The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on April 13, 2006, at the worker's request. The worker provided evidence as did the accident employer.

Following the hearing, the appeal panel directed the recording secretary of the Appeal Commission to write to the worker's orthopaedic surgeon to ask why he noted on his November 14, 2005 report that the worker was not capable of performing modified duties. A response from the orthopaedic surgeon was received at the Appeal Commission on May 12, 2006 and the report was forwarded to the interested parties for comment. On June 1, 2006, the Panel met to further discuss the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits beyond November 9, 2005 to December 13, 2005.

Decision

That the worker is entitled to full wage loss benefits beyond November 9, 2005 to December 13, 2005.

Decision: Unanimous

Background

Reasons

Claims History
On September 7, 2004, the worker injured his right ankle during the course of his employment as a handyman. His claim was accepted by the Workers Compensation Board (hereafter the "WCB") for a soft tissue injury of the right ankle.

The worker received treatment for his right ankle condition by his family physician and two orthopaedic specialists. On November 10, 2005, the WCB determined that he was fit to perform sedentary work duties starting November 10, 2005 and that he was not entitled to full wage loss benefits beyond November 9, 2005. Review Office maintained this decision on December 12, 2005. The worker disagreed with Review Office and claimed that his ankle condition had not changed for almost eight months and that he was still undergoing treatment for his injury. It is this decision that the worker is appealing.

Background:

On September 7, 2004, the worker injured his right ankle when he fell ten feet down off a ladder while removing scaffold pipes during the course of his employment.

X-rays of the right ankle dated September 7, 2004 revealed soft tissue swelling lateral to the ankle and no fracture was identified. Mortise was intact. A hospital emergency report indicated that the worker was given crutches, medication and a back slab and was referred to an orthopaedic specialist for treatment.

The orthopaedic specialist reported on September 15, 2004 that the worker gave a history of falling off a ladder on September 7, 2004. "He was pulling hard on some pipes while on the ladder and fell back. He reports falling down to uneven concrete, coming down heavily on the outside of his right foot and ankle. He was wearing high-cut steel-toed boots." Following examination and review of x-rays including a CT scan of the foot, the orthopaedic specialist's working diagnosis was "a significant soft tissue at the Chopart joint. There does not appear to be a subtalar instability or dislocation."

The worker was again seen by the orthopaedic specialist on September 21, 2004 and his back slab was removed. The swelling in his foot was reduced but was still partially abducted and inverted. The worker's foot was placed into a non-weight bearing case for six weeks. The specialist's working diagnosis at this visit was "lateral mid-and forefoot soft tissue injury, extensive. Restriction against all types of physical activity, other than sedentary with some limited walking."

In October 2004, the worker commenced treatment with a physiotherapist and continued to attend the orthopaedic specialist for follow-up treatment.

A January 11, 2005 progress report by the orthopaedic specialist noted that the worker remained disabled from his job but could do some light duties.

On March 8, 2005, x-rays of the right ankle and foot were compared to previous x-rays taken in September 2004. It was reported that ankle mortise was maintained and there was no significant bone or joint abnormality seen in the foot or the ankle.

In a follow-up report dated March 8, 2005, the orthopaedic specialist reported that the worker had tenderness over the lateral foot, the sinus tarsi and the distal tibula/fibula joint. He found no obvious cause for the worker's persistent pain and disability and was of the opinion that the worker was capable of performing restricted or modified duties.

The treating physician reported on April 4, 2005 that the worker had swelling and tenderness with pain on weight bearing and good range of motion. He stated that the worker was not fit for work.

A call-in examination was arranged by the WCB on April 20, 2005. The WCB orthopaedic consultant still found swelling, tenderness and limited range of motion in the worker's ankle. It was his intention to discuss the worker's case with the treating orthopaedic specialist and arrange for a second consultation by another orthopaedic specialist. An MRI was also arranged.

The MRI results dated July 15, 2005 revealed the following impression:

1. Bony contusion involving the medial malleolus.

2. Possible chondral injury with associated marrow edema involving the tibial plafond in the midline.

3. No evidence of avascular necrosis, talar fracture, or ligamentous injury.

The worker was assessed by the second orthopaedic specialist at a rehabilitation clinic on September 13, 2005. Examination findings revealed mild swelling in the area of both malleoli and tenderness at the anterior ankle joint and the anterior medial and lateral malleoli. There was decreased range of motion which caused the worker discomfort. The orthopaedic specialist stated, "I am somewhat perplexed as to the etiology of this man's pain. I suspect, at the time of his injury he had a severe ankle sprain, and certainly, an autonomic dysreflexia is possible. His pain seems to be slightly out of proportion as to the injury and what I am finding on clinical exam. However, I think that the pain is genuine, and I would like to investigate him further…"

A bone scan examination of the worker's feet and ankles was performed on September 30, 2005. There was increased activity involving the right ankle joint. There was a more focal area of increased activity seen at the medial aspect of the right ankle. The appearance was not typical of reflex sympathetic dystrophy or avascular necrosis. No other abnormalities were identified.

The employer contacted the WCB on October 12, 2005 to indicate that they had light duties - sorting small pieces of screws or walking and sweeping floors - available for the worker and wanted an outline of his physical restrictions.

After consulting with a medical advisor from the WCB's healthcare services department, restrictions were outlined for the worker to avoid squatting, prolonged standing, no lifting or carrying weights greater than 20 lbs., no ladder work and the ability to sit and take weight off his foot every 30 minutes for five minutes.

In a conversation with his case manager on November 9, 2005, the worker indicated that he was not capable of performing sedentary duties as he was in too much pain which disturbed his sleep and that he was scheduled to undergo an exploratory arthroscopy. The case manager advised the worker that since his condition had not worsened since April 2005, it was not unreasonable for him to return to sedentary duties while he awaited surgery.

On November 10, 2005, it was confirmed to the worker that the WCB found him capable of performing sedentary work duties with restrictions and that his employer was able to accommodate him with such duties effective November 10, 2005. As a result, full wage loss benefits would end on November 9, 2005.

The second orthopaedic surgeon did not agree. A November 3, 2005 report noted that the worker was exquisitely tender over his posterior tibial tendon compared to the last visit. He still had tenderness anteromedially on the ankle and he walked with an antalgic gait. It was recommended that the worker undergo a round of physiotherapy to assist with increasing range of motion and strengthening modalities. Regarding the intra-articular pathology, the specialist recommended a right ankle arthroscopy to visualize the ankle and to do intra-articular surgery as necessary. This surgery later took place on December 15, 2005.

The second orthopaedic surgeon's progress report dated November 14, 2005 noted that the worker was not capable of alternate or modified work.

The recording secretary at the Appeal Commission wrote to the orthopaedic surgeon on April 21, 2006 to ask for his reasons for indicating that the worker was not capable of alternate or modified work. A copy of this letter and the orthopaedic surgeon's response of April 28, 2006, were provided to both the worker and the employer for comment. None was provided.

The orthopaedic surgeon justified his finding that the worker was not capable of modified or alternate duties as follows:

"At that time, he was having significant pain in his right ankle as a result of his injury. He complained of constant pain, which did not seem to be better with weightbearing or with rest. Certainly, at that time, his pain seems to be out of proportion though it had not responded to previous nonoperative methods of treatment. At that time, I recommended another round of physiotherapy including range of motion exercises and strengthening modalities.

In addition, I had recommended right ankle arthroscopy to assess for intraarticular pathology and do intraarticular surgery as warranted.

Based on the amount of pain and dysfunction, Mr. [the worker] was experiencing, I did not feel that he would be a candidate to doing even modified duties. His surgery consisted of a right ankle arthroscopy and synovectomy. No other significant abnormalities were seen during the procedure. Postoperatively, I recommended to [the worker] that he continue on with his rehabilitation course, which would include low-impact activities and ongoing physiotherapy. I also recommended an anti-inflammatory.

I think at this time it would be reasonable to try Mr. [the worker] on modified duties because at this stage there is nothing more that I can offer him."

Worker's Position
The worker contends that he could not sit or stand for any period of time and that he was in severe pain and discomfort 24 hours a day. His evidence was that the light duty position offered by the employer would not allow him sufficient rest.

Employer's Position
The employer's position is that the worker was capable of modified duties as they were very light and had been cleared by the WCB medical advisor.

Analysis

To accept the worker's appeal we must find that his refusal to perform modified duties between November 10, 2005 and December 13, 2005 was reasonable in the circumstances.

Given the worker's continued symptoms during this period of time, and his orthopaedic surgeon's advice to him that he did not think that he would be capable of modified duties, we find that it was reasonable for the worker to refuse modified duties during that time.

The worker's appeal is therefore accepted.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of July, 2006