WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1119/09

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1119/09 BEFORE: T. Mitchinson: Vice-Chair HEARING: June 3, 2009 at Sudbury Oral DATE OF DECISION: June 8, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1381 DECISION(S) UNDER APPEAL: WSIB ARO decision dated December 10, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Rick Hamilton, Office of the Worker Advisor Closed N/A 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. 1119/09 REASONS (i) Introduction [1] This appeal was heard in Sudbury on June 3, The worker appeals the December 10, 2007 decision of Appeals Resolution Officer (ARO) R.P. Horne. The ARO denied the worker entitlement for the right shoulder as a secondary condition related to his compensable left ankle injury claim. [2] The worker attended the hearing and was represented by Rick Hamilton from the Office of the Worker Advisor. The employer is no longer in business. The worker and his wife both testified at the hearing, and Mr. Hamilton made submissions on behalf of his client. (ii) Issue on appeal [3] The only issue in this appeal is whether the worker has entitlement for the right shoulder as a secondary condition related to his prior compensable left ankle claim. (iii) Applicable law [4] The worker s left ankle injury occurred on July 23, Accordingly, the pre-1985 Workers Compensation Act (the Act) applies. (iv) Background [5] The worker suffered a multiple fracture of the left leg when loose rock fell on him while working for the accident employer. The Workers Compensation Board (the Board) approved his claim and paid the worker temporary disability benefits while under medical care. The worker eventually received a 12% permanent disability (PD) award in recognition that he had sustained a permanent impairment of the left leg and ankle. The PD award was subsequently increased to 20% on the basis that his left leg/ankle condition had deteriorated. [6] The worker also has a number of other unrelated workplace injury claims. Specifically, a left shoulder injury for which he was granted a 12% Non-Economic Loss (NEL) award; a neck injury which resulted in a 32% NEL award; a 2% hearing loss claim; and a 3 ½% NEL award for a white hands condition. He was also granted full Future Economic Loss (FEL) benefits under his left shoulder injury claim. [7] The worker also sustained a left knee injury on April 10, 1980 when a piece of drill steel penetrated his knee. He received a PD assessment for this injury in July 2004, at which point the Board determined that he had fully recovered with no permanent residual impairment of the knee. [8] On February 14, 2005, the worker fell while walking in his back yard, injuring his right shoulder. He filed a claim with the Board, maintaining that his injury was attributable to either the prior left knee injury or his earlier left ankle claim. [9] After reviewing the available medical evidence and consulting with a Board Medical Advisor, the Claims Adjudicator assigned to the worker s file denied entitlement under both claims.

3 Page: 2 Decision No. 1119/09 [10] The worker asked for a review of the Adjudicator s decision, maintaining that the February 14, 2005 fall was caused by his left ankle giving way. He abandoned his argument that the fall was caused by his left knee injury. [11] ARO Horne heard sworn testimony from both the worker and his wife concerning the circumstances of the February 2005 fall and subsequent medical treatment, and concluded that the evidence did not support the worker s position. The ARO upheld the Adjudicator s decision to deny entitlement on the basis of the worker s left ankle claim. (v) The worker s position [12] The worker takes the position that his right shoulder was injured on February 14, 2005 when his left ankle gave out and he fell in his back yard. [13] The worker testified that he sustained a serious left leg injury in Three bones in his lower leg were broken, requiring corrective surgery, and he was left with a drop foot condition. According to the worker, since then he always has to be careful when walking because his left toes can easily catch on an uneven surface, causing him to trip. According to the worker, he had stumbled on a number of occasions for this reason prior to February 14, 2005, but always managed to recover without actually falling. [14] The worker also testified that the muscles in his left leg have atrophied since the time of his original injury, making that leg much weaker than the right one. At some point prior to February 2005 he was prescribed an ankle brace, which was paid for by the Board under his left ankle claim. According to the worker, the brace helped stabilize his left leg, but he was not wearing the brace when he fell in the back yard on February 14, [15] The worker testified that on that day he went from the house to a back yard shed to get a soft drink for his wife. While returning to the house, his left ankle gave out and he fell to the ground, injuring his right shoulder. According to the worker, he had difficulty getting up and called to his wife for help. She did not hear him, and he eventually made his way back to the house on his own. [16] The worker testified that the back yard was sloped slightly and the terrain was somewhat rough, but there was no ice on the ground or rocks that would cause a fall. According to the worker, he had a scheduled appointment with his family doctor the following week and waited until then to seek medical treatment for his shoulder. [17] The worker testified that he described the circumstances of his fall to his family doctor, and cannot understand why the doctor made no notes about the incident. [18] The worker recalled visiting orthopaedic surgeon, Dr. McClusky, on March 3, According to the worker, his appointment had been scheduled prior to the February 14, 2005 fall, for the purpose of examining left knee problems he had been experiencing. [19] The worker testified that Dr. McClusky has been his treating physician for many years and did the original surgery on his left leg following the 1970 workplace accident. The worker recalled that his wife was not with him at the March 3, 2005 session with Dr. McClusky. The

4 Page: 3 Decision No. 1119/09 worker testified that he told Dr. McClusky that the February 14, 2005 fall was caused by his left ankle giving out, and he could offer no explanation as to why Dr. McClusky s note of that date identified the left knee as the cause of the fall. [20] The worker also testified that he is not able to read or write and has always been reliant on his wife to provide any required documentation to the Board and to interpret any written materials for him. When asked by Mr. Hamilton to review a July 14, 2005 handwritten note to the Board prepared by his wife, the worker thought that she had probably read it to him before sending, in accordance with their usual practice. When asked to explain why the note identifies the left knee as the cause of the February 14, 2005 fall, the worker thought that his wife must have been confused because of the fact that his left knee claim was under consideration by the Board at that time and the March 3, 2005 session with Dr. McClusky was scheduled for the purpose of dealing with his knee problem. [21] The worker s wife also testified at the hearing. She confirmed that she has always handled communications on her husband s behalf but, according to her, she does not review the contents of written materials with the worker before sending them off to Board officials. Specifically, she testified that she would not have made the worker aware of her July 14, 2005 note which identified the left knee as the cause of the shoulder injury before sending it to the Claims Adjudicator. [22] The wife testified that she did not observe the February 14, 2005 fall and was reliant on her husband to explain the circumstances leading to his shoulder injury. [23] According to the wife, the worker has always identified the left ankle as causing the fall. When asked to explain why her July 14, 2005 note attributes the injury to the knee and not the ankle, the wife testified that she and her husband were focused on his left knee claim at that time and she must have neglected to accurately describe the cause of the February 14, 2005 fall for that reason. [24] The wife also confirmed that she did not attend the March 3, 2005 session with Dr. McClusky, nor did she speak to the orthopaedic surgeon at any point concerning that visit. [25] The worker s representative submits that the worker s left ankle was the likely cause of his back yard fall on February 14, The worker has a significant left leg injury, including a drop foot condition and significant muscle wasting. In the representative s view, medical reporting in the Case Record confirms leg instability, and the fact that the worker was prescribed an ankle brace under the left leg claim further supports his position that the left ankle was vulnerable to giving way. [26] The representative acknowledges that Dr. McClusky s March 3, 2005 makes no reference to the worker s left ankle, but he points to the February 28, 2008 and May 22, 2008 reports from the same doctor that reference instability in both the left knee and left ankle and the impracticality of trying to attribute the cause of the fall as between these two body parts. [27] The representative also relies on a report from Dr. Kerin of the Occupational Health Clinics for Ontario Workers Inc., who reviewed the file documentation and concluded that the

5 Page: 4 Decision No. 1119/09 worker s left leg instability stemmed from both his ankle and knee injuries, and that his fall on February 14, 2005 was attributable to overall left lower left limb instability. [28] The representative also points out that the worker s wife was involved in several ongoing claims on behalf of her husband, and her confusion in reporting details of February 14, 2005 is understandable. In his view, the sworn testimony of the worker and his wife, which is consistent as between them, should be given significant weight. (vi) Analysis and findings [29] Board Operational Policy Manual (OPM) Document No (12 October 2004) allows for entitlement to secondary injuries resulting from compensable workplace accidents. It states: Workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee, is an example. [30] Accordingly, the issue here is whether the worker s right shoulder injury, which is not in dispute, was caused by his compensable workplace accident involving his left ankle. [31] The testimony of the worker and his wife on the key issue of causation in this case is clearly inconsistent with the documentary evidence in the Case Record. [32] The wife testified that her husband told her it was his left ankle giving way that caused him to fall on February 14, 2005, yet her first description of the incident in the report she made to the Board on July 14, 2005 makes no mention of the ankle and specifically identifies the worker s left knee as the cause of the shoulder injury. While I accept that the wife was dealing with a number of her husband s claims at that time, I am not persuaded that confusion on her part could reasonably explain this inconsistency. It s not as if she used a general term like left leg in describing the cause of the injury, which might have been understandable; she describes the circumstances in considerable detail and specifically refers to the left knee as the cause of the fall: [The worker s] left knee gave out causing him to fall, resulting in an injury to his right shoulder. This fall occurred at his home (outside) on Feb 14/05. [The worker] already had an appointment scheduled with his family doctor (Dr. Grah) for March 2/05 at which time [the worker] did mention his fall. [The worker] saw Dr. McClusky, specialist at Elliot Lake Hospital on March 3/05, 1:00 pm appointment, which had been made previously regarding [the worker s] past and present left knee issues. At this time [the worker] brought up his fall of Feb 14/05 and his concerns of ongoing pain, etc. (left knee giving out), and Dr. McClusky informed [the worker] he would call an MRI.

6 Page: 5 Decision No. 1119/09 [33] In my view, it is reasonable to conclude that the wife made an accurate recording of the cause of the fall back in 2005, as reported to her by her husband at that time. [34] The documentary evidence of Dr. McClusky is also problematic for the worker in this case. His March 3, 2005 report makes no reference to the worker s left ankle and clearly attributes the cause of the shoulder injury to his left knee: Over the years [the worker] has more pain to the extent that the knee keeps on giving out and three weeks ago the knee gave out and he fell injuring his right shoulder. [35] Dr. McClusky s only source of information concerning the February 14, 2005 fall was the worker s version of events reported to him at the March 3, 2005 consultation. In my view, had the left ankle or left leg instability in general been identified by the worker as the cause of his fall, that would have been included in the narrative portion of Dr. McClusky s report. The fact that only the left knee is mentioned leads me to conclude that this specific body part was identified by the worker as the cause of his fall. [36] It is also significant that Dr. McClusky was well aware of the worker s left leg instability at the time of the March 3, 2005 consultation, having performed the original surgery following the 1970 workplace accident and treated him on a regular basis since that time. Had it not been clear to him that the worker was attributing the February 14 fall to his left knee condition, Dr. McClusky was clearly in a position to consider overall leg instability as a potential cause for the fall. The fact that he didn t support my conclusion that the worker described the cause of his fall as attributable to the left knee and not the left ankle. [37] Finally, it is also noteworthy that, following the issuance of ARO Horne s ruling, the worker s representative asked Dr. McClusky to clarify the contents of his March 3, 2005 note: Question The WSIB through Mr. Horne an Appeals Resolution Officer accepts the statement made in your March 3, 2005 report confirming the left knee had given way causing the fall on February 14, You did not mention the left ankle instability in the March 3, 2005 report. Did [the worker] complain to you of left ankle instability during your consultation of March 3, 2005 or any other time before or after the accident in February 2005? Answer If I did not record in writing any injury to [the worker s] left ankle or left ankle instability, there is no way I can at this stage confirm or deny that he made a statement to me regarding his ankle instability. [38] Although he doesn t say it in so many words, in my view, what Dr. McClusky really means is that he makes accurate recordings of treatment details in his contemporaneously created reports, and the fact that there is no mention of the worker s left ankle is because the worker did not report ankle instability as the cause of his fall. [39] I also give little weight to the report prepared by Dr. Kerin. For one thing, Dr. Kerin s report is based on a file review without the benefit of having met or examined the worker. And, more importantly, this case turns on the question of the circumstances surrounding the

7 Page: 6 Decision No. 1119/09 February 14, 2005 fall, and not on whether the worker had a unstable left leg as a result of his various workplace injuries. [40] The testimony provided by the worker and his wife at the hearing is inconsistent with all relevant documentary evidence and is simply not credible. The worker was unable to offer any type of explanation for the absence of any reference to his left ankle in Dr. McClusky s March 3, 2005 report. As far as the July 14, 2005 note from the worker s wife is concerned, both witnesses point to confusion on the wife s part as the only explanation for inaccurate reporting on her part. I find this explanation to be inadequate, particularly in light of the consistency between the content of the wife s note and Dr. McClusky s report on the issue of causation. [41] For all of these reasons, I find that the causal link necessary to establish entitlement for the right shoulder as a secondary condition relating to the worker s left ankle claim under OPM Document No is not established on the evidence, and the worker s appeal claim is denied.

8 Page: 7 Decision No. 1119/09 DISPOSITION [42] The appeal is dismissed. DATED: June 8, 2009 SIGNED: T. Mitchinson

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