Decision #15/08 - Type: Workers Compensation
Preamble
A hearing was held on December 6, 2007 at the worker’s request. The worker attended the hearing. The employer did not attend or participate in the hearing.Issue
Whether or not the worker is entitled to wage loss benefits in relation to the April 2, 2006 compensable injury for periods beyond December 3, 2006.Decision
That the worker is entitled to wage loss benefits in relation to the April 2, 2006 compensable injury from December 4 through to December 11, 2006 inclusive.Decision: Unanimous
Background
The worker suffered a workplace injury to his left foot and ankle on April 2, 2006 when a pallet jack caught the back of his boot and rolled over his foot and twisted it. He was diagnosed with a non-displaced Lisfranc fracture with ligamentous injury and was treated with a weight-bearing cast boot. The WCB accepted the claim for compensation and benefits were paid to the worker commencing April 4, 2006.
On April 21, 2006, the worker advised his WCB case manager that he was receiving treatment for his back, shoulder and neck because everything was “out of whack” since hurting his foot and being on crutches. Medical reports received from a chiropractor and a general physician confirm that the worker was experiencing pain in the low back and shoulders from the use of crutches. On May 24, 2006, a WCB chiropractic consultant expressed the view that the worker’s shoulder, back and neck problems seemed to be related to his altered gait and the use of crutches.
A progress report dated September 19, 2006 indicated that the worker had pain in his low back radiating down the back of his leg to the knee with prolonged sitting or walking. On September 21, 2006, x-rays taken of the lumbar spine revealed degenerative disc changes and malalignment at the L4-L5 level.
On September 25, 2006, the treating orthopaedic specialist outlined his examination findings related to the left foot and felt that the worker was able to return to his previous line of work. The specialist further opined that the worker’s low back issues were mechanical in nature but noted that this was being sorted out by the worker’s general practitioner. No formal follow up appointments were arranged.
On September 26, 2006, the worker told his WCB case manager that he could not return to his regular duties because he had a sore back. He had pain with prolonged walking and could not sit or stand for long periods of time.
The worker was then examined by a WCB medical advisor on October 13, 2006. Following the examination, the WCB medical advisor felt the worker’s low back pain was a strain/mechanical in nature. He said the worker could return to work on a graduated basis starting at four hours per day while he undertook physiotherapy treatment for four weeks to increase his range of motion and strengthening. After four weeks of physiotherapy, it was felt that the worker could return to his regular work duties.
In a letter dated November 9, 2006, the worker was advised of the WCB medical advisor’s opinion as outlined on October 13, 2006 and was provided with details of his graduated return to work schedule. He was told that after four weeks of graduated hours, a return to full duties in an unrestricted fashion should be achievable. He was told that partial wage loss benefits would be paid until December 2, 2006 inclusive and final. The worker subsequently attempted his graduated return to work program but missed a number of days due to back discomfort.
On December 4, 2006, the treating physiotherapist advised the WCB case manager that the worker came in for his last appointment and had a lot of back spasm and could not stand up straight. She suggested that the worker take three weeks off work and to continue physiotherapy on a daily basis.
The worker missed shifts from work on December 4, 7, 8, 10 and 11, 2006 because of back discomfort.
The worker was examined on December 11, 2006 by the same WCB medical advisor who examined him on October 13, 2006. The WCB medical advisor stated that based on the worker’s abilities demonstrated at this examination, the worker could return to work in an unrestricted fashion. “It is probable that he will have some back discomfort, but in my opinion, at eight months post-injury, that back discomfort would be related completely to deconditioning rather than as a result of the effects of a compensable injury.” In his opinion, he felt that no further physiotherapy or interventions on the WCB’s behalf was necessary.
On January 11, 2007, the worker was advised of the WCB’s position that the graduated return to work plan noted in the letter of November 9, 2006 was appropriate and that further medical information did not support the need for any time loss beyond December 2, 2006.
In a memo dated February 19, 2007, a WCB case manager documented a conversation she had with the worker. The worker indicated that in December and January he was performing his regular duties and that the bending at work has continued to bother his back and that his left foot had also become sore. He said by the end of January his foot became sore and therefore he needed to go off work. He has been off work since February 4, 2007.
Medical information was received from the worker’s treating physician dated February 6, 2007 which noted that the worker was having pain with his low back and left foot. The physician noted that the worker had poor posture and his foot was tender. Exercises for the worker’s back were recommended along with a footwear assessment.
In a decision dated February 20, 2007, the worker was advised of the WCB’s position that his current back difficulties did not have a relationship to the claim. The worker was advised that the WCB would consider coverage for an insert of his work boot, however, it did not feel his time missed from work as of February 4, 2007 was related to his claim.
A report was received from an orthopaedic specialist dated April 27, 2007 which stated that he prescribed the worker an active ankle brace as he believed he had a mild degree of ankle instability. He felt the worker should try to resume his previous work activities using the brace.
On May 4, 2007, the worker indicated that he stretched his left foot which led to cramping of his toes and he had to stop work on May 2, 2007. In a May 24, 2007 report, the treating physician said he saw the worker on May 7 for complaints of cramping in his left foot. The examination revealed some weakness in the left great toe but the neurological assessment was normal. The physician was unsure what caused the cramping but suspected it may have something to do with the ankle brace. The worker was advised to take three days off work for the time that he had the pain in his feet but no other recommendations were made.
The worker was assessed by an orthopaedic specialist on June 12, 2007 regarding ongoing chronic left foot pain and pain in his right knee. The specialist did not have anything surgical to offer the worker in terms of his left foot and thought he should be back at work full time with no restrictions. He recommended an x-ray of the right knee and a follow-up evaluation.
In a decision dated July 24, 2007, the WCB advised the worker that he was not entitled to wage loss benefits beyond May 3, 2007 based on the medical evidence on file. The worker disagreed and appealed to the Review Office.
On August 16, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits. From its review of the file evidence, Review Office found no causal relationship between the worker’s current left foot/ankle and low back difficulties and the April 2, 2006 compensable injury. On August 24, 2007, the worker appealed the decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. Subsection 4(2) of the Act provides that where a worker is injured in a workplace accident, wage loss benefits are payable for the loss of earning capacity that results from the injury. Subsection 39(2) of the Act provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends.
Worker’s Position
The worker explained his position to the panel and answered questions posed by the panel.
The worker advised that he ran over his foot from behind with a motorized power jack. He said that his injury was more related to his tendons and ligaments than to an actual break. The worker explained that his back is sore and that he thinks he injured it in the workplace accident. Alternatively he thinks he may have injured his back from the extra weight of the cast and use of crutches after the accident.
The panel noted that in his notice of appeal, the worker indicated that he is seeking benefits for three distinct periods of time. The worker confirmed that he is seeking benefits for the period from December 4 to 11, 2006, from May 3 to 8, 2007 and from May 18, 2007 to the present time. He indicated that he is not seeking benefits for the time lost in February 2007 as this loss was not related to his work injury but to a labour relations matter.
Regarding the period commencing December 4, 2006, the worker advised that he was getting up from bed and found that he could not bend his back and was unable to work. He went to the physiotherapist on December 4, saw his own physician and on December 11, 2006 was seen by a WCB medical advisor. He advised that he returned to work the day after seeing the WCB medical advisor and worked his regular hours but, in his opinion, at a reduced rate.
The worker explained that he was having problems with his foot and back and could not work between May 3 and May 8, 2007. The worker then returned to work but was having problems with his ankle. He was terminated by the employer for missing three days of work due to his ankle. With respect to the period after May 18, 2007, the worker advised that he did not know whether he was entitled to wage loss benefits for this period but that he has not been able to work since this date due to his workplace injuries.
The worker advised that he is not currently receiving treatment for his injury.
The worker advised that he attended upgrading classes and hopes to eventually take an engineering course at a community college.
In answer to questions the worker advised of his current condition:
- his back is “just sore” and he might be able to work on the “stacker” with his sore back.
- his foot is a little sore in its socket and has worsened since seeing the WCB medical advisor in December 2006.
- his ankle is always in pain and he is uncertain whether he could work on the “stacker” with his ankle.
- his knee is about 95% and he could work on the “stacker” with his knee in this condition.
- the worker advised that his biggest impediment to working is his ankle because he cannot walk much or stand on it for too long. His back is the next biggest problem.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond December 3, 2006. For the appeal to be successful, the panel must find that the worker suffered a loss of earning capacity as a result of his workplace injury, or in other words was unable to work due to the workplace injury.
The panel did find that for the period from December 4 to December 11, 2006, the worker’s loss of earning capacity was caused by the workplace injury and accordingly he is entitled to benefits during this period. The panel was unable to find that the worker is entitled to wage loss benefits for other periods after December 3, 2006.
With respect to the period from December 4 to 11, 2006, the panel finds that the worker suffered an exacerbation of his workplace injury. The panel notes the worker received physiotherapy for his injury on December 4 which confirms the aggravation of his symptoms and then saw a WCB medical advisor on December 11, 2006. The panel relies upon the medical opinion of the WCB medical advisor who examined the worker on December 11, 2006 and concluded that the worker can return to work in an unrestricted fashion. He commented that “It is probable that he will have some back discomfort, but in my opinion, at eight months post injury, that back discomfort would be related completely to deconditioning rather than as a result of the effects of a compensable injury.”
With respect to wage loss benefits after December 11, 2006, the panel finds that the worker is not entitled to benefits after this date as the evidence does not support further time loss due to the injury. In reaching this decision, the panel relies upon the previous referenced December 11, 2006 examination by the WCB medical advisor. The panel also relies upon the opinion of the treating orthopedic surgeon and particularly his report of June 12, 2007 in which he noted that on examination the left foot looks good with no significant areas of tenderness. He found there is a good range of motion of the ankle, subtalar and transverse tarsal joints and that neurovascularly, the foot is intact. He commented that in terms of his left foot the worker should be back working full time with no restrictions. The panel is unable to relate the worker’s continuing time loss to the workplace injury.
The panel notes that the worker has not recently received medical treatment for his foot, ankle or back.
The appeal is allowed in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 23rd day of January, 2008