The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 25, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 25, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond June 4, 1999.

Decision

That the claimant is entitled to wage loss benefits beyond June 4, 1999.

Background

While employed as a butcher/labourer on March 3, 1998, the claimant sustained a compensable open fracture of his left distal tibia and fibula when a power jack ran over his leg. The claimant underwent debridement and irrigation of the wound with intramedullary fixation of the fracture. The claim was accepted by the Workers Compensation Board (WCB) and the claimant underwent physiotherapy treatments commencing April 29, 1998.

On November 24, 1998, the treating physician commented that the claimant was complying with treatment and that healing would progress further once dynamization of the intramedullary nail had taken place. Once the fracture had healed, the claimant would be able to return to activity. An examination by a WCB medical advisor was recommended as the claimant had concerns about returning to regular duties.

A WCB orthopaedic medical advisor examined the claimant on February 11, 1999. The medical advisor indicated that the claimant's progress was corresponding slowly because of delayed union. There was some evidence of soft tissue tethering, but no late neurovascular complication. The demonstrated functional deficit did not seem too severe but the claimant perceived himself to be significantly disabled. The consultant arranged for the claimant to undergo a functional capacities evaluation (FCE) and an assessment by a vocational rehabilitation consultant (VRC). Based on the orthopaedic consultant's findings and the results of the FCE, the claimant underwent a reconditioning program commencing May 3rd.

In a report dated May 21, 1999, the treating physiotherapist commented that the claimant would not be ready to return to work on completion of the reconditioning program. "While he has built up strength & endurance in his L leg, he continues to have some weakness, fatigue and poor proprioception. The poor proprioception at his L foot will affect how he manages on un-even ground, ladders, platforms, etc. I do not know if this will change, as I have not noticed any change with the treatment here."

On May 28, 1999, a WCB orthopaedic consultant reviewed the case. He spoke with the treating orthopaedic surgeon who felt there was nothing more he could do for the claimant. The WCB consultant was of the opinion that the claimant had recovered sufficiently to return to his previous occupation, without restrictions.

A June 1, 1999, report from the physiotherapist stated that the claimant completed the reconditioning program, but considered the claimant could not return to his previous job. He felt that the claimant should be working at a job where he could stand and/or sit, changing positions frequently as needed.

In a letter by Rehabilitation and Compensation Services dated June 1, 1999, the claimant was informed that wage loss benefits would be paid only to June 4, 1999. It considered that he had recovered from the effects of the March 3, 1998, compensable injury. On June 22, 1999, this decision was appealed to Review Office by a union representative.

After consulting with its orthopaedic consultant, Review Office confirmed on July 9, 1999, that the claimant was not entitled to wage loss benefits beyond June 4, 1999. Review Office stated that two orthopaedic consultants both shared the view that the worker was capable of returning to his pre-accident employment. The only contrary opinion in the medical community was that expressed by the worker's physiotherapist. Review Office believed the weight of medical evidence established that the worker was capable of working without restrictions and therefore he was not entitled to benefits beyond June 4, 1999.

On November 12, 1999, a WCB impairment awards medical advisor assessed the claimant and suggested an 8.9% permanent partial impairment award for loss in range motion of the left ankle together with a 2.0% cosmetic impairment. Using the combined values chart, the total PPI was calculated at 11.0%.

On March 29, 2000, a union representative appealed Review Office's decision and submitted a February 27, 2000, medical report from the claimant's treating orthopaedic specialist.

Reasons

The claimant was examined on February 11th, 1999 by a WCB orthopaedic consultant. With respect to the claimant's left foot and ankle, the specialist recorded the following in his examination notes: "ROM [range of motion] of the ankle showed 10 loss of dorsiflexion. Plantar flexion and inversion/eversion range was unrestricted." The consultant concluded his report by saying; "I anticipate that if there is no significant improvement in function over the next six months, he may require retraining."

A treating orthopaedic and rehabilitative medicine specialist initially examined the claimant on June 7th, 1999 at the request of the attending physician. In a report to the claimant's union representative, the specialist commented: "My June 1999 examination did (not) only show no improvement but it showed increasing restricted movements, i.e. additional reduction in planter (sic) flexion and eversion and inversion."

The WCB arranged for a call-in examination of the claimant on November 12th, 1999 in order to assess his degree of impairment. The impairment awards medical advisor compared the range of left and right ankle movements. He determined that the claimant had a loss of total range of movement of 65 of the left ankle. This equated to a permanent partial impairment of 8.9%.

We find that the claimant is entitled to wage loss benefits beyond June 4th, 1999. The preponderance of evidence supports the contention that the claimant had not returned to his pre-accident status at the time his benefits were terminated. In particular, we note that the claimant's left ankle and leg difficulties have worsened since his WCB examination of February 1999. The claimant advised the Panel that he was experiencing neurological difficulties in his ankle, foot and toes, which we feel may warrant further investigation by the WCB.

As an aside, we would like to point out that the claimant has a grade 8 education and that he is presently upgrading his high school status on a full time basis. According to the Director of the education centre, the claimant is making excellent progress.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of May, 2000