WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1417/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1417/12 BEFORE: S. Martel: Vice-Chair HEARING: July 9, 2012 at Toronto Written DATE OF DECISION: September 5, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1978 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated January 28, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate In-house WSIB Claims Supervisor N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1417/12 REASONS (i) Introduction [1] The employer appeals the decision of the Appeals Resolution Officer (ARO) dated January 28, 2011, which denied Second Injury and Enhancement Fund (SIEF) relief in the worker s claim. [2] The employer is seeking SIEF relief in respect of the worker s claim for a December 14, 2007 right ankle injury when she twisted her ankle while standing up from a kneeling position with a case of baby food jars weighing pounds. If the Tribunal allows SIEF relief, the employer is also seeking a retroactive manual recalculation of its experience rating record. [3] The Tribunal appeal proceeded in writing. I considered the case materials, which included the employer s written submissions found in Addendum No. 2. (ii) Background [4] The worker worked as an overnight stocker for a retail sales company. On December 14, 2007, then 23 years old, she twisted her ankle while standing up from a kneeling position with a case of baby food weighing pounds. She attended the emergency department. She had ongoing pain and swelling. She returned to work but with accommodations for her right ankle. The Board paid partial loss of earnings (LOE) benefits from January 7 to April 28, The worker had recurring symptoms during another episode at home in early May The Board accepted entitlement for the recurrence and paid further LOE benefits from August 9 to 16, It appears that the worker continued to work modified duties until July 3, She was then assessed at the Toronto Western Hospital WSIB Foot and Ankle Specialty Program and eventually underwent surgery for her right ankle: right ankle ligament reconstruction ATFL and CFL and arthrotomy for removal of loose body right ankle. The preand post-operative diagnosis was right ankle instability with avulsion fracture of ATFL and loose body ankle joint. The worker s recovery was complicated by symptoms of complex regional pain syndrome. The worker was scheduled to return to work in July [5] On August 28, 2009, the employer wrote to the Board to request SIEF relief. A Board Case Manager denied the employer s request in a letter dated September 30, The employer objected on December 1, The employer then obtained access to the worker s claim file and made written submissions in support of its request for SIEF relief on October 26, The Case Manager again denied the request for SIEF relief on December 7, 2010 and referred the employer s objection to the Appeals Branch. The ARO decision of January 28, 2011 confirmed the SIEF denial. The employer appealed to the Tribunal in May In support of its appeal, the employer relies on its written submissions of October 26, 2010 made to the Board as well as additional submissions made to the Tribunal on January 10, (iii) Board policy, SIEF [6] Operational Policy Manual (OPM) Document No entitled Second Injury and Enhancement Fund (SIEF) provides in part: Policy If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing

3 Page: 2 Decision No. 1417/12 condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Guidelines The objectives of this policy are to provide employers with financial relief when a preexisting condition enhances or prolongs a work-related disability. It thereby encourages employers to hire workers with disabilities. Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. Entitlement Adjudication In no lost time, lost time, permanent impairment and fatal claims, the decision to extend relief from the SIEF is usually made at the time of entitlement adjudication, or as soon as it is recognized that aggravation of a pre-existing condition is contributing to the costs of the claim. When reviewing medical and other information present in the claim file, the decisionmaker considers whether the information suggests that a pre-existing condition is present and whether it - contributed to the work-related accident, or - prolonged or enhanced the work-related disability. The policy also provides a table of relief as follows: Medical Significance of Pre-existing condition* NOTES Severity of accident** Percentage of cost transfer*** 50% 25% 0% 75% 50% 25% 90%-100% 75% 50% * The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist. With psychological conditions, the possibility of prior psychic trauma resulting from life experience could be considered as evidence of vulnerability, and justify recommending relief to the employer, even in the absence of pre-existing psychological impairment. ** The severity of the accident is evaluated in terms of the accident history and approved definitions. Accident History Components mechanics (life, push, pull, fall blow, etc.) position (kneeling, standing, sitting, squatting, bending, etc.)

4 Page: 3 Decision No. 1417/12 environment (lighting, temperature, weather conditions, terrain, etc.) Definition - Severity of Accident : expected to cause non-disabling and minor disabling injury : expected to cause disabling injury : expected to cause serious disability probable permanent disability ***The percentage of the total cost of the claim transferred to the SIEF. [7] The policy does not contain a definition of the degrees of severity of pre-existing conditions. Decision No. 1635/07 (July 13, 2007) relied on the policy s stipulation that the medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. It interpreted the policy to mean that the medical significance of a pre-existing condition should be considered to be minor if it made the worker slightly more liable to develop a disability of greater severity than a normal person, and that it should be considered major if it made the worker extremely liable to develop a disability of greater severity than a normal person. If the extent to which the pre-existing condition made the worker more liable to develop a disability of greater severity than a normal person was more than slight, but less than extreme, the medical significance of the pre-existing condition could be considered moderate. (iv) Medical evidence and analysis [8] The worker attended the emergency department on December 14, An x-ray report of December 14, 2007 identified no acute fractures or ankle joint effusions and smooth welldefined bony densities overlying the distal aspect of the lateral malleolus and posterior aspect of the ankle consistent with accessory ossicles. The report concluded that there was no acute radiographic abnormality. Despite the apparent absence of any acute fractures found in the actual x-ray report, the emergency report indicated that the x-ray showed an old appearing tibular avulsion fracture fragment. The discharge diagnosis was that of fracture ankle costochondral. [9] Dr. Swanson examined the worker on December 27, 2007 and indicated that the worker has an avulsion of the fibulocalcaneal ligament taking a small piece of bone off the fibula. [10] A CT scan was done on April 15, The CT report indicated that corticated bony density inferior to the tip of the lateral malleolus would appear to represent a nonfused ossification center and that corticated bony density posterior to the talus would appear to represent the os trigonum. An MRI report of August 15, 2008 showed a mildly thickened anterior talofibular ligament which may relate to a healed injury. There was also incidental note of a [sic] os trigonum. [11] In January 2009, the worker s physiotherapist questioned complex regional pain syndrome because the worker s right lower leg was very cold even after application of heat pads. Medical reports in April and June 2009 also referred to osteoarthritis. [12] The Board referred the worker to the Toronto Western Hospital WSIB Foot and Ankle Specialty Program where she was first assessed by Dr. Lau on August 10, The worker reported no previous injuries. Dr. Lau s impression was that the worker may have resolving complex regional pain syndrome as well as non-union of a Weber A ankle fracture. He noted that x-rays of August 10, 2009 showed an avulsion fracture at the tip of the lateral malleolus which appeared old and well corticated. There was also an os trigonum. Dr. Lau referred the worker for a pain consult for her neurogenic pain. By February 11, 2010, when reassessed by Dr. Lau,

5 Page: 4 Decision No. 1417/12 the worker had done well in terms of controlling her neuropathic pain. Surgery was then discussed for excision of the loose body and possible ankle ligament reconstruction. Dr. Lau performed the surgery on March 8, 2010: right ankle ligament reconstruction ATFL and CFL and arthrotomy for removal of loose body right ankle. The pre- and post-operative diagnosis was right ankle instability with avulsion fracture of ATFL and loose body ankle joint. The surgical report further states that the worker sustained an ankle sprain and that this was associated with an avulsion fracture and instability. [13] The worker continued to have pain after the surgery and was referred for desensitization therapy. She was discharged from Dr. Lau s care in February According to the most recent Board memos, the worker was scheduled to return to work with the accident employer in July [14] The Board obtained an opinion from Dr. Kanelec regarding any pre-existing condition. In his opinion of December 1, 2010, Dr. Kanelec referenced the medical reporting and ultimately opined that there was no evidence of a pre-existing condition warranting SIEF. He indicated that the worker was asymptomatic prior to the work-related injury and suffered an ankle sprain with ongoing chronic ankle pain requiring reconstruction and excision of bone fragments. There was also a diagnosis of complex regional pain syndrome. [15] The employer obtained a report dated April 7, 2011 from Dr. Gordon regarding preexisting conditions. Dr. Gordon opined that the worker s claim was prolonged by the previous avulsion fracture. He referred to the x-ray reporting such as the August 10, 2009 x-rays, which indicated that the avulsion fracture appeared old and well corticated. I note, however, that this x- ray was taken more than 1 ½ years after the initial workplace injury. It is not clear what is meant by old : did it pre-date the date of the accident or could it have occurred on December 14, 2007 and be old in 2009 when this x-ray was taken? Dr. Gordon provided the opinion that the avulsion fracture definitely pre-dated the sprain of 2007 and that it was a major pre-existing condition. Dr. Gordon also noted the Os Trigonum and postulated that it prolonged the claim and was a minor pre-existing condition. [16] Based on the above, it appears that Dr. Gordon views the ankle fracture as pre-existing the December 14, 2007 accident. The case materials do not include any reference to any injuries prior to December 14, Dr. Lau s report of August 10, 2009 indicates that the worker reported no prior injuries. Dr. Lau s surgical report also states that the worker sustained an ankle sprain associated with an avulsion fracture and instability. This statement suggests that Dr. Lau is of the view that the avulsion fracture occurred at the time of the sprain rather than pre-dating the sprain. In his multiple reports, Dr. Lau never suggests that the avulsion fracture pre-dated the ankle sprain. There is also no evidence of any injuries pre-dating the workplace accident that could have caused a fracture. [17] The employer submits that the following pre-existing conditions enhanced and prolonged the worker s claim: a pre-existing avulsion fracture and osteochondral fragments, osteoarthritis, Os Trigonum and complex regional pain syndrome. The employer relies in particular on Dr. Gordon s report. [18] While there is some suggestion, such as found in the emergency report 1 and Dr. Gordon s report, that there may have been an old fracture, other opinions have failed to indicate that the worker had any pre-existing injuries or conditions. Dr. Kanelec noted the absence of any pre- 1 While the body of the emergency report refers to an old appearing avulsion fracture fragment, the discharge diagnosis is noted as a fractured ankle costochondral and does not state that this is an old fracture.

6 Page: 5 Decision No. 1417/12 existing symptoms and concluded that there was no pre-existing condition. Dr. Lau never indicates that the avulsion fracture pre-dated the workplace ankle sprain. On the contrary, his surgical report states that the ankle sprain was associated with an avulsion fracture, suggesting that they occurred at the same time. I rely on Dr. Lau s opinion because he had the opportunity to assess the worker on multiple occasions and is the orthopaedic specialist who operated on the worker s ankle. I find that the most persuasive medical opinions do not substantiate a preexisting condition. [19] With respect to the Os Trigonum this was noted on the MRI as an incidental finding and Dr. Lau does not refer to it as being a factor in the worker s recovery. Furthermore, Dr. Gordon only postulates that the Os Trigonum was a minor pre-existing condition without explaining how it could have prolonged the worker s recovery. I therefore do not find that the Os Trigonum was a pre-existing condition that prolonged or enhanced the work-related disability. [20] With respect to the employer s submissions that the complex regional pain syndrome was a pre-existing condition for SIEF purposes, I note that while the worker s recovery was complicated by neurogenic pain, there is no evidence to suggest that she had any pre-existing problems with neurogenic pain or that a diagnosis of complex regional pain syndrome was ever made prior to the workplace injury. I therefore do not find that there is evidence of a pre-existing condition of complex regional pain syndrome. [21] Finally, while the diagnosis of osteoarthritis was offered in some of the family physician s reports, this diagnosis does not appear to have been retained by Dr. Lau as an explanation for the worker s ongoing problems. I therefore do not find that there is evidence of osteoarthritis that enhanced or prolonged the claim. [22] For all of these reasons, I find that the most persuasive medical reporting does not substantiate the presence of any pre-existing conditions that prolonged or enhanced the worker s recovery from her workplace accident and deny the employer s request for SIEF relief.

7 Page: 6 Decision No. 1417/12 DISPOSITION [23] The appeal is denied. DATED: September 5, 2012 SIGNED: S. Martel