APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250031
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
Employer
REPRESENTED by:
Employer representative
HEARING:
HEARING IN WRITING
HEARD by:
S. Johnson, appeals resolution officer
January 3, 2025
ISSUES
The worker objects to the Case Manager’s decision letter dated November 29, 2023 that reached the following conclusions:
The worker was not totally disabled and unfit to return to any type of work beyond October 20, 2023 due to their work-related right knee injury.
The worker was partially disabled and fit to return to sedentary work duties to accommodate their work-related right knee injury.
The employer’s modified work duties are suitable for the worker’s right knee injury.
Entitlement to the payment of full loss of earnings (LOE) benefits beyond October 20, 2023 is denied.
BACKGROUND
On June 22, 2023, this MHE operator picked up a box, turned to the direction of the pallet and stepped with their left leg first followed by their right leg when their right knee buckled. The worker almost lost their balance and avoided a fall to the ground. They felt a sudden ache and pop sensation in the right knee region. They were unable to straighten their right knee or weight bear. In a telephone conversation with the Customer Service Representative on June 29, 2023, the worker described they were turning and pivoting on the right knee at the time it buckled at work on June 22, 2023.
The worker reported the incident immediately to the employer and received urgent medical treatment at an urgent care clinic. In the urgent care clinic report dated June 22, 2023, the physician diagnosed a right knee sprain/strain injury and instructed the worker to follow-up with their physician if symptoms worsened.
In a decision letter dated July 6, 2023, the Eligibility Adjudicator allowed initial entitlement to health care benefits for a right knee strain injury arising from the work incident of June 22, 2023.
The worker did not initially lose time from work and returned to modified duties based on the physician’s medical restrictions.
The worker received further medical treatment on June 27, 2023 with their family physician. In the clinic chart note for this visit, the physician documented the worker reported with increasing right knee pain due to prolonged walking at work. The physician completed the FAF and provided restrictions on walking (5 to 10 minutes maximum), no stairs, lifting up to 5 kilograms (floor to waist and waist to shoulder), no ability to drive a car, no repetitive bending and twisting of the knees at full hours for the next 30 days. The physician recommended desk work as an appropriate accommodation and referred the worker for diagnostic studies of the right knee to determine whether there were meniscal or ligament injuries.
On July 11, 2023, the worker contacted the Customer Service Representative and left a message requesting assistance from a Return-to-Work Specialist because they are having issues with not being provided suitable workplace accommodations for their right knee injury.
On July 20, 2023, the worker reported they attempted to climb up into the sit-down forklift truck when their right knee popped. The worker received emergency medical treatment at an emergency department. In the emergency department report dated July 20, 2023, the attending physician documented the worker felt a pain and pop in their right knee after they attempted to get into the cab of the forklift truck. The physician ordered the worker to use crutches until seen by the orthopaedic surgeon at the pre-scheduled visit on July 27, 2023.
In the onsite meeting with the worker, the employer, the employer representative and the Return-to-Work Specialist on July 28, 2023, the Return-to-Work Specialist confirmed the worker did not lose any time from work following the recurrence of July 20, 2023. The employer provided the worker with sedentary administrative duties in the warehouse. There is a washroom located on the warehouse ground level. The employer was able to get permission from the adjacent employer for the worker to use this ground level washroom. The worker will be introduced to using the sit-down forklift once their functional abilities improve with time and they are able to use the foot pedals. The worker returned to the sedentary administrative office duties according to the return-to-work plan and recommendations.
On October 19, 2023, the worker representative contacted the Return-to-Work Specialist to report the worker stepped down from the walkie (stand-up forklift) and experienced a shooting pain across the knee cap. The worker received onsite first aid treatment in the form of ice followed by emergency medical treatment.
In the urgent care report dated October 19, 2023, the attending physician documented the worker reported they reinjured their right knee after they stepped down off from a truck at work. The physician recommended full immobilization of the right knee and advised to follow-up with the specialist at their pre-scheduled appointment.
In a decision letter dated November 29, 2023, the Case Manager reached the following conclusions:
The worker was not totally disabled and unfit to return to any type of work beyond October 20, 2023 due to their work-related right knee injury.
The worker was partially disabled and fit to return to sedentary work duties to accommodate their work-related right knee injury.
The employer’s modified work duties are suitable for the worker’s right knee injury.
Entitlement to the payment of full LOE benefits beyond October 20, 2023 is denied based on the availability of suitable modified work duties to accommodate the worker’s right knee injury.
These are the issues for my review and determination.
PRELIMINARY HEARING IN WRITING JURISDICTIONAL MATTERS
In a submission attached to the Appeal Readiness Form dated June 15, 2024, the worker representative seeks entitlement to LOE benefits beyond October 20, 2023 including entitlement to reimbursement of health care expenses incurred to purchase the crutches and a Zimmer splint.
In a submission attached to the Respondent Form dated August 23, 2024, the employer representative submits the Appeals Services Division does not have the authority to review entitlement to health care expenses associated with the purchase of crutches and a Zimmer splint because these issues remain outstanding for review and adjudication by the operating area.
In my preliminary review of the case record, I note the Case Manager did not examine the recurrence of July 20, 2023 that led to the worker’s use of crutches and the second recurrence on October 19, 2023 that led to the immobilization of the right knee in a Zimmer splint and lost time from work beyond October 20, 2023.
I determined I was unable to proceed with a review of the issues in dispute regarding the suitability of the employer’s modified work duties and entitlement to LOE benefits beyond October 20, 2023 without addressing the outstanding issues regarding a review of entitlement to the recurrence of July 20, 2023 that led to the worker’s use of crutches, the second recurrence on October 19, 2023 that led to the worker’s use of a Zimmer splint and the lost time from work beyond October 20, 2023. I find all these issues are intertwined/interconnected in accordance with the Appeals Services Division, Practices and Procedures, Practice Guideline 4.6: Jurisdiction of Issues (published May 2024). This document states the WSIB has a legislated obligation to resolve appeals within their jurisdiction. The scope of an appeal is generally addressed based on the issue/decision that is under dispute. However, there are circumstances where whole person adjudication (related-issue adjudication) of an appeal and the expansion of the issue agenda is required. In doing so, the Appeals Services Division has exercised its powers of determining its own practices and procedures under section 131 of the Workplace Safety and Insurance Act. The Appeals Resolution Officer’s decision to expand jurisdiction in an appeal is an administrative decision as is not subject to the usual appeal rights.
I determined the facts and circumstances in this worker’s case regarding the request for entitlement to reimbursement for the purchase of crutches and a Zimmer splint and the recurrences of July 20, 2023 and October 19, 2023 are sequential issues intertwined with the issues in dispute regarding the suitability of the employer’s modified work duties and the lost time from work beyond October 20, 2023. In coming to this conclusion, I relied on the Appeals Services Division, Practices and Procedures, Practice Guideline 4:6 Jurisdiction of Issues (published May 2024), that states sequential decision-making is the need to resolve a number of issues in a particular sequence to decide an appeal.
In telephone conversations with the worker and employer representatives on November 18, 2024, I advised of the expansion of the appeal agenda to include:
Review and adjudication of entitlement to the recurrence of July 20, 2023 that includes entitlement to the purchase and use of crutches.
Review and adjudication of entitlement to the recurrence of October 19, 2023 that includes entitlement to the purchase and use of a Zimmer splint and LOE benefits beyond October 20, 2023 to the date the worker returned to full pre-injury work duties.
In a letter dated November 19, 2024, I advised the worker and employer representatives the worker’s appeal has been placed on an administrative pause and a 30-day extension granted for submissions to be made on the above expanded appeal agenda. The deadline for the submissions was established as December 20, 2024. In this letter, I also requested the worker representative submit the original receipts for proof purchase of the crutches and Zimmer splint to the case record and clarify the taxi receipts submitted for two trips on July 26, 2023 and July 27, 2023.
On December 19, 2024, the worker representative uploaded a further submission dated December 12, 2024 regarding the expanded appeal agenda to include the recurrences of July 20, 2023 and October 19, 2023. The worker representative submitted a photograph of a document dated July 20, 2023 outlining the worker’s requirement/obligation to pay for the crutches. An illegible photograph from CBI was also submitted. The receipts for proof of purchase of the crutches and Zimmer splint remains outstanding. I requested the worker representative resubmit a clear copy of the CBI document. The worker representative advised this has already been resolved and requires no formal review. The requested information about the need for taxi on July 26, 2023 and July 27, 2023 also remains outstanding. Should this outstanding requested information be submitted to the case record at a later date, I remit the review for entitlement to reimbursement of travel costs for these two dates to the Case Manager for review and adjudication.
On December 20, 2024, the employer representative provided a further submission on the expanded appeal agenda for my review and consideration.
AUTHORITY
Operational Policy Manual
Published
15-02-05 Recurrences
April 9, 2021
17-01-02 Entitlement to Health Care
January 3, 2023
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
19-02-07 RTW Overview and Key Concepts
April 9, 2021
Appeals Services Division, Practices and Procedures, published May 2024
ANALYSIS
I have carefully considered all the available information, legislation and relevant operational policies in reaching this decision.
- Entitlement to Recurrence on July 20, 2023
I find entitlement to the recurrence on July 20, 2023 is allowed.
The Operational Policy Manual (OPM) Document No. 15-02-05 – Recurrences – states that a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that:
does not result from a significant new incident/exposure, and
is clinically compatible with the original injury/disease.
Significant Deterioration
This policy states if the significant deterioration results from a significant new incident/exposure (work-related or not) a recurrence is not considered. Instead, if the significant new incident/exposure is work-related, a new claim is considered.
If the significant deterioration occurs when there is no new incident/exposure or results from an insignificant new incident/exposure (work-related or not) a recurrence is considered.
A significant new incident/exposure is one of some consequence or importance (e.g., falling from a
ladder). An insignificant new incident/exposure is one of negligible consequence or importance (e.g., reaching for an object on a shelf).
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.
Indicators of a significant deterioration may include:
the need for active (non-maintenance) clinical treatment
a change in functional abilities, or
a change in the ability to perform a job or suitable occupation.
While a worker may take an occasional day off from work, this is generally not indicative of a significant deterioration.
Clinically Compatible
This policy states that, to establish that the significant deterioration is clinically compatible with the original injury/disease, the WSIB must determine that:
the body parts and/or functions affected now are the same as, or related to, those affected by the original injury/disease, and
there is a causal link between the significant deterioration and the original injury/disease.
To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury/disease and any relevant non-work-related conditions that are present.
Worker Representative Submission
In a submission dated December 12, 2024, the worker representative submits the medical evidence supports the recurrence of July 20, 2023 is directly attributable to the original work incident of June 22, 2023. In support of this position, the worker representative relied on the clinic chart note dated July 25, 2023 that documented the worker was seen with complaints of right knee pain after they heard a pop while trying to bring their right leg over to the other side in an attempt to sit properly in the forklift truck.
Employer Representative Submission
In a submission dated December 20, 2024, the employer representative prepared a chronological comprehensive summary of the information documented to the case record (both medical and non-medical evidence) from June 22, 2023 to July 31, 2023. The employer representative submits the recurrence of July 20, 2023 should be denied because there is no objective medical evidence to support the worker’s right knee condition deteriorated as a result of the alleged climbing incident. In support of this position, the employer representative relied on the clinical objective medical evidence submitted to the case record prior to the recurrence of July 20, 2023. In the Musculoskeletal Program of Care Report dated July 14, 2023, the chiropractor documented clinical objective examination observed no visible swelling, discoloration or deformity in the right knee. The worker had no right knee instability and active range of motion.
It was pointed out the worker would be entering from the left side of the vehicle and lifting the right leg to enter the vehicle. The body weight would be placed on the uninjured left leg.
The employer representative contends the worker’s knee problems are entirely in keeping with their prior knee symptoms and not any new incident.
Based on the above, the employer representative submits entitlement to the claimed recurrence of July 20, 2023 should be denied because there is no objective evidence on file to support a worsening of their right knee strain injury.
Findings
I find the first criterion in the OPM Document No. 15-02-05 – Recurrences – has been established to support the recurrence of the worker’s right knee symptoms at work on July 20, 2023 requiring emergency medical treatment is not due to a significant new incident/exposure of some consequence or importance. In support of this finding, I relied on the worker’s evidence. In a telephone conversation with the Case Manager on July 20, 2023 at 3:34 pm, the worker reported they were not doing well because they hurt their right knee at work again. They attempted to climb into the sit-down forklift truck when their right knee popped. They reported the incident immediately to the employer and received urgent medical treatment.
The worker’s evidence is consistent with the medical evidence. In the emergency department report dated July 20, 2023, the worker reported they were climbing onto the forklift, attempted to straighten their right knee when they went to sit down on the seat when it popped. The worker experienced a sudden onset of anterior right knee pain radiating down to the proximal tibial.
I am unable to agree with the employer representative’s interpretation of the evidence regarding the sequence of events that happened at work on July 20, 2023 because it is an inaccurate analysis of the recurrence history. The employer representative provided an argument about how the worker enters the left side of the vehicle and their body weight would be placed on the uninjured left leg. Based on this analysis, it was put forth the worker’s right knee problems are entirely in keeping with their prior knee symptoms and not any new incident. I note there is nothing documented to the case record to suggest the worker experienced their right knee pain while entering the forklift. The worker’s increased right knee pain occurred after they attempted to straighten their right knee out to sit down on the seat of the forklift. It was at this precise moment the worker felt their right knee pop with sudden pain.
I then examined the second criterion in the OPM Document No. 15-02-05 – Recurrences – that states the significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. The worker representative submits the medical evidence supports this condition has been met. The employer representative rebuts this position and contends the weight of the clinical objective medical evidence submitted to the case record before the recurrence of July 20, 2023 does not support a marked degree of deterioration in the work-related right knee impairment.
I am unable to agree with the employer representative’s position the worker’s improvement with Board-approved medical treatment is justification to support the worker should not have ongoing entitlement following the recurrence of July 20, 2023. I acknowledge the worker was improving with medical treatment and progressed in their return-to-work plan activities from sedentary work duties to operating the forklift truck after the original work incident of June 22, 2023. This issue is not in dispute and well-documented in the contemporaneous medical and other reporting documents.
I accord the greatest amount of weight to the emergency department report dated July 20, 2023 that supports the worker experienced a significant deterioration in their work-related right knee impairment. In this report, the attending physician observed an antalgic gait. Right knee x-rays observed small joint effusion which is another term used for swelling. The physician recommended the worker use crutches to ambulate until seen by the orthopaedic surgeon at their pre-scheduled appointment on July 27, 2023. In the Health Professional’s Report (Form 8) dated July 20, 2023, the physician opined the working diagnosis was a right knee meniscal sprain/strain injury. The physician instructed the worker not to weight-bear on the right leg until cleared by the orthopaedic surgeon.
The attending emergency physician is the first health professional to assess the worker immediately following the recurrence of July 20, 2023 and in the best position to provide clinical recommendations and treatment based on the objective examination of their right knee. There is nothing in this medical report to suggest the worker did not experience a significant deterioration. The medical reports are accurate and based on a complete understanding of the facts and circumstances surrounding the recurrence of July 20, 2023 and the need for urgent medical treatment. I also find the clinical recommendations for the worker to use crutches until seen by the orthopaedic surgeon is a reasonable, practical, necessary and sound approach out of an abundance of caution and to prevent further potential internal or structural damage to the right knee region.
The medical evidence from the attending emergency physician is consistent with the medical evidence from the physician and the chiropractor. I have taken particular note of the following:
In the clinic visit on July 25, 2023, the physician documented the worker reported they injured their right knee after trying to sit properly and trying to bring the right leg over to the other side when they heard a pop. Clinical objective examination of the right knee observed an antalgic gait, using crutches, swelling and tenderness to palpating the right knee medial joint line. In the FAF dated July 25, 2023, the physician amended the worker’s functional restrictions to sedentary desk work, walking up to 50 meters, standing 5 to 10 minutes, no lifting, no stairs, no ladders, no bending, no twisting, no operating motorized equipment, no kneeling and no weight-bearing on the right knee and leg. These restrictions were to remain in effect until seen by the orthopaedic surgeon on July 27, 2023.
In the FAF dated July 31, 2023, the chiropractor amended the worker’s restrictions to include the single arm use of crutches to maintain balance. The worker demonstrated poor stability while lifting in a standing position.
During the continuity period from July 31, 2023 to the last treatment session on September 7, 2023, the chiropractor accurately and consistently documented the need for the worker to use crutches for stability as they continued to increase their weight-bearing tolerances while standing, walking and using stairs.
It is instructive the chiropractor is the worker’s primary health care professional who was responsible for the worker’s active medical treatment plans and clinical recommendations for recovery and restrictions while they participated in their health care treatment and return-to-work planning activities with the employer. I find the chiropractor is in the best position to determine the worker’s need for the use of their crutches following the recurrence of July 20, 2023 and their recovery recommendations. At the time of the last treatment on September 7, 2023, the chiropractor observed an antalgic gait pattern with the use of crutches for ambulation and diminished right knee weight-bearing. Despite treatment, minimal improvement was reached.
I find all the required elements in second criterion in the OPM Document No. 15-02-05 – Recurrences – have been established to support a significant deterioration in the worker’s work-related right knee impairment because there is a change in the worker’s functional abilities, a change in the workplace accommodations to sedentary desk work and the use of crutches until seen by the surgeon on July 27, 2023.
The third criterion in the OPM Document No. 15-02-05 – Recurrences – states the significant deterioration must be clinical compatible with the original injury/disease. I find this condition has been met.
The worker representative pointed out the area of injury is the same as the original right knee injury arising from the work incident of June 22, 2023. The contemporaneous medical evidence submitted to the case record beyond the date of the recurrence on July 20, 2023 supports a relationship exists between the significant deterioration on July 20, 2023 and the work-related right knee injury of
June 22, 2023. The employer representative rebuts this position and contends the worker’s recurrence of right knee pain symptoms on July 20, 2023 and the medical treatment plan requiring the use of crutches are due to a prior history of right knee symptoms.
I have already established the weight of the clinical objective medical evidence supports a significant deterioration in the worker’s work-related right knee impairment following the recurrence of July 20, 2023. There is no need to revisit previously resolved matters.
I am unable to agree with the employer representative’s position the worker’s right knee symptoms are due to a prior history of right knee problems because it is speculative and unsupported. I prefer the weight of the medical evidence submitted to the case record that does not support the worker’s right knee problems are due to something other than the original work incident of June 22, 2023. In coming to this conclusion, I relied on the physician’s extensive clinic chart notes dating back to October 26, 2022. In my examination of this evidence, I note the worker was seen on one occasion only on February 7, 2023 with secondary complaints of generalized bilateral knee pain. The primary reason for this visit was for a non-work-related condition. I find this stand-alone visit is of no clinical significance because the physician did not examine the worker’s knees, did not provide a diagnosis and did not recommend any active medical treatment plans or interventions. The employer representative did not provide any valid, cogent or reliable other medical evidence to rebut this finding.
I conclude all the required elements in the OPM Document No. 15-02-05 – Recurrences – have been established to support entitlement to health care benefits for the recurrence of the worker’s work-related right knee impairment.
I note the case record documents there is no lost time from work associated with the recurrence of July 20, 2023. In support of this finding, I relied on the worker’s evidence. In a telephone conversation with the Case Manager on July 21, 2023, the worker confirmed they called in sick today because they had a cough and called in the sick line. They reported someone was coughing at the hospital on July 20, 2023. The worker also confirmed the supervisor offered a return to modified work duties that included transportation to work. The worker declined the offer due to their non-work-related absence (cough).
- Entitlement to the Purchase of Crutches
I have already accepted entitlement to the recurrence of the worker’s right knee injury of July 20, 2023 including the clinical recommendation for the use of crutches. There is no need to re-examine previously resolved matters.
I find the worker is entitled to reimbursement for the purchase of crutches once proof of purchase (paid receipt, credit card, online banking transaction, cheque or money order) paid in full to the community health care centre has been submitted to the case record.
The OPM Document No. 17-01-02 – Entitlement to Health Care – states a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury. This policy provides the decision-maker with the definitions of a health professional as physicians and chiropractors and the definitions of health care as assistive devices and prostheses.
I find all the required elements in the OPM Document No. 17-01-02 – Entitlement to Health Care – have been established to support entitlement to reimbursement of costs for the purchase of crutches. These elements include:
The attending emergency physician medically sanctioned and prescribed the need for the worker to use crutches until assessed by the orthopaedic surgeon at the pre-scheduled appointment on July 27, 2023.
The worker’s physician and chiropractor clinically recommended the continued use of crutches for stability.
I accept the use of crutches as an appropriate medical recommendation and restriction following the recurrence of July 20, 2023.
In a telephone conversation with the worker representative on November 18, 2024 and in my letter dated November 19, 2024, I advised of the requirement for the worker to submit proof of purchase (my emphasis) for the crutches. The worker representative submitted an agreement between the worker and the community health care centre about the worker’s understanding, obligations and methods of payment for the purchase of the crutches prescribed on July 20, 2024. This document is not proof of purchase for out-of-pocket expenses the worker incurred to purchase the prescribed crutches for their right knee recurrence. It is instructive the Case Manager has also requested the worker submit proof of purchase for the crutches for consideration of reimbursement for the payment of crutches. Despite these requests, the actual receipt that confirms the date and payment made in full for the purchase of the crutches remains outstanding.
I conclude the worker is entitled to reimbursement for out-of-pocket expenses incurred for the purchase of crutches once the receipt confirming proof of purchase/paid in full is submitted to the case record.
- Entitlement to Recurrence on October 19, 2023
I find entitlement to the recurrence of the worker’s work-related right knee injury on October 19, 2023 is allowed.
Worker Representative Submissions
In submissions dated January 6, 2024, June 12, 2024 and December 12, 2024, the worker representative relied on the medical evidence that included the emergency department report dated October 19, 2023, the physician’s medical evidence and the WSIB Lower Extremity Specialty Program Reports that document the worker reported the recurrence of their work-related right knee injury on October 19, 2023.
Employer Representative Submissions
In submissions dated August 23, 2024 and December 20, 2024, the employer representative does not dispute the worker’s evidence about the recurrence of October 19, 2023 that involved an increase in right knee pain after stepping down five inches from the forklift truck. Where the employer representative disagrees is there is no clinical objective medical evidence to support the worker should remain off from work beyond October 19, 2023. It was put forth the recommendation for the use of a knee immobilizer (Zimmer splint) was prescribed as a precautionary measure and not based on any objective medical evidence. It was also pointed out that the use of the Zimmer splint would provide the worker with more mobility since the device resolves the instability in the knee joint.
The employer representative relied on the orthopaedic surgeon’s consultation report dated October 26, 2023 that does not provide any clinical recommendations regarding the use or need for the Zimmer splint following the recurrence of October 19, 2023. This medical opinion is consistent with the orthopaedic surgeon’s medical opinion at the time of the WSIB Lower Extremity Specialty Program Assessment on November 9, 2023. In the WSIB Lower Extremity Specialty Program Comprehensive Assessment Report dated November 9, 2023, the orthopaedic surgeon opined the working diagnosis was a right knee sprain/strain and strongly recommended against the use of a Zimmer splint.
During the entire period in dispute from October 19, 2023 to the date the worker returned to work on March 7, 2024, the employer has provided the worker with a longstanding offer of suitable work to accommodate the functional restrictions for their right knee impairment. This employer has also demonstrated their willingness and commitment to adjust the modified work duties according to the worker’s needs, concerns, complaints and updated functional information. It was put forth the medical opinions expressed by the orthopaedic surgeon at the time of the clinic visit on October 26, 2023 regarding the employer’s inability to provide the worker with modified work duties is patently false and based on information provided by the worker that is incorrect. The sole reason the orthopaedic surgeon’s recommendation that the worker remain off from work is because of the heavy nature of their pre-injury work duties. There is also nothing in this report that makes notable reference to the use or need of a Zimmer splint.
Based on the above, the employer representative submits entitlement to the recurrence of
October 19, 2023 should be denied because there is no evidence of a significant deterioration in the worker’s work-related right knee impairment. The change in the worker’s clinical status from a level of partial disability to a level of total disability is based on patently false information provided by the worker that suggested there was no suitable modified work duties available to accommodate their right knee impairment. This is incorrect and not reflective of this employer’s willingness and ability to co-operate in all return-to-work activities with this worker since the work incident of June 22, 2023. The employer has continued to adjust the worker’s modified work duties to suit their needs, complaints and updated functional information since the work incident of June 22, 2023.
Findings
I find the first criterion in the OPM Document No. 15-02-05 – Recurrences – has been established to support the recurrence of the worker’s right knee symptoms at work on October 19, 2023 requiring emergency medical treatment is not due to a significant new incident/exposure of some consequence or importance. In coming to this conclusion, I relied on the employer’s evidence. In a telephone conversation with the Case Manager on October 20, 2023, the employer representative reported the worker stepped off a machine approximately five inches and reported an increase in right knee pain. First aid treatment in the form of ice was applied to the knee. The worker received urgent medical treatment at a community health care centre on October 19, 2023.
The employer’s evidence is consistent with the medical evidence. In the urgent care clinic report dated October 19, 2023, the attending emergency physician documented the worker stepped off the forklift truck and down when they developed increased pain to the top of the right knee region with associated swelling. On clinical assessment, the attending emergency physician observed suprapatellar effusion. The worker was able to weight bear yet noted pain on the right lateral aspect of the knee. The attending physician recommended a knee immobilizer and the worker accepted the charges. The forms for the knee immobilizer brace were provided to the worker and their mother. The worker left the emergency department room on their own crutches. The physician faxed the chart notes for the urgent visit on October 19, 2023 to the orthopaedic surgeon for review at the next scheduled follow-up appointment.
I then examined the second criterion in the OPM Document No. 15-02-05 – Recurrences – that states there must be a significant deterioration in the work-related impairment. I find this condition has been met. In support of this finding, I relied on the urgent care clinic dated October 19, 2023. In this report, the attending emergency physician observed suprapatellar effusion and a positive McMurray’s test. While right knee x-rays were negative for acute injury, the attending physician recommended immobilization of the right knee and follow-up with the orthopaedic surgeon. The attending emergency physician had the opportunity to assess the worker immediately following the recurrence and provide clinical recommendations based on that examination that included immobilization of the right knee until seen by the orthopaedic surgeon.
I acknowledge the employer representative’s position there is no reasonable basis for the immobilization of the right knee. I am unable to agree with this position. In my view, this worker experienced a second recurrence at work on October 19, 2023 after stepping down five inches from the forklift truck. Since this is the second recurrence involving the right knee region in a period of three months following the original work incident of June 22, 2023, I find the recommendation for immobilization of the knee with the Zimmer splint is a practical and reasonable approach to prevent further instability or damage to the right knee until assessed by the orthopaedic surgeon on October 26, 2023.
I find the significant deterioration in the worker’s right knee impairment on October 19, 2023 is clinically compatible with the original work injury of June 22, 2023. There is no dispute the area and location of the worker’s right knee symptoms and complaints have remained unchanged since the work incident of June 22, 2023. Given the history of recurrences with the slightest amount of increased physical exertion and activity, the worker’s right knee was immobilized in a Zimmer splint until assessed by the orthopaedic surgeon on October 26, 2023.
I conclude all the required elements in the OPM Document No. 15-02-05 – Recurrences – have been established to support the allowance of entitlement to the recurrence on October 19, 2023.
- Entitlement to Purchase of Zimmer Splint
Since I have allowed entitlement to the recurrence of October 19, 2023 and medically sanctioned immobilization of the right knee region, I find entitlement to the purchase and use of the prescribed Zimmer splint is allowed.
I find all the required elements in the OPM Document No. 17-01-02 – Entitlement to Health Care – have been established to support entitlement for reimbursement of out-of-pocket expenses associated with the purchase of the Zimmer splint.
These elements include:
The attending emergency physician medically sanctioned and prescribed the need for immobilization of the right knee in a brace until assessed by the orthopaedic surgeon at the pre-scheduled appointment on October 26, 2023.
I have already accepted the use of a Zimmer splint for immobilization of the right knee following the recurrence of October 19, 2023.
In a telephone conversation with the worker representative on November 18, 2024 and in my letter dated November 19, 2024, I advised of the requirement for the worker to submit proof of purchase (my emphasis) for the Zimmer splint. Despite these requests, the actual receipt that confirms the date and out-of-pocket expenses the worker incurred to purchase the Zimmer splint remains outstanding.
I conclude the worker is entitled to reimbursement for out-of-pocket expenses incurred for the purchase of the Zimmer splint once the receipt confirming proof of purchase/paid in full is submitted to the case record.
- (a) Level of Impairment from October 19, 2023 to October 26, 2023
I find the worker was temporarily totally disabled and unfit to return to any type of work during the period from October 20, 2023 to October 26, 2023.
The OPM Document No. 11-02-02 – Lost Time Claims – states while the worker is unable to perform any type of work (total disability/impairment), the WSIB issues wage loss benefits or loss of earnings benefits. The WSIB monitors the claim through the use of progress reports, which are reviewed as often as the severity of the injury dictates to ensure the worker is recovering as expected.
Worker Representative Submissions
In submissions dated January 6, 2024, June 15, 2024 and December 20, 2024, the principal argument put forth by the worker representative is the worker was medically authorized to remain off from work beyond October 20, 2023 until assessed by the orthopaedic surgeon at the follow-up appointment to determine the extent of damage to the right knee region. The worker followed the direction of the treating medical professional and immobilized their right knee in the Zimmer splint until seen by the orthopaedic surgeon.
Employer Representative Submissions
In submissions dated August 23, 2024 and December 20, 2024, the employer representative contends there are no clinical objective findings to support the worker was totally disabled and unfit to return to any type of work following the recurrence of October 19, 2023. In the absence of this evidence, the employer representative agrees with the Case Manager’s decision to discount the clinical recommendations on the physician’s FAF dated October 19, 2023 that recommended the worker remain off from work until seen by the orthopaedic surgeon in two weeks.
The employer representative relied on the contemporaneous medical evidence submitted to the case record beyond October 19, 2023 that supports the worker was partially disabled and fit to return to modified work duties to accommodate their right knee impairment.
Findings
I accord significant weight to the attending emergency physician’s medical report dated October 19, 2023 that unequivocally supports the worker was temporarily totally disabled and unfit to return to any type of work, either pre-injury or modified, until seen by the orthopaedic surgeon. The attending emergency physician had the opportunity to examine the worker’s right knee region immediately after the recurrence of October 19, 2023, obtain the worker’s history of re-injury, examine the right knee and document the clinical objective findings that included suprapatellar effusion and a positive McMurray’s test.
I acknowledge the employer representative’s position there is no basis to accept the medical opinions and treatment recommendations provided by the attending emergency physician at the time of the visit on October 19, 2023. The employer representative prefers the Case Manager’s decision to discount the medical recommendations for total impairment. I am unable to agree with this position. In my view, the attending emergency physician is in the best position to provide clinical recommendations and advice regarding the worker’s treatment after the urgent visit on October 19, 2023. The attending emergency physician had the opportunity to examine the worker’s past emergency record reports for the previous emergency visits on June 22, 2023 and July 20, 2023 and the previous diagnostic studies. The attending emergency physician’s medical report is objective, balanced and based on a comprehensive and accurate understanding of the worker’s history of injury dating back to June 22, 2023. I find the attending emergency physician sanctioned a practical and reasonable approach to temporarily immobilize the worker’s right knee until they were assessed by the orthopaedic surgeon at a pre-scheduled appointment in the next week.
In my view, this worker did nothing more than they could have done by following the advice of the attending emergency physician to immobilize the right knee in the Zimmer splint until seen by the orthopaedic surgeon at the next scheduled follow-up visit.
I conclude the threshold criterion in the OPM Document No. 11-02-02 – Lost Time Claims – has been established. My examination of the clinical information supports the worker was temporarily totally disabled beyond October 20, 2023 and unfit to return to any type of work due to the recurrence of their right knee impairment.
(b) Level of Impairment beyond October 26, 2023
I find the worker was partially disabled as of October 26, 2023 and fit to perform sedentary work duties to accommodate their right knee impairment.
The OPM Document No. 11-02-02 – Lost Time Claims – states the WSIB determines, through the review of clinical information, when a worker is fit to go back to their pre-injury work, or suitable and available work.
The worker and the employer representatives do not dispute the worker was partially disabled and fit to perform sedentary work duties to accommodate their right knee impairment beyond October 26, 2023. I agree with this position.
In my examination of the clinical information submitted to the case record, I relied on the following medical evidence that supports the worker was partially disabled by October 26, 2023 and fit to return to sedentary work duties to accommodate their right knee impairment:
In a medical report dated October 26, 2023, the orthopaedic surgeon documented clinical examination of the right knee found no instability and no effusion. A repeat MRI was recommended to ensure no additional structural right knee pathology. The worker was advised to continue on with therapy. The orthopaedic surgeon opined the worker was fit for sedentary tasks only for the time being and unable to return to physical work (normal duties). A follow-up appointment was scheduled after the right knee MRI was completed.
In the WSIB Lower Extremity Specialty Program Comprehensive Assessment Report dated November 9, 2023, the orthopaedic surgeon noted clinical examination of the right knee revealed a positive patellar grind, positive Clarke sign, positive McMurray’s test for lateral meniscus (no click) and tenderness on palpation of the right medial knee pes anserine, lateral joint line, peripatellar area and right medial joint line. The working diagnosis was a right knee sprain/strain at the patellofemoral joint which is consistent with the mechanism of injury. There were no relevant non-occupational diagnoses. The clinical recommendations for immobilization of the right knee are inappropriate and the worker was advised to start an active rehabilitation treatment program to restore full range of motion, functional strength, normal gait, functional balance, agility and proprioception. A graduated return-to-work plan was recommended with a return to full hours by November 30, 2023. The worker’s functional restrictions included:
o walking up to 5 minutes
o standing up to 5 minutes
o sitting 30 minutes to one hour
o 10 stairs maximum at on pace with a railing
o no lifting floor to waist
o rare to occasional lifting waist to shoulder at own pace (0-5 kilograms)
o rare to occasional lifting above shoulder at own pace (0-5 kilograms)
o able to open/close light doors
o able to drive car as tolerated and use public transportation
o avoid ladder climbing
o avoid low work, full squat, twisting on right knee while weight bearing
o return at 4 hours per shift, working at own pace
o take 5-10 minute breaks every one hour to perform therapy exercises
o office duties are appropriate
o increase to 6 hours per shift November 23, 2023 modified duties
o increase to 8 hours per shift November 20, 2023 modified duties
o discontinue use of Zimmer splint and replace with a pull-on sleeve to improve awareness of knee in space and not interfere with mobility
The medical opinions expressed by both orthopaedic surgeons are consistent with each other regarding the worker’s level of partial disability and fitness to return to sedentary work duties by October 26, 2023. There is nothing documented in these reports to suggest the worker was totally disabled and completely incapable of returning to any type of work beyond October 26, 2023. I note the Case Manager’s letter dated November 29, 2023 accepted the following restrictions:
o walking up to 5 minutes
o standing up to 5 minutes
o sitting 30 minutes to 60 minutes
o 10 stairs maximum at own pace with a railing
o no lifting floor to waist (avoid)
o rare to occasional lifting waist to shoulder at own pace (0-5 kilograms)
o rare to occasional lifting above shoulder at own pace (0-5 kilograms)
o avoid ladder climbing
o avoid low work, full squat, twisting on right knee while weight bearing
The orthopaedic surgeon at the WSIB Lower Extremity Specialty Program is a medical expert with specialized training in the assessment and treatment of lower extremity injuries. They had the opportunity to complete a comprehensive review of the worker’s entire medical brief dating back to the work incident of June 22, 2023 that included all specialist consultations, emergency visits and diagnostic tests. The medical report is objective, balanced and based on an accurate understanding of the facts and circumstances of this worker’s right knee impairment at the time of the assessment on
November 9, 2023.
I conclude the weight of the medical evidence from the two orthopaedic surgeons supports the worker was partially disabled as of October 26, 2023 and fit to return to sedentary work duties to accommodate their right knee impairment.
- Suitability of Employer’s Modified Work Duties
I find the employer’s modified work duties are unsuitable because they are not available.
The OPM Document No. 19-02-07 – RTW Overview and Key Concepts – states suitable work means post-injury work that is safe, productive, consistent with the worker’s functional abilities, and that restores the worker’s pre-injury earnings, to the greatest extent possible.
This policy also provides the decision-maker with guidelines on available work that exists with the injury employer at the pre-injury worksite or at another worksite arranged by the employer.
Worker Representative Submissions
The worker representative submits the employer’s generic offer of modified work duties dated
October 20, 2023 is unsuitable because the worker required sedentary duties with the provision of travel arrangements to and from the workplace which were never addressed. It was pointed out the case picking and sit-down counterbalance job duties to be performed at 30-minute intervals are unsuitable because the worker was still in a period of immobilization while waiting to see the orthopaedic surgeon at the time of the consultation on October 26, 2023. Both the worker and the worker representative have reached out to the WSIB Return-to-Work Specialist countless times for assistance with return-to-work planning activities with the employer. The Case Manager declined this assistance because the worker chose to remain off work (Memo A0054).
The worker representative highlighted there is no formal offer of any sedentary paperwork duties documented to the case record or in any of the telephone conversations with the employer representative. In the absence of this evidence, the worker should not be penalized. There is a complete disregard and misleading of the claim information regarding the return-to-work planning activities and what was actually offered to the worker on October 20, 2023. The worker has been willing and able to return to modified duties to accommodate their right knee impairment while they actively participated in their recommended treatment programs.
Employer Representative Submissions
The employer representative contends the employer provided this worker with suitable modified work duties to accommodate their right knee impairment. In support of this position, the employer representative relied on the employer’s past history of consistently providing the worker with alternate suitable work to accommodate their right knee impairment and concerns. It was pointed out the WSIB Return-to-Work Specialist consistently reported the employer’s willingness to accommodate the worker’s right knee injury and restrictions that included periodic case picking activities, periodic forklift operations and office duties.
Findings
There is no dispute both the employer and the worker fulfilled their duties and obligations in their return-to-work planning activities since the work incident of June 22, 2023 to the date of the recurrence of October 19, 2023. This is well-documented to the case record.
I have already determined the worker was totally disabled and unfit to return to any type of work from October 20, 2023 to October 26, 2023 and reached a level of partial disability/impairment as of October 26, 2023. There is no need to revisit previously resolved matters.
The issue to be resolved is whether the employer provided the worker with a formal offer of suitable and
available sedentary modified work duties as of October 26, 2023. I find this condition has not been met.
Both the worker and employer representatives ably presented their arguments regarding their position on the employer’s modified work duties. The worker representative contends the employer never offered the worker a return to sedentary work duties. The employer representative rebuts this position and submits there was suitable modified work available for the worker to perform at no wage loss and supported by the Return-to-Work Specialist.
In my examination of the case evidence, I agree with the worker representative’s position the employer has not provided the worker with a bona fide offer of sedentary work duties following the orthopaedic assessment on October 26, 2023 or after the Case Manager issued a letter dated November 29, 2023 to the worker and employer outlining the accepted functional restrictions for the worker’s right knee impairment based on the WSIB Lower Extremity Specialty Program Assessment on November 9, 2023.
To the extent the employer has provided the worker with modified work duties in the past is not justification, in and of itself, to suggest this is substantive evidence to support the offer of modified work duties beyond October 26, 2023. In the absence of this evidence, I accord the greatest amount of weight to telephone conversations between the Return-to-Work Specialist, the Case Manager and the employer representative. On October 23, 2023, the employer representative advised the Return-to-Work Specialist they did not think the employer could accommodate the worker due to their lack of mobility with the use of the Zimmer splint. In a subsequent telephone conversation with the employer representative on October 24, 2023, the Case Manager advised the employer representative to offer the worker light duties that involved less walking and more seated work. The employer representative advised that they would have to discuss this with the employer. There is nothing documented to the case record about the outcome of this discussion and whether the employer had the ability to provide the worker with alternative sedentary work duties to accommodate their right knee impairment.
I find it significant the employer had a further opportunity to provide the worker with a formal offer of a return to modified work duties following the Case Manager’s subsequent letter dated November 29, 2023 that summarized the WSIB Lower Extremity Specialty Program Assessment on November 9, 2023 and the accepted functional restrictions for the worker’s right knee impairment. In my examination of the case record during the continuity period from October 26, 2023 to March 7, 2024, there is a complete absence of evidence to support the employer provided the worker with a bona fide offer of a return to modified sedentary work duties to accommodate their right knee impairment within the accepted functional restrictions. I note during this period, the Case Manager left a considerable number of telephone messages with the employer representative to obtain an update on return-to-work planning activities. No updates were submitted to the case record either verbally or in writing. In a telephone conversation with the employer representative on December 4, 2023, the Case Manage advised of the updated accepted restrictions and letter sent in the mail on November 29, 2023 for return-to-work planning activities.
There is a complete absence of evidence from the employer to suggest there was suitable modified work duties offered and made available to the worker beyond October 26, 2023. In the absence of this evidence, I accord significant weight to the worker’s evidence regarding their attempt to receive Return-to-Work Services assistance to co-ordinate return-to-work planning activities with the employer. Despite these attempts, the Case Manager declined to provide any further assistance and Return-to-Work Services were closed.
I am unable to agree with the employer representative’s position the Return-to-Work Specialist already found the modified work duties of case picking and operating a forklift truck were suitable because this finding was made before the recurrence of October 19, 2023 and at a point in the worker’s recovery where they were progressing and able to perform some aspects of their pre-injury duties picking and operating a forklift truck for half the shift at 30 minute intervals and sedentary work for the remaining half of the shift. In this report, the forklift requires constant standing and leaning and the picking requires walking to place items onto the pallet. I note the worker’s functional restrictions significantly changed after the recurrence of October 19, 2023 to include walking and standing to a maximum of five minutes. I am unable to reconcile how the worker would competently execute the picking and forklift duties when the accepted functional restrictions documented in the Case Manager’s decision letter dated November 29, 2023 included the ability to stand and walk for a maximum of five minutes in duration.
Based on the above, I find the employer’s modified work duties are unsuitable because the threshold criterion for available in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts – has not been met. The weight of the evidence supports there was no suitable modified work duties offered and made available to the worker during the period in dispute from October 26, 2023 up to but not including the date they returned to modified work duties on March 7, 2024.
- Entitlement to Full LOE Benefits from October 20, 2023 to March 7, 2024
I find entitlement to full LOE benefits from October 20, 2023 up to but not including March 7, 2024 is allowed.
The OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – states if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work process.
In accepting entitlement to the payment of full LOE benefits from October 20, 2023 up to but not including March 7, 2024, I relied on the following:
I have allowed entitlement to the recurrence of October 19, 2023.
I have determined the worker was temporarily totally disabled and unfit to return to any type of work, either pre-injury or modified, from October 20, 2023 up to but not including October 26, 2023.
I have determined the worker was partially disabled as of October 26, 2023 and fit to return to sedentary work duties.
I have determined no suitable work was offered and made available to the worker beyond October 26, 2023 to accommodate the functional restrictions for their work-related right knee impairment.
The worker was fully co-operative in their return-to-work and medical treatment recovery plans during the period in dispute from October 26, 2023 up to the date they returned to modified work duties on March 7, 2024.
I acknowledge there was a breakdown in communication between the employer and the worker following the last recurrence on October 19, 2023. This led to a state of confusion regarding the next steps in the worker’s recovery and return-to-work outcomes. Despite this obstacle, both the employer and the worker made attempts to seek assistance from the Case Manager and the Return-to-Work Specialist to resolve the dispute regarding the worker’s ability to return to modified work duties. Both the Case Manager and Return-to-Work Specialist declined to provide the employer and the worker with the requested assistance.
With the benefit of retroactive adjudication, it is clear both the employer and the worker attempted, to the best of their abilities, to fulfil their duties and obligations in the return-to-work process. The worker remained co-operative in their return-to-work and recovery activities following the original work incident of June 22, 2023 and the two subsequent recurrences on July 20, 2023 and October 19, 2023. This aspect of the worker’s case is not in dispute and well-documented in the case record. In my view, the worker’s request for Board assistance and Return-to-Work Services following the last recurrence on October 19, 2023 reflects their commitment to actively participate in the return-to-work process. There is nothing documented to the case record to suggest the worker attempted to detract, avoid or undermine their return-to-work planning duties and obligations. I find this worker did nothing more than they could have done by asking the Board for help with return-to-work planning activities, actively participating in their recommended medical treatment plan and providing the employer with regular updates on their recovery and progress that led to a successful return-to-work outcome on March 7, 2024. In a letter dated March 8, 2024, the employer representative confirmed the worker returned to modified work duties at no wage loss on March 7, 2024 according to the WSIB Specialty Clinic Report recommendations documented in the report dated February 29, 2024.
I conclude all the required elements in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – have been established to support entitlement to the payment of full LOE benefits during the entire period in dispute from October 20, 2023 up to but not including the date the worker returned to modified work duties on March 7, 2024.
I note the worker representative is seeking entitlement to LOE benefits to April 15, 2024. I am unable to make a finding on this issue because there is a discrepancy regarding the worker’s lost time following their return to work on March 7, 2024. I remit this issue to the Case Manager to conduct further enquiries for review and adjudication of entitlement to LOE benefits from March 7, 2024 to April 15, 2024.
CONCLUSION
I conclude:
Entitlement to health care benefits for the recurrence of July 20, 2023 is allowed.
Entitlement to reimbursement for the purchase of crutches is allowed once the worker submits the appropriate proof of purchase/receipt.
Entitlement to the recurrence of October 19, 2023 is allowed.
Entitlement to reimbursement for the purchase of a Zimmer splint is allowed once the worker submits the outstanding requested proof of purchase/receipt for this item.
(a) The worker is totally disabled and unfit to return to any type of work from October 20, 2023 up to but not including October 26, 2023
(b) The worker is partially disabled as of October 26, 2023 and fit to return to sedentary work
duties for their right knee impairment.
The employer’s modified work duties beyond October 26, 2023 is unsuitable because it is not available.
Entitlement to full LOE benefits from October 20, 2023 up to but not including March 7, 2024 is allowed.
I direct the Case Manager to:
Conduct enquiries with the worker and the employer to determine what lost time, if any, the worker incurred from March 7, 2024 to April 15, 2024. Once these enquires are completed, review and adjudicate the worker’s entitlement to LOE benefits during this period and communicate the results of this review in writing to all workplace parties, subject to the usual right of appeal.
Review and adjudicate the worker’s entitlement to reimbursement for taxi expenses incurred on July 26, 2023 and July 27, 2023 once the worker submits the outstanding information about these trips (travel address to and from the destination and the treating agency’s stamp/name and signature). Communicate the results of this review to the workplace parties in writing, subject to the usual right of appeal.
The objection is allowed.
DATED January 3, 2025
S. Johnson
Appeals Resolution Officer
Appeals Services Division