery consultant and that the treating orthopedic surgeon is resolute in their opinion that the worker’s left medial meniscus tear was caused by the workplace accident.
The worker also confirmed they did not have any prior left knee issues and did not take part in any non-work physical activity such as hockey, skating or curling, nor work at any other job in the period after the accident occurred and before the MRI study.
In sum, the worker’s position is that the evidence supports a finding that they sustained a tear to their left medial meniscus in the March 2, 2022 workplace accident and therefore the employer’s appeal should be denied.
The question on appeal is whether the worker's left medial meniscal tear should be accepted as being a consequence of the March 2, 2022 accident. For the employer’s appeal to succeed, the panel would have to determine that the worker’s left medial meniscal tearing did not occur as a result of that workplace accident. As outlined in the reasons that follow, the panel was unable to make such a determination and therefore, the employer’s appeal is denied.
In reviewing the evidence, the panel considered whether the mechanism of injury as described by the worker in the hearing and as outlined in the WCB claim file could account for a tear of the worker’s medial meniscus. We note that the treating orthopedic surgeon stated in their opinion of February 28, 2023 that when the sledgehammer struck the worker’s knee,
“…it caused a significant force across [their] knee. This forced the knee into a varus position, and likely a rotational component as well. With this mechanism of injury, a compression force would be applied over the medial compartment, in the process compressing [the] medial meniscus. Any sort of rotational component would further add stress to the meniscus, potentially causing a tear. This mechanism of injury would correlate well with a medial meniscus tear.”
The panel also noted that the initial treating orthopedic specialist indicated in their September 19, 2022 report to the WCB that:
“With respect to the possibility that this is related to the effects of the injury, it is possible, that with the mechanism of injury described (including the twisting maneuver that [the worker] reported occurred after [they were] struck with the sledge hammer, [they] could have torn the meniscus. [The worker’s] presentation is atypical for a meniscus tear today. This atypical presentation may have hidden pathology.”
The panel also considered that the worker subsequently reported symptoms of acute pain with swelling and bruising, but no medial joint line tenderness and negative clinical testing results until mid-June 2022. We note the employer’s position that the post-accident clinical findings do not support a finding that the medial meniscal tear occurred at the time of the workplace accident and agree that the evidence, including both medical reporting and the worker’s own testimony, does not accord with the expected findings in relation to medial meniscal tearing as outlined by the WCB orthopedic surgery consultant. The treating orthopedic surgeon and treating physiotherapist also confirmed this to be the case, and as a result, described the worker’s presentation as atypical.
The panel noted that the diagnostic imaging and later surgical findings confirmed the presence of a horizontal medial meniscal tear, which the treating orthopedic surgeon described as complex, significant, and acute. The panel also noted that despite confirmation of that tear, the worker’s presentation and clinical findings were essentially the same before and after the tear was identified. The MRI imaging confirmed that the worker sustained this injury at some time before the date of that imaging in August 2022, and there were clinical findings suggestive of such an injury beginning in mid-June 2022, but the clinical findings both before and after the MRI study did not confirm a medial meniscal tear. The panel considered the explanation offered by the treating orthopedic surgeon for this discrepancy, as set out in their report of February 16, 2023:
“My position is that [the worker] did sustain a traumatic medial meniscus tear as a workplace injury, and that the mechanism of injury would fit perfectly with the pathology that has been encountered. There has been some confusion surrounding this, because the initial examination…did not correlate with an acute medial meniscal tear, and the clinical findings were more consistent with contusion…. I think on the balance of probabilities the initial clinical conclusion was incorrect. Certainly this can happen, and does happen to us all where the initial clinical findings don’t match up with diagnosis. I think the fact that [they] never recovered from this injury despite rehab, the fact that an MRI scan confirmed the medial meniscus tear, and the fact that surgery uncovered a fairly significant medial meniscus tear, to me is a larger piece of evidence to the puzzle.”
The panel also noted that the treating orthopedic surgeon’s explanation also aligns with the opinion of the treating orthopedic specialist in their September 19, 2022 report, based on their examination of the worker and review of the MRI findings:
With respect to the possibility that this is related to the effects of the injury, it is possible, that with the mechanism of injury described (including the twisting maneuver that [the worker] reported occurred after [they were] struck with the sledge hammer, [the worker] could have torn the meniscus. [Their] presentation is atypical for a meniscus tear today. This atypical presentation may have hidden pathology.”
We also noted the treating physiotherapist’s letter of September 20, 2022, which sets out that based on the mechanism of injury, reported symptoms and the MRI study report “…it is the opinion of the therapist that a medial meniscal injury was present at the time of the assessment, but was undetected by clinical testing due to false-negative results.” However, the WCB orthopedic surgery consultant disagreed with this view, noting that “It is not just the absence of positive meniscal testing in the March 14, 2022 Report, but rather the absence of any findings consistent with a left knee medial meniscus tear in the report that suggest that the current left knee medial meniscus tear is not related to the workplace incident.”
The employer’s representative relied upon the WCB orthopedic surgery consultant’s opinions as confirming that the evidence does not support a finding that the worker sustained the meniscal tear as a result of the workplace accident, but the panel noted the absence of evidence that the worker’s left medial meniscal tearing occurred at any other time, whether before or after the date of the workplace accident. We also noted that following the accident, and consistent with the instruction of their treating medical providers, the worker continued to work but testified they did not participate in any sports or other physical activity other than their work after the injury occurred. Further, the panel noted the first report of left knee symptoms was immediately after the injury, and there is no indication the worker had any such symptoms prior to the accident. The panel also noted that the medical reporting indicates consistency of findings and reported symptoms following the injury, with rehabilitative treatment not providing the expected recovery.
In attempting to reconcile the opinions of the treating medical providers, including the orthopedic surgeon, with the opinion outlined by the WCB orthopedic surgery consultant, the panel noted that the treating providers had the benefit of personally examining the worker, and the treating orthopedic surgeon also was able to examine the injury itself during the surgery in January 2023. While the WCB consultant based their conclusion on the expected findings in relation to a horizontal medial meniscal tear, the treating providers based their conclusions on the actual clinical and ultimately, surgical findings. Furthermore, while the WCB consultant concluded the worker’s meniscal tear was likely the natural result of a degenerative condition, the treating orthopedic surgeon confirmed their view based on the diagnostic imaging and operative findings that the worker’s “complex posterior horn medial meniscus tear” was of a pattern that would correlate with a traumatic tear as opposed to a degenerative tear, which they indicated was supported by the worker’s “relatively young age, and lack of chondromalacia.” The panel, in this case, preferred and gave greater weight to the opinion of the orthopedic surgeon who assessed, treated, and repaired the worker’s injury, as well as to that of the treating orthopedic specialist.
Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s left medial meniscal tear should be accepted as being a consequence of the March 2, 2022 accident. The employer’s appeal is therefore denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of November, 2023