Decision #01/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to her June 22, 2000 accident. A hearing was held on December 11, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to her June 22, 2000 accident.
The worker is entitled to further benefits in relation to her June 22, 2000 accident.
The worker injured her left ankle when she fell down some stairs on June 22, 2000. The WCB acknowledged that the worker suffered a significant ligament strain and her claim was accepted. On October 31, 2001, the WCB advised that benefits would be discontinued as the WCB did not accept further responsibility for the injury to the worker's left ankle.
The worker filed an appeal with the Review Office but withdrew it in April, 2002. Following surgery in 2014, the worker again contacted the WCB, seeking further benefits as a result of the June, 2000, accident. The worker was advised on January 6, 2016, that no additional responsibility for the injured ankle would be accepted by the WCB. Additional medical information was submitted by the worker and on November 18, 2016 the worker was again advised that no additional benefits would be paid.
Following the accident, the worker was referred to an orthopedic surgeon who, in October, 2000, diagnosed her with a significant anterior capsular and lateral ligament complex injury which appeared to be stable. The orthopedic surgeon recommended an MRI, which was done in January, 2001. The MRI showed that the ligaments and tendons appeared unremarkable and no abnormality was demonstrated.
Ever since the workplace accident occurred, the worker has suffered from pain and swelling, and hears a "snap" or "pop" in her ankle. She has joint instability (which was partially alleviated through surgery) and hypersensitivity in the area of her ankle and up her left leg, along with some discoloration and temperature changes. There is evidence of mild hair changes to the left foot.
A diagnosis of reflex sympathetic dystrophy (RSD, later known as chronic regional pain syndrome or CRPS) was considered by a number of medical practitioners over the years. The worker's treating family physician noted in November, 2001 that the worker's sports medicine physician thought the worker may have RSD. A physical medicine specialist stated in August, 2001 that the worker's symptoms were suggestive of RSD but wasn't able to provide a specific diagnosis. In September, 2001, a treating rheumatologist was unable to confirm this diagnosis. A bone scan conducted in October, 2001, also did not reveal evidence of RSD. However, throughout the subsequent years, a number of medical practitioners who saw the worker commented that the worker had or may have RSD. An MRI conducted in 2007 indicated attenuation of the ligament but otherwise failed to identify any abnormality. An MRI conducted in May, 2013, noted "attenuation of an intact anterior talofibular ligament, compatible with remote trauma."
In January, 2013, the treating orthopedic surgeon wrote that the worker had significant CRPS. In May, 2013, he recommended surgery but cautioned that surgery may increase her CRPS. Surgery was performed which included the reattachment of two ligaments, damage which the treating orthopedic surgeon attributed to the 2000 accident.
In November, 2014, the worker's pain management specialist confirmed the diagnosis of CRPS in accordance with the criteria for CRPS used by the WCB.
In February, 2016, the treating orthopedic surgeon reviewed the 2013 MRI which showed a thinning and attenuation of the anterior talofibular ligament, as well as the surgical findings from January, 2014 which identified that the anterior talofibular ligament was very attenuated and torn off. The orthopedic surgeon found that, based on the MRI and the surgical findings, there was an abnormality with the worker's ankle ligaments and he concluded that the worker did have an ankle ligament injury as a result of the work-related injury. While the surgery helped with stability of the ankle, it did not help the CRPS, resulting in a residual disability. In July, 2017, the orthopedic surgeon advised that the worker would not benefit from further surgery and referred the worker back to the pain clinic.
The worker's representative requested reconsideration of the WCB's November 18, 2016 decision to Review Office. The worker's representative submitted medical evidence supporting that the worker showed symptoms of CRPS shortly after her June 22, 2000 accident and current medical evidence that indicated the worker met the diagnostic criteria for CRPS. The worker's representative noted that this evidence indicated a causal relationship between the worker's diagnosis of CRPS and her June 22, 2000 workplace accident.
On May 20, 2017, Review Office determined that the worker was not entitled to further benefits. Review Office found, on a balance of probabilities, based on the minor nature of the worker's initial injury from the June 22, 2000 workplace accident, the lack of findings on the diagnostic imaging at the time of the workplace accident, the lack of time of contact between the worker and the WCB, the WCB's orthopedic specialist's opinion after a December 16, 2015 call-in examination with the worker that the worker's current left ankle difficulties were not related to the workplace accident, such that the worker was not entitled to further benefits.
The worker's representative again requested reconsideration by Review Office of their May 20, 2017 decision on November 10, 2017. The worker's representative submitted further medical evidence in support of the request. In August, 2017, the worker's representative requested that the community medicine specialist treating the worker have a radiologist review the three MRIs which had been performed in 2001, 2007 and 2013. The radiologist's opinion was that, for various reasons, the MRIs resulted in false negative findings and that there was evidence of attenuation in 2007 and 2013. In October, 2017, the community health physician treating the worker concluded that there was strong clinical evidence and support that the worker sustained ligamentous damage in her 2000 injury and accepted that the MRIs failed to detect the injury for the reasons expressed by the radiologist.
Review Office requested that a WCB medical advisor provide a medical opinion on the worker's file. The WCB medical advisor opined, on December 12, 2017:
The first documentation on file of symptoms and findings that would meet the IASP (International Association for the Study of Pain) criteria for CRPS was the Pain Clinic report of November 27, 2014. A new dx (diagnosis) of CRPS, first confirmed by objective findings 14 years after the workplace injury, when prior assessments did not provide those same objective findings, cannot be medically accounted for in relation to the workplace accident.
Review Office determined, on December 28, 2017, that the worker was not entitled to further benefits. Review Office discussed the request with the worker's representative on December 18, 2017. The worker's representative raised the issue of the noted thinning and attenuation of the worker's anterior talofibular ligament. Review Office noted that this issue was considered by the WCB medical advisor during the call-in examination with the worker on December 16, 2015, where it was found the surgical results were not supported by the 2013 MRI results. Review Office accepted the opinion of the WCB medical advisor that the diagnosis of CRPS cannot be medically accounted for in relation to the workplace accident of June 22, 2000. Review Office acknowledged that one of the worker's healthcare providers submitted a medical report which spoke to the possibility of a false negative MRI result but found that to be speculative and relied on the opinion of the WCB medical advisor.
The worker's representative filed an appeal with the Appeal Commission on January 3, 2018. 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.
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 provides that the WCB may provide a worker with such medical aid as is considered necessary to cure and provide relief from an injury resulting from an accident.
Section 37 of the Act provides that, where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: (a) medical aid, as provided in section 27; (b) an impairment award, as provided in section 38; and (c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
According to Subsection 39(2) of the Act, 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 was assisted by a worker's representative who provided a written submission prior to the commencement of the hearing, and made a presentation to the panel. The worker also provided details of the injury, medical interventions and results, and responded to questions from the worker’s representative and the panel.
The worker's position was that she is entitled to further benefits, beyond November 6, 2001, as a result of the injuries she sustained when she fell on June 22, 2000. The worker has been in constant pain since then and is able to walk or sit comfortably only for short periods of time. There was no pre-existing condition and no ankle or leg injuries following the June, 2000 accident. The WCB accepted the initial claim, and should be held responsible for the ongoing problems which resulted from the June, 2000 fall.
The worker's representative stated that the worker has been compliant with medical advice and direction but has not achieved any substantial benefit. Although accommodations were attempted, they were not successful. Volunteer work was also attempted for short periods of time after the WCB discontinued benefits but they were not successful. Due to numerous allergies, the worker does not tolerate many pain medications. The worker's representative stated that surgical intervention provided some stability to her ankle but did little or nothing for the pain and hypersensitivity in her ankle and leg.
The worker attributed the on-going symptoms to the June, 2000 accident. Although the initial medical opinions were that reflex sympathetic dystrophy could not be confirmed through MRIs, the surgeon who operated on the worker's ankle in 2014 was able to see the damage. The surgeon advised that it is not uncommon to find damage that wasn't visible on an MRI. Doctors who saw the worker confirmed that the worker's condition was ongoing and serious. Ultimately, the diagnosis of RSD/CRPS was confirmed. Accordingly, the worker submits that the WCB should provide ongoing coverage beyond November 6, 2001 (when WCB benefits ceased) because there is a continuous documented history from medical professionals who all agree that the issues were genuine and a result of the compensable injury that occurred in June, 2000.
The employer's representative attended the hearing but stated the employer would not be making a submission to the panel. He indicated that he would rely on the evidence provided by the worker.
The WCB accepted that the worker suffered an ankle injury on June 22, 2000, for which the worker was entitled to benefits. The worker is appealing the WCB decision that she was not entitled to benefits after November 6, 2001. For the worker's appeal to be successful, the panel must find that the worker continued to be entitled to benefits beyond the date benefits were discontinued by the WCB. The panel is able to make that finding based on the following.
The worker's recovery has been prolonged; the injury did not resolve within the expected recovery time. In fact, her symptoms have continued and she has not returned to work.
Because the worker's ankle injury was not resolving as expected in 2000, she was referred to an orthopedic surgeon, who reported, in part, in his October 30, 2000 report:
She has sustained a significant anterior capsular and lateral ligament complex injury, which appears to be stable. …
I think an MRI would be useful to define the lateral ligament complex and also assess the articular surfaces in spite of the negative [bone] scan.
The worker did have an MRI of her ankle on January 19, 2001, which did not identify any abnormalities despite the orthopedic surgeon's clinical findings.
The worker continued to seek medical treatment for her ankle problems over the ensuing years. The worker was assessed by another orthopedic surgeon in 2013 who also identified RSD/CRPS symptoms in his examinations. He initially prescribed further conservative treatment for the worker's injured ankle but ultimately recommended surgery. In one of the orthopedic surgeon's reports dated May 29, 2013 he stated, in part, the following:
She does have evidence of a previous injury and attenuation of the anterior talofibular ligament. No other abnormalities were noted. …
I did explain that the surgery on her ankle was risky and that it potentially could not improve her pain and possibly increase her complex regional pain symptom profile. However, possibly an ankle arthroscopy with an ankle ligament repair would make a difference.
Surgery was performed on January 17, 2014. The operative report noted that the calcaneofibular ligament was torn off the worker's distal fibular and further, that the anterior talofibular ligament (ATFL) was attenuated and torn off the anterior margin of the distal fibula. The torn ligaments were reattached during the surgery.
The panel's position is that the surgical findings are the best evidence of the worker's ankle injury.
Post-surgery, the worker's treating surgeon made the following comments regarding the worker's injuries as part of his February 8, 2016 report.
She states that still gets a lot of pain in her ankle due to her regional pain syndrome. …
She states that since the surgery, the ankle has been more stable, but it has not helped her pain a great deal. …
Based on the MRI and the surgical findings, there was an abnormality with her ankle ligaments. (the worker) states that her ankle instability started after her work related injury. This would make me conclude that she did have ankle ligament injury as a result of the work related injury.
While the panel accepts that the early diagnostic imaging did not identify an injury to the worker's left ankle, it was initially suspected, as noted in the orthopedic surgeon's report in October 2000. The absence of positive imaging of an injury on the 2001, 2007 and 2013 MRIs was referred to a radiologist for comment. He stated in his September 6, 2017, report the following:
False negative reading could have been due to the relative age of the MRI machines and on the March 8, 2007 study the oblique axial plane. In retrospect, the ATFL was attenuated on the March 8, 2007 study with a similar appearance on the 2013 study.
With regard to the calcaneofibular ligament, a tear from the fibular site is difficult to visualize with MRI and often this will require a specific imaging protocol with specific oblique views.
The panel finds that, based on the balance of probabilities, the worker's left ankle injury was the result of the June 22, 2000 workplace accident.
With respect to the diagnosis of RSD/CRPS, while a diagnosis of RSD/CRPS was suspected by a number of the worker's medical caregivers in the early stages following the worker's injury, the findings were inconclusive during the period between the date of the injury and the 2014 surgery.
The worker was examined by a rheumatologist who stated the following as part of a September 12, 2001 report:
Impression; I am not clear on the etiology of (the worker's) symptoms at this time. RSD had been proposed as a potential cause, but certainly today, aside from her complaints of dysaesthesia, I see no objective findings that would go along with this diagnosis.
Prior to the surgery, the surgeon expressed concern that surgery might negatively affect the worker's CRPS and subsequent findings confirmed this did occur.
However, a CRPS diagnosis was confirmed following the surgery as outlined in a November 27, 2014 report provided by an anesthesiologist who examined the worker on November 26, 2014.
While a WCB medical consultant accepted that the findings of the worker's anesthesiologist met the criteria for RSD/CRPS, the confirmation of the diagnosis was approximately 14 years after the initial injury and therefore it was her opinion that such a diagnosis could not be medically accounted for in relation to the workplace accident.
The panel notes, however, that the accepted diagnosis of RSD/CRPS was several months' post-surgery and that an increase in RSD/CRPS symptoms was a concern which had been noted by the worker's orthopedic surgeon. Therefore, while the worker's RSD/CRPS may have been inconclusive prior to the worker's surgery, that was not the case after the surgery and, further, given the concerns expressed by the worker's orthopedic surgeon, the panel finds, on the balance of probabilities, that the worker's RSD/CRPS was either enhanced by the worker's ankle surgery or caused by the worker's ankle surgery.
Based on the foregoing, the panel finds that the worker is entitled to benefits after November 6, 2001.
The worker’s appeal is allowed.
K. Gilson, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of January, 2019