Decision #102/09 - Type: Workers Compensation
Preamble
The worker is currently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that his left ankle difficulties were not related to his March 22, 1986 compensable right ankle claim. An appeal was filed with the Appeal Commission and hearing was held on July 23, 2009 to consider the matter.Issue
Whether or not the worker’s current left ankle symptoms have a relationship to the right ankle claim of March 22, 1986.Decision
That the worker’s current left ankle symptoms have no relationship to the right ankle claim of March 22, 1986.Decision: Unanimous
Background
On March 22, 1986, the worker injured his right ankle in a work related accident. File records indicate that his right ankle got caught in the rung of a ladder causing him to fall backwards, with his foot still caught in the rung. The claim for compensation was accepted and the worker ultimately underwent right ankle arthrodesis surgery on October 20, 1997. He was eventually awarded a Permanent Partial Disability award for loss in range of motion of his fused right ankle as well as a cosmetic award.
On November 4, 2008, the worker spoke with a WCB case management representative regarding left ankle difficulties that he related to “overcompensating to limit use on the right ankle after surgery”. The worker stated that he had a couple of sprains and had to weight bear on the left side. He also experienced some awkward stepping, etc. The worker stated that he sprained his left ankle badly when he was healing. The worker noted that he had some swelling and tenderness in his ankle.
Medical information related to the worker’s left ankle difficulties showed the following:
· October 20, 2003 – an x-ray of the left ankle read “There is osteoarthritis with joint space narrowing particularly medially. Small well corticated ossicles are noted adjacent to the joint presumably from remote trauma. There may be a joint effusion.”
· April 3, 2008 – an orthopaedic specialist stated “Right ankle fusion still solid. For new ankle support. Also osteoarthritis left ankle, but no treatment planned.”
· October 17, 2008 – a second orthopaedic specialist indicated that the worker had been referred to him for osteoarthritis of the left ankle. The specialist indicated that the worker reported recurrent sprains due to overcompensating for a right ankle arthrodesis. He noted that the worker did not complain of severe pain in his right ankle but did complain of left ankle pain. Based on his examination findings, the orthopaedic specialist indicated that the worker might benefit from a left ankle arthrodesis.
· September 4, 2008 – an orthopaedic consultation referral form stated, “left ankle osteoarthritis secondary to recurrent sprains due to overcompensating for right arthrodesis 1986 (WCB)”.
· November 12, 2008 – the attending physician reported his examination findings/entrance complaints for the worker’s left ankle on October 20, 2003, November 3, 2006 and May 22, 2008. His documented impressions during these visits were arthritis and osteoarthritis of the left ankle.
· April 3, 2008 – an x-ray report stated, “The right ankle is compared with a prior study dated Oct. 27, 2004. On the right, the ankle joint remains fused and this is solid. There has been no change since the previous exam. On the left, there is severe asymmetric tibio-tablar joint space narrowing particularly medially. This results in talar tilting laterally. There are associated degenerative osteophytes about the ankle joint.”
· November 27, 2008 – a report from the first orthopaedic specialist stated, “Patient seen on April 3, 2008, for both his ankles. No other visits or test results for left ankle.”
On January 15, 2009, the case was referred to a WCB medical advisor to review the file information and to provide an opinion as to whether the worker’s difficulties with his left ankle were related to his compensable injury. On February 3, 2009, the medical advisor provided rationale to support his conclusion that the osteoarthrosis of the left ankle was not causally related to the 1986 right ankle injury and that he would not recommend surgical or other interventions as being related to the worker’s claim.
In a decision dated February 19, 2009, the worker was advised that the WCB was not accepting responsibility for his left ankle condition as being related to his 1986 right ankle claim. On March 10, 2009, the worker disagreed with the decision and an appeal was filed with Review Office.
On April 7, 2009, Review Office determined that the worker’s current left ankle symptoms did not have a relationship to the right ankle claim of March 22, 1986. Review Office agreed with the WCB medical advisor’s opinion that neither of the orthopaedic specialists involved have provided an opinion supporting that the worker’s left ankle osteoarthritic condition arose through the worker’s 1986 right ankle injury. It also felt that the medical evidence on file did not support the worker’s position that his left ankle problems were related to his right ankle claim. On April 17, 2009, the worker appealed Review Office’s decision to the Appeal Commission and hearing was arranged.
Following the hearing on July 23, 2009, the appeal panel requested additional information from a physiotherapist who saw the worker primarily for his right ankle difficulties, for the purpose of developing custom footwear for the worker. The physiotherapist’s report, dated August 18, 2009, was received and then forwarded to the worker for comment. On October 4, 2009, the panel further met to discuss the case and rendered its final decision on the issue under appeal.
Reasons
The Worker’s Position:
The worker was self-represented at the hearing. His position is that he suffered a secondary injury to his left ankle because of his right ankle fusion. The fusion led him to limp and rely more on his left side. He advised the panel that he had suffered a series of left ankle sprains over the years, which have led to his current left ankle difficulties. He also noted that he had been taking painkillers for his right ankle, which masked the left ankle pain. His left ankle was swollen once in a while. He indicated he had particular difficulties walking around after his right ankle fusion operation in 1997.
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.
WCB Policy 44.10.80.40,“Further Injuries Subsequent to a Compensable Injury” describes the tests used in determining whether the we can accept a further injury as being causally related to the original compensable injury. This policy provides, in part:
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 …
The administrative guidelines to the Further Injuries Policy provides, in part:
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…
Analysis
The worker in this case is seeking to have his current left ankle medical symptoms related to his original 1986 compensable injury to his right ankle. For the panel to make this finding, we would have to find that the cause of the worker’s left ankle osteoarthritis was predominantly attributable to his compensable right ankle injury. The panel was unable to make this finding. Our reasons follow.
The panel notes that the current diagnosis for the worker’s left ankle difficulties is osteoarthritis. This diagnosis is supported by x-rays taken on October 20, 2003, and April 3, 2008 (which also refers to similar findings on an x-ray of October 27, 2004). This diagnosis is also confirmed by a physician in 2003, with more severe osteoarthritis of the left ankle found and diagnosed by two orthopaedic specialists in 2008. The panel accepts the diagnosis, and as well the significant difficulties and discomfort facing the worker as a result of this condition. However, the challenge facing the panel is to determine whether the worker’s right ankle injury played a significant role (“predominantly attributable”) in the development of the worker’s left ankle osteoarthritis.
To answer this question, the panel must be clear as to how osteoarthritis can develop in an ankle, which then puts the panel in a position to determine whether any of those causes are present here. As for the etiology (causes) of osteoarthritis in an ankle, the panel notes and accepts the general commentary of the WCB medical advisor in his memo of February 3, 2009 on this point. He states that:
“Osteoarthritis of the ankle is typically as a result of repeated significant soft tissue strains which are severe enough to be associated with joint instability leading to the development of degenerative osteoarthrosis or as a consequence of an inter-articular fracture leading to joint surface degeneration…
As well, it is my opinion that an injury to one leg (ankle) does not correspond to a cause/effect relationship with the development of degenerative osteoarthrosis in the contra-lateral leg (ankle). This opinion is upheld in a position paper published by the Workplace Safety and Insurance Appeals of Ontario. The author of the paper is Dr. Ian Harrington. Dr. Harrington puts forward the position that under typical circumstances, injury to one joint in a leg would not be expected to or be associated with the development of joint disease in the opposite uninjured leg.”
The panel accepts these general comments on how a medical condition like that suffered by the worker in this case might develop, and has assessed the worker’s evidence as well as the medical information on the file against these potential causes. After a careful review, we find on a balance of probabilities that the evidence does not support a causal connection between the left ankle osteoarthritis and the compensable right ankle injury. In making this finding, the panel notes that:
- The worker’s evidence is that he suffered left ankle sprains prior to his right ankle fusion in 1997, from 1986 to 1997. The panel notes, however, that the medical documentation as well as ongoing contact with the board during that period does not note any reports of left ankle sprains or of a demonstrable limp, or complaints by the worker of left ankle difficulties.
- The worker’s evidence is that he also suffered many left ankle sprains between 1997 and 2000. The panel notes that the worker was examined by a WCB medical advisor in May 1999. Both feet were examined, and there was no history provided at that time regarding left foot or ankle difficulties or of left ankle sprains.
- The worker was also examined by a sports physiotherapist in 2001, for the purpose of building appropriate orthotics for the worker’s feet, as a result of his 1986 compensable injury and the subsequent right ankle fusion. The physiotherapist’s reports dealt only with right ankle findings, but the panel recognized the opportunity to obtain collateral information regarding the worker’s left ankle condition during that period. After the hearing, the panel followed up further with the sports physiotherapist regarding his 2001 and 2007 examinations. In his reply to the panel, dated August 18, 2009, he reports that:
“At the time of the assessment [2001], [the worker] described his right ankle injury and subsequent process and treatment. He described at that time that he was also recently experiencing left ankle pain that he postulated to be related to increased loading since his right ankle injury.
On examination, he presented with an antalgic gait pattern limping on his right foot and ankle. His left foot appeared flatter in appearance with slight clawing of his lesser toes. His left foot and ankle exhibited full range of motion. At that time, I didn’t note any abnormality in left foot and ankle instability or signs of arthropathy. He did have a forefoot and rearfoot varus deformity on the left in non-weight bearing which would be consistent with his weight bearing pes planus structural position and excessive pronatory mechanics. From these findings, I had an orthotic fabricated for both feet to allow for weight bearing symmetry and an efficient pattern….
In follow up later in 2001 and in 2007, [the worker] presented and described that the orthotics were helping and working well and subsequently duplicate pairs of orthotics were fabricated and dispensed.”
The panel notes that the worker did not provide the physiotherapist with any history of left ankle sprains in any of his visits or contacts, and that he had limited his comments to perhaps a loading of his left leg as being the cause of the left ankle pain. The examination findings also indicate that joint instability in the left ankle was tested for and not found, in 2001. To the contrary, the ankle demonstrated full range of motion and no abnormalities or signs of arthropathy, some 15 years after the original right ankle injury and four years after the worker’s right ankle fusion. Finally, the panel notes that the worker was receiving what appears to be optimal care for the consequences of his right ankle surgery; the orthotics were designed specifically to allow for weight bearing symmetry and an efficient walking pattern, and the worker was, from the physiotherapist’s report, satisfied with the orthotics that were being provided to him.
The panel does not place significant weight on the worker’s evidence from the hearing that he had suffered multiple and severe sprains over the years to his left ankle. In reaching this conclusion, the panel notes the following:
· The worker first discussed his left ankle problems with a WCB case management representative in November 2008, some 22 years after the compensable injury and 11 years after the right ankle fusion, even though he has had ongoing contact with the WCB over the years;
· At that time, in 2008, he referred to a “couple” of sprains in his conversation with the representative;
· A review of medical reports indicate that he first actively sought treatment for his left ankle in 2008, when he was seen by two orthopaedic specialists for his by then severe osteoarthritis (although left ankle pain had been described in 2001 and 2003); and, as noted above, the sports physiotherapist in 2001 did not note any left ankle abnormalities including arthrosis or joint instability (four years post-fusion), and was not given a history of ankle sprains at that time.
· The panel notes that in 2008, the worker’s two treating orthopaedic specialists record the worker’s history of sprains but do not offer a medical opinion linking the worker’s left ankle difficulties to the worker’s right ankle injury or fusion. The panel has reviewed the WCB medical advisor’s analysis of the file (February 3, 2009), and reaches a similar conclusion to the medical advisor, namely, that the file history does not demonstrate a pattern of severe left ankle sprains that would result in joint instability and the development of osteoarthritis in the left ankle, and that there is no basis for this particular condition to arise out of the worker’s compensatory use of the left leg because of an injury to the right.
After reviewing the evidence as a whole, the panel is satisfied, on a balance of probabilities, that the worker’s compensable right ankle injury did not significantly contribute to the worker’s left ankle osteoarthritis, and that the worker’s left ankle osteoarthritis condition is not pre-dominantly attributable to the compensable injury. We therefore find that the worker did not suffer a further injury as a result of his compensable injury and accordingly, responsibility should be not accepted for the worker’s left ankle condition. The worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 28th day of October, 2009