The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on July 8, 1999, at the request of an advocate, acting on behalf of the employer. The Panel discussed this appeal on July 8, 1999.

Issue

Whether the employer is entitled to cost relief.

Decision

That the employer is not entitled to cost relief.

Background

On October 27, 1997, the claimant sustained a crush injury to his left ankle when his foot became caught between a roller and a bottom board. The worker attended a physician who reported a crush injury and noted an abrasion to the dorsum and lateral malleolus, pain in the ankle and foot, and bruising of the left foot. The attending physician recommended rest, crutches, a tensor bandage and medication. X-ray examination, on November 5, 1997, noted soft tissue swelling over the dorsum of the foot. No significant bone or joint abnormality was seen. The claim was accepted and wage loss benefits commenced October 28, 1997.

In a report from a physician, dated December 17, 1997, it was noted the claimant had an infection, the foot remained swollen, and the he was unable to weightbear. The claimant was referred to physiotherapy for active rehabilitation and weightbearing exercises. The physician reported that the claimant was at risk for the development of chronic pain syndrome.

The adjudicator discussed the claim with a WCB medical advisor on January 8, 1998. It was the opinion of the medical advisor that the claimant should be able to return to work, unless current medical information supported a continued absence. It was noted that there was risk for chronic pain syndrome. In a memo, dated December 9, 1997, the Workers Compensation Board (WCB) was notified that the claimant's employment had been terminated and that there was no job for him to return.

A physiotherapist's report was received at the WCB which suggested that the claimant had been absent from treatment on January 7th and 16th and also between January 20th to 30th.

Due to ongoing symptomotology, arrangements were made for the claimant to be assessed by a WCB medical advisor with the examination scheduled for March 18, 1998. However, on March 17, 1998, the claimant called the WCB to advise that he was unable to attend as he was in bed with the flu. The appointment was rescheduled for March 26, 1998, however, the worker did not attend.

The claimant was eventually examined by a WCB medical advisor on April 6, 1998. Based on his examination findings, the medical advisor recommended the worker discontinue physical therapy, and avoid weight bearing on the left lower extremity until further investigations could be undertaken (bone scan, CT scan and nerve conduction studies). The medical advisor reported differential diagnoses including fracture of the talus; peripheral nerve crush injury on the lateral sural nerve on the left; no evidence of a reflex sympathetic dystrophy. The claimant had evidence of pain-limited range of movement and strength, with a component of neuropathy apparent on the left side. The medical advisor expressed the opinion the claimant was not capable of performing any work at the time, irrespective of the fact that he had what appeared to be a serious non-compensable injury to his right knee. It was medical advisor's opinion that the claimant was limited from regular work activities respecting the left ankle. Recommendations were made for a review of the file following receipt of the medical investigation results. A course of non-steroidal anti-inflammatory medication was also recommended.

A CT scan appointment was scheduled for June 4, 1998. However, on June 3, 1998, the claimant contacted the WCB to advise that he was unable to attend the appointment. This was rescheduled for June 23, 1998, but the claimant did not attend. The claimant contacted the WCB on July 10, 1998, and advised that his car had broken down and this was the reason for his not attending on June 23, 1998. The claimant requested that another CT scan appointment be arranged. An appointment was scheduled for July 19, 1998. The results of the CT scan revealed no evidence of an acute fracture of the tar dome and no significant bone or joint abnormality.

The worker underwent nerve conduction studies on October 6, 1998. The neurologist advised that electroneurophysiologic examination (NCS) of the left medial and lateral plantar sensory and motor as well as the sural sensory nerve conductions and proximal conduction were normal.

On September 23, 1998, a WCB staff member contacted the bone scan department and was advised that the claimant failed to show up for his appointment which was scheduled for April 27, 1998. A second appointment was arranged for May 1, 1998, but again the claimant failed to appear. The appointment was rescheduled and took place on October 9, 1998. The bone scan report noted the absence of significant hyperemia which made a recent fracture highly unlikely. It was reported the focal activity in the calcaneal tuberosity may represent an Achilles tendonitis or injury. The rather diffuse changes in the mid dorsal region on the left may represent a post-traumatic arthropathy but an actual fracture site was considered unlikely.

On November 3, 1998, a WCB medical advisor reviewed the file including the results of the various medical investigations. Based on this review, he offered the opinion that the claimant had recovered from the effects of his compensable injury. On November 26, 1998, an adjudicator advised the claimant that it had been determined he had recovered from the effects of the compensable injury and benefits would be issued to December 3, 1998, inclusive and final.

By letter dated December 8, 1998, an advocate representing the employer, requested the WCB to grant cost relief on this claim. The request was based on the existence of a severe secondary injury to the opposite knee which would provide a more plausible explanation for the extended time loss. The advocate advanced the argument that the only real diagnosis offered for the compensable injury was that of a bruise/contusion, yet the claimant received WCB benefits for nearly 14 months and still claimed to be disabled.

The advocate pointed out that the claimant's doctor, in a report dated May 27, 1998, advised the meniscus tear was not a condition caused by the compensable injury but it prolonged recovery and contributed to the time loss. The advocate argued that the circumstances of this claim met the criteria as set out in the Workers Compensation Act with respect to the granting of cost relief.

At the request of an adjudicator, the file was reviewed by a WCB medical advisor on January 19, 1999. The medical advisor noted the claimant's injury involved the left ankle and that the worker had sustained a right knee injury after twisting on a planted foot. Given the nerve conduction study, bone scan and CT scan results suggested no pathology, the medical advisor was of the opinion that the right knee injury did not delay recovery as there did not appear to be a significant injury to recover from.

By way of written argument, dated February 25, 1999, the employer's advocate requested reconsideration by the Review Office. On March 11, 1999, the file was discussed with an orthopaedic consultant to the Review Office, who provided the opinion that there was no correlating or clear evidence to suggest the claimant had an Achilles tendonitis. He noted the uptake reported on the bone scan was at the tend-Achilles insertion on the calcaneous and not along the tendon itself, making the diagnosis conjectural. The orthopaedic consultant expressed his opinion that it was possible the diffuse changes in the mid tarsal region on the left may represent a post-traumatic arthropathy related to the compensable injury. The consultant also stated that it could be due to disuse related to the initial trauma and prolonged period of non-weight bearing subsequent to the injury, both of which might contribute to the conjectural diagnosis. This may explain some of the worker's complaints of pain. In the consultant's opinion, there was no evidence of any pre-existing condition which may have contributed to the worker's disability period.

On March 26, 1999, the Review Office advised there was no entitlement to cost relief on this claim. The Review Office considered Board Policy 31.05.10 Cost Relief/Cost Transfers, and specifically referred to Section 3 of the policy which provided details of circumstances under which cost relief can be awarded. Review Office was of the opinion that none of the criteria were met and as such, there was no basis to provide cost relief.

The employer's advocate completed an application to appeal requesting consideration by an Appeal Panel with respect to the issue of the employer's entitlement to cost relief. The Appeal Panel convened on July 8, 1999, to conduct a non-oral file review.

Reasons

In accordance with the provisions of The Workers Compensation Act (the Act), the Appeal Commission is bound by the policies of the Board of Directors. The WCB's policy dealing with the entitlement to cost relief [31.05.10] was clearly and accurately set forth in the Review Office's decision. The employer's advocate advanced the argument that the claimant's "personal characteristics of 'abnormal illness behaviour' and chronic pain pre-existed this workplace injury" and as such the employer would then be entitled to cost relief. There was absolutely no evidence recorded on file or presented to this Panel with respect to there being any pre-existing condition. Therefore, we find that the employer is not entitled to cost relief.

In addition, we find this appeal to be frivolous. The employer's advocate, a former employee of the WCB, knew or ought to have known the intent of the WCB's policy as well as the provisions of the Act. Pursuant to section 60.8(7) of the Act, we order the payment of costs of $50.00 to the WCB. Inasmuch as the employer may have relied upon the advice and expertise of the advocate, we feel that perhaps the costs should be borne by the advocate.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Niekamp, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of August, 1999