WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2355/05

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2355/05 BEFORE: S. Ryan : Vice-Chair D. McLachlan : Member Representative of Employers F. Rao : Member Representative of Workers HEARING: December 8, 2005 at Toronto Oral Post-hearing activity completed on May 4, 2006 DATE OF DECISION: June 23, 2006 NEUTRAL CITATION: 2006 ONWSIAT 1416 DECISION(S) UNDER APPEAL: S. Maragoni, Appeals Resolution Officer, dated February 19, 2004 APPEARANCES: For the worker: D. Yogasundram, a lawyer For the employer: A. Eagle, a Lawyer Interpreter: None 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

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3 Decision No. 2355/05 REASONS (i) Introduction [1] The history of this case is described in detail in Decision No. 2355/05I (January 9, 2006). [2] The worker suffered a compensable injury to his left knee on October 3, On June 2, 1989, he underwent arthroscopic surgery to his left knee. Following a Board examination in March 1990, the worker was granted a five percent pension award for his left knee disability. In January 2000, while living in Malta, the worker underwent surgery for a total knee replacement (arthroplasty). In 2001, while visiting in Canada, he asked the Board to review his claim. Following the collection of additional medical information, the Operating Branch of the Board granted the worker entitlement for the surgery and increased his pension award to 20 percent. [3] The employer objected to the Board s decision to grant entitlement for the surgery and increase the pension award to 20 percent. The issues were referred to the Board s Appeals Branch and in the decision of February 19, 2004, the Appeals Resolution Officer determined that the worker had entitlement for the arthroplasty, but that the pension award should remain at five percent. That decision is now the subject of the present appeal to the Tribunal brought by both the worker and employer. The employer appeals the issue of the worker s entitlement for the total knee replacement surgery and the worker appeals the quantum of his pension award. (ii) Decision No. 2355/05I [4] In Decision No. 2355/05I, we determined that the preponderance of medical evidence supported the conclusion that, on a balance of probabilities, the worker s compensable injury on October 3, 1988 significantly contributed to the subsequent deterioration of his left knee condition requiring total knee replacement surgery in January We were persuaded by the absence of a resolution of symptoms following the compensable accident, the worker s inability to resume pre-accident duties after the accident, the need for arthroscopic surgery within eight months of the accident, the strong possibility that the arthroscopic surgery accelerated the degenerative condition in his left knee and the radiological findings of greater arthritic changes in the left knee compared to the right knee. Accordingly, we confirmed the Appeals Resolution Officer s determination that the worker has entitlement for the arthroplasty carried out on January 25, [5] With respect to the issue of the quantum of the worker s pension award, we noted that, apart from examples of flexion to 90 degrees, a totally immobile knee and a leg amputation, Operational Policy Manual Document # , Permanent Disability (Pensions) The Ontario Rating Schedule provides no specific guidance on what additional factors, if any, may influence the estimation of the pension quantum. Accordingly, we asked Tribunal Counsel to write to the Board and pose the following questions: 1. In addition to range of motion of a knee joint, what other factors do Board pension examiners or medical consultants consider when recommending a specific percentage for a pension award?

4 Page: 2 Decision No. 2355/05 2. What effect, if any, does a total arthroplasty have on the quantum of a worker s pension award for a pre-1990 knee disability? 3. Does a pension award for a knee disability change after a total arthroplasty? Does the apparent success of the surgery affect the pension award? Please explain. (iii) The Board s response [6] In correspondence dated March 1, 2006, a Legal Policy Analyst of the Board attached a document from Dr. B. Kelly, Associated Medical Director of the Northern Ontario and pre-1990 Unit which sets out factors determining the pension rating of knee injuries. The document is dated February Dr. Kelly advised: The Policy (formerly ) The Ontario Rating Schedule is the guide on which PD [permanent disability] quantums are loosely suggested at various points in the evolution of disability and impairment. The experience of the examiner is crucial in appropriately recommending the specific quantum within this framework. In the instance of the assessment of the knee one of the first but not exclusive findings to appear is a decrease in the range of motion. When the flexion is limited to 90 degrees the recommended PD is 5%. This limitation may be due to arthritis in the knee, to instability of usually the anterior cruciate ligament (ACL) or medial collateral ligament (MCL) or to catching of a torn flap of meniscus on rotational stress. Each of these conditions would have associated findings (e.g. anterior-posterior laxity with ACL or a snapping click with a torn meniscus on rotational stressing). As the disease progresses to a fused knee in ideal position the award might be 25%. If fused in a compromised position e.g. 60 degrees the impairment might be more as ambulation is hampered. The following factors and findings that may accompany in whole or in part the findings in the Ontario Rating Schedule: Range of Motion (ROM): the knee is a hinge joint so maximum flexion and extension are measured both actively and passively. Ligamentous stability of the knee: medial and lateral laxity measuring the collateral ligaments, anterior and posterior laxity measuring the integrity of the cruciate ligaments and the rotational integrity of the menisci. Crepitus in the medial, lateral and patello-femoral joint spaces. Increased joint pressure and fluid in the knee (or chronic absence of fluid in the knee at the end stage) by measuring patello-femoral compression, girth measurement, presence of a Bakers cyst. Leg length discrepancies. The overall function of the knee is assessed by atrophy of the muscles, measuring girth at the mid thigh and calf levels. Testing of the strength of the surrounding musculature (e.g. hamstrings an[d] quadriceps) is also necessary. The other or good knee is also examined in full for comparison and to identify coexisting pathology. Gait is an important measure of impairment and as an indicator of future problems, e.g. increased strike phase of the heel can stress the foot, ankle, knee and hip ipselaterally. These should be done in all cases and this is why PD assessments should be done by the physician assigning the quantum, whenever possible.

5 Page: 3 Decision No. 2355/05 [7] With respect to total knee replacement, Dr. Kelly advised: Several other factors enter into the assessment of a patient with a total knee replacement (TKR). Even though the pain, ROM [range of motion] and instability have been improved it is not a normal knee and does not function as one. Special care must be given to prevent mechanical injury and failure. (Strenuous physical activity, sporting endeavors and safety issues such as climbing a ladder for example). One must also be award that an improved ROM (over 90 degrees) may be a sign of laxity rather than a good result. There are losses often not measured or measurable that are inherent with TKR: Loss of sensation generally or loss of stereotaxis, and position sense and awareness and vibration sense. Weakness in the leg is permanent and rarely approaches normal. Permanent presence of a foreign body that could become infected or be the source of infection, e.g. dental or cardiac surgery. Usually when the disease has progressed to the point where a total knee replacement (TKR) is considered the impairment is a minimum of 15%. Based on experience the award starts at 15% and depending on the result of the TKR surgery may to 25%. For a patient with a TKR, the award recommended by experienced PD assessors would be 20% plus or minus up to 5% depending on all these factors. (iv) The submissions [8] The representatives were invited to offer written submissions on the information received by the Board. The worker s representative [9] In correspondence dated March 28, 2006, Mr. Yogasundram submitted that according to Dr. Kelly, a worker who has undergone a compensable total knee replacement will be assessed for a pension disability rating in a manner different from those workers with knee conditions who have not undergone total knee replacement. He noted Dr. Kelly s observations that a knee following total knee replacement will have problems inherent to the mechanical device and expose workers with specific risks. The worker s representative also emphasised Dr. Kelly s observation that some problems that are inherent with total knee replacement are often not measured or measurable. [10] Mr. Yogasundram submitted that Dr. Kelly s information indicates that the usual procedure by an experienced assessor is to start with a benchmark or mean rating of 20% and then to adjust the rating up or down by 5 percent depending on the assessor s judgement of whether the total knee replacement has been especially successful or unsuccessful in face of inherent risks factors. [11] With respect to the worker s particular rating, Mr. Yogasundram acknowledged the available medical evidence indicated excellent relief of pain and improvement in mobility postoperatively. He emphasised that the quantum of the worker s pension was considered by two Board pension assessors who both determined a rating of 20 percent. The worker s representative submitted:

6 Page: 4 Decision No. 2355/05 the rationale offered by the 2 Board doctors for a 20% rating is, at the very least, in no way inconsistent with the factors given in Dr. Kelly s memo, and as such there is no basis to disturb their experienced judgment in recommending a rating of 20 percent. Please note that the rating of 20% is appropriate because of the significant relief and improvement experienced by [the worker]. The fact that the alignment of the limb is correct and that [the worker s] range of movement in his left leg is quite good are among the reasons why his pension is not rated higher than 20%. It is submitted that these are the normally expected outcomes of TKR, so that the rating did not require special adjustment up or down from 20% The employer s representative [12] In correspondence dated April 17, 2006, Ms. Eagle repeated the employer s position that the Appeals Resolution Officer s decision to rescind the pension increase from five percent to 20 percent should be upheld. She submitted that the objective medical evidence supports that the workers functionality improved following the total knee replacement surgery and, therefore, an increase in the pension award beyond five percent is unwarranted. [13] Ms. Eagle acknowledged the special expertise of Board pension assessors in rating pension awards. She noted, however, that the Tribunal is also bound by the provisions of the law and policy. She submitted: if the guidelines followed by the Medical Consultants are inconsistent with the intent of the legislation or policy, the law must prevail. [14] The employer s representative noted Dr. Kelly s observation that a primary consideration, in addition to other considerations, in assessing a knee condition for the purpose of a pension award is range of motion. She acknowledged Dr. Kelly s observation that for total replacement knees, there may be additional factors to take into account as special care must be taken to prevent mechanical failure. [15] Ms. Eagle submitted that in this particular case the medical evidence does not indicate the presence of factors listed by Dr. Kelly. Accordingly, she argued, there is no basis to increase the worker s pension award from five to 20 percent. The employer s representative reviewed Dr. Bernard s medical reporting, upon which Dr. Maehle, Board Medical Consultant in the pre Claims Unit, based his opinion in recommending an increase of the worker s pension award from 5 to 20 percent. She submitted that Dr. Bernard s findings revealed minimal range of motion limitation, good stability upon varus and antero-posterior testing, only slight patellofemoral crepitus, no indication of increased joint pressure or fluid in the knee, no indication of muscle atrophy or quadriceps wasting and the worker walked without a limp. [16] Ms. Eagle submitted that Dr. Maehle appears to have recommended a 20 percent pension award based solely on the fact that the worker underwent total knee replacement surgery. Ms. Eagle submitted that failure to consider the additional factors listed by Dr. Kelly is not only an error, it is also contrary to the intent of the legislation and Board policy as well as the principle of deciding cases on their own facts. She wrote: As the worker s level of disability was not increased following, or as a result of, the surgery, in our opinion it is unreasonable and seemingly absurd to increase the PD award based solely on the occurrence of surgery when the level of disability remains unchanged.

7 Page: 5 Decision No. 2355/05 [17] Ms. Eagle submitted that the medical evidence in this case does not indicate the presence of factors identified by Dr. Kelly as being commonly associated with total knee replacement such as a loss of sensation, position sense, vibration sense, leg weakness and the presence of a foreign body. Ms. Eagle stated that pension ratings are based on the permanent disability that exists at the time of the pension assessment not on potential future problems such as infection or mechanical failure. She submitted that there is no need to rate potentialities or risks because any future complication or deterioration can be re-assessed in a pension review. Ms. Eagle argued: To increase a PD rating to include potential risks would result in compensating for disability that is not present, which would be contrary to the legislation. [18] The employer s representative cited Tribunal case law on the application of the Ontario Rating Schedule and pension assessments generally. She noted Decision No. 545/02 which found that the Ontario Rating Schedule is intended to reflect the degree of impairment of daily living caused to an average worker by this type of injury. Ms. Eagle submitted that the relevant criteria for assessment are limited to the worker s physical level of ability. Ms. Eagle cited Decision 915 which confirmed the Tribunal s statutory authority to make the same decisions that the Board s Medical Examiners are currently making, but that it was not the intent of the Legislature to allow the Tribunal to create a separate rating scheme. The Panel in Decision No. 915 concluded that the Tribunal s statutory authority would be focused on making the decision that the Board s medical examiners ought to have made. [19] Ms. Eagle submitted that in this case the Panel has the jurisdiction to assign a pension rating other than the recommended rating by the Board. She submitted that the weight of evidence supports that the worker s level of disability and impairment of earning capacity was the same following the total knee replacement surgery as it was when first assessed in 1990 and, therefore, the pension award ought to remain at five percent. [20] In the alternative, Ms. Eagle submitted that if the recommended rating is applied in relation to the total knee replacement, that a maximum award of 15 percent should be granted. She noted Dr. Kelly s observation that the occurrence of total knee replacement surgery in and of itself can attract an award of 15 percent and that a rating of 20 percent, plus or minus 5 percent, is recommended in cases of total knee replacement depending upon other factors. Ms. Eagle submitted that the surgery was a success. She submitted that the medical evidence in this case does not indicate the presence of the factors identified by Dr. Kelly. Accordingly, she submitted, the worker s pension award should be limited to 15 percent. (v) Analysis [21] We have carefully considered all of the available evidence, testimony of the worker and cogent submissions of the representatives. [22] As noted in Decision No. 2355/05I, section 45 of the pre-1989 Worker s Compensation Act states, in part: 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 periodical payment during the lifetime of the

8 Page: 6 Decision No. 2355/05 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 percent of the worker s average earnings. [23] Under section 126 of the WSIA, the Board identified Operational Policy Manual Document # , Permanent Disability (Pensions) Determining the Degree of Disability as an applicable policy in this appeal. It states that generally the Board undertakes a permanent disability evaluation when the condition is stable. It also states: Responsibility for clinical rating A WCB medical adviser or consultant examines the worker to estimate the degree of clinical impairment from the nature and degree of the injury, and recommends an appropriate clinical rating. In all cases, the rating is expressed in terms of a percentage, in accordance with the provisions of the approved Permanent Disability Rating Schedule. The WCB s pension medical advisors or consultants provide a written report of their examination findings to the pensions adjudicator who makes the final decision regarding the award. [24] With respect to the issue of re-assessments, the policy states: Re-assessment If a permanent disability worsens, the WCB may reassess the worker s disability. Additional disability developing subsequently is determined by physical examinations which may be made from time to time. [25] Operational Policy Manual Document # , Permanent Disability (Pensions) The Ontario Rating Schedule was also identified by the Board as an applicable policy in this appeal and states, in part: Policy The WCB has adopted the Ontario Rating Schedule (O.R.S.) as a clinical guide to evaluation, for consistency of medical assessment under the provisions of Sections 43(1), 43(3) and 13. The Ontario Rating Schedule 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 being made. [26] We also noted that with respect to pension rating for the lower extremity, the policy confers a minimum value of 5 percent for a knee that is limited in flexion to 90 degrees and a minimum value of 25 percent for a totally immobile knee joint. Amputation of a leg that remains suitable for a B.K. prosthesis is assigned a minimum percentage of 35 percent. Apart from the

9 Page: 7 Decision No. 2355/05 examples of flexion to 90 degrees, a totally immobile knee and a leg amputation, the policy provides no guidance on other factors that may be appraised such as an arthroplasty. [27] The Tribunal s jurisdiction to consider clinical impairment ratings was confirmed in Decision No. 915, 7 W.C.A.T.R 1 and followed in subsequent Tribunal jurisprudence. The Tribunal has the statutory power to determine the existence of and degree of diminution of earning capacity by reason of a compensable injury. [28] The purpose of Board policy on the issue of permanent disability, as with any other issue, is to promote consistency in the application of the legislation. We have already noted that Operational Policy Manual Document # , Permanent Disability (Pensions) Determining the Degree of Disability states that the Board has adopted the Ontario Rating Schedule as a clinical guide to evaluation for consistency of medical assessments for injuries governed under the pre-1989 legislation. This policy provides no guidance on factors that may be considered when the compensable injury is a total knee replacement. [29] In the February 2006 document, Dr. Kelly emphasises that the experience of the examiner is crucial in appropriately recommending the specific quantum within the framework of Board policy (i.e. the Ontario Rating Schedule). We accept that while the experience of the examiner is crucial in appropriately recommending the specific quantum of a pension award, and should be weighed heavily, the Tribunal is nevertheless required by the Act to reach an adjudicative decision on the worker s entitlement under section 45. [30] In Decision No. 2355I, we noted: there is very little difference in the worker s description of disability as of 1990 and his description of disability as of 1999/2000, before the arthroplasty. We find that the worker s description of disability immediately following arthroplasty, as recorded by Dr. Bernard, is marginally better than it was as of 1990 and 1999/2000. However, by 2005, despite some inconsistencies between his testimony and the March 10, 2005 report from Dr. Refalo, the worker s subjective impression is that his left knee condition has deteriorated since the arthroplasty. The objective physical findings described by Dr. Kelly in 1990 include no swelling, 120 degrees of flexion, no weakness in medial and lateral collateral ligaments, a negative McMurray s sign, some patellofermoral crepitus, an inability to squat, an inability to stand on one leg and an inability to stand on his toes. As of July 28, 2000, there was some evidence of varus deformity, soft tissue swelling of the joint and flexion to 110 degrees. As of 2005, according to Dr. Refalo, the worker could flex his left knee to 120 degrees. Although the references of comparison are not identical, we find that generally there is very little difference in the description of objective physical findings offered by Dr. Kelly in 1990, Dr. Bernard in 2000 and Dr. Refalo in We are satisfied that, other than a progression of osteoarthritis in the worker s left knee and total knee replacement surgery, there is little subjective or objective change in the worker s left knee disability between 1990 and the present time. [31] Of significance, in our view, is Dr. Kelly s observation from a medical perspective that several additional factors, beyond those considered for a non-total knee replacement impairment, come to bear in the assessment of a worker with a total knee replacement and that there are losses often not measured or measurable that are inherent with total knee replacement. He identified these as a loss of sensation, position sense and awareness, as well as vibration sense.

10 Page: 8 Decision No. 2355/05 He also stated that total knee replacement almost always weakens the leg and that special care must be taken to prevent mechanical injury and failure. To quite Dr. Kelly, It is not a normal knee and does not function as one. [32] We agree with Ms. Eagle that pension assessments under the pre-1989 Act are not intended to include potential risks because this would, in effect, result in compensating for disability that is not present. However, we do not agree that loss of sensation, position sense and awareness, vibration sense and leg weakness are reasonably considered to be potentialities. Our interpretation of Dr. Kelly s document is that these are automatic consequences of total knee replacement. We note that Dr. Kelly wrote at page two of his document that [t]here are losses often not measured or measurable that are inherent with TKR. Dr. Kelly did not write that there may be losses often not measured or measurable that are inherent with TKR. [33] We accept the Board s practice to provide a minimum rating of 15 percent for total knee replacement because, in our view, it properly reflects the impact of the inherent losses associated with the mechanical device on activities of daily living on an average unskilled worker. On these grounds, we do not accept the submission that the general guideline to grant a minimum rating of 15 percent for total knee replacement is somehow inconsistent with the intent of the legislation or policy. [34] Turning now to the issue of the specific quantum of the worker s pension award in this case, it follows, based upon the discussion above, that the worker is entitled to at least a 15 percent pension award because it properly reflects the impact of the inherent losses associated with the mechanical device on activities of daily living on an average unskilled worker. In this case, the worker seeks a reinstatement of his 20 percent pension award. [35] In order to determine the correct quantum, we consider the factors listed by Dr. Kelly with the findings recorded in the medical evidence. It is important to note that Dr. Kelly prefaced his list by stating, The following are factors and findings that may accompany in whole or in part the findings in the Ontario Rating Schedule. Our interpretation of this comment is that the list he provides is not necessarily an exhaustive list of factors considered in a pension assessment for a knee disability. It is also important to note that there is no information, either in Board policy or in Dr. Kelly s document, that explains how individual factors are weighed in the determination of the overall quantum of the pension award. [36] Following the post-operative examination of the worker on June 28, 2000, Dr. Bernard set out his findings which can be summarised as follows: the worker walked without a limp; alignment of the limb was correct; range of motion of the left knee was 0 to 120 degrees with slight patello-femoral crepitus; there was good varus valgus stability there was no wasting of the quadriceps

11 Page: 9 Decision No. 2355/05 [37] Most of the factors listed by Dr. Kelly are not reflected in the post-operative medical evidence from Dr. Bernard or Dr. Refalo. However, one factor listed by Dr. Kelly does correlate with a finding of the orthopaedic surgeon and family doctor: range of motion of the left knee was 0 to 120 degrees with slight patello-femoral crepitus. Although there is no information on how individual factors are weighed, we note that Operational Policy Manual Document # , Permanent Disability (Pensions) The Ontario Rating Schedule confers a minimum value of 5 percent for a knee that is limited in flexion to 90 degrees. Dr. Kelly advised that when flexion is limited to 90 degrees the recommended pension award is 5 percent. He also advised that the limitation may be due to a number of degenerative conditions. Post-operatively, the worker demonstrated flexion to 120 degrees with slight patello-femoral crepitus. A slight reduction in range of motion of the left knee with patello-femoral crepitus is the only finding, in addition to the total knee replacement, that correlates to the list of factors offered by Dr. Kelly. While we acknowledge that Dr. Kelly cautioned that an improved range of motion over 90 degrees might be a sign of laxity, rather than a good result, the other evidence indicates that the worker obtained a good result from the total knee replacement. [38] We find that a value of 2 percent is a reasonable estimate of the impairment resulting from the worker s slightly reduced post-operative range of motion in the left knee with patellofemoral crepitus and that the total pension award should be 17 percent.

12 Page: 10 Decision No. 2355/05 DISPOSITION [39] The worker s and employer s appeals are allowed in part. The worker s 20 percent pension award originally granted in October 2001 is to be reinstated at 17 percent. DATED: June 23, 2006 SIGNED: S. Ryan, D. McLachlan, F. Rao