The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 20, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being August 29, 2005.

Issue

Whether or not wage loss benefits are payable beyond July 29, 2003;

Whether or not the worker has been overpaid benefits in the amount of $1,521.70;

Whether or not the WCB should accept responsibility for any proposed treatment or for ongoing medication.

Decision

That wage loss benefits are payable to August 21, 2003;

That the worker has not been overpaid benefits; and

That the WCB should not accept responsibility for any proposed treatment or for ongoing medications.

Decision: Unanimous

Background

On November 28, 2002, the worker sustained a work related injury to her right lower leg. The worker described her accident as follows:

"One of my co-workers [name] came to get a box from my area. I was inspecting lottery ticket (sic), she accidentally hit the chair with her body and the chair tipped over and I fell to the ground, my right lower leg went under the chair. There was an adjusting device on the chair and it hit my leg. I got a very bad bruise and it was very painful. I got up off the floor, got back into my chair and kept working."

A Doctor's First Report dated December 16, 2002, indicated a diagnosis of a contused/bruised right lower leg. It was also reported that the worker had a pre-existing condition, namely varicose veins of both legs. The physician outlined restrictions to avoid long standing/walking and stair climbing.

An x-ray of the right tibia and fibula dated December 10, 2002 revealed no fracture or dislocation.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid.

The worker was assessed by a WCB physiotherapy consultant on January 29, 2003. The consultant stated that the worker was recovering from an extensive hematoma and that physiotherapy treatments should be decreased to three times per week.

On February 5, 2003, a different physician noted that the worker's right leg was painful and had some swelling. He felt that the worker was not capable of alternate or modified duties.

On February 7, 2003, a WCB case manager discussed the claim with the WCB's physiotherapy consultant and a WCB medical advisor. Both consultants agreed that further time loss was not indicated and that pain was to be expected as the hematoma resolved.

A WCB medical advisor reviewed the file on February 19, 2003. It was again determined that there were no objective findings to support further time loss from work.

In a letter dated February 20, 2003, the WCB informed the worker of its decision that she had sufficiently recovered from her soft tissue injury and could return to her pre-accident duties. In his letter he indicated, "the original diagnosis was a contusion/bruise of the right lower leg and x-rays at the time were negative. It should also be noted that you suffer from varicose veins, which according to your doctor may be affecting your recovery." Based on this decision, wage loss benefits were to be paid to February 27, 2003 inclusive and final.

In March 2003, further reports were received from a sports medicine specialist indicating that the worker still had difficulty with walking and moving and was not capable of modified duties. On March 19, 2003, a Senior WCB Medical Advisor provided a medical opinion to file indicating there was clinical objective medical evidence on file to support the worker's contention of an inability to work. On March 20, 2003, the WCB reinstated the worker's benefits based on this new information.

In a letter to the family physician dated April 29, 2003, a plastic surgeon reported his clinical examination findings as "…several nodules present under the skin which is probably a combination of scar tissue, organized hematoma [a collection of the blood in the tissue which is encapsulated], or maybe fat necrosis [fat dying]". Treatment recommendations included local massage and ultrasound to break down some of the tissue.

In a June 30, 2003 report to the WCB, a vascular surgeon suggested that "this area may represent some scar tissue, organized hematoma, or fat necrosis and may represent some residual injury to the tissue or nerves in this area which has been [inciting] ongoing discomfort in the area." The vascular surgeon noted that he was "not sure again what component is being contributed by the previous tissue injury versus the varicose vein incompetence." However, he thought that the worker's ongoing problems were related to her original injury. He stated that the prognosis for recovery to her pre-accident status was unknown.

On July 9, 2003, the sports medicine specialist stated, "Dr. [vascular surgeon] says damage to nerves." The sports medicine specialist further reported no improvement in the worker's symptoms and that she was losing control of balance and falling. There was discoloration and nodular changes at the calf. In a follow-up report dated July 30, 2003, the specialist reported worsening pain symptoms and that the heat of summer caused the worker's pain to increase.

On July 30 and 31, 2003, the WCB arranged video surveillance of the worker's activities.

In a memo dated August 12, 2003, a WCB medical advisor said he discussed the file with a WCB case manager. He stated that it was difficult to pinpoint an exact diagnosis but the differential diagnosis would include scar tissue formation, organized hematoma, fat necrosis and residual tissue or nerve damage. He felt the pre-existing condition may have some contribution to the worker's ongoing problem. He said it was difficult to confirm this since the ongoing diagnosis was still unclear. He believed that the worker was not totally disabled and could perform sedentary duties with the avoidance of prolonged walking and standing for six months.

On August 21, 2003, the employer advised the WCB that a full time sedentary desk position was available for the worker starting September 2, 2003. On the same day, the worker advised her case manager that she had to elevate her foot all day because of swelling and that she went for short walks at night but that was it. The worker expressed the view that she was not capable of performing modified duties.

In a memo dated August 25, 2003, a WCB medical advisor noted that he had reviewed the video surveillance and felt that the worker was able to walk without difficulty and there were no signs of imbalance or falling as reported by the worker. Based on this finding, the medical advisor believed that the worker had recovered sufficiently with respect to her functional capabilities and that she could return to her regular duties.

A progress report received from the attending physician dated August 26, 2003, indicated that the worker needed to elevate her leg otherwise, she had increased swelling and pain.

In a letter dated September 3, 2003, the WCB advised the worker that wage loss benefits would be paid to July 29, 2003 inclusive and final. It was the WCB's decision that the worker likely sustained a severe bruise as a result of her workplace injury and that the weight of medical evidence including history of injury, diagnosis, expected symptom duration, subsequent investigations, including the videotape evidence, current clinical findings and the time that had passed suggested that she had recovered from the effects of her compensable injury.

The worker was advised that she had been overpaid on her claim in the amount of $1,521.70 as the WCB had been unaware of her functional abilities. She was told that she was responsible for repaying the full amount of the overpayment to the WCB.

On December 1, 2003, the WCB again wrote to the worker indicating that a WCB medical advisor had reviewed the new medical information that was placed on her file along with the surveillance videotape film. It was the medical advisor's opinion that the weight of evidence indicated that she was fully capable of performing her full time regular duties.

On June 1, 2004, a worker advisor wrote to Review Office and submitted medical information from a physician at the Pain and Injury Clinic dated May 26, 2004. The worker advisor argued that the worker had not recovered from her injury and that the modified duties she was to return to were not sedentary. The worker advisor indicated that the worker was seeking wage loss benefits beyond July 29, 2003, which negated any suggested overpayment. The worker was also seeking coverage for medication and for the treatment suggested by the physician at the Pain and Injury Clinic.

In the extensive notes, which accompanied his letter, the worker advisor also indicated that "since the birth of worker's daughter 14 years prior, worker has been experiencing pain in her varicose veins. On the day of the accident, she hit the same area where the varicose veins are present."

In decision dated July 29, 2004, Review Office denied the appeal. In making its decision, Review Office noted that "on December 6, 2002, the worker attended her physician who noted swelling and a blue discoloration on the medial aspect of the right lower leg. Varicose veins were noted to be evident on the back of the leg and in fact, evidence on file indicates the worker was already contemplating varicose vein surgery. A diagnosis was provided of a contused or bruised right lower leg."

Review Office agreed with the two separate WCB medical advisors who reviewed the videotape evidence and felt that the worker exhibited no functional impairment and was capable of returning to her regular duties. Review Office agreed with the WCB case manager that the worker was deemed fit as of July 30, 2003, which was the first day of the surveillance videotape evidence. Any benefits issued beyond that date were in an overpayment scenario.

Review Office felt it was not clear as to what effect the original blow to the calf on November 28, 2002, would be playing beyond July 29, 2003. "Unless further resolution regarding diagnosis and treatment becomes evident on file, Review Office does not feel the WCB should be responsible for any ongoing pain treatment program."

Review Office concluded that the worker was not totally disabled from her employment and that there was no clinical evidence of functional impairment, which would support her contention of total disability. On August 9, 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

The oral hearing took place on September 20, 2004.

Following the hearing and after discussion of the case, the Appeal Panel requested additional information from the specialist at the Pain and Injury Clinic regarding the worker's right lower leg condition. This information was later received and was forwarded to the interested parties for comment.

On October 7, 2004, a bone scan was conducted.

On October 20, a rheumatologist examined the worker. In his October 25, 2004 report, he summarized the laboratory investigations to date. He noted that a February 28, 2003 x-ray of the worker's right tibia and fibula revealed no material abnormalities. He also observed that a right leg ultrasound ordered on February 28, 2003 suggested no evidence of thrombosis [blood clots] above the right calf. A repeat right leg ultrasound in June 2003 again provided no evidence of acute or remote thrombosis. However, there were clinically obvious varicosities identified. An October 7, 2004 bone scan also noted the suggestion of varices in the medial right calf. Calcification in a hematoma or an arteriovenous malformation (AVM) could not be excluded. Finally, blood work from September 24, 2004 showed a high sedimentation rate and a positive rheumatoid factor.

In the rheumatologist's view, "the etiology of these abnormalities [was] unclear at the present time" and there was still a concern that this could be a work related injury secondary to the incident. "It would be very unusual for somebody to complain of symptoms this long after a soft tissue injury but there are still significant abnormal physical findings as well as abnormal blood work . . . "

On November 4, 2004, the Panel met to discuss the case. It considered the rheumatologist's report, which stated that he was arranging for additional blood work and for the worker to undergo an MRI examination of her lower right extremity. The file was sent to the WCB health care branch to expedite the MRI examination.

The MRI took place on December 10, 2004 and in a report dated January 3, 2005, it was suggested "suspect subcutaneous small vessel vascular malformation. No involvement of muscle."

On February 14, 2005, the rheumatologist provided his analysis of the results of the MRI and blood work. He noted that "the MRI that I ordered of her right lower extremity revealed varicosities consistent with small vessel [vascular] malformation. Previous ultrasound studies revealed no DVT [deep vein thrombosis] . . . Right leg venous incompetence study . . . revealed a generous right saphenous vein with gross reflex from the saphenofemoral junction. The reflexing vein communicated with clinical obvious varicosities. The blood work that I obtained from October 20, 2004 just revealed of positive rheumatoid factor of 80 IU/ml. This is a non-specific finding."

In his view, the worker had "erythema consistent with superficial thromphlebitis secondary to her varicosities below the right knee on the right. The etiology of her venous incompetence involving the right lower extremity is idiopathic. I can find no rheumatological condition."

The rheumatologist no longer suspected that this was a work related problem.

On February 21, 2005, all interested parties were provided with a copy of the MRI results dated December 10, 2004 and a follow-up report from the treating rheumatologist. They were asked to provide written comments with respect to this additional information.

On February 25, 2005, the vascular surgeon suggested that the worker historically "had varicose veins in both legs but did not have any pain. The pain only occurred after the injury." He agreed that the June 2003 ultrasound demonstrated gross reflux but in his view, this did not explain the local discomfort. In terms of the painful area, he again pointed to scar tissue, hematoma, fat necrosis or nerve damage secondary to the tear injury. However, he noted that he had not reviewed the MRI.

In a telephone conversation on February 25, 2005, the worker advised the Appeal Commission that she had seen her physician and that he was going to send the Appeal Panel a report outlining his opinion that the worker's current right lower leg condition was related to her compensable injury. On March 2, 2005, the Appeal Panel decided to await receipt of the report prior to discussing the case further.

On March 9, 2005, all interested parties were provided with copies of reports that were obtained from the worker's treating physicians and were asked to provide comment. A submission authored by the worker advisor dated March 7, 2005 along with correspondence by the worker dated March 11, 2005 was considered by the Panel.

At a meeting held on March 21, 2005, the Panel determined that additional information was required from the worker's treating vascular surgeon prior to discussing the case further. In particular, the vascular surgeon was asked to review the MRI and to provide a diagnosis of the etiology of the conditions found in the worker's right leg. He was also asked to comment on the similarities and differences between his findings and those of the rheumatologist.

On April 5, 2005, the vascular surgeon noted that the MRI identified "subcutaneous small vessel vascular malformation" with no involvement of muscle with varicosities. However, he went to argue that the worker "had not had any history of varicose veins or leg pain in this area" prior to the injury. He suggested the AVM and varicose veins could have been initiated by the trauma.

On April 7, 2005, the report from the vascular surgeon was forwarded to the interested parties for comment.

On April 27, 2005, the panel met to further discuss the case, asked that an independent specialist attend the Appeal Commission, and speak with the Panel members about the etiologies of lower leg vascular difficulties and its possible relationship to trauma.

On May 10, 2005, the worker advised the Appeal Commission that she had just been examined by a neurologist and was scheduled to undergo nerve conduction studies (NCS) on June 6, 2005.

At another meeting held on May 16, 2005, the Appeal Panel decided to request a copy of the neurologist's report and NCS results prior to discussing the case further.

The neurological report dated May 9, 2005 noted that the worker had developed varicosities in the painful region with a possible small vessel AVM. In his view, there was "no objective evidence for a significant neuropathic injury..."

On June 15, 2005, the panel met with an independent specialist to discuss varicose vein conditions in the lower leg. In the discussion that followed, the surgeon noted that varicose veins were a common condition but that there was no scientific certainty about their cause. He did note that they are more common in women and that "the more pregnancies they had, the more they're prone to it." In his practice, about twenty-five percent were bilateral.

The independent specialist went on to observe that most small vessel vascular malformations were congenital but that they could be acquired usually via a "stab wound." "You get a stab in the vicinity where the artery and the vein are close by then you get an AV fistula which is an AV malformation . . . " In terms of the possibility of a blunt trauma causing an AVM, he indicated "No, never seen it". Later on, he reiterated that he had "never seen one, unless there's a bone injury."

On July 26, 2005, all interested parties were provided with copies of the neurological report and NCS results along with a copy of the transcript, which documented the meeting that took place between the Appeal Panel members and the independent specialist. All parties were asked to provide comments concerning the new information. On August 29, 2005, the Panel met to discuss the case and to consider a final submission from the worker advisor dated August 4, 2005.

Reasons

Question 1: Are wage loss benefits payable beyond July 29, 2003?

The challenge for the panel has been to assess the worker's physical concerns and to determine, on a balance of probabilities, whether they can be related to her compensable injury for the time period in question.

In making its decision, the panel is faced with two competing streams of medical opinion relating to the critical period between June and August 2003.

In June of 2003, the vascular surgeon was expressing his view that the worker's ongoing problems were related to her original injury. His opinion on this point was confirmed as recently as February and April 2005. Similarly, in his reports of July 2003, the sports medicine specialist reiterated the worker's concerns with her pain. His view as most recently stated on March 3, 2005 was that the worker is "extremely limited in her abilities" and the pain she was experiencing in her right leg is "still consistent with the area that was struck by the chair and pinned."

By contrast, on August 12, 2003, the WCB medical advisor was expressing the view that while it was difficult to pinpoint an exact diagnosis for the worker's symptoms, her pre-existing condition might be contributing to her ongoing problems. As of August 25, 2003, he was of the view that the worker had recovered sufficiently from her compensable injuries to return to her regular duties. His view has been supported by a number of other opinions including the MRI report of December 2004 and the letter of the rheumatologist dated February 14, 2005.

The investigation of the worker's injury suggests no real change in her complaints or her medical status between June through August 2003 and today. Her concerns in terms of pain, inflammation and discomfort have persisted. Given the continuity in the worker's complaints and medical status since July/August, 2003, the medical record since that time offers further insight into the two competing viewpoints expressed.

Based upon our review of the medical record as it existed as of August, 2003 as well as of the medical record since that time, the panel finds on a balance of probabilities that the worker had recovered from her compensable injury by August 21, 2003.

In making this determination, the panel has placed particular emphasis on the following findings, which it makes on a balance of probabilities:

a) there were pre-existing varicose veins

Prior to the injury of November 28, 2002, the worker was suffering from varicose veins in both legs. The finding of this bi-lateral condition was confirmed in the Doctor's First Report of December 16, 2002. This point was also confirmed in the June 1, 2004 submission of the worker advisor to Review Office where he noted that the worker had been experiencing pain in her varicose veins since the birth of her daughter well over a decade before the injury of November 2002.

b) the injury did not result in a broken bone

This was confirmed by the December 10, 2002 x-ray of the right tibia and fibula which noted there was not a fracture or dislocation.

c) there was no acute or remote thrombosis

Ultrasounds dated February 28, 2003 and June 5, 2003 provided no evidence of acute or remote thrombosis. Both the rheumatologist in his letter of October 2004 and the vascular surgeon in his letter of February 2005 confirm this observation.

d) there was no rheumatological condition

The rheumatologist was initially open to the possibility of a rheumatological condition based upon blood work performed on September 24, 2004. However, on February 14, 2005, following his review of blood work performed on October 20, 2004, he concluded, "I can find no rheumatological condition."

e) There was no significant neuropathic injury

The vascular surgeon's June 30, 2003 report adverted to the possibility that there might be some residual injury to the nerves, which was inciting ongoing discomfort in the area. The sports medicine specialist echoed this concern on July 9, 2003. However, the May 9, 2005 neurological report found "no objective evidence for a significant neuropathic injury."

e) there was no residual injury to the tissue

The vascular surgeon's June 30, 2003 report also suggested that there might be some residual injury to the tissue with either scar tissue, hematoma or fat necrosis. He reiterated this view on February 25, 2005.

However, this conclusion was reached prior to his review of the December 2004 MRI. The MRI was conducted to assess the swelling and bruising over the past two years and found "suspect subcutaneous small vessel vascular malformation." Significantly, it also found "no involvement of muscle."

In his report of April 5, 2005, the vascular surgeon noted that the MRI had found no involvement of muscles. He did not persist with the suggestion of tissue damage.

f) the source of the worker's discomfort appears to be related to her varicosities

Pre-existing varicosities or varicose veins had been identified in the Doctor's First Report of December 2002. Existing varicosities were confirmed in the June 2003 ultrasound. On August 12, 2003, the WCB medical advisor suggested the worker's pre-existing condition (varicose veins) might be contributing to her ongoing problems. The weight to be given to this suggestion was overwhelmingly reinforced by the December 2004 MRI.

As the rheumatologist observed on February 14, 2005, "the MRI I ordered of her right lower extremity revealed varicosities consistent with small vessel [vascular] malformation." By the time of his April 5, 2005 letter, the vascular surgeon was also focusing upon the AVM and varicose veins as the source of the worker's discomfort.

g) the AVM and varicose veins were not initiated by the worker's trauma

In his letter of April 5, 2005, the vascular surgeon suggested that the AVM and varicose veins could have been initiated by the trauma. He noted the ongoing pain has been an issue since that time. He also suggested that the worker had not had any history of varicose veins or leg pain in the area prior to her November 2002 injury.

The panel does not accept the suggestion that the AVM and varicose veins were initiated by the trauma.

The panel takes issue both with the conclusion drawn by the vascular surgeon and the factual basis for his findings. It notes that the worker had a well documented history of varicose vein pain, which dated to the birth of her daughter well over a decade prior to her November 2002 injury. The panel also observes that the independent specialist has suggested venous incompetence in one location may spill over or "cascade" into others and deteriorate over time. As the specialist confirmed, "yes, you get worse, yes. You get worse over time." Finally, the panel relies upon the opinion of the independent specialist that while varicose veins can be acquired via a "stab wound." it was extremely unlikely that a blunt trauma would cause such an injury.

Taking into account a history of varicose veins and pain which predated the injury by over a decade, the possibility that varicosities can worsen over time and the conclusion that a blunt trauma would be extremely unlikely to cause an AVM, the panel finds, on a balance of probabilities, that the AVM and varicose veins were not initiated by the trauma.

Conclusion

There is no doubt that the worker suffered a painful injury on November 22, 2002 as a result of her fall and the blunt impact of the chair's adjusting device. The panel notes that both the worker and the Doctor's First Report described her injury as a contused/ badly bruised lower right leg.

Given the nature of the injury, its effects could not be expected to endure indefinitely. As the rheumatologist observed "it would be very unusual for somebody to complain of symptoms this long after a soft tissue injury."

But when, based upon a balance of probabilities, can it be said that the worker had recovered from the effect of her compensable injury?

By August 12, 2003, the WCB medical advisor was noting that while it was difficult to pinpoint an exact diagnosis for the worker's symptoms, her pre-existing condition might be contributing to her ongoing problems. As of August 25, 2003, he was of the view that the worker had recovered sufficiently from her compensable injuries to return to her regular duties. His conclusions on this point, have, in the panel's view, been confirmed by subsequent medical information.

Given this reality, the panel finds, on a balance of probabilities, that the worker had recovered from her soft tissue issue by August 21, 2003. The panel relates the enduring complaints of the worker to the subcutaneous small vessel vascular malformation which it finds, on a balance of probabilities was not caused by the injury of November 22, 2003.

In making this determination, the panel has considered the record in its entirety. It places particular emphasis on the existence of varicose veins in the worker's legs prior to her injury, current clinical findings, the nature of the injury suffered, and the expected symptom duration of a soft tissue injury.

The appeal is granted. Wage Loss benefits are payable to August 21, 2003.

Question 2: Whether or not the worker has been overpaid benefits in the amount of $1,521.70?

In light of the reasons set out under Question 1, the overpayment has been eliminated. The appeal is allowed.

Question 3: Whether or not the WCB should accept responsibility for any proposed treatment or for ongoing medication?

Given the Panel's finding that the worker had recovered from the effects of her compensable injury by August 21, 2003, the appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of September, 2005