Decision #38/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits after July 24, 2014. A hearing was held on February 13, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits after July 24, 2014.
The worker is not entitled to further benefits after July 24, 2014.
On her Worker Incident Report dated April 15, 2014, the worker reported that on April 14, 2014, she hurt her right ankle, described as:
I was taking a dolly loaded with flowers to the cooler and one of the fibre glass (sic) straps that was on the floor got wrapped around the dolly wheel and wrapped around my ankle and pulled my ankle. I couldn't move my leg. I looked down and realized I was caught and pulled the dolly backwards and sideways to get out of the strap and then picked it up and threw it in the garbage. I was in a lot of pain, but continued to work thinking I would be fine and I only had less than an hour to go.
The worker attended at her doctor's on April 15, 2014. The doctor examined the worker, diagnosed her with an ankle contusion and noted:
Right Ankle & Foot Examination:
Redness. Not swollen. Not warm. Symmetric. No deformities present. No lacerations. No contusions. No effusion. Good ROM. Soft tissue palpation is normal. Bony palpation is normal.
At her follow-up doctor's appointment on April 19, 2014, the doctor noted the worker's "foot injury improving" and recommended the worker could return to work with the following restrictions in place for two weeks:
Standing Short periods (15 min. - 1hr)
Sitting Long periods (2 - 4 hours)
Walking Short periods (15 min. - 1 hr)
Lifting Light weight (1 - 15 lbs)
Repetitive Motion Short periods (15 min. - 1 hr)
An X-Ray dated April 30, 2014 of the worker's ankle noted the following:
There is no joint effusion or abnormal soft tissue swelling. Alignment is anatomic. No fracture is evident.
A further follow-up appointment with the worker's doctor on April 30, 2014 noted that the worker's restrictions were "4 hour work days with minimal walking, not able to walk for longer than 15 min, and only short distances for 1 week." On May 7, 2014, the worker's doctor revised the restrictions to "pt (patient) can work for 8 hours daily, no heavy lifting, minimal walking and standing, 15 min of walking per hour for 10 days."
The worker's initial appointment with the physiotherapist took place on May 8, 2014. The physiotherapist noted the worker's complaints of "constant ache, throb, and burn in (R) (right) ankle/heel." and queried "sprain/strain, centralized pain symptoms present." At a follow-up appointment on June 19, 2014, the worker's physiotherapist requested that the WCB arrange for a call-in examination for the worker.
In response to questions asked by the WCB case manager, the WCB medical advisor examined the worker on July 2, 2014 and opined, in part:
There is no work related pathoanatomic diagnosis currently on file to account for [the worker's] currently reported right lower limb symptoms. Her neurologic examination was essentially normal. ([The worker] reported questionably increased sensation to light touch over the right lateral malleolus).
On July 16, 2014, the worker was advised by the WCB that based upon the WCB medical advisor's July 2, 2014 examination, the WCB was unable to establish a relationship between her current symptoms and the compensable injury and wage loss benefits would be paid to July 23, 2014. The worker requested reconsideration of the WCB's decision on July 21, 2014 to the Review Office.
In its decision of September 30, 2014, Review Office upheld the WCB's July 21, 2014 decision. Review Office acknowledged the worker's doctor's report dated July 14, 2014 which stated "Seated function only at present." However, Review Office placed more weight on the July 2, 2014 WCB medical advisor's examination of the worker that could not find a need for workplace restrictions or treatment. Review Office considered the mechanism of the worker's injury, the provided diagnosis, the treatment provided and the time that had passed since the workplace accident and on a balance of probabilities, determined that the worker's current issues could not be accounted for in relation to her April 14, 2014 workplace accident.
A representative for the worker filed an application to appeal with the Appeal Commission on January 31, 2017. An oral hearing was arranged for November 30, 2017.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 13, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
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 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."
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.
The worker injured her ankle on April 14, 2014 and is seeking benefits after July 24, 2014.
The worker was represented by a representative of her union. The worker's representative made a presentation on behalf of the worker. The worker answered questions from her representative and the panel.
The worker's representative acknowledged the issue and submitted that in deciding the issue, the panel must determine two things:
First, whether or not [worker] currently suffers from a medical condition, complex regional pain syndrome, which I will be referring to as CRPS throughout my presentation. And second, whether or not this condition exists as a result of the original workplace that occurred in April of 2014.
The representative said that after careful review of the file, the diagnosis of CRPS is clear, and that the condition did develop as a direct result of the original injury. She advised that the worker began working for the employer in 2013 and in 2014 suffered a right ankle injury in the workplace. The worker's representative advised that she was moving flowers from one location to another location with a dolly when a fibreglass strap caught around her ankle. As she tried to free her ankle, the dolly collided with her right ankle.
The worker described the incident as:
The foot got caught in the fiber packing, and it was caught around the dolly, the wheel of the dolly and in my foot, so it hit me, and when it hit me it felt like somebody took a baseball bat at my foot. The dolly then, I stopped immediately because I couldn’t move my leg, and the dolly hit me in the back of the heel.
The worker advised that she stayed until the end of her shift and the next morning and she struggled to walk, so went to a walk-in clinic.
The worker described the injury as:
Achilles tendon was locking on me. I was sure I had a crack in the back of my heel. On the right side of the ankle, you couldn’t touch it, it was so tender.
She said that the fibreglass packing tape was wrapped around her ankle and the wheel of the cart.
The worker advised that her whole foot was sore. She went to a walk-in clinic and was originally diagnosed with a right ankle contusion. She filed a WCB claim that day, and that claim was accepted. She started a return to work program on April 19, 2014. She started at one hour, due to a lack of appropriate work at the time, and increased to four hours. She was not able to work eight hours.
The employer stated that due to her restrictions there was no work available, and that she wasn’t to return to the workplace until she was cleared to work full duties. The representative noted that the worker has not returned to work since this date.
The worker's representative noted that the worker's symptoms seemed to worsen over the course of the return to work program, and then continued to worsen once she went off work. The worker was not able to walk or stand for long periods of time, and because of that she was prescribed crutches. The worker's representative noted that the worker's recovery was very slow and that she was referred to an orthopedic surgeon who immediately queried a diagnosis of CRPS. She said the physiotherapist also queried this diagnosis.
On July 2, 2014 the worker was examined by a WCB medical advisor who found that she was not suffering from CRPS, and that it was an ankle contusion that she was diagnosed with and that should have healed by that time.
The worker's representative advised that the worker subsequently suffered two injuries to her left foot caused by her right ankle giving out. She attended a hospital and was told that they could not determine if her left foot was fractured due to the amount of osteoporosis. Ultimately the left foot healed and they treated her right foot.
The worker's representative submitted that:
So as a result of these two falls, the doctors felt that it was necessary to treat the left foot injuries before they could go back to treating the right foot injury. So this prolonged the diagnosis, the ultimate diagnosis of CRPS, and the treatment of CRPS. So her condition continued to worsen in the right foot.
She noted that two orthopedic surgeons and the physiotherapist queried CRPS as the diagnosis. Subsequently a pain specialist made the ultimate diagnosis. She said that the only doctor that disagreed with the diagnosis of CRPS was the WCB medical advisor.
The worker's representative said that:
So basically in layman terms, CRPS is the nervous system telling the body that a serious injury has occurred, when really a serious injury has not occurred.
And then the body reacts by attempting to protect that area, so swelling will occur, strong feelings of pain will occur, so that the patient will avoid using that extremity, or wherever the injury was.
The worker's representative described the various symptoms of CRPS and referred to supporting materials which had been provided. She also referred to a previous Appeal Commission decision where the diagnosis of CRPS was accepted.
The worker's representative noted that the worker was diagnosed with osteoporosis in early 2015 when she had the x-ray on her left foot after the fall. She said that osteoporosis is another symptom of CRPS.
The worker's representative submitted that
…I suggest that on a balance of probabilities, it is clear that there is no doubt she’s suffering from CRPS, and we have that diagnosis from a specialist.
The worker's representative said that there is no other diagnosis made by any other medical practitioner that would better explain the worker's signs and symptoms.
The worker's representative submitted that the WCB Review Office failed by not considering the diagnosis of CRPS and not obtaining an opinion from a WCB medical advisor on the diagnosis.
In reply to a question, the worker acknowledged that she had osteoporosis for a long period of time and that she had it before the workplace accident. Her representative noted that many people who have CRPS develop osteoporosis. She said that the worker may have had it before the injury or it may have developed after the injury.
Regarding the reference to the worker's ankle locking, the worker said that it’s one of the most common things in CRPS patients, the foot not working properly.
The worker's representative stated that that it is common with this condition that with use of the injured extremity, the symptoms worsen. She advised that the only reference to improvement was four days after the accident. When asked about walking and standing, the worker advised that standing still in one place is worse.
The worker's representative submitted that the Subsequent Injury Policy is applicable and noted that although the two subsequent accidents occurred after the original denial by the WCB, they were a result of the original injury and are subsequent injuries resulting from the April 2014 injury. She submitted that:
Had April 14th never happened, these two injuries, I’m going to suggest, would not have happened. So that’s where that policy comes into play.
The employer did not participate in the hearing.
The issue before the panel is whether or not the worker is entitled to benefits after July 24, 2014. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and required medical aid benefits after July 24, 2014 as a result of her April 14, 2014 workplace accident.
The panel finds that the worker did not suffer a loss of earning capacity and did not require medical aid benefits after July 24, 2014 as a result of her workplace accident.
The panel notes that the worker was examined by a WCB medical advisor on July 2, 2014. This examination took place approximately 11 weeks after the accident.
The medical advisor specifically considered the diagnosis of CRPS and whether it was applicable to the worker.
The clinical findings noted by the WCB medical advisor included:
Non-provocative for pain bilaterally over the Achilles tendon, peroneal tendons and plantar surface. Color, hair growth, nail growth and perspiration were normal bilaterally symmetrical. Dorsalis pedis and posterior tibial pulses were full and bilaterally symmetrical.
The physician also measured the worker's thigh, calf, ankle mid foot and toe (great and third toe) and found the circumferences measured equal bilaterally.
He provided the following opinion:
1. What is the current diagnosis?
The current diagnosis is non-specific right ankle/foot pain.
2. What are your medical findings to support this diagnosis?
[Worker] is reporting right lower limb symptoms seven weeks following a reported injury to her right posterior ankle that, on examination at the time, was not associated with swelling, increased temperature, effusions, lacerations, or "contusions". The ankles were described as symmetric. Mild redness was noted, however, the location was not described in the April 15, 2014, initial physician's report. The diagnosis provided by the treating Physician at that time was an ankle contusion.
While [worker] appears to be reporting symptoms that are out of keeping with known trauma to her right lower limb some seven weeks ago, her current findings would not meet the criteria for complex regional pain syndrome.
3. Is the diagnosis medically accounted for in relation to the workplace injury?
There is no work related pathoanatomic diagnosis currently on file to account for [worker's] currently reported right lower limb symptoms. Her neurologic examination was essentially normal ([worker] reported questionably increased sensation to light touch over the right lateral malleolus).
4. What treatment, if any, would lead to a sustained improvement in function?
Rapid mobilization of the right lower limb to normalize function would be indicated.
5. Are the prescribed medications appropriate for the treatment of the compensable diagnosis?
The prescribed medications are commonly used to treat inflammatory conditions and neuropathic pain, neither of which has been confirmed at today's call-in examination.
6. Do the medical findings support the functional limitations as outlined by the worker's physician?
There are no examination findings present at today's examination that would support the limitation of workplace restrictions in relation to the April 14, 2014, workplace incident. Any restrictions currently implemented would be solely symptomatically based.
The panel attaches significant weight to the WCB medical advisor's opinion. He conducted a thorough examination and specifically considered the diagnosis of CRPS and opined that his findings on examination did not meet the criteria for CRPS.
Regarding the diagnosis of osteoporosis, the panel understand this to be a condition characterized by a decrease in bone density. The panel finds that the evidence did not link this condition to the workplace accident or to the diagnosis of CRPS. The worker advised that she thought she had osteoporosis before the accident. She commented regarding an injury to her left leg in January 2015, that, "because I have so much osteoporosis they couldn’t determine whether it was broken." The panel notes this occurred 8 months after the workplace accident.
The panel finds, on a balance of probabilities, that the worker's 2014 workplace injury is not related to the diagnosis of CRPS which the worker states she is currently diagnosed with.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of March, 2018