WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100007
OBJECTION BY: Worker
EMPLOYER: Not participating
REPRESENTATIVES: Worker
HEARING DATE: January 25, 2010
ATTENDEES: Worker, Worker Representative
ISSUE
The worker objects to the denial of entitlement for the left knee and a recurrence of June, 2007.
HOW THE ISSUE ARISES
On May 31, 2006, a resident in a motorized wheelchair backed up over the worker’s right foot causing her to twist her leg and injure her right foot and knee. She was diagnosed with a sprained right foot/right knee. Entitlement was granted and benefits were paid in accordance with the medical evidence received. The worker returned to modified duties commencing at four hours per day on August 4, 2006 and gradually resumed full-time duties by September, 2006.
On October 30, 2007, the chiropractor submitted a report indicating the worker had chronic pain in the left knee and had sustained a recurrence on June 6, 2007. The left knee and the recurrence were denied in decisions of November 8, 2007 and November 20, 2007. The worker objected to the adverse decisions made and her file was referred to the Appeals Branch for consideration.
AUTHORITY
15-03-01 – Recurrences
18-03-02 – Payment of Loss of Earnings (LOE) Benefits
11-01-01 – Adjudicative Process
15-02-01 – Definition of Accident
15-02-02 – Accident in the Course of Employment
11-01-15 – Aggravation Basis
ASSESSMENT OF THE EVIDENCE
Worker Testimony:
She will be 63 years old in March and she described her educational background. She started with the employer on March 8, 1989 as a Health Care Aide. Her duties included taking care of the residents. This involved lifting, feeding, changing, bathing, and hygiene. She was responsible for 12 to 13 residents per shift. The lifting was the most difficult part of her job but she liked it. She denies any prior problems with either of her knees. She described the accident of May 31, 2006. On this date, she was cranking a bed with her left leg forward when a resident backed over her right foot and the back of the chair tipped her left knee. She sat down and she cried. Her co-worker stopped work and he assisted her to the nursing station to report the incident. They sent her home. She went home and she could not walk straight any more. She did not have any immediate pain in the left knee so she did not include it on the form 6. She first had an onset of left knee pain later during the night of May 31, 2006. She was not able to work following the injury. She visited her family doctor and he advised her to go for
x-rays and ultrasound. She was prescribed medication and Tylenol #3. She had a hard time going up stairs at her house and she would do so by going up one step at a time using both feet. She was referred for physiotherapy but this did not really help her. For the first week, she attended three times per week in Mississauga. After a few months, she moved closer to her home. It was not very helpful but she went as she felt her pain would improve but it really did not. She was still in pain.
She returned to work in September, 2006 but the pain was still present in both knees, the left greater than the right. For the first 1 ½ months, the employer provided her with light duties brushing teeth, labelling personal belongings and she was mostly sitting. She then resumed her regular duties on a graduated basis. She continued until May, 2007. During this time, she felt a bit better but the pain was still there. Her left knee was starting to swell again on May 16, 2007 and she started limping. She felt the pain would go, but it became worse so she reported to her head nurse on May 24, 2007 and she asked for sick days as she was not aware of the process with respect to work-related accidents. The Head Nurse asked to see her knee. It was swollen and in June, 2007, she laid off. There was no specific accident that caused the increased swelling or pain; she just felt it was a continuation of the initial accident. The pain in May, 2007 was as severe as it was just after the accident. The back of her knee was very painful. She felt cracking when she bent her knee. It was so painful that she took Tylenol #3. This helped a bit but as the medication wore off, the pain would increase again. The area of pain in the left knee was the same as it had always been since May, 2006.
She had ongoing pain from the time of accident but there was increased swelling on
May 16, 2007 that made it difficult to walk. Up until that time, she continued to take Tylenol #3 and Melocicum every four to six hours, depending on the pain. She worked with her pain. She never reported the pain as she had to work due to financial difficulties. She was asked why there would have not been any mention in the medical reports about the left knee pain. She noted that the doctor advised her to take Tylenol #3 if she felt pain and this is what she did. She also did stretching and bending exercises for her knee. She learned these at physiotherapy. She stopped physiotherapy in November, 2007 as she was not covered and started exercising at home.
Her last day worked was June 7, 2007 and she returned to work on December 6, 2007. During the time she was off, she could hardly walk. She had pain in both knees but her left knee was swollen. During her time off, she went for physiotherapy, she had x-rays and ultrasound as well as an MRI and they told her the knee pain came about as a result of her accident since she did not have any pain prior. She does not feel she could have returned to work any sooner than December 6, 2007 because even as of now, her knees are still aching and cracking. She has to hold the rail going up her stairs. During the time she was off, she did some cooking and made coffee sometimes as she could not stand for long periods. She did not do any housework. She indicated she did not do grocery shopping as she is unable to hold heavy things. Her daughter lives with her.
When she returned to work on December 6, 2007, she was on modified duties for one week. Then they gradually increased her hours from 4 to full-time until December 29, 2007. At that time, she was sent to St. Joseph’s Hospital and this was her last day of work. She retired in mid 2008. Since she stopped work, the pain has been ongoing and continues to date. The left knee is still painful. The cold especially affects it.
Closing Statement:
The worker’s representative argued the worker initially sustained an impact to her left knee. The left knee pain never resolved and despite the medication, her pain and symptoms began to increase with the ongoing duties of a health care aide leading to May 16, 2007. She began to lose time and she was off from June 9, 2007 to December 6, 2007 and this is the period being claimed. They are requesting entitlement for a lower left leg injury. He noted there are some findings on imaging of an underlying MCL sprain that aggravated any underlying degenerative condition that may be on file. The form 6 did not include the left knee, but the worker explained why. The form 8 dated June 23, 2006 notes all areas of injury, including both knees. The physiotherapy assessment of June 8, 2006 noted no prior history of any knee pain. The reports from August 1, 2006 onwards noted restrictions and the form 26 of August, 2006 stated there was a knee injury. The worker was back to normal duties by September, 2006. On
June 7, 2007, there was a further report diagnosing left knee arthritis and this
notes the type of pain the worker was feeling. He noted the physiotherapy reports reported the left knee patellofemoral arthritis was aggravated by the work injury one year prior. On
September 27, 2007, the report from St. Michael’s Hospital noted the worker continued to be unable to return to work. There was a prescription from the physiotherapy clinic prescribing passive treatment. There was also a second form 8 from October 30, 2007 which noted the worker injured her left knee at work on May 31, 2006. The type of injury noted was repetitive strain injury and findings were provided, which were consistent with the worker’s explanation of her symptoms. He noted that on file, there is also a December 6, 2007 ambulatory consult providing findings and it is his position that the MCL sprain was the same injury that occurred on May 31, 2006.
In addition to the medical evidence on file, he referred to further medical evidence submitted at the time of the hearing. There was a questionnaire from the family doctor who diagnosed a chronic pain syndrome and he referred to the October 1, 2007 report. He quoted from the report to support his argument that the worker’s left knee problems were attributed to the initial accident. He noted the worker did have ongoing pain and related symptoms. He also referred to the family doctor’s chart notes. The worker was last seen September 6, 2006 and she returned on May 29, 2007 complaining of left knee pain. Findings were consistent with a sprain with damage to both knees and the ultrasound of June 22, 2006 noted bulging of the medial meniscus as well as spurs. On June 30, 2007, there was further imaging and he quoted from the report. There was no similar tear or strain injury to the right knee and given the accident history, he argues that the findings in June, 2007 were consistent with the initial accident history.
He submitted that on the balance of probabilities, it is more likely than not that the original incident had a significant contribution to the worker’s ongoing knee pain which led to a flare-up in May, 2007 that required her to lay off. But for the May 31, 2006 injury, he submits the worker would not have experienced left knee pain. After the injury, her symptoms fluctuated to the point where she could not work again. The type of strain injury and even a tear do show up on the ultrasound. In addition, the worker’s testimony confirmed the same area of the knee was affected in May, 2007, as was initially affected. He therefore requested acceptance of a recurrence as per policy 15-03-01 as there is sufficient evidence of continuity. The worker’s pain was initially managed by medication, but then worsened. Even without continuity, the clinical compatibility is paramount and weighs heavily in the worker’s favour as the parts of the body affected remain consistent and the degree to which the body functions were affected are commensurate. He therefore argued there is clinical compatibility. There are no other causes for the left knee symptoms, which did not exist prior to the work accident. There is no evidence of any other accident.
He noted the September 27, 2007 referral to physiotherapy reported the worker’s patellofemoral arthritis was aggravated by the work injury one year prior. The work accident is the only reason she began to have symptoms and as such, he maintained the worker’s ongoing problems are attributed to the initial accident. They are claiming benefits from June 9, 2007 to
December 6, 2007 as the worker’s layoff after that is non-compensable. For the period in question however, he argued the left knee condition was the significant contributing factor keeping her from work and they request entitlement for same.
Should the evidence be of equal weight, he requested benefit of doubt be granted and entitlement be granted, as well.
Decision:
I have considered all of the evidence pertaining to this case. The initial medical reporting does note an injury to the left knee, as well as the right knee and although it was not included on the form 7 and form 6, given that the initial medical reporting does mention it, I can accept that there was a minor injury to the left knee at the time of the initial injury on May 31, 2006. The physiotherapy assessment report of June 7, 2006 also notes there were problems with both knees. However, the right knee appeared to be the significant injury, especially noting the fact that the worker reported the right sided injury on the form 6 even though it was completed after she testified that the left knee problems had already commenced. According to the clinical notes, by June 14, 2006, the right knee and right foot alone appeared to be the ongoing areas of concern. By August, 2006 when the worker was cleared to resume modified duties, only the right knee was mentioned. According to the contemporaneous medical evidence on file therefore, any injury sustained to the left knee had completely resolved by June, 2006.
The worker then developed further problems with the left knee which are confirmed medically in May, 2007. There is no continuity of complaint, nor is there any medical continuity to link the left knee problems in May, 2007 to the initial injury of May, 2006. In the absence of continuity, compatibility can be considered. In this case however, it has been noted that the worker has osteoarthritis of the left knee. This is a pre-existing condition that may have been temporarily aggravated by the incident of May, 2006 but based on the medical information on file, there was resolution by June, 2006.
In May, 2007, the worker’s symptoms had once again increased, but this is not surprising given the extent of the osteoarthritis and the worker’s age. Osteoarthritis is expected to progress with age and I am satisfied that even in the absence of any incident on May 31, 2006, it would have continued to do so. The main problem in May, 2007 and leading into December, 2007 appears to be the worker’s left knee osteoarthritis. I am not satisfied that the work accident of
May 31, 2006 was a significant contributing factor to the worker’s left knee osteoarthritis at that time. I am therefore unable to conclude that the worker’s left knee problems in May, 2007 were compensable in nature and I am therefore confirming the denial of entitlement for the recurrence of June 6, 2007.
CONCLUSION
Based on the evidence outlined in this decision, while I can accept that the worker temporarily aggravated a pre-existing left knee condition as a result of the May 31, 2006 incident, the aggravation had resolved by June, 2006. As such, the worker’s ongoing left knee problems in
May, 2007 and the recurrence of June 6, 2007 are not compensable under this claim. LOE benefits from June 9, 2007 to December 6, 2007 are therefore not in order.
The worker’s objection is denied.
DATED February 10, 2010
S. Marangoni
Appeals Resolution Officer
Appeals Branch