Decision #84/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the condition in his left ankle is not related to his compensable injury of July 29, 1999. An oral hearing was held on April 27, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's left ankle difficulties are related to the compensable injury of July 29, 1999.
Decision
That the worker's left ankle difficulties are related to the compensable injury of July 29, 1999.
Decision: Unanimous
Background
On July 29, 1999, the worker slid off a roof and fell 8 to 10 feet suffering injuries to his ankles, heels and low back. On July 29, 1999, the worker was diagnosed with contusions to both heels and mechanical low back pain. X-rays taken of both calcaneous identified no fractures. On September 29, 1999, the worker attempted a return to work but had to stop due to pain and swelling in both ankles. Following additional testing, the worker was diagnosed with a
partial tear of the left Achilles tendon and an osteochondral injury to the right talar dome.
In a letter dated May 29, 2000, Rehabilitation & Compensation Services advised the worker that no further action would be taken on his claim given that he cancelled his appointment with an orthopedic surgeon and ceased to attend physiotherapy treatments. Based on these factors, it was the adjudicator's decision that the worker had recovered from the effects of his workplace injury.
On November 24, 2008, the worker contacted the WCB to advise that he was experiencing swelling in both ankles, the left ankle worse than the right. The WCB then obtained updated medical information from three healthcare practitioners which included x-ray and CT scan reports. The information was reviewed and commented on by a WCB sports medicine consultant on March 19, 2009.
In a decision dated March 30, 2009, the worker was advised by Rehabilitation and Compensation Services that he was not entitled to further benefits as it was determined that his current left ankle difficulties were not related to the July 29, 1999 workplace accident. The case manager stated, in part:
"Your file was reviewed by a WCB Medical Advisor on March 19, 2009, who was of the opinion that the most recent x-ray reports dated November 2008 show an infectious process in the left ankle. The x-ray reports did not reveal osteoarthritic changes. X-ray and MRI reports from 1999 did not show structural abnormality of the left ankle. It would be expected that if there were a left ankle arthritis, it would appear as a bony lesion on the MRI performed in December 1999 and appear as an osteoarthritic type process on more recent diagnostic reports, instead of an infectious process. The infectious process cannot be related to the 1999 workplace accident."
Subsequent to the March 30, 2009 decision, the WCB received medical reports from the treating orthopedic specialist dated May 27, 2009 and from the family physician dated June 22, 2009. The report from the orthopedic specialist stated that the worker had severe Charcot arthropathy and osteoarthritis of his left ankle which was directly related to the 1999 workplace injury. The family physician reported that the worker had pre-existing Type II diabetes and obesity and that he developed severe post-traumatic arthritis affecting his left ankle which was related to the crush injury and fracture of his left ankle in 1999.
Following consultation with the WCB sports medicine consultant on July 3, 2009, the worker was advised on July 15, 2009 that no change could be made to the decision of March 30, 2009. The case manager advised the worker that the medical evidence did not support that he sustained any fracture or that any neurological impairment occurred which caused any major or material impairment in sensation of his left foot or ankle as a result of the work-related injury. The case manager stated:
A Charcot joint, also known as a neuropathic joint, is a type of arthropathy that is characterized by progressive pathological fractures, dislocations and subsequent deformities…Diabetes is considered to be the most common cause of Charcot arthropathy…
On February 9, 2010, the worker appealed the July 19, 2009 decision to Review Office.
On March 26, 2010, Review Office was unable to establish a cause and effect relationship between the worker's current left ankle difficulties and the July 29, 1999 workplace injury.
Review Office noted that the worker, by his own report, had no difficulties with his ankles after 2000 until 2005 and then had a worsening of symptoms in June 2008 without incident. This timeline did not support a relationship between the workplace injury of July 29, 1999 and the worker's current left ankle difficulties. Review Office indicated that the most likely diagnosis for the left ankle was Charcot arthropathy and that it had no causal relationship with the July 29, 1999 compensable injury. This finding was supported by the WCB sports medicine consultant on July 3, 2009.
On October 7, 2011, the worker's legal representative asked the WCB to reopen the claim based on new medical information dated September 20, 2010. The representative noted that this report and other medical reports on file confirmed that the worker's left ankle pain was caused by arthritis, specifically post-traumatic arthritis, and that Charcot arthropathy was found to be a complication of arthritis of the left ankle. It was the representative's opinion that the worker's ankle condition was work-related and was compounded by Charcot arthropathy.
In a decision letter dated February 28, 2012, Review Office advised the worker that the new evidence did not support a change in the previous decision of March 26, 2010. Review Office confirmed its previous finding that it was unable to establish a causal relationship between the partial tear of the left Achilles tendon as a result of the July 29, 1999 compensable injury and the development of left ankle osteoarthritis and Charcot arthropathy first identified in 2008/2009. In September 2015, the worker appealed the decision to the Appeal Commission and an oral hearing was arranged.
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.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:
The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
The Policy further provides:
WAGE LOSS ELIGIBILITY
a. Where a worker’s loss of earning 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 Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.
The definition portion of the Policy gives the following definitions:
Aggravation: 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.
Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.
The worker has an accepted claim for a workplace accident and is seeking acceptance of responsibility for his left ankle difficulties.
Worker's Position
The worker was represented by legal counsel who made an oral submission on the worker's claim. The worker answered questions from his counsel and the panel.
The worker called, as witness, an orthopedic surgeon who had previously reviewed the worker's file on behalf of the WCB. The orthopedic surgeon originally saw the worker in December 1999 and saw him again in 2009.
In answer to questions from the worker's counsel the orthopedic surgeon advised that:
he saw the worker for an independent medical examination in 1999.
the worker advised that four and a half months prior to seeing him he had fallen off a sloped roof, possibly 10 to 12 feet, landing on both feet. He wasn’t able to walk, and he went to a hospital.
normal x-rays were obtained, he tried returning to work after two and a half months, but there was too much pain; he wasn’t able to work.
when he saw the worker there weren’t a lot of findings. The worker had pain over his left Achilles tendon and the surgeon thought he probably had a partial tear of a left Achilles tendon.
he had a bone scan that was done on November 15 and it showed delayed static views that had increased uptake in both ankles involving the ankle joint. This increased activity possibly was post-traumatic according to the radiologist.
with the normal x-rays, but a positive bone scan, he was going to get an MRI scan in the following week.
MRI scan was obtained and confirmed the diagnosis of a partial tear of the left Achilles tendon.
the ankle joint looked normal on the MRI which the orthopedic surgeon could not explain, given the bone scan results.
the MRI was ordered to rule out an Achilles tendon tear, but the radiologist does say that there’s no swelling of the ankle, and no other abnormalities indicated. They don’t say anything about the cartilage or the subacromial bone in the MRI.
he could not ignore a positive bone scan which is a very sensitive test.
Regarding the nature of the injury, the orthopedic surgeon explained that:
When you’re loading a joint, you’re actually loading it from 10 to 12 feet, is a significant fall, it does put a crush onto the articular cartilage and onto the subchondral bone. It didn’t cause a fracture, but I think those two areas probably were damaged just by the crush.
He confirmed that in his opinion, the accident caused an injury to the articular cartilage of the ankle joint. Regarding his letter of May 27, 2009, he confirmed it was his opinion that the worker had osteoarthritis in his left ankle. He explained that an x-ray taken in 2008, of the left ankle, showed marked joint space narrowing with osteophyte formation, the ankle mortise is intact, no acute abnormality is noted. He said there were significant osteoarthritic changes in the left ankle, so the x-ray in 2008 "was totally typical of osteoarthritis." Noting that the worker did not suffer a fracture, the orthopedic surgeon explained that it is not necessary to have a fracture to develop osteoarthritis.
In reply to the question of "what role the fall he suffered in 1999 had in the development of his osteoarthritis?" The orthopedic surgeon responded:
I think there was a direct relationship between the two. It was a significant fall, he fell 10 to 12 feet, landing directly on his feet, that’s a significant injury to your ankle, and he had a positive bone scan at that time. And later on, he does have osteoarthritis. I think it’s directly related.
The orthopedic surgeon referred to an article which defined Charcot neuropathy as:
a non-infective, destructive process activated by an isolated or a cumulative neuro-traumatic stimulus that manifests as dislocation, periarticular fracture, or both in patients rendered insensate by a peripheral neuropathy. The most common cause of a peripheral neuropathy these days is diabetes mellitus. So it’s not an infection even though the, when it first starts off it looks all in the world like an infection because the knee, the ankle is swollen and hot and red, and you think it’s infected but it’s not. It’s a destructive process, it needs two things to happen to start it off. There has to be some type of a traumatic event and that traumatic event is either a major isolated event, or it can be accumulative repetitive traumatic thing.
These patients don’t have normal sensation, they don’t have the normal protective mechanisms when they have a little twist to their ankle, and they can wear out their ankle joint just through repetitive things because they have no feeling. But it has to have both the lack of feeling and some kind of a traumatic event to the joint to cause it.
...
So that’s what Charcot arthropathy is and I think it came, the whole process started off because he injured his ankle, he developed osteoarthritis and when you’re a diabetic that’s the second process that comes into play and he developed the Charcot arthropathy from those two things.
Regarding whether diabetes can be the cause of Charcot neuropathy, the orthopedic surgeon advised that:
Diabetes will only be the cause if there’s trauma as well. They don’t have to have a major trauma, which I think [worker] had, they can have just the repetitive minor trauma that could cause it as well. Things that they wouldn’t even be aware of that they’re injuring their ankle. Because they don’t have normal sensation in the ankle.
The orthopedic surgeon referred to and provided copies of three articles dealing with Charcot neuropathy.
The orthopedic surgeon confirmed that, in his opinion, there was no evidence of infection.
The worker's counsel referred to WCB Policies dealing with Pre-existing Conditions and Further Injuries. He also referred to tort cases dealing with liability and causation.
The counsel noted the opinion of the WCB sports medicine advisor and contrasted it with the opinions of the orthopedic specialist who provided evidence at the hearing.
The worker's counsel noted that the infectious disease specialist and the orthopedic surgeon who operated on the worker's ankle, agreed that the worker's ankle condition, Charcot arthropathy, was caused by the impact of diabetes on his injury damaged left ankle. He submitted that their evidence, in its totality, ought to be preferred to the WCB sports medicine advisor's opinion and that the worker has satisfied the requirements of section 4(1) of the Act.
He also submitted that "the fall was the impetus behind his current problems, his osteoarthritis, and then later his Charcot arthropathy."
The worker answered questions from the panel dealing with onset of symptoms, treatments, medical appointments and employment history.
Employer's Position
The employer did not participate in this appeal.
Analysis
As noted in the background, the worker slid off a roof and fell 8 to 10 feet suffering injuries to both ankles, heels and low back. Approximately 10 years after his fall the worker developed a serious condition in his left ankle. The issue before the panel was whether the worker's left ankle difficulties are related to the worker's compensable injury of July 29, 1999. For the worker's appeal to be accepted, the panel must find that the worker's left ankle difficulties arose out of and in the course of his employment. The panel was able to make this decision. The panel finds, on a balance of probabilities, that the worker's left ankle difficulties are directly related to his July 1999 compensable injury.
The panel attaches significant weight to the opinion of the orthopedic surgeon who examined the worker on behalf of the WCB in 1999 and later examined the worker in 2009. The panel accepts the orthopedic surgeon's opinion and evidence expressed at the hearing, that there is a direct relationship between the worker's 1999 workplace injury and his left foot diagnosis of Charcot arthropathy.
The panel also attaches weight to the infectious disease specialist who has experience with diabetic conditions, who treated the worker in fall of 2010. This physician was aware of the worker's diabetes and aware of the compressive injury to the worker's ankles. He wrote in his letter that “marked morphologic abnormality of left foot appears to be directly attributable to the previous injury he sustained.”
The panel also attaches weight to the opinion of the orthopedic surgeon who performed the fusion operation on the worker's left ankle in 2011. This physician was aware of the worker's diabetic history. In a letter dated September 20, 2010, the orthopedic surgeon noted that "This man's troubles are certainly related to his work-related injury and compounded by the problem of Charcot arthropathy."
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 3rd day of June, 2016