The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the proposed left knee surgery. A file review was held on February 1, 2024 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the proposed left knee surgery.

Decision

Responsibility should not be accepted for the proposed left knee surgery.

Background

A Worker Incident Report was provided to the WCB on October 13, 2022, reporting the worker injured their left knee in an incident at work on October 11, 2022. The worker described slipping on the floor, falling on their back and twisting their left leg behind them as they fell. The worker noted it was the end of their shift, and when they arrived home, found their left knee was sore, which they self-treated with ice and rest. The following day, the worker found their knee was swollen and sore and they had pain going down stairs or lifting from the floor. Although the worker sought medical treatment on October 13, 2022, the physician’s report was not provided to the WCB until December 6, 2022. The physician’s report noted a slip and fall on a wet floor at work and complaints of tender left knee when walking. The physician examined the worker and found tenderness, decreased range of motion, and a slight effusion on the worker’s left knee. The worker was diagnosed with a left knee strain and referred to physiotherapy and to a sports medicine physician. An x-ray taken that date noted a very tiny linear-separated bony fragment adjacent to the medial epicondyle, which was noted to possibly be an old minor avulsion fracture. A Sickness Certificate was provided, placing the worker off work to October 18, 2022 and recommending restrictions of no bending/twisting, no lifting/pushing/pulling more than 15 pounds, standing and walking only as tolerated from October 19, 2022 to November 2, 2022.

The worker attended for an initial physiotherapy assessment on October 13, 2022 reporting constant aching knee pain with intermittent sharp pains when descending stairs, prolonged standing, twisting of the knee and bending. Upon examining the worker, the physiotherapist found an antalgic gait pattern, moderate left knee effusion, reduced range of motion, with weak and painful knee flexion, positive left-sided meniscal provocation testing and medial joint line tenderness. A diagnosis of a left meniscal sprain/tear was provided and restrictions of sedentary duties only, with the ability to change positions as needed were recommended for two weeks.

On October 14, 2022, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and advised the employer had contacted them to arrange for the worker to be accommodated on modified duties as of October 19, 2022. The WCB advised the worker their claim was accepted. The worker confirmed they returned to work on October 19, 2022 and on October 27, 2022, advised the WCB their knee was feeling much better, with some pain noted when lifting their knee to tie shoes and tightness when walking long distances.

The worker was seen on November 29, 2022 by a sports medicine physician. The worker reported slipping on the floor, hitting their knee on the ground and experiencing swelling and bruising. Complaints of medial and posterior pain, worse with certain movements but overall improvement were noted and a diagnosis of a possible meniscal tear and a query of an undisplaced fracture was made. The worker was referred for an MRI study and continued physiotherapy. The sports medicine physician also requested a left knee x-ray which indicated "There is a joint effusion. A small ossification is present peripheral to the medial femoral condyle which could be from remote MCL (medial collateral ligament) injury or from an acute avulsion by the MCL. No other suspect fracture is noted." The left knee MRI study took place on December 19, 2022 and indicated the worker had a complete posterior cruciate ligament (PCL) tear.

The worker attended for a follow-up appointment with the treating sports medicine physician on December 22, 2022 to discuss the results of the MRI study. The change in diagnosis to a complete PCL tear was noted, a PCL brace was recommended along with continuing physiotherapy. The worker was referred to an orthopedic surgeon for an opinion. On June 7, 2023, the worker attended an appointment with the orthopedic surgeon, reporting ongoing significant pain with some swelling and occasional mechanical and snapping symptoms to the back of their left knee. On examining the worker, the orthopedic surgeon noted an effusion to the left knee with some minor quads wasting, full range of motion and no medial or lateral joint line tenderness. A positive grind and anterior draw test were noted with other testing showing negative. The surgeon discussed options with the worker indicating their belief the worker did not require PCL reconstruction as they only had "…a minor amount of PCL laxity" and noting "…the vast majority of PCL deficient patients do well without surgical intervention in terms of reconstruction" and recommended further physiotherapy treatment focused on building quad strength. The surgeon did recommend a left knee arthroscopy with a possible debridement of the patellofemoral articular surface to address the retropatellar surface of the worker's left knee.

The worker's file was reviewed by a WCB orthopedic consultant on July 12, 2023 for approval of the arthroscopic surgery proposed by the worker's treating orthopedic surgeon. The consultant opined the worker's accepted compensable diagnosis was a left knee PCL tear, for which the treating surgeon recommended non-operative treatment. The left knee arthroscopic debridement surgery was directed at the "…reported finding of chondral fissuring of the left knee patella and lateral tibial plateau…" found on the December 19, 2022 MRI, which was considered to be a pre-existing condition not medically accounted for in relation to the October 11, 2022 workplace accident. As such, the WCB orthopedic consultant said responsibility for the proposed arthroscopic surgery was not accepted. On July 20, 2023, a letter was sent to the worker's treating orthopedic surgeon, with a copy to the worker, advising the WCB would not accept responsibility for the proposed surgery.

On August 23, 2023, the worker requested reconsideration of the WCB's decision that responsibility should not be accepted for the proposed arthroscopic surgery. The worker noted their treating orthopedic surgeon recommended the surgery and their belief the surgery was targeted at an injury they sustained as a result of the October 11, 2022 workplace accident. On October 10, 2023, the employer provided a submission to Review Office in support of the WCB's decision, a copy of which was provided to the worker who provided a response on October 11, 2023. Review Office determined on October 12, 2023, responsibility would not be accepted for the proposed left knee surgery. Review Office accepted and agreed with the opinion of the WCB orthopedic consultant noting the worker's pre-existing degenerative changes in their left knee were not caused or structurally changed by the October 11, 2022 workplace accident and accordingly, the proposed arthroscopic surgery would not be covered by the WCB.

The worker filed an appeal with the Appeal Commission on October 30, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Section 39 of the Act outline that wage loss benefits will be paid when an injury to the worker results in a loss of earning capacity until such time as the worker’s loss of earning capacity ends, or the worker reaches 65 years of age.

The term “accident” is defined in Subsection 1(1) of the Act and provides as follows:

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace, 

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

Many workers who experience a workplace injury also have a pre-existing condition. The fact that the worker has a pre-existing condition does not disentitle them to compensation for their workplace injury. However, the workers compensation system is designed to compensate workers for workplace injuries, not all injuries. It is often necessary, therefore, to distinguish between a worker's pre-existing condition and their workplace injuries.

The Pre-Existing Conditions Policy further provides:

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.

Worker’s Position

The worker was self-represented and provided the panel with a written submission.

The worker indicated their disagreement with the WCB decision that the chondral fissuring to the left knee patella and lateral tibial plateau were preexisting. The worker further commented that if the degeneration occurred prior to the workplace accident, it did not cause them any problems. The problems only occurred after the accident. In the worker’s view, when their kneecap contacted the floor, it caused damage to the front of the knee as well as the back and during the course of which incident the PCL was completely severed.

Despite extensive physiotherapy, the worker noted that their knee continues to cause pain and discomfort and is clicking and catching. It requires icing and rest when swollen. The worker says that they did not experience pain and discomfort in their knee prior to the workplace accident. The worker therefore feels that they should be entitled to coverage for the proposed left knee debridement and surgery.

Employer’s Position

The employer was represented by a WCB Coordinator who also provided the panel with a written submission.

It was the employer’s position that there ought to be no coverage for the worker’s proposed left knee surgery. The employer did not dispute that the worker sustained a full thickness PCL tear in their left knee as a result of a workplace injury but submitted that the information on file did not establish a causal connection between the proposed debridement procedure and the worker’s compensable injury. The employer pointed to the medical opinion of the WCB Orthopedic Surgery Consultant which concluded that the chondral fissuring of the left knee patella and lateral tibial plateau cartilage take many years to develop and would therefore be considered a pre-existing condition that is not medically accounted for in relation to the October 11, 2022 workplace accident.

The employer therefore submitted that the WCB Review Office decision should be upheld.

Decision

The issue to be determined on this appeal is whether or not responsibility should be accepted for the proposed left knee surgery. For the worker’s appeal to be approved, the panel must find a causal relationship to exist between the worker’s October 11, 2022 workplace injury and the proposed surgery. For the reasons that follow, the panel is unable to make that finding.

The worker has an accepted compensable diagnosis of left knee posterior cruciate ligament (PCL) tear in relation to the October 11, 2022 workplace incident. The diagnosis is based on the findings of the December 19, 2022 MRI in combination with the report of left knee pain, decreased range of motion, and effusion in the October 13, 2022 Physiotherapy Report. The MRI was done approximately 9 weeks after the workplace injury and in relative proximity to the compensable injury. It identified chondral fissuring of the left knee patella and lateral tibial plateau cartilage.

The panel understands that chondral fissuring of the left knee patella and lateral tibial plateau are the result of a degenerative condition or degenerative changes and not an acute injury, a conclusion which is supported by the WCB orthopedic surgery consultant. The WCB orthopedic surgery consultant stated:

The reported finding of chondral fissuring of the left knee patella and lateral tibial plateau in the report from the December 19, 2022, left knee MRI represents degeneration of knee cartilage that takes many years to develop and would thus be considered a pre-existing degenerative left knee condition that is not medically accounted for in relation to the October 11, 2022 workplace incident

While the worker asserts that the chondral fissuring is related to the compensable injury, there has not been sufficient medical evidence provided or identified to the panel that would support the conclusion that the chondral fissuring was either caused by the workplace incident or that it was aggravated or enhanced by the workplace incident. Although the panel acknowledges that the worker’s treating orthopedic surgeon did report the findings and recommended arthroscopy and debridement, the worker’s orthopedic surgeon did not opine that the injury was incident related. On the issue of the PCL tear, the orthopedic surgeon did not consider PCL reconstruction necessary as only minor PCL laxity had been observed. Although the surgeon recommended a knee scope and possible debridement, the recommendation for possible debridement was to address the retropatellar surface of the knee, and not the compensable PCL tear.

While the panel appreciates the frustration experienced by the worker as a result of ongoing pain and difficulties with their knee, the panel is unable to find, on a balance of probabilities, that the medical evidence supports the conclusion that worker’s chondral fissuring of the left knee patella and lateral tibial plateau are related to the compensable injury. It is not established, therefore, that the left knee surgery is required as a result of the compensable injury.   

The worker’s appeal is therefore dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of March, 2024