WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2155/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2155/14 BEFORE: S. Netten: Vice-Chair HEARING: November 17, 2014 at Toronto Written DATE OF DECISION: January 9, 2015 NEUTRAL CITATION: 2015 ONWSIAT 52 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated August 22, 2013 APPEARANCES: For the worker: For the employer: Interpreter: E. Marnicki, Paralegal Not participating None 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. 2155/14 REASONS (i) Issue [1] The issue under appeal is the quantum of the worker s permanent disability (PD) pension for the left foot/ankle and left elbow, rated at 22% in October (ii) Overview [2] The worker sustained multiple injuries upon falling off a ladder at work on December 5, He now has entitlement for permanent disabilities of the left foot/ankle and left elbow in this claim. The left ankle was initially rated at 5% in April 1974; this was increased upon reassessment to 10% in May 1975, and to 15% in May The left elbow was first rated at 5% in May Most recently, in October 2011, the 15% award for the foot/ankle was confirmed and the left elbow rating was increased to 6%. An additional 1% multiple factor was granted to reflect bilateral upper extremity disability, since the worker receives a 2% PD pension for the right arm in a separate claim. [3] The worker, through his representative, objected to the 2011 PD quantum, stating that his permanent disabilities are more severe than recognized by the 22% PD. The objection was denied by an Appeals Resolution Officer of the Board, and the worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. The worker s representative declined to provide written submissions to the Tribunal. (iii) Law and policy [5] Since the worker was injured in 1963, the pre-1985 Workers Compensation Act (the pre-1985 Act) is applicable to this appeal. 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. Sections 112(3) and 126 of the WSIA require the Tribunal to apply Board policy when making decisions after January 1, 1998, regardless of the accident date. [6] Section 43(1) of the pre-1985 Act states: 43(1) Where permanent disability results from the injury, the impairment of earning capacity of the worker shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly or other periodical payment during the lifetime of the worker, or such other period as the Board may fix, of a sum proportionate to such impairment not exceeding in any case the like proportion of 75 per cent of his average weekly earnings during the twelve months immediately preceding the accident or such lesser period as he has been employed. [7] Thus, a PD pension is calculated as a percentage of 75% of the worker s pre-accident earnings. The percentage used is an estimate of impairment of earning capacity of the average unskilled worker based on the nature and degree of the injury, and is not tied to the individual worker s actual loss of earnings. [8] Section 43(3) of the pre-1985 Act stipulates the use of a rating schedule to estimate impairment of earning capacity. Board policy on Permanent Disability Benefits - Ontario

3 Page: 2 Decision No. 2155/14 Rating Schedule (Operational Policy Manual (OPM) Document No ), adopts a schedule of benchmarks designed to estimate the impact of specific injuries on the earning capacity of an average unskilled worker. With respect to upper and lower extremity injuries, the Ontario Rating Schedule provides benchmark percentages for amputations, joint immobility and denervation. According to this schedule, complete loss of mobility of the elbow joint warrants a 20% rating, whereas complete loss of motion of the ankle joint yields a 12% rating. [9] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. The benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Nature of the compensable injuries [10] Hospital records in December 1963 confirm that the worker sustained a chip fracture of the talus, fractures of the first and second metatarsal, cuboid and first cuneiform bones, and a dislocation of the left elbow. The elbow dislocation was reduced and casted, the fractures were treated with compression bandaging, and the worker received physiotherapy. [11] With continued symptoms in the left foot and specialist assessment of a spur from the os calcis (heel bone) pinching the tendon, a surgical release of the peroneal tendons and exostectomy was undertaken in February [12] At the initial pension examinations in 1974 and 1975, the worker had pain on weightbearing, grating and clicking with various ankle movements, reduced plantar flexion, and degenerative changes in the ankle. The worker had no complaints respecting the left elbow at that time. [13] At the pension reassessment in May 1984, it was noted that there was thickening in the foot and ankle due to chronic soft tissue swelling; reduced dorsiflexion by 15, plantar flexion by 20 and inversion by 10 ; and considerable crepitus and clunking when the foot is manipulated in any direction. In the left elbow the worker had lost 5 of extension, 15 of flexion and 20 of supination, with no wasting, weakness or crepitus, and with a one-inch shortening of the left arm. (v) The left foot/ankle since May 1984 [14] Orthopedic surgeon Dr. T. Barrington reported complaints of discomfort in September 1984, but found full range of movement, normal stability and normal peripheral pulses. A new ankle support was ordered. In March 1985 Dr. Barrington noted recurrent episodes of shooting pain with snapping in the ankle joint. There were reports of painful crepitus in 1985, 1986 and [15] There is no medical documentation of significance with respect to the left foot/ankle condition between 1989 and As noted in a letter from family physician Dr. W. Chrystoja on February 22, 2011, the worker sustained a non-work-related ankle injury in January 2004, consisting of an anterior talofibular ligament tear. Bone scan results in April 2004 were consistent with this ligament injury, and an MRI in November 2004 noted disruption of the anterior talofibular ligament. Orthopedic surgeon Dr. J. Kanellakos reported on January 5, 2005 that the worker complained of pain and crepitus over the anterolateral aspect of the left ankle, and continued to use an ankle brace. On November 5, 2005 orthopedic surgeon Dr. M. Lee noted the following findings:

4 Page: 3 Decision No. 2155/14 On examination today there was a mild degree of swelling in his left ankle. There was no deformity. His range of motion was good. However, he had palpable clicking with manipulation of his left ankle and he had obvious pain with extreme dorsiflexion and plantar flexion. He had a significant amount of tenderness on the lateral aspect of his left ankle in the region of the anterior talofibular ligament and calcaneofibular ligament. He had a negative anterior drawer sign. He also had palpable tenderness along the ankle joint itself. [16] Dr. Lee diagnosed chronic left ankle pain secondary to a left anterior talofibular ligament tear. By March 3, 2006 the worker s symptoms had improved with the use of a brace, with some swelling and snapping on the anterior lateral aspect with extension and flexion. Orthopedic surgeon Dr. D. Stephen noted ongoing disability on January 10, 2008, including a snapping sensation when rotating the ankle, and tenderness over the anterior lateral corner of the ankle. [17] In his Medical Report for Canada Pension Plan Disability Benefits dated April 24, 2009, Dr. Chrystoja described the worker s left ankle condition as the anterior talofibular ligament tear injured in 2004, requiring use of a cane and brace, with no mention of the prior history. Dr. Chrystoja wrote to the Board on February 22, 2011: The left ankle was injured requiring surgery. There is a 9 cm scar on the lateral side of the ankle. He has been using a brace since his injury. He has pain with walking and a sharp pain with uneven surfaces or twisting of the ankle. He walks with a limp, uses a brace and cane off and on. The left ankle was re injured in a slip and fall injury in January There was an anterior talofibular ligament tear as a result of the injury. (vi) The 15% left foot/ankle rating in 2011 [18] The worker was examined for pension reassessment by Dr. L. Grbac, on October 24, With respect to the left foot, the worker reported pain; swelling; crepitus; morning stiffness; paraesthesia affecting the toes; cold sensation; limited walking/standing tolerance; give way weakness; weather sensitivity; difficulty with stairs; and use of a soft brace and, often, a cane. On examination Dr. Grbac noted an antalgic gait, tenderness about the ankle, crepitus, and normal muscle tone, reflexes, pulses, colour and temperature. As for left ankle mobility, dorsiflexion was neutral compared to 20 on the right, plantar flexion was 15 compared to 35 on the right, inversion was 20 compared to 30 on the right, and eversion was 10 compared to 20 on the right. Dr. Grbac recommended maintaining the 15% PD pension rating: A note should be made of the fact that under the permanent disability rating schedule, a benchmark award of 12% for total immobility of an ankle is identified and it is generally understood that total immobility of the subtalar joint would warrant an award of 6%. This would result in an award of 18% for total immobility of both joints. Clearly this worker does not have total immobility of either joint and the 15% award appears to be adequately compensating the worker for the functional impairment associated with the worker s left foot and ankle. [19] As noted previously, the Ontario Rating Schedule includes a benchmark estimate of 12% for complete loss of mobility of the ankle joint. Other Tribunal decisions support Dr. Grbac s statement that immobility of the subtalar joint is typically estimated at half that value, 6%, for pension purposes. For example, a Board Medical Consultant quoted in Decision No. 594/01 wrote:

5 Page: 4 Decision No. 2155/14 This award is based on a maximum possible award of 18% for the ankle comprised of 6% for dorsiflexion and plantar flexion each and 3% for the sub-talar movements of inversion and eversion. [20] I find myself in agreement with Dr. Grbac s recommendation that the PD quantum not be increased beyond 15%. First, I note that the worker s permanent disability associated with the 1963 injury appears to have stabilized by the late 1980s, with ongoing pain and crepitus, some reduced mobility, and the need for an ankle brace. Additional problems developed approximately 15 years later, following a serious non-compensable ligament tear in 2004, and are thus not attributable to the 1963 fractures. Secondly, even without considering the non-compensable aspects of the worker s foot/ankle condition in 2011, applying the benchmark ratings of 12% for complete ankle immobility and 6% for complete subtalar immobility suggests that the worker s current 15% award more than adequately compensates the worker for his foot/ankle condition. Reduced range of motion is used as a proxy for functional disability, and in this case the worker retains close to half of normal plantar flexion, half of normal eversion, and two-thirds of normal inversion relative to his unaffected side. While the worker has had continuing crepitus along with reduced mobility, this would not, in my view, warrant a rating approaching that for total immobility of both the ankle and subtalar joints. I find no basis for an award higher than the present 15% for the left foot/ankle. (vii) The left elbow since 1984 [21] Dr. Barrington reported full range of movement in the elbow in September I was unable to find any further reference to the left elbow condition in this claim until a re-examination by Dr. Barrington on April 12, At that time the worker had some discomfort in his elbow, full range of movement and stability, and mild tenderness over the epicondyles. [22] On March 14, 2007, physiatrist Dr. Y. Chen noted the worker s report of chronic, intermittent left elbow discomfort since 1963, aggravated by physical activities. Dr. Chen noted normal muscle strength and range of motion in the left elbow. [23] In his Medical Report for Canada Pension Plan Disability Benefits dated April 24, 2009, Dr. Chrystoja described ongoing left elbow pain/stiffness. In his letter to the Board dated February 22, 2011, Dr. Chrystoja wrote that with lifting he gets sharp pain in the elbow and has to release, and flexion strength was mildly reduced. (viii) The 6% left elbow rating in 2011 [24] At the PD pension examination on October 24, 2011, the worker reported, with respect to the left elbow, a squeezing type of discomfort, slight crepitus and swelling over the ulnar aspect. On examination Dr. Grbac found tenderness, flexion to 120, a loss of 5 of extension, full pronation, a loss of 20 of supination, and normal sensory testing and muscle strength. He recommended an increase to 6% based upon a very slight deterioration in this worker s left elbow. [25] The worker s physicians did not identify a worsening in the worker s elbow condition in comparison to The May 1984 assessment noted a minor loss of elbow mobility, whereas full range of movement was noted in September 1984, April 2005 and March Dr. Grbac s findings were similar to those outlined in 1984, with possibly a small further decrease in elbow flexion. Other symptoms were reportedly mild. In these circumstances, a 1% increase to 6%,

6 Page: 5 Decision No. 2155/14 relative to a benchmark estimate of 20% for complete immobility, adequately reflects the worker s left elbow condition. (ix) Conclusion [26] As outlined above, the evidence respecting the worker s left foot/ankle and left elbow conditions does not warrant an increase in the 2011 PD pension ratings of 15% and 6%, respectively. Moreover, the worker did not object to the multiple factor of 1% added to this award and, in any case, I find this to have been correctly applied: the Ontario Rating Schedule stipulates an additional one-half of the value of the lesser disability (here, the 2% granted in another claim) in the case of a bilateral disability between limbs. The resulting 22% PD quantum in this claim is accordingly confirmed.

7 Page: 6 Decision No. 2155/14 DISPOSITION [27] The appeal is denied. DATED: January 9, 2015 SIGNED: S. Netten