WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1047/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1047/14 BEFORE: C. M. MacAdam: Vice-Chair HEARING: June 3, 2014 at Toronto Written DATE OF DECISION: June 18, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1336 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated October 13, 2011 APPEARANCES: For the worker: For the employer: Interpreter: R. Collie, Union Representative J. Hennessy, Paralegal 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. 1047/14 REASONS (i) Introduction to the appeal proceedings [1] The estate of the worker appeals a decision of the ARO, dated October 13, 2011, that denied entitlement to a permanent impairment of the right knee and leg in relation to the workplace accident on December 10, This remains the issue for determination in the appeal. (ii) Background [2] On December 10, 2008, the worker injured her right knee, right hip and leg when she slipped and fell in the course of her duties as a personal support worker (PSW). The diagnosis was right knee and hip strain. The claim was accepted and loss-of-earnings (LOE) benefits were paid from December 11, 2008, to December 22, [3] The worker was working regular duties as a PSW in July [4] On September 2, 2010, a Board Medical Consultant, Dr. Germansky, reviewed the medical file and recommended further medical reporting be obtained to assess medical continuity. [5] On October 7, 2010, the Case Manager (CM) determined that the worker s ongoing symptoms were not related to the workplace injury. The worker objected to the decision. [6] In the decision of October 13, 2011, the ARO reviewed the medical evidence and confirmed the denial of ongoing entitlement. The worker objected to the decision. The worker passed away in 2013 due to an illness unrelated to this appeal. The worker s estate now appeals to the Tribunal. (iii) Law and policy [7] Since the worker was injured in December, 2008, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [8] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: #38, 61, 95, and 300. [9] Operational Policy Manual ( OPM ) Document No , Determining Maximum Medical Recovery (MMR), states, in part, the following: Policy Workers reach maximum medical recovery (MMR) when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment.. Guidelines Definition Significant improvement refers to a marked degree of medical improvement in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.

3 Page: 2 Decision No. 1047/14 Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. (iv) Relevant medical evidence [10] In an earlier claim, the worker had injured her right thigh and knee on July 6, 2008, while physically managing a resident. An x-ray report for the right knee from a radiologist, Dr. W. M. Cnoop-Koopmans was normal. The worker returned to modified duties on July 14, 2008, and to regular duties on August 25, A bone scan report from Dr. R. Goh, dated September 10, 2008, indicated mild increased uptake in the knees more on the right side that could be degenerative and plain film correlation was recommended. There is no further reporting on that claim until December [11] The instant appeal concerns an accident on December 10, 2008, where the worker slipped and fell in the employer s parking lot, injuring her right knee, groin, hip and lower back. Dr. Lai authorized the worker off work on December 11, On December 22, 2008, Dr. Lai indicated the worker was cleared for full hours and full job duties but that he should go at his own pace, especially with knee bending. Dr. Lai indicated follow-up as needed. [12] On January 26, 2009, the worker was seen by a foot specialist, Dr. Leslie Goldenberg, for her right foot that had been symptomatic for several years. The worker had indicated the July 2008 and December 2008 right leg injuries. The worker indicated that most of her pain was related to the July 2008 injury. The impression was chronic ligamentous foot strain, and what appeared to be post-traumatic patellofemoral syndrome with chondromalacia. Dr. Goldenberg prescribed physiotherapy to strengthen the quadriceps and VMO muscles. The worker began physiotherapy on March 6, 2009, and continued to May 26, [13] Dr. Lai s clinical note of September 4, 2009, indicates the worker complaining of right knee pain and stiffness, difficulty getting out of a car, kneeling or climbing stairs. On December 31, 2009, Dr. Lai indicated the July and December 2008 right knee injuries and he indicated the worker has pain in the right knee off and on. An x-ray report from the radiologist, Dr. R. Levine, dated January 5, 2010, was normal. Dr. Lai ordered an MRI for the right knee on January 19, [14] On February 2, 2010, Dr. Lai referred the worker to an orthopaedic surgeon, Dr. Hamdi Benfayed, noting persistent right knee pain since the fall in 2008 with some improvement though now developing compensation pain in the right low back/buttock area. [15] The MRI report from Dr. Goodman is dated June 15, The impression was mild to moderate right chondromalacia patella and severe degenerative change in the central trochlea, possibly related to a prior osteochondral injury. There were mild degenerative changes in the medial femoral condyle and a probable very small loose body in the medial meniscus. [16] On June 22, 2010, Dr. Benfayed reviewed the MRI and reported that there was no meniscal tear in the right knee. Dr. Benfayed noted the worker had ongoing right knee pain since she had fallen in 2008, though he indicated only degeneration in the knee. He recommended physiotherapy to strengthen the knee joint.

4 Page: 3 Decision No. 1047/14 [17] On July 23, 2010, Dr. Lai completed a progress report indicating improvement in the worker s right knee condition and that further improvement was expected. [18] On September 2, 2010, a Board Medical Consultant, Dr. Germansky, reviewed the medical file and recommended further medical reporting be obtained to assess medical continuity. [19] On October 7, 2010, the Case Manager (CM) determined the worker s ongoing symptoms were not related to the workplace injury. [20] In a letter dated June 19, 2012, Dr. Lai responded to questions put to him by the worker s representative. Dr. Lai indicated there was no evidence of right knee problems prior to the accident of July 6, Dr. Lai states the worker continued to have right leg problems and had several visits for this between July and December of Concerning Dr. Goldenberg s diagnosis of post-traumatic patellofemoral syndrome and chondromalacia, Dr. Lai opined that since both injuries involved the right lower extremity, even though there was no initial direct involvement of the right knee in July, it was documented that she had quite a few follow-up visits as she recovered from this injury, and developing compensation/mechanical pain in the right knee after the July injury is certainly possible. Concerning the MRI findings, Dr. Lai opined that some of the MRI findings would be related to natural degenerative changes which happen over time. Some of the inflammatory findings would be directly related to her injuries, in my opinion. [21] Concerning Dr. Goodman s indication of a possible prior osteochondral injury, Dr. Lai opined that without a prior MRI of the right knee it would be mere speculation to suggest a relation to either the July or December 2008 injuries. (v) Submissions The worker [22] The worker s representative notes the worker s earlier work-related right knee injury on May 24, X-rays of the right knee on that date were normal. There was no further reporting on the right knee until the right knee injury on July 6, Under that claim, the worker had returned to modified duties on July 14, 2008, and to regular duties as a PSW on August 25, The representative reviewed the July 7, 2008 imaging of the right knee, the September 10, 2008 bone scan, and Dr. Lai s clinical notes, and submits they support that the worker was asymptomatic prior to her slip/fall injury on December 10, [23] The representative submits that the worker has not recovered from the slip/fall injury and that her ongoing symptoms are related to that injury. The clinical notes from Dr. Lai are noted. The representative argues that the MRI report of June 14, 2010, supports that the worker has an ongoing injury arising from the December 2008 injury and not related to degeneration. He submits as well that the Board never obtained an opinion on ongoing entitlement despite having the file reviewed on one occasion by a medical consultant. The representative submits the medical evidence supports a physical abnormality and functional loss in the worker s right knee since the December 2008 injury. The employer [24] The employer s representative submits that the issues were correctly determined by the ARO. He notes the FAF of December 22, 2008 from Dr. Lai, indicating the worker could return

5 Page: 4 Decision No. 1047/14 to regular duties with no restrictions. The representative submits the medical evidence does not indicate a permanent right knee and leg impairment arising from the December 10, 2008 accident. He submits that the June 22, 2010 report from Dr. Benfayed indicates there is no meniscal tear in the worker s right knee. (vi) Analysis [25] After considering all the evidence, I find the appeal should be denied. I am not persuaded that there was a permanent physical or functional abnormality in the worker s right knee resulting from the December 10, 2008 injury. [26] I am not persuaded that the worker s right knee was significantly injured in the July 6, 2008 accident. While I note the right knee is listed with the right hip, right thigh and right lower leg as the areas of injury in the chiropractor, Dr. Phil Dimakis Form 8, I note, as well, Dr. Lai s evidence that there was no initial direct involvement of the right knee in the July 2008 accident. We place full weight on this evidence as Dr. Lai had treated the worker for that injury on July 7, 2008, July 14, 2008, and July 25, 2008, when the worker was authorized to return to regular duties with no restrictions. There is no further reporting of right knee symptoms for over four months until the December 2008 accident. [27] I find the right knee injury on December 10, 2008, was not significant. The evidence is that the worker slipped and fell in the employer s parking lot. There is no evidence that the fall was especially traumatic. Dr. Lai did not order any testing or specialist s referral when he saw the worker on the day after the accident. He recommended Tylenol #3 and that the worker stay off work until a reassessment in 10 days. At that reassessment on December 22, 2008, Dr. Lai indicated the worker had full range of motion (ROM) in the right knee and could return to regular duties with a caution that the worker should pace himself with knee bending. I find it significant that Dr. Lai did not indicate any other right knee restrictions. The worker was to follow up with Dr. Lai on an as-needed-basis though the evidence does not indicate significant continued complaint. The next clinical note is nine months later on September 4, 2009, the worker complained of knee pain and Dr. Lai noted medial joint line tenderness. The next clinical note is December 31, 2009, and indicates right knee pain off and on, and full ROM on examination. The next note is dated January 19, 2010, and indicates ongoing knee pain, that a recent x-ray of the knee was normal and that an MRI would be ordered. On February 2, 2010, Dr. Lai noted right flank/buttock pain in addition to ongoing right knee pain. The MRI was done in April 2010, and on June 22, 2010, Dr. Benfayed reported the MRI had indicated no meniscal tear and the only clinical finding was degeneration. [28] In my view, this evidence indicates a minor right knee injury on December 10, 2008, followed by a normal recovery period. I find the gap in medical complaint from December 22, 2008, to September 4, 2009, to be significant. The then 60-year-old worker had followed up with her chronic foot strain on January 26, 2009, with the foot specialist, Dr. Goldenberg, though she did not follow up with Dr. Lai concerning her right knee until September The worker had reported the July and December 2008 injuries to Dr. Goldenberg and she indicated the July 2008 injury was more painful than the December injury. We note that Dr. Goldenberg reported the knees had full stable range of motion with negative meniscal maneuvers and no effusion. There was no evidence of systemic arthropathy or arthritis. Dr. Goldenberg s impression was post-traumatic patellofemoral syndrome, though we note the worker was being seen for her foot condition and Dr. Benfayed

6 Page: 5 Decision No. 1047/14 did not confirm that diagnosis. We note that Dr. Lai did not take further action concerning the right knee in response to Dr. Goldenberg s report. This, in my view, is further evidence that the minor right knee injury had resolved by the end of December [29] I find that the evidence indicates a very gradual onset of intermittent degenerative right knee symptoms since July I am not persuaded that the July 2008 injury triggered the onset of right knee symptoms since the right knee was not directly injured in that accident and the worker reported to Dr. Goldenberg that the July 2008 injury was more painful than the December 2008 injury. This evidence indicates the worker was experiencing intermittent right knee symptoms even prior to the December 2008 injury. Dr. Lai reported that the worker was seen on several occasions for her right left injury between the two accidents, contrary to the worker s representative s submission, though Dr. Lai does not specify those complaints. I am not persuaded that the July 2008 injury triggered the onset of degenerative symptoms, because the right knee was not significantly injured in that accident. I am not persuaded that the December 10, 2008 injury triggered the onset of degenerative symptoms because the worker associated the onset with the July injury. Dr. Lai reported full resolution of the right knee by December 22, 2008, Dr. Goldenberg reported full and stable ROM in January 2009, there was no further complaint to September 2009, and Dr. Benfayed reported the MRI indicated only degenerative changes. [30] In summary, I find there is no permanent impairment arising from the right knee injury of December 10, 2008.

7 Page: 6 Decision No. 1047/14 DISPOSITION [31] The appeal is denied. There is no entitlement to permanent impairment of the right knee and leg arising from the workplace accident on December 10, DATED: June 18, 2014 SIGNED: C. M. MacAdam

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