Worker v. Employer, 2009 CanLII 76385

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20090069

OBJECTION BY: Worker

WORKER: Participating

EMPLOYER: Participating

REPRESENTATIVE: Worker Representative

HEARING DATE: June 18, 2009

ATTENDEES: Worker, worker representative, employer

ISSUES

The worker objects to the denial of

• right knee entitlement in this claim,
• right knee surgery and
• lost time for the surgery.

The decision letter is dated April 25, 2008.

HOW THE ISSUES ARISE

On June 4, 2004, the worker was cutting a piece of wood when the saw bucked and the blade struck his right leg.

The diagnosis was right leg laceration above his right knee.

The worker was seen at the hospital emergency department. At the time of the initial medical, the worker’s knee was examined as there was concern that the laceration may have extended into the right knee. The operative report noted that the exploration of the lacerated quads tendon, irrigation debridement of the knee and repair of the quads tendon was done.

The initial medical reports confirmed no involvement of the right knee joint, no injury to the right knee and no meniscal injury.

The worker claimed right knee entitlement and medical treatment from October 2005, over one year post accident.

Entitlement for the right knee, treatment and subsequent diagnosis of bucket handle tear medial meniscus was denied.

The worker objected to the denial of the right knee entitlement, right knee surgery and lost time related to the right knee surgery.

AUTHORITY

Operational Policy Documents:

• 11-01-01 - Adjudicative Process
• 15-05-01 - Secondary Conditions: Resulting from Work-Related Disability

ASSESSMENT OF THE EVIDENCE

In arriving at a decision in this claim, I have reviewed and considered the worker’s testimony, the further information provided by the worker representative and I have reviewed and considered the file evidence.

The worker representative requested that entitlement for the right knee be extended in this claim indicating that the right knee was also injured at the time of the right thigh laceration due to a twisting away at the time of the laceration or that the right knee was a consequence of the worker’s premature return to work and his limitations in return to work gradually leading to the knee deterioration and the resulting meniscus tear becoming evident.

The ruling made by the operating area outlined in the decision letter only ruled on the right knee entitlement related to the original accident and not due to the return to work duties or gradual onset over time as a result of the work duties.

The worker testified that at the time of the accident, at the time of the laceration,

• he also felt a pinch of pain in the right knee.
• the laceration was the most pressing injury, which was treated but the worker experienced the pinching of pain in the knee and despite mentioning it to the treating physician, it was only the right thigh laceration which was treated.
• the worker had no family physician having just moved so there is no medical attention continuity established with a family physician from June to August 2004.
• the worker had some physiotherapy at the time for the laceration injury and surgery and treatment in the course was also provided to his right knee.
• the worker acknowledged that he returned to his regular work, even to work more strenuous. His right knee would snap and buckle (bending backwards) several times.
• he voiced complaints to the accident employer and was told to leave which he did.
• the worker then worked several jobs again doing the pre accident type of work.
• there is a discrepancy regarding how long the worker worked
• the worker has no source of income other than his spouse working
• the worker described in October 2005, his knee “broke” but he denied any new accident at the time and related this to the June 2004 injury. He was working as a subcontractor.
• the REC examination was all of five minutes

A review the file evidence notes that the worker, several months post accident and following his return to work, expressed concern to the operating area in this claim.

Lost time benefits were paid in this claim until the worker’s return to work. In the month following the accident, the worker indicated he did not have a family doctor and had no diagnostic tests done. He claimed ongoing disability; however, the referral to the Regional Evaluation Centre was agreed to. The worker expressed concern as to the job duties that he was performing on his return to work.

The Regional Evaluation Centre assessment in November 2004 confirmed the diagnosis was laceration of the right quadriceps tendon with a good prognosis following this injury. There was no indication of a joint injury, only a laceration to the quadriceps tendon which was repaired, lost time was for one month and the worker returned to full time regular work from that time. No specific recommendations or restrictions given. The Regional Evaluation Centre examination found the laceration was well healed, the worker was able to squat and get up from the squat, could walk, had good quadriceps strength and negative McMurrays test and patellar compression test. The REC confirmed there was no evidence of meniscal injury, no catching, locking or swelling of the right knee. The right knee joint was not involved at the time of the accident. The REC noted that the worker stated he had difficulty functioning at his new work.

The file evidence noted a return to work with the accident employer, not to a new employer or a new job. Early in 2005, the worker complained that he returned to work to his regular duties but the regular job duties were more strenuous than the pre-accident job and at this time, he indicated his knee was giving out and he had ongoing pain.

The medical consultant reviewed the operative report of June 6, 2004. A right knee arthrotomy was done, exploration of the lacerated quads tendon, irrigation - debridement and repair of the quads tendon. It was noted that the worker “had an oblique cut in his quads tendon into the vastus lateralis…There was no deep extension of the laceration into the underlying synovium or into the femur. There was no injury to the chondral structures. The lacerated quads tendon was repaired.” The medical consultant confirmed that the tear appeared partial with no injury to the vital structures, full recovery was anticipated with no evidence of a permanent impairment.

There was no medical attention for the right leg from the time of the REC assessment until October 2005. The worker indicated that he did not have a family physician during this time until he was seen by the new family physician.

The worker contacted the operating area and expressed ongoing concerns relating to his leg laceration. An MRI was requested; however, it was denied as not within the entitlement in this claim. This was late in 2005. An MRI was subsequently done in January 2006 showing a complex tear posterior horn medial meniscus. The surgery report April 2005 confirmed a bucket handle tear medial meniscus

The worker claimed a recurrence of the original injury in October 2005 but no continuity of medical treatment from November 2004 to October 2, 2005 was established. The medical attention cited painful right knee with the hospital report indicating the history as “getting into car today right knee very painful”. There was no indication of an injury and the worker did not describe an injury through his testimony

The worker’s request for entitlement as a recurrence in late 2005 was denied. The new diagnosis was meniscal tear. There was no initial knee involvement at the time of the right leg laceration, therefore entitlement to the further right knee problems was not accepted.

A further review of the file evidence by the medical consultant noted that the operative report of 2004 clearly stated, “We explored into the knee joint…There was no deep extension of the laceration… There was no injury to the chondral structures.” It is indicated if there had been a complex tear of the posterior horn of the medial meniscus at the time of the laceration, it would not have gone unnoticed. There were no symptoms at the time of the laceration to suggest posterior horn tear and the mechanism of injury regarding the saw blade cutting the tendon did not involve any action of the knee joint itself. There was no history of twisting, crouching or awkward right knee joint mechanics at the time of the saw incident. There were no symptoms of a loose body at the time of the surgery. There was no indication of a work‑related permanent impairment for the right knee stemming from the June 4, 2004 accident. The worker’s testimony now indicating he moved and felt a pinch of pain at the time of the laceration is not supported by file evidence.

The laceration was the anterio-lateral aspect above the right knee and the further complaints in October 2005 were to the right medial knee.

The worker objected to the denial of a permanent impairment for this injury and the denial of right knee and subsequently the worker’s file was referred for a NEL assessment for the residual pain and weakness in the quadriceps relating to the laceration of the right leg. The worker was assessed at a 10 per cent NEL award for disfigurement related to the laceration injury.

A further review of the file evidence was made early in 2008 by the medical consultant. The meniscus tear was not accepted as related to the June 2004 accident in this claim. Reference was made again to the exploration following the injury of the knee and no meniscal tear was found. The worker returned to full duties and there was no indication of complaints of locking in the knee until late in 2005, 1.5 years after the laceration injury. The medical opinion went on to state that the worker had minor organic permanent impairment for the anterior knee pain and residual quadriceps weakness resulting from the quadriceps laceration in this claim. No limitations were indicated. The worker had a 10 per cent disfigurement NEL rating in the claim.

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case. The claim may be handled by a specific area of the WSIB given the nature of the injury/disease.

Once a decision is made, any further entitlement related to that accident is also reviewed by the decision maker. As part of the decision maker’s criteria used at the time of rendering a decision, compatibility of diagnosis to the accident or to the disablement history is reviewed.

The initial diagnosis in this claim was a laceration of the right leg. The facts of the case clearly indicate that a review of the worker’s knee was done at the time of the operative procedure to repair the laceration and there was no meniscal tear in the right knee at that time.

The worker’s subsequent diagnosis of a bucket handle tear of the medial meniscus resulting in the meniscectomy in 2006 were not related to the accident of June 2004. The knee was not affected by the laceration and there was no evidence of a bucket handle tear of the medial meniscus at the time of the wound irrigation and laceration suturing.

The worker’s subsequent right knee problem, a bucket handle tear of the medial meniscus is not within the entitlement in this claim based on the file evidence. The subsequent complaints of the right knee, over a year post accident and the further findings of the bucket handle tear of the medial meniscus and not accepted as related to the right leg laceration of 2004.

There was no previous decision made regarding the right knee entitlement related to a premature return to work or a return to more strenuous duties after his return to work. The NEL referral was specific to the right thigh above knee area disfigurement relating to the surgical scar of June 2004. The assessment physician referenced the workers history including a twisting injury at the time of the laceration

The medical evidence highlights the following:

• the diagnosis was lacerated quads tendon,
• the surgery done the day of accident explored the knee joint and no laceration extended into the knee joint,
• the laceration was repaired,
• a start to physiotherapy was recommended,
• a return to regular activities by mid July 2004 with a few weeks of modified work to start then a return to work anticipated

The 2008 physiotherapist clinic letter refers to treatment of the worker post laceration until September 2004 indicating right medial knee but this is not referenced by the physiotherapists report completed June 2004. The worker testified that the laceration injury was treated as well as the right knee. The development of right medial knee pain is referenced by Dr Bertoia in the July 2004 assessment but went on to indicate this area was not injured at the time of the laceration and this was probably related to the worker’s walking post injury. The final assessment 3 months post accident again confirmed the injury as soft tissue and continue working was the best approach. The REC would help in the assessment of the worker.

Given the proximity of the laceration to the knee, post surgery as documented by the physiotherapist, the general knee complaints could be expected. The specialist acknowledged the right knee complaints post accident as possibly related to the worker’s way of walking. The specialist on September 13, 2004 again confirmed the accident was a soft tissue injury, no underlying joint or bone injury and accepted the worker’s return to his regular duties.

I accept that the file evidence.

• The worker’s injury June 4, 2004 did not involve the knee joint
• There was no history in 2004 of a right knee injury,
• The general complaints of the right knee are noted but would be in keeping with the laceration proximity to the right knee and the way that the worker was walking.
• The subsequent MRI showed a complex tear posterior horn medial meniscus and the surgery which confirmed a bucket handle tear of the medial meniscus dislocated intra-articularly with some degenerative changes
• There was a lack of any medical attention from November 2004 to October 2005. Despite no family physician there are other treatment facilities were available,
• The worker returned to and did his regular work until October 2005, cited a gradual worsening of the right knee, despite the October 2005 turning incident described to the investigator and documented at the hospital in October 2005,
• The worker denied a new right knee injury, a history was not substantiated by the hospital report the same day which only stated while getting into his car, right knee pain (the worker at the time was self employed as a subcontractor)
• Post laceration the worker was accepted to have recovered based on the REC assessment fit for his regular job duties. The knee was stable at the time of the assessment. There was no meniscal injury. The mild quadriceps weakness was anticipated to remain long term and for this and the disfigurement the worker was provided with a NEL award.
• The worker was a poor historian in the hearing regarding details of his work history since the accident. I note the workers reference to the order book regarding his subcontracting work at the time of the investigation was not shown and he did not provide a full complete and accurate work history at the time of the hearing.

CONCLUSION

The worker’s requests for entitlement to the right knee bucket handle tear of the medial meniscus, the surgery to correct this, and the resulting lost time related to the right knee are denied.

The worker’s objection is denied.

DATED July 14, 2009

N. Grunenko

Appeals Resolution Officer

Appeals Branch