1 SUMMARY DECISION NO. 1162/97 Aggravation (preexisting condition) (osteoarthritis) (knee). The worker suffered left knee injuries in 1976, 1980 and The worker appealed a decision of the Appeals Officer denying a pension for left knee disability. The worker had generalized osteoarthritis. She was also diabetic and overweight, conditions which are secondary predisposing factors to development of osteoarthritis. The accidents aggravated the preexisting condition but did not affect the normal progression of the degenerative condition. The appeal was dismissed. [8 pages] PANEL: McIntosh-Janis; Jackson; Barbeau DATE: 22/10/97
2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 1162/97  This appeal was considered in Toronto on October 16, 1997, by the Tribunal s Early Resolution Panel: F.W. McIntosh-Janis: Vice-Chair, P.A. Barbeau : Member representative of employers, F. Jackson : Member representative of workers. THE APPEAL PROCEEDINGS  This appeal was referred to this Panel as part of the Early Resolution Process described in Decision No. 276/97 (April 1997). The Appeals Resolution Officer s recommendation appears as an Appendix to this decision.  The worker has asked the Panel to have particular regard to certain facts outlined in the recommendation, especially the medical opinions outlined there. The worker and Appeals Resolution Officer recommend that we determine the issue of the worker s entitlement to a permanent disability assessment for her left knee on the basis of the written materials and the information and submissions noted in the recommendation appended to this decision.  We agree to this recommendation concerning the process to be followed in deciding this appeal. Accordingly, the balance of this decision will deal with the merits of the appeal. THE EVIDENCE  The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (in three parts), two Addenda, and the recommendation of the worker and the Appeals Resolution Officer. THE ISSUES  The worker had compensable injuries involving her left knee in March 1976, February 1980 and December She claims that her current increased problems with her left knee, diagnosed as related to significant patello-femoral arthritis, are causally related to these compensable accidents and that she is accordingly entitled to a permanent disability assessment. THE PANEL S REASONS (i) The 1976 accident  In determining whether there is a connection between the worker s current problems and her 1976 compensable accident, we have considered especially the following: 1. The worker bruised both her left and right knees in March 1976 when she fell on concrete. The injury to her knees was diagnosed as a soft tissue injury that required conservative treatment. (There is no evidence of even x-rays being taken.) 2. The worker returned to her regular work approximately one month after this injury. Based on the medical information on file, it would appear that her March 1976 injury was completely resolved.
3 Page: 2 3. There is some reference to co-workers corroborating continuity of complaint from 1976 to 1979 (when the worker next laid off with knee complaints). However, the evidence appears to relate to complaints of problems with both knees, not just the left knee. Where there is reference to complaints of problems with only one knee, the co-workers cannot recall which knee. 4. The company First Aid nurse refers in 1980 to the worker being seen on several occasions in the medical office due to recurrent pain in her left knee. However, there is no evidence as to what the diagnosis was, how often these visits occurred, and what treatment was recommended. We do know, however, that the worker did not seek any other medical treatment for her left knee from 1976 to 1979/ The worker laid off for two months in The forms refer to osteoarthritis in the left knee. (There is also a reference to stomach problems.) This is the first reference to osteoarthritis as the diagnosis of the worker s left knee condition. However, there is no reference in any of the medical documentation which supported the worker s 1979 lay-off to any possible connection between this diagnosis and the 1976 compensable accident. In fact, the lay-off was clearly dealt with as a non-compensable problem which resulted in sickness and accident benefits. 6. Dr. Fink, an orthopaedic surgeon who saw the worker in 1988, stated that it was doubtful that the worker s osteoarthritis was precipitated by the 1976 fall. (ii) The 1980 accident  In determining whether there is a connection between the worker s current problems and her 1980 compensable accident, we have considered especially the following: 1. The diagnosis of the worker s left knee condition after the 1980 fall was aggravation of osteoarthritis. She laid off for approximately five months. 2. In July 1981 the worker laid off again, this time for two months, for an aggravation of her osteoarthritis. This lay-off was non-compensable and therefore covered by sickness and accident benefits. 3. In March 1987 the worker laid off again, again for two months, for an aggravation of her osteoarthritis. This lay-off was also considered non-compensable and therefore covered by sickness and accident benefits. 4. The worker advised Dr. Fink in February 1988 that after her lay-off in 1981 she had no difficulty in the ensuing six years and that she had some mild discomfort in the knee but she was able to continue performing her duties at work and her activities of daily living. 5. Dr. Pugen, the worker s family physician, referred in 1990 to the worker having continued to suffer with right shoulder and knee pain after However, he considered these complaints to be related to the worker s injury of January 1984, a compensable accident which we understand involved only the worker s right shoulder. His statement with respect to knee pain complaints is unfortunately so vague that we do not even know to which knee the doctor is referring. (iii) The 1987 accident  In determining whether there is a connection between the worker s current problems and her 1987 compensable accident, we have considered especially the following:
4 Page: 3 1. The worker s injury in 1987 resulted in the Board s award of approximately six months benefits, based upon the opinions of Drs. Urovitz, Fink and Weinstock, all orthopaedic specialists, that there would be an expected recovery time from the injury of two to four months. These opinions are all based upon the specialists examinations of the worker shortly after the 1987 accident. 2. There is no record of any medical treatment of the worker s left knee condition between April 16 and October 18, The worker s family physician, Dr. Pugen, wondered whether this might have been because the worker was unaware that anything further could be done for her and because of her limited English and poor education background. It would not appear, however, that Dr. Pugen was aware of the fact that the worker was in Italy for this period of time, attending to personal family matters. The worker undertook to supply the Board with doctors reports concerning her treatment in Italy during this period. However, the only reports on file from Italian doctors relate to physiotherapy treatments in 1989, not Dr. Pugen offered his opinion that the worker s knee condition had not returned to the preaccident level during the summer of However, this appears to be pure speculation on his part and not based upon any clinical examinations of the worker or upon objective medical information on file. Therefore, we cannot give any weight to this opinion as to the state of the worker s knee in the summer of It is not sufficient to cause us to doubt the accuracy of the three specialists opinions that the worker s aggravation of her underlying osteoarthritic condition would resolve by the late spring or early summer of The worker advised Dr. Weinstock in March 1988 that, prior to December 1987, her knee bothered her a little from time to time, but there was no restriction and she felt fully capable of working. (iv) Our conclusions  Given the nature of the 1976 injury, the quick recovery from the injury and return to regular work, the unclear evidence of continuing complaints, the lack of formal medical attention, and the lack of any medical opinion supporting a connection between the diagnosis of osteoarthritis and the 1976 injury, we are not satisfied that there is a connection between the worker s current problems and her 1976 compensable accident.  Given the diagnosis of the 1980 injury as an aggravation of a pre-existing underlying condition, the absence of any medical opinion to refute this characterization of the 1980 injury, the series of noncompensable aggravations which followed the 1980 injury and the worker s own reported ability to continue to work at her regular job without substantial difficulty, we are not satisfied that there is a connection between the worker s current problems and her 1980 compensable accident.  Given the medical evidence concerning the expected recovery time from the 1987 injury, the lack of any objective evidence to refute the three specialists opinions in this regard and the worker s concession that her knee condition prior to the 1987 accident did not interfere with her ability to do her regular work, we are not satisfied that there is a connection between the worker s current problems and her 1987 compensable accident.  In reaching these conclusions, we have also noted that the worker has generalized osteoarthritis, involving her right knee, her cervical spine and her right shoulder as well as her left knee. Her osteoarthritis is not limited to her left knee. We also note that the worker is diabetic and overweight. Both conditions are secondary pre-disposing factors to the development of osteoarthritis.
5 Page: 4  In our view, the medical evidence establishes that the worker has suffered several compensable and non-compensable aggravations of this underlying condition. (It would appear that, in addition to the lay-offs noted above, after the worker retired she suffered another fall in July 1990 which caused yet another flare-up of her left knee condition.) However, there is no evidence to support the claim that any or all of the worker s compensable accidents to her knee have affected the normal progression of this degenerative condition. We are not satisfied that the evidence on this issue is approximately equal in weight; therefore, regard cannot be had to the benefit of doubt found in section 4(4) of the Act. THE DECISION  The appeal is denied. DATED: October 22, 1997 SIGNED: F.W. McIntosh-Janis, P.A. Barbeau, F. Jackson
6 APPENDIX RECOMMENDATION OF THE APPEALS RESOLUTION OFFICER THE APPEAL PROCEEDINGS  This appeal is from the decision of the Appeals Officer dated October 17, 1996, which denied the worker entitlement to a permanent disability assessment for her left knee. The worker was also denied ongoing entitlement to temporary total disability benefits for her left knee for a period subsequent to June 27,  The Appeals Resolution Officer met with the worker and her representative, E. Simonetto of the Office of the Worker Adviser, on August 29, Also present at the meeting were the worker s two daughters. C. Pisa interpreted in the Italian language. The accident employer is no longer in business. BACKGROUND TO THE RECOMMENDATION  The Appeals Resolution Officer notes the following facts, which are agreed to by the worker, as a basis for this recommendation: a) The worker was employed in an auto parts factory. Her job involved the assembly of brake shoes while standing at a table. She held the same job during the relevant period of these claims. b) On March 26, 1976, a power cable short-circuited near to the worker s job station. The resulting noise and flash caused the worker to fall to the concrete floor. As a result, she suffered bruises to her knees and hand. c) Temporary total disability benefits were paid to April 26, 1976, at which time the worker returned to work. d) In July 1979, the accident employer filed a claim on behalf of the worker for non-compensable sickness and accident benefits. The worker had osteoarthritis of the left knee. Benefits were paid by the company s insurer from July 17, 1979, to September 18, 1979, at which time the worker again returned to work. e) On February 22, 1980, the worker was coming from her car to work when she slipped and fell in the parking lot. As she attempted to get up, she slipped and fell, again hitting her knee. The worker s condition was diagnosed as a contusion of the knee, aggravation of left knee osteoarthritis and Baker s cyst of the left knee. A new workers compensation claim was established and lost time benefits were paid to July 21, f) In October 1980 and February 1981, the Board conducted investigations into the worker s claims. The Investigator interviewed the worker s foreman and a floorlady. The foreman told them he saw the worker rub one of her knees once in a while and that she complained that it was sore. The floorlady recalled to the Investigator that the worker frequently complained that both her knees were sore. This co-worker also saw the worker rubbing her knees in the company washroom.
7 Page: 6 g) An x-ray report dated April 18, 1980, indicates that the worker had minor degenerative change in her left knee. h) In a report dated May 7, 1980, Dr. S. Silverberg, Internal Medicine Specialist, diagnosed osteoarthritis of the left knee, with a Baker s cyst behind the left knee and left subacromial tendonitis. i) The worker again received non-compensable sickness and accident benefits from July 10, 1981, to September 21, She had osteoarthritis of the left knee and bursitis of the left shoulder. j) On December 23, 1987, the worker was going up a set of stairs to the lunchroom at work when she slipped and struck her left knee. She finished her shift and was off for the holiday season until January 4, On her day back, the worker had to stop due to pain and she did not return after January 5, As the worker was 66 years of age at that time, she retired from work. k) On March 2, 1988, Dr. M. Weinstock, reported that the worker had pre-existing osteoarthritis in her left knee before December 1987 and that, in his opinion, this was a legitimate recurrence of her previous left knee problem. l) A March 2, 1988, report from Dr. E. Fink, orthopaedic surgeon, indicates that it was doubtful that the worker s osteoarthritis was precipitated by her 1979 fall. m) Benefits were initially denied for the December 1987 accident. Entitlement was later allowed on an aggravation basis and total temporary disability benefits were paid from January 13, 1988, to June 27, n) The Board doctor, Dr. E.J. Macfarlane reviewed the file and in a memo dated May 2, 1989, gave the opinion that the worker s left patellofemoral arthritis has been present for many years. Dr. Macfarlane also stated that the accident of February 1980, probably aggravated the worker s underlying chondromalacia. It is noted, however, that Dr. Macfarlane s report makes no mention of the worker s earlier accident in o) In a report dated February 18, 1994, the worker s family doctor, Dr. G. Pugen, noted that the WCB injury caused the knee to worsen but it is difficult to say what percentage of her pain is still caused by the injury. p) Because of the variance in medical opinion, the worker agrees that the question of whether the worker is entitled to a permanent disability assessment, pursuant to section 45 of the pre-1990 Act, should be decided on the basis of section 4(4) of the Act, which states: In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. q) The worker is not appealing the denial of temporary total disability benefits subsequent to June 27, 1988.
8 Page: 7 THE RECOMMENDATION  In accordance with the WCAT Decision Document dated November 20, 1996, the Appeals Resolution Officer therefore recommends, with the consent of the worker, and her representative, that the Panel dispose of this appeal as follows: a) That the Panel, based on the written material contained in the Case Record and the information in this Recommendation, determine whether the worker is entitled to a permanent disability assessment for her left knee condition.  The Appeals Resolution Officer is satisfied that the recommendation is consistent with law and policy and with findings of fact that a Hearing Panel might reasonably make. DATED: August 29, 1997 RECOMMENDED BY: M. Farago, Appeals Resolution Officer