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 condition was not related to the effects of hiscompensable workplace injury.  A hearingwas held on January 7, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits after June 10, 2014.

Decision

That the worker is not entitled to benefits after June 10, 2014.

Decision: Unanimous

Background

On March 28, 2014, the worker injured his left hip and buttocks when he slipped on ice. On April 3, 2014, the worker sought medical treatment and was assessed with the following conditions: Left hip osteoarthritis, pain exacerbated by fall, likely some soft tissue injury - will rule out occult fracture with x-ray.

At a follow-up visit on April 15, 2014, the treating physician reported that the worker had pain with weight bearing and when lying on his left hip. Examination showed an antalgic gait and the worker used a cane to ambulate. The worker had pain with passive internal and external rotation and was still mildly tender over the left trochanter. The physician stated that the worker had underlying left hip osteoarthritis ("OA") and that he had been referred to an orthopedic surgeon prior to his fall.

On April 30, 2014, the worker's claim file was reviewed by a WCB orthopedic consultant who stated:

· The diagnosis related to the workplace injury was a contusion of the left hip in the environment of pre-existing hip OA based on the limited amount of medical information.

· The natural history of a contusion would be spontaneous resolution within six weeks.

· The natural history of pre-existing OA would be deterioration over several years, with increasing episodes of stiffness and pain and difficulty walking.

· There was a lack of objective medical evidence to suggest that referral for orthopedic treatment was related to the workplace injury.

The WCB obtained additional information related to the worker's medical treatment prior to March 28, 2014. On May 14, 2014, the treating physician noted that the worker was seen on February 27, 2013 with left hip pain as his main concern. On December 2, 2013, the worker was recalled to the clinic to discuss x-rays findings of left hip - severe OA interpreted by the radiologist. On March 10, 2014, the worker was seen for right hip pain as well as left hip pain.

In report to the WCB dated June 4, 2014, the treating orthopedic surgeon noted that the worker had been seen for significant bilateral hip OA, worse on the left than on the right. The surgeon stated:

At the time, [the worker] was off of work due to a slip and fall and aggravation of his symptoms. Previous to his fall, [the worker] was able to cope with work, but just barely with having pain and dysfunction, particularly doing any degree of lifting. He had not had to miss any time off work. He did have a slip and fall and landed on his left hip. At that time, he was off work due to aggravation of his osteoarthritic symptoms with both pain and dysfunction and inability to mobilize any great distance...At the time, an x-ray confirmed that there was a dislodgement of the superior osteophyte off his acetabulum likely related to his slip and fall...It is not an uncommon occurrence for patients with significant osteoarthritis, who are barely coping, to have an aggravating injury which then sets off a cascade of inflammation and pain which can take months and months to resolve and I feel that [the worker] is currently in this phase of his recovery.

In a decision dated June 4, 2014, the worker was advised that the WCB was not accepting responsibility for his ongoing left hip problems after June 10, 2014. The case manager noted that the worker's claim had been accepted for an aggravation of pre-existing OA and it was expected that after being off work for over ten weeks the aggravation would have resolved. There was no evidence of an enhancement of the worker's pre-existing issues.

In Claim Notes dated June 26, 2014, the WCB orthopedic consultant stated the following after he reviewed the x-ray films of the pelvis and both hips dated April 25, 2014:

There is no x-ray evidence to suggest that the workplace injury aggravated or enhanced the chronic condition of severe bilateral OA of both hips.

In a further decision dated June 30, 2014, the WCB advised the worker that based on the recent WCB medical opinion, the WCB was unable to establish that his ongoing left hip difficulties were a direct result of his accident. On July 24, 2014, the Worker Advisor Office appealed the June 4 and 30, 2014 decisions to Review Office on the basis that the worker's ongoing symptoms and restrictions were the result of the combined effects of his underlying OA and the March 28, 2014 compensable injury. He argued that the worker's pre-existing condition was aggravated to the extent that it made surgery necessary.

On October 27, 2014, Review Office determined that there was no further entitlement to benefits beyond June 10, 2014. In making its decision, Review Office noted that the worker had been disabled to a degree with respect to his left hip condition prior to his compensable accident. Review Office disagreed that the slip and fall on March 28 made left hip surgery necessary and it accepted the WCB medical opinion of April 10 that the diagnosis of the workplace injury was a contusion of the left hip in the environment of pre-existing hip OA. It felt that a soft tissue contusion would not cause disability 10 and a half weeks after the initial injury. As of June 10, 2014, Review Office felt that the worker no longer suffered a loss of earning capacity and therefore he was not entitled to wage loss or medical aid benefits beyond that date. On October 31, 2014, the Worker Advisor Office 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 included a copy of the operative report related to the worker's left hip surgery and the surgeon's opinion regarding the condition of the worker's left hip at the time of surgery. A response from the surgeon was later received and was forwarded to the worker advisor for comment. On March 10, 2015, the panel met further to discuss the case and rendered its decision.

Reasons

Applicable Legislation and Policy

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 left hip injury. He is seeking benefits, both wage loss and medical aid, after June 10, 2014.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The worker has a pre-existing condition. WCB Policy 44.10.20.10, Pre-existing Conditions, may be applicable to his case. The policy provides guidance in dealing with cases which involve a pre-existing condition. With respect to wage loss eligibility it provides that:

1. WAGE LOSS ELIGIBILITY

(a) When a worker’s loss of earning capacity is caused in part by a compensable injury 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 compensable injury.

(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 compensable injury 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.

The policy also provides definitions of aggravation, enhancement and pre-existing condition.

Worker's Position

The worker was represented by a worker advisor who provided a written submission and an oral summary.

The worker's representative submitted that the worker is entitled to benefits beyond June 10, 2014 in relation to his compensable left hip injury, because the evidence supports that his ongoing difficulties are, on a balance of probabilities, causally related to his workplace accident.

The worker's representative noted that prior to his March 28, 2014 injury, the worker was able to perform his workplace duties but that after the injury, the worker was not able to work. He submitted that prior to the workplace accident the worker was not disabled and was able to work in a relatively physical demanding occupation despite progressively worsening osteoarthritis of his left hip.

The worker's representative noted that the worker's employer confirmed the worker had been fully functional prior to the accident.

Regarding medical information, the worker's representative noted that the family physician's chart notes confirm that the worker sought medical attention for hip pain in 2013 but do not confirm that his hip joint had deteriorated to the point that it was causing any disability. He submitted that the physician's suggestion that hip replacement may become necessary, appeared to be based solely on x-ray results, not increased complaints. The representative noted that the physician's report after the injury indicates an exacerbation of osteoarthritis and probable soft tissue injury.

The worker's representative noted the WCB orthopedic consultant's opinion that the worker's compensable diagnosis of "a contusion" occurred in "the environment of pre-existing hip osteoarthritis."

The worker's representative attached significant weight to the treating orthopedic surgeon opinion that "it is not an uncommon occurrence for patients with significant osteoarthritis, who are barely coping, to have an aggravating injury which then sets off a cascade of inflammation and pain which can take months and months to resolve." He noted the physician's comment that "At the time, an x-ray confirmed that there was a dislodgement of the superior osteophyte of his acetabulum likely related to his slip and fall..."

The worker's representative stated that the WCB's assessment that the worker's condition was disabling is not supported by the evidence. He submitted that the workplace accident accelerated the expected course of the worker's osteoarthritis which hastened his need for surgical treatment. He relied upon the Pre-existing Condition policy to support the worker's position.

The worker's representative provided a further submission upon receipt of additional information from the orthopedic surgeon. He submitted that the orthopedic surgeon's report supports the worker's position that the workplace accident had exacerbated his pre-existing disease. He suggested that the "abundance of osteophytes" the orthopedic surgeon removed during the operation supports the likelihood that one had, on a balance of probabilities, been dislodged as a result of the workplace accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to further benefits after June 10, 2014. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid benefits after June 10, 2014 as a result of his workplace injury. The panel was not able to make this finding. The panel finds that the worker is not entitled to wage loss and medical aid benefits after June 10, 2014.

In arriving at this conclusion, the panel has considered all the evidence on file including the recent medical information from the orthopedic surgeon, the worker's evidence at the hearing and the submissions from the worker's representative.

The panel notes that the worker had a significant pre-existing left hip condition at the time of the accident and was being referred to a clinic for consideration of left hip replacement. The worker's medical records from his family physician note, in part:

• February 27, 2013, the worker saw the physician regarding hip pain, x-rays ordered
• September 19, 2013 chart notes indicate "long hx (history) of left sided leg pain - unable to fully extend leg w/out pain in groin/anterior leg. Denies leg weakness, no numbness/tingling." The chart notes also indicate that the worker was unable to extend his leg fully lying supine - pain over hip flexors. The chart also notes other medical issues.
• December 13, 2013 - "Reviewed hip x-ray - severe OA- patient likely will need hip replaced but financially cannot stop working (self-employed)", "Think about referral to hip and knee clinic"
• March 10, 2013 "hip pain left and now right side", "antalgic gait", "left hip severe-will refer to hip and knee clinic for consideration of replacement"

On March 28, 2014, the worker sustained a left hip injury in a fall at work. The family physician examined the worker on April 3, 2014. The chart notes indicate a diagnosis of "left hip OA, pain exacerbated by fall, likely some soft tissue injury."

While the issue is noted as entitlement to additional wage loss and medical aid benefits, it revolves around the question of whether the workplace accident caused an aggravation of the worker's condition which resolved or enhancement of the condition to the point that left hip replacement surgery became necessary. The panel finds, on a balance of probabilities, that the worker's workplace injury did not enhance the condition. The panel finds that the workplace accident did not cause or expedite the need for left hip replacement surgery; rather, the panel finds that the workplace accident resulted in an exacerbation of pain in the left hip and a soft tissue injury, as noted by the worker's family physician. This is also consistent with the opinion of the WCB orthopedic consultant that the worker had contusions in the environment of pre-existing hip osteoarthritis.

The panel notes that the worker's left hip was a seriously deteriorating condition as noted in the medical reports of the family physician. This is demonstrated in the March 10, 2014 report which notes that the worker's right hip has also become painful and that the worker has been prescribed a new medication. As well the physician notes that she "will refer to hip and knee clinic for consideration of replacement." This was only 18 days before the workplace injury.

The panel considered the June 4, 2014 medical report from the orthopedic surgeon and sought additional information from him. The panel asked the orthopedic surgeon whether he had observed any evidence of an acute injury or damage to the left hip that could have resulted from the slip-and-fall incident of March 28, 2014. The orthopedic surgeon responded in a report dated January 28, 2015 as follows:

"I certainly did not attempt to identify any dislodged osteophytes as my focus at that time was placement of a hardware and ensuring a good outcome...I am unable to confirm nor deny that there was a potential injury to the left hip as the result of the 28 March 2014 slip-and-fall and I am unable to confirm or deny whether there was an osteophyte dislodged."

The orthopedic surgeon was also asked whether he believed the worker could have been able to continue on his current employment for another year if he did not have the accident. He responded that:

"Certainly at the time of my initial assessment of [the worker] on April 25, 2014, he reported to me that he was working prior to his slip-and -fall. I have no reason to believe that he would not have been able to continue to work."

The panel finds that the evidence, including the orthopedic surgeon's evidence, does not establish, on a balance of probabilities, that the hip replacement surgery was required as a result of the workplace accident.

The panel attaches significant weight to the WCB orthopedic consultant's review of the April 25, 2014 x-ray film and opinion that "There is no x-ray evidence to suggest that the workplace injury aggravated or enhanced the chronic condition of severe bilateral OA of both hips." The panel finds this to be consistent with the opinion of the radiologist who did not identify an acute injury. As well, the panel finds that the worker's condition was deteriorating. This is seen in the referral to a surgeon by the family physician. The family physician's referral to a surgeon progressed from a suggestion to an actual referral before the accident occurred.

Regarding the issue before the panel on entitlement to benefits after June 10, 2014, the panel finds that the worker is not entitled to wage loss and medical aid benefits beyond this date. The panel acknowledges that the worker had a significant pre-existing condition which delayed his recovery but finds that by June 10, 2014, the worker would have recovered from his workplace injury and is not entitled to benefits beyond this date.

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 19th day of March, 2015