Decision #63/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a right ankle injury that occurred in the workplace in March 2007. Currently, the worker is appealing the decision made by Review Office which denied responsibility for his left ankle surgery as being related to his compensable right ankle claim. The worker also disagreed with Review Office that he was only entitled to personal care attendant’s allowance for three hours a day for four weeks followed by two hours a day for four weeks. A hearing was held on May 7, 2009 to consider the two issues.

Issue

Whether or not responsibility should be accepted for the worker’s left ankle condition; and

Whether or not the worker is entitled to a personal care attendant’s allowance above three hours a day for four weeks followed by two hours a day for four weeks.

Decision

That responsibility should be accepted for the worker’s left ankle condition; and

That the worker is entitled to the maximum personal care attendant’s allowance of 56 hours per week for the first week following his June 3, 2008 right ankle surgery and the remainder as per Review Office’s decision.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an injury that occurred at work on March 8, 2007 when he stumbled on an uneven floor and twisted his right ankle.

In a telephone conversation with a WCB adjudicator on March 13, 2007, the worker advised that he had previously strained his ankles in the workplace and that he had osteoarthritis in his left ankle and some in his right ankle. On March 19, 2007, the employer advised the WCB that the worker had foot difficulties over the last couple of months and that he was off work as a result.

On March 29, 2007, a WCB medical advisor reviewed the file information at the request of primary adjudication. He indicated that the diagnosis reported by the family physician was a right ankle strain subsequent to an inversion injury. He felt that this was consistent with the reported mechanism of injury, i.e. twisting the ankle on the slightly sloping floor. He stated that according to the hospital emergency report, a private insurer’s report and the attending physician’s report, there was pre-existing ankle osteoarthrosis [“OA”]. He said it was possible that the pre-existing OA was aggravated by the compensable injury. The medical advisor indicated that restrictions to avoid standing, walking, stairs and ladders was appropriate and that the worker was capable of sedentary duties.

On March 30, 2007, it was confirmed to the worker that the WCB accepted his claim as a right ankle strain, aggravated by his pre-existing OA. A return to modified duties with the employer was arranged to commence April 4, 2007. Full wage loss benefits were paid to April 3, 2007 inclusive followed by partial wage loss benefits.

The WCB obtained a copy of the worker’s disability claim with a private insurer for his bilateral ankle condition for the period November 28, 2006 to January 7, 2007.

On February 18, 2008, an orthopaedic specialist reported that the worker had been having ongoing problems with both feet, the right worse than the left. He noted that this had been aggravated by an injury at work. Following the assessment, the specialist suggested that the worker would benefit from a distraction arthrodesis of the subtalar joints, starting with the right ankle and later with the left ankle.

On April 9, 2008, a WCB senior medical advisor wrote to the orthopaedic specialist to indicate that the WCB was accepting financial responsibility for the distraction arthrodesis of the right subtalar joint but not for the same procedure on the worker’s left ankle as this was not part of his WCB claim.

In an adjudicative decision dated April 22, 2008, the worker was advised that the WCB would cover the proposed right ankle surgery but would not accept responsibility for his left ankle condition as there was no workplace injury that accounted for his left ankle difficulties. It was indicated that the worker had bilateral pre-existing degenerative changes in the ankles which was not related to any particular workplace event. It was noted that The Workers Compensation Act (“the Act”) did not include legislation which covered degenerative wear and tear over decades of employment in any certain industry. It was determined that the March 8, 2007 compensable injury accelerated the deterioration of the worker’s pre-existing degenerative right ankle changes to the point where he was unable to perform his job duties as a mold maker.

On May 7, 2008, the worker submitted to Review Office that his left ankle pain was related to him favoring his right ankle and that he “suffered roll over of my left ankle throughout the past year.” As this issue had not been previously addressed by primary adjudication, Review Office referred the file back to case management for further consideration.

On June 3, 2008, the worker underwent debridement of the posterior aspect of the right ankle including synovectomy and distraction arthrodesis of the subtalar joint with femoral head Allograft.

At the request of the case manager, a WCB medical advisor was asked to provide his opinion on the following: “In your opinion, would favoring the right ankle result in acceleration or enhancement of left ankle condition, especially when surgery was already being suggested/proposed on the left ankle prior to the compensable right ankle injury?” On June 26, 2008, the medical advisor stated, in part, that it was unlikely that any loading related to favoring the right lower limb since the compensable injury had materially affected the deterioration in the left sub-talar joint. He indicated that this statement was supported by the fact that there was no medical evidence on file to support that the worker injured his left ankle since the March 8, 2007 right ankle compensable injury and secondly, based on the conclusions of a discussion paper entitled ‘Symptoms in the Opposite or Uninjured Leg’ dated August 2005. Without medical evidence to the contrary, the medical advisor stated he was unable to support the worker’s statement that his reported right lower limb symptoms had materially altered the course of his extant severe left subtalar osteoarthrosis. He stated that while the worker’s left subtalar joint osteoarthrosis may have been affected by his workplace over time, its deterioration was not likely materially related to the March 8, 2007 compensable injury.

On July 10, 2008, the worker was advised that the decision made on April 22, 2008 to deny responsibility for his left ankle condition was confirmed. It was indicated that since there had been no reported incidents to his left ankle at work since the March 8, 2007 compensable injury, the case manager was unable to accept the reported roll over incidents as compensable. There was also no medical evidence to support that the worker injured his left ankle since the March 8, 2007 compensable injury. The case manager referred to a medical report dated October 10, 2006 which suggested that left ankle surgery was already indicated for in the future. It was concluded that there was no medical evidence to support that the left ankle surgery was related to the March 2007 compensable injury.

In a submission to Review Office dated July 24, 2008, the worker indicated that he was not claiming degenerative wear and tear over decades of employment but rather suffered repetitive injury to his ankles. He indicated that he reported ongoing difficulties to his caregivers who were well aware of the fragile condition of his left ankle. He reported ankle fatigue, falls and increased pain to his left ankle to his case manager although these reports were not indicated in her case work entries. He stated that he was dominantly dependant on his left ankle for over 16 months and solely dependent for approximately 8 weeks after surgery causing further pain, swelling and mobility issues. He noted that his left ankle had deteriorated quickly and significantly in the past year.

On September 4, 2008, Review Office determined that responsibility should not be accepted for the worker’s left ankle condition. After reviewing all the evidence which included the worker’s prior WCB ankle claims, Review Office found no evidence to support that the March 8, 2007 compensable injury or its sequelae, played any significant role in the degenerative condition or in any possible functional deficits of the left ankle. Review Office stated it was unclear as to why the WCB accepted responsibility for the worker’s right ankle surgery when the physiotherapist’s report of June 19, 2007 indicated that the acute sprain had resolved and the chronic osteoarthritis remained. This suggested that the worker likely made a relatively uneventful recovery from the March 8, 2007 injury and that his ongoing symptoms after discharge from physiotherapy were unrelated to his compensable injury.

In a September 10, 2008 submission to his case manager, the worker requested attendant’s allowance for a total of 14 weeks at the rate of $9.58 per hour (56 hours per week). The worker claimed that he was non-weight bearing and dependent on his spouse for personal hygiene, dressing, meals, etc. after his release from hospital on June 6, 2008.

On September 19, 2008, the case manager wrote to the worker to advise that he did not qualify for the maximum amount (56 hours a week) as this was intended for severely injured workers only. The worker was advised that he would qualify for attendant’s allowance following the initial recovery period from his surgery at 2 hours per day for 4 weeks and for one hour per day for 4 weeks. On November 12, 2008, the worker appealed this decision to Review Office.

In a Review Office decision dated January 7, 2009, it was determined that the worker was entitled to a personal care attendant’s allowance for three hours a day for four weeks and two hours a day for four weeks. Review Office agreed that the worker did not qualify for the maximum amount of 56 hours per week. Review Office was of the opinion, however, that given the worker’s limited function and mobility, a reasonable level of care following the right ankle surgery would be three hours a day for the first four weeks and two hours a day for the following four weeks.

On January 19, 2009, the worker’s spouse called Review Office to advise that the worker was non-weight bearing for 10 weeks and that the Review Office decision provided an allowance for eight weeks.

In a letter dated January 19, 2009, Review Office stated that the February 18, 2008 report from the surgeon indicated that following surgery, the worker would be non-weight bearing for six weeks with a cast on for 10 weeks. The June 3, 2008 progress report noted that the surgical report indicated non-weight bearing for six weeks and the August 7, 2008 report from the attending physician noted the worker had a walking boot. The report did not indicate that the worker had to be non-weight bearing. It was stated that the Review Office decision was not based solely on the time frames the worker was to be non-weight bearing.

On February 2, 2009, a worker advisor appealed the Review Office decision made on January 7, 2009 and the September 4, 2008 decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations, and policies made by the WCB Board of Directors.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

WCB Policy 44.120.30, Support for Daily Living (the “Living Support Policy”) coordinates the WCB’s approach to supporting injured workers in daily workplace and personal activities after an accident. Part C of the Living Support Policy provides for personal care attendants and states: “Financial support for personal care attendants may be paid by the WCB where a serious compensable injury or disability creates a need for attendant services. The amount of financial support depends on the reasonable level of care the individual needs.” The amount of financial support is based on the cost to provide a reasonable level of care required by the injury and is determined on a case by case basis. The total hours of family member attendant care must not exceed 56 hours per week.

The Worker’s Position:

The worker was assisted at the hearing by a worker advisor and the worker’s spouse. At the outset, there was some uncertainty as to the scope of the issue which was before the panel. It was clarified that, with respect to the first issue, the panel could only consider whether the left ankle condition was a compensable sequela to the right ankle injury. On this issue, it was submitted that the worker suffered a secondary injury to his left ankle as a result of increased load created by the worker favouring his left side and walking with a limp. The medical file documentation confirmed that at various times following the accident on March 8, 2007, the symptoms in the worker’s left ankle increased as a result of his efforts to avoid putting weight on his injured right ankle. Reports from two sports medicine physicians dated October 7, 2008 and November 7, 2008 both supported that the left ankle problems were related to the right ankle injury.

On the issue of the personal care allowance, it was submitted that the allowance granted by the January 7, 2009 Review Office decision did not reasonably provide for the level of care the worker required following his surgery. The worker and his spouse provided evidence on the care that he required during his recovery. It was submitted that the maximum amount under the policy was justified during the initial period after the surgery, and gradually tapering off.

Analysis:

There are two issues before the panel. Each will be addressed separately.

1. Whether or not responsibility should be accepted for the worker’s left ankle condition.

The worker claims that he has suffered a secondary injury as a result of his compensable right ankle injury. He contends that the pre-existing osteoarthritis in his left ankle was enhanced as a result of having to use his left foot as his dominant foot. In order for the worker’s appeal on this issue to succeed, the panel must find that his left ankle condition qualifies as a “further injury” under one of the three tests set out in the Further Injuries Policy. The test applicable to the worker’s left ankle injury would be the one contained in paragraph (i), that is, whether or not the cause of the further injury is predominantly attributable to the compensable injury.

The administrative guidelines to the Further Injuries Policy provides as follows:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g. unstable knee) or from the use of a prosthetic devise or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.

At the hearing, the panel heard extensive evidence from the worker as to how, after suffering the compensable injury to his right ankle, he began to rely on his left side to bear his weight when walking and standing. When walking, he would hobble and always carefully lead with his left foot and attempt to minimize any weight being placed on his right side. During his return to work in the period prior to his first right ankle surgery in June 2008, although he was largely assigned to duties classified as “sedentary”, he was still performing tasks which required him to weight bear. When assigned to the safety office, he had to get up to stand at the service window and walk to the shelves to retrieve items. Although the distance was not far, it still involved bearing weight on his legs, and the left side bore the brunt of this weight. After his first right ankle surgery, the worker was almost completely reliant on his left side for approximately three months. His evidence was that the post-operative instructions were to remain non-weight bearing for ten weeks. Although there is some discrepancy in the WCB file as to the exact number of weeks the worker was to remain non-weight bearing, it is clear that during his multi-week recovery period, the worker had to place a significantly greater load on his left side.

There is medical evidence to support the worker’s contention that the osteoarthritis in his left ankle was enhanced. As noted in the worker advisor’s submission, medical reports from the worker’s attending physician, physiotherapist, sports medicine physician and surgeon all reference increasing left sided ankle symptoms.

After reviewing the evidence as a whole, the panel is satisfied, on a balance of probabilities, that the worker’s compensable right ankle injury significantly contributed to the enhancement of his left ankle osteoarthritis and that the worsened condition of his left ankle is pre-dominantly attributable to the compensable injury. In coming to our decision, the panel places reliance on the following:

  • In the WCB file material, the worker’s left ankle osteoarthritis condition is characterized as chronic and that “surgery was already being suggested/proposed.” At the hearing, the worker’s evidence was that he had only been formally diagnosed with osteoarthritis in late 2006. In previous years, during visits to the emergency department for sprained ankles, the worker was advised that osteoarthritis was suspected, but no formal diagnosis had been made. It was only in 2006, when he began to feel constant aching in his ankles that the worker went to the sports medicine physician to seek treatment.
  • The worker’s evidence was that when he met with the sports medicine physician, he was first told that he had osteoarthritis and they discussed how this condition would be managed. They discussed the use of medications, glucosamine, and the physician suggested that the worker may have to consider finding new employment in the future. Surgery was only discussed in the context of long term prognosis and that the worker may have to consider ankle replacement surgery when he reached his 60s. There was no surgery planned or anticipated in the near future.
  • The October 10, 2008 consultant letter from the sports medicine physician to the worker’s family physician is consistent with this explanation as it indicates: “Long term, he will need to find a job where he doesn’t have to be on his feet all day. Corticosteroid injections and surgical intervention become options as he deteriorates down the road.” The panel views these comments as confirming that surgery was not necessarily expected, but rather was only recognized as a possible option in the future. We therefore find that although the worker had pre-existing symptomatic osteoarthritis in his left ankle, surgery to his left ankle was neither inevitable nor impending. The worker simply had an “ankle at risk” which was susceptible to further injury.
  • The panel accepts the opinion of the sports medicine physician contained in his letter of October 7, 2008 where he states: “In view of your bilateral ankle and subtalar osteoarthrosis, any process that would overload the left side would certainly aggravate and possibly enhance the condition on the left side.”
  • The panel acknowledges the WCB medical advisor’s June 26, 2008 opinion on whether the compensable injury resulted in a more rapid progression of the subtalar osteoarthrosis on the left side. We note that the medical advisor refers to an August 2006 discussion paper entitled “Symptoms in the Opposite or Uninjured Leg”. In our opinion, given the pre-existing susceptibility of the left ankle, and the worker’s significant body mass, the conclusions of the discussion paper are not particularly applicable to this worker’s situation.

For the foregoing reasons, we find that the worker suffered a further injury as a result of his compensable injury and accordingly, responsibility should be accepted for the worker’s left ankle condition. The appeal on this issue is allowed.

2. Whether or not the worker is entitled to a personal care attendant’s allowance above three hours a day for four weeks followed by two hours a day for four weeks.

Review Office had allowed a personal care attendant allowance for three hours a day for the first four weeks following the right ankle surgery and two hours a day for the following four weeks. This was considered to provide a reasonable level of care, given the worker’s limited function and mobility following surgery.

At the hearing, the worker’s spouse gave detailed evidence as to the care she provided to the worker in the weeks following the first and second right ankle surgeries. The panel notes that the issue before us relates only to personal care attendant allowance required as a result of the first surgery in June 2008. Attendant allowance related to the second surgery is not at issue in this appeal. The spouse described the first week at home after being released from the hospital and the difficulty they faced. Although the worker had passed the hospital physiotherapist’s requirement that he be able to mobilize up three steps while on crutches, this was while his pain was properly medicated. Upon his release, the worker was not provided with adequate medication and for the first week, the pain was so excruciating that he was unable to mobilize at all. The spouse had to perform virtually everything for the worker.

The panel is satisfied that during the first week following surgery, the worker essentially required full time care, and that the maximum coverage of 56 hours per week is warranted.

For the balance of the worker’s recovery period, the panel agrees with Review Office’s assessment of three hours a day for weeks 2, 3 and 4 post-surgery, and two hours a day for weeks 5, 6, 7 and 8. Although the spouse described providing a level of care which likely consumed more time, we find that not all of what she did was necessary to provide the worker with a reasonable level of care for his individual needs. The worker had some degree of mobility, and many of the tasks she performed for him could have been performed by the worker himself. Further, there is some degree of overlap, as they had a relatively traditional division of household duties, so the worker’s disability from the surgery did not create an additional need for assistance with cleaning, laundry and food preparation.

In his claim for additional personal care attendant allowance, the worker also requested an allowance for the time spent by his spouse in traveling to and attending medical appointments with him. As he was unable to drive for several weeks following the surgery, she was required to take time off work to transport him. This issue was also noted in a case note file dated January 8, 2009, but as at the time of the hearing, there was not yet any follow-up. On review of the WCB Policies, it appears that provision for an escort allowance for medical appointments is made under WCB Policy 44.120.10 Medical Aid. As the WCB has not previously considered entitlement to an escort allowance under the medical aid policy, we cannot consider this request because the panel does not at this time have the jurisdiction to deal with it.

For the foregoing reasons, we find that the worker is entitled to additional personal care attendant’s allowance for the first week post-surgery. The worker’s appeal on this issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of June, 2009

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