WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 212/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 212/15 BEFORE: V. Marafioti : Vice-Chair B. M. Young : Member Representative of Employers A. Signoroni : Member Representative of Workers HEARING: January 28, 2015 at London Oral DATE OF DECISION: March 24, 2015 NEUTRAL CITATION: 2015 ONWSIAT 649 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 28, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Ms. S. Conod, Paralegal Mr. D. F., supervisor with the accident employer, attended as a witness Did not participate Not applicable 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. 212/15 REASONS (i) Introduction to the appeal proceeding [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) C. da Cunha dated September 28, 2012 which concluded that the worker reached maximum medical recovery with no permanent impairment evident as of November 21, Entitlement to benefits beyond December 26, 2011 was not considered in order by the ARO. [2] The worker attended and provided testimony and Ms. Conod made submissions on his behalf. Mr. D. F., the supervisor of parts manufacturing, attended in support of the worker's appeal providing evidence as to the worker s employment with the accident employer. (ii) Issues [3] The Panel must determine whether the worker is entitled to ongoing Loss of Earnings (LOE) benefits beyond December 26, 2011 including a permanent impairment assessment for the left leg injuries. (iii) Background [4] The ARO provided background information on how this issue arose and the Panel summarizes the following basic background facts in this case. [5] On January 11, 2011, the worker tripped and fell at work, suffering an undisplaced fracture through the proximal tibial and fibular shafts and a fracture through the inferomedial portion of the patella of his left knee. He was 53 years of age at the time and had been working with the accident employer as a welder for approximately 13 years. [6] The worker underwent left proximal tibia open reduction internal fixation (ORIF) surgery on the day of accident. Full Loss of Earnings (LOE) benefits were paid during the worker's postoperative recovery from January 12, 2011 to December 26, [7] On December 12, 2011, a Workplace Safety and Insurance Board (the Board or WSIB) Case Manager determined that the worker's fractures had completely healed and stopped his entitlement to benefits as of December 26, [8] The worker objected to the Case Manager's decision. On December 20, 2011, the Case Manager reconsidered and upheld the decision of December 12, [9] On January 11, 2012, the worker's previous representative completed an Objection Form and the ARO C. da Cunha on September 28, 2012 concluded the following: The worker's objection is denied. He reached MMR, with no PI evident, as of November 21, Therefore, entitlement to benefits beyond December 26, 2011 is not in order. [10] The worker now appeals to the Tribunal. (iv) Law and Board policy [11] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any

3 Page: 2 Decision No. 212/15 applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [12] The Legal Services Division of the Board confirmed that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Package #61 - NEL Entitlement Policy Package #223 - LOE Benefits benefits from December 1, 2010 to July 14, 2011 Policy Package #227 - Work Reintegration from December 1, 2010 to July 14, 2011 Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [13] The policies will not be duplicated here for practical reasons. The Panel considered the policies in the context of the legislation in arriving at the decision. As the worker was injured in 2011 the WSIA applies. (v) The worker's testimony [14] In summary the worker provided the following testimony: The worker performed duties as a welder fitter. The worker tripped on steel sitting at the side of the hallway. This caused him to lose balance and fall breaking his lower bone in his left leg. The worker reported to the employer and sought medical attention. The worker acknowledged and described a 1976 accident where his back was broken. He described weakness in both legs as a result from 1976 until The worker indicated that he was able to continue working during this period. The worker indicated he required a cane to walk because of his non-compensable condition prior to the accident of The worker described ongoing pain on the left knee subsequently. The worker indicated that he was treated with surgery by Dr. K. Rajaratnam. The worker indicated he cannot put weight on the left leg, he can t climb or kneel although he testified that he can still drive. The worker acknowledged the assessment at the Sir William Osler Health Institute in Hamilton. The worker acknowledged his family doctor is Dr. Bannister and he still follows up with this doctor. The worker stated that he had plates put in for his legs although he indicated he couldn t stand up well any longer. Prior to the accident the worker indicated he walked around in his employment and he was able to do so using a cane as well. The worker indicated that he cannot work any longer.

4 Page: 3 Decision No. 212/15 The worker indicated he had to compensate for the injury, had to brace himself on the right leg and was overcompensating for the left knee injury as well. The worker indicated that he was viewed by the doctors with an indication that he would be receiving knee braces for stabilization. The worker indicated Dr. Rajaratnam told him that that was all he could do for him but there was no full resolution of his condition. The worker indicated at best he could do sedentary kind of work with significant restrictions. The worker indicated he went off work immediately after his accident, he was admitted to hospital and splinted for a tibial fracture and was referred to Hamilton General Hospital for surgery. He underwent open reduction internal fixation of the left knee by Dr. Rajaratnam at the Hamilton General Hospital. The worker indicated there was no previous work injury. As indicated the worker acknowledged a motor vehicle accident in 1976 when he became partially paraplegic with left leg dysfunction greater than the right leg dysfunction. He ended up with fusion of the left ankle. He also had open reduction internal fixation for fracture of the left femur. The worker indicated that the work injury has left him with sleep disturbance, anxiety and some depression. For his left knee he indicated he takes Tylenol and OxyContin as well. The worker indicated that prior to this accident he was able to work full-time at his job, 40 hours a week working as a welder. In his job he would weld the frames of chiropractic tables and the job required a lot of repetitive activity and welding in different positions. The demands of his pre-accident job included lifting, bending, standing, pushing, pulling, walking and reaching. Since the worker had the compensable accident he did not feel he could do this kind of work any longer. His pain was worse after the compensable accident, particularly with weightbearing. Prior to the accident he felt the left leg function was much better and after the accident was approximately 50% of normal according to the summary in the Regional Evaluation Center (REC) report. Prior to his injury he indicated he was able to do household work and now was very limited. For example he indicated that prior to this injury he did the outside household work including grass cutting, and now is not able to do that any longer except riding on a lawnmower occasionally.

5 Page: 4 Decision No. 212/15 The worker indicated prior to his injury he only used one cane and now requires two canes. After his injury the worker indicated he had continuous pain. After the compensable accident he had plates inserted and is unstable. He also indicated his surgeon suggested that the treatment he received was all he could do for him but he did not think he could do his pre-injury job. The worker emphasized that he was able to work as a welder for a number of years prior to this compensable accident and had little restrictions imposed on him. He used his cane to get to the workstation only and was able to move around the work station. After his accident, he was severely limited. (vi) Testimony from the supervisor of parts and manufacturing Mr. D. F. [15] The supervisor with the employer provided testimony and came as a worker witness. He indicated he started with the employer 17 years ago and was also in the health and safety committee for seven to eight years. He indicated that the employer had no work for the worker after his compensable accident of In summary, the supervisor indicated that before the accident the worker was able to perform his job for several years with no interference and no performance issues. He testified that after the accident the worker had to use two canes whereas before he only used one and the worker now had considerable disability and functional difficulties. (vii) The submissions from the worker s representative [16] Ms. Conod provided submissions on behalf of the worker. Ms. Conod in summary made the following submissions. [17] She submitted that the ARO misrepresented the Board policies. She submitted, in particular, that the Case Manager and the ARO didn t appropriately consider the reports from the Regional Evaluation Center which did not indicate that the compensable condition was fully resolved. She submitted that the worker had reached MMR and did not have full resolution and a permanent impairment was evident from the medical evidence. Ms. Conod submitted that the worker should be assessed for a permanent impairment. She submitted that the worker is entitled to further Loss of Earnings as of December 26, 2011 and a Non-Economic Loss (NEL) assessment. She submitted that the Tribunal jurisprudence generally applied is the test of significant or material contribution and that the accident need not be the sole contributing factor. She also indicated the thin skull doctrine applies in this case and provided and referenced Decision Nos. 1137/12, 895/12, and 2382/10 in support of her arguments. Ms. Conod also submitted that the worker has been accepted for Canada Pension Plan disability benefits and provided reference to that effect. (viii) The medical evidence [18] Although the Panel considered all of the medical evidence available, it found the following most relevant. The Panel reviewed the consultation report of January 11, 2011 following the compensable accident. The Panel also reviewed the history and physical examination report from the West Haldimand General Hospital in Hagersville Ontario. The Panel reviewed the discharge summary provided from the Hamilton Health Sciences Hospital which indicated that the worker did have left tibial plateau fracture and did have left tibial plateau ORIF

6 Page: 5 Decision No. 212/15 performed by Dr. Rajaratnam on January 14, The worker was followed by his family general practitioner Dr. L. Bannister. Dr. Bannister did provide restrictions indicating that the worker was only able to weight-bear minimally and was unable to do any lifting or stair climbing. The Panel noted the report from Dr. K. Rajaratnam who provided a clinic report on June 27, 2011 indicating that the worker s condition was taking some time to heal. It was suggested that the worker consider a permanent disability from a work perspective. He will require a workplace assessment for this. I will make the recommendation to the WSIB to consider this permanent disability. [19] The Panel also notes the report from the Multi-Disciplinary Health Care Assessment completed by Dr. E. R. Blackman and M. Lancia, evaluating physiotherapist. The report was completed on November 17, It clearly indicated the history of injury and treatment to date including the x-ray and CT scan and the specialist s treatment from Dr. Rajaratnam for the open reduction internal fixation of the left tibia. The report noted that there were no previous work injuries in spite of the fact that the worker has been employed for a number of years. The report did note the motor vehicle accident in 1976 when the worker became partially paraplegic with left leg dysfunction greater than the right leg dysfunction. The worker ended up with a fusion of the left ankle and had a device. The worker also had open reduction internal fixation for fracture of the left femur. The report indicated the worker was taking Tylenol and OxyContin as a result of his compensable injury. The report did indicate that the worker was employed with the accident employer for many years prior to his compensable accident and this was a full-time job 40 hours a week working as a welder. The report did indicate that the demands of the pre-accident job including lifting, bending, standing, pushing, pulling and reaching. The report did indicate that the worker had pain throughout the left knee that was not present prior to the accident and it was worse with weight-bearing. In view of the partial paraplegia prior to the injury, the left leg function was 100% according to the report and it was now less than 50% of normal. It was also noted that there were functional concerns subsequent to the compensable accident as the worker was able to do inside household work prior to the injury and now was restricted in doing so. Prior to the injury, it was also noted that the worker was able to do outside household work including grass cutting but now was only able to do them in a limited way. [20] The physical examination at the REC indicated that the worker walked with severely altered gait using two single point canes. The diagnosis and prognosis from the REC indicated that the worker's gait dysfunction was substantially aggravated by this injury of January The report also indicated that the worker was only partially recovered now and no further recovery is expected. An active physiotherapy program for gait instruction and strengthening exercises of the worker's pelvis and hips was recommended over the eight weeks following. There were permanent restrictions for standing, walking, kneeling, squatting and heavy carrying. The REC stated the following: This man has had a significant spinal injury in 1976 but was managing at times without cane support before this injury. Now he has at least one cane and often two canes for support and has increasing gait disability created because of this injury January It is unlikely that this will show any further change in the future and he is probably at MMI.

7 Page: 6 Decision No. 212/15 [21] The worker was seen by Dr. M. Woolfrey in the orthopaedic clinic for a special consultation. A report was submitted dated March 26, The reports stated the following: SUMMARY OF PROBLEMS: This patient has had a previous left femur fracture, but was able to return to work after that, but then suffered a left tibial plateau fracture in 2011 at work, and had to have plating done. The patient's fracture healed in a slightly increased tibial slope and varus, and he has had significant problems since and is not able to return to work. He also has other problems because of the stress he has put on his right knee. He has developed instability of his right knee, and also because of previous spine fracture, he obviously has some degree of weakness of his legs, but as mentioned, he was able to work until the tibial plateau fracture, which tipped the balance such that he then could not return to work because of this injury and the problems that have resulted afterwards. He finds that the biggest problem for him right now is the ongoing weakness, but that cannot be corrected because it is related to his spinal fracture and neurological injuries. He has problems of left medial tibial pain and I think it is mostly because of the abnormal alignment of his left leg, and because now his right knee has become unstable because of the stress put onto it, he is now putting in turn, more stress back onto the left leg and tibia. Because of the varus, it causes pain into the medial tibial plateau region. He uses 2 canes to get around and he walks with a significant antalgic and instability-type gait. As far as past history, his left tibia was fixed by Dr. Rajaratnam, back in 2011, as mentioned above. He was also involved in a motor vehicle accident in 1976, when he became partially paraplegic with left leg dysfunction greater than the right leg dysfunction. He ended up with a fusion of the left ankle and he had an ilizarov device on. As mentioned, he has had a previous ORIF of his left femur fracture. Other past medical history is that he has hypertension that is controlled. He has some degree of anxiety and depression as a result of his injuries and dealing with those on a reactive nature. As part of his previous work status, he worked at [accident employer] where he started employment in As mentioned, he was able to go back to work after the femur fracture until he fractured his left tibia. Once he fractured the left tibia in 2011, he has never been able to return to work. The patient, as far as functional status is concerned, he is able to do his own personal care, but now he says he is only able to ride on the lawnmower outside to help with the outdoor activities and is only able to do a few of the indoor chores. He does not participate in any type of sports. [22] The Panel notes that the worker was physically examined by Dr. Woolfrey and the report of March 26, 2014 also indicated the following: X-rays reviewed showed that he has significant medial arthritis of his right knee, and on the left side he had a previous femur ORIF, left tibia ORIF, but not a lot of arthritis. I think that most of his problem is now related to increasing varus of about 5 degrees on x-rays on the tibial side with about 18 degrees of slope. This put a tremendous amount of stress, with him having a bad right knee that was developed with hyperextension since putting stress on it. It is now in turn affecting the left knee which is now putting stress and varus onto the medial aspect of the tibia. Because of this, he is getting pain. I think with his problems, I would stay away from surgery at the present time, but he could do, by seeing a custom orthotist, to get proper stabilization knee braces for both sides. The left side should be covered under WSIB. If we get coverage I am going to have him seen by Dr. Peter Varey, Physiatrist, at our hospital to see if he could help us with regard to

8 Page: 7 Decision No. 212/15 getting bracing for this patient, which in turn will give him some stability and decrease the amount of pain he has and increase his function slightly. We are not expecting a huge increase in his functional abilities, but it will at least give partial relief and partial increased function, to help this gentleman remain to be independent. So we will wait to hear back from WSIB regarding the brace and go from there accordingly. [23] The Panel also noted the report from Dr. Peter Varey dated August 5, The report does provide a comprehensive history of presenting problems which were consistent with the worker's testimony and the information in the claim file to date. The report states the following: The patient s fracture apparently healed in a slightly increased tibial slope and varus and since that time he has unfortunately been unable to return to work. Because of the ongoing issues in his left leg, he has had undue stress on his right leg and he has found now that that leg is quite unstable as well. He has been unable to work and it is our understanding that there is a WSIB involvement. His issues now include instability bilaterally for which he uses bilateral single-point canes. These do reduce his number of falls, however, he does continue to feel somewhat unstable. He does have ongoing weakness particularly on the left side secondary to his neurological issues. He has ongoing knee pain in the left leg on the lateral side, as well as the right knee generalized knee pain as well. He does have occasional swelling in the right knee. He comes today for assessment of his gait and possibly referral to orthotics for assessment regarding knee stabilization plus or minus AFO on the left side. [24] The Panel notes that the worker was taking Tylenol No. 3, two tablets, and Oxycocet as needed. The physical examination carried out revealed very antalgic and unstable type gait. The worker had a significant varus deformity in the knees bilaterally with associated valgus deformity at the ankles. The report continued as follows: ASSESSMENT In summary, this is a 56-year-old gentleman who has paresis in his lower limbs, significantly affecting the left side more than the right. He also has a history of tibial plateau fracture on the left causing pain and instability, as well as associated instability on the right side now. He has a very antalgic and unstable gait on assessment, and we do agree that assessment by an orthotist for possible bracing is in order. He may benefit from knee stabilizing brace with extension stop in order to prevent hyperextension. Unfortunately, the level of function that he may regain from this may be limited, but is certainly worth a try at this point or at least have him assessed. (ix) The Panel s analysis and conclusions [25] The Panel notes section 43 of the Act which states the following Payments 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).

9 Page: 8 Decision No. 212/15 [26] The Panel also referenced OPM Document No on the subject of Determining Maximum Medical Recovery (MMR) to reach its conclusions in this case. Pursuant to this policy, a permanent impairment is defined as follows: Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [27] In addition the Panel looked to OPM Document No on the subject of Determining the Degree of Permanent Impairment which similarly defines permanent impairment. The Panel finds and concludes based on Board policy, the legislation, testimony both from the worker and the supervisor and submissions from Ms. Conod that the worker is entitled to further benefits both in terms of loss of earnings and non-economic loss assessment for permanent impairment. The Panel finds that the workplace accident of 2011, on a balance of probabilities, made a material contribution to the worker's condition and functional abnormality. [28] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. In the Panel s view the worker did not return to his pre-accident state after the compensable accident of He was unable to do his pre-accident job, he required further treatment and the medical evidence above supports a permanent impairment and assessment for a permanent impairment. [29] The Panel notes that the worker was able to carry on, in spite of pre-existing conditions, with his regular employment for several years. The worker s supervisor attested in testimony that there was no problem with his performance and with his ability to move around within the plant prior to the compensable injury. The Panel therefore finds that the compensable accident had a significant impact on the worker's functional ability, which added to the worker's pre-existing condition in a material way, rendered the worker unable to return to his pre-accident work and rendered the worker unable to continue to work. The Panel is satisfied that the compensable accident produced in a significant way the worker's functional abnormality and loss. [30] The Panel finds that when the evidence is considered as a whole, ongoing entitlement to loss of earnings beyond December 26, 2011 is in order. Furthermore, the Panel finds that the worker does have a permanent impairment as there is impairment that continues to exist after the worker reached MMR. The Panel was persuaded by the medical evidence and in particular the REC report which indicated only partial recovery without full recovery being anticipated. When the medical evidence was considered with the testimony and submissions, the Panel was satisfied that the worker s appeal should be granted.

10 Page: 9 Decision No. 212/15 DISPOSITION [31] The worker's appeal is allowed. The worker has ongoing entitlement to LOE benefits beyond December 26, 2011 including a permanent impairment assessment for the left leg injuries. The Panel refers the case back to the Board for further adjudication subject to the usual rights of appeal. DATED: March 24, 2015 SIGNED: V. Marafioti, B. M. Young, A. Signoroni