The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 18, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on August 18, 2004 and again on September 23, 2004.

Issue

Whether or not the claimant is entitled to further benefits including wage loss beyond October 29, 2003.

Decision

That the claimant is not entitled to further benefits including wage loss beyond October 29, 2003.

Decision: Unanimous

Background

On March 20, 2003, the claimant injured her left ankle when she tripped on a step when entering a walk-in freezer during the course of her employment as a Loss Prevention Officer. Following the accident, the claimant sought medical attention and was diagnosed with a left ankle strain and mild achilles bursitis. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant effective March 23, 2003.

On August 11, 2003, x-rays of the left ankle were taken and an old medial malleolar fracture was identified with post traumatic osteoarthritis.

On August 28, 2003, a bone scan examination was carried out and the results revealed, "Suspected fracture (or osteochondral injury) of the left talar dome.

Radiographic correlation is required. If plan radiographs are negative then further assessment with a CT scan is likely warranted."

An MRI examination of the left ankle was carried out on September 26, 2003. The results showed "…moderately-severe osteoarthritis within the ankle joint. There is an incidental enchondroma in the distal tibia."

In a letter dated October 22, 2003, the WCB advised the claimant that responsibility for wage loss benefits and medical treatment in relation to her claim were ending. After having considered all the file evidence which included an opinion expressed by a WCB medical advisor dated October 9, 2003, the WCB felt that the claimant's current left ankle symptoms were related to osteoarthritis which was considered to be a pre-existing condition which had not been enhanced or accelerated by the accident at work.

Following receipt of an appeal by the claimant, the case was considered by Review Office on December 16, 2003. Based on a December 9, 2003 WCB orthopaedic consultation, Review Office confirmed that no wage loss benefits would be payable and that no further responsibility would be accepted for the claim beyond October 29, 2003.

Review Office noted that the case manager had notified the claimant on October 22, 2003 that the WCB would no longer be responsible for her ankle condition and that she was not entitled to further benefits beyond that date. In accordance with the WCB's policy on termination of benefits and services, Review Office felt that the case manager should have allowed the claimant one additional week from the date of notification. Hence, the claimant was entitled to one more week of additional benefits or until October 29, 2003.

Review Office was also of the view that the claimant had recovered from the effects of her compensable injury and was not entitled to benefits beyond October 29, 2003. It was Review Office's opinion that the claimant's ongoing problems were more probably related to her underlying osteoarthritic condition identified on x-ray, bone scan and MRI evaluations.

On March 17, 2004, a worker advisor, acting on behalf of the claimant, submitted an undated letter from the claimant's treating physician and requested the scheduling of an oral hearing in light of Review Office's decision dated December 19, 2003. On August 10, 2004, an oral hearing was convened.

Following the hearing and after discussion of the case, the Panel requested and obtained additional information from the claimant's treating orthopaedic specialist. On September 7, 2004, the new information was forwarded to the interested parties for comment. On September 23, 2004, the Panel met further to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

At the age of sixteen, the claimant underwent left ankle surgery together with subsequent hardware removal. There is substantial radiological evidence on file confirming that the claimant has had a longstanding non compensable pre-existing osteoarthritic left ankle condition. A recent x-ray taken of the claimant's left ankle revealed an "old medial malleolar fracture with post traumatic osteoarthritis." An MRI of the left ankle performed on September 26, 2003 profiled the degree or the extent of the claimant's arthritic condition. "There is moderately-severe osteoarthritis within the ankle joint. There is an incidental enchondroma in the distal tibia." We note the findings of a further x-ray recorded on June 28, 2004: "Comparison is made to the August 2003 exam. No significant change has occurred. Joint space narrowing is identified involving the ankle mortise anteriorly, essentially unaltered from the earlier examination and consistent with post-traumatic osteoarthritic changes." The treating orthopaedic surgeon acknowledges in a letter dated September 2, 2004 that the claimant's left ankle arthritis was fully established by the time of the March 2003 compensable accident, "…and no real ongoing symptoms or disability reported until the March 2003 injury, by which time arthritis was well-defined on x-ray."

After having considered all of the evidence, we find that the claimant's ongoing left ankle difficulties beyond October 29, 2003 relate, on a balance of probabilities, to her non compensable pre-existing osteoarthrosis. There is no evidence suggesting that this pre-existing condition was ever aggravated, accelerated and/or enhanced by the compensable incident. We further find that the compensable injury is no longer playing any material role with respect to the claimant's current medical condition. Therefore, the claimant is not entitled to further benefits including wage loss beyond October 29, 2003. Accordingly, the claimant's appeal is hereby dismissed.

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 15th day of October, 2004