WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 45/17

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 45/17 BEFORE: C. M. MacAdam : Vice-Chair V. Phillips : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: December 12, 2016 at Oshawa Oral DATE OF DECISION: January 17, 2017 NEUTRAL CITATION: 2017 ONWSIAT 179 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated January 15, 2013, and November 30, 2014 APPEARANCES: For the worker: For the employer: Interpreter: J. Carr, Union Representative 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. 45/17 REASONS (i) Introduction [1] The worker appeals two decisions of the ARO. That of January 15, 2013, denied entitlement for the right knee in relation to an accident on February 9, 2012, or to the general job duties. The decision of November 30, 2014, denied entitlement for the left knee in relation to an accident on August 1, These remain the issues for determination in the appeal. (ii) Background [2] The worker was hired as a cleaner in a seniors residence in June [3] The worker claimed that on February 9, 2012, she bent at her knees to place clothes in a washing machine when her right knee gave out. On March 1, 2012, the claim was denied on the grounds that there was a pre-existing condition in the right knee and it could not be determined if the right knee injury was caused by the workplace accident. The worker objected to the decision though it was confirmed on reconsideration. The worker continued to object. A June 8, 2012 right knee MRI report indicated a complete radial tear involving the posterior root of the medial meniscus with mild extrusion and mild osteoarthritis in the medial compartment. The ARO decision of January 15, 2013, found there was no compatibility between the incident on February 9, 2012, and the MRI finding of meniscal tear, in light of the pre-existing degenerative condition in the right knee, and the worker having been symptomatic for some months prior to the accident date. The worker now appeals that decision to the Tribunal. [4] On August 20, 2013, the worker signed a Form 6 indicating that on August 1, 2013, she injured her left knee, that she went to the Emergency Unit on that date, and reported the injury to her employer the next day. She returned to modified duties with no lost time. In a decision letter dated May 7, 2014, the Case Manager (CM) noted that the claim had been allowed for a left knee strain but not for the later finding of left meniscal tear due to a lack of compatibility with the August 1, 2013 activity of pushing an empty laundry cart. The worker objected to the decision, though it was confirmed by the ARO on November 30, The worker now appeals to the Tribunal. (iii) Law and policy [5] Since the worker claimed to be injured in February 2012, 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. [6] An accident is defined in section 2(1) to include: (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment. [7] General entitlement to benefits is governed by section 13: 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.

3 Page: 2 Decision No. 45/17 (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [8] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [9] The standard of proof in workers compensation proceedings is the balance of probabilities. [10] 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: #241 and 300. [11] OPM Document No , Definition of Accident, describes a chance event as an identifiable unintended event which causes an injury, an injury itself is not a chance event. The policy defines a disablement as a condition that emerges gradually over time or an unexpected result of working duties. [12] OPM Document No , Adjudicative Process, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history (emphasis added). (iv) Testimony [13] Concerning pre-existing right knee problems, the worker testified that she had aching in the right knee and that an MRI had been done with no follow-up. [14] The worker testified that on February 9, 2012, she felt a pop in her knee while bending to load laundry into a front-load washing machine. Her husband came to get her at work and she was driven to the hospital. She was unable to get out of the car. [15] The worker testified that her job duties involved pushing large laundry carts that were difficult to manoeuvre and required her to use her body weight and knees to do so. This led to the aching right knee pain and limping, for a period prior to the accident of February 9, The worker still wears a right knee brace while she remains working full time at the same job. (v) Documentary and medical evidence Entitlement for the right knee [16] A January 26, 2012 clinical note from the family physician, Dr. S. Sangstar-Gibson, indicated the worker complaining of a two-month history of right knee/thigh pain. A January 27, 2012 right knee x-ray report from the radiologist, Dr. Doris Jabs, indicated mild degenerative changes. [17] The ER report on February 9, 2012, indicated the worker twisted her knee with immediate pain and that she had no similar previous experience. On examination, the right knee was swollen with small joint effusion. [18] Dr. Sangstar-Gibson s clinical note of February 13, 2012, indicated the worker had: hurt her right knee at work on the 9 th, was bending down to put laundry in washer and felt a sudden pop went to ER and put in a splint (which she was wearing improperly today!)

4 Page: 3 Decision No. 45/17 and referred to Ortho told to wear the splint until she sees Ortho and note given for light duties. [19] A February 14, 2012 Form 8 from Dr. Sangstar-Gibson indicated a probable medial meniscus tear with pre-existing early chronic degenerative changes in the right knee. [20] The worker saw an orthopaedic specialist, Dr. M. O Connor, on March 15, Dr. O Connor noted the worker s twisting injury with immediate pain, that the x-rays had indicated some mild medial joint osteoarthritis and that she continued to wear a brace during the day. On examination, with the brace removed, there was reasonable range of motion (ROM) though fairly exquisite discomfort along the medial line. She was fitted with a new, better brace, and a physiotherapy program. A complete recovery was expected. On April 25, 2014, Dr. O Connor reported the worker s medial joint line was stable and endorsed her decision to return to full duties the next day. [21] A May 8, 2012 physiotherapy Discharge Report indicates the worker was making no progress after 12 treatment sessions. The worker had right interior and medial joint line pain with every step, though she had good ROM. A torn meniscus was suspected and an MRI was recommended. Dr. Sangstar-Gibson ordered the MRI and Dr. O Connor reported on the ongoing symptoms. [22] The June 8, 2012 right knee MRI report from the radiologist, Dr. P. Fenton, indicated a complete radial tear involving the posterior root of the medial meniscus. [23] Dr. Sangstar-Gibson s clinical note of June 19, 2012, noted the Board s denial of the claim and she wrote physio and Ortho and feel that the pain she had prior to this injury was different and that the tear occurred at work. [24] On April 23, 2013, Dr. Sangstar-Gibson wrote to the Board again arguing that the preexisting pain was entirely different intermittent and generalized lateral thigh and knee pain whereas: on February 9, 2012 she complained of a sudden pain in her medial knee while bending and twisting to put laundry in the machine. There was immediate severe pain that was constant and there was significant swelling. She required a splint for pain control and went on to have debridement of the medial knee joint. In spite of some pre-existing knee pain (which was a different type of pain and different location) and the lack of a tear on arthroscopy, her history is clearly suggestive of an injury at work in February Entitlement for the left knee meniscal tear [25] The worker claims a left knee injury on August 1, [26] An August 21, 2013 report from Dr. Aaron Campbell, indicates the worker was being seen for both knees, the left knee described as the more recent one. [27] An August 28, 2013 Health Professional s Report (Form 8) from a physiotherapist indicated an August 1, 2013 accident date where the worker reported a pop in her left knee while pushing a laundry cart with acute pain rated at 7/10. The report noted the earlier right knee meniscal tear. Also on August 28, 2013, the worker had a left knee MRI that indicated mild chondromalacia patella, a possible synovial or ganglion cyst, and radial tear/root avulsion of the medial meniscus.

5 Page: 4 Decision No. 45/17 [28] On September 4, 2013, Dr. Campbell reported the most significant clinical finding was the root avulsion which is consistent with her injury. Dr. Campbell described why surgery does not often succeed and leaves a person in pain. He stated: I would treat this like a degenerative type tear and do some physiotherapy and give it time. By this, we understand Dr. Campbell to have opined that the root avulsion injury was compatible with the injury described by the worker; that the injury was not the same as a degenerative tear, but should be treated like one. [29] The worker was assessed at a Regional Evaluation Centre (REC) in relation to her left knee. It was recommended that she remain on modified duties and that she be referred for probable arthroscopic surgical management. (vi) Analysis [30] After considering all the evidence, the Panel finds the appeal should be allowed. Our analysis follows: The right knee [31] The ARO noted that on April 25, 2012, Dr. O Connor had approved the worker s return to full hours and yet, only one week later, the MRI had indicated a complete right meniscal tear. On this basis and the evidence that a meniscal tear may result without acute injury, the ARO determined the right knee strain injury had resolved by April 25, 2012 and that compatibility with the subsequent clinical findings was not established. We have come to a different conclusion. We find a preponderance of the evidence, especially the medical evidence, supports a finding that the worker sustained a right meniscal injury when she bent over to place laundry in a front-load machine on February 9, 2012, that did not resolve by April 2012, and went on to require surgery. [32] The January 27, 2012 right knee x-ray report had indicated only mild degenerative changes. We find it possible though not probable that the mild condition suddenly became acute on February 9, 2012, and remained so. Probable, in our view, is that the acute right knee symptoms reported on February 9, 2012, were related to the worker s account, supported by her treating health professionals that her bending to place laundry in a front-load washing machine caused her knee to pop with immediate pain. [33] The worker indicated to the Eligibility Adjudicator on July 13, 2012, that she had bent at the knees pushing laundry into the machine but that she had no recollection of a twisting motion. However, the worker appears to have reported on other occasions that she had twisted her knee while putting the laundry in the machine. This was indicated to the ER staff on the accident date and to Dr. O Connor, in March Dr. Sangstar-Gibson did not mention a twisting injury, though she has repeatedly argued that the earlier complaints of pain were different from those after the February 9, 2012 accident. On this basis, we find the worker did, on the accident date, sustain a twist injury to her right knee that is compatible with her ongoing complaint as per the opinions of her treating health professionals. [34] While we note that on April 25, 2014, Dr. O Connor reported the worker s medial joint line was stable and he endorsed her decision to return to full duties the next day. On May 23, 2012, Dr. O Connor reported the worker was working with assistance on a full day basis. By this, we understand the worker had returned to regular hours though at modified duties. This indicates the right knee had not fully recovered and is consistent, in our view, with the May 8, 2012 physiotherapy Discharge Report that indicated a lack of recovery despite 12

6 Page: 5 Decision No. 45/17 treatments. The evidence indicates the worker s condition did not improve when she returned to regular hours. [35] In summary, we find there is compatibility between the clinical findings in the right knee after February 9, 2012, and the workplace accident on that date. The left knee [36] The claim for the August 1, 2013 left knee injury had initially been approved on the basis of the worker having heard her left knee pop while using a pivoting movement with her left knee while pushing a laundry cart. That decision was reconsidered and reversed largely on the opinion of the Board medical Consultant, Dr. Jamie Rusen s April 30, 2014 review of the medical file and opinion that the activity of pushing an empty laundry cart was not compatible with the meniscal tear indicated in the August 28, 2013 MRI report. Dr. Rusen had stated: The genesis of radial meniscal tears is usually secondary to knee trauma. The accepted history consistently describes the worker reportedly feeling a pop and the left knee when pushing an empty laundry cart. There is no description of a traumatic mechanism to the knee and no report of twisting mechanism. [37] With respect, the Panel places full weight on the worker s detailed testimony concerning the laundry carts in question; that they were quite large - three feet by three feet and over three feet tall, that they were in poor repair and required her to use her knees and body weight to manoeuvre them. This was the worker s evidence since the time of injury. In this respect, we find the worker did use pivoting movements with her knees to steer and manoeuvre the large laundry carts and hence was susceptible to acute knee injury. [38] We note that Dr. Campbell s September 4, 2013 report was not before Dr. Rusen at the time of his opinion. In our view, Dr. Campbell distinguishes the work-related root avulsion injury from a degenerative injury. Dr. Campbell reported the most significant clinical finding was the root avulsion which is consistent with her injury. Dr. Campbell described why surgery does not often succeed and leaves a person in pain. He stated I would treat this like a degenerative type tear and do some physiotherapy and give it time. Again, by this we understand Dr. Campbell to have opined that the root avulsion injury was compatible with the injury described by the worker; that the injury was not the same as a degenerative tear, but should be treated like one. We find it probable that Dr. Rusen would not have expressed the same opinion against compatibility if he had been aware of Dr. Campbell s report. [39] In summary and for these reasons, we find there is compatibility between the worker s accident of August 1, 2013, and the MRI findings of a left radial tear/root avulsion.

7 Page: 6 Decision No. 45/17 DISPOSITION [40] The appeal is allowed. The Board is directed to determine the extent and duration of benefits flowing from this decision with the worker retaining the usual right of appeal. DATED: January 17, 2017 SIGNED: C. M. MacAdam, V. Phillips, D. Broadbent