The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 16, 2001, at the request of a worker advisor acting on behalf of the claimant. The Panel discussed this appeal on January 16, 2001 and again on March 21, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond November 16, 1998.

Decision

That the claimant is entitled to full wage loss benefits from November 16, 1998 to December 31, 1999; and,

That the claimant is entitled to partial wage loss benefits from January 1, 2000 until the implementation of a vocational rehabilitation program.

Background

On September 2, 1997, the claimant completed a Worker's Report of Injury or Occupational Disease due to a right foot injury which occurred at work on August 23, 1997. According to the claimant's report, he and a co-worker were carrying a roll of carpet when he stepped onto uneven ground resulting in an inversion type injury.

The claimant was seen at a local health centre on the day of accident and was diagnosed with a lateral collateral ankle ligament injury. X-rays taken on August 23, 1997 did not demonstrate any fractures. A slab cast was applied and pain medication was prescribed.

On September 11, 1997, the claim was accepted by the Workers Compensation Board (WCB) and the claimant was provided with payment of wage loss benefits.

The claimant continued to seek medical treatment for his injury from his family physician. The physician, based on an examination of the claimant on December 6, 1997, suggested the claimant should consider returning to work in the near future. The family physician spoke with a WCB medical advisor on December 30, 1997 and advised that the claimant did not present with any further objective findings to warrant a continued time loss from work beyond December 31, 1997.

The claimant was subsequently seen by an orthopaedic specialist on February 10, 1998. The specialist felt that an arthrogram should be performed. If the test was negative, it was felt that the claimant could be suffering from a lateral impingement of the synovium which would be treated with a cortisone injection. A referral was then made for physiotherapy however, subsequent to the initial assessment on February 16, 1998, the claimant failed to show up for any further treatment. He was therefore discharged from physiotherapy treatment on March 13, 1998.

Subsequent to a review of the file by a WCB medical advisor, arrangements were made for the claimant to have a bone scan performed and as well, be examined by a WCB orthopaedic specialist. Both the bone scan and the examination were arranged for April 3, 1998. Based on the test and the examination results, the WCB's orthopaedic consultant expressed the opinion that the claimant had sustained a severe ligamentous injury to the right ankle as a result of the August 23, 1997 compensable accident.

The claimant continued to seek treatment from his orthopaedic specialist which included a post arthrogram CT of the right ankle with no abnormalities identified which was then followed by cortisone injection. In a report dated September 28, 1998, the orthopaedic specialist advised that the claimant did not experience any great relief with the cortisone injection. The option of surgical intervention of the lateral aspect of the ankle via arthroscopy was given. The surgeon also indicated that the claimant would not be able to work as a hard rock miner and therefore recommended vocational retraining.

The file was again reviewed by medical staff at the WCB in October, 1998 when it was decided that the claimant should be assessed by an independent orthopaedic surgeon. Arrangements were made for this to occur on December 14, 1998. Based on the examination, the independent specialist felt that the claimant had scar tissue formation in the anterolateral aspect of the right ankle. It was felt that the claimant would benefit from the use of an air cast. Vocational retraining was recommended and it was felt that surgical intervention should not be considered.

The file was again reviewed by the WCB's orthopaedic consultant on February 5, 1999 at which time it was recommended that 6 month restrictions be imposed. It was recommended the claimant avoid walking on uneven ground, repetitive use of stairs and ladders, working at heights, using heavy vehicle foot controls or repeated flexion/rotation movement of the right ankle. It was also recommended the claimant be assessed for a permanent partial impairment award.

The claimant's file was referred to the WCB's vocational rehabilitation department and subsequent to assessment and testing, the claimant was sponsored for continuing education courses at a community college.

In the latter part of 1999, information was received at the WCB indicating the claimant was playing hockey in a full contact hockey league. An investigation including video surveillance was undertaken. The investigation results were then reviewed by the WCB's orthopaedic consultant on December 10, 1999. Based on this review, the orthopaedic consultant expressed the opinion that the claimant had sufficiently recovered from the ligamentous injury to be considered capable of all of his regular duties.

By letter dated December 23, 1999, primary adjudication advised the claimant that he was not entitled to benefits beyond November 27, 1999, which was the first date on which surveillance of his activities was conducted.

With the assistance of a worker advisor, the claimant filed an appeal with the WCB's Review Office. In their decision dated October 11, 2000, Review Office rejected any contention that the claimant was unable to return to his pre-accident work. In reaching this conclusion, Review Office took into consideration the comments of the claimant's orthopaedic specialist in a report to the adjudicator dated July 26, 2000 wherein it was said that with proper taping, the claimant might be able to play hockey at a low level for short shifts. Review Office also considered the investigation results which demonstrated the claimant was playing three, twenty minute stop time periods of full contact competitive hockey. Review Office stated: "Insofar as your participation is involved, surveillance revealed that you played a regular shift. Game sheets show that you started many games, and obviously played a physical game based upon the number and type of penalties taken."

At the request of the claimant, an Appeal Panel convened an oral hearing on January 16, 2001. Subsequent to the hearing, the panel met and determined that the claimant should be assessed by a sports medicine specialist. The assessment took place on February 19, 2001. The covering report was subsequently received on March 6, 2001 and was then distributed to all parties with a direct interest. The Appeal Panel met again on March 21, 2001 to discuss this case.

Reasons

This is the case of a worker who injured his ankle when he stepped into a hole in the ground while carrying a heavy, rolled carpet on his shoulder. Three and one-half years later, he has not fully recovered and continues to show symptoms dating back to the original injury.

The issue to be determined in this case is whether or not the claimant is entitled to wage loss benefits beyond November 16, 1998. For the claimant to be successful in this appeal, the Panel must determine, on a balance of probabilities, that the claimant had not recovered from his work-related injury as of that date and, thus, was not capable of returning to his pre-accident employment.

Prior to coming to its decision, the Panel carefully reviewed the file, including the surveillance reports and videotapes. In addition, we had the benefit of the claimant's presentation at the oral hearing.

In our deliberations, immediately following the hearing, we decided that we needed further medical information to enable us to come to a final conclusion. We noted that the decision to terminate benefits to the claimant had been based on a subjective observation based on evidence contained in the videotapes and that there was little objective medical evidence to support the conclusion that the claimant had recovered sufficiently to return to his pre-accident work. In seeking an answer to this matter, we sent the claimant for an examination by a specialist in sports medicine.

The report of that examination played a very persuasive role in our decision.

The primary premise upon which the claimant's benefits were cut off was that if he could play hockey, he could return to his previous employment. The claimant had been observed, over a period of more than a year, playing senior hockey. It was held by the adjudicator that, if his ankle could stand up to the rigours of an aggressively played hockey game, it could stand up to work, including in his pre-accident employment of interior decorating and underground mining.

The claimant argued in his appeals to the Board and before the Appeal Panel that with heavy taping and with the stiffness of a modern hockey skate, he could indeed play hockey without causing any pain to his ankle. He also reported that at least one of his doctors had encouraged him to be 'aggressive' with his ankle, that to do so would aid in his recovery.

It was not until his most recent medical consultation - after the panel hearing - that the mechanics of ankle use in playing hockey was fully examined and compared with the mechanics of ankle use in his pre-accident employment.

The physician who conducted this exam noted that, in his opinion, the videotape evidence was not at all helpful in determining whether or not the claimant was capable of returning to work. He writes:

"The videotape does not negate the objective findings, which have been quite consistent on his physical examination among multiple caregivers. One cannot extrapolate by viewing the videotape, that he would be able to perform different activities, with different footwear, on different surfaces, and for a longer period of time. The process of skating from a biomechanical point of view, does not involve substantial flexion or extension of the talocrural joint. It does not involve substantial inversion or eversion of the subtalar joint. The work of a labourer, and in particular, a miner, would involve the wearing of different footwear, and in the mine, the patient would clearly have different demands placed on the ankle joint . would require more dorsiflexion and plantar flexion of the ankle. There has been no documentation to my knowledge, of [the claimant] manifesting normal joint range of motion, despite the videotape evidence."

The specialist further noted his opinion that the claimant "would have physical work restrictions limiting his employability." More specifically restrictions would be placed on the following activities: "regular climbing of stairs; regular climbing of ladders; regular ascending or descending on graded land; difficulties walking on uneven ground; difficulties with prolonged standing." He states:

"At this time, the patient would have what would appear to be a permanent partial impairment, associated with permanent partial disability and work restrictions."

However, he goes on to note that the claimant has not had the benefit of a comprehensive program of therapy. There has been no work on strengthening his right leg or on balance exercises. He observes that with a proper course of rehabilitation, addressing these areas, the impairment and restrictions could be somewhat ameliorated. He adds that there are a couple of orthotic devices that might well be of benefit to the claimant.

He concludes by stating that he feels further medical investigation is needed: specifically, a bone scan and MRI.

As noted above, the Panel found this evidence to be very persuasive and has concluded that the claimant had not recovered from his work-related injury sufficiently to enable him to return to his pre-accident employment. We are of the view that he has still not recovered. In coming to our decision, we also took note of the fact that he has been accepted as disabled by the provincial government social assistance program. Therefore, he is entitled to wage loss benefits beyond November 16, 1998.

However, while we have concluded that the claimant is not able to return to his pre-accident work, we are not of the view that he is totally disabled from work. We feel that the claimant was capable of mitigating his loss of earning capacity, but failed to do so.

Pursuant to section 22 of The Workers' Compensation Act, a claimant is required "to mitigate the consequences of the accident", wherever possible. Where the claimant fails to do so, the board may reduce any compensation payable to the worker.

We are of the opinion that the claimant was capable of earning wages equivalent to full-time minimum wage for the period beginning after he was notified by the board that his benefits were to be cut of retroactively. We feel that this deemed earning capacity should remain in effect until the claimant begins active involvement with the board in the development of a vocational rehabilitation plan. Consequently, his wage loss benefits are to be reduced by this amount for this period.

We believe that the claimant, who is still a young man, is a prime candidate for vocational rehabilitation. This opinion is reinforced by the claimant's earlier involvement with a board-sponsored program, in which he appeared to have been doing very well. Successful completion of such a program would allow the claimant to return to work full time, thus contributing to society and to his family.

Summary:

In summary, we have come to the following conclusions:

1. The claimant is entitled to full wage loss benefits beyond November 16, 1998.
2. For the period from January 1, 2000 until the claimant enters into development of a vocational rehabilitation program with the board, he is deemed to have an earning capacity equal to full-time (40 hours per week) at minimum wage.
3. Further medical treatment, as described by the sports medicine consultant, should be considered.
4. A vocational rehabilitation program should be developed for the claimant, as soon as possible.

Accordingly, the appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2001