The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 25, 2005, at the request of a worker advisor, acting on the worker's behalf.

Issue

Whether or not the worker's left hip difficulties are related to the August 25, 2003 compensable injury; and

Whether or not the worker is entitled to wage loss benefits after December 28, 2004.

Decision

That the worker's left hip difficulties are not related to the August 25, 2003 compensable injury; and

That the worker is not entitled to wage loss benefits after December 28, 2004.

Decision: Unanimous

Background

On August 25, 2003, the worker was involved in a work related accident whereby he incurred a posterior fracture dislocation of his left ankle. On August 27, 2003, the worker underwent an open reduction and internal fixation. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing August 26, 2003.

In a hospital discharge report dated August 29, 2003, the treating physician commented that there were no postoperative complications and x-rays showed good position of the ankle fragments. The worker was discharged home on crutches on August 29, 2003. The physician stated that the worker would be in non-weight bearing casts for six weeks and weight bearing casts for another six weeks. The worker's period of disability was estimated at a minimum of three months.

On January 15, 2004, the worker underwent further surgery to remove the screw from his left medial malleolus.

Subsequent file information revealed that the worker underwent physiotherapy treatments and a six week reconditioning program for his left ankle condition. A Functional Capacity Evaluation (FCE) was also carried out. In May 2004, the worker advised the WCB that he was experiencing pain in his left hip for approximately three weeks.

On June 14, 2004, x-rays of the lumbosacral spine revealed marked degenerative disc space narrowing at the L5-S1 level. X-rays of the hip joints were described as being well maintained bilaterally with minor degenerative spurs involving the medial aspect of the femoral heads. Further x-rays of the pelvis and both hips carried out on August 18, 2004 revealed osteoarthritis involving both hips.

In a report to the family physician dated August 18, 2004, an orthopaedic specialist stated that the worker reported complaints of left hip pain which started in November as he was fully weight bearing after his cast was removed. During the past few months, the worker felt increased pain and difficulty straightening his left hip and did not remember having any problems with his hip until after the accident. The orthopaedic specialist advised the worker that his x-rays showed osteoarthritic changes at both hips, more pronounced on the left side. The specialist stated that the worker may need to consider total hip arthroplasty. As to whether the worker's condition was aggravated by the August 25, 2003 injury, the specialist stated it was quite possible since the impact of the accident was strong enough to cause a fracture of his ankle in the same limb.

In a memo typed on November 24, 2004, the WCB's orthopaedic consultant provided his opinion that the worker's hip condition is not work related and that the worker should be capable of returning to work.

In a decision dated December 16, 2004, the worker was advised that the WCB was concluding its responsibility for his claim as of December 28, 2004. Following review of the orthopaedic specialist's report of August 18, 2004 and the opinion expressed by the WCB's orthopaedic consultant, Rehabilitation & Compensation Services concluded that the worker was able to resume his pre-accident duties with a restriction involving the frequent use of ladders. The worker was also advised that it was the opinion of Rehabilitation & Compensation Services that his left hip problems and functional impairment were likely related to degenerative changes and that this pre-existing condition did not result from his work accident of August 25, 2003. Also, there was no evidence to support that the worker's arthritic changes in his left hip were caused or enhanced by the accident.

On January 5, 2005, the worker appealed the above decision to Review Office stating that he was not able to resume his pre-accident work duties with a stiff and sore left leg. He also stated that he never had "a pre-existing condition" before his August 25, 2003 accident.

In a February 2, 2005 report, a physician noted that the worker was seen on December 1, 2004 complaining of painful hips mostly on the right. The worker claimed that this "deep discomfort" started following an accident in which he fractured his ankle. According to the physician, the worker mentioned no discomfort of his left ankle at this visit.

On February 10, 2005, a WCB case management representative documented that she called the worker's physiotherapist who stated that the worker mentioned left hip symptoms during the initial assessment on April 26, 2004. The worker was lacking mobility in his left ankle. The worker made ongoing mention of his left hip problem and decreased mobility. The therapist said the worker's left hip problem seemed to worsen and this could have been due to his gait being off. Later the same day, the case management representative discussed the case with the WCB's orthopaedic consultant. In a memo dated February 10, 2005, the case management representative recorded the consultant's opinion that the worker's abnormal walking pattern can cause some difficulties but it would not cause either an aggravation or enhancement of the pre-existing osteoarthritis in his hips. The consultant also was of the opinion that the worker's immobility from casting would not have aggravated or enhanced the worker's left hip problem and that his onset of osteoarthritis in the hips was not related to the compensable left ankle injury.

On February 10, 2005, Review Office determined that the worker's left hip problem was not related to the compensable injury and that the worker was not entitled to wage loss benefits after December 28, 2004. Review Office considered the physical requirements of the worker's job duties as an electrician as well as information on file regarding the worker's reconditioning program, the opinion expressed by his treating orthopaedic specialist and the opinion expressed by the WCB orthopaedic consultant. Based on this evidence, Review Office determined that the worker was capable of performing his pre-accident job duties, that there was no longer any loss of earning capacity in relation to his compensable ankle injury and that he was not entitled to wage loss benefits after December 28, 2004.

With respect to the worker's left hip problem, Review Office considered the opinion expressed by the worker's orthopaedic specialist and that of the WCB's orthopaedic consultant along with other evidence on the file. Based on this review, Review Office concluded that the worker's left hip problem was not related to the compensable injury and that he was not entitled to compensation benefits in this regard. On March 11, 2005, a worker advisor, acting on the worker's behalf, appealed Review Office's decision and non-oral file review was arranged.

Reasons

As noted at the beginning of these reasons, the Panel was asked to consider two issues:

1. whether the worker's left hip difficulties are related to the August 25, 2003 compensable injury; and,
2. whether the worker is entitled to wage loss benefits after December 28, 2004.

Worker's Position

The worker was represented by a worker advisor who made a written submission on the worker's behalf. The worker also made a written submission, provided a character reference and provided a letter from his family physician. The worker advised that he did not have problems with his hips prior to his workplace injury. His family physician confirmed that he had not treated the worker for osteoarthritis until after the ankle fracture.

The worker advisor referred to the opinions of two physicians who support the worker's position that his left hip condition is related to the worker's workplace accident. The worker advisor expressed the opinion that the worker is still suffering from the effects of his accident and remains restricted in his employment.

In a letter dated April 5, 2005 the employer advised that it would not be participating in the appeal. In this letter the employer informed the Appeal Commission that the worker declined an offer to return to work in February 2005. The employer also advised that the worker attributed problems with his hip to the extended hours he worked digging out his basement.

Analysis

With respect to the first issue, the diagnosis made at the time of the workplace accident was a posterior fracture dislocation of his left ankle. Several months after the workplace accident the worker complained of pain in his hips. The Panel must determine if the worker's left hip injury is related to the workplace accident. We could not find a relationship between the workplace accident and the worker's left hip condition.

In arriving at this decision we place significant weight on the following:

- while there is conflicting evidence regarding when the hip problem was first noted, it is clear that it was not noted at the time of the accident or for some months after the accident. We expect that had the left hip been injured at the time of the workplace accident, the symptoms would likely have arisen at or nearer to the time of the workplace accident.

-diagnostic tests indicate that the worker has osteoarthritis in both hips. An x-ray report dated June 14, 2004 notes "The hip joints are well maintained bilaterally with minor degenerative spurs noted involving the medial aspect of the femoral heads" An x-ray report dated August 18, 2004 notes "Osteoarthritis involving both hips". An x-ray report dated March 8, 2005 notes "Moderate bilateral hip OA (osteoarthritis)." We consider that this condition is more likely a pre-existing degenerative condition than the result of the workplace accident of August 2003.

-opinion of treating orthopaedic specialist that hip condition is due to osteoarthritis. This physician also offered the view that it is "quite possible" the hip condition may have been aggravated by the workplace accident; however, we do not consider this to be probable given the delay in the onset of symptoms.

- opinion of the WCB orthopaedic consultant set out in a memo typed on November 24, 2004 that:

"1. The diagnosis of osteoarthritis of both hip joints is not a work-related condition.

As there are radiographic signs of this condition, it can be assumed to be pre-existing the workplace injury of August 2003. Surprisingly, the claimant did not mention these symptoms until April 2004, 8 months after the left ankle injury. There is no evidence that the workplace injury caused an aggravation of the condition of osteoarthritis or (sic) the hip joints."

- the worker was examined by a physician on December 1, 2004 and a report provided to the WCB dated February 2, 2005 which notes "…normal extension of the left hip with normal range of movement." The report also notes that the worker complained of painful hips, mostly of the right hip.

- the further opinion of the WCB orthopaedic consultant recorded in a memo by a WCB staff person on February 10, 2005 that the worker's abnormal walking pattern would not cause either an aggravation or enhancement of the worker's pre-existing osteoarthritis in his hips. This physician also commented that the worker's immobility from casting would not have aggravated or enhanced his left hip problem and that the onset of osteoarthritis is not related to the left ankle injury.

We agree with the opinion of the WCB orthopaedic consultant and find that the worker's left hip problem is not related to his workplace accident of August 25, 2004.

The second issue was whether the worker is entitled to wage loss benefits after December 28, 2004. For the worker to be eligible for wage loss benefits we must find that the worker's loss of earning capacity was due to his workplace injury. In other words, that the worker could not work because of his workplace injury. The only injury that we can attribute to the workplace accident is the fractured ankle. Having considered all the evidence, we find, on a balance of probabilities, that the worker's ankle injury is not preventing him from returning to work and accordingly that he is not entitled to wage loss benefits after December 28, 2004.

In arriving at the above conclusion we placed significant weight upon the following evidence:

-report of reconditioning program completed in June 2004 which reports that the worker had some improvement in his ankle range and has decreased pain in the ankle. The report also notes that the worker is limited in function due to his left hip.

-August 18, 2004 report from treating orthopedic specialist which notes slightly restricted motion in ankle with some generalized swelling but that the worker could toe-walk and heel-walk without too much difficulty.

- opinion of WCB orthopaedic consultant typed on November 24, 2004 which notes that at 15 months from the injury, the worker should be considered capable of returning to work. The orthopaedic consultant reviewed the job description on file dated November 13, 2003 and commented that with respect to the ankle injury, the worker is capable of most of the physical activities with perhaps some restrictions on frequent use of ladders.

-a report from a physician dated February 2, 2005 noting that the worker had a normal gait and that "[the worker] mentioned no discomfort of his left ankle at this visit."

We note the worker was seen by an orthopaedic surgeon on March 8, 2005. The orthopaedic surgeon examined the worker and provided the opinion that the worker's symptoms are related to his hips. We consider this opinion to be consistent with our finding that the worker's loss of earning capacity after December 28, 2004 is not due to his ankle injury.

The appeal is dismissed.

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 8th day of June, 2005