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 not entitled to compensation benefits after December 7, 2016 as it was felt that her ongoing complaints were related to degenerative disc disease in her low back and were not considered a direct consequence of her compensable right foot injury. A hearing was held on August 15, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 7, 2016.

Decision

That the worker is not entitled to benefits after December 7, 2016.

Background

The worker has an accepted claim with the WCB for an injury to her right foot/ankle that occurred on October 15, 2015, when she stepped on a broken piece of cement while walking in the employer's parking lot. The worker was diagnosed with a right ankle sprain based on initial medical reports, and a right plantar fascial tear based on MRI results dated December 8, 2015.

On July 13, 2016, the worker was seen at a call-in assessment by a WCB orthopedic consultant, who opined that the current diagnoses were plantar fasciitis of the right foot and right-sided sciatica. The medical findings to support the diagnoses outlined by the consultant were as follows:

Local tenderness at the plantar surface of the right heel and mid foot support the diagnosis of plantar fasciitis. The clinical findings of altered sensory responses in the right lower limb and slightly limited straight leg raising support the diagnosis of sciatica. The cause of sciatica is unclear at this time. It may be related to lumbar disc disease or to piriformis syndrome or a response to altered gait. 

On August 24, 2016, the worker was seen by a neurologist, who stated:

[Worker] stepped on an uneven piece of concrete and fell over to the right, twisting her right ankle and landing on her back. She has tried various treatments and now has been wearing a boot for walking since end of December 2015. Sometime after that she been (sic) to notice numbness and tingling on the dorsum of the right foot and lateral right lower leg. There is some…right lower back and buttock pain with sciatica since then as well.

…Straight leg raising is positive on the right causing typical sciatic pain from the buttock down the entire posterior right leg to the heel.

…nerve conductions and EMG today do not show any evidence oof (sic) neuropathy or radiculopathy affecting the right leg but clinically this looks like sciatica and I recommend you order MRI of the Ls (lumbosacral) Spine.

On November 2, 2016, the WCB orthopedic consultant indicated that he was not able to relate the diagnoses of right plantar fasciitis and right-sided sciatica to the mechanism of the workplace injury.

In a decision dated November 3, 2016, Compensation Services wrote the worker to advise that in the opinion of the WCB, her current problems were not related to her compensable injury. The worker was advised that the WCB would continue to pay full wage loss benefits until she resumed a return to work or until December 7, 2016. The worker was advised that her claim would be reviewed again once further test results were received.

An MRI of the worker's lumbosacral spine was carried out on December 7, 2016 and the findings were read as follows:

1. At L3-L4 a left foraminal disc protrusion just contacts the exiting left L3 nerve root. 

2. A bulging disc at L5-S1 just contacts the S1 nerve roots. 

3. No spinal stenosis or nerve root compression present.

On December 21, 2016, the WCB orthopedic consultant referred to the MRI results and opined that the left L5-S1 disc pathology correlated with the right-sided sciatica and there was no objective medical evidence to demonstrate a causal link between the sciatica and the workplace injury. The WCB consultant stated there was a pre-existing and co-existing condition of the lumbar spine, and no pre-existing ankle condition was recognized. The pre-existing condition of the lumbar spine was degenerative disc disease L3 to sacrum.

On December 28, 2016, the worker appealed the November 3, 2016 decision to Review Office. On January 4, 2017, following further review of updated test results, Compensation Services confirmed their earlier decision that the worker's ongoing problems were not related to the compensable injury and she was not entitled to wage loss benefits or coverage for medical treatment beyond December 7, 2016.

On March 2, 2017, it was determined by Review Office that the worker was not entitled to benefits beyond December 7, 2016. Review Office referred to specific file evidence to support that the worker's continued complaints of dysfunction and pain were related to her pre-existing degenerative conditions in her lower back and were not considered a direct consequence of her compensable right foot injury. Review Office further determined that the worker's lower back condition had not been aggravated or enhanced by the compensable injury and had no bearing on entitlement to benefits. On March 24, 2017, the worker appealed Review Office's 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 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act states 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."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

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.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented, and was accompanied by her daughter at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that she should be entitled to benefits beyond December 7, 2016, as she continues to suffer from the effects of her October 15, 2015 workplace injury and is unable to return to work due to her ongoing injury. The worker stated that she cannot stand for longer than four minutes or sit for more than half an hour at a time. She cannot go out and do normal things, such as shopping, and has no quality of life.

The worker submitted that the WCB did not look at all the reasons she could not return to work. They closed her file and cut her benefits off before they had all the facts. They knew she was scheduled for an MRI of her lumbosacral spine, but forced her to go back to work on December 7, 2016, where she had to do things she should not have been doing. The worker stated that the MRI which she subsequently underwent was where the doctors found issues with the discs in her back and her leg.

The worker stated that her medical doctors are of the view that she is not able to return to work due to her ongoing workplace injury. She provided the panel with recent letters from her treating physician and neurologist, dated August 9, 2017 and August 2, 2017, respectively, in support of her position.

In response to questions from the panel, the worker confirmed that her appeal related to ongoing problems with both her lower back and her right foot. The worker stated that her doctors have told her that her back injury is related to the accident, and she knows that it is. She never had problems with her back until her accident. She said she told the doctors right from the start that her back was hurt, but it was overlooked, and it just got worse over time. The physiotherapist was the first person who listened to her and did a full examination.

The worker said that she continues to have issues with her right foot and ankle. She cannot stand normally, and this causes more pain to her back. She is not stable on her feet and falls a lot, which is why she now uses a walker in addition to the boot she already had. The worker said the problems with her foot are the same as when she originally hurt it, but worse. She feels like something has been missed with her foot and ankle, as she should be able to stand on her foot normally without having pain shooting up her leg.

In conclusion, the worker stated that she believed that a lot of her problems were overlooked. In her view, the WCB gave up on her too quickly, which has hindered her recovery. She cannot afford treatment and medication, and does not know how she is going to continue recovering without proper medical coverage.

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 benefits after December 7, 2016. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid after December 7, 2016 as a result of her October 15, 2015 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The panel notes that the initial medical reports refer to an injury to the worker's right ankle only, and provide a consistent diagnosis of a right ankle sprain. The worker received treatment for that injury, and in a report dated July 14, 2016, the treating physiotherapist wrote that the worker was being discharged due to lack of attendance. The physiotherapist noted that the worker's last visit was May 16, 2016, and her pain at that time was 2/10. The panel further notes that following his call-in examination of the worker on July 13, 2016, the WCB orthopedic consultant stated that the current diagnoses included plantar fasciitis of the right foot and right-sided sciatica. The panel is satisfied, based on the foregoing, that the worker's right ankle sprain had substantially resolved by that time.

Based on our review of all of the information before us, the panel is unable to relate the diagnosis of plantar fasciitis to the worker's original injury. In arriving at this conclusion, the panel places weight on the early medical reports which, as indicated above, refer only to an injury to the worker's right ankle. The panel notes that the first indication of plantar fasciitis appears on the MRI report dated December 8, 2015. In response to a question at the hearing, the worker said that the only way she could describe the pain from plantar fasciitis was that "as soon as I put pressure on my heel, it's like a lightning bolt up my leg." The panel notes that earlier medical reports do not include any complaint of the type of pain that the worker described at the hearing, and the worker's symptoms as outlined in those reports are not consistent with plantar fasciitis.

The panel also places significant weight on the WCB orthopedic consultant's opinion in his December 21, 2016 report, with respect to the diagnosis of plantar fasciitis, that:

The current presentation is not related to the workplace injury. This is supported by:

i) Clinical findings right after the workplace injury were of pain tenderness and swelling on the lateral aspect of the right ankle typical of sprain of the lateral ligament 

ii) Absence of plantar pain or tenderness right after the workplace injury 

iii) Ankle MRI of 8-Dec-2015 did not show any residual soft tissue pathology at the lateral aspect of the ankle.

The panel is also unable to relate the worker's problems with her back to her workplace accident. The panel notes that there is no contemporaneous evidence to show that the worker hurt her back on October 15, 2015. At the hearing, the worker claimed that she fell on October 15 and an elderly couple helped her up. This is not consistent with earlier information on file, including notes of a telephone conversation with the worker on October 20, five days after the accident, which indicate that the worker was able to maintain her balance and stay upright, that she was not sure anyone saw her, and that no one stopped. Again, there was no reference to back pain or clinical findings suggesting a back injury in the early medical reports. The first mention of numbness and tingling in the worker's right lower limb and buttock appears in the initial report from the physiotherapist dated April 25, 2016, and it was not until sometime later that there was mention of some right lower back and buttock pain with sciatica. While the worker had a significant amount of interaction with the WCB in the months following her accident, there is similarly no mention on file of her reporting or experiencing any difficulties with her back. It was only on May 31, 2016 that the worker advised that she had noticed that "the pain is going up her leg now."

In a memorandum to file dated November 2, 2016, the WCB orthopedic consultant noted that he was unable to relate the diagnosis of right-sided sciatica to the mechanism of the workplace injury. The WCB orthopedic consultant subsequently reviewed the results of the December 7, 2016 MRI of the worker's lumbosacral spine, and on December 21, 2016, the consultant opined that the MRI confirmed pathology in the worker's lower back, and that:

The sciatica is not related to the workplace injury. This is supported by: 

i) Absence of any report of back injury at the time of the workplace injury 

ii) Absence of any clinical abnormal findings in the spine at the E.R. visit 

iii) The MRI appearances are of longstanding degenerative pathology that would not be of traumatic etiology. There is no objective medical evidence to demonstrate a causal link between the sciatica and the workplace injury.

The panel places significant weight on the above opinion of the orthopedic consultant.

The panel is further satisfied that the workplace accident did not aggravate or enhance the worker's pre-existing back condition. The panel notes that the WCB orthopedic consultant was specifically asked whether the compensable injury was contributing to a material degree to the worker's current status or had temporarily aggravated her pre-existing condition, and responded, on January 12, 2017:

It is considered that the lumbar disc disease is the cause of persisting radiating pain and numbness to the right lower leg and foot.

There is no objective clinical evidence or evidence on MRI that the workplace injury aggravated or enhanced the degenerative lumbar disc disease...

The panel adopts the orthopedic consultant's opinion in this regard, as consistent with the panel's understanding of the medical information on file.

The panel has considered the recent reports from the worker's treating physician and neurologist which were introduced at the hearing, but places less weight on those reports. In her report dated August 9, 2017, the treating physician stated that at first, most of the worker's symptoms were isolated to her ankle; that she also experienced back pain, but this "was not significant at first, considering her ankle pain." The physician opined that the back pain, leg pain, and ankle pain were all related and "were caused at the same time, with the ankle being at first the most prominent, by the same mechanism." The panel notes that no clinical evidence was provided to support these statements. Further, as indicated previously, there was no reference to, or clinical evidence of, back pain or a back injury in the earlier medical reports on file, including those of the treating physician.

In his report dated August 2, 2017, the treating neurologist stated:

I reviewed the history. It certainly sounds logical that she injured the back at the time of the October 2015 ankle injury (see my Aug 2016 letter) but we do not have initial doctors reports confirming this. It is quite possible that this was missed due to the focus on the ankle.

The panel notes that as indicated by the neurologist, initial doctors reports do not confirm or support this position. The report further indicates that the neurologist was relying on a different mechanism of injury, having noted in his August 24, 2016 letter that the worker "fell…landing on her back," whereas the evidence at and around the time of the accident was that the worker was able to maintain her balance and stayed upright.

In summary, the panel is unable to find that the worker's ongoing complaints after December 7, 2016 were causally related to her workplace injury.

The panel therefore finds that the worker did not sustain a loss of earning capacity or require medical aid after December 7, 2016 as a result of her October 15, 2015 workplace accident.

Accordingly, the worker is not entitled to wage loss or medical aid benefits after December 7, 2016.

The worker's appeal is denied.

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 12th day of October, 2017