Decision #68/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 3, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to wage loss benefits beyond May 30, 2003.Decision
That the worker is not entitled to wage loss benefits beyond May 30, 2003.Decision: Unanimous
Background
During the course of his employment as a yardman on May 5, 2000, the claimant jumped down to the ground off of a semi-trailer and injured his right heel.Initial medical information consisted of an x-ray report dated May 12, 2000 of the right foot and heel which revealed a plantar calcaneal spur and early degenerative changes at the first MTP (metatarsalphalangeal) joint. A report from the treating physician dated May 24, 2000, diagnosed the claimant with a right heel contusion. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant commencing May 6, 2000.
The treating physician reported on July 5, 2000, that the claimant remained disabled, but was "improving steadily."
On August 14, 2000, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor stated, in part, that the calcaneal spur was a pre-existing condition which was likely aggravated by the accident and that the aggravation had not yet resolved.
In a report to the WCB dated August 28, 2000, a podiatrist noted that the claimant was complaining of pain in both heels which had been present since the May 2000 accident. It was explained to the claimant that he was suffering from plantar fasciitis which could have been caused by the impact of the jump. It was felt that with adequate footwear, orthotics, rest and medication, the soft tissue injury would resolve.
Bilateral foot x-rays were carried out on August 22, 2000. The report noted bilateral plantar calcaneal spurs and small bony spurs at the attachment of the Achilles tendon bilaterally.
On September 15, 2000, a WCB medical advisor was asked by primary adjudication to comment on whether or not a cause and effect relationship existed between the diagnosis of plantar fasciitis and the compensable injury. The medical advisor responded that, as the plantar fasciitis was in both feet while the injury was to the right heel, it was unlikely that the mechanism of injury caused the condition. The medical advisor noted that the compensable diagnosis was likely a contusion to the heel and he would not authorize the orthotics as being related to the compensable injury.
A WCB medical advisor assessed the claimant on October 23, 2000. The medical advisor believed that the claimant continued to demonstrate signs related to the workplace incident at both the right lateral ankle and the right calcaneus. In an addendum to her examination notes, the medical advisor noted that she was referring the claimant to an orthopaedic specialist and temporary restrictions were outlined.
A bone scan report dated October 23, 2000 noted that "The described activity within both heels is most in keeping with retrocalcaneal bursitis."
On January 4, 2001, the claimant was seen by an orthopaedic specialist who assessed him as suffering from right foot plantar fasciitis and an asymptomatic left foot tarsal condition. Based on the history and physical findings, he did not feel that the claimant had retrocalcaneobursitis despite the results of the bone scan. He recommended conservative treatment for the symptomatic right foot, and no treatment for the asymptomatic left foot.
On March 14, 2001, primary adjudication accepted financial responsibility for the purchase of foot orthotics for the claimant.
The claimant underwent a Functional Capacity Evaluation (FCE) on April 24, 2001. On the same date he reported that both of his feet were subsequently "very swollen". Following the assessment, work restrictions were extended for another six months.
In June 2001, the case was referred to the WCB's vocational rehabilitation branch to discuss vocational planning with the claimant.
On November 13, 2001, the claimant's restrictions were extended for another three months as it was shown that the claimant's foot condition was improving since he commenced wearing the foot orthotics.
On February 26, 2002, a WCB medical advisor reviewed the medical information on file and noted that the claimant's foot pain was continuing. He recommended that the claimant's restrictions be extended for three additional months.
Following a call-in examination at the WCB's offices on April 30, 2002, it was determined that the claimant continued to have signs and symptoms of ongoing right plantar fasciitis which would still be related to his compensable injury. It was noted that the claimant's recovery had been prolonged due to his co-existing diabetes. The WCB Advisor recommended that the claimant's restrictions be extended for a further six months.
On November 6, 2002, the case was reviewed by a WCB medical advisor who noted that a cause and effect relationship no longer existed between the compensable injury and the claimant's ongoing symptoms. He noted that the compensable injury caused a temporary aggravation of the claimant's pre-existing calcaneal spurs and that the claimant had no compensable restrictions.
In a May 20, 2003 memo, a WCB case manager noted that he had discussed the claimant's plantar fasciitis with a WCB medical advisor. The medical advisor was of the opinion that the condition was not a WCB responsibility and should not have been accepted in the first place.
Based upon the weight of medical evidence including the opinion of the medical advisor, the case manager advised the claimant on May 22, 2003 that his wage loss benefits would stop as of May 30, 2003 as he was unable to establish a cause and effect relationship between the claimant's compensable injury and his ongoing symptoms.
In the summer of 2003 the claimant returned to work temporarily, finding work as a CAT operator.
On October 14, 2003, a worker advisor, acting on behalf of the claimant, provided primary adjudication with a report from the claimant's treating physician dated September 11, 2003. The treating physician provided her opinion that the claimant's plantar fasciitis was still related to the compensable injury and that the claimant did not have a pre-existing right foot condition other than a completely asymptomatic calcaneal spur. In a response dated October 22, 2003, primary adjudication informed the worker advisor that it was the WCB's position that the claimant's current disability was the result of an underlying or pre-existing condition, the progression of which was not enhanced or accelerated by the accident at work.
On November 7, 2003, the case was considered by Review Office at the request of the worker advisor. The Review Office agreed with primary adjudication that the claimant was not entitled to benefits beyond May 30, 2003 and that his ongoing symptoms were not related to the accident. Review Office noted that a WCB senior medical advisor and a WCB orthopaedic consultant both considered the claimant had recovered from the effects of any aggravation to a pre-existing condition that may have occurred in the accident. Both consultants also stated that there had been no permanent enhancement of the pre-existing condition by the accident and that the aggravation caused by the accident to the pre-existing calcaneal spurs would have ended long before May 30, 2003. In January 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was held on May 3, 2004.
Reasons
On May 5, 2000 the claimant, while working, jumped off the back of a semi-trailer and injured his right heel. His foot became swollen and painful and he was unable to work as a result. His WCB claim was accepted and benefits were paid until May 30, 2003. He was then told that the Board no longer saw a cause and effect relationship between the compensable injury and his continuing symptoms. As noted in the background summary he appealed that decision, unsuccessfully, through to Review Office.At issue in this appeal is whether or not the claimant is entitled to wage loss benefits beyond May 30, 2003. The Panel found that he was not.
In coming to our decision, we conducted a thorough review of the claim file, the policy on pre-existing conditions, and held an oral hearing where we heard testimony from the claimant and submissions from his advocate.
The policy on pre-existing conditions (44.10.20.10) authorizes payment of wage loss benefits when "a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them…"
When a worker recovers from the workplace accident, according to the policy, "to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
- the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment and
- the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid."
We took particular note of the following evidence:
- May, 2000 x-ray showed pre-existing degenerative conditions in the right foot;
- Treating physician's findings that the claimant was "improving steadily" by July, 2000;
- Claimant's report of pain in both heels to podiatrist in August, 2000;
- August 2000 x-rays showed bilateral heel spurs;
- September 15, 2000 WCB medical advisor report of plantar fasciitis in both feet, therefore trauma not likely cause;
- October, 2000 bone scan indicating bilateral retrocalcaneal bursitis;
- November 2002 opinion of WCB medical advisor that compensable injury caused temporary aggravation of a pre-existing condition;
- Claimant's evidence that he continues to wear orthotics in both shoes;
- The claimant's temporary return to work in the summer of 2003.
The Panel was unable to establish a relationship, on a balance of probabilities, between the original compensable injury and the claimant's current symptoms. We would accordingly dismiss the claimant's appeal.
Panel Members
C. Harapiak, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
C. Harapiak - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of May, 2004