WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1341/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1341/16 BEFORE: S. Peckover: Vice-Chair HEARING: May 24, 2016 at Toronto Written DATE OF DECISION: June 16, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1604 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 17, 2014 APPEARANCES: For the worker: For the employer: Interpreter: D. Dutton, Union Representative E. O Dwyer, Lawyer Not Required 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. 1341/16 REASONS (i) Introduction [1] The employer appeals two ARO decisions, as follows: An ARO decision dated January 17, 2014, which denied the employer s requests for rescission of entitlement to a Permanent Impairment and the associated non-economic loss (NEL) award, and for rescission of entitlement to bilateral knee braces; and An ARO decision dated December 15, 2014, which found that the 15% quantum of the NEL was appropriate. (ii) Issues [2] The issues under appeal are as follows: 1. Whether the worker s entitlement to a PI should be rescinded; and 2. Whether the worker s entitlement to bilateral knee braces should be rescinded. (iii) Background [3] The following are the basic facts. [4] The worker, a telephone technician born in 1959, suffered a bilateral knee injury on April 14, On that date, he was walking along the walkway to a client s home. When he stepped on the first step up to the building, a loose paving stone shifted, and he fell, landing on both knees. Entitlement initially was allowed for bilateral knee sprains / strains, but was later expanded to include meniscal and lateral tears. [5] In a decision letter dated January 13, 2012, the worker was advised that he had now recovered to his pre-accident level. His claim for a right knee injury therefore would be closed, and his left knee problems from an accident dated December 13, 2011 would be covered under a different claim number. There was no assessable PI for the right knee. [6] The worker objected, and provided additional medical documentation stating that he needed surgery on both knees. After obtaining an external medical consultant s opinion with respect to compatibility of the surgery to the mechanism of injury, the Case Manager allowed entitlement for the surgery, which occurred on March 20, It consisted of bilateral partial medial and lateral meniscectomies, multi-compartment debridements, and partial synovectomies. [7] The worker suffered a second injury on September 4, 2012, while ascending a step ladder. He lost his footing and fell, catching his right leg between the second and third steps of the ladder. As well as reinjuring his right knee, he had soft tissue injuries to the right thigh, left elbow, and low back. By October 10, 2012, the date of an Independent Medical Assessment by orthopaedic surgeon Dr. Kaminker on behalf of the employer, the worker reported that his soft tissue injuries had resolved, although he had some residual pain in the upper thigh. The right knee remained symptomatic. [8] The worker underwent a total right knee arthropathy on November 21, A left knee total arthropathy is contemplated.

3 Page: 2 Decision No. 1341/16 [9] The worker had pre-existing problems with his knees, for which he had undergone surgery prior to the compensable accident before me, as follows: With respect to the right knee, he injured it in a workplace accident on April 18, Investigations revealed a complex tear of the posterior horn of the medial meniscus, with a displaced fragment and some degenerative changes in the medial compartment of the right knee. He underwent an arthroscopy of the right knee on August 1, An x-ray of the right knee dated April 12, 2011 (and therefore just before the workplace accident) indicates that the worker had moderate tri-compartmental OA, most pronounced in the medial and patellofemoral compartments, with joint space narrowing, subchondral sclerosis, and osteophyte formation. There was no evidence of an acute fracture or dislocation. With respect to the left knee, an x-ray dated June 17, 2008 revealed mild compartmental OA, most pronounced in the medial and patellofemoral compartments, with joint space narrowing, subchondral sclerosis, and osteophyte formation. A left knee MRI dated November 1, 2008 revealed a horizontal tear involving the posterior horn of the medial meniscus, which extended to the body, and to the inferior articular surface. The worker underwent an arthropathy of the left knee in December A left knee x-ray done on April 15, 2011 (the day after the compensable accident) reveled left knee effusion, along with moderate tri-compartmental OA, most pronounced in the medial and patella-femoral compartments, with joint space narrowing, subchondral sclerosis, and osteophyte formation. [10] In a note dated February 8, 2013, orthopaedic surgeon Dr. Gandhi noted that the worker needed, among other things, bilateral unloader knee braces. In a decision letter dated March 8, 2013, the Nurse Consultant denied entitlement for the braces, on grounds that the worker had no permanent impairment from this injury, which had been allowed for bilateral knee strains, and later, for surgery for a meniscal tear. Any ongoing issues following this incident were attributed to the OA that was present prior to the workplace accident. [11] In a decision letter dated March 11, 2013, the Case Manager denied entitlement to a PI, on grounds that the worker s ongoing knee problems were related to his pre-existing OA. [12] At the Appeals Services Division, in a decision dated January 17, 2014, the ARO reviewed the available medical evidence, and found that, since the worker required bilateral knee surgery which was accepted as related to the workplace injury, it was reasonable to conclude that he sustained a permanent worsening of his pre-existing impairment. Consequently, the worker was entitled to a NEL assessment. Given the ongoing entitlement, the knee braces also were in order. [13] The ARO decision was sent to the Nurse Case Manager for implementation. In a decision letter dated February 25, 2014, she advised the worker that she had rated the impairment in each knee at 16%. However, the worker had a pre-existing condition in both knees, which she had rated at 8%. This pre-existing condition had to be subtracted from the total impairment rating for each knee, resulting in a compensable PI of 8% in each knee. When combined, the worker s total NEL benefit was 15%. The employer objected.

4 Page: 3 Decision No. 1341/16 [14] At the Appeals Branch, in a decision dated December 15, 2014, the ARO noted that the employer had disputed entitlement to a NEL assessment under the January 17, 2014 ARO decision, which was not before him/her. S/he noted that the 15% NEL quantum considered the fact that the worker had measurable pre-existing impairments in both knees, and reviewed the calculation. The ARO concluded that the NEL calculations were done correctly, based on the information included in the evaluation. S/he therefore upheld the decision granting the worker a 15% NEL award for the permanent deterioration of his pre-existing bilateral knee impairments. [15] The employer appeals from both decisions. (iv) Law and policy [16] Since the worker was injured in 2011, 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. [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 #107 Aggravation Basis/SIEF; Package #261 NEL Entitlement; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [18] I have considered these policies as necessary in deciding the issues in this appeal. In particular, the following excerpts are relevant to the issue before me. Operational Policy Manual (OPM) Document No , Aggravation Basis, which reads as follows: Policy In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state. Definitions An aggravation is the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity. A minor accident is one that, in the absence of a pre-accident impairment, would be expected to cause a non-disabling or minor disabling injury or illness. A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. (Although the period of time cannot be defined, a decision-maker may use a one to two year timeframe as a guide).

5 Page: 4 Decision No. 1341/16 Permanent Impairment In some cases, workers never return to the pre-accident state. If there is a permanent worsening of the pre-accident impairment, the decision-maker may determine that the work-related injury/illness has permanently aggravated the pre-accident impairment. If medical evidence confirms that the work-related injury/illness permanently increased the worker s pre-accident impairment, the worker may be entitled to a non-economic loss benefits. [Emphasis in original] OPM Document No , Determining the Degree of Permanent Impairment, which indicates as follows: Policy Workers who have a work0related permanent impairment are eligible for non-economic loss (NEL) benefits. To rate permanent impairments, the WSIB uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, the report from a NEL medical assessment. Permanent impairment Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. A worker s degree of permanent impairment is expressed as a percentage of total permanent impairment of the whole person. (v) Analysis [19] In his submissions faxed to the Tribunal on August 18, 2015, Mr. Dutton stated that it was his firm belief that the appeal had no merit, as the medical evidence clearly showed that there was a PI. He noted two medical reports, in particular, in support of this contention, and also provided a new report from the worker s family physician. Further, he believed that the worker was entitled to health care benefits related to his compensable injury. The PI and knee brace entitlements therefore should not be rescinded. [20] In his submissions dated September 28, 2015, Mr. O Dwyer reviewed the medical evidence, and submitted that, while the worker might have a permanent bilateral knee impairment, it was entirely attributable to the worker s non-compensable degenerative conditions. The employer submitted that, subsequent to his surgery of March 20, 2011, the worker had fully recovered from the work-related injury, and any residual impairment was related to his pre-existing condition. Further, Drs. Gandhi and Kaminker both had found that he worker s ongoing impairment was a result of his osteoarthritis, a condition that pre-existed his workplace accident. He submitted that the finding that the worker was permanently impaired should be overturned, as the worker s ongoing impairment was caused solely by a pre-existing condition. Consequently, the NEL award and entitlement to bilateral knee braces should be rescinded as well. [21] There is no dispute that the worker has osteoarthritis/degenerative changes in his knees, or that these pre-existed the workplace accident that is before me. That is plainly shown on all of

6 Page: 5 Decision No. 1341/16 the diagnostic investigations, and was acknowledged by all of the worker s treating physicians. The employer is of the view that all of the worker s ongoing knee difficulties are a result of his non-compensable osteoarthritis, and therefore a PI is not assessable. [22] Turning to the medial record, the following medical practitioners weighed in on the issue: In a report dated February 8, 2013, orthopaedic surgeon Dr. Gandhi reported as follows: [The worker] is a patient who is currently under our care after having bilateral knee arthroscopies. In my opinion, [the worker] suffers from a permanent impairment to his knees, for which, I would recommend a portable TENS unit. Orthopaedic surgeon Dr. Kaminker assessed the worker at the employer s request. In his report dated October 10, 2012, he indicated as follows: From a functional perspective, the evaluee has returned to his basic self-care activities and activities of daily living. He has returned to his previous occupational duties. It should be noted that the evaluee was placed on specific restrictions by Dr. Gandhi due to his underling degenerative change in both knees. Restrictions include avoiding climbing poles and avoiding carrying ladders over his shoulder. These restrictions seem reasonable given the degenerative change and intraarticular derangements noted at the time of arthroscopy. It is likely that the evaluee will be able to continue to perform his occupational duties as long as these restrictions are maintained. ANSWERS TO SPECIFIC QUESTIONS: 1. What is your diagnosis? Therefore, at this time, the evaluee has evidence of degenerative change in both knees. 5. In your opinion will there be permanent impairment? If so, please indicate the percentage of the any all [sic]? A) knees b) right arm c) thigh With respect to his knees, he will be left with permanent impairment. Previous review of the MRIs as well as described findings at arthroscopy suggest that the evaluee has evidence of degenerative osteoarthritis of both knees. I cannot provide a specific percentage of impairment. However, the evaluee should be capable of performing self-care activities, basic activities of daily living, and most occupational duties as long as he avoids climbing poles and carrying heavier ladders. [Emphasis added] In Board Memo #20 dated February 22, 2012, the Case Manager asked an external physician to review the worker s file with respect to whether the proposed surgery was related to the compensable condition or to a pre-existing condition. If it was related to a pre-existing condition, was the deterioration related to the compensable condition or natural aging/degeneration? In his response in Board Memo #21 dated February 27, 2012, Dr. Bright responded as follows: 1. The surgery is directly related to the compensable condition. The rationale for the surgery is that of internal derangement of the left and right knees which are the result of degenerative meniscal tears.

7 Page: 6 Decision No. 1341/16 2. It does not appear that the surgery is being recommended for the treatment of osteoarthritis instead [sic] it is clear that it is for the meniscal injuries which are compensable injuries. It can be argued that even the osteoarthritis which is obviously a degenerative condition could also be exacerbated by his meniscal injuries. Clearly internal knee derangements such as meniscal tears disturb knee function and often predispose one to more rapid osteoarthritic changes. [Emphasis added] [23] To the best of my knowledge, those are the most relevant medical records with respect to whether the worker would have a PI. Both Dr. Kaminker and Dr. Bright expressed the opinion that the worker s PI was related to his degenerative OA. Dr. Bright added that it could be argued that the non-compensable OA was exacerbated by the meniscal injuries. He expressed the opinion that internal knee derangements, such as meniscal tears, disturb knee function, and could predispose one to more rapid OA changes. [24] The Tribunal s Medical Discussion Paper entitled Knee Conditions & Disability, by orthopaedic surgeons Dr. Cameron and Dr. Tile, and dated August 2013, indicates as follows in this regard: Degenerative Tears As noted above, degenerative tears are found in a high percentage of knees with osteoarthritis. In the year age group, the incidence is greater than 50%. They may be considered as age related changes that are seen in other joints and in the spine. This makes it difficult for the clinician to determine whether the symptoms are due to the underlying osteoarthritis or the degenerative tear, usually horizontal, or flap type. Most people are treated for the primary osteoarthritis, but surgery may be indicated if symptoms of internal knee derangement persist. These symptoms are swelling, locking and giving way, associated with pain. The intervention may be partial meniscectomy with debridement, and should only be done for these strict indications. Osteoarthritis is already present; therefore the ultimate prognosis is guarded. Some people with deformity may be made worse after meniscal surgical intervention. Relationship of meniscal tear to osteoarthritic knee: cause and/or effect? This may be a very difficult question to answer. Each case must be examined on its own merits. The guidelines have been outlined above, for both the acute traumatic tears, and the chronic degenerative tears associated with osteoarthritis. Acute traumatic tears in time may lead to radiographic and subsequent clinical osteoarthritis. This is more prevalent in complex ligament trauma, such as ACL tear, associated with meniscal tear. In the people with chronic degenerative tears, osteoarthritis is already present. In these people, the symptoms may be more related to the osteoarthritis than the tear. However, in some, symptoms of internal derangement may develop requiring intervention. In this group, the outcomes may be unpredictable. Therefore this continues to be a controversial subject. There is controversy over whether or not arthroscopy plays a role in the management of osteoarthritis with associated meniscal tears. It often takes an experienced surgeon to determine whether or not the person with a combination of meniscal tear and osteoarthritis, would benefit from arthroscopy. [Emphasis added] [25] Dr. Bright clearly was of the opinion that the meniscal tears involved in an internal derangement situation could exacerbate osteoarthritis within the knee, and accelerate its advance.

8 Page: 7 Decision No. 1341/16 While Dr. Bright is not a specialist, and does not offer any studies or other documentation to back up his comments, where his comments overlap with the contents of the Medical Discussion Paper, above, the two sources are in harmony. I therefore accept Dr. Bright s opinion, and conclude that the worker s meniscal tears permanently aggravated his non-compensable osteoarthritis. [26] Further, I note that, prior to the 2011 workplace accident, the worker was able to perform his regular work duties without restrictions of any kind. Following the accident, he was able to perform it with restrictions. Those restrictions are permanent. The worker therefore never returned to his pre-accident level of functioning. [27] As a result of the above, I find that the worker has a PI in both knees. He therefore is entitled to a NEL award for that PI. Since he has a PI, he is entitled to bilateral knee braces. [28] The employer has made no submissions with respect to the quantum of the NEL. I have reviewed the documentation in this regard, and find it to be accurate and in accordance with the AMA Guides, 3 rd Edition. I therefore confirm the quantum of the NEL at 15%.

9 Page: 8 Decision No. 1341/16 DISPOSITION [29] The appeal is denied. DATED: June 16, 2016 SIGNED: S. Peckover