The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")

that she was no longer entitled to wage loss and medical aidbenefits after October 21, 2014 in relation to her compensable right ankleinjury.  A hearing was held on April 13, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss andmedical aid benefits after October 21, 2014.

Decision

That the worker is entitled to wage loss and medical aidbenefits after October 21, 2014.

Decision: Unanimous

Background

On November 22, 2010, the worker struck her right ankle on the corner of a metal cart. On February 7, 2011, the treating physician questioned whether the worker suffered a fifth metatarsal fracture. Subsequent reports provided a diagnosis of bone bruising at the distal tibia of the right foot.

On September 29, 2011, the WCB advised the worker that there was insufficient information to establish a direct relationship between her right foot difficulties and the work accident of November 22, 2010.

On May 9, 2012, the worker appealed the above decision to Review Office based on additional medical information which diagnosed the worker's foot condition as tarsal tunnel syndrome.

On November 6, 2012, Review Office determined that the worker's right foot difficulties were due to the workplace accident of November 22, 2010 and that she was entitled to wage loss and medical aid benefits after November 22, 2010.

When seen for treatment by an orthopedic surgeon on November 1, 2012, it was reported that the worker: "...has symptoms related to neuritis of the tibial nerve, particularly the medial, plantar branch. Due to the fact that there is no evidence of decreased activity, I do not think she would benefit from decompression of the tunnel and manipulation of the nerves could increase the sensitivity. As a result, I have just encouraged her to deal with it with nonsurgical methods."

On March 1, 2013, the worker was assessed with right posteromedial ankle pain of unknown cause.

On March 28, 2013, a WCB orthopedic consultant noted to the file that the worker's chronic right ankle pain had been unexplained by any demonstrable pathology and that tarsal tunnel syndrome was the differential diagnosis which had not been proven. A call-in examination was suggested.

On April 26, 2013, the worker was seen by the WCB orthopedic consultant at a call-in assessment. The consultant stated:

At present the claimant reports having pain with walking and other activities. There is pain and tenderness in the region of the tarsal tunnel and there is a positive Tinel's sign. These symptoms and signs appear to be consistent with tarsal tunnel syndrome. However, there is a concern that that this diagnosis is based on the claimant's symptoms and the other findings that are not really objective, such as Tinel's test.

It is not certain whether or not this claimant's condition is work related. Tarsal tunnel syndrome has reportedly been related to injuries in about 50% of cases. However, there are other causes of this condition such as ganglia, and in many cases there is no apparent cause.

In June 2013, the worker underwent a functional capacity evaluation and the report was reviewed by a WCB orthopedic consultant on July 2, 2013. It was determined that the worker was capable of light to sedentary work with certain restrictions.

On January 15, 2014, the worker underwent a second functional capacity evaluation. On February 26, 2014, a WCB physical medicine and rehabilitation specialist stated that the file "suggests a localized area of subjective irritability of the posterior tibial nerve in the area but no evidence of any significant nerve involvement. The localization of the subjective Tinel's irritability as reported by the surgeon would not be consistent with a tarsal tunnel syndrome. There was no indication of the medical necessity of any specific medical management such as surgery. There does not appear to be any physical or structural contraindication to encouraging remobilization, weight loss and progress back to all of her usual activities and employment activities. No current medical physical or pathoanatomic diagnosis is apparent from the review of the file and no indication of the need for the placement of related restrictions."

On September 17, 2014, the worker was again seen at the WCB for a call-in assessment. The examining orthopedic consultant reported that the worker had not been back to modified duty work since August 2014 due to excessive pain in the ankle and low back. The orthopedic consultant reported that the worker had pain on the medial aspect of the right lower leg and ankle that was associated with numbness and tingling in the sole of the foot. When severe, the pain radiated up the posteromedial side of the low leg to the mid-calf level. The orthopedic consultant's clinical impression was as follows:

1. The diagnosis to account for the current presentation is difficult to state with certainty because of the nonspecific nature of the clinical findings. The most probable diagnosis is that of neuritis of the posterior tibial nerve proximal to the tarsal tunnel. However, this is not supported by any clinical neurological deficit nor any neurological deficit on neurophysiological testing in the past.
2. There are no objective medical findings to account for causal relationship of the current clinical presentation to the workplace injury of November 22, 2010.
3. Self perception of pain and disability exceed the objective clinical findings. It is not possible to define physical restrictions related to the workplace injury.

On September 22, 2014, the WCB advised the worker that based on the non-specific nature of the clinical findings, testing and related medical reports on file, her current presentation was not accounted for in relation to the workplace injury of November 22, 2010. Therefore wage loss benefits would be paid to October 21, 2014 or the date that she returned to work. On October 9, 2014, the worker appealed the decision to Review Office.

On November 26, 2014, Review Office determined that the worker's current right ankle difficulties were no longer related to the November 22, 2010 injury and that the WCB was to consider an extension of benefits up to 12 weeks to address the worker's deconditioning. Review Office's decision was mainly based on its review of the medical information which included the medical opinions expressed resulting from the call-in assessments of April 26, 2013 and September 17, 2014. On February 18, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the worker's appeal further. The requested medical information was later received and was forwarded to the worker for comment. On May 12, 2015, the panel met further to discuss the case and to render a 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 an injury arising from a November 22, 2010 accident. She is seeking wage loss and medical aid benefits after October 21, 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."

Worker's Position

The worker was self-represented. She participated in the hearing by telephone conference call.

The worker advised the panel that she underwent tarsal tunnel surgery to her right ankle on February 20, 2015. She said that this surgery was recommended by a neurologist many years ago in relation to her 2010 injury, but that no surgeon was willing to perform the surgery. She advised that the neurologist again recommended the surgery and that a new orthopedic surgeon agreed to perform it. She said her condition has improved since the surgery.

The worker advised that she returned to work prior to the surgery, but to a sedentary, less physical job. After the surgery, she moved to a more physical job but not as physical as her pre-accident job.

The worker answered questions from the panel regarding the mechanism of her injury, her job duties, difficulties after the injury, prescribed medications and discussions she had with her treating specialists about diagnoses and treatment options.

At the completion of the oral hearing, the panel obtained additional medical information and provided a copy to the worker. The worker replied to the panel on April 13, 2015. She advised, in part, that:

"Although my quality of life is not 100% as once was prior to this incident back in 2010, I strongly feel the surgery was a success and my ongoing participation to physio will make positive improvements from this day forth."

Employer's Position

The employer did not participate in the appeal.

Analysis

The WCB has determined that the worker's current ankle difficulties are no longer related to her workplace injury. The worker disputes this finding and is seeking wage loss and medical benefits after October 21, 2014. For the worker's appeal to be successful, the panel must find that the worker continues to sustain a loss of earning capacity and requires medical aid as a result of the injury. The panel was able to make these findings.

At the hearing, the worker advised that she underwent tarsal tunnel syndrome surgery, that the surgery was successful, that her condition was improving and that she had returned to work. The panel wrote to the worker's family physician to receive an update on her file. The family physician provided an update which included the following information:

• April 13, 2015 letter from orthopedic surgeon indicating the worker was seen in follow-up for neurolysis of the tarsal tunnel syndrome of the right foot. The surgeon noted that the worker's symptoms had greatly improved.

• February 20, 2015 operative report indicating that a "Neurolysis posterior tibial nerve right ankle" was performed. The operative report noted that:

"The tibial nerve was severely thickened and fibrotic tissue was certainly surrounding it. We then carefully dissected every individual branch of the nerve until all three branches were completely free of any pressure. This certainly could explain local fibrosis due to previous compression injury to ankle."

• January 14, 2015 consultation note from the orthopedic surgeon indicating that:

" She has a vague history of a work-related injury when she was hit on the ankle by a cart...She has a positive Tinel sign and paresthesia on the sole of the foot. [Doctor's name] has seen and has diagnosed tarsal tunnel syndrome."

• December 1, 2014 consultation note from a neurologist indicating that he performed nerve conduction studies which were found to be normal but recommended that:

"It is my opinion that since tarsal tunnel syndrome is not a major surgery, and because her symptoms are suggestive of a tarsal tunnel syndrome, but not proven, you should consider referring her to another surgeon who would consider decompressing her tarsal tunnel...patients with proven tarsal tunnel syndrome usually have a good surgical outcome. In those patients where the diagnosis could not be confirmed, surgery may or may not help."

The panel notes that in addition to the new information referred to above, there is other evidence on file suggesting that the worker suffered from tarsal tunnel syndrome as a result of her workplace injury. The panel accepts the orthopedic surgeon's opinion as noted in the February 20, 2015 operative report and the worker's advice that her condition is improving and finds that this confirms that the worker sustained an injury to the tarsal tunnel at work on November 22, 2010.

The panel has considered all the file information, including the new information and finds, on a balance of probabilities, the worker is entitled to wage loss and medical aid benefits after October 21, 2014.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of June, 2015