Decision #159/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept responsibility for the worker's left ankle surgery and to deny cost relief to the employer. A hearing was held on September 18, 2018 to consider the employer's appeal.
Whether or not responsibility should be accepted for the worker's left ankle surgery; and
Whether or not the employer is entitled to cost relief.
That responsibility should be accepted for the worker's left ankle surgery; and
That the employer is not entitled to cost relief.
The worker filed a claim with the WCB for a left ankle injury that occurred at work on August 30, 2013. The worker described the incident as follows:
I was installing a dash on my knees. While I'm on my knees, my back feet are up and my toes are pointed. I guess I was in the positions for about 10 min while I was drilling. I stood up and suddenly my ankle started to swell up and get sore.
The worker stated that he attended a medical clinic on August 30, 2013 and was told he could return to work after the weekend. No x-rays were taken and no medication was prescribed.
Medical information confirmed that the worker was seen by a physician on August 30, 2013. The examination findings included mild left lateral ankle swelling, tenderness in the anterior ankle with slight decrease in range of motion with foot extension. The diagnosis outlined was a left ankle sprain.
The next medical information on file is a report from the worker's family physician dated June 9, 2014, where it was noted that the worker's left ankle had never been the same since his August 2013 work-related injury and the current diagnosis was a possible ligamentous disruption.
On June 27, 2014, the worker advised the WCB that he continued to have ongoing difficulties with his left ankle since his compensable injury and that his supervisor and all of his co-workers were aware of his difficulties.
In a memorandum to file dated July 4, 2014, the case manager noted that the worker had further advised that:
The injury occurred on Aug 30/13. He was installing a dash on a bus and he was working on his knees. He had his toes pointing into the ground and he had his behind sitting on his heels for approximately 10 minutes. When he got up he pushed back on both of his feet and stood up. He is unsure if he twisted while getting up but he felt a lot of the weight was on his left foot. Immediately after he stood up he felt extreme pain to the outer left side of his left ankle which went into the back of his heel and he had a shooting pain up his leg. His foot began swelling immediately and he had trouble weight baring (sic). He reported the injury immediately and iced his ankle. He was then transported to a doctor the employer sends people to. The worker said he has not had any prior ankle problems and no previous fractures...He said he did not seek medical attention in between because he thought it was only a sprain and his ankle would get better.
On July 14, 2014, the worker's supervisor confirmed that the worker had made ongoing complaints on several occasions since August 30, 2013 about soreness in his ankle and that his ankle did not seem to be healing as it should. The supervisor asked the worker if he would like to be placed in a different position and the worker replied that he was okay to continue working but his ankle was sore.
Additional medical information on file included left ankle x-ray results dated June 13, 2014, and a July 15, 2014 consultation report from an orthopedic surgeon, who stated:
I feel that [the worker] has some ankle instability relating to a soft tissue injury he sustained at work approximately one year ago. His symptoms sound like they may be related to loose bodies, which I can see on the x-ray. He is also starting to develop some arthritic changes within the ankle, which would be related to the instability. Also, a peroneal tendon instability and irritation is not uncommon after severe lateral ankle ligament injuries. He may also have this as his peroneal tendons appear to be irrigated.
The surgeon indicated that surgical options for the worker included an arthroscopic debridement of his joint followed by an open lateral ligament stabilization procedure (modified Brostrom procedure) with a possible peroneal tendon sling reconstruction.
On July 29, 2014, a WCB orthopedic consultant opined as follows:
• The most likely diagnosis that would have resulted from the mechanism of injury ("MOI") was a mild sprain/strain of the left ankle;
• The MOI would not result in a severe lateral ligament injury;
• "Well corticated bone fragments/ossicles" noted on the x-ray report taken 9 to 10 months after the compensable injury would not arise out of the MOI;
• Noted early degenerative osteoarthritis of the ankle joint could not develop in relation to the compensable injury of this claim;
• The imaging studies and the surgical proposal related to a pre-existing condition of early degenerative osteoarthritis of the left ankle joint and associated lateral tendinopathy, and it was not recommended that the WCB accept financial responsibility for the proposed surgery.
By letter dated August 1, 2014, the WCB orthopedic consultant advised the treating orthopedic surgeon that he was unable to recommend that the WCB accept financial responsibility for the proposed surgery, which appeared to be directed at a pre-existing condition.
By letter dated August 6, 2014, Compensation Services advised the worker that the WCB was not accepting responsibility for wage loss, medical aid or medical treatment as it was felt that his current left ankle difficulties and need for surgery were not the result of the August 30, 2013 workplace injury.
On August 5, 2014, the treating orthopedic surgeon wrote to the WCB and stated:
I would like to draw your attention to the fact that in my professional opinion, this gentleman's problems are directly related to the injury he sustained at work. At that time, the patient describes sharp pain within his left ankle which left his ankle sore and swollen. Initial x-rays were noncontributory indicating a soft tissue injury. He has had continued pain and instability related to his ankle since that time. I feel that [the worker's] ankle instability is related to the soft tissue injury that he sustained at work. The arthroscopic debridement of the ankle joint as well as reconstruction of his ligaments would be treatment for the injury that was sustained at his workplace. I am not sure why you feel that this is related to a pre-existing condition as this is not what I had mentioned in my notes.
On September 5, 2014, the WCB orthopedic consultant commented that the degenerative changes identified on the June 13, 2014 straight x-ray would not have developed in as short a period as 10 months. The consultant stated that he remained of the opinion that the MOI could not have resulted in the extensive injury to the lateral ligament complex for which the orthopedic surgeon proposed an open lateral ligament complex reconstruction procedure.
On September 9, 2014, Compensation Services advised the worker that no change would be made to their earlier decision not to approve the surgery request as a WCB responsibility.
On September 24, 2014, the worker underwent surgery to his left ankle.
On October 6, 2014, a worker advisor acting on behalf of the worker appealed Compensation Services' decision to Review Office. On January 8, 2015, Review Office determined that no responsibility would be accepted for the worker's current left ankle difficulties. Review Office found that the evidence did not support that the worker's current difficulties and surgery were related to the August 30, 2013 workplace accident.
Review Office stated that they preferred the evidence provided closest to the event. Review Office accepted the MOI to be that "the worker was kneeling and when he stood up, he felt pain in his left ankle" and that the clinical findings from the August 30, 2013 examination were consistent with the diagnosis of a left ankle sprain. Review Office accepted the WCB orthopedic consultant's opinion that the August 2013 accident would not have resulted in an extensive injury to the lateral ligament complex. On April 23, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged for October 27, 2015. Prior to the October 27, 2015 hearing, the worker advisor provided a written submission, which included a copy of the September 24, 2014 operative report and a report from the treating orthopedic surgeon dated March 26, 2015. In his written submission, the worker advisor stated, in part:
If the Panel does not accept that [the worker's] August 30, 2013 work accident was solely responsible for the surgical treatment he underwent on September 24, 2014, we would submit, as an alternative, that he likely had a pre-existing condition that - in concert with the compensable injury - resulted in the need for surgery to his left ankle.
At the commencement of the October 27, 2015 hearing, it was noted that the above issue had not been addressed by Review Office, and the hearing was adjourned at the worker's request to enable him to return to Review Office for full consideration of the case. On November 3, 2015, the worker advisor requested that Review Office reconsider their January 8, 2015 decision. The file was then referred back to Compensation Services for a further decision prior to the Review Office reconsideration.
On November 20, 2015, at the request of Compensation Services, the WCB orthopedic consultant reviewed the further information on file and opined:
It was, and remains my opinion that the workplace incident of this claim did not result in a significant injury to the lateral ligament complex of the left ankle resulting in instability…
There are no pre-injury x-rays available, therefore there is no imaging evidence of a change in the pre-existing degenerative osteoarthritis of the ankle joint. Further, if it is now accepted that the injury did not cause primary instability of the ankle joint due to loss of the lateral ligament complex integrity, then there is no evidence of an aggravation of the chronic pre-existing lateral ligament instability and associated degenerative osteoarthritis of the ankle joint…It remains my opinion that the compensable injury did not permanently and adversely affect either of the pre-existing conditions, and although surgery was carried out, it was not required as a result of the compensable injury of this claim.
On December 1, 2015, Compensation Services advised the worker that there was no change to their decision that no responsibility was accepted for his ongoing left ankle difficulties, the surgery was not a direct result of the reported August 30, 2013 workplace injury, and the medical information did not support that a pre-existing condition was aggravated to the extent that surgery was required because of the workplace accident. On December 15, 2015, the worker advisor appealed the decision to Review Office.
On February 26, 2016, Review Office accepted responsibility for the worker's left ankle difficulties beyond August 30, 2013 and for his left ankle surgery of September 24, 2014. Review Office accepted the opinion of the treating orthopedic surgeon that the worker's ankle instability was the result of the August 30, 2013 workplace injury. Review Office noted that the worker continued working his regular duties and reported swelling of his left ankle at the end of the day. The worker sought medical attention in June 2014 and provided the August 30, 2013 workplace accident as the cause of his difficulties. Clinical findings included mild swelling and mild decreased range of motion. The file evidence did not support the worker having left ankle difficulties prior to the August 30, 2013 workplace injury. Review Office placed weight on the consistencies in the worker's reporting of his difficulties to the treating practitioners, the employer and the WCB.
On October 2, 2017, the employer advised that they were seeking cost relief in relation to a pre-existing condition. By letter dated October 5, 2017, Compensation Services determined that the criteria for both 100% and 50% cost relief had not been met and there was no entitlement to cost relief.
By letter dated December 15, 2017, the employer submitted new medical evidence and requested that Review Office reconsider Compensation Services' decisions to accept responsibility for the worker's left ankle surgery and to deny entitlement to cost relief.
On March 1, 2018, Review Office determined that responsibility would be accepted for the worker's left ankle surgery and there was no entitlement to cost relief. Review Office placed weight on the treating orthopedic surgeon's opinion that a mild strain could develop into chronic instability of the ankle and that the compensable injury gave rise to the need for the surgery on the worker's ankle. On the issue of cost relief, Review Office found, based on the mechanism of injury, that the worker's pre-existing condition did not cause the workplace accident, and the employer was not entitled to 100% cost relief. Review Office also found that the worker's recovery period from his compensable surgery was within the normal time frames for the surgery performed and was not prolonged by a pre-existing condition, and the employer was therefore not entitled to 50% cost relief.
On March 1, 2018, the employer appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
WCB Policy 126.96.36.199, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries 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 states that:
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.
WCB Policy 31.05.10.01, Cost Relief/Cost Transfers (the "Cost Relief Policy"), outlines circumstances in which claim costs may be removed from the cost experience of an accident employer and charged to a collective cost pool. This process is called "cost relief."
The situations in which cost relief is available to eligible employers, as set out in section A.1.a) of the Policy, include:
(i) When the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition. The cost relief criteria and method of cost allocation are described in Schedule A.
Schedule A to the Cost Relief Policy states, in part, as follows:
The following pre-existing conditions will result in immediate 100% cost relief to the employer:
• When the prior condition is determined to be the primary cause of the accident…
For other claims involving a pre-existing condition, 50% cost relief may be provided. When a claim is significantly prolonged by a pre-existing condition, cost relief for 50% of the claim costs will be provided to the employer if the worker's time loss is greater than 12 weeks.
"Pre-existing condition" is defined in WCB Policy 188.8.131.52, Pre-existing Conditions, as "a medical condition that existed prior to the compensable injury."
The employer was represented by an advocate, who submitted a further medical report in advance of the hearing and made a detailed oral presentation to the panel, written copies of which were also provided to the panel. The advocate was accompanied by the employer's people services specialist and two human resource managers.
The employer's position was that responsibility should not be accepted for the worker's left ankle surgery as the evidence supported that the surgery was not related to the minor compensable injury of August 30, 2013 and was more likely required due to the significant pre-existing condition.
In her submission, the employer's advocate provided a detailed response to each of the reasons relied upon by Review Office in accepting responsibility for the worker's left ankle surgery.
It was submitted that the details associated with the original minor work incident on August 30, 2013 supported that the injury was not sufficient to give rise to the need for the September 24, 2014 ankle surgery. The only description of the ankle injury which indicated that the worker did anything more than simply standing up after kneeling was provided ten months after the August 30, 2013 incident, and was inconsistent with all other accounts. In the employer's view, the evidence provided closest to the event should carry more weight.
The employer's advocate referred to and relied on a September 8, 2018 report of an occupational health physician which was provided in advance of the hearing. The advocate noted that the occupational health physician had pointed out that the development of a lateral ankle sprain while standing up is not typical in the absence of a pre-existent condition. It was further noted that the occupational health physician had attempted to personally replicate the mechanism involved with standing up from a kneeling position, as described by the worker, to determine how an ankle inversion or eversion might occur without an intervening event, but was unable to do so.
Reference was made to inconsistencies which the occupational health physician had identified in the medical reports from the worker's family physician and his treating orthopedic surgeon. It was submitted that all such errors and inconsistencies should be considered a legitimate concern which weaken the credibility of a medical opinion based on those erroneous set of facts.
The employer's advocate submitted that the WCB orthopedic consultant had consistently offered the same opinion that the ankle surgery was not a consequence of the original mild ankle sprain, and had provided detailed facts and objective evidence as support for his opinions.
The employer's advocate summarized the facts which supported their position that the worker's mild left ankle sprain was not sufficient to cause the left ankle instability diagnosed ten months after the work-related incident of August 30, 2013, and which later resulted in a surgical repair of the left ankle, as including:
• The August 30, 2013 compensable injury was accepted as a mild ankle sprain, which would normally resolve in two to four weeks, and the ankle surgery was performed more than one year later;
• There was no severe disruption of the lateral ankle ligaments that could have led to instability of the ankle;
• The ankle was in a neutral position at the time of the incident;
• There was considerable evidence of pre-existing disease in the ankle joint prior to the workplace injury, which could not have resulted from the compensable injury;
• The worker has pes planus, which is known to increase the risk of developing osteoarthritis;
• The article provided by the worker advisor is silent on the degree of sprain which is necessary to result in instability;
• A number of sources in the medical literature and the majority of medical opinions on file agree that the severity of an ankle sprain is relevant in the development of instability;
• The treating orthopedic surgeon's opinion is based on inconsistencies and errors, which weakens the credibility of the lone medical opinion which supports the surgery as being related to the workplace incident;
• The medical practitioners in disagreement with the treating orthopedic surgeon include the WCB orthopedic consultant, the original physician, the family physician and the occupational health physician, and clearly outweigh the opinion of the treating orthopedic surgeon.
With respect to the issue of cost relief, the employer's advocate noted that this issue would only arise if they were unsuccessful on the first issue. The employer's position with respect to this issue was that they were entitled to 100% cost relief, or at a minimum 50% cost relief, in the circumstances of this claim.
The employer's advocate submitted that 100% cost relief was warranted as the worker's pre-existing condition was the primary cause of the August 2013 claim. The employer relied on the premise that the work-related incident was minor and the existing osteoarthritic conditions were significant and present before the 2013 claim. In their view, the evidence suggested that had there been no pre-existing ankle condition, it was inconceivable the injury would have occurred, especially given the lack of a discrete event which intervened when the worker was simply in the process of standing up.
Alternatively, it was submitted that 50% cost relief was warranted on the basis that the pre-existing condition significantly prolonged the duration of the claim. The employer's advocate noted that the fact the compensable injury resulted in a mild left ankle sprain with a maximum eight week recovery norm, the majority medical opinions on file agree that there is a significant pre-existing condition affecting the same ankle, and the 24-week absence related to the surgical treatment recovery and a graduated return to work period, all demonstrated that the claim duration far exceeded the normal recovery period for the compensable mild ankle sprain injury.
The worker did not participate in the appeal.
Issue 1. Whether or not responsibility should be accepted for the worker's left ankle surgery.
For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that responsibility should not be accepted for the worker's left ankle surgery. The panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the information which is before us, the panel is satisfied that the worker's left ankle surgery was the result of chronic ankle instability which was causally related to, and predominantly attributable to, his compensable left ankle sprain.
The panel accepts that the worker suffered a minor ankle sprain as a result of his August 30, 2013 workplace injury. The panel notes that much of the focus in dealing with this issue previously was on the mechanism of injury and the seriousness of the ankle sprain itself. From the panel's perspective, however, the mechanism of injury and/or the severity of the sprain itself are not the issue in this case. Rather, the focus is on the consequences of the worker's left ankle sprain and whether his ankle instability and ultimate surgery were causally related to his compensable injury.
Information on file shows that the worker attended a physician on August 30, 2013, the day of his injury. He was diagnosed with a left ankle sprain, and told that he could return to his regular duties immediately. The worker returned to work on his next shift, performing his full pre-accident duties. He did not receive any time off or accommodation in respect of his sprain injury, nor did he undergo treatment for his ankle. The employer acknowledged at the hearing that the worker continued to work his full regular duties after that, and that those duties were physically active, and involved walking, standing, kneeling, changing positions and moving around.
Information on file further shows that while continuing to perform his regular duties, the worker experienced ongoing difficulties with his left ankle and it never got better. The worker ultimately attended his family physician in June 2014, and noted that the ankle had never been the same since his August 2013 injury, and was quite sore at work. He reported that he had pushed through this, but his ankle was still quite painful and the swelling would get worse through the day. His supervisor at work confirmed to the WCB that the worker had made ongoing complaints on several occasions since his August 2013 injury that his ankle was still sore and that it did not seem to be healing as it should. Based on the evidence, the panel finds that the worker never recovered from his compensable left ankle sprain.
The worker was referred by his family physician to an orthopedic surgeon, a foot and ankle specialist, who opined that the worker had ankle instability relating to his work-related injury and recommended surgery, including an open lateral ligament stabilization procedure (modified Brostrom procedure) to address this condition. The orthopedic surgeon opined, in his letter of August 5, 2014, that the worker's "ankle instability is related to the soft tissue injury that he sustained at work. The arthroscopic debridement of the ankle joint as well as reconstruction of his ligaments would be treatment for the injury that was sustained at his workplace."
In a letter to the worker advisor dated March 26, 2015, the treating orthopedic surgeon further commented that "The vast majority of ankle sprains do heal without complication in a matter of six to twelve weeks following injury, but as a foot and ankle specialist I routinely see patient's (sic) who have what was once deemed a mild ankle sprain develop into chronic instability of the ankle. The primary objective of the surgical management for [the worker] was to tension his lateral ankle complex with a Brostrom procedure."
The surgery was performed on September 9, 2014, and included the lateral ankle ligament reconstruction (modified Brostrom procedure). A subsequent report from the treating orthopedic surgeon, dated September 2017, indicated that the surgery was successful in addressing the ankle instability, with the surgeon reporting that the worker "no longer has any instability, but does continue to have some pain and discomfort in his ankle."
Based on the foregoing and in the circumstances of this case, the panel finds, on a balance of probabilities, that the worker's ankle instability and the surgery to correct that instability were causally related and predominantly attributable to his August 30, 2013 sprain injury. To be clear, the panel accepts that the September 9, 2014 surgery was causally related to the compensable injury insofar as it was done to address the instability and repair of ligaments in the worker's left ankle. The panel makes no comment in that regard with respect to the other conditions or procedures which are referred to in the operative report as having been performed on September 24, 2014.
The employer's appeal on this issue is dismissed.
Issue 2: Whether or not the employer is entitled to cost relief.
The employer is seeking 100%, or alternatively 50%, cost relief on this claim. For the employer to be eligible for 100% cost relief, the panel must find that a pre-existing condition was the primary cause of the worker's August 2013 accident. The panel is unable to make that finding.
The panel accepts that the worker had some pre-existing conditions. The panel is unable to find, however, that the pre-existing conditions caused the worker's August 2013 accident. The panel is satisfied that the reported mechanism of injury of the worker kneeling, then his ankle starting to swell up and getting sore as he stood up was consistent with a sprain injury and causative or primarily causative of his workplace accident and compensable injury. The employer is therefore not eligible for 100% cost relief.
For the employer to be eligible for 50% cost relief, the panel must find that the worker had a pre-existing condition and that the pre-existing condition significantly prolonged the claim. The panel is unable to make that finding.
The panel notes that there is no time loss in this claim prior to the September 24, 2014 surgery. Time loss only began with the surgery. The panel is satisfied that the time loss which did occur as a result of the surgery and worker's recovery from that surgery was within the normal time frames for that type of surgery.
The panel is further unable to find that the claim was significantly prolonged by a pre-existing condition. As stated above, the panel accepts that the worker has some pre-existing conditions. The panel recognizes that those pre-existing conditions were also addressed in the surgery, but is satisfied that the worker's recovery time from the surgery was directly related to the Brostrom procedure, and was therefore the result of the compensable injury. The employer is therefore not eligible for 50% cost relief.
Based on the foregoing, the panel finds that the employer is not entitled to cost relief.
The employer's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of November, 2018