WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1640/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1640/16 BEFORE: K. Jepson : Vice-Chair M. Lipton : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: June 23, 2016 at Toronto Oral DATE OF DECISION: October 13, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2774 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 24, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Self-Represented Not participating 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. 1640/16 REASONS (i) Background [1] The worker was employed by a hospital as a clinical assistant. On November 4, 2009, he suffered a right knee injury when he bent over to pick up a tray. The injury was diagnosed as a right knee strain. Later, a diagnosis of hamstring tendonitis was added. [2] It is not disputed in this case that the worker s November 4, 2009 injury occurred against the backdrop of a significant pre-existing right knee condition. That condition required two surgical interventions: arthroscopic surgery in 2005 and a more invasive osteotomy in [3] Following the November 2009 compensable injury the worker underwent physiotherapy but no further surgery. He returned to work at modified duties in August 2010 and then, after approximately four to six weeks of modified work, returned to his regular duties. [4] The Workplace Safety and Insurance Board (WSIB or the Board) paid loss of earnings (LOE) benefits but determined that as of August 18, 2010 the worker s right knee had recovered to its pre-accident state. As a result the Board found that the worker had no further entitlement after that date. [5] The worker continued to work until he retired in October 2015 when he turned 65. [6] The worker now appeals the Board s determination that he recovered from the November 4, 2009 accident by August 18, He seeks entitlement after that date, and also seeks a determination that he suffered a permanent impairment as a result of that accident. (ii) Issues [7] The issues to be determined in this appeal are: 1. whether the worker has entitlement beyond August 18, 2010 for his right knee injury of November 4, 2009; and 2. whether the worker suffered a permanent impairment as a result of the November 4, 2009 injury. (iii) Submissions [8] The worker did not dispute that he had a significant pre-existing condition, or that the condition was symptomatic prior to November Indeed, he testified that as of October 2009 he only maintained his regular work by regularly using anti-inflammatories, ice and by simply toughing it out. He argued, however, that his November 2009 injury was a distinct injury from the osteoarthritis, causing a different kind of pain pain behind the knee. He argued that the Board erred in drawing any link between this new, distinct November 2009 injury and the ongoing degenerative osteoarthritis in his knee. (iv) Law and policy [9] Since the worker s injury occurred November 4, 2009, the worker s entitlement to benefits is governed by the Workplace Safety and Insurance Act, 1997 (the WSIA). All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

3 Page: 2 Decision No. 1640/16 [10] In this case we must determine whether the worker s November 4, 2009 injury continued to cause any impairment beyond August 18, 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 [11] Sections 46 and 47 of the WSIA provide that if a worker s injury results in a permanent impairment, the worker is entitled to a non-economic loss (NEL) benefit. The Board must determine the degree of permanent impairment, expressed as a percentage of total permanent impairment. [12] Pursuant to section 2 of the WSIA, impairment is defined as a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. The same section defines permanent impairment as an impairment that continues to exist after the worker reaches maximum medical recovery. (v) (a) Analysis Pre-accident right knee condition [13] The worker has a history of right knee degeneration and degenerative osteoarthritis. In 2005, the worker underwent arthroscopic surgery on his right knee. Post-operatively he was diagnosed with Grade 4 medial compartment osteoarthritis, Grade 2 patellofemoral osteoarthritis, and degenerative fraying of the medial meniscus. With physiotherapy the worker was able to return to work, but by 2007 the worker s right knee was deteriorating further. In a report dated January 24, 2007, the worker s surgeon, Dr. M. McKee, noted that the worker continued to have significant right knee difficulties and that he had tricompartmental osteoarthritis. Dr. McKee indicated that the arthroscopic surgery had helped but now symptoms had returned. He recommended an osteotomy. As a result the worker had surgery again on July 22, 2008, this time a right knee closed wedge high tibial osteotomy (HTO). The HTO is a procedure to reshape bone in this case the head of the worker s tibia in order to relieve symptoms from the osteoarthritis in the knee. The worker s surgery included the insertion of a blade plate and screws at the osteotomy site. Post-surgical rehabilitation included a leg cast and crutches, as well as physiotherapy. Following post-surgical rehabilitation, the worker again returned to work in February Dr. McKee continued to follow the worker. Dr. McKee s report of September 3, 2009, roughly one month prior to the workplace accident at issue, provides the following picture of the worker s condition at that time: He has OA of his right knee. He has a varus knee and he had a right knee HTO done. He is doing quite well. He is happy with the surgery. He still has some arthritic-related pain. However, overall, we feel he is doing well. He has had x-rays showing that the ostium has healed nicely. At this point, we talked to him about controlling his weight and also in the future, at some point, he will likely have a total knee done. We will see him back in our clinic as needed. [14] The worker testified that as of February 2009 he was back to work at his usual job. This entailed three 12-hour shifts a week. He continued to have right knee pain. As noted above, the worker testified that as of October 2009, just prior to the accident at issue, he managed his condition by using Naproxyn, ice, and simply toughing it out.

4 Page: 3 Decision No. 1640/16 (b) Medical evidence post-accident [15] The worker described the November 4, 2009 injury in his testimony. He bent down to grab a tray and felt sudden pain as he was straightening up. He could not continue to straighten up. He was assisted to a chair. The worker was initially treated at the emergency department of the hospital where he works. The Emergency Report from November 4, 2009 indicates that the worker hurt his knee bending over and that there was no fall, no snap or pull reported. The report records no bony tenderness or swelling. Notably, the Emergency Report indicates the presenting problem in the box heading MSK [musculoskeletal] extremity pain referencing simply the right knee. In other words, the presenting problem was right knee musculoskeletal pain. [16] The initial Health Professional's Report (Form 8) was completed by Dr. D. Chisholm, who indicated the injury as right knee and diagnosed simply strain. The worker s family doctor, Dr. R. Beharry, saw the worker on November 20, 2009 and similarly diagnosed an acute right knee strain. [17] The worker was referred to Dr. R. Gandhi, orthopaedic surgeon. Dr. Gandhi reviewed the worker s right knee surgical history and the November 4, 2009 accident. He indicated that the worker was complaining of posterolateral pain in and around the hamstring region. Dr. Gandhi notes in this report that he discussed with the worker that he was likely headed toward a total knee replacement. However, he concluded that, presently, I feel this gentleman had an acute injury and that he is really suffering from hamstring-type pain. Given this wording, read in context, it is unclear from the report whether Dr. Gandhi felt the worker had directly injured his hamstring, or that he had injured his knee and but now had secondary pain in his hamstring. Dr. Gandhi referred the worker for physiotherapy. He also referred the worker to Dr. F. Flannery, a physiatrist, for an assessment as to whether the worker could benefit from localized injections into the hamstring. [18] The worker was assessed by Dr. Flannery, and his resident, Dr. Z. Waseem, at the Toronto Rehabilitation MSK program on January 14, At that time Drs. Flannery and Waseem diagnosed hamstring tendonitis. They recommended physiotherapy to strengthen and increase range of motion in the hamstrings and gastrocs (calf muscle). They also recommended that the worker move off of using crutches and instead use a cane. [19] Drs. Flannery and Waseem continued to follow the worker. At the next follow-up visit on March 24, 2010, the doctors indicated the worker had ongoing right knee tendinitis. They noted the worker s symptoms were improved, though he still had pain going down stairs and swelling of the knee. Range of motion was assessed at degrees. At a follow-up assessment on June 24, 2010 Drs. Flannery and Waseem referred to the worker having suffered a right knee injury involving hamstring tendonitis. Again they noted the worker was improving but still had pain. They recorded that the worker had significant tenderness at the back of the knee and his calves with activity, sitting for long periods of time and at night. At this visit, the doctors injected what they identified as trigger points, apparently in the calves: they wrote, Several trigger points were identified in his medial and lateral gastrocs with superb twitch responses. Post injection, he had significant improvement of his pain and increased stretch of his gastrocs. [20] In their report of September 9, 2010, Drs. Flannery and Waseem referred to the worker s injury as a right knee/hamstring injury. They recorded that the worker continued to have pain,

5 Page: 4 Decision No. 1640/16 located at the back of the knee and in the hamstrings. Drs. Flannery and Waseem again administered trigger point injections on October 14, 2010, this time in the worker s hamstrings. They noted he did not respond as well as anticipated. [21] In a November 25, 2010 report, Drs. Flannery and Waseem indicated that they continue to follow [the worker] for his work acquired injury and degeneration arthritis of his right knee. In this report they stated, He remains restricted due to pain in the knee secondary to arthritis. [22] In the next follow-up on January 13, 2011, Drs. Flannery and Waseem recorded that the worker exhibited non-organic signs including pain on superficial palpation of the hamstrings, quads and gastrocs. Range of motion was actively degrees and passively degrees, inhibited by pain behaviour. The doctors recommended that the worker focus on strengthening his quadriceps and stretching his hamstrings. [23] On July 8, 2011, the worker saw Dr. Flannery, along with resident Dr. S. Fung. The report notes that on May 19, 2011 they had injected cortisone into the worker s right knee. They noted the worker experienced relief from that injection but that the pain had returned. They further reported, Most of the pain today is in his right knee, located at the anterior aspect of the knee, as well as medial and lateral aspects. Under Impression and Plan Drs. Flannery and Fung wrote: This patient s pain is secondary to osteoarthritis of the knee. Until he is able to schedule his knee replacement surgery with Dr. Gandhi, we recommend that he continue with his Tylenol Arthritis. It was also recommended that he continue to perform stretches of his hamstrings, especially on the right. [24] Drs. Flannery and Waseem also proposed further trigger point injections into the worker s right hamstring, but the worker opted to postpone that procedure. [25] About one month after that visit, Dr. Beharry, in a note dated August 15, 2011, indicated the worker was fit to return to work. [26] The worker described his ongoing symptoms after the November 2009 accident. He indicated that his hamstring gave him a lot of trouble but also indicated that he would at times get a sudden sharp pain at the back of the knee, which would cause him to stumble. In some cases this would be followed by swelling which would last a few days. At another point, the worker stated that the pain was in the back of the knee and initially sometimes went down into his calf, although the calf pain has not persisted. In response to questions about Dr. Flannery treating his hamstrings, the worker indicated that he told Dr. Flannery that the pain was in the back of the knee and Dr. Flannery nevertheless diagnosed a problem with the hamstring. The worker testified that he sometimes has night pain in his knee. In addition, his knee is very stiff in the morning until he gets it moving. He stated that he continued working with these ongoing symptoms until he retired at age 65 in [27] The worker emphasized in his testimony that while he had experienced pain in his right knee prior to November 2009, it was always in the front of the knee and never at the back. (c) Conclusions: causation of ongoing symptoms [28] The worker s medical and return to work history shows that this worker is a dedicated worker who has demonstrated that, notwithstanding a significant knee problem and accompanying knee pain, he was prepared to tolerate pain and impairment in order to continue

6 Page: 5 Decision No. 1640/16 with a job that required walking, carrying, lifting and in general a high degree of mobility. The documentary evidence also demonstrates that the worker has shown persistence and perseverance in rehabilitating his knee after two surgeries, each time to the point where he was able to return to his pre-surgical work duties notwithstanding some ongoing symptoms. The medical evidence following the November 2009 accident also includes numerous references to the worker working at his rehabilitation and making steady improvement. However, the workplace accident in November 2009 was not a particularly significant trauma: the worker bent down and was straightening up. That relatively minor incident was superimposed upon the worker s very significant history of a symptomatic and steadily deteriorating osteoarthritic knee condition that had already required two surgical procedures, one of which was quite invasive. In such circumstances, it would require clear medical evidence to show that any ongoing symptoms following the November 2009 accident continued to be the result of that accident and not the pre-existing condition. Unfortunately, in our view the medical evidence does not support that conclusion. [29] Diagnoses for the worker s knee following the November 2009 accident were not always consistent. We find it significant, however, that the initial diagnoses (the Emergency Report, the Form 8, and Dr. Chisholm s Form 8) were of a knee injury a strain with no mention of the hamstring. Had the injury been primarily to the hamstring and unrelated to the knee, the initial reporting would not have been as it is. We also note that the worker testified that he reported to Dr. Flannery that the pain was at the back of his knee, not the hamstring. However, beginning in January 2010 Drs. Flannery and Waseem suggested that the worker s hamstring tendons were involved. However, having done so, they then administered trigger point injections into the worker s calf (gastrocs). Then, on a subsequent visit, they did trigger point injections in the hamstrings. There was never any suggestion (including by the worker) that the worker injured his calf in the November 2009 accident. Thus, in treating the gastrocs the doctors appeared to be treating pain in the calf that was referred from the knee. We note that this corresponds with the worker s testimony that pain from his knee sometimes went down to his calf. The injection into the hamstrings also appears to be done to directly address pain itself but not necessarily any underlying pathology although it is not clear if the doctors felt the hamstring pain was referred or direct. In any event, we find that the fact that injections were given in areas other than the knee itself does not necessarily suggest that Drs. Flannery and Waseem believed the worker s November 2009 injury did not involve his knee. This conclusion is bolstered by the fact that Drs. Flannery and Waseem administered cortisone shots to the knee itself (while their report only refers to one such shot (in May 2011) the worker testified that he actually had several cortisone shots in or around that time period). [30] In their September 2010 report Drs. Flannery and Waseem referred to the November 2009 injury as a right knee/hamstring injury. In their June 2010 report they referred to the injury as a right knee injury involving hamstring tendonitis. The language in the September 2010 and June 2010 reports suggest that the doctors felt there was a relationship between the hamstring symptoms and the knee itself, although the precise relationship is not detailed. In their November 25, 2010 report they indicated they were following the worker for his work acquired injury and degenerative arthritis of his right knee [emphasis added]. Overall, the reporting and treatment provided by Drs. Flannery and Waseem suggests that they felt that the worker did aggravate his hamstring tendon in the November 2009 accident, but also that the worker s hamstring and calf pain were both related to the worker s pre-existing right

7 Page: 6 Decision No. 1640/16 knee problems. Unfortunately, their reporting does not provide details as to how they viewed the relationship between these various aspects of the worker s right leg problems. [31] Nevertheless, regardless of how Drs. Flannery and Waseem viewed the interrelationship between the worker s knee condition, hamstring tendonitis, and calf pain, on a balance of probabilities the medical reporting does show, in our view, that as the worker recovered from the November 2009 incident the focus of treatment shifted back to the osteoarthritic condition of the knee itself. In the November 2010 report, Drs. Flannery and Waseem note they are following the worker for a hamstring injury and osteoarthritis, but then indicate that the worker was restricted due to pain in the knee secondary to arthritis. By the time of the January 2011 report from Drs. Flannery and Waseem, the only reference to the hamstrings is the doctors suggestion that the worker stretch that muscle. By the time of their July 8, 2011 report, the only diagnosis provided was pain was secondary to osteoarthritis in the knee, with no further mention of the calves or hamstring tendonitis except again a repeated recommendation to stretch the hamstrings. In addition, we note that in this report the worker s pain is reported as located at the anterior aspect of the knee, as well as medial and lateral aspects. Notably absent is any reference to pain behind the knee, which was the pain location that appeared to have originally motivated the doctors to conclude that the hamstring tendon was implicated. [32] The reports from Dr. Flannery and Dr. Waseem are essentially the only medical evidence of the worker s diagnosis and treatment between January 2010 and July 2011; the worker saw no other specialists. Taking into account all of the reports from Drs. Flannery and Waseem, we find that by the time of the July 8, 2011assessment the focus of Drs. Flannery and Waseem had turned back to treating only the worker s osteoarthritic knee condition (including any related post-surgical pain). This leads us to conclude that any strain or tendonitis type injury from the worker s November 2009 accident had resolved by July 8, Throughout the medical reporting, there is no suggestion that the November 2009 accident permanently aggravated the pre-existing osteoarthritis condition itself. The totality of the medical evidence persuades us that as of July 8, 2011 the worker s ongoing symptoms were attributable to his pre-existing right knee condition and the November 4, 2009 accident was no longer a significant contributing factor to any ongoing right knee/leg problems. [33] The worker has stressed that he believes that his ongoing right knee problems are attributable to the November 2009 accident because his pain subsequent to the accident was (and is) in the back of the knee, whereas before that accident it was always in the front of the knee. The evidence does show that at least some of the worker s pain following the November 2009 accident was to some extent in the back of the knee: in December 2009 Dr. Gandhi indicated the worker s knee pain was posterolateral (i.e., on the outer side but more towards the back). However, we are not persuaded that it necessarily follows that such pain is not caused by the worker s underlying osteoarthritis and prior surgeries, for two reasons. First, there is no medical opinion or other evidence suggesting that pain from severe osteoarthritis and a prior HTO could not either become manifest, or at least be perceived, in the back (posterior) or side-back (posterolateral) areas of knee. In their July 2011 report, Drs. Flannery and Waseem appear to accept that the worker has ongoing pain, but refer only to osteoarthritis. Second, the worker s recollection that he had never previously experienced posterior knee pain from his pre-accident osteoarthritis is contradicted by the medical records. An emergency report from November 13, 2004 indicates that the worker was complaining at that time of three months of increasing pain in the back of the right knee (following a slip and fall). A Worker s Report of

8 Page: 7 Decision No. 1640/16 Injury/Disease (Form 6) that the worker filed in relation to a November 23, 2004 workplace accident indicates that the worker was transferring a patient when he felt severe muscle-like pain in the back of the knee. A February 15, 2006 follow-up report from Dr. Mckee after the worker s first surgery records that the worker was complaining of pain in the posterior lateral aspect of the knee. We conclude that the worker s recollection was mistaken and that he had, in fact, experienced posterolateral and/or posterior right knee pain prior to his November 2009 accident. Accordingly, the worker s argument that the location of the pain was entirely new, and therefore must represent a distinct injury, is not persuasive. This argument does not alter our conclusion based on the medical evidence that as of July 8, 2011, the worker s ongoing right knee problems were, on a balance of probabilities, the result of his pre-existing non-compensable osteoarthritis and the prior surgeries to treat that arthritis. [34] The Board concluded that the worker had recovered from the November 2009 accident as of August 18, We have found that the worker did recover, but only as of July 8, Therefore, the worker has entitlement to benefits up to July 8, However, since we have found that the worker s impairment after that date was due to his pre-existing condition, we find he did not suffer a permanent impairment as a result of the November 4, 2009 accident.

9 Page: 8 Decision No. 1640/16 DISPOSITION [35] The appeal is allowed in part. The worker is entitled to benefits for his November 4, 2009 right knee injury up to July 8, The worker does not have entitlement after that date. The worker did not suffer a permanent impairment as a result of the November 4, 2009 workplace accident. [36] The matter is returned to the WSIB to determine the type and quantum of benefits flowing from this decision, subject to the usual rights of appeal. DATED: October 13, 2016 SIGNED: K. Jepson, M. Lipton, K. Hoskin