The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left foot difficulties were not related to the effects of his compensable injury and therefore he was not entitled to benefits beyond July 25, 2012. A hearing was held on June 18, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond July 25, 2012.

Decision

That the worker is entitled to benefits beyond July 25, 2012.

Decision: Unanimous

Background

During the course of his employment as a saw operator on March 28, 2011, a steel bar fell on top of the worker's left foot. X-rays taken on the day of accident were reported as showing considerable soft tissue swelling over the dorsum of the left foot. There was a small plantar calcaneal spur present. No fracture or dislocation was identified. A CT scan of March 29, 2011 revealed no fracture or dislocation. The claim for compensation was accepted by the WCB based on the diagnosis of a soft tissue injury.

File records showed that the worker developed an infection in his right foot and was seen for treatment by an infectious disease specialist, a plastic surgeon and a neurologist.

On December 8, 2011, a WCB medical advisor outlined the following opinion regarding the worker's medical condition:

"1. The initial diagnosis was soft tissue injury left foot secondary to crushing injury. The current diagnosis is healing ulcerations secondary to infected traumatic ulcers and possible neuropraxia left foot. As well there is the presence of stasis dermatitis which relates to the initial trauma.

2. Recovery is slow and complicated by the development of ulcers and now ongoing swelling and stasis dermatitis. As well the weakness and numbness of the 2^nd through 5^th toes is related to the initial workplace injury; the nerve conduction studies performed recently will help determine the nature of that condition.

3. He appears able to work where he is on his feet for up to 30 minutes at a time and is able to use his cane while at work. It is possible that some form of permanent restrictions will be needed;

4. …If a significant nerve injury is reported it is possible that long term difficulty with gait and balance will result."

On January 31, 2012, a WCB case manager documented a phone conversation she had with the worker. The worker indicated that his right foot was normal but his left foot was swollen. The skin was flaking and the wound area still leaked. He felt no particular improvement in his ability to move his toes. The worker reported that his balance had improved slightly but he still had to use a cane.

On November 30, 2011, the treating neurologist stated:

"The electrodiagnostic studies show surprisingly bilateral absence of sural and superficial peroneal responses as well as reduced amplitude of bilateral peroneal and tibial motor studies. This would be more consistent with a peripheral polyneuropathy. There was no clear evidence of the changes being more severe or significant on the left than the right. However, the study today was limited technically by significant bilateral foot swelling as well as technical issues with the EMG machine.

There was no clear nerve injury on the left related to his accident. As far as the cause of his left toe movement weakness, this might be on the basis of a peripheral polyneuropathy although other joint or tendon problems in his left foot related to the injury cannot be entirely ruled out by the electrodiagnostic studies."

On February 24, 2012, the worker was seen by a WCB medical advisor at a call-in assessment. The medical advisor indicated that the diagnosis related to the compensable injury would be a crush injury to the left foot with infection and ulceration. The ulcerations had not fully healed and recovery had been delayed due to the lymphedema. This would be considered a pre-existing condition affecting recovery. The medical advisor indicated that the worker would be fit for sedentary duties with the ability to get up frequently and move about and stretch out his leg.

Based on the advice of the worker's treating physiotherapist, the WCB arranged for the worker to undergo a four week reconditioning program to prepare him for a return to work.

An MRI report of the left foot dated July 11, 2012 stated: "Extensive edema within the dorsal subcutaneous fat of the foot which is non-specific. No abnormality of the extensor tendons to the toes is demonstrated."

A WCB medical advisor reviewed the file on July 17, 2012 and stated:

"The MRI showed edema which has been noted clinically to be bilaterally. There was no specific structural abnormality related to the metal bar falling on this foot.

The worker has also had a NCS which was interpreted as likely being normal (any abnormalities thought to be technical due to the size of the limbs and the swelling).

It was previously indicated that the infection to the dorsum of the left foot was likely related to the C/I (compensable injury) but as per the doctor's progress report of July 12, that has healed.

Based on this review, there is no evidence of a structural abnormality related to the C/I so there would be no objective basis for restrictions.

The worker has seen a specialist who diagnosed bilateral lymphedema (previously commented on). This is much more likely to be related to the worker's BMI of > 50 rather than having a bar fall on one foot over a year ago."

On July 18, 2012, the WCB case manager determined that the worker had recovered from the effects of his March 28, 2011 left foot injury based on the opinion outlined by the WCB medical advisor on July 17, 2012. On August 1, 2012, the worker appealed the decision to Review Office. On August 20, 2012, the worker's attending physician opined that the worker had weakness in the dorsiflexion of his toes that interfered with his balance and ability to wear his work boots. This appeared to have been unilateral and as a result of his crush injury.

On August 22, 2012, the WCB medical advisor stated:

"It should be further noted that I observed loss of strength of flexion and extension of the toes, as did Dr. [neurologist]. Flexion of these toes is brought about by tendons on the sole of the foot and would not have been affected by a bar falling on the top of the foot. These findings support a more widespread problem than what would have been caused by the workplace mechanism of injury. To summarize, [the worker] may have weakness of extension of his toes due to the effects of the C/I [compensable injury], although the exact cause of this has not been found to be related to a structural abnormality. This may result in a permanent impairment and can be assessed accordingly, but this isolated impairment would not lead to any significant loss of function and would not substantiate a need for workplace restrictions."

On October 12, 2012, Review Office noted that the worker's recovery from his compensable injury was complicated by a pre-existing condition of lymphedema. Review Office felt that the pre-existing condition was not caused, aggravated or enhanced by the compensable injury. The worker's current symptoms were related to the sole of the foot and there was also note of bilateral findings. In Review Office's opinion, the worker's current difficulties were not related to the compensable injury and there was no loss of earning capacity or the need for any ongoing medical treatment as a result of the compensable injury beyond July 25, 2012. On March 20, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

On May 20, 2013, the worker's treating physician stated:

"1. The inability of the patient to dorsiflex the toes on his L foot was NOT a pre-existing condition prior to the injury he sustained at his workplace where a heavy weight fell on the dorsum of that foot.

2. The patient's current disability does NOT appear to stem from his obesity in any way that I am aware of."

On June 18, 2013, a hearing was held at the Appeal Commission after which the appeal panel requested additional information from the worker's treating vascular specialist. A report from the specialist dated August 13, 2013 was later received and was forwarded to the worker for comment.

On September 25, 2013, the panel met further to discuss the case and decided that additional medical information was required from the infectious disease specialist whom the worker had seen for treatment of his leg condition. A report from the specialist dated October 25, 2013 was later received and was forwarded to the worker for comment. On November 15, 2013, the panel met further to discuss the case and rendered its final decision.

Reasons

The issue before the panel was whether the worker was entitled to benefits beyond July 25, 2012.

In considering the worker’s appeal in this case, the Appeal Commission is bound by The Workers Compensation Act and the policies of the WCB, including Policies 44.10.20.10 (Pre-Existing Conditions) and 44.40.10 (Evidence of Disability). Subsections 4(2) and 39(2) of the Act provide that the WCB will pay wage loss benefits until such a time as the worker's loss of earning capacity ends. Section 27 of the Act provides for the payment of medical and benefits.

Worker’s Position

In his Request for Review dated March 20, 2013, the worker claimed that his lymphedema was not a pre-existing condition but rather was caused by the crush injury that he suffered in the workplace accident of March 28, 2011. In his Appeal of Claims Decision, also dated March 20, 2013, the worker advanced that same position.

The worker advised that he had been tested on May 28, 2010, less than one year before the injury, and there were no findings of lymphedema or pitting and non-pitted edema at that time. He disagreed with the comments made by the WCB medical advisor that the lymphedema was caused by his weight and not from his workplace accident; and states that his position is supported by his physicians.

The worker also noted that he also may have had a nerve injury, as suggested by the WCB medical advisor, who stated that maximum medical improvement would not be reached until 18 months to 2 years later. However, his benefits were terminated just shy of 16 months.

Employer’s Position

The employer did not provide a submission.

Analysis

WCB Policy 44.10.20.10 (Pre-Existing Conditions) provides in part as follows:

Wage Loss Eligibility

(a) When a worker’s loss of earnings capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident.

(b) When a worker has:

1) Recovered from the workplace accident to the point that it is no longer contributing to a material degree, to a loss of earning capacity, and

2) The pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) The pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

… When it is determined that the worker’s inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earnings capacity continues.

The policy defines a “pre-existing condition” as “a condition that existed prior to the compensable injury.” “Enhancement” is defined to occur “when a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.” “Aggravation” is defined to be “the temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.”

The worker was found to be suffering from bilateral lymphedema affecting both of his lower legs. While the worker has advanced the position that his bilateral lymphedema was caused by the compensable injury, the panel does not find support for that causal relationship. Rather, the panel is of the view that the medical evidence establishes, on a balance of probabilities, that the worker was suffering from a pre-existing condition (bilateral lymphedema) at the time of the compensable accident although it was not diagnosed until sometime after his compensable injury. We note there has been no medical explanation provided as to how a left leg injury could cause lymphedema in both legs. However, we also conclude that as of July 25, 2012, the worker remained unable to work and therefore continued to suffer a loss of earning capacity by reason of the accident in concert with the pre-existing lymphedema in his left leg. In particular, the later appearance of bilateral lymphedema has delayed the worker's recovery, and he had not recovered as of July 25, 2012.

In support of its conclusions, the panel relies on the following:

• The WCB medical consultant who examined the worker on February 24, 2012 stated:

The diagnosis related to the compensable injury would be a crush injury to the left foot with infection and ulceration. The ulcerations have not yet fully healed and recovery has been delayed due to the lymphedema. This would be considered a pre-existing condition significantly affecting recovery.

• A report dated August 13, 2013 (that the Panel had requested) from the worker’s treating vascular specialist stated that although the worker had bilateral lymphedema, the specialist believed that “the trauma and subsequent infection that occurred after his workplace injury on the left exacerbated his condition.” He stated that “… each infection further destroys lymphatic cells making lymphedema worse in the affected extremity.” He opined that the lymphedema in the worker’s left leg was “worse and more susceptible to infection due to trauma-related infection in the past.”

• A report dated October 25, 2013 (that the panel had requested) from the infectious disease specialist who had examined the worker on November 2, 2011, agreed that the compensable crush injury may have exacerbated the edema in the worker’s lower left extremity.

The question for the panel is not whether the injury was the cause of the worker’s bilateral lymphedema, but rather whether the worker’s pre-existing lymphedema delayed the worker’s recovery. Based on the foregoing, the panel is of the view that it did, and that the worker’s continuing difficulties, as at July 25, 2012, are attributable, in concert with the pre-existing condition, to the compensable injury that he suffered to his left foot. The panel therefore concludes that the worker is entitled to benefits beyond July 25, 2012.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 16th day of December, 2013