SUMMARY DECISION NO. 960/99. Tear (meniscus).

Transcription

1 SUMMARY DECISION NO. 960/99 Tear (meniscus). The worker struck his knee on a metal stand in May The worker underwent surgery in November 1996 to repair a torn medial meniscus of the left knee. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the surgery. There was continuity of complaint. The injury and the tear were both to the medial aspect of the left knee. There was evidence that the torn meniscus was medically compatible with the history of the accident. The appeal was allowed. [5 pages] DECIDED BY: Gehrke DATE: 16/06/99 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 960/99 [1] This appeal was heard in Sudbury on May 27, 1999, by Tribunal Vice-Chair L. Gehrke. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Acting Appeals Resolution Officer Mr. S. Cavaricci, dated January 21, That decision concluded that there was no causal relationship between the worker's compensable injury of the left knee on May 22, 1996 and the surgical repair of a torn medial meniscus of the left knee in November [3] The worker appeared and was represented by Ms. E. Bowman, of the Office of the Worker Adviser. The employer was notified of this appeal but chose not to attend. THE EVIDENCE [4] I have considered the material in the Case Record (Exhibit #1). In addition, I have considered Addendum #1 containing Board policy (Exhibit #2) and an excerpt from Adams, Outline of Orthopaedics (Ninth Ed.) (Exhibit #3) was considered. [5] Oral evidence was heard from the worker. Submissions were made by Ms. Bowman. THE ISSUES [6] The issue in this appeal is whether the bucket handle tear of the medial meniscus of the worker s left knee, necessitating surgical repair in November 1996, resulted from the contusion injury to his left knee at work on May 22, THE REASONS (i) Background [7] The background to this appeal set out below are my findings of fact and are taken from the Exhibits and the worker s testimony, which I find to be credible. 1. The worker was employed by a metals manufacturing company when, on May 22, 1996, he injured his left knee. At the time of his injury, he was setting up a stand for a drill press. While walking around it, he struck his left knee on the metal stand. He testified that he hit his left knee, and immediately felt sharp pain on the inside of it. He continued to work until the end of his shift. The sharp pain lasted until supper, leaving a dull throbbing pain.

3 Page: 2 2. The worker did not report the injury until the next day. In the morning, the pain in his left knee was worse than the day before. His knee was stiff when he got out of bed. He went to work, bent down and found that he could not straighten up because of his knee. He reported the injury to his supervisor, who told him to go to hospital. The hospital physician told him that it was probably a bad bruise and diagnosed a contusion of the knee. The hospital physician advised the worker to apply an ice pack and gave him a note stating the following: Should do very little walking next 3 days. The hospital record of the worker s visit indicates that the worker bruised the inner aspect of his left knee against a steel post. 3. The worker returned to work from hospital on the same day, May 23, 1996, with the doctor s note. The supervisor advised him to take the day off because there was a lot of walking in the shop. The worker therefore left for the remainder of the day. 4. On the next day, Friday May 24, 1996, the worker called his supervisor from home. He requested and received permission from the supervisor to stay home and treat his knee with ice packs and rest. He stayed at home all weekend, resting and icing his knee. On Monday, May 27, 1996, he returned to his regular duties. On May 31, 1996 he was laid off due to lack of work. 5. The employer s general manager wrote to the Board on May 27, 1996 stating that he called the worker s home on May 24 th to offer work that could be done from a seated position, but was told by the worker s mother that he was away on holiday Friday and Monday. The worker emphatically denied this in his testimony. He stated that modified work was never offered to him. I find the worker s testimony to be internally consistent and consistent with the medical records on file from the hospital. Therefore, I prefer the worker s testimony under oath on the points raised in the manager s letter. 6. Following the May 31, 1996 lay-off, the worker testified that his knee pain became worse. Following his injury, he suffered from pain on the medial side of the knee and a clunking sound. However, he kept thinking that it would get better and so did not consult a physician until August 1996, when he was x-rayed. 7. In October 1996, the worker consulted Dr. S. Tubin, an orthopaedic surgeon. At that time he was suffering from painful locking and unlocking with a clunk and giving way episodes. Dr. Tubin noted that the worker had an extremely positive McMurrays sign indicating a possible meniscal injury on the medial side of his knee at the area where he was struck. 8. Based on the worker s symptoms and his history of an injury in May 1996, Dr. Tubin suspected a medial meniscus tear and recommended arthroscopic surgery to repair it. This was done on November 18, The operative findings revealed that the culprit was a large bucket handle tear on the posterior horn of the medial meniscus, which Dr. Tubin repaired. 9. On November 22, 1996, Dr. R.D. Longmore, Board Medical Co-ordinator, reviewed Dr. Tubin s consultation report. At that time, Dr. Tubin had made a provisional diagnosis of a possible medial meniscus tear. Dr. Longmore wrote: The examination documented by Dr. Tubin is certainly suggestive of a possible medial meniscus tear. A provisional diagnosis was established and an

4 Page: 3 arthroscopic and possible medial meniscectomy of a surgical procedure was planned. From a medical point of view, there is compatibility to the minor injury of a contusion of this man s right knee. However, it is totally medially inconsistent that an injury of May 22, 1996 would cause a meniscal tear and as a result would not force this man to see a physician and seek further medical attention a long time prior to even the x-ray of August MEDICAL OPINION After a review of the information in this file, I recognize that this man may well have a medial meniscal injury to his right knee. However it is impossible to establish medical compatibility between the minor injury of May 22, 1996 and the minor physical findings of May 23, 1996 as being causally related to this man s current knee condition. 10. Since his recovery from surgery, the worker has returned to work and has not suffered problems with his left knee until about a month ago, when the pain returned. (ii) Law and Policy [8] Since the worker s injury took place in 1996, the pre-1997 Workers Compensation Act applies to this appeal. Since the worker s appeal was heard in 1999, certain provisions of the Workplace Safety and Insurance Act, 1997 also apply to this appeal. In particular, the 1997 Act provides for the continued application of the pre-1997 Act to pre-1998 injuries. As well, section 126 of the 1997 Act requires the Tribunal to apply Board policy in reaching its decisions. I note that the Tribunal considered and applied Board policy in its pre-1998 decisions, although not required by statute to do so. [9] Generally speaking, the pre-1997 Act provides that where a temporary or permanent disability results from a compensable injury, benefits are payable as provided by the Act: see sections 4, 37, 42 and 43. [10] Board policy with respect to recurrent disabilities is found in Operational Policy Document No That policy states in part: Recurrences give rise to rights to benefits under the Workers Compensation Act because they result from a personal injury arising out of and in the course of employment. A decision-maker will recognize a recurrence when there is obvious medical compatibility or an appropriate combination of medical compatibility and continuity, and an absence of a new accident. (iv) Findings and Conclusions [11] I have carefully reviewed the worker s testimony under oath and the materials in the Exhibits. Having done so, I am satisfied by the evidence on a balance of probabilities that the left medial meniscal tear,

5 Page: 4 which was surgically repaired in November 1986, is the direct result of the injury to the medial aspect of the worker s left knee on May 22, [12] Firstly, the area of the knee injured is the same area that suffered the meniscal tear. Both the injury and meniscal tear were located at the medial aspect of the left knee. Secondly, I accept Dr. Tubin s opinion that the meniscal tear was medically compatible with the history of the worker s injury. [13] I have considered the opinion of Dr. R.D. Longmore, Medical Co-ordinator dated November 28, Dr. Longmore considered that it was impossible to establish medical compatibility between a minor injury on May 22, 1996 requiring no lost time and no further medical attention until August 1996, and the current knee condition. With respect to Dr. Longmore s opinion, I have found the worker s testimony before me to be credible and particularly I accept the worker s testimony that he continued to suffer knee pain from the time of his injury but delayed seeking further medical attention because he thought that it would get better in time. I further accept the worker s testimony that the injury immediately caused severe pain. [14] I note that Dr. Longmore did not have the benefit of the surgical reports at the time that she reviewed the file. This is clear from her reference to a provisional diagnosis and planned surgical procedure. Further, I accept Dr. Tubin s opinion that the history of the injury to the left knee is compatible with the medial meniscal tear. Dr. Tubin was the worker s treating specialist over a period of time and had the advantage of interviewing, examining and performing the surgery which revealed the medial meniscal tear. In my view, Dr. Tubin was in the better position to evaluate the medical compatibility of the injury with the condition requiring surgery. [15] Based upon these findings, I conclude that the worker is entitled to benefits in accordance with the pre Act for the November 1996 surgery to the left knee and any consequences flowing from the left medial meniscal tear and/or the surgery performed to repair it. THE DECISION [16] The appeal is allowed. DATED: June 16, 1999 SIGNED: L. Gehrke