WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1543/08

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1543/08 BEFORE: J. Parmar : Vice-Chair J. Seguin : Member Representative of Employers R. J. Lebert : Member Representative of Workers HEARING: June 27, 2008 at Ottawa Oral DATE OF DECISION: July 15, 2008 NEUTRAL CITATION: 2008 ONWSIAT 1966 DECISION(S) UNDER APPEAL: WSIB ARO decision dated April 19, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Did not participate 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 REASONS (i) Introduction Decision No. 1543/08 [1] This is an appeal by the worker to the Workplace Safety and Insurance Appeals Tribunal in respect of a decision by an Appeals Resolution Officer (ARO) of the Workplace Safety and Insurance Board (the Board ), dated April 19, 2005, which held the worker was entitled only to partial Loss of Earnings (LOE) benefits from May 20, 2004 as calculated on the basis of the earnings of a Suitable Employment or Business (SEB) of Motor Vehicle and Transit Driver. (ii) Background [2] On June 17, 2002, the worker sustained an injury to his left knee when his foot was caught in a skid as he was turning. At the time, the worker was employed with a vending machine business. The worker continued to work for a couple days, but then laid off and sought medical treatment. He eventually underwent surgery, an arthroscopic partial medial meniscectomy, for his knee in August The worker then participated in physiotherapy, from which he was discharged in March [3] By that date, it became clear the accident employer was unable to provide suitable modified work. The worker was referred for Labour Market Re-entry (LMR) services. The worker agreed to participate but noted he did not agree and took the position he could not work due to his knee. Through the LMR assessment, it was determined that Motor Vehicle and Transit Driver was an appropriate SEB for the worker. It was determined the worker would be provided job search training to assist in achieving this goal, to begin on April 19, The worker began the job search training, but then advised on April 21, 2004 that he was unable to continue due to his knee injury. The worker received full LOE benefits until May 20, 2004, at which time the LMR program was to be completed. As of that date, his LOE benefits were reduced to reflect his earnings if he had been employed in his SEB. In July 2004, the worker was granted a 13% Non-Economic Loss (NEL) award in respect of his left knee. [4] The worker underwent further medical investigation, and it was determined that further surgical treatment was necessary. He underwent further surgery on May 4, 2005 and full LOE benefits were reinstated at that time. After the surgery, in June 2005, the worker returned to his pre-accident full-time position with the accident employer. [5] The worker objected to the quantum of his LOE benefits as of May 2004, and the matter was referred to an ARO. The ARO concluded that the chosen SEB was consistent with the medical restrictions noted in The ARO concluded that although further surgery was required, this did not alter the conclusion that the worker could have worked within his restrictions in May The ARO confirmed that the worker s LOE benefits were properly calculated. [6] The worker has appealed to the Tribunal. (iii) Issues [7] The issues in this appeal are: 1. whether the worker is entitled to full LOE benefits from May 20, 2004; and 2. whether the SEB of Motor Vehicle and Transit Driver was appropriate.

3 Page: 2 Decision No. 1543/08 (iv) Analysis [8] Having reviewed the evidence and the submissions of the worker, we have determined the appeal should be allowed. [9] Workers are entitled to LOE benefits when they incur a loss of earnings as a result of a work-related injury. Board Operational Policy Manual Document # provides that workers are entitled to full LOE benefits if they co-operate in early and safe return to work activities and continue to have a full loss of earnings. The policy also provides that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, a worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the Board. [10] In the present case, the worker was initially diagnosed, on June 20, 2002, with a medial ligament strain of his left knee. He was treated with Neovisc injections, Celebrex, and exercises by Dr. Forget, an orthopaedic surgeon. The worker continued to have problems, and in November 2002 he was referred to Dr. Desjardins, also an orthopaedic surgeon. In his report of that date, Dr. Desjardins noted the worker complained of pain and swelling in the left knee, stiffness, and an inability to fully extend his knee. The swelling was relieved by rest. Dr. Desjardins provided a diagnosis of a torn posterior horn of the left medial meniscus with a locked knee and a Baker cyst, and suggested an MRI was not necessary. Dr. Desjardins recommended he undergo an arthroscopic medial meniscectomy. [11] The worker was then seen by Dr. Dervin, also an orthopaedic surgeon. Dr. Dervin confirmed Dr. Desjardin s diagnosis of a meniscal tear and performed the surgery on August 20, [12] After the surgery, the worker was referred for physiotherapy. In October 2003, the worker s physiotherapist noted restrictions against kneeling and weight bearing for more than two hours. In December 2003, while the worker was continuing to receive physiotherapy, the worker was seen again by Dr. Dervin. Dr. Dervin noted the worker had stiffness in his knee and provided restrictions against repetitive squatting. During this period, the Claims Adjudicator was in contact with the accident employer about modified work within the noted restrictions. The accident employer indicated they did not have appropriate work at the time. [13] The worker continued with physiotherapy until March While the initial reports indicated the worker s condition was improving, in December 2003, the worker reported to the physiotherapist that he was experiencing increased pain on the medial side of his knee joint. The physiotherapist noted increased temperature on the site, mild swelling, and tenderness. On the basis of these findings, on December 23, 2003, the physiotherapist recommended further therapy and the recommendation was accepted by the Board. [14] The worker contacted Dr. Dervin in writing about further treatment. Dr. Dervin, in his report dated January 19, 2004, stated that he did not believe that further surgery would help the worker s symptoms. We note Dr. Dervin did not examine the worker at that time. [15] On January 19, 2004, the worker s physiotherapist provided restrictions against bending/twisting the left knee, walking for less than 30 minutes, standing and sitting as tolerated, lifting less than 25 pounds, and limited stair and ladder climbing. Although the worker was discharged in March 2004, the March 3, 2004 report from the physiotherapist reported observing minor tenderness and swelling.

4 Page: 3 Decision No. 1543/08 [16] The worker stated he continued to experience severe pain in his knee. The worker stated he did not think he could return to work, because he could not have performed any job on a regular basis. He stated that his problems were primarily due to pain, indicating he was unable to sleep due to the severe pain. He stated he was unable to focus as a result and also began to become depressed. He stated that despite his view that he could not return to work, he agreed to participate in the LMR program. He indicated that after the second day he found it was too difficult for him to continue, and referred again to severe pain and swelling. He contacted his family doctor, Dr. Budge. On seeing the swelling, Dr. Budge authorized him to stop participating in the LMR program and suggested further injection treatment. This is documented in a note from Dr. Budge. Around this same time, the worker advised he was prescribed antidepressants by Dr. Budge. [17] Dr. Budge also ordered an MRI and an ultrasound. The MRI report, dated April 30, 2004, indicated the worker continued to have a tear of the medial meniscus. The ultrasound, dated July 9, 2004 indicated marked edema of the subcutaneous soft tissues as a cause of the swelling of the worker s knee. As a result of these findings, it was determined that further surgery was required and the worker underwent another arthroscopic partial medial meniscectomy on May 4, This surgery was successful, and in early June 2005 the worker returned to his pre-accident job. [18] We have also considered the opinion of Dr. Pritchett, a Board Medical Consultant, in a memo dated May 14, Dr. Pritchett noted the MRI findings, and concluded they did not suggest total disability. Dr. Pritchett provided restrictions against prolonged weight bearing (such as walking and standing), and avoiding squatting, kneeling, and climbing. [19] In our view, when the evidence is considered as a whole, it supports the worker s assertion that he was unable to return to work in May The evidence indicates that in early 2004, the worker s health care providers approached his condition with the understanding that the medial tear had been repaired. Subsequent testing indicated that was not the case. The restrictions recommended at the time were on the understanding that the worker s tear had been repaired. In this context, it is a reasonable inference that the extent of the worker s pain was not properly appreciated. We also note that even when the worker was discharged from physiotherapy, it was noted he was experiencing swelling and tenderness. The worker frankly acknowledged that he could have performed the physical task of driving as required by the SEB. However, he indicated that at the time, the swelling and the pain in the knee was such that it was only relieved by elevating his left leg. We accept his assertion that given the ongoing pain, he could not have performed his work duties in any ongoing regular manner that would be required in the context of employment. We also note the worker was unable to manage his pain effectively with the use of pain medication due to side effects he experienced. In most cases, a worker in such a situation would likely benefit from a pain program. However, we accept that the worker s refusal to consider participation in a pain program was acceptable in the context of the medical investigation results which indicated his problems could be alleviated by further surgery. We also accept that a medial tear is a significant injury and the related pain prior to its repair in 2005 would impact the worker s ability to perform work duties in any regular manner. The worker s desire to co-operate with an early and safe return to the workplace is evidenced by his immediate return upon recovery from his second surgery. This gives weight to the worker s evidence that he tried but was unable to return to work or participate in the LMR program in May 2004.

5 Page: 4 Decision No. 1543/08 [20] For these reasons, we find the worker is entitled to full LOE benefits from May 20, 2004 until the date they were reinstated on May 4, 2005 as a result of his second compensable surgery.

6 Page: 5 Decision No. 1543/08 DISPOSITION [21] The appeal is allowed. The worker is entitled to full LOE benefits from May 20, 2004 to May 4, DATED: July 15, 2008 SIGNED: J. Parmar, J. Seguin, R. J. Lebert