WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100167
OBJECTION BY: Worker
PARTICIPANTS: Worker
EMPLOYER: No longer in business
ISSUE
The worker objects to the Case Manager’s (CM’s) decision dated September 15, 2009, and subsequently June 14, 2010, wherein the worker was granted a permanent disability (PD) award of 20% for residual impairment to the left knee and left ankle. The worker claims that the award does not accurately reflect his current level of permanent disability.
HOW THE ISSUE AROSE
On May 25, 1979, the worker stumbled while walking through the basement. On trying to regain his balance he violently struck his left leg against a furnace motor, resulting in a fracture of the left leg (tibia). The fracture was treated by closed reduction (casting), and he remained in the cast until approximately August 24, 1979. The fracture was again x-rayed after removal of the cast, and the x-ray confirmed excellent alignment of the fracture. The worker was then referred for physiotherapy treatment.
The worker continued to have symptoms related to intermittent swelling and pain in the left leg. In May 1980, the worker was assessed at the Downsview Rehabilitation Centre (DRC). The DRC discharge report confirmed diagnoses of fracture left tibia and post traumatic arthritis of the left knee. The worker’s recovery had plateaued and restrictions for return to work were provided.
On October 17, 1980, the worker was assessed by the Workplace Safety and Insurance Board (WSIB) Medical Consultant (MC) for purposes of an initial PD assessment. At the time of the initial assessment, the MC noted that, in addition to the left knee findings, the worker also had a loss of flexion and extension in the left ankle. The Pensions Adjudicator accepted entitlement to the ankle. The worker was granted an 8% PD award, representing 5% for the left knee and 3% for the left ankle. The worker had subsequent PD reassessments in 1982 and 1991.
AUTHORITY
18-07-01 – Determining the Degree of Disability
18-07-02 – The Ontario Rating Schedule
RESOLUTION METHOD AND PROCESS
The worker’s has agreed to resolve this objection by means of a file review with the information currently available.
ASSESSMENT OF THE EVIDENCE
Following the removal of the worker’s cast in August 1979, the worker continued to report diffuse knee pain, which would be aggravated with stair climbing. Although the worker appeared to have regained full range of motion, he experienced intermittent swelling of the knee, particularly once he had returned to work. The assessment at DRC in May 1980 confirmed evidence of post traumatic arthritis affecting the left knee.
At the time of the initial PD assessment on October 17, 1980, the worker was found to have full range of motion of the left knee with some loss of extensor power. The knee was stable. There had been a loss of approximately 10° of extension and 20° of flexion in the left ankle and mid foot. Squat recovery was approximately 60% of normal. The MC confirmed that the fracture had aggravated pre-existing degenerative problems in the left knee. He was awarded an 8% PD award consisting of 5% for the left knee and 3% for the left ankle.
On December 4, 1981, the worker was assessed by Orthopaedic Specialist, Dr. Ogilvie Harris. He noted that the worker’s left knee arthrogram confirmed a torn posterior horn along with degenerative changes in the lateral meniscus. He recommended surgery (arthroscopic removal) for the torn posterior horn. The worker declined the surgery. Dr. Ogilvie Harris concluded that the worker’s symptoms were not likely to resolve without surgical intervention.
In light of Dr. Ogilvie Harris’ report, the worker’s PD award was reviewed on November 12, 1982 and the award was increased to 13%, representing 10% for the left knee and 3% confirmed for the left ankle. The worker claimed a recurrence in June 1990 whereby he reported losing his balance after his knee gave way. The worker was not claiming benefits for lost time from work, but requested a reassessment of his PD award.
On July 22, 1991, the worker’s PD award was again reviewed. At the time of the PD assessment, the worker was found to walk with a slight antalgic gait on the left. He could not perform a squat. There was no evidence of swelling, effusion or inflammation in the left knee. The worker reported moderate tenderness in the lower pole of the patella and medical and lateral joint lines. There was no ligamentous instability. Flexion was limited to 75°, extension was full. There was some wasting of the left quadriceps muscles measuring 1 ½ centimetres less on the left than on the right. The left ankle examination revealed some puffiness in the
medial aspect of the joint, and full range of motion with discomfort on extremes of plantar flexion and inversion. The worker’s PD award was increased to 18%, representing 15% for the left knee and 3% for the left ankle.
The worker requested a reassessment of his PD award in 2001. The MC reviewed the claim on February 11, 2002 and concluded that there was no evidence of any deterioration despite the progression of osteoarthritis within the knee joint. The worker’s request for a PD reassessment was subsequently denied as per the Claims Adjudicator’s letter dated February 18, 2002.
The worker’s representative submitted a request for PD reassessment on October 20, 2008. Additional reports from the Orthopaedic Specialist Dr. Maser dated August 6, 2008 and Dr. Shih dated October 10, 2008 were submitted in support the worker’s request. The CA determined that, given the length of time that had passed since the worker’s last PD examination in 1991, a reassessment would be arranged.
The worker’s PD reassessment took place on June 24, 2009. Based on the examination, the MC recommended that the worker’s PD award be increased from 18% to 20%. This represented a confirmation of the previous 15% award granted for the left knee, and an increase from 3% to 5% for the left ankle. The worker objected to the decision to increase the award by only 2%. He submitted an additional medical report from Dr. Maser dated November 25, 2009 and requested a reconsideration of the PD quantum.
The MC reviewed the new medical evidence on April 15, 2010. He determined that the report from November 25, 2009 could not be used as medical evidence to refute the worker’s PD quantum, as the MC did not have access to this report at the time of the PD examination, and it provided a summary of findings that were evident beyond the date of the reassessment. He concluded that the report from Dr. Maser did not provide any objective findings to support a deterioration beyond what was established at the time of the pension reassessment in June 2009. He also concluded that, even in the setting of a total knee replacement with a reasonable outcome, the benchmark award for a knee would be in the order of 18%. The worker is already in receipt of a 15% award.
Given the outcome of the PD reassessment in June 2009, the CM has in essence accepted that the worker’s left knee condition has not deteriorated since 1991 (given the fact that the left knee PD quantum was confirmed at 15% in 2009). Therefore, in rendering my determination, I will address whether there is any evidence of a deterioration to the left knee since 1991, and whether the left ankle PD quantum was appropriately determined.
Since the PD assessment in 1991, the worker was seen by Dr. Maser on November 12, 2001. At that time, the worker subjectively reported difficulty with walking more than a block or two. Dr. Maser noted mild effusion to the lateral aspect of the left knee, no ligamentous instability, some crepitus and strong quadriceps and leg muscles. He concluded that the worker may have had a worsening of his osteoarthritis, particularly in the lateral compartment. A new medication was prescribed and the worker would be considered for knee injection on his next visit. He also discussed the possibility of arthroscopic knee surgery followed by knee replacement surgery; however the worker was anxious about pursuing any surgical alternatives.
On July 15, 2008, an x-ray of the left knee confirmed degenerative osteoarthritis in all compartments of the left knee with moderate narrowing of the medial compartment. The left ankle x-ray confirmed a minor avulsion fracture at the tip of the lateral malleolus; this was likely a remote injury. Otherwise, the ankle joint was well maintained. There was spurring of the calcaneus both posteriorly and inferiorly.
The worker followed up with Dr. Maser on August 6, 2008. Examination confirmed that the worker was able to flex and extend both knees through a full range of motion. Collateral and cruciate ligaments were intact and strong. There was no evidence of muscle weakness or wasting. He was able to dorsiflex and plantar flex both ankles almost equally. The same applied to internal and external ankle rotation and ankle inversion and eversion. Dr. Maser concluded that the worker had osteoarthritis and osteoporosis and would benefit from quadriceps strengthening exercises. If the knee discomfort became too great, he would need to consider a knee replacement. It was recommended that the worker avoid surgery for the time being.
The report from Dr. Shih dated October 10, 2008 confirmed that the worker was last assessed on July 14, 2008. At that time, the worker was found to have tenderness along the lateral area of the patellofemoral joint, no effusion, and minor limitation in the range of motion (flexion at 120°, and full extension). There was no ligamentous laxity and pivot test was negative. The left ankle examination revealed tenderness along all joint lines, no swelling, normal range of motion, and the ankle was stable.
In reviewing this objection, I have had regard for the claim file information, relevant policy and legislation and for the arguments presented. When comparing the findings of the PD examination of June 24, 2009, to the findings of the 1991 pension assessment, there is minimal evidence to support any significant change to the left knee. While it is quite clear that there is some advancement of osteoarthritis in the knee, there are no corresponding findings with respect to increased functional limitations to support that the knee is significantly worse.
I have completed a comprehensive comparison of the physical findings recorded between 1991 and 2008/2009. The PD examination in 1991 noted no swelling, effusion or inflammation; there was moderate tenderness of the patella and medial joint lines; flexion was limited to 75°, extension was full; and there was no ligamentous instability. When comparing all the medical reports and the pension examination from 2008/2009, there was no evidence of any effusion in 2008/2009 (confirmed by Dr. Shih and the WSIB MC in 2009); the worker had tenderness of the patella and joint lines (as reported by Dr. Shih and the WSIB MC); flexion was actually better than in 1991 (reported as full by Dr. Maser in August 2008, at 120° by Dr. Shih in October 2008, and at 110° by the MC in June 2009). Full extension and intact ligamentous stability was consistently reported in all the medical reports and the PD exam.
When comparing these findings, there is no evidence of any appreciable change to the worker’s left knee condition. The ffindings of the worker’s treating specialists are consistent with those of the WSIB MC. I therefore find that the MC’s rating of June 24, 2009 accurately reflected the degree of disability in the worker's left knee at that time. I also note that, while Dr. Maser reports that the worker may ultimately require a left knee replacement, this is not a recommendation that is being endorsed at this time, despite the worker’s current age of 79. This would suggest that the worker’s symptoms do not warrant a surgical procedure of this
magnitude at the present time. I therefore conclude that the worker’s 15% PD award accurately reflects the worker’s present level of impairment with respect to the left knee.
I have reviewed the medical report submitted by Dr. Maser on November 25, 2009, based on his assessment of the worker’s knee subsequent to the PD reassessment. On this date, he found the worker’s left knee to be swollen with a small effusion and minimal crepitus present. Range of motion was described as fair, although if there was swelling one would anticipate some limitation affecting the worker’s range of motion. He injected the knee with DepoMedrol. He noted that if symptoms did not improve in the New Year, he would recommend an arthroscopic examination. The worker confirms that he has not required any surgery to the left knee to date.
The worker’s condition is aggravated by underlying osteoarthritic changes. Therefore, one can expect the occasional flare up of symptoms to occur. There is no evidence that the findings in November 2009 represented a permanent deterioration in the worker’s left knee condition, or that he did not recognize some improvement in his symptoms with the injection. Based on the findings evident at the time of the PD assessment, I concur that there was no evidence of significant deterioration to the left knee condition.
With respect to the left ankle impairment, the worker’s PD award was increased from 3% to 5%. The maximum award for total immobility of the ankle is 12%. The June 2009 PD reassessment took into consideration the evident reduction in the workers range of motion (he had full range of motion in 1991, and in 2009 dorsiflexion had reduced to 10°, plantar flexion to 20° and inversion/eversion each at 10°). The worker has not provided any persuasive argument as to why the 5% rating should be changed. In reviewing the MC’s assessment and comparing it to the medical documentation from the attending physician, the findings are essentially similar, with no discrepancies. I therefore find that the 5% PD award is accurately reflective of the worker’s current level of impairment with respect to the left ankle.
CONCLUSION
The worker’s objection is denied. The findings of the PD assessment findings are commensurate with the objective findings reported by the worker’s treating physicians. The PD award has therefore been correctly assessed at 20%.
DATED December 8, 2010
R. Calvert
Appeals Resolution Officer
Appeals Branch