Decision #46/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not disabled due to the effects of his compensable injuries beyond August 12, 2011. A hearing was held on March 28, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond August 12, 2011.Decision
That the worker is not entitled to wage loss benefits beyond August 12, 2011.Decision: Unanimous
Background
The worker filed a claim with the WCB for a left ankle injury that occurred on February 14, 2011 during the course of his employment as a carpenter. The worker described the accident as follows: "I was on the deck…I stood on a chair as I could not get a ladder there. The chair slid off the deck and I landed on my left ankle and rolled it. I fell about 2 ½ feet from the chair to the deck."
On March 1, 2011, the worker advised a WCB adjudicator that he was standing on a chair to fix a door closer on an exterior door. The chair slipped and he fell approximately two feet. When he landed on his left foot, he turned the ankle. As the accident occurred around the end of the day, he went to the nurse's station on February 15, 2011 and was told to do as little as possible and to take the day off work. The worker advised that he did not take any time off work and he saw a physiotherapist on February 17, 2011 who told him to stay off work until he saw his family physician.
In a report dated February 17, 2011, the treating physiotherapist confirmed that the worker was seen for assessment of his left ankle after an inversion type injury suffered at work on February 14. She noted that the worker "should not return to construction work until he has been seen by his physician and cleared for duty."
The worker attended a physician for treatment on February 22, 2011. The worker had tenderness in the bilateral distal medial/lateral malleolus. The diagnosis rendered was a left ankle sprain. It was also noted on the report that this was a recurrent injury.
A physiotherapy initial assessment dated March 16, 2011 noted the following subjective complaints: "Reports swelling and bruising immediately, seen at nursing station, ongoing pain reported as sharp and burning over lateral aspect of foot into anterior ankle, sharp with any inversion mov't, burning with walking…discoloration at first MTP. Knees aches medially/anteriorly." The diagnosis was "ATF sprain second degree - R/O talar dome injury."
X-rays of the left ankle taken April 20, 2011 revealed no fracture or dislocation.
On May 26, 2011, the worker advised his adjudicator that he had pain on the outside of his ankle. He stated that he had a previous injury to the same ankle last year and was off work for 10 or 11 months.
On June 25, 2011, the worker had an MRI of his left ankle which found a normal MRI ankle and no evidence of an osteochondral injury.
The worker was seen on July 8, 2011 by a sports medicine physician who reported that the worker complained of being unable to run very well due to his ankle pain. He complained of pain to the distal foot on the base of the fifth metatarsal. The examination was directed at the worker's ankle and lumbar spine. The physician suggested that the worker had mechanical irritability of a nerve root in his back and neurological assessment was recommended. The physician indicated that he was unable to explain a cause for the worker's ankle complaints given the normal imaging findings and examination.
On August 8, 2011, it was determined by the WCB case manager that the worker was fit to return to his pre-injury duties and that benefits would end on August 12, 2011. The case manager stated in the decision that she was unable to establish a relationship between the worker's low back findings and the compensable injury of February 14, 2011. It was felt that the worker's left ankle sprain had resolved based on the normal x-rays and MRI findings and the July 8, 2011 examination findings. In September 2011, the worker appealed the decision to Review Office.
On October 27, 2011, Review Office asked a WCB orthopaedic consultant to review the worker's present claim as well as the worker's prior WCB claim for a left ankle injury that happened on June 8, 2009 as the worker felt that the two accidents were responsible for his ongoing ankle complaints. On October 27, 2011, the orthopaedic consultant outlined the following opinion:
- The diagnosis of the injuries of June 8, 2009 and February 14, 2011 was a sprain of the left ankle.
- It was uncertain if there was an underlying neurological deficit which would have caused increased susceptibility to recurrent ankle sprains. Any such neurological deficit if confirmed would not be related to the workplace injuries.
- After a sprain of the ankle, and in the absence of structural ligament, bone or joint damage, complete recovery would normally be expected within 2 to 3 months. It was understandable that the individual would modify behavior in order to prevent a repeat injury. There was no medical information that would suggest any disability beyond August 12, 2011 related to the workplace accidents.
On October 31, 2011, Review Office determined that the worker was not entitled to wage loss benefits beyond August 12, 2011. Review Office noted in the decision that the x-ray and MRI results did not detect any evidence of any ligament, bone or joint damage and the examination by the sports medicine specialist revealed a normal gait and stance and no edema or erythema. The primary abnormal findings were related to a positive straight leg raising test and atrophy in the left calf, leading the specialist to believe there may be a neurological cause for the worker's complaints. Based on the opinion provided by the WCB orthopaedic consultant and all the available evidence, Review Office stated that it was unable to conclude that the worker continued to be disabled due to the effects of his compensable injuries beyond August 12, 2011. On January 18, 2012, the worker 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.
This appeal deals with entitlement to benefits beyond August 12, 2011.
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 described his accident and explained the reasons for his appeal. He answered questions posed by the panel.
The worker advised that he first hurt his left ankle in 2009. He said he was off work for 10 to11 months and that he did not feel his ankle ever completely healed. He was not satisfied with the physiotherapy treatment that he received.
The worker advised that he then injured his left ankle on February 14, 2011. He said that he fell while working on a deck. He noted there was a delay in accepting his claim. The worker indicated that he does not feel his ankle has recovered. He said that his ankle is still painful.
The worker advised that after his wage loss benefits were terminated he spent two months trying to get things in order. As his pre-accident employment was terminated and he had no source of income, he had to find a new job. He started working again in mid-October 2011. The new job involved climbing a ladder which he found difficult. Ultimately he left this job and found employment with another employer working at a lower wage. He indicated that he was without employment and income for two months.
The worker described a variety of symptoms relating to his ankle. He said that his ankle is still painful, that walking on uneven surfaces bothers his ankle, that he cannot run and stop and if he does his ankle will swell up. He also said that he walks with a limp and uses an aircast for stability. He described his ankle as having a "loose feeling" and said it "goes weak."
With respect to his back, the worker said that he attributed any soreness to sleeping in a different bed at the work site. He did not recall any back symptoms at the time of the accident.
The worker noted that his left calf is significantly smaller in circumference than his right calf. He said that his girlfriend pointed this out to him. He believes that his reduced calf size is related to his ankle injury. He said that his physician told him the change in his calf size might be due to him favouring his left leg.
In answer to questions about his ability to work, the worker indicated that his condition has improved from August 2011. In August, he could only walk about 3 to 4 blocks, now he feels he can walk 3 to 4 times that distance. In August, he said he felt about 25% recovered, by October he felt about 75% recovered. He said that he might have been able to do some work (paper work) in August but that his pain was fluctuating.
The worker said that he had expected to be examined by a WCB medical consultant, but instead his benefits were terminated. He feels this was a mistake.
Employer's Position
The employer was represented by its Human Resources Coordinator. She provided some background information regarding acceptance of the claim and the timeline of the employer's response. With respect to the worker's entitlement to benefits, she said that the employer does not want to prevent the worker from getting benefits that he is entitled to under the legislation.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond August 12, 2011. For the worker's appeal to be successful, the panel must find that the worker's inability to work after August 12, 2011 was related to the worker's February 14, 2011 workplace injury. The panel was not able to make this finding.
We find that as of August 12, 2011, the worker no longer had a loss of earning capacity as a result of the accident. We have examined all the medical reports and information and find there is a lack of diagnostic and clinical findings to support that the worker was unable to work as a result of the February 14, 2011 workplace injury. In arriving at this conclusion, we rely upon the following:
· July 8, 2011 report of the sports medicine physician. The physician noted that upon examination there was no acute distress, no specific edema or erythema about the ankle, the worker did not walk with an antalgic gait, knee alignment was normal and anterior drawer test was negative for pain or laxity. The physician noted that the MRIs of the ankle were normal and that the examination was benign. He suggested that the worker's condition might be neurologically based, given the reduced size of the left calf, and wondered about the low back as being the source of the worker's problems. The panel notes that there are no references in the early stages of the file to any low back difficulties, and that any such remote source for the worker's ankle/calf problems would not be related to this claim.
· October 27, 2011 opinion of a WCB orthopaedic consultant that the diagnosis for the 2009 and 2011 ankle injuries was sprain of the left ankle. He stated that there is no medical information that would suggest any disability beyond August 12, 2011.
· MRI report dated June 25, 2011 noted "Normal MRI ankle. No evidence for osteochondral injury." An MRI dated November 13, 2009 was also normal.
Considering the medical and other information on the file, we are not able to relate the current signs and symptoms to the compensable workplace injury. Nor are we able to relate the worker's back complaints to the injury of February 14, 2011.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of April, 2012