The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current left hip difficulties were not the result of his compensable accident of July 11, 2012. A hearing was held on January 22, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further compensation benefits in relation to his compensable accident of July 11, 2011.

Decision

That the worker is not entitled to further compensation benefits in relation to his compensable accident of July 11, 2011.

Decision: Unanimous

Background

While employed as a maintenance worker on July 11, 2011, the worker was on the top rung of a 3 foot ladder when the rivet on the rung gave out. The worker fell approximately 3 feet to the ground landing on his right side.

The emergency hospital report dated July 11, 2011 noted that the worker "fell 3 ft. rung snapped off ladder - didn't hit ground." The diagnosis was a back strain.

A Doctor First Report dated July 12, 2011 indicated that the worker's "left leg went through rungs as ladder toppled over. He landed on right foot and right hip in twisted position. Able to walk after accident. Went to ER." The diagnosis was mechanical low back and left hip pain.

On July 13, 2011, the worker advised the WCB that the top rung of the ladder gave out and that he fell awkwardly with the ladder on his right side. He also sustained injury to his left side.

The claim for compensation was accepted and the worker returned to his regular duties by September 26, 2011. Prior to his return to work, the worker continued to seek medical treatment for his low back and left hip. The worker indicated that his hip "doesn't want to stay in." On December 19, 2011, the worker stated that he was managing at work and was occasionally sore at times but had not regressed to the way he was at the time of his compensable injury.

The worker filed a new claim with the WCB for a back injury that occurred on April 2, 2012. The worker reported that he was carrying a pail of water when he twisted and felt a jolt in his back.

On April 10, 2012, the worker advised the WCB that from the time of his 2011 claim to the date of his April 2, 2012 accident, he continued to experience hip difficulties which he thought may be related to his 2011 claim but he was able to perform his work duties without any difficulties until the April 2, 2012 back injury.

Responsibility for the April 2, 2012 accident was accepted by the WCB and the worker returned to his full work duties on May 17, 2012.

On July 17, 2012, an MRI assessment of the worker's left hip revealed the following:

"Small focus of marrow edema in the posterior aspect of the left femoral head with a possible fracture line noted on the T1-weighted sequence. A small subchondral impaction fracture cannot be excluded. As well, there is degenerative fraying of the superior left hip labrum. A small left hip joint effusion is present."

When seen for treatment on July 18, 2012, a nurse practitioner reported that the worker had marked pain with left hip internal rotation and abduction. His gait was antalgic, favoring the left.

As of July 25, 2012, the worker stopped working due to his left hip difficulties.

On August 23, 2012, the treating surgeon outlined his examination findings and suggested that the worker undergo a hip arthroscopy.

The worker was seen by a WCB orthopaedic consultant at a call-in assessment on September 20, 2012 and the following opinions were outlined:

• July 11, 2011 MRI of the left hip: "On reviewing the images, I agree with the radiology report that there is some degenerative fraying of the labrum of the left hip superiorly. The joint space in both hips is within normal limits. Marrow edema of the left femoral head is noted. The clinical findings together with the MRI appearance of the femoral head suggests minor degree of degenerative change rather than a fracture, and I have told the claimant my opinion on this. Also, the presence of even a small fracture would be inconsistent with him comfortably running 11 km at about the same time as the MRI study."
• The current left hip symptoms were caused by left hip impingement syndrome with degenerative fraying of the acetabular labrum. This was supported by positive clinical impingement test and by the MRI findings of degenerative fraying of the left hip labrum.
• The workplace injury of July 11, 2011 caused a low back strain in the environment of pre-existing degenerative disc disease. The degenerative hip condition was not the result of the workplace injury on a balance of probabilities. These findings were based on the contemporary reports of the physician, chiropractor and physiotherapist.
• There was no requirement for workplace restrictions and the worker was instructed to refrain from further running for 3 months.

Based on the WCB medical opinion following the call-in assessment, the WCB determined that no responsibility would be accepted for the worker's left hip difficulties and subsequent time loss as a relationship had not been shown to exist between his work injury and his left hip difficulties. On October 18, 2012, the worker appealed the decision to Review Office.

On July 25, 2013, Review Office determined that the worker was not entitled to further compensation. Review Office accepted that the worker suffered an injury to his left hip and that it resolved in short order. It was felt that the compensable accident, at most, temporarily aggravated the pre-existing degenerative changes in the worker's left hip. Review Office placed weight on the following evidence:

• The transient nature of the worker's left hip complaints.
• The comparatively minor findings on exam of the worker's left hip.
• The orthopaedic consultant's interpretation of the MRI results and his medical opinion.
• The worker's ability to run post accident.

On October 7, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information which was later provided to the worker and his employer for comment. On March 4, 2014, the panel met further to discuss the case and render its decision.

Reasons

Applicable Legislation

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 has an accepted claim for a low back and left hip strain. The worker is appealing the WCB decision that he is not entitled to further compensation benefits arising from the workplace accident of July 11, 2011.

Relevant provisions of the Act include:

ss. 4(1) provides that 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.

ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, …

ss. 40(1) provides that the loss of earning capacity is the difference that the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

Worker's Position

The worker was represented at the hearing by the Executive Vice President of his union.

The union representative reviewed the Review Office decision and noted that 3 reasons have been provided for the denial of the worker's request:

1. The possibilities of the worker getting hurt when he fell off the ladder and the possibility of him landing on his left leg is remote: He noted that Review Office said it’s very difficult for him to get hurt the way the worker claims. He pointed out that the vehicle he was working in was on a slant and the stepladder was a little bit on a slant and when he fell, nobody knows how he fell. He said the worker doesn't know exactly what position he fell in.

2. There is a pre-existing condition: The worker's representative submitted there is no mention at all in any of the doctors’ reports or elsewhere of any pre-existing condition. The simple fact is that the worker has never gone to see his family doctor about any hip problems. He noted that the worker is very active, very athletic, and never had any problems with his hip.

3. When the worker had an accident in July 2011, he went to a hospital and the hospital assessed him as just having a sprain: He noted only an x-ray was taken and it did not show everything, when there should have been an MRI or CT scan or something done at that time.

The worker was asked about further medical treatment, his current medical and work status.

The worker advised that he saw another orthopaedic surgeon and is slated to have surgery in April 2014 for some fraying. He said the orthopaedic surgeon could not determine whether the fraying was caused by the accident or was a pre-existing condition. The worker said that at this point only his hip is bothering him and that his back is not bothering him. He said that "right from the beginning I thought it was my back." Later he felt groin pain and attributed his pain to his hip. He said that once in a while he gets groin pain which occurs when he torques his leg, puts weight and turns left.

The worker said that he was able to return to work and perform his duties, but that putting weight on his leg and turning left caused pain.

The worker said that he has been running for 5 or 6 years. He said he would run 3 to 4 times per week for distances of either 6 or 11 kilometers. He runs outdoors except in the winter when he uses an elliptical machine. He thinks he returned to running in the spring of 2012.

The worker said that he was off work for two months while the claim was adjudicated. He said his doctor provided a note indicating that he should be off work because his bone is cracked. He said he returned to work after he had the second MRI which indicated that there was no crack.

Employer's Position

The employer was represented by its Compensation Coordinator who provided a written submission.

The employer representative submitted that for the worker's appeal to be successful, there must exist reasonably compelling evidence that, on a balance of probabilities, establishes a relationship between the worker's hip complaints and the compensable incident. He expressed the opinion that the evidence fails to establish this.

The employer representative noted that initially there were some references to the worker's left hip but that he returned to full duties effective September 26, 2011. He noted that the worker saw the treating nurse practitioner on November 1, 2011 and that she made no findings or comments about the worker's left hip. He noted that the worker had another work injury on April 2, 2012. Initial reports from the hospital and attending physician, after this second injury, made no reference to any hip complaints.

The employer representative noted that a physiotherapy report dated April 9, 2012 noted "L/S strain/sprain (hip strain?)". The physiotherapist again referred to hip complaints on May 16, 2012 and on July 18, 2012 a nurse practitioner noted marked pain with left hip internal rotation and abduction.

The employer representative noted that the worker was seen by an orthopaedic surgeon and the file was subsequently reviewed by a WCB orthopaedic consultant. He noted that the WCB orthopaedic consultant concluded that "The workplace injury of July 2011 caused low back strain in the environment of pre-existing degenerative disc disease. The degenerative hip condition is not the result of the workplace injury, on balance of probabilities."

The employer submitted that "…there is no evidence, medical or otherwise, capable of supporting a relationship between [the worker's] left hip problems and the compensable accident of July 11, 2011. On July 18, 2011, the attending physician reports a "normal gait" and a "full ROM of the hip in all directions." The same physician saw [the worker] again on 4 subsequent occasions and a "normal gait' was noted each time. It was not until 1 year later, on July 18, 2012, that a nurse practitioner references the MRI findings of July 17, 2012, an altered gait and left hip pain. We believe that the prolongation of [the worker's] hip problems are, based on file evidence, more likely than not, attributable to other factors such as long distance running."

In response to the medical report which the panel obtained after the oral hearing, the employer representative noted that the report was based upon the history provided by the worker which described an unabated hip symptomatology. The employer representative said that the file evidence does not support this history. He submitted that the preponderance of evidence fails to establish the necessary nexus between the hip problem that arose in 2012 and the compensable injury of July 11, 2011.

Analysis

The issue before the panel is whether the worker is entitled to further compensation benefits in relation to his compensable accident of July 11, 2011.

For the worker's appeal to be successful, the panel must find that worker continues to require compensation benefits as a result of the 2011 workplace accident which would require the panel to find that the worker has not recovered from the effects of the 2011 workplace injury and that the left hip injury is related to the 2011 workplace injury.

The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker recovered from the 2011 workplace accident, that his current hip condition is not related to his 2011 workplace accident and that he is not entitled to further compensation benefits in relation to the July 11, 2011 accident.

In making this decision, the panel finds that the preponderance of file evidence suggests that the hip condition noted at the time of the accident was minor and did not play a role in the worker's original time loss. This is consistent with the worker's evidence at the hearing, that his back was the problem at that time.

The panel notes that the initial medical findings respecting the hip were generally negative. The medical report from the hospital does not refer to the hip although it is referenced in the Triage Assessment. The nurse practitioner who saw the worker on July 12, 2011 found no pain in the hips on palpation, full range of motion ("ROM") in both hips, Patrick test elicited no pain. She did note an abnormal gait due to left hip pain. On July 1, 2011, the nurse practitioner noted hip ROM- full in all directions and negative Patrick's test. A July 18, 2011 report from a physiotherapist made no reference to hip complaints.

The panel notes that the worker received no medical attention between November 1, 2011 and April 2, 2012 and continued to work at his regular duties. This suggests that his injury, including any hip injury, had resolved.

The panel also notes that the worker is a recreational runner and was able to run after the injury including a distance of 11 kilometers around the time of the July 17, 2012 MRI. This does not support a finding that he was not able to work due to a hip injury.

The panel relies upon the opinion of the WCB orthopaedic consultant who examined the worker on September 20, 2012. The consultant opined that the worker's current hip symptoms are caused by left hip impingement syndrome with degenerative fraying of the acetabular labrum and are consistent with a positive impingement test and the MRI findings of degenerative fraying of the left hip labrum. The WCB orthopaedic consultant concluded that the worker's degenerative hip condition is not the result of the workplace injury.

The panel also notes that the worker was seen by an orthopaedic surgeon on August 23, 2012. The orthopaedic surgeon referred the worker to another orthopaedic surgeon for a hip arthroscopy. He noted that the worker does not have an unstable significant fracture problem requiring fixation. He also noted that the MRI found degenerative fraying in the superior labrum aspect with associated marrow edema in that area. He concluded that "there is not likely a great deal of point in keeping him on sedentary duties….he can keep up a reasonable level of activity and just evaluate how things are going." In the panel's view, these findings of degenerative fraying are not consistent with an acute injury, and lend further support to the conclusions reached by the WB orthopaedic consultant.

In conclusion, the panel finds, on a balance of probabilities, that the worker is not entitled to further compensation benefits in relation to his compensable accident of July 11, 2011. The panel is unable to relate the worker's left hip complaints in 2012 to his 2011 workplace accident.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of March, 2014