Decision #09/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that his complaints of pain beyond December 11, 2008 were not causally connected to his compensable injury of June 16, 2008. A hearing was held on November 30, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond December 11, 2008.Decision
That the worker is not entitled to wage loss benefits beyond December 11, 2008.Decision: Unanimous
Background
The worker filed a claim with the WCB for a left foot/ankle injury that occurred on June 16, 2008. The worker reported that while exiting his van on June 16, he stepped down between some marble slabs which caused his foot to invert and he heard three cracks in his ankle/foot.
On June 17, 2008, the treating physician diagnosed the worker with a second degree sprain of the ankle. X-rays performed on the same day showed no fracture. The claim for compensation was accepted and benefits were paid to the worker.
The worker was treated by a physiotherapist on July 14, 2008 and the diagnosis rendered was a left high ankle sprain.
On August 13, 2008, the treating physician noted that the worker had increasing pain across his foot, ankle and leg with limited movements. The worker had tenderness on the lateral aspect of his ankle with impaired function. The physician suggested that a WCB medical advisor should assess the worker's ankle.
The worker was assessed by a WCB sports medicine consultant on September 12, 2008. The diagnosis was a Grade II ATFL ankle sprain. The consultant noted that the diagnosis was in light of Grade II laxity on anterior talofibular ligament testing, the mechanism of injury, tenderness on palpation around the ATFL area and early reports from the family physician. The examination did not show clinical evidence of a possible high ankle sprain. Recommendations were made for an aggressive rehabilitation program and for the worker to commence a gradual return to his regular duties at reduced hours after four weeks of physiotherapy.
In a report dated November 13, 2008, the physiotherapist reported that the worker attended all his appointments and was compliant with the program. His strength, endurance and function had increased over the past four weeks however deficits remained. The worker was not at his full functional level yet and he continued to ambulate with a mild antalgic gait pattern. Palpable tenderness of the lateral ankle and pain on ATFL testing remained.
On November 14, 2008, the physiotherapist advised the WCB sports medicine consultant in a telephone conversation that the worker continued to have subjective complaints. Objectively, the worker had an antalgic gait and tenderness on the lateral joint line, ATFL, and posterior ankle. She was unable to explain why the worker's symptoms persisted.
An MRI of the left ankle done on November 28, 2008 revealed the following findings:
- Slight thickening of the anterior talofibular ligament consistent with a healed or healing tear.
- No osseous abnormalities were identified.
On December 4, 2008, the WCB sports medicine consultant stated that the recent MRI evidence appeared to show no pathoanatomical lesion that would preclude a return to regular duties.
In a decision letter issued on December 5, 2008, the worker was formally advised that the WCB found no correlation between his current condition and his compensable injury and that he was fit for full duties and hours. Wage loss benefits would be paid to December 12, 2008 inclusive.
On December 11, 2008, the worker underwent a bone scan and the results showed the following findings: "An abnormality is identified along the posterior aspect of the left ankle. In the clinical context, occult bony injury is possible. Repeat radiographs of the left ankle are recommended."
The file was reviewed by the WCB sports medicine consultant on January 2, 2009. He reviewed the bone scan and said: "Although there is suggestion of possible occult bone fracture, the recent MRI shows no bony abnormalities. As such, there does not appear to be objective evidence that would alter the previous opinions offered."
A report from an orthopaedic surgeon dated February 18, 2009 stated that the worker may have some impingement of the ligament into the ankle joint to explain his ongoing non-resolving pain. There also may be an unidentified peroneal tendon split. The surgeon recommended an arthroscopic assessment and exploration of the peroneal tendon.
By letter dated May 6, 2009, a WCB orthopaedic consultant advised the orthopaedic surgeon that a repeat MRI should be undertaken to determine if there was underlying pathology in the peroneal tendons.
A repeat MRI of the left ankle specifically directed at all ligaments and tendons was done on May 20, 2009. The findings showed no excessive joint fluid. There was no osteochondral lesion. The hyaline cartilage was unremarkable. Ankle ligaments all appeared intact and normal. The tendons were unremarkable. The subtalar joint and other visualized tarsal joints were normal.
On May 25, 2009, the WCB sports medicine consultant indicated that the MRI showed a normal anatomical ankle and there was no pathoanatomical contraindication to return to full duties.
In a letter issued on May 25, 2009, the worker was formally advised that there would be no change to the decision made in January 2009, as the WCB could not establish a cause and effect relationship between his current condition and the compensable injury. On June 10, 2009, the worker appealed the decision to Review Office.
On July 2, 2009, Review Office determined that wage loss benefits were not payable beyond December 11, 2008 as it was felt that a cause and effect relationship did not exist between the worker's ongoing complaints of pain in the left ankle and the original injury of June 16, 2008. Review Office noted that the most recent MRI ruled out a tear in the peroneal tendons and that the medical community did not have an explanation for the worker's complaints of pain. On July 27, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged. Attached to the appeal was a letter from the family physician dated April 19, 2011 which outlined the opinion that the worker had regional pain syndrome secondary to the compensable injury.
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.
The worker is seeking wage loss benefits beyond December 8, 2008. 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 attended the hearing with his mother who outlined the worker's concerns regarding the WCB's decision.
The worker's mother advised the panel that the worker developed complications post-injury with regional pain syndrome. The long-term prognosis for complete recovery is guarded, he will continue to require management for his pain syndrome, and he will continue to require physical activity to maintain his overall long-term outlook to recovery.
The worker's mother noted that an orthopaedic surgeon recommended exploratory surgery and the WCB denied the request and instead authorized a second MRI. The worker stated that he wished he had surgery. He told the panel that:
"And for the record I would have rather have taken surgery. When I heard Dr. [name] wanting to do surgery on me even if it meant that I wasn’t going to be able to play basketball or any sports again, I was willing to go for surgery just due to the fact that I wanted my ankle fixed."
The worker's mother indicated that she also wished he had the surgery.
The worker indicated that he continues to suffer pain as a result of the injury. When asked to describe his ankle today the worker stated that:
"It still gives me sharp pains any time, especially when I have it raised up on my leg, if I just am resting it on my leg, I can’t do that for more than a minute or else I get a pain for a good 20 minutes. I am still icing my ankle when I wake up and heat it. When I come off work I am icing it and heating it. I occasionally still do my - the exercises they gave me from physio, I did those for at least till 2010 – late 2010, coming into 2011 I still did all my exercises and I still haven’t gone pain free exercises once."
The worker's mother indicated that the worker had recently found employment but had been mostly unemployed since the injury. He explained that this was due to the pain he experienced after the injury. He remains on large quantities of painkillers. Regarding his new employment, he is working 40 hours per week and studying to obtain his power engineer papers.
The worker indicated that he has not received physiotherapy since 2008. He advised that he continues to perform the home exercise program recommended by the physiotherapist. The worker has not seen his orthopaedic surgeon nor any other orthopaedic surgeon since 2009. He advised that he attended a pain clinic and was seen by several physicians. While attending the clinic he received two injections but these were not helpful. He said that he was told he would have to wear a brace and would have to deal with the pain for the rest of his life.
Employer's Position
The employer did not participate in this appeal.
Analysis
The worker is appealing the WCB decision to terminate his wage loss benefits. For the worker's appeal to succeed the panel must find that the worker suffered a loss of earning capacity resulting from his June 2008 workplace injury beyond December 11, 2008. In other words, we must find that the worker was not able to return to work after December 11, 2008 due to his injury. We were not able to make this finding. We find, on a balance of probabilities, that the worker's loss of earning capacity after December 11, 2008 is not related to his workplace injury.
In reaching our decision we rely upon the opinion of the WCB sports medicine consultant who examined the worker on September 12, 2008 and reviewed the file on subsequent occasions. The sports medicine consultant diagnosed the worker's injury as a Grade II ATFL ankle sprain and noted there was no evidence of a high ankle sprain. He recommended an aggressive rehabilitation program and an active ankle type brace.
In a note dated December 5, 2008, the sports medicine consultant commented that according to a recent MRI there appeared to be no pathoanatomical lesion that would preclude a return to regular duties. On May 25, 2009, the sports medicine consultant reviewed a second MRI and noted that it showed a normal anatomical ankle and reiterated that there would be no pathoanatomical contraindication to return to full duties.
There was discussion at the hearing regarding a request to the WCB by the worker's orthopaedic surgeon for permission to perform an arthroscopic assessment of the ankle and exploration of the peroneal tendon. We note that a WCB orthopaedic consultant responded to this request and indicated that another MRI would be preferred to exploratory surgery. A memo from the WCB orthopaedic consultant indicates he spoke with the worker's orthopaedic surgeon who agreed that an MRI would be useful and did not really think he would explore the peroneal tendons if no pathology is demonstrated on the MRI.
A second MRI was conducted on May 20, 2009. The MRI report noted "Impression: No abnormality is seen." The worker's orthopaedic surgeon did not pursue the request for exploratory surgery after this MRI.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerM. Bencharski, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of January, 2012