SUMMARY DECISION NO. 1194/97. Tear (meniscus); Tear (ligament).

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1 SUMMARY DECISION NO. 1194/97 Tear (meniscus); Tear (ligament). The worker twisted his knee in 1991 and suffered a torn meniscus, for which he underwent arthroscopy. The worker appealed a decision of the Appeals Officer denying entitlement for a torn anterior cruciate ligament. Medical reports at the time of the arthroscopy stated that the anterior cruciate ligament was intact at that time. The appeal was dismissed. [7 pages] PANEL: Libman; Higson; Robb DATE: 06/11/97

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 1194/97 [1] This appeal was considered by written submissions on October 22, 1997, by a Tribunal Panel consisting of : P.K. Libman : Vice-Chair, C.J. Robb : Member representative of employers, R. Higson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Workers Compensation Board Appeals Officer B.J. Martlin, dated October 1, The decision denied the worker entitlement to an anterior cruciate ligament tear in the claim. [3] The worker was represented by Mr. Chris Topple of Advocate. The accident employer was not represented. A notation in the Case Description indicated that the company was closed. THE EVIDENCE [4] The Panel had before it the Case Description material prepared by the Tribunal Counsel Office. This was marked as Exhibit #1. In addition the Panel had Addendum #1 prepared by the Tribunal Counsel Office which was marked as Exhibit #2. THE ISSUES [5] The Appeals Officer has set out the following as the history of the issues under appeal: On August 6, 1991, this then 24 year old glass installer, struck his left knee on the bumper of the truck he was working on. An x-ray done at the time of the accident showed that there was no abnormality with the left knee. The Doctor's First Report provided a diagnosis of lock knee and torn meniscus. Entitlement was accepted and the worker returned to work at regular duties on September 23, Subsequently, the worker was required to lose time from work because of further left knee problems. Ultimately, a permanent impairment as the result of a tear of the worker's left medial meniscus was accepted, and a 12 per cent non-economic loss (NEL) award was established. The medical record of injury, established the worker had also sustained a tear of the anterior cruciate ligament of the left knee. The worker has claimed entitlement to this, and the issue was reviewed by the claims adjudicator. On the basis of the medical opinion obtained from the Board medical advisors, the claims adjudicator determined that the worker had no entitlement for an anterior cruciate ligament tear. He was so advised in the decision letter of July 13, The worker objected to this decision, and the issue was referred to the Decision Review Branch. In their review, the decision review specialist noted that the medical record did not support a causal relationship between the diagnosed condition and the worker's accident history of August 6, The decision review specialist also obtained a senior Board medical consultant's opinion. She

3 Page: 2 advised that the medical record does not support an anterior cruciate ligament injury resulting from the accident of August 6, The decision review specialist accordingly denied entitlement to an anterior cruciate ligament tear. The worker has objected to this decision and the issue is now before the Appeals Branch for consideration. [6] The Appeals Officer, without holding a hearing, issued a written decision dated October 1, 1996, dismissing the worker's appeal. [7] The worker appeals the Appeals Officer's decision to this Tribunal. The worker has agreed to have the appeal determined by written submission. THE PANEL S REASONS (i) The Appeals Officer s decision [8] The Appeals Officer has given the following under the heading Assessment of Evidence and Submissions: In his September 24, 1996 submission, the worker's representative acknowledges that the Board accepted the above-noted December 5, 1991 injury as a recurrence of the worker's August 6, 1991 accident. It is noted from the claims file that on this date the worker, while in the course of his employment, slipped on some ice and twisted his left knee. The representative further submits that the Regional Evaluation Centre report dated August 31, 1992 indicated that the worker had a weakness in the anterior cruciate ligament. On November 9, 1992, Dr. Semic, found a complete tear of the anterior cruciate ligament with an old impact injuries in the knee, on the basis of an MRI scan report. Dr. Bull documented several clinical signs that relate to the anterior cruciate ligament tear in the report of December 28, The worker's representative also notes that the worker denies any subsequent incidents including sporting activities in July 1992, which might have caused the anterior cruciate tear. This submission is made in reference to Dr. Sennik's reference in his report of July 28, 1992 about the worker's playing baseball in July Finally, the worker's representative noted that the diagnosis of torn anterior cruciate ligament is compatible with the accident history of striking the knee on a bumper on August 6, I have carefully reviewed the details of this claim including the medical records. I note that Dr. Sennik's arthroscopy of August 16, 1991 specifically showed that the worker's anterior cruciate ligament in the affected knee was intact, however, he did find that the meniscus was completely torn. Dr. Sennik performed another arthroscopy following the December 5, 1991 incident on December 19, There was found no ligament laxity apparent in this investigation. The Board's medical advisors have had several opportunities to review the medical record. On May 31, 1994, the unit medical advisor in memo 95 noted that the December 1991 arthroscopy by Dr. Sennik confirmed that there was no ligament laxity. The first reference to the anterior cruciate ligament tear is in the Regional Evaluation Centre report of August 1992, one year after the initial accident. The tear, however, was not confirmed until the MRI of November It is further noted that following the initial accident, the worker returned to work. He offered the opinion that the compensable injury of August 1991, a direct blow to the knee, would not result in the knee becoming unstable. Consequently, the possibility that the worker tore the anterior cruciate ligament as a result of the knee collapsing due to the compensable meniscus injury, is not medically reasonable. Accordingly, the unit medical advisor does not believe that the anterior cruciate ligament injury was compatible with either the incidents of August 1991 or December I also note the

4 Page: 3 (ii) senior medical consultant consulted by the decision review specialist found that the anterior cruciate ligament injury was not compatible with the medical record from August 1991 to June In assessing this evidence, I find the medical record does not show any evidence of an anterior cruciate ligament injury in the surgical procedures of August and December I further note that the accident history of August 1991 is not compatible with the development of any instability in the knee. There is no medical evidence fir the anterior cruciate ligament tear until June I am therefore unable to conclude that there is a causal relationship between the worker's anterior cruciate ligament tear and the work incidents of August 6, 1991 or December 5, CONCLUSION There is no entitlement to an anterior cruciate ligament tear in this claim. The objection is denied." Submissions of the worker s representative [9] In his letter dated August 27, 1997, Mr. Topple makes the following submissions: (iii) I would like to make the following submissions pertaining to this claim. I believe that it is medically reasonable that given the nature of the accident history and the proximity of the meniscus and ACL of the knee, that both were damaged in the accident. In addition, the evidence in the file would indicate this conclusion. as per the REC report, and the reports of Dr. Bull and Sennik. There clearly was a weakness reported in the ACL, would could clearly have led to a tear, all a result of the accident. The permanent impairment given for the meniscus is indicative of the severity of the knee injury, and would point to being the cause of the ACL weakness, and subsequent tear. I believe that by combining the nature of the accident, the nature of the knee, and the above mentioned medical findings, that the ACL is compensable in this case. If, however, thee is any doubt, I believe that the overpayment for the ACL can be eliminated on humanitarian grounds, but the evidence points to a consistent compensability. Thank you. The Panel s findings [10] The Panel has carefully considered the material filed and the submissions of the worker's representative. [11] The Panel finds that the considerations by the Board's Medical Advisers are consistent on the determination of no entitlement. These considerations are found in the following references: 1. The opinion of Dr. Germansky dated May 31, 1994, as follows: There was no ligament laxity noted in the Dec/91 arthroscopy. No evidence at that time for anterior cruciate injury. First mention of any problem in this area was at time of REC assessment of Aug/92. A tear of anterior cruciate was confirmed subsequently by MRI scan, in Nov/92. Dr. Sennik in his June 29 /92 report indicated he felt worker should return to work in near future and had no recommendation re TX. In his July 28 /92 report Dr. Sennik felt worker was fairly healthy and related a fairly active lifestyle i.e. playing baseball and playing with his dog from whom he received another injury re his knee. The Dr, felt worker should get back to work. MMR appears to have been June 29/92. The anterior cruciate was not injured under this claim and there was no evidence of such an injury at Dec/91 arthroscopy. This ligament must have been injured subsequently. The partial menisectomy which was compensable should not have resulted in any instability in the knee or be the cause of further trauma. The ACL injury would not appear in order under this claim nor would its TX.

5 Page: 4 His current knee problems related to the ACL deficiency and not to sequelae of his partial menisectomy. He would not appear to have any P.I. re the left knee at this time although one is possible in the future if he develops advanced degenerative changes in relation to the partial menisectomy. Re the back would need continuity to assess as per M The memo of Dr. Germansky dated June 6, 1994, which reads as follows: There is no question that the instability of the knee in 1993 was due to his anterior cruciate problem as deficiency of this ligament does cause knee to be unstable whereas meniscal injury does not have this effect. Any falls incurred after development of the ACL tear would be the result of this noncompensable injury. 3. The memo of Dr, Painvin dated June 13, 1994, which provides as follows: Now 27 year old, almost 3 years post DOA: struck medial left knee on bumper. RECOMMENDATIONS: The tear of the ACL of the left knee is not compatible for the following reasons: - on 16Aug91, Dr. V. Sennik reported an intact ACL as per arthroscopy - on 19Dec91, Dr. V. Sennik reported that the knee was stable, as per 2nd arthroscopy - on 28Jul92, Dr. V.B. Sennik reported non compensable knee injury while playing baseball - (no instability reported by physiotherapy: 29Apr92 to 23Jun92) - suspicion of some laxity on 31Aug92 (Dr A.M. Wiley; MHCA) Therefore the complete tear as per MRI dated 9Nov92, 15 months post DOA is not compatible and confirm prior medical opinion 4. The memo of Dr. Germansky dated January 17, 1995, which reads as follows: Dr. Bull's Sept. 4/94 letter states that the anterior cruciate ligament tear could have been missed at arthroscopy. Yet this Dr. was not present at time of initial arthroscopy at which time only medial meniscal tear was described and TX. In fact the operating surgeon in his operative report dated Dec. 19/91 clearly stated that the "anterior cruciate ligament was normal". It is not clear how someone who was not present could refute this statement, several years later. This recent report would not alter the prior medical opinions re the ACL tear and the need for brace. 5. The memo of Dr. A, Malayil, medical consultant dated September 5, 1995, which reads as follows: On August 6th, 1991 this now twenty-eight year old worker suffered an injury to his left knee when he struck it on a bumper of a car. A torn medial meniscus was diagnosed and worker had arthroscopic meniscectomy on August 16th, The O.R. report at that time indicated that the lateral compartment and anterior cruciate ligament were intact. The only finding was the tear of the medical meniscus. It is noted that worker went back to his regular duties on September 23rd, 1991 and worked until December 5th, 1991 when he suffered a further injury to his left knee. Apparently he slipped on ice and twisted his knee. It is noted that the second injury has been accepted under this claim. Worker was seen by Dr. Sennik, the treating orthopaedic surgeon again and he recommended a further arthroscopy which was carried out on December 19th, The report of the second arthroscopic surgery also indicated that the anterior cruciate ligament was intact. Worker received physiotherapy following the surgery of December 19th, 1991 but he continued to complain of pain in the knee.

6 Page: 5 On July 20th, 1992 Dr. Sennik saw the worker and reported that worker was quite capable of getting back to work but the worker did not agree with this. This report also suggested that there were a couple of non-compensable injuries to the left knee a few weeks prior to his assessment but he did not report any new findings at that time. Worker had an assessment at the Regional Evaluation Centre on August 31st, 1992 and at that time they reported some laxity of the anterior cruciate ligament. Their diagnosis was traumatic arthritis of the knee and they recommended MRI study of the menisci. An MRI scan was done on November 9th, 1992 and it showed evidence of complete tear of the anterior cruciate ligament. Information on file indicates that worker had two compensable injuries to the left knee (both covered under this claim) and both times he injured the medial meniscus and had to undergo arthroscopic partial meniscectomy. The O.R. Report both times indicated that the anterior cruciate ligament was normal. Therefore it would not appear that the anterior cruciate ligament tear resulted from the compensable injuries of August 6th, 1991 and December 5th, As worker had partial meniscectomies after the compensable injuries, it is felt that a permanent impairment is likely for the meniscus injury. [12] The Panel finds that there are no contrary medical opinions to those of the Board's medical consultants and based on the evidence presently available the appeal of the worker is dismissed. [13] The Panel notes the reference to an overpayment in the submissions of the worker's representative. The Panel also notes that there is no reference to any such overpayment in the decision of the Appeals Officer under consideration nor any indication that there has been a final determination of any such issue before the Board. [14] In the decision of Mrs. H.R. Flowers Senior Claims Adjudicator dated July 13, 1994, the Panel notes the reference to an overpayment calculated to be $22, The Panel also notes that some of the factors that have lead to that calculation, eg, there being no permanent impairment award have changed since that date together with the worker subsequently being granted entitlement for FEL and NEL awards. [15] The Panel notes no appeal of that decision at the Board or re-determination of any overpayment based on the up-dated information in the worker's file and his subsequent findings of entitlement. [16] Pursuant to section 86 of the Act the Panel has no jurisdiction to deal with the overpayment and has therefore made no determination on any issue of an overpayment until the matter is properly before the Tribunal. THE DECISION [17] The appeal of the worker is dismissed. DATED: November 6, 1997 SIGNED: P.K. Libman, C.J. Robb, R. Higson

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