SUMMARY DECISION NO. 633/95. Continuing entitlement.

Transcription

1 SUMMARY DECISION NO. 633/95 Continuing entitlement. The worker suffered knee and ankle injuries in 1980, 1981, 1982, 1983 and The worker appealed a decision of the Hearings Officer denying entitlement after November 1984, including entitlement for surgery. The Panel accepted the opinion of a Tribunal medical assessor that the worker's ongoing disability was related to the compensable accidents. The assessor explained how the knee pathology could take time to evolve and be clinically visible in the form of a degenerative meniscal cyst and how it might not have been seen on arthroscopy examinations. The Panel also accepted the assessor's opinion that two of the accidents likely caused damage and tearing to the lateral collateral ligament, resulting in instability and requiring surgical correction. The appeal was allowed. [8 pages] DECIDED BY: Sandomirsky; Lebert; Jago DATE: 12/02/98 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 633/95 [1] This appeal was heard in Toronto on September 1, 1995, October 1, and November 28, 1996, by a Tribunal Panel consisting of: J. Sandomirsky : Vice-Chair, W.D. Jago : Member representative of employers, R.J. Lebert : Member representative of workers. The post-hearing process was completed on June 17, THE APPEAL PROCEEDINGS [2] The worker appeals the Hearings Officer decision dated August 15, That decision denied him ongoing entitlement to compensation benefits subsequent to November 4, The worker requested a reconsideration of that decision, which the Hearings Officer denied on April 5, [3] At the first day of hearing, the worker appeared with his representative R. Cousineau. Subsequently, the worker was represented by D. Wilkin, a lawyer with the Industrial Accident Victims Group of Ontario. The employer was notified of the hearing and elected not to participate. THE EVIDENCE [4] The Panel reviewed the Case Description and Addendum #1. [5] The first day of hearing was adjourned after we began to hear the worker s evidence. The Panel decided to adjourn the hearing for a number of reasons. First, the hearing was delayed due to Mr. Cousineau s late arrival at the Tribunal. Second, when the hearing did get underway, Mr. Cousineau raised a number of concerns, including the use of a transcription machine rather than a court reporter and the organization of the Case Description materials. Third, during the course of the proceedings, Mr. Cousineau was argumentative and rude with the Panel. After taking a break to discuss Mr. Cousineau s handling of the case, the Panel advised him that if he continued to conduct himself in that manner it would be difficult to continue to hear the case and we would entertain a request for an adjournment. Mr. Cousineau consulted with his client, and requested an adjournment, which the Panel granted. [6] Prior to reconvening the hearing on October 1, 1996, Mr. Wilkin began to act as the worker s representative. Mr. Wilkin advised the Panel that the worker was then living in Newfoundland, and, although he planned to attend the hearing, he had suffered an acute emotional episode and would require an escort to travel to Toronto due to his emotional and physical condition. A few days later, Mr. Wilkin advised the Panel that the worker was unable to attend the hearing and he undertook to try to provide us with an affidavit setting out the worker s testimony.

3 Page: 2 [7] At the hearing on October 1, 1996, Mr. Wilkin submitted a medical report from Dr. J.T. Young, dated September 25, 1996, which we marked as Exhibit #3. Mr. Wilkin then outlined the nature of the worker s case. It appeared to the Panel that credibility may be an issue and we decided to reconvene the hearing on November 28, 1996, so that the worker could participate by telephone. [8] At the hearing on November 28, 1996, the Panel heard evidence under oath from the worker and submissions from Mr. Wilkin. [9] Subsequent to the hearing, the Panel requested a review of the file by a medical assessor. We received two Post-Hearing Addenda, which included a report from Dr. M.A. Simurda, dated March 25, Mr. Wilkin provided us with post-hearing submissions on dated June 11, 1997, which were forwarded to the Panel on June 17, THE ISSUE [10] The worker claimed entitlement to ongoing temporary compensation benefits on the basis that his right foot, ankle, and knee disabilities continued to disable him from working after November 4, THE PANEL S REASONS (i) Claim history [11] The worker suffered four compensable accidents. The first accident occurred on May 26, 1980, while working as a driver/helper on a tractor trailer. The injury was caused by the collapse of a flat roller, which struck the top of the worker s right knee. The only medical report regarding this accident was an x-ray dated May 27, 1980, which showed no evidence of fracture or dislocation. The worker returned to his regular work on June 3, He testified that he continued to have pain in his knee after this accident when it was wet or cold, or he had a particularly hard day at work. [12] On October 19, 1981, the worker had another accident when he fell while carrying a load out of a van. Again the only medical report regarding the accident was an x-ray that was reported to show no evidence of fracture or dislocation. The worker returned to work on October 29, He laid off again with knee complaints in May 1982, and the Board reopened the claim for a recurrence. The worker s family doctor reported that the worker had pain and swelling, and speculated that he may have a torn cartilage. [13] The worker was assessed by Dr. D.J. McGonigal, an orthopaedic surgeon, who considered the possibility of a contusion to the undersurface of the patella and some minor chondromalacia. Dr. McGonigal did not think the worker s condition was significant enough, however, to warrant further investigation and recommended a return to work. Two months later the worker continued to experience pain and was assessed by Dr. S.J. Cartan, another orthopaedic surgeon. Dr. Cartan elected to perform an arthoscopy, which was reported to be normal and the worker returned to work on October 4, 1982.

4 Page: 3 [14] The worker had another accident on May 16, This accident occurred when he was walking down steps and his right foot went over sideways causing him to fall and strike the outer edge of his foot on the ground. The worker was diagnosed with a transfer fracture of the base of the fifth metatarsal and significant displacement at the fracture site. Dr. McGonigal treated the worker and applied a cast. After the cast was removed, the worker continued to have trouble with his right ankle, especially on uneven ground. [15] The worker attempted a return to work on August 2 and 3, and laid off again due to continued discomfort. He saw Dr. McGonigal again on September 1, 1983, who reported that the fracture was not healing properly. By October 13, Dr. McGonigal reported that the worker s foot was healing nicely, and he could return to work on November 14, A report from the worker s family on the same day noted that this was a very unusual case - slow to heal fracture. [16] The worker returned to work on November 14, 1983, but he continued to experience limitations caused by his ankle disability. He also began to have problems with stiffness and pain in his right knee. [17] On June 28, 1984, the worker had another accident, which resulted in a fracture of the fifth metatarsal. The accident occurred when he stepped out of the cab of his truck and his right foot gave way. Again he was treated by Dr. McGonigal. [18] The worker was examined at the Board on November 2, 1984, and his benefits terminated after the doctors concluded there was no objective physical findings with respect to either the right foot, ankle or knee that prevented him from returning to his regular work. The worker attempted to return to work, but laid off again after three days claiming that he was too disabled to continue. [19] The worker s family doctor referred him to Dr. P.A. Vaughan, for another orthopaedic assessment. Dr. Vaughan examined the worker on December 18, 1984, January 22 and February 25, 1985, regarding his right knee and ankle problems. Dr. Vaughan performed an arthrogram, which was reported to be completely normal. He also reported that he found no objective evidence of any instability of the ankle. [20] The worker also saw Dr. Cartan again, and he performed an arthroscopy of the right knee in July The operative report noted that the findings were not significant, and would not be productive of symptoms. [21] The worker claimed that he continued to have problems with his left ankle and knee. A medical review of the claims by Dr. B. Doyle, the Board s senior surgical consultant, concluded that the record established that the worker was prone to widespread frequent complaints, which received no substantiation after repeated investigations by different doctors. [22] In October 1986, Dr. J.D. Shortt performed an Evans tenodesis of his right ankle and surgery to remove a cystic lesion. The worker experienced relief from pain after the surgery, and returned to work on April 17, [23] Dr. E. Macfarlane, the Board s orthopaedic consultant, reviewed the reports from Dr. Shortt. He noted that there was little comment about right ankle instability, and was of the view that it was unlikely that an undisplaced fracture at the base of the fifth metatarsal would stress the lateral aspect of the ankle enough to produce instability at a later date, without it being apparent that the patient damaged

5 Page: 4 the ligament. Dr. Macfarlane concluded that it was very difficult to relate the 1986 ankle surgery to the 1983 accident (without commenting on the relationship with the 1984 accident). He also noted that a cyst on the lateral meniscus usually denoted degeneration, which was not found when the knee was examined. Dr. Macfarlane stated it was possible that the cyst was related to the knee accidents, but it was questionable that it would be disabling. (ii) Post-hearing evidence [24] Subsequent to the hearing, the Panel arranged to have the file reviewed by a Tribunal assessor. We asked Dr. Simurda to address the question of the relationship, if any, between the worker s compensable knee and ankle injuries and the surgery performed by Dr. Shortt. And, if Dr. Simurda concluded that there was a relationship, the Panel asked for his opinion on the likelihood that the worker was disabled by the injuries prior to the surgery in [25] Mr. Wilkin also provided the Panel with submissions setting out his medical theory of the case. Mr. Wilkin submitted that the reports from Dr. Shortt supported a finding that the worker not only suffered an inversion injury to his foot in 1983, but may have torn the lateral ligament at the same time, and that the inversion injury in 1984 produced a recurrent problem with subluxation of the ankle due to laxity of the ligaments, necessitating the 1986 surgery to correct the problem. Mr. Wilkin submitted further that Dr. Shortt s conclusions were supported by the mechanism of the injury and the worker s report of symptoms. [26] After a complete and thorough review of the worker s accident histories and medical treatment Dr. Simurda concluded the following: In summary [the worker] reports injuries to his knee and right ankle. These injured regions remain variably symptomatic, and at times totally disabling to the patient. The complaints of pain in these regions have been consistent over a period of time. The clinical complaints gradually became associated with an identified cyst on the lateral aspect of his knee, tenderness and ligamentous laxity about the lateral collateral ligament of his ankle. Surgery to these two identified pathologies gave the patient subjective relief. It is true that examinations of his areas of complaints have for most times identified no or undetected pathology. This included examinations performed by Dr. Gordon Hunter on behalf of the Board and Dr. Doyle and McFarlane who have examined this patient at the Board and Drs. McGonigal, Cartan, etc. With time as the pathology evolved, findings about the lateral knee and ankle became evident. Injuries to menisci are classically noted to occur as a result of forced rotational varus valgus, flexion strain to a knee joint, such as the patient suffered. As a consequence of such injury, various severities of injuries to the meniscal structures can occur. The knee meniscus can be severely pinched between the condyles and the femur and tibis. This can produce local tenderness and pain which can result or initiate a degenerative insubstance lesion within the meniscus. This produces degeneration within the meniscus structure and gradual and increasing pain. Such insubstance degeneration of the meniscus weakens the integrity of the meniscus. As a consequence cleavage tears insubstance of the meniscus can occur. In addition, various tears across the substance (radial) of the meniscus or along the periphery of the meniscus (bucket handle) and flap tears can occur. Degenerations of the meniscus and tears of the meniscus produce cysts arising from the periphery of the meniscus. The symptoms of degenerative cysts are initially local pain aggravated by activity, fluctuating in intensity with periods of relatively no symptoms and period of increased symptoms. Acute pain, difficulty walking, buckling

6 Page: 5 of the knee, episodes of catching, locking can occur. Gradually a cystic swelling becomes manifest along the joint line outside the knee joint. The swelling itself gets larger and smaller from time to time behaving similar to a ganglion on the dorsum of the wrist in symptoms and development. If such a patient is arthroscoped pathology may not be seen on the surface of the meniscus itself. The degeneration may be in substance at the peripheral attachment or a cleavage tear in substance and not be seen on arthroscopic examination. The cyst occurs outside the knee joint but a connection or a passageway small in size does not connect to the meniscal substance. If the meniscus cyst is recognized clinically and arthroscopic examination is done to determine whether this is associated with a visible tear of the meniscus, resection of a portion of the meniscus and drainage of the cyst through the arthroscope can be accomplished. As mentioned however a lesion of the meniscus can be present and not noted on arthroscopic examination.... Reviewing all the medical documentation, it is my conclusion that this man had persistent symptoms of knee pain caused by an internal derangement of the knee that he suffered when the flat roller collapsed on his knee subjecting the knee to flexion, rotation, etc. strain. This initiated pathology which took some time to evolve and be visible clinically in the form of a degenerative meniscal cyst probably associated with an insubstance injury of the meniscus which would not be seen on arthroscopy examination. The symptoms waxed and waned in intensity. There were no clinical signs or they were minimal and missed until sufficient time lapsed. Although after each injury he was able to return to work, his history and records pretty clearly demonstrate that he had persistent and ongoing complaints. As the pathology progressed, records and loss of time indicate ongoing and worsening of symptoms and disability until appropriate surgery was performed on his knee. With reference to his ankle/foot symptoms and disability, I refer back to the injury of Oct. 19, At that time this man went over acutely on his right ankle, suffered a very acute pain throughout the length of his right leg and subsequent after pain described as a sore leg confirmed by the fact that when he reported to the emergency of the Etobicoke Hospital he had x-rays taken both of his right ankle and right knee. He returned back to work on Oct. 27, 1991 (sic 1981). He stated that he continued to experience ongoing symptoms in his knee and ankle. This was confirmed in a report dated May 13, 1982 by Dr. D.W. Storey. He was advised to remain off work because of complaints of ongoing pain. On May 13, 1983 he took a misstep?, slipped?, or possibly had his ankle give out that caused him the accident on the steps that resulted in him landing hitting the ground with the outside border of his right foot. This resulted in an undisplaced fracture of the base of the 5th. right metatarsal. This was slow in healing and he continued to experience protracted symptoms about his foot and ankle being disabled from returning back to work for approximately six months. This is a protracted period of time. One of the explanations is that he had more than just a fracture on the 5th. metatarsal. However, I cannot be absolutely certain that there was no residual disability in the lateral collateral ligament of the ankle on the basis of the Oct. 18, 1981 injury or whether he injured his lateral collateral ligament in addition or from the fracture of the 5th. metatarsal on May 16, Unlike Dr. McFarlane, I believe that as a result of an injury multiple structures could be damaged. The fact that he had suffered an avulsion fracture caused by the pull of the peroneus brevis tendon attached to the base of the 5th. metatarsal when the foot was forcefully inverted and the tendon was forcefully stretched causing a fracture to occur, the inversion force and the degree of the displacement of the foot was such that

7 Page: 6 not only would such an avulsion fracture occur but damage tearing to the lateral collateral ligament could also occur. Although the fracture healed slowly, protracted symptoms were present and because of the proximity of the fracture in the base of the 5th. metatarsal to the location of the lateral collateral ligament at the tip of the lateral malleolus of his ankle, the swelling and diffuse tenderness that would be present from the fracture could have masked and hidden an associated injury to the lateral collateral ligament. Certainly his recorded history indicates increased and ongoing symptoms about the lateral aspect of the foot, now also around the ankle and the tendo achilles after the May 16, 1983 injury. It was only on the repeated examinations and after a significant lapse of time that symptoms and findings were localizeld to the region of the lateral collateral ligament and findings of tenderness about the collateral ligament were identified by Dr. Vaughan and reported on Dec. 13, 1984 and subsequently by Dr. Shortt in his report of Oct. 30, The possibilities of such an injury based on the history given by the patient were confirmed in a report by Dr. James Waddell, an Orthopaedic Surgeon. Sprains/tears of lateral collateral ligament of the ankle is (sic) often associated with instability of the talus within the ankle mortise. If this diagnosis is suspected stress views of the ankle might have to be performed under a general anaesthetic to demonstrate the instability of the talus within the ankle mortise. By careful examination such instability can be demonstrated by clinical examination alone. Such instability can be produced by scar in the ligament or laxity of the ligaments. Dr. Jim Shortt, eventually wound up operating on this ligament and reconstructing it by a popular method of repair, an Evans tenodesis. A lateral meniscus cyst was also excised. This patient did not bounce back quickly after his surgeries but he reported relief of symptoms and disabilities performed by the operation that Dr. Shortt performed. This would tend to substantiate that the lateral meniscus cyst and pathology in the lateral collateral ligament were the basis of his prolonged ongoing complaints. Instability of the ankle joint arises not just from tearing and healing of the ligament with excessive length causing the laxity of the ligament but from scar tissue alone in the substance or about the lateral collateral ligament without any elongation as a result of injury. It is my conclusion based on the strains that this man had in his right knee and right ankle that the first compensable injury in this claim was responsible for his knee injury and that either the second or the second and third compensable injuries in this claim are responsible for his ankle disability. Ongoing symptoms were present within the knee and the ankle of variable severity. The natural history of such injuries is the gradual increase of symptoms for a period of time before the specific problem is identified. I feel that this man has entitlement up to the time that he was rehabilitated and declared fit for work after his surgery dated Nov. 24, It would also be my opinion that future claims pertaining to his right knee and ankle are possible on the basis of symptoms from the lateral meniscus itself or from possible degenerative changes from the ankle or foot. [27] After reviewing this report, Mr. Wilkin submitted that the Panel ought to give Dr. Simurda s opinion greater weight than those contrary opinions. He supported this submission by noting Dr. Simurda s detailed descriptions of the accidents and symptoms suffered by the worker, the medical explanation for the apparent absence of significant objective findings over the years, and the resulting lengthy delay in obtaining a proper diagnosis and surgical treatment for the worker s disability.

8 Page: 7 (iii) The Panel s findings [28] The issue before the Panel is the worker s entitlement to compensation benefits subsequent to November 4, 1984, including the surgical procedures and post-operative recovery period. The worker claimed that he was unable to continue to work because of his ankle and knee disabilities, and that his condition did not improve until after the surgery performed by Dr. Shortt in [29] The Board denied the worker s claim on the basis of opinions from Dr. Doyle and Dr. Macfarlane. The Board concluded that the preponderance of medical evidence did not establish the presence of a compensable right foot, ankle and knee disability that prevented the worker from remaining at his pre-accident employment. [30] The Panel found very little inconsistencies between the worker s report of the accident and the documents on file. Although the medical investigations prior to 1986 discovered few objective physical findings to explain the worker s ongoing complaints of pain and instability, the Panel accepted Dr. Simurda s explanation for the lack of physical findings. Dr. Simurda was of the opinion that the knee pathology, which took some time to evolve and be visible clinically in the form of a degenerative meniscal cyst, may not be seen on arthroscopy examinations. It was his view, however, that the worker s persistent symptoms of knee pain were related to an internal derangement of the knee caused by the 1980 accident. Dr. Simurda also concluded that the 1981 and 1983 accidents likely caused damage and tearing to the lateral collateral ligament, resulting in instability and requiring surgical correction. [31] The Panel accepts the thorough medical analysis contained in Dr. Simurda s report, and concludes that the worker continued to experience a disability related to his compensable accidents after November 4, Therefore, he was entitled to benefits for the period he was unable to work as a result of his compensable disabilities, for the surgery performed by Dr. Shortt in October 1986, and for the period of recovery to April 17, 1987, when he returned to work THE DECISION [32] The worker s appeal is allowed. DATED: February 12, 1998 SIGNED: J. Sandomirsky, W.D. Jago, R.J. Lebert