WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1016/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1016/15 BEFORE: S. Peckover: Vice-Chair HEARING: May 19, 2015 at Toronto Written DATE OF DECISION: June 16, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1323 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 12, 2014 APPEARANCES: For the worker: For the employer: Interpreter: S. Beaudoin, Lawyer Not participating Not Required 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. 1016/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated March 12, 2014, which concluded that he was not entitled to a Permanent Disability (PD) reassessment with respect to his right knee and bilateral ankle disabilities, and that entitlement was not allowed for a PD assessment for the left knee. (ii) Issues [2] The issues under appeal are as follows: 1. A PD reassessment for the right knee and bilateral ankles. 2. Entitlement to a PD assessment for the left knee. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1955, was working as a lineman with the accident employer. On July 23, 1981, he was at the top of a 30-foot temporary pole attempting to remove some wires from another pole, when the temporary pole fell. He fell 30 feet, fracturing multiple bones in both feet. He underwent surgery on the left foot, but the right foot was treated conservatively. He also underwent arthroscopic surgery on the right knee on May 23, 1988, for which entitlement was allowed as being compatible with the mechanism of injury. [5] The worker was granted a PD on December 21, 1982, which was increased several times, as indicated in the following table. Right Left Right Multiple Total foot/ankle foot/ankle Knee December 21, % 6% n/a 3% 17% October 14, % 6% 5% 3% 23% January 10, % 6% 5% 3% 29% [6] On January 1, 2013, Mr. Beaudoin wrote to the Board on behalf of the worker, requesting a PD reassessment for the right knee and bilateral feet, and seeking entitlement for the left knee. In a decision letter dated September 20, 2013, the Case Manager denied both requests. She stated that, based on an external physician s review of a 2012 medical report, it would be reasonable to expect some symptomatology in the left knee due to the worker s right knee and bilateral foot impairments. However, there were no objective findings to support permanent disability. A pension assessment for the left knee therefore was denied. With respect to the right knee and bilateral foot impairments, the current medical information did not demonstrate that they had deteriorated below the level of disability already recognized in his claim. [7] Mr. Beaudoin objected. At the Appeals Branch, in a decision dated March 12, 2014, the ARO found that there was no evidence of significant deterioration in the worker s bilateral foot/ankle and right knee conditions to warrant a PD reassessment. Further, while the worker had complained of pain in his left knee, the ARO placed greater weight on the

3 Page: 2 Decision No. 1016/15 November 14, 2012 assessment of the worker s left knee, which demonstrated range of motion within the normal range. The worker therefore did not have an assessable permanent disability in the left knee. [8] The worker appeals from this decision. (iv) Law and policy [9] Since the worker was injured in 1981, the pre-1985 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1985 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the "WSIA") also apply to the appeal. [10] 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: Package #41 Pension Quantum; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [11] I have considered these policies as necessary in deciding the issues in this appeal. Particularly relevant is the following excerpt from Operational Policy Manual (OPM) Document No , Determining the Degree of Disability, which states as follows: Re-assessment If a permanent disability worsens, the WSIB may reassess the worker s disability. Additional disability developing subsequently is determined by physical examinations which may be made from time to time. The pensions awards considered include both monthly awards and previously commuted lump sum awards. (v) Analysis (a) PD reassessment right knee [12] The medical information with respect to the right knee is as follows, at the time of the last pension assessment, and around the time of the request: 2000 Pension Dr. Sutherland Dr. Picard December 12, 2012 Pain anteriorly, medially, laterally burning Aggravated by climbing, squatting, kneeling. No locking. Sometimes feels swollen. Sometimes feels like it will give out, but he does not fall No obvious quadriceps atrophy; no mal-alignment of right knee. Can do full squat No crepitus in medial, lateral or retropatellar compartment. No instability in the a.p., medial or lateral direction More tenderness over the medial joint line than over the lateral joint line.

4 Page: 3 Decision No. 1016/ Pension Dr. Sutherland Dr. Picard December 12, 2012 No significant tenderness in either joint line. No leg length discrepancy. Full range of flexion and extension with good power of the quadriceps and hamstrings. No lack of extension or flexion. No positive patellar grinding test. Palpating undersurface of both os calcis causes pain. ROM Flexion 160 Extension normal Medial laxity normal Lateral laxity normal Anterior laxity moderate Posterior laxity normal [13] There are also a number of x-ray investigations on file. Their findings are summarized as follows: X-ray June 10, 2009 X-ray- June X-ray November 1, 2012 R knee in 2004 some spurring of the tibial spines and a moderate-sized quadriceps spur consistent with tendonitis. These findings are again noted. Also slight spurring in the patellofemoral compartment. R knee some very early arthritic change, with some mild spurring of the tibial apinea and early lipping osteophytosis around the patellar margins. Joint spaces well maintained; no bone lesion or malalignment. Examination on June 10, 2009 noted mild degenerative osteophyte formation along with quadriceps spurring. Similar findings noted on present examination. Quadriceps spur on right is 1.4 cm. Joint spaces remain normal. Mild degenerative osteophyte formation. No significant change has occurred. [14] The findings from the November 1, 2012 x-ray specifically state that there has been no significant change, in terms of the spurring, since the June 10, 2009 x-ray. The latter, in turn, seems to note that the spurring of the tibial spines previously seen in 2004 were again present. The slight spurring in the patellofemoral compartment is likely a new development, but given the mild nature of it, and the fact that it does not seem to have changed as of the November 1, 2012 x-ray, all in all, I see very little change in the worker s right knee from 2000 to Further, the range of motion findings are very similar. [15] I therefore conclude that the worker is not entitled to a PD reassessment for the right knee. (b) PD reassessment for the feet and ankles [16] The medical evidence with respect to the worker s feet and ankles is contained mainly in the 2000 PD Assessment, and in Dr. Paitich s November 14, 2012 report. I have compared the two reports, and, while the 2000 PD assessment contains much more detail as to the location of the worker s pain, the two reports provide similar findings, in terms of the worker s diagnosis. [17] For example, the 2000 PD assessment states that the worker has a deformity of the entre dorsum of the foot, with high arches on both sides. Dr. Paitich s 2012 report simply states that the worker has a cavus deformity, which ostensibly includes all of the above. Differences in the reports are as follows:

5 Page: 4 Decision No. 1016/15 Range of Motion Ankles Other Findings re Range of Motion Dr. Sutherland January 20, 2000 Full range of dorsiflexion and plantar flexion Dr. Paitich, November 14, 2012 ROM R L Normal Dorsiflexion Plantar Flexion Eversion Inversion Marked reduction of the subtalar joint range of movement. Virtually no movement through the mid foot. X-rays reveal mid foot osteoarthritis with a cavus deformity, evidence of subtalar osteoarthritis. [18] The above comparison indicates that the worker s range of motion in the ankles has decreased between 2000 and While plantar flexion and dorsiflexion were full in 2000, they are considerably reduced from normal in Further, the worker, who impressed Dr. Montgomery at the 2000 PD assessment as having a high pain threshold and being very motivated to return to as normal a life as possible, regardless of his pain, was not using orthotics or wearing special shoes or work boots in 2000; by 2012, he was using orthotics. This, along with the reduction in range of motion, indicates a deterioration in the worker s compensable condition. [19] The other relevant medical evidence is found in the x-rays reports. Comparing those from 2000 with those from 2012, I note the following: Ankles X-ray - bilateral feet, ankles January 10, 2000 Both ankle joints intact X-ray right foot August 27, 2012 Right foot Left foot Fracture involving the mid portion of calcaneus, extending from posterior talocalcaneal joint to plantar aspect, with 2 mm separation of fragments, and flattening of the plantar aspect of the calcaneus. Plantar bony bridging is present. Hypertrophic changes involve the contiguous dorsal surfaces of the talonavicular joint, with maintenance of the joint space itself 8 avulsed fragments along the lateral aspect of the calcaneus Similar oblique plantar fracture in the past, with plantar bony union Deformity of right calcaneus related to remote trauma, with spurring. Osteoarthritic change noted involving several tarsal bones. Intertarsal joints are poorly visualized; possible intertarsal fusion. Osteoarthritic changes involving the 1 st -5 th tarsometatarsal joints are also seen. MCP joints and interphalangeal joints are unremarkable.

6 Page: 5 Decision No. 1016/15 X-ray - bilateral feet, ankles January 10, 2000 X-ray right foot August 27, 2012 Both Feet and Calcanei Curvilinear calcification situated medially and dorsally to the calcaneus may well represent dystrophic calcification within tendons and ligaments Increasing prominence of the posterior calcanei. They appear deformed, suggesting healed fractures. Multiple medium sized spurs on the plantar aspect, up to 15mm in size In left foot spurs also present off the posterior talus [20] Thus, in addition to the difficulties seen in the worker s feet and ankles in 2000, the worker has developed osteoarthritis in the right foot, in the areas injured in the compensable accident. This was noted as early as 2004, in orthopaedic surgeon Dr. Simmonds report dated October 18, There is no information before me with respect to the worker s left foot, or his ankles, in However, the evidence before me with respect to the right foot is sufficient for me to find that the worker s compensable condition in the feet and ankles has deteriorated. He therefore has entitlement for a pension reassessment with respect to the feet and ankles. (c) Entitlement to a PD assessment for the left knee [21] There appears to be some confusion as to whether entitlement for the left knee has been allowed. The Hearing Ready letter states that the worker is seeking entitlement for the left knee, and for a PD assessment for the left knee. [22] I note that the Case Manager, in her decision letter dated September 20, 2013, stated as follows on this issue: Based on the results of the medical review I have determined it would be reasonable to expect some symptomatology in your left knee due to your right knee and bilateral foot impairments however [sic] there are no objective findings to support permanent disability. I am therefore denying entitlement to pension assessment of your left knee. [23] The ARO made similar findings, and denied entitlement for a PD assessment for the left knee on grounds that there was no assessable impairment. I therefore conclude that the worker has entitlement for the left knee, as a secondary condition arising out of his other injuries. However, a PD assessment has been denied. [24] There is very little information before me with respect to the worker s left knee. The following reporting is available: In the PD Assessment dated January 10, 2000, Dr. Sutherland noted as follows: He does state, however, that the left knee is now starting to bother him. An x-ray dated January 10, 2000 revealed that the bones were normal and the joint spaces were well maintained in both knees. No arthritic changes were noted.

7 Page: 6 Decision No. 1016/15 In a report dated 2006 (the month and day are illegible), Dr. Simmonds reported that the worker was complaining of pain in both knees, and that this related to retro-patellar arthritis. An x-ray of both knees dated June 10, 2009 revealed the following with respect to the left knee: On the left side, spurring of the tibial spine is also seen indicating early osteoarthritis as well as in the patellofemoral compartment. No other bony or joint abnormality is seen. A bilateral knee x-ray dated November 1, 2012 was compared with the worker s June 10, 2009 x-ray results. It states as follows: Examination 10/06/09 noted mild degenerative osteophyte formation along with quadriceps spurring right knee. On present examination similar findings are noted. The quadriceps spur on the right is 1.4 cm and there is also a 0.9 cm left quadriceps spur. Joint spaces remain normal. There is again mild degenerative osteophyte formation. Impression: Mild degenerative change with bilateral quadriceps spurring. In reviewing previous examination no significant change has occurred. Further evaluation could include ultrasound to assess adjacent tendons, ligaments, peripheral menisci and synovial spaces with special reference to quadriceps tendons. [Emphasis added] Dr. Paitich s report dated November 14, 2012 has some range of motion findings, dated December 12, 2012, appended to it. With respect to the left knee, he recorded that the worker s flexion was 165º. All other range of motion findings were normal. [25] The above reporting reveals that the worker has developed osteoarthritis in the left knee. The Board has accepted that the worker has entitlement for the left knee, as a secondary condition arising out of the workplace accident. I note that normal flexion in the knee is from 110 to 130º. Thus, the range of motion findings for the left knee are normal. However, the findings for the right knee are also normal, with flexion being 160º. Nevertheless, the worker has a PD for the right knee. The worker s left knee appears to be only slightly better than the right knee, and he has osteoarthritis in both. I therefore find that the worker is entitled to a PD assessment for the left knee.

8 Page: 7 Decision No. 1016/15 DISPOSITION [26] The appeal is allowed in part as follows: 1. The worker is not entitled to a PD reassessment for the right knee. 2. The worker is entitled to a PD reassessment for the bilateral feet and ankles. 3. The worker is entitled to a PD assessment for the left knee. [27] 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: June 16, 2015 SIGNED: S. Peckover