APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240020
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: Employer
HEARING: HEARING IN WRITING
HEARD by: m. rodrigues, appeals resolution officer
ISSUES
The worker, through their representative, is objecting to the case manager’s decision of May 9, 2023 that:
Determined the worker’s left ankle sprain fully resolved by April 12, 2023 with no evidence of a permanent impairment.
Denied entitlement to loss of earnings (LOE) benefits from May 9, 2023.
BACKGROUND
On December 10, 2021, this special needs assistant was playing soccer when they rolled their left ankle over a ball and fell. Initial entitlement was allowed for health care and LOE benefits for a left ankle fracture.
On November 15, 2022, entitlement was extended to include a left ankle avulsion fracture and sprain. Entitlement to tenosynovitis, small joint effusion and possible tendonitis was denied. The worker attempted to return to work (RTW) to pre-injury job duties on January 17, 2022, but lost time from work again from January 25, 2022. Entitlement to LOE benefits from January 25, 2022 was allowed.
The worker continued to experience ongoing issues with their left ankle and was referred to the WSIB lower extremity specialty clinic on December 22, 2022.
In a decision letter dated May 9, 2023, the case manager concluded the clinical reporting did not support an ongoing left ankle avulsion fracture. The clinical evidence supported the worker had pre-existing non- work-related left ankle issues. The permanent restrictions indicated the worker displayed self-limiting and pain focused behaviour, which was not consistent with the left ankle sprain. The case manager determined the left ankle sprain fully resolved by April 12, 2023 with no evidence of a permanent impairment and denied entitlement to LOE benefits from May 9, 2023. The decision was reconsidered on June 12, 2023 and November 28, 2023, but the original decision was upheld.
The worker objects to the decision dated May 9, 2023 and the issues were referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-05 Determining Permanent Impairment
November 3, 2014
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
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 MMR has been achieved for the left ankle sprain by April 12, 2023 and a permanent impairment is evident. I find entitlement to LOE benefits from May 9, 2023 is in order. Ongoing entitlement is remitted back to the operating area to determine the duration and nature of benefits, including whether the worker has returned to work, availability of work within their restrictions and if a referral to RTW services is necessary. The worker’s objection is allowed.
Worker position
In the submission of January 4, 2024, the worker representative argued that due to delayed reporting, initial entitlement was only accepted on September 19, 2022. This resulted in the worker being off work for a prolonged period and not receiving appropriate treatment in a timely manner. While the worker attended physiotherapy, on the advice of their doctor, they did not experience any improvement until attending the WSIB specialty clinic.
The representative contends the clinical evidence contradicts the case manager’s decision. They cite various clinical reports, including diagnostic imaging, to support their position that the worker has not fully recovered and permanent restrictions remain. They opine there is a lack of evidence to support the worker’s left ankle was asymptomatic prior to the workplace accident. The representative states the April 19, 2023 specialty clinic report recommends permanent restrictions for the left ankle sprain and the claim was closed prematurely.
Employer position
The employer did not participate in this appeal, nor provide any submissions for my review.
Findings
In order to determine if a worker fully recovered from their work-related left ankle sprain, the information needs to show whether an ongoing work-related impairment exists. I relied on policy 11-01-05 (Determining Permanent Impairment) to help me reach my conclusion. The policy states an impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.
The policy goes on to state that recovery from the work-related injury 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. MMR means that a plateau in recovery has been reached and no further significant improvement is expected. To determine if MMR is reached, decision-makers consider whether recent clinical evidence indicates any change in the work-related injury, the worker is receiving or will receive treatment that is likely to improve the work-related injury, or the worker is receiving treatment or using medication to maintain the current level of recovery. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.
I accept the worker representative’s position that a permanent impairment is evident for the left ankle in this claim. I find MMR has been achieved for the left ankle sprain by April 12, 2023 and a permanent impairment is evident. This is supported by the specialty clinic reports from January 11, 2023 to April 19, 2023, along with the assessment team’s recommendation that permanent restrictions are evident almost sixteen months following the date of injury. My reasons for why are outlined below.
In reviewing the clinical reporting, I note the worker underwent significant diagnostic testing between December 13, 2021 and May 10, 2022 for their left ankle. The ultrasound of December 13, 2021 reveals left peroneal tenosynovitis, smaller interior ankle joint effusion and possible mid-Achilles tendinosis. The x-ray of February 24, 2022 shows a suspected small lateral malleolar type avulsion, which has not significantly changed in position. The visibility is limited. I interpreted the findings to mean the worker may have an avulsion fracture, but that further diagnostic imaging was required.
The magnetic resonance imaging (MRI) of May 10, 2022 shows multiple degenerative changes, particularly involving the tibial plafond and talonavicular and calcaneocuboid joints. Mild bimalleolar soft tissue swelling is also present. Following the MRI, the worker was referred the case to the Occupation Health Assessment Program (OHAP) to determine if their work-related left ankle injury had resolved.
The assessment took place on November 3, 2022. I find the opinion from the OHAP physician is significant, given they would not equate the determination of full range of motion for the left ankle as of May 24, 2022 with a complete recovery.
The physician OHAP did not think there are significant left ankle non-work-related conditions, stating that cartilage thinning is normal in MRI findings for people over age 45 and they did not see how it is related. They were most concerned with peroneal tendon pathology that appears to be most consistent with the mechanism of injury and the site of recurrent pain. The physician recommends a more detailed assessment, opining they would not yet clear the worker back to sports, which seemed to be a part of their pre-injury job duties. I interpreted the above clinical opinion to mean the work-related left ankle injury had not yet resolved.
The worker was referred to the WSIB lower extremity specialty clinic on December 22, 2022. In the specialty clinic report of January 11, 2023, the assessment team states the worker remains with limitations concerning range of motion, strength and functioning of the left ankle. The team opines the worker’s treatment has been limited and passive in nature and recommended Enhanced Functional Treatment (EFT). The worker is diagnosed with a left ankle sprain/strain that is consistent with the mechanism of injury and no additional diagnoses are identified. Various left ankle restrictions are recommended, along with a recommendation for a graduated RTW plan.
The assessment team hoped the worker would make significant gains with the recommended treatment. A number of potential barriers were identified at that time, which included slow recovery to date, ongoing chronicity of symptoms despite time elapsed since the date of injury, lack of active treatment, pain- focused behaviours and physically demanding/unpredictable nature of their pre-injury job. In my view, the above observations made by the assessment team concerning the barriers are valid, given the worker was thirteen-months post-date of injury at the time of this appointment. I find it significant that, at the time, the assessment opines the worker has partially recovered and further recovery expected. In my view, the specialty clinic report supports the work-related injury has not fully resolved.
As pointed out by the worker representative, the EFT team states the worker’s clinical presentation is most consistent with a left lateral ankle sprain/strain, with the development of complex regional pain syndrome of the left ankle. In the report of January 26, 2023, the EFT team notes the prognosis for functional recovery is guarded based on the worker’s response to an active-exercise based treatment approach, in conjunction with therapy, to address psychosocial sequela.
In the February 15, 2023 specialty clinic report, the assessment team observed the worker avoid weight bearing on their left foot. While co-operative, pain-focused behaviours are noted throughout the physical assessment. For range of motion, it is pain limited with submaximal effort. The team is unable to assess strength accurately as well. The diagnosis and prognosis remains the same as that noted in the prior report. Of interest, the assessment team states it has been over one year since the date of injury and the worker remains with deficits. The team opines the worker may be left with permanent functional disability.
The EFT specialty clinic report of March 2, 2023 states the worker has not been able to tolerate any work simulation exercises to date. They continue to present with pain-focused behaviours and despite education, the worker remains hesitant to perform active range of motion exercises. Of note, the team states that objectively, the worker remains as they were on the first day of initial physiotherapy intake, except the pain scores decreased by two.
I find the assessment team’s observations in the April 12, 2023 specialty clinic report to be compelling. The worker has equal weight bearing in stance. There is no swelling or colour change to the left foot/ankle. The worker has guarded reciprocal gait and is capable of walking on heels and toes, reaching for local support. Of note, the worker is capable of performing 75% of a squat, with supported recovery. However, I find the range of motion for the left ankle, including strength, remains reduced. I find it significant restrictions are recommended for the left ankle concerning sustained low level postures, repetitive deep knee and squat activities with load.
I note the work-related diagnosis remains the same. Of significance, the assessment team identifies a non-work-related diagnosis of pre-existing multiple degenerative changes, particularly involving the tibial plafond and talonavicular and calcaneocuboid joints as noted on the imaging.
I acknowledge the worker is pain-focused, displays self-limiting behaviours and has pre-existing multiple degenerative changes, as supported by the diagnostic imaging. However, I accept the worker representative’s position that there is no available evidence to support the left ankle was asymptomatic prior to the workplace accident.
I am satisfied the potential barriers to recovery and the ability to RTW in the April 12, 2023 specialty clinic report remain the same as those identified in the initial specialty clinic report. I find the April 12, 2023 specialty clinic report recommendation that the worker is capable of modified duties on permanent restrictions for the left ankle to be compelling. I afford weight to the assessment team’s opinion that the worker continues to have restrictions in function in their left foot and ankle sixteen months post-date of injury. The team opines that, while the worker has improved with treatment, MMR has been reached. A home exercise program is recommended and the worker is discharged.
I accept the restrictions, outlined in the April 12, 2023 specialty clinic report, as permanent. The assessment team recommends restrictions for walking up to 30-minutes, standing between 15 to 30 minutes and lifting of 5- to 10-kg from floor to waist, waist to shoulder and above shoulder. Restrictions are also noted for pushing/pulling of 10- to 20-kg at waist level, no ladder climbing and occasional bending/twisting repetitive movement of the left ankle. Additional recommendations include no sustained low level work, no repetitive deep kneeling/squatting and task rotation with the allowance of micro breaks. A gradual RTW is also recommended, starting at 4-hours per day for 5-days per week and increasing by 1-hour per day each week until full hours on modified duties can be achieved.
In summary, I find available clinical evidence supports a permanent impairment arose out of the worker’s left ankle sprain. I find the permanent restrictions identified in the specialty clinic report of April 12, 2023 support the work-related injury did not resolve. Thus, for the reasons noted above and policy 11-01-05 (Determining Permanent Impairment), I find MMR has been achieved for the left ankle sprain by April 12, 2023 and a permanent impairment is evident.
In order to determine if the worker is entitled to LOE benefits from May 9, 2023, I again turned to policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)). It states 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 RTW process.
Prior to May 9, 2023, the worker was in receipt of full LOE benefits and was referred to RTW services on April 14, 2023. The workplace parties, along with the RTW specialist (RTWS), met on April 27, 2023. Of significance, the RTWS used and shared the restrictions listed in the March 2, 2023 specialty clinic report with the workplace parties. The restrictions are similar, but not the same, as those in the April 12, 2023 specialty clinic report.
During the meeting, the RTWS states that, as the potential suitable work identified is a different classification than the pre-injury job, the worker is encouraged to review available job postings and proactively apply to positions of interest. The union representative would help with the job posting process and the disability case administrator would provide a lateral transfer form.
The potential work offer is for an education assistant (academic) and consists of academic support. The RTWS notes the work involves supporting students with learning disabilities. It did not include the same level of physical demands as the pre-injury job. No additional duties from that role would be performed, such as bus, recess and lunch duty. A work trial for four weeks was developed for work hardening and to help the worker reintegrate into the workplace. The gradual RTW plan was scheduled to start on May 1, 2023 and end on May 26, 2023 with the resumption of full hours.
During a conversation with the case manager on May 9, 2023, the worker states they are expected to RTW on a full-time basis after the month, but did not feel capable of doing so. The rest of the conversation centers on the denial of a permanent impairment and that the degenerative conditions in the left ankle are not work-related. There is no further communication in the case record in regards to whether the worker has returned to work, nor in what capacity, since that date.
On May 12, 2023, the disability case administrator told the RTWS the worker was pulled out of the school as they had no budget for an extra person. The follow-up RTW meeting on May 17, 2023 was cancelled. As a result, I am satisfied this supports there is no suitable work available for the worker within their restrictions at that time.
I previously found the worker has permanent restrictions for their left ankle sprain and there is no suitable work available for them. As such, I find entitlement to LOE benefits from May 9, 2023 is in order. Ongoing entitlement is remitted back to the operating area to determine the duration and nature of benefits, including whether the worker has returned to work, availability of work within their restrictions and if a referral to RTW services is necessary.
Thus, for the reasons above and noting policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)), I find entitlement to LOE benefits from May 9, 2023 is allowed.
CONCLUSION
As I concluded above, I find:
MMR has been achieved for the left ankle sprain by April 12, 2023 and a permanent impairment is evident.
Entitlement to LOE benefits from May 9, 2023 is allowed. Ongoing entitlement is remitted back to the operating area to determine the nature and duration of benefits. This includes whether the worker has returned to work, availability of work within their restrictions and if a referral to RTW services is necessary.
The worker’s objection is allowed.
DATED February 9, 2024
M. Rodrigues Appeals Resolution Officer Appeals Services Division