Decision #127/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 14, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not responsibility should be accepted for medical treatment and time loss from work beyond June 2002.

Decision

That responsibility should be accepted for medical treatment and time loss from work on October 30, 2003 and October 31, 2003.

Decision: Unanimous

Background

In June 2002, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a right foot injury that occurred in December 2001 and again in February 2002 when a student drove over his foot with his wheelchair. On June 17, 2002, the attending physician diagnosed the worker with a contusion to the right foot and a chronic sprain. The claim was accepted by the WCB as a no time loss claim.

In November 2003, the worker advised the WCB that when he came home from work on October 29, 2003, his foot was very swollen and he was in a lot of pain. The worker said he missed work on October 30 and 31, 2003, as walking was very painful. He then sought treatment on October 31, 2003 and his foot was x-rayed and he was given a prescription for Celebrex. The worker advised the WCB that he was claiming for time loss from work on October 30, and 31, 2003 along with his Celebrex prescription.

X-rays of the right foot taken on October 31, 2003, revealed the following:
"There is a small spur on the plantar aspect of the calcaneus and on the tuberosity. There is likely an old healed fracture at the base of the first metatarsal. There is advanced osteoarthritic change in the joint between the first metatarsal and the first cuneiform. There is also osteoarthritic change in the first metatarsal phalangeal joint."
In a letter to the WCB dated November 26, 2003, the attending physician noted that the worker appeared to be suffering from arthritic change involving the right first metatarsal joint and that he had an old healed fracture at the base of the first metatarsal. The physician further stated, "I will point out that often when x-rays are taken early after an injury they do not show evidence of a fracture and this appears to have been the case with Mr. [the claimant] as his x-rays do now show evidence of chronic change which is suggestive of a previous fracture of this region (which was not initially seen on the first x-ray). I think that Mr. [the claimant] does also have a little bit of degenerative change involving his forefoot. However, this has not been compared to the other side to see if it is accelerated, if you wish, x-rays of the left foot could be obtained for comparison."

Following consultation with the WCB's healthcare branch, primary adjudication advised the worker on January 23, 2004, that the WCB was not accepting responsibility for any medical treatment or time loss from work beyond June 2002. It was the WCB's position that the worker's current disability resulted from an underlying or pre-existing condition which was not enhanced or accelerated by his accident at work. On March 3, 2004, the worker appealed the decision to Review Office.

On March 24, 2004, Review Office confirmed that no responsibility could be accepted for medical treatment and time loss from work beyond June 2002 based on the following rationale:
"…both a WCB General Medical Advisor and a WCB Orthopaedic Specialist have reviewed the x-rays and have commented on them. In the opinion of these two physicians, the findings shown on the x-rays are old findings that would have preceded the initial 2002 injury by several years. They have not been able to attribute the findings which are producing the worker's ongoing complaints to the 2002 accident. In the opinion of the Review Office, the weight of medical evidence is, therefore, not in the worker's favour, as the weight of medical evidence does not support a relationship between the worker's right foot problems which necessitated losing time from work in October, 2003, and the accident that has been accepted as occurring in February, 2002."
On April 22, 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue before us was whether responsibility should be accepted for medical treatment and time loss from work beyond June 2002. For the worker's appeal to be successful we must find that his loss of earnings on October 30 and 31, 2003 and related medical treatment were due to the workplace incidents of December 2001 and February 2002 or that his work duties caused an aggravation or enhancement of a pre-existing condition. We find that the worker's time loss was not due to the workplace incidents in December 2001 and February 2002 but that his work activities on October 29, 2003 caused an aggravation to his pre-existing condition.

At the hearing the worker made a presentation in support of his appeal. He described the workplace incidents of December 2001 and February 2002 and their impact on his right foot. He noted that on two occasions a wheel chair ran over his foot. He acknowledged the x-ray report that refers to an old healed fracture at the base of the first metatarsal, but advised that to his knowledge he had not previously fractured his foot. He noted that since the wheel chair incidents a permanent bump has developed on his foot. He attributes this bump to the workplace incidents of December 2001 and February 2002.

The worker advised that he first missed work on October 30 and again on October 31, 2003. He noted that on the October 29, 2003 he was required to participate in additional activities at work related to recycling duties which involved significant stair climbing and that his foot bothered him after performing these duties. He believes the resulting problems at that time are attributable to the previous workplace incidents.

The employer representative advised that the employer was not challenging the worker's claim. The representative confirmed that staff can be injured by wheelchairs in the manner reported by the worker. He noted that the case turns on the interpretation of medical information.

After considering all the evidence we find, on a balance of probabilities, that the workplace incidents of December 2001 and February 2002 did not cause the claimant's degenerative changes in his foot and did not cause the subsequent time loss. We are satisfied, however; that the time loss experienced by the worker on October 30, and 31, 2003 was due to the degenerative changes in the worker's foot which were aggravated by the worker's duties on October 29, 2003. We note the worker was involved in different duties on this date which involved significant stair climbing and that these duties aggravated the worker's pre-existing condition. In arriving at this conclusion we relied on the following evidence that demonstrated that the degenerative changes preceded the workplace incidents in December 2001 and February 2002:
  • X-ray report of May 27, 2002 which refers to "rather advanced degenerative changes at the first tarso-metatarsal joint" and a "tiny plantar calcaneal spur". We note that this x-ray was taken shortly after the two incidents, but demonstrated advanced degenerative changes which we find pre-dated the two incidents.

  • X-ray report of October 31, 2003 which notes:
    "There is a small spur on the plantar aspect of the calcaneus and on the tuberosity. There is likely an old healed fracture at the base of the first metatarsal. There is advanced osteoarthritic change in the joint between the first metatarsal and the first cuneiform. There is also osteoarthritic change in the first metatarsal phalangeal joint."
  • Opinions of WCB medical adviser and orthopedic specialist that the fracture referred to in the October 2003 x-ray would have predated the work incidents. These physicians did not see any cause and effect relationship between the October 2003 problems and the prior workplace incidents.

  • The worker's physician report of November 26, 2003 which notes that the worker "…appeared to be suffering from arthritic change involving the right first metatarsal joint. In addition, he appeared to have an old healed fracture at the base of the first metatarsal."
As we have found that the worker suffered an acute aggravation to his pre-existing condition, under Board of Directors Policy Number 44.10.20.10 the worker is entitled to wage loss benefits for the period of the aggravation, October 30 and 31, 2003 and medical aid benefits associated with the acute aggravation.

Accordingly the worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of September, 2004

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