WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2001 ONWSIAT 2512 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 90/01 [1] This appeal was heard in Toronto January 15, 2001 by a Tribunal Panel consisting of: B.A. Caddigan: Vice-Chair, S.M. Copeland: Member representative of employers, M. Ferrari : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision by Appeals Officer (AO) Mr. E. Marnicki wherein entitlement to a bilateral knee condition was denied. The worker also appeals the August 12, 1994 Claims Adjudication decision wherein entitlement to a right heel condition was denied. [3] The worker had previously appealed the AO decision to the Tribunal; however, the Vice-Chair clarified in decision in Decision No. 1109/98R that he had considered the left knee only. [4] As the AO decision did not specifically mention entitlement to the right heel condition, the worker s representative requested clarification from the Board as to whether it could be interpreted that the right heel condition was considered by the AO. Mr. John Slinger, Director of the Board s Appeals Branch confirmed that, while the right heel condition could not be interpreted as being dealt with the AO, he did consider the Claims Adjudicator s decision of August 12, 1994 as a final decision of the Board regarding the issue. [5] The worker appeared and was represented by Ms. Laura Vurma of the Advocates for Injured Workers (AIW). [6] The employer was notified of the appeal but chose not to attend. THE RECORD [7] The Panel considered the following material: Exhibit #1: The Case Record prepared by the Tribunal Counsel Office (TCO); Exhibit #2: The Hearing Ready letter prepared by OVCR dated September 1, 2000; Exhibit #3: Correspondence to the Tribunal from AIW dated December 4, 2000; Exhibit #4: OCVR letter to AIW dated December 6, 2000; Exhibit #5: AIW correspondence to the Workplace Safety & Insurance Board (WSIB) dated August 25, 2000 to AIW;

2 Page: 2 Decision No. 90/01 Exhibit #6: WSIB correspondence to the AIW dated August 25, 2000; Exhibit #7: AIW correspondence to the Tribunal dated October 12, 1999; Exhibit #8: WSIB Operational Policy Document No ; and Exhibit #9: Tribunal Decision 382/98. [8] The Panel also heard oral evidence from the worker. The representative made submissions. LAW AND POLICY [9] This worker had two work injuries on August 16, 1991 and January 26, Since these are the accepted dates of accident for this worker, the pre-1997 Workers Compensation Act is applicable to this appeal. The hearing of this appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety & Insurance Act ( WSIA ) also apply to the appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. [10] In this case, the Board notified the Tribunal that the following policy packages applied: Package #30 Benefit of Doubt Package #33 No Continuing Entitlement Recovered From Original Accident Package # 85 Suitability of Employment, and Package #107 Aggravation Basis or SIEF. PRELIMINARY DISCUSSION [11] Ms. Vurma submitted at the outset of the hearing that another policy was applicable to the appeal that the Board had not included, Operational Policy Document No (Exhibit #8), Secondary Conditions Resulting From Work-Related Disability. Ms. Vurma intended to rely on the policy in her submissions. The Panel caucused and agreed to receive the policy as Exhibit #8. [12] It was confirmed with Ms. Vurma that the worker was seeking entitlement pursuant to the January 26, 1992 work injury. THE ISSUES [13] The Panel is required to decide whether the worker has ongoing entitlement for a right knee and right heel disability, including a permanent impairment assessment.

3 Page: 3 Decision No. 90/01 THE REASONS (i) Background [14] On August 16, 1991, the worker was employed as a bartender when she slipped on a wet floor while carrying a tray of glasses. The worker fell and suffered multiple cuts and a laceration that required four stitches to her left knee. An abrasion injury was noted for her right knee. [15] The worker lost time from work from August 17, 1991, until her return to work on August 20, [16] After her return to work, the worker continued to experience knee problems, more so for the left knee. [17] On January 26, 1992, the worker twisted her left knee while walking. The diagnosis was ligament strain and the worker received temporary total disability benefits from January 26, 1992 to February 4, 1992, from February 19, 1992 to March 17, 1992, and again from May 8, 1992 to November 4, [18] Eventually, the worker began to experience increased right knee problems, which she related to favouring her left leg. [19] The worker had a bilateral knee condition that was symptomatic before both work accidents. The bilateral knee condition did not cause her to lose time from work. [20] After the Board closed the worker s benefits on November 4, 1992, she was terminated from her employment. The worker received regular and sick benefits from Unemployment Insurance. She applied for Canada Pension Plan disability benefits, which were denied. [21] The worker had not looked for work due to her age and had difficulties with walking and standing. She did request job retraining assistance form the Board and a permanent impairment for both knees on the basis that her symptomatic bilateral knee condition had been aggravated and she never recovered to her pre-accident state. [22] In the decision under appeal, the AO confirmed that the worker had initial entitlement for the injury sustained to both knees in 1991, and for the left knee injury sustained in The AO confirmed the previous Board decision that the worker s ongoing problems were related to her pre-existing osteoarthritis, that there was no assessable impairment in either knee and that the worker had recovered to maximal medical rehabilitation (MMR) and was capable of performing her pre-accident employment. [23] As noted earlier in this decision, a Vice-Chair at the Tribunal decided the issue of left knee entitlement. [24] After Decision No. 1109/98, the worker began participating in labour market re-entry services in September 1999.

4 Page: 4 Decision No. 90/01 (ii) The worker s testimony [25] Due to the extensive preliminary discussions confirming the issue agenda at the hearing, Ms. Vurma did not provide an opening statement and proceeded to question the worker. The worker provided evidence in response to questions from her representative and the Panel. [26] The worker began working for the accident employer on August 13, She was employed as a bartender and a wine steward. Her duties involved stocking the bars with supplies, setting up, serving and running an open bar. She was required to walk and to stand for most of her shift. [27] The worker described the first work accident that happened on August 16, She was working a tournament and it looked like it was going to rain. She had to move things in and out and was moving quickly, carrying glass, when she slipped on stone and fell on both of her knees. The worker cut her left knee deeply on broken glass. While she did hit her right knee, there were no cuts or lacerations. [28] The worker testified that before the work injury, she had experienced knee pain in both knees and that she had discussed this with her doctor, but that the knee pain never caused her to miss any time from work. After the 1991 work accident, she did lose two weeks from work. [29] The worker testified that the second work injury happened in 1992, but she could not recall the exact date. The worker did recall that she was walking quickly when her left knee blew up. [30] The worker did continue to have knee problems after the 1991 work injury. The left knee problems were so bad that they overshadowed the right knee problems; however, the worker was adamant that she did continue to experience problems in both knees. [31] Before the second accident in 1992, the worker testified that the left knee pain was constant and the more the left knee problem progressed, the worse her right knee became. [32] In mid January 1992, the worker was serving wine at tables during a function in the dining room. As she walked quickly through the dining room, her knee blew up, to the extent that the swelling was readily visible. The worker testified that she sat down until she could get a ride to the subway. She also testified that she did not experience increased right knee problems at the time. [33] The worker testified that she returned to work as soon as possible after the incident in January The knee flared up again and she had to stop work. After a few unsuccessful attempts to remain at work, the worker stopped work on May , as she could not work any more. [34] In November 1992, her employment was terminated. [35] The worker testified that she has had bilateral knee pain from the date of accident in 1991 until now and that the left knee pain has been worse.

5 Page: 5 Decision No. 90/01 [36] The worker testified that she was involved in a motor vehicle accident (MVA), but that she did not sustain any injury to her knees. She did injure her neck, shoulder, and received physiotherapy because of the MVA. [37] The worker testified as to her ongoing knee complaints. Her left knee is painful, and if she sits on a wrong chair, she cannot get up due to knee pain. She manages her pain by taking Ibuprofen. [38] The worker testified that she discovered that she had a bone spur on her right heel in late August She was told the spur was a result of putting more stress on her right heel due to her left knee problem. The worker has had cortisone shots in the right heel and wears orthotic shoes from Women s College Hospital. The pain in her right heel felt like she is stepping on glass, but that it has improved and is pretty good now. The worked added that before the diagnosis in 1992, she did have pain in her right heel, but did not know what it was. [39] The worker then testified as to her right knee difficulties. The pain in her knee shoots out from the side to the top, and then shoots down the leg and her leg aches. She also experiences a stabbing pain in her knee. From time to time, her right knee pain is worse and she has her good days and her bad days. [40] The worker testified that because of her knees, she cannot dance anymore and cannot walk on hard surfaces or stairs. [41] The worker testified that before 1991 and 1992, she did not have any real problems with her knees and certainly nothing that caused her to miss time from work. [42] The worker testified that the last flare up of her right knee was the night before the Tribunal hearing and that her knee flares up any time that she over does it. [43] The worker is not working now and last saw a specialist late last winter, when she saw Dr. Cameron for her Non-Economic Loss (NEL) assessment for her left knee. Other than that, her family doctor referred her to Dr. Davey about two years ago. (iii) The representative s submissions [44] Ms. Vurma read from her prepared submissions, which she provided to the Panel: [The worker] currently is in receipt of ongoing benefits from the Workplace Safety and Insurance Board for her work-related left knee injury. These benefits are not an issue at this hearing as they have been determined in Decision No. 1109/98 following a hearing on July 29, On page 1 of Operational Policy , it states that: Workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related disability or new injuries. [The worker s] exact condition is contemplated on the following page where it says, Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee

6 Page: 6 Decision No. 90/01 impairment due to an increased dependency following a work-related injury to the right knee is an example. [45] Ms. Vurma next outlines the Case Record medical evidence, which she submits supports the worker s appeal. [46] The possibility of the worker s right knee pain being a secondary condition was considered by the Unit Medical Advisor on August 30, 1994 at page 155 of the Case Record. There the UMA says, It is more than likely her complaints of discomfort are on the basis of arthritic changes bilaterally and this should at least be ruled out. This comment does not address the argument that [the worker s] right knee pain is due to an exacerbation of her pre-existing osteoarthritis in that knee; an acceleration caused by her altered gait due to her left knee injury. The Unit Medical Advisor also speculates that [the worker s] right knee problems will only be temporary, but as [the worker] has testified, 6 years have passed since the date of that memo and she still experiences pain in her right knee. The connection between [the worker s] left knee problems and those of her right knee is mentioned in the report from Dr. Hercia of August 21, 1992, which appears at p. 96 of the Case Record. In that report, Dr. Hercia says of [the worker s] right knee, This pain I would state is probably related to more pressure being exerted on the right leg due to the discomfort in the left knee in her daily walking. [47] This is also supported by the report of Dr. del Junco, 1994 at page 2 where it states, I feel that her right knee arthritis was aggravated by the injury to the left knee which caused her to put additional strain on her right knee. [48] Dr. del Junco elaborated on her comments in a report dated May 24, 1996, which appears at page 78 of the Case Record. There she said, [The worker s] current bilateral knee disability is not due solely to her pre-existing condition. and later, [T]he injury to her left knee aggravated her pre-existing arthritis in that knee, as well as in the right by the added strain to the right knee. [49] The most recent evidence of a connection between [the worker s] right knee problems and her left knee problems appears in the report from Dr. Davey dated July 8, At page 4 of the report Dr. Davey states, Symptoms in the right knee may be attributable to the fact that the right knee has had to do more than its fair share of work due to the ongoing problems with the left knee. [50] He expands on page 5 of the report where he says, [The worker] did suffer an injury at work which aggravated pre-existing degenerative disease in the left knee. As a result of her ongoing complaints of pain and discomfort on the left side it is expected that she has used the right lower extremity more than it would have been used had the left side not been injured. [51] He says further that,

7 Page: 7 Decision No. 90/01 Although she did not suffer injuries at work to the right lower extremity it is reasonable that complaints on this side are secondary to the injury to the left knee. Had she not suffered an injury to the left knee then it is probable that she would not have ongoing complaints on the right side. [52] The only opinion on file that disagrees with the relatedness of [the worker s] right knee pain with her left knee injury is in memo #13 from October 16, 1992, at page 186 of the Case Record, in which E. Honein writes that: Right heel and Right knee are not related to the January 25, 1992 accident. [53] There is no indication in this memo that this person is a Unit Medical Adviser. Furthermore, there is no medical explanation or references to contemporaneous reports to substantiate the conclusions in this memo. [54] Ms. Vurma requested that the Panel place greater weight on the opinions of the treating physicians, and submitted that entitlement was further supported by the evidence in the Case Record, in particular, from Dr. del Junco s chart notes, that the frequency of worker s right knee complaints increased in late summer, 1992, several months after the January 26, 1992 work incident. [55] Ms. Vurma directed the Panel to a memo in the Case Record from a Board doctor, Dr. Taraschuk. The doctor was asked to indicate an MMR date for both the right and left knees, following an incorrect reading of Decision No. 1109/98. The doctor stated that it was reasonable to conclude that she has a permanent injury for both knees, indicating MMR as of August 26, [56] Ms. Vurma submitted further that the right knee pain was a pre-existing condition, but was not a pre-accident disability, as the worker did not miss time from work due to knee pain. [57] Ms. Vurma stated that the worker sought entitlement for the right heel only and was not seeking a permanent impairment assessment as the right heel had returned to the pre-accident level. DISCUSSION [58] The Panel considered the worker s testimony, the Case Record evidence and Ms. Vurma s thorough submissions. [59] Dr. del Junco is the worker s treating physician. Our review of the chart notes from the doctor confirms Ms. Vurma s submissions regarding the increase in right knee complaint after the January 26, 1992 work injury. On August 26, 1991, the first accident is recorded. The next note regarding the worker s knees is October 30, Both are noted as swollen, and the worker is noted as complaining of right knee pain for four days. The next chart note regarding right knee pain is not until April 10, 1992, wherein the doctor notes that the right knee is painful on and off. Right knee complaints do increase from that date on.

8 Page: 8 Decision No. 90/01 [60] Dr. del Junco s chart notes on May 1, 1992, document that the worker was rear-ended the night before, sustaining a mild whiplash injury, thereby supporting the worker s testimony regarding the injuries sustained in the MVA. [61] Our review of the medical evidence in the Case Record does not conflict with that to which Ms. Vurma has directed us. We are satisfied that Ms. Vurma has highlighted the appropriate medical evidence. [62] While Ms. Vurma requested that we assign greater weight to the opinion of the worker s treating physicians, we note that Dr. Taraschuk does opine it is reasonable that the worker has a permanent impairment to both knees and requires standard precautions. [63] There is other medical evidence in the Case Record that supports right knee entitlement. There is a memo dated August 30, 1994 from Dr. Walker wherein he writes: Even if the discomfort is deemed compatible with the altered gait, and there is no reason that it should not be temporarily, there is no evidence a PI would result for the rt knee. [64] In our view, it would be reasonable to interpret that Dr. Walker was prepared to accept that the worker s right knee pain was due to her altered gait. [65] The Panel notes that the decision concerning the lack of a relationship between the worker s right knee and heel condition is based on the October 16, 1992 memo from E. Honein. There is no indication that E. Honein is a doctor, in fact, we do not have any idea as to who this person is, or what the opinion is based on. This opinion cannot be weighted as heavily as the opinions from the treating physician as the opinion is unsupported, and this Panel, not knowing who this person is, cannot assume that the person is qualified to render such an opinion. [66] Ms. Vurma correctly directed the Panel to Board Operational Policy Document No , which does anticipate the development of a secondary condition as a result of increased dependency following a work-related injury. That is the scenario here: the worker s pre-existing right knee condition was exacerbated by increased dependence on the right knee due to the work-related injury to her left knee. [67] As the aggravation of the worker s pre-existing right knee condition has not ceased and it is now over nine years since the January 1992 work injury, this evidence supports that the aggravation is permanent. [68] We accept Dr. Taraschuk s opinion that the right knee reached MMR as of August 26, [69] For the same rationale that Board policy contemplates regarding secondary conditions, and on the medical reporting of pain in the Case Record, this Panel finds it is more probable than not that the worker aggravated her pre-existing right heel condition. There is no mention of right heel pain in the medical reporting after October 14, 1992 and the worker testified that she does not have right heel difficulty now. Ms. Vurma has advised that the worker seeks only acknowledgement, via the granting of initial entitlement on an acute basis only, of the right heel aggravation. This Panel does find that the worker temporarily aggravated her right heel

9 Page: 9 Decision No. 90/01 condition and that the aggravation ceased by the end of Accordingly, there is no assessable permanent impairment as a result of the January 1992 work injury. THE DECISION [70] The appeal is allowed. The worker has entitlement for her right heel condition on an acute basis only. There is no permanent right heel impairment as a result of either work injury. The worker sustained a permanent aggravation of her right knee condition as a sequela to the January 26, 1992 work injury. MMR was attained as of August 26, The worker is entitled to a NEL assessment. Whether any other benefits flow from this decision is referred back to the Board for their adjudication. DATED: August 28, 2001 SIGNED: B.A. Caddigan, S.M. Copeland, M. Ferrari