WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 227/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 227/07 BEFORE: M. Doyle : Vice-Chair C.J. Robb : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: January 25, 2007 at Kitchener Oral DATE OF DECISION: May 10, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1259 DECISION(S) UNDER APPEAL: WSIB ARO decision dated November 29, 2004 APPEARANCES: For the worker: For the employer: Interpreter: M. White, Consultant S. Van Clieaf, Consultant 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. 227/07 REASONS (i) Introduction [1] The worker injured her right knee at work on June 29, She returned to work, but her knee condition later prevented her from continuing full-time at her pre-accident duties. She initially worked half-time as an accommodation, but subsequently, modified duties were provided which enabled her to work a full day. A NEL award was granted. The worker s condition, however, continued to deteriorate, and she later underwent surgery for a total knee replacement. Before her surgery, in September 2002, on the recommendation of her orthopaedic surgeon, the worker began to work half-time, performing her modified duties. She continued to work modified duties half-time until December 2003, following which she underwent surgery. [2] The Board found that the worker was capable of working full-time at modified duties from September 2002 to December 2003, and denied her claim for partial Loss of Earnings (LOE) benefits. The Appeals Resolution Officer (ARO) decision upheld the denial of partial LOE. The worker appeals. (ii) Issue [3] The Panel is to determine whether there is entitlement to partial loss of earnings (LOE) from September 2002 to December (iii) Background [4] The worker was born in She has worked for the employer, a school board, as an educational assistant since She works in an elementary school, where prior to her accident, she was assigned to work with students in the primary grades who had special needs. She worked with students, providing support in their regular classroom. Typically, she would be assigned to the same student for more than one year in a row. At the time of her injury, she was assigned to work with a student who had a behavioural disorder. Sometimes, he would throw himself on the floor, and she was required to pick him up and carry him. She was also required to follow him around the school. Additionally, she was required to assist him with certain personal care activities, such as bending to put his boots on for him. On June 29, 1999, the worker was reaching to close a door, when a student stopped in front of her. She lost her balance, and twisted her right knee. It was the last day of school, so she missed no work. [5] She went to the Emergency Department of the hospital the next day, where a provisional diagnosis of knee sprain was given. It was noted on the Emergency Record that she had no history of knee problems, but was now experiencing knee pain. It was noted that there was no giving way at the time, nor was there any locking. She was told to use a tensor bandage, crutches, ice and to elevate her knee. [6] The worker returned to work in September 1999 and began to work in her regular job, 6 hours per day. She testified that at that time, she was assigned to the same child as she had assisted the previous year. She testified that she did the job, but experienced a lot of difficulty, as her knee was swollen and painful. She testified that standing and walking were particularly difficult, and that she could not bend her knee. She testified that she had begun to experience

3 Page: 2 Decision No. 227/07 additional problems, with her right knee locking up and when she was walking, it would give out. [7] The worker was referred to Dr. J. McCall, orthopaedic surgeon. He reported to the worker s family doctor, Dr. VanAlphen, on June 14, He stated that the worker had injured her right knee at work on June 29, 1999, and that she was experiencing a feeling of catching and locking in the knee with intermittent swelling and has had some night pain. He advised that she had not been helped by anti-inflammatory medicine, including Celebrex. He noted that an x-ray showed some arthritic changes, and reported: I think she is describing an internal derangement secondary to a degenerative tear of the medial meniscus. This seems to have developed as the result of the twisting injury about a year ago. Her symptoms are increasing. [8] He recommended an arthroscopic debridement. On July 26, 2000, he performed an arthroscopy and debridement of the right knee and lateral release. On August 25, 2000, the worker was seen in follow-up by Dr. McCall, who reported that she was complaining of ongoing pain, and that he injected DepoMedrol in the joint and advised her to rest her knee for the next two days. While he mistakenly referred to her job as a nursing assistant, he correctly noted that her work involved a lot of walking, standing and squatting down. He reported that her knee would not yet allow her to do that work. He stated I have indicated to her that she has very significant articular cartilage damage in the posterior aspect of the patella and that the arthroscopic procedure although it may reduce her symptoms it is not likely to cure her difficulties. [9] The worker began physiotherapy for her knee. [10] On September 8, 2000, Dr. McCall saw the worker again, and reported that she was much improved, with no further effusion. He noted that there was some thickening of the knee, but that she was walking without much difficulty and she had full range of motion. He noted she had full extension and flexion, and that she was back at school. He made a similar report following her visit to him on October 20, The worker testified that during this period, she was back at work, 6 hours per day, performing her pre-accident duties. [11] On January 5, 2001, her doctor wrote a note, indicating that she had a painful right knee, that she would benefit form reduced hours, and that she should restrict bending, lifting and squatting. The worker testified that her knee was not getting better and it was still painful. [12] On March 7, 2001, Dr. McCall reported to Dr. VanAlphen that the worker continued to have medial compartment pain, and that She has returned to work and she is working half hours and I would suggest that this be continued until September. [13] On March 10, 2001, the worker completed a Continuity Report for the Board. She advised that she was experiencing slight improvement since my shift was reduced from 6 hours to 3 hours per day (Dr. McCall). She also indicated that before the workplace accident, she had not experienced any knee pain, and that after the accident, she had continued to have pain, take anti-inflammatory medication, and follow the doctor s recommendations. She indicated that the reduction in her hours had commenced January 11, 2001.

4 Page: 3 Decision No. 227/07 [14] Board medical consultant, Dr. G. Shapiro, provided an opinion to the Claims Adjudicator on March 30, 2001, confirming that the current working diagnoses for the right knee is medial meniscal tear superimposed on osteoarthritis. Dr Shapiro also stated: The objective clinical findings suggest that this worker is fit for activities that avoid prolonged weight-bearing, climbing and squatting and after an introductory period of 1 to 2 months, I do not see why the hours of activity should be limited if these precautions are observed. [15] On April 11, 2001, the Claims Adjudicator wrote to the employer, advising that the Board s medical consultant was of the opinion that the worker could work 6 hours per day, providing the above-noted restrictions were accommodated. The employer convened a meeting on May 8, 2001, where the worker, the school principal and the employer s Supervisor of Payroll and Employee Benefits (the individual responsible for WSIB matters) discussed modified duties which would permit the worker to work 6 hours per day. The employer reported to the Board regarding this meeting, and stated that the principal agreed to modify the Instructional Assistants schedules for the school so that [the worker] will not have periods of prolonged weight-bearing, climbing and squatting. It was noted that the highest need for Instructional Assistants is in the primary division, but that working with those children creates problems for the worker, as Some of the high needs primary students tend to be very active and are quick to get away requiring the Instructional Assistant to take chase and catch up to them. She also noted: Other difficulties [the worker] pointed out include the fact that when working with primary classes one often needs to get down on the floor with them or squat down to work at their level. Also, the primary classes have chairs typical to primary children, which [the worker] finds to be low and creates some difficulty for her. The letter stated that in light of those concerns, an attempt would be made to reduce the amount of time the worker would spend in the primary division classes. It was agreed that the worker would return to 6 hours per day, performing modified duties, as of May 22, [16] The individual at the employer responsible for WSIB matters testified at the appeal hearing. She testified that she had been involved in the meeting in May 2001, regarding modified work for the worker. She testified that afterward, she did not recall visiting the school, and believes she monitored the success of the plan through contact with the principal. She testified that it was her understanding that the return to modified work was successful. She testified that these same accommodations were in place for a 6 hour work day for the worker until September 2002, when the worker began working 3 hours per day, performing these modified duties. [17] The worker testified that she did return to 6 hours per day, modified duties in May She stated that her pre-injury employment had required her to follow a student through the day, going from one end of the school to another. When she was given modified duties, however, she was placed in a classroom, and students were sent to her for extra help. She testified that she worked with the students from a desk or table and chair. She testified that normally, one student at a time came to her, but that on occasion, there were 2 or 3 students at a time. She testified that she was no longer dealing with students with behavioural disorders, and was simply providing extra academic assistance to those who needed it. She testified that most of her day was spent sitting. She testified that she sat in the classroom from 8:45 to 10:00 a.m., when morning recess began. Recess provided her with a 15 minute break. Usually, she said, she stayed in the

5 Page: 4 Decision No. 227/07 classroom at that time, but sometimes she walked to the staffroom or washroom. After recess, she remained sitting in the classroom again until lunch, at which time she would again go to the staffroom for lunch. She returned to the classroom after lunch, and remained sitting there until 2:00 p.m., at which time there was an afternoon recess. Again, she normally stayed in the room, or on occasion would walk to the staffroom or washroom. She remained sitting in the classroom until the end of the school day. She was not assigned outdoor supervision duties. She testified that she continued to perform these modified duties 6 hours per day for the remainder of the school year. As usual, she had the summer off work. She again worked performing the modified duties 6 hours per day from September 2001 to June [18] On September 12, 2001, the worker was assessed for a Non-Economic Loss (NEL) award. At that time, she described the pain as constant, like a throbbing toothache, with an intensity of 6/10 to 10/10. She advised the assessor that the pain was increasing over time. It was noted that her flexion in the right knee was 90 degrees, and her extension was -10 degrees. The Board rated her impairment and awarded a 15% NEL. [19] The worker testified that even when performing the modified work, she experienced problems with her right knee. She testified that her knee was still very swollen, and she had problems walking to the washroom and staffroom. She testified that when she stood up, her knee would lock up. She testified that during the day she had to elevate her knee, and that when she put it back down, she could not bend it. She testified that whenever she stood up, it was usually a few minutes before she was able to walk. [20] On cross-questioning, the worker testified that she had been asked for her input regarding what accommodations were necessary, and that she had indicated to the employer that walking was a problem, as was working with high needs students, as she could not bend down to pick them up. She testified that she had also asked for support bars in the washroom, and a parking space closer to the door. She confirmed that the employer had followed her suggestions for accommodation. She testified that she was supplied with an adjustable chair, but that neither she nor the principal was successful in adjusting it. She testified initially after her surgery in 2000, she thought the surgery had been successful, but that nonetheless, the condition of her knee worsened. She testified that her doctor gave her pain medication, and that that bought time. She testified that she did not stop taking the medication for pain, but that her knee got worse in any event. [21] On January 23, 2002, Dr. McCall wrote a clinical note, indicating that the worker s knees continued to give her trouble. He stated: she has some very significant osteoarthritis in her knees, involving the medial compartment and patellofemoral joints. The only thing that is going to help this lady is bilateral knee arthroplasty. It sounds to me as if she is definitely heading that route and she is now requesting an opinion in regard to having that operation. [22] On March 5, 2002, Dr. J. Henning, orthopaedic surgeon, reported to Dr. McCall. Dr. Henning stated that she was seen with regard to right knee pain. He reported: Clinical evaluation shows both her knees to have varus alignment with the right definitely worse than the left. Movement in the right knee is from 2 degrees to 110 degrees with discomfort on movement. Grinding is noted on movement. Patellofemoral lateral

6 Page: 5 Decision No. 227/07 compartment tenderness noted. The medial compartment is quite tight with significant pseudo-instability not demonstrated. Tenderness over the medial joint is quite marked and no neurological deficit is noted. Some varicose veins are noted over the medial aspect of the right knee. Findings in the left knee are minimal other than for the varus alignment and mild discomfort over the medial joint line. X-rays that were available and further x-rays taken today, confirmed severe medial compartment osteoarthritis with moderate patellofemoral and lateral compartment osteoarthritis in the right knee and in the left knee. DISCUSSION: This patient s diagnosis is that of osteoarthritis of the right knee at 46. She is quite young to consider for total knee replacement and further conservative treatment will be attempted at least to buy some time. A counter force brace will be prescribed and physiotherapy will be employed again. [23] The worker testified that when Dr. Henning mentioned knee replacement surgery to her, she was not surprised, as Dr. McCall had already indicated to her that it would likely become necessary. She testified that she understood that Dr. McCall had sent her to Dr. Henning, as Dr. McCall did not perform this type of surgery. She testified, however, that her doctors were all keen to see her put the surgery off as long as possible, and that to delay it, she received physiotherapy, pool therapy, and undertook weight loss through Weight Watchers. When asked in cross-questioning why some reports stated that she had not wanted the surgery, she stated that her doctors had advised her that it was best to wait. She also testified, however, that she had felt the sooner the better. [24] A brace was prescribed and the worker began physiotherapy. The March 23, 2002 physiotherapy assessment report completed for the Board by the physiotherapist, R. Theocharis, stated that the worker was to avoid prolonged walking, standing, squatting and steps. [25] On May 30, 2002, Dr. Henning reported to Dr. Van Alphen: I followed [the worker] on May 30 th regarding her right knee pain. She still has marked discomfort in the right knee. She did not have any relief from her brace and found that the brace really could not fit adequately. Regarding her clinical findings, I refer you to her findings of March 5 th which have not changed significantly. I feel at this stage that the most advisable management is that of total knee replacement. [26] On May 31, 2002, Dr. Henning wrote: [The worker] has severe osteoarthritis medial compartment right knee and will benefit from working just 3 hours a day. [27] The worker provided the employer with a letter from her doctor in June 2002, requesting a reduction in hours to half-time. The request was approved, and the worker began working 3 hours per day, continuing with her modified duties, in September The Claims Adjudicator wrote to the worker on September 25, 2002, advising that the Board had received a report from Dr. Henning, advising that she had severe arthritis. The Claims Adjudicator advised that as in most cases arthritis is considered non-compensable, she was required to provide a detailed medical report as to why your current condition is related to your accident of June 29, 1999 and why it prevents you from the employment (sic) being made by your employer. [28] On September 23, 2002, Dr. Henning reported to Dr. Van Alphen:

7 Page: 6 Decision No. 227/07 I followed [the worker] on September 23 rd following her right knee pain. She continues to have severe discomfort in her right knee. She is unable to work normally at this stage despite pressure being placed on her by the work place to resume full normal work. She shows a ROM from 3 degrees to 90 degrees, marked varus alignment, marked limp due to discomfort. X-rays show significant tri-compartment osteoarthritis with a vacuum sign and osteophyte formation. The patient still does not want to commit herself to surgery. At this stage she most likely will not be able to do any normal days work and most likely will only be fit for sedentary type of work. Her best management will be that of total knee replacement but she has the right to decide on whether she wants that surgery or not. [29] That same day, Dr. Henning completed a Functional Abilities Form, stating that the worker could not tolerate standing or maintaining a specific position for an extended time. She shouldn t work more than 3 h/day with limitations as described. Dr. Henning indicated that the worker could stand for fewer than 15 minutes, sit for fewer than 30 minutes, should limit physical exertion to mild, and should work modified hours. Dr. Henning also indicated that the restrictions should remain in place until surgery. [30] The worker testified that at the time of her visit to Dr. Henning, her knee was getting worse, and she knew she would have to have a knee replacement. She testified that the pain was constant, and that her knee was swelling. She testified that she was experiencing a grinding sensation with walking. She testified that when she was at home during this time period, she elevated her foot, but that she experienced discomfort at home too. She testified that sometimes at home, she would lie on her stomach in order to take some pressure off her knee and obtain some relief. She also testified that when she was at school, the pain made it difficult for her to focus on her work. [31] On October 1, 2002, Dr. Henning reported to the Claims Adjudicator as follows: I saw the letter that you wrote to [the worker] on September 25 th regarding the relation between her current condition and the accident of June 29, This patient has osteoarthritis of her right knee. This was asymptomatic until the incident at work when she twisted her knee in Direct relationship between the arthritis and this injury most likely will be difficult to prove. The only issue is that she never had symptoms according to her prior to this accident. It is anyone s guess at which time she would have started symptoms from this arthritis but according to her it started directly after the accident. [32] On October 2, 2002, the worker wrote to the Claims Adjudicator, that on May 31, 2002, she had met with Dr. Henning, and that she was told to stay off her knee as much as possible to wait for surgery. She advised that a knee replacement was necessary, and that she had provided a doctor s note to the employer on June 2, 2002, requesting the accommodation of half-time work. [33] The Claims Adjudicator sought an opinion from the Board medical consultant, stating It would appear that the IW has provided (sic) suitable employment in keeping with the medical restrictions. If not for the bilateral osteoarthritis the IW would have been able to do a full day. On December 10, 2002, Dr. G. Cantlie of the Board wrote:

8 Page: 7 Decision No. 227/07 The issues in memo # 19 [memo from Claims Adjudicator, seeking opinion of Board medical consultant are essentially vocational and not medical. As noted previously she has non-compensable bilateral knee arthritis, only the right side was compensably aggravated. Obviously her overall precautions are going to be for the mix of comp and noncomp conditions. I had lost sight of the fact that claimant already *has* a PI for the rt knee as of NEL exam done 02 Aug 01, with a resulting 15% PI effective 17 Jan 02. At that time, range of the knee was from -10 degrees to 90 degrees, whereas latest detailed report of Dr. Henning from 23 Sep 02 indicates a range of-3 degrees to 90 degrees. Thus she is even a little better than at NEL exam, and NEL redetermination is not indicated at this time. [34] On December 18, 2002, the Claims Adjudicator wrote to the worker, stating that the medical consultant indicated that the worker s compensable condition had not worsened, but in fact, had improved. The letter noted that at the time of the NEL assessment, she had been able to perform modified work for 6 hours per day, and that as there was no deterioration in her compensable condition, the restrictions limiting her to 3 hours work per day were not related to her compensable injury, and her request for partial LOE as of September 2, 2002, was denied. [35] On January 12, 2003, Dr. Henning wrote to the Board, regarding the assertion that he had indicated that the worker s compensable condition was improving. Dr. Henning enclosed copies of the October 1, 2002 correspondence to the Claims Adjudicator, as well as a copy of the September 23, 2002 reporting letter to Dr. Van Alphen and the March 5, 2002 reporting letter to Dr. McCall. Dr. Henning stated: You will notice that on the clinical evaluation of 5 th the ROM was from 2 degrees to 110 degrees. On September 23 ROM was from 3 degrees to 90 degrees. This indicates 1 degree loss in extension and a 20 degree loss in flexion so the tone of my letters obviously indicates that her symptoms are deteriorating. [36] The medical reporting includes an Attending Physician s Statement dated January 14, The signature is difficult to read, but the document states that the worker was referred by Dr. John McCall, and therefore it appears to be a statement from Dr. Henning. It stated that the worker has pain that affects her to the point where she cannot meet the demands of her employment. It also indicates that the Patient doesn t want knee replacement at this stage. [37] On May 13, 2003, Dr. Henning referred the worker to orthopaedic surgeon Dr. Justin D. De Beer for surgery. The referring letter notes that for personal reasons, the worker indicated a preference for a different hospital for the surgery. The letter states She has tried postponing the operation as long as she could but has reached the point where she wants to proceed with total knee replacement. In a letter of that same date, Dr. Henning reported to Dr. Van Alphen that the worker had been referred to another orthopaedic surgeon for surgery, and that She has marked discomfort in her right knee and has reached the point where function has been limited to the point where she will consider knee replacement. [38] On July 7, 2003, Board medical consultant Dr. M. Chain reviewed the medical reporting on file, including the most recent progress notes from Dr. Henning indicating the need for a right knee replacement. Dr. Chain wrote:

9 Page: 8 Decision No. 227/07 This would suggest that the right compensable knee had then deteriorated and the knee aggravation of the underlying O.A. had worsened in severity, for a new NEL level after the surgery, with the partial LOI status, noting the right knee compensable injury was for the meniscus and the pre-existing O.A. had likely been aggravated. [39] The Claims Adjudicator wrote a memorandum to Dr. Chain, requesting further review and stating Claims wise would still maintain that surgery is required to improve a long term condition however would still maintain that condition prior to the surgery is for the most part non-compensable and therefore denial of partial LOE not in order (sic). On July 25, 2003, Dr. Chain responded, stating on further review, I concur with claims recommendation that IW s status prior to the surgery was predominantly from non-compensable condition with claims decision on the LOE (sic). [40] On September 8, 2003, the Claims Adjudicator wrote to the worker, advising that the decision to deny partial LOE pending surgery was confirmed, but that lost time following her surgery would be compensated, and that following her surgery, a new NEL assessment would be conducted. [41] The employer sought the opinion of orthopaedic surgeon Dr. Brian Alpert in a letter dated December 16, In particular, they asked him: whether the worker s request for a 3 hour work day was medically substantiated and whether it was reasonably related to her right knee disability alone ; whether there were any other factors that impact this reduced work day issue, i.e., such as the reported left knee problems ; whether her knee replacement surgery was a natural extension of the effects of the original accident and/or arthroscopy or is it related to other factors, such as the chondromalacia and osteo-arthritis. Dr. Alpert reviewed the worker s medical file from the Board. On January 21, 2004, Dr. Alpert responded, indicating that in his orthopaedic opinion, the worker could have worked 6 hours per day, provided that the claimant has been given appropriate modified work duties. He stated: Her physical restrictions, pending the right total knee replacement surgery would likely involve no prolonged standing, no prolonged walking, no climbing and no heavy lifting. The records from Dr. Henning indicate that the claimant would be able to perform sedentary type work and I would agree with that impression. I do not detect any orthopaedic contraindication to the claimant working 6 hours per day, performing sedentary or semi-sedentary duties. [42] He went on to indicate that in his opinion, there were no other factors that impact this reduced work day issue, noting that The medical records provided indicate that the claimant s main symptoms relate to her right knee osteoarthritis and that she has only minimal symptoms in her left knee. Regarding the relationship between her total knee replacement and her original accident, he stated: In my orthopaedic opinion, based on the review of the provided records, the total knee replacement surgery on the claimant s right knee is likely as a result of a combination effect of the original work-related accident on June 29, 1999, when the claimant was suspected of sustaining a degenerative tear of her medial meniscus cartilage, which acts as the shock absorber between the articular surfaces of the tibia and femur, associated with advanced osteoarthritis at that time, which had reportedly been asymptomatic previously, and the progressive anticipated deterioration of the marked osteoarthritis and significant chondromalacia patella, noted in her right knee.

10 Page: 9 Decision No. 227/07 [43] On February 9, 2004, Dr. Henning reported, after having reviewed the opinion provided by Dr. Alpert. He stated: There are some concerns regarding file review that was done by Dr. Brian Halpert (sic). Regarding the report by Dr. Halpert, I notice that his conclusion was that this patient s request for a 3-hour work day was not medically substantiated. In his response he reports that the claimant has been given appropriately modified work duties for a 6-hour work day. I quote the 5 th paragraph on the 3 rd page of his report the records indicate that at the time of the school year in September 2002 the claimant requested working 3 hours per day. I do not note any description of the so-called appropriate modified work duties that he refers to and I thus cannot comment on the correctness of that conclusion. It was my impression that no specific modifications in her duties were available. I do have on my records a note on May 31, 2001 (sic) where I have advised that according to my clinical impression this patient would benefit from working just 3 hours a day. As far as I am concerned, the conditions that justified the note dated May 31 st suggesting this patient will benefit form a 3-hour working day applied right through to the final time when she went for surgery with Dr. De Beer. [44] On February 10, 2004, Dr. De Beer reported, after having reviewed the opinion provided by Dr. Alpert. He stated: I would feel unfortunately that there is no clear point that I could really argue in your favour. The issue centres around one physician s opinion versus another and there really is no truly right or wrong answer. The issue of your ability to perform a six hour work day providing you have the ability to rest your knee appropriately during that time performing entirely sedentary work would not be unreasonable. Sitting with the knee flexed for prolonged period of time, however, would in my opinion likely have aggravated your knee symptoms because of the locked patellofemoral osteoarthritis that was present in your right knee. The ability to be able to change position and get your knee out of a position of flexion as needed during your work day would in my opinion influence the issue regarding three hours versus six hours but I am really not aware of the details in this regard. I am also not aware of any other factors that would impact on the reduced work day issue. Dr. Alpert was also of the opinion that your knee replacement surgery was ultimately likely a result of a combination effect of the regional work related injury that you sustained as well as, the pre-existing osteoarthritis which had been asymptomatic previously. I would be in agreement with this and would further state that it would appear that the injuries sustained clearly aggravated the status in relation to your right knee rendering you symptomatic and accelerating the ultimate need for total knee arthroplasty. [45] In a later medical opinion on August 18, 2004, following the worker s surgery, Dr. Cantlie stated She has clearly been below the prior NEL quantum since the decision was made to do the total knee replacement, now 8 months ago. [46] On November 4, 2004, the employer wrote to the Board, providing further information regarding the modified duties given to the worker from September 2002 to December The correspondence provided information from the principal at the worker s school: [The worker] worked in a grade 4/5 classroom, which is in the front hall of the school. She didn t have to walk to the back of the school at all. She did not do any outside supervision duty. She was as often as possible, seated to work with a down syndrome child in grade 4. I did not give her work that involved a lot of standing. She relieved

11 Page: 10 Decision No. 227/07 some of the educational assistants in the primary grades but generally did so at times when it meant she could sit beside a primary child to work with her rather than have to do any kind of bending (such as helping children with snowsuits). She was not assigned any duty that required her walking to or from the bus with children or accompanying the children to the gymnasium. I minimized movement between classes for her. These modified duties are a continuation of the accommodations put in place in May 2001 to restrict weight bearing, climbing and squatting with subtle changes made whenever the worker asked for further accommodation. (iv) Submissions of the Worker s Representative [47] The worker s representative submitted that based on the medical documentation of deterioration of the worker s knee condition, she needed to have her work day reduced to 3 hours in September She noted that Dr. Van De Beer s letter of February 10, 2004, had stated that sitting with the knee flexed would aggravate her condition, and that her modified work had required her to sit. She also noted that the worker had worked 6 hours per day, pre-accident work, after her first surgery, and that in March 2001, Dr. McCall indicated that her pain was continuing and that she needed to reduce her hours by half. [48] She noted that according to Dr. Henning s January 12, 2003 report, the worker s condition had deteriorated. The representative noted that even with a deteriorating condition, the worker remained at work. She submitted that the January 23, 2002 note of Dr. McCall and the March 5, 2002 report of Dr. Henning indicate that the worker s knee continued to give her problems. She noted that Dr. Henning s May 30, 2002 report indicated that the worker was having marked discomfort in the right knee. She noted that the FAF of September 23, 2002, noted that the worker had restrictions on standing and sitting, and that she could not do these for prolonged periods. She noted that on May 13, 2003, Dr. Henning referred her to Dr. De Beer, stating that she has reached the point where she wants to proceed with total knee replacement. She submitted that the medical reporting supports the fact that the worker was not improving. She allowed that the worker had osteoarthritis, but stated that it had been accepted that the workplace injury played a role in escalating the osteoarthritis in the right knee. [49] She submitted that it was not unreasonable for the worker s doctor to seek relief for the worker in September 2002 until her knee replacement. She noted that according to Operational Policy Manual (OPM) Document # , a worker is eligible to receive benefits while cooperating in their medical rehabilitation and in the ESRTW process. She submitted that the worker was cooperating with her medical care, and that partial LOE should be allowed for the period September 2002 to December (v) Submissions of the Employer s Representative [50] The employer s representative commenced his submissions by stating that the worker is a long-term, valued employee. He stated that though the worker s testimony regarding certain dates had been vague, credibility was not an issue in this case. He stated that it was accepted that she had had a compensable accident in June 1999, that she had required surgery related to the injury after one year, and that she had required additional surgery in December 2003, and that she had a permanent impairment as a result of her workplace accident. [51] He noted that the worker s pre-accident job involved a considerable amount of walking, squatting and knee bending, as the worker was assigned to work with young children. He

12 Page: 11 Decision No. 227/07 submitted, however, that when the need for accommodation was brought to the employer s attention in the spring of 2001, the employer was responsive. A meeting was arranged with the principal, the worker s suggestions were solicited, and a modified work plan was devised to address the worker s restrictions on squatting, knee bends and walking. Further, he submitted, that the employer s correspondence indicates that the worker s input was welcome, she was given the opportunity to mention any problems as they occurred, and the employer was prepared to make any further changes necessary. He noted that this was the same work plan in place throughout the period of time which is the subject matter of this appeal. [52] He noted that according to the June 6, 2001 report of Dr. McCall, the worker was capable of full-time work, and she had full range of movement. He noted that according to Dr. Henning s September 23, 2002 report, the worker s need for surgery was confirmed, but it was stated that she did not wish to commit to surgery at the time. He submitted that this was somewhat at odds with her testimony at the appeal hearing, and that it indicates that the worker herself was not in a big hurry to have the surgery done at that time. He noted also that on May 13, 2003, Dr. Henning stated that the worker had tried postponing the surgery as long as she could. He submitted that according to this medical reporting, form September 2002 through 2003, she had a serious knee problem and required surgery to fix it, but that there was some indication that she did not fully co-operate in order to bring her condition to a speedy resolution she did not agree to surgery until the condition was very severe. [53] He noted that according to Dr. Alpert, the worker could have performed 6 hours per day of modified work in the period under appeal. He noted that in responding to Dr. Alpert s opinion, Dr. Henning indicated that he had not been aware of any job modifications. The representative submitted that had he been aware of the modifications put in place by the employer, he likely would have supported a 6 hour work day for the worker. [54] He noted that in Dr. De Beer s February 10, 2004 correspondence, he stated that a 6 hour work day with the opportunity to rest the knee appropriately and performing only sedentary work would not be unreasonable. [55] He submitted that medically, there was support for the worker s ability to work a 6 hour work day. [56] The representative submitted, by way of alternative, that the worker was able to work for 6 hours per day until her knee condition was so bad that she was prepared to proceed with surgery. He submitted that this may be an indication of deterioration of her condition. He stated that according to the reporting on file, that appears to have happened approximately May 2003, and that on that basis, partial LOE may be in order from September 2003 (noting that the worker does not work during the summer) until the end of the year, when the worker had her total knee replacement surgery. (vi) Law and Policy [57] The accident occurred on June 29, 1999, and the relevant legislation is the Workplace Safety and Insurance Act.

13 Page: 12 Decision No. 227/07 [58] Section 43 of the Act provides for compensation for loss of earnings: 43.(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). [59] The Board has confirmed that the following policy packages, revision #7, would apply to the subject matter of this appeal: Package #183 Early and Safe Return to Work & LOE Benefits Package #300 Decision Making/Benefit of Doubt/Merits and Justice The policies have been reviewed and considered as appropriate. (vi) Analysis [60] The Panel finds that the worker is entitled to partial loss of earnings (LOE) benefits from September 2002 to December In making this finding, we note at the outset that the employer was very responsive to the worker s need for modifications. Initially, they made 3 hour per day work available to the worker performing her pre-accident duties. Once it was made known to them that she could work a full week if duties did not exceed her restrictions, they did not delay in calling a meeting in early May At that meeting, they asked for and listened to input from the worker regarding the challenges she was experiencing in performing her pre-accident duties. Changes were made in order to meet the difficulties she was having. Her assignment was changed, walking was minimized, and she was not required to do outside supervision duties. Correspondence from the employer indicates that the principal made changes after the meeting, as the worker indicated the need for further modifications. The individual at the employer responsible for WSIB did not shelve the worker s problem after the meeting. She made follow-up telephone contact to monitor the success of the modifications. She was led to believe that the modifications were successful, and indeed in her evidence before us, the worker did not indicate any dissatisfaction with the modifications made by the employer, other than the fact that she could not adjust her chair. She indicated that she was no longer assigned to students with behavioural disorders, she was no longer required to follow students around the school, students came to her for help, she was free to elevate her leg through the day, and she did some walking to the staffroom, at her option. She testified that at the May 2001 meeting, her views had been sought and included in the design of modifications. The worker did testify that through this period, she continued to experience pain and discomfort, but did not indicate any further modifications which could have been made by the employer to alleviate her discomfort at work. Her primary concern was to have the opportunity to work half days as of September 2002, as the pain made it difficult for her to concentrate on her work, and at home she would have the ability to find more comfortable positions.

14 Page: 13 Decision No. 227/07 [61] The worker was followed by orthopaedic surgeon Dr. McCall commencing in June At that time, she was working 6 hours per day, performing her pre-accident duties. Her pain continued and he performed an arthroscopic debridement in the summer of In the autumn of 2000, she was back at work, 6 hours per day, performing her pre-accident duties. In his reporting from that period, Dr. McCall indicates that there was improvement, and no further effusion in the knee. She was walking without much difficulty and had full range of motion. [62] In January 2001, however, it was noted that she was experiencing knee pain, and reduced hours were recommended by the worker s doctor. The employer was responsive to this, and provided the worker with part-time work. In his March 7, 2001 report, Dr. McCall suggested that the reduced hours should be continued until September It is clear, therefore, that at this time, Dr. McCall expected that the worker s condition would improve, as he did not recommend a permanent reduction in hours. There was no discussion of surgery at this time. In the interim, however, a modified work plan was devised in order to permit the worker to work 6 hours per day. [63] At the time of the NEL assessment in September 2001, the worker was performing her 6 hour per day assignment of modified work. There was no discussion of surgery at this time. She did advise the assessor, however, that her pain was increasing over time. [64] By January 2002, however, Dr. McCall s clinical note indicates that he felt she was heading that route to bilateral knee arthroplasty. He still did not indicate that it was imminent, but it had clearly become a serious option, and he indicated that the worker was now requesting an opinion in regard to having that operation. We find that this indicates that the worker s condition was worsening. The employer has submitted that the worker delayed her own recovery by delaying surgery. We note, however, that the referral to a doctor who performed knee replacement surgery, according to the notation from Dr. McCall, appears to have been at the worker s initiation. The worker testified that Dr. McCall referred her to Dr. Henning because Dr. McCall did not perform that kind of surgery. [65] The worker has testified that her doctors were not keen on her having surgery immediately, and that she understood that it would be better if she could delay knee replacement. This is consistent with the remarks made by Dr. Henning in his March 5, 2002 report to Dr. McCall, wherein he stated that She is quite young to consider for total knee replacement and further conservative treatment will be attempted at least to buy some time. A counter force brace will be prescribed and physiotherapy will be employed again. He noted that she had movement from 2 degrees to 110 degrees with discomfort from movement in the right knee, grinding was noted on movement, and tenderness in the patellofemoral lateral compartment and over the medial joint. The worker co-operated with the treatment measures prescribed, did not find the brace useful, and participated in physiotherapy. We also note that she undertook a program of weight loss, in order to delay surgery. [66] Later that spring, however, Dr. Henning came to the conclusion that the surgery was the most advisable management. In his report of May 30, 2002, he stated that there had not been any change to clinical findings since March During this time period, she was performing 6 hours per day of modified work. While according to later correspondence, it is clear that Dr. Henning was not aware that modified work was available, in May 30, 2002, while she was in

15 Page: 14 Decision No. 227/07 fact performing modified duties, after assessing her condition he came to the conclusion that she should have reduced hours at work. We conclude from this that even though he was not aware of the exact demands being made on her at work, his assessment was that she was not capable of continuing to do whatever she was doing at the time on a full-time basis. This is supported by the report made by Dr. Henning following his review of Dr. Alpert s report, which referenced modified work. In his February 9, 2004 report, Dr. Henning stated: I do have on my records a note on May 31, 2001 where I have advised that according to my clinical impression this patient would benefit from working just 3 hours a day As far as I am concerned, the conditions that justified the note dated May 31st suggesting this patient will benefit from a 3 hour day applied right through to the final time when she went for surgery with Dr. De Beer. [67] Additionally, the FAE completed by Dr. Henning on September 23, 2002 indicates that she should not work more than 3h/day with limitations as described. The limitations he had described were restrictions on the length of time she could spend sitting and standing. He indicated that these restrictions would be in place until surgery. We find that in stating that the worker should not work more than 3h/day with limitations as described, whether he was aware of the availability of modified work or not, Dr. Henning was providing the opinion that even with modifications to meet her restrictions, the worker should only work 3 hours per day. Accordingly, we interpret his opinion to mean that even had he been aware of the availability of modified work, he would have recommended that the worker work 3 hours per day only. [68] By the autumn of 2002, Dr. Henning s opinion continued to be that Her best management will be that of total knee replacement, though there is an indication at this point that the worker herself was not ready. In his September 23, 2002 report, he commented: The patient still does not want to commit herself to surgery. According to his January 12, 2003 letter to the Board, at this September 23, 2002 visit, he noted a deterioration in the worker s condition when compared to what he had observed in March and May, [69] In his reporting of January 14, 2003, Dr. Henning stated that the worker was having pain that affects her to the point where she cannot meet the demands of her job, though he did not indicate that the worker should work 3 hours per day. We note, however, that other reporting from Dr. Henning indicates that he felt that the accommodation of 3 hours per day at work respecting her restrictions should be in place until the worker had surgery. [70] At some point between January 2003 and May 2003, a decision was made to refer the worker to a specialist at another hospital in order to have the knee surgery performed. This indicates that though she had previously been hesitant, the worker was ready to have the surgery performed, as the only reason for the referral was that the worker would not have surgery at the hospital where Dr. Henning had privileges. By May 2003, when referring her to Dr. De Beer, Dr. Henning noted that She has tried postponing the operation as long as she could but has reached the point where she wants to proceed with a total knee replacement. [71] While the employer has submitted that the worker delayed her recovery, we find that until May 2002, Dr. Henning was fully supportive of the delay, given the worker s age. At May 2002, his reports speak more clearly about the necessity for surgery. At some point between January 2003 and May 2003, it appears that the worker had relented, and had indicated