WORKERS COMPENSATION APPEAL TRIBUNAL. WORKER CASE ID # [personal information] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #166

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER CASE ID # [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #166 Appellant Respondent Maureen Peters, Worker Advisor Brian L. Waddell, Q.C., Solicitor representing the Workers Compensation Board Place and Date of Hearing July 31, 2012 Loyalist Lakeview Resort Summerside, Prince Edward Island Date of Decision August 30, 2012

2 WCAT Decision #166 Page 1 of 12 Facts/Background 1. This appeal arose out of a decision of the Internal Reconsideration Officer ( IRO ) of the Workers Compensation Board ( Board ) dated March 8, In that decision, the IRO denied the Appellant s request for reconsideration of a decision of the Board with respect to the Board s termination of the Appellant s temporary wage loss ( TWL ) benefits. 2. The Appellant was employed as a [personal information]. On February 11, 2011, she was injured at her place of employment when she caught her foot on the back leg of a chair causing her to fall to the floor. 3. The Board accepted the Appellant s claim effective February 14, 2011, and she began receiving TWL benefits. The accepted diagnosis under the claim was right knee, left arm and left hand sprain. [Appellant s Appeal Record Tab 16] 4. Prior to the Appellant s work injury on February 11, 2011, the Appellant had two arthroscopic debridements of her medial meniscus performed on her right knee in March 2010 and December Both of these procedures arose from a non-compensable injury. The Appellant returned to work after the December 2010 debridement and according to her Orthopaedic Surgeon, Dr. G. Stewart Campbell, she was doing well following a second arthoscopic debridement of her medial meniscus until she injured herself at work in February 2011 when she fell at work, landing on her right knee. [Appellant s Appeal Record Tab 63] 5. After the Appellant was injured at work on February 11, 2011, she attended physiotherapy sessions. In addition an MRI was performed on May 30, The MRI showed further changes in the posterior horn of the medial meniscus in her right knee since her previous scan. [Appellant s Appeal Record Tab 41] 6. Dr. G. Stewart Campbell scheduled an arthroscopic debridement of the right knee, which was performed on July 6, 2011.

3 WCAT Decision #166 Page 2 of Following the July 6, 2011, arthroscopic procedure, Dr. S. Campbell provided a written report to Dr. Paul Phelan, the Appellant s family doctor. In that report, Dr. S. Campbell stated: The presumed preoperative diagnosis was recurrent medial meniscus tear of the right knee following a repeat industrial injury in a fall after which she had achieved significant symptom relief from arthroscopic partial medial meniscectomy for a horizontal cleavage tear found in the posterior one-third of the right knee medial meniscus. Unfortunately, following her re-injury in the spring of 2011, she had recurrent pain and repeat MRI showed signal changes to the meniscus, which were difficult to distinguish from previous MRI findings. Nevertheless, on repeat arthroscopy of the right knee on July 6, 2011, it was found that the meniscal debridement had not changed but the patient had significant degenerative arthritis of the medial compartment of the right knee, thus accounting for her symptoms. Of note, prior to her initial industrial injury to her right knee in 2009, she had no pain in her right knee. The development of degenerative changes in the medial compartment of the right knee is consistent with the need for partial medial meniscectomy required on the basis of an industrial injury to the right knee. [Appellant s Appeal Record Tab 50] 8. The Board s Medical Advisor, Dr. Steve O Brien, reviewed the Appellant s file and issued a report on August 26, 2011, wherein Dr. O Brien opined that the degenerative arthritis that the Appellant experienced in her right knee was a grade 3 level which would have taken many years to develop and would be considered a pre-existing condition, the cause of which would not be related to the incident that initiated the claim. Dr. O Brien opined: Therefore, the arthoscopic report of July 6, 2011 describes the pre-existing degenerative changes and showing no acute change that would be related to the workplace injury that initiated this claim. With the fact that Dr. Campbell noted [the Appellant]

4 WCAT Decision #166 Page 3 of 12 was stable prior to the incident that initiated this claim, then her diagnosis would continue to be sprain of her right knee, left arm and left hand with an exacerbation of the pre-existing degenerative changes in her right knee. However, Dr. O Brien also opined that there was no arthroscopic evidence of internal derangement caused by her workplace injury that would be considered to be an exacerbation or a temporary worsening of her pre-existing condition for which she had already required two arthroscopic procedures prior to the workplace injury. [Appellant s Appeal Record Tab 52] 9. Dr. S. Campbell issued a follow up letter to Dr. Phalen dated October 12, 2011, wherein he stated: [The Appellant] is now approximately 3 months post arthroscopic re-examination of her right knee following an industrial injury which occurred following arthroscopic debridement of a horizontal cleavage tear to her medial meniscus. The patient was doing well following a second arthroscopic debridement of her medial meniscus until she injured herself at work in February 2011 when she fell at work, landing on her right knee. Prior to that, she was doing well. At the time of arthroscopy of her right knee on July 6, 2011, the only finding, compared to the previous arthroscopic exam, was early degenerative arthritis of the medial compartment of the right knee. The point that needs to be made is that this was asymptomatic prior to her industrial injury in February Since her arthroscopy in July, the patient has been gradually improving with regard to her right knee and is prepared to return to work on Ease Back immediately. She is currently being investigated by Dr. Hutchings regarding non-medical issues, but this would not prevent her from returning to work on Ease Back. (emphasis added) [Appellant s Appeal Record Tab 63] 10. On October 19, 2011, the Board had rendered a decision that the Appellant s claim for TWL benefits was closed effective October 23, [Appellant s Appeal Record Tab 66]

5 WCAT Decision #166 Page 4 of The Appellant filed a Notice of Request for Internal Reconsideration with the Board, said Notice dated January 23, In the Notice the Appellant claimed that she was not asymptomatic before the workplace injury, and she requested that her claim remain open. [Appellant s Appeal Record Tab 69] 12. On March 8, 2012, the IRO issued the decision, which is the decision now under appeal in relation to this claim. In that decision, the IRO ruled that the Appellant had two arthroscopic surgeries which were non-compensable on her right knee prior to the February 2011 workplace injury. The Appellant had noted in a conversation with her Board worker on March 16, 2011, that her right knee pain had mostly resolved prior to her workplace injury. The IRO ruled that the third arthroscopic surgery in July 2011, found that the post-surgery diagnosis was significant degenerative diagnosis of the medial compartment of the right knee, which according to Dr. S. Campbell was responsible for the Appellant s symptoms. The IRO ruled that the Appellant s ongoing knee issues were more reasonably related to her pre-existing condition than the injury which initiated the claim. In addition, the IRO ruled that the Appellant was unable to work because of a non-compensable condition being treated by Dr. Hutchings, which ruling was based on an October 5, 2011, letter from Dr. S. Campbell to Dr. Phelan. [However, it should be noted this opinion was clarified by Dr. S. Campbell in his October 12, 2011, letter when he stated that the non-medical issues being investigated by Dr. Hutchings would not prevent the Appellant from returning to work on an Ease Back basis]. [Appellant s Appeal Record Tab 1] 13. The Appellant filed a Notice of Appeal of the March 8, 2011, IRO decision on April 5, [Appellant s Appeal Record Tab 2] Issue Whether the Appellant s ongoing symptoms in her right knee related to her workplace injury and thus are compensable?

6 WCAT Decision #166 Page 5 of 12 Analysis/Decision 14. The Appellant claimed, that, notwithstanding that she had two arthroscopic surgeries on her right knee prior to her workplace injury, she was able to work and that she was not experiencing symptoms which prevented her from working as of the date of her workplace injury. While it is correct that she did return to work after her December 2010 arthroscopic surgery, it appears that the Appellant may not have been totally symptom free. The Appellant noted in her conversation with her Board Entitlement Officer on or about March 16, 2011, that her right knee pain had mostly resolved until she injured herself at her place of work on February 11, Whether this pain was as a result of the two arthroscopic surgeries or the onset of degenerative arthritis is not known. [Appellant s Appeal Record- Tab 21] 15. The Appellant also referred to the medical reports of Dr. S. Campbell which indicated that the Appellant was doing well with her recovery post-december 2010 surgery, until she fell at work. [Appellant s Appeal Record Tabs 26, 33 and 63] 16. For instance the Appellant referred to Dr. Campbell s report of October 12, 2011, which stated that the Appellant s diagnosis of early degenerative arthritis of the medial compartment of the right knee was asymptomatic prior to her workplace injury in February [Appellant s Appeal Record Tab 63] 17. Therefore, the Appellant argued that the degenerative arthritis in her right knee was a pre-existing condition which went from asymptomatic to symptomatic following her workplace injury. 18. Section 6(9) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1, as amended (the Act ), states: (9) Where an accident caused personal injury to a worker and that injury is aggravated by some pre-existing physical

7 WCAT Decision #166 Page 6 of 12 condition inherent in the worker at the time of the accident, the worker shall be compensated for the full injurious result until such time as the worker, in the opinion of the Board, has reached a plateau in medical recovery. 19. The Appellant argued that her workplace injury aggravated her pre-existing condition of degenerative arthritis, causing the previously asymptomatic arthritic condition to become symptomatic. 20. Terrance Ison in Worker s Compensation in Canada states: Pre-existing casual factors. Where a worker is disabled from work following an injury that arose out of and in the course of employment, compensation is payable whether the employment was the sole cause of the disablement, or whether other factors, such as weaknesses of the body, were contributory. If the worker was employed with his other limitations or disabilities prior to the injury, the subsequent disability is attributed to the injury and compensable as such. Similarly, where an employment event aggravates a pre-existing non-compensable disability, the aggravation is a compensable injury, and the worker is entitled to compensation for as long as the aggravation causes an absence from work. 21. In this case, the Appellant argued that her symptoms had been resolved by her previous right knee arthroscopic surgeries and the fact she had returned to full time work supports that argument. Thus the Appellant claims that the preexisting condition was asymptomatic prior to her workplace injury at which time it became symptomatic. Therefore she should be compensated for the full injurious result until such time as she has reached a plateau in her medical recovery, pursuant to Section 6(9) of the Act. 22. On the other hand, the Respondent argued that the Appellant s fall at work caused a soft tissue injury to her right knee, which at some point in time was resolved; however, what was not resolved was the Appellant s degenerative arthritis which was a pre-existing condition. The Board argued that the workplace fall caused a temporary exacerbation of the pre-existing condition of

8 WCAT Decision #166 Page 7 of 12 arthritis, but once the injury caused by the workplace fall was healed, the remaining pain and ongoing symptoms of the Appellant could not be attributed to the workplace injury, but rather it was solely related to the pre-existing condition of degenerative arthritis. 23. Thus, the Respondent argued, the Appellant s ongoing right knee issues were more reasonably related to her pre-existing arthritic condition as opposed to the injury which initiated the claim. The Respondent further argued that there was no causal connection between the Appellant s ongoing right knee issues and the workplace injury. 24. Board Policy POL Weighing of Evidence states: 3. The standard of proof for decisions made under the Act is the balance of probabilities a degree of proof which is more probable than not. 4. Decision makers must assess and weigh all relevant evidence. Conflicting evidence must be weighted to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 5. If the evidence is weighed in favor of the worker, the claim shall be allowed and compensation benefits provided. 6. If the evidence weighs against a worker s claim, the claim will not be allowed. 7. If the Workers Compensation Board concludes that the evidence for and against entitlement is approximately equal in weight then the issue will be decided in favor of the worker, supported by a rationale for finding the evidence to be approximately equal in weight. 25. In addition, Section 17 of the Act states: 17. Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or

9 WCAT Decision #166 Page 8 of 12 against the issue is approximately equal in weight, the issue shall be resolved in favor of the claimant. 26. As stated above, the Respondent argued that there is no casual connection between the present ongoing symptoms of the Appellant and her workplace injury. Therefore, on the balance of probabilities, the ongoing symptoms were not caused by the workplace injury, and thus the Appellant is not entitled to compensation for the ongoing symptoms. 27. While there is no specific medical evidence that states that the workplace injury was a cause of the Appellant s ongoing knee symptoms, the medical report from Dr. S. Campbell dated October 19, 2011, clearly stated that the Appellant was asymptomatic with respect to her arthritis prior to the workplace injury. [Appellant s Appeal Record Tab 63] 28. In assessing and weighing all of the relevant evidence which was presented to this Tribunal, it appears that the Appellant experienced no symptoms arising from her degenerative arthritis prior to her workplace injury, but only experienced symptoms after that injury. Therefore, this Tribunal rules that the Appellant s pre-existing injury was aggravated by the workplace injury. 29. The Respondent argued that the aggravation or exacerbation of the pre-existing arthritic condition was of a temporary nature, and thus any symptoms that the Appellant was experiencing after October 23, 2011, did not result from the workplace accident. 30. However, there is no evidence before this Tribunal which distinguishes the pain symptoms that the Appellant incurred as a result of the fall and the temporary exacerbation of her pre-existing condition, from the symptoms the Appellant felt after the recovery from the workplace injury. 31. Dr. O Brien, the Board s Medical Advisor, stated in his medical report of August 26, 2011, that:

10 WCAT Decision #166 Page 9 of 12 Therefore, with no arthoscopic evidence of internal derangement caused by her workplace injury that initiated this claim, this would be considered to be an exacerbation or a temporary worsening of her preexisting condition for which she already required 2 arthoscopic examination prior to the workplace injury that initiated this claim. This would be similar to a soft tissue injury, for which the expected healing time, according to the Disability Duration Guidelines and Expected Healing Times published by the Workers Compensation Board of Prince Edward Island, September 2003, would be 3 months postinjury. [Appellant s Appeal Record Tab 52] However Dr. O Brien does not state that there is a distinction to be made between the symptoms caused by the workplace injury and the symptoms caused by the degenerative arthritis. 32. In fact, Section 6(9) of the Act, states that where an injury is aggravated by a pre-existing condition, the Appellant is to be compensated for the full injurious result until such time as the Appellant in the opinion of the Board has reached a plateau in medical recovery. This section does not permit the Board to separate injurious result caused by pre-existing condition and injurious result caused by an accident. 33. The Board made no decision on whether the Appellant had reached a plateau in medical recovery when the TWL benefits were terminated, as is required by Section 6(9) of the Act. Rather, the Board attempted to distinguish the symptoms that the Appellant was feeling from the symptoms she incurred as a result of the workplace injury. 34. In other words, the Board did not consider whether the Appellant had reached a plateau in medical recovery with respect to the full injury. 35. The medical report of Dr. Campbell dated October 12, 2011, stated that the Appellant had been gradually improving with regard to her right knee and was prepared to return to work on an Ease Back Program. However, it does not indicate that the Appellant had reached a plateau in her medical recovery. As

11 WCAT Decision #166 Page 10 of 12 such, the Appellant is entitled to be compensated for her full injurious result until such time as she has reached such a plateau. 36. In considering and reviewing the evidence presented, this Tribunal rules that the Appellant s workplace injury aggravated her pre-existing physical condition of degenerative arthritis, which arthritis was asystematic prior to her injury. When considering all the evidence presented, on the balance of probabilities, this Tribunal further rules that it is impossible to distinguish the symptoms that the Appellant was incurring at the date the TWL benefits were terminated from the symptoms she incurred as a result of the workplace injury, as was argued by the Board. Therefore, whether her ongoing symptoms were as a result solely of the workplace injury, or as a result of the workplace injury which aggravated her pre-existing condition, the Appellant is entitled to receive benefits until she has reached a plateau in medical recovery, which was not the case here. 37. Therefore, on the balance of probabilities, this Tribunal rules that the Appellant s workplace injury on February 11, 2011, aggravated her pre-existing arthritic condition and that the Appellant should have been compensated for the full injurious result until such time as she had reached a plateau in medical recovery. 38. As such this Tribunal rules that the Board erred in terminating the Appellant s TWL benefits effective October 23, 2011, in that the Board failed to consider the effect of Section 6(9) of the Act, as it related to how the Appellant s workplace injury affected the Appellant s pre-existing condition, and furthermore, the Board failed to consider whether the Appellant had reached a plateau in medical recovery of the workplace injury which had been aggravated by her pre-existing condition.

12 WCAT Decision #166 Page 11 of Therefore, the Appellant s appeal is allowed and this matter is remitted back to the Board. Dated this 30 th day of August, Wendy E. Reid, Q.C. Chair of the Workers Compensation Appeal Tribunal Concurred: Bruce Gallant, Worker Representative Scott Dawson, Employer Representative