Worker v. Employer, 2015 CanLII 32079

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Number: 20150054 Decision Date: March 9, 2015

Objecting Party: Worker Represented by: Self-Represented

Respondent: Employer Represented by: Self-Represented

Hearing: Hearing in Writing Heard by: M. Barbeau, Appeals Resolution Officer

Issues

The worker objects to the decisions dated May 28, 2013 and June 26, 2013 which:

1. Denied physiotherapy;
2. Confirmed the whole person non-economic loss (NEL) quantum of 3% for a left knee meniscal tear/patellofemoral syndrome.

Background

On February 1, 2006, this worker fell and injured her left knee and elbow. The initial diagnosis was a soft tissue contusion to the left knee/patella. The worker had ongoing pain in the left knee and a subsequent MRI revealed a tear to the medial meniscus, which was then treated conservatively.

In a decision letter dated May 28, 2013, the operating area denied entitlement for a course of physiotherapy after determining a recent medical diagnosis was not medically compatible with the worker’s compensable injury.

In a decision letter dated June 26, 2013, the NEL Clinical Specialist confirmed the worker’s whole person NEL quantum of 3% for a left meniscal tear and patellofemoral syndrome.

The worker objected and her file was forwarded to the Appeals Services Division for further consideration.

Authority

Operational Policy Manual (OPM) documents

11-01-05 Determining Maximum Medical Recovery (MMR) 17-01-02 Entitlement to Health Care 18-05-03 Determining the Degree of Permanent Impairments 18-05-04 Calculating NEL Benefits

American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition revised, (the AMA Guides)

Analysis

File review

A doctor’s report dated November 24, 2006 reported the worker’s pain had almost disappeared with no recent effusion or catching/locking or giving way. The worker had a normal gait and full range of motion (ROM). An MRI confirmed a tear to the medial meniscus. Surgical intervention was not recommended.

A doctor’s report dated June 12, 2008 states the worker has occasional intermittent catching with sharp pain when running but was otherwise not significantly disabled.

A doctor’s report dated August 11, 2011 states:

• the worker has chronic left knee pain;
• enjoys running distance;
• has pain with running;
• pain in the anterior knee radiates to anterior thigh;
• has pes planus and hallux valgus; wears orthotics;
• mild effusion to knee;
• patella stabilizing brace prescribed

In a letter dated April 5, 2013, a doctor reported the following:

• normal gait and full ROM;
• mild joint effusion with lateral joint line tenderness;
• meniscus stress tests were negative;
• no ligament laxity or patellar instability;
• tenderness of the lateral patellar facet and lateral femoral condyle;
• slight tenderness of the proximal patellar tendon;
• testing was positive for ITB friction pathology;
• diagnosis ITB and patellar tendinopathy;
• to limit aggravating activities (running, stairs);
• prescribed Naproxen;
• advised to see physiotherapist for a course of physiotherapy and to use a foam roller daily.

Memo 36 dated May 28, 2013 states the worker has a new diagnosis, being ITB syndrome and a new course of physiotherapy was denied.

Physiotherapy

OPM document 17-01-02 “Entitlement to Health Care” states a worker is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.

I am of the view the worker’s ITB syndrome is not a responsibility of the claim, noting this diagnosis in not medically compatible with the injury diagnosis being left meniscal tear and patellofemoral syndrome.

I note the worker was also diagnosed with patellar tendinopathy recently which I find is medically compatible with the compensable diagnosis of pattelofemoral syndrome.

As a result of the above noted findings, I agree the worker should receive a course of physiotherapy for patellar tendinopathy as recommended by the doctor.

NEL quantum

OPM document 18-05-03 “Determining the Degree of Permanent Impairment” states:

The prescribed rating schedule is the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition revised, (the AMA Guides).

I reviewed the NEL Evaluation dated June 25, 2013. As there was full ROM, there was no impairment awarded for abnormal motion. The worker was provided a 7% impairment for the left knee as the result of the torn medical meniscus, in keeping with Table 36 (Page 61) of the AMA Guides.

The 7% left knee impairment must then be adjusted to a whole person impairment as indicated in the AMA Guides. Table 46 on page 72 of the AMA Guides converts a 7% impairment for the lower extremity to a 3% whole person impairment.

Following a detailed review of the NEL Evaluation, the medical file and AMA Guides, I confirm the worker’s whole person NEL award of 3%.

Conclusion

The worker’s objection is allowed in part:

1. The worker is entitled to a course of physiotherapy for patellar tendinopathy;
2. The whole person non-economic loss (NEL) quantum of 3% for a left knee meniscal tear/patellofemoral syndrome is confirmed.

Dated: March 9, 2015

M. Barbeau Appeals Resolution Officer Appeals Services Division