Decision #02/09 - Type: Workers Compensation
Preamble
The worker is presently appealing decisions that were reached by the Review Office of the Workers Compensation Board (“WCB”) regarding two of his compensation claims. The first claim deals with a left foot and back injury that occurred in 1988. The other claim occurred in 1999 when the worker fell from a tractor and injured his head, upper back, hip and lower right side. A hearing was held on December 2, 2008 at the worker’s request to consider the matter.Issue
1988 Claim
Whether or not responsibility should be accepted for home renovations; and
Whether or not responsibility should be accepted for a walker.
1999 Claim
Whether or not the worker is entitled to wage loss benefits and medical treatment; and
Whether or not the worker is entitled to a permanent partial impairment award.
Decision
1988 Claim
That responsibility should not be accepted for home renovations; and
That responsibility should not be accepted for a walker.
1999 Claim
That the worker is not entitled to wage loss benefits and medical treatment; and
That the worker is not entitled to a permanent partial impairment award.
Decision: Unanimous
Background
July 12, 1988 left foot and back claim:
On July 12, 1988 the worker reported that he injured his low back when he lost his balance and fell between a loader and a wheel. A few hours later, the worker said he fell through a hole on a cat walk and re-injured his low back as well as his left leg and foot.
On October 17, 1988, the treating physician diagnosed the worker with a left foot contusion. No specific treatment was prescribed and it was indicated that the worker was not disabled from his regular work due to his foot injury. On April 20, 1989, the physician reported that the worker continued to seek treatment from him at weekly intervals complaining of ongoing problems with his low back. He stated that the worker suffered from degenerative changes in his low back as a result of his previous injury and found himself in a situation of being unemployable.
On December 1, 1989, it was determined by the WCB’s Review Committee that the worker was not entitled to time loss benefits effective August 1, 1988 to April 4, 1989 and commencing September 21, 1989. This decision was upheld by the Appeal Commission on January 26, 1990 under Order No. 12/90A. It stated that the worker’s degenerative condition in his spine was not related to either of his compensable accidents.
On June 11, 1994, the WCB received a copy of an x-ray report regarding the worker’s left foot dated October 17, 1988. It revealed an ununited fracture at the proximal end of the second metatarsal with a flaring of the distal fracture fragment consistent with periosteal new bone formation. There was no definite bony bridging seen and no other abnormalities were noted. On February 23, 2006, the WCB accepted responsibility for the purchase of orthotics for the worker’s footwear.
On September 22, 2006, a WCB medical advisor made the determination that the worker’s July 12, 1988 injury had not resulted in a permanent impairment of left foot mobility and therefore there was no rateable impairment.
On July 17, 2007, the worker advised that he was unable to walk well and requested the WCB provide him with a lift for the steps of his home to assist him with getting in and out of his house. The worker related his difficulties to his left foot injury.
The WCB wrote to a sports medicine specialist to obtain additional information concerning the worker’s left foot. In a report dated July 20, 2007, the specialist stated the following:
“…the last time I assessed him with respect to this was back on November 28, 2006, when he specifically complained of a lot of pain in both ankles actually. At that time, an x-ray of the left ankle was done which showed moderately severe osteoarthritis of the left ankle…I have not assessed his left ankle or foot since that time.
I did not advise any specific modifications to his home with respect to the left foot or ankle at the time I last assessed it.”
In a decision dated August 2, 2007, the worker was advised that the WCB was unable to provide him with any assistance to replace his home steps as the sports medicine specialist did not indicate that he would need this type of assistance.
On September 25, 2007, the worker’s treating physician prescribed the worker a walker with a seat. The diagnosis rendered was osteoarthritis and pes planus. On September 26, 2007, the same physician indicated that the worker was having significant trouble getting in and out of his home due to his existing stairs.
On October 23, 2007, the worker asked the WCB to provide him with a wheeled walker to help him walk long distances as his right foot was very hard to step on.
The worker was examined by a WCB impairment awards medical advisor regarding his left foot injury on November 21, 2007. With regard to his current symptoms, the worker noted that he had some soreness but could not identify any specific left foot problems. He stated he had some pain through his left foot but in general his problems were with both lower extremities including his knees, ankles and feet. The worker reported that walking aggravated his symptoms. Following the assessment, the WCB impairment awards medical advisor commented that the worker sustained fractures of his left metatarsals, digits 2 and 3. Based on the examination, the recommended PPI award was 1.0% for the worker’s left foot injury.
On December 12, 2007, the sports medicine specialist reported that he saw the worker on December 7, 2007 mainly for his ankle/foot pain, right worse than left. He stated that x-rays revealed severe osteoarthritis of both ankles and osteoarthritis of the tarsal and metatarsal joints, left worse than right. He noted that x-rays also revealed a non-union of a fracture at the base of the second metatarsal left foot. The specialist recommended a walker as the worker had trouble walking and also because he had arthritis in both knees and hips, the right being worse than the left.
In a decision dated January 2, 2008, the worker was advised that the WCB was unable to accept responsibility for his home renovations or for a walker as the adjudicator was unable to show a direct cause and effect relationship between the need for these items and any of the worker’s claims. As a rationale for his decision, the adjudicator noted that based on medical information, the worker’s main problems were due to his ankles.
In a January 22, 2008 report, the family physician reported that the worker had undergone x-rays on December 18, 2007 and there were degenerative changes in both ankles as well as healed fractures in the metatarsals of both feet which correlated to the injury. He noted that osteoarthritis and diffuse degenerative changes would be hastened by any injury and were also exacerbated by previous fractures. He therefore asked that the WCB assist the worker with replacing his steps around his house as well as a walker to assist him with ambulation.
On April 1, 2008, an adjudication manager confirmed the adjudicator’s decision to deny responsibility for reimbursement of the worker’s home renovations (railings and grab bars) and the cost of a walker. The adjudication manager felt that the need for these items were the result of non-work related symptoms. He noted that the sports medicine specialist stated that the worker was experiencing arthritic pain in his ankles, hips, and knees and that his main problem related to his ankles. It was noted that the worker was experiencing foot pain, right worse than left. The adjudication manager indicated that the worker’s WCB claims included his right knee and left foot. The symptoms in his ankles, right foot, left knee and hips would be considered unrelated to his WCB claims.
In a June 12, 2008 decision, Review Office confirmed that responsibility should not be accepted for home renovations. Review Office noted that the worker had a long standing history of degenerative changes with a natural progression. It stated that the worker’s compensable injuries were not the primary disabling factors affecting his mobility. Review Office noted that the WCB was responsible for the affects of the worker’s left forefoot and that this area would not cause degenerative changes in both his ankles. It noted that the WCB medical advisor who examined the worker on November 21, 2007 documented that the worker had complaints throughout his lower extremities with no specific complaints regarding the left foot and that the worker alternately favoured the left and right sides, presumably because he had diffuse degenerative changes through his body that affected his mobility. Based on these factors and WCB policy 44.120.30, Support for Daily Living, Review Office felt the evidence did not support that the worker’s compensable injuries created the need for any home modifications.
Review Office also determined that the worker’s compensable injuries were not the primary reason that the worker would benefit from the use of a walker. It noted that the need for a walker was due to osteoarthritis and pes planus. It stated that the WCB had not accepted responsibility for either of these conditions which, in the worker’s case, were considered to be pre-existing conditions.
October 15, 1999 claim for head, neck, back, arms and hip
On October 15, 1999, the worker slipped and fell while dismounting a D-6 crawler tractor injuring his head, upper back, hip and lower right side.
When seen for medical treatment following the accident, the worker was diagnosed with a head contusion and possible mild concussion but later complained of tenderness in his upper back, neck, feet and ankles. On November 15, 1999, the treating physician reported that the worker’s occipital hematoma had resolved, that he had arthritic feet and that x-rays and CT scan of the head were pending.
On November 18, 1999, the treating physician advised a WCB adjudicator that the worker continued to complain of being sore but there were no objective findings. If the CT scan did not show any objective findings, then he would not be able to support the worker’s inability to work.
File records show that the worker returned to work on October 25, 1999 and worked his full shifts until he was laid off on October 29, 1999.
In a decision dated November 18, 1999, the worker was advised that his claim for compensation had been accepted and that his wage loss benefits would be extended from October 16, 1999 to his return to work date of October 25, 1999. It was determined that the worker had recovered from his October 15, 1999 injury and was no longer experiencing a loss of earning capacity due to his injury at work. The worker was advised that once the CT scan results were received, the WCB would re-evaluate his claim.
An x-ray report dated November 18, 1999 revealed degenerative changes in the mid and low lumbar spine with large osteophytes and scoliosis, moderate convex right. Degenerative changes were also noted in the low cervical spine. Vertebral body heights were well maintained and a fracture was not identified.
A CT scan dated December 14, 1999 identified no intracranial abnormality.
On February 23, 2000, a WCB medical advisor reviewed the file evidence and stated,
“There is no objective medical information indicating limitation of function, and the RTW [return to work] date of Oct. 25/99 seems reasonable, considering the paucity of objective signs.
Last medical report from A/P [attending physician] is undated, but there seems to be a discrepancy between clmt’s symptoms and the objective findings.”
On February 28, 2000, the worker was advised that the WCB received a copy of his CT scan results and they were referred to a WCB medical advisor for review. Due to minimal objective findings and a negative CT scan, the WCB was unable to accept further responsibility for his 1999 claim.
The worker was examined on June 21, 2000 by a WCB medical advisor. Following the assessment, the medical advisor indicated that the worker suffered a head and neck injury from the accident and that the head injury was mild and its effects had resolved. He noted that the worker’s neck injury was consistent with a cervical strain. It was further noted that the worker had extensive degenerative disc disease and osteoarthritis of the cervical, thoracic and lumbosacral spines. His neck and low back pain had been longstanding and there was no evidence of neurologic involvement. The worker’s ongoing symptoms in his neck and back appeared to be due to the pre-existing conditions and were chronic and unrelated to the compensable injury.
In a WCB decision dated November 1, 2000, the worker was advised that based on the June 21, 2000 examination, it was the WCB’s position that his symptoms or problems were related to his pre-existing conditions and were not related to his compensable injury.
On September 7, 2005, a CT scan report revealed the following impression:
“Advanced multilevel degenerative spondyloarthropathy. There are changes of acquired spinal stenosis at the L3-L4 and L4-L5 levels and to a lesser extent at the L2-L3 level. In addition there is narrowing of the right lateral recess at the L3-L4 level and bilateral narrowing of the lateral recesses at the L4-L5 level.”
In a May 23, 2006 decision, the worker was advised that no change would be made to the prior WCB decisions to deny further responsibility for the October 15, 1999 claim. As a result, responsibility would not be accepted for chiropractic treatment and/or any other medical aid costs.
On June 12, 2008, Review Office determined that the worker was not entitled to wage loss benefits or to a permanent partial impairment award in relation to his 1999 claim. Review Office indicated that the initial physical findings in the worker’s back in relation to his October 15, 1999 injury were minimal and of more impact were the diffuse degenerative changes throughout the worker’s spine. Based on the mechanism of injury and medical evidence, the compensable injury resolved and it did not enhance the worker’s pre-existing condition. After considering all the evidence, Review Office stated that the October 15, 1999 injury was of short duration and did not affect the pre-existing condition. Based on the decision that the worker recovered from his compensable injury, Review Office determined that any measurable impairment would not be related to the October 15, 1999 compensable injury.
In August 2008, the worker disagreed with the decisions made by Review Office and an appeal was filed with the Appeal Commission. A hearing was held on December 2, 2008.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act.
Under subsection 4(2) of the Act, a worker is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Medical aid payments for expenses such as home renovations or a walking aid are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. In making such a determination, the nature of the injury, the treatment provided and the worker’s response to the treatment may be considered.
Worker’s Position
The worker was self represented in his appeal. At the hearing, the worker advised the panel that he is having considerable difficulty with walking because his feet give out on him. He entered the hearing room with the use of a cane, which he indicated is not very helpful and said he almost fell down when coming to the hearing. The worker submitted that he needs a good walker with a seat on it which would enable him to travel greater distances. As for the home renovations, he has installed some hand railings at his home by the steps leading into the house, and also on a stairwell. He needs them to help him go up and down the stairs. His doctor has told him that he needs replacement surgery for his ankles. The worker attributed his ankle problems to the multiple workplace injuries that he has suffered.
With respect to the October 15, 1999 incident when the worker fell and hit his head and upper back, the worker had difficulty remembering the details of this incident. This is understandable given the passage of time and the multiple injuries he has suffered. The worker confirmed that typically, he had been laid off by that accident employer in November when the weather got colder. He stated that the employer had a limited budget, so he would regularly be laid off in the late fall, then rehired in the spring. He could not recall specifically when he was laid off in 1999. At the present time, he continues to have problems with his neck, and down into his shoulder and mid-back. He gets headaches. He has been told by his doctors that he has compressed discs and degenerative changes, but that surgery in his case would be too dangerous and is therefore not recommended. He is currently not receiving any further treatment for this condition.
Analysis
There are four issues being appealed. Each will be addressed separately.
Claim No. 8808 5131
1. Whether or not responsibility should be accepted for home renovations.
In order to find that the WCB is responsible for home renovations, the panel must find that the worker’s compensable injuries created the need for the modifications to his house. We are not able to make that finding. In the panel’s opinion, the Review Office correctly identified that the injury to the worker’s left foot, namely the non-united fracture on the second metatarsal, is not the primary disabling factor affecting his mobility. The panel relies on the medical report of the sports medicine specialist dated December 12, 2007 which identified severe osteoarthritis of both ankles as being the worker’s main problem. This medical condition (and its treatment consequences) are non-compensable. A referral to an orthopedic surgeon for ankle replacement surgery was made.
The examination by the WCB medical advisor on November 21, 2007 similarly indicated that the worker had some soreness in his left foot, but the worker could not identify any specific left foot problems. Rather, the worker generally had problems with both of his lower extremities including knees, ankles and feet. Again, the left foot injury does not appear to be a significant cause of the worker’s mobility issues.
Although the family physician indicated that osteoarthritis and diffuse degenerative changes would be hastened by injury and exacerbated by previous fractures, the injury arising from the worker’s July 12, 1988 accident was incurred to his left second metatarsal, not his ankles. It is a different anatomical area, and the panel is therefore of the view that responsibility for any renovations required on account of his ankle disability cannot be accepted. The worker’s left foot injury does not contribute to a material degree to his mobility issues. The appeal on this issue is dismissed.
2. Whether or not responsibility should be accepted for a walker.
The considerations under this heading are the same as those discussed above with respect to responsibility for home renovations. The panel finds that the worker’s left foot injury sustained in the July 1988 accident is not the primary disabling factor affecting his mobility and does not contribute to a material degree to his need for a walker. As such, responsibility for a walker should not be accepted. The appeal on this issue is dismissed.
Claim No. 9908 4470
3. Whether or not the worker is entitled to wage loss benefits and medical treatment.
In order for the worker’s appeal to be successful, the panel must find that there is medical or similar evidence of a continuing disability arising from the accident of October 15, 1999. We are not able to make that finding.
On review of the file information, it would appear that after the accident, the worker was absent from work for approximately ten days. He returned to work on October 25, 1999, and worked for a few days. On October 29, 1999, he was laid off from work. When questioned about the accuracy of these dates, the worker could not recall specific dates, but was able to confirm that typically, he would be laid off in the late fall. File information indicated that he was called back to work by the accident employer in January, 2000. The worker could not recall if this was correct, and stated that he would usually get recalled in the spring. He was able to confirm that he continued to be employed seasonally by this employer until 2002.
The injuries suffered by the worker in the October 15, 1999 accident were diagnosed by his treating physician as being a head contusion and possible mild concussion. A CT scan was performed on December 14, 1999 and identified no intercranial abnormality. On June 21, 2000, the worker was examined by a WCB medical advisor who opined that the head injury was mild and its effects had resolved. It was felt that the ongoing symptoms which the worker was experiencing in his neck and back were chronic pre-existing conditions which were unrelated to the compensable injury.
In view of the foregoing evidence, the panel agrees with Review Office and finds that the October 15, 1999 injury was of short duration and did not affect or enhance the worker’s pre-existing condition. The panel notes that the worker did receive limited wage loss benefits and did return to work, before his seasonal layoff began. This suggests that the worker has long since recovered from this minor accident. As a result, there is no entitlement to any further wage loss benefits or medical treatment. The appeal is dismissed.
4. Whether or not the worker is entitled to a permanent partial impairment award.
Given the panel’s findings that:
- the October 15, 1999 injury was of short duration;
- the injury did not affect or enhance the worker’s pre-existing condition; and
- the worker has long since recovered from the minor accident;
there is no entitlement to a permanent partial impairment award. The worker’s appeal on this issue is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
L. Choy - Presiding Officer
Signed at Winnipeg this 6th day of January, 2009