WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2568/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2568/06 BEFORE: R. McClellan : Vice-Chair HEARING: December 22, 2006 at Toronto Written DATE OF DECISION: January 3, 2007 NEUTRAL CITATION: 2007 ONWSIAT 7 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 16, 2006 APPEARANCES: For the worker: For the employer: Interpreter: NONE Not Participating 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. 2568/06 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) dated March 16, That decision concluded that the worker did not have entitlement for an increase in the permanent disability award of 5% for residual disability in the right foot and ankle. The issue before the Vice-Chair is whether the worker has entitlement to an increase in his 5% permanent disability award arising from the accident of November (ii) Background [2] The worker is now 59 years of age. He was employed as a press operator when, on November 16, 1988, he was struck on the right foot by a falling coil of wire. He sustained multiple fractures to the 5th, 4th, 2nd and possibly 3rd metatarsal bones of the right foot. Following treatment, including a cast, the worker returned to work in January He continued to work as a press operator until 2003 when he moved to British Columbia. In February 2004, he obtained a job in construction. On July 27, 2004, the worker sustained a right-knee injury subsequently diagnosed as chronic right knee pain following a varus stress injury, consistent with pes anserinus bursitis. [3] Following the 1988 accident, the worker was given a pension rating examination by Board Medical Advisor, Dr. Whittie, on January 30, 1990, and was awarded a 3% permanent disability award for loss of functional capacity in the right foot. [4] In September 2004, the worker contacted the Ontario Board requesting a reassessment of his 3% permanent disability award for the right foot. Board Memo #32, dated October 27, 2004 records that the worker advised the Claims Adjudicator that he had not received medical treatment for the right foot from 1990 until recently. [5] On November 1, 2004, Board Medical Consultant, Dr. Maehle, reviewed the worker s medical file. He wrote: As far as the quantum of the award is concerned, it reflects persistent pain and slight compromise of ankle range of movements as well as likely evidence of a right Morton s neuroma in the first plantar area. [6] Based on recently received reports from Podiatrist Dr. T. Gracen, dated September 18, 2004, which reported ongoing complaints of right-foot pain, and x-rays showing osteophytes at the dorsum of the cuboid bone, Dr. Maehle adjusted the worker s permanent disability award from 3% to 5%. He noted that he did so with some benefit of doubt in favour of the patient. [7] Following a further note from Dr. Gracen in February 2005, Dr. Maehle arranged to have the worker assessed by the Workers Compensation Board of British Columbia. The permanent impairment functional evaluation conducted by the BC Board is dated June 29, The evaluation reported normal right-angle movements, symmetrical on both sides, as well as at the subtalar and metatarsal joints. The only abnormality noted was some reduction of plantar flexion in the big toe in the MPP joint.

3 Page: 2 Decision No. 2568/06 [8] In Board Memo #40, dated July 18, 2005, Dr. Maehle wrote: The above makes the claimant appropriately compensated for his compensable condition. Dr. Maehle also noted the separate and unrelated knee injury sustained in July [9] Dr. Maehle reviewed the file again on December 16, 2005, and he reiterated that the worker had been correctly compensated in respect of the 1988 right foot injury. He noted that the current right ankle diagnosis of psoriatic arthritis was related to the knee injury of 2004 which had been diagnosed as tendonitis of the pes anserinus. [10] In a short report dated May 26, 2006, Dr. Gracen advised the Board that while the worker had been adequately compensated for a metatarsal fracture, he had not been compensated for a fracture of the lateral cuneiform or metatarsal/cuneiform and that this component of the 1990 injury had been missed at the time of the original diagnosis. She claimed that the worker was no longer able to work as a labourer. [11] On September 15, 2006, Dr. Gracen submitted a note with a diagnosis of post-traumatic arthritis right foot. [12] A Functional Abilities Evaluation conducted by the Columbia Centre in British Columbia, dated May 26, 2006, gave a Discharge Report that the worker had chronic right knee pain following a varus stress injury, with a diagnosis of pes anserinus bursitis. The worker also had a previous injury to his ankle which affects his gait as well. There is over pro-nation of the foot and impaired toe-off which alters his gait and affects his knee as well. [13] On October 15, 2005, Rheumatologist, Dr. Verdejo advised that, contrary to his previously expressed opinion, the worker did not have psoriatic arthritis. He wrote as follows: Opinion 1. It is my final opinion that [the worker] does not have an inflammatory arthropathy, namely psoriatic arthritis causing his painful joints, as shown by failure to respond to steroids. 2. Although the severity of his pain at the right knee and right ankle are a little more than one would expect to see with the recognized anatomical changes, the only explanation for this chronic pain at these two joints is some degree of osteoarthritis, in the case of his right ankle, as a complication of trauma in 1988, and at the right knee, symptoms unmasked by his injury at work on July 27, [14] On June 29, 2005, a Permanent Functional Impairment evaluation was undertaken by Dr. Ragheb, Medical Advisor to the British Columbia Board, pursuant to Dr. Maehle s request. Dr. Ragheb reported that right ankle range of motion was normal in all respects except for the big toe at the MTP joint. Neurological examination was normal, as were reflexes. There was no sign of acute inflammatory condition of the small joints of the toes and the foot. The tendons were intact. While the worker did have some right foot swelling, he walked without a limp, there was no muscle wasting and the worker was able to tiptoe and do heel walking. (iii) Law and Policy [15] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act

4 Page: 3 Decision No. 2568/06 continues to apply to pre-1998 injuries. Thus the pre-1989 Act continues to apply, as amended by the WSIA. 45(1) Where permanent disability results from the injury, the impairment of earning capacity of the worker shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly or other periodic payment during the lifetime of the worker, or such other period as the Board may fix, of a sum proportionate to such impairment not exceeding in any case the like proportion of 90 per cent of the worker's net average earnings. (2) Compensation for permanent disability is payable whether or not an award is made for temporary disability. (3) The Board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations that may be used as a guide in determining the compensation payable in permanent disability cases. (12) For the purposes of this section, "permanent disability" means any physical or functional abnormality or loss, and any psychological damage arising from such abnormality or loss, after maximal medical rehabilitation has been achieved. [16] 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 WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal. (iv) The Vice-Chair s conclusions [17] I have carefully reviewed the medical evidence in the Case Record. Despite the assertion of Dr. Gracen in her short one-paragraph statement dated May 26, 2006, there is no radiographic evidence or any other medical evidence of a missed diagnosis for a fracture of the lateral cuneiform or of a metatarsal/cuneiform joint injury. [18] The issue before me is further clouded by the compensable knee injury of July 27, 2004 when the worker injured his right knee and possibly his right ankle as well. This accident constitutes an intervening event which serves to break any chain of causation which may have existed between the current state of the right ankle and the foot injury of In this appeal, we are strictly addressing the effects of the 1988 injury under the 1988 accident claim. [19] The evidence before me is that the fractures resulting from the 1988 accident were to the 5th, 4th, and 2nd metatarsals, and possibly to the 3rd metatarsal as well. There is no evidence before me, other than Dr. Gracen s statement made 18 years after the event, that the lateral cuneiform was fractured. [20] Furthermore, the assessment conducted by the British Columbia Medical Advisor at the request of Dr. Maehle did not establish a level of disability in the right foot greater than that observed by Dr. Maehle in his previous rating reviews. [21] The worker has been awarded a 5% permanent disability for residual disability in the right foot, based on the history of metatarsal fractures causing forefoot pain, slight compromise of ankle range of motion, (which I note was not evident in the BC assessment) and a possible

5 Page: 4 Decision No. 2568/06 Morton s neuroma in the first plantar nerve. Dr. Maehle added 2% to the existing 3% award, evidently to account for the development of small osteophytes arising from the dorsum of the cuboid bone. Based on the evidence of the most recent assessment from Dr. Ragheb, there is no indication that the right foot condition has deteriorated below the rated level of 5 %. [22] The WSIB has adopted the Ontario Rating Schedule (ORS) as a clinical guide to evaluation, for consistency of medical assessment under the provisions of section 45. The ORS is used only as a guide for minimum rating levels for specified disabilities. It shows, in percentage, the approximate impairment of earnings capacity in an average unskilled worker. In every case, emphasis is placed on the individual factors being appraised, and appropriate allowances are made. [23] Under the ORS, the maximum award for a totally immobilized ankle is 12 %. The maximum award fro a totally immobilized great toe is 5%. [24] In my opinion, the 5% permanent disability rating accurately reflects the residual disability in the worker s right foot arising from the accident of 1988, based on normal practice, pursuant to the schedule of benefits set out in the ORS. The worker s appeal is denied.

6 Page: 5 Decision No. 2568/06 DISPOSITION [25] The worker s appeal is denied. DATED: January 3, 2007 SIGNED: R. McClellan