SUMMARY DECISION NO. 1008/98. Delay (onset of symptoms); Pensions (assessment) (ankle).

Transcription

1 SUMMARY DECISION NO. 1008/98 Delay (onset of symptoms); Pensions (assessment) (ankle). The worker twisted his right ankle in He was granted a 3% pension for chronic right ankle strain. The worker appealed a decision of the Appeals Officer denying entitlement for right knee disability and denying an increase in the pension. The Vice-Chair accepted the opinion of a Tribunal medical assessor that any connection between the ankle injury and the knee complaints was tenuous and that this case was not a typical pattern for secondary involvement following minor ankle trauma. The Vice-Chair concluded that the worker was not entitled to benefits for knee disability. The observation of the worker's ankle condition on the pension assessment was similar to that of the Tribunal medical assessor. There was no basis to increase the pension. The appeal was dismissed. [7 pages] DECIDED BY: Newman DATE: 13/10/99 ACT: WCA CROSS-REFERENCE: Decision No. 1008/98I

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1008/98 [1] This appeal was heard in Toronto on July 10, 1998, by Tribunal Vice-Chair E. Newman. Interim Decision No. 1008/98I was released on August 4, 1998, requiring independent medical assessment. The post-hearing process was completed on June 10, THE APPEAL PROCEEDINGS [2] The worker brings this appeal from the decision of Appeals Officer Jachna, dated December 2, [3] The worker attended, represented by Garry Murphy of CAW Local 222. The employer s final submissions were provided by Ms. Gina Caldarelli. THE EVIDENCE [4] The following documents were considered: Exhibit #1: Case Record; Exhibit #2: Addendum #1; Exhibit #3: recent medical reports; Exhibit #4: Post-Hearing Addendum #1; Exhibit #5: Post-Hearing Addendum #2. THE NATURE OF THE CASE [5] The worker slipped and fell at work on September 28, He received a 3% permanent partial disability award for a chronic strain of the right ankle. [6] On this appeal the worker makes two points: 1. a 3% award inadequately recognizes the degree of disability; 2. at some point in the first year after that accident the worker started to have pain in the right knee. He contends that the right ankle disability caused the right knee problem and seeks entitlement to benefits for the right knee disability. [7] The employer s position is that the 3% awarded for the right ankle is, if anything, excessive. There is no evidence, in the employer s submission, supporting a causal connection between the ankle and knee disabilities.

3 Page: 2 Decision No. 1008/98 THE REASONS [8] The worker claims that the 3% permanent partial disability award inadequately recognizes the degree of disability caused by the continuing right ankle disability. He also claims that in consequence of the right ankle disability, he developed a disability of the right knee. [9] On September 29, 1989, the worker twisted his right ankle in the course of employment, stepping out of a car. He was diagnosed with a strain of the right ankle. According to family doctor P.C. Fang, and according to his report of April 29, 1991, the worker lost four months in the winter of 1990, two months of work in the summer of 1990, and two months of work in the winter of , due to the right ankle difficulty. In April of 1991, he was also off work for a period of time, before returning to usual duties. By September 25, 1991, Dr. Fang reported that the clinical examination of the right ankle was not remarkable, although some lateral ligamental weakness might remain. No specific treatment was required. [10] The worker was initially assessed for permanent impairment purposes on April 22, Medical Advisor Dr. William Frank concluded that there was a chronic sprain of the right ankle. He reported: [The worker] is tender anteriorly and medially from the right malleolus. There is slight edema in the area. The circumference in the corresponding areas of the right malleolus is 25.5 cms. and the circumference around the left ankle 24.5 cms. He can manage to walk on his toes and heels and can stand independently on each foot. The movements of plantar and dorsiflexion are full so are the movements of inversion and eversion. The knee and ankle reflexes are present and equal bilaterally. The plantar response is downgoing bilaterally. There is no sensory deficit. [11] The worker was reassessed on November 16, Dr. C. Fleming, Medical Advisor, said: EXAMINATION: Both the knee and the ankle braces were removed for the examination. He was a pleasant, co-operative fifty-three year old male who was five feet, seven inches tall and weighed 179 pounds. With the removal of the braces, he did tend to walk with a limp favouring the right leg. There was, however, no abnormality of stance. He could walk on his heels without too much difficulty but found it extremely difficult walking on his heels without too much difficulty but found it extremely difficult walking on his toes and there was rather a dramatic collapsing of the right ankle when he attempted walking on his toes. He could hop with no problems on his left leg but found hopping on the right leg to be extremely difficult. Cross examination of the right ankle really revealed no abnormalities. Both ankle and knee reflexes were brisk and equal. Peripheral pulses were full and equal. Skin temperature appeared to be the same in both feet. There was no abnormality noted on examination of the left ankle. Examination of the right ankle revealed dorsiflexion and plantar flexion to be full but with some slight discomfort at the extremes of motion in both directions. Similarly, inversion and eversion of the right foot were full but with some slight discomfort at the extremes of motion. When these movements were attempted against resistance, it was found that dorsiflexion of the right ankle and eversion of the right foot did show some weakness as compared to the left foot and ankle.

4 Page: 3 Decision No. 1008/98 Palpation around the right ankle revealed some acute tenderness over the anterior aspect of the ankle joint but no other abnormalities were noted. Measurement around both ankles at the same points revealed no discrepancy. There was no tenderness noted over either the lateral or medial aspects of the ankle and there was no swelling noted. There was no sensory deficit demonstrated. DIAGNOSIS: Chronic ligamentous strain of the right ankle. [12] The worker s evidence, supplemented in post-hearing material, is that he began to develop some discomfort in his right knee, and complained of that difficulty on December 9, Accepting this evidence as accurate, I note the first complaint of knee pain is two and a quarter years after the original accident occurred. [13] There is some evidence, particularly that coming from Dr. Robert M. Luba, orthopedic consultant, that a bone scan revealed increased activity in both knees, not just the right. In the same report, dated May 12, 1998, Dr. Luba reports the worker s information that the right knee started to bother him eight months after he injured his ankle. The latter statement, as reflected in the worker s own evidence, is not accurate. [14] Given the worker s assertion that he suffers from a considerable degree of disability in the right ankle, the matter was referred to an assessor for an objective view of the degree of disability which affects the ankle. The assessor was also asked to share his view on a probable relationship between the ankle disability and the worker s complaints of right knee pain. The report came from Dr. J. Murnaghan, dated March 11, 1999: The Appeals Tribunal has requested an assessment of the degree of this workers disability, the adequacy of a 3% disability diagnosis, with respect to the right knee, the degree to which the right ankle problem is responsible for the right knee problem and finally the need for a brace at the ankle, knee and with provision of insoles and/or shoe modification. In order to fully assess the situation, the documents from the Appeals Tribunal were reviewed in their entirety. The patient was interviewed and examined in my office on 5 th March I will briefly summarize the history from the patient s point of view and bring it up to date regarding his current situation, including his physical examination and then deal with the specific questions of the Tribunal. [The worker] was interviewed in my office at the Orthopaedic and Arthritic Hospital on Friday, March 5 th He was pleasant and direct throughout the course of the interview. There is some details [sic] of dates which he felt would be better obtained from the record. In September 1989, [the worker] took a car off one assembly line at the [the employer] plant to put it on another line for battery replacement. When stepping out of the car on the driver s side, somehow he lost his balance and injured his right ankle. He stated he had pain and swelling in the right ankle. He was initially assessed at a First Aid station and subsequently saw his physician on the 3 rd October He is not sure about the time off around his initial injury. He had intermittent problems with his ankle over the next few months. He was treated with an ankle brace by Dr. P.C. Fang at approximately six months following his injury which allowed him to return to work. He had brief periods off work and has had persistent pain with weightbearing over his right ankle since that time. As of March 1999, he does not have a great deal of pain when he is wearing his ankle brace. Without the brace however, he does experience pain on the anterolateral aspect of his ankle which radiates up towards his knee. With his braces on he can stand for up to ¾ hour. He feels he can walk approximately two blocks. With

5 Page: 4 Decision No. 1008/98 braces off he can stand for only minutes and walk for one block. He uses a cane very rarely. His wife does the shopping. He has some discomfort when he lifts up his grandchildren. He has difficulty washing his car. He states he is able to mow the lawn but some days he needs some help from his grown children or grandchildren. He is finding it increasingly difficult to maintain a swimming pool. He takes Tylenol #2 approximately two times a week for his pain. He states that outside of his knee he does not have pain in other joints and there is no family history of joint problems. With respect to his right knee, [the worker] believes he developed pain in the early 90 s. He believes this occurred about five to six months after his ankle injury. From his perspective, he had not had any knee problems or knee injuries prior to the ankle injury. He noticed pain with twisting his knee and when starting to walk. He believes Dr. Guselle prescribed a knee brace for him in July On examination, [the worker] is a fit 58 year old male. He is a medium build and within 15% of his ideal body weight. He arrived wearing an aircast type splint on his right ankle over the top of his sock and fitting inside his shoe. In addition, he had a generation II type brace on his right knee. With the two braces in place, he had an even cadence to his gait with a normal stride length. There was no obvious limp. Following removal of his braces and footwear, he had a marked change with a short stance phase on the right side and complaints of pain in the area of the right ankle. When he was asked to walk backwards, there was a change in the cadence of his gait although it remained irregular. The overall alignment of his legs was neutral. There was no obvious atrophy of the thigh or calf. There was no obvious swelling, erythema or induration about the knee or ankle on either side. The heel had normal valgus alignment. When asked to go up on his toes, both subtalar joints swung into varus. He did complain of pain on the right side when up on his toes. The arch, although somewhat flattened was present bilaterally. He had a mildly splayed forefoot. There was no evidence of callus. Inspection of the right knee revealed normal bony contour without evidence of swelling. He had tenderness over the distal portion of his tibia, over the front of the talus extending laterally towards syndesmosis. There was no tenderness over the syndesmosis between the distal fibula and the distal tibia. He had mild tenderness along the anterior edge of the lateral malleolus. There was no tenderness over the calcaneal fibular ligament and no tenderness over the posterior talofibular ligament. There was mild tenderness at the joint line over the peroneal talons behind the lateral malleolus. There was minimal tenderness over the deltoid ligament and the medial malleolus. Range of motion of the ankle on the right side was from 10 degrees of dorsiflexion to 30 degrees of plantarflexion. On the left side, we observed 12 degrees of dorsiflexion and 35 degrees of plantarflexion. He had 10 degrees of inversion and 5 degrees of eversion on both sides and midfoot movement was normal. There was no evidence for anterior posterior ligament laxity. Similarly, there was no varus valgus instability in either ankle. Power was 4+/5 for all muscle groups around the ankle although with significant muscular effort [the worker] complained of pain over the anterolateral aspect of his knee. There was no crepitus or irregularity as the ankle was put through passive range of motion. Sensation was present throughout his feet and pulses were present. Reflexes were 2+ at the ankle and 2+ at the knee. Ankle circumference measured 23.5 at the level of the anterior joint line on the right side and 23 on the left side. With respect to his knee, we noted above that alignment of the extremity was neutral. There was no joint effusion in the knee. He complained of tenderness over the anteromedial joint line and over the medial epicondyle. There was no tenderness in the posteromedial joint line or the rest of the medial collateral ligament. The patellar tendon was nontender and there was no tenderness of the lateral structures at the joint line or the lateral collateral ligament. There was no anterior posterior instability and th4ere was no collateral ligament instability. He did complain of some discomfort on McMurray s maneuver for the medial meniscus but there was no click palpated for this examiner. There were no masses felt in the popliteal fossa and apprehension test for patellar

6 Page: 5 Decision No. 1008/98 instability was negative. His quadriceps circumference above the knee joint was 41 cm. on the right side and 40 cm. on the left side. This would indicate that there was no wasting of the quadriceps muscles. There was no crepitus in any of the three compartments. Range of motion of his hips was normal. Straight leg raise was normal. X-rays of his knees showed normal bony contours without evidence of joint space narrowing sclerosis or osteophyte formation. There was no evidence of degenerative change. With respect to his right ankle the joint space at the ankle is well maintained. The ankle mortice has a normal contour and there is no evidence of talar tilt or talar subluxation suggestive of chronic instability. In addition, the subtalar joint margins are clear with no evidence of subluxation, sclerosis or narrowing. There is no sign of arthritis in the ankle, the subtalar joint or midfoot. [The worker] demonstrated some mild pain behaviors during the course of the interview with a rather dramatic collapsing of his right leg while attempting to do a toe raise while standing on the right leg. In addition, there was some sighing and grimacing as the examination was carried out. On a couple of occasions he complained of significant ankle pain with range of motion of his hip. Diagnosis: 1. Chronic pain right ankle without objective evidence of ligamentous instability or degenerative joint disease. 2. Chronic right medial knee pain without objective evidence of degenerative joint disease, ligamentous instability or patellofemoral instability. Thee is, at best, weak evidence for a medial meniscal tear. There is certainly no indication for surgical treatment. [The worker] is ambulatory with the use of his braces. He requires analgesics up to two times per week. He does experience some limitation in his activities and recreational life due to pain at the ankle and the knee. He has recently retired from [this employer]. Prognosis: It is unlikely that his condition will deteriorate significantly as he has had similar complaints for several years. The location and severity of his ankle complaints do not appear to have changed significantly in the last eight years. The issue of the degree to which the right ankle problem is responsible for the right knee problem is a thorny one. I believe [the worker] when he tells me that he did not have knee problems prior to injuring his ankle. However, the onset in time has been very difficult to trace from the medical documentation. There are existing reports from the worker himself, his physiotherapist, his family doctor and his consultant Dr. Fang during the interval from the 30 th January 1990 (Dr. Guselle page 209) through to January 31 st 1992 where there is not a single mention of knee complaints. The first record is a handwritten note on Oshawa Clinic letterhead dated July 18 th This essentially is 22 months following his injury and it is not clear who is responsible for this note (page 156). The next reference is from a Dr. Y.J. Park on 25 th November 1993, fully 50 months following the injury. I think the link is rather tenuous. There is no clear association between trauma of the ankle and onset of subsequent knee problems. From [the worker s] point of view, his symptoms came on during his rehab programme in We carefully reviewed the physical rehab discharge reports available from the 27 th August There is no mention of the knee pain interfering with the rehab from the available documentation. The final questions from the tribunal was whether there was a need for a brace at the ankle or knee and whether there was a need for insoles and/or shoe modifications. From the orthopaedic perspective, I found neither structural malalignment, ligamentous laxity or neuromuscular weakness which would support the need for a brace. At the same time, the ankle foot orthosis and the unloader type brace have been used as effective means to

7 Page: 6 Decision No. 1008/98 control pain and allow physical mobility by [the worker] for the last six to eight years. I do not think that they are in fact doing any harm where the removal of these supports may significantly alter his ability to get around. From the structural point of view his feet are within the range of normal. He may require slight shoe modification to accommodate the ankle foot orthosis but the structure of his feet are not such that he would require custom footwear per se. I think he would manage well in a well cushioned walking shoe but do not see indication for custom insoles. [15] In post-hearing submission, the worker s representative asserts that Dr. Murnaghan s report does provide support for an increased permanent partial disability award for the right ankle, as well as entitlement to benefits for the complaints of pain in the knee. Counsel for the employer interprets the report as establishing no ground for increased award, and no evidentiary basis for concluding that there is a relationship between the minor right ankle difficulty and the right knee pain. [16] In the assessment of the medical evidence, I have not overlooked the material of Dr. Wong, of the Occupational Health Clinic for Ontario Workers Inc. I recognize that his material does support the worker s claim of a connection between the ankle and the knee. [17] However, I am primarily persuaded by the evidence of Dr. Murnaghan, which reveals a most objective and detailed assessment of the facts, the evidence, and the opinions of others, and his own observations. Dr. Murnaghan s statement is that the link between the ankle sprain and the knee complaint is tenuous. He then continues to say, There is no clear association between trauma of the ankle and onset of subsequent knee problems. This is not a typical pattern for secondary involvement following minor ankle trauma. [18] In my view, Dr. Murnaghan s opinion is clear. It does not support the conclusion that the continuing ankle problem gave rise to pain in the worker s right knee. [19] In respect of the assertion that the evidence supports an increase in the amount of the permanent impairment award for the worker s ankle disability, I am struck by the similarity of observations between Dr. Murnaghan, and those who have assessed this worker for the Workers Compensation Board. The absence of objective indicators revealing a greater level of organic disability leads to the conclusion, in my view, that there is no ground to alter the 3% award granted by the Board. [20] Although the worker s appeal must be denied, in doing so I note that he was particularly well represented by Mr. Murphy on this appeal, who put forth a vigorous and thorough effort on behalf of his client. THE DECISION [21] The worker s appeal is denied. DATED: October 13, 1999 SIGNED: E. Newman