The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that that she was not entitled to further benefits in relation to her three compensation claims. A file review was held on October 11, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to injuries sustained on May 18, 2006, February 7, 2008 and April 13, 2010.

Decision

That the worker is not entitled to further benefits in relation to injuries sustained on May 18, 2006, February 7, 2008 and April 13, 2010.

Background

Date of Accident: May 18, 2006:

On May 18, 2006, the worker was kicked on her left outer ankle and left shin during the course of her employment.

On October 21, 2006, a WCB medical advisor reviewed the medical reports on file and opined:

Main diagnosis for claimant's foot/ankle symptoms is neuropathic osteoarthropathy (Charcot joint). This condition was not caused by a work-place injury, but is related to her pre-x diabetes.

There was concern that the mechanism of injury caused a fracture to this already compromised area. This was not supported by xray findings. There is nothing on the xray related to a compensable injury.

The mechanism of injury could have caused a contusion (bruise) to the area that was kicked, but did not alter or affect the pre-x. No treatment would be needed for the effects of the C/I (compensable injury) and it would not affect a person's function.

On December 27, 2006, an orthopedic surgeon noted that x-rays taken on August 3, 2006 and later showed an undisplaced fracture of the lateral malleolus. This was a traumatic lesion and did not fit the definition of a Charcot foot. The surgeon noted that when the worker was last seen at the hospital on December 20, 2006, x-rays showed an almost healed fracture. The worker was treated with a total contact cast for another four weeks. It was expected that the lateral malleolus would have healed by then, and that after two to three weeks of rehabilitation, the worker would be able to return to work.

On May 29, 2007, the WCB medical advisor opined:

The attending O/S (orthopedic surgeon) has diagnosed the claimant with a lateral malleolus fracture (although one has never showed up on xray, only bone scan). We are one year post injury and a lateral malleolar fracture generally heals in a couple of months. Recovery is certainly prolonged. The O/S suspects delayed union or non-union. Both of these complications of fractures are more common in diabetics, so there is a pre-x condition (diabetes) which has delayed recovery from the compensable injury (fractured lateral malleolus).

On November 13, 2007, the attending orthopedic surgeon reported that the left ankle fracture had healed and the worker could walk short distances, short steps and for short periods of time.

On May 20, 2009, a WCB medical advisor reviewed the worker's compensation files for the purposes of considering the appropriateness of a permanent partial impairment ("PPI") award. Regarding the May 18, 2006 accident, the medical advisor noted that the worker was diagnosed with a left lateral malleolar fracture although x-ray confirmation of this was not present on the file. The medical advisor noted that the worker had a very slow recovery but eventually returned to work. He said the worker was a diabetic and had evidence of arthritic changes on the bone scan. A diagnosis of complex regional pain syndrome type I was made although the complete diagnostic criteria were not present in the file notes. The medical advisor commented that the worker had reached MMI (maximum medical improvement), there was no major pre-existing condition related to the PPI, and the worker would be assessed for a PPI.

At a PPI examination on August 5, 2009, the worker reported that she had continuous pain in her left ankle that was made worse by walking, walking on uneven ground, stair climbing, prolonged standing, and lying on her left side. The worker also noted chronic swelling of the left ankle which gradually increased during the day. She had to increase her shoe size to accommodate the swelling. The worker had returned to work but was unable to complete a number of her job tasks. She had difficulty with activities of daily living, particularly putting on her shoes and socks and climbing in and out of the shower.

Following the examination and based on measurement of passive left and right ankle mobility, the medical advisor assessed the worker with a PPI of 9.5%. On August 10, 2009, the WCB advised the worker that she was entitled to a PPI award of 9.5%.

Date of Accident: February 7, 2008

On February 7, 2008, the worked filed a WCB claim for injury to her right knee, back and neck when she stepped on a piece of orange and her left heel slipped. The worker indicated that she tried to brace the rest of her body to stop from falling and felt it in her right knee, hip, back and neck.

When seen by a chiropractor for treatment on February 7, 2008, the diagnosis rendered was a sprain/strain injury to the cervical, thoracic and lumbar spine and associated soft tissues. The worker was also seen at a hospital facility on March 3, 2008, with a complaint of pain and swelling in her left ankle. An orthopedic surgeon reported that her ankle was warm and swollen, and that x-rays showed an undisplaced fracture of the lateral malleolus.

On May 26, 2008, the attending orthopedic surgeon reported that the lateral malleolus fracture was healed and the worker could walk short steps, short distances and for short periods of time. Use of a walking boot was discontinued.

On July 8, 2008, the worker was assessed by a WCB chiropractic consultant. The consultant opined that based on his examination, it appeared that the injury to the left ankle which the worker sustained on February 7, 2008 had probably healed as well as it would, given the worker's history of diabetes. He noted that the worker walked with a very slight limp, but if she was able to stand and sit and change positions fairly regularly, she should be able to manage quite well. He went on to note: "That is not to say that she will be without some pain in her ankle because she has had two injuries to the ankles and also has other health issues."

The consultant noted that prior to the February 7, 2008 compensable injury, the worker had a serious problem involving her left ankle with poor healing related to her diabetes. It had been established that she had a diabetic-related neuropathy and this was contributing to slow healing and ongoing discomfort.

On September 24, 2008, the WCB chiropractic consultant reviewed bone scan results dated July 9, 2008. The consultant opined there was no change in his July 8 medical opinion; that the worker had recovered from the effects of the compensable injury when he examined her on July 8, 2008. He stated: "I have had an opportunity to review the x-ray reports and to view the x-rays themselves. In my review of the x-rays I did not see any fractures. None of the reports which were sent in for review note any fractures."

On May 27, 2009, the WCB's healthcare branch was asked to determine whether it would be appropriate to review for a PPI rating. Regarding the February 7, 2008 accident, the medical advisor opined:

A diagnosis of a lateral malleolar fracture was made although the x-rays and bone scan on file did not confirm this diagnosis. [The worker] also had a previous history of a lateral malleolar fracture with a slow healing time. [The worker] is an insulin-dependent diabetic.

[The worker] also complained of pain over the cervical spine, thoracic lumbar spine, right hip, right knee, and both ankles. A call-in examination performed by…a chiropractic consultant to the WCB, noted the claimant had recovered from the injuries sustained at the time of the compensable incident…

There is a major pre-existing condition related to the PPI. [The worker] does have a history of previous soft tissue sprain/strain injuries as well as a previous lateral malleolar fracture…

On reviewing the file, there would be no ratable PPI.

Date of Accident: April 13, 2010

On April 13, 2010, the worker reported that she was kicked twice on her left foot when she placed her foot on a pencil which was on the floor. On April 15, 2010, x-rays were taken of the left ankle and foot which showed soft tissue swelling at the ankle, particularly laterally. The x-rays did not show any fracture or evidence of dislocation in the ankle or foot. Plantar and retrocalcaneal spurs were incidentally noted. The claim for compensation was accepted based on the diagnosis of a soft tissue injury to the left ankle.

On October 12, 2010, the worker was seen at the WCB offices at a call-in assessment. The WCB medical advisor diagnosed the worker with early Chronic Regional Pain Syndrome #1 ("CRPS"). Work restrictions were also outlined as no prolonged standing, no prolonged walking, no repeated stairs and no repeated bending.

File records show that the worker was treated by a sports medicine physician, a physical medicine and rehabilitation specialist, and specialists at a hospital facility. She was also seen by a podiatrist and at a foot clinic.

On June 4, 2011, a specialist from a pain clinic reported that the worker continued to describe pain in her left ankle especially after standing or walking for more than an hour.

On October 22, 2015, the worker was again seen at the WCB offices for a call-in assessment. The medical consultant also reviewed the worker's three compensation claims, and opined:

• The current diagnoses of non-specific left medial ankle pain and bilateral lower extremity edema were not medically accounted for in relation to either the 2006 or 2008 left lateral ankle injuries or the April 13, 2010 workplace incident.
• The CRPS diagnosis dating back to the October 12, 2010 examination was no longer felt to be relevant, insofar as this diagnosis had never been proposed or confirmed by the treating sports medicine physician over the course of his care of the worker or over the course of various specialist assessments.
• By the August 30, 2010 MRI, any pathology that might have affected the tibialis tendon stemming from the April 13, 2010 workplace incident had resolved.
• Findings of pitting edema in each leg, equal bilaterally, were not medically accounted for in any manner in relation to the April 13, 2010 workplace incident, regardless of the purported diagnosis associated with that incident.
• June 9, 2015 forefoot symptoms and first nail edge findings, including the presence of an ingrown toenail on the lateral aspect of the big toe, were related to the worker's diabetes and other non-compensable risk factors. They were not medically accounted for in relation to the three compensable incidents, including the left lower limb casting in relation to same. Any recommendation for footwear to accommodate the forefoot was indicated in relation to the worker's diabetes and the prevention of recurrent ingrown toenails, rather than in relation to the April 13, 2010 workplace incident or the 2006 and 2008 claims.

In a decision dated November 20, 2015, the worker was advised that based on the WCB call-in findings, the medical information did not establish a cause and effect relationship between the April 13, 2010 accident and her current reported difficulties. It was determined that the worker no longer had a loss of earning capacity related to her original injury, and that any medical aid expenses such as shoes and/or orthotics would no longer be covered by the WCB.

In January 2016, the worker asked the WCB to reconsider its decision to deny responsibility for orthotics and orthopedic footwear as she felt the need for this was related to the cumulative effects of having three injuries to the same anatomical area.

In a decision dated March 18, 2016, Compensation Services advised the worker that no further responsibility for her reported left ankle/foot difficulties would be accepted by the WCB in relation to her three compensation claims. The decision was based on the following WCB medical opinion dated March 16, 2016:

As per the October 22, 2015 call-in examination notes, a causal relationship between [the worker's] non-specific left ankle pain and the 06…claim, the 08...claim or the 10…claim is not supported in medical evidence. Direct measurement of [the worker's] lower limbs did not substantiate a difference in circumference/swelling between [the worker's] lower limbs. There is no pathologic finding noted at the aforementioned call-in examination that is accounted for in relation to either of the above-mentioned WCB claims.

Based on medical information currently on file, there is no support for a combined effect of all three WCB claims to account for [the worker's] non-specific left ankle pain.

On March 22, 2016, the worker appealed the case manager's decision to Review Office.

On May 30, 2016, Review Office referred to specific file evidence to support its findings that the worker's current left ankle difficulties were not related to the three accidents occurring in 2006, 2008 and/or 2010. Review Office found the file evidence demonstrated that the worker had healed from the fracture of the lateral malleolus in relation to her injuries in 2006 and 2008, and there was no relationship between the three compensable injuries and her reported difficulties involving areas such as her left hip, right knee, back, legs, forefoot callus and hammertoe.

Review Office accepted the WCB medical consultant's opinion following the October 22, 2015 call-in examination, and found that the need for medical aid such as orthotics and orthopedic footwear was not related to the three compensable claims. Review Office also accepted the WCB medical consultant's March 16, 2016 opinion. On July 31, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review 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 WCB's Board of Directors.

Subsection 4(1) of the Act 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.

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."

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

Worker's Position

In support of her appeal, the worker filed a written submission dated September 24, 2016, together with attachments, including her March 22, 2016 letter to Review Office and original letter of appeal.

The worker's position was that her ongoing conditions, and in particular her need for orthotics and orthopedic shoes, are related to her compensable injuries. The worker submitted that she has ongoing problems with swelling and pain if she is on her feet too long, and that walking any distance is difficult. She emphasized that all three compensable injuries were to her left ankle, that there are things she used to do but cannot do now, and her quality of life has changed.

The worker submitted that she has permanent restrictions as a result of her injuries, meaning that they are for her lifetime, not just for the rest of her work life. The treating sports medicine physician identified a need for, and prescribed, orthotics. She submitted that this similarly means that orthotics and orthopedic shoes are necessary for her lifetime.

The worker stated that the podiatrist explained that the problems with her left forefoot, her callus and hammertoe were consistent with her injuries and the casting of her foot as a result of her injuries. The worker noted that she spent almost 13 months in a cast after the first injury. During that time, the nurse cut her toenail and nicked her skin. The worker submitted that due to the casting, the conditions were perfect for infection and for an ingrown toenail to occur.

With respect to the hammertoe, she submitted that she kept asking the people who were applying the casts to leave room for her second toe, but was told that the cast had to be well-fitted for support. She was subsequently told that she had a broken toe, but questioned how that could have happened as she was always in a cast or "old lady shoes." The worker noted that she re-fractured her left outer malleolus in 2008, and her left foot was casted for another seven months, until August 2008.

The worker submitted that she underwent numerous tests throughout, all of which were negative for damage due to diabetes. Orthotics and orthopedic shoes were prescribed and approved, yet she was now being told that she only needed these because of her diabetes. In her submission, it does not make sense that she suddenly did not need orthotics or orthopedic shoes because of her injuries, but because of diabetes which had previously been ruled out.

The worker submitted that the podiatrist checked and found that the callus and hammertoe were not properly accommodated in her footwear. The worker noted that her left shoe cuts into her ankle when it swells, and her ankle continues to swell if she is on her feet too long, even though she has special socks.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to injuries sustained on May 18, 2006, February 7, 2008 and April 13, 2010. In order for the worker's appeal to be successful, the panel must find that the worker's ongoing conditions are related to her 2006, 2008 and/or 2010 compensable injuries. The panel is unable to make that finding.

The worker focused in her appeal on problems with her left foot, and in particular, her need for orthotics and/or orthopedic shoes.

With respect to the May 18, 2006 accident, the panel notes that the attending orthopedic surgeon reported on November 13, 2007 that the worker's compensable injury, a left ankle fracture, had resolved.

With respect to the February 7, 2008 accident, the attending orthopedic surgeon reported on May 26, 2008, that the compensable injury, a lateral malleolus fracture, had healed. Following a call-in examination on July 8, 2008, the WCB chiropractic consultant also opined that the worker's ankle injury had resolved, and that complaints for which she was then being treated no longer related to her compensable injury of February 7. The WCB chiropractic consultant confirmed that opinion in a second report dated September 18, 2008.

The panel places significant weight on the report of the WCB medical consultant arising out of a call-in examination of the worker on October 22, 2015. The medical consultant conducted a very thorough and careful review of the 2006, 2008 and 2010 claim files. Based on that review and his examination of the worker, the consultant opined that the worker's current diagnoses were not medically accounted for in relation to the 2010 incident or the 2006 or 2008 left lateral ankle injuries. The consultant further opined that the worker's forefoot symptoms, nail edge findings and fusion of the left second toe joints were not medically accounted for in relation to the April 13, 2010 workplace incident or the 2006 and 2008 left lateral ankle injuries, including the casting in relation to those incidents or injuries. The panel accepts the WCB medical consultant's opinions in this regard as being consistent with our own review of the medical evidence on the files.

The panel also accepts the WCB medical consultant's follow-up report dated March 16, 2016, in which he opined that there was no support for a combined effect of all three claims to account for the worker's current diagnosis of non-specific left ankle pain.

In a letter of August 20, 2015, the treating podiatrist noted that the worker needed footwear "to accommodate the forefoot so that the forces around the nail plate are limited." The panel notes the recommendation for footwear was therefore indicated with respect to the worker's forefoot, to prevent recurrent ingrown toenails, as opposed to being related to the worker's ankle or her 2006, 2008, or 2010 injuries or claims.

The panel has also considered whether the worker's ongoing conditions or difficulties could be related to the worker's compensable claims as a further injury under the Policy. The panel is satisfied, however, that the evidence does not establish or support that the 2006, 2008 and/or 2010 injuries caused a secondary injury.

The panel notes that the podiatrist indicated in her August 20, 2015 letter that the worker had attributed her problems with her forefoot to serial casting. The podiatrist commented that callus is a symptom of overloading associated with decreased range of motion in joints, and opined that "it would follow that after an injury this can occur." That comment indicates at best that such an injury is a possibility. In the circumstances, and given the lack of any medical findings on the file to support that this occurred or even may have occurred in this case, the panel is unable to accord weight to the podiatrist's comment. The panel further notes that if a condition such as a hammertoe had been caused by casting, we would have expected to see symptoms or similar problems appearing at or around the time of the casting.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's current or ongoing conditions are not related to the injuries sustained on May 18, 2006, February 7, 2008 and/or April 13, 2010. The panel finds the worker is therefore not entitled to further benefits in relation to those injuries.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of December, 2016