WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 667/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 667/15 BEFORE: S. L. Ungar : Vice-Chair B. Wheeler : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: December 3, 2015 at Toronto Oral DATE OF DECISION: January 7, 2016 NEUTRAL CITATION: 2016 ONWSIAT 38 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) P. Dardarian, dated April 17, 2014 APPEARANCES: For the worker: For the employer: Interpreter: R. Collie, Paralegal Self-represented Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 667/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to benefits for a left medial meniscus tear and Baker s cyst; and as well, that she did not have a permanent impairment (PI) regarding her compensable left knee condition and thus was not entitled to a non-economic loss (NEL) award for that injury. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The issues under appeal are as follows: 1. Entitlement for a left medial meniscus tear and Baker s cyst, which injury was claimed to have been sustained at work on April 16, Recognition of a PI and entitlement to a NEL award for the compensable left knee injury. (iii) Background [3] The now 50-year-old worker started working with the accident employer in She injured her left knee while participating in a physical training program at her workplace on April 16, The Case Manager (CM) allowed entitlement for a medial collateral ligament (MCL) strain, but denied entitlement for a left medial meniscal tear and Baker s cyst. The CM also denied entitlement of a PI for her work-related left knee condition. The worker objected to those decisions dated September 14, 2012, February 26, 2013, as well as to the reconsideration decision of November 29, The case was referred to the Appeals Division of the Board. On April 17, 2014, the ARO rendered his final decision, upholding the previous Board decisions. It is from this decision that the worker now appeals to the Tribunal. (iv) Law and policy [4] Since the worker claimed to be injured in 2012, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [5] An accident is defined in section 2(1) to include: (a) a willful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; [6] General entitlement to benefits is governed by section 13: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

3 Page: 2 Decision No. 667/15 The statutory presumption set out in section 13(2) does not apply to an injury by disablement. See, for example, Decisions No. 268 and 42/89. [7] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [8] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [9] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Policy Packages: 12; 261; 300. [10] We have considered these policies as necessary in deciding the issues in this appeal, as discussed below. (v) Medical and documentary evidence [11] In this case, the Panel is faced with several medical reports which contain conflicting opinions on the issue of whether the worker s meniscal tear was related to the workplace accident. We have, therefore, reviewed and summarized each of those reports, as well as the other relevant documents that shed light on them. [12] On April 20, 2012, the worker completed a Worker s Report of Injury (Form 6), wherein she indicated that she first hurt her left knee on the afternoon of April while involved in a physical training exercise. She noted that her left knee was sore, but I put it down to muscle soreness; each day after that, it began to swell and hurt more until I reported it to [my trainer]. Because it was a physical training exercise I thought it would be temporary. She noted on the form that she did not hurt that part of her body before, nor did she have any prior related WSIB claims. [13] On April 23, 2012, the employer completed an Employer s Report of Injury (Form 7). It indicates that the worker participated in specialized work-related training for five days, and that during that training participants had to practice various takedowns and participate in warm up activities such as jogging, knees up, and arm circles. It also notes that a few days afterwards, the worker complained of knee soreness. The form provides that there was no lost time as a result of the injury. As well, the employer checked off that they were not aware of any prior similar or related problem, injury or condition. [14] On April 24, 2012, Dr. Grainger, the worker s family doctor, completed a Health Professional s Report (Form 8). He noted a diagnosis of strain to the left knee, and that the knee was injured during training. He also checked off no when asked if he was aware of any pre-existing or other conditions or factors that may impact recovery. He noted that the worker had pain, but did not seek further investigations or referrals at that time. [15] On June 27, 2012, the employer completed another form, an Employer s Continuity Report (Form WRE07) regarding a possible recurrence of the worker s knee injury on June 27, It indicates that the worker went on further training and may have reinjured

4 Page: 3 Decision No. 667/15 [her] knee and that the left knee [was] still painful and swelling if standing and walking all day. [16] In late June 2012, the worker was still experiencing swelling and pain, as noted above. Dr. Grainger, therefore, completed a requisition for an MRI. In the section entitled Diagnostic Question/Clinical History, Dr. Grainger wrote: Query meniscal tear, left knee; WSIB related injury. [17] An MRI was performed on July 9, 2012, and the MRI Report of same date states as follows: CLINICALLY PROVIDED HISTORY: Query meniscal tear left knee WSIB related injury. The MCL proximally is thickened compatible with a previous grade 1 MCL strain. The medial meniscus posterior horn does demonstrate abnormal linear signal surfacing at the inferior articular surface compatible with a horizontal type tear of the medial meniscus posterior horn. There is a Baker s cyst in the medial aspect of the popliteal fossa measuring approximately 2.8 x 2.1 cm. There is some subcutaneous edema in the knee soft tissues anteriorly. There is mild knee joint effusion. There is some mild increased signal on the T2 weighted images in the medial tibial plateau laterally compatible with bone marrow edema secondary to the meniscal tear. CONCLUSION: Revealed multiple abnormalities as described including tear of the posterior horn of the medial meniscus and Baker s cyst [emphasis added]. [18] In Board Memorandum # 9 dated July 16, 2012, the Eligibility Adjudicator noted that upon receiving the MRI results dated July 9, 2012, she was allowing the worker s claim for a meniscus tear in the left knee. She further indicated that since the worker was having ongoing recovery issues, she was transferring the case to a case manager to monitor her recovery. She noted that since April 19, 2012, the worker had not been able to kneel on her left knee and was experiencing on and off pain. [19] On July 23, 2012, Dr. Grainger completed a Health Professional s Progress Report (Form 26), wherein he stated the following: Pain worse, swelling. Pain, swelling left knee worse with bending and walking - effusion, crepitus, and patellar tenderness. He prescribed a course of physiotherapy, and medication (naproxen). He noted that he had not yet received the MRI report. As to the expected recovery time, Dr. Grainger noted time not certain, may need surgery. [20] In a Health Professional Continuity Report (Form REO 8) also dated July 23, 2012, Dr. Grainger described the worker s injury as a twisting injury to the left knee on April 16, 2012 gradually worsening pain since the injury. He noted the worker s symptoms as pain, swelling left knee effusion left knee patella femoral tenderness. His diagnosis was possible meniscal tear left knee. [21] On July 24, 2012, the worker completed a Worker s Continuity Report (Form REO6). She stated that her present problems were a result of the original work injury, and that her symptoms worsened and were aggravated with continual and consistent use of her knee; and that when her knee was particularly sore, she performed modified duties in the office. Both naproxen and a tensor type brace had been prescribed for her. She also noted that in late June, Dr. Grainger had arranged for an MRI which was performed on July 9, 2012, and the results were pending. In a Worker s Progress Report (Form 41) of same date, she similarly noted that

5 Page: 4 Decision No. 667/15 the swelling has continued since the injury, and that she had been working consistently with the injury and performing desk duties that do not involve kneeling or bending. [22] In July 2012, the Board sought an initial evaluation based on a file review to determine whether the meniscus tear evident on the MRI was compatible with the accident history reported. Accordingly, on July 24, 2012, Dr. Hummel, an orthopaedic surgeon, completed a two-page report. He reviewed the MRI, one Health Professional Report completed by Dr. Grainger on April 24, 2012, a few forms completed by the employer and worker, and two Board memos. He did not examine the worker, nor speak with any of her doctors. His conclusion was as follows: The accident history on April 16, 2012 from the reviewed documentation is compatible with sprain/strain of the left knee. There is no apparent mechanism of injury that would have caused internal derangement of the knee. The Baker s cyst is an outpouching of the synovium and is not attributable to the accident history. In summary, the meniscus tear evident on the MRI is not compatible with the accident history reported [emphasis added]. [23] The worker s family doctor, after receiving the MRI, referred her to Dr. Harrington, an orthopedic surgeon, to determine whether she needed surgery. In a letter dated September 18, 2012 to Dr. Grainger, Dr. Harrington noted that upon examining the worker, he noted discomfort along the MCL, especially proximally, as well as discomfort with valgus strain of the knee. He found that McMurray s testing revealed no click and that he could not reveal any locking type symptoms within the knee; she had full mobility; no significant crepitus; no laterally based findings. He noted that the MRI report indicates some changes present within the medial meniscus as well as a Baker s cyst and also strain of the MCL proximally. He stated: Based on her history and physical examination, it is my opinion that she sustained a sprain/strain type injury to the left knee, likely an MCL strain. She doesn t have any symptoms that would suggest a symptomatic meniscal tear and the Baker s cyst is merely an incidental finding. At this stage, I would recommend physical therapy for strengthening exercises. She does not require any surgery. She tells me she is having some issues with WSIB and I am not certain why they are denying her claim. Apparently it has to do with the meniscal pathology and the Baker s cyst, which they are of the opinion are degenerative in nature and likely present at the time of the incident. I don t disagree, however, the symptoms are more in keeping with the MCL strain, which could clearly have happened at the time of a sprain/strain type incident to the knee itself. MCL strains often take several months to recover from and patients do benefit from physical therapy. Ultimately people are generally able to resume normal function and as she indicated today she has been able to resume her pre-accident work activities [emphasis added]. [24] Subsequently, the Board referred the worker for a further assessment at a Regional Evaluation Centre (REC) at Sunnybrook Hospital. On January 22, 2013, the worker underwent a Level A Multi-Disciplinary Health Care Assessment, which was performed by both Dr. Malcolm, an orthopaedic surgeon, and Ms. Rachevitz, a Physical Therapist. [25] The four-page report sets out the worker s health history, her physical and functional complaints, the findings and results of the physical examination, and the conclusions and recommendations.

6 Page: 5 Decision No. 667/15 [26] In the report, Dr. Malcolm noted that the worker s pain level was 5/10 in the medial left knee, and that the pain increases with climbing stairs, squatting, kneeling, getting up and down from floor, prolonged sitting and walking, and eases up to a degree with a change in position. [27] Dr. Malcolm noted that McMurray s testing was negative for one evaluator and positive for pain for the other evaluator. He also observed a small knee joint effusion. [28] He noted that with time and treatment, the worker had recovered 80%. [29] His diagnosis was injury-related left knee medial collateral ligament strain with posterior medial meniscal tear and Baker s cyst, and he recommended another course of physiotherapy for six to eight weeks, once or twice a week. [30] Upon receipt of this report, Dr. Malcolm was asked by the Board to provide this addendum to specifically address whether the worker s work-related injury was the cause of the horizontal tear in her medial meniscus, or whether it is degenerative in nature. Thus, on February 12, 2013, Dr. Malcolm submitted an addendum to the above report. [31] In this addendum, Dr. Malcolm provided the following opinion on the question that he was asked to determine: Taking that history at face value and in the absence of any previous history of knee symptoms, I would in the balance of probabilities lean towards a traumatic cause for the medial meniscal pathology. Because this type of tear is not pedunculated, it is generally not associated with locking, and giving way (swelling is often not acute) and might as noted in the worker s report of injury disease report dated April 20, 2012, be associated with soreness with progressively increasingly symptoms. Conceivably, the cleavage tear would permit the gradual development of the Baker s cyst following the original injury. In summary, based on the medical evidence available, it is my opinion that in the balance of probability, the meniscal tear and Baker s cyst are the result of the work related incident [emphasis added]. [32] There is also a report of Dr. M. Pysklywec (from the Occupational Health Clinics for Ontario Workers) dated June 27, 2013, which is addressed to the worker s representative. It is a lengthy and detailed report which, as apparent from the introductory remarks, was provided to assess the work-relatedness of the worker s left knee condition. [33] In his report, Dr. Pysklywec reviewed the worker s work and medical history. He also reviewed the various WSIB forms that had been completed, the MRI report, as well as the medical reports that had been submitted, including the reports of Dr. Grainger, Dr. Harrington and Dr. Malcolm, all of which were summarized in his report. [34] Under the heading Current Status, he noted that the worker described steady improvement of knee over the last year, which was about 90% at that time; and that she still has occasional symptoms depending on her activities, such as when she golfs, but was able to perform her regular work without modification. [35] Under the heading Physical Examination, Dr. Pysklywec stated that he found no effusion of the knee, full ROM, but there was a mild amount of MCL media collateral ligament tenderness of the left knee. However, he noted there was no pain on valgus stress and that ACL testing was unremarkable.

7 Page: 6 Decision No. 667/15 [36] Under the heading Impression, Dr. Pysklywec noted that prior to April 16, 2012, when the worker s knee problems first started during her training exercises, she had no symptoms. Subsequently, she developed clinical symptoms and radiographic evidence of pathology. The MRI of the knee indicated conditions of MCL strain as well as a medial meniscal tear and Baker s cyst. [37] He referred to the disagreement in opinions between Dr. Harrington and Dr. Malcolm. He then quoted from various medical resources as to the difficulty in diagnosing a meniscal tear, even for an experienced surgeon, stating that clinical signs such as locking may be helpful, but their absence cannot be used to rule out a meniscal injury. Similarly, he indicated that McMurray s test is not infallible in diagnosing a meniscal tear, as the medical research demonstrates, such that there are often false negatives. He also noted that it should be acknowledged that this diagnosis is difficult to make on clinical grounds, and agreed with Dr. Malcolm that acute meniscal injury may be present even in the absence of locking or giving way. [38] With regard to the work-relatedness of the medial meniscal tear, he stated that it is common for the meniscus to be damaged at the time of medial collateral injury, and pointed out that they are contiguous at the medial aspect of the knee. On this point, Dr. Pysklywec stated: Thus the concurrence of medial meniscal and medial collateral ligament in [the worker s] case is biomechanically plausible and frequently reported. [39] Dr. Pysklywec also commented on the relatedness of Baker s cysts to underlying knee pathology, quoting from a medical source that suggests that meniscal tears are responsible for the development of 71-82% of Baker s cysts. [40] Dr. Pysklywec concluded his report as follows: The temporal presentation strongly implicates [the worker s] work as contributing to this condition. As Dr. Malcolm suggested, she simply has no knee problems before this incident and has had issues ever since. To suggest that her meniscal pathology or Baker s cyst were underlying, degenerative conditions is questionable with the complete lack of any prior symptoms or indication of any predilection towards degeneration. Mechanistically, it is quite conceivable that the physical work of her physical training could have led to meniscal injury. Activities such as grappling, takedowns and holds impart torque across the knee joint. The knee is a hinge joint, accommodating flexion/extension motion, but having difficulty with translational or torsional forces. Such loading, particularly torsion, can impinge the meniscus leading to tear. Biomechanical consideration indicates the plausibility of combat and physical training mechanisms in causing meniscal injury. Given all this, I would conclude that the physical factors of her training played a significant role in causing not only the medial collateral tear, but also the medial meniscal injury and Baker s cyst [emphasis added]. [41] Finally, upon receiving Dr. Pysklywec s report, the CM referred it to Dr. Grbac, one of the Board s Medical Consultants, for a file review to determine if the tear and cyst were pre-existing conditions, and whether they are related to the workplace injury. [42] Dr. L. Grbac was provided documentation including various Board forms, the MRI, and all of the medical reports. In his report dated November 26, 2013, entitled Subsequent Staff Physician Case File Review Memo, he noted the following:

8 Page: 7 Decision No. 667/15 In weighing the medical information available at the time of this review, particular attention was made of the symptoms and objective clinical findings. Apart from pain, the majority of the medical entries on file do not appear to identify any of the other classic symptoms or clinical findings associated with a meniscal tear. In addition, as noted in the file review, when initially assessed by an orthopedic specialist about two months after the injury, there was very specific documentation supporting a strain/sprain as opposed to meniscal pathology. The opinion from Dr. Harrington clearly acknowledged the MRI findings at the time of that assessment. The medical documentation on file does not provide any objective clinical evidence to support meniscal pathology until the REC assessment from January of this year. Even then, there did not appear to be any of the classic symptoms associated with a meniscal tear and the objective examination revealed a McMurray test as being positive for pain although with only one of the two assessors. 1) The new medical information asserts that the physical factors of her (the injured worker s) training played a significant role in causing not only the medial collateral tear, but also the medial meniscal injury and Baker s cyst. The weight of the medical information on file however does not appear to support that the meniscal pathology is a responsibility of this claim. 2) As an extension of the above opinion, it would follow that the diagnosis of a meniscal tear and a Baker s Cyst represent pre-existing pathology. This was also supported by Dr. Harrington [emphasis added]. (vi) Analysis (a) Entitlement for a left medial meniscus tear and Baker s cyst [43] Operational Policy Manual (OPM) Document No , which is entitled Adjudicative Process, provides that there is a five point check system to assist in determining the issue of initial entitlement to benefits. An allowable claim must have the following five points: An employer, a worker, a personal work-related injury; proof of accident, and compatibility of the diagnosis to the accident. [44] In the case at hand, the first four points exist, as apparent from the facts and evidence set out above. [45] As far as the fifth point is concerned, the Panel is of the view that on a preponderance of the evidence before us, there is also compatibility of the diagnosis of the meniscal tear and Baker s cyst to the accident. [46] In reaching this conclusion, the Panel has carefully considered all of the medical evidence before us. In particular, there are five medical opinions in the case material, all of which have been reviewed and summarized above. [47] Dr. Harrington, Dr. Hummel, and Dr. Grbac are of the opinion that the meniscal tear and Baker s cyst are not compatible with the accident history, but rather were pre-existing conditions that are degenerative in nature. [48] In contrast, Dr. Malcolm and Dr. Pysklywec are of the view that the meniscal tear and Baker s cyst did result from the work-related accident. [49] The Panel accepts the opinions provided in the reports of Dr. Malcolm and Dr. Pysklywec that the meniscal tear and Baker s cyst are related to the workplace accident.

9 Page: 8 Decision No. 667/15 [50] With regard to Dr. Malcolm s initial report dated January 22, 2013 and particularly his addendum dated February 12, 2013, the Panel accords great weight to those reports for the following reasons: It was the Board, as opposed to the worker s representative or doctor, that referred the worker to the Regional Evaluation Centre at Sunnybrook Hospital to obtain a Level A Multi-Disciplinary Health Care Assessment. As such, there could be no issue of bias in Dr. Malcolm s report. This assessment was done by two health care practitioners: Dr. Malcolm, an experienced orthopaedic surgeon; and Ms. Rachevitz, a physical therapist. As the worker s representative submitted, Dr. Malcolm is also a Tribunal medical assessor and the co-author of a Tribunal medical discussion paper. As such, he is well qualified to provide an opinion in this case. In contrast, Dr. Grbac, one of the doctors who expressed a contrary opinion, is a family doctor who does not have the same qualifications. The worker testified that she met with both Dr. Malcolm and Ms. Rachevitz for approximately 45 minutes as part of the assessment; that they both examined her extensively, took measurements, watched her walk, did comparisons, and asked a lot of detailed questions, including how the accident happened, and the nature of her training at both of the specialized training sessions. However, the worker testified that her meeting with Dr. Harrington lasted 10 minutes at the most. The worker also testified that Dr. Harrington seemed disinterested when she started explaining to him what was involved in her training exercises, and how the accident happened, and that he was abrupt. The fact that Dr. Malcolm examined the worker is also in contrast with Dr. Grbac s and Dr. Hummel s reports, both of which were based only on a file review (with the documents provided by the worker s case managers), and without the benefit of meeting with or examining the worker. Dr. Malcolm s report is detailed and thorough, categorizing all of the information including the history, examination results, etc. It then concludes that the left knee medial collateral ligament strain with posterior medial meniscal tear and Baker s cyst were injury-related. As Dr. Malcolm stated, the worker simply had no knee problems before this incident and has had issues ever since. In contrast, Dr. Harrington s report was not detailed, and did not address all of the areas that Dr. Malcolm did in his report. Dr. Malcolm performed the McMurray s testing which he found was negative for one evaluator and positive for pain for the other evaluator. After receiving the first report dated January 22, 2013, the Board asked Dr. Malcolm to provide an addendum to provide his opinion whether the worker s work-related injury was the cause of the horizontal tear in her medical meniscus. The addendum was submitted by Dr. Malcolm on February 12, 2013, which addressed the very issue that need be determined in this case; i.e., Dr. Malcolm stated that absent any previous history of knee symptoms, in his opinion, on a balance of probability, the meniscal tear and Baker s cyst are the result of the work related incident. The evidence of the worker (both at the hearing

10 Page: 9 Decision No. 667/15 and in her Form 6), of the worker s family doctor and of her employer is consistent that she had no prior knee problem or injury, and as such, the Panel accepts Dr. Malcolm s opinion. In comparison, Dr. Harrington s report dated September 18, 2012 was brief, and primarily addressed the issue of whether the worker needed surgery. His only opinion on the issue in question stemmed from a comment made by the worker that she was having some issue with the Board, and not from a direct question to him to determine the issue in question. In any event, his statements in this regard are confusing and vague. For example, he first stated that he was uncertain why they are denying her claim, yet he then contradicted that statement by saying that he does not disagree with the Board s opinion. Moreover, he stated that MCL strains often take several months to recover from, whereas we now know that the worker was still experiencing pain well after several months, as documented in the various medical reports, which suggests that the ongoing symptoms are in fact from the meniscal tear. Specifically, in late January 2013, several months after Dr. Harrington saw the worker, Dr. Malcolm noted that the worker was experiencing intermittent 5/10 medial left knee joint pain that increased with numerous activities; and he also made reference to her ongoing symptoms. [51] With regard to Dr. Pysklywec s Report dated June 27, 2013, the Panel also places significant weight on this report for the following reasons: Dr. Pysklywec, as pointed out by the worker s representative, is also well positioned to provide an expert opinion on the issue at hand, as he is a general practitioner who has been practicing occupational medicine for the past 15 years, having obtained a diploma in Occupational Health and Safety from McMaster University in He is also a Fellow of the Canadian Board of Occupational Medicine, and has had clinical training in orthopedic surgery. Dr. Pysklywec reviewed and commented extensively on Dr. Harrington s and Dr. Malcolm s reports and opinions, and also considered Dr. Grainger s findings and reports. As the worker testified, Dr. Pysklywec also performed an extensive examination of the worker, prior to writing his report. In that regard, she stated that Dr. Pysklywec spent at least half an hour interviewing and examining her, watching her walk, manipulating her legs, and hearing about the details of her training and how the accident happened. He stated that the temporal presentation strongly implicates [the worker s] work as contributing to this condition. To suggest that her meniscal pathology or Baker s cyst were underlying degenerative conditions is questionable with the complete lack of any prior symptoms or indication of any predilection towards degeneration. One of Dr. Pysklywec s conclusions in his report was that the worker s activities played a significant role in causing all of the knee injuries, including the meniscal tear and Baker s cyst. As noted above, in the Law and Policy section, Tribunal jurisprudence provides that the test for causation in determining initial entitlement is whether the accident significantly contributed to the injury (in this case, the meniscal tear and Baker s cyst). It need not be the sole contributing factor. In the Panel s view, based on Dr. Pysklywec s opinion, this test would be satisfied.

11 Page: 10 Decision No. 667/15 Dr. Pysklywec noted that Dr. Harrington had performed McMurray s test on the worker, which revealed no click nor locking type symptoms with the knee. However, Dr. Pysklywec commented, in his report, on the difficulty in diagnosing a meniscal disorder on clinical grounds, as frequently noted in the medical research. He stated that McMurray s test is not infallible in diagnosing a meniscal tear, such that it is often falsely negative, as indicated by the various studies noted in the literature. In any event, it should be noted that Dr. Malcolm had also performed McMurray s test on the worker which, as indicated in his report, was negative for one evaluator and positive for pain for the other evaluator. The worker s representative also submitted that it is compelling that both injuries (the ligament sprain and the meniscal tear) are in the same area; i.e., they are both in the left medial knee, which suggests that the accident likely caused injury to both. This argument is supported by Dr. Pysklywec in his report, wherein he stated that it is common for meniscal tears to occur at the time of medial collateral injury, as they are contiguous at the medial aspect of the knee. He referred to various medical research on this point, and explained that the medial collateral ligament is fused to the medial meniscus by its capsular component, and they share biomechanical loading, leading to potential for simultaneous injury. As he stated, the medial collateral ligament is intimately associated with medial meniscal injury. He concluded on this issue that the concurrence of medial meniscal and medial collateral ligament in [the worker s] case is biomechanically plausible and frequently reported. The Panel finds this explanation, which is well documented, to be persuasive on the issue that the accident likely caused both injuries. Finally, with regard to whether the Baker s cyst would also be allowed as part of the worker s claim for entitlement, Dr. Pysklywec also provided his opinion on this issue. After referring to medical papers on point, he stated that Baker s cysts are often related to underlying knee pathology. He noted that according to one research study, meniscal tears are responsible for the development of 71-82% of Baker s cysts, and that another study found that 83% of those with Baker s cysts had associated meniscal lesions. Thus, as he concluded, there is a frequently reported concurrence of Baker s cyst and knee pathology, notably meniscal tears. Dr. Malcolm also stated in his addendum report that the cleavage tear would permit the gradual development of the Baker s cyst following the original injury. As well, there is a Medical Discussion Paper in the case materials that was prepared in August 2013 for the Tribunal by Dr. John Cameron (an orthopaedic surgeon), entitled Knee Conditions and Disability. On page 17 of that medical discussion paper it states that a true Baker s cyst occurs as a result of some intra-articular pathology such as a meniscal tear or arthritis. Thus, based on the above medical evidence, the Panel accepts that the worker has entitlement for the Baker s cyst as well. [52] The opinions of Dr. Malcolm and Dr. Pysklywec are also consistent with the various forms that were completed by Dr. Grainger, the worker s family doctor. As the documentation shows, Dr. Grainger suspected a meniscal tear soon after the worker was injured, and especially after the worker s knee symptoms worsened after she completed her training program. This is evident in his requisition of the MRI in June 2012, wherein he wrote: Query meniscal tear, left knee; WSIB related injury. As well, in the REO8 Form that Dr. Grainger completed on July 23, 2012 just prior to getting the MRI results, he provided a diagnosis of possible meniscal tear.

12 Page: 11 Decision No. 667/15 [53] As the worker testified, Dr. Grainger has been the worker s family doctor for about 20 years. Thus, he knows her well, is familiar with her history, including that she had no prior knee injuries or problems. After hearing about the twisting movements involved in the takedown exercises, and after examining her on several occasions after the initial injury, he suspected that the injury caused a meniscal tear, and thus sought further investigation, which confirmed the existence of a tear. Therefore, he, too, was of the opinion that the workplace accident may well have caused the torn meniscus. [54] The employer, who was self-represented, provided submissions at the hearing. She referred to the ARO decision, and specifically noted that the ARO had preferred Dr. Harrington s opinion due to the fact that he saw the worker closer to the time of the accident. However, in the Panel s view, that is simply one factor to be considered, and as discussed above, the Panel prefers the opinions of the other two doctors who thoroughly examined the worker, interviewed her extensively, and wrote thorough reports addressing the question in issue. [55] Thus, the Panel concludes that, on the balance of probabilities, the workplace injury caused the meniscal tear and Baker s cyst. [56] In any event, there is no dispute that the meniscal tear and Baker s cyst exist. The only differing opinions relate to whether they were pre-existing conditions, or were caused by the injury. In this regard, it should be noted, that in accordance with the thin skull doctrine, even if the meniscal tear existed prior to the accident and was degenerative in nature, if the worker were asymptomatic beforehand and the workplace accident significantly contributed to the worker developing symptoms or problems related to that condition, then the worker would nonetheless have entitlement to full benefits. However, as already noted, there is ample evidence before us confirming that the worker had no injuries, problems or symptoms relating to her left knee prior to her participation in the training exercises at work. [57] For the foregoing reasons, the Panel concludes that on the balance of probabilities, the worker has initial entitlement for the meniscal tear and Baker s cyst. (b) Is there permanent impairment regarding the worker s left knee? [58] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [59] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [60] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [61] The Board also supplied Policy Package #261 (Revision #9) regarding NEL Entitlement. OPM Document No , Determining the Degree of Permanent Impairment, provides a definition of permanent impairment as follows: Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss.

13 Page: 12 Decision No. 667/15 [62] In the Panel s view, based on the preponderance of the evidence, the meniscal tear and Baker s cyst constitute a physical or functional abnormality or loss. Even though the medical evidence, as noted in Dr. Malcolm s and Dr. Pysklywec s reports, shows that the worker has recovered to a significant extent (i.e., 80% to 90%, respectively), there is no evidence indicating that she has fully recovered. Thus, in our view, there is still some functional loss relating to her left knee. [63] As well, the worker testified at the hearing, which took place three and a half years after the workplace injury, that she still has some problems and symptoms regarding her left knee. For example, she stated that she can t bend her knee the same way she did prior to the accident; she feels a tugging feeling when she tries to bend it too far; she gets frequent twinges of pain in her knee; she compensates when she has to use both knees by relying on her right knee, as it is hard to put pressure on the left knee. She also testified that her left knee also still bothers her when she plays golf, whereas prior to the accident, she golfed, bowled and went to the gym without any problems or pain in her knee. [64] In addition, the worker testified that prior to the workplace injury she never experienced any difficulty when undergoing the rigorous training exercises. However, since the injury, given the limitations she described, she can no longer perform all of the training exercises at work in the same manner. As she testified, takedowns involve twisting and a great deal of force to take the person down to the ground, and must be performed repeatedly as part of the exercise. She also stated that she used to be more aggressive when performing takedowns, and would fight harder in the past than she can now due to her knee injury, as she can t go full out anymore. Further, she testified that the activities that are performed in the training exercises could be required at any time as part of her work duties, if necessary, albeit not often. [65] Finally, the legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). Even if the worker s range in motion is not notably affected by meniscal tear, which appears to be the case based on the evidence before us, we note that the AMA Guides refer to factors other than range in motion with respect to the rating of a knee impairment. Under Table 40, the rating for a torn meniscus for one knee is from zero to 10%. [66] For these reasons, the Panel concludes that the worker s meniscal tear and Baker s cyst constitute a permanent impairment, and that she is accordingly entitled to a NEL assessment. The Panel refers the matter back to the Board to determine the maximum medical recovery (MMR) date based on the medical evidence. (vii) Conclusions [67] The Panel concludes that the worker has initial entitlement for a meniscal tear and Baker s cyst, that she has a permanent impairment related to her left medial knee, and is, therefore, entitled to a NEL assessment for her permanent impairment.

14 Page: 13 Decision No. 667/15 DISPOSITION [68] The appeal is allowed as follows: 1. The worker has initial entitlement for the meniscal tear and Baker s cyst in her left knee. 2. The worker has a permanent impairment of her left medial knee, and is accordingly entitled to a NEL assessment, the MMR date for which is to be determined by the Board. [69] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: January 7, 2016 SIGNED: S. L. Ungar, B. Wheeler, M. Ferrari