Decision #115/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 18, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits and medical aid benefits beyond March 25, 2002.

Decision

The claimant is not entitled to wage loss benefits and medical aid benefits beyond March 25, 2002.

Decision: Unanimous

Background

On August 3, 2001 and August 27, 2001, the claimant's right shin was punctured by the foot accelerator of an electric pallet jack during the course of his employment as a labourer with a temporary agency. Medical reports on file confirmed a diagnosis of laceration to the right lower leg. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the worker up until August 31, 2001 when it was determined that he was fit to return to work.

In February 2002, the claimant contacted the WCB to state that he had been off work since August 2001 and was still off work due to his injury. The WCB requested and obtained a report from the treating physician dated May 1, 2002 which revealed the following information:
  • September 6, 2001 - the diagnosis was follow-up laceration, complicated by chronic venous insufficiency as well as query injury to the peroneal nerve. The physician noted that the claimant had an ulceration at the site of the laceration with no signs of infection. There was decreased sensation in the foot and marked foot drop. It was presumed that the claimant injured a peripheral nerve with his second leg injury.

  • December 11, 2001 - the claimant was noted to have recovered from his nerve injury with an improvement in gait and in foot strength but there was still limitation of dorsi-flexion of the right foot. The ulceration at this point had healed. The claimant was also recovering from cellulites of his right thigh. The physician's overall impression was "…although Mr. [the claimant] was suffering from problems of chronic venous insufficiency during this time period, the nerve injury was likely due to a direct trauma which would not have been linked to his pre-existing problem. The ulceration of the laceration site probably was related to his pre-existing condition, though."
On July 8, 2002, the treating physician provided further information to the WCB which revealed the following:
  • March 25, 2002 - the claimant's leg symptoms had improved and he was considered ready to return to light duties with a gradual return to full duties over the next six weeks.

  • April 22, 2002 and May 21, 2002 - there was no indication of decreased strength of plantar or dorsi flexion of the foot. Neurological function of the right leg was normal.

  • June 13, 2002 - two days prior to presentation, the claimant indicated he was walking along and suddenly lost feeling in his right leg and fell down. The claimant reported some low back pain which came on hours after the initial fall.

  • June 25, 2002 - the claimant complained of pain in his right leg that was different to any previous right leg pains or problems that he had had. The physician said he ordered a CT scan of the lumbar spine to check for a possible lumbar disc herniation and an ultrasound of the leg to rule out DVT (deep vein thrombosis).

  • July 2, 2002 - the claimant complained of pain in the mid-calf which radiated from the mid foot. The description of pain was slightly different than previous. The claimant had decreased sensation for the whole right leg which did not seem to fit a dermatomal pattern. The back pain had resolved entirely.
The treating physician summarized his opinion as follows: "He has had numerous problems with his right leg, including previous fractures, relatively severe venous stasis changes and ulcerations to the right leg, two work related lacerations to the right lower leg in the same area, of which the second injury was followed by acute foot drop and sensory changes in keeping with a possible nerve injury. He has also had trouble with his right foot in terms of abnormal foot mechanics and bothersome calluses in the first and fifth metatarsal head regions. In short, I am not really sure what is going on with Mr. [claimant]. I am not sure how much of his recent problems could be related to his work injuries."

On November 15, 2002, the WCB advised the claimant that after reviewing the medical documentation and after consulting with the WCB's healthcare branch, it was determined that he had been totally disabled from work between September 1, 2001 to December 11, 2001 and that he was considered capable of light duties between December 11, 2001 to March 25, 2002. As his employer had been unable to accommodate him with light duties between September 1, 2001 to March 25, 2002, the WCB agreed to pay the claimant full wage loss benefits for this entire period. Any further time loss beyond March 25, 2002 was because of the claimant's right leg which was not related to his August 27, 2001 compensable injury but rather to his pre-existing severe venous stasis.

Subsequent to this decision, further medical reports were received from the treating physician dated January 30, 2003 and February 14, 2003 and from a physical medicine and rehabilitation specialist dated March 7, March 19, June 19 and July 8, 2003 along with nerve conduction study results.

On July 17, 2003, the claimant was advised that the WCB was still of the opinion that his ongoing leg difficulties were not related to his original accident but were the result of his pre-existing condition of venous stasis. The adjudicator stated, in part, "Given the original puncture wound as a result of the August 27, 2001, accident has long since healed, medical from your physician documents the primary pain problems remain chronic venous insufficiency, which does not relate to the compensable injury, I am unable to relate your current difficulties to the compensable injury. Therefore, I am upholding the original decision of November 15, 2002."

In October 2003, the WCB received an appeal submission from the claimant along with further medical reports from the treating physician dated September 4 and 17, 2003.

On October 14, 2003, the claimant was advised by primary adjudication that the new reports had been reviewed and that no change would be made to the WCB's decision, namely, that his ongoing difficulties were not related to the compensable injury but were due to his pre-existing venous stasis. The case was then forwarded to Review Office.

Prior to considering the appeal, Review Office forwarded the case to a WCB orthopaedic consultant for an opinion with respect to the claimant's current medical condition and its relationship to the compensable accident. The orthopaedic consultant responded as follows:

Q "Is there evidence he sustained a peroneal nerve injury, or any other nerve injury in the accident?

A No, there is not. The common peroneal nerve is susceptible to injury primarily over the lateral aspect of the lower leg just below the knee and the history suggests the initial injury and reinjury was not in this area,

Q Is the sudden onset of right leg numbness/weakness and the foot drop, which lead to a fall on June 13, 2002, related to CI?

A No; too remote from initial CI if he developed a foot drop at that time.

Q Which, if any, of the findings post March 25, 2002 are attributable to the accident?

A There are a lot of speculative findings reported. The initial puncture wound had delayed healing due to 2nd injury and chronic venous insufficiency as a result of old leg fracture."

In a decision dated October 31, 2003, Review Office determined that no responsibility could be accepted for wage loss benefits or medical aid costs beyond March 25, 2002. Review Office noted that this claim was complicated and prolonged because of the worker having chronic venous insufficiency. There was speculation that the worker sustained an injury to his peroneal nerve in the accident but Review Office did not believe that this had been established. Review Office was of the opinion that the worker had recovered from the effects of his compensable injury by March 25, 2002 when his WCB benefits had ceased.

In July 2004, the claimant appealed Review Office's decision and an oral hearing was arranged. Reports were also submitted from the treating physician dated February 27, 2003, March 29, 2004 and June 15, 2004 for the Panel's consideration.

At the oral hearing the claimant noted that his claim related to the period June 11, 2002 to September, 2003. He also described his fall of June, 2002, as occurring on his way to work. He said he felt the sensation of pins and needles, then went down, being unable to support his weight. He noted that his back pain, after this fall, lasted 1 - 2 months.

Reasons

The claimant was injured on August 3, 2001 and again on August 27, 2001, when an electric pellet jack malfunctioned and struck him on the right shin, puncturing the skin. He was paid benefits until August 31, 2001, at which time it was determined that he was fit to return to work. He continued to suffer from the injury, however, and eventually received wage loss and medical aid benefits up to March 25, 2002. The primary adjudication decision to cease benefits as of that date was appealed to Review Office. Review Office upheld the adjudicator's decision, and the claimant then appealed to this Commission.

The issue before the panel was whether the worker was entitled to wage loss benefits and medical aid benefits beyond March 25, 2002.

The panel found, after conducting a thorough review of the claim file, and hearing the claimant's evidence and argument at an oral hearing, that he was not entitled to benefits beyond March 25, 2002. The Panel took particular note of the evidence related to his pre-existing condition of chronic venous insufficiency and his injury of June, 2002.

CHRONIC VENOUS INSUFFICIENCY

The treating physician noted that the claimant had previous problems with his right leg; particularly severe chronic venous insufficiency.

Workers Compensation Board Policy No. 44.10.20.10, on Pre-existing Conditions, states that:

1. (a) Where 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

2. relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) 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

3) 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.

The evidence from the treating physician in May, 2002, was that the chronic venous insufficiency complicated the claimant's recovery from the workplace accident. The treating physician also noted that as of March 25, 2002 he was of the opinion that the claimant was able to go back to light duties and return to full duties within 6 weeks. The panel accepts the opinion of the treating physician that the claimant was capable of work at this point. This was confirmed by the claimant at the oral hearing when he advised that his claim was for the period June 11, 2002 to September, 2003. The panel did not find evidence to suggest, on a balance of probabilities, that the pre-existing condition had been enhanced as a result of the accident.

JUNE 11, 2002 FALL

On June 11, 2002, the claimant fell, on his way to work, and was subsequently incapacitated until September 2003. He felt the sensation of pins and needles, and then fell to the ground, where he remained, immobilized, for half an hour. He complained of low back pain which came on shortly after his fall. The treating physician was unable to assess "how much of [the claimant's] recent problems could be related to his work injuries."

The panel was unable to find a causal link between the August 2001 injuries and the June, 2002 fall. To the contrary, the evidence is that the claimant had recovered from his workplace injury and was available to go back to work.

The panel found, on a balance of probabilities, that the chronic venous insufficiency complicated and extended the worker's recovery, but that the workplace accident no longer contributed, to a material degree, to his loss of earning capacity after March 25, 2002.

Accordingly, we uphold the decision of the Review Office and dismiss this appeal.

Panel Members

C. Harapiak, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

C. Harapiak - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of September, 2004

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