Decision #66/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after August 10, 2022. A hearing was held on May 7, 2024 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after August 10, 2022.
Decision
The worker is entitled to benefits after August 10, 2022.
Background
A Worker Incident Report was submitted to the WCB on August 16, 2021 reporting the worker injured their left knee when they were struck on the back of their legs by a pallet on a fork lift, while at work on August 10, 2021. The worker sought medical treatment on August 13, 2021 at a local urgent care centre reporting initial mild pain after their left knee was struck by a pallet three days previously, with gradually worsening pain, difficulty ambulating and reduced range of motion. After examining the worker, the treating physician noted tenderness to the medial proximal tibia and femoral condyle of the worker's left knee, pain on flexion to 75 degrees of the left knee, and noted the worker was neurovascularly intact. The worker was diagnosed with a knee injury and was provided with a work note to remain off work for seven days, crutches and a tensor bandage along with a prescription for anti-inflammatory pain medication and a knee brace. An x-ray taken that date was noted to be normal. The Employer Injury Report was provided to the WCB by the employer on August 20, 2021, confirming the worker's description of the mechanism of injury and noting the worker reported feeling fine after the incident but reported their knee being sore the next day.
The worker re-attended the local urgent care centre on August 18, 2021 reporting persistent left knee pain, inability to weight bear and increased swelling as compared to when they were previously seen. The treating physician examined the worker and found swelling to the medial knee without redness or warmth, worsened tenderness over the medial femoral condyle and proximal tibia and that the worker was able to fully extend their knee but could not flex it past 75 degrees. A CT scan conducted that date found no evidence of a fracture or dislocation. The physician provided a further prescription for pain medication and a sick note to remain off work for a further week.
On August 24, 2021, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury, noting they felt immediate pain in their left knee after being struck but continued to work as it was near the end of their shift. They then went home and self-treated their injury. The worker advised they felt pain in their left knee the following day and was unable to bend their knee and did not attend work and attended for medical treatment on August 13, 2021. The worker further advised they continued to experience pain in their left knee, was self-treating with ice and was using the crutches provided by the urgent care centre. The WCB advised the worker their claim was accepted and the payment of various benefits commenced. On the same date, the worker contacted the WCB again to advise the date of accident was August 11, 2021.
On September 7, 2021, the worker was seen by an orthopedic specialist who noted the worker "…ambulates with difficulty with two crutches, one on each side, and is just partially touching down on the left leg." It was noted the worker was guarded and protective of their left knee but the specialist was able to guide the knee through a range of 10 to 90 degrees in flexion. It was recommended the worker try to increase their weight-bearing as tolerated and await the outcome of the MRI that was requested by the urgent care physician. The worker underwent a left knee MRI on September 17, 2021, which found a partial medial collateral ligament tear, grade 2; osteochondral impaction injuries involving the posterior aspect of the lateral femoral condyle and posterior aspect of the lateral tibial plateau; and minimal osteoarthritis with the patellofemoral and medial femorotibial compartments. The MRI study was reviewed with the worker at a follow-up appointment with the orthopedic specialist on October 4, 2021. The specialist noted the mild osteoarthritis findings on the MRI and opined the worker's injury was a "…combination of lateral compartment compression, and medial compartment opening…" Surgical intervention was not recommended, with the specialist emphasizing the worker required active rehabilitation and physiotherapy to deal with issues of post-injury stiffness and functional limitations.
The worker attended for an initial physiotherapy assessment on October 5, 2021 reporting left knee pain and stiffness, unable to bend their knee without pain and unable to weight bear without one crutch. The treating physiotherapist found medial knee redness, pain over the medial collateral ligament with palpitation and pain during a medial collateral ligament stress test. The worker was diagnosed with a medial collateral ligament sprain and further treatment was recommended. During a follow-up appointment on October 19, 2021, the treating orthopedic specialist noted improvement in the worker's condition and a different type of crutch was recommended for the worker. The worker's file was reviewed by a WCB medical advisor on November 10, 2021 who opined the worker's diagnosis in relation to the August 11, 2021 workplace accident was a left knee medial collateral ligament tear and bone bruise, which was supported by the September 17, 2021 MRI and was medically accounted for in relation to the reported mechanism of injury. The advisor further opined the MRI identified pre-existing degenerative changes in the worker's left knee including osteoarthritis in the patellofemoral and medial compartments. A typical recovery for the bone bruise and medial collateral ligament tear was within four to five months. The advisor provided that seated, sedentary duties would be appropriate for the worker at this time and if available, with total disability from working not supported. At a follow-up physiotherapy appointment on November 26, 2021, the physiotherapy recommended the worker could return to work for three hour shifts, twice a week, with seated sedentary work starting on November 29, 2021, if those duties were available from the employer.
The worker's file was reviewed by a WCB medical advisor on November 30, 2021, who opined a cortisone injection proposed by the worker's treating orthopedic specialist was medically accounted for in relation to the workplace accident. In addition, the advisor opined the worker would not be capable of returning to their regular duties after the injection and the restrictions noted by their physiotherapist on November 26, 2021 would be appropriate. It was noted the worker's pre-existing degenerative condition in their left knee would likely prolong the worker's recovery from a medial collateral ligament tear and bone bruising to six months from the date of injury and requested the worker's file be returned to them in two months' time for further review and possible recommendation for a follow-up MRI study. Updated restrictions were provided by the worker's treating physiotherapist on December 30, 2021 and sent to the employer who advised on January 5, 2022 they could not accommodate the worker. A further review of the worker's file took place on February 1, 2022 by the WCB medical advisor. The advisor noted the worker was still within the "expected recovery window" for their injury and suggested a discussion regarding a further left knee MRI could take place if the worker was not able to progress back to full work duties over the next four to six weeks. It was recommended a WCB physiotherapy advisor review the worker's file and discuss with their treating physiotherapist an expected time frame for the worker to return to their full duties. Further updated restrictions were provided to the employer on February 24, 2022, who advised the WCB on the same date they were unable to accommodate the worker until they could return to their full regular duties.
On March 9, 2022, the worker was seen for follow-up with their treating orthopedic specialist. The specialist noted improvement in the worker's range of motion in their left knee, recommended the worker stop wearing the knee brace and referred the worker to another orthopedic surgeon. The worker was seen by the second orthopedic surgeon on March 22, 2022. The surgeon examined the worker and found the worker had flexion to 90 degrees in their left knee, pain along both joint lines, more on the medial aspect, and some discomfort along the patellofemoral facet. Previous x-rays were reviewed and "…some moderate degenerative narrowing to the medial compartment of the knee" was noted. The surgeon recommended continued non-surgical treatment. The worker underwent a left knee MRI on April 8, 2022, which indicated "Heling of the MCL (medial collateral ligament) strain is noted as well as the osteochondral injuries in the posterior lateral femoral condyle and tibial plateau. Cystic chondromalacia of the central femoral trochlea persists but this is unaltered." A diagnostic arthroscopy was recommended by the second treating orthopedic surgeon after reviewing the results of the MRI with the worker on April 27, 2022.
At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on June 1, 2022. After examining the worker, the advisor opined "[The worker] exhibits diffuse left knee pain and a limp that cannot be medically accounted for in relation to the August 11, 2021 workplace incident as the compensable diagnoses in relation to the August 11, 2021 workplace incident have all healed based on the report from the April 8, 2022 left knee MRI." It was noted the September 17, 2021 left knee MRI identified pre-existing osteoarthritis in the worker's patellofemoral and medial compartments of their left knee and as the April 8, 2022 MRI indicated healing from the accepted compensable workplace injuries, the advisor opined the pre-existing condition was the cause for the worker's current left knee difficulties. It was also provided the pre-existing condition was not enhanced by the August 11, 2021 workplace accident as the April 8, 2022 MRI referred to the left knee chondromalacia being unaltered when compared to the previous MRI. The WCB medical advisor further noted the variety of the worker's reported range of motion in their left knee on various medical reporting and found that the worker could demonstrate full or nearly full extension of their left knee two days after the incident while receiving medical treatment at the local urgent care centre, at an appointment with the orthopedic specialist seven months later and at the June 1, 2022 call-in examination. As such, the WCB medical advisor noted the WCB would not support the proposed arthroscopic surgery proposed by the worker's treating orthopedic surgeon. A letter denying WCB support for the left knee surgery was sent to the surgeon on July 13, 2022.
The WCB advised the worker on July 25, 2022, it had been determined their current left knee difficulties were not related to the August 12, 2021 workplace accident and their entitlement to benefits would end as of August 10, 2022. On October 7, 2022, the worker's representative submitted an October 5, 2022 report from a physician with an interest in occupational medicine and requested the WCB review their decision to end the worker's entitlement to benefits. The October 5, 2022 report summarized the physician's meetings with the worker on March 2, 2022, April 7, 2022, July 28, 2022, August 11, 2022 and September 1, 2022. During those appointments, the physician noted the worker indicated their physical discomfort in their left knee region with a limping gait and increasing discomfort with palpitation and movement of the knee into flexion. The treating physician concluded the worker had not recovered from the August 11, 2021 workplace accident and required further treatment. In addition, the physician noted their belief the worker would not be able to return to their pre-accident job duties.
On October 11, 2022, the WCB received copies of the worker's diagnostic imaging, which at the request of the WCB medical advisor, was sent for an imaging review by a WCB radiological consultant. The consultant placed the results of their review to the worker's file on October 30, 2022. In summary, the consultant noted the August 13, 2021 x-ray of the worker's left knee was normal, with no evidence of an acute or healing fracture, with a more current x-ray taken February 9, 2022, indicating mild-moderate degenerative narrowing of the medial femorotibial compartment. Further, the consultant noted the April 8, 2022 MRI indicating a healed sprain and fracture indicated on the earlier September 17, 2021 MRI, and noted progression of the chondral loss and chondromalacia in the worker's left knee. On November 14, 2022, the WCB medical advisor placed a further opinion to the worker's file noting based on the diagnostic imaging review, there would be no change to their earlier decision the worker's current left knee difficulties were not medically accounted for in relation to the August 11, 2021 workplace accident. On November 22, 2022, the worker's representative was advised there would be no change to the WCB's decision the worker was not entitled to benefits after August 10, 2022.
The worker requested reconsideration of the WCB's decision to Review Office on December 16, 2022. The worker submitted a copy of their patient instructions, indicating they had undergone arthroscopic surgery on December 9, 2022. Review Office determined on January 17, 2023 the worker was not entitled to benefits after August 10, 2022. Review Office accepted and agreed with the opinions of the WCB medical advisors on the worker's file and found the worker had recovered from the compensable injuries of August 11, 2021 and the medical evidence supports their pre-existing degenerative changes were the cause of the worker's current left knee difficulties. On June 7, 2023, the worker's representative submitted additional medical evidence from the worker's treating family physician, orthopedic specialist and orthopedic surgeon and requested Review Office reconsider the decision. In their submission, the representative provided the evidence supported the worker did not recover from the workplace accident and required an arthroscopic surgery, including debridement and as such, was entitled to further benefits. On July 4, 2023, Review Office again determined the worker was not entitled to benefits after August 10, 2022. Review Office acknowledged the representative's comments that diagnostic imaging was not sent to the WCB in a timely manner however, noted the review by the WCB radiologist consultant indicated the worker had healed from the August 11, 2021 workplace accident and found the decision to end the worker's entitlement to benefits after August 10, 2022 was correct. A further request was made to Review Office on November 8, 2023 by the representative, enclosing a copy of an October 25, 2023 report from the worker's treating orthopedic specialist. The representative indicated the specialist's disagreement with the WCB medical advisor's opinion the worker had completely recovered from the workplace accident and noted the "…unusual nature…" of the worker's injury, opined the worker may be developing chronic pain syndrome and suggested a pain management specialist for the worker. Review Office again upheld the decision of the WCB on December 11, 2023, and found the worker was not entitled to benefits after August 10, 2022. Review Office found the report of the worker's treating orthopedic specialist regarding the worker's development of a left knee pain/syndrome was speculative and gave more weight the opinion of the WCB medical advisor. Review Office further found the medical evidence supported the worker had recovered from the workplace accident and was not entitled to further benefits.
The worker's representative filed an appeal with the Appeal Commission on December 18, 2023 and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, (the "Act") the regulations under the Act and the policies established by the WCB's Board of Directors.
Under Section 4(1) of the Act, a worker is entitled to benefits when it is established that a worker has been injured as a result of an accident at work. Under Section 4(2) of the Act, 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 Section 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.
The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This Policy sets out that:
A pre-existing condition is any medical condition the worker had prior to their workplace injury. Pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can also have an effect on pre-existing conditions. When a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.
In respect of the entitlement to wage loss benefits, the Policy sets out that wage loss benefits are payable to a worker when the WCB determines that they have a loss of earning capacity resulting in part from a workplace injury and in part from a non-compensable pre-existing condition or the relationship between them; however, entitlement to wage loss benefits will end when a worker has recovered from the workplace injury to the point that the injury is no longer contributing, to a material degree, to their loss of earning capacity, and the pre-existing condition is not a compensable condition.
WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy"). Section 27 of the Act authorizes the WCB to fund such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident. The Medical Aid Policy defines key terms and sets out general principles regarding a worker's entitlement to medical aid.
Worker’s Position
The worker was represented by a worker advisor at the hearing. The worker also had the support of their spouse and an interpreter during the hearing. The worker and the advisor made oral submissions to the panel and relied on their past written submissions dated June 7th, 2023 and November 8th, 2023.
The position of the worker, as outlined by the worker advisor, is that the worker had not recovered from the workplace accident when benefits ended. The worker states that there is a difference of opinion between the WCB medical consultant and the worker’s treating medical providers. The worker further states that their treating medical providers, their family physician and their treating physiotherapist all support the argument that the worker had not recovered from the accident as of August 10, 2022.
In addition, the evidence of the worker is that he had not recovered. The worker also points to the physical demands of their pre-accident employment and the fact that they had no issues doing these duties and no pain with their knee prior to the accident.
The worker advisor also argues that the WCB continues to investigate well beyond the date they ended the benefits for the worker, evidenced by the request by the WCB medical consultant in October 2022 for a specialist’s review of the imaging results and the WCB medical consultant memorandum dated November 13, 2022, and submits that the worker’s benefit coverage ought to be extended to the date the WCB continues to engage in an investigation of whether the worker's compensable injuries had in fact resolved.
Therefore, the worker submits that their benefits should have continued and requests that the panel approve their appeal.
Employer’s Position
The employer did not participate in the appeal.
Analysis
This appeal arises from the decision of the WCB that the worker is not entitled to benefits beyond August 10, 2022. For the worker’s appeal to succeed the panel would have to find that the worker continued to require medical aid or to sustain a loss of earning capacity resulting from the workplace injury of August 10, 2021 after August 10, 2022. As detailed in the reasons that follow, the panel was able to make such a finding.
The panel accepts the evidence of the worker that there were physical demands of his work and that he had no difficulties with his knee prior to the accident. The panel also accepts the evidence of the worker that he continues to experience serious knee pain and difficulties which started when he had the workplace accident.
The panel considered whether there is evidence that the worker recovered from the injury. The panel has reviewed the medical evidence and notes that this was characterized as a relatively high force injury by the treating orthopedic surgeon. The treating orthopedic surgeon notes in February 2022 that the worker “may be getting some post traumatic arthritis” and comments of the atypical nature of the injury. The orthopedic surgeon references the pre-existing issue (trace patellofemoral arthritis and mild medial compartment arthritis) in determining the mechanisms of injury. The fact that there was a referral by the initial orthopedic surgeon to another orthopedic surgeon for a second opinion, and eventually a recommendation for diagnostic arthroscopy, confirms to the panel that there were some questions as to what the diagnosis was with respect to the worker’s knee. In fact, there appears to be continued queries by the treating orthopedic surgeons throughout the file as to the ongoing problem with the worker’s knee, which is in their opinion related to the compensable injury. It does not appear that the question of post traumatic arthritis was fleshed out by the orthopedic surgeons or the WCB medical consultant. The panel also reviewed the notes from the treating physiotherapist which confirmed that the worker continued to have persistent pain, stiffness and locking of the knee throughout his course of physiotherapy treatment and that there was limited improvement in function or symptoms. On the Physiotherapist Discharge Report dated June 29, 2022, the physiotherapist indicated “Total Disability” under the heading “current work capabilities as a result of injury.”
The panel acknowledges the opinion of the WCB medical consultant that the current left knee condition is not medically accounted for in relating to the workplace incident. However, the panel prefers the evidence of the treating orthopedic surgeons, the family physician and the treating physiotherapist, which all confirm that the worker had not recovered from the accident as of August 10, 2022. The panel relies heavily on the evidence of the pre-accident functions of the worker and the limited post-accident functions.
Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel finds that the knee pain and difficulties that the worker experienced after August 10, 2022, are causally related to the compensable workplace injury of August 10, 2021. Therefore, we find that the worker is entitled to wage loss and medical aid benefits after August 10, 2022.
The worker’s appeal is granted.
Panel Members
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of July, 2024