The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing difficulties were not related to his compensable accident and that he was not entitled to benefits after December 4, 2005. A hearing was held on November 2, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 4, 2005.

Decision

That the worker is not entitled to benefits after December 4, 2005.

Background

The worker filed a claim with the WCB on January 17, 2005 for a left foot injury that occurred on January 14, 2005. The worker reported:

I am surveyor's helper. I was walking along in the snow in a new development on uneven ground and somehow my foot suffered a break to the outside of my left foot. I didn't fall but I had to kneel down as I couldn't put weight on my foot. I used a shovel as a cane and finished off my work day approx. another 2 hours.

The claim for compensation was accepted based on the diagnosis of a transverse fracture of the fifth metatarsal of the left foot (Jones Fracture).

On October 24, 2005, it was determined by the WCB that the worker would be paid wage loss benefits to December 5, 2005 as it was considered that he would be fit to return to surveyor work at that time. The decision was based on the opinion expressed by a WCB medical advisor following a call-in examination that took place on September 23, 2005, that the worker's left foot fracture had healed and that the development of osteoarthritis at the fracture site was due to inactivity and as a result of the worker's foot/toe being casted after the accident. The medical advisor was hopeful that with continued use of the rocker shoes and the worker's continued dedication with home exercises, he would be fit to return to work at his pre-accident employment.

In a further WCB decision dated December 5, 2005, the worker was advised that the new diagnosis of plantar fasciitis was not related to his workplace injury and that no change would be made to the October 24, 2005 decision that he had recovered from the effects of his compensable injury.

A left ankle x-ray report dated December 6, 2005 noted minor degenerative changes at the ankle joint and small osteophytes were seen anteriorly. The ankle mortis was intact. No acute bony abnormalities were identified.

During the period of time that worker was off work due to his compensable injury, the worker's employer advised the worker and WCB that it would be closing down the business due to unrelated reasons. As a result, the worker would not have employment to return to once he had recovered from his workplace injury.

On September 20, 2016, the worker attended the WCB offices with a binder of information and requested that the WCB re-open his claim. The worker's request stated, in part:

My injury did not heal because of undiagnosed uncontrolled Diabetes. I was unique in my healing process as I had an undiagnosed pre-existing condition. WCB cannot prejudice against my undiagnosed condition.

…WCB should have provided me with vocational rehabilitation. I firmly believe that my condition would have been diagnosed earlier and I would not have become the cardiac cripple that I am today. The length of time it took my foot/ankle to heal, the complications that resulted from the length of time my leg was in a cast and the impact that immobility had on my undiagnosed condition were extreme factors in my recovery.

On November 10, 2016, a WCB medical advisor was asked to review the file information and to comment on whether the new medical information suggested a change to the decision dated December 5, 2005. The medical advisor stated:

• The worker's current disability is not related to the workplace injury of January 14, 2005. The medical advisor referred to x-rays of the left foot taken between January 15, 2005 and August 2, 2005, the clinical findings at the WCB call-in examination on September 23, 2015 and the clinical findings of the attending physician dated November 25, 2005 of no local tenderness of the fracture area. A new diagnosis of plantar fasciitis was offered to explain foot pain, tightness of the left calf and tenderness of the plantar fascia. • The letter from an occupational medicine specialist dated February 25, 2016 mentioned that the delay in healing of the metatarsal fracture may have been related to high BMI. While this speculation may be accurate, Jones fractures are known to be much slower to unite than other configurations of fractures of the metatarsals. Although documenting overall disability, this correspondence contained no statements that point to a relationship between the workplace injury and the current disability. • A report from an endocrinology specialist dated March 11, 2016 documented the condition of diabetes mellitus with multiple system complications. There was no reference to a workplace injury. • The family physician on March 15, 2016 documents the degree of disability in order to support a CPP application. There is reference to non-union of a foot fracture. This was not a metatarsal facture. It was a fracture of the medial malleolus of the right ankle demonstrated on x-ray dated November 27, 2015 and on bone scan dated March 4, 2016. The bone scan did not show any abnormality of the left ankle and foot. • The other recent medical reports in the submitted binder do not make reference to the workplace injury. They document the disabling complications of diabetes.

In a WCB decision dated November 30, 2016, the worker was advised that based on the WCB medical advisor's opinion, no change would be made to the previous decision. On December 13, 2016, the worker appealed the decision to Review Office.

On January 30, 2017, Review Office determined that the worker was not entitled to benefits beyond December 4, 2005.

Review Office noted that the worker's doctor did not clear him to return to regular duties in December 2005. However, this was due to plantar fasciitis which Compensation Services determined was not related to the claim. Review Office noted that an x-ray taken August 2, 2005 demonstrated that the fifth metatarsal fracture had healed. It was indicated that the worker may have had ongoing discomfort in the area of injury, however, it would not have prevented him from returning to his pre-accident duties had they been available in December 2005.

Review Office referred to medical correspondence on file dated February 25, March 4 and 15, 2016, and the WCB medical advisor's comments of November 24, 2016.

Review Office stated that it was unable to identify any medical evidence to support the worker continued to suffer disabling effects from the workplace accident beyond December 4, 2005. Review Office acknowledged that the worker suffered from a multitude of medical issues but that these medical issues were not a result of the January 14, 2005 workplace accident.

On June 13, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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.

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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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.

The worker has an accepted claim for a workplace injury. He is appealing the WCB decision that he is not entitled to benefits after December 4, 2005.

Worker's Position

The worker was assisted at the hearing by his sister.

The panel was provided with a detailed presentation of the history on the worker's medical conditions.

The worker highlighted various medical reports and other documents contained in his file and reviewed the chronology of events both before and after his WCB claim ended in December 2005.

In summary, the worker stated that he believed that when his claim was closed in December 2005 he was still unable to return to his work as surveyor's assistant. The worker's position was that his continuing inability to return to his pre-accident status was related to his workplace injury. The worker highlighted that his treating physician never medically cleared him to return to work prior to his benefits discontinuing in December 2005. Since WCB was aware that he remained medically unfit to return to his pre-accident duties and was also aware that the business he was employed with at the time of the injury had closed, WCB had an obligation to continue to provide benefits and retrain him to ensure that he was able to obtain alternative employment within his existing restrictions.

The worker clarified at the hearing that although he identified a number of medical conditions referred to in the file, his primary issue is his ongoing left ankle rollover that he first raised a concern about in 2005. The worker believes that the ankle rollover is a result of the workplace injury and continued to occur after December 4, 2005 when WCB discontinued benefits.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB decision that he was no longer entitled to benefits after December 4, 2005. For the worker's appeal to be approved, the panel must find that, on a balance of probabilities, the worker continued to be injured as a result of his January 14, 2005 accident after December 4, 2005. The panel is unable to make that finding.

In making this determination the panel carefully reviewed all the information provided. The panel accepts that the worker sustained a transverse fracture of the proximal shaft of the 5th metatarsal bone (commonly referred to as a Jones fracture). The panel also accepts that the worker sustained a secondary injury of disuse osteoporosis as a result of the initial workplace injury. However, the panel does not accept that the initial injury or the resulting secondary medical condition (disuse osteoporosis) continued to be symptomatic after December 4, 2005.

The panel bases its decision on the following information:

The initial medical report by the physician who examined the worker on January 15, 2005 states the following:

Slipped on Wed on Ice - rolled same - c/o pain to (L) lateral side of foot - swelling to same. Unable to fully wt bear.

The same report provides a diagnosis/impression of "fracture 5th MT (L) foot".

The worker's treating physician examined the worker on January 21, 2005 and stated in his medical report to WCB that the diagnosis was "Jones #Lt". Under subjective complaints the treating physician stated "Fup # Lt. foot" and under objective findings the treating physician noted decreased swelling. The worker was fitted with a non-weight bearing, below knee cast on his left leg/foot.

An X-ray report of the left foot dated February 18, 2005 states "There is an undisplaced fracture of the proximal aspect of the fifth metatarsal."

A March 17, 2005 medical report from the worker's treating physician noted that the worker was experiencing "mild tenderness #mt V" (fracture 5th metatarsal). The worker was prescribed a walking boot as well as crutches and advised to stay off work.

The worker continued to receive care from his treating physician who provided WCB with regular reports.

The treating physician's report dated May 12, 2005 stated the following:

(The worker) attended the office on April 15, 2005. He was seen in follow up for a Jones fracture of his left foot. The fracture was 13 weeks old. Clinically he had very mild tenderness in the area of the fracture. Radiologically, the fracture has not healed completely. (The worker) was encouraged to try to walk in a walking shoe, but should go back in to the walking boot if there is any pain. He will be followed up in approximately four weeks to see if the fracture has healed.

The worker's left foot was again X-rayed on May 13, 2005 and the following findings were noted in the report:

A fracture through the fifth metatarsal is again seen and unchanged in position and alignment. The fracture line is perhaps subtly less apparent than on the previous study but remains fairly visible. Disuse osteopenia is noted. No other abnormality is seen.

The worker was examined by his treating physician again on May 13, 2005. The resulting report stated that the worker had been "Out of boot x2weeks (17 weeks), down stairs uncomfortable". The worker's treating physician also stated that there continued to be "mild tenderness #mt V" and further that the worker "can't walk on uneven surface yet - cannot work yet".

The worker commenced physiotherapy on June 13, 2005. The initial assessment provided to WCB of that appointment stated under current subjective complaints that worker was experiencing "pain lateral border of foot when on uneven ground". Under current restrictions the worker's physiotherapist reported that worker was "unable to walk for any length of time, esp. on uneven ground".

The worker's left foot was again X-rayed on August 2, 2005 when the following findings were noted on the report:

The fracture of the fifth metatarsal appears healed. No new abnormality is noted although mild disuse osteoporosis persists.

The worker continued to experience difficulties with his left foot while walking. His treating physician's report dated August 30, 2005 stated that the worker reported that he "Gets click in foot + foot feels weak when happens - feels like foot locks up. Some days no problem, discomfort if pivots on foot." Under objective findings the worker's treating physician noted "Good ROM (range of motion), tender mt V base, pain (with) squeeze/twisting foot". The worker's treating physician prescribed that the worker continue strengthening (exercises) as well as prescribing shoes with rollover. The report of "foot clicking" was new and had not been reported previously by the worker.

The worker was examined by a WCB medical advisor on September 23, 2005. The medical advisor's findings at that time were that the fracture of the fifth metatarsal was healed however the previously diagnosed disuse osteoporosis was still evident and contributing to the worker's ongoing discomfort following prolonged walking.

It is the panel's understanding that the diagnosis of disuse osteoporosis would be related to the compensable injury as it can be caused by inactivity of a limb as the result of being in a cast. The normal treatment for disuse osteoporosis is to increase utilization of the affected limb through activity and exercise.

The WCB medical advisor noted during the September 23, 2005 call-in exam that the worker had advised him that he had experienced a significant improvement in strength and decrease in pain in the solar aspect of his foot in the past three to four weeks. The WCB medical advisor attributed this improvement in symptoms to be the result of the worker's increased utilization of the extremity as well as a home ankle strengthening program. Based on the findings at that time the WCB medical advisor stated the worker would be fully recovered in six to eight weeks.

In the report from the worker's October 13, 2005 examination provided by his treating physician, he states under subjective findings "foot improved, still pain at times/walking on uneven ground." The worker's attending physician also notes the following objective findings "mild tenderness base mt V, - (negative) swelling" and the worker should continue his exercises.

WCB wrote the worker on October 24, 2005 advising that although the compensable injury to the fifth metatarsal had healed, WCB would continue to pay wage loss benefits to December 4, 2005 as a result of the development of disuse osteoporosis that was expected to be resolved by date of the discontinuation of benefits (December 4, 2005). It is noted by the panel that the October 24, 2005 letter incorrectly identified the secondary medical condition as osteoarthritis. However, based on the medical information contained in the file the panel accepts that the correct secondary medical condition at that time was disuse osteoporosis. WCB based their decision to end benefits on December 4, 2005 on the noted improvement in the symptoms identified at that time. The October 24, 2005 letter also stated that should the worker not feel that he was able to return to his pre-accident duties on December 4, 2005 as expected, he should provide WCB with any medical information available to determine if he would be entitled to further benefits.

When the worker was examined by his treating physician on November 25, 2005 he was diagnosed with Plantar Fasciitis in his left foot with noted symptoms of tightness in his calf muscles and tenderness in his plantar fascia. His treating physician noted that the plantar fasciitis is a change in diagnosis to the worker's left foot condition.

The development of the plantar fasciitis was reviewed by a WCB medical advisor on November 30, 2005 who provided an opinion that the development of plantar fasciitis would not be related to the compensable injury. On December 5, 2005 WCB wrote the worker and advised him that it was WCB's position that the recently diagnosed plantar fasciitis was not related to the compensable fracture of the worker's fifth metatarsal on his left foot.

The worker's benefits were discontinued on December 4, 2005 as no further medical information was submitted that would support that the worker had not recovered from his compensable injury.

A report from the worker's treating physician dated May 12, 2017 provided a summary of the worker's medical treatment in 2005. The report references a medical appointment on December 6 2005 (after WCB benefits were discontinued) where the worker reported that his heel and arch pain had improved. However there was now a report of ankle and lateral foot pain when the worker was walking and going down stairs. The worker's treating physician noted that upon examination the left ankle and foot had good range of motion with pain on inversion. There was also tenderness in the anterior and lateral ankle as well as the previous noted pain in the plantar fascia. The worker's treating physician also noted that during the December 6, 2005 examination that "There was no tenderness on the previous 5th metatarsal fracture."

An X-ray taken on December 6, 2005 of the worker's left ankle noted the following:

Minor degenerative changes are seen at the ankle joint. Small osteophytes are seen anteriorly. The ankle mortise is intact. No acute bony abnormalities are appreciated.

The worker's treating physician also stated in the same May 13, 2017 summary that when he saw the worker on December 13, 2005 he provided the worker with another new diagnosis of osteoarthritis of the left ankle.

The same May 13, 2017 summary prepared by the worker's treating physician contained the following comments:

In summary, (the worker) sustained a work injury where he had a 5th metatarsal Jones fracture on January 11 (sic), 2005. With treatment, the fracture healed well and showed solid healing on x-rays on June 10, 2005, as well as August 2, 2005. In spite of this, (the worker) was still not to able to do his work as a surveyor that required walking on uneven terrain. He continued to report improvement in his systems. On November 25, 2005, he was diagnosed with plantar fasciitis and then also with mild osteoarthritis of his left ankle on December 6, 2005. Due to this, he was still not able to return to his normal work duties as a surveyor. I did not see (the worker) after that and never cleared him to go back to his work as a surveyor. Due to the fact that the 5th metatarsal fracture healed well on x-rays done in July and August 2005, WCB decided that (the worker) should be fit for his pre-accident work as a surveyor at the beginning of December 2005. WCB required (the worker) to confirm that his left foot difficulties that developed in November 2005 were directly related or caused by his workplace injury, to cover further wages. It is true that (the worker) was not fit to return to his pre-accident work as a surveyor due to his left foot plantar fasciitis and osteoarthritis of the left ankle, but unfortunately, it is impossible to say whether the plantar fasciitis has any relation to the 5th metatarsal fracture or not. The osteoarthritis of the ankle is not related to his fracture.

Based on the information provided, the panel makes the following findings:

• Although the initial injury of the fracture to the fifth metatarsal of the worker's left foot had healed in August 2005, the worker remained off work and entitled to benefits because of the diagnosed injury related disuse osteoporosis as the worker was not considered to have recovered from his workplace injury and continued to receive benefits until December 4, 2005 to allow the disuse osteoporosis to heal.

• There is no medical information that the diagnosed disuse osteoporosis which had caused the continuation of benefits beyond the point that the initial fifth metatarsal fracture had healed in August 2005 remained symptomatic after December 4, 2005.

• Neither the plantar fasciitis diagnosed on November 25, 2005, nor the osteoarthritis diagnosed on December 6, 2005 are related to the compensable fifth metatarsal fracture on the left foot. The panel relies on the opinion provided by the WCB medical advisor dated November 30, 2005 to support the decision on the plantar fasciitis as well as the opinion of the worker's treating physician dated May 13, 2017 who confirmed that the diagnosed osteoarthritis in the worker's left ankle was not related to the compensable fracture of the left fifth metatarsal.

• The medical information on file does not support that the worker's diabetes, which was diagnosed after the workplace injury, affected the worker's recovery from the workplace injury. The panel acknowledges that there is a medical report dated March 15, 2016 that was prepared for the purpose of a Canada Pension Plan disability application that makes reference to the worker having "delayed tissue/ bone healing resulting in foot pain and decreased mobility." However, the panel notes that the medical conditions related to the workplace injury (the fracture to the fifth metatarsal and disuse osteoporosis) had resolved prior to benefits discontinuing in December 2005.

• The described left ankle rollover (or any other left ankle instability) would not be related to the compensable injury as there was no diagnosis of an ankle related work-place injury.

Based on the foregoing, the panel finds that, on the balance of probabilities, the worker had recovered from his compensable injury by December 4, 2005, and there was no further entitlement to benefits after that date.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 28th day of December, 2017