WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 2425/15
BEFORE:
S. Netten
E. Tracey
D. Besner
: Vice-Chair
: Member Representative of Employers
: Member Representative of Workers
HEARING:
November 5, 2015 at Ottawa
Oral
DATE OF DECISION:
December 1, 2015
NEUTRAL CITATION:
2015 ONWSIAT 2733
DECISION UNDER APPEAL:
WSIB Appeals Resolution Officer decision dated January 8, 2013
APPEARANCES:
For the worker:
S. Dajczak, Lawyer
For the employer:
L. Russell, Paralegal
Interpreter:
None
Workplace Safety and Insurance
Appeals Tribunal
Tribunal d’appel de la sécurité professionnelle
et de l’assurance contre les accidents du travail
505 University Avenue 7th Floor
Toronto ON M5G 2P2
505, avenue University, 7e étage
Toronto ON M5G 2P2
Decision No. 2425/15
REASONS
(i)
[1]
The issues under appeal are as follows:
1.
The nature of the worker’s initial entitlement for a right knee injury, specifically
whether entitlement is granted on an aggravation basis;
2.
The extent of benefit entitlement, specifically whether benefits are limited to
three months post-injury and whether there was a compensable permanent
impairment; and
3.
If the non-economic loss (NEL) benefit is maintained, whether the 12% quantum
ought to be reduced to reflect a pre-existing condition, and to what extent.
(ii)
[2]
[3]
[4]
[5]
Issues
Overview
The worker, then a ship’s head tunnelman, slipped while climbing a ladder on
January 16, 2010; while he did not fall off the ladder, he struck his right knee on a metal rung.
The worker had undergone right knee surgery with fixation in 2005, and investigations in
January 2010 discovered broken hardware. The worker underwent surgery in Ontario on
January 25, 2010.
The worker received full loss of earnings (LOE) benefits and returned to his home
province in February 2010. He was awaiting a second knee surgery in December 2010 when the
Case Manager advised that a permanent impairment was likely, the worker was unlikely to be
able to return to his pre-accident work, and a referral was made for work transition services. The
patella reconstruction surgery took place in February 2011, followed by physiotherapy. A
permanent impairment, based upon maximum medical recovery (MMR) achieved by
August 24, 2011, was formally recognized in September 2011, leading to a NEL award of 12%.
The diagnosis was described in Board memoranda by the Board’s medical consultant as chronic
regional pain syndrome post-surgery “superimposed on pre-existing patellar # w/ malunion &
hardware fix’n” and by the Case Manager as “acute right anterior knee pain secondary to fall &
knee contusion with exacerbation of hardware movement & dislodgement of pre-existing wires
and pins.” The employer objected to the acceptance of a permanent impairment, and to the NEL
quantum.
In addition, in response to the employer’s request, the eligibility adjudicator had advised
on May 26, 2011 that the aggravation basis policy did not apply since the worker had not
experienced problems with the knee following the initial fracture until the current accident, and
this accident was not considered minor. The employer also objected to this decision.
The work transition process was suspended due to the worker’s need for psychological
counselling and further medical rehabilitation, but was revived in August 2012. The worker’s
request for entitlement to psychotraumatic disability and chronic pain disorder was denied in
October 2012. A “suitable occupation” or “SO” of Inspectors in public and environmental health
and occupational health and safety was approved in December 2012; the SO was amended to
Accounting clerk in November 2013. Ultimately, however, the work transition plan was closed
and LOE benefits were reduced in October 2014 to partial benefits based upon the ability to earn
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Decision No. 2425/15
$11 per hour in a direct entry position. The worker’s appeal of these entitlement, work transition
and LOE issues was pending before the Board at the date of hearing; these were not issues under
appeal to the Tribunal.
[6]
The employer’s objections relating to aggravation basis entitlement and permanent
impairment were denied by an Appeals Resolution Officer in January 2013. The employer now
appeals to the Tribunal. The employer’s representative takes the position that entitlement ought
to have been granted on an aggravation basis with benefits limited to a brief period following the
injury; in the event that a NEL benefit is maintained, she seeks a reduction in that award based
upon either a measurable, or a major non-measurable, pre-existing condition. The worker’s
representative takes the position that entitlement ought not to be limited under the aggravation
basis policy, and that the NEL award ought not to be reduced.
(iii)
Nature and extent of entitlement
(a)
[7]
[8]
Law and policy
The Workplace Safety and Insurance Act, 1997 (“WSIA”) applies to this appeal. All
statutory references in this decision are to the WSIA, as amended, unless otherwise stated.
Section 126 requires the Tribunal to apply Board policy when making its decisions.
Initial entitlement is governed by section 13:
A worker who sustains a personal injury by accident arising out of and in the course of
his or her employment is entitled to benefits under the insurance plan.
[9]
Board policy on aggravation basis entitlement (Operational Policy Manual (OPM)
Document No. 11-01-15, July 18, 20081) states:
Policy
In cases where the worker has a pre-accident impairment and suffers a minor workrelated injury or illness to the same body part or system, the WSIB considers entitlement
to benefits on an aggravation basis.
Generally, entitlement is considered for the acute episode only and benefits continue until
the worker returns to the pre-accident state.
Guidelines
Decision-makers should first determine entitlement in the claim (see 15-02-02, Accident
in the Course of Employment). Then this policy is used where a relatively minor accident
aggravates a significant pre-accident impairment. The intent is to limit entitlement to the
injury that is work-related. If a claim is allowed on an aggravation basis, the claim is
paid for the acute episode only (temporary period of time) and entitlement ends when the
worker’s condition returns to the pre-accident state.
Entitlement is not limited in cases where there is no pre-accident impairment, or the
severity of the accident/exposure on its own would have resulted in additional
impairment. This is the case where the impairment is temporary or permanent despite the
presence of the pre-accident impairment.
1
The worker’s representative suggested that the current version of this policy, which is not applicable to this appeal,
contained a mandatory timeframe for evidence of a pre-accident impairment. However, the current version (OPM
Document No. 15-02-04 dated November 3, 2014) contains the same definition for pre-accident impairment as is found
in the 2008 version.
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Decision No. 2425/15
Definitions
An aggravation is the effect that a work-related injury/illness has on the pre-accident
impairment requiring health care and/or leading to a loss of earning capacity.
A loss of earning capacity is the difference between the worker's net average earnings
before the work-related injury/illness, and the net average earnings the WSIB determines
the worker is capable of earning after the work-related injury.
A minor accident is one that, in the absence of a pre-accident impairment, would be
expected to cause a non-disabling or minor disabling injury or illness.
A pre-accident impairment is a condition, which has produced periods of
impairment/illness requiring health care and has caused a disruption in employment.
(Although the period of time cannot be defined, a decision-maker may use a one to two
year timeframe as a guide.)
…
A pre-accident state is the worker’s level of impairment and work capacity prior to the
work-related injury.
Aggravation basis - determining entitlement
Entitlement in a claim is accepted on an aggravation basis when

a relationship is shown between the pre-accident impairment and the degree of
impairment resulting from the accident, and

an increased degree of impairment occurs, which exceeds the usual, owing to the
pre-accident impairment.
Decision-makers are required to evaluate the severity of the accident by the accident
history. (For further information, see Second Injury and Enhancement Fund (SIEF),
14-05-03.) …
Determining pre-accident impairment
Before the allowance on an aggravation basis is considered, decision-makers must
determine if a pre-accident impairment exists. Evidence of this includes, but is not
limited to, a worker having

a previously identified and symptomatic medical condition/impairment,

medical precautions/restrictions and performing modified work prior to the
accident,

receiving regular health care treatments prior to the accident,

lost time from work prior to the accident.
…
Example - Pre-accident impairment
Jim suffered a work-related injury on November 1, 2001, when he twisted slightly getting
out of his chair. The doctor's diagnosis was soft tissue strain superimposed on severe
Degenerative Disc Disease (DDD), and facet joint arthritis. Jim received chiropractic
treatment monthly prior to the accident and had medical restrictions requiring permanent
modified work. Jim's back improved to the point where he was able to return to the
pre-accident employment on March 1, 2002.
Jim aggravated a pre-accident impairment on November 1, 2001. In this case, Jim is
entitled to benefits for the acute phase only. Jim's pre-accident impairment returned to its
pre-accident state on March 1, 2002. As a result, there is no further entitlement to benefits
after March 1, 2002.
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Decision No. 2425/15
Example - No pre-accident impairment
Bob suffered a work-related back injury on March 1, 2002, when he fell 10 feet off a
scaffold. He was unable to return to return to his pre-accident employment because of the
fall. Bob has a history of back problems and required surgery in 1985. At the time of the
accident, Bob was working as a carpenter with no medical restrictions or medical
treatment and was only observing proper back care.
Bob sustained a moderately severe back injury on March 1, 2002. He did not have a preaccident impairment and therefore is entitled to ongoing benefits and services. In this
case, there is no limitation of entitlement.
…
Ongoing benefits
Decision-makers are responsible for limiting entitlement in claims allowed on an
aggravation basis. The worker's clinical status is monitored to determine if the worker has
reached the pre-accident state. If a worker remains off work after reaching the
pre-accident state, the decision-maker discontinues benefits and advises the worker.
Permanent impairment
In some cases, workers never return to the pre-accident state. If there is a permanent
worsening of the pre-accident impairment, the decision-maker may determine that the
work-related injury/illness has permanently aggravated the pre-accident impairment. If
medical evidence confirms that the work-related injury/illness permanently increased the
worker's pre-accident impairment, the worker may be entitled to a non-economic loss
benefit.
[emphasis in original]
[10]
The standard of proof applicable in workers’ compensation proceedings is the balance of
probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in
resolving an issue where the evidence for and against is approximately equal in weight.
(b)
[11]
[12]
[13]
Evidence of the worker’s prior knee problems
There are no contemporaneous medical reports regarding the worker’s right patella
fracture and initial surgery. The worker confirmed in testimony that he slipped on ice in front of
his home, falling onto the ice-covered cement landing (above a set of steps), with direct impact
on his right kneecap. Based upon the available medical reports, he believed that this had
occurred in January 2005. He recalled attending hospital the following day, undergoing surgery,
and being on short-term disability benefits while off work for approximately nine weeks. He
recalled undergoing a second surgery some months later, which he called a “tightening up”, after
which he was again off work.
A discharge report from an Alberta hospital dated October 7, 2005 explained that the
worker had “previously suffered a fractured right patella” and had ongoing discomfort from the
hardware while rehabilitating. The hardware was surgically removed on October 3, 2005, but
because there was a nonunion of the patellar fracture, a bone graft was performed and two pins
and wire loops were “put back in for stabilization.”
An Alberta x-ray report of November 17, 2005 stated that “two pins, figure-of-eight wire
and a cerclage wire transfix the patellar fracture site”, and that a major fracture line was still
evident. Also on November 17, 2005, orthopedic surgeon Dr. R. Glasgow recommended further
revision surgery since one of the pins, “more prominent on the superior aspect”, was “proximally
migrating”, and arrangements were made for this procedure “in the near future.” The worker
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Decision No. 2425/15
testified that he did not undergo another procedure, and could not recall this concern or
recommendation.
[14]
[15]
The worker further explained that he had lived in Alberta from 1989 to late 2005, and had
been working as a journeyman scaffolder both before and after his initial knee surgery. He had
divorced in 2004, and following his recovery from the second surgery in 2005, he returned to his
home province where he had a job waiting for him, and parents available to help with his 9-yearold son.
Chart notes from the worker’s family doctor in his home province, Dr. D.P. Hickey, were
not provided for dates prior to December 2006. Dr. Hickey had ordered an x-ray of the worker’s
right knee, which was done on January 24, 2006 and found as follows:
There is evidence of comminuted fracture of right patella with pins and wire suture in
place. The position of the patellofemoral joint space is within normal limit range. No
sign of joint effusion or separation of patellar fracture fragment is seen…
[16]
[17]
On referral from Dr. Hickey, orthopedic surgeon Dr. J. Dill assessed the worker’s
“comminuted right patellar fracture nonunion” on April 10, 2006. While Dr. Dill outlined a
history of three previous surgeries, being the initial open reduction, internal fixation (ORIF)
surgery and two revisions, the worker testified that this was an error and he had only undergone
two surgeries (the original plus one revision). On examination in April 2006, the worker walked
with an antalgic gait, had atrophy of the right quadriceps, and was unable to extend the knee
from a sitting position or hold it in position for more than a couple of seconds if passively lifted.
Dr. Dill noted that there was no significant bony union on x-ray. He recommended a “repeat
open reduction, internal fixation with iliac crest bone grafting.” In follow-up on August 23, 2006
(delayed because the worker had been out west), the worker had ongoing pain, “more prominent”
hardware, and “a great deal of difficulty with the knee.” Dr. Dill wrote, “assuming that he has a
persistent nonunion, we are looking at removing his hardware, revision open reduction, internal
fixation and bone grafting.”
Subsequently, Dr. Hickey reported an effusion of the right knee in his chart note for
January 24, 2007, after the worker “slipped & caught himself”, and noted the prior history of
patella fracture. Dr. Hickey aspirated the knee joint at that time. The worker recalled this
incident, stating that he hadn’t fallen but had twisted his knee. There is no chart note between
January and September 2007, but Dr. Hickey sent a referral letter to orthopedic surgeon
Dr. D. Brien on September 11, 2007:
This man was seen by James Dill approximately a year ago and I have enclosed copies of
his consultation. As you can see he was for [sic] a revision of his patellar fracture with
removal of hardware etc. I would appreciate at this time if you could review him to
determine what is the best course of action at this point. He continues to have ongoing
knee pain. I will arrange for him to have x-rays prior to you seeing him.
[18]
[19]
Dr. Hickey’s chart note for October 12, 2007 states “R knee awaits consult Dr. Brien re
redo of patella #. Status of knee varies – worse w/ weather.” There are no further chart notes
until February 2010. The claims file contains no further x-rays or specialist consultation reports
until after the workplace injury.
The worker testified that he did not have revision surgery, nor was he aware that this had
been recommended in April or August 2006, or discussed in 2007. His recollection was that
Dr. Dill had shown him that everything was fine on the x-rays, and he thought this was after the
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Decision No. 2425/15
twisting incident reported by Dr. Hickey. The worker further testified that he worked as a
labourer and cement finisher, for two successive employers, during the approximately two years
that he remained in his home province. He stated that he did not miss time from work due to his
knee. While acknowledging that he had occasional difficulties with the knee, these did not
prevent him from working and, he said, over time they resolved such that he had no further
symptoms. The worker explained that he moved to Ontario in late 2007, and began working on
ship maintenance during the off-season. In the summer of 2008 he went on employment
insurance, but joined the Seafarers’ Union that fall. His Record of Sea Service confirms that he
worked as a tunnelman for the month of December 2008, and began working as head tunnelman
for the accident employer in August 2009. In between, he stated, he had returned to his ship
maintenance employment.
[20]
The worker was aboard ship from August 29 to September 30, 2009, and from
October 24, 2009 until the date of accident in January 2010. On this ship, there were no regular
tunnelmen; as head tunnelman the worker was responsible for operating and maintaining the
unloading machinery, with the support of an electrician and either a mucker or a shipkeeper. He
worked from 8 a.m. to 5 p.m., seven days a week, plus overtime if unloading outside of these
hours. The worker testified that there were over 10 flights of stairs or ladders to get to the
tunnel, and consequently his job involved a lot of climbing. He agreed with the employer’s
Critical Job Demands description for a Tunnelman, on file, which indicated a frequent amount of
climbing; he stated that this activity was performed for at least a third of his work day. The
Critical Job Demands included occasional bending/stooping, twisting, crouching, kneeling and
crawling (when preparing cargo hold, maintaining equipment, shoveling tunnels), as well as
frequent standing, walking and climbing. The document key states that “occasional” refers to 1
to 33% of a work day, and “frequent” refers to 34% to 66% of a work day.
(c)
[21]
Evidence of, and in the year following, the workplace accident
Wisconsin emergency physician Dr. J. Murphy outlined the worker’s complaint in a
report of January 16, 2010:
He fell a few rungs off the ladder kind of banging on his flexed right kneecap area. He
had a prior fracture of the patella on the right several years ago with some surgical wires
and pinning. He has had no further real problems with it until after this fall and then he
had an area of swelling under the skin, little lumps, at both inferior and superior border of
the lateral right scapula [sic].
[22]
[23]
The worker reported taking no medications. Dr. Murphy described moderate knee
discomfort, tenderness over the right anterior knee and patella, a long vertical surgical scar with
no obvious joint effusion, and “kind of a lump” just superior to the lateral patella area. An x-ray
showed that the cerclage wires had broken in multiple places with a wire fragment possibly in
the joint space; there was no acute fracture. Dr. Murphy’s diagnosis was “acute right anterior
knee pain secondary to a fall and knee contusion”, along with a “possibility of exacerbation of
the hardware, movement of the hardware, dislodgement of the hardware of both wires and pins.”
He prescribed Vicodin and crutches, and recommended an orthopedics follow-up for possible
removal of unnecessary hardware.
On January 18, 2010, orthopedic surgeon Dr. D. Tomaszewski assessed the worker:
The patient sustained a right patella fracture about 5 years ago. He was treated in
Alberta, Canada with K-wires and a tension band. He had no trouble with his knee ever
since. He reports an injury while at work on 1/16/2010. He was going over a short wall
Page: 7
Decision No. 2425/15
on his ship when he had immediate pain in his knee. He describes pain currently as a 7
on a scale from 0 to 10, but it is worse with movements. He has been on crutches. He
was seen in the emergency room where radiographs demonstrated broken hardware…
… He has tenderness over prominent hardware about his knee. He has an intact straight
leg raise and intact knee extension…
Assessment: Symptomatic hardware, right patella status post open treatment more than
5 years ago. New injury while at work on 1/16/2010.
[24]
Dr. Tomaszewski discussed hardware removal with the worker, but he wished to have
this “closer to home.” The worker was flown to Ontario by the employer.
[25]
The worker did not complete a Report of Injury. To the eligibility adjudicator on
January 22, 2010, he reportedly stated that he “fell approximately 3 feet off ladder striking right
knee on metal”, and had immediate swelling and pain. The worker clarified in testimony that he
was climbing a short ladder (6 to 8 rungs, approximately 5 feet) to go over a bulkhead in the
ballast tank and was at the top when his foot slipped. When he slipped his right kneecap banged
into a metal rung (perhaps ¾-inch diameter), with his knee bent to 90 degrees. He was able to
hang onto the wall, and did not fall. He was in pain, and he was able to let himself carefully drop
down to the bottom of the tank to sit and rest. He was able to hobble out of the tank through the
manway (2.5-foot diameter) and up to the engine room where he took his coveralls off. He
recalled that his knee was swollen, and there was something pointy protruding under the skin
over the knee cap.
[26]
Back in Ontario, radiology reports of January 21 and 25, 2010 noted the broken wires
with bony fragments in poor alignment, and union “difficult to assess.” Orthopedic surgeon
Dr. J. Rakem wrote, on January 25, 2010:
He fell on his right knee on the ship… [The worker] had six years ago, open reduction,
internal fixation right patellar fracture using tension band technique which failed, I guess
during this fall… Mid to moderate effusion, tender to touch, pain with range of motion,
inability to put any weight. X-ray shows broken hardware as well as fragmented patellar
fracture proximal pole… I spoke to the patient that he needs open reduction, internal
fixation, possible partial patellectomy with hardware removal.
[27]
[28]
[29]
The surgery was performed that day. Many fragmented fractures were “not amenable to
fixation”, and the surgery included the removal of hardware “in pieces”, partial patellectomy,
and reapproximation of the quadriceps tendon longitudinally with wire sutures.
X-rays taken on February 10, 2010 noted that “some” of the metallic hardware had been
removed, there was residual deformity of the patella, and there were minimal degenerative
changes in the knee.
The worker returned to his home province, where he saw Dr. Hickey on
February 24, 2010. The chart note states:
L foot slipped & R knee struck steel ladder wrung [sic].
Patellectomy – “small piece left”
Referred to Dr. Yepes
[30]
Orthopedic surgeon Dr. H. Yepes saw the worker that day, who was “walking, putting
weight on his limb”, but had a very swollen knee. Dr. Yepes diagnosed post-traumatic arthritis,
an old patella fracture, and patella baja (low-lying patella), and wrote “my first impression will
Page: 8
Decision No. 2425/15
be that this knee will never, ever be the same as it used to be, because he certainly hurt the
quadriceps tendon.” The x-rays had shown a large joint effusion, some fragmentation of the
patella, two remnants of wire sutures, and a displaced patella.
[31]
Dr. Hickey’s diagnosis in March and April 2010 was a right knee contusion and fracture
of a previously-wired patella, along with persistent post-operative effusion.
[32]
Following an MRI, Dr. Yepes noted on May 6, 2010 damage to the quadriceps tendon as
well as the abnormal position of the patella and post-traumatic arthritis; he proposed an open
arthrotomy exploration, and recommended work on medium or light duties. Dr. Yepes had
warned of his suspicion of a tendency to chronic pain in March 2010, and noted almost
dystrophic pain in November 2010, as well as being “prone to continue with chronic pain” in
February 2011. The worker testified that he did virtually nothing during the year between his
Ontario and home province surgeries: he would get up for half an hour, lie down for three hours,
and “repeat”; he watched some television, read, and “not much else.” He stated that he was in a
lot of pain, and was just getting by.
[33]
On February 4, 2011 Dr. Yepes performed a right knee reconstruction including
debridement, removal of old wire pieces, removal of patella bone fragments and reconstruction
of the quadriceps tendon with anchors and sutures. The diagnosis was malunion of the right
patella with avulsion of the quadriceps tendon, and arthrofibrosis (excessive scar tissue). On
February 7, 2011 he referred to pain “for almost 3 or 4 years after his injury” and stated that the
worker was “prone to continue with chronic pain.” On April 18, 2011 Dr. Yepes referred to the
tendon rupture as associated with “failed surgery” in Ontario, and described the worker’s
condition as a chronic regional pain syndrome (CRPS). On August 24, 2011 Dr. Yepes noted
that the worker’s pain was beyond what would be expected for the injury, and concluded that the
worker had a “medical impairment in regards to range of motion, dysfunction and weakness as
per atrophy of the quadriceps muscle and dystrophic pain with chronic pain.” The worker’s
range of motion was then from 0 to 90 degrees (extension/flexion).
(d)
[34]
[35]
Solicited medical opinions
Dr. R. Greenwood (no specialty) reviewed the file on the request of the employer’s
representative. On September 15, 2011 he wrote that the January 2010 injury “may have
fractured some of the encircling wires used to treat a prior patellar fracture” and, in addition to
the pre-existing complex patella fracture the worker had pre-existing medial compartment
arthritis. He opined that the workplace injury “appears to have aggravated a pre-existing knee
pain problem and worsened the functionality of his knee”, but improved after the February 2011
surgery “leaving him with a continuing problem of pain control.”
Around the same time, the Case Manager sought an opinion on whether the worker’s
ongoing problems were “related to his 16JAN2010 workplace injury or pre existing”, and
whether there was a permanent impairment. On September 19, 2011 Medical Consultant
Dr. A. Balinson reviewed the medical on file and concluded:
Ongoing problems would appear to be related to W/P accident of 16JAN10 and
subsequent Tx/Sx’s. .. Med evidence would appear to support a PI for rt knee, Dx CRPS
post-Sx status superimposed on pre-existing patellar # w/ malunion & hardware fix’n. …
[36]
For this appeal, the employer’s representative sought a further opinion in
September 2015. Orthopedic surgeon Dr. A. Sekyi-Otu responded on September 24, 2015:
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Decision No. 2425/15
In my own practice acute displaced or unstable patellar fractures can be treated with
cerclage wire fixation. However, I often tell patients that the wires can fatigue with time,
and subsequent x-rays would show wire breakage. It is my opinion that the wire breakage
seen at the time of his slip and fall is not casually [sic] related to the subject accident.
The added stress from his pre-existing non-union would make the failure of is [sic]
hardware inevitable.
The mechanism [of injury] is most consistent with a contusion to the knee, in association
with pre-existing patellar fracture, and pre-existing patellofemoral arthritis.
… I do not believe that the workplace accident on that date could have broken the metal
suture wires and separate prepatellar fragments as seen on x-ray at that time.
…
Based on the notes of Dr. Rakem it would appear that Dr. Rakem felt that the
fragmentation of the wires and hardware was related to the accident of January 16, 2010.
However, as I indicated in the notes above it is my opinion that the fragmentation of the
hardware is not casually [sic] related to the accident of January 16, 2010. The documents
reviewed do not support the diagnosis of a new bony injury.
… In my opinion Dr. Rakem’s choice of operation as it relates to the fall of
January 16, 2010 was not indicated.
Removal of hardware would be indicated for his pre-existing symptoms.
… based on his pre-accident diagnoses (working diagnosis of a non-union of the
comminuted patellar fracture), the hardware would inevitably fail. While there are no
x-ray reports available between 2006 and the subject accident, it is more likely than not
that any x-ray taken during this interval would have shown fixation failure.
…
If not for his prior history of right knee symptoms, it is unlikely that the slip of 2010
would lead to a permanent functional impairment. Specifically, it is more likely than not
that he would develop some degree of posttraumatic arthritis in the region of the patella
following his patella fracture. In the absence of any further cartilaginous or bony injury it
is unlikely that the accident of January 16, 2010 would have accelerated this process…
In my opinion the inferior position of the patella (Patellar baja), is most likely related to
the previous fixation techniques used at the time of his initial patella fracture.
...
I am unable to determine whether this individual would have required reconstructive
revision surgery regardless of the accident of January 2010. The treatment of
post-traumatic arthritis would depend on the severity of his symptoms.
… His presentation appears to be out of keeping with the initial pathology.
His current limitations appear to be due to his pre-existing injury and subjective
complaints, rather than due to any organic pathology related to the subject accident.
(e)
[37]
[38]
Aggravation basis entitlement
The Panel agrees with the employer’s representative that the aggravation basis policy
applies, such that the worker’s entitlement is to be granted on an aggravation basis.
A pre-accident impairment is defined in Board policy as a condition which has produced
impairment, required health care and disrupted employment. It is uncontroversial that the
worker’s broken patella required health care in 2005, 2006 and 2007, and disrupted employment
for extended periods in 2005. While ongoing functional impairment is disputed (with the
worker’s representative asserting no limitations for several years prior to the workplace injury,
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Decision No. 2425/15
and the employer’s representative arguing the unlikelihood of complete resolution of symptoms),
it is evident that the worker’s broken patella, being a comminuted fracture2, resulted in a
permanent physical abnormality: after January 2005, the worker’s right kneecap consisted of
pieces held together with a bone graft, wires and pins.
[39]
[40]
[41]
[42]
[43]
2
Board policy asserts that the period of time for evidence of a pre-accident impairment
“cannot be defined”, but suggests a “one to two year timeframe as a guide.” The fact that there
is no evidence of health care or disrupted employment in the two years preceding the workplace
injury is not determinative in this appeal, because the pre-existing condition was nevertheless
relevant to the worker’s circumstances in January 2010. In our view, decision-makers are
directed to consider evidence of pre-accident impairment, symptoms, treatment, restrictions and
impact on employment as a means to determine the continuing significance or relevance of a
pre-existing condition; a remote or asymptomatic prior condition will in many cases have no
bearing, medically, on a subsequent injury. For this worker, however, his physical impairment
had not resolved, and the very existence of the fixation hardware was central to the workplace
injury and its sequelae. The worker sustained a pre-accident injury which had required health
care and disrupted employment in the past, and which produced a permanent physical
impairment which was medically relevant at the time of the workplace injury. The Panel
concludes that the worker had a pre-accident impairment within the meaning of Board policy.
In determining whether the worker suffered a “minor accident” pursuant to the
aggravation basis policy (which cross-references the SIEF policy), the actual injury is not
considered but rather the extent of disability the mechanics of the accident would reasonably be
expected to cause (see, for example, Decision No. 1021/12). The evidence of the worker’s
accident history is generally consistent: the worker slipped while at the top of a ladder, dropping
down a short distance and banging his right kneecap against a metal rung, while simultaneously
hanging on to the bulkhead to avoid a fall. In our view, this accident history reflects a minor
accident in which a minor disabling injury, such as bruising and inflammation, would be
expected from banging a healthy, intact knee against a metal rung.
As such, the worker had a pre-accident impairment and experienced a minor accident
affecting the same body part. There is a clear relationship between the pre-accident impairment
and the degree of impairment resulting from the accident, and an increased degree of impairment
occurred as a result: the worker would not likely have required major knee surgery in
January 2010 but for the previous fracture and ORIF surgeries.
The worker’s representative pointed to the example of “Bob” in Board policy, to whom
the aggravation policy did not apply. Bob, however, had a more significant workplace injury
(falling 10 feet off a scaffold) and a very remote back condition (with surgery 17 years
previously). There was no indication of any continuing relevance of Bob’s prior condition to his
workplace injury. The Panel considers this example to be distinguishable from the facts in the
present appeal.
We conclude that the worker’s entitlement in this claim is granted on an aggravation
basis, pursuant to Board policy.
“Comminuted” means “broken into several pieces; denoting especially a fractured bone” (Stedman’s Medical
Dictionary) or “a fracture in which the bone is splintered, crushed, or broken into numerous pieces” (Merriam-Webster
Medical Dictionary)
Page: 11
(f)
[44]
[45]
[46]
[47]
3
Decision No. 2425/15
Permanent impairment
The Panel further finds that the worker’s aggravation injury resulted in permanent
impairment. Benefits are not limited to a three-month (or other temporary) period following the
workplace injury, nor is the worker’s NEL award to be rescinded.
While there was speculation on the employer’s part that the worker had self-limited his
employment activities after 2005 because of ongoing knee difficulties, and while it may well be
that the worker continued to experience the kinds of intermittent symptoms reflected in
Dr. Hickey’s notes in 2006 and 2007, it is clear that the worker demonstrated the ability to work
long hours in a physically demanding position in the months leading up to the workplace injury.
The worker had no formal work restrictions, and he carried out duties that required a great deal
of mobility and in particular, a lot of climbing of stairs and ladders. Thus, the worker’s
pre-accident state was one in which he had a substantial physical abnormality of the knee while
retaining the capacity to engage in manual work which required extensive use of the lower
extremities.
The medical evidence is mixed as to the likelihood that the cerclage wires broke during
the workplace accident: the pin at the superior aspect of the patella was prominent in 2005, the
hardware generally was described as prominent in 2006, and the worker also had prominent
hardware, little lumps, and a lump at the superior aspect in 2010; emergency physician
Dr. Murphy noted a possibility of exacerbation of movement of the hardware or dislodgement of
the hardware; orthopedic surgeon Dr. Tomaszewski reported broken hardware “status post open
treatment of a patella fracture” without opining on the role of the injury; orthopedic surgeon
Dr. Rakem said the previous fixation “failed, I guess” during the injury, but believed the injury
was a fall; medical consultant Dr. Balinson considered the ongoing CRPS to be related but did
not specifically identify the hardware breakage as compensable; Dr. Greenwood opined that the
injury “may have” fractured the wires; and orthopedic surgeon Dr. Sekyi-Otu did not believe that
the accident could have broken these wires and stated that such breakage was inevitable.
On September 20, 2011 the Case Manager expressed the worker’s entitlement in a
memorandum as “acute right anterior knee pain secondary to fall & knee contusion with
exacerbation of hardware movement & dislodgement of pre-existing wires and pins”, and in the
NEL referral as “CRPS post sx superimposed on pre-existing patellar # w/ malunion & hardware
fix’n” (based upon Dr. Balinson’s summary diagnosis). As such, the worker’s current
entitlement does not explicitly include the breaking of the wires on the date of accident, but is
described as an exacerbation or dislodgement. The worker has not appealed this aspect of his
entitlement.3 Ultimately, it does not matter if the wires were previously broken but then
displaced, exacerbated or aggravated by the impact injury, or if the wires which were already
under pressure due to the persisting nonunion finally snapped as a result of the impact injury. In
either case, the worker, who had previously been able to perform strenuous work involving a
significant amount of walking and climbing, was newly and sufficiently symptomatic following
the workplace injury such that he required opioid pain medication and crutches, and revision
surgery was organized on a relatively urgent basis. The timing of the January 2010 surgery
supports that it was not required solely as a result of the pre-existing state of the hardware, or as
As previously noted, the worker sought an extension of entitlement to include psychotraumatic disability or chronic pain
disability, matters which are not before the Tribunal at this time. He did not request additional organic entitlement.
Page: 12
Decision No. 2425/15
a result of pre-existing post-traumatic arthritis. The Panel finds, on a balance of probabilities,
that the workplace injury played a significant role in the need for that surgery.
[48]
Unfortunately, the worker did not fully recover from the January 2010 surgery, which
was later described as a failed surgery. The evidence from Dr. Yepes indicates that the offending
hardware fragments were not fully removed, the patella was displaced, and the quadriceps
tendon was inadequately repaired, such that another surgical reconstruction was required. In the
meantime, the worker developed chronic right knee pain. The February 2011 reconstruction was
not, as suggested by the employer’s representative, the same surgery that had been proposed in
2005 or 2006: it explicitly addressed the fragments missed in the 2010 surgery, as well as the
quadriceps tendon which had been reapproximated in the January 2010 surgery. We also
discount Dr. Sekyi-Otu's opinion that the patella baja was likely related to the original fixation:
this problem was not identified in the 2005 or 2006 x-rays, or in the three sets of x-rays taken
soon after the workplace injury, and was not mentioned by the treating physicians from 2005 to
January 2010; post-surgery, residual deformity and inferior displacement of the patella was noted
in the two sets of x-rays taken in the month following the January 2010 surgery, and this problem
was first mentioned in a medical report in February 2010. In our view, the sequelae of the
January 2010 surgery included both the need for the February 2011 surgery, and the
development of chronic knee pain.
[49]
The Panel finds that the worker did not return to his pre-accident state, described above
as consisting of a substantial physical abnormality with the capacity to engage in physical work
requiring extensive use of the lower extremities. Rather, at the MMR date of August 24, 2001,
as confirmed by Dr. Yepes, the worker had a functional loss associated with reduced range of
motion and weakness, as well as the physical abnormality associated with more extensive knee
reconstruction. His work capacity had diminished as a result of these impairments and his
experience of chronic pain.
[50]
The employer’s representative relies upon Decision No. 823/09, in which the Vice-Chair
found that a workplace slip and fall injury, allowed on an aggravation basis, accelerated the need
for right hip arthroplasty revision surgeries; he limited entitlement to the period encompassing
the surgeries and recovery. The Vice-Chair considered the workplace injury to have been a
temporary intervening event:
Once the worker recovered from the revision surgeries, his right hip had returned to the
pre-accident state. In other words, if the October 1999 accident had not occurred, the
worker would have nevertheless eventually undergone the same revision surgery and any
restrictions he sustained as a result of the surgery are appropriately related to his
pre-existing condition and not to the accident itself. … I find that any permanent
impairment the worker may have been experiencing in his right hip following the
revision surgery is also attributable to his non-compensable pre-existing right hip
condition and not to the October 1999 workplace accident.
[51]
Also considering a situation in which surgery was required sooner for compensable
reasons, the Panel in Decision No. 559/91 did extend entitlement to include the sequelae of the
compensable surgery:
In our view the question to be asked in the context of this case is, "Would this worker
likely have required surgery at approximately this date, had he not suffered the
compensable aggravation?" In answering that question, we believe that the evidence
supports a finding that the compensable aggravation significantly accelerated the need for
surgery. Therefore, that surgery and its sequelae are also compensable.
Page: 13
[52]
[53]
Decision No. 2425/15
Similarly, in the present appeal the timing of the worker’s 2010 right knee surgery was
determined by the happening of the workplace injury. Even if hardware failure was inevitable,
as stated by Dr. Sekyi-Otu, the compensable aggravation injury nevertheless played a material
and significant role in the acceleration of the need for revision surgery. The Panel agrees with
the view expressed in Decision No. 559/91 that in such circumstances entitlement includes not
just the surgery but the sequelae therefrom; this encompasses not the expected result, but the
actual result of the specific surgery undertaken. It cannot be known what would have happened
had the worker attended for revision surgery at a later date and without any of the issues or
urgency associated with the workplace accident. The sequelae of the specific surgery that was
undertaken in January 2010 included the need for a further revision surgery in February 2011, a
permanent functional impairment as well as increased physical abnormality, and the
development of chronic knee pain. The worker’s ongoing limitations are associated with his
post-surgery condition and are not solely the result of his pre-accident impairment.
Decision No. 823/09 may be distinguished because the Vice-Chair made a finding of fact that the
worker’s right hip had returned to its pre-accident state following recovery from the revision
surgeries, and we have made the opposite finding here. In any case, to the extent that
Decision No. 823/09 may stand for the principle that entitlement for surgery on an aggravation
basis does not extend to the specific outcome of that surgery if surgery would have eventually
been required for non-compensable reasons, the Panel disagrees with that principle.
In the result, while we agree with the employer’s representative that the non-compensable
fall in 2005 was significant and resulted in a major reconstructive effort with imperfect results,
we find that the worker then sustained a workplace injury which permanently aggravated and
increased his pre-accident impairment. A compensable permanent impairment is recognized,
and the worker is entitled to a NEL award for that impairment.
(iv)
The NEL quantum
(a)
Board policy
Board policy on the effect of a pre-existing impairment (OPM Document No. 18-05-05)
[54]
states:
When calculating NEL benefits for workers who have a pre-existing permanent
impairment, the WSIB

rates the area of the body affected by the new permanent impairment

disregards any pre-existing permanent impairments affecting other areas of the body,
and

factors out pre-existing permanent impairments affecting the same area of the body.
…
Pre-existing non-work-related impairments
…
New injury affecting the same body area
If both impairments affect the same area of the body, and the pre-existing impairment is
measurable, the WSIB

rates the total impairment to the area

determines the rating for the pre-existing impairment, and
Page: 14

Decision No. 2425/15
subtracts the rating for the pre-existing impairment from the total impairment rating
to get the rating for the new work-related impairment.
If the pre-existing impairment is not measurable, the WSIB

rates the total area's impairment, and

reduces this rating according to the significance of the pre-existing impairment (see
pre-accident disability in 14-05-03, Second Injury and Enhancement Fund).

if minor, there is no reduction

if moderate, there is a 25% reduction

if major, there is a 50% reduction.
NOTE
A pre-existing impairment is "measurable" or non-measurable" depending on whether it
can be rated using the American Medical Association's Guides to the Evaluation of
Permanent Impairment, 3rd edition (revised). This determination is based strictly on the
clinical information available at the time of the work-related injury.
[55]
The Second Injury and Enhancement Fund, or SIEF, policy (OPM
Document No. 14-05-03) primarily addresses cost relief for employers, but also outlines the
impact of a pre-accident disability on worker’s benefits:
Pre-existing condition impact on claims
…
Worker Permanent Benefits
When the pre-existing condition is not measurable, but creates a pre-accident disability
that enhances a residual work-related disability, the worker's benefit for work-related
disability may be reduced according to the percentage of disability produced by the
pre-existing condition. The application is as follows:
Application to employee award where prior condition is not measurable
Prior Condition
Minor
Amount of Relief
100% (full assessment)
Moderate
Major
75%
50%
The following applies to a worker's permanent benefits
…

The significance of the pre-accident disability is considered in terms of the
likely clinical rating that would have been work-related, having regard for the
range of disabilities usually encountered.

If the pre-accident disability based on the foregoing criteria is unreasonable, the
benefit is usually based on a medical estimate of the actual disability that might
have resulted from the accident

The decision to grant an employer relief of some or all of a claim's costs is not
influenced in anyway by limitations placed on the worker's permanent
impairment benefits.
Page: 15
(b)
[56]
[57]
Decision No. 2425/15
Reduction for pre-accident impairment
The worker’s representative submitted that Tribunal jurisprudence has held that NEL
awards are not reduced unless the pre-existing condition had an impact on earning capacity. A
line of cases beginning with Decision No. 204/14 interprets OPM Document No. 18-05-05 as
requiring a pre-accident impairment as defined in the aggravation basis policy, with periods of
disability, impairment or illness which have required treatment and disrupted employment,
before a NEL reduction can be made.4 Since we have found that the worker in this appeal had
such a pre-accident impairment, determination of the appropriate level of NEL reduction is
required.
The worker’s pre-accident impairment cannot be rated using the American Medical
Association's Guides to the Evaluation of Permanent Impairment (AMA Guides), because there
are no measurements of his range of motion prior to the 2010 injury. The worker’s inability to
extend his knee at the visit with Dr. Dill in April 2006 is insufficiently precise for a rating under
the AMA Guides; it is also unlikely to represent his mobility on an ongoing basis leading up to
the accident, given his evident ability to work as a tunnelman in 2009.
[58]
For a non-measurable condition, Board policy requires the NEL rating to be reduced
“according to the significance of the pre-existing impairment” and in reference to the SIEF
policy. The latter notes a reduction “according to the percentage of disability produced by the
pre-existing condition” and requires the significance of the pre-accident impairment, for the
purpose of a reduction in benefits, to be “considered in terms of the likely clinical rating that
would have been work-related”, with the pre-existing condition then categorized as minor,
moderate or severe.5 The employer’s representative submits that the pre-accident impairment
was major.
[59]
As we understand it, the purpose of this policy is to limit NEL compensation to the
impairment which is work-related by apportioning or factoring out that part of the impairment
which is solely pre-existing; the impairment arising from the interaction between the pre-existing
condition and the workplace injury is compensable. The worker’s overall NEL rating of 29%
lower extremity impairment (equivalent to a 12% whole person impairment) included 21% for
reduced knee flexion and 10% for patellectomy (taken from a range of 5 to 15% for patellectomy
with loss of strength or patella replacement6). The worker’s pre-accident impairment consisted
of a substantial physical abnormality resulting from two ORIF surgeries, yet a degree of
functioning compatible with the physical labour required of a ship’s tunnelman. Following the
compensable aggravation, the worker required more extensive reconstructive surgery and had a
substantial functional impairment. In these circumstances, the Panel considers the pre-accident
impairment to be moderate in its effect. The resulting 25% reduction in the NEL award
adequately reflects the disability produced by the pre-existing condition.
4
5
6
OPM Document No. 18-05-05 has since been revoked. The provisions on NEL reduction are now found within OPM
Document No. 18-05-03 (from November 1, 2014, and not applicable to this appeal). They contain a different
interpretation of the requirements of a pre-existing condition for NEL reduction, effectively superseding the
interpretation found in Decision No. 204/14.
I note that similar considerations are required under the recently revised Board policy (OPM Document No. 18-05-03),
including whether the pre-existing condition would result in an impairment rating on its own, and the extent to which the
pre-existing condition contributes to the degree of total impairment.
Section 3.2c, Table 40, of the AMA Guides.
Page: 16
(v)
[60]
[61]
Decision No. 2425/15
Conclusion
The aggravation basis policy applies to the worker’s entitlement in this claim. However,
the worker experienced a permanent aggravation with increased impairment, and remains
entitled to a NEL award for his compensable permanent impairment. His benefit entitlement,
generally, is not limited to a brief period following either of the surgeries.
As for the NEL award, the quantum of 12% is to be reduced by 25% to reflect a moderate
pre-existing condition, pursuant to Board policy.
Page: 17
Decision No. 2425/15
DISPOSITION
[62]
The employer’s appeal is allowed in part, as follows:
1.
The worker’s entitlement is granted on an aggravation basis.
2.
The extent of benefit entitlement is not limited to three months post-injury (or
post-surgery). The worker has a compensable permanent impairment.
3.
The NEL quantum is to be reduced by 25% to reflect a moderate pre-existing
condition.
DATED: December 1, 2015
SIGNED: S. Netten, E. Tracey, D. Besner