WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20100047
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
ISSUES:
Entitlement for recurrence and loss of earnings (LOE).
HOW THE ISSUES AROSE
A claim was established for this female Quality Inspector when she injured both knees at work. Entitlement was granted for loss of earnings (LOE) and health care benefits. Loss of earnings was processed to July 9, 2007 when she was found capable of returning to regular duties.
Information received subsequent to her return to work outlined she was claiming LOE benefits. However, it was determined by the operating area that the worker was capable of performing the essential duties of her regular job. The employer was able to accommodate the worker within her precautions regarding her compensable injury at no wage loss. As a result LOE benefits were not processed beyond July 9, 2007.
More recently, the worker claimed recurring problems and LOE from April 7, 2008 to April 11, 2008. A review by operations determined that further entitlement for the worker’s recurrence was not in order. The denial of the recurrence is the issue now before the appeals resolution officer (ARO) for determination.
AUTHORITY
Operational Policy Manual (OPM) document(s):
11-01-05 – Determining Maximum Medical Recovery (MMR)
15-03-01 – Recurrences
18-03-02 – Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I have reviewed the claim record and noted the evidence and submissions. The worker representative opted to proceed with a further submission dated January 5, 2010. In his submission he outlined the worker was claiming a recurrence and LOE benefits from July 16 to July 20, 2007 (she was working on graduated hours four hours per day); from July 23, 2007 to July 27, 2007 partial LOE based on a six hour work day; from March 31, 2008 eight hours; from April 7, 2008 to April 11, 2008 a total of 40 hours lost; and finally from April 23, 2008,eight hours, July 18, 2008 eight hours, June 23, 2008 3.5 hours for a total loss of hours to 97.5 hours. He also requested a non-economic loss (NEL) assessment, entitlement to health care benefits and labour market re-entry (LMR) services associated with the recurrence.
On June 28, 2007, the worker sustained injury to both knees. The initial medical report provided a diagnosis of soft tissue injury with a recommendation the worker stay off one day, due to difficulty weight bearing.
The worker did not return to duties until July 9, 2007 and reported working reduced hours due to the effects of her injury. However, the employer at the time reported the worker was provided with office type duties. The office type work met the worker’s precautions of avoiding prolonged weight bearing at no wage loss. There was no additional information or evidence submitted to support the duties offered at the time were not in keeping with the worker’s precautions.
The worker claimed ongoing problems and a recurrence effective April 2008. There was essentially no significant ongoing medical documentation following her return to work in July 2007 until additional medical documentation was received dated April 6, 2008 outlining that the worker had been seen at the Credit Valley Hospital for ongoing right knee complaints. The report outlined the worker complained of pain in the right leg for one week. There was no known injury. She had pain from the knee down and had pain when walking.
Initial Medical Documentation
Following her initial injury as already stated the worker was seen June 27, 2007. There was crepitus on exam suggesting underlying arthritis. The diagnostic imaging consultation from the Credit Valley Hospital dated June 28, 2007 noted small osteophytes off the medial femorotibial compartment in keeping with early degenerative changes. There were degenerative changes noted involving the knees.
Medical documentation from the worker’s treating practitioner show that the worker was last seen December 2007 and then not again until April 2008 and then June 2008. When she was seen in April 2008 she complained of right knee, right calf pain with an eventual diagnosis given of degenerative changes/osteoarthritis.
Following the worker’s request form recurring problems her case was referred to the unit medical consultant for further consideration. The medical consultant after considering all the medical documentation available noted medical reporting initially reflected evidence of pre-existing non-compensable underlying arthritis. At the last visit of July 31, 2007 the working diagnosis was still bilateral knee contusion and quadricep tendon area bruise. X-rays confirmed degenerative changes in the knees. Bone scan also showed osteoarthritis in multiple areas including the knees.
Visits to the general practitioner were then 12/07, 4/08 and 6/08. When she was seen 4/08 for complaint of the right knee, right calf pain the eventual diagnosis was degenerative changes and osteoarthritis. The MRI did not confirm internal derangement or ligament tear. She also had received physiotherapy treatment in 9/08 to 10/08 for osteoarthritis of the right knee.
The family physician also responded to a number of questions by the adjudicator, in a letter dated September 10, 2008. The family physician responded with a report dated October 1, 2008. In that report the doctor recapped how the worker was first seen July 3, 2007 following a June 28, 2007 injury. At the time the worker had crepitus pain around the kneecaps and medial joints of the knees as well as quadricep muscle area pain. There was a bruise around both knees left more than right knee. She was seen again July 11, 2007. He noted that x-rays from the walk-in clinic showed degenerative changes in the knees. The doctor went on to explain he had done a total bone scan which showed arthritis of the knees, hands, neck as well as osteoarthritis changes in the shoulders.
The medical consultant concluded that the working diagnosis from April 2008 onwards was not contusion as was the initial diagnosis but underlying osteoarthritis. The worker had clinical and radiographic evidence of osteoarthritis even on initial exam. She recovered from her compensable injury approximately one month with no significant continuity of medical reporting or findings, through to 4/08 when her next complaint was of right knee pain. Thus there was no objective evidence that the compensable injury aggravated or exacerbated the worker’s underlying condition and therefore the recurrence, was not in order. The worker from the medical evidence was considered to have achieved maximum medical recovery (MMR) by July 31, 2007 with no residual compensable permanent impairment.
She was next seen on April 8, 2008 complaining of pain in both knees. There was more pain in the right knee and upper calf area. An MRI was arranged. On examination she was extremely tender. She was seen again June 2, 2008 at which time x-ray of the right ankle and tibia in April 2008 was negative.
The worker was last seen September 5, 2008 at which time she was still having pain in the knees. She was given medication in the form of Tylenol 2 and Mobicox 7.5mg a day was renewed. The report also mentioned that the worker was seen at the Credit Valley Hospital April 6, 2008 for right leg pain and an x-ray done of the right ankle, right tibia and right fibia showed no fractures dislocations or malalignments. In conclusion the report outlined that the doctor did not feel the worker was fully recovered from her soft tissue type injuries. The fact that she had some degenerative changes in her knees could make her recovery from the injury more prolonged.
Having examined all of the circumstances of this case, I find there is no significant evidence of the worker having any ongoing complaints, problems or difficulties while at work. There is no significant medical continuity or physical findings, between December 2007 and April 2008 when the worker claimed further problems.
It is clear the worker suffered a contusion strain type injury initially based on the medical reporting. It is also clear she had significant pre-existing degenerative problems in the form of arthritis. These degenerative problems were not only evident in the worker’s knees but as outlined, throughout several other areas of her body. This therefore supports the view the degenerative changes with the workers knees, noting the various other locations were not caused by the compensable injury but due to other non compensable factors.
Noting the lack of continuity of complaint and continuity of medical treatment coupled with the significant underlying pre-existing non-compensable degenerative problems, I find the request for further LOE benefits as outlined in the representative’s letter, including the recurrence of April 2008, cannot be accepted.
CONCLUSION
I conclude further entitlement for partial loss of earnings (LOE) benefits dating back to July 2007 including the recurrence of April 2008 as well as a request for permanent impairment assessment and labour market re-entry (LMR) services, cannot be granted as the worker’s further problems are not considered compensable in nature. Additionally the loss of earnings for the period outlined in July 2007 is not allowable as suitable work was available, at no wage loss and within the workers capabilities.
The objection is denied.
DATED January 21, 2010
A. D'Ambrosio
Appeals Resolution Officer
Appeals Branch