WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 938/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 938/16 BEFORE: M. Crystal : Vice-Chair B. M. Young : Member Representative of Employers R. W. Briggs : Member Representative of Workers HEARING: April 12, 2016 at London Oral DATE OF DECISION: April 21, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1060 DECISION UNDER APPEAL: WSIB ARO decision dated July 16, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. K. Hahn, Paralegal Did not participate Ms. O. Melo, Portuguese 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. 938/16 REASONS (i) Introduction [1] This appeal was heard in London, on April 12, The worker appeals the decision of Appeals Resolution Officer (ARO) T. Cerone, dated July 16, That decision determined that: i) The worker is not entitled to benefits for a permanent impairment of the right knee; and ii) The worker is not entitled to benefits for injuries to the low back and/or right shoulder, as secondary conditions arising as a result of the worker s right knee injury. [2] (Note: the Board considered the worker s entitlement to benefits for a permanent impairment of the right knee, but it is apparent that it intended to consider the worker s entitlement to benefits for a permanent disability. As noted below, the worker s entitlement to benefits is governed by the Pre-1989 Act, which provides for entitlement to benefits for a permanent disability in cases of permanent injury). [3] The worker appeared and was represented by Mr. Kevin Hahn, Paralegal. The employer did not participate in the appeal. The worker testified at the appeal hearing. Submissions were provided by Mr. Hahn. (ii) A synopsis of the case under appeal [4] The worker sustained an injury to his right knee as a result of an accident that occurred on February 24, At the time of the accident, the worker was employed by the accident employer, a construction contractor. The worker testified that on the date of accident, his role on the job site was to assist bricklayers who were installing bricks in a lime kiln. The case materials did not include a Worker s Report of Injury, however, the employer prepared an Employer s Report of Injury (Form 7), which stated that the accident occurred when the worker had to move quickly out of the way of falling bricks from scaffold. The Form 7 also stated that the worker hit his left [sic] knee against a scaffold frame. Other information on file indicated, however, that the worker sustained an injury to his right knee at the time of this accident. Further, the worker testified at the hearing that he believed that he injured his right knee when the knee made contact with a cement floor, while jumping out of the way of falling bricks. [5] The worker testified that he attempted to continue working following the accident, but that he was not able to do so, and that his foreman told him to wait for a truck that had been arranged to transport workers from the job site. The worker testified that he returned to work on the following day to report that he was not able to continue on the job, and that he was sent home on that day. The worker testified that he had not had any difficulties with his right knee prior to the accident in February [6] The case materials include a Doctor s First Report (Form 8), dated February 26, The name of the physician who prepared the Form 8 is not legible from the report. The report stated that the worker jumped from a scaffold 3 4 feet and injured [the] right knee. The Form 8 noted that the worker had a slight limp, but no swelling or effusion and that the knee was

3 Page: 2 Decision No. 938/16 tender at the medial and lateral aspects of the joint. The diagnosis provided was [right] knee injury; [rule out] cartilage tear. X-rays taken of the right knee on February 26, 1988, disclosed that a separate bone fragment is seen at the posterior lip of the tibia and that this could represent a loose body in the knee joint. The x-rays also disclosed early degenerative change in the right knee. [7] The worker had ongoing difficulties with his right knee, and he was seen by Dr. W. Harvey Bailey, orthopaedic surgeon, whose report, dated May 20, 1988, stated: This gentleman is seen with difficulties in his right knee. He dates the onset of this to a fall and twisting injury off a scaffold, I believe in February of this year. He had almost immediate pain and has been off work since. His complaints really are that of a sharp, jabbing medial compartmental pain. He denies any past history of problems in this knee. On examination he does not have an effusion. He does, however, have quite considerable tenderness on the posteromedial joint line, a positive McMurray s and intact ligaments. X-rays accompanying him are normal. I would have little doubt this man has a torn medial meniscus. Arrangements will be made for arthroscopic surgery in the near future. [8] The worker was subsequently referred to Dr. R. Baxter Willis, another orthopaedic surgeon, to whom the worker was referred for arthroscopic surgery. His report, dated June 6, 1988, stated: This gentleman underwent an examination under anesthesia. His knee is stable with no evidence of collateral ligament instability, anterior drawer, pivot shift or Lachman s test. He has early degenerative osteoarthritis in the lateral, medial and patellofemoral compartments. None of this was shaved as it is very early and really not in the stage of fibrillation that would benefit from chondroblastic shaving. I do not believe that surgery will be required for this gentleman and that his symptoms will eventually settle down. [9] The worker testified that, subsequent to the February 1988 accident, he remained off work due to his right knee injury for about one year. A Board memo, dated July 26, 1988, stated that the Board had allowed the worker s claim for his right knee injury, on an aggravation basis. Temporary total disability (TTD) benefits were paid to the worker, however, a handwritten notation on the memo indicated that the worker s condition should be considered resolved as of June 6, A further Board memo, dated August 10, 1988, indicated that the worker had reached his pre-accident status and that benefits should be closed. [10] Subsequent medical information on file, prepared between 1988 and 1990, indicated that the worker s right knee injury did not fully resolve. A report, dated November 21, 1988, prepared by Dr. Bailey, stated that although the worker s arthroscopy disclosed only moderate degenerate changes in this joint and no other form of internal derangement, nevertheless he still states that walking for a significant distance, or riding his bike, gives him discomfort in his knee. The report also stated that if he is not back at work, he should probably be evaluated at the Board and that Dr. Bailey had no other treatment to offer the worker beyond ongoing physiotherapy treatment. [11] The case materials included a record of the payment of benefits to the worker, which indicates that although the Board initially closed benefits to the worker in August 1988, benefits were subsequently restored, and the Board continued to pay the worker TTD benefits until on or about February 24, 1989.

4 Page: 3 Decision No. 938/16 [12] The worker testified that he attempted to return to work in or about February 1989, but that his right knee injury had not fully resolved. He stated that he needed to return to work in order to earn a living for himself and his family, but that he was not able to perform heavy duties. The worker testified that he obtained work assignments through his union, and that upon his return to work in 1989, he managed work by avoiding tasks such as heavy lifting, climbing, or using a jackhammer, and that if he was required to perform some heavy work, he asked coworkers to assist him. He stated that when he was sent on a work assignment through the union, he was not able to know in advance whether the work would be heavy, and that he worked with pain in his right knee, and made his best efforts to perform the work that was assigned to him. [13] The worker stated that, when he reported to a job, he did not advise his foreman that he was suffering from a knee injury, and that he tried to conceal this information from his employers, to the extent possible. He stated that, on occasion, an employer would find out that he had an injury and was unable to perform heavy work, and that on some occasions, he was sent home by the employer because he was not able to perform the necessary work. [14] The case materials included a report, dated November 26, 1991, prepared by Dr. Thomas W. Phillips, orthopaedic surgeon, which stated, in part: Thank you for having me see this man for his difficulties in the right knee. He has been off work since an injury in February of 88. He did go back to work for two weeks in February, 1989 and found he couldn t do it. I believe he had worked as a bricklayer and there had been some consideration suggestive of retraining which, it is my guess, is somewhat impractical. He is working odd jobs since then but no full-time employment. His complaint is that of a soreness in the peripatellar region, he says he gets a little bit of pain and a little bit of noise and swelling. [15] The worker testified, and other information on file discloses that during 1990 and 1991, the worker did not perform any work assigned to him through his union. At the hearing, the worker and his representative characterized this period as a period of self-employment, however, the worker explained that during this period, he performed light work as a bricklayer s helper for his brother s company, mixing mortar and handing bricks to the bricklayers. The representative indicated that the worker was characterized, for the company s purposes, either as a sub-contractor or co-owner of the company, but that, in substance, the worker was working for his brother during this period. The worker stated that while working with his brother, his brother was understanding about the worker s limitations, and permitted him to avoid heavy work, or take time off if this was required by the worker s knee condition. The worker testified that, in 1992, he subsequently returned to work assigned through the union, and that he again did his best to perform the work assigned to him, working through pain, seeking assistance from co-workers, concealing his injury from his employers, and occasionally being sent home when the work was too heavy for him to perform. [16] The worker testified that he continued to work in this manner until about 1998, when his physicians advised him that it would not be practical for him to continue working in the construction industry, even at light work. The case materials included a report, prepared by Dr. Richard McCalden, orthopaedic surgeon, dated June 18, 1999, which stated: I saw [the worker] today for review. Not surprisingly he continues to have ongoing pain. He has trouble with his left knee, which we know has significant patellofemoral arthritis.

5 Page: 4 Decision No. 938/16 In addition he is having trouble with his right knee, which has been documented as having some early degenerative [sic] relating back to presumably a work related incident. I think there is no question that both of his knees are arthritic and for this reason it would be virtually impossible for him to return to the work force due to both of his knees. My plan is to see him back in about four months time and reassess the situation. He may need surgery on the right knee if this continues to be symptomatic. [17] The worker testified that he has not returned to work since he stopped working in He stated that, although his right knee pain was initially worse than the left knee pain, he subsequently developed worsening left knee pain which he attributed to overuse secondary to the right sided injury. He stated that he underwent a total knee replacement (TKR) in 2005 for his left knee (entitlement for an injury to the left knee is not an issue in this appeal), and that he subsequently underwent a TKR for the right knee, in He testified that he had a painful recovery for about one year after the right TKR. The worker indicated that his right knee pain has improved following his recovery from the right TKR surgery, but that, as of the date of the hearing, he continued to experience right knee pain. The worker was 71 years old as of the hearing date in (iii) Applicable law [18] The workplace accident which is the subject of this appeal occurred on February 24, Accordingly, the worker s entitlement to benefits in this appeal is governed by the Pre-1989 Act ( the Act ). (iv) The issue under appeal [19] At the hearing, the worker s representative indicated that, after reviewing the evidence, the worker wished to withdraw his appeal in relation the issue of whether he is entitled to benefits for injuries to the low back and/or right shoulder, as secondary conditions arising as a result of the worker s right knee injury. The representative indicated that he discussed the question of whether to withdraw this issue from the appeal with the worker, and that the worker understood that, should he wish to restore his appeal in relation to this issue, he would be subject to the provisions of the Workplace Safety and Insurance Act, 1997, which impose time limits for appeals. In the circumstances, the Panel agreed to allow the worker to withdraw his appeal in relation to this issue. [20] Accordingly, the sole issue to be determined in this appeal is whether the worker is entitled to a permanent disability (PD) award, reflecting a permanent disability of the right knee. (v) Analysis [21] In this case, the worker sustained an injury to his right knee as a result of an accident that occurred on February 24, The Board allowed initial entitlement to benefits for the right knee injury, and initial entitlement for the right knee injury is not contentious in this appeal. The Board also paid the worker TTD benefits for about one year reflecting the Board s recognition of the worker s ongoing injury during that period. [22] Radiological investigation of the injury almost immediately following the injury indicated that the worker s right knee was affected by early degenerative disease. The worker was referred for arthroscopic surgery in June 1988, only a few months following the subject

6 Page: 5 Decision No. 938/16 accident, and the report on the surgery, prepared by Dr. Willis, indicated that the worker had early degenerative osteoarthritis in the lateral, medial and patellofemoral compartments of the right knee. The fact that the worker s right knee was affected by early osteoarthritic changes prior to the accident is apparent because the osteoarthritis in the right knee was disclosed by x-rays carried out only two days after the accident. Since osteoarthritic degenerative change occurs incrementally over time, the presence of the degenerative disease only two days after the accident makes it highly probable that it was present prior to the accident. This was acknowledged by the worker s representative at the hearing. [23] We find, however, that there was no evidence upon which to conclude that the worker had any symptoms associated with his right knee osteoarthritis prior to the accident. There is no medical information on file indicating that the worker had any right knee problems prior to the accident. We accept the worker s testimony that he was able to perform heavy work, including heavy lifting, climbing and use of a jackhammer, prior to the accident (which he was unable to perform after the accident), and that he had no right knee symptoms prior to the accident. We find, therefore, that although the worker had pre-existing degenerative disease at his right knee prior to the accident, this condition was not symptomatic prior to the accident and did not affect his ability to function as a labourer prior to the accident. [24] We find, however, that the worker s osteoarthritic condition became symptomatic as a result of the accident. This is consistent with the Board s decision to award the worker TTD benefits for about one year. The Board determined, however, that when the worker returned to work about one year after the accident, he had returned to his pre-accident status, and that any ongoing disability that limited the worker s ability to perform employment was attributable to the non-compensable pre-existing condition. On this basis, the worker has been denied ongoing entitlement for his right knee condition since [25] We are not able to agree with the Board s assessment that the worker returned to his preaccident status in The pre-accident status of the worker s right knee was that it was not symptomatic. The medical information on file supports the conclusion that the worker s right knee never returned to its pre-accident asymptomatic status. Medical information, referred to above, prepared in 1991 by Dr. Phillips, indicated that the worker tried to return to work in February 1989 but was unable to continue, and that he had difficulty pursuing full time employment as a labourer. A medical report dated May 11, 1998, prepared by Dr. A. H. Laity, the worker s family physician, stated that the worker sustained an injury to his right knee in 1988 when he fell off a scaffold at the workplace, that thereafter he was unable to do construction work, although he was capable of light duties and that since that time he has had pain on and off from the knee. [26] We note that the ARO decision under appeal stated that the worker was able to return to his regular duties in 1989 as a Construction labourer and he continued to work in this line of work until We are not able to agree with this finding. We accept the worker s testimony that he made his best efforts to continue working after 1989, but that he worked with pain and received help from co-workers after he returned to work in 1989, and that his right knee symptoms never resolved. This testimony is consistent with medical information on file, such as the reports from Dr. Laity and Dr. Phillips, referred to above, which indicated that the worker was only capable of light work after he returned to work in 1989.

7 Page: 6 Decision No. 938/16 [27] We also note that, in Board correspondence to the worker s current representative, dated March 17, 2010, when the representative was seeking ongoing entitlement for the worker s right knee condition, as well as other entitlement, a different ARO with the Board s Appeals Branch, authorized an up to date, detailed medical physical appraisal of the worker, including assessment of, among other body parts, the worker s knees. One of the areas that the medical appraisal was to address was the relationship of any current difficulties with both knees [and other body parts] to the accident at work in February 1988 and/or the ensuing sequelae. The correspondence indicated that the Board was prepared to authorize the payment of a reasonable fee for this up to date detailed physical appraisal. [28] In response to this direction from the Board, the worker underwent a physical examination on January 27, 2012, carried out by Dr. Manfred Harth, specialist in internal medicine. Dr. Harth prepared a detailed twelve page report on the worker s physical status and its relationship, if any, to his February 1988 accident status. The report, dated January 31, 2012, indicated that some of the worker s other conditions were unrelated to the accident, but that the accident had affected the condition of his right knee. In this regard, the report stated, under the subheading, Summary & Opinion : I think that it is likely that his right knee changes are the result of an injury which occurred initially in February Alternatively he seems to have had some mild preexisting degenerative changes as the x-ray of 1988 shows, but the work related injury aggravated that previously asymptomatic condition. [29] We note that, following the delivery of Dr. Harth s report, the Board s case manager referred the issue of the worker s entitlement to a Board medical consultant for a further opinion. The referring memo from the case manager to the medical consultant referred to Dr. Harth s report but recommended upholding the Board s previous decisions to deny the worker entitlement to a PD assessment in relation to the right knee, and asked for the medical consultant s opinion. [30] The Board s medical consultant, Dr. Maehle, provided a memo, dated August 1, 2012, in response to the case manager s request. The memo recounted the worker s medical history, at length. Near the conclusion of the memo, it noted that the degenerative changes in the right knee were apparent at the time of the 1988 accident. The medical consultant also stated that the worker returned to his regular duties for something like 10 years. The memo concluded by stating: Consequently, I see no permanent impairment for the right knee arising from the work injury of February 24, 1988 [31] Dr. Maehle s memo did not refer to the report from Dr. Harth. The medical consultant s memo did not address or refute Dr. Harth s conclusion that the worker s ongoing knee problems were either attributable to the 1988 accident or, alternatively, that the accident aggravated a previously asymptomatic condition. [32] We agree with Dr. Harth s alternative conclusion that, prior to the accident, the worker had pre-existing asymptomatic degenerative disease in his right knee, and that this was made symptomatic by the accident. It is apparent from the worker s testimony, as well as from the medical information on file, referred to above, that the worker s right knee had been asymptomatic prior to the accident, that the knee became symptomatic immediately following the accident, and that the symptoms never resolved. The worker went on to require a right TKR

8 Page: 7 Decision No. 938/16 in We are also satisfied, based on the worker s testimony which is corroborated by the medical information on file, that contrary to the Board s finding, the worker was never able to return to his regular employment as a construction labourer, and that following his return to work in 1989 until he retired from the workforce on advice from his physicians in 1998, he required lighter work. [33] We conclude that, as a result of the accident on February 24, 1988, the worker sustained an aggravation of an asymptomatic pre-existing condition of his right knee. It is apparent from the medical information on file that the aggravation did not resolve and that it is permanent. The worker is entitled to a PD award for the right knee on the basis that he sustained a permanent aggravation of an asymptomatic pre-existing condition of his right knee as a result of the subject accident.

9 Page: 8 Decision No. 938/16 DISPOSITION [34] The appeal is allowed. i) The worker is entitled to a PD award in relation to his right knee injury on the basis that he sustained a permanent aggravation of an asymptomatic pre-existing condition of his right knee, which resulted from the accident that occurred on February 24, ii) The Board is directed to determine the extent of the worker s entitlement to a PD award for his right knee injury. DATED: April 21, 2016 SIGNED: M. Crystal, B. M. Young, R. W. Briggs