WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150084
DECISION DATE: June 22, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Self-Representative
RESPONDENT: Employer
REPRESENTED by: Self-Representative
HEARING: Hearing in Writing
HEARD by: H. Mohamed, Appeals Resolution Officer
ISSUE
The worker is requesting a reassessment of her permanent disability (PD) award for the right knee.
BACKGROUND
On December 19, 1989, this then 30 year old labourer was climbing up the side ladder of a sander when the ladder broke and she fell injuring her right knee. The worker underwent an arthroscopic examination in July 1990 but no tear was seen. There was however evidence of a hypertrophic fat pad and transverse plica which was excised.
The worker left her employment in late 1991 and moved to British Columbia (BC) where she was referred to Dr. ‘P’ (orthopaedic surgeon) by Dr. ‘T’ for her ongoing right knee complaints. Dr. P performed another arthroscopic examination on May 27, 1992 and concluded that the worker’s symptoms were due to patellar instability and performed a retinacular release.
On January 4, 1993, the worker underwent a pension examination in BC at the request of the WSIB. Based on the results of this examination, the worker was granted a 5% PD award. As per the worker’s request, this was paid as a lump sum payment.
There was no activity in the worker’s claim file until August 2013, when the worker’s family doctor submitted a report to the WSIB requesting that the worker’s PD award be reassessed. An MRI indicated that there was evidence of a medial meniscus tear however the worker was told that this could not be operated on.
In the decision dated July 15, 2014, the Case Manager (CM) concluded that the medical evidence on file did not support that the worker was below her 5% PD level. The CM also concluded that due to 20 year gap in medical, it could not be determined that her current issues were related to the workplace injury.
The denial of the PD assessment is now before me.
AUTHORITY
18-07-01 – Determining the Degree of Disability
18-07-02 – Ontario Rating Schedule
Workplace Safety and Insurance Appeals Tribunal (WSIAT) Medical Discussion Paper titled “Knee Conditions and Disability” by Dr. Cameron and Dr. Tile
ANALYSIS
After carefully reviewing the medical evidence on file, I am not persuaded that the worker is below her previous PD level. In arriving at my decision I have considered the information in the claim file, the worker and employer submissions as well as the relevant sections of the Workers’ Compensation Act (the Act) and the appropriate Operational Policies.
I have reviewed the worker’s submission dated June 2, 2015 addressed to the Appeals Services Division. The worker has argued that her condition has gotten worse over the years and she feels that this warrants a PD reassessment. She has advised that no surgeon will do any further surgery on her because she has already had two procedures done. She has advised that she may to the USA to get a second opinion. The worker has also provided witness statements from her current employer and husband, both of whom have attested to her deteriorating condition.
Policy 18-07-01 titled “Determining the Degree of Disability” states that if a permanent disability worsens, the WSIB may reassess the worker’s disability. Additional disability developing subsequently is determined by physical examinations which may be made from time to time. The pensions awards considered include both monthly awards and previously commuted lump sum awards.
WSIB policy 18-07-02 adopts a schedule of benchmarks designed to estimate the impact of specific injuries on the earning capacity of an average unskilled worker. With respect to knee injuries, the Ontario Rating Schedule (ORS) estimates that total immobility of the knee corresponds to a 25% impairment of earnings capacity, whereas knee flexion limited to 90 degrees corresponds to a 5% impairment.
In reviewing the original pension assessment report from 1993 the worker’s range of motion (ROM) in the right knee was noted to be from 0-135 degrees. The report noted good symmetrical movements of her hips, knees, ankles and toes. Patellar compression was reported to be uncomfortable in both knees with quadriceps contraction on the right. Crepitus was palpated under the right kneecap upon flexion, worse with resisted flexion compared to the left. There were no other abnormalities noted and the McMurray’s test was negative. Muscle tone and strength were also good. Dr. Kanji concluded that the worker’s symptoms were compatible with anterior compartment pathology in the right knee. Based on this assessment, the worker was granted a 5% PD award.
Dr. ‘F’’s report of August 19, 2013 requested a pension reassessment on the basis that the worker’s right knee condition had worsened. He noted that the worker exhibited a positive McMurray test with tenderness along the medial joint line with some decreased flexion. An MRI report from June 2013 noted a small horizontal medial meniscus tear of the posterior horn.
Dr. ‘C’’s report of November 13, 2013 noted that the worker has patellofemoral crepitus however her ROM was from 0-135 degrees with no joint effusion. He recommended physiotherapy.
The worker was subsequently seen by Dr. ‘D’ on April 8, 2014 for a second opinion. He noted that on examination the worker was in no apparent distress and there was no evidence of effusion or tenderness. He noted that ROM was quite good from 0-125 degrees. He did not recommend surgery and felt the worker was having chronic pain issues and some early degenerative changes. He recommended therapy and a cortisone injection.
The worker’s family doctor wrote to the WSIB again on May 6, 2014 requesting a PD reassessment. In this report he noted that the worker’s pain is constant and worse with walking or kneeling as well as reports of stiffness. He noted that the worker’s ROM was from 0-100 degrees.
As noted above, the pension rating estimates the relationship between the worker’s injury and the benchmark injuries of total immobility of the knee (25%) and knee flexion limited to 90 degrees (5%). In practice decision makers consider range of motion as well as evidence of disability such as ligamentous stability, crepitus, joint pressure and fluid in the knee, leg length discrepancies, muscle function, and gait. Although I accept that the worker’s symptoms have worsened over the last few years, pain and discomfort is not assessed in and of itself by the ORS.
Although the MRI confirmed a small horizontal tear in the medial meniscus, this tear appears to be of a degenerative nature and was not caused by the 1989 accident. The WSIAT Medical Discussion Paper entitled “Knee Conditions & Disability,” by Orthopaedic Surgeons Dr. Cameron and Dr. Tile, has the following to say with respect to meniscus tears:
There are two general types of meniscal tears; acute tears, which usually occur in younger people after trauma, and degenerative tears, which typically occur in older people with minimal or no trauma.
Acute meniscal tears in young people may be isolated or associated with complex ligament injuries. These tears are usually longitudinal and insubstance. If symptomatic and at the periphery, these tears may be amenable to repair… These tears as noted on MRI and at arthroscopic surgery usually have longitudinal or radial patterns. A fully displaced tear may displace into the centre of the joint, such as a bucket handle, and may cause the joint to lock (inability to straighten…)
Degenerative tears…usually in older people, are often associated with osteoarthritis. It is often difficult to determine whether the symptoms are due to the meniscal tear or the associated arthritis. These tears are usually horizontal, flap or complex types. They are found on a high percentage (up to 90%) of MRIs in people with known osteoarthritis of the knee. There is no relationship to a history of trauma. (Bold emphasis added).
I find the nearly 20 year gap in medical continuity to be noteworthy. This leads me to conclude that the last arthroscopic surgery and retinacular release conducted by Dr. P to have been successful in mitigating the worker’s symptoms from the compensable work related injury. The worker noted in her submission that Dr. F has been her family doctor since 2003 but there are no medical records provided between 2003 and 2013 to support a gradual increase in knee pain. In memorandum 69 dated September 25, 2013 the worker advised the Case Manager that her knee started acting up “2-3 months ago.” There was no mention in this memorandum that the worker has been having ongoing pain for the last 20 years.
In my view, the worker’s current knee symptoms, which according to the file record started sometime in mid-2013, are a product of degenerative pathology more so than an exacerbation of her compensable work related condition.
Accordingly, there is no entitlement to a PD pension reassessment at this time.
CONCLUSION
Based on the foregoing reasons, I conclude that the worker does not have entitlement to a pension reassessment.
The worker’s objection is denied.
DATED: June 22, 2015
Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division