WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20090045
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
HEARING DATE: August 17, 2009
ATTENDEES: Worker, Worker Representative
ISSUE
The worker is objecting to the denial of ongoing entitlement for bilateral knees including surgeries to both knees.
HOW THE ISSUE ARISES
This worker was employed as a part-time firefighter. On August 30, 2002 the worker slipped on a wet floor and injured both knees. Entitlement was accepted for grade 1 bilateral medial collateral ligament (MCL) strains bilaterally. Although he received physiotherapy treatment from September 16, 2002 to November 13, 2002 he only lost one week from work, returning to his regular duties.
On August 22, 2005 the worker wrote to the Workplace Safety and Insurance Board (WSIB) requesting ongoing entitlement for his knees. Enquiries were carried out but after considering the evidence, the adjudicator was unable to establish a causal relationship between the worker’s current problems and the injuries sustained on August 30, 2002. The worker was advised of this in the decision dated January 24, 2006. The worker objected and the file was eventually referred to the Appeals Branch for further consideration.
AUTHORITY REFERENCES
Policy Document 15-03-01, Recurrences
Policy Document 15-05-03, Non-work-related Second Accidents
ASSESSMENT OF THE EVIDENCE
The worker testified that on August 30, 2002 he was stepping over a hose and because of the wet floor he “more or less did the splits” and pulled his legs apart with his knees bent. Initial medical attention was sought at a walk-in clinic close to the fire hall and then at the emergency department early the following morning when he could not tolerate the pain. At the emergency department they gave him “pain pills and said good-bye”. I perceived the worker’s testimony to suggest that the emergency room physician was dismissive or non-proactive, however in reviewing the emergency record I note that he was provided with a prescription for physiotherapy but the worker did not attend physiotherapy until September 16, 2002. I questioned the worker on this. He agreed that the hospital did try to arrange treatment and testified that the delay in physiotherapy was due to the pain and in his inability to walk.
The worker testified that he returned to regular duties as his knees “kind of healed up” and he was “able to walk around and stuff”. As there were no modified duties so he returned to his regular duties. At the time he was a “captain” and,
“First of all, a captain is not supposed to work”.
When asked to clarify, he testified that he had control of his duties but when there was a fire he was expected to be active in his duties. Some of the duties he could perform were “jockeying” and “driving trucks around”. He then testified that he “got right in there with the workers” and this was a “bad decision” on his part with respect to his knees.
Medical continuity enquiries were carried out. The worker’s former family physician provided a letter dated December 29, 2005 stating,
“…(the worker) has been a patient of mine since the 12th of February 1976 and was last seen by me in my office on the 13th of December 2002…
I first attended (the worker) in regard to this injury, on the 1st of October 2002. On this occasion the patient informed me that he had suffered an injury at work on the 30th of August 2002. He stated that he had slipped on a wet floor at work resulting in an acute (MCL) strain bilaterally to the knees…He stated that he was presently on restricted work since the 10th of September 2002.
He stated that he was receiving physiotherapy treatments on an ongoing basis, three times weekly.
My examination on this occasion was negative, except for mild tenderness of the left (MCL). I therefore advised the patient to return to regular work as of the 2nd of October 2002.
The only other occasion on which I attended this patient in regard to his knee injury was on the 13th of December 2002. On this occasion the patient informed me that his physiotherapist was not happy that the patient’s muscle bulk was not coming back. My examination on this occasion revealed that the patient’s pulses in the lower limbs were normal and that there were no atrophic skin changes. Measurement of the patient’s thighs at their mid points revealed a circumference of 22¾ inches on both sides. The patient stated that the knees were not bothering him and that he had no pain. He stated that he was working full time with the Fire Department and confirmed that he had returned to regular work as of the 2nd of October 2002.
In addition, I arranged for the patient to have a C.K. test done (this test is to detect if there is any ongoing muscle inflammation or damage occurring) and this test result was 101 units which is well within the normal range…
It was my opinion that when I attended the patient on the 13th of December 2002, he had made a complete recovery from this injury and I anticipated no long term sequelae…”
I questioned the worker about the information provided by the former family physician. At first he testified,
“I was kind of talking him into that I was doing fine”.
When I expressed my concern that a physician would write down what a patient wanted him to say as opposed to recording the real situation the worker testified,
“I wasn’t talking him into it. I was agreeing with him that I was in good shape.”
In my assessment of the evidence provided by the physician, he conducted a thorough examination and evaluation of the worker’s knees and there was no objective evidence of any ongoing impairment.
In his submission the worker indicates that he sought treatment with a chiropractor, Dr. Ooozer, January 13, 2004 to March 28, 2004 and from September 28, 2004 to November 1, 2004. When questioned about why he did not seek treatment between December 13, 2002 and January 10, 2004 he testified that it took three months to get an appointment with his former family physician and then this appointment would be cancelled and he would have to wait another three months. As an explanation for the wait time and cancellation the worker testified that this physician wanted him to pay an annual fee for “doctor’s notes and stuff” and as he declined to this do this,
“I guess we were second rated patients.”
As a result he “mostly punished” himself and suffered and treated the pain with over-the-counter ibuprofen. When I questioned as to why he did not attend a walk-in clinic he testified,
“Every time you say comp they put their guard up.”
He could not provide an example of this occurring during the continuity period and then testified,
“I guess that could be laziness on my part. I didn’t want to deal with comp.”
He agreed that at the time of the August 30, 2002 accident he experienced “no hassles” with the claim being allowed for lost time and health care benefits on a timely basis. I reviewed the file and note that the Employer’s Report of Injury (form 7) was completed September 3, 2002, received in the WSIB mailroom September 5, 2002 and assigned to a primary adjudicator September 7, 2002. The claim was allowed September 16, 2002 and a cheque was issued to the worker September 19, 2002. As a result of the allowance 12 weeks of physiotherapy was automatically authorized.
The worker did not attend physiotherapy for 12 weeks. He attended for eight weeks. When questioned why he did not take advantage of the full 12 weeks he testified,
“I was progressing.”
“It wasn’t changing anything.”
“They were putting ice on it, TENS, making me ride a bike for 10 minutes. It just wasn’t worth going down there.”
“I have a TENS machine at home and I can put ice on it.”
When questioned about the TENS machine the worker first testified that he received it through the chiropractor. When I stated that he did not see the chiropractor until 2004 he then testified that his mother had a TENS machine and he used that until he received his own new unit. On December 13, 2005 the adjudicator sent a letter to the physiotherapist requesting continuity details but the physiotherapist did not respond.
On December 13, 2005 the adjudicator also wrote to the chiropractor requesting a complete history of the bilateral knee impairment, dates of treatment, diagnosis and findings, treatment, and prognosis. The chiropractor responded in a letter dated April 3, 2006 stating,
“(The worker) presented to our office on September 28, 2004 complaining of left knee pain. He attributed the onset of his symptoms to a fall off a truck on August 28, 2004. On this initial consultation, we noted crepitus and painful ROM of the left knee with associated altered gait. A diagnosis of Left Knee Strain was made. (The worker) had 10 treatments consisting of TENS, ultrasound and exercises. On his last visit on November 1, 2004, (the worker) indicated the pain in his left knee was negligible.
Please, see attached list of treatment dates as well as the ultrasound report of his left knee.”
The chiropractor did not provide any evidence stating that the worker sought treatment for the bilateral knee condition from January 13, 2004 to March 28, 2004 and the worker could not provide a reason for this. When questioned about the “fall off a truck,” the worker testified that the chiropractor was a “jolliful joking doctor” and when he asked him what happened, the worker jokingly said;
“I don’t know, I must have fallen off a truck or something.”
The worker testified that had he known the chiropractor was going to take him seriously and record this in the chart notes he would not have joked around.
While I find it plausible that the chiropractor could have mistook a joke, the worker’s testimony does not explain where the chiropractor came up with the August 28, 2004 date and the worker could not provide an explanation for this.
The chiropractor mentions the ultrasound report. The referring physician was Dr. Shukla and he first attended this physician September 8, 2004. The ultrasound was performed October 12, 2004 and the report states;
“A small Baker’s cyst is noted in the medial aspect of the popliteal fossa measuring 2.7 cm longitudinally. In addition, a moderately large prepatellar bursa joint space effusion is noted. Some plaque formation is identified in the left popliteal artery associated with monophasic wave forms suggestive of the presence of significant peripheral arterial disease.”
The worker’s former family physician received a copy of the report and addresses this in his December 29, 2005 letter to the WSIB by stating;
“On the two occasions on which I attended (the worker) and examined his knees, there was no Baker’s Cyst or prepatellar bursal effusion present. It is possible that the patient may have developed a small Baker’s cyst subsequently as a result of weakening of the left knee joint capsule by the injury of August 30th, 2002. I do not see any connection between the pre-patellar bursal effusion and the injury of August 30th, 2002.”
According to the worker’s submission, he first attended his new family physician November 26, 2004. This family physician did not complete a Health Professional’s Report (form 8) until February 15, 2006 and this was based on an assessment of July 7, 2005. The history of onset given is “recurrence of bilateral knee pain” and the diagnosis was bilateral medial meniscus tears and post-traumatic arthritis.
When questioned about complaints, the worker testified that he complained to a few people but did not “advertise” his condition. Memo #3 dated December 15, 2005 documents a conversation between the adjudicator and fire chief and states;
“Call from AE – fire chief…He is not aware of worker having any ongoing bilateral knee problems as a result of this injury. He could fully function as a firefighter following his accident. Require a doctor’s note stating fit for regular duties in order to return to work.”
Memo #9 dated February 20, 2006 states, in part;
“Spoke with…worker’s supervisor-deputy chief. He recalls when worker injured his knees. States at the time he was walking with a cane and hobbling around. He confirmed IW would return to full firefighter duties. There is no modified work. It would be difficult to perform the duties of a firefighter with bad knees as there is a lot of heavy lifting, climbing in/out of ditches. There is a lot of wear and tear on the body…
I asked for any knowledge of ongoing complaints since 2003. He states he remembers the worker complaining about his knees bothering him…
Call to…co-worker-volunteer firefighter. He worked with worker on and off. He remembers IW slipped at work, hurt his knees. Recalls worker complaining that they were always aching and had pain.”
Although two individuals recall the worker complaining about his knees it is not clear whether the complaints were continuous from September 7, 2002 or were after August 28, 2004.
On June 29, 2006 arthroscopic medial meniscectomy and debridement of the left knee was carried out. The post-operative diagnosis was torn left medial meniscus with early post traumatic arthritis medial compartment and mild chondromalacia patella. The operative report states, in part;
“The patellofemoral joint showed some stage 1 to 2 chondromalacic patella over most of the middle third…
The lateral compartment, lateral meniscus, rather pristine aside from a bit of stage 1 chrondromalacic changes on the plateau.
The medial compartment showed an extensive tear of the medial meniscus including a ragged posteriorly attached peduncle, a defect from about 9 o’clock to 11 o’clock and a largely intact anterior horn…There were early degenerative changes on both sides of the medial compartment with tapering delamination extending medially with a 1 by 1 cm area of eburnated bone at about 9 o’clock. There was partial thickness loss in a more or less uniform fashion in the weight-bearing surface…”
On November 9, 2006 arthroscopic partial medial meniscectomy and debridement of the left medial condyle was carried out. The post-operative diagnosis was patellofemoral and medial compartment arthrosis with medial meniscus tear. The operative report states, in part;
“…The patellofemoral joint was examined and there was uniform Stage 2 to Stage 4 degenerative change with part of the lateral facet exposing subchondral bone…
The later compartment and lateral meniscus were pristine aside from a bit of chondromalacic filbrillation on the lateral plateau and a tiny punctate lesion on the femoral condylar weight bearing surface requiring no debridement. The medial compartment was examined and showed irregular Stage 2 to Stage 4 degenerative change on the weight bearing surface and behind with a Stage 4 lesion being relatively tiny measuring a few mm. There were flap lesions…
…There was an unstable, oblique, complete radial tear with a cleavage component involving the back of the meniscus requiring a partial and subtotal meniscectomy trimming the posterior horn down almost to its base and tapering and smoothing anteriorly and debris flushed out to the joint…”
Policy document 15-03-01 states;
“A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.
If a significant new work-related accident occurs, the WSIB establishes a new claim.”
Policy document 15-05-03 states;
“The WSIB does not accept entitlement for an injury as a result of a second accident that is due to a non-work-related cause. If a work-related impairment/disability is aggravated by a non-work-related second accident, the aggravation may be accepted depending on the extent of recovery of the work-related impairment/disability.”
I have carefully considered the evidence and find the following particularly relevant:
When examined December 13, 2002 the former family physician found no objective evidence of ongoing impairment. In my view this physician conducted a thorough examination and evaluation on that date.
The worker attended only eight of the approved 12 weeks of physiotherapy treatment, discontinuing treatment one month prior to the December 13, 2002 examination by his former family physician.
There is no convincing evidence of medical continuity between December 13, 2002 and September 8, 2004.
There is no convincing evidence of continuity of complaint between December 13, 2002 and August 28, 2004.
There is evidence of a new non-work-related accident August 28, 2004. I do not find the worker’s claim that he was joking to be credible, especially noting that the chiropractor provided a date for the new accident.
A fall of a truck could cause the damage to the worker’s knees found during arthroscopic surgery.
There is continuity of medical attention and treatment following the new August 28, 2004 accident.
The initial injuries were grade 1 MCL sprains bilaterally. As I understand it the MCL is flat ligament on the inside of the knee that connects the tibia to the femur and a grade 1 sprain involves stretching of the ligament, not partial or complete tear. In view the operative findings are not compatible with the initial diagnosis.
CONCLUSION
After weighing all of the relevant evidence I must conclude that the worker’s fully recovered from the work-related injuries by December 13, 2002 and there is no causal relationship between the bilateral knee condition requiring surgery and the original injury.
The worker’s objection is denied.
DATED this 20th day of August, 2009.
L. Lum Appeals Resolution Officer Appeals Branch