APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240040
OBJECTING PARTY:
Worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
Employer, not participating
HEARING:
HEARING IN WRITING
HEARD by:
Stephanie Waters, Appeals Resolution Officer
APRIL 2, 2024
ISSUES
The worker objects to the following decisions made in their claim:
The September 1, 2021 decision that denied initial entitlement to benefits for injuries to the worker’s neck and back from the original workplace accident;
The July 27, 2022 decision that the worker’s left ankle injury reached maximum medical recovery (MMR) with a permanent impairment and restrictions, but the worker’s left knee injury reached MMR without a permanent impairment, as of May 25, 2022;
The August 8, 2022 decision granting a 2% Non-Economic Loss (NEL) benefit for the worker’s permanent left ankle impairment;
The November 18, 2022 decision that denied initial entitlement to benefits for injuries to the worker’s head and shoulders from the original workplace accident.
BACKGROUND
The worker’s date of hire was March 16, 2015. On August 9, 2020 while working as a cleaner, the worker slipped and fell down 4-6 steps, landing on their left side. The worker was taken to the hospital and reported pain in their left ankle and knee. The worker started losing time from work the next day because the employer did not have modified work available. The operating area has accepted entitlement to benefits for strains to the worker’s left knee and ankle, a left ankle talar dome osteochondral lesion, and a left foot avulsion fracture at the anterolateral aspect of the calcaneocuboid joint. The operating area also granted loss of earnings (LOE) benefits starting August 10, 2020.
The worker had an x-ray of their middle and lower back on December 31, 2020, which showed anterior wedge compression fractures at T5-T8 as well as degenerative changes in the lower back. The worker informed the WSIB of back issues on June 24, 2021, and neck issues on August 25, 2021. In a letter of September 1, 2021, the Case Manager (CM) denied entitlement to benefits for injuries to the worker’s neck or back. The CM was unable to confirm these injuries were a direct result of the workplace accident noting a significant delay in the worker reporting and seeking medical attention regarding these areas.
The worker participated in assessments and treatment with the Lower Extremity Specialty Program (SP). They were discharged from treatment on April 22, 2022, and discharged from further assessments on May 25, 2022. The CM wrote a letter on July 27, 2022, determining the worker’s left ankle injury reached MMR with a permanent impairment but the worker’s left knee injury reached MMR without a permanent impairment as of May 25, 2022. They accepted the worker had permanent functional restrictions for their left ankle as provided by the SP on May 25, 2022. The worker received a 2% NEL benefit for their permanent left ankle impairment on August 8, 2022.
On October 26, 2022, the worker’s representative requested the WSIB review entitlement for additional areas of injury. They stated the worker had bilateral shoulder injuries and a head/concussion injury from the work accident as well as major depression. In a letter dated November 18, 2022, the CM denied entitlement to benefits for injuries to the worker’s head and shoulders because they could not establish these conditions resulted directly from the workplace accident. In another decision dated June 7, 2023, the worker received entitlement to benefits for major depressive disorder.
The worker’s representative submitted Appeal Readiness Forms to appeal these and other decisions. In a memo and letter on December 21, 2023, the operations Manager concluded the worker’s objections regarding initial entitlement for their neck, back, shoulders, and head, the level of ongoing impairment for their left ankle and knee, and the NEL quantum for the left ankle could proceed to the Appeals Services Division. The Manager stated the other issues under objection would not proceed at that time since they were intertwined with a pending review of the worker’s ongoing psychological entitlement.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
11-01-05 Determining Permanent Impairment
18-05-03 Determining the Degree of Permanent Impairment
November 3, 2008
November 3, 2014
November 3, 2014
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:
Initial entitlement is not in order for injuries to the worker’s upper/mid back, lower back, neck, shoulders, or head (including a concussion), from the original workplace accident;
The worker’s left knee strain reached MMR with a permanent impairment as of May 25, 2022;
The worker has permanent restrictions for their left ankle and left knee permanent impairments;
The 2% NEL benefit is appropriate for the worker’s permanent left ankle impairment.
The worker’s appeal is allowed in part.
Worker’s Position
It is the worker representative’s position that the worker is entitled to benefits for injuries to their neck, upper back, lower back, head/concussion, and shoulders from the original accident. They argued medical evidence supports these injuries occurred, the injuries are compatible with the mechanism of injury, and these injuries were originally overlooked due to the severity of the left ankle fracture. They also argued the worker should receive entitlement for their left shoulder due to overuse. It is also the worker representative’s position that the worker is entitled to permanent impairment awards for these areas of injury, as well as their left knee injury and major depression.
Employer’s Position
The employer did not return the Participant Forms. They are not participating in the appeal.
Clarification of Review
Within their February 5, 2024 submissions, the worker’s representative requested the worker receive full LOE benefits to age 65, arguing the worker’s pain and injuries make them unable to work. I do not have jurisdiction to review work suitability or LOE benefits noting the Manager’s December 21, 2023 letter indicating these issues would not proceed to the Appeals Services Division as part of this appeal.
The worker’s representative requested entitlement for a permanent impairment related to the worker’s compensable major depression. I do not have jurisdiction to review this issue since the operating area is actively reviewing the worker’s ongoing psychological entitlement.
The worker’s representative also requested entitlement for the worker’s left shoulder due to overuse. I do not have jurisdiction to consider this issue since the operating area has not made any decision regarding the worker’s entitlement for the left shoulder, or other areas of injury, as a secondary condition.
Assessment of Entitlement
- Initial entitlement is not in order for injuries to the worker’s upper/mid back, lower back, neck, shoulders, or head (including a concussion), from the original workplace accident.
It is the worker representative’s position that the worker is entitled to benefits for these areas of injury from the original workplace accident. Information on file does not support this position. When making my decision, I considered the policy that lists the five criteria that must be satisfied to grant entitlement to benefits for a work-related injury.
Policy 11-01-01 (Adjudicative Process) provides the five criteria an allowable claim must satisfy:
An employer
A worker
Personal work-related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history
The operating area already determined these criteria were satisfied in relation to injuries to the worker’s left ankle and left knee from the August 9, 2020 work accident. I find the worker is not entitled to benefits for the other reported areas of injury because I cannot establish the third and fourth criteria are satisfied.
The third criterion looks to establish the worker had a personal injury resulting from an accident that happened because of the worker’s job (arising out of employment) while they were working (in the course of employment). The fourth criterion considers circumstances to establish a work-related accident happened as described and was the cause of the worker’s diagnosed injuries. Circumstances that support an accident occurred and caused a work-related injury can include an immediate onset of symptoms, and an immediate need for medical attention or stoppage of regular or all work duties.
There is no dispute that the worker experienced an accident arising out of and in the course of their employment on August 9, 2020. However, I find the balance of evidence does not demonstrate this accident caused personal work-related injuries to the worker’s head, neck, upper back, lower back, or shoulders.
There is no entitlement for injuries to the worker’s upper/mid back or lower back.
The ambulance report and emergency room report state the worker did not have any obvious back trauma and denied any back pain on August 9, 2020. The December 17, 2020 report from the fracture clinic orthopaedic surgeon is the first medical report documenting the worker mentioning back pain following the accident. An x-ray on December 31, 2020 identified anterior wedge compression fractures from T5-T8 in the worker’s upper back, and degenerative conditions in the worker’s lower back. On February 22, 2021, the family doctor completed a Health Professional’s Report (Form 8) indicating the thoracic compression fractures resulted from the worker’s fall down stairs at work. In July 2022 and September 2022, a physiatrist concluded the worker sustained mid back compression fractures and a lower back soft tissue strain from the work accident.
There is a four-month delay between the work accident and the first medical report identifying back issues. The worker’s representative argued this delay was out of the worker’s control because they could not see their family doctor regularly due to the pandemic, and they mentioned these injuries at medical appointments but “wasn’t being heard.” Available evidence does not support these arguments.
I acknowledge the pandemic had multiple impacts on society and may have affected the worker’s ability to meet with their family doctor regularly following the accident. However, the worker met with an orthopaedic surgeon multiple times following the accident on August 13, 2020, September 2, 2020, September 24, 2020, and November 5, 2020. There is no indication the worker mentioned back pain during these visits. The orthopaedic surgeon then noted the worker was complaining of a new onset of left-sided back pain on December 17, 2020. The orthopaedic surgeon documented the worker’s statement that this back pain was something they did not complain about 4.5 months ago but was complaining about now. Similarly, the worker started physiotherapy treatment on November 7, 2020 but only circled their left knee and ankle on the body map for where they were experiencing pain. I find these medical reports directly counter the worker representative’s arguments and show the worker had multiple opportunities to mention back pain but did not do so until four months after the accident.
The worker’s representative also argued more weight should be placed on the physiatrist’s reports from July 2022 and September 2022. I reviewed these reports when making my decision but determined I am unable to place any weight on the physiatrist’s conclusions for multiple reasons.
The physiatrist’s reports are based on the worker’s description of a mechanism of injury that differs from the worker’s contemporaneous reporting of the workplace accident. On August 9, 2020, the worker reported falling down four stairs onto their left side and leg. On that day, the worker stated they hit their head but did not lose consciousness and did not have any pain in any area except their left knee and ankle. By comparison, on July 5, 2022, the worker verbally described falling down five to six steps, injuring the right side of their body, and losing consciousness after hitting their head and neck. The worker told the physiatrist they had total body pain including immediate severe pain in their knee, shoulder, mid back, and lower back. I placed more weight on the worker’s contemporaneous reporting of the mechanism of injury since they provided it immediately after the fall while details were fresh and unaffected by the passage of time and memory.
I am also unable to place any weight on the physiatrist’s reports because the physiatrist reached their conclusions based solely on the worker’s reporting. There is no indication the physiatrist had the opportunity to review prior medical reports including medical evidence that predated the work accident. This is demonstrated by the physiatrist’s statement in July 2022 that the worker did not have any injuries or medical issues prior to the workplace accident. This is contrary to the medical records provided by the family doctor for the period of November 2015 to July 2020. These records show the worker attended appointments, sought treatment including massage therapy, and saw a rheumatologist regarding chronic pain in their right shoulder, neck, upper back, lower back, hips, knees, elbows, and wrists related to osteoarthritis and fibromyalgia.
Lastly, I am unable to place any weight on the physiatrist’s reports based on the length of time between the work accident and the physiatrist’s assessments. In July 2022, the physiatrist concluded the worker sustained multiple injuries from the work accident based only on the worker’s verbal reporting since this was a virtual assessment. I acknowledge the physiatrist’s September 2022 report included a physical assessment. With that said, this was a physical assessment of the worker’s conditions two years after the workplace accident.
It is reasonable to expect an individual to experience symptoms immediately or shortly after an accident when that accident caused an injury. This was the case for the worker when they fell down stairs, landed on their left side, and reported immediate pain in their left knee and ankle. However, there is a four-month delay between the accident and medical evidence documenting the worker’s first report of pain in their back. These circumstances limit my ability to establish proof that the accident caused compression fractures in the worker’s thoracic spine, or a strain or degenerative changes in the worker’s lower back. Based on my analysis described above, I find the balance of evidence does not support the accident caused a work-related injury to the worker’s upper/mid back or lower back.
Since I am unable to grant initial entitlement for injuries to the worker’s upper/mid back or lower back from the work accident, I am unable to address the worker representative’s request for permanent impairment awards for the worker’s upper back and lower back.
There is no entitlement for an injury to the worker’s neck.
The ambulance report and emergency room report state the worker denied neck pain and did not have any pain with neck palpation on August 9, 2020. The worker first mentioned having neck pain to the WSIB on August 25, 2021. The first medical report identifying pain in the back of the worker’s neck was a pain map completed by the worker. This pain map is undated, but it was submitted to file by the worker’s representative on May 3, 2022. Medical reports from the physiatrist in July 2022 and September 2022, as well as a report from a psychiatrist in September 2022, also document the worker’s reports of pain and limited motion in the neck.
There is a 12-month delay between the work accident and the worker verbally mentioning neck pain to the WSIB. There is a 21-month delay between the work accident and the first available medical report documenting the back of the worker’s neck as an area of pain. I again considered the worker representative’s argument that this delay resulted from the pandemic impacting the worker’s access to healthcare, and that the worker mentioned this injury but was not heard. I find there is no information on file to support these arguments. The worker had multiple opportunities to report neck pain to the WSIB during ongoing discussions about their recovery and return to work but did not do so. The worker also had multiple opportunities to report their neck as an area of pain when seeing the fracture clinic orthopaedic surgeon between August 2020 and December 2020, and during physiotherapy treatment since November 2020, but did not do so.
I also considered the worker representative’s argument that significant weight should be placed on the physiatrist’s reports from July 2022 and September 2022. I note the physiatrist diagnosed the worker with a neck strain from the workplace accident and documented the worker had ongoing pain and reduced range of motion in their neck. However, I am unable to place any weight on these conclusions for the same reasons discussed in detail during my assessment of entitlement for injuries to the worker’s back. Although the physiatrist stated the worker had pain and limited motion in their neck in 2022, the significant delays in the worker’s onset of neck symptoms and need for medical attention related to the neck makes me unable to establish proof that the work accident caused a work-related injury to the worker’s neck.
Since I am unable to grant initial entitlement for an injury to the worker’s neck from the work accident, I am unable to address the worker representative’s request for a permanent impairment award for the worker’s neck.
There is no entitlement for an injury to the worker’s shoulders.
The ambulance report and emergency room report do not document that the worker reported any pain in their shoulders on August 9, 2020. The worker highlighted their right shoulder as an area of pain on the undated pain map submitted by the worker’s representative on May 3, 2022. In July 2022, the physiatrist diagnosed the worker with a right shoulder strain and possible tear based on the worker’s report that they injured their right side falling down the stairs at work and had immediate severe right shoulder pain. Ultrasounds on July 21, 2022 identified a partial thickness tear and tendinosis in the worker’s right supraspinatus tendon as well as mild tendinosis in the worker’s left supraspinatus tendon. Following the ultrasound report, the physiatrist stated in September 2022 that the worker had impairments with a loss of mobility and strength in both shoulders from the work accident.
There is a 21-month delay between the work accident and the first available medical report documenting the worker’s right shoulder as an area of pain. There is a 25-month gap between the work accident and the first medical report listing the worker’s left shoulder as an area of injury related to the fall. I find there is no information on file to support the worker representative’s arguments that the delay in medical attention was out of the worker’s control and the worker talked about these injuries but was not heard. The worker had multiple opportunities to mention shoulder pain and difficulties to the WSIB during ongoing communications, and to a variety of medical practitioners during assessments and treatment between 2020 and 2022 but did not do so.
Although the worker’s representative argued weight should be given to the physiatrist’s 2022 reports, I remain unable to place any weight on these reports or conclusions for the same reasons discussed during my assessment of entitlement for a back injury. The physiatrist’s conclusions were based on a mechanism of injury inconsistent with the worker’s contemporaneous reporting, without a review of other prior medical evidence, and an assessment of the worker’s condition two years after the accident. I also considered the fact that the worker did not report any left shoulder symptoms, and the physiatrist did not diagnose any work-related left shoulder injury, until after the July 2022 ultrasound identified tendinosis in the worker’s left shoulder. This further reduces the weight I can place on the physiatrist’s conclusion in September 2022 that the worker had a work-related impairment of the left shoulder due to the work accident.
I am unable to establish proof that the work accident caused any work-related injury to the worker’s shoulders considering the worker did not report issues in their right shoulder until 21 months later and did not report issues in their left shoulder until medical imaging identified a condition 23 months later. There is insufficient evidence on file to support the worker’s bilateral shoulder conditions in 2022 were directly caused by the work accident. As such, I find initial entitlement is not in order for injuries to the worker’s shoulders from the original work accident. Since I am unable to grant initial entitlement for an injury to the worker’s shoulders, I am unable to address the worker representative’s request for a permanent impairment award for the worker’s shoulders.
There is no entitlement for an injury to the worker’s head including a concussion.
The ambulance report and emergency room report confirm the worker hit their head during their fall at work on August 9, 2020 but confirmed the worker was alert. The worker denied losing consciousness and also denied having any head pain/headache, dizziness, nausea, vomiting, visual disturbance, or neurological deficits. The worker highlighted their head as an area of pain on the undated pain map submitted by the worker’s representative on May 3, 2022.
In July 2022, the worker informed the physiatrist that they were unaware of how they landed on the bottom of the steps and reported recurrent headaches after the accident. The physiatrist stated the worker may have sustained a concussion at the time of the fall and may have residual post-concussion symptoms. In September 2022, the worker told a psychiatrist that they could not recall falling down the stairs and woke up after the fall. The worker added that their headaches and head pain were more frequent and severe with movements of the head and neck. In September 2022, the worker reported bouts of dizziness to the physiatrist. The physiatrist concluded the worker had a head injury from the fall and may be suffering with post-concussion syndrome.
There is a 21-month delay between the work accident and the first medical report identifying the worker’s head as an area of pain, and a 23-month delay until medical reports provide the diagnoses of a head injury, concussion, and post-concussion syndrome. The worker had a multitude of opportunities to report head symptoms to the WSIB or to medical practitioners following the work accident but did not do so. I remain unable to place any weight on the physiatrist’s 2022 reports for the reasons previously discussed. I am also unable to place any weight on the September 2022 report from the psychiatrist noting the worker described a mechanism of injury that differs significantly from the worker’s contemporaneous report of the accident.
It is reasonable to expect an individual to experience symptoms immediately or shortly after an accident when that accident caused an injury. The physiatrist concluded in 2022, two years later, that the worker sustained a head injury including a concussion from the work accident. This is in direct contradiction to the worker’s contemporaneous reporting that they did not have any headache or concussion symptoms on the day of the accident. Concussion symptoms typically manifest within a few minutes or hours but could take up to a few days. However, there is no medical evidence of any head injury or concussion for at least 21 months. For all of these reasons, I find there is insufficient evidence to determine proof that the work accident caused a work-related head injury (including a concussion) or was the cause of the worker’s head symptoms in 2022.
Since I am unable to grant initial entitlement for an injury to the worker’s head from the work accident, I am unable to address the worker representative’s request for a permanent impairment award for the worker’s head or for a concussion.
- The worker’s left knee strain reached MMR with a permanent impairment as of May 25, 2022.
It is the worker representative’s position that the worker’s left knee strain resulted in a permanent impairment and the worker is entitled to a permanent impairment award for this condition. Information on file supports this position. When making my decision, I considered the policy that explains how to determine when a work-related injury resolves or results in a permanent impairment.
Policy 11-01-05 (Determining Permanent Impairment) states that 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.
The worker attended physiotherapy treatment in the community twice weekly from November 2020 to February 2021, and monthly from February 2021 to September 2021. The worker also attended enhanced functional treatment through the SP from November 2021 until April 2022. On May 25, 2022, the SP orthopaedic surgeon and physiotherapist documented there had been no recent significant improvement or change in the worker’s left knee condition despite treatment. They noted the worker had full range of motion with pain in their left knee, reduced left knee strength, and functional limitations related to the left knee. The clinicians concluded the worker’s left knee strain reached MMR with a permanent impairment and restrictions.
I placed significant weight on this medical report for multiple reasons. The orthopaedic surgeon is a specialist in their field with expertise in diagnosing and treating musculoskeletal injuries. The orthopaedic surgeon and physiotherapist had the opportunity to assess the worker’s left knee condition in person on multiple occasions between January 2022 and May 2022 to review any changes or improvements with active treatment. The clinicians also had access to other medical information regarding the worker’s physical condition before their assessments and before the work accident. With this in mind, I accepted the clinicians’ opinion that the worker’s left knee strain reached MMR with an ongoing and permanent impairment.
Clinical evidence confirms there was no recent change in the worker’s left knee condition around this time. The worker had been discharged from active treatment one month earlier and the SP clinicians concluded there was no additional treatment the worker could receive that would be likely to improve the left knee strain. Instead, they recommended a home exercise program. Although the clinicians confirmed the worker had full range of motion in their left knee, they confirmed the worker had a loss of strength and functional limitations due to the work-related left knee strain. I find this aligns with Policy 11-01-05, which states that an ongoing impairment can include a functional loss, meaning a loss of some or all of the functioning of a body part or organ system. Additionally, although the clinicians noted the worker had left knee osteoarthritis as a non-occupational condition, they did not indicate that this was the cause of the worker’s ongoing impairment.
Based on this information, I am satisfied the balance of evidence supports the worker’s left knee strain reached MMR with a permanent impairment as of May 25, 2022. The worker representative’s request for a permanent impairment award for the worker’s left knee will be returned to the operating area for review.
- The worker has permanent restrictions for their left ankle and left knee permanent impairments.
The worker’s representative objected to the CM’s July 2022 decision regarding the accepted permanent restrictions. They did not provide specific arguments or identify which restrictions they did not agree with. I find information on file supports the worker had permanent restrictions related to their compensable left ankle and left knee impairments as documented by the assessing SP clinicians on May 25, 2022.
Within their May 25, 2022 report, the orthopaedic surgeon and physiotherapist stated the worker had the following permanent restrictions related to their compensable left ankle and left knee impairments:
Walking 20-30 minutes
Standing 20-30 minutes
Stair climbing up to 5 steps
No lifting from floor to waist
Able to lift 0-5kg from waist to shoulder, and above shoulder level
Able to push/pull 0-5kg
No ladder climbing
Occasional bending/twisting repetitive movement
No repetitive kneeling/squatting
No sustained low level work
The worker should employ task rotation with the allowance of micro-breaks for postural adjustments.
The orthopaedic surgeon and physiotherapist provided the following addendum to this report:
The worker would be capable of completing the task of lifting recycling and garbage bins weighing up to 10lbs for disposal if the bins were located at knee level.
The worker is capable of vacuuming and mopping within the identified restrictions.
The clinicians suggest a graduated return to full hours with restricted duties at work over a period of 14 weeks.
I accepted these restrictions provided by the orthopaedic surgeon and physiotherapist since they completed an in-person assessment of the worker’s knee and ankle including strength, range of motion, and functional tolerances. This is the most accurate assessment of the worker’s functional abilities and limitations related to their compensable permanent impairments on the day the worker’s recovery plateaued for these conditions.
I understand the physiatrist documented the worker had limited mobility and strength in their left knee and ankle, and stated the worker was unable to return to work, in September 2022. However, there is no accepted worsening of the worker’s compensable ankle or knee conditions following the MMR date. Additionally, the physiatrist did not provide any specific physical restrictions contrary to the SP clinicians’ recommendations, and they determined the worker’s ability to work based on compensable as well as multiple non-compensable conditions contributing to the worker’s overall level of impairment. I find there is insufficient evidence to counter the physical restrictions listed above specifically for the worker’s compensable left ankle and knee impairments.
- The 2% NEL benefit is appropriate for the worker’s permanent left ankle impairment.
The worker’s representative objected to the NEL benefit quantum for the worker’s left ankle and argued it was minimal. Information on file supports that the 2% NEL benefit is appropriate for the worker’s permanent left ankle impairment. The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury. To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
To support their position that the NEL quantum was minimal, the worker’s representative referenced the physiatrist’s August 16, 2022 report regarding an August 2, 2022 bone scan of the worker’s body. The physiatrist stated there was a dramatically increased area of intensity in the worker’s left ankle. The bone scan report itself identified multifocal areas of increased activity throughout the worker’s peripheral skeleton, including the medial left ankle, and stated this was most likely degenerative. I considered this medical report when making my decision but find it does not provide any different or additional clinical information to change the rating of the worker’s permanent left ankle impairment.
I will clarify that a NEL rating is based on objective clinical findings regarding a worker’s physical impairment in terms of abnormal range of motion and/or loss of strength or sensation due to neurological issues. On March 30, 2022, the worker told the SP orthopaedic surgeon that they had decreased sensation over the plantar aspect (bottom) of their left foot. The orthopaedic surgeon recommended a neurology consultation to clarify if there was any neurological issue causing the paraesthesia in the worker’s left foot. A neurologist assessed the worker’s left lower extremity and provided a report on April 26, 2022. They stated the nerve conduction studies were normal and there was no neurological explanation for the worker’s symptoms. Since there is no medical evidence of focal neurological deficits, I am unable to award an impairment rating specifically for any neurological loss of strength or sensation.
The operating area determined the worker’s left ankle injury reached MMR as of May 25, 2022 based on the SP report of the same date. I find the clinical evidence dating closest to the accepted MMR date is the most applicable when rating the worker’s permanent ankle impairment since it captures the worker’s ankle impairment at the time their recovery plateaued. Since I am unable to award an impairment for any neurological deficits based on the AMA Guides, I have rated the worker’s left ankle impairment based on abnormal range of motion.
The lower extremity rating due to left ankle abnormal motion is 6%.
In a report dated May 25, 2022, the SP orthopaedic surgeon and physiotherapist reported the following range of motion findings regarding the worker’s left ankle:
Dorsiflexion: 10 degrees
Plantarflexion: 45 degrees
Inversion: 30 degrees
Eversion: 10 degrees
Table 37 (AMA Guides, page 66) provides lower extremity ratings for dorsiflexion and plantarflexion of the hind foot and ankle joint based on retained joint range of motion to the nearest 10 degrees. Since ratings are made based on the nearest 10 degrees, I rounded up the worker’s plantarflexion range of motion to 50 degrees to accurately capture the worker’s impairment. Table 37 provides a rating of 4% for 10 degrees of retained dorsiflexion, and a rating of 0% for 50 degrees of retained plantarflexion because this is the normal range of motion.
Table 38 (AMA Guides, page 67) provides lower extremity ratings for inversion and eversion of the hind foot and ankle joint based on retained joint range of motion to the nearest 10 degrees. Table 38 provides a rating of 0% for 30 degrees of retained inversion since this is the normal range of motion, and a rating of 2% for 10 degrees of retained eversion.
Page 63 of the AMA Guides states to add impairment values contributed by dorsiflexion, plantarflexion, inversion and/or eversion to determine the lower extremity impairment caused by abnormalities of these ranges of motion in the ankle. When adding the above ratings (4% for dorsiflexion, 0% for plantarflexion, 0% for inversion, and 2% for eversion), I determined a 6% rating for abnormal ankle range of motion.
The NEL benefit of 2% is appropriate for the worker’s left ankle impairment.
The AMA Guides requires impairment ratings to be expressed as a “whole person” impairment, defined on page 3 as the general physiologic functioning of the impaired person. As such, I used Table 46 (AMA Guides, page 72) to express the worker’s 6% lower extremity rating as a whole person impairment rating. Table 46 states that a 6% lower extremity impairment equals a 2% whole person impairment rating. With this in mind, I find the quantum of the worker’s left ankle NEL benefit is correct at 2%.
CONCLUSION
I find:
Initial entitlement is not in order for injuries to the worker’s upper/mid back, lower back, neck, shoulders, or head (including a concussion), from the original workplace accident;
The worker’s left knee strain reached MMR with a permanent impairment as of May 25, 2022;
The worker has permanent restrictions for their left ankle and left knee permanent impairments;
The 2% NEL benefit is appropriate for the worker’s permanent left ankle impairment.
The worker’s appeal is allowed in part.
The worker representative’s request for a permanent impairment award for the worker’s left knee will be returned to the operating area for review.
DATED April 2, 2024
Stephanie Waters
Appeals Resolution Officer
Appeals Services Division