The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 20, 2005 at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the left ankle and right hip problems are related to the compensable injury of June 7, 1994; and

Whether or not a Medical Review Panel must be convened under subsection 67(4) of The Workers Compensation Act.

Decision

That the left ankle and right hip problems are not related to the compensable injury of June 7, 1994; and

That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

On June 22, 1994, the employer submitted an Employer's Report of Injury form which indicated that the worker and his partner were in the bucket of a scope tram and were re-hanging pipe on June 7, 1994. The driver who was at the controls of the scope tram accidentally knocked the bucket control lever into the float position and the bucket dumped instantly causing the worker and his co-worker to fall to the ground.

Medical information showed that the worker was treated at a local hospital on June 7, 1994. The diagnosis rendered was a soft tissue injury of the left foot. On June 8, 1994, x-rays of the left foot revealed "No convincing fracture recognized. ?? [questionable] microfractures proximal phalanx great toe."

The Workers Compensation Board (WCB) accepted the claim for compensation and medical aid expenses were paid. The worker did not miss any time from work as a result of his injury.

On October 8, 2004, the worker contacted the WCB to report that he was now experiencing difficulties with his right hip and back area which he related to his altered gait caused by his left foot injury. The worker indicated that he did not have any new accidents or incidents in the workplace or at home to account for his ongoing left foot problems. The worker indicated that he continued working for the accident employer until 1997 and then he began contract work. He stated that two other co-workers were aware of his complaints.

The WCB subsequently contacted the accident employer and the worker's treating physicians to gather information surrounding the worker's hip and back complaints.

In a decision dated January 17, 2005, the WCB determined that no responsibility would be accepted for the worker's left ankle or right hip problems. The decision noted that recent medical reports showed that the worker had been treated for right hip difficulties as early as March 2000 and there was mention of a total hip replacement in 2001. The reports also revealed a diagnosis of osteoarthritis involving both hips and a moderate degree of varus/valgus instability in the left ankle. It was concluded that the worker's present disabling condition involved a different body part than was injured at the time of his 1994 accident and that his current disability was the result of underlying osteoarthritis, the progression of which was not caused or enhanced by the 1994 workplace incident. The WCB felt there was no medical evidence to support that the worker injured his left ankle or his right hip on June 7, 1994.

On March 11, 2005, a worker advisor, acting on behalf of the worker, provided the WCB with new medical information for consideration which supported the position that the worker's injury of June 7, 1994 remained the cause of his present time loss from work. In the event that the new information did not alter the WCB's previous decision, a Medical Review Panel (MRP) was suggested based on a difference of medical opinion.

In a response dated March 16, 2005, the WCB case manager determined that there was no medical evidence to support that the worker sustained a left ankle and right hip injury on June 7, 1994. The case manager noted that the claim was accepted on the basis of a soft tissue injury to the left foot only and that the worker returned to work the following day to his regular duties. As he did not seek medical treatment for 8 to 10 years later, this supported the diagnosis of a soft tissue injury to the left foot.

In a further decision dated March 22, 2005, a WCB unit manager determined that an MRP would not be convened as it was felt that the March 7, 2005 medical report referred to by the worker advisor did not meet the criteria required under subsections 67(4) and 67(1) of The Workers Compensation Act (the Act). On March 31, 2005, the worker advisor appealed the WCB's decisions of March 16 and 22, 2005 to Review Office.

On April 28, 2005, Review Office confirmed that the worker's left ankle and right hip problems were not related to the June 7, 1994 compensable injury. In reaching this decision, Review Office noted that the worker's left foot was injured on June 7, 1994 and he did not lose any time from work as a result of his left foot injury. He did not attend another doctor for medical treatment until March 15, 2000 when he advised the physician that he had fallen six years prior and injured his right hip. The worker stated that he had worked after that with not much problem. Review Office noted that the worker took a voluntary severance package in 1997 without making any mention of foot or ankle problems to his employer.

With respect to the issue of convening an MRP, Review Office was of the opinion that the worker's physician had not provided a full statement of the facts to support his medical conclusion. Therefore, the full requirements of subsection 67(4) and 67(1) of the Act had not been met. On May 9, 2005, the worker advisor appealed Review Office's decisions and a hearing was arranged.

Reasons

The Panel was asked to consider two issues. The first issue was whether the worker's left ankle and right hip problems are related to the compensable injury of June 7, 1994. For the worker's appeal to succeed on this issue, the Panel must determine, on a balance of probabilities, that the evidence establishes a causal connection between the worker's medical problems and the workplace accident. The Panel was not able to make this determination.

The second issue before the Panel was whether an MRP must be convened under subsection 67(4) of the Act. For the appeal of this issue to succeed, the Panel must find that there is a difference of opinion between a WCB medical advisor and the worker's physician on a medical matter affecting compensation. The panel found that this requirement has not been met.

Argument and Evidence at the Hearing

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The employer was represented by a staff person who made a presentation. The worker answered questions posed by his representative, the employer's representative and the Panel.

The worker described the accident and his attendance at the local hospital for medical attention. He states that he advised the hospital staff that he hurt his left ankle but they would not x-ray the ankle as the doctor had not authorized the x-ray. When asked what type of discussion he had with the general practitioners who treated him after 1994 about the ankle he responded that he did not really recall. He advised that they did examine his ankle but did not make any comments about the ankle. He states that his ankle continued to bother him but that he "…didn't do too much about it." The worker provided information on the various jobs he has performed since the 1994 injury. He stated that his left ankle has interfered with his ability to work.

With respect to his right hip, the worker testified that his ankle injury is responsible for his right hip condition because of the way the ankle injury forces him to walk.

The worker's representative stated that the worker's left ankle was injured in the 1994 workplace accident. He noted the worker's evidence that he was not a complainer and that he worked in pain for many years. The worker's representative submitted that the worker's condition has worsened with the passage of time and is directly a result of the injury that he incurred in 1994.

With respect to the request for an MRP, the worker's representative drew the Panel's attention to the opinions of an occupational health physician and orthopaedic surgeon who suggested that the worker's right hip condition could be related to the worker's left ankle injury.

The employer's representative acknowledged that the worker was injured on June 7, 1994 but disputed that the worker injured his left ankle. She reviewed the evidence including the hospital report which she noted did not reference the ankle injury. With respect to the request for an MRP, the employer's representative noted that the medical report relied on by the worker is based on the assumption that there was a left ankle injury in 1994 which is not supported by the evidence.

Analysis

Issue 1:

The key question in this case is whether the worker injured his ankle in the June 7, 1994 accident. The Panel finds, on a balance of probabilities, that the evidence does not support a finding that he injured his left ankle in this accident.

The Panel notes the worker attended the local hospital after the accident and that an x-ray was taken of the worker's left foot. No x-ray was taken of the left ankle and no mention was made of the left ankle in the reports. The diagnosis provided at that time was soft tissue injury of left foot. The Panel considers the lack of reference to the ankle as significant.

The Panel notes that the worker missed no time from work for the June 7, 1994 accident. He returned to his regular duties and continued to work for the employer until 1997 at which time he left his position and received a severance package from the employer. This evidence is not consistent with the worker's claim that he injured his ankle and that it continued to bother him.

The employer advised that it has no record of there being any complaints from the worker regarding his ankle. This is also consistent with the Panel's conclusion that the worker did not injure his left ankle.

The Panel considered the worker's testimony that he had complained to his doctors over the years about his ankle but is unable to attach any significance to this evidence. The Panel found that the worker's testimony on his discussions with his physicians was vague. When asked "What kind of discussions do you recall having with them?" the worker replied "Well I don't really recall, but it was mentioned." The Panel notes there is no information to verify the worker's testimony and finds that the lack of information is more consistent with the conclusion that the left ankle was not injured.

The Panel finds that the worker did not seek medical attention for his ankle for many years after the injury. There is a reference to the worker's left ankle in a report dated January 31, 2002 from an orthopedic surgeon. The orthopaedic surgeon wrote that "The main reason he has come today is because of his left ankle." The orthopaedic surgeon had seen the worker on previous occasions regarding his right hip condition. With respect to the ankle injury the orthopaedic surgeon also comments that "He is very focused today on WCB covering him for this as apparently they have turned him down for coverage regarding his hip."

The Panel finds that the majority of the evidence does not support the worker's claim that he injured his ankle in the 1994 workplace accident.

At one point prior to the hearing, the worker suggested that he injured his hip in the June 1994 accident. He did not, however, advance this position at the hearing. The Panel finds that the evidence does not establish that the right hip was hurt in the June 1994 accident.

At the hearing the worker argued that the left ankle injury caused his right hip injury. As the Panel has found that the worker did not injure his ankle in the June 1994 accident, it further finds that the left ankle condition and right hip condition are not related to the June 1994 accident. The Panel also notes that the worker's right hip condition is described as osteoarthritis and that the worker's left hip has also been diagnosed with osteoarthritis. The bilateral nature of the worker's hip condition suggests a degenerative process is causing the worker's hip condition.

Issue 2:

The worker's representative argued that an MRP should be convened in accordance with subsection 67(4) of the Act. In support of this request the worker relied upon the medical report of the occupational health physician dated March 7, 2005. The physician comments that "…I believe that an argument can be made that foot and ankle problems resulting from this injury did result in an abnormal gait and as [orthopaedic surgeon] has already offered an opinion, would have contributed to the osteoarthritis problem affecting the hip." The worker's representative also referenced the opinion of the orthopaedic surgeon dated October 28, 2004.

The Panel notes that subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion." The Panel finds that the two medical reports referenced by the worker's representative do not satisfy the definition of an opinion as the medical reports are based upon the understanding (or statement of fact) that the ankle injury had occurred at the time of the accident, which is contrary to the Panel's finding of fact. As such, there is no common statement of facts from which the differing medical opinions arise. The Panel finds that the requirements of subsection 67(4) have not been met and that an MRP should not be convened.

The worker's appeal is declined on both issues.

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 October, 2005