Decision #39/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was not entitled to benefits beyond February 23, 2010 as it was felt that his ongoing right lower leg difficulties were unrelated to his compensable accident of February 23, 2010. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through his union representative. A hearing was held on February 9, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond February 23, 2010.

Decision

That the worker is entitled to benefits beyond February 23, 2010, specifically wage loss benefits from March 8 to 19, 2010 and physiotherapy treatment.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right leg injury that occurred at work on February 23, 2010. The worker advised the WCB that he was lifting tables and putting them away when one of the tables fell onto his right leg. At the time it happened, his right leg hurt but it did not seem too bad at first. The pain then returned and it got worse each day. He saw a doctor on March 3, 2010 and was referred to a clinic. X-rays were taken and no significant abnormality was identified. He was told to go home and stay off work.

Medical information confirmed that the worker sought medical attention on March 3, 2010. The physician noted that the worker had presented on occasion since October 2009 with right leg and knee pain. The diagnosis was a right knee strain. On March 17, 2010, a WCB adjudicator spoke with the treating physician's office. She was told that the worker came in on March 3, 2010 with lateral right knee pain and there was no mention of a work-related injury.

A clinic report dated March 6, 2010 indicated that the worker's entrance complaint was right leg pain. The worker had a one month history of pain from his right lateral knee and down his lateral lower leg. The report indicated no known mechanism of injury and no swelling. The worker had a past medical history of a right lower leg fracture in 1991. The diagnosis was sciatica right leg.

A clinic report dated March 10, 2010 indicated that the worker had pain for one month that went down his left leg up to the ankle. The report stated that two weeks ago, the worker dropped a table on his leg. The diagnosis was contusion/soft tissue injury.

On March 12, 2010, a physiotherapy report outlined the worker's description of incident as "table collapsed." The diagnosis was a contusion to the right anterior/lateral shin.

The worker spoke with a WCB adjudicator on March 16, 2010. The worker reported that the table leg collapsed and fell on his right low leg, just below his right knee. He felt pain right away when it happened. There was a witness to the accident. He continued to work his regular job duties in pain. The pain was just below his right knee and went down his right knee and radiated to his right ankle area.

On April 6, 2010, a WCB medical advisor reviewed the file information and provided the opinion that the most likely diagnosis to come from the reported mechanism of injury would be a lower leg contusion. It would be quite sore right after the injury and might get worse over the next day or two and then would gradually get better. The worker, however, saw two doctors after the injury but did not mention a workplace injury. The physician from the sports injury clinic was now querying whether the low leg pain is coming from the shin, but may be coming from the sciatic nerve which would not be related to the accident. There was no diagnosis on file that would be related to the injury that would result in disability. In retrospect, if the diagnosis all along was sciatica, this would not be related to the accident.

On April 6, 2010, primary adjudication advised the worker that based on the file information including the nature of the injury, clinical medical findings and a review by a WCB healthcare provider, the WCB was unable to establish a relationship between the worker's ongoing right leg difficulties and a workplace accident occurring February 23, 2010. On May 21, 2010, the worker's union representative appealed the decision to Review Office.

On May 26, 2010, Review Office returned the file back to primary adjudication to revisit/clarify its April 6, 2010 decision.

On May 28, 2010, primary adjudication advised the worker that his claim for a workplace injury occurring on February 23, 2010 was confirmed; however, the decision not to accept responsibility for his ongoing right leg difficulties in relation to the accident had not changed. On June 2, 2010, the union representative appealed the decision to Review Office.

In a decision dated June 15, 2010, Review Office confirmed that the worker was not entitled to benefits beyond February 23, 2010. Review Office was of the opinion that:

  • the distribution of pain as reported by the worker to his treating physician on March 3, 2010 was, on a balance of probabilities, unrelated to the February 23, 2010 compensable injury. There was also no report of a workplace injury when the initial medical attention was sought;

  • when seen for medical treatment on March 6, 2010, a description of a workplace accident was not documented;

  • on March 6, 2010, the worker reported a one month history of right lateral knee pain which extended down the lateral part of his lower leg. Considering that the workplace accident occurred on February 23, 2010, the worker's report of symptoms predated the workplace accident;

  • it did not accept the diagnoses of a knee strain or sciatica as the worker's right knee and back were not involved in the mechanism of injury;

  • the worker was able to continue working following the February 23 accident. Considering the compensable injury sustained, the worker's need to stop work on March 8, 2010 and the assignment of restrictions on March 10, 2010 were not related to the compensable injury;

  • although the worker's supervisor was aware of the worker's right leg difficulties, no work related cause was initially reported by the worker.

On July 19, 2010, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on February 9, 2011.

Prior to determining the issue under appeal, the appeal panel requested additional information from the worker's treating physician. A report from the physician was later received and was forwarded to the interested parties for comment. On March 24, 2011 the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The issue in this case is whether the worker is entitled to wage loss benefits beyond February 23, 2010.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. 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 time as the worker’s loss of earning capacity ends.

Worker's Position

The worker was unable to attend the hearing but was represented by a union representative. The representative provided the panel with a written submission and made an oral presentation.

The representative noted that many of the issues on the claim are related to a delay in reporting the accident. He submitted that the delay resulted from the worker's honest belief that the pain would go away.

The representative disagreed with the opinion of the WCB medical advisor. He noted that the medical advisor did not see the worker and submitted that she was providing a series of assumptions based on a file review. He noted that the medical advisor commented that "Bruises to the shin can take somewhat longer to resolve because of anatomy, so maybe 2 to 4 weeks, maximum, provided there are no complications." The representative submitted that the WCB did not take into account the medical advisor's comment that complications could extend beyond the 4 week time-frame.

The representative was opposed to the WCB position that the claim was acceptable but that the resulting injury had rectified itself the day of the accident. He submitted that a reasonable approach once the fact of the accident was accepted is to determine which costs fairly related to the accident. He said that expenses for physiotherapy and some time off work would be a fairer assessment.

In answer to a question from the panel regarding the diagnosis for the February 23, 2010 injury the representative said "…there was a contusion to the shin,…and that the resulting pain, and the resulting time loss, which began on March 8…were a result of that injury, and that the related need for physiotherapy results from the injury."

Employer's Position

The employer was represented by an advocate who did not attend the hearing but provided a written submission dated January 31, 2011. In the submission the employer representative indicated that the employer agrees with the Review Office decision. The representative noted that the worker reported that his right leg hurt at the time of the February incident but that the "…pain went away for a while but then returned." She notes that the WCB medical advisor indicated this is not consistent with the natural history of a contusion. She submitted that the worker's claim was not denied because of delays in reporting or seeking medical treatment, but was denied as the pain complaints were not related to the compensable injury.

The employer's representative provided a further submission on March 15, 2011 in response to new information submitted by the worker's treating physician. She reviewed the information provided and submitted that the new information validates the employer's position that the worker's pain complaints pre-existed, and were not related to, the compensable injury of February 23, 2010.

Analysis

For the worker's appeal to be successful, the panel must find that as a result of the February 23 workplace injury, the worker suffered a loss of wages and required medical benefits after February 23, 2010. The panel was able to make this finding. The panel finds, on a balance of probabilities, that the worker is entitled to benefits beyond February 23, 2010 and specifically that the worker is entitled to wage loss benefits from March 8, 2010 to March 19, 2010 and to physiotherapy treatment.

In support of the decision that the worker is entitled to the specified benefits, the panel relies upon the report of the physician from the sports injury clinic who examined the worker on March 10, 2010. This physician noted mild tenderness in the proximal fibula and diagnosed the worker with a "contusion/soft tissue injury." The panel also relies upon the assessment of the physiotherapist who treated the worker on March 12, 2010. The physiotherapist also noted tenderness in the shin, diagnosed the injury as a contusion to the right anterior/lateral shin and indicated that the worker was disabled beyond the date of the injury.

The panel has considered the comment of the WCB medical advisor that "Most bruises resolve in a week or so. Bruises to the shin can take somewhat longer to resolve because of the anatomy, so maybe 2 to 4 weeks, maximum, provided there are no complications." The panel determined that the worker was not able to work for the period from March 8 to 19, 2010 and notes this falls within the 4 week period noted by the WCB medical advisor.

The WCB has accepted the worker's claim for a right shin contusion and the panel finds that the worker is entitled to benefits arising from this injury, as previously noted. The panel is satisfied that the extent of injury was a right shin contusion. The mechanism of injury provided by the worker was that of a table collapsing and hitting his right leg just below his right knee. The panel is unable to relate these symptoms experienced by the worker in the area of the knee and above the knee to the contusion or to that mechanism of injury. The panel is also aware that the worker sought medical attention for symptoms with his right leg prior to and subsequent to this injury. The panel is unable to attribute those symptoms or treatments received for the right leg to this injury. The panel notes there is an underlying condition at play and finds that it was neither caused nor aggravated by the compensable injury.

For the reasons noted above, the worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of April, 2011

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