Decision #34/11 - Type: Workers Compensation
Preamble
The worker suffered an injury to his left ankle in a work related accident on June 1, 2006. The Workers Compensation Board ("WCB") accepted the worker's claim and benefits and services were paid to the worker. The worker is now appealing several decisions that were made by the WCB's Review Office, namely that he had recovered from the effects of his ankle injury and that his ongoing left knee, right hip and low back difficulties were not related to his compensable accident. A hearing was held on February 15, 2011 to consider the issues as detailed below.Issue
Whether or not the worker's left knee, right hip and lower back difficulties are related to the June 1, 2006 compensable injury;
Whether or not the worker's current left ankle difficulties are related to the June 1, 2006 compensable injury;
Whether or not the worker is entitled to medical aid benefits beyond October 31, 2010; and
Whether or not the worker is entitled to wage loss benefits beyond November 30, 2010.
Decision
That the worker's left knee, right hip and lower back difficulties are not related to the June 1, 2006 compensable injury;
That the worker's current left ankle difficulties are not related to the June 1, 2006 compensable injury;
That the worker is not entitled to medical aid benefits beyond October 31, 2010; and
That the worker is not entitled to wage loss benefits beyond November 30, 2010.
Decision: Unanimous
Background
The worker filed a claim with the WCB for a left ankle injury that occurred on June 1, 2006 which he related to the following work related accident:
"…exiting the trailer. The metal steps had been put on incorrectly and when I stepped on the top step it let go and I fell about 5 feet onto the metal steps. The steps fell and I fell on top of them injuring my ankle. Tried to jump out of the way, but no where to go."
A doctor's progress report showed that the worker was treated on June 5, 2006. Objective findings outlined by the attending physician were swelling and slight tenderness of the left ankle. There was no restriction in range of motion, no muscle wasting and no neurological defect. The claim for compensation was accepted based on a left ankle strain and the worker was paid wage loss benefits from June 2, 2006 to June 6, 2006 inclusive.
In late September, 2006, the worker advised the WCB that he was having ongoing difficulties with his left ankle. There were no new injuries. The worker indicated that he operated a machine which required him to use his left foot to operate the clutch.
A doctor's progress report showed that the worker saw a doctor on September 28, 2006. Objective findings outlined were tenderness in the medial and lateral ankle ligaments with painful eversion and inversion. Medication and physiotherapy was prescribed.
When speaking with a WCB adjudicator on October 4, 2006, the worker stated that he was having problems with his left knee which he felt were a result of his altered gait. He was not certain if he injured his knee in the fall but started noticing the pain about a week after the accident. Although he did mention it to his doctor, his knee was not examined. The worker said he had a 1985 knee claim and in 1995 the WCB approved a scope on his knee. His knee had been fine since then. The worker indicated that when he fell, he landed on the ladder inverting his left ankle. The worker's benefits were reinstated effective September 28, 2006.
On October 10, 2006, the worker had x-rays taken of both hips, both knees and left ankle. There was no significant abnormality in the hips or knees. There was a lytic area in the medial malleolus which required further evaluation.
A bone scan dated November 3, 2006 showed increased uptake around the cyst in the left medial malleolus with additional uptake in the midfoot likely representing articular changes.
An MRI of the left ankle taken January 19, 2007 revealed the following:
"A lesion is confirmed medially in the distal tibia/medial malleolus, this having cystic-type qualities. The differential diagnosis would include an intraosseous ganglion, a post-traumatic cyst or possibly even a post-traumatic aneurysmal bone cyst. There is suspected to be communication with the tibiotalar joint which would favor an intraosseous ganglion or a post-traumatic cyst."
In 2007 and 2008, file records showed that the worker was treated by an orthopaedic specialist in Toronto that specialized in foot and ankle problems.
On October 22, 2008, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor noted that the most likely diagnosis related to the compensable injury was a lateral ankle sprain. There was also an osteochondral defect of the medial talar dome. The medical advisor indicated that there was an ongoing cause/effect relationship. It was noted that the worker still had ongoing pain and loss of function and the prognosis for full recovery would be poor. The worker was cleared for sedentary duties with a list of restrictions.
A WCB physiotherapy consultant noted in a memo to file that the worker was scheduled for a functional capacity evaluation ("FCE"). At this time, the worker reported symptoms about his anterior left ankle, about the left knee, the right hip and the right low back. He reported symptoms from his left heel into the shin and knee. The worker stood with most of his weight on his right lower extremity to attempt FCE activities. The worker stated that all activities made his left ankle sorer. The FCE did not produce enough data to provide objective meaningful restrictions.
On June 23, 2009, the worker was assessed at the WCB's Pain Management Unit ("PMU").
On August 28, 2009, the worker was seen by a WCB physiotherapy consultant for the purposes of establishing a Permanent Partial Impairment ("PPI") rating for the left ankle. The worker indicated that he had constant pain in the left ankle independent of position or activity. He reported tripping a few times due to the left ankle giving out. The worker was concerned with his right hip and left knee pain that he related to the changes in his gait due to his left ankle condition. Following the assessment, the consultant recommended a PPI of 3.00%.
At a case conference held on August 27, 2009, it was determined by the PMU consultants that the worker would be able to successfully return to work with appropriate restrictions.
A doctor's progress report dated January 29, 2010 indicated decreased range of motion in the right hip. Physiotherapy was recommended.
On February 1, 2010, the worker advised the WCB that he was having difficulties with his right hip and back because of his left foot difficulties. On February 9, 2010, the worker advised his WCB case manager that his right hip and low back started to bother him in 2006 shortly after his injury.
On February 17, 2010, the WCB case manager wrote to the worker's treating physician for a narrative report to determine whether a relationship existed between the worker's current right hip and back complaints to the compensable injury.
In a response dated March 8, 2010, the treating physician noted that the worker recently presented with pain in his right hip and low back. From the clinical examination, the physician concluded that the main cause of his pain was the overuse of that limb as a compensatory mechanism for his inability to properly bear weight on his left lower limb as a result of the painful left foot bone cyst.
A WCB medical advisor reviewed the file on April 9, 2010. In the opinion of the medical advisor, the medical information currently on file only supported a diagnosis of non-specific right hip and non-specific low back pain. It was felt that the information provided by the treating physician on March 8, 2010 did not substantiate a relationship between the June 1, 2006 compensable injury and the worker's current reported right hip and low back pain. The medical advisor based his opinion on literature contained in the Workplace Safety and Insurance Appeals Tribunal Medical Discussion Paper dated August, 2005 entitled "Symptoms in the Opposite or Uninjured leg."
On April 21, 2010, a WCB medical advisor commented as follows:
"In my October 22, 2008 [memo] I indicated there was an osteochondral defect of the medial talar dome. From further review of imaging studies, I could not find this reported anywhere. It may have been suspected after an assessment by the sports medicine physician at [clinic], but never confirmed on CT, MRI, MRI arthrogram, or bone scan. There was a cyst to the medial malleolus and multiple studies have all reported it as such. It has since been learned that this cyst was present on an x-ray taken of this ankle on September 17, 1985 so obviously it was not related to the June 2006 injury. My opinion regarding chronic pain after an ankle sprain was largely based on the presence of the osteochondral defect. With this current review, there is no structural abnormality in this ankle to account for the worker's ongoing ankle pain and disability."
On May 10, 2010, the WCB case manager advised the worker that following consultation with a WCB medical advisor, the decision was that his right hip and back difficulties were not related to his 2006 left ankle claim.
Left knee x-rays dated June 24, 2008 revealed: "A focal area of sclerosis located centrally amid the proximal metadiaphyseal from the left tibia is felt to represent a bone island. The examination is otherwise unremarkable. No significant degenerative change is noted. The knee is in neutral position."
In a report dated September 24, 2008, a specialist reported that he saw the worker in May 2008 for complaints of left knee problems. The worker complained of knee pain that he described as "feeling like his old meniscal injury." The worker described pain at night and did not describe any recent trauma that might have preceded the increase in his knee pain. The specialist noted that he only saw the worker on the one occasion and could not comment on his prior history.
On July 6, 2009, the treating physician advised the WCB that the worker was only seen once for his left knee problem and at that time was referred to a clinic. There were no previous records or x-ray reports for this particular medical problem.
In a decision dated May 17, 2010, the WCB case manager advised the worker that the WCB was unable to accept responsibility for his left knee difficulties as being related to his June 1, 2006 left ankle claim. The decision was based on the worker's four month delay in seeking medical attention after the date of his injury and not reporting his knee difficulties to his employer.
On June 15, 2010, a consultant from the WCB's PMU indicated that the June 2006 workplace injury was a left ankle sprain and that the worker had recovered from the sprain. Therefore the worker's current symptoms of anxiety and depression diagnosed as adjustment disorder would not be related to the ankle sprain from which the worker had recovered. The consultant also indicated there was no compensable psychological diagnosis.
On August 13, 2010, a radiologist reported on imaging studies that were done in 2007 and 2008. The consultant's impression was:
"Multiple examinations over a period of time have demonstrated stability of non-aggressive lesion within the medial malleolus. There is continuity with the joint space, accounting for the small amount of air within the lesion demonstrates (sic) at CT. Appearance is consistent with an interosseous ganglion or post-traumatic cyst. Multiple images have demonstrated a tiny cystic osteochondral lesion relating to the medial talar dome, stable in size over time. There is attenuation if not frank disruption of the anterior talofibular ligament. The other components of the lateral ligamentous complex are all well visualized and intact. No tendinous abnormality is evident."
A WCB orthopaedic consultant examined the worker's left foot and ankle on September 29, 2010. The consultant noted that the subjective symptoms in the left ankle exceeded the objective clinical findings. The bone lesion of the distal left tibia was probably not responsible for any current symptoms. There was no bone tenderness in the location of this bone lesion. The worker probably had psoriatic arthritis. Examination of the left knee, the back and right lower limb was not permitted and examination findings were lacking for those anatomical areas.
On October 6, 2010, the WCB orthopaedic consultant outlined the following opinions:
- the initial diagnosis of the June 1, 2006 compensable injury remained a strain of the left ankle.
- the natural history of the left ankle strain would be spontaneous resolution over a few months with no residual adverse effects.
- medical assessment had failed to account for the current symptoms in the left ankle and symptoms far exceed any abnormal clinical findings. It was not possible to define any restrictions related to the workplace injury of June 1, 2006.
- it was more probable that the left ankle pain and multiple other joint pains were related to a generalized joint pathology such as psoriatic arthritis.
In a decision to the worker dated October 7, 2010, the WCB case manager indicated that after review of all medical information, the WCB was unable to attribute his ongoing left ankle difficulties to the workplace injury of June 1, 2006. The case manager outlined the view that there had been sufficient investigation and conclusion to indicate the presence of the bony cyst was not related to the workplace injury and was not an active pain generator. She referred to the opinion of the WCB orthopaedic consultant that the diagnosis related to the June 1, 2006 accident was a strain of the left ankle and that the strain would resolve over a few months with no residual adverse effects. The worker was advised that medical expenses would be covered until October 31, 2010 related to his left ankle and wage loss benefits to November 30, 2010.
On October 25, 2010, a worker advisor appealed the WCB's decisions related to the worker's left ankle and left knee and right hip difficulties. The worker advisor referred to specific reports on file to support the position that the worker had not recovered from the effects of his June 1, 2006 compensable injury. The worker advisor also outlined the position that there was a causal relationship between the worker's left knee, right hip and low back difficulties and the 2006 compensable injury based on a report from an occupational health physician dated September 22, 2010.
In a report to a worker advisor dated September 22, 2010, an occupational health physician stated that the worker's gait and weight bearing had been definitely altered by his ankle injury resulting in considerable left knee and right hip pain and dysfunction. The specialist noted that the worker had ACL repair to his left knee in 1995 and the knee was stable and fully functional without impairments until the June 2006 injury. There was no clear indication that the left knee sustained direct injury but it became gradually more painful in the weeks and months post-injury with walking, etc. which was considerable given his line of work in construction. In hindsight, his return to activities was premature given the underlying ankle instability. It was felt that the worker's right hip pain complaints were myofascial in nature, from hypertonic gluteal muscles and quadratus lumborum that sustain greater loading due to his significant gait abnormality and reliance on his right lower extremity to off load weight from his left lower leg. The area of pain complaint developed gradually subsequent to the 2006 injury event. But for his left ankle injury, the worker would not have developed his right hip/low back complaints, which constitute, by his estimate 40% of his overall pain impairments.
In a submission to Review Office dated November 26, 2010, an advocate for the employer outlined the view that the actual workplace injury was an ankle sprain/strain and there were no other compensable conditions to explain the lengthy duration of the claim. The advocate agreed with the WCB that there was no longer a need for medical treatment and there was no longer a disability related to the original workplace accident and injury.
On January 18, 2011, Review Office determined that the worker's right hip and low back difficulties were not related to the compensable injury and that the worker's left knee difficulties related to the compensable injury had resolved. It confirmed that the worker was not entitled to medical aid benefits beyond October 31, 2010 or to wage loss benefits beyond November 30, 2010. In making its decisions, Review Office noted that the worker had recovered from his left knee difficulties immediately following the June 1, 2006 accident and that his need for medical treatment two years later was not related to those difficulties.
Review Office noted that the worker complained of hip and back difficulties in 2010, approximately 3 or more years following the date of accident. Review Office acknowledged that the worker was limping in part as a result of his compensable injury but also felt that if this altered gait resulted in the worker experiencing secondary injuries, then these injuries would have been present at an earlier time, not multiple years after the accident. It therefore was unable to establish that the worker's left knee difficulties experienced in 2008, and his right hip and low back difficulties were predominantly attributable to the compensable injury.
Review Office considered the opinion of the attending physician outlined on March 8, 2010. It did not accept the bone cyst as being caused by or aggravated/enhanced as a result of the workplace accident.
Review Office could not establish a relationship between the diagnosis of an ATFL tear and the workplace accident. It accepted the opinion of the WCB orthopaedic specialist that the worker's compensable injury involved a strain of his left ankle and that he had recovered from the effects of the compensable injury.
On January 25, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
This case deals with a request by the worker for ongoing benefits. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
This appeal also deals with the relationship between an initial workplace injury and subsequent injuries/conditions that are possibly related to or caused by the initial workplace injury. In this regard the Board established Policy No. 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which may be applicable. This policy provides, in part, that a further injury occurring after a workplace injury is compensable where the cause of the further injury is predominantly attributable to the compensable injury.
Worker's Position
The worker attended the hearing and reviewed his case including the initial injury, treatments and other injuries that developed.
The worker described the June 1, 2006 accident and drew a sketch to aid his explanation (Exhibit 1). He was injured when he stepped on to a portable stairway which was not properly attached to a trailer causing him to fall approximately five to six feet. He obtained medical attention including an x-ray of his ankle and was told he had sprained his ankle. He was authorized to take 3 days off and then returned to work. He worked until September, 2006. He asked for light duties but was told to do his job or go home.
Regarding the injury to the left ankle, he expressed the opinion that the issue of the type of injury has never been addressed. He noted that he has a cyst on his ankle that when found, was considered to be the cause of all his problems. As a result he feels nobody looked at the injury. In his opinion, the injury to the left ankle is still there. When asked whether he injured his left knee in the workplace accident, the worker advised that "'it was injured minorly in the accident." He said the discomfort lasted for a week. The worker advised that "It wasn't until six or eight months later, when the gait that I have because of my walking, my knee started to get worse." He also advised that he never received a diagnosis for the knee. He said his current symptoms involve swelling of his left leg including the left ankle and left knee. He said the leg feels very hot and he gets a blackness like a bruising which lasts for two or three days. He acknowledged that on some occasions only the knee swells up, but usually both the ankle and knee swell up together.
Regarding the right hip, the worker advised that the right hip was not injured in the June 1, 2006 workplace accident. He said the hip pain began in late 2007. He said the hip injury is more of a muscle strain than anything. He attributed the injury to the use of the right leg. He said "I'm throwing…another 90% of my left side onto my right side." He said the physician recommended physiotherapy as treatment for the hip injury.
The worker advised that he did not injure the low back in the June 1, 2006 accident. In response to a question about when the low back symptoms started the worker replied "Right after the left knee, like, it kind of progressed up the left knee. Like in late 2007, 2008, it kind of, once my hip got sore then it was a combination of the hip, lower back type of thing." He described the symptoms in his lower back as stiffness, soreness, unable to bend, unable to lift. He felt that the lower back and hip are related conditions. When asked about psoriatic arthritis, the worker said that his physician does not think he has this condition. The worker told the panel he would like his condition to be fixed. If it cannot be fixed, he wants somebody to take responsibility and either retrain him or get him into a different job. He said that he is under the impression that WCB cannot figure out what is wrong, so they just tell him that it's healed and to go back to work.
Analysis
There were four issues to be addressed by the panel.
1. Whether the worker's left knee, right hip and lower back difficulties are related to the June 1, 2006 compensable injury?
For the worker's appeal on this issue to be successful, the panel must find that the worker injured his left knee, right hip and lower back at the time of the accident or that the cause of these injuries was predominantly attributable to the initial workplace injury. The panel was not able find a relationship between these injuries and the initial workplace injury.
Left Knee:
The panel finds that the worker did not sustain a significant and lasting injury to his left knee in the June 1, 2006 accident. The panel bases this finding on the worker's evidence at the hearing, including his description of the mechanism of injury, and the October 10, 2006 x-ray report which found that no significant bone or joint abnormality was demonstrated.
The worker indicated that the left knee symptoms became more dominant about 4 months after the workplace injury. He attributed the increase in symptoms to his altered gait resulting from the left ankle injury. The panel finds that the worker's left knee injury did not arise from an altered gait and is therefore not caused predominantly by the initial workplace injury as required by Policy No.44.10.80.40. The panel finds it unlikely that the left knee would be overworked or stressed by the altered gait caused by the injury to the ankle of the same leg.
The worker described swelling and bruising of his left leg including his left knee. No diagnosis was offered for this condition. The panel is not able to attribute these symptoms to the June 1, 2006 left ankle injury.
The panel finds, on a balance of probabilities, that the worker's left knee difficulties are not related to his June 1, 2006 workplace injury.
Right Hip:
The worker has complained about right hip pain which he attributes to his left ankle injury. He stated that the hip pain first started in late 2007. He feels this is caused by his altered gait which resulted from the June 1, 2006 left ankle injury.
The panel is not able to find a relationship between this condition and the initial workplace accident. An occupational health physician has diagnosed the worker's pain complaints arising from the right hip as myofascial in nature, from hypertonic gluteal muscles and quadratus lumborum that sustain greater loading due to his gait abnormality and reliance on his right lower extremity to off load weight from his left lower leg. However, the panel finds, on a balance of probabilities, that the worker's left ankle injury resolved before the right hip symptoms were noted and that any altered gait was not due to the left ankle injury. Accordingly, any symptoms that arose from the altered gait were not related to or caused by the June 1, 2006 injury. The requirements of Policy No. 44.10.80.40 are not met as the cause of the right hip symptoms is not predominantly attributable to the left ankle injury.
Right Lower Back
The worker complained of right lower back pain. The panel notes that the occupational health physician comments that but for the left ankle injury, the worker would not have developed his "right hip low back complaints." Based on the worker's evidence at the hearing, the panel finds that the worker did not injure his right lower back in the June 1, 2006 accident. The panel notes that complaints of right lower back pain were first noted in 2010 and finds that the left ankle injury resolved long before the reports of right lower back pain were noted.
The panel finds, on a balance of probabilities, that the worker's right lower back difficulties are not directly or indirectly related to the June 1, 2006 workplace injury and are not compensable under Policy No. 44.10.80.40.
2. Whether the worker's current left ankle difficulties are related to the June 1, 2006 compensable injury?
For the appeal to be successful, the panel must find a causal relationship exists between the worker's current left ankle symptoms and the June 1, 2006 injury. The panel was not able to make this finding. The panel finds that the worker had recovered from the June 1, 2006 injury.
In making this decision, the panel relies upon the opinion of the WCB orthopedic consultant set out in examination notes dated September 29, 2010 and a note to file dated October 6, 2010. The medical advisor examined the worker's left ankle and found range of active motion of flexion, extension, inversion and eversion was seen to be similar to the right side, that ankle drawer testing did not demonstrate any instability, pulses and perfusion of the left foot were normal, and there was no sensory disturbance in any part of the foot on light touch or pinprick.
In a note to file dated October 6, 2010, the orthopedic consultant opined that:
1. After much investigation, the initial diagnosis of injury of June 1, 2006 remains a strain of the left ankle.
2. The natural history of a strain of the left ankle would be spontaneous resolution over a few months with no residual adverse effects.
3. Medical assessment has failed to account for current symptoms in the left ankle.
4. It is not possible to define any restrictions related to the workplace injury of June 1, 2006.
5. It is more probable that the left ankle pain and multiple other joint pains are related to a generalized joint pathology such as psoriatic arthritis.
The panel accepts these findings and concludes that the worker's current left ankle difficulties are not related to the June 1, 2006 injury.
Although the WCB orthopedic consultant did not examine the worker until September 29, 2010, the panel notes that his findings are similar to the findings of the orthopedic surgeon associated with the Foot and Ankle Specialty Clinic who examined the worker in May 2008. This orthopedic surgeon examined the worker's ankle, reviewed the May 26, 2008 MRI report and concluded that "Clinically, his pain is out of keeping with the pathology identified on the MRI. I am still at a loss to explain why he is having so much pain." He noted that the worker could continue with sedentary duties. The MRI referenced by the orthopedic surgeon found no significant abnormality but did note the existence of degenerative changes of the talonavicular joint.
The panel finds, on a balance of probabilities, that the worker's current left ankle difficulties are not related to the June 1, 2006 accident.
3. Whether the worker is entitled to medical aid benefits beyond October 31, 2010?
For the worker's appeal of this issue to be successful, the panel must find that the worker's current medical condition is a result of the June 1, 2006 accident and that he requires further treatment and medical aid as a result. Given the panel's decisions on issues 1 and 2 above, the panel finds that the worker is not entitled to medical aid benefits beyond October 31, 2010.
4. Whether the worker is entitled to wage loss benefits beyond November 30, 2010?
For the worker's appeal of this issue to be successful, the panel must find that the worker suffers a loss of earning capacity as a result of the June 1, 2006 injury. The panel was not able to make this finding. The panel finds that the worker's current inability to work and resulting loss of earning capacity is not related to the June 1, 2006 workplace injury and accordingly the worker is not entitled to further wage loss benefits on this claim. This decision flows from the panel's decisions on issues 1 and 2 above.
The worker's appeal is dismissed on all issues.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 23rd day of March, 2011