WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 983/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 983/15 BEFORE: J. Goldman : Vice-Chair B. Davis : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: May, 13, 2015 at Toronto Oral DATE OF DECISION: May 26, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1142 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated March 25, 2013, and December 16, 2013 APPEARANCES: For the worker: For the employer: Interpreter: A. Barclay, Office of the Worker Adviser Not participating Not Applicable 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. 983/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated March 25, 2013, which denied him entitlement for right knee meniscus tears and the surgical repair of March 26, The worker also appeals a decision of the ARO dated December 16, 2013, which granted entitlement for a low back strain on an aggravation basis. The ARO rendered a decision based upon a written record without an oral hearing. (ii) Issues [2] At the outset of the hearing, Mr. Barclay, the worker s representative, indicated that the worker has withdrawn the issue pertaining to his low back. Thus the only issue under appeal is entitlement for right knee meniscus tears and the surgical repair of March 26, (iii) Background [3] The following are the basic facts. [4] On April 6, 2011, the now 38-year-old worker employed with the accident employer since November 2008 as a truck driver, sustained a right knee injury which he related to his work duties of loading heavy skids onto his truck and delivering them to company customers. [5] The worker was diagnosed with a right knee sprain. The Board accepted entitlement for a right knee soft tissue injury. [6] An MRI performed on August 13, 2011, revealed a complex tear of the lateral meniscus and a vertical tear of the medial meniscus which required surgical repair on March 26, [7] In correspondence dated March 13, 2012, the Claims Manager determined that entitlement in this claim was limited to a soft tissue, strain/sprain injury, and denied entitlement for the right meniscus tears and the surgical repair. [8] The Board noted that an MRI in 2007 had revealed an oblique tear of the medial meniscus along with a high grade full thickness tear of the anterior cruciate ligament, and that subsequently the worker had an anterior cruciate ligament (ACL) repair of the right knee torn meniscus in The worker indicated that his knee condition on that occasion was due to a sports injury. [9] In his decision to deny the worker entitlement for a right knee meniscus tear and surgical repair, the ARO stated the following: In reviewing the medical documentation, there is no doubt that a 2011 MRI demonstrated tears once again within the right knee. There is however no accident history compatible with the development of tears in this case. This claim was established when this worker developed pain in the right knee from performing his regular employment duties on April 6, While the worker stated that he unloaded more skids than usual, the nature of the work would not cause a traumatic tear and at best, the worker would have sustained a minor soft tissue injury which was why this claim was allowed. This worker may have been experiencing pain in his right knee as related to degenerative tears demonstrated in the 2011 MRI however, that does not mean the tears were caused by any particular work activity. The tears are a pre-existing condition which were

3 Page: 2 Decision No. 983/15 present alongside any soft tissue injury this worker may have sustained on April 6, 2011 and therefore the surgical procedure has no relationship to the basis for which this claim was established. [10] On February 22, 2011, the worker sustained an injury when his company truck was rear ended by a tractor trailer. The worker was diagnosed with a whiplash-associated disorder to the neck, upper back and both shoulders. Entitlement was allowed in accordance with an ARO decision dated October 12, The worker was granted LOE benefits from March 8, 2011 to March 28, [11] On October 3, 2011, the worker strained his lower back when attempting to pull an empty skid on a pump jack which had become stuck. The worker was taken to hospital by ambulance. He was discharged on the same day. The diagnosis was a back strain. The Board accepted entitlement for a low back strain, and loss of earnings (LOE) benefits were paid from October 4, 2011, to January 12, 2012 when the Board concluded that the worker had recovered from the strain, and partial LOE benefits from January 13, 2012, to June 17, [12] In his decision dated December 13, 2013, the ARO concluded as follows: The ARO finds that there were findings pertaining to the low to mid back prior to October 3, The MRI of November 2011 clearly stated that there had been a progression in the condition. The worker had been able to perform his regular duties between August 16, 2011 and October 31, There does not appear to be any other factor to cause the condition to progress in such a short time frame. Therefore the ARO finds that there has been a permanent aggravation. [13] In 2014, the worker was granted entitlement for a permanent aggravation of a pre-existing condition, and on August 6, 2014, he was awarded a 21% non-economic loss (NEL) benefit. The permanent impairment diagnosis was an L2-L3 protrusion, central stenosis acquired against the background of congenital stenosis. Maximum Medical Recovery (MMR) was considered achieved on October 3, [14] The worker s objection to the two ARO decisions with respect to entitlement for right knee meniscus tears and the surgical repair of March 26, 2012 is the subject of this appeal. (iv) Law and policy [15] Since the worker was injured in 2011, 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. [16] Specifically, sections 2 and 43 of the WSIA govern the worker s entitlement in this case. [17] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [18] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [19] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal:

4 Page: 3 Decision No. 983/15 Policy Packages: 12; 95; 248; 251; 300 [20] We have considered these policies as necessary in deciding the issue in this appeal, in particular: Operational Policy Manual (OPM) Document No , Aggravation Basis ; OPM Document No , Resulting from Work-Related Disability ; and OPM Document No , Second Injury and Enhancement Fund (SIEF). (v) The worker s testimony [21] In 2007, the worker sustained a right knee sports injury. He underwent right knee surgery in Although he made a full recovery following the surgery and did not require ongoing medical treatment, the worker no longer plays soccer. The worker began working with the accident employer as a truck driver in November His job duties included delivering heavy skids. [22] The worker did not experience any right knee problems until April 6, 2011, when in addition to his usual duties of delivering heavy skids, he was required to pick up heavy skids and load them onto his truck using a manual pump truck because the warehouse did not have a power pump, and deliver a larger number of skids. The worker indicated that he experienced right knee pain and the next day was unable to place weight on his right knee. The worker sought immediate medical treatment and was referred by his family physician to an orthopaedic surgeon. The worker underwent successful surgical repair on March 26, He continues to have right knee pain and finds it difficult to walk for any length of time. (vi) Submissions [23] Mr. Andrew Barclay, the worker s representative, submitted that the worker is entitled to benefits for a right knee condition on the basis of an aggravation of a pre-existing asymptomatic condition. Mr. Barclay indicated that the definition of a pre-existing condition in OPM Document No applies in the present case. Following his right knee surgery in 2008, the worker did not require any further medical treatment and was able to resume physically demanding employment. In the present case, the incident on April 6, 2011, contributed significantly to the aggravation of the worker s asymptomatic condition. The worker has, therefore, entitlement for right meniscus tears and the surgical repair of March 26, 2012, on an aggravation basis. (vii) Medical evidence [24] An MRI performed on November 18, 2007, revealed the following Complex vertical oblique tear of the posterior horn of the medical meniscus which surfaces both superiorly and inferiorly. The tear extends peripherally to the posterior horn resulting in incomplete separation of a meniscal fragment seen at the medial knee joint margin. High-grade almost complete full thickness tear of the anterior cruciate ligament. [25] An MRI performed on August 13, 2011, revealed the following: 1. Complex tear of the lateral meniscus as described above

5 Page: 4 Decision No. 983/15 2. Peripheral vertical tear of the medial meniscus 3. Mild thinning of the ACT graft just above its insertion [26] The discussion paper Knee Conditions and Disability prepared for the Tribunal by Drs. John Cameron and M. Tile, states the following under the heading Prior ligamentous injury and re-injury : There are people who function reasonably well after an injury such as an anterior cruciate disruption. However, if they are in a situation that results in an episode of instability of their knee due to their chronic anterior cruciate deficiency, then there are some work site situations that are potentially dangerous. Anyone with a significant ligamentous instability is at risk with certain jobs such as climbing scaffolds. (viii) Analysis [27] The appeal is allowed for the reasons set out below. [28] Section 2(1) of the Act defines an accident as follows: (a) a willful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment. [29] Thus unlike a disablement, a chance event requires a discrete triggering event which in the present case occurred on April 6, [30] OPM Document No , Adjudicative Process, stipulates, among other factors, that an allowable claim must have proof of accident. The Policy provides the criteria necessary to determine proof of accident. The decision maker considers whether an accident situation exists; whether there are witnesses; whether there are discrepancies in the date of accident and the date the worker stopped working; and whether there is any delay in the onset of symptoms, or in seeking medical attention. [31] OPM Document No , Accidents in the Course of Employment, provides guidance in determining whether an accident is work-related. The Policy states that In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment. [32] In finding that the worker sustained a work-related injury to the right knee on April 6, 2011, the Panel has taken the following into consideration. [33] The worker described in detail a specific event which occurred on April 6, 2011, and which resulted in a right knee injury initially diagnosed as a right knee sprain, a soft tissue injury and later, following an MRI, as a complex tear of the lateral meniscus and a peripheral vertical tear of the medial meniscus. Onset of symptoms was immediate. The worker sought medical attention a few days later, on April 11, [34] The Panel has concluded that the worker s right knee injury on April 6, 2011, resulted from additional work duties which the worker was required to perform on that day, and that consequently, the injury he sustained on that occasion is work related. Although initially the injury was diagnosed as a knee sprain, it is clear from the MRI performed on August 13, 2011,

6 Page: 5 Decision No. 983/15 that the worker sustained right meniscus tears which required surgical repair performed on March 26, [35] Although the worker sustained a right knee injury which required surgical intervention in 2008, the surgical repair on that occasion was successful and the worker was asymptomatic until the accident on April 6, The Panel notes that following the surgical repair in 2008 the worker was able to perform physically demanding work without any difficulty. [36] However, in the present claim, noting that the worker had sustained a similar injury in 2008 requiring surgical repair, the Panel has concluded that the injury in 2008 resulted in a pre-existing, asymptomatic condition which only became manifest following his April 6, 2011 accident. [37] OPM Document No , defines a pre-accident disability as follows: Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. [38] In Tribunal Decision No. 1354/00, the Panel noted that it is a well-established principle of compensation law that workers who sustain injuries which aggravate an underlying condition are entitled to compensation benefits until the worker reaches his or her pre-accident condition. [39] The Panel agrees with Mr. Barclay that the worker has entitlement for right meniscus tears and the surgical repair of March 26, 2012, on an aggravation basis. The accident of April 6, 2011 was a significant contributing factor which aggravated an asymptomatic condition and made it manifest as a result of the accident of April 6, 2011.

7 Page: 6 Decision No. 983/15 DISPOSITION [40] The appeal is allowed. The worker has entitlement for right meniscus tears and surgery on an aggravation basis. [41] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: May 26, 2015 SIGNED: J. Goldman, B. Davis, C. Salama