Decision #38/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 4, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 4, 2003.

Issue

Whether or not the claimant was fit to return to a modified graduated return to work program as of November 19, 2001; and

Whether or not the claimant was fit to return to full duties as of December 3, 2001.

Decision

That the claimant was fit to return to a modified graduated return to work program as of December 6, 2001; and

That the claimant was fit to return to full duties as of March 5, 2002.

Decision: Unanimous

Background

While employed as a refuse helper on August 27, 2001, the claimant sustained a work place injury when a refuse truck ran over his right foot. An x-ray of the right foot taken on August 27, 2001 revealed a fracture at the junction of the tuft and mid shaft of the terminal phalanx of the 3rd toe that was separated. No other fractures were evident. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

On September 10, 2001, the attending physician noted that the claimant complained of pain and swelling and a diagnosis was made of "cellulitis of the right foot with crush injury." On September 27, 2001, the attending physician reported that the claimant's foot was healing slowly and that x-rays showed "gas in foot and fractured third toe." The claimant was advised to rest and to continue with antibiotics.

On October 15, 2001, a WCB medical advisor reviewed the case and recorded his opinion that the expected recovery from an uncomplicated fracture would be four to six weeks. As it was now seven weeks post injury, it was felt that the claimant should be able to return to regular duties by October 22, 2001.

An x-ray report of the right ankle/foot dated October 23, 2001, stated in part, the following:
"…There is an essentially undisplaced fracture of the neck of the 4th metatarsal. The fracture line is indistinct consistent with callus formation but can still be faintly identified and bone union does not appear complete. There is a transverse fracture of the neck of the 3rd distal phalanx with up to 2 mm separation of the fragments. There is a small amount of callus formation but fragments of the 3rd distal phalanx do not appear united by callus."
On October 24, 2001, the treating physiotherapist advised a WCB adjudicator that the claimant was still not weight bearing on his right foot. On October 25, 2001, a WCB medical advisor felt that the claimant could likely pursue sedentary duties during the week of November 5, 2001.

A physiotherapy report dated October 31, 2001, indicated that the claimant was assessed to see if he was able to walk 50 meters. The claimant was capable of doing this task, according to the physiotherapist.

A chiropractic report dated November 7, 2001, indicated that the claimant was seen on November 5, 2001. The chiropractor noted that the claimant felt he was 75% improved. The chiropractor stated that the claimant should be sent back to work on a graduated basis and restrictions were outlined as follows:
"…First week should be office type environment. Second week - driving, light walking without carrying greater than 20-30 lbs."
In a letter dated November 7, 2001, primary adjudication confirmed with the claimant that arrangements had been made for him to participate in a return to work program. It was anticipated that the return to work program would start on November 12, 2001 and that the claimant would resume full and regular duties by December 3, 2001. Subsequent file information revealed that the claimant did not wish to participate in the return to work program as he felt that he was not ready to do so. As a result, his WCB benefits were paid up to November 16, 2001 inclusive as the employer was unable to accommodate the claimant in modified duties until November 19, 2001.

In the interim, a second treating physician reported on November 13, 2001, that the claimant wasn't capable of alternate or modified duties. The physician then arranged for the claimant to undergo further tests. These tests included an x-ray of the right foot dated November 14, 2001, blood tests dated November 21, 2001 and a bone scan dated December 5, 2001.

In a progress report dated December 20, 2001, the attending physician reported a new diagnosis of reflex sympathetic dystrophy right foot, subsequent to infected compound fracture.

In a letter dated January 18, 2002, primary adjudication advised the claimant that it was the WCB's position after consulting with the WCB's healthcare department that the diagnosis of reflex sympathetic dystrophy was not supported by objective medical findings. Also, based on the information on file, primary adjudication felt that the claimant had recovered from the effects of his compensable injury and that further medical treatment was not required. It was therefore concluded that the claimant was capable of participating in his return to work program and that he was fit for pre-accident duties as of December 3, 2001.

On March 5, 2002, a neurologist reported that there was nothing wrong with the claimant neurologically and that he could not provide an explanation for the claimant's ongoing complaints of pain, cramping or discoloration. The neurologist did not feel these were manifestations of reflex sympathetic dystrophy.

On May 23, 2002, a union representative wrote to primary adjudication and made reference to a report by a vascular specialist dated May 13, 2002 who supported the diagnosis of reflex sympathetic dystrophy as being related to the August 27, 2001 compensable injury. The union representative requested that the claimant receive full WCB benefits from December 3, 2001 and ongoing. If primary adjudication disagreed to reinstate benefits, the union representative asked that the case be referred to Review Office for consideration.

Following consultation with a WCB orthopaedic consultant on July 19, 2002, primary adjudication wrote to the union representative on July 22, 2002. Primary adjudication referred to the findings and opinion made by the neurologist dated March 5, 2002 and commented that the only objective finding made by the vascular specialist was discoloration. Reference was made to the bone scan results, which suggested the presence of RSD. Primary adjudication noted that it was the opinion of the WCB's orthopedic specialist that the uptake on the bone scan was because of the fracture and demineralization that was also exhibited on x-ray dated November 14, 2001.

Based on the above findings, primary adjudication found that the weight of evidence including the mechanism of injury, medical reviews, and objective medical findings did not support a diagnosis of reflex sympathetic dystrophy. It maintained the view that the claimant had recovered from the effects of his compensable injury and that there was no basis upon which to extend wage loss benefits beyond November 16, 2001 inclusive. On August 20, 2002, the union representative appealed primary adjudication's decision and the case was forwarded to Review Office.

In a decision dated October 4, 2002, Review Office took into consideration the opinions expressed by the vascular surgeon, the neurologist and WCB's orthopaedic consultant in addition to the bone scan and x-ray results, as to whether or not the claimant suffered from reflex sympathetic dystrophy. Review Office expressed concern over the claimant's inconsistencies during examinations regarding the functional capabilities of his foot as his complaints often were not at the area of the fracture sites. This, in the opinion of Review Office, lent credibility to the contention that the claimant's main complaints were that of soft tissue injury, which WCB physicians felt should have been healing to the point to allow a return to work on a modified gradual return to work program 2 ½ months post injury.

After reviewing all of the evidence on file, Review Office was of the opinion that the graduated return to work program involving modified duties, which opinion was endorsed by the claimant's physician at the time, was a reasonable expectation. Review Office did not condone the actions made by the claimant in refusing to cooperate. Review Office concurred with the opinions outlined in the multiple decision letters from primary adjudication and confirmed that the claimant was fit to return to a modified graduated return to work program as of November 19, 2001 and was fit for full duties as of December 3, 2001.

On December 6, 2002, the union representative disagreed with Review Office's decision and an oral hearing later took place on March 4, 2003.

Reasons

As to the first issue, we find in accordance with the weight of medical evidence that the claimant was, on a balance of probabilities, fit to return to a modified graduated return to work program effective December 6th, 2001 being the date on which he was examined by his treating orthopaedic specialist. In coming to this conclusion, we considered very carefully the following comments recorded by the specialist in his report:
"Otherwise examination of the foot was normal except for some thickening as he had on previous occasions. At this time he had no pain or tenderness at the fracture site involving the distal phalanx of the third toe that remains non-united. Therefore no treatment was advised. His x-rays were shown to him. It was mentioned to him that his injuries are mostly soft tissue in nature. There is no indication at the present time to suggest any continued infection or any major fracture. Since his fracture involving the distal phalanx of the third toe does not bother him, there is no indication for any treatment. He was advised to increase his physical activities."

Extensive investigations were later conducted with respect to the possibility that the claimant's ongoing symptomatology may in fact be related to a condition known as reflex sympathetic dystrophy. A December 5th, 2001 bone scan revealed diffuse changes in the foot suggesting the presence of reflex sympathetic dystrophy. The question was raised by the radiologist whether the suggested presence of reflex sympathetic dystrophy was consistent with the claimant's clinical presentation?

A WCB orthopaedic consultant then reviewed the file on January 11th, 2002 and provided the following opinion in a memorandum to file with respect to the bone scan.
"The findings on the bone scan and x-rays of Nov 14/01 are consistent with demineralization due to lack of activity. The bone scan did not show a fracture of the 4th metatarsal and no focal activity in the third toe. Because he has no objective physical findings I do not believe he has reflex sympathetic dystrophy. This would also indicate that the soft tissues are healed. I feel the appropriate treatment for the demineralization is to increase his activity."

The treating physician next refers the claimant to a neurologist for his opinion as to a possible cause for the ongoing symptomatology being exhibited by the claimant. On March 5th, 2002 the neurologist advises the treating physician of the clinical findings.
"It is my impression the good news is on examination I can't find anything wrong with him neurologically, the bad news is I can't give him an explanation for his ongoing complaints of pain, cramping or discolouration. I didn't think these were manifestations of reflex sympathetic dystrophy, at least on my evaluation today."

An independent sports medicine specialist, who examined the claimant on May 13th, 2002, further discounts a diagnosis of reflex sympathetic dystrophy. "Other than the noted coolness to the right medial mid foot region and the examinee's reported history of hypersensitivity to pressure on the limb, there was little in the examinee's presentation in my assessment, to lead to the diagnosis of reflex sympathetic dystrophy. My impression is that the examinee's symptom complaints are not readily explainable by his clinical examination. Based on my clinical evaluation, Mr. [the claimant's] presentation is not consistent with RSD."

We are of the view that the claimant was, on a balance of probabilities, fit to return to full pre-accident duties as of the date of the treating neurologist's examination report (March 5th, 2002). While we concede the treating vascular surgeon was of the opinion that the claimant presented with reflex sympathetic dystrophy, we are nevertheless satisfied that the claimant does not meet the clinical diagnosis of this condition. In this regard, we prefer to attach greater weight to the comments concerning reflex sympathetic dystrophy that were expressed by the treating neurologist, the treating orthopaedic surgeon and the WCB orthopaedic consultant. Until such time as the diagnosis of reflex sympathetic dystrophy was conclusively ruled out and determined to be unrelated to the compensable injury, we were precluded from making a finding that he was capable of assuming full time pre-accident duties.

We further find that the claimant has recovered from the effects of his metatarsal fracture and that the possibility of reflex sympathetic dystrophy occurring as a result of his traumatic compensable injury has been ruled out by medical opinion. The evidence as a whole does not support the claimant's contention that his ongoing difficulties are related to the compensable injury.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 16th day of April, 2003

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