APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230117
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer (not participating)
REPRESENTED by: self
HEARING: HEARING IN WRITING
HEARD by: l. mansueti, appeals resolution officer DATED: SEPTEMBER 29, 2023
ISSUE
The worker objects to the Case Manager (CM) decision dated May 16, 2023, suspending the payment of ongoing loss of earnings (LOE) benefits due to a post-accident non-work-related change in circumstances, effective May 4, 2023.
BACKGROUND
On May 6, 2020, the worker was pushing a garbage trolley out of a garage and they inadvertently pressed the down controls instead of up. The garage door collapsed on the worker’s leg while they attempted to run out. The worker was working as a Warehouse Manager at the time of injury, and they had worked with the employer for approximately 4 years.
Initial entitlement was accepted for the left lower extremity for health care and LOE benefits. Following an assessment at the WSIB Lower Extremity Specialty Program, entitlement was expanded to include fracture dislocation to the left knee including complete tear of the anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), medial collateral ligament (MCL), and lateral collateral ligaments (LC); vascular injury of the left knee requiring intervention in the form of popliteal artery repair and subsequent 4 compartment fasciotomy, complete fibular nerve injury, T6 and T7 thoracic spine fractures, common fibular nerve injury with left foot drop, left knee dislocation with residual anterior subluxation, left knee complete rupture of the proximal attachment of the gastroc medial and lateral tendons, and left knee osteochondral fracture with loose body.
The worker was referred for Return-to-Work (RTW) services in April 2021. The worker was determined to be partially impaired, and capable of returning to suitable modified work. The employer did not have any modified work available within the worker’s restrictions. In December 2022, the worker received entitlement to benefits for psychotraumatic disability. The accepted diagnoses included Posttraumatic Stress Disorder (PTSD) and depression. RTW services were closed effective January 17, 2023, as the worker was unable to participate in RTW activities due to their level of impairment owing to their compensable psychotraumatic disability. The worker continued to receive full LOE benefits while they participated in health care treatment through the Community Mental Health Program (CMHP) and WSIB Lower Extremity Specialty Program.
On December 27, 2022, the worker fell and was taken to hospital. They were admitted to hospital, and they underwent a hip replacement surgery on January 1, 2023. The worker developed a post-surgery infection and pneumonia. They required additional time to recover, and they were unable to participate in health care treatment at CMHP or attend the WSIB Lower Extremity Specialty Program.
The decision letter dated May 16, 2023 communicated the worker’s LOE benefit entitlement was extended for 4 weeks from April 5, 2023 to May 4, 2023. Ongoing LOE benefits were not supported on the basis the worker was unable to participate in health care measures for their compensable impairments due to a non-work-related change in circumstances. The worker was advised to contact the operating area once they were medically cleared to resume treatment for their work-related injuries. The worker objected to the decision dated May 16, 2023. The reconsideration letter dated August 15, 2023 upheld the decision dated May 16, 2023. The worker continued to object to the May 16, 2023 decision, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Operational Policy Manual
Published
15-05-01 Resulting from Work-Related Disability/Impairment 15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021 April 9, 2021 September 1, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker is entitled to the reinstatement of LOE benefits effective May 4, 2023.
Review of the Evidence
Following the workplace accident, the worker was taken to Hospital X Emergency Room (ER). It was determined the worker had a left knee dislocation, and a vascular injury. The worker was transferred and admitted to Hospital Y for further assessment. They underwent multiple surgeries between May and June 2020.
On July 14, 2020, Dr. D. Wasserstein, Orthopaedic Surgeon, and H. Hill, Physiotherapist, assessed the worker at the WSIB Lower Extremity Specialty Program. The report indicated the worker had the following occupational diagnoses:
Fracture dislocation left knee including complete tear of the ACL, PCL, MCL and LCL
Vascular injury of the left knee requiring intervention in the form of popliteal artery repair and subsequent 4 compartment fasciotomy
Complete fibular nerve injury with ongoing foot drop
Multiple thoracic spine fractures
The worker’s prognosis was poor. The worker was recommended to participate in work conditioning through the Enhanced Functional Treatment (EFT) Program. It was also recommended the worker undergo an assessment at the WSIB Back and Neck Specialty Program to assess and manage their thoracic spine fractures, as well as undergo electromyography (EMG) studies. The worker was advised to remain off work.
The EMG studies dated September 1, 2020, showed evidence of severe left common fibular nerve injury with no evidence of reinnervation to the tibialis anterior and very early reinnervation to the fibularis longus muscle.
On September 17, 2020, Dr. Wasserstein, Dr. J. Larouche, Orthopaedic Surgeon, and C. Renteria, Physiotherapist, at the WSIB Back and Neck Specialty Program, assessed the worker. The worker was expected to achieve a full functional recovery with respect to their thoracolumbar spine within the next 3 to 6 months. The worker was advised to participate in therapy at the EFT Program, and they were also advised to remain off work due to the extent of their medical restrictions. The worker was reassessed at the WSIB Lower Extremity Specialty Clinic on September 17, 2020, and their diagnoses were updated to include:
Left knee dislocation
Left knee complete tear of the ACL, PCL, LCL, popliteus, lateral capsule
Left knee partial tear of the MCL
Complete rupture of the proximal attachment of the gastroc medial and lateral tendons
Left knee osteochondral fracture with loose body
T6-7 vertebras hyperextension fracture
The worker was medically advised to remain off work due to the extent of their medical restrictions.
On October 5, 2020, the worker commenced therapy at the EFT Program. The worker continued to be followed at the WSIB Lower Extremity Specialty Program and the WSIB Back and Neck Specialty Program. The worker was advised to continue with treatment at the EFT Program and remain off work. The EFT Program progress reports indicated the worker was making slow but steady progress. The WSIB Lower Extremity Specialty Program report dated March 23, 2021 indicated the worker had temporary medical/work restrictions. A RTW Specialist confirmed with the employer that there was no modified work available within the worker’s restrictions, thus the worker continued to receive full LOE benefits.
The WSIB Lower Extremity Specialty Program report dated June 25, 2021 indicated the worker may be a candidate for left total knee replacement with constrained implants. It was noted the worker’s pre-existing medical issues involving low white blood cell count and inefficiencies in liver function were complicating factors for possible surgical intervention. The report indicated these medical issues needed to be addressed first, and the left knee surgery would be considered second in priority. Dr. S. Tomescu, Orthopaedic Surgeon, assessed the worker on July 26, 2021, and determined they were not a candidate for multi-ligament reconstruction; however, they will likely require a knee replacement at some point in the future. The worker was discharged from the EFT Program on November 22, 2021 after participating in 8 treatment blocks. The worker was advised to continue with a home exercise program.
Dr. B. Angilletta, the worker’s family doctor, submitted a report dated March 2, 2022, indicating the worker was unable to participate in any retraining or return to work in any capacity. Dr. Angilletta indicated the worker was suffering from severe depression and the effects of their left leg traumatic injury.
The worker returned to the WSIB Lower Extremity Specialty Program for a reassessment on March 8, 2022. Dr. Tomescu recommended against doing a total knee replacement. The worker was advised to continue independent stretching and strengthening, and follow-up with their family physician for blood work and monitoring of their iron supplementation therapy due to indications of anemia and a low platelet count. The worker was advised to return for a reassessment in 6 months’ time.
The worker commenced psychological treatment with Dr. G. Ilacqua, Psychologist, on May 25, 2022. The CMHP assessment form indicated the worker was diagnosed with PTSD, depression, Somatic Symptom Disorder and a sleep disorder. Dr. Ilacqua indicated the worker was unable to engage in RTW activities from a psychological perspective. The worker received entitlement for a psychotraumatic disability under this claim, and they continued to participate in psychological treatment with Dr. Ilacqua.
On November 17, 2022, the worker returned to the WSIB Lower Extremity Specialty Program for a reassessment. The worker indicated they had a fear of falling. They reported they sustained 2 falls since July 2021. They slipped off the bed in December 2021, and fell again more recently in October 2022. The worker was unable to get up and they needed to wait until their spouse got home to provide assistance. Dr. Tomescu indicated the worker was a candidate for left sided total knee replacement surgery; however, it was noted they had several active medical issues that needed to be optimized prior to any surgical intervention. The worker was recently diagnosed with diabetes and their blood sugar levels were elevated. It was also indicated the worker was being monitored and treated for iron deficiency. Dr. Tomescu indicated the treatment plan was to continue with conservative management and optimize their medical picture over the next 3 months.
Dr. Ilacqua submitted a CMHP progress form dated December 23, 2022 indicating the worker was experiencing minimal improvement with treatment. They continued to experience significant medical issues that affected their mood, cognition and overall physical health. Dr. Ilacqua advised the worker was unable to return to work from a psychological perspective due to the intensity of their ongoing symptoms. Dr. Ilacqua requested approval for continued psychological treatment, which was approved by the operating area.
As documented in memorandum dated April 25, 2023, Dr. Ilacqua advised the CM the worker was last seen on December 23, 2022. The worker was contacted in February and March 2023; however, no response was received. Dr. Ilacqua indicated they had learned the worker was involved in a slip and fall accident a few months prior and they were hospitalized for a period of time. The CM contacted the WSIB Lower Extremity Specialty Program, and they were advised the Program had attempted to contact the worker on several occasions since February 2023 to schedule a reassessment; however, the worker could not be reached and they did not receive a return phone call.
As documented in memorandum B, the CM contacted the worker’s spouse on May 16, 2023. The worker’s spouse indicated the worker sustained a fall on December 27, 2022, and they were taken to the ER. The worker underwent a hip replacement on January 1, 2023 and they experienced a post-surgical infection. The worker developed pneumonia, and they were diagnosed with cirrhosis of the liver. The worker’s spouse indicated the worker was admitted to hospital on April 5, 2023. They indicated the worker had a damaged liver, swollen leg, erratic blood sugar levels, and low hemoglobin and platelets. The worker’s spouse indicated the worker was not currently medically able to participate in psychological treatment or attend a reassessment at the WSIB Lower Extremity Specialty Program.
Dr. Angilletta submitted a report dated September 26, 2023, indicating the worker sustained a subsequent fall in May 2023, which was a direct result of the continued pain and weakness of the knee from the work-related accident. The worker was again hospitalized and they underwent hip surgery.
Assessment of the Evidence
The operating area suspended the worker’s LOE benefits effective May 4, 2023 pursuant to operational policy 15-06-08, which indicates a worker’s status may change in ways that may not be related to the work-related injury/disease. A post-accident, non-work-related change in circumstance may affect whether a worker’s loss of earnings results solely from the work-related injury/disease. Examples of a post-accident, non-work-related change in circumstances may include, but are not limited:
injuries sustained as a result of a non-work-related accident
deterioration of a pre-existing condition
permanent relocation for reasons unrelated to the work-related injury
physical conditions (e.g., pregnancy, cardiac event, hernia)
an urgent family matter requiring the worker to leave the province/country for an extended period of time, or
incarceration.
The policy states, in part:
If the non-work-related, post-accident change in circumstance is preventing a worker from undergoing treatment for the work-related injury/disease, benefits may be reduced or suspended until the worker is available for treatment of the work-related injury/disease.
The policy indicates full LOE benefits may be extended for a brief period of time (up to 4 weeks).
The operating area determined the worker’s hip replacement surgery on January 1, 2023 was a result of a non-work-related accident, thus it was non-compensable; and the post-surgical complications were not within the scope of their entitlement under this claim. The operating surmised that since the worker was unable to participate in health care treatment for their compensable injuries due to their non-work-related, post-accident changes in circumstances, a suspension of LOE benefits was in order.
The worker representative submitted full LOE benefits ought to be extended on the basis the worker’s total disability and inability to work is due to both their compensable and non-compensable impairments. The worker representative is of the view it is unlikely the worker will be able to return to any type of employment due to their work-related organic and psychological impairments. As such, the worker ought to continue to receive full LOE benefits irrespective of their non-compensable impairment.
I agree with the worker representative in that the worker is entitled to ongoing LOE benefits; however, I have not placed significant weight on their arguments. While I acknowledge the worker is temporarily totally disabled because of both the work-related injuries and post-accident change in circumstances, the issue here is that the post-accident change in circumstances is preventing them from participating in health care treatment for their compensable injuries. As enumerated in operational policy 18-03-02:
Full LOE
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
In this case, I acknowledge the worker was determined to be unable to return to any type of work prior to the December 2022 fall and subsequent January 2023 hip surgery. The worker was in receipt of full LOE benefits as they were participating in health care measures given the fact they were receiving psychological treatment with Dr. Ilacqua and they were attending assessments at the WSIB Lower Extremity Specialty Program. Following the January 2023 surgery, the worker was unable to participate in health care measures for their compensable injuries.
In review of the facts and circumstances of this case, I have placed significant weight on the fact the worker’s fall in December 2022 was likely a direct result to their compensable injury. This finding is supported by the November 2022 Specialty Program report wherein the worker described a fear of falling and reported incidents of falling; as well as Dr. Angilletta’s September 2023 report, which indicated the worker’s most recent fall was a direct result of the continued pain and weakness of the injured knee owing to the work-related accident. According to operational policy 15-05-01, “If a worker suffers a second accident, benefits are payable only if it established that the work-related impairment caused the second accident.” The evidence in the record supports the worker’s fall and resultant hip injury was most likely a direct result of their compensable knee impairment. The worker’s falling incidents and hip injury would not likely have occurred but for the work-related left knee impairment. Based on the foregoing, I find there is sufficient evidence to support to work-related impairment caused and/or significantly contributed to the falling incident resulting in a hip injury, therefore, full LOE benefits ought to be extended on this basis.
CONCLUSION
I conclude the worker is entitled to the reinstatement of LOE benefits effective May 4, 2023.
The worker’s objection is allowed.
DATED September 29, 2023
L. Mansueti
Appeals Resolution Officer
Appeals Services Division