The Appeal CommissionThe Workers Compensation Act of Manitoba

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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers 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. The Further Injuries Policy provides:

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

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

WCB Policy 44.120.30, Support for Daily Living, provides guidance regarding the WCB's approach to supporting workers' participation in daily workplace and personal activities after an accident. The Policy states: "The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that after an injury, workers can experience additional costs to obtain assistance in performing the day to day tasks of living and may also require additional devices or products."

Analysis:

There are two issues before the panel. Each will be addressed separately.

1. Whether or not the worker’s left knee condition is related to the compensable right ankle injury.

The worker claims that he has suffered a secondary injury as a result of his compensable right ankle injury. He contends that the onset of pain and stiffness he experienced in his left knee in 1985 was caused by the extra weight bearing from his right ankle injury. In order for the worker’s appeal on this issue to succeed, the panel must find that his left knee condition qualifies as a “further injury” under one of the three tests set out in the Further Injuries Policy. The test applicable to the worker’s left knee injury would be the one contained in paragraph (i), that is, whether or not the cause of the further injury is predominantly attributable to the compensable injury.

The administrative guidelines to the Further Injuries Policy provide as follows:

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.

In his written submission, the worker relied on a WSIAT (the Ontario equivalent to this Appeal Commission) discussion paper by Dr. Ian Harrington entitled "Symptoms in the Opposite or Uninjured Leg." The general conclusions of the paper are stated as follows: "An injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the centre of gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been present for an extended period of time." The worker submitted that this literature supported his position, as his right ankle injury and complications caused a significant alteration to his gait for a prolonged period of time.

After a review of the evidence given at hearing and the medical records obtained by the worker's treatment providers, we are unable, on a balance of probabilities, to conclude that the compensable right ankle injury significantly contributed to the worker's left knee difficulties, which eventually led to the left leg amputation.

At the outset, we note that in 1974, the worker underwent a left knee medial meniscectomy. The surgery was successful, and for many years the worker had full functional use of his left knee. A common consequence, however, of a meniscectomy is that the knee on which surgery is performed is more prone to developing osteoarthritis in future years.

The worker's primary submission was that he had an altered gait for many years and this caused or significantly contributed to his left knee osteoarthritis. The evidence given at the hearing was that from 1974 to 1984, the worker was fine, but in 1985, the left knee started to act up. While performing his job as a CAT operator, the worker had problems getting on and off the grader. By 1986, the worker started using crutches to ambulate. It was not entirely clear to the panel, but it would appear that the use of the crutches was primarily related to increasing pain in the right ankle. By 1995, the worker was using a wheelchair on a regular basis.

The panel carefully reviewed the medical records for evidence of altered gait following the right ankle injury in March 1984. The evidence was not convincing. After the workplace accident, the worker was off work until January 1985. In April 1985, the worker was examined by a WCB medical advisor for the purposes of being assessed for a permanent partial disability award. At that time, the examination notes indicated: "Walks without a limp or favoring either foot." At the hearing, the worker's spouse denied that the examiner even saw the worker walk. In the panel's opinion, it is more likely that the examiner watched the worker unaware. We do not think that the comments would have been included in the report otherwise and we are therefore prepared to accept same as accurately describing the worker's gait at that time.

There is little medical evidence regarding the worker's lower extremities from 1985 to 1991. In 1991, the worker's benefits become temporarily reinstated due to increasing pain in his right ankle. In a report dated December 2, 1991, the worker's orthopaedic surgeon who treated his right ankle reported that on November 25, 1991: "He came to see me with his right ankle problem. It became suddenly very painful and made him limp badly. Over the years, he has been doing not too badly with occasional discomfort in the ankle."

In the panel's opinion, the medical reports do not support the existence of a significantly altered gait between the period 1985 to 1991.

The panel also notes that the worker's lifestyle was relatively sedentary. His occupation as a CAT operator would have him seated most of the day. He did not engage in any sports or other activities which would have him on his feet for extended periods of time. By 1995, he was regularly using crutches and/or a wheelchair, so presumably from that point onwards, there would be even less stress and loading on the left knee. In 1996, he began to receive medical attention for the left knee. By that time, the worker had already been significantly less mobile and had been out of the work force since December 1995, due to a combination of other medical conditions.

Overall, the panel was unable to identify a significant alteration to the worker's gait or overloading of the left knee such as to cause accelerated development of osteoarthritis in the worker's left knee. The worker tended to be relatively sedentary and we do not find that he was walking or on his feet for extended periods of time. By 1995, his lifestyle became far more sedentary, and in the circumstances, we fail to see how there would be additional loading of his left knee.

There are medical reports on file from the worker's physicians supporting a causal link between the osteoarthritis of the left knee and the right ankle injury. There is also an opinion from the WCB orthopaedic advisor indicating that there is no medical evidence to establish such a causal link and further notes that reduced activity would have resulted in less than usual stresses upon the left knee. The panel notes that the September 24, 2009 letter from the worker's orthopaedic surgeon incorrectly states that there was no prior history of injuries to the worker's left knee. In fact, the worker had an arthrotomy for a torn medial meniscus in 1974. The September 24, 2009 letter also acknowledges that arthritic knee disease is multi-factorial and the worker's ankle arthritis is probably one of the contributing factors to the development of the left knee disease rather than the sole cause of it.

The test which must be met under the Further Injuries Policy is "significantly contributes." In view of the evidence reviewed above regarding the extent of the worker's altered gait over a prolonged time and minimal loading, we find that the compensable injury did not significantly contribute to a subsequent injury.

For the foregoing reasons, we are unable to conclude that the right knee injury caused or significantly contributed to the left knee osteoarthritis. We therefore find that the left knee condition is not related to the compensable right ankle injury. The worker's appeal on this issue is denied.

2. Whether or not responsibility should be accepted for a power wheelchair, wheelchair lift or home modifications in relation to the left knee condition.

On the second issue, the worker's position was that he had not been provided with appropriate products and services pursuant to WCB Policy 44.120.30, Support for Daily Living, with respect to his right ankle injury. It was submitted that because of the severity of the worker's compensable right ankle injury, he was not able to tolerate a prosthetic device following the left above-knee amputation in 2004 and was restricted to the use of a wheelchair full time for his mobility. It was also submitted that the worker aggravated his pre-existing right shoulder condition while using a manual wheelchair and he therefore required use of a power chair. He was initially provided with a manual chair which he propelled by using both arms, but the activity of propelling a manual chair aggravated his right shoulder. It finally came to a point where an occupational therapist recommended that a power wheelchair was necessary for the worker's mobility and his quality of life.

In order for the worker's appeal to succeed, the panel must find that the worker requires additional products or devices to enable him to become as independent as possible, as provided for under WCB Policy 44.120.30, Support for Daily Living. The need must arise from the effects of the compensable injury.

In the present case, the compensable injury relates solely to the right ankle. The difficulties the worker has experienced with his left knee which eventually led to his above-knee amputation are not work-related and not compensable. The WCB has provided the worker with a manual wheelchair based on the rationale that his compensable right ankle injury prevents him from walking long distances. The panel agrees with that reasoning and agrees that a wheelchair was appropriately provided to the worker. The right ankle injury, however, does not, in and of itself, render the worker completely immobile and confined to a wheelchair. It is the worker's other non-compensable medical conditions, and most notably, his left above knee amputation, which confine the worker to a wheelchair and create the need for it to be motorized.

The panel also considered the submission that the worker has a compensable right shoulder injury which makes him unable to manually propel a wheelchair. The shoulder injury was said to have been sustained in a 1987 work-related train accident. At the September 2011 hearing, it was noted by the panel that at the previous hearing in April, 2011, the worker identified the left shoulder as being problematic. The worker explained that after receipt of medical reports identifying the right shoulder as having suffered injury in the 1987 train accident, he was now able to properly identify the right shoulder as the one which caused him problems with propelling the wheelchair. In fact, both shoulders gave him difficulty, but the worker confirmed that it was the right which was more problematic.

The panel has reviewed the evidence and we are not satisfied on a balance of probabilities that a compensable right shoulder injury created the need for a power wheelchair. The medical reports from the time of the February 26, 1987 train accident indicate the worker suffered injury to three ribs on the right side, laceration to his scalp and minor abrasions. The worker returned to work on April 21, 1987, but found he was unable to stand the jolting of the grader he was operating. Due to pain in his back, the worker resumed wage loss benefits at the beginning of May, and remained off work until June 19, 1987. He continued to receive chiropractic adjustments to the lumbar and thoracic spine until November 14, 1987. There is no treatment directed at the right shoulder as a result of this injury, although there is some reference to chiropractic manipulations to the left upper thoracic spine due to spasmodic radiation into the left arm and hand. Whether it was left or right, however, is not critical as the panel was not able to find any continuity of shoulder complaints stemming from the train accident onwards.

Other medical reports on file also do not reflect ongoing issues with the shoulder pain or limitation of function. At best, a May 24, 2001 report by a treating neurologist indicated that the worker began to experience pain in his right neck and shoulder in November 2000, which radiated down his arm to his hand. The report relayed a history of the worker having a similar episode in 1998, which caused the worker severe pain for two months, which spontaneously resolved. Both episodes began after a gastroscopy. The clinical picture was thought to be consistent with a C6 root lesion likely secondary to either a disc protrusion or compression. In the panel's opinion, while this medical report documents a period of right shoulder difficulty, there is no continuous link to the 1987 train accident.