The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 3, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on March 3, 2005 and again on June 8, 2005.

Issue

Whether or not there is a cause and effect relationship between the worker's current right leg lesions/ulcer and the compensable injury of April 14, 2002.

Decision

That a cause and effect relationship does not exist between the worker's current right leg lesions/ulcer and the compensable injury of April 14, 2002.

Decision: Unanimous

Background

In October 1996, the worker filed a claim with the Workers Compensation Board (WCB) for a work related injury to the inner aspect of her right lower leg. The initial diagnosis was right lower leg venous stasis dermatitis with a large ulcer. In an operative report dated June 26, 1997, it was noted that the worker presented with "chronic ulceration of her right medial malleolar area. This has been present for six years, treated conservatively." The surgery performed was a split thickness skin graft.

On April 14, 2002, the worker was assisting a resident into a wheelchair during the course of her employment as a nurse when she struck the inner aspect of her right lower leg on the foot pedal of the wheelchair. A Doctor's First Report dated April 15, 2002 diagnosed the worker with cellulitis of the "left" ankle (this should have read "right" ankle).

In a memo to file dated April 15, 2002, a WCB representative documented the following information after speaking with the treating physician: "…clmt did have skin grafting done to the same area a few years ago… the skin is red, intact however tender and she has difficulty standing".

On April 21, 2002, a WCB medical advisor advised primary adjudication that a cause and effect relationship existed between the worker's left (should have read right) ankle cellulitis and the mechanism of injury. Primary adjudication accepted the claim and benefits were paid to the worker.

In a progress report dated April 25, 2002, the treating physician referred to the worker's cellulitis condition and stated that her previous skin graft was breaking down.

On May 18, 2002, a plastic surgeon commented that the worker had a 1 cm by 2 cm ulcer as well as cellulitis.

On July 10, 2002, the plastic surgeon reported that the worker's right lower leg ulcer appeared clean and laboratory testing was ordered.

In a memo dated July 22, 2002, a WCB medical advisor documented that the worker was able to work, however, should only perform sedentary duties with the ability to keep her right leg elevated.

After unsuccessful attempts to contact the worker regarding sedentary duties that were made available by her employer, the WCB case manager advised the worker by letter on August 2, 2002, that her wage loss benefits would be suspended effective August 3, 2002.

In a medical certificate dated August 14, 2002, the treating plastic surgeon indicated that the worker's ulcer was not improving and she needed to have her leg elevated, compression stockings and possibly a skin graft.

In a progress report dated August 26, 2002, the treating physician commented that the worker should stay off her feet and elevate her leg and was not capable of performing modified duties.

In a report dated August 27, 2002, a second plastic surgeon stated that the worker had chronic venous insufficiency of 10 years duration and that she presented with a recurrent ulcer since April over the gator area of her right calf. The surgeon outlined treatment suggestions and stated that the worker "should be able to continue working".

Subsequent reports were received from the treating physician and a hospital regarding "dressing changes" that took place between August 29, 2002 and October 8, 2002.

In a report to the treating physician dated October 2, 2003, a consultant specializing in infectious diseases noted that the worker was assessed for "cellulitis of the right lower extremity arising from a right medial ankle venous insufficiency ulceration." The consultant went on to state, "Mrs. [the worker] has had previous venous insufficiency ulcerations in the exact same location approximately 8 years prior. The current lesion began in April 2003 (sic) and has gradually continued to expand. The lesion has been painful and then on September 26, 2003, Mrs. [the worker] developed erythema and subsequently on September 27, 2003, she developed fevers and chills. She presented to the Health Sciences Centre when the erythema arrived to the level of the knee and she felt progressively more unwell".

On November 6, 2003, a WCB case manager documented a telephone conversation that she had had with the worker. The worker indicated that between October 2002 and September 2003, the ulcer in her leg had not completely healed and that she was looking after the wound herself. Due to her dire financial situation, she did not seek medical attention from October 2002 to September 2003, as she could not afford to miss time from work. The worker stated that she did not seek medical treatment until September 2003 when the ulcer became infected and her leg became red and swollen. The worker denied any new incidents or further accidents.

On November 24, 2003, primary adjudication asked a WCB medical advisor to review the file and to provide a medical opinion as to whether the worker's current right leg infection was related to her 2002 injury or was due to her non-compensable medical condition, i.e. chronic venous insufficiency, venous stasis dermatitis; and, whether it was possible for the wound in the right leg to be open and infected for one year. The medical advisor's response to primary adjudication is dated November 27, 2003.

In a decision dated December 2, 2003, primary adjudication informed the worker of the WCB's position that continuity could not be established between her current difficulties and the April 2002 workplace injury given that she did not seek medical treatment between October 2002 and September 2003. It was felt that the worker had essentially recovered from the effects of her 2002 work injury and any further difficulties were related to her pre-existing chronic venous insufficiency.

Subsequent to the above decision, the worker submitted additional medical information for consideration. This consisted of a report from the treating consultant in infectious diseases dated December 4, 2003. He stated, in part, "This lesion would likely have never occurred nor recurred had the original injury not occurred. Although Ms. [the worker] has underlying venous insufficiency and lower extremity lymphedema, this process does not usually progress to lower extremity ulcerations unless there is a violation of the skin integrity. Unfortunately, this is what has occurred with Mrs. [the worker] at the workplace. Since Mrs. [the worker] is aware of her underlying venous insufficiency, she uses her compression stockings at all times when at work."

In a medical certificate dated February 20, 2004, the treating physician stated that the worker had a stasis ulceration of her right ankle that had been present since 2002.

Further information was obtained from the treating consultant in infectious diseases dated March 10, 2004 that summarized the worker's medical status from September 26, 2003 and her current work capabilities.

On March 29, 2004, a WCB case management representative contacted the accident employer. It was noted that the worker had worked a few shifts in 2002 and 2003 but did not make any ongoing complaints regarding her right ankle ulceration.

A WCB medical advisor reviewed the case on March 30, 2004 at the request of primary adjudication. The medical advisor outlined his opinion that there was no cause and effect relationship between the worker's current lesion and the 2002 compensable accident.

In a decision dated April 5, 2004, primary adjudication advised the worker that an ongoing cause/effect relationship between her current right leg complaints and the 2002 compensable injury could not be supported. In rendering this decision, primary adjudication referred to a 2003 claim that had been filed by the worker with respect to a March 21, 2003 low back strain. Pertinent to this claim, the worker was examined by a WCB medical advisor on June 12, 2003 and there was no evidence of a persisting lesion or ulcer. Primary adjudication also noted that the worker was first treated in October 2003 by the consultant in infectious diseases. In the opinion of the WCB manager, the consultant was at a disadvantage to comment on the cause and effect relationship between the compensable injury of April 2002 and her current right leg complaints due to his late involvement in the case.

On October 7, 2004, a worker advisor, acting on behalf of the worker, wrote to Review Office and requested reconsideration of the case manager’s decision of April 5, 2004. The worker advisor contended that the reports from the consultant in infectious diseases supported an ongoing cause/effect relationship between the worker’s right leg condition and the 2002 compensable injury.

In a decision dated November 17, 2004, Review Office confirmed that there was no cause and effect relationship between the worker's right leg lesion/ulcer and the April 2002 compensable injury. Review Office based its decision on the following factors: the worker did not seek any type of medical treatment for the lesion she claimed had never healed between October 2002 and September 29, 2003; a review of the WCB examination notes found on the 2003 back claim did not reveal any type of open lesions as claimed by the worker; and concern with respect to how long the worker's pre-existing condition had been in existence. In November 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

On March 3, 2005, the Appeal Panel determined that additional information was required from the worker's treating physician, prior to discussing the case further. On May 20, 2005, all interested parties were provided with a copy of the report that was received from the treating physician dated May 16, 2005 and was asked to provide comment. On June 8, 2005, the Panel met further to consider the case and considered a written submission from the worker dated June 1, 2005.

Reasons

The panel was asked to determine whether there is a cause and effect relationship between the worker's current right leg lesions/ulcer and her compensable injury of April 14, 2002. After considering all the evidence, we did not find a cause and effect relationship between the lesions/ulcer and the compensable injury. Accordingly the appeal is denied.

Argument and Evidence at Hearing

The worker attended the hearing with a worker advisor who made a submission on her behalf. The worker answered questions posed by her representative and the panel. The employer was represented by its owner who attended to obtain information and did not make a submission on the issue.

The worker described an injury that occurred in September 1996. She then described a subsequent injury that occurred on April 14, 2002. She provided details of the treatment she received for this injury, which was an ulcer on the inside of her right leg above the ankle. She noted that this injury never completely healed and that she treated the ulcer by herself until it worsened in September 2003.

She advised that she saw the treating physician on a regular basis between September 2002 and the fall of 2003; however, the treating physician did not record these visits or his observations on her chart. She noted that during this period the treating physician prescribed medication for the pain associated with the ulcer. After the hearing, the worker provided the panel with a copy of a printout from a pharmacy listing the prescriptions and identifying which physician authorized the prescriptions.

The worker advised that she attended the WCB for an examination for a back injury in June 2003. She explained that the ulcer was covered by a bandage, she wore long pants and while on the examining table she was covered by a sheet. She did not tell the WCB medical advisor about the ulcer and he did not comment on the bandage.

With respect to the dressings that she used during this period, she advised that she had looked after her mother who had extra dressings that she used.

The worker's representative referred to a medical report on the file that supports a relationship between the worker's 2002 injury and her current right leg ulcer. She asked that the Panel find that a cause and effect relationship has been established.

Analysis

The critical issue in this case is whether the lesions/ulcer on the worker's right leg for which she sought medical treatment in September 2003, is causally related to the worker's compensable injury of April 14, 2002. The worker's position is that the lesions/ulcer that resulted from her April 14, 2002 injury did not completely heal and in fact worsened to the point that she sought medical attention in September 2003.

After a thorough review of the evidence, we are not able to agree with the worker's position. We found, on a balance of probabilities, that there is not a cause and effect relationship between the worker's current lesions/ulcer and the April 2002 injury. In reaching our decision we place significant weight on the following:

• the worker suffers from an underlying venous insufficiency. This condition can predispose her to the development of ulcers when there is a violation to skin integrity. The development of an ulcer can arise from both work and non-work causes.
  
  
• there was a significant gap in medical treatment between September 2002 and September 2003. The worker saw a specialist on August 27, 2002. At this time the specialist noted that the worker should be able to continue working. She attended a local hospital on September 23 and 30, 2002 and October 3 and 8, 2002 and had her dressing changed. Wound swabs were also taken for testing. The worker did not seek medical attention for the ulcer again until September 2, 2003 when she saw a family medicine practitioner.
  
  
• while the worker indicates that she saw the treating physician for the ulcer during the above period, the treating physician does not corroborate this. In support of her position the worker provided copies of a printout of prescriptions. This printout shows that the treating physician prescribed pain medication for the worker in September 2002. However, there is a 7 month hiatus before the ulcer-specific medications are again prescribed in late April 2003 and on subsequent dates. We do not find that this printout supports the worker's position of continuous treatment of the ulcer condition. We accept the treating physician's report dated May 16, 2005 that indicates that between August 29, 2002 and October 2003 he saw the worker on September 20 and September 24, 2002.
  
  
• the worker was examined by a WCB medical advisor in June 2003 regarding a different injury that involved her back. The examination notes do not mention that the worker has an ulcer or bandage on her lower right leg. The worker does not refer to the ulcer during the medical history taken by the doctor. The examination included tests of the lower extremities yet no mention is made of the ulcer or bandage. When later asked, the medical advisor states that the bandage if present would have been noted in his report. The absence of any reference to the ulcer by the worker, along with the other evidence suggests that the ulcer did not exist at the time of the examination.
  
  
• the worker's representative referred to the opinion of a specialist in support of the worker's claim. We accept the specialist's medical opinion regarding treatment of the worker's condition, but note the specialist did not see the worker until September 2003 and therefore, we give little weight to his comments that the worker's current ulcer began in April 2002.
  
  
• opinion of WCB medical advisor in a memo dated March 30, 2004 that based on medical information on file, he could not establish a cause and effect relationship.

The worker's appeal is declined.

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 7th day of July, 2005