Worker v. Employer, 2024 CanLII 77387

20240059

REPRESENTED by:

HEARD by:

DATED:

JUNE 14, 2024

ISSUE(S)

The worker objects to the following three Case Manager (CM) decisions:

The December 21, 2021 decision that denied entitlement to an anterior cruciate ligament (ACL)/posterior cruciate ligament (PCL) injury.
The June 16, 2023 decision that denied entitlement to left patellar subluxation; and
The October 4, 2023 decision that denied benefits under the Chronic Pain Disability (CPD) policy.

BACKGROUND

The history and nature of this claim is well documented in the prior June 13, 2023 Appeal Resolution Officer (ARO) decision. As such, I will only provide a brief history, to place the issue under this appeal into context.

On June 19, 2021, this equipment preparation and setup worker injured their left knee when their left foot slipped forward a couple of inches on a wet floor. On July 20, 2021, initial entitlement was granted for a left knee strain and a medial meniscus tear. The employer terminated the worker’s employment on July 26, 2021.

The December 21, 2021 decision denied entitlement to an ACL/PCL injury as the ACL/PCL deficiency pre-dated the injury and was not aggravated following the work injury. The worker representative (WR) objected to this decision and the December 18, 2023 reconsideration upheld the denial.

On May 4, 2022, temporary entitlement was extended to include an adjustment disorder under the Psychotraumatic Disability (PTD) policy.

The June 13, 2023 ARO decision determined the employer terminated the worker’s employment for just cause and was not in breach of their re-employment obligations. This decision also determined the worker reached maximum medical recovery (MMR) for their organic and psychological impairments without a permanent impairment as of July 22, 2022.

The June 16, 2023 decision denied entitlement to left patellar subluxation as there was no confirmed diagnosis on file. The WR objected to this decision and the October 5, 2023 and December 18, 2023 reconsiderations upheld the denial. The December 18, 2023 further clarified that while this diagnosis had been confirmed, the diagnosis was not consistent with the mechanism of injury of slipping forward a couple of inches.

The October 4, 2023 decision denied benefits under the CPD policy as criterions 2, 3, 4, and 5 were unmet. The WR objected to this decision and the December 21, 2023 reconsideration upheld the denial.

On January 2, 2024, the WR submitted the Appeal Readiness Form (ARF). The worker’s objection to the denial of entitlement to an ACL/PCL injury, left knee patella subluxation, and CPD form the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01 – Adjudicative Process 15-04-03 – Chronic Pain Disability

November 3, 2008

September 7, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. As I will explain, the worker does not have entitlement to left ACL/PCL injury, left knee patella subluxation, and/or CPD.

Worker Position

In reaching my conclusion, I also reviewed the WR ARF. It is opined that entitlement be granted for left knee patella subluxation, ACL/PCL injury and CPD. The WR argued the “Case Managers of these matters have not followed the medical evidence provided and continue to maintain these decisions even though the medical evidence indicates otherwise”. I note submissions were not provided for consideration along with the ARF.

Employer

The employer representative (ER) completed the Respondent Form on May 9, 2024 and agreed to proceed with a Hearing in Writing. In their submission they argued the medical evidence does not establish compatibility between the mechanism of injury and the diagnoses of left ACL/PCL injury and left knee patella subluxation. In relation to the ACL/PCL injury, they argued the condition was pre-existing and was not aggravated by the work-injury. In relation to the patellar subluxation, they argued this condition is not caused by the accepted mechanism of injury in this claim. They also highlighted that later medical reports referred to the accident history as a slip and fall, which is incorrect.

When discussing CPD entitlement, they agreed with the CM that four out of the five criteria had not been established in this claim. As the worker had a non-compensable left patellar subluxation condition that accounted for their ongoing pain and the June 13, 2023 ARO decision confirmed the MMR date, they argued entitlement under the CPD policy remain denied.

1. Entitlement to an ACL/PCL Injury

WSIB Policy 11-01-01, Adjudicative Process, states that all decision makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the “five point check system.” The Policy states, in part:

An allowable claim must have the following five points

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

In this case, initial entitlement has been granted for a left knee strain and a medial meniscus tear. Accordingly, the issue to be determined is whether I can establish compatibility of diagnosis for an ACL/PCL injury related to the work injury on June 19, 2021.

Compatibility of the diagnosis to the accident relates to whether the diagnosis of an ACL/PCL injury with the mechanism of injury. Determining causation requires that the mechanism of injury must be a significant contributing factor in the diagnosis. It is not sufficient to establish a possible relationship with the mechanism of injury. I must show the causal link to be “more probable than not” to meet the standard of proof that is applied to WSIB claims, the “balance of probabilities”. In this case, I find the mechanism of injury is not compatible with an ACL/PCL injury.

The accepted mechanism of injury, as provided in the December 18, 2023 letter is that as the worker was “walking from the wrap stand to the operator table, their left foot planted and slipped forward a couple of inches on a wet floor towards the drain”. The worker did not slip and fall.

Upon review of the medical evidence on file, I place significant weight on the December 10, 2021 Occupational Health Assessment Program Case Consult as the assessor had access to the worker’s medical history and provided a clear rationale for their conclusions. They considered the following reports:

The August 27, 2021 WSIB Lower Extremity Specialty Program Comprehensive Assessment that concluded the worker had a normal ACL and PCL.
The September 7, 2021 Dr. Litchfield report that noted the worker was an ex-professional hockey player. Upon examination, it was noted that the worker was “unable to fully flex his knee beyond 100 degrees” and “there is laxity on Lachman testing, but this is equal bilaterally”.
The October 1, 2021 Dr. Litchfield operative report that noted, “it did look like there was some midsubstance changes within the PCL that may have represented old injury”, and “the ACL unfortunately was abnormal too, with a celery stalk type appearance that may be unrelated to injury”.
The November 16, 2021 Dr. Litchfield clinic note that noted, “this PCL injury is likely due to injury many years ago from hockey”.
The November 26, 2021 WSIB Lower Extremity Specialty Program Follow-up Report that determined the left ACL and PCL injury as non-occupational (likely sustained during the worker’s hockey career).

In response to the CM’s queries on the possibility of whether the accident aggravated the previously asymptomatic lax ACL and PCL deficiency, the assessor responded:

No, the compensable medical meniscal tear did not cause an aggravation of the ACL and PCL deficiency. This worker may have had a remote injury to his PCL, which was not causing symptoms. The examination by Dr. Del Balso (August 27, 2021) demonstrated no laxity to the ACL and PCL. The examination by Dr. Litchfield (September 7, 2021) demonstrated some ACL laxity, “but this is equal bilaterally”. These suggest that he has been coping with some mild laxity for some time and this is likely not causing any of his symptoms. It was not until his operation where he was examined under anesthesia that his laxity was truly appreciated.

This mild laxity should not cause pain, a lack of knee flexion, or swelling in the joint. The symptoms that the worker is currently experiencing are not related to the chronic ACL and PCL laxity and are solely related to the occupational injury with a flare of pain following the operation on October 1, 2021.

Based on the above, I find that the worker’s ACL/PCL injury pre-dated the work injury and therefore was not caused by the work injury. Further, I find this pre-existing asymptomatic condition was not aggravated by the work injury. Therefore, entitlement is not granted for an ACL/PCL injury.

2. Entitlement to a Left Patellar Subluxation

As mentioned above, as initial entitlement has been granted in this claim, the issue to be determined is whether I can establish compatibility of diagnosis for left patellar subluxation related to the work injury on June 19, 2021.

Medical research provides patellar subluxation is another word for a partial dislocation of the kneecap. An injury of this type is generally caused by extreme activity or a contact sport, and usually happens to young active people between the ages of 10-20. This condition is diagnosed using x-rays and MRIs.

In this case the accident history describes a relatively minor incident. The worker had their left foot planted when they slipped forward a couple of inches on a wet floor. The worker did not slip and fall. Accordingly, based on the above, I am unable to establish this mechanism of injury caused left patellar subluxation.

Further, the June 26, 2021 left knee x-ray report was normal and did not identify any issues with the worker’s patella. The August 8, 2021 left knee MRI noted the patellar tendons were intact, the patellofemoral cartilage was unremarkable and the patellofemoral alignment was normal. Given these imaging reports are used to diagnose this condition, I am unable to reconcile the delay in confirming this diagnosis (the diagnosis was confirmed on January 30, 2023), if it was a result of the workplace injury on June 19, 2021.

While I acknowledge the October 24, 2023 Dr. Litchfield letter stated the worker was misdiagnosed by the physician, given the ample contemporaneous medical documents on file that provide the worker did not have any patellar related issues following the work injury, I am not persuaded the worker’s left knee subluxation is compatible with the mechanism of injury. I also note that in Dr. Litchfield’s later medical documents, the accident history is described as a slip and fall incident, which is a more significant injury, as opposed to the accepted accident history, which is a slight slip without a fall.

Therefore, I am unable to establish the mechanism of injury as a significant contributing factor in causing left patellar subluxation. I find the fifth bullet of the five-point check system required for an allowable claim under policy 11-01-01 – Adjudicative Process is not met. Entitlement is not granted for this condition.

3. Entitlement to Benefits under the CPD Policy

WSIB policy 15-04-03 pertaining to Chronic Pain Disability, states in part:

The WSIB will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability.

Additionally, the policy outlines the five criteria which must be met for entitlement to be granted:

As required by the CPD policy, in order to be eligible for entitlement, all five criteria must be established. First Criterion: Workplace Injury Occurred

Based on the policy requirements, there is no dispute that the claim was accepted for a work related injury and as such, the first criterion is met.

Second Criterion: Chronic Pain is Caused by the Injury

A review of the medical documents on file confirms the worker has pain persisting beyond the usual healing time. The issue is that the worker’s left knee complaints beyond July 22, 2022, and second surgery (dated October 12, 2023) are related to left patellar subluxation. I highlight that I have not extended entitlement to this diagnosis or the worker’s pre-existing ACL/PCL injury.

Moreover, while the worker has pain beyond the usual healing time, I have regard for the June 13, 2023 ARO decision, which confirmed that “the worker reached MMR for the work-related meniscus tear injury and work-related adjustment disorder by July 22, 2022”.

As I have not extended entitlement to the worker’s pre-existing ACL/PCL injury or the left patellar subluxation, and the June 13, 2023 ARO decision determined the worker reached MMR without a permanent impairment, it has not been established that the worker’s chronic pain is caused by the work injury and the second criterion is not met.

Third Criterion: Pain Persists 6 Months Beyond the Usual Healing Time of Injury

As provided above, the worker’s work-related injuries for the left knee fully recovered as of July 22, 2022. While the recovery took approximately one year, given the worker had surgical intervention, the healing time is not considered significantly unusual.

While I acknowledge the worker has ongoing symptoms, I find these ongoing symptoms are attributable to non-work-related factors and consequently, I do not find this criterion is met.

Fourth Criterion: Degree of Pain is Inconsistent with Organic Findings

The fourth criterion is not established as the worker’s organic injuries resolved and no permanent impairments are confirmed in this claim. I find the worker’s pain beyond July 22, 2022, is consistent with the non-compensable left patellar subluxation.

Fifth Criterion: Chronic Pain Impairs Earning Capacity

In this case, the employer terminated the worker on July 26, 2021, and the worker is not in receipt of LOE

benefits. Although the worker’s earning capacity has been affected, I attribute this to the termination, and not the work injury. Thus, I find this criterion is not met.

As required by the CPD policy, to be eligible for entitlement, all five criteria must be established. As I am unable to establish criteria two through five, the worker is not eligible for benefits under the CPD policy.

CONCLUSION

The issues are concluded as follows:

The worker does not have entitlement to a left ACL/PCL injury.
The worker does not have entitlement to left patellar subluxation.
The worker does not have entitlement to benefits under the CPD policy.

The worker’s objection is denied.

DATED June 14, 2024

Sujethra Nadarajah Appeals Resolution Officer Appeals Services Division