The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 22, 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 worker is capable of returning to his pre-accident duties; and

Whether or not the worker is entitled to wage loss benefits beyond April 26, 2004.

Decision

That the worker is capable of returning to his pre-accident duties; and

That the worker is not entitled to wage loss benefits beyond April 26, 2004.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (WCB) for a right ankle injury that occurred on December 10, 2002, during the course of his employment as a backhoe operator. Initial medical information on file diagnosed the worker with a sprained ankle. The claim for compensation was accepted by the WCB and benefits were paid to the worker commencing December 11, 2002.

Subsequent file information revealed that the worker was examined and treated by an orthopaedic specialist for ongoing complaints with respect to his right ankle and foot which gradually progressed to his right calf.

In a report dated June 24, 2003, the orthopaedic specialist commented on the results of a number of diagnostic tests which included CT scans, bone scans and x-rays of the right ankle. He concluded that the worker had significant soft tissue and bone trauma to the distal end of the right tibia and ankle which was causing him ongoing symptoms and signs about the right ankle. Right ankle x-rays taken on June 24, 2003 probably represented post-traumatic degenerative changes of the right ankle, according to the specialist.

On August 20, 2003, a WCB medical advisor examined the worker and the following comments were made:

"On the basis of today's incomplete and inconsistent examination, I am not able to make a current specific diagnosis. Based on the mechanism of injury and initial emergency room findings of lateral malleolar swelling and warmth with a normal x-ray, it is probable that he initially suffered a lateral ankle sprain. …the bone scan findings suggest a bony injury, which was not confirmed by CT scan. Given the improving bone scan abnormalities, and today's limited examination, I will arrange for another bone scan to see if there is resolution of the findings. …At the present time, Mr. [the worker] is not totally disabled. Because of the need to manipulate pedals with his right foot, he is incapable of operating a backhoe, but could perform other duties with the following restrictions: no significant walking or standing, and little use of right foot/ankle. Mr. [the worker] is also suffering from significant symptoms of pre-existing depression, which is currently being treated with psychiatric medication and perhaps psychotherapy. At this point I am unable to say whether his depression has been aggravated by the compensable injury. He is pain focused, as evidenced by the relative lack of reliable objective right ankle signs, in the presence of significant subjective pain and apparent functional limitation…".

The worker underwent a bone scan of both ankles on September 25, 2003 and an MRI examination of the right ankle on December 8, 2003.

On January 9, 2004, a WCB orthopaedic specialist responded to several questions posed by primary adjudication regarding the recent MRI findings. The specialist thought that the worker may have had an undisplaced fracture and/or RSD [reflex sympathetic dystrophy]. He stated that a stress fracture was less likely. He noted that the worker was pain focused and that there were likely other psychological factors. The specialist reported that "smoking" was delaying the worker's recovery and that he was overweight. He noted that the initial injury appeared to be due to the worker's pre-existing condition.

In a report dated January 26, 2004, the orthopaedic specialist reported that the worker walked with a considerable limp on the right leg. There was diffuse pain and tenderness over the right Achilles tendon and calf and about the right ankle, heel and foot. Metatarsalgia was also present.

In a memo dated January 28, 2004, a WCB medical advisor was of the opinion that psychological factors were likely responsible for the worker's delayed recovery. He noted that MRI findings were non-specific and that there was no evidence of an anatomical pain generator.

A WCB medical advisor and a WCB psychological advisor interviewed the worker at the WCB's Pain Management Unit (PMU) on February 24, 2004. The worker was also interviewed by an independent psychiatrist on February 26, 2004 and his report to the WCB is dated March 1, 2004.

In a report dated April 5, 2004, the orthopaedic specialist reported that the worker's right ankle and foot movements were slightly restricted and slightly painful. There was diffuse tenderness about the ankle and there was slight atrophy of the muscles of the right thigh and right calf.

In a memo dated April 15, 2004, a WCB orthopaedic consultant noted that there were no reports on file indicating the worker's physical activities or capabilities. No diagnosis of an injury to the foot and ankle had ever been confirmed. He did not think that the MRI findings were of any significance or that they suggested a specific diagnosis. "If he had a soft tissue injury on Dec. 10/02, it was not detected on the MRI & should have healed by now. I see no reason why he could not return to his pre-accident work."

A surveillance of the worker's activities took place between February 24 and March 20, 2004. Based on his review of the videotape evidence, a WCB medical advisor stated on April 19, 2004, that the worker demonstrated no limp when walking and that the worker regularly ascended/descended a wall of snow in front of his house, even jumping up and landing on his right foot/ankle, without any pain behavior. The medical advisor noticed the presence of an antalgic gait when seen at the WCB on February 24, 2004. It was his opinion that the worker was capable of working full duties.

On April 19, 2004, the WCB case manager determined that the worker was now fit to return to his regular work duties based on the weight of evidence, which included the initial diagnosis, current clinical findings, examination results and video surveillance evidence. In accordance with subsection 39(2) of The Workers Compensation Act (the Act), wage loss benefits would be paid to April 26, 2004 inclusive and final.

In a May 5, 2004 report, the treating orthopaedic specialist indicated that the worker complained of ongoing swelling, soreness and pain in his right ankle. The specialist noted that according to the worker, the usual work of a backhoe operator and heavy equipment operator required the use of the right foot to apply about 40 lbs. pressure on the pedals of the vehicle. The specialist stated that he gave the worker a note stating 'Fit for work with limitations: unable to press pedal with right foot on heavy equipment vehicles.'

In an appeal submission dated December 1, 2004, a worker advisor, acting on behalf of the worker, outlined the position that the worker had not recovered and was unable to return to his pre-accident work duties due to his ankle injury. In support of his position, the worker advisor made reference to the comments made by the treating orthopaedic specialist in his report of May 5, 2004 and to the results of an MRI examination that occurred on September 23, 2004. The worker advisor also commented that the worker took issue with the conclusions reached surrounding the videotape surveillance. The worker indicated that he had been advised to be as active as possible and this was what he tried to do, despite the pain that was present and that greater pain would follow the activity.

Prior to considering the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant. His response to Review Office is dated February 2, 2005. Review Office also obtained the results of a worksite assessment carried out by a WCB rehabilitation specialist with respect to the duties of an equipment operator.

In a decision dated February 24, 2005, Review Office determined that the worker had not recovered from the effects of his right ankle injury, but he was capable of returning to his pre-accident duties and therefore not entitled to wage loss benefits after April 26, 2004.

With respect to the first decision, Review Office placed weight on the medical evidence provided by the treating orthopaedic specialist, MRI and nuclear scan results and the opinion expressed by the WCB orthopaedic consultant on February 2, 2005. Based on the work site assessment results, Review Office concluded that the worker's job duties as a backhoe operator would not involve a significant amount of force or repetition of the worker's right ankle/foot/leg and therefore he was capable of performing his pre-accident duties. Accordingly, he was not entitled to wage loss benefits after April 26, 2004. On June 10, 2005, the worker advisor appealed Review Office's decision and a standard oral hearing was arranged.

Reasons

After having thoroughly reviewed and considered all of the evidence, we find that the worker is, on a balance of probabilities, capable of returning to his pre-accident duties. In arriving at this conclusion, we attached considerable weight to the following body of evidence:

• August 20, 2003 - WCB medical advisor's examination notes - "At the present time, Mr. [the worker] is not totally disabled. Because of the need to manipulate pedals with his right foot, he is incapable of operating a backhoe, but could perform other duties with the following restrictions: no significant walking or standing, and little use of right foot/ankle."
• September 3, 2003 - treating orthopaedic surgeon's medical report - "The right ankle movements are moderately restricted and there is diffuse sensitivity to pressure about the ankle and mid foot. Right foot movements are moderately restricted. X-rays were taken of the right ankle and foot. There are no fractures."
• November 3, 2003 - treating orthopaedic surgeon's medical report - "Right ankle movements are moderately restricted… . Right foot movements are moderate (sic) restricted and slightly painful."
• December 15, 2003 - treating orthopaedic surgeon's medical report - "Right ankle movements are slightly restricted and slightly painful. Right foot movements are slightly painful and there is pain at the extremes of foot movements."
• December 30, 2003 - treating orthopaedic surgeon's medical report - "Movements of the right ankle and foot are slightly restricted and painful."
• January 12, 2004 - treating orthopaedic surgeon's medical report - "Movements of the right ankle and foot are slightly restricted and are painful."
• February 9, 2004 - treating orthopaedic surgeon's medical report - "Movements of the right ankle and foot are slightly restricted and painful. I gave him a prescription to have physiotherapy for the next six weeks to increase his ambulation tolerance and muscle strength."
• February 23, 2004 - treating orthopaedic surgeon's medical report - "Movements of the right ankle and foot are slightly restricted and painful."
• February 24 to 27, 2004 and March 18 and 19, 2004 WCB's videotape surveillance of the worker. We note that the video shows the worker walking with good mobility over uneven terrain without a limp.
• April 5, 2004 - treating orthopaedic surgeon's medical report - "Movements of the right ankle are foot are slightly restricted and slightly painful."
• April 15, 2004 - WCB orthopaedic consultant's memorandum to file - "File reviewed. Apparently the foot & ankle symptoms persist. No specific objective abnormalities have been reported. A slight [decrease] in ROM [range of motion] & atrophy have been reported but there are no measurements. Except for his limp there are no reports on file of the claimant's physical activities or capabilities. No diagnosis of an injury to the foot & ankle has ever been confirmed. I do not think the findings reported on the MRI are of any significance. I do not think they suggest a specific diagnosis. If he had a soft tissue injury on Dec 10/02, it was not detected on the MRI & should have healed by now. I see no reason why he could not return to his pre-accident work."
• April 19, 2004 - memorandum to file by WCB medical advisor who examined the worker in August of 2003 - "reviewed surveillance videos at request of CM [case manager]. Over several days of tape, he demonstrated no limp when walking. He regularly ascends/descends a hill of snow in front of house, even jumping up and landing on his ® [right] foot/ankle, without any pain behaviour. I note the presence of an antalgic gait when seen at the WCB Feb 24/04. In my opinion, Mr. [the worker] is capable of working full duties."
• February 18, 2005 - worksite and job duties assessment by WCB rehabilitation specialist. Careful analysis revealed that the worker's job duties would not involve significant force or repetition with respect to the worker's right ankle/foot. We agree with this analysis.

Given our determination of the first issue, it necessarily follows that the worker is not entitled to wage loss benefits beyond April 26, 2004. Accordingly, the worker'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 27th day of October, 2005