APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250025
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
employer (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
C. Goegan, appeals resolution officer
February 12, 2025
ISSUE
The worker is objecting to the August 27, 2024, decision of the Case Manager concluding the worker reached maximum medical recovery (MMR) by July 23, 2024, with no permanent impairment resulting from a left ankle/foot injury.
BACKGROUND
The background details of the case are succinctly described in an Appeals Resolution Officer (ARO) decision dated March 11, 2024. Therefore, it is not necessary for me to repeat them at length. I will, however, provide some brief information about the case to place the issue before me in context.
On July 11, 2023, this then 20-year-old technology sales representative was moving two folding tables that each weighed approximately 50 pounds with a dolly. The worker mis stepped while moving backward, which caused the tables to fall onto their left ankle and foot. Emergency medical services assessed the worker at their home later that day and took the worker to a local hospital. The worker had x-rays taken that confirmed a distal fibula (ankle) fracture. The worker underwent left ankle surgery on July 14, 2023, that consisted of an open reduction and internal fixation procedure. A July 17, 2023, letter from the Operating Area approved initial entitlement to health care and loss of earnings (LOE) benefits for a left foot/ankle injury.
The employer offered modified duties that were available from July 17, 2023, and consisted of seated administrative tasks. The Case Manager determined the modified duties were suitable and included transportation to and from work. In the March 11, 2024, decision the ARO found the modified duties were suitable and available at no wage loss. The ARO determined the worker was not entitled to LOE benefits from July 17, 2023, until the date of the most recent claim file access in January 2024.
The worker received physiotherapy treatment after the ankle surgery. They also attended several multi-disciplinary assessments at a WSIB Lower Extremity Specialty Clinic. The final Specialty Clinic assessment occurred on July 23, 2024. The assessors opined that the ankle fracture had fully healed, and the worker could resume full duties at work with no restrictions. In an August 27, 2024, decision the Case Manager determined the worker had reached MMR by July 23, 2024, with no permanent impairment resulting from the work-related left ankle/foot injury.
The worker, through their representative, objected to the August 27, 2024, decision of the Case Manager and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment
18-05-03 – Determining the Degree of Permanent Impairment
November 3, 2014
September 29, 2023
Reference:
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
ANALYSIS
I carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker reached MMR by
July 23, 2024, with no permanent impairment resulting from the work-related left ankle/foot injury.
The Worker’s Position and Remedy Sought
The worker representative completed and returned the September 20, 2024, Appeal Readiness Form (ARF). He identified his position on the issue(s) in dispute in ARF as “NEL/LOE” but did not make submissions or provide a specific argument for consideration. The Case Manager did not address entitlement to LOE benefits in the August 27, 2024, decision. Accordingly, the issues properly before are MMR and permanent impairment for the left foot/ankle injury. Therefore, I interpret the representative’s argument to be that the worker has a permanent impairment and should therefore, be entitled to a Non-Economic Loss (NEL) benefit.
MMR and Permanent Impairment for the Left Ankle/Foot Injury
According to Policy 11-01-05 (Determining Permanent Impairment), 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. A work-related impairment is considered permanent when it continues to exist after MMR has been reached. The policy states that MMR means a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury. To determine that 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.
Policy 18-05-03 (Determining the Degree of Permanent Impairment) provides that a worker that has a permanent impairment is entitled to a NEL benefit based on the degree of their work-related permanent impairment. When determining permanent impairment, decision-makers use a prescribed rating schedule, and all relevant health care information in the claim file.
After considering the evidence, I agree with the conclusion of the Case Manager that the worker had reached MMR for the work-related injury by July 23, 2024.
The worker received an extensive amount of post-operative physiotherapy treatment and as noted earlier, attended several multi-disciplinary assessments at a WSIB Lower Extremity Specialty Clinic between March 26, 2024, and July 23, 2024. The Lower Extremity Specialty Clinic examinations were completed by Dr. Balsky (chiropractor) and Dr. McMahon (orthopaedic surgeon). Dr. McMahon was also the orthopaedic surgeon that performed the July 14, 2023, left ankle surgery.
In the report that followed their July 23, 2024, Specialty Clinic assessment, Drs. Balsky and McMahon placed the worker in the prognostic category of full functional recovery, opined the worker required no further treatment, and indicated the following:
“…We think this gentleman has fully healed his fracture and has full range of motion of the joints associated with the injury. At this point, we think there should be no further restrictions and that he can return to his full duties at work. He may have occasional twinges of discomfort in the region of the incision, but this is something that should resolve spontaneously with the passage of time. We would not restrict activity as a result of this. We have told him that occasionally, in less than 5% of cases, the hardware may be chronically symptomatic and require removal, but in the meantime, we do not think he needs to limit his activities…”
I place significant weight on the opinion and clinical findings of the Specialty Clinic assessors, particularly Dr. McMahon. He is an orthopaedic surgeon and an expert in the diagnosis and treatment of lower extremity injuries. He also performed the left ankle surgery and therefore, in my view, was in the best position to determine when the worker had reached a plateau in their post-operative recovery.
Since Dr. McMahon performed the surgery, examined the worker on multiple occasions at the Specialty Clinic and opined the left ankle fracture had fully healed with normal strength, no ligamentous instability and a full range of motion of the joints associated with the injury, I find the worker reached a plateau in recovery with no further significant improvement likely by July 23, 2024.
Having concluded the worker reached MMR by July 23, 2024, I next considered whether a residual ongoing impairment continued to persist when MMR was reached. Based on the objective clinical findings and the opinion provided by Drs. Balsky and McMahon on July 23, 2024, I find the evidence does not establish the presence of a measurable permanent let ankle impairment.
On the issue of permanent impairment, I will begin by pointing out that other than an October 16, 2023, Health Professional’s Report (Form 8) from a physiotherapist identifying the left foot as an area of injury, there are no clinical references to a specific diagnosis involving the left foot. The Lower Extremity Specialty Clinic reports contain diagnoses and examination findings specific to the left ankle/ hind foot area. As such, I find the worker does not have entitlement to a permanent left foot impairment.
With respect to the left ankle, as I noted in the quoted paragraph above the Specialty Clinic assessors stated the worker had a “full range of motion of the joints associated with the injury”. They provided the following range of motion measurements for the left ankle/hind foot:
Dorsiflexion – 20 degrees
Plantar flexion – 50 degrees
Inversion – 30 degrees
Eversion – 20 degrees
Despite the reference to the “full range of motion of the joints associated with the injury” in the report,
the examination section of the report also stated that the range of motion measurements for inversion and eversion of the hind foot were “reduced” and indicated that the normal values were 35 degrees (inversion) and 25 degrees (eversion) respectively.
Since the examination section of the Specialty Clinic report stated inversion and eversion were reduced,
I compared all of the range of motion measurements for the left ankle with Table 37 (p. 66) and Table 38 (p. 67) of the AMA Guides, which is the prescribed rating schedule Policy 18-05-03 (Determining the Degree of Permanent Impairment) refers to that is used by decision-makers to assess permanent impairment. According to Tables 37 and 38 of the AMA Guides, all of the range of motion measurements provided by the Specialty Clinic assessors are full and do not result in a measurable impairment rating. As such, I find the worker had attained a full left ankle/hind foot range of motion by the MMR date with no residual impairment.
In the Specialty Clinic report Drs. Balsky and McMahon also confirmed the fracture had healed and the worker had attained full left ankle strength with no ligamentous instability. They confirmed the neurological examination was normal and opined that the worker had full functional abilities with no restrictions. While the worker had some residual pain over the left lateral malleolus in the area of the surgical incision, the assessors felt the pain should resolve spontaneously with the passage of time.
I acknowledge that the worker may experience some residual pain, however, pain is subjective.
Given the normal objective examination findings of Drs. Balsky and McMahon on July 23, 2024, and their opinion that the worker had full functional abilities with no restrictions despite the presence of some residual lateral malleolar pain, I conclude there was no permanent left ankle impairment at the time the worker reached MMR.
In summary I agree with the conclusion reached by the Case Manager. I find the worker reached MMR by July 23, 2024, with no permanent impairment resulting from the work-related left ankle/foot injury.
CONCLUSION
I conclude the worker reached MMR by July 23, 2024, with no permanent impairment resulting from the work-related left ankle/foot injury.
The worker’s objection is denied.
DATED February 12, 2025
C. Goegan
Appeals Resolution Officer
Appeals Services Division