The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 22, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 22, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits beyond October 30, 1999.

Decision

That the worker is not entitled to wage loss benefits beyond October 30, 1999.

Background

While employed as a cocktail waitress on January 17, 1996, the claimant slipped and fell injuring her left ankle. An x-ray of the left ankle showed a fracture of the anterior aspect of the tibia laterally at its articulation with the fibula. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced shortly thereafter.

Subsequent file records indicate that the claimant was under the care of an orthopaedic specialist and had undergone physiotherapy treatments. By July 1996, the orthopaedic specialist's examination findings were consistent with reflex sympathetic dystrophy. In January 1997, his examination findings were consistent with chronic pain syndrome.

The claimant was assessed at the WCB's chronic pain unit in March 1997. The consultant psychiatrist did not feel that the claimant had evidence of clinical depression or any post-head injury difficulties. A referral was made for the claimant to see a specialist specializing in pain and stress management for her pain and deconditioning.

In December 1997 the above specialist noted that the claimant did not fare well with a graduated return to work program of only one hour per day and that her pain complaints seemed much exacerbated. He stated that since the claimant's pain seemed to be metastasizing to include her leg and hip, a nerve conduction study was done and it was shown to be normal. As the claimant had some involvement of her sacroiliac joint on the left, she was sent to a physical medicine and rehabilitation specialist who injected the joint. In March 1998, the specialist noted that the claimant continued to present with a complex syndrome involving her entire left leg.

On September 2, 1998, a sports medicine specialist assessed the claimant with the following diagnoses: chronic left ankle arthropathy, chronic left mid tarsal osteoarthrosis, left tibial compartment dysfunction; left sacroiliac joint dysfunction and hip abductor weakness.

A Medical Review Panel (MRP) was convened on September 29, 1998, at the request of primary adjudication, to clarify the claimant's current medical status. The MRP diagnosed the claimant's condition as being chronic pain disorder, musculoskeletal deconditioning of the left leg probably related to disuse; trochanteric bursitis left and persistent left ankle pain. The MRP noted that the only clinical findings to support the claimant's ongoing disability were the development of a chronic pain disorder and deconditioning. The MRP further noted that the claimant's prognosis could be quite good, if a plan were implemented for a return to work following a period of physical reconditioning and psychological support.

In March 1999 an assessment took place at the WCB's Pain Management Unit to determine whether the claimant had chronic pain syndrome, and if so, its relationship to the compensable accident. It was confirmed that the claimant was suffering from chronic pain syndrome and that her workplace injury contributed to its development. It was felt that while the claimant did have chronic pain syndrome it did not, at this stage, prevent her from returning to work. A period of deconditioning was recommended.

On July 22, 1999 the treating physical medicine and rehabilitation specialist reported that the claimant appeared to have some features suggestive of fibromyalgia syndrome. On August 25, 1999, a WCB medical advisor commented that the fibromyalgia syndrome was not related to the compensable injury.

The claimant was assessed on August 3, 1999 by a medical advisor from the WCB's Pain Management Unit. He did not believe that the claimant's chronic pain syndrome continued to present a barrier to a return to work. The medical advisor was of the opinion that the claimant should be able to participate in her vocational rehabilitation program. A short period of 3 to 4 weeks of physiotherapy for reconditioning and muscle strengthening would also benefit the claimant.

In a letter dated September 22, 1999, Rehabilitation and Compensation Services advised the claimant that a reconditioning program was being arranged and that upon completion of this program she should be capable of returning to work. The WCB's responsibility for treatment and wage loss benefits would end on October 30, 1999.

On October 6, 1999, the claimant contacted her WCB adjudicator to indicate that since beginning the reconditioning program her ankle problems had increased. She stated that her doctor advised her to stay off the ankle for 2-3 weeks. He prescribed anti-inflammatory medication and that an x-ray of the ankle be taken.

A report from the attending physician dated September 28, 1999 noted that the claimant started reconditioning and that an ankle flare-up occurred. Objective findings were noted to be slight effusion and tenderness in the joint lines. An x-ray of the left ankle dated September 28, 1999 showed some tissue swelling below the lateral malleolus and adjacent to the talus. No fracture was seen and a notation was made of a plantar calcaneal spur.

On November 10, 1999, the claimant was advised that the WCB was unable to extend benefits past October 30, 1999 based on the information received from the attending physician. He could not provide any objective findings as to why the claimant was unable to participate in the reconditioning program. The objective findings provided by the attending physician in a progress report of November 5, 1999 suggested that the claimant's range of motion in the ankle was normal as were toe raises. It was therefore the WCB's opinion that there were no objective findings to support the claimant's inability to participate in the reconditioning program. This decision was later appealed by the claimant and the case was referred to Review Office.

On January 7, 2000 Review Office determined that the claimant was not entitled to wage loss benefits beyond October 29, 1999. Review Office found that the worker had physically recovered from the effects of the injury sustained on January 17, 1996 and that any present factors which prevented her from resuming her regular employment were unrelated to the compensable injury.

On July 10, 2000 a worker advisor submitted additional medical evidence to Review Office (a report from the claimant's treating sports medicine and rehabilitation specialist dated June 28, 2000) and requested reconsideration of its January 7, 2000 decision. The worker advisor believed this new evidence showed that the claimant had not recovered from her compensable injury and that she was therefore entitled to wage loss benefits beyond October 30, 1999.

In a response dated August 3, 2000 to the worker advisor's request, Review Office indicated that the June 28th report had been reviewed by a WCB orthopaedic consultant and that no change would be made to the earlier ruling of January 7, 2000. Review Office took the position that there was a lack of significant pathology which would continue to render the claimant incapable of working due to the effects of the injury sustained at work on January 17, 1996.

On November 22, 2001 an oral hearing took place at The Appeal Commission at the worker advisor's request. The worker advisor submitted a further report from the sports medicine and rehabilitation specialist dated November 13, 2001 for the Panel's consideration.

Reasons

As the background notes indicate, a sports medicine and rehabilitation specialist examined the claimant on June 28th, 2000. Following his examination, the specialist reached the conclusion that the claimant had not fully recovered from the effects of her compensable injury. In a report to the claimant 's worker advisor dated June 28th, 2000, he reported:

"In my opinion, the patient's purported cause of a slip and fall at her place of employ, led to a minimally displaced intra-articular fracture of the left ankle. Clinically, and based on bone scan evidence, I believe the patient has post-traumatic left ankle arthropathy. The evidence would indicate that there is a medically probable causal relationship between the fracture she sustained in the workplace, and the subsequent left ankle pain and arthropathy. It appears as though the proximal fibular shaft fracture went undiagnosed, and may be partially responsible for some of her ongoing leg pain.

It appears that there is a medically probable causal relationship between the patient's traumatic fracture, and subsequent difficulties with the left lower extremity in relationship to kinetic chain dysfunction.

Therefore, in my opinion, I believe that the patient has not recovered from the effects of her compensable injury."

Although the claimant's injury has not completely resolved, the evidence as a whole does not support the claimant's contention that she continues to experience a total loss of earning capacity since the termination of her benefits. On the contrary, according to her treating sports medicine and rehabilitation specialist, "The patient is not completely disabled and should be able to perform more sedentary work without have (sic) to walk and carry objects". (Emphasis added)

Given the foregoing opinion, we are not predisposed to reinstate wage loss benefits retroactive to October 30th, 1999. It should be noted that the claimant has demonstrated little or no initiative in seeking employment that is compatible with her physical capabilities. It is our recommendation, however, that the claimant might benefit from a short rehabilitation program sponsored by the WCB to assist her re-entering the workforce.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of January, 2002