APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230022
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
REPRESENTED by:
not represented
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
m. haughton, appeals resolution officer
September 20, 2022
ISSUE
The worker is objecting to the Case Manager’s (CM) decision dated September 23, 2021, which denied ongoing entitlement to the right knee, including entitlement to loss of earnings (LOE) benefits and a permanent impairment, subsequent to October 19, 2018.
BACKGROUND
In early May 2018, this diamond driller reported an onset of right knee pain, which they attributed to performing their work duties. The worker indicated they spent a significant amount of their shift standing and walking, often on uneven terrain. The worker stated that April 30, 2018 was a particularly heavy work day and on May 1, 2018, the pain in their knee was pronounced. The worker stopped working and sought medical attention on May 8, 2018.
A Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated March 25, 2021, allowed entitlement to a right knee injury as a gradual onset disablement, specifically a longitudinal tear involving the posterior horn of the medial meniscus.
In implementing the WSIAT decision, the CM determined the worker was entitled to LOE benefits from May 8, 2018 to October 19, 2018. The CM determined the worker reached maximum medical recovery on October 19, 2018, with no evidence of an ongoing work-related right knee impairment. The CM denied entitlement to benefits for the right knee subsequent to October 19, 2018.
The worker’s objection to the CM’s decision dated September 23, 2021, forms the basis for this appeal.
AUTHORITY
Workplace Safety and Insurance Act, 1997 (The Act), Section 46
Operational Policy Manual
Published
Policy 11-01-05 Determining Permanent Impairment
November 3, 2014
Policy 18-03-04 LOE Benefits for Workers 55 Years of Age or Older
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker has entitlement to a permanent impairment of the right knee for the accepted meniscal tear. I find the worker does not have entitlement to loss of earnings benefits subsequent to October 19, 2018. My findings and analysis are provided below.
On the Appeal Readiness Form dated May 5, 2022, the representative noted that it was their contention the worker had never recovered from their compensable injury. As noted in memo A0022, the worker representative advised the CM the worker was claiming entitlement to full loss of earnings benefits for two years post-date of injury, as they had not been able to resume employment following the injury.
Following the work-related injury, the worker sought medical attention and they were referred for x-rays. X-rays of the bilateral knees completed on May 11, 2018, showed evidence of mild degenerative changes in the bilateral knees.
A clinical record dated May 17, 2018, noted the worker had swelling in the right knee; however, their range of motion was intact. The worker’s anterior cruciate ligament and posterior cruciate ligament were noted to be intact; however, the worker had joint line tenderness. The worker was diagnosed with a right knee meniscal tear.
A Health Professional’s Report (Form 8) dated June 10, 2018, indicated that meniscal pathology was queried. The worker was noted to be able to return to modified work on June 11, 2018.
An MRI of the right knee completed on June 24, 2018 showed evidence of a low-grade partial thickness tear of the anterior cruciate ligament (ACL), a low grade partial thickness tear of the medial collateral ligament (MCL), a medial meniscal tear, mild osteoarthritis of the medial compartment, mild chondromalacia patella and prepatellar bursitis.
A clinical record dated July 4, 2018, indicated the worker had increased pain and numbness in their bilateral legs. The MRI findings for the back were reviewed; however, the worker indicated they were not willing to proceed with a surgical consultation. The worker subsequently reported mild improvement on July 9, 2019.
On August 3, 2018, the worker was referred for physiotherapy. A Functional Abilities Form (FAF) dated August 3, 2018, indicated the worker was unable to return to work. The worker was noted to be able to walk 100 metres and stand for 30 minutes: however, they were unable to weight bear.
On January 18, 2019, the worker contacted the medical clinic to request a copy of their MRI. The worker was advised they needed a referral to an orthopaedic clinic.
Clinical records dated July 4, 2019 and September 23, 2019, noted the worker was seen for chronic right knee pain.
A clinical record dated March 12, 2020 noted the worker “felt good” and they were walking and biking. The worker indicated they had a right knee injury in 2018 and diagnostic imaging of the knee had been completed. The worker reported they were semi-retired. The worker was diagnosed with osteoarthritis of the right knee.
On July 13, 2021, the medical clinic noted the worker had been “banned” from their locations and all prior clinical records had been provided.
A medical report dated January 19, 2022, indicated the worker was seen at the request of the worker representative for their right knee. On examination, the worker demonstrated an intact anterior cruciate ligament, posterior cruciate ligament and lateral collateral ligament with no pain on stress tests of these ligaments. The worker’s range of motion was noted to be acceptable with the exception of limitations to flexion beyond 90 degrees. There was also evidence of chondromalacia with crepitus of the patella through range of motion and the worker had tenderness across the medial and lateral tibial plateau. The worker reported they had limitations secondary to pain with minimal tasks such as taking out the trash and walking greater than 200 metres.
As outlined in Policy 11-01-05 Determining Permanent Impairment, recovery from the
work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery (MMR) is reached. To determine that a permanent impairment exists, the decision-maker must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.
In determining when MMR has been reached decision-makers consider whether:
- recent clinical evidence indicates any change in the work-related injury/disease
- the worker is receiving or will receive treatment that is likely to improve the work-related injury/disease, or
- the worker is receiving treatment or using medication to maintain the current level of recovery.
Once MMR has been determined, decision-makers consider where there is an ongoing impairment based on the clinical evidence.
Under Section 46(1) of the Workplace Safety and Insurance Act (The Act) a worker who suffers a permanent impairment as the result of a workplace accident is entitled to a Non-Economic Loss (NEL) award as compensation for that permanent impairment. The Act defines impairment as a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. A permanent impairment is an impairment that continues to exist after the worker reaches maximum medical recovery.
In order for me to consider whether the worker has a permanent impairment, the impairment must qualify on the basis that it involves a “physical or functional abnormality or loss (including disfigurement)” which impairs the worker’s ability to carry on as before. It is important to keep in mind that neither an injury nor the existence of pain is sufficient to establish a permanent impairment.
I note the worker was diagnosed with a right knee longitudinal tear involving the posterior horn of the medial meniscus. This diagnosis was confirmed with imaging and accepted under this claim. The CM determined the worker reached maximum medical recovery on October 19, 2018. I note the worker representative did not raise any concerns with the MMR date the CM selected. I accept the worker reached MMR on October 19, 2018.
In review of the medical information on the claim file, there is no indication the worker’s right knee meniscal tear resolved. The medical information supports the worker’s right knee remained symptomatic subsequent to October 19, 2018. I find the accepted meniscal tear represents a physical abnormality which impaired the worker’s ability to carry on as before. I find there is evidence of a permanent work-related impairment of the right knee. As a result, I find the worker is entitled to a NEL assessment for the right knee.
Policy 18-03-04, LOE Benefits for Workers 55 Years of Age or Older, states that a worker who has a loss of earnings as a result of the injury is entitled to loss of earnings (LOE) benefits beginning when the loss of earnings begins. If the worker is 63 years of age or older on the date of injury, LOE benefits continue until the earliest of:
the day the loss of earnings ends
the day on which the worker is no longer impaired as a result of the injury, or
two years after the date of injury.
In this case, the worker is claiming entitlement for LOE benefits two years after the date of injury. The worker received LOE benefits from May 8, 2018 to October19, 2018; however, the CM denied entitlement to LOE benefits subsequent to October 19, 2018.
In review of the medical information, I note the clinical record dated March 12, 2020 indicated the worker reported they “felt good” and they were walking and biking. The worker also reported they were “semi-retired”. While the clinical records support the worker had some ongoing right knee pain, there is limited medical information to support the worker was totally disabled or that the worker required ongoing functional precautions for the right knee. No evidence has been provided to support the worker attempted to return to work or that their accepted right knee injury precluded them from employment. I find there is insufficient evidence to support the worker’s loss of earnings subsequent to
October 19, 2018 resulted from the work-related injury. As a result, I find the worker is not entitled to loss of earnings benefits subsequent to October 19, 2018.
CONCLUSION
The worker’s objection is allowed in part.
The worker has entitlement to a NEL assessment for the right knee longitudinal tear involving the posterior horn of the medial meniscus.
The worker does not have entitlement to loss of earnings benefits subsequent to October 19, 2018.
DATED September 20, 2022
M. Haughton
Appeals Resolution Officer
Appeals Services Division