Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20090009
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: N/A
ISSUE
The quantum of the permanent disability award (PDA).
HOW THE ISSUE ARISES
This claim for a September 12, 1980 left lower leg and right lower leg injury resulted in a bilateral permanent impairment of the workers left ankle and right heel. This was originally rated on May 3, 1983 at 7.5 per cent which consisted of a 10 per cent impairment for the left ankle, a 5 per cent impairment for the right ankle and a 2.5 per cent multiple award.
The worker was attended by a physician on April 19, 2007 who noted in addition to the unchanged X-ray findings of a well healed fracture of the left distal tibia with resultant tibiavara that there was some restriction in the left ankle movement and further orthotics were recommended.
A permanent disability re-evaluation was arranged for June 16, 2008. The resulting assessment and its report are posted to the claim file along with memorandum number 117 of June 18, 2008. Therein, the Workplace Safety and Insurance Board (WSIB) pension medical advisor confirmed that the worker’s permanent impairment was unchanged at 7.5 per cent with the same constituent awards being represented. The medical assessor took into account that the permanent disability ratings schedule provides for only a maximum of 12 per cent per ankle for a totally immobile joint.
On July 3, 2008, the worker was advised of the award and following his contact with the claims adjudicator, disputing the lack of an increase in his permanent disability award, a further letter was written. On January 23, 2009, the claims adjudicator advised the worker that the pension medical assessment revealed no deterioration in his condition from the previous permanent disability assessment. Consequently, there was no basis to provide for an additional permanent disability award.
The worker has objected to this decision and the issue is before the Appeals Branch.
AUTHORITY
Operational Policy Manual Document:
18-07-02 – The Ontario Ratings Schedule.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In his submission to the Workplace Safety and Insurance Board (WSIB), the worker wrote in his Objection Form dated April 15, 2009 that he feels his left ankle and leg have greatly deteriorated. His left ankle has been giving him much trouble as it is inflexible and therefore he experiences a light sprain frequently. The worker further notes discomfort on the top of the arch of his left foot when he is walking and this sometimes causes the left leg to almost give way. He walks on the side of his foot at all times even when wearing lifts. This causes discomfort to the area of his left leg such as the knee and hip area.
The worker has provided no additional medical evidence of the complaints he supplies in his Objection Form. Since the pension medical advisor’s report of June 18, 2008, a single assessment from the Thunder Bay Orthopaedic Incorporated service provider, Gary McWhirter has been received dated April 30, 2009. He notes that the worker’s foot wear has been worn on the lateral edge of the left shoe greater than the right. With respect to clinical assessment of the worker’s impairment no clinical data is provided beyond the notation that there is a restricted range of motion of the left ankle dorsiflexion with no medial lateral movement of the left ankle and no inversion or eversion. It is noted that the worker complains of pain and that he believes that the best treatment would be the addition of a left lateral heel and forefoot wedge to his orthotics.
When this is compared to the clinical data provided by the pensions medical examiner, it is noted that the worker’s range of motion in the left ankle includes tenderness over the medial and lateral malleoli with no dorsiflexion, 25 degrees of plantar flexion, 15 degrees of inversion and no appreciable eversion. The left ankle strength in dorsiflexion is 3 over 5 as well as in plantar flexion. Additionally, with respect to the right foot, there is a palpable bony exostosis at the retrocalcaneal region with tenderness over the heel. Range of motion was 20 degrees of dorsiflexion, 50 degrees of plantar flexion, 20 degrees of inversion and 20 degrees of eversion, right ankle strength was 4 over 5. It is noted that no claim has been made for a deterioration in the right ankle impairment.
The worker’s complaints with respect to the left ankle on his Objection Form pertain to increased discomfort and the giving way sensation which makes him feel he will fall.
I have also had regard for the prior report from the worker’s treating specialist, Dr. Remus who assessed him on May 24, 2007. Dr. Remus’ assessment is consistent with the findings posted by the WSIB medical examiner with regards to both subjective discomfort and range of motion.
The Ontario Ratings Schedule which is the basis used by the WSIB in assessing permanent impairments indicates that where an ankle joint is immobile a 12 per cent permanent disability award can be offered. There are no other guides in the schedule with respect to a lesser ankle impairment.
In the case before me, the worker does not have a completely immobile left ankle joint. It is clear that there is some plantar flexion as well as inversion possible and the worker does have strength on resisting dorsiflexion even though he cannot move the ankle beyond a neutral position in that plane. It is clear that the ankle is not frozen or ankylosed. Consequently, a 12 per cent award is not possible in this case. A 10 per cent award consistent with the worker’s range of motion throughout the history of his permanent disability has been posted. The WSIB medical consultant has had access to the complete medical record and the worker’s prior awards and has been unable to offer anything more than the 10 per cent award for the existing degree of impairment. The evidence provided by the orthopaedist in the report of April 30, 2009 does not in my view add evidence of any additional assessable permanent disability. Accordingly, I confirm the permanent disability award of 17.5 per cent.
CONCLUSION
The workers permanent disability award has been appropriately assessed at 17.5 per cent; 10 per cent for the left ankle, 5 per cent for the right ankle and a 2.5 per cent multiple.
As there is no change in the permanent disability award, the arrears date in respect of this award continues to be appropriately set.
The worker’s objection is denied.
DATED July 20, 2009
B. J. Martlin
Appeals Resolution Officer
Appeals Branch