WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100194
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer, employer’s representative
HEARING DATE: September 22, 2010
ISSUE
The worker objects to the limitation of entitlement in this claim. The operating area accepted that the right knee aggravation ceased.
The decision letters are dated October 16, 2009 and December 1, 2009.
HOW THE ISSUE ARISES
On July 29, 2009 the worker slipped and slid down a movable ladder. At the time of the accident the worker was doing modified work.
There was no lost time.
The worker had prior right knee problems with prior surgery in 2008.
The July 29, 2009 injury was accepted, right knee entitlement was accepted on an aggravation basis and entitlement was limited to when the aggravation ceased.
The worker objects to the limitation of entitlement in this claim and requested further entitlement, specifically lost time benefits from January to March 2010.
AUTHORITY
Operational Policy Manual (OPM) document:
- 11-01-15 – Allowance on an Aggravation Basis
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have reviewed and considered the worker’s testimony, the information presented by both representatives and I have reviewed and considered the file evidence.
The information on file is clear that the worker had anon-compensable right knee problems pre-dating the July 29, 2009 work aggravation.
The worker had surgery to his right knee, a scope with medial meniscectomy on January 22, 2008 followed by November 13, 2008 diagnostic arthroscopy of the right knee and revision of the medial meniscectomy of the right knee.
The clinical notes are on file from the family physician and from the specialist. The worker had ongoing limitations following the surgery for the non-compensable right knee condition and the worker was on restricted work duties prior to the accident of July 29, 2009.
The employer was provided with Second Injury and Enhancement Fund (SIEF) relief of 90 per cent.
In reviewing the medical information in the file, the medical notes relating to the non-compensable right knee problem were reviewed.
MRI was done confirming a prior tear of the right knee.
Pain medial right knee from June 2007 with no stated injury.
Pain was intermittent with clicking.
The worker referenced previous sports activities of soccer and taekwondo; however, no current sports activities.
Surgery in January 2008, right medial meniscectomy and surgery on
November 28, 2008, revision of the right medial meniscectomy.
June 2009, the worker had returned to work for 8 hour shifts, achieving this through a gradual return to work, pain continued in the supra patella, cracks, the worker wore a brace, weight bearing resulted in effusion and knee pain, the follow-up appointment with the specialist was August 13, 2009.
July 13, 2009 the worker was seen at the hospital with pain in the right knee, increased uptake isotope medial and lateral both knees, degenerative disease both knees, worse on right as noted in the bone scan.
The worker then sustained the compensable right knee aggravation July 29, 2009. He was seen at the hospital and the diagnosis was right knee sprain. The hospital noted pain and tenderness and STI right knee. Treatment included ice, Tylenol and Ibuprofen. An x-ray was done. Physical precautions were indentified - no lifting greater than 10 to 15 pounds, no prolonged standing or walking greater than 10 minutes and no stairs/ladder climbing. Return to work was discussed.
The worker did return to work and was accommodated post-aggravation by the employer.
A Functional Abilities Form (FAF) was completed. The August 13, 2009 report noted no symptoms of instability or locking, occasional clicking, no effusion, no discomfort, no ligament laxity or tenderness. The indication was patellofemoral syndrome, ongoing, nothing more specific can be done, the worker was cleared to return to modified work of 8 hours per day ongoing from prior to the right knee aggravation.
On October 7, 2009 the worker was assessed again by the orthopaedic specialist noting periodic discomfort, no tear according to the MRI, clicking in the knee which was normal and no MRI findings.
The worker confirmed in his testimony that the clicking experienced in his right knee post July 29, 2009 injury was also present from November 2008 following the last right knee surgery.
The general practitioner assessment November 30, 2009 noted the worker is able to work 8 hours per day with lifting still limited as indicated in October, no kneeling and no ladder climbing.
There is no other medical information submitted in this claim.
The worker representative requested entitlement in this claim to lost time benefits from January to March, 2010. With this request it is noted that this issue was not reviewed by the operating area and there was no medical information submitted to substantiate the lost time during that time. As entitlement was limited by the operating area as indicated in the December 1, 2009 letter, there was no further review of entitlement in this claim to be made for the period January to March 2010..
The worker provided testimony in a straight forward manner. Through his testimony the worker provided details of the accident history, actually slipping downward, not falling backwards but slipping down the movable ladder.
The worker was taken to first aid and then taken to the hospital by ambulance.
The worker provided information as to his right knee condition from November 2008 to July 29, 2009. He indicated that he was cleared to work only up to 8 hours per day and could not do a 12 hour shift. The worker indicated he went through a recovery period and work hardening and achieved a gradual return to work to 8 hours per day. Prior to the second surgery, the worker was working 12 hour shifts; however, he has not been able to achieve an 8 hour return to work.
From March 2009, the worker was accommodated in 8 hour shifts doing his full regular work duties 8 hours per day. He received no treatment and no medication following the March 2009 return to work. The worker was on physiotherapy after the surgery until just before his March 2009 return to work and was doing home exercises following this.
On return to work and prior to the compensable injury, the worker indicated that he experienced improvement in his knee; however, had soreness in the knee by the end of his 8 hour shift. He did not participate any further in sports or any activities that would aggravate his right knee.
Following the July 29, 2009 work aggravation, the worker was on modified work until January 2010 when modified work was no longer available for him. The modified work included paperwork, bag certificates, monitoring lint, the work was sitting, not his regular job.
As of January 4, 2010, no further modified sitting duties were available for him. The worker sought further medical attention and further physiotherapy treatment followed by work hardening and a achieved a gradual return to work in March 2010.
The worker claimed that his knee from July 29, 2009 was worse than before the aggravation indicating he could not stand or walk greater than one hour and had constant pain in the knee. He would ice the knee hourly and elevate the knee. He sought no active treatment July 2009 to January 2010. There was no physiotherapy referral until January 2010.
The worker applied for sickness and accident benefits; however, this was denied as the sickness and accident benefit carrier indicated this was a work related injury. The worker did not appeal the denial. The worker claimed Employment Insurance (EI) Sick Benefits.
The worker, early in 2010, indicated that his knee improved with physiotherapy back to be able to work 8 hours per day but not more. The worker wears a brace which helps him at work and the brace was also worn prior to the accident. The worker could not recall if on the day of the July 29, 2009 right knee aggravation if the brace was worn.
The worker indicates the knee has now recovered to the July 29, 2009 level and it is no longer an issue for him beyond that. The worker has no physical precautions with his return to work. He wears a brace and is able to work 8 hours per day.
The worker confirmed that the follow-up appointment with the specialist October 2009 was a pre-arranged follow-up appointment post non-compensable surgery. The worker could not recall the bone scan done July 15, 2009 nor the information provided to the physician at that time.
The worker confirmed that in October/November 2009, he had no treatment and no medication and he continued to do modified work. The worker was assessed December 5, 2009 by CBI was to do work hardening and return to meaningful work.
Analysis
The worker clearly had a right knee problem pre-dating the July 29, 2009 aggravation.
The worker had returned to work March 2009 to restricted duties gradually and gradually to his regular work but was only able to achieve 8 hours per day, not the normal 12 hour shift. The brace was worn at work.
The medical attention sought early July 2009 and the bone scan done indicates that the worker had referral pain and degenerative changes in both knees. The worker, by this report of
July 13, 2009, was symptomatic prior to the non-compensable aggravation.
The worker had the allowance extended to him from July 29, 2009 to December 2009, allowed on an aggravation basis.
In cases where a worker has a pre-accident impairment and suffers a minor work related injury or illness to the same body part or system, the Workplace Safety and Insurance Board (WSIB) considers entitlement to benefits on an aggravation basis. Generally, entitlement is considered for the acute episode only and benefits continue until the worker returns to the pre-accident state.
Decision-makers should first determine entitlement in the claim. This was done. Then the policy is used where a relatively minor accident aggravates a significant pre-accident impairment. The intent is to limit entitlement to the injury that is work related. If a claim is allowed on an aggravation basis, the claim is paid for the acute episode only (temporary period of time) and entitlement ends when the worker’s condition returns to the pre-accident state.
In reviewing the medical information submitted post July 29, 2009 accident, the worker was not on any active treatment and not on any medication. The allowance of July 29, 2009 was accepted and the worker was limited with no heavy lifting, pushing/pulling, no prolonged standing/walking and no stairs/ladder climbing.
By the time the worker was seen by the specialist October 2008 (as the post non-compensable surgery follow-up), he continued to have a complaint of clicking in his right knee; however, this complaint pre-dated the July 29, 2009 aggravation and was not considered a significant finding.
The October 7, 2009 medical report provided no treatment. Exercise was to continue. There was no follow-up appointment made. The worker was also discharged from physiotherapy October 2009 indicating he had improved and had pain-free range of motion.
In reviewing the file evidence, I accept that the decision to limit entitlement in this claim as indicated in the December 1, 2009 letter was correct. The worker has a pre-existing right knee condition. The aggravation of July 29, 2009 was accepted correctly and as indicated by the specialist follow-up in October 2009, the worker’s condition was recovered.
The worker’s aggravation to his right knee entitlement ceased late in 2009.
The worker representative request for lost time entitlement, further treatment entitlement and gradual return to work entitlement from January to March 2010 are not accepted in this claim. The aggravation ceased late in 2009 as documented medically and there is no information to indicate that the problems the worker was experiencing in early 2010 were related to the July 29, 2009 aggravation. The worker’s further problems January to March 2010 are not accepted as related to the compensable accident but are more in keeping with the worker’s pre-accident right knee condition which was not compensable.
CONCLUSION
The limitation of entitlement in this claim and the aggravation of the right knee ceasing per the December 1, 2009 letter is upheld.
The worker’s objection is denied.
DATED October 28, 2010
N. Grunenko
Appeals Resolution Officer
Appeals Branch