WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 615/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 615/15 BEFORE: V. Marafioti : Vice-Chair B. Wheeler : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: March 25, 2015 at London Oral DATE OF DECISION: May 13, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1024 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Ms. L. Horne, Office of the Worker Adviser 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. 615/15 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) S. Crisostomo dated March 21, That decision concluded that the recurrence of June 6, 2011 and related surgery was denied. [2] The worker attended the hearing and provided oral testimony. Ms. Horne made oral submissions. [3] The ARO decision was made without an oral hearing. (ii) The issues [4] The Panel must determine whether the worker is entitled to a June 6, 2011 recurrence of the left knee injury. (iii) Background [5] The background information is contained in the ARO decision and the Case Record and the Panel summarizes the background facts as follows. [6] On August 6, 2010, the worker, a mould maker, injured his left knee when he jumped off a machine and twisted his knee. The worker sought medical attention on August 9, 2010 and was diagnosed with a left knee sprain by his general practitioner. [7] The claim was reviewed by the Workplace Safety and Insurance Board (the Board or WSIB) and entitlement was granted for the worker's left knee sprain. The worker was granted entitlement to health care benefits only, as he did not lose any time from work. [8] On October 27, 2011 the worker called the Eligibility Adjudicator indicating he saw a specialist and would be having surgery for his knee. [9] After receiving additional medical information the Eligibility Adjudicator reviewed the file and was unable to conclude that the worker's left knee tear occurred on August 6, Therefore the Eligibility Adjudicator denied entitlement for a recurrence of the worker's left knee injury. [10] The worker objected to the Eligibility Adjudicator's decision of November 9, 2011 and on April 18, 2012, the worker's representative completed the Objection Form. [11] On March 21, 2013 the ARO concluded as follows: Based on my review of the information in the file, I am unable to conclude that the worker's tear of the posterior horn medial meniscus as seen in the MRI of June 6, 2011 is more likely than not the result of his work accident on August 6, As such, I find clinical compatibility between the worker's left knee sprain of August 6, 2010 and his grade III tear of the posterior horn medial meniscus of June 2011 has not been established. Therefore, entitlement to the recurrence of June 6, 2011 and related surgery is denied. [12] The worker now appeals to the Tribunal.

3 Page: 2 Decision No. 615/15 (iv) Law and Board policy [13] 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 applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [14] The Legal Services Division of the Board confirmed that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Policy Package #38 - Recurrence Policy Package #95 - Health Care Benefits Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [15] The policies will not be duplicated here for practical reasons. The Panel considered the policies in the context of the legislation in arriving at its decision. As the accident occurred in 2010 the WSIA applies. In particular the Panel noted section 13 of the WSIA which states the following: 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (v) The worker's position [16] The worker provided oral testimony in a credible manner for the Panel. Ms. Horne made submissions on his behalf. She submitted that the evidence demonstrates that the worker meets the requirements of Operational Policy Manual (OPM) Document No on the subject of Recurrences. She submitted the evidence supports the compatibility and continuity of complaint, therefore the worker is entitled to benefits. She noted in particular that when the worker jumped and fell there was a twisting motion of the left leg. Ms. Horne reviewed the medical evidence, in particular, the reporting from the worker's treating physician Dr. Leone who supported the worker's claim. [17] Ms. Horne noted that the worker was only 34 years old at the time of the accident. She also noted that the worker received physiotherapy and treatment and argued that the worker's grade III tear of the posterior horn medial meniscus is compatible with the accident history and continuity of complaint has been established. Ms. Horne referenced the medical reports as indicated and also noted a Tribunal decision related to the compatibility of a torn meniscus with a twisting injury occurring to support the worker's position. Ms. Horne noted Tribunal Decision No. 547/09 and Decision No. 1172/04 to support her theories of an incident with a twisting occurrence to support her position that a recurrence should be granted. (vi) The Panel s analysis and conclusion [18] As noted above on August 6, 2010 the worker incurred an injury to his left knee as a result of jumping down off a machine he was repairing. The worker reported the injury, he sought medical attention. The initial diagnosis was a left knee strain. The WSIB allowed the claim as a chance event and initially no lost time was incurred and health care benefits were granted. The Panel is satisfied that the worker s appeal should be granted.

4 Page: 3 Decision No. 615/15 (a) The medical evidence [19] Although the Panel reviewed all of the medical evidence, the following was noted in particular. Dr. S. George, the worker's general practitioner, provided a diagnosis of left knee sprain and referred the worker for an x-ray. The x-ray was conducted on August 9, 2010, the worker had a painful left knee which was tender medially and he was unable to weight-bear. The x-ray did not find any fracture and the single frontal view of the right knee did not demonstrate abnormality. There is a Health Professional s Report (Form 8) completed by the worker's physiotherapist on November 15, It notes the history of the injury occurred when the worker jumped from a machine and twisted his knee in doing so. The diagnosis provided by the physiotherapist is that of sprain MCL and queries a possible torn meniscus. The worker s diagnosis is that of a possible tear. [20] The medical evidence from Dr. George indicates that the worker s knee was feeling better with his physiotherapy. The worker continued to complain of the knee bothering him and the WSIB allowed for a course of physiotherapy. [21] On June 6, 2011 a MRI was completed showing a grade III tear of posterior horn of medial meniscus with joint effusion. In this case the MRI sequences were performed through the left knee joint whereas the x-ray performed on August 9, 2010 was a single frontal view of the knee which did not reveal abnormality. The MRI confirmed that the tear was to the rear/back of the knee which may not have been seen on the single view x-ray. [22] Dr. George referred the worker to the orthopaedic surgeon Dr. J. Leone. On October 27, 2011 Dr. Leone reported as follows: HISTORY OF PRESENT ILLNESS: The patient indicates he injured his knee approximately one year ago. This happened at work when he jumped off a mowing machine. He slipped and impacted his knee. There may have been a twisting mechanism of sorts as well. He has noted some improvement with physiotherapy. His predominant pain is medial. He has acute swelling from time to time. He endorses locking. He has minimal giving way. Stairs are particularly problematic. PAST MEDICAL HISTORY: The patient's past medical history is otherwise unremarkable. IMAGING: The patient did undergo an MRI study and some x-rays in India. The x-rays are essentially normal. The MRI is reporting a grade 3 tear of the posterior horn medial meniscus with an effusion. He also has bipartite patella noted. IMPRESSION/PLAN: In light of these findings, I have offered him left knee arthroscopic surgery. Risks, benefits, alternatives and limitations were clearly discussed in advance. The patient would like to proceed. We will make those arrangements accordingly. [23] There is a further report from the registered physiotherapist dated November 24, 2011 which reads as follows: [The worker] had physiotherapy treatment at Back Works Spinal and Sports Rehabilitation from November 15, 2010 until December 23, 2010 following an injury at

5 Page: 4 Decision No. 615/15 work. He was diagnosed with an MCL and meniscus tear. His symptoms included medial joint line pain and MCL pain with palpation. He was experiencing buckling and locking of the knee, typical of a meniscus tear. He was treated with manual therapy, stretching, friction, modalities including acupuncture and an exercise program. He recovered well from the MCL sprain but the symptoms of the meniscus tear continued. [24] On March 26, 2012 Dr. Leone also reported as follows: This patient has been seen and under my care dating back from October 27, He represented to me as a referral from his family doctor for an assessment and treatment of his left knee. He indicated approximately one year prior to this or specifically on August 6, 2010 he jumped off a mowing machine of sorts and injured his knee. He describes both a twisting mechanism and an impact at that time. He did pursue physiotherapy with some improvement. His pain pattern was predominant medial on assessment. He also endorsed episodes of locking and pain, particularly with stairs. At the time of arthroscopy, this patient was noted to have a complex posterior third left knee medial meniscal tear, hypertrophic synovium and a partial ACL tear. His meniscal pathology and partial ACL injury was consistent with the mechanism of injury described back in August It is very common for the meniscal tears to settle initially with physiotherapy and have recurrence of discomfort sometime later. Regular daily activities could potentially perpetuate the meniscal tear which likely occurred at the time of his original injury. I do not believe the timeline between his initial complaints and eventual surgery is that unreasonable. I often encourage my patients with meniscal pathology to persevere with therapy in the event their knee does improve. I reserve surgery for those patients that fail an adequate interval of rehabilitation in the event their knee does improve on its own. I do believe he would be entitled to WSIB benefits based on the information available to me. I hope this provides some insight as to the nature and age of his knee injury. (b) Conclusions [25] The Panel notes that as early as November 2010 the physiotherapist queried a meniscus tear. However the worker continued to work. The Panel is satisfied that it was confirmed by the employer that the worker had continued complaints with his left knee and the Eligibility Adjudicator of the WSIB allowed a 12-week course of physiotherapy. The worker's condition worsened by June of 2011 and the MRI noted above confirmed the physiotherapist s suspicion of meniscus tear of the left knee. The tear and subsequent surgery was denied by the WSIB as they could not relate the tear to the accident of August 6, This decision was made without any benefit of a medical consultant s opinion. [26] The Panel is satisfied that the evidence is clear and undisputed that on August 6, 2010 the worker incurred injury to his left knee which also involved the twisting of the knee. A torn meniscus is one of the most common knee injuries. Any activity that causes one to forcefully twist or rotate the knee especially when putting the pressure of the full weight on it can lead to a torn meniscus. The Panel notes that the representative made reference to Tribunal Decision No. 1172/04 and Decision No. 547/08, both decisions confirm that a meniscus tear can and does occur with a twisting of the knee. Decision No. 547/08 provides three medical opinions including a Board Medical Consultant s opinion which confirms a torn meniscus requires a forceful twisting incident. [27] In the case at hand the Panel is satisfied that there was an identifiable injuring incident to the left knee which involved twisting. The initial diagnosis was that of a strain, however as noted above, the physiotherapist s first assessment suspected a meniscus tear and the diagnosis

6 Page: 5 Decision No. 615/15 was confirmed by way of an MRI subsequently. The Panel notes that the worker continued to work with complaint and with co-worker assistance. The Panel also notes that there is supporting evidence from an orthopaedic surgeon who did assess the worker's left knee and provided surgery supporting the history as being consistent with the diagnosis. The Panel sees nothing on record to rebut the surgeon s opinion. The Panel therefore finds that the worker's left knee surgery and resulting recovery period of three weeks off work as a result of the accident of August 6, 2010 is in order. The Panel finds entitlement to the June 6, 2011 recurrence of the left knee injury is granted. The Panel is satisfied that the posterior horn medial meniscus as seen in the MRI of June 6, 2011 is, on a balance of probabilities, the result of his work accident of August 6, [28] The Panel notes that OPM Document No on the subject of recurrences states the following: Policy A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity. If a significant new work-related accident occurs, the WSIB establishes a new claim. [29] In this case the Panel is satisfied that there is clinical compatibility between the worker's left knee injury of August 6, 2010 and his grade III tear of the posterior horn medial meniscus of June Therefore entitlement to the recurrence of June 6, 2011 and related surgery is granted.

7 Page: 6 Decision No. 615/15 DISPOSITION [30] The worker's appeal is granted. The worker is entitled to the recurrence of June 6, 2011 for the left knee injury and related surgery. DATED: May 13, 2015 SIGNED: V. Marafioti, B. Wheeler, K. Hoskin