2009 CanLII 78362

APPEALS RESOLUTION OFFICER DECISION

decision number 20090077

OBJECTION BY: Employer

WORKER: Not Participating

REPRESENTATIVE: Employer Representative

HEARING DATE: N/A

ISSUE

The employer representative, on behalf of the employer, is objecting to the adjudicator’s decision dated October 2, 2008 which denied the employer’s request for claim cost relief under the Second Injury and Enhancement Fund.

HOW THE ISSUE ARISES

The worker, then 36 years old, employed with the employer since May 2, 2005 was working as a truck driver/labourer at the time of his injury. On July 8, 2005 the worker was unloading material when he fell off the flatbed truck injuring his right knee.

The worker sought medical attention on July 8, 2005. The doctor advised the worker’s right knee was swollen and deformed and the worker was suffering from numbness in the right foot. The worker was diagnosed as having a right tibial plateau fracture with multiple ligament injury.

The worker underwent x-rays of the right ankle on July 15, 2005 which demonstrated mild widening of the ankle mortise medially suggestive of underlying ligamentous instability. Entitlement was extended to include the injury to the right ankle.

The worker underwent surgery on July 18, 2005 for open reduction, internal fixation with reduction of the dislocation of the right knee due to a fracture dislocation of right tibial plateau with torn ACL, torn MCL and avulsion of the anterior horn of the lateral meniscus.

The worker was referred for physiotherapy treatment and assessed on August 22, 2005 for a right knee and ankle ligament dysfunction injury. The worker was referred for a repeat x-ray of the right ankle on September 6, 2005 and the results demonstrated the alignment of the right ankle to be unchanged from the August 16, 2005 x-ray and the bone density was also stable.

The worker underwent a repeat x-rays on December 9, 2005 which were compared to the September 6, 2005 x-ray. The radiologist indicated there was extensive bony demineralization of the right ankle that had developed in the interval.

The worker was referred to the WSIB speciality program for further assessment and was assessed on May 5, 2006. The doctor advised the worker was not fit to return to work. The doctor also indicated the worker may require further surgery, however, the treatment for the right ankle and knee would need to be co-ordinated.

The worker was referred to a specialist for further assessment. The worker was assessed on May 8, 2006 and the doctor advised the worker was suffering from post-traumatic arthritis to the right knee. The doctor further advised the worker was suffering from disuse osteoporosis of the right ankle noting the x-ray report of May 8, 2006.

The worker continued to attend physiotherapy treatment and his progress was delayed due to post surgical complications. The worker underwent surgery in February 2007 to remove the hardware in his right knee. The worker was seen on March 22, 2007 for follow-up of the osteomyelitis of the right tibia.

The worker was reassessed at the WSIB specialty clinic on August 27, 2007. The worker underwent an x-ray of the right foot/ankle on August 27, 2007 the results of which demonstrated evidence of mild degenerative changes within the tibiotalar articulation and moderate degenerative changed within the talonavicular, naviculocuneiform and first MTP articulation. The worker underwent a M.R.I. of the right ankle on September 5, 2007, the results showed evidence of post traumatic changes along the lateral aspect of the ankle and mid tarsal hypertrophic spurs suggesting either post-traumatic change or early degenerative disease.

The worker was assessed by the specialist on September 14, 2007 and the doctor advised the worker had some old injuries of the lateral ankle ligaments but this did not appear to be causing any impingement. The worker underwent right knee arthrofibrosis after tibial plateau fracture surgery on October 10, 2007.

The worker was diagnosed as suffering from depression and prescribed Effexor medication. The adjudicator reviewed the case file record as per memo # 32 dated January 22, 2008 and concluded the diagnosis was consistent with the accident history and entitlement was granted for treatment of depression.

The employer representative, in his letter dated April 15, 2008, requested a review of the worker’s claim to determine whether a pre-existing condition caused or contributed to the worker’s injury. The adjudicator reviewed the representative’s request and in his letter dated April 16, 2008 concluded there was no evidence of a pre-existing medical condition that caused or prolonged the worker’s recovery.

The worker was assessed at the WSIB specialty clinic on August 20, 2008 and the doctor advised the x-rays of the worker’s right ankle demonstrated significant disuse osteoporosis with the mid foot arthritis.

The employer representative, in his letter dated September 8, 2008, objected to the adjudicator’s decision and referenced the medical reports dated August 27, 2007, September 5, 2007 and September 14, 2007 in support of their submission the worker suffered from a pre-existing condition.

The adjudicator obtained the opinion of a WSIB medical consultant and concluded the findings documented in the reports referenced by the employer representative were consistent with the accident and not evidence of a pre-existing condition. The adjudicator, in his letter dated October 2, 2008, confirmed the previous decision dated April 16, 2008. The employer representative objected to this decision.

AUTHORITY

Operational Policy Manual Documents:

Policy 14-05-03 Second Injury and Enhancement Fund (SIEF)

RESOLUTION METHOD AND PROCESS

The employer representative agreed to a decision based on the claim file record and his letter dated September 24, 2009. The worker returned the participant form indicating he wished to participate in the appeal. The worker was not contacted as the outcome of the employer’s objection did not impact the worker’s entitlement in this case.

ASSESSMENT OF THE EVIDENCE

In reaching my conclusion I considered the claim file record, the employer representative’s submission and the relevant policy and legislation.

Policy 14-05-03 states

When reviewing medical and other information present in the claim file, the decision-maker considers whether the information suggests that a pre-existing condition is present and whether it;

contributed to the work-related accident, or
prolonged or enhanced the work-related disability.

If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so.

Analysis

To consider granting cost relief under the SIEF policy there must be evidence that a pre-existing condition either contributed to the accident or prolonged the recovery of the worker.

The employer representative submitted the August 27, 2007 University Health Network report, the MRI report of September 6, 2007 and the September 14, 2007 University of Health Network report support the worker suffered from mild degenerative changes within the tibiotalar, naviculocuneiform and first MTP articulation, mid tarsal hypertrophic spurs suggesting early degenerative disease, evidence of dorsal break along the talonavicular joint as well as between the navicular joint and cuneiform from previous trauma and old injuries of the lateral ankle ligaments. The employer representative contended this is evidence the worker suffered from a pre-existing condition and the employer should be granted cost relief under the SIEF policy.

On July 8, 2005 the worker fell approximately two metres and sustained an injury to his right knee and ankle.

The worker underwent a CT scan on July 9, 2005 and the results demonstrated a complex comminuted and impacted fracture of both the medial and lateral tibial plateau with significant articular deformity as described. The specialist reviewed the scans and diagnosed the worker as having a comminuted fracture in the tibial spine and shearing of the posterior condyles of both medial and lateral tibial plateaus. The worker underwent an x-ray of the right ankle on July 15, 2005 which demonstrated evidence of ligament instability. I find the x-ray results demonstrating ligament instability of the right ankle consistent with the accident history and not evidence of a pre-existing condition.

The worker developed problems and underwent further x-rays on December 9, 2005 which were compared to the September 2005 x-rays. The radiologist indicated there was extensive bony demineralization of the right ankle that had developed in the interval. The doctor, in his report dated May 8, 2006 advised the worker was suffering from post-traumatic arthritis to the right knee. The doctor further advised the worker was suffering from disuse osteoporosis of the right ankle noting the x-ray report of May 8, 2006. I appreciate the employer representative’s submission, however, I am more persuaded by the doctor’s interpretation of the x-ray report that the worker suffered from disuse osteoporosis and post traumatic changes and accept that these are due to the July 8, 2005 work accident.

The worker was assessed at the WSIB specialty clinic and the following was reported:

August 27, 2007; there are mild degenerative changes seen within the tibiotalar articulation. There are moderate degenerative changes seen within the talonavicular naviculocuneiform and first MTP articulation.
September 5, 2007; mild tarsal hypertrophic spurs suggesting either post traumatic change or early degenerative disease.
September 14, 2007; He does have some old injuries of his lateral ankle ligaments.

The adjudicator, noting the employer representative submission, obtained the opinion of a WSIB medical consultant. The WSIB consultant as per memo # 169 dated September 23, 2008 opined the above findings were consistent with the accident which had occurred two years previously. I accept this opinion.

I appreciate the employer representative submission. I am more persuaded by the medical reporting and x-rays taken immediately following the accident which did not demonstrate evidence of a pre-existing condition. I am further persuaded by the x-rays of the right ankle taken in December 2005 which demonstrate findings consistent with disuse which is in keeping with the worker’s loss of function following the work accident.

I find no evidence to support the worker suffered from a pre-existing condition. The worker’s current recovery is consistent with the injuries sustained due to the July 8, 2005 work accident.

CONCLUSION

I conclude the employer is not entitled to claim cost relief under SIEF as the worker did not suffer from a pre-existing condition that prolonged or enhanced the worker’s recovery.

The employer’s objection is denied.

DATED October 13, 2009

D. Duguay

Appeals Resolution Officer

Appeals Branch