The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that he was no longer suffering a loss of earning capacity directly related to his compensable injury of February 20, 2008 and was not entitled to ongoing medical treatment. A hearing was held on July 14, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss or medical aid benefits beyond November 8, 2010.

Decision

That the worker is not entitled to wage loss or medical aid benefits beyond November 8, 2010.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left ankle injury that occurred on February 20, 2008 when his left foot became caught between a forklift blade and two floor jacks. The worker's claim for compensation was accepted and benefits were paid accordingly. The worker's ankle injury was diagnosed as a left ankle syndemostic sprain or high ankle sprain by a sports medical specialist on May 28, 2009.

At the recommendation of the sports medicine specialist, arrangements were made for the worker to undergo a six week work hardening program which ran between July 6, 2009 and August 14, 2009.

In a consultation report dated August 28, 2009, an orthopaedic specialist reported that the worker still had poor gait and x-rays did not show any significant complication of the foot or ankle. The specialist noted that the worker's condition was not getting much further with his physiotherapy. He noted that x-rays showed some early degenerative arthritis at the MTP joint with early hallux rigidus. The specialist felt that the worker required some pain assessment or management and that nothing further could be done for him orthopedically.

On September 23, 2009, a WCB sports medicine consultant reviewed the worker's claim file at the request of primary adjudication. The consultant outlined the opinion that the worker had not recovered from the effects of his compensable injury as current findings indicated an abnormal gait, though the etiology of the gait disturbance and pain was uncertain. An MRI was recommended and possibly an assessment at the WCB's Pain Management Unit ("PMU").

An MRI report of the left ankle performed on November 6, 2009 stated that the left ankle revealed no significant ankle joint effusion and the anterior process of calcaneus, talar dome and subtalar articulations all appeared intact. The lateral collateral ligaments all appeared intact including the syndesmotic ligaments. There was abnormal signal noted in the dorsal aspect of the navicular. There was concern for a small step deformity involving the articular surface and the described marrow changes may represent residua of a prior fracture (it was indicated that "this is a common spot for stress fractures").

On December 1, 2009, the WCB sports medicine consultant was asked to provide an opinion as to the current compensable diagnosis. His response on December 3, 2009 was as follows: "There is no probable evidence that a stress fracture was a result of his workplace injury or post injury course, especially in light of a normal CT scan of the foot one year post injury."

On February 4, 2010, the worker was seen by a WCB psychological consultant at the WCB's PMU. In a case conference held on February 18, 2010, PMU concluded that there was no psychological barrier to the worker's recovery. It was also stated, "Given the claimant's history of repeated injuries to the left foot and ankle in the past, the mechanism of injury in the present claim, information discussed in today's meeting, and the normal CT scan examination of January 7, 2009, it is opined that the MRI examination findings of November 6, 2009, on balance, are causally related to the pre-existing injuries and not to the compensable injury."

The worker underwent a Functional Capacity Evaluation (FCE) on April 19, 2010. In a memorandum to file dated April 28, 2010, a WCB physiotherapy consultant noted that the worker was unable to complete enough activities in the FCE to provide objective meaningful work restrictions.

The worker underwent further FCEs on May 5, 2010 and September 23, 2010.

On October 5, 2010, primary adjudication asked the WCB sports medicine consultant to provide his opinion as to the current diagnosis of the worker's ankle condition in light of WCB surveillance information from March and April 2010, the three FCE findings and the PMU assessment in February 2010. The consultant's opinion was as follows:

"…There are multiple reports of exam inconsistencies, especially with gait, during the FCEs. It is the writer's opinion that the claimant's signs and symptoms constellation does not appear to be in keeping with known physiological or structural pathology, or with the original compensable diagnosis of syndesmosis sprain of the ankle. As per the PMU review, there is no material evidence of a Pain disorder or mood disorder.

In the context of the relatively normal MRI and CT scan reports, the claimant's progressive dysfunction about the ankle, atypical antalgic gait pattern…, and overall current signs and symptoms constellation shows an unlikely relationship to, and are inadequately explained by MOI which encompasses a twisting mechanism of the ankle."

On November 1, 2010, the worker was advised of the WCB's decision that there was insufficient evidence that his ongoing left ankle problem was directly related to the compensable injury that occurred on February 20, 2008. Thus, wage loss and medical aid benefits would be paid to November 8, 2010 inclusive and final. On November 9, 2010, the worker appealed the decision to Review Office stating that he was still suffering from his ankle injury and had no skills to manage his pain levels to return to work.

On January 13, 2011, Review Office determined that there was insufficient evidence to conclude that the worker's ongoing left foot/ankle problems were related to the February 20, 2008 compensable accident and therefore the worker was not entitled to wage loss or medical aid benefits beyond November 8, 2010. In making its decision, Review Office placed weight on the PMU case conference findings of February 18, 2010 and the opinion expressed by the WCB sports medical consultant dated October 5, 2010. The worker subsequently appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In deciding appeals, 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 a time as the worker’s loss of earning capacity ends.

Worker's Position

The worker outlined the reasons for his appeal and answered questions posed by the panel.

The worker told the panel that he was injured, was willing to go back to work but that his employer refused to take him back unless he was 100%. The worker said that he wanted to attend a pain clinic but that the WCB refused to send him to a pain clinic. He said he has an appointment for a pain clinic. His physicians want him to attend a pain clinic to help him manage his pain. He said that he does not want to live on pills.

In answer to a question about when the pain occurs the worker told the panel:

"Like, I’m able to walk, but then every once in a while will be this dull pain. Like, it’s hard to explain, but it’ll start in the ankle sometimes. Sometimes I’ll actually feel it all the way up to my knee and it’ll kick in at a point -- like, I’ve actually wiped out walking across a street. And it’ll kick in and, like, you know, it’ll throw you off balance, to the point you feel, Oh. And it lasts for a while. It’ll come and go. I think it’s more something to do with my nerves, you know, like, I don’t understand. Neuropathic pain maybe?"

The worker said the pain may last for ten minutes or even an hour. He is not aware of what triggers the pain. He said he can walk properly. The worker advised that he is currently using an ankle brace.

The worker described how he was injured. He said he tried returning to work for one day but was not able to work. He denied returning for a longer period after the accident.

The worker was asked about his participation in the work hardening program. He described the program to the panel:

"Here’s a room. Go work out. And I was, like, Well, I’ve never really worked on my foot. I worked on my arms, I worked out this, that, this, that, but half of it was sitting down. So, it wasn’t, like, focused on my leg at all. And half the workout sheets, if you look on file, it was working from your body, your arms. Like, I said, Well, I didn’t injure my arms, I injured my leg."

In his closing the worker advised the panel that:

"I guess that I just want to manage this pain and move on. That’s about it. And I feel the WCB shortchanged me, sitting me at home for the last six months without saying, Okay. Hey, let’s go with the pain clinic idea."

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss or medical aid benefits beyond November 8, 2010. In order for the worker’s appeal to be successful, the panel must find that the worker's loss of earning capacity after November 8, 2010 is the result of the compensable injury and that he requires ongoing medical treatment. The panel finds, on a balance of probabilities that the worker's loss of earning capacity after November 8, 2010 was not caused by the compensable injury. The panel also finds, on a balance of probabilities, that the worker is not entitled to medical aid benefits beyond November 8, 2010.

The panel reviewed all the evidence on the claim file including the medical reports and diagnostic testing and considered the worker's evidence at the hearing. In reaching our decision, we relied upon the following evidence:

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of August, 2011