WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2023/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2023/14 BEFORE: A. T. Patterson: Vice-Chair HEARING: November 3, 2014 at Toronto Oral DATE OF DECISION: April 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 834 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) M. Brown dated January 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: K. Steubing, Lawyer Did not attend 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. 2023/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that right knee surgery of July 16, 2012 is not compensable. [2] The worker testified at the hearing. The accident employer did not attend the hearing but provided written submissions dated October 20, [3] The employer s written submissions noted that the worker had a pre-existing knee condition prior to the compensable accident and argued that the right knee surgery in 2012 was performed with respect to arthritic deterioration which resulted from the non-compensable preexisting knee condition and not the 2006 compensable accident. Consequently, the employer submits, the 2012 surgery is not compensable. (ii) Issues [4] The issue under appeal is whether the worker's surgery of July 16, 2012 is compensable. [5] The appeal is allowed for the reasons set out below. (iii) Background [6] The following are the basic facts. [7] On August 8, 2006, the now 45-year-old worker was pulling a door open with a key when the key broke. The worker grabbed for the door before it could shut and stumbled backwards twisting his right knee. Initial entitlement was granted. [8] The worker underwent compensable right knee surgery on February 21, [9] On July 17, 2007, the worker s right knee buckled and the worker re-injured it. Benefits for this second accident were granted on a recurrence basis. [10] On June 24, 2008 a second compensable right knee surgery was performed. [11] On May 1, 2009 the worker was granted a 16% NEL award for the right knee. [12] The worker then participated in Labour Market Re-entry services, found employment in the Suitable Employment or Business and loss of earnings (LOE) benefits were terminated. [13] On June 27, 2012, the worker contacted the Board and indicated that he had stopped working on June 24, 2012 and had been scheduled for right knee surgery on July 16, [14] Following the surgery the worker remained on short-term disability benefits through private insurance coverage from his employer. He was then on long-term disability benefits through a different insurer. [15] He returned to work in July (iv) Law and policy [16] Since the worker was injured in 2006, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

3 Page: 2 Decision No. 2023/14 [17] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package # 1 Initial Entitlement, Package # 30 Adjusting Benefits for Non-Work-Related Changes, Package # 31 Secondary Conditions Package # 38 Recurrences Package # 224 LOE Benefits benefits as of July 15, 2011, Package # 300 Decision Making/Benefit of Doubt/Merits and Justice. [18] I have considered the policies as necessary in deciding the issues in this appeal. (v) Relevant medical evidence [19] The following medical reporting is relevant to the issue under appeal. [20] On August 14, 2006, Dr. J. R. Davey, orthopaedic surgeon, examined the worker and wrote the following: HISTORY OF PRESENT ILLNESS: The patient was at home on August 8, 2006 where he had a twisting injury and pop to his right knee. He did not actually fall and he had an immediate effusion in his right knee with difficulty weight bearing and was seen in the emergency department that day. He was placed in crutches, given a Zimmer splint and sent onto the Fracture Clinic. He tells me he has a history of two previous surgeries to the knee, one of them was to release tendons and one to look around. There is no significant locking or instability, he tells me, in the knee now. On examination, there is an effusion over the knee. He is neurovascularly intact. Range of motion is from 0 to 95 o. He is stable in a varus valgus direction. He is stable in AP direction. He is tender over the palpation of lateral collateral ligament with no joint line tenderness. X-rays reveal no acute pathology. At this point, I feel [the worker] has a lateral collateral ligament strain. I placed him into a Zimmer splint for two to three weeks. He will weight bear as tolerated and we will see him again in three week s time to review his progress. [21] On October 23, 2006, Dr. Davey re-examined the worker and noted: He underwent MRI examination of the right knee here at the University Health Network. MRI showed a medial meniscal tear. There was a remote ACL rupture. There was moderately severe patellofemoral chondrosis. There was a healed Segond [sic] fracture. [22] The worker was referred to arthroscopic surgeon Dr. K. W. Marshall who examined the worker on January 31, Dr. Marshall s examination report indicates in part: On presentation today, his wounds are well healed. There is a minimal effusion. He is rapidly regaining his preoperative range of motion. [23] On February 21, 2007, Dr. Marshall performed arthroscopic debridement, partial right medial meniscectomy and resection of the medial plica of the right knee. Dr. Marshall s report reads in large part as follows:

4 Page: 3 Decision No. 2023/14 The suprapatellar pouch and patellofemoral joint was examined. Articular cartilage in the retropatellar facet was intact. There was grade 2 change in the femoral trochlea that was dbrided [sic]. There was impingement in the fat pad both medically and laterally. The impinging porting of the fat pad was debridement. On entering the medial gutter, there was a fibrotic medial plica, which was thoroughly resected. On entering the medial compartment, there was a complex tear of the medial meniscus that was resected back to the stable meniscal rim with a combination of basket forceps and powered shaver. Approximately 50% of the meniscus was remaining. There was marked grade 2 change over the medial femoral condyle and moderate change over the medial tibial plateau that was dbrided [sic]. It appeared highly probable that the changes on the medial femoral condyle and medial tibial plateau were posttraumatic in nature related to the unstable medial meniscal fragment. The intercondylar notch was then examined. There had been a significant tear of the anterior cruciate ligament fibers markedly attenuated. At the tibial insertion there was an osseous fragment incorporated in the base of the stump of the ACL that was excised. The attenuated but intact portion of the ACL was left intact. The lateral compartment was then entered. The lateral femoral condyle and lateral meniscus were intact. There was early grade 2 change on the lateral tibial plateau, which required minimal debridement. [24] According to a report from Dr. Marshall dated July 26, 2007, the worker was making steady progress when he had additional traumatic injury to his knee, which has resulted in an inflammatory flare. [25] The worker s condition did not improve further and on February 22, 2008, the worker s right knee was imaged by MRI. The report of radiologist Dr. R. Bleakney concluded: INTERPRETATION: 1. No evidence of residual/recurrent meniscal tear. Extensive previous partial medial meniscectomy. 2. Remote complete ACL tear. 3. Chronic friction syndrome at the distal IT band. 4. Progression of moderate to severe chondrosis in the medial tibiofemoral compartment. Stable moderate cartilage loss in the patellofemoral compartment. [26] On June 24, 2008, Dr. Marshall performed a second surgery on the worker s right knee consisting of arthroscopic debridement, partial right medial meniscectomy and partial right lateral meniscectomy. Dr. Marshall reported: The suprapatellar change over the retropatellar facet that was dbrided [sic]. The femoral trochlea was intact. The medial compartment was then entered. There was change over the medial tibial patella that was dbrided [sic]. There was degenerative tearing that was resected back to stable meniscal rim. The intercondylar notch was examined and was normal. The lateral compartment was then entered. There was early grade 2 change over the lateral femoral condyle, lateral tibial patella that was dbrided [sic]. There was early degenerative tearing in the lateral meniscus that was resected back to stable meniscal rim. [27] The worker made a steady recovery but was prescribed a knee brace in March 2009, and the Board recognized that he had a compensable permanent impairment for which he was assessed and granted a 16% NEL award.

5 Page: 4 Decision No. 2023/14 [28] There is a three-year gap in the medical reporting until a report from Dr. Marshall dated May 9, That report indicates: I have scoped his right knee in the past in 2008, at which time he had a torn medial meniscus and osteoarthritis with good result. Since December 2011, he has had insidious onset of increasingly severe pain, swelling and weakness in his right knee. These symptoms have reached the point that they are significantly interfering with the quality of his life. Fortunately, he has not had mechanical symptoms thus far. On examination, he has a range of motion from degrees compared to in the left knee. He has mild quadriceps atrophy. There is small effusion. He has tenderness along the medial joint line with direct palpation on McMurray s test. There is no ligamentous laxity. Tinel femoral findings are negative. He has moderate osteoarthritic changes on x-ray. [29] On June 20, 2012, Dr. Marshall discussed further surgery with the worker. The operative report dated July 16, 2012 indicates: The suprapatellar pouch and the patellofemoral joint was examined. There was moderate grade 2 changes over the retropatellar facets and femoral trochlea. Unstable flaps of articular cartilage were debrided. The medial compartment was then entered. Medial meniscus was visualized and probed. There had been no progression of the medial meniscus from the previous partial medial meniscectomy. However there had been significant increase in change on the medial femoral condyle. There were markedly unstable flaps of articular cartilage, which were debrided until stabilized. There was moderate grade 2 change over the medial tibial plateau, that was debrided. The intercondylar notch was examined. There had been a partial tear of the anterior cruciate ligament with moderate attenuation. The PCL was intact. The lateral compartment was then entered. There was early grade 2 change over the lateral femoral condyle and moderate grade 2 change over the lateral tibial plateau that was debrided. The lateral meniscus was visualized and probed and no tear was present. [30] On December 18, 2012, Dr. Marshall wrote to the worker s representative a report in which he summarized the operative procedures detailed above and opined: With regard to linkage between his compensable injury of August 8 th, 2006 and the need for his most recent right knee arthroscopy, in my view the two are directly linked. When an individual has pre-existing osteoarthritis and subsequently undergoes a significant traumatic injury such as the injury sustained by [the worker] in 2006, the traumatic injury, which in this case tore the anterior cruciate ligament and the medial meniscus, can exacerbate the pre-existing osteoarthritis and not only progress the rate at which the osteoarthritic disease progresses, but make it more likely that the patient will become symptomatic. (vi) Analysis [31] For the reasons which follow, I find that the worker is entitled to benefits for the surgery of July 16, 2012, and the period of recovery which followed. [32] Although the worker had two prior right knee surgeries I find, on a balance of probabilities, that the accident of August 8, 2006, the subsequent recurrence of 2007 and the two prior surgeries made a significant contribution to the osteoarthritis for which the surgery of 2012 was performed. [33] Unfortunately the operative reports relating to the worker s football injury in the late 1980s and the motor vehicle accident of the early 1990s are not on file.

6 Page: 5 Decision No. 2023/14 [34] I see no reason not to accept the worker s testimony that those surgeries fully restored the worker s function as evidenced by the fact that the worker remained active in his personal life, particularly with respect to bike riding, and vocationally in employment as a mover and working in a warehouse for a national retailer. [35] It is notable, in my view, that the worker s right knee remained asymptomatic despite an active lifestyle for a significant period of time, in excess of 15 years, until his accident of August 8, [36] Notwithstanding the above, it seems likely that the grade 2 arthritic changes in the worker s right knee noted in Dr. Marshall s report of July 21, 2007 are more likely related to the worker s pre-accident non-compensable injuries and related surgeries given that less than a year had passed since the compensable accident of August [37] However, the issue in this decision is not whether the worker s arthritis in 2007 was related to his accident of 2006, it is whether the worker s arthritis which began manifesting in December 2011 is causally related to the compensable accident. [38] In this regard I find that there is sufficient evidence to find, on a balance of probabilities, that a sufficient causal nexus exists. [39] By December 2011 over five years had passed since the compensable accident, moreover the worker s right knee had been subjected to surgery, suffered a recurrence, and undergone a second compensable surgery. This longer period is consistent with the development of related arthritis. [40] Finally, I note the report of Dr. Marshall who opines a direct relationship between the accident of August 8, 2006 and an exacerbation of the pre-existing osteoarthritis both in terms of increasing the rate of progress of the osteoarthritis and by making it more likely that the patient will become symptomatic.

7 Page: 6 Decision No. 2023/14 DISPOSITION [41] The appeal is allowed. DATED: April 17, 2015 SIGNED: A. T. Patterson