WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 611/16 BEFORE: C. Sand : Vice-Chair M. Falcone : Member Representative of Employers F. Jackson : Member Representative of Workers HEARING: March 7, 2016 at Toronto Oral DATE OF DECISION: April 8, 2016 NEUTRAL CITATION: 2016 ONWSIAT 928 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated August 12, 2013 APPEARANCES: For the worker: For the employer: Interpreter: V. Mehra, Lawyer Not participating 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
Decision No. 611/16 REASONS (i) Introduction and issues [1] The worker appeals a decision of the ARO, which concluded that the worker was not entitled to benefits for a right knee Permanent Impairment (PI), or to loss of earnings (LOE) benefits since November 1, 2011. (ii) Issues [2] The issues under appeal are as follows: 1. Whether the worker has ongoing entitlement for her right knee injury, including a non-economic loss (NEL) award. 2. Whether there is entitlement to LOE benefits from November 1, 2011. (iii) Background [3] The following are the basic facts. [4] The now 64-year-old worker started as a housekeeper with the accident employer in 2006. She was injured on October 16, 2008, when her cart slipped away and she fell on her right knee. The worker returned to modified work the next day, but the pain in her knee continued. The initial x-ray of October 17, 2008 showed a right patella fracture, and nil acute and just minimal degenerative change at each AC joint. The worker returned to her regular work duties on January 5, 2009. An MRI dated January 29, 2009, indicated the medial meniscus had a possible tiny horizontal nonsurfacing tear. The worker was assessed by Dr. Yee, an orthopaedic surgeon, on September 7, 2010. He suspected a progression of the meniscus tear. An MRI dated October 21, 2010 revealed a medial meniscus tear and underlying osteoarthritis. The worker underwent knee arthroscopy surgery on December 10, 2010. The worker was granted entitlement to health care and LOE benefits on a recurrence basis, effective on the date of surgery. [5] The worker never returned to work after the first surgery and, on August 26, 2011, she underwent total knee replacement surgery. Still the pain persisted, leading to a further surgery on January 27, 2012, for arthroscopic release and manipulation. The worker was assessed for a second opinion by Dr. Ali, an orthopaedic specialist, with a special interest in hip and knee reconstruction, who performed a total right knee arthroplasty revision on June 26, 2012. The worker most recently underwent a second right total knee arthroplasty revision on July 16, 2015. [6] The worker s entitlement to benefits ended on November 1, 2011, when the WSIB determined that the surgery of August 26, 2011 related to the worker s underlying osteoarthritis, and not to her workplace injury. This conclusion was based on a report by a WSIB medical consultant. The worker appealed the decision which was upheld by the ARO. (iv) Law and policy [7] Since the worker was injured in 2008, 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.
Page: 2 Decision No. 611/16 [8] Specifically, sections 43, 46, 47 of the Act govern the worker s entitlement in this case. [9] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. 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. [10] Permanent impairment means impairment that continues to exist after a worker reaches maximum medical recovery. [11] LOE benefits are payable pursuant to Section 43 of the WSIA. [12] 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. [13] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [14] Pursuant to section 126 of the WSIA, the Board stated that policy package, Revision #9 would apply to the subject matter of this appeal. This policy includes the following policy packages: Policy Package #95 Health Care Benefits; Policy Package #224 LOE Benefits benefits as of July 15, 2011; Policy Package #248 Aggravation Basis; Policy Package #253 Lost Time/No Lost Time decisions prior to February 15, 2013; Policy Package #261 NEL entitlement; Policy Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [15] We have considered these policies as necessary in deciding the issues in this appeal. (v) Analysis [16] The appeal is allowed for the reasons set out below. [17] The central question in this case is whether the worker s impairment was significantly contributed to by the workplace injury of 2008, or has resulted from progressive degenerative problems. [18] The Panel finds that prior to the accident of October 16, 2008, the worker was asymptomatic. The worker testified that she did not have any problems with her knees until her workplace accident. We found her forthright account to be credible and we accept her testimony. The medical record, which begins in February 2007 almost 20 months prior to the accident, supports the worker s testimony. There is no mention of the worker s knees in her medical file before the accident. Prior to the workplace accident, the worker worked full time as a light duty housekeeper for approximately two and a half years. The initial x-ray, taken the day after the accident showed only minimal degenerative changes.
Page: 3 Decision No. 611/16 [19] We find that the workplace injury of October 16, 2008, constitutes the starting point for the worker s right knee problems. The worker was first diagnosed with a patella fracture on October 17, 2008. The MRI of October 21, 2010 showed a medial meniscus tear, as well as underlying osteoarthritis. As described above, on December 10, 2010, the worker underwent a right knee arthroscopy, and a partial medial meniscectomy, debridement, and synovectomy. The medical documentation supports the Panel s finding that the worker s problems did not abate following the workplace injury but grew progressively worse. We refer to orthopaedic surgeon Dr. Yee s opinion from the summer of 2011: Clinically, I feel that (the worker) did aggravate or exacerbated the underlying degenerative changes of the knee as well as suffered a medial meniscus tear as a result of the work related injury. As a consequence, she underwent an arthroscopy which did not alleviate her symptoms and the only recourse was to perform a total knee arthroplasty Dr. Yee related the meniscal tear and the exacerbation of the underlying degenerative changes to the work related injury. [20] We acknowledge that the Board medical consultant came to a different conclusion on October 18, 2011. Dr. Lou s review of the medical information on file led him to conclude that the total knee replacement surgery of August 26, 2011 was not related to the medial meniscus injury, but rather to the worker s degenerative conditions. Dr. Lou discounted the possibility that the workplace injury may have exacerbated the knee osteoarthritis because he considered the time interval between the two surgeries to be too short. The Panel notes that the workplace accident had in fact taken place almost three years before the second surgery and we therefore give more weight to the treating specialist s opinion. [21] The medical discussion paper titled Knee Conditions and Disability addresses the relationship of meniscal tears to osteoarthritic knees. The discussion paper notes that it is difficult to discern if a meniscal tear causes the osteoarthritis in the knee: This may be a very difficult question to answer. Each case must be examined on its own merits. The Panel finds Dr. Yee, the worker s treating orthopaedic specialist to be best situated to make that determination, and prefers to rely on his reports. [22] Additionally, the Panel notes that the bilateral knee ultrasound dated April 21, 2012, showed the left knee to be within normal limits. If the worker s osteoarthritis were a part of her normal aging process, one would expect the changes to be bilateral. The different between the right and left knee implicates the work injury as the precipitating agent of change. [23] The three surgeries that followed the total knee replacement surgery of August 26, 2011 related to complications from that surgery. The worker s representative, Mr. Mehra, submitted that the osteoarthritis is not even consistently listed in the pre-operative diagnoses. Dr. Yee continued to treat the worker, and attempted arthroscopic release and manipulation on January 27, 2012, which failed. The pre-operative diagnosis for this surgery was 1. Right knee arthrofibrosis. 2. Right knee synovitis post total knee arthroplasty. Dr. Ali performed the next surgery, which was a revision right total knee replacement and total synovectomy. The pre-operative diagnosis was right knee total replacement with arthrofibrosis. Dr. Ali found loose tibial parts during surgery, which were unexpected and replaced during surgery. The most recent surgery was on July 16, 2015. On that date a right total knee liner exchange was performed by Dr. Shemitsch. This was largely done to address the ongoing stiffness in the worker s knee.
Page: 4 Decision No. 611/16 [24] We find the worker continues to be impaired by ongoing problems with her right knee. Her range of motion is documented in the file as severely limited. In testimony she acknowledged that she has been in receipt of Ontario Disability Support Payments (ODSP) since 2012 due to her right knee, and has received the assistance of both a scooter and a walker through ODSP. She further testified that following her surgery of August 2011, she was assigned a personal support worker (PSW) two days a week to assist her with showering and cleaning. She continues to receive the assistance of the PSW. She described difficulty standing, walking, sitting, bending, picking things up from the floor, personal grooming, cleaning, and cooking. The worker s difficulty walking was evident at the hearing. [25] In a letter dated May 17, 2012, Dr. Yee confirmed that the worker s permanent impairment related to her workplace injury. [26] The Panel finds that prior to the workplace accident of October 16, 2008, the worker did not have a symptomatic knee problem that interfered with her functioning. On the preponderance of the evidence we find that the meniscal tear was the direct result of the injury, accelerating and rendering symptomatic the degenerative changes from that time as well. We find that the accident of October 16, 2008 has significantly contributed to the worker s ongoing knee problems and her permanent impairment. The worker never returned to her pre-accident state of no functional impairment. The Panel is satisfied, from the medical evidence in the case record and the worker s testimony, that she has been unable to do work of any kind since November 1, 2011, and that her physical and functional restrictions continue to preclude her from gainful employment. [27] In coming to this conclusion we have considered the worker s age, the fact that she cannot return to any physically demanding work (which is the kind of employment she used to do), and her mobility issues. In our view, there was no reasonable opportunity for her to work after November of 2011.
Page: 5 Decision No. 611/16 DISPOSITION [28] The appeal is allowed: 1. The worker has an ongoing entitlement for her right knee, including a NEL award. 2. The worker is entitled to full LOE benefits from November 1, 2011, until she turns 65 on September 27, 2017. [29] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: April 8, 2016 SIGNED: C. Sand, M. Falcone, F. Jackson