WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION Number:
20150060
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING IN WRITING:
Hearing in Writing
HEARD by:
B. Craddock, Appeals Resolution Officer
ISSUE(S)
The worker is objecting to the Case Manager's (CM) decision of May 23, 2013, which rescinded ongoing entitlement for the worker's right knee, including entitlement to multiple surgical procedures and a permanent impairment.
BACKGROUND
This worker was employed as a truck driver. Entitlement was accepted for a right knee injury sustained as a result of an accident at work on May 10, 2005. On that date, this then 45-year-old stepped on the corner of a skid and twisted his right knee. The initial medical report provided a diagnosis of right knee strain with a suspected medial collateral ligament injury. An MRI of July 9, 2005, demonstrated a medial meniscus tear considered degenerative in nature.
Entitlement was accepted for the strain and the meniscus tear. The worker was paid loss of earnings (LOE) benefits for various periods and at various levels from the date of injury. Arthroscopic surgery on September 13, 2005 confirmed pre-existing degenerative changes. The worker continued to have difficulties with his knee and underwent total knee replacement on October 9, 2011. He required arthroscopic debridement and removal of adhesions on November 2, 2012. Post-surgery the worker continued to experience pain and stiffness in the knee and a consultation report of April 1, 2013, proposed a revision of the total knee replacement.
The CM requested an external Medical Consultant's opinion on the relationship of the proposed surgery to the work-related injury. The Consultant's opinion was that all the surgeries, including the first surgery of September 13, 2005, were for the pre-existing degenerative condition and not a result of the twisting injury of May 10, 2005. The CM accepted the medical opinion and rescinded entitlement, including entitlement to the surgeries. The worker’s entitlement was limited to a strain injury, which was considered to have resolved. The worker was advised that his entitlement to LOE benefits and any further healthcare benefits ended effective June 20, 2013.
AUTHORITY REFERENCES
Policies:
18-03-02 – Payment and Reviewing LOE Benefits
15-02-03 – Pre-existing Conditions
11-01-01 – Adjudicative Process
11-01-03 – Merits and Justice
ANALYSIS
Having reviewed the applicable Policies, the Worker Representative's arguments and the evidence in the file record, I find that the worker's ongoing right knee problems are directly attributable to the work-related accident of May 10, 2005 and he is entitled to additional benefits.
In considering the worker's ongoing entitlement, I note that the decision of May 23, 2013, was made prior to the effective date of the Policy on “Pre-existing Conditions.” Nevertheless, the principles outlined in that Policy are relevant to the issue in dispute, namely that workers are only entitled to benefits for conditions that are attributable to a workplace injury. The Policy stipulates that the workplace injury must be a significant contributing factor.
In support of the objection, the Worker Representative referenced the WSIB's Administrative Practice Document (relating to Policy 15-02-03), and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) discussion paper on "Knee Conditions and Disability". Additionally, the worker representative referred to the medical reporting and opinion from the treating doctors.
As noted by the Worker Representative, the mere existence of a pre-existing condition is not grounds to disqualify a worker from entitlement to WSIB benefits. There is no evidence that the worker had any symptoms in the right knee prior to the accident of May 10, 2005.The worker has a prior claim for a left knee injury with no documentation of right knee complaints in that claim. Given that the worker’s right knee was asymptomatic, entitlement is not considered on an aggravation basis.
According to the information on file, the worker had a twisting injury to the knee while carrying a load. Following the twisting injury, the worker had a painful and swollen knee with a tendency to lock. The WSIAT discussion paper indicates that a minor twist on an arthritic knee can result in a sudden onset of pain. The discussion paper also indicates that surgery may be indicated if symptoms of internal knee derangement persist.
All of the medical opinions on file, including the opinion from the WSIB external medical consultant, support that the incident caused the previously asymptomatic right knee to become symptomatic. In the report of August 28, 2014, the Orthopedic Specialist indicated that the twisting incident was an aggravating factor causing the worker's functional limitations to deteriorate to the extent his early arthritic changes converted from asymptomatic to symptomatic. In an initial case file review conducted in May 2013, an external Medical Consultant noted that surgery may result in altering the natural progression of a degenerative condition. In this case, however, the Medical Consultant was of the view the original surgery was solely related to the degenerative condition, making any consequences of the surgery not work-related.
Based on the evidence and the Policy, I find that the Medical Consultant’s conclusion is not supportable. The worker had an asymptomatic condition prior to May 10, 2005. There is a clear history of onset of pain, swelling and locking subsequent to the May 10, 2005 injury. The worker had a consistent and uninterrupted history of ongoing symptoms after the work injury, which culminated in the surgery on September 13, 2005. Additionally, as noted in the Administrative Practice Document, regard must be had for whether the current level of impairment would have existed if the work-related injury had not occurred. There is no break in the chain of causation. The worker did not have a period of recovery. Nor is there evidence of an intervening event. The external Consultant’s opinion appears to be based solely on the existence of the pre-existing condition, which is not consistent with the Policy.
The Policy indicates that when a work-related injury/disease and a pre-existing condition are factors in the worker's ongoing impairment, the WSIB determines ongoing entitlement, based on the causation standard of significant contributing factor. The Policy relies on the "Thin Skull Principle", which states,
Entitlement is not denied because the worker has a pre-existing condition that makes him/her more susceptible to injury. The WSIB compensates the worker for the full effect of the work-related injury even if the injury is more severe than expected or takes longer to recover, due to the pre-existing condition.
There is convincing evidence that the May 10, 2005 twisting incident led to the surgery of September 13, 2005. There is consensus in the medical opinions on file that the initial surgery was a significant contributing factor to the progression of the degenerative changes, which led to the subsequent surgeries. Although the worker may have been more susceptible to injury and poor recovery because of the underlying degenerative changes, the precipitating and significant contributing factor was the May 10, 2005 accident.
CONCLUSION
- I find that the worker has ongoing entitlement for the right knee and the surgeries, including the recently proposed surgery.
- The worker was not at MMR as of June 20, 2013 and the Operating Area is directed to consider the worker's entitlement to LOE benefits subsequent to June 20, 2013, based on updated medical reporting and the applicable LOE Policies.
The worker's objection is granted.
DATED June 9, 2015
B Craddock
Appeals Resolution Officer
Appeals Services Division