DECISION NUMBER:

20240018

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

ISSUES

The worker representative, on behalf of the worker, is objecting to the following:

1. The Case Manager’s decision of December 16, 2022 denying entitlement to a recurrence of the work-related injury as well as to the request for entitlement to partial loss of earnings (LOE) benefits; and,

2. The Case Manager’s decision dated August 30, 2023 denying entitlement to a redetermination of the non-economic loss (NEL) benefit for the permanent right knee impairment.

BACKGROUND

On August 24, 2020, the worker tripped over cartons and fell, twisting their right knee and injuring the right foot. Entitlement was authorized for tears of the right knee anterior cruciate ligament (ACL) and lateral meniscus, as well as to a right ankle sprain. A Functional Abilities Evaluation was performed in September 2021. A Case Manager’s decision letter dated October 4, 2021 determined that maximum medical recovery had been reached with the following permanent restrictions:

• Limit lifting floor to waist to 10 pounds on an occasional basis;

• Limit lifting waist to crown to 15 pounds occasionally or 20 pounds on a rare basis;

• Front carry over 50 feet at any one time, up to 15 pounds occasionally and 20 pounds rarely;

• Static push up to 51.7 pounds occasionally;

• Limit elevated work, standing work, forward bending to occasional basis only;

• Limit stair climbing, with use of hand railing, to an occasional basis;

• Able to perform sitting work on a frequent basis; and,

• Avoid crouching and kneeling.

A NEL determination rating was performed on October 5, 2021. The resulting decision letter of the same date confirmed a 9% NEL benefit for the accepted permanent diagnosis of right knee ACL tear and lateral meniscus tear. The Appeals Resolution Officer (ARO) decision of October 15, 2021 authorized partial LOE benefits from September 15, 2020 to October 9, 2020 and full LOE benefits for the period of

October 10, 2020 to December 29, 2020. A Case Manager’s decision dated February 11, 2021 confirmed entitlement to health care benefits for a right ankle sprain, right knee ACL tear, and right knee lateral meniscus tear. The Case Manager denied entitlement to the pre-existing right knee conditions, including a previous right knee injury with reconstruction of the medial collateral ligament (MCL). The employer offered the worker the position of Shipping Office Clerk in a letter dated December 14, 2021.

The RTW Specialist’s decision letter dated February 9, 2022 authorized a Return-to-Work (RTW) plan for the permanent and suitable position of Shipping Office Clerk, including six weeks of computer skills training. The RTW Specialist confirmed on March 28, 2022 that the worker successfully completed the RTW plan. A Case Manager’s decision letter dated April 7, 2022 accepted the proposed current

entry-level wages of $15.00 per hour based on a 40-hour week. The Case Manager also authorized entitlement to partial LOE benefits. The employer confirmed the availability of the Shipping Office Clerk position within a written offer dated September 30, 2022. No LOE benefits (either partial or full) have been paid effective October 11, 2022.

A medical report dated November 6, 2022 identified a recurrence date of March 15, 2022. The worker’s written notice of a recurrence does not identify an actual recurrence date. The Case Manager’s decision letter of December 16, 2022 denied entitlement to a recurrence (and associated LOE benefits) as there was no medical evidence to support that the worker was functioning below the accepted permanent restrictions. The Case Manager noted that there was no confirmed diagnosis of vein thrombosis. The worker provided photographs of their right lower leg in late December 2022. The Case Manager’s reconsideration letter of June 6, 2023 upheld the prior decision to deny entitlement to a recurrence.

Another reconsideration letter dated August 10, 2023 noted that there was a new claim for the same area relating to a specific incident involving slipping on water.

The Case Manager’s decision of August 30, 2023 denied entitlement to a NEL redetermination as there had been a new accident under a new claim. The Appeal Readiness Form of September 13, 2023 requested that the worker’s objections to the decisions of December 16, 2022 and August 30, 2023 be resolved as a hearing in writing. The Case Manager’s reconsideration letter of September 29, 2023 upheld both decisions and accepted that the medical evidence supported that the acute flare-up is most likely related to pre-existing right knee injury and degenerative changes that are not within the scope of the claim. The issues are now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process 15-02-03 Pre-existing Conditions 15-02-05 Recurrences 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 18-05-09 NEL Redeterminations

November 3, 2008 November 3, 2014 April 9, 2021 September 1, 2021 January 3, 2023

ANALYSIS

I find that there is no entitlement to a recurrence or to partial LOE benefits. I further find that there is no entitlement to a redetermination of the NEL benefit. My reasons for these findings are outlined below. I

have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The worker representative’s written submission of November 17, 2022 confirms that the worker started the position of Shipping Co-ordinator on or about October 12, 2022 and is currently being paid $18.00 per hour. The worker representative argues that the worker indicates being only able to work 40 hours or less due to swelling and numbness in the right leg. The request is made for entitlement to partial LOE benefits from October 12, 2022.

The written submission of June 29, 2023 outlines that the worker returned to permanent accommodated work with the employer on 12-hour shifts resulting in a worsening of the right leg condition. The worker representative requests entitlement to redetermination of the NEL benefit and partial LOE benefits to reflect the actual hours worked. A third written submission dated August 29, 2023 submits that the new claim is simply an aggravation. The argument is presented that the worker returned to a permanently accommodated position with the employer but is unable to work 12 hours a day. Therefore, the worker representative maintains that the partial LOE benefits should be paid under the initial claim.

1. Recurrence and entitlement to partial loss of earnings benefits

I am not persuaded that entitlement is in order for either a recurrence or partial LOE benefits from October 12, 2022 onward.

Policy 15-02-05, Recurrences, requires there to be a significant deterioration that is clinically compatible with the original injury and does not result from a significant new incident. To put it another way, the current diagnosis must be related to, or the result of, the workplace accident or injury. To make this determination, decision-makers are to consider the nature and severity of the significant deterioration, the original injury, and any relevant non-work-related conditions that are present.

Policy 15-02-05 defines the term significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. While not required to establish a causal link, policy provides the authority for decision-makers to consider if there were continuing symptoms as demonstrated by ongoing treatment, the reporting of complaints, or continuing workplace accommodations.

Similarly, Policy 11-01-01, Adjudicative Process, discusses the requirement of clinical compatibility of diagnosis with the accident history. In other words, the medical diagnosis must be shown to have resulted from, or been caused by, the workplace accident. Policy 15-02-03, Pre-existing Conditions, which directs decision-makers to consider the impact, if any, of pre-existing conditions on the worker’s ongoing impairment based on the clinical evidence. I must also consider that Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the loss of earnings to be as a result of the work-related injury.

I acknowledge that the Employer’s Report of Injury signed August 26, 2020 confirms a pre-accident employment pattern of 12-hour shifts, Monday to Friday. On September 29, 2022, the RTW Specialist documents the employer’s verbal statement that they are moving to a 40-hour week effective March 2022 and that the average hours within the Shipping Department is approximately 55 hours per week. I find it material that the employer verifies that employees have a choice if they wish to complete the increased hours. Importantly, the employer states that the worker has the option to work 55 hours over six days, not

five, if they choose to. Similarly, the RTW meeting memo of September 29, 2022 documents that the employer will no longer be offering a 60-hour work week effective March 2022 and will instead be moving to 40 hours per week for all employees. I am aware that a long-term earnings basis recalculation has been performed in this claim.

The employer’s subsequent written offer of Shipping Office Clerk on September 30, 2022 states that the position would begin on October 3, 2022. On October 4, 2022, the employer informs the RTW Specialist that they will be offering the worker 55 hours per week and that the first 44 hours will be paid at $18.00 per hour. Once more, the employer states that the worker may elect to work 11 hours over five days, or work the 55 hours over six days per week. On October 17, 2022, the worker informs the RTW Specialist that they were unable to move after completing 11-hour shifts. In the view of the worker, they are unable to work beyond 8-hour shifts.

The employer provides verbal confirmation on October 24, 2022 that the worker will not be required to wear safety shoes and will have a designated/marked spot reserved by the shipping door. The employer further explains that the worker will be able to drive to the front of the building if they need to access the washroom or office. Within the same conversation, the employer states that a chair and desk will be purchased for the worker. On November 4, 2022, the worker informs the RTW Specialist that they were requesting partial LOE benefits as they were only able to complete 8-hour days and not 11-hour days.

Turning to the medical evidence, the physiotherapist’s report of November 6, 2022 lists a recurrence date of March 15, 2022 and provides a working diagnosis of right knee ACL tear, meniscal tear, and possible deep vein thrombosis. A doctor’s note dated December 6, 2022 recommends time off work for the period of December 6, 2022 to December 9, 2022 for an unspecified medical condition. A medical report dated February 21, 2023 states that the worker is unable to stand, climb, kneel or lift. The Functional Abilities Form (FAF) of March 28, 2023 describes the inability to work as the worker cannot walk, stand, sit, lift weight, or climb ladders at all. The FAF indicates that an orthopaedic surgeon will assess the worker in April 2023.

The resulting consultation report from the orthopaedic surgeon dated April 11, 2023 documents that there is no clear malalignment and that minor effusion is present. Right knee range of motion is measured as being from 0 degrees to 125 degrees with mild pain. The orthopaedic surgeon states that there is no discrete swelling in the foot region and that x-rays show overall good joint space. I afford significant weight to the orthopaedic surgeon’s opinion that there is a recent re-injury to the knee and that the worker may have instability symptoms in the past related to a prior attempt to repair the MCL more than ten years ago. In the opinion of the orthopaedic surgeon, there were no significant medial-sided knee symptoms upon examination, while the worker may have flared-up some degenerative changes or the old MCL injury from the past.

FAFs dated May 9, 2023 and May 31, 2023 state that the worker may resume light duties at six to eight hours per day with breaks. The kinesiologist report from the Lower Extremity Specialty Program dated June 13, 2023 outlines that the worker demonstrated wearing the right knee brace too low and too far forward, thereby not providing any support. Once the worker was able to demonstrated proper strapping, they indicated that the brace felt much more supportive than before. The kinesiologist stated within the report that there were no issues identified with the brace and that it appeared to suit the worker’s anthropometrics.

Overall, I afford the most weight the opinion provided by the orthopaedic surgeon within the report of April 11, 2023. Specifically, I find that there is insufficient objective clinical evidence of any significant worsening with respect to the work-related tears of the right knee ACL or lateral meniscus. As previously

mentioned, entitlement to the pre-existing right knee conditions, including degeneration and the MCL, was denied in a decision letter dated February 11, 2021. In comparison, the prior NEL determination of October 5, 2021 rated right knee range of motion as being from 0 degrees (or neutral extension) to 110 degrees whereas the orthopaedic specialist documents 125 degrees of motion in April 2023. Therefore, in keeping with Policy 15-02-05, I am not persuaded that there is a significant deterioration in the

work-related right knee permanent impairment. Accordingly, I find that there cannot be entitlement to a recurrence, including to the identified date of March 15, 2022 specified within the medical report dated November 6, 2022.

I further find that the Case Manager’s decision of October 4, 2021 is not properly before me. I note that the accepted permanent restrictions documented within the decision letter of October 4, 2021 do not include any specific limitation on daily or weekly hours. Moreover, it is my view that the decrease in weekly hours offered by the employer from 60 hours per week to 55 hours per week represents an employment situation unrelated to this claim as it applies to all employees in the shipping department. I must additionally consider that outside of the shipping department the hours have decreased to a 40-hour week for all employees. Regardless, I find that the worker has the availability working 55 hours per week over six days, which would reduce amount of daily hours from 11-hour shifts.

For all of the above-noted reasons, it is my opinion that there has not been a significant deterioration in the work-related right knee permanent impairment. I find that worker’s inability to perform pre-accident hours is unrelated to the workplace injury of August 24, 2020. Again, Policy 18-03-02 requires the wage loss to be the result of the work-related injury. Therefore, I find that there is no entitlement to partial LOE benefits for the reduction in hours effective October 12, 2021 onward.

2. Is a redetermination of the permanent impairment award in order?

I find that the necessary criteria for entitlement to a redetermination of the 9% NEL benefit are not met.

Policy 18-05-09, NEL Redeterminations, explains that the Workplace Safety and Insurance Board (WSIB) may consider a worker’s request for a redetermination of the existing NEL benefit provided that the following conditions are met:

• 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.

Policy explains that 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.

The NEL rating of October 5, 2021 determined that there was no abnormal motion rating for right knee extension. Right knee flexion was rated at 110 degrees. Importantly, I observe that the initial NEL determination provided an offset rating for the previous MCL repair and pre-existing arthritis. I observe that neither the physiotherapist’s report of November 6, 2022 nor the medical report of February 21, 2023 provide any range of motion measurements. By comparison, I find that the report of April 11, 2023 from the orthopaedic surgeon documents right knee range of motion as being improved at 125 degrees. While I appreciate the photographs submitted by the worker, the report of April 11, 2023 indicates that there is only some mild induration. I acknowledge that the report describes some laxity with ACL. Even so, the orthopaedic specialist suggests that there is guarding.

In summary, I find that there is insufficient objective clinical evidence of a significant deterioration in the work-related ACL tear or lateral meniscal tear. In particular, I note that the orthopaedic surgeon’s

assessment of April 11, 2023 documents that there is “some” tear into the lateral meniscus. As previously stated, the report suggests that the worker is experiencing a flare-up of some degenerative changes or the prior pre-existing MCL injury. Given these factors, I am not persuaded that the policy criterion is met requiring there to be a significant deterioration in the work-related permanent impairment since the last NEL determination. Consequently, it is my opinion that there is no entitlement to a redetermination of the 9% NEL benefit for the work-related permanent right knee impairment.

CONCLUSION

I conclude the following:

1. There is no entitlement to a recurrence of the work-related right knee injury, including for the date of March 15, 2022.

The worker’s inability to perform pre-injury hours, including either 11-hour or 12-hour shifts, is not as a result of the work-related injury.

The request for entitlement to partial loss of earnings (LOE) benefits from October 12, 2022 onward is not in order.

2. There is no entitlement to a redetermination of the 9% non-economic loss (NEL) benefit for the permanent right knee impairment.

The worker’s objection is denied.

DATED January 29, 2024

K. MacMillan

Appeals Resolution Officer Appeals Services Division