Decision #44/99 - Type: Workers Compensation


An Appeal Panel hearing was held on January 13, 1999, following receipt of an appeal from a union representative, acting on behalf of the claimant, appealing the decision of the Workers Compensation Board's (WCB) Review Office to discontinue his benefits as of March 23, 1997. The Panel discussed this appeal on January 13, 1999.


Whether the claimant is entitled to payment of wage loss benefits or any other benefits or services beyond March 23, 1997, with respect to the compensable injury of September 27, 1995.


That the claimant is entitled to payment of wage loss benefits or any other benefits or services beyond March 23, 1997, with respect to the compensable injury of September 27, 1995.


While employed as a nursing assistant on September 27, 1995, the claimant fractured his greater left toe when an ice bucket fell on his left foot. The claim was accepted as a WCB responsibility and benefits commenced the day after the accident.

On January 7, 1996, primary adjudication discontinued the claimant's benefits as it was decided from medical documentation that there was no discoloration or any evidence of swelling of the left big toe. The only information found on file was related to continued pain complaints. A union representative appealed this decision to the Review Office and then to an Appeal Panel hearing on June 6, 1996. Following discussion of the case on three separate occasions, the Panel requested and received additional information prior to rendering its January 16, 1997 decision. Based on the comments expressed by an independent radiologist which stated in part, "Reviewing the progression of films, findings are most consistent with a healing fracture rather than a normal variant.", the Appeal Panel determined that the claimant was entitled to further benefits beyond January 8, 1996.

The claimant's benefits were subsequently reinstated and paid up to March 24, 1997, the end of a graduated return to work program. At this time, primary adjudication was of the view that the claimant was capable of returning to full regular duties.

File documentation showed that the claimant complained of discomfort in his foot throughout the graduated re-entry program. On March 19, 1997, the attending physician advised the claimant to limit his working hours to 4 hours daily or he would lose the gains that he had made to date. March 24, 1997, was the last shift worked by the claimant.

On April 18, 1997, an orthopaedic surgeon stated in part the following: "X-rays show some lipping and osteophyte formation at the metatarsal phalangeal joint with some subchondral sclerosis. Clinically and radiologically the diagnosis is of osteoarthritis of the metatarsal phalangeal joint of the hallus (hallus rigidus). The fracture of the distal phalanx has fully healed in a good position. Sensation is normal in the toe."

A WCB medical advisor reviewed the case on April 24, 1997. The medical advisor was of the opinion that the claimant's ongoing problems were related to his pre-existing condition and not to the compensable injury.

On May 7, 1997, a sports medicine physician reported that the claimant had a hyperextension of his left great toe since the accident. According to the sports medicine physician, this resulted in improper foot mechanics and an inability to wear certain footwear.

In a letter dated May 29, 1997, primary adjudication confirmed there would be no change to its earlier decision of March 26, 1997. It was the opinion of primary adjudication there was no ongoing cause and effect relationship between the claimant's current complaints and the previous accident. Primary adjudication noted that the claimant's ongoing complaints were related to a pre-existing osteoarthritis of the metatarsal phalangeal joint of the left great toe.

On June 6, 1997, a union representative appealed the decision to discontinue benefits as of March 24, 1997. On June 27, 1997, a report was submitted from an orthopaedic specialist dated June 25, 1997.

Prior to considering the case, a WCB orthopaedic consultant was asked by the Review Office to review and provide additional comments with respect to the claimant's left foot x-rays.

On August 1, 1997, the Review Office determined that no responsibility would be accepted for the claimant's current left great toe condition and that he was not entitled to wage loss benefits beyond March 23, 1997. The Review Office noted comments made by the orthopaedic specialist who stated that the claimant's current problem was an osteoarthritis of the metatarsal phalangeal joint and not to the inter-phalangeal joint (IP joint) that was originally injured in the accident. The recommended treatment, including surgery and the apparent requirement for total disability were therefore not related to the original accident that had no effect on the metatarsal phalangeal joint. This particular joint had shown some arthritic changes since the first x-rays that were taken in September of 1995 immediately following the accident. The consultant stated these changes were minor in nature and was of the opinion that it would not warrant an arthrodesis of the joint as proposed by the consulting orthopaedic specialist. Since the current difficulties were not considered related to the original accident, the Review Office concluded that no responsibility could be accepted for the worker's ongoing complaints or his claim for time loss from work.

Following the Review Office's decision of August 1, 1997, the union representative requested a Medical Review Panel (MRP) in accordance with Section 67(4) of the Workers Compensation Act (the Act). On September 26, 1997, the convening of a MRP was granted by the Review Office. A MRP then took place on January 26, 1998.

On March 6, 1998, the Review Office took into consideration the MRP report and was satisfied that the claimant had recovered from the effects of the compensable accident. The claimant was therefore not entitled to the payment of further wage loss benefits nor was he entitled to any further benefit or services related to the compensable injury.

On April 17, 1998, the union representative appealed the Review Office's decision and an oral hearing was held on June 11, 1998.

Following the hearing and discussion of the case, the majority of the Appeal Panel requested clarification from the MRP which was previously held on January 26, 1998, in accordance with WCB policy 42.10.70. On September 24, 1998, the MRP responded to certain questions posed by the Appeal Panel and the MRP's responses were forwarded to the interested parties for comment.

In a letter dated November 25, 1998, the Registrar of the Appeal Commission wrote to the claimant and his union representative to advise that the Appeal Panel's Presiding Officer had resigned and that the two remaining members were unable to reach a unanimous decision regarding the issue under appeal. As a result, the case would have to be considered by a new Panel. The claimant and union representative were then given the option for either a hearing or a non-oral file review.

On November 26, 1998, the union representative requested an oral hearing. An oral hearing was then arranged and held on January 13, 1999, by a Panel of three new commissioners who had not been involved in the prior hearing.


Throughout the course of the claimant's injury it appears that there has been some disagreement amongst the medical personnel involved with the claimant as to the exact cause of his ongoing difficulties with his left big toe. The differing medical opinions are distinctly set out in the past history section of the MRP's decision rendered on January 26, 1998, and clarified on September 24, 1998.

With the greatest respect to the WCB's Review Office's decision of March 6, 1998, we cannot agree with the adjudicator's interpretation of the MRP's clinical findings.

The MRP and all other medical information on file is clear that the original injury that the claimant suffered was a fracture of the left toe ("a 7 mm. chip fracture at the lateral aspect of the base of the distal phalanx with no displacement" MRP report January 26, 1998 question #1). It is further clear that the claimant had recovered from the direct effect of this injury by December 4, 1995 (MRP report January 26, 1998 question #7).

However, what is also clear and what appears to have been misunderstood by the Review Office is that the claimant, during the course of his recovery from the direct injury, developed learned reflex condition which the MRP panel has noted to be the most probable cause of his current condition (MRP report January 26, 1998 question #9.) This condition has subsisted to such a degree that the claimant continued at the date of the MRP to be disabled and unable to return to work. Further, there was no medical evidence to suggest that the claimant had a pre-existing condition affecting the left big toe prior to the accident of September 27, 1995 (MRP report January 26, 1998 question #2).

In fact, the MRP confirmed that previous references to a diagnosis of osteoarthritis in the interphalangeal or the metatarsal phalangeal joint were unfounded. There was no evidence for this condition in any of the x-rays, the bone scan or on the physical examination by the Panellists (MRP clarification response September 24, 1998 question #1(b)).

The MRP also confirmed a diagnosis of diabetes mellitus which was a condition well known to the claimant prior to his injury and had been present for some time. His condition was described as "a mild diabetic neuropathy which was affecting the claimant's current disability by approximately 10%". (MRP clarification September 24, 1998 question #2).

More importantly, it is noted that the contribution of the learned reflex condition to the claimant's current disability was estimated by the MRP to be 90% (MRP clarification September 24, 1998 question #2).

In the words of the MRP, "as [the claimant's] fracture healed, for unknown reasons, [he] did not return the toe to a normal position as would be expected" (MRP clarification September 24, 1998 question #3.) This opinion combined with the earlier opinion of the MRP that the learned reflex condition "would be related to his injuries as a response to the painful toe" (MRP decision January 26, 1998 question #6) has led this Panel to the decision that the claimant is continuing to, on a balance of probabilities, suffer from a condition related to his original compensable injury. He is therefore, entitled to payment of wage loss benefits or any other benefits or services available beyond March 23, 1997 with respect to the compensable injury of September 27, 1995.

It would be the recommendation of this Panel that vocational rehabilitation benefits be reinstated to the claimant . It would also be recommended that the Board work with the employer in attempting to return the claimant to an alternate position at work within his restrictions.

Panel Members

K. Dunlop, Q.C., Presiding Officer
H. Middlestead, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of March, 1999