WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100054
OBJECTION BY: The Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
HEARING: N/A
ISSUES
The worker objects to:
The suitability of the suitable and available employment or business (SEB) of Community and Social Service Worker and, consequent reduction to partial loss of earnings (LOE) benefits, effective March 12, 2009, based on entry level earnings in this SEB (March 12 ,2009 decision);
The final LOE lock in benefit rate, effective June 1, 2009, based on mid-range earnings in the determined SEB (June 5, 2009 decision);
The denial of entitlement for a right knee medial meniscus tear and associated surgery (October 21, 2009 decision).
HOW THE ISSUES ARISE
The worker was employed as a journeyman electrician when on May 28, 2003, he laid off work due to a bilateral knee condition. Enquiry revealed the worker had experienced twisting injuries to his knees on May 28, 2003 (left knee) and on February 29, 2003 (right knee), while in the course of his employment. Entitlement was accepted for a left knee medial meniscus tear which went on to surgery on August 27, 2003, and right knee patellofemoral syndrome. On February 10, 2005, the worker was granted a 6% non-economic loss (NEL) award for his residual bilateral knee impairments.
In the interim, the accident employer was ruled out for a return to permanent modified duties in keeping with the bilateral knee restrictions. Consequently, the worker was referred for labour market re-entry (LMR) services in April 2004. Following psycho-vocational assessment, the SEB of Community and Social Service Worker was accepted as suitable and the worker attended an LMR program towards gaining the necessary skills and credentials. The worker attended academic upgrading and then two separate college programs, but was not successful in fully completing the SEB related college program.
The Case Manager determined the worker’s lack of success in completing the LMR program was due to his failure to consistently apply himself to the program demands. Consequently, LMR services were discontinued and LOE benefits were reduced to partial, effective March 12, 2009, based on potential entry level earnings in the SEB. On final LOE benefit review and effective June 1, 2009, the LOE benefit was locked in to age 65, based on mid-range SEB earnings.
The worker subsequently went on to right knee surgery on December 17, 2009, for a torn medial meniscus. Entitlement for the surgery was denied as it was considered the evidence did not support the worker had suffered a right knee meniscus tear in the originally accepted workplace accident.
The worker’s objections to the above issues are now under consideration.
AUTHORITY
Operational Policies:
18-03-02, Payment of LOE Benefits
18-03-06, Final LOE Benefit Review
19-03-03, Determining Suitable and Available Employment or Business, and Earnings
RESOLUTION METHOD AND PROCESS
The worker’s representative directed a decision based on the file records and written submission.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision on the presenting issues, I have considered the evidence on file and further submission.
SEB Suitability and LOE as of March 12, 2009:
The worker’s pre-injury employment was as a journeyman electrician and he had worked in this capacity since approximately 1990. In order to determine suitable alternative vocational options, the worker attended psycho-vocational assessment on May 10, 2004. The assessment revealed that academically, the worker had completed grade 11. His general intellectual potential was measured within the low average performance range. Reading pronunciation and vocabulary tested average, while spelling was low average and reading comprehension was below average. Aptitude testing revealed an average general aptitude, but much below average verbal aptitude. It was concluded that testing supported a learning potential within the low average range (low average verbal and nonverbal). Vocational testing indicated a moderate interest in realistic/skilled trade and social occupations. Based on the assessment results, it was considered that “in principal” the worker could retrain in a short-term college level program, following a period of academic upgrading.
The worker then went on to academic testing and this revealed a mid-elementary level in language and reading comprehension and early secondary level in spelling recognition.
The SEB of Community and Social Service Workers (NOC 4212) was selected as it was listed as one of several potential SEB options (with upgrading and retraining) and the worker expressed an interest in this SEB. However, in my judgement, the psycho-vocational assessment and academic testing results were clear indicators that the worker would likely not succeed academically in this SEB.
The worker attended the academic upgrading component of the LMR plan from August 2004 to September 2005, and it was noted he had difficulties with reading comprehension, essay writing and spelling. The worker subsequently indicated he had not received the proper college preparation and as a result, was not initially accepted into Seneca College’s Social Work Program. He indicated that when he applied again, he was not accepted as he was not able to pass the written entrance test in English.
The worker was subsequently accepted into the Social Service Worker program at Sheridan College, commencing September 2006. However, by December 2006, it was reported that he was experiencing difficulties with his English course. The worker expressed concern about his writing skills and ability to write effective essays. The LMR Rehabilitation Consultant (RC) considered the worker’s difficulty in essay writing and view that he did not receive proper training during his upgrading, as LMR barriers. It was then noted the worker’s grade point average (GPA) in the Fall semester was only 1.4, with two failed courses, which included necessary pre-requisites in English and Social Service Worker Foundations.
In contacting the Sheridan College, the RC was advised that, “the contributing reason for the worker’s failure in the two courses is because he is lacking the fundamental survival skills for college.” It was not because it was considered the worker was not applying himself to the program. The college recommended the worker make up the two courses in addition to attending the college’s Skills Training Centre for academic upgrading, where he would receive assistance with basic writing and communication skills. Clearly, the college itself endorsed the worker’s view of inadequate upgrading for college preparation.
The worker then commenced the fall 2007 semester and again the LMR reports noted the worker continued to find the program difficult, particularly the essay writing. A few weeks into the program, he was dismissed from the college due to continued poor grades. It was noted the worker had maintained a poor GPA throughout his studies. In the last full semester, the worker’s GPA was only .9 and he required a 2.5 GPA to remain in the course.
Although it is noted the worker expressed an interest in continuing with the Social Service Worker SEB, in my view, these results should have been additional prompts that the SEB was not attainable for this worker. Yet, instead of revisiting the suitability of the SEB, the worker was enrolled in another college for a similar program. As of April 2008, the worker commenced a 42 week Addictions and Community Service Worker Diploma Program at Everest College. One month later, the worker reported that the pace of this program was much faster than the previous one. In June 2008, it was reported the worker had failed an assignment and failed an exam as he had difficulty with the material and could not follow the textbook. Absences were also noted as a factor and the college issued a warning letter to the worker in June 2008.
The worker attempted his final comprehensive exam on December 3, 2008, with re-writes on December 9, 2008 and February 11, 2009 (64%), but he did not attain a passing grade of 70%. It was noted that prior to the final rewrite, the worker attended school daily for two weeks for review and study. In light of his final low grade, however, the worker was not eligible to graduate or receive his diploma. In their service completion report, the VR consultant documented, “as [the worker] did not pass the final examination and will not receive his diploma, he cannot be said to have achieved his SEB potential.”
From my assessment, the evidence establishes the worker was co-operative and put forth good effort towards succeeding in his LMR program, but this was not sufficient in attaining a passing grade within the college standards. I do not agree that the outcome was due to poor effort on the worker’s part. The fact that the worker had already secured himself a SEB related volunteer placement at a hospital, in my view, supports that he was fully committed to succeeding.
In my judgement, with the early indicated barriers, reporting that the worker lacked basic foundations to succeed in college, and the consequent very low GPA while attending the initial Sheridan College program, the worker’s SEB ought to have been reconsidered then. Instead, he was simply registered in a similar program at another college. This action did nothing to remedy the deficiencies and barriers indicated and consequently, the outcome was predictable. As the worker did not obtain the necessary diploma and certification, he does not possess the skills required to be considered employable in the SEB of Social Service Worker. A new SEB is to be determined with reconsideration of the worker’s partial LOE entitlement as of March 12, 2009 and the LOE lock in effective June 1, 2009.
Entitlement to Right Knee Medial Meniscus Tear and Surgery:
The worker injured his right knee in a twisting injury at work. It was determined there was no pre-existing condition warranting cost relief to the employer. Physiotherapy assessment on June 19, 2003 documented that both knees locked during weight bearing activity. Findings included reduced range of motion in the bilateral knees, with a diagnosis of bilateral medial meniscus tears. Review and objective assessment on June 24, 2003, revealed tenderness on palpation in the medial joint lines of both knees and the clinical impression was potential bilateral medial meniscus tears.
Orthopaedic assessment took place on July 4, 2003, for bilateral knee pain, with the left knee worse. The surgeon reported that the worker had experienced pain over the medial side of both knees with occasional giving way. Clinically, the worker had an antalgic gait. In the left knee, he had effusion with medial joint line tenderness and a positive McMurray’s test. In the right knee there was no effusion, but sight patellofemoral symptoms and only slight medial joint line tenderness. It was considered the worker likely had a torn left medial meniscus and may have patellofemoral symptoms on the right side. Arthroscopic surgery was recommended for the left knee and this took place on August 27, 2003.
On October 1, 2003 (memo 10), the WSIB medical consultant referenced a possible medial meniscal tear as a result of the twisting accident.
Orthopaedic review took place on December 2, 2003. The surgeon reported the worker had undergone arthroscopy recently which had demonstrated a torn meniscus, bucket handle tear of the left knee. It was noted the worker complained of similar symptoms in the right knee over the medial compartment.
On March 10, 2004, the physiotherapist noted bilateral medial meniscus lesions which were now chronic.
The December 14, 2004 NEL assessment documented the worker was experiencing pain and locking of both knees. The pain radiated from the knees down medial lower legs to the ankles. It is noteworthy that the assessment revealed a greater level of impairment of the right knee than the left, where surgery had already taken place.
On August 28, 2009, the worker again attended the orthopaedic surgeon for his right knee pain. Examination findings were similar to those of July 2003 and it was noted he had a positive McMurray test. An MRI revealed a torn medial meniscus with arthritis in the patellofemoral region. The worker went on to surgery for this condition on December 17, 2009.
Based on my assessment, the medical evidence proximal to the accident date, consistently documented medial meniscus pathology bilaterally, with reporting of suspected bilateral medial meniscus lesions or tears. In the absence of any diagnostic tests immediately post-injury which ruled out a right meniscus injury and with no documented further injury, I accept there is a causal link between the MRI findings and the original right knee trauma. Entitlement is, thus, accepted for the diagnosed torn medial meniscus of the right knee and consequent surgery.
CONCLUSIONS
The SEB of Community and Social Service Worker is considered unsuitable and a new SEB is to be determined.
Consistent with the new SEB, LOE benefits are to be redetermined, effective March 12, 2009 and June 1, 2009 (final review).
Entitlement is extended for the torn medial meniscus of the right knee and associated surgery.
The worker’s objections are, therefore, granted.
DATED May 13, 2010.
S. van Veen Appeals Resolution Officer Appeals Branch