WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2980/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2980/16 BEFORE: B.A. Cappell: Vice-Chair HEARING: November 14, 2016 at Toronto Written DATE OF DECISION: December 8, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3365 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) S. Hatley dated October 23, 2014 APPEARANCES: For the worker: For the employer: Interpreter: A. Southworth, Paralegal Not participating 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. 2980/16 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer S. Hatley dated October 23, That decision confirmed the case manager s conclusion that the worker reached maximum medical recovery with no evidence of a permanent impairment and was not entitled to a non-economic loss (NEL) benefit in respect of a workplace injury to the worker s left leg. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (ii) Issue [2] The issue under appeal is the recognition of a permanent impairment and entitlement to a NEL award for the injury to the worker s lower left leg. (iii) Background [3] The following are the basic facts. The worker is a registered practical nurse who was attending at a client s home for a visit on October 12, 2011 when she was bitten on the right thumb and then on the left lower leg by the client s dog. Three puncture wounds to the leg were observed. She sought medical attention, which involved a cleaning of the wounds no sutures were needed. The worker did not require time off from work due to her injuries immediately following the incident. [4] The surface bite wounds seemed to heal, but the worker has been experiencing pain in her lower left leg ever since that time. She has been under regular medical care and was seen by a variety of medical specialists in the intervening period. Her symptoms and diagnoses are well documented and are discussed more fully below. Based on a follow up assessment report dated February 14, 2013 from the Altum Health WSIB Foot & Ankle Specialty Program prepared by Dr. Latham, Orthopaedic Surgeon and Stephanie Maloch, Occupational Therapist, it was concluded that the worker had reached maximum medical recovery (MMR) on February 14, An MRI showed some subcutaneous edema around her fibular head. There was no evidence of neurologic injury. The assessment noted that the worker continues to work full hours with full duties and has no current ongoing medical restrictions. However, it was noted that the worker continued to experience significant pain in her lower leg, and should these difficulties or symptoms change in the future, a reassessment might be done. The case manager (CM) asked the WSIB nurse consultant (NC) to consider the assessment. The NC opined that the worker had achieved MMR with no indication of any functional limitations and thus the CM advised the worker that there was no evidence of permanent impairment. [5] The worker objected to the CM s decision but it was confirmed by the ARO in a decision dated October 23, In reply to a letter by the worker s representative requesting reconsideration of that decision, the ARO considered the grounds raised in the submission and denied the worker s appeal. In reaching that decision the ARO states that the totality of the medical evidence before me has failed to provide any objective clinical evidence to support the worker s position that she continued to suffer from ongoing symptomatology attributable to the October 2011 workplace injury. The ARO came to the conclusion that the evidence in the case file supports a finding that the leg discomfort had caused no degree of ongoing disablement or

3 Page: 2 Decision No. 2980/16 impairment. The ARO was aware that the worker had a claim with respect to a secondary hip impairment but stated that the hip disability was not the subject of the present appeal and so the decision will remain silent on the worker s entitlement to a secondary hip impairment. [6] The worker underwent hip replacement surgery for the left hip in March 2015 which was the subject of a separate determination. After an objection filed by the worker s representative to the Board s denial of her claim for a NEL award in respect of the left hip, ARO Horne awarded a NEL benefit for the left hip condition in a decision dated January 25, The ARO referred to numerous medical reports in the worker s claim file that linked the worker s altered gait to the dog bite injury, which in turn led to the hip condition and need for the hip replacement, and specifically found that the worker s left hip condition was causally related to the workplace accident of October (iv) Law and policy [7] The Workplace Safety and Insurance Act, 1997 (the WSIA) applies to this appeal. Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [8] Section 126 requires the Tribunal to apply Board policy when making its decisions. [9] In the Board policy on Determining the Degree of Permanent Impairment (Operational Policy Manual (OPM) Document No ) it is stated: Policy Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits. Guidelines When the worker reaches maximum medical recovery (MMR) the WSIB attempts to determine the degree of the worker s permanent impairment by considering all relevant health care information in the claim file Permanent impairment means any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. [10] In the Board policy on Determining Maximum Medical Recovery (OPM Document No ) it is stated, Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. (v) Submissions [11] The worker s representative objected to the denial of a NEL benefit for the lower left leg through a series of letters and a written submission dated September 22, Given the medical information in the injured worker s file both before and after the initial decision by the case manager, the worker s representative submits that there was sufficient evidence to demonstrate that the worker had suffered a permanent impairment to her left leg. [12] He quotes extensively from correspondence by Dr. James McChesney of St. Joseph s Healthcare, a doctor who examined the worker for this lower leg injury several times. The worker s file contains reports from him dated March 20, May 1 and November 11, 2013, all of

4 Page: 3 Decision No. 2980/16 which were available to the ARO when considering the worker s appeal. As noted in the submission, the doctor consistently describes medical problems continuing to affect the lower left leg, including pain, swelling, pitting, and an abnormal gait. In his letter of May 1, 2013 the doctor notes She does have significant limitations on her range of clinical activities that she can undertake. On November 11, 2013 he says She is able to continue at work in her modified capacity. Because the denial of the worker s claim specifically makes mention of the worker not requiring any modification of duties, the representative asked the doctor to clarify his views on that aspect of the worker s impairment. In support of the appeal, the representative obtained and submitted a further letter from Dr. McChesney dated April 17, 2015 in which he states, in part: I would challenge the comment in the W.S.I.B. memorandum which states that my report does not support any functional limitations I believe that a clinical finding of sensory disturbance and altered gait would support functional limitations. It is for that reason that I recommended a repeat W.S.I.B. Functional Assessment, in order to evaluate her ability to return to her usual job duties. [13] It was acknowledged that this last letter was not available to the ARO at the time of making the initial determination. However, I note that it is for the most part a restatement and clarification of information already in the worker s file. [14] The worker s representative also refers to information provided by the worker on her Intent to Object Form dated June 26, 2013, in which it is stated: I have been able to continue to work, due to the fact that [the employer] has been very understanding and accommodating. I have been allowed to maintain an office in my home which decreases walking and allows for me to continue to work while resting my leg. The representative also supplied additional evidence to demonstrate that the injured worker was working in a modified capacity. (vi) Discussion [15] In the decision of ARO Horne dated January 25, 2016 regarding the worker s left hip replacement, the ARO noted that there was a clear continuity of ongoing left leg complaints from the date of the work accident (being the dog bite) and found that the worker s left hip condition is causally related to the work accident of October The decision goes on to acknowledge that the preponderance of the medical evidence in the worker s file leads to the conclusion that the left sided hip problem was related to the altered gait as a consequence of the dog bite. It states Indeed the onset of hip pain in 2013 must be seen within the context of the worker having persistent unrelenting pain in her left leg subsequent to the dog bite. I accept the predominate medical opinion that the hip pain is secondary to the left side limp. While the entitlement to the NEL award for the hip is not at issue in this appeal, these conclusions are of interest as they relate to facts arising from the same initial workplace injury. [16] Having reviewed the medical and other evidence in the worker s case file, I disagree with the ARO s decision in respect of the lower left leg condition. The evidence does demonstrate that the worker continues to suffer the effects of the workplace injury. The worker has a permanent limp which is the consequence of a dog bite incurred in the workplace. The medical evidence confirms that the worker has ongoing pain in the lower left leg with the resulting limp. The worker has provided evidence that the condition in her lower left leg has affected the manner in which she carries out her duties at work. Although she has been able to continue to work and suffered no loss of earnings, this outcome was made possible by certain accommodations by her

5 Page: 4 Decision No. 2980/16 employer to support the worker in her desire to continue working at the same job. The NC s assessment that the worker did not show any indication of functional limitations is contradicted by evidence provided by the worker, the worker s representative and the worker s physician that the worker has ongoing limitations and has been working at modified duties. [17] I conclude that the worker continues to experience pain and walk with a limp due to the injury to her lower left leg, and that these conditions led the worker s employer to accommodate the worker through adjustments to the manner in which she performs her duties. Consequently, I find that there is a permanent impairment in the worker s lower left leg and grant a non-economic loss determination.

6 Page: 5 Decision No. 2980/16 DISPOSITION [18] The appeal is allowed. The worker is entitled to a NEL award for the lower left leg impairment, to be determined by the Board. DATED: December 8, 2016 SIGNED: B.A. Cappell