Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20180020
Objecting Party: Worker Represented by: Representative Respondent: Employer (not participating)
Hearing: Hearing in Writing Heard by: Helen Shaw, Appeals Resolution Officer Dated: May 15, 2018
Issue
The worker is objecting to the denial of a non-economic loss (NEL) redetermination for his right knee, denied in the Case Manager decision of September 1, 2017.
Background
Injury History:
The worker was employed as a plumber. On September 4, 2009 he slipped on a wet floor, causing his right knee to hit the floor, resulting in a dislocation. Surgical repair of the extensor mechanism was required on March 4, 2010. He reached maximum medical recovery on February 26, 2011.
In a letter dated July 28, 2017, the worker representative requested a NEL redetermination for the right knee.
Date of last NEL Assessment:
January 27, 2012
Current NEL % and area of entitlement under review:
14% for right knee patellar chondrosis
Date of Case Manager’s Decision:
September 1, 2017
Case Manager’s Conclusion:
The Case Manager denied a redetermination because the medical information did not indicated a significant deterioration of the right knee below the previous NEL level.
Authority
Operation Policy
18-05-09 NEL Redeterminations, November 3, 2014
Analysis
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is not entitlement for a NEL redetermination. My reasons are explained below.
According to Operational Policy 18-05-09, the WSIB may consider a worker’s request for a redetermination of his existing NEL benefit provided that:
- The worker’s degree of permanent impairment was previously determined to be greater than zero;
- The worker’s condition has deteriorated significantly since the last NEL determination; and
- 12 months have passed since the worker’s last NEL decision.
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
Findings from the last NEL Assessment:
When the NEL benefit was rated, the worker was given a 5% discretionary rating for the repair of the extensor mechanism, and a possible medial meniscal cyst shown on an ultrasound on June 12, 2011. He also had abnormal motion in his right knee, with flexion limited to 85° and extension to neutral was 15°.
The NEL medical assessment summary report also noted the worker reported constant knife-like pain in his right knee, no swelling, a grinding sensation and could do only limited standing, walking, climbing and kneeling. He was using Tylenol #3 for pain. He also reported radiating pain in his lower leg muscle.
Current Medical Findings and Analysis:
A physiatrist report dated June 14, 2016 indicated the worker presented with an exacerbation of right knee pain. The worker reported that his right knee had a tendency to swell and give way when he walked. He had difficulty standing, walking and negotiating stairs. The clinical examination showed a small effusion of the right knee and it was warmer to palpation compared to the left side. There was crepitus during right knee range of movement, with flexion to 85° and almost full but painful extension. There was no ligament instability and the meniscus test was negative. When he was reassessed by the physiatrist on October 6, 2016, he continued to report instability in his right knee and had difficulty standing, walking and negotiating stairs.
The next report from the physiatrist dated June 28, 2017 noted right knee flexion was 80° and maximum extension to neutral was 10°. The physiatrist recommended a NEL redetermination, noting a decrease in range of motion. In her report dated July 10, 2017, she confirmed she last saw the worker on June 28, 2017. At that time he walked with an antalgic gait and had no effusion. She confirmed the range of motion values provided for the right knee in the report of June 28, 2017.
Comparison of Findings:
The worker representative provided an Appeal Readiness Form dated April 4, 2018, with an attached submission. He argued the worker’s right knee range of motion was further reduced, when the 2012 NEL rating was compared to the range of motion values provided in the physiatrist report of July 10, 2017. He also argued that report provided objective findings of reduced function.
The employer is not participating in the appeal and has provided no submissions on the issue before me.
I have compared the objective findings from the NEL assessment to the recent reports from the physiatrist and find they do not demonstrate a significant deterioration in the right knee. At the time of the NEL assessment, the worker reported constant pain in his right knee. He had a grinding sensation but no swelling. He was limited in his walking, standing and climbing. Those findings had not changed significantly when he was assessed by the physiatrist in 2016 and 2017. He continued to have difficulty standing, walking and climbing stairs but there was no ligament instability. He had some crepitus or grinding but no effusion was noted in the July 10, 2017 report.
Regarding the range of motion findings, his current right knee flexion of 80° is only slightly worse than the 85° of flexion at the NEL assessment. The change is not significant enough to result in an increase in the NEL benefit. At the NEL assessment his extension to neutral, or extension lag, was 15°. In June 2017 his extension to neutral was only 10°, which is an improvement in his right knee extension.
Noting there was little change in his objective functioning, the clinical findings and his range of motion values, I am unable to establish evidence of a significant deterioration to warrant a NEL redetermination.
Conclusion
I conclude there is no entitlement for a NEL redetermination.
The objection is denied.
Dated: May 15, 2018
Helen Shaw Appeals Resolution Officer Appeals Services