WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 100/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 100/15 BEFORE: J. Frenschkowski : Vice-Chair B. Wheeler : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: January 15, 2015 at Hamilton Oral DATE OF DECISION: May 5, 2015 NEUTRAL CITATION: 2015 ONWSIAT 965 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 16, 2012 APPEARANCES: For the worker: For the employer: Interpreter: D. Covelli, Paralegal D. Gorelle, Lawyer N/A 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. 100/15 REASONS (i) Introduction [1] The worker appeals a decision of Appeals Resolution Officer ( ARO ) M. Ranalli, which concluded that the worker had entitlement to a right knee injury on an aggravation basis arising from an incident in December 2009, but that she did not have entitlement to a recurrence of this injury, which was claimed to have arisen on January 25, 2011, or to a permanent impairment assessment for the right knee. (ii) Issue [2] The issues under appeal are as follows: 1. Entitlement to a permanent impairment award for the right knee as arising from the December 2009 accident; and 2. Entitlement for a recurrence on January 25, 2011, of a right knee injury arising from the December 2009 accident. (iii) Background [3] The following are the basic facts. The Panel has relied on these facts in making its findings and arriving at its decision in this appeal. [4] The worker was 62 years old at the time of hearing. She was hired as a cleaner with the accident employer, a school board, in [5] The worker sustained a compensable right knee strain on March 9, 1998, after she had put a scrub pad under her right foot and used her right leg to clean scuff marks from the floor in the school in which she was working. An x-ray of the worker s right knee taken on March 10, 1998 revealed minor marginal osteophytes compatible with minor osteoarthritis. The worker returned to her job on March 16, The worker experienced further difficulties with her right knee in October 1998, and was granted entitlement for a recurrence and lost time from October 16 to 26, [6] A report from Dr. Offierski, an orthopedic surgeon, dated October 27, 1998 noted that the worker s right knee had been sore for about a year. Dr. Offierski wrote that [m]ost of the pain is over the medial aspect of the knee. Activities which require her to squat, turn or twist on the knee are very painful to her and aggravate the symptoms. The symptoms have been variable throughout the year and seem to be precipitated with strenuous activity. The x-rays show moderate medial compartment osteoarthritis of the right knee. [The worker] has a degenerate tear of the medical meniscus of the right knee. This has been symptomatic now for the last year and I expect will continue to be symptomatic. [7] Dr. Offierski proposed arthroscopic surgery and meniscectomy to treat the worker s conditions.

3 Page: 2 Decision No. 100/15 [8] An Employer s Report of Injury ( Form 7 ), dated December 16, 2009 reported that the worker had sustained an injury to her right knee on December 14, The employer wrote that the worker s right knee swelled up after using lower leg in a continual right to left motion and a continual front to back motion to remove the oil on the floor near the computer room entrance and that the worker was using green scrub under right foot to remove oil from shop floor leading into computer area. The Eligibility Adjudicator allowed the claim on a disablement basis and granted the worker entitlement to two days lost time. [9] The worker went to see Dr. Flores, an orthopedic surgeon, on December 28, In his report of that date, Dr. Flores wrote: [The worker] came in complaining of pain in the right knee. According to this patient, the pain has been present for a while, however on December 14 th, she was at work and using her right foot to do some of the work and had increasing pain. Associated with pain, there was swelling. The pain has continued. Most of the pain is in the medial aspect. The pain tends to be aggravated by twisting, turning of the knee, prolonged walking, going up and down the stairs and after prolonged sitting. After she sits for a period of time, the knee gets stiff. She denies any history of grinding. Rarely the knee will give out. She is awakened by the pain and first thing in the morning, the knee feels better. X-rays demonstrated the presence of moderate to advanced degenerative arthritis affecting the knee joints, especially the medial aspect. The joint space was narrow. There was sclerosis of the subchondral bone and marginal osteophytes. I explained to [the worker] that in my opinion the pain that she is experiencing is a result of osteoarthritis. There could be a component of meniscus tear. [10] Dr. Flores was of the opinion that arthroscopic examination would not improve the worker s symptoms and that she would ultimately require a knee replacement. [11] The worker was referred to another orthopedic surgeon, Dr. Ostrowski, for consultation regarding her right knee. Dr. Ostrowski saw the worker in October In his report dated October 6, 2010, Dr. Ostrowski reported that the worker had been experiencing progressive pain and stiffness in the right knee for at least a year and that these symptoms were quite severe and were limiting her activity. Dr. Ostrowski noted that x-rays revealed moderate osteoarthritis, maximal in the medial compartment with minimal joint space remaining, and wrote that she would ultimately require total knee replacement. He recommended that the worker obtain a custom medial unloader osteoarthritis knee brace and that she consider viscosupplementation injections. [12] The accident employer submitted a Re-open Claim Earnings ( Form WREO7E ), dated February 3, 2011, in which a recurrence of the worker s December 2009 injury was reported to have occurred on January 25, The worker submitted a Worker s Continuity report ( REO6 ), dated February 15, 2011, and Dr. Girard, the worker s family physician, submitted a health professional Continuity Report ( REO8 ) dated February 16, Dr. Girard offered a diagnosis of chronic strain and degenerative arthritis of the right knee. [13] An x-ray of the worker s right knee, performed on August 29, 2013, characterized the osteoarthritic changes as being severe.

4 Page: 3 Decision No. 100/15 (iv) Testimony of the worker [14] The worker started working as a cleaner for the accident employer on a casual basis in She became a permanent, part-time employee in 1988, and was working part-time at the time of her compensable injury in March She explained that she injured her right knee while trying to remove scuffs from the floor over a period of two hours. She had placed the scrubbing pad under her right foot and had been moving her right leg back and forth over the floor to remove the scuff marks. [15] The worker initially denied having any problems with her right knee before her compensable accident in March 1998, but then confirmed the information in Dr. Offierski s report that she had been having difficulties with the knee prior to the March 1998 incident. She believed that she had been treated with cortisone injections into both knees beginning in 1994 or The worker confirmed that she experienced problems with her right knee outside of work and that she had difficulties with activities such as: squatting, and twisting and turning her knee. She also confirmed that she had never undergone surgery to repair the torn meniscus in her right knee. [16] The worker believed that she began losing the occasional day from work due to her right knee problems starting sometime in the year 2000 and that, in addition to her 6 weeks of regular vacation over the summer, she would take an additional week to rest her right knee. She also began receiving assistance from her co-workers with the tasks that she found difficult for her right knee and would find an alternate way of doing her work: such as, sitting in a chair with wheels while scrubbing toilets and attaching a scrub pad to a floor hockey stick in order to remove scuffs from the floor. The worker indicated that her employer was aware of the difficulties she was having and that they attempted to provide her with modified tools for the job, e.g., a long-handled brush for scrubbing toilets and a handle for the scrub pad, but that these did not work as well as the tools she devised herself. [17] The worker confirmed that her right knee condition has been getting worse over time and that she began to develop problems with walking and stair-climbing. She testified that she was having difficulty with these activities at work and outside of work, as well. She attributed all of her ongoing problems to the March 1998 incident and stated that she had never had any problems with her knees in her 20-year career as a dental assistant prior to her employment with the accident employer. The worker did not want to undergo knee replacement until it was absolutely necessary, and she finally underwent this procedure in August (v) Law and policy [18] Since the worker claimed a recurrence of a prior comensable injury which occurred on December 14, 2009, 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. [19] 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 [20] We have considered Operational Policy Manual (OPM) Document Nos , Aggravation Basis and , Recurrences to be necessary in deciding the issues in this appeal.

5 Page: 4 Decision No. 100/15 [21] OPM Document No on the subject of Aggravation Basis applies in cases where a worker has a pre-accident impairment and suffers a minor work-related injury to the same body part. In such cases, entitlement is generally considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. [22] When determining whether a pre-accident impairment exists, decision-makers consider the following evidence: A previously identified and symptomatic medical condition/impairment, Medical precautions/restrictions and performing modified work prior to the accident, Receiving regular health care treatments prior to the accident, Lost time from work prior to the accident. [23] OPM Document also addresses the distinction between a new accident and a recurrence in cases of pre-existing impairment and entitlement in such cases: If the pre-accident impairment is due to a work-related injury/illness, further entitlement may be allowed as a recurrence. This would occur where it is difficult to identify a specific incident or action that has increased the worker s impairment. Otherwise, a claim that is allowed on an aggravation basis should have a clearly defined new accident (incident). Decision-makers must establish that the work-related injury/illness would have caused the additional impairment, despite the pre-accident impairment. When determining whether a worker has suffered a new accident or a recurrence of a prior accident, the decision-maker has to consider the following The nature of the subsequent occurrence Medical evidence/medical compatibility Evidence of continuity between the two injuries The time lapse between the two injuries [24] Prior to November 1, 2014, OPM Document No stipulated that workers are entitled to benefits for a recurrence of a work-related injury where there is clinical compatibility between the original injury and the current condition, or a combination of clinical compatibility and continuity. This policy goes on to provide further guidelines for evaluating the evidence of clinical compatibility and continuity: Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker s current clinical condition to that following the initial accident. The decision-maker considers whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition).

6 Page: 5 Decision No. 100/15 Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence. Continuity To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). [25] The final question in determining entitlement for a recurrence is whether there was a significant new accident. If there was a significant new accident, then the condition is not considered a recurrence of a prior workplace injury. The policy sets out the following equations as guidelines for adjudicators: Insignificant new accident + compatibility + continuity = recurrence An insignificant accident is one involving an ordinary or routine event, such as stooping to fasten a shoe or reaching for something on a shelf. If the accident is insignificant and clinical compatibility and continuity are established, the worker is entitled to benefits for a recurrence of the original injury. Significant new work-related accident = new claim A significant accident is one of some consequence or importance, such as a fall from a ladder. If there is a significant new work-related accident, a new claim is established. A new claim is also established if the worker s latest clinical problem or problems result entirely from a new accident. (vi) Submissions [26] It was the position of the worker s representative that the worker s underlying osteoarthritis in her right knee was aggravated by the December 2009 incident. He submitted that the medical records establish continuity of treatment between the December 2009 incident and the reported worsening on January 25, The worker s representative therefore requests entitlement to a recurrence for the January 25, 2011 incident. He further requests entitlement to a permanent impairment assessment, on the basis that the worker s condition did not returned to its pre-accident state thereafter. [27] The employer s representative took the position that the worker had been experiencing symptoms associated with osteoarthritis in her right knee for many years, both at and outside work, at the time of the December 2009 incident, emphasizing medical reports and parts of the worker s testimony in support of his submission. The employer representative did not dispute that the worker had sustained an aggravation of the underlying osteoarthritic condition of her knee in December 2009, when she put the scrub pad under her right foot and used her right leg to remove the scuffs on the floor, but did take the position that the compensable aggravation settled

7 Page: 6 Decision No. 100/15 quickly and that the worker s right knee returned to its pre-accident state, which was already marked by symptoms of osteoarthritis. (vii) Analysis (a) Entitlement to a permanent impairment for the right knee [28] We note at the outset, that there is a discrepancy between the accident date reported by the employer in the Form 7 December 14, 2009 and the accident date that appears in documentation from the Board December 11, There is no dispute that the worker had only one compensable accident and injury in December It would appear as though a typographical error may have occurred with respect to the accident date. Hereinafter, we will use the December 11, 2009 accident date identified by the Board. [29] The worker was granted entitlement to benefits for the December 11, 2009 incident on an aggravation basis by ARO Ranalli. The Panel agrees with the ARO s conclusion. [30] Dr. Offierski had diagnosed the worker with a pre-existing condition: moderate medial compartment osteoarthritis and a degenerative, medial meniscus tear of the right knee, in his October 27, 1998 report. He also reported that the worker had been experiencing symptoms in her right knee: pain upon twisting/turning and squatting on the knee, for a year prior to the examination. The worker s testimony confirmed this: she testified to having had on-going problems with her right knee prior to the date of this report and prior to her March 1998 compensable accident, and that there was a progression of the pain in and difficulties with her right knee in subsequent years to the point where she began to lose the occasional day/s from work due to right knee problems, starting around the year 2000, and would also take an additional week s time over the summer vacation in order to rest her knee. [31] Although there were no medical precautions or restrictions placed on the worker s activities, the worker testified that the accident employer provided her with tools to assist her in performing the duties which were difficult for her due to her right knee problems: such as bending and kneeling. For instance, she was given a long-handled toilet brush. The worker also made her own modifications to her duties, by performing some duties while sitting in a chair, by attaching the scrub pad to a floor hockey stick in order to clean scuff marks on the floor, and by asking her colleagues for assistance. [32] When we consider the fore-going in light of the indicia of a pre-existing impairment, as articulated in OPM Document No , namely: A previously identified and symptomatic medical condition/impairment, Medical precautions/restrictions and performing modified work prior to the accident, Receiving regular health care treatments prior to the accident, Lost time from work prior to the accident. [33] We conclude that the worker did have an impairment of her right knee prior to the incident that occurred in December This incident, which involved the worker putting the scrub pad under her right foot to remove scuff marks similar to the incident in March 1998 satisfies the characterization of a new accident, as it is a clearly defined new accident.

8 Page: 7 Decision No. 100/15 [34] As the worker had both a pre-existing impairment of her right knee, as well as a new accident on December 11, 2009, we reach the same conclusion as ARO Ranalli, namely that the December 11, 2009 incident resulted in an aggravation of her pre-existing right knee impairment. We now turn to the question whether the aggravation was temporary or permanent. [35] OPM Document No recognizes that, in some cases, workers may not return to the pre-accident state. In cases where the medical evidence confirms that the work-related injury permanently increased the worker s pre-accident impairment, a worker may be entitled to benefits for a permanent aggravation of the pre-accident impairment. [36] The worker was off work for only two days after the December 2009 incident. After she returned to work on December 17, 2009, and saw Dr. Flores on December 28, 2009, no further medical was submitted to file until the REO Form 8 was submitted in February [37] The REO Form 8 indicates that the worker had appointments with Dr. Girard on January 10, April 9, September 9, October 10, and November 25, There is no evidence that rehabilitative treatment, e.g., physiotherapy, chiropractic, etc., was required as a result of the December 14, 2009 incident. Dr. Ostrowski s report of October 10, 2010, in which he recommended the worker wear an unloader knee brace suggests that the worker experienced an increase in pain and symptoms in the fall of [38] As noted in the Tribunal discussion paper entitled Osteoarthritis, authored by Dr. Marvin Tile, a specialist in orthopedics, in November 2008, which was included in the case materials, the symptoms of osteoarthritis may become progressive and disabling without any intervening factors. When discussing the role of an acute injury in exacerbating symptoms, he writes that where the osteoarthritis is severe, any injury would play only a minor role in aggravating the symptoms, unless the injury itself were to be severe. A similar opinion is expressed in the report from Dr. Nessim, which was obtained by the employer s representative. [39] Dr. Nessim writes that the x-rays in the file show the gradual progression of the worker s osteoarthritis from moderate to severe over the course of about 15 years and is of the opinion that the accident mechanism [of December 2009] is too subtle... to have caused any problems in a previously healthy knee. This mechanism may have led to the discomfort because of the compromised state of her knee. However, in my opinion and my experience, any activity involving the use of the right knee would have produced pain and discomfort in the worker s knee given the advanced state of the degenerative process. [40] The medical documentation reporting on the worker s condition after December 2009 does not indicate that the worker was experiencing a significant increase in symptoms or any new symptoms as a result of this incident. [41] The medical evidence does not establish a connection between the December 2009 accident and the worker s on-going symptoms. Rather, based on the information contained in the discussion paper and in Dr. Nessim s report, we conclude that it is more likely that the worker s ongoing symptoms were the natural progression of her underlying osteoarthritis, given the minor nature of the incident, the fact that the worker returned to work after two days, and the fact that the degenerative changes were already moderate and had been a long-standing source of symptoms and difficulties for the worker. [42] We find that the December 11, 2009 incident did not give rise to any physical or functional impairment of the worker s right knee beyond what she had already been experiencing

9 Page: 8 Decision No. 100/15 for a number of years. We therefore conclude that the worker is not entitled to a permanent impairment for her right knee associated with this accident. (b) Entitlement to a recurrence on January 25, 2011 [43] The REO 8 Form submitted by Dr. Girard on February 16, 2011 does not identify a specific incident that gave rise an increase in the worker s symptoms or gave rise to new symptoms. Dr. Girard reported that the worker s symptoms do not go away. The worker s testimony confirms this information. [44] We have already found that the worker s pre-existing impairment due to OA is noncompensable. We have also found that the worker s compensable aggravation of December 2009 resolved without a permanent impairment. The worker s ongoing knee problems are related to her OA, which is non-compensable. As we have noted earlier, her ongoing symptoms were the natural progression of her underlying osteoarthritis, which is noncompensable. Accordingly, the worker s OA in January 25, 2011 is compatible with her noncompensable condition and any worsening the worker experienced in 2011 is due to the noncompensable condition and not a recurrence of the December 2009 aggravation. [45] As the worker had a pre-existing, non-compensable impairment which had been symptomatic in the past, there is no entitlement to a recurrence for the symptoms she experienced on January 25, 2011, which were compatible with the non-compensable impairment. [46] The worker s appeal is denied.

10 Page: 9 Decision No. 100/15 DISPOSITION [47] The appeal is denied. DATED: May 5, 2015 SIGNED: J. Frenschkowski, B. Wheeler, M. Ferrari