WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100061
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Not participating
REPRESENTATIVE: Worker
HEARING DATE: December 3, 2009
ATTENDEES: Worker, Worker representative
ISSUE
The worker objects to the decision of January 7, 2009, which denies entitlement to a right knee injury occurring on October 15, 2008.
HOW THE ISSUE AROSE
This worker’s claim was set up with receipt of the Employer’s Report of Injury/Disease (Form 7) dated October 22, 2008. According to this report, the worker reported on October 16, 2008, that on October 15, 2008, while packing bags of material he injured his right knee when he was twisting to load a pallet. It was also indicated that the worker did not lose time from work due to the incident.
Based on the information on the Form 7, this claim was initially allowed for health care benefits.
In November 2008, the claims adjudicator (CA) received information which suggested the worker had a meniscal tear in the right knee. As the claim was initially thought to be a strain, the CA contacted the worker to confirm the type of accident he sustained on October 15, 2008.
In a conversation on November 18, 2008, the worker advised the CA that he was doing his regular duties and thought the injury occurred due to twisting of the right knee while carrying a weight of 25 to 30 pounds. The worker acknowledged his prior right knee condition and stated that he did not have any recent non-work injuries to the right knee.
The worker underwent an X-ray dated October 17, 2008, and an MRI October 28, 2008. Noting the results indicated a pre-accident impairment, the CA requested a medical opinion of the Workplace Safety and Insurance Board (WSIB) medical consultant on the relationship between the stated accident history and the physical findings of the worker’s right knee as provide in the X-ray and MRI. The medical consultant opined that the incident of October 15, 2008, did not contribute to the pre-existing condition(s) of the worker’s right knee.
In a decision letter dated January 7, 2009 the worker was advised that initial entitlement is overturned as there was insufficient evidence that the incident of October 15, 2008, caused a specific diagnosis and the pre-accident impairment of the worker’s right knee is unrelated to the incident.
As the worker is dissatisfied with this decision, he submitted a letter of objection on February 27, 2009. On June 22, 2009 the worker signed the Objection Form (Appeals).
AUTHORITY
Operational Policy Manual Documents:
15-02-01 - Definition of an Accident
15-02-02 - Accident in the Course of Employment
11-01-15 - Aggravation Basis
METHOD OF RESOLUTION
The employer completed the Employer’s Participant Form on March 25, 2009 and they were scheduled to attend the hearing on December 3, 2009. In correspondence dated October 28, 2009, the employer withdrew their option to participate.
During the hearing, it was agreed by the objecting party and this Appeals Resolution Officer, that a final decision would be postponed until the right knee operative report of February 4, 2009 is on record. This report was received on February 8, 2010.
ASSESSMENT OF THE EVIDENCE
I have had regard for all of the information in the file and in particular the following categories and information summarized below.
Operational Policy,
The worker’s testimony and the representative’s submission,
Issue related medical information,
Operative Report February 4, 2009
Operational Policy
15-02-01 Definition of an Accident
This policy states, in part,
“Accident includes
- a willful and intentional act, not being the act of the worker
- a chance event occasioned by a physical or natural cause, and
- a disablement arising out of and in the course of employment.
The definition of disablement includes
- a condition that emerges gradually over time
- an unexpected result of working duties.”
15-02-02 - Accident in the Course of Employment
This policy states, in part,
“A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.”
11-01-15 Aggravation Basis
This policy states, in part,
“In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.”
And,
“Decision-makers should first determine entitlement in the claim. Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.”
- The worker’s testimony and the representative’s submission
Background
The worker stated that he has been employed with his present employer for approximately 30 years. Three years ago he began his current job in the “Slabbing” department. In this job he works between two different machines. He stated that he routinely bends down and tapes a package, he then picks up the package, and then turns to place the box on a pallet. This job requires that he turns on a regular basis.
Incident of October 15, 2008
The worker stated that on October 15, 2008, while he was carrying a box weighing between 25 and 30 pounds, he twisted his right knee and felt an immediate sharp pain in his right knee cap. The worker stated that he felt the pain along the knee cap. He bent down when he felt this immediate pull and he rubbed his knee but he continued to work. He stated his knee felt sore but it was not extreme. The worker stated that he was alone at the time and he did not report it immediately because he felt that it was not significant.
The worker stated that overnight his knee doubled in size from swelling and it began to give out the next day as he was working. He continued to work, and by the end of the day he decided to report the incident because, “Although I had prior knee surgery, my knee never gave out before and that is why I reported the injury on October 16, 2008”.
The worker state that he did not seek immediate medical attention because he had a prescheduled doctor’s appointment for the following day and he did not realize the condition was as bad as it was. The worker stated that he has high tolerance for pain and therefore he did not get medical attention for the knee immediately. He stated that it was only because the knee started giving out that he told his doctor.
The worker stated that he continued to do his regular work after the incident of October 15, 2008, because he was asked by his supervisors to do regular duties. He did regular duties for approximately two weeks and after that he was put on modified duties with limited bending, twisting and lifting because the pain was increasing. The worker stated he continued on modified duties until he had the date of surgery on February 4, 2009. The worker stated he was off work for approximately six weeks and then he returned to work to his pre-injury job. The worker stated that after the surgery, his knee was about the same condition as before the accident of October 15, 2008.
Pre October 15, 2008 right knee condition (pre-accident impairment)
The worker stated that before the incident of October 15, 2008, he had occasional swelling with overuse. The worker stated because of the way he does his work, he twists his knee quite often. He had an incident in July 2009, he reported it, but does not recall going to the doctor. The worker indicated the incident of October 15, 2008, was different because after this incident he had “major swelling and his knee started to give out”. He stated, “After the injury of October 15, 2008 it was continuously swelling and giving out until I had surgery”. The worker states that since the surgery, his knee is back to pre-accident level and he stated, “Perhaps a little bit better because it is not giving out”.
The worker testified that he did not have an accident outside of work that caused the right knee swelling and giving out. The only injuries he has had to his right knee are in 1973, 1987 and in 1992, when he had a debridement. The worker lost no time between 1992 and 2008 for the right knee and had no surgeries or treatment for the right knee between 1992 and October 15, 2008. The worker stated his knee was fine.
The worker’s representative submitted that the worker has a 30 year history with the employer and he has acknowledged that he has pre-existing condition. The worker testified that he had no problems between 1992 and October 2008. The representative stated the worker did have a specific twisting accident on October 15, 2008, which they feel aggravated the pre-existing right knee condition and they request that, “Allowance is accepted on aggravation basis of the pre-existing condition, as per WSIB policy.”
- Issue related medical information
October 17, 2008 Right knee X-ray report
“There is moderate osteoarthritis in the knee and patellofemoral joints. There are osteophytes at the joint margins and some narrowing of the medial compartment of the knee on standing AP and intercondylar views. There is calcification in the lateral meniscus. There is no evidence of any fracture.”
October 28, 2008 MRI
“The medial meniscus appears completely thinned and degenerated and there may be a bucket handle tear present. At the lateral meniscus, there is radial tear present and a torn fragment of the posterosuperior aspect of the posterior horn. There is also suspected complete tearing of the ACL. Mild to moderate osteoarthritic disease is seen in the medial joint compartment of the right knee.”
November 12, 2008 Health Professional’s Progress Report (Form 26)
In this report the doctor indicates the worker has pain on rotation, the doctors indicated he suspected a meniscus tear.
November 15, 2008 Health Professional’s Report (Form 8)
In this report the doctor indicated the worker reported that he injured had a twisting injury to his right knee on October 15, 2008, when he was loading pallets. The doctor diagnosed the worker with right knee injury possible ligament and possible meniscus.
November 24, 2008 Familiy Doctor’s Report
In this report the doctor indicated that the worker has been his patient of his since 1987. He saw the worker on June 9, 1987, for the right knee at which time he twisted his knee at work. He also the worker on May 15, 1991. The worker underwent a right knee meniscectomy on September 11, 1992.
The doctor indicated he saw the worker was seen on October 17, 2008. The worker is recorded as complaining of painful right knee. The doctor found the knee was swollen, tender and giving out on occasion. He stated he made arrangements for an X-ray and an MRI. He stated the X-ray showed moderate arthritis in the knee and patellofemoral joints. The MRI of October 28, 2008 showed thin medial meniscus but also the possibility of a bucket handle tear and when he saw the worker was reassessed on November 12, 2008, the worker was provided restrictions for work.
- Operative report of February 4, 2009
The report indicated the operative procedure is Arthroscopic debridement, partial medial meniscectomy right knee and the post operative diagnosis is, Osteoarthritis right knee joint, ACL deficient, degenerative meniscal tear.
ANALYSIS
On October 15, 2008, this worker twisted his right knee while he was carrying a 25 to 30 pound box. The worker’s claim was initially accepted for a strain. The worker underwent an X-ray on October 17, 2008 and an MRI on October 28, 2008. These tests revealed a pre-accident impairment. Based on these findings, and lack of a specific diagnosis, the CA sought an opinion of the WSIB medical consultant. On November 15, 2008, in memorandum #6a, the medical consultant opined, “The minor work event would not account for the significant advanced changes in this worker’s knee.” The worker’s claim was subsequently denied on January 7, 2009, on the conclusion that the incident of October 15, 2008, was minor and did not contribute to the pre-existing condition.
The worker has objected to the denial of the initial entitlement forming the basis of this objection. The worker stated that the incident of October 15, 2008, aggravated the pre-existing right knee condition of his right knee to the point that his knee was continuously swelling and giving out subsequent to the incident. The worker was on modified duties, accommodated for the right knee restrictions, subsequent to this incident until February 4, 2009. The worker stated he did not lose any time from work between October 15, 2008 and February 4, 2009. Before the incident he was doing regular work.
The worker is also claiming that the surgery on February 4, 2009, was required subsequent to the incident and he seeks entitlement to loss of earnings benefits from February 4, 2009 (from the date of surgery) for the period of recovery. The worker has testified that since the surgery of February 4, 2009, his right knee condition is back to the same level as before the incident of October 15, 2008.
In considering this worker’s entitlement, Policy 11-01-15, applies, it states, in part, “In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.” And, in part, “Decision-makers should first determine entitlement in the claim. Then this policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work-related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker's condition returns to the pre-accident state.”
In this case, the worker has testified, under oath, that on October 15, 2008 he twisted his right knee and felt an immediate sharp pain in his right knee cap. The worker stated that the pain was along the knee cap, when he bent down when he felt this immediate pull and he rubbed his knee and he continued to work. He stated his knee felt sore but it was not extreme. The worker stated that he was alone at the time and he did not report it immediately because he felt that it was not significant. The worker stated that when came to work the following day, his knee was double in size from swelling and it began to give out.
The worker reported the right knee incident to his employer on October 16, 2008, as per the Form 7 and the employer has not provided reasons to doubt the worker’s account of the incident. According to the employer’s Accidental Injury Report, the employer noted the worker had a “sudden specific event” on October 15, 2008, and the accident history provided by the worker matches the worker’s statements on record.
The worker explained that he did not seek immediate medical attention because he was waiting for a prescheduled doctor’s appointment on October 17, 2008, and he did not realize the condition was as bad as it was. The doctor noted on October 17, 2008, the worker complained of right knee pain and giving out. He noted the worker’s right knee was swollen and tender. The doctor made arrangements for an X-ray. The X-ray results indicated, “There is moderate osteoarthritis in the knee and patellofemoral joints. There are osteophytes at the joint margins and some narrowing of the medial compartment of the knee on the standing AP and intercondylar views. There is calcification in the lateral meniscus. There is no evidence of any fracture.”
The October 28, 2008, MRI results of the worker’s right knee indicated, “The medial meniscus appears completely thinned and degenerated and there may be a bucket handle tear present. At the lateral meniscus, there is radial tear present and a torn fragment of the posterosuperior aspect of the posterior horn. There is also suspected complete tearing of the ACL. Mild to moderate osteoarthritic disease seen in the medial joint compartment of the right knee.”
Subsequent to the incident, the worker stated that he did his regular work for about two weeks and then was provided with modified duties. The worker’s statement concerning his need for modified duties subsequent to the incident is confirmed in the medical records.
To allow a claim on aggravation basis of a pre-accident impairment, it is vital to establish the existence of a pre-accident impairment and an aggravating incident. In this case, the preceding and following establishes the evidence:
The worker was doing his regular work duties on October 15, 2008, when he had a twisting injury to the right knee. The worker reported the injury the following day and the circumstances of the incident are recorded by the employer and sought medical attention the following day.
Medical information on record supports, that on October 17, 2008, the worker’s knee was swollen and tender.
The worker has a significant pre-accident impairment that dated many years, however, it he was able to do his regular work.
There is no evidence on record that he has any problems between 1992 and October 2008.
There is no evidence on record the worker was unable to do regular work between 1992 and October 2008.
The worker stated that he had prior knee surgery, but his knee never “gave out” before the incident of October 15, 2008.
Having established that the worker had an incident on October 15, 2008, and a pre-accident impairment, a medical opinion was sought from the WSIB Senior Appeals Medical Consultant to determine if the incident and the related symptomology are compatible with an aggravation. At this time, the focus to the WSIB medical consultant was whether there is evidence that the incident of October 15, 2008, aggravated the worker’s pre-accident impairment and whether the aggravation contributed to the need for the right knee surgery of February 4, 2009.
In this regard, the medical consultant has opined, as per memorandum dated March 4, 2010, there is medical evidence establishing the worker’s pre-accident impairment was aggravated by the incident of October 15, 2008, and although the surgery of February 4, 2009, would have been required with or without the incident of October, 15, 2008, the surgery was, “probably brought on sooner by the incident”.
In conclusion, having regard for the policy criteria and the medical opinion supporting the incident of October 15, 2008, aggravated the worker’s pre-accident impairment, I find this worker suffered an accident by aggravation of his pre-accident right knee impairment while in the course of his employment on October 15, 2008.
In recognition of the extent of the pre-existing right knee impairment and in keeping with the medical consultant’s opinion with respect to the surgery of February 4, 2009, this worker’s claim is limited to the acute phase of the aggravation. The acute phase ceased subsequent to the recovery of the February 4, 2009 surgery.
CONCLUSION
Based on the preponderance of evidence on record, I conclude, the worker has entitlement to an accident on October 15, 2008, on aggravation of his pre-accident impairment for the acute episode. The acute episode ceased following recovery of the surgery of February 4, 2009.
The worker’s objection is allowed.
The Business Unit is requested to process full LOE from February 4, 2009, for the period of normal post surgical recovery time.
DATED March 22, 2010
G. Matthew Appeals Resolution Officer Appeals Branch