Decision #35/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for a right ankle injury that occurred at work on June 24, 2010. His claim for compensation was accepted based on the diagnosis of a soft tissue injury. By July 21, 2010, the worker was deemed fit to return to his regular duties by his treating physician.

On August 29, 2010, the worker claimed that he heard a pop in his right ankle when leaving his home while on his way to work. On October 8, 2010, primary adjudication determined that the August 29, 2010 injury was the result of an accident that did not arise out of and in the course of the worker's employment. The decision was overturned by Review Office on October 29, 2010. Review Office was of the opinion that the worker had an ankle at risk that pre-disposed him to further injury. The employer disagreed with Review Office's decision and an appeal was filed with the Appeal Commission. A file review was held on February 2, 2011 to consider the matter.

Issue

Whether or not the worker's right ankle injury occurring August 29, 2010 is related to the compensable injury of June 24, 2010.

Decision

That the worker's right ankle injury occurring August 29, 2010 is related to the compensable injury of June 24, 2010.

Background

On June 29, 2010, the worker reported to the WCB that he "rolled his ankle while underground" on June 24, 2010.

The worker was seen by a physician for treatment on June 28, 2010. The description of accident was "twisting ankle during work". The worker had swelling, tenderness and bruising on the lateral side of his right ankle. He was prescribed a short leg cast as well as medication. The diagnosis was a right ankle strain.

On July 12, 2010, the worker's claim for compensation was accepted based on the diagnosis of a soft tissue ankle injury.

When seen for treatment on July 20, 2010, the attending physician outlined his objective findings as lateral malleolar swelling, range of motion was full, strength was 5/5 of the right and left and sensation was normal. The physician indicated that the worker was fit to return to his regular work duties as of July 21, 2010 and to decrease use of his right leg. The worker returned to his regular work duties on July 21, 2010.

On August 30, 2010, the worker left a message on the adjudicator's voice mail indicating that he rolled his ankle that day and was off work for a week.

On August 31, 2010, the worker spoke with the adjudicator and advised that he was leaving his home to go to work on Sunday, August 29, 2010 and when he was walking towards his truck, he felt a pop and could not weight bear on his ankle. He crawled to his truck and drove himself to the hospital. The ER doctor told him that he had tissue damage only. X-rays were taken but nothing was broken. The ER doctor told him to be off work for a week. The worker said he had swelling in his ankle every day since his return to work. He made ongoing complaints to his co-workers only and did not complain to a foreman or supervisor.

The worker was seen at a healthcare facility on August 29, 2010. The report stated the worker had a twisting injury right ankle with pain and swelling. He tore a ligament six weeks ago. Examination of the right ankle showed no swelling, tenderness on the lateral aspect of the ankle and good range of motion, mild limping. The diagnosis was an ankle sprain.

On September 16, 2010, the adjudicator spoke with a co-worker who confirmed that the worker was having problems with his ankle ever since June and that the worker's ankle would be swollen at the end of their shift. He said the worker was also limping while they were working.

On September 21, 2010, the WCB case manager noted that he advised the worker that the secondary accident which made him unfit for his work duties happened outside the workplace. Up to this point in time, the worker was able to perform his duties even with discomfort. Therefore, it was the non workplace injury that prevented the worker from being able to perform his work duties. The worker indicated that there was no new injury as he was just "walking" when he noticed an increase in ankle pain. He did not do anything the night before to aggravate his injury.

In a decision dated October 8, 2010, it was indicated to the worker that based on the available information, his present disability was the result of an accident that did not arise out of and in the course of his employment. The worker appealed the decision to Review Office.

On October 29, 2010, Review Office determined that there was a relationship between the worker's August 29, 2010 right ankle injury and the injury he sustained on June 24, 2010. Review Office outlined the opinion that on August 29, 2010, the worker had ongoing problems with his ankle which was not unreasonable or unusual considering the medical evidence for the type of injury the worker incurred in June 2010. There was confirmation from a co-worker that the worker was having ongoing ankle symptoms beyond his return to work in the second week of July 2010. Review Office determined that the worker had an ankle at risk and was pre-disposed to further injury. It was of the opinion that WCB policy 44.10.80.40 applied to a claim of this nature and that the June 24, 2010 injury contributed to or played a role in the August 29, 2010 injury. Review Office's decision was appealed by the employer and a file review was held.

Reasons

Chairperson Walsh and Commissioner Walker:

The issue before the Panel was whether or not the worker's right ankle injury which occurred on August 29, 2010 was related to the compensable injury which occurred on June 24, 2010.

The matter came before this Panel by way of a Review. The Panel reviewed and considered all of the file material including, among other things, the claims adjudicator's notes to file; the claims adjudicator's and Review Office's decisions; written submissions by the employer and worker; medical reports; and claim notes to file made by WCB staff.

Facts

In reaching our decision, we accept and rely on the following facts.

The worker was originally injured on June 24, 2010, when he stepped on a piece of loose rock on the ground which was balanced on another rock making it unstable. The rock went sideways as he stepped on it causing him to lose his balance and roll his right ankle. The initial medical report on file from June 28, 2010 indicated that the right ankle had swelling, tenderness and bruising on the lateral side.

A short leg cast was applied and he was prescribed painkillers. It was determined that he was disabled from work for an indefinite period of time and was not capable of performing alternate or modified duties. On June 29, 2010, he was sent to the hospital for a second opinion. Right ankle swelling, bruising and tenderness was confirmed. He was prescribed more pain medication. It was also noted that his ankle was put in an air splint.

The worker returned to work, performing modified duties from June 28 to July 5.

On July 5, 2010, he returned for medical follow-up. He reported pain on his right foot on standing. He was limping. Objective findings included swelling and mild tenderness on the lateral malleolus. He was prescribed physiotherapy and analgesics. He was deemed capable of returning to modified work with a number of restrictions including restrictions regarding the amount of weight he could lift, pushing, pulling, no squatting, climbing or standing allowed.

On July 20, 2010, the worker returned for medical treatment. He continued to complain of swelling and pain in his right ankle. Objective findings included lateral malleolus swelling. He was prescribed physiotherapy and painkillers. He was determined to be capable of returning to work subject to the following restriction: decreased use of the right leg for a period of two weeks.

He was back performing full duties on July 21, 2010 notwithstanding the physician's advice to minimize or decrease the use of his right leg for another two weeks.

On August 29, 2010, the worker was leaving his house to go to work when on his way to his vehicle, he felt a pop in his right ankle and could not bear weight. He made it to his truck and drove himself to the hospital where he was advised to take a week off work. He was diagnosed with having suffered an ankle sprain.

The specific reference to what transpired on August 29 and the events preceding the injury sustained that day are documented as follows:

In a claim note to file dated August 30, 2010, the adjudicator wrote:

"I called the worker after he left a message on the ADJ's voice mail stating that he rolled his ankle today and is off work for a week.

I left a message on his voice mail as he did not answer.

– New Injury?"

The claim note of August 31, 2010 states:

"Worker called in to advise that on Sunday, Aug 29, 2010 he was leaving his house to go to work. He was just walking outside to his vehicle to go to work. He just felt a pop and he could not weight bear at all.

He crawled to his truck and drove himself to the hospital… the ER doctor told him that he had tissue damage only. X-rays were taken and nothing was broken. ER doctor advised to be off a week.

Worker has indicated that his ankle has been swelling up after work every day since his return to work.

Some days it swells up more than others. Worker has made ongoing complaints to co-workers only. Did not complain to foreman or supervisor. He did not want to be demoted."

A memorandum to file dated September 3, 2010, notes:

"Questionnaire - RECURRENCE …

3. How are you managing with regular job duties since RTW? If difficulties with what tasks/who is aware of difficulties?

  •  21/07/10 worker was authorized to RTW on full duties
  •  worker indicated that he was managing okay. At the end of the day, ankle would typically swell up. He had not seen a physician since his RTW.
  •  worker indicated that he did not see the nurse at work as he is not there at beginning or end of the shift.
  •  worker indicated that his co-worker [sic] have commented on his limping.

5. Any new accident at home or at work?

  • 29/08/10 At 5:00 am as the worker was getting ready to leave for work, he forgot his lunch inside. He ran back into the house and as he was coming back he experienced a popping sensation in the bottom if [sic] his ankle. He was taking a normal step (did not roll it). Worker sat in the truck for a few minutes and then elected to seek medical attention.
  • He went to … hospital. DX: sprained ankle. RX: Naproxen.
  • Worker called work to advise that he was unable to come in, but the phone was off the hook. He advised security…
  • 02/09/10 – Pan Am. Worker was told that he probably RTW too soon and was advised that it may be another two months before he'd be ready to RTW at full duties… was referred for physio. Advised that he required an ankle brace."

In his written submission to the Review Office dated October 20, 2010, the worker stated that his ankle had not been the same since his injury of June 24, 2010. He indicated that although he returned to work attempting to do his regular duties as of July 21, he continued to have problems with his ankle. His submission states:

"I toughed it out and @ the end of every shift my ankle was swollen, & sore, but I eventually hoped that it would go away. Everyone of my co-workers noticed me limping at the end of the every shift and even some of them saw the swelling. I would go home every evening and ice my ankle and elevate it, this would somewhat help. On August 28, at the end of my shift I could hardly bear weight on my leg but went home, iced and elevated my ankle. When I woke up in the morning of August 29, 2010, I was rushing out the door and felt a popping pain in my ankle which was caused by the increased swelling in my ankle from the work days before. I did not twist, roll or do anything that morning to irritate my injury. It was due to the swelling from the day before."

The medical reports indicate that on August 29, 2010, the worker told the triage nurse that he had twisted his right ankle six weeks before and that he advised that he'd had increased pain since the morning. The triage note indicated that he was limping and that his right ankle was swollen.

There is a claim note to file from the Review Office dated October 29, 2010 which indicates that the worker called and wanted Review Office to know he never advised any physician that he incurred a "twisting injury on August 29". He said he told doctors that the twisting injury was the original injury but that that was not the way he described the injury of August 29. He felt that there may have been some confusion on August 29 and that the doctor thought he was referring to the new injury whereas he was referring to the original injury.

The doctor's report for the examination conducted on August 29, 2010, notes that the patient reported returning to emergency on August 29 after awakening with swelling and pain to the right ankle. The objective findings included tender lateral anterior aspect of the ankle and limping.

Finally, there is a note on file dated September 16, 2010, recording a conversation with one of the worker's co-workers. The co-worker was asked what he was aware of regarding the worker and ongoing difficulties with his ankle. In response, the co-worker stated that "he was aware the worker was still having problems with his ankle ever since June." He advised that the worker's ankle would be swollen at the end of their shift and that the worker was limping while they were working. He stated that the worker probably should not have been back at full duties from what he could see.

Analysis

The employer in filing this appeal stated that as of July 21, 2010, the employee was fit to return to work full duties and that he worked 23, 11 hour shifts without incident to his ankle.

The employer submitted that although the worker claims he re-injured his ankle running to catch his ride to work it felt that if the ankle was going to be re-injured it would have happened when he was at work.

It is the worker's position that his ankle has not been the same since the accident of June 24, 2010 and that although he did return to full duties on July 21, 2010 his ankle was swollen and sore at the end of every shift. On the night before August 29, 2010, the pain was so bad that he could hardly bear weight on his leg. On the morning of August 29, although he admits that he was "rushing out of the door" that morning, he says he did not twist, roll or do anything specifically to cause an injury and that his ankle simply was not stable as the result of the original compensable injury.

According to the file notes, there is some discrepancy as to whether the worker was "running" or "walking" at the time that the injury occurred on August 29, 2010.

In our view, it does not matter whether the worker was walking or running on August 29, 2010.

We accept the worker's evidence that on the morning of August 29, 2010 his ankle was swollen and painful.

We find that the worker experienced a further injury that day while using an ankle which was not stable and which had residual weakness related to the original injury of June 24, 2010. We note that even though the worker returned to work on July 21, 2010 his ankle, according to the medical evidence was not fully healed. The medical report of July 20, 2010, for example, indicates that the physician cleared the worker to return to work subject to a two week restriction of decreased usage of his right leg.

The worker's evidence as recorded by WCB staff, his written submissions together with the evidence of co-workers indicates that the worker continued to experience residual difficulties and symptoms from the time of the original injury on June 24, 2010, to the date of the second injury on August 29, 2010.

WCB Policy 44.10.80.40 deals with the subject of further injuries subsequent to a compensable injury. The Policy states as follows:

"POLICY PURPOSE

This policy applies to 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. For example, such an injury could arise out of medical surgery related to the original compensable injury.

…

POLICY

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 …

ADMINISTRATIVE GUIDELINES

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 device 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. …" [emphasis added]

Based on our assessment of the totality of the evidence as outlined above, we find, on a balance of probabilities that on August 29, 2010, the worker had residual weakness in the area of his original injury — in his right ankle and that the injury he sustained on August 29, 2010 was related to the compensable injury of June 24, 2010.

Panel Members

S. Walsh, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

S. Walsh - Presiding Officer

Signed at Winnipeg this 24th day of March, 2011

Commissioner's Dissent

Commissioner Finkel's dissent:

As noted above, this appeal deals with whether the worker's right ankle injury of August 29, 2010 is causally related to his earlier compensable injury of June 24, 2010. After careful consideration of all the evidence on file, I am unable to establish a causal connection, and I would therefore grant the employer's appeal on this issue.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, provides in part that a further injury is compensable where the cause of the further injury is predominantly attributable to the compensable injury. The administrative guidelines to the policy suggest that a relationship can be established where the original injury "causes or significantly contributes to the subsequent injury." The guidelines further suggest that "The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury… If the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred."

My reasons supporting my decision follow.

  • The evidence on the file discloses that the worker did suffer an injury to his right ankle on June 24, 2010. Soon thereafter, on June 28, he returned to modified duties, which continued to July 5, 2010. He was then declared fit to return to his regular duties, on a full time basis, as of July 21, 2010.
  • His fitness to return to work was established by his attending physician on July 20, 2010, who was fully aware of the nature of the worker's job duties and the specific diagnosis and condition of the worker's right ankle injury at the time. 
  • The worker was a miner, working underground. He worked in a heavy duty environment, walking and working on uneven terrain, and working with bulky and heavy equipment in 11 hour shifts. File information indicates that the worker was able to complete 23 shifts after his return to full duties, before the second incident took place.
  • The worker reported that near the end of the shifts he noticed some swelling of his ankle. More specifically, there was no mention anywhere on the file of any morning ankle problems or of any ongoing or worsening problems during the early part of his shift. The only evidence on file is that the swelling was an end-of-day event. In my view, this would be anticipated; the ankle was not 100% recovered when he was returned to work, the ankle was being subjected to range of motion and weight bearing (all helpful towards recovery) and the swelling or soreness would be a natural part of the healing process. While the worker did have that swelling, I note that it did not in any way appear to be debilitating.
  • Over several weeks of 11 hour shifts, he did not lose time from work, did not indicate performance issues, and did not seek medical attention once he had returned to full time duties. At the time of his August 29, 2010 incident, there is no indication of any planned future medical appointments in respect of his ankle injury.
  • There is no evidence to support that his ankle was worsening as August 29, 2010 approached. The worker had completed his full 11 hour shift the day before, and there are no specific references on the file to any ankle problems while at home the evening before. In short, there was nothing to suggest that there was anything untoward going on with respect to the worker's right ankle on the morning of August 29, 2010 as a specific carry over from the day before. The worker specifically told the WCB on September 27 that he did nothing the previous evening to aggravate his ankle.
  • On that morning, the worker got up for work, got dressed for work, went out to his truck to go to work, and fully anticipated going to work for his full shift as an underground miner. At this point, there is a variance in how the second incident was described.
    • On August 31, 2010, a memo describes "he was leaving his house to go to work. He was just walking outside to his vehicle to go to work. He just felt a pop and he could not weight bear at all. He crawled to his truck and drove himself to the hospital."
    • On September 3, 2010, the worker's description, on a memo to file, is: "At 5:00 AM, as worker was getting ready to leave for work, he forgot his lunch inside. He ran back into the house and as he was coming back he experienced a popping sensation in the bottom of his ankle. He was taking a normal step (did not roll it). Worker sat in the truck for a few minutes and then elected to seek medical attention."
    • On September 20, 2010, a memo notes: "[The worker] explained he re-injured his right ankle when he ran back to his truck, after forgetting his lunch in the house while he was on the way to work….[The worker] said he felt a pop in the bottom of his ankle and took himself to [the healthcare facility] for treatment."
  • There is no evidence that the worker was experiencing any specific or lingering difficulties with his ankle on awakening that morning. If anything, the ways that the worker described the second injury suggest that the worker's ankle was quite functional, if not essentially healed. He variously describes: walking or running back and forth between a truck and his house prior to his work shift because he had forgotten his lunch at home. The worker further acknowledged that the terrain was uneven. This suggests to me that there was a clear and discrete hazard (on his own property) leading to a mechanism of injury leading to the twisting or turning or popping of his ankle. The time and location of that event were outside the worker's employment, and was the specific cause of the worker's reinjury of his right ankle on that morning.
  • The immediate decision to go to a healthcare facility is certainly suggestive of an acute injury. Of particular note is the report of that visit on August 29, 2010, which notes an entrance complaint of "twisted R ankle," and under subjective notations, "Twisting R ankle, pain swelling…", followed by a diagnosis of a right ankle sprain. In my view, the descriptions at the hospital of a twist-type injury are more consistent with some of the worker's self-reports of a running scenario, rather than the more benign scenario of "just walking" and feeling a pop.
  • As noted earlier, the worker had not sought medical attention once he had returned to his full duties as an underground miner, nor had he planned to seek further medical attention. As such, there is no indication that his ankle was worsening during that time. This is further confirmed by the absence of evidence as to problems the prior day and evening, or the morning of August 29, 2010 prior to the incident. On this basis, I have considerable difficulty in concluding that the worker's earlier injury in any way played a material role in the worker's second injury on August 29.
  • To the contrary, I find that the worker was, for all intents and purposes,"out of claim" by August 29, 2010, given that he had made a substantial and extended return to his full time (and heavy duty) occupation, had no compensable restrictions in effect, and was no longer under any medical care in respect of his June 24, 2010 work injury. Given the minimal findings (or more accurately, self-reports) of swelling near the end of the work day, which would be expected to be the normal course of a healing strain injury, and comparing that to the mechanism of injury on August 29, 2010 (of a twist occurring while walking or running on uneven terrain at home, I find that the original injury neither caused or significantly contributed to the second injury, on a balance of probabilities.

Accordingly, I find that the worker's right ankle injury of August 29, 2010 is not related to the compensable injury of June 24, 2010. The employer's appeal would therefore be successful.

A. Finkel

Appeal Commissioner

Signed at Winnipeg, this 24th day of March, 2011.

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