WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150007
DECISION DATE: January 26, 2015
OBJECTING PARTY: Employer
REPRESENTED by: Employer Representative
RESPONDENT: Worker
REPRESENTED by: Not Represented
ISSUES
The employer, through their representative, objects to the following decisions:
- Initial Entitlement to pigmeted villonodular synovitis (PVNS)
- Denial of Second Injury and Enhancement Fund (SIEF) cost relief
HOW THE ISSUES ARISE
On August 17, 2012, this then 52 year old room attendant at a hotel was standing on the edge of a bath tub when she slipped, twisting her right ankle. The claim was allowed initially for a right ankle sprain.
The MRI scan of November 6, 2012 described a significant tibiotalar joint effusion with synovial thickening and inflammatory change in the anterior fat pad. There was no evidence of a tendon or ligamentous injury. A further MRI scan report of April 4, 2013 described findings of a synovial-based process in the anterior and anterolateral recess of the ankle joint suggestive of PVNS. The worker was subsequently referred to an oncologist who confirmed the diagnosis as PVNS and carried out surgery to remove the tumour on November 14, 2013.
The Case Manager (CM) denied entitlement to the diagnosis of PVNS after obtaining a medical opinion. Upon receiving updated medical reports from the oncologist, the file was referred back to the medical consultant and this time the medical consultant opined that entitlement to the PVNS and the subsequent surgery was allowable. Based on this opinion, the CM granted entitlement to this condition as outlined in the letter dated November 25, 2013. The employer representative objects to this decision.
The employer representative requested SIEF cost relief but this was denied by the CM as per the January 31, 2014 decision on the basis that there was no evidence of a pre-existing condition. The employer representative objects to this decision as well.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
11-01-01 - Adjudicative Process
11-01-02 - Decision-Making
11-01-03 - Merits and Justice
15-02-01 - Definition of an Accident
14-05-03 - Second Injury and Enhancement Fund (SIEF)
RESOLUTION METHOD AND PROCESS
The employer representative requested a hearing in writing.
ASSESSMENT OF THE EVIDENCE
In arriving at my decision I have considered the information in the claim, the representative’s submissions as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
1. Does the worker have initial entitlement to PVNS?
After carefully weighing the evidence, I am satisfied that entitlement to PVNS was correctly granted and I see no reason to alter the decision made by the operating area.
In making decisions regarding the work relatedness of a claimed injury WSIB decision makers rely on the policy “11-01-01 Adjudicative Process”. A portion to the policy is outlined below:
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system." An allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
Decision-makers may consider the following when examining proof of accident,
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the accident date and the date the worker stopped work?
Was there any delay in the onset of symptoms or in seeking health care attention?
If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.
According to Policy “15-02-01 Definition of an accident”, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of chance event is an identifiable unintended event which causes an injury. An injury itself is not a chance event. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties.
The file record confirms that the worker suffered a twisting (inversion) type injury to her ankle which resulted in pain and swelling. The initial diagnosis was that of a right ankle strain.
The worker underwent an MRI on November 6, 2012 which noted that the flexor, extensor and peroneal tendons were intact. The Achilles tendon was also normal. The MRI did show significant tibiotalar joint effusion associated with synovial thickening and inflammatory change in the anterior fat pad. There was also evidence of subchondral cystic changes posteriorly in the talus.
The worker was then assessed by a doctor at the WSIB Foot and Ankle Speciality Program on December 6, 2012. The worker complained of pain in the lateral aspect of her right ankle as well as intermittent sharp pain across the anterior aspect of the right ankle joint line. The worker was diagnosed with effusion of her right ankle post sprain. Therapy was recommended. At the follow-up assessment of February 28, 2013, the doctor recommended another MRI be done in order to rule out an osteochondral bar as the worker’s pain had not subsided and she was now complaining of pain deep in the medial side of her foot.
The MRI report of April 5, 2013 noted a synovial based process in the anterior and anterolateral recess of the joint which could be due to florid synovitis however PVNS could be possible. There was evidence of prior partial disruption of the anterior talofibular ligament and prior low grade sprain of the deep portion of deltoid.
In his June 13, 2013 report the doctor notes that the worker should be referred to an oncologist as in his opinion the PVNS was not related to her injury and most likely pre-existing.
Following this last report from the doctor at the Specialty Program, the CM referred the file to a medical consultant (MC) for an opinion on compatibility. The MC reviewed the claim file and noted the following in his memorandum dated July 5, 2013:
“PVNS is an inflammatory joint disease characterized by overgrowth of the joint lining called the synovium. It often affects the hip or knee, but the ankle, shoulder, elbow and other joints may be involved. It is idiopathic. Urgent referral to an orthopaedic oncologist is recommended. Surgery is often used to treat it, but in about 50 per cent of cases PVNS returns…The synovial findings on the MRI scan reports that are suggestive of PVNS are likely not due to the compensable injury but are due to an idiopathic condition.”
The oncologist, in his report of September 30, 2013, notes that the another MRI of the right ankle showed a large mass arising from the joint capsule involving the joint space and also causing erosion of the adjacent anterior tibia and talar neck. The MRI also showed a smaller mass in the posterior aspect of the ankle situated between the peroneal tendon and the flexor halluces longus tendon, which was smaller, but had similar signal characteristics. He noted that the worker would require both an anterior and posterior synovectomy. With respect to causality, the oncologist provided the following comments:
“It is important to understand that prior to this injury she never had any pain in her ankle. This needs two possible considerations; one is that the PVNS developed subsequent to this trauma, as this trauma is known to often develop in a posttraumatic mode. Alternatively, the PVNS could have pre-existed the injury and been asymptomatic; however, if that is the case then the injury must have exacerbated the tumour as her symptoms only started after her injury and have persisted and worsened. As a result, I think that WSIB would have to accept at least some responsibility for her current situation.”
Following this report, the CM referred the file back for another medical opinion. A second MC reviewed the file on October 28, 2013 and opined that the workplace injury most likely exacerbated her asymptomatic condition and that there is no basis to allow surgery or the resulting loss of earnings (LOE) benefits. However on November 7, 2013 the second MC provided an addendum to his previous memorandum as he had not reviewed the oncologist’s September 30, 2013 report. After reviewing this report as well as the relevant medical literature he concluded the following:
“Based on a review of the oncologist’s letter and this MC’s examination of the relevant medical literature, this MC would conclude that PVNS can arise as a result from trauma such as the injury in this claim (twisting injury to the right ankle). It is therefore the opinion of this MC that compatibility between the mechanism of injury in this claim and the development of PVNS is medically plausible. As such, there appears to be a medically reasonable basis to allow the proposed surgery under this claim.”
Based on this opinion, the operating area granted entitlement to the surgery as well as loss of earnings (LOE) benefits.
I have reviewed the argument made by the employer representative in his November 3, 2014 letter attached to the Appeals Readiness Form. He argues that the appropriate test for entitlement is proof on a balance of probabilities. He argues that terms such as “could have occurred,” “can arise” and “medically plausible” indicate that the injury is possible but this is not the correct test.
The representative is well aware that the appropriate test for entitlement is whether the compensable work-related factors which are alleged to be related to a condition can be demonstrated, on a balance of probabilities, to have contributed significantly to the development of the condition. The “significant contribution test” recognizes that there are very often multiple factors that contribute to a worker’s disability. It is not necessary that the work-related accident be the sole cause of the subsequent disability. However, the work-related accident must be a factor that makes a significant contribution to the subsequent disability.
I believe that entitlement in this case exists on the balance of probabilities and that it is more likely than not that the workplace injury either caused or aggravated the PVNS. This is based on the fact that there is no evidence whatsoever to suggest that the worker had any right ankle symptoms or problems prior to the workplace injury. This was confirmed by the family doctor in his letter dated November 27, 2014. There is no dispute that a work related injury occurred and the evidence supports that the worker complained of right ankle pain and swelling on a consistent basis since the accident date. This satisfies four of the five criteria outlined in policy 11-01-01.
With respect to the final criteria of compatibility, I place significant weight on the opinion of the oncologist, who is a well-respected orthopaedic oncologist, when he states that PVNS can be caused by trauma. The second MC in his addendum acknowledged that this type of tumour can be caused by trauma and also referenced a medical source (Journal of Rheumatology 2004, Volume 31, pages 1659-62) to support this notion. I note that the employer representative did not present any independent medical opinion of his own to counter the opinions expressed by both the oncologist and the second MC. I realise that the initial MC, as well as the doctor at the Specialty Program, did not see compatibility in the diagnosis presented and argued that the condition was idiopathic. I do not dispute this rationale since most of the medical literature supports the notion that PVNS has no underlying cause. However this does not mean that it cannot be caused by trauma. The oncologist explains that trauma can cause this condition and the second MC was also able to cite a medical document to support this position.
Based on the totality of the evidence before me, I am satisfied that the worker’s PVNS was either caused by or aggravated by her compensable work place injury. As such, I see no reason to rescind entitlement in this case.
2. Is the employer entitled to SIEF cost relief?
The representative argues that if entitlement remains, then the employer should be entitled to SIEF cost relief of 90 per cent. The representative articulates that the development of PVNS is extremely rare and the condition arose as a result of the worker’s unique biology or some other unknown factor which would not be the responsibility of the employer.
Policy 14-05-03 states that if a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF fund.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
The above policy defines the severity of accident as to whether it is expected to cause a non-disabling or minor disabling injury (minor accident), expected to cause a disabling injury (moderate accident) or whether it is expected to cause a serious disability with probable permanent disability. It should be noted that the actual injuries are not considered but rather the extent of disability the mechanics of the accident would reasonably be expected to cause.
When looking at the severity of accident, one has to look at whether the same mechanics or weights would cause a similar injury in an average worker, rather than this specific individual. An average worker would, in my view, be expected to suffer a disabling injury from slipping on water while standing on the edge of a bath tub putting up a shower curtain and therefore I agree with the operating area and have classified the accident severity as moderate in nature.
With respect to the significance of the pre-existing condition, the CM felt there was no evidence to support that the PVNS was a pre-existing condition as it could have been caused by the accident itself.
As noted above, the oncologist provides two possibilities with respect to how the PVNS developed. It was either caused by the inversion injury as described by the worker or it was already present and the workplace injury aggravated or accelerated the process. There is no doubt that PVNS is a rare condition and the vast majority of people who suffer twisting or inversion type injuries to their knees or ankles would not end up developing PVNS.
There is no way to know whether this condition was caused by the accident or whether it pre-dated the accident. In the absence of evidence to support that the worker was pre-disposed to developing PVNS or that this condition existed but remained dormant, I see no basis for granting any cost relief. Although I appreciate the argument presented by the worker representative that this condition is rare and that the worker must have been pre-disposed to this condition I simply have no proof to support this. I note that the worker previously fractured her left ankle 30 years ago and also sprained her left ankle at work in December 2009. This injury resolved with no issues and the worker missed no time from work. If the worker was pre-disposed to developing PVNS, then it can be argued that she would have had a similar reaction after her previous fracture or after the above claim but this did not happen.
Based on my analysis above, I am satisfied that the operating area made the correct decision and I see no basis for granting cost relief in this claim.
CONCLUSION
I conclude:
- Initial entitlement remains in order.
- There is no evidence to support the presence of a pre-existing condition that has either enhanced or prolonged this claim and therefore the employer is not entitled to SIEF cost relief.
The employer’s objection is denied.
DATED: January 26, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division