FD FD: DT:D DN: 359/93 STY: PANEL: Strachan; Robillard; Jago DDATE: ACT: KEYW: Subsequent incidents (outside work); Significant contribution

Transcription

1 FD FD: DT:D DN: 359/93 STY: PANEL: Strachan; Robillard; Jago DDATE: ACT: KEYW: Subsequent incidents (outside work); Significant contribution (of compensable accident to disability); Tear (meniscus); Tear (ligament). SUM: The worker suffered a non-compensable tear of his anterior cruciate ligament in In August 1987, he suffered a torn meniscus in a compensable accident. In September 1987, he underwent surgery to correct both conditions. He received benefits on an aggravation basis until January In September 1988, the worker was playing catch at home when his knee gave out, again rupturing the ligament and tearing the meniscus. He underwent surgery again to reconstruct the ligament and suture the meniscus. The worker appealed a decision of the Hearings Officer denying entitlement for the incident in September The original tear of the ligament in 1986 was not compensable. The tear of the meniscus in 1987 was compensable. The worker's activity in playing catch at home in September 1988 did not exert any unusual pressure on his knee. Considering the fact that the exact same tear of the meniscus occurred while performing a reasonably normal activity, the Panel found that the compensable accident was a significant contributing factor to the recurrence. Accordingly, the worker was entitled to benefits until his return to work in March The appeal was allowed. [8 pages] PDCON: TYPE: DIST: IDATE: HDATE: TCO: KEYPER: D. Poole XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 359/93 This appeal was heard in Windsor on June 1, 1993, by a Tribunal Panel consisting of: I.J. Strachan: Vice-Chair, W.D. Jago : Member representative of employers, M. Robillard : Member representative of workers. THE APPEAL PROCEEDINGS The worker appealed the April 6, 1992, decision of WCB Hearings Officer M. Prpic. That decision denied him entitlement to compensation benefits after September 4, 1988, for a left knee condition. The worker claimed the knee condition was causally related to a compensable accident on August 9, The worker appeared with his representative Detective Sergeant D. Poole. Although the employer received notice of the hearing, the employer did not participate in the hearing. THE EVIDENCE The Panel examined the Case Description prepared by the Tribunal Counsel Office containing the various WCB decisions, memoranda, correspondence, medical reports and policy statements. The Panel heard testimony from the worker and submissions from Detective Sergeant Poole. THE NATURE OF THE CASE The Panel must determine whether the worker's left knee disability of September 4, 1988, including the subsequent surgery of October 7, 1988, was causally related to a compensable injury on August 9, THE PANEL'S REASONS (i) Background The worker is a police officer. In 1986, he had sustained a ligament tear in his left knee while participating in a motorcross event. This was a non-compensable injury. On August 9, 1987, the worker attempted to restrain a prisoner and twisted his left knee. He was 24 years of age. The Doctor's First Report from Dr. McKay, dated August 10, 1987, offered the diagnosis "torn cruciate ligaments". The worker received temporary total disability benefits from August 9, 1987, to January 11, The worker underwent surgery on September 1, An earlier arthroscopic examination had indicated a tear of the worker's medial

3 2 meniscus. The worker underwent a ligament reconstruction and the surgeons also sutured his medial meniscus. Approximately one year later while playing catch with a football, his left knee gave out. Arthroscopic examination indicated a rupture of the ligament reconstruction and a re-tearing of his medial meniscus. In October 1988, he underwent a second ligament reconstruction and meniscal suturing. (ii) WCB adjudication The Decision Review Specialist allowed the worker's first claim ("the 1987 claim") on an aggravation basis for the acute episode only following the August 9, 1987, accident. With respect to the second claim ("the 1988 claim"), the Decision Review Specialist concluded that when the worker returned to regular duties on January 11, 1988, his knee had returned to its pre-accident state. The specialist found that any disability after September 18, 1988, was related to a non-compensable incident, namely the football activity. The Hearings Officer accepted the opinions of the Board's medical advisers and concluded that a causal relationship between the worker's disability in September 1988, including the October 7, 1988, surgery, and his accident of August 9, 1987, had not been established. Dr. McIntyre, a Board consultant, concluded:... we do not have any indication that the subsequent surgeries of September and October 1988 were as a result of breakdown of the meniscus. It appears much more likely to me that they are the result of the sports injury of September (iii) Worker's submissions Detective Sergeant Poole submitted that the medical evidence supported a conclusion that the worker had a pre-existing torn anterior cruciate ligament as a result of a motorcross accident in However, the July 20, 1987, report of orthopaedic surgeon Dr. P.J. Fowler, established that the worker had a "normal menisci" at the time of the arthroscopic examination in September He submitted that the accident on August 9, 1987, when the officer was wrestling with an intoxicated prisoner, caused the torn meniscus. The representative noted that the Board had allowed benefits for the torn meniscus on an aggravation basis, including the costs of the 1987 surgery. In his submission, the motion involved in playing catch with a football was not an usual motion or activity. The surgery which was required in 1988 was essentially a duplication of the 1987 surgery in which the meniscus was re-sutured and the ACL reconstructed. In these circumstances, he submitted that the work-related injury from August 1987 (i.e. the torn meniscus) was once again a problem in September 1988 and this was clearly related to the worker's employment. He submitted that the January 10, 1990, report of Dr. Fowler supported an employment relationship. The penultimate paragraph of that report reads:

4 3 In summary, we have a situation where the anterior cruciate was torn while not being at work in In 1987 while at work he tore his medial meniscus and since it was repairable the indication was there to suture it but reconstruct his ligament. Unfortunately this failed and had to be repeated. The compensable injury in 1987 however is the one that prompted the first major surgery. The second ligament reconstruction and meniscal suturing was done because the first one failed. The worker's representative submitted that, at the very least, the medical evidence for and against the work relationship was approximately equaland in those circumstances, the worker was entitled to the benefit of doubt under the legislation. While the medical evidence may not support a relationship between the worker's ligament problem and his disability, it was clear that the damage to the meniscus in September 1988 was exactly the same as the damage resulting from the compensable accident in August (iv) Conclusions The worker's knee disability during the period in question consists of two components. Firstly, a damaged anterior cruciate ligament ("ACL") sustained in a motorcross accident in the spring of The ACL was severed and the worker underwent arthroscopic surgery in September 1986 to debrid a portion of the stump. The July 20, 1987, report of orthopaedic surgeon Dr. P.J. Fowler states that the worker had a "normal menisci" at the time of the arthroscopic surgery. The worker had another incident in May of 1987 while playing baseball. He testified he slid into a base and experienced pain in his knee. However, the pain subsided and he resumed playing baseball the following weekend. The July 20, 1987, report of Dr. Fowler indicates that the worker had decided to go ahead with an ACL reconstruction prior to the August 9, 1987, incident. The second component of the worker's disability during the period under appeal is a torn meniscus. The evidence before the Panel establishes, on a balance of probabilities, that the meniscus was torn on August 9, On that date the worker was attempting to restrain an intoxicated prisoner and, while wrestling with the prisoner, twisted his left knee. He testified that he fell to the floor because of the knee pain and a second officer was forced to restrain the prisoner. The worker went home and consulted his family physician, Dr. McKay, on August 10, Dr. McKay's initial diagnosis was "torn cruciate ligaments". The September 1, 1987, report of Dr. Fowler on the operation gave post-operative diagnosis of "chronic anterior cruciate ligament insufficiency, left knee. Torn medial meniscus left knee". The worker received temporary total disability benefits from August 9, 1987, to January 11, 1988, on an aggravation basis. The worker testified that he performed surveillance duty for approximately two months after his return to work in January He then performed his normal work. While playing catch with some friends on September 4, 1988, the worker re-injured his left knee.

5 4 The report of the operation on October 7, 1988, gave a post-operative diagnosis of "torn anterior cruciate ligament graft including rupture of the ligament augmentation device, torn peripheral attachment medial meniscus". The initial repair to the meniscus in September 1987 involved four sutures. The repair on October 7, 1988 involved three sutures in precisely the same location as the initial repair. Dr. Fowler described the second surgery as essentially re-doing "the whole deal". The worker did not return to work until March The Panel must determine whether he is entitled to compensation benefits for the period between September 4, 1988, and March (a) Medical opinions The Hearings Officer relied upon the opinion of Board consultants Dr. Packham and Dr. McIntyre. The November 17, 1988, memo from Dr. Packham read: His torn meniscus on 9 Aug was entirely due to his missing anterior cruciate ligament - it is a very frequent result if the ligament is not repaired. Also on Sept. 4/88 he was better than his pre-accident state (of Aug. 1987) and hurt his leg when playing ball - not at work. This injury put him back to his pre-accident state (or even the accident condition). The Hearings Officer, in Memo #47, asked for a further opinion from Dr. McIntyre. Memo #47 reads in part: In memo #32, Dr. Packham offers the following comment "The only part of the 1987 injury that is compensable is the meniscal tear. This had healed sufficiently by January 1988 to allow a return to regular work he was back at pre-accident level (in fact better as the cruciate ligament was now present)." The question that I have is whether or not, given the findings at the time of surgery in September 1988, Dr. Packham's comments are considered to be medically correct. May I please have your comments on this. On page 2 of the operative report of October 7, 1988, approximately half way down the page, Dr. Tew states: "However we felt that we should insert sutures to be sure of complete healing. We inserted three 2-0 PDS sutures through the medial meniscus." I am not certain that these comments clearly establish that the first meniscus surgery had failed but rather it appears that this action was done to ensure complete healing. I would appreciate your medical comments on this aspect as well.

6 5 Dr. McIntyre responded: On August 9th, 1987, this 29 year old police officer suffered a twisting injury of the left knee. He was seen in orthopaedic consultation on August 17th, 1987 by Dr. Fowler, who felt that he had suffered a meniscal tear. He was admitted to hospital on August 31st, 1987 and in the final discharge summary it indicates that he had suffered a knee injury two years earlier and had had arthroscopy in September, 1986, which revealed a left anterior cruciate ligament insufficiency. This clearly pre-dated the work injury under this claim and at operation under this claim, he had a left medial meniscal repair and anterior cruciate reconstruction with a semitendinosus tendon. It would appear quite clear that he may have suffered the meniscal injury at the time of the work accident under this claim, but the anterior cruciate insufficiency was obviously present before this incident. With reference to Memo #47, Page 2, I would agree that Dr. Packham's comments under Memo #22 would indicate that the left knee was more stable than it was before the August 9th, 1987 accident. He evidently made a sufficient recovery to the non-compensable anterior cruciate repair and the compensable meniscal surgery to return to his regular job in January, In September, 1988 he suffered a sports injury to his left knee, which unfortunately resulted in a torn anterior cruciate ligament graft, including rupture of the ligament augmentation device and torn peripheral attachments of the medial meniscus. This injury was treated by further anterior cruciate reconstruction and stabilization of the medial meniscus. We do not have any indication that the subsequent surgeries of September and October, 1988 were as a result of breakdown of the meniscus. It appears much more likely to me that they are the result of the sports injury of September, A different interpretation was supplied by Dr. P.J. Fowler in a report dated January 10, That report reads in part:... As far as his problem with the Compensation Board is concerned it certainly is not a cut and dried situation. A complete tear of the medial meniscus in a stable knee in someone as young as [the worker] is extremely unusual. Therefore it is most likely that because of the pre-existing condition he tore medial meniscus. The point is however that the medial meniscus was intact and documented to be so. Therefore he has the added

7 6 injury of a medial meniscus tear on top of the pre-existing anterior cruciate insufficiency. If he had not been in the altercation with this chap he may never have come to an anterior cruciate reconstruction. This is something we decide because of functional disability not the fact that there is instability documented at arthroscopy. It is often difficult to get a medial meniscus to totally heal so we do not know for sure whether we got it to heal between the two most recent surgical procedures. In summary, we have a situation where the anterior cruciate was torn while not being at work in In 1987 while at work he tore his medial meniscus and since it was reparable the indication was there to suture it but reconstruct his ligament. Unfortunately this failed and had to be repeated. The compensable injury in 1987 however is the one that prompted the first major surgery. The second ligament reconstruction and meniscal suturing was done because the first one failed. (b) Causation As stated earlier, the worker's knee disability has two components. Firstly, the severed ACL, which was sustained in 1986, left the worker's knee without the normal amount of support. Secondly, the worker suffered a torn meniscus in a work-related incident while wrestling with a prisoner. The resulting surgery involved a non-compensable component (i.e. the ACL reconstruction) and a compensable component (i.e. suturing the torn meniscus). The re-injury in September 1988 recreated both the non-compensable injury (torn ACL) and the compensable injury (torn meniscus). The tear in the meniscus occurred at precisely the place where the compensable tear occurred and required precisely the same corrective surgery. While technically the injury could be classified as a "sports injury", the activity did not involve any game or competition; the worker was merely playing catch with a friend. He testified that they did not exert any unusual pressure or run to catch the ball. He testified that he was wearing his knee brace as the doctors had instructed and merely turned to catch the ball when his knee gave out. The injury resulted in exactly the same corrective surgery as was performed in September The basic test which the Appeals Tribunal has adopted for entitlement to compensation benefits is whether the employment was a "significant contributing factor" to the disability. Where a significant pre-existing condition contributed to the disability or recovery from the disability, the test contemplates some form of relief to the employer through the Second Injury and Enhancement Fund ("SIEF"). The test does not contemplate an apportionment per se, although, as the worker's representative pointed out, this would be a proper case for an apportionment taking into account the compensable and non-compensable elements of the disability.

8 7 The Panel is satisfied, on a balance of probabilities, that the September 1988 activity which resulted in the torn meniscus and ACL was not unduly strenuous or onerous. We found the worker to be a credible witness and accept his description of the activity. Since the tear in the worker's meniscus was in precisely the same location and required precisely the same surgical correction (albeit with the insertion of three stitches rather than four), we find that his employment was a significant contributing factor to the tear of the meniscus. The evidence indicates, on a balance of probabilities, that the worker had an intact meniscus prior to the altercation with the prisoner on August 9, We accept that the initial tear in the meniscus resulted from this altercation and was compensable. Where the exact same tear reoccurs while performing a reasonably normal activity, we cannot exclude the initial employment incident (i.e. the altercation with the prisoner) as a "significant contributing factor" to the recurrence. We find that the worker's employment was a significant contributing factor to the disability - i.e. the re-torn meniscus. It follows, in our opinion, that the test adopted by the Tribunal means the worker is entitled to temporary total disability benefits until his return to work in March THE DECISION The appeal is allowed. DATED at Toronto, this 25th day of June, SIGNED: I.J. Strachan, W.D. Jago, M. Robillard.