The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she had recovered from the effects of her compensable injury diagnosed asa fracture of the left heterotopic bone. A hearing was held on February 24, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after June7, 2013.

Decision

That the worker is not entitled to benefits after June 7,2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left hip injury that occurred at work on March 14, 2012. The worker described the incident as follows:

...the fire alarm sounded and everyone began evacuating their offices. I quickly grabbed my crutches (for mobility, I use a pair of crutches and a wheelchair) I work on the 5th floor and tried the elevators, but they were not functioning. I therefore had to use the stairs (60 steps) with the assistance of a colleague holding my left arm. I have a condition called Osteogenesis Imperfecta which means my bones are prone to fracture easily. On that day, (Mar 14 2012) I cracked my hip as a result of the rapid succession and quantity of steps while evacuating the building.

On April 22, 2012, a WCB medical advisor reviewed hospital and laboratory test results on file and provided the following opinion:

• the diagnosis related to the workplace injury was an occult left proximal femur fracture.
• in the context of osteogenesis imperfecta ("O.I."), fractures may occur with very little applied trauma. It was likely that the workplace injury as described, the pain that followed and the bone scan evidence of a left femur fracture was consistent with one another.

On August 9, 2012, the worker was seen by a WCB orthopaedic consultant at a WCB call-in examination and the following was documented:

• the March 14, 2012 workplace injury caused fracture of the heterotopic bone adjacent to the left femur.
• weight bearing potential of the diaphysis of the left femur was not compromised.
• O.I. with marked heterotopic femoral ossification was a pre-existing condition.
• it was probable that the injury affecting the heterotopic bone will cause increased bulk of the heterotopic bone in reaction to the injury.

On March 7, 2013, the WCB orthopedic consultant reviewed a medical report from the treating orthopedic specialist dated January 30, 2013 and stated:

• subjective complaints of left proximal lateral thigh pain are reported in the January 30, 2013 report. This would indicate that the worker had not returned to the level of comfort said to have been the case prior to the workplace injury.
• the imaging reports indicated that there was the capability of weight bearing on the left lower limb.
• in my opinion, the workplace injury caused fracture of the heterotopic bone beside the left femur. That was also the opinion of the treating orthopedic specialist although he referred to the heterotopic bone as "osteophyte." In my opinion, the workplace injury continues to cause symptoms. It was known that a long period of time must elapse before damage to heterotopic bone resolves and the bone becomes "mature".

On May 10, 2013, a WCB medical advisor reviewed the worker's file to determine if she was capable of returning to work. The medical advisor stated:

In review, the worker reported increased pain to her lateral left hip after having to walk down stairs during a fire alarm at her office. She is known to have osteogenesis imperfecta. After thorough investigations and assessments, it was determined that the lateral hip pain may be coming from some heterotrophic bone in the area. This is a complication of her disease and only this local area would be related to her workplace accident.

There was consideration for surgery, but the surgeon has recently determined that the risk/benefit ratio is unfavourable so is not recommending it.

The surgeon did recently note that the worker could start the return to work process.

From review of all available information, in relation to the effects of the C/I (compensable injury), the worker is fit to start a GRTW (graduated return to work) program, provided she is able to do so in her wheelchair. An appropriate schedule would be to start at 2 hours per day for one week. If tolerated, then increase by 2 hours per shift per week until at full time hours.

A medical certificate signed by the worker's treating specialist dated May 13, 2013 indicated that the worker was "Unable to work at present. Inability to work is due to chronic pain and her disease."

On May 16, 2013, the WCB orthopedic consultant referred to the May 13, 2013 medical certificate. He noted that the worker's disability was related to the overall diagnosis of O.I. rather than the specific workplace injury. It was felt that the worker's level of recovery from the workplace injury would support a graduated return to work in the absence of other non-compensable considerations.

By letter dated May 16, 2013, the worker was advised of the WCB's decision that she had recovered from the effects of her compensable injury to the point where she could participate in a graduated return to work. It was also the WCB's position that her need for total disability was now related to her pre-existing condition and the effects of same. Details of the graduated return to work program were outlined in the letter.

File records showed that the worker's claim was reviewed by a WCB medical advisor on July 1, 2013 and that the worker was seen by the WCB's orthopedic consultant at a call-in examination on December 17, 2013.

In a letter dated January 13, 2014, the worker was advised that no change would be made to the May 16, 2013 decision. The WCB's position was that the worker suffered an incomplete fracture of a pre-existing heterotopic bone mass of the left proximal femur. The fracture had healed with no significant increase in volume of the heterotopic bone as confirmed by the CT scan. It was felt that there was no evidence that the compensable injury had enhanced the pre-existing condition.

Regarding the worker's complaints of left hip joint pain, the WCB felt there was no evidence that the compensable injury caused an injury to the hip joint. The WCB's opinion was that the deterioration of the hip joint motion was related to the pre-existing medical condition. The diagnostic tests failed to show any evidence of a bone injury in the left hip joint. After reviewing the recent CT scan and WCB examination, the WCB remained of the opinion that the worker had recovered from her compensable injury and her ongoing medical findings were not related to the compensable injury.

On March 20, 2014, the worker's union representative provided the WCB with a March 10, 2014 report from the treating specialist to support that the worker had not recovered from the effects of her compensable injury. The specialist stated: The worker "is still having a lot of difficulty with posterior and lateral thigh pain which has come on since her workplace injury. I do not believe she has fully recovered. She has severe chronic pain. She still has extreme difficulty in sitting for any significant duration; she cannot walk more than a short distance. Her functional ability has significantly deteriorated since the injury." The specialist also stated "her physical condition has severely been aggravated by the workplace injury on March 24, 2012" and "the fracture of the heterotopic bone has led to a significant disability."

In a decision dated April 9, 2014, a WCB sector manager advised the worker's union representative that he reviewed the recently submitted medical report and that he agreed with the WCB adjudicative decision outlined on January 13, 2014.

On April 16, 2014, in a letter to the WCB, the treating specialist stated:

I feel that the large mass of heterotopic bone at the posterolateral aspect of the femur may certainly be causing her pain. The massive bone is in the area where she had sustained her work related injury and the fracture of the heterotopic bone. I can only go by the patient's version that she was functioning very well before her work related injury and now she has had a dramatic decline in her ability to function.

On May 28, 2014, the worker's union representative requested that Review Office reconsider the decision made on April 9, 2014. The union representative stated:

• the worker had a pre-existing condition that was enhanced by her workplace injury in accordance with WCB policy.
• the worker was able to attend work on a regular and recurring basis prior to the compensable injury and was not using her wheelchair on a daily basis. The worker was able to engage in all activities of daily living by using her crutches only.
• since the workplace injury, the worker was restricted to using her wheelchair exclusively. The worker could no longer attend church or engage in other activities because she could not sit comfortably for an extended period of time and was in constant pain.

The union representative referred to the medical reports of March 10 and April 16, 2014 to support that the worker had not recovered from the effects of her compensable injury and that she continued to have a loss of earning capacity.

On July 21, 2014, the worker's employer submitted to Review Office that the compensable injury did not cause an aggravation or an enhancement to the worker's pre-existing condition and that the WCB orthopedic consultant confirmed that the worker had recovered from the effects of her compensable injury. Therefore the WCB decision to end benefits was appropriate.

Prior to considering the worker's appeal, Review Office sought medical advice from the WCB orthopedic consultant on August 27, 2014. The consultant stated:

• the volume of the mass of heterotopic ossification related to the left femur and pelvis is not significantly increased when CT of March 20, 2014 is compared to the CT scan of September 27, 2012. This mass of heterotopic ossification was related to the pre-existing O.I. and not to the workplace injury. The degree of disability was related to the overall severity of the O.I. including the hip protrusion and loss of hip motion, and not the specific area of heterotopic ossification.
• in the absence of non-compensable considerations, the level of recovery following the workplace injury would have allowed return to pre-injury working ability.
• the current restriction of function was related entirely to the diagnosis of O.I. and not in any way to the workplace injury.

On September 11, 2014, Review Office determined that there was no entitlement to benefits beyond June 7, 2013. Review Office indicated that for the purposes of the worker's appeal, the pre-existing condition was the heterotopic bone beside the left thigh in keeping with O.I. Review Office referred to specific file documentation to support that the worker's ongoing difficulties/symptoms were related to the overall severity of her O.I. including the hip protrusion, loss of hip motion and not to the specific fracture area of heterotopic ossification. It found that the compensable injury was no longer contributing to the worker's disability and that the worker's ongoing difficulties were not related to the workplace accident of March 14, 2012. Review Office was also of the view that the graduated return to work was appropriate.

On September 22, 2014, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker attended the hearing and was assisted by a union representative. It was submitted that when the worker commenced her employment with the accident employer on February 8, 2012, she was candid about the nature of her pre-existing medical condition, which was Type 4 osteogenesis imperfecta ("OI"), otherwise known as brittle bone disease. The prognosis for a person with OI varied greatly depending on the number and severity of symptoms. Despite numerous fractures, restricted physical activity and short stature, most persons with OI lead productive and successful lives. It was submitted that this was the case for the worker prior to her workplace accident. She enjoyed a high level of functioning in her day-to-day activities, including completing all household tasks, cooking and cleaning, and was able to regularly attend her church. She reported for work on a regular and consistent basis, and relied primarily on her crutches for assistance with mobility. She used her wheelchair at work only when she was required to transport heavy work files, because doing so while utilizing crutches would have been impossible.

All of this changed significantly after the workplace accident. The worker was immediately aware she had sustained an injury and described the pain as being unlike anything she had experienced before. The seriousness of the injury was different and to date, the worker had never fully recovered from it. It was submitted that the workplace injury caused a permanent change to the heterotrophic bone beside the left femur. This would be considered an enhancement of the pre-existing condition to this area. As a result of the injury, the worker had been in not only great physical distress but also suffered psychologically with the profound impact the injury had on her life. When the worker's benefits were terminated by the WCB in June 2013, the worker was still suffering from psychological issues related to the compensable event and was also continuing to struggle with ongoing chronic pain specific to her compensable injury. Both these conditions contributed to the worker's loss of earning capacity.

In making its decision, the WCB ought to have considered the worker's functional abilities before and after the accident, that the worker's condition never significantly improved since her accident, and that her psychological condition had continued to deteriorate. The diagnosis of chronic pain was identified as a factor in the worker's inability to return to work by the treating physician. It was submitted that the WCB did not consider the diagnosis of chronic pain when it determined the worker could return to work. The over-reliance on imaging studies by the WCB was a concern as the CT scans, MRIs and x-rays had proven not to be the most accurate diagnostic tool when evaluating the worker's injury.

It was therefore submitted that the worker continued to suffer the effects of her compensable injury and that she continued to have a loss of earning capacity when her benefits were terminated by the WCB.

Employer's position:

The employer was represented by its claims coordinator and the worker's section manager. The employer's position was that it was in agreement with the decisions made by the WCB. The employer did not question acceptance of the claim but agreed that by June 7, 2013, the worker's restrictions in functioning were related entirely to the diagnosis of OI, and not in any way to the workplace injury.

With respect to the issue of enhancement, it was submitted that the effects of the compensable injury would not affect the worker's OI in any areas other than the heterotrophic bone beside the left femur. The WCB orthopedic consultant reviewed imaging reports and stated that the volume of the mass of heterotrophic ossification related to the left femur and pelvis was not significantly increased when the studies of March 20, 2014 and September 27, 2012 were compared. The conclusion was that there was no enhancement.

Overall, it was submitted that the worker's pre-existing condition was the dominant issue and that she had recovered from the compensable injury. As there was no enhancement of the pre-existing genetic disorder, the worker was not entitled to further benefits.

Analysis:

The issue is whether or not the worker is entitled to benefits after June 7, 2013.

In order for the appeal to succeed, the panel must find that the worker's compensable injury either required medical aid or caused her to suffer a loss of earning capacity beyond that date. On a balance of probabilities, we are not able to make that finding.

After careful review of the medical evidence, the panel concludes on a balance of probabilities that the compensable injury was limited to an occult fracture to the heterotopic bone beside the left femur and that by June 7, 2013, the effects of this injury had resolved sufficiently to allow the worker to participate in a graduated return to work. In coming to this decision, the panel placed significant weight on the opinion of the WCB orthopedic consultant who was extensively involved in the management of this case. At the call-in examination of August 9, 2012, the WCB orthopedic consultant noted that the workplace injury caused a fracture of the heterotopic bone adjacent to the left femur but that the weight bearing potential of the diaphysis of the left femur was not compromised. At that time, the WCB orthopedic consultant observed that it would be probable that the injury affecting the heterotopic bone would caused increased bulk of the bone in reaction to the injury.

On subsequent review on March 7, 2013, the WCB orthopedic consultant noted that in his opinion, the heterotopic bone fracture continued to cause symptoms and that it was known that a long period of time must elapse before damage to heterotopic bone resolves and the bone becomes "mature."

By March 10, 2014, the worker's treating orthopedic surgeon noted that x-rays showed well organized heterotopic ossification throughout the length of the femur and that it appeared that the fracture the worker sustained had healed.

In his opinion of August 27, 2014, the WCB orthopedic consultant noted that after recovery from the fracture, the volume of mass of heterotopic ossification related to the left femur and pelvis was not significantly increased when the CT of March 20, 2014 was compared with the CT of September 27, 2012. From this, the panel notes that it would therefore appear that the structure of the heterotopic ossification did not change much and, contrary to the earlier concerns of increased bulk expressed by the WCB orthopedic consultant in August 2012, this did not become the case.

The treating orthopedic surgeon has indicated that he is perplexed as to the degree of pain the worker is having and has discussed with the worker possible surgery to debulk the mass of heterotopic ossification. The heterotopic ossification was present prior to the workplace accident and its volume did not significantly increase as a result of the compensable injury. The medical record shows that the worker did experience left hip pain prior to the workplace accident and on August 6, 2011, sought medical attention at a hospital emergency department complaining of 6/10 chronic left hip pain. At the hearing, the worker explained that on that date, she had been stranded in an elevator lobby for an extended period of time with only a hard bench to sit on. This history is not entirely consistent with the triage assessment report which indicates "no trauma or injuries associated with the pain" but in any event, the panel is satisfied that the 2011 medical report evidences chronic left hip pain which predated the workplace accident. We do not accept that the worker was functioning "very well" before her work related injury. There is evidence of some previous difficulties.

The panel also notes that the worker had only been working for the accident employer for approximately five weeks before the accident, and had not earned income for the two years prior. Accordingly, there is no history of extended sustained functioning in the workplace. We acknowledge the worker's explanation that, while willing and able, she had not been able to secure employment. Nevertheless, there leaves some question as to the stability of the worker's condition prior to the accident.

Finally, the panel notes that the workplace accident itself did not involve a direct acute trauma or blunt force. The occult fracture sustained by the worker occurred as she descended six flights of stairs. In a person without OI, this would not be expected to cause injury. In the panel's opinion, the mechanism of injury demonstrates the fragile nature of the worker's condition at the time of the accident.

On a balance of probabilities, the panel accepts the WCB orthopedic specialist's opinion that the worker's degree of disability was related to the overall severity of the OI and that in the absence of non-compensable considerations, the level of recovery following the workplace injury would have allowed return to pre-injury working ability.

At the hearing, the worker's union representative referred to psychological issues which are alleged to be related to the effects of the compensable injury. As the issue regarding compensability of the worker's psychological status has not been previously adjudicated by the WCB, the panel is without jurisdiction to consider this issue.

The panel therefore finds that the worker is not entitled to benefits after June 7, 2013. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of March, 2015