WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090032
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUES
1-The worker requests Labour Market Re-entry (LMR) services.
2-He also requests secondary entitlement to the right ankle.
HOW THE ISSUES AROSE
Prior Claim:
On December 14, 1988, this worker fell on a patch of ice and sustained a strain to the left knee. As a result, claim xxxx3028 was established for this incident. There was no lost time from work and he continued to perform his regular duties.
Claim xxxx0162:
On February 1, 1989, this worker was 38 years of age and employed as a heavy duty diesel mechanic. On that date, he was coming down from a loader ladder when he put his full weight on the left leg while turning. His left leg gave way completely and he felt a crunch sensation in the left knee.
The employer was granted Second Injury Enhancement Fund relief (SIEF) in the amount of 100% in this claim.
The worker has undergone nine surgeries to the left knee, including a high tibial osteotomy on April 17, 1998 and a total knee replacement on August 9, 2006. His benefits were implemented accordingly for each surgical event. Most recently, his benefits were implemented from March 31, 2006 while he was awaiting the total knee replacement surgery of August 9, 2006.
Following each surgery, the worker returned to work with the accident employer at modified duties for a short period and eventually at regular duties as a diesel mechanic until February 2005. In February 2005, he was terminated by the employer due to a non-compensable situation.
The worker contacted the claims adjudicator in March 2005 requesting assistance and Labour Market Re-entry (LMR) services. The claims adjudicator determined that the worker had been working at accommodated duties and had it not been for the termination, he would not be suffering a wage loss. Therefore, the request for temporary partial disability benefits and LMR services was denied. This decision was outlined in the letter dated May 19, 2005. This issue is under objection.
A permanent impairment was evident and his most recent permanent disability assessment was conducted on May 8, 2007. Based on the examination findings, his permanent disability award was increased from the previous award of 13% to 17%.
At the time of the permanent disability reassessment, he requested LMR services. As outlined in the letter dated September 18, 2007, entitlement to LMR services was denied.
The worker contacted the claims adjudicator on October 27, 2008 and requested entitlement to the right ankle and a right ankle brace. The file was reviewed by the claims adjudicator and the regional medical consultant. It was determined that the right ankle condition was not related to the left knee. This decision was outlined in the letter dated November 12, 2008. This issue is under objection.
AUTHORITY
Operational Policy #18-07-10, Pre-1990 Pension Supplements
Operational Policy # 19-04-06, Suitable Employment
Operational Policy # 15-05-01, Resulting from Work-Related Disability
RESOLUTION METHOD AND PROCESS
The worker chose the 60-day decision option. The appeal decision will be based on all available information in the file and the information attached to the form.
ASSESSMENT OF THE EVIDENCE
I have carefully reviewed this claim in its entirety and considered the evidence on record. The following is my assessment of the evidence on file.
The worker did not initially lose time from work and performed his regular duties until August 8, 1990. On August 9, 1990, he underwent surgery to the left knee. He returned to work effective November 1, 1990, at regular duties, until January 13, 1993.
The worker underwent arthroscopic debridement on January 14, 1993. He returned to work at his regular duties, following the recovery, until September 12, 1994. On September 13, 1994, the worker underwent further surgery.
He returned to work on November 21, 1994. He performed modified duties with a helper to assist with running around for tools for a couple of weeks. He then returned to regular duties until May 28, 1995.
On May 29, 1995, he underwent further left knee surgery. He returned to work on June 12, 1995 at his pre-accident job of a diesel mechanic with a helper until January 17, 1996. He underwent surgery on January 18, 1996 and returned to light duties for a short period on January 31, 1996 and then worked at his regular duties until April 16, 1997.
The worker had a sixth surgery to the left knee on April 17, 1997 and he returned to regular work on May 20, 1997 until April 16, 1998.
On April 17, 1998, he underwent a high tibial osteotomy of the left knee. He then returned to his regular duties on July 27, 1998 until September 2, 1999. On September 2, 1999, he underwent a removal of a Baker’s cyst. He returned to his regular duties on October 25, 1999.
On July 11, 2001, (Memo #132) the worker contacted the claims adjudicator and requested a permanent disability reassessment. He indicated that the orthopaedic specialist had advised him that he should be off work. However, the worker indicated he must continue working as he had no other means of income.
On August 23, 2001, the worker advised the claims adjudicator that he was having great difficulty with his left knee but didn’t want to quit work, as had been told to him by the orthopaedic surgeon. He confirmed he had been performing his regular work but had difficulty standing without pain and he limped.
The claims adjudicator referred the worker for a Functional Capacities Evaluation (FCE) in September 2001. The report confirmed the worker had been performing his regular duties. The outcome of the FCE was that the worker did not meet the physical requirements of a heavy equipment diesel mechanic.
It was noted at the time of the FCE the worker had just recently been diagnosed with a hernia. Therefore, the lifting component of the FCE was not conducted. Nevertheless, the FCE results were quite clear in that the worker could not perform many of the body positions required for the job of heavy duty diesel mechanic because of the compensable left knee condition.
The report indicated that positions required of the worker included low-level positions, such as crawling, crouching, squatting or kneeling. The worker was able to achieve these positions at testing, however, he required assistance getting in and getting out of these positions. The testing also indicated he could not perform repetitive squatting.
The worker and claims adjudicator discussed the findings. At the time, the worker was still attempting to continue working with his accident employer. Therefore, no further action was taken regarding the findings of the FCE.
The most recent permanent disability assessment was on May 8, 2007. I noted the permanent disability assessment notes from the regional medical consultant which indicated he had precautions against use of ladders, climbing stairs, rough ground walking, squatting, and kneeling on a regular basis. The medical consultant indicated that full heavy equipment mechanic duties were probably beyond his precautions; but certainly suitable, modified duties would be feasible.
In other words, he could not perform the duties of a heavy duty mechanic but was partially disabled and capable of performing modified duties. The permanent disability assessment of May 8, 2007 was six years after the FCE. There had been no improvement in the condition, in fact, the condition deteriorated and required further surgery.
In reviewing the facts of this claim, I found it was quite clear that the worker had been performing his regular duties all along with the occasional assistance of a helper. The employer confirmed this on several occasions in the claim file on the re-open claim forms (REO-7) and in conversations with the claims adjudicator.
Although the worker was provided with a helper on occasion, a helper cannot climb on the heavy equipment for the worker to do the repairs and maintenance of equipment. The helper cannot kneel on behalf of the worker, squat on his behalf or stand on his behalf while the worker was working on the machinery. Therefore, although the employer vaguely agreed the worker was “somewhat” accommodated, I am not satisfied that the work he was performing was within his precautions.
In the report dated June 6, 2005, the orthopaedic surgeon indicated the worker should be performing deskwork only, light office type of work. Another orthopaedic surgeon indicated in his report dated January 10, 2006, “patient can do a desk job only”.
It is apparent that the worker was working beyond his precautions in an attempt to keep his job with the accident employer. I noted the circumstances around the termination of the worker. I concur with the claims adjudicator that up until his termination, he had been able to maintain his employment with no wage loss.
However, I find that the worker did complain of ongoing difficulties and problems in performing his work. Two orthopaedic specialists both told him to stop working in his occupation as a diesel mechanic. As previously stated, this work was not within his restrictions and his condition gradually worsened.
He underwent total knee replacement surgery on August 9, 2006. Following this surgery, he underwent a permanent disability reassessment which confirmed a worsening of his condition. Therefore, I find that following the surgery, he would not have been able to continue working as a diesel mechanic in order to protect the results of the knee replacement surgery, even with accommodations.
This is supported by the comments from the first specialist in the report dated July 31, 2001. He stated, in part, “He is headed for sedentary employment restrictions because he will be unable to continue prolonged standing, walking, kneeling, or squatting activities in the workplace. These restrictions will continue even after knee replacement surgery in order to protect the knee replacement components. “
Having regard for the medical documentation on file, I find that the worker, following recovery of the total knee joint replacement, was partially disabled and capable of performing modified work. I also find that the worker has shown a willingness to co-operate in Labour Market Re-entry (LMR) noting his request for services on two occasions. The worker is not claiming total disability, but partial disability.
The worker has never been provided vocational rehabilitation services or Labour Market Re-entry (LMR) services to date. In the claim file, it was not indicated in the memo’s whether or not the worker was provided an explanation of LMR services and their purpose, or the supplementary benefits.
I am satisfied that the work previously provided by the employer was beyond the worker’s restrictions. Therefore, I find the worker is entitled to a Labour Market Re-entry assessment in order to determine if LMR services can assist him in a return to work at suitable employment.
As well, the worker is entitled to Section 147(2) supplementary benefits from June 1, 2007, the date of the implementation of the permanent disability reassessment increase from 13% to 17% and this is also the date of the closure of temporary total disability benefits. The supplementary benefits under Section 147(2) will continue until the LMR assessment is completed.
Once the Labour Market Re-entry assessment has been completed, a determination will be made by the operating area as to whether or not the worker will benefit from LMR services. Once the determination has been made, the operating area will implement either Section 147(2) or Section 147(4) supplementary benefits accordingly.
Entitlement to the right ankle:
The worker first mentioned complaints of right ankle pain to his doctor on January 3, 2006 with a two or three month history of pain. He related the onset to loading the leg too much to compensate for his knee. The doctor indicated this could well be.
He diagnosed the condition as a right ankle sprain, overuse, repetitive strain injury. The doctor referred him for x-rays of the right ankle. In February 2006, he prescribed a right ankle brace.
Specialist number one submitted a report dated March 18, 2008 indicating the diagnosis regarding the right ankle was early osteoarthritis ankle joint and possibly some discomfort associated with the avulsion fragment.
In the report dated August 19, 2008, the physician indicated, “It is my opinion that years of abnormal gait (antalgic limp) resulting from the post traumatic knee osteoarthritis (WSIB confirmed claim) would probably have resulted in increase stress to the right ankle joint, leading to the osteoarthritis condition which is now present.
This relationship between the WSIB knee claim and the right ankle condition can not be stated with certainty; however, on the balance of probabilities, and in the absence of any other major right ankle injury, it is my opinion that the right ankle condition is probably related to the WSIB knee claim.”
I reviewed all the medical documentation on file and noted in particular the comments regarding the worker’s walking ability and comments relating to limping or altered gait. Orthopaedic surgeon number three commented in the report of March 27, 2000 that the worker had a restricted range of motion of the knee. In June 2001, the family physician indicated he had a great difficulty with mobilization.
In the report dated July 31, 2001 from specialist number one, he stated, “symptoms consist of worsening left knee pain and deteriorating walking and standing tolerance”. At the testing for the Functional Capacity Evaluation of November 21, 2001, it was noted he displayed a mild limp during gait.
Therefore, the medical documentation on file confirms that the worker has suffered with an altered gait since at least 2000. He gradually developed right ankle pain. In the absence of any other accident or injury to the right ankle, it would appear that the altered gait caused by the left knee condition brought on the right ankle condition.
As such, I find there is entitlement to the right ankle as a secondary entitlement in this claim.
CONCLUSION
Entitlement to a Labour Market Re-entry assessment and possible services is allowed.
Entitlement to Section 147(2) supplement is granted from June 1, 2007, the date of the implementation of the increase in the permanent disability award from 13% to 17%.
Ongoing Section 147 (2) or 147 (4) benefits will be determined by the outcome of the Labour Market Re-entry assessment.
Entitlement for the right ankle is accepted as a secondary entitlement in this claim.
The worker’s objection is granted.
DATED August 27, 2009
M. St-Hilaire Appeals Resolution Officer Appeals Branch