WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2437/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2437/15 BEFORE: S. Netten: Vice-Chair HEARING: November 10, 2015 at Toronto Written DATE OF DECISION: November 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2592 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated June 23, 2014 APPEARANCES: For the worker: For the employer: Interpreter: B. Allen, Union representative Not participating 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

2 Decision No. 2437/15 REASONS (i) Issue [1] The issue under appeal is the worker s entitlement to a reassessment of his permanent disability (PD) pension for the left knee, presently rated at 20%. (ii) Overview [2] In Tribunal Decision No. 895/01 (December 12, 2001), the worker was granted entitlement for a permanent partial disability, being an osteoarthritic left knee, resulting from a workplace accident on July 24, The worker had undergone arthroscopic surgery in 1992 and a total knee replacement in The Board implemented Decision No. 895/01 in November 2002 by granting the worker a graduated PD pension, with a rating of 20% from The 20% PD quantum was confirmed by the Tribunal in Decision No. 1160/06 (June 16, 2006). [3] The worker requested a PD pension reassessment in February This request was denied at the operational and appeals levels of the Board, in October 2013 and June 2014 respectively. The worker now appeals to the Tribunal. [4] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (iii) Legal framework [5] Since the worker was injured in 1978, the pre-1985 Workers Compensation Act ( pre-1989 Act ) applies to this appeal. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. Sections 112(3) and 126 of the WSIA require Board policy to be applied to decisions after January 1, 1998, regardless of the accident date. [6] Board policy titled Permanent Disability Benefits - Ontario Rating Schedule (Operational Policy Manual (OPM) Document No ), adopts a schedule of benchmarks designed to estimate the impact of specific injuries on the earning capacity of an average unskilled worker. With respect to knee injuries, the Ontario Rating Schedule estimates that total immobility of the knee corresponds to a 25% impairment of earnings capacity, whereas knee flexion limited to 90 degrees corresponds to a 5% impairment. In practice, as outlined in Decision No. 2355/05, pension examiners consider range of motion as well as evidence of disability such as ligamentous stability, crepitus, joint pressure and fluid in the knee, leg length discrepancies, muscle function, and gait. Subjective pain and discomfort is not assessed in and of itself. In the circumstances of a total knee replacement, which may improve range of motion but does not function as a normal knee, pension examiners use a benchmark rating generally between 15 and 20%, and up to 25%, depending on the result of the knee replacement (see Decisions No. 34/14, 1715/13, 87/11, 197/06 and 2355/05). [7] Board policy titled Determining the Degree of Disability (OPM Document No ) states that a worker s disability may be reassessed if permanent disability worsens.

3 Page: 2 Decision No. 2437/15 [8] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. The benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Relevance of claims of unsuitable work [9] In submissions to the Tribunal in August 2014 and May 2015, the worker s representative asserts that the performance of unsuitable work was conducive to a worsening of his knee condition. The question to be determined in this appeal is whether the worker has experienced a permanent worsening of his compensable disability since it was last assessed in The file documentation confirms that the worker stopped working in As such, evidence of worsening of the knee condition while the worker was still working (whether presented orally, as requested, or in writing) is not relevant to whether there has been a deterioration since (v) The worker s knee condition in and around 2002 [10] Orthopedic surgeon Dr. G. Maistrelli assessed the worker on June 10, 2002 and reported: He did well for the first 2 or 3 years but in the last year or so, he has been complaining of persistent ache in the left knee which restricts him from performing activities that requires [sic] walking or sitting for prolonged periods of time and negotiating stairs. The knee feels weak as well. Examination today revealed no swelling. He had range of motion which was between 5 and 105. The most important finding was the flexion instability of the knee at around 80 of flexion. There are no other findings. I feel that the symptoms are due to flexion instability of the total knee arthroplasty which is not an uncommon finding in [sic] particularly with preoperative valgus knees. He is therefore limited in his activities due to his instability and particular activities that require climbing, getting up from a chair and walking or standing for prolonged periods of time. [11] Board Medical Consultant Dr. L. David examined the worker for pension purposes on September 9, 2002: The injured worker states that two years following the total knee replacement, the left knee behaved very well. However since that time he has experienced ongoing aching pain in the left knee with stiffness and loss in the movement. He states that he has a sensation of the left lower extremity giving in. He states he has numbness over the lateral aspect of the left knee related to the incision site with weakness of the whole lower extremity. He has difficulty with ascending and descending stairs and can no longer do any full squatting. He does state that there is [sic] intermittent episodes of swelling in the left knee. He states he has interrupted sleep related to pain in the left knee. He has difficulty laying on the left side with pressure on the left knee area. He states he is able to walk approximately 15 minutes duration with the onset of lower left knee pain In the standing position, the injured worker was able to balance weight equally on both lower extremities There was evidence of three prominent surgical scars There was evidence of a Grade 1 left suprapatellar effusion. There was also evidence of fullness of left popliteal space related to fluid accumulation in the left knee joint. The injured worker was able to rise on the forefeet and elevate the forefoot from the floor without evidence of ankle lag or weakness. The injured worker walks with evidence of a mild left lower extremity limp.

4 Page: 3 Decision No. 2437/15 In the sitting position there was local tenderness over the left pre-patellar area, the suprapatellar area and medial and lateral joint lines Repetitive flexion/extension of the right knee indicated evidence of grating or crepitation. There was evidence of a minor clunk in the left knee with flexion extension movement. Deep tendon reflexes at both knees were 1+ bilaterally, 1+ at the ankles. There was an area of hypoesthesia noted over the anterior aspect of the left knee and lateral knee related to the surgical incision. Sensation was intact in the lower extremities. Toes were bilaterally downgoing. In the supine position, measurement of the musculature 10 cm above upper pole and patella and 10 cm below tibial tubercle on the left 41/38, right 45/39. Range of motion of the left knee, flexion/extension 100/-5 with -5 degrees valgus. Ligament testing for the left knee did not reveal evidence of anterior or medial lateral instability. There was no evidence of locking with range of motion. [12] In a report of May 29, 2003, orthopedic surgeon Dr. J. Ostrowski reported that the worker had mild soft tissue swelling but has had for a few years, his knee clicks frequently but it has always done so, and there was significant patellofemoral crepitus and clunking as the knee is put through range of motion. He subsequently noted mild instability of the medial collateral ligament, pain primarily from the patella, and patellofemoral arthritis. In September 2003 Dr. Maistrelli reiterated the worker s problems with instability affecting activity, noting laxity of the medial collateral ligament and clunking at mid-flexion. The worker did not proceed with proposed resurfacing or revision surgery. (vi) The worker s knee condition recently [13] Dr. Ostrowski reassessed the worker on June 7, 2010: The pain over the past year has been fairly severe The pain is in the anterior aspect of the knee and is activity-related. This increases throughout the day. He is quite sore at nighttime. On examination there is some patellofemoral crepitus as the knee is put through range of motion. Maximal tenderness is in the peripatellar region. There is mild joint line tenderness and mild medial-lateral laxity. Radiographs reveal no significant change. He does have some patellar arthritis. There is no loosening of the implant. [14] Although surgery was again discussed, the worker s family doctor, Dr. D. Girard has confirmed that it is not under consideration due to co-existing medical issues. [15] On April 12, 2013 Dr. Girard responded to the Board s request for an updated medical report in relation to the reassessment request: I have been asked, as [the worker s] family physician for over 25 years, to request a reassessment of his existing pension based on a worsening of his knee condition. I am in receipt of your letter to [the worker] dated February 27, 2003 outlining what information is required in support of this request. [The worker] continues to complain of ongoing pain and stiffness involving his left knee. As you are aware, he underwent a left total knee arthroplasty in Since the year 2000 or so, he has complained of a persisting ache that affects his walking or prolonged sitting. He saw Dr. G. Maistrelli in 2002, who indicated these symptoms are due to flexion instability of the total knee arthroplasty

5 Page: 4 Decision No. 2437/15 Since then, his condition has continued to worsen. He remains unable to walk any distances, cannot sit or stand for long, and has difficulty kneeling or climbing. He requires the use of a cane to help him get around. He remains on over-the-counter analgesics On examination, he remains unable to fully extend his left knee by approximately 5 degrees (ROM degrees). No effusions were present but there was 2+ crepitus evident. There was also evidence of wasting of his left quads musculature. Up to date X-rays indicate that the arthroplasty components are stable and anatomic. Based on the above, I believe that [the worker s] left knee condition has deteriorated since his last assessment in 2002 and I request that he be considered for reassessment (vii) Medical Consultant opinion [16] Board Medical Consultant Dr. P. Tepperman provided an opinion, on the Case Manager s request, on September 2, 2013: There has not been a significant deterioration towards total immobility that would rationalize the need for another assessment. Thus it is my opinion that another assessment is not necessary at this time. (viii) Discussion and conclusion [17] I note first that I do not place a great deal of weight on Dr. Tepperman s opinion, as he was asked about a significant deterioration rather than a worsening of the compensable condition. Board policy cited above allows PD pension reassessment if the condition worsens. While I do not interpret this policy to allow reassessment for a worsening which is trivial or de minimis, I note that the test for reassessment is whether the disability has worsened and not whether there has been a significant deterioration. As discussed in Tribunal jurisprudence, the concept of significant deterioration, which is defined in Board policy to require a demonstrable, marked deterioration, applies to non-economic loss awards under successor legislation and not to PD pensions (see, for example, Decision Nos. 267/15, 1384/12, and 128/10). [18] The clinical findings for the worker s knee have remained virtually identical over time, including the arthroplasty and patellofemoral pathology seen on imaging, flexion instability resulting from the knee replacement, marked crepitation, patellar tenderness, wasting of the musculature, and reduced range of motion to approximately 100 degrees of flexion-extension ( or in 2002, and in 2013). Nevertheless, Dr. Girard reports increased functional loss associated with the knee instability since Specifically, the worker s ability to sit, stand and walk is further reduced (from up to 15 minutes at a time in 2002, to not being able to walk any distances in 2013), and the worker has resorted to the use of a cane for stability with ambulation. Dr. Girard has had the benefit of seeing the worker regularly over a long period of time. On the basis of his 2013 report, I find it more likely than not that the worker has experienced a worsening of the functional loss associated with his compensable left knee disability. [19] Accordingly, I conclude that the worker is entitled to a PD pension reassessment for the left knee. [20] I have not made any finding of fact with respect to whether the current 20% pension remains appropriate for the worker s overall knee condition, and note that the pension reassessment may or may not result in an increased pension quantum.

6 Page: 5 Decision No. 2437/15 DISPOSITION [21] The appeal is allowed. The worker is entitled to a PD pension reassessment for the left knee. DATED: November 17, 2015 SIGNED: S. Netten

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