Highlights of Noteworthy Decisions

Decision 1193 21
16/08/2021
M. Keil
  • Recurrences
  • Osteoarthritis
  • Consequences of injury
  • Evidence (weight) (medical report)

The worker, a transit worker, sustained an inversion type ankle injury when he slipped and went over on his right ankle in November 2013. He was diagnosed with and granted entitlement for right ankle strain. An x-ray taken on the day of the injury identified an "age-indeterminate" fracture in his ankle. The worker returned to work in March 2014 but went off work for about a month in May 2018. The worker appealed a decision of the Appeals Resolution Officer denying entitlement to osteoarthritis as a secondary condition and denying entitlement for a May 2018 recurrence.

The appeal was allowed.
The sole medical opinion on file came from the worker's orthopaedic surgeon, who felt that the November 2013 injury was the reason for the worker's condition in 2018, including his arthritis. The worker argued that, pursuant to the Divisional Court's ruling in Ferreira v. Workplace Safety and Insurance Appeals Tribunal, the Vice-Chair could not substitute her opinion for the medical evidence on file and the report must be accepted. However, the Court's finding in Ferreira does not mean that a panel/vice-chair can never reject a medical opinion. The Tribunal considers a number of factors in weighing medical evidence and need not accept medical evidence that it does not consider reliable. There is a difference between rejecting a medical opinion and substituting one's own opinion.
However, in this case, the orthopaedic surgeon's report was reliable and should be given weight. His opinion was also supported by the Medical Discussion Paper, which states that osteoarthritis can be caused by a direct injury to the joint. In this case, it was likely that the worker's injury made a significant contribution to his osteoarthritis. While there was a possibility that the avulsion fracture pre-dated the accident, it would have been minor in nature as there was nothing in the family doctor's clinical notes or the employer's records of a pre-existing fracture or any time off work.
The worker had entitlement to a recurrence. Clinical compatibility was established and there was a causal link between the work injury and the osteoarthritis. The condition progressed over time and did not prevent the worker from carrying out his work duties until May of 2018.