The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after January 4, 2019. A hearing was held on September 26, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after January 4, 2019.

Decision

The worker is not entitled to wage loss and medical aid benefits after January 4, 2019.

Background

On December 11, 2017, the employer filed an Employer's Accident Report with the WCB indicating the worker injured his left ankle in an incident at work on December 10, 2017. The employer reported the worker was walking to his work area when he slipped on a tarp resulting in discomfort in his left ankle. The Employer's Accident Report also noted that the worker would be doing course work for two hours a day from December 11 to December 18, 2017.

A Doctor's First Report dated December 10, 2017 noted the worker's report of slipping on a tarp spread over a steel bracket and rolling his left ankle. The physician reported mild edema to the worker's left ankle with no bruising, erythema or deformity. The worker was diagnosed with a left ankle strain and referred to hospital to rule out a broken ankle. An x-ray taken December 10, 2017 noted no abnormalities.

In discussion with a WCB adjudicator on December 13, 2017, the worker confirmed the mechanism of injury as reported and noted that his ankle was still sore and swollen, and that he would be following up with his family physician. The WCB accepted the worker's claim the same date.

In a further discussion with the WCB adjudicator on December 15, 2017, the worker advised that he saw an onsite nurse on December 11, 2017 and that afterwards, the employer advised him he would be sent home. The employer advised the worker he would be paid 2 hours per day from December 11-18 and then laid off at the same time as others in his department. On December 18, 2017, the worker confirmed he received a call back notice effective January 18, 2018.

The worker saw his family physician on December 18, 2017. The physician did not provide a diagnosis but identified a left ankle injury and ordered an x-ray. A January 10, 2018 note from the worker's physician indicated decreasing pain and increasing range of motion. On January 16, 2018, the worker's family physician referred the worker to an orthopedic specialist. On February 26, 2018, the physician recommended a walking boot for the worker. On April 18, 2018, the worker's physician referred him to physiotherapy for left ankle pain.

The worker attended for an initial physiotherapy session on May 3, 2018. The physiotherapist noted the worker complained of being unable to walk without the immobilizing boot, pain with all movement and when out of the boot, and a constant ache. Upon examination, the physiotherapist reported findings of mild edema, antalgic gait, poor tolerance for ligament testing and reduced proprioception in the worker's left ankle. The physiotherapist diagnosed a left ankle sprain/strain, with immobilization weakness and stiffness and proprioception loss. The physiotherapist stated that it would be unsafe for the worker to walk on a construction site and noted he was waiting to see an orthopedic specialist.

On May 9, 2018, the WCB approved 20 physiotherapy treatments in addition to the initial assessment.

On June 27, 2018, the worker consulted an orthopedic surgeon who examined the worker, diagnosed an ankle sprain, noting the injury had been poorly treated to that point. The orthopedic surgeon recommended an aggressive rehabilitation program for the worker to regain ankle movement and strength, and stated that the worked needed return to his normal activities. The orthopedic surgeon recommended the worker discontinue use of the walking boot immediately and resume his normal activities as tolerated.

The worker's treating physiotherapist, on July 11, 2018, requested approval of further treatments, noting the worker's restricted movement in his ankle and antalgic gait. The physiotherapist noted at that time that the worker had been weaned from his dependence on the immobilizing boot. On July 19, 2018, the WCB approved 8 additional physiotherapy sessions.

The treating physiotherapist sought further extension of physiotherapy treatments on August 12, 2018, noting the need for additional diagnostic testing by MRI as she suspected an underlying osteochondral injury. The worker's treating physiotherapist spoke with a WCB physiotherapy consultant to discuss the worker's file on September 26, 2018. A call-in examination with the WCB and an MRI study of his left ankle were subsequently arranged. Further physiotherapy was not authorized.

An MRI study of the worker's left ankle was conducted on November 19, 2018 and indicated a possible deltoid ligament sprain, but no other abnormalities.

The worker attended for a call-in examination with a WCB orthopedic consultant on November 20, 2018. On the basis of the call-in examination and the medical information on the worker's file, the WCB orthopedic consultant expressed the opinion that "…there are no findings in keeping with a specific structural diagnosis for the left ankle." Further, the WCB orthopedic consultant stated there was no current diagnosis of ongoing injury to account for the worker's current difficulties and no restrictions would be required for the worker's job duties. In terms of treatment, the WCB orthopedic consultant agreed with the June 27, 2018 orthopedic surgeon's opinion that the worker needed to normalize his activities.

On December 28, 2018, WCB advised the worker that it determined he had recovered from his compensable injury, and that wage loss and medical aid benefits would only be paid to January 4, 2019.

The worker requested reconsideration of the WCB's decision to Review Office on January 22, 2019. In his submission, the worker noted he was still feeling the effects of his compensable injury. He noted that his foot turns when he walks, causing him to walk with a limp and that his ankle gives way occasionally when he tries to keep his foot straight. His treating family physician also provided a letter in support of the worker's request. The worker's treating physiotherapist also provided a letter in support of the worker's appeal and requested that the worker be assessed by a podiatrist or pedorthist.

On February 6, 2019, Review Office determined that the worker was not entitled to wage loss and medical aid benefits after January 4, 2019. Review Office considered the opinion of the WCB orthopedic consultant and noted that while the worker continued to report difficulties with his left ankle, a relationship between those difficulties and the December 10, 2017 workplace accident could not be made. Accordingly, Review Office found that there was no entitlement to wage loss and medical aid benefits after January 4, 2019.

The worker's representative filed an appeal with the Appeal Commission on March 6, 2019. An oral hearing was arranged.

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 November 12, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.

Section 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. That compensation includes wage loss benefits and medical aid, as set out in s 37 of the Act.

Wage loss benefits are addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as "…necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was represented in the hearing by an advocate who made submissions on behalf of the worker. The worker answered questions put to him by his advocate as well as questions from members of the panel.

The worker's position, as outlined by his advocate, is that he is entitled to wage loss and medical aid benefits after January 4, 2019 as the worker had not at that time recovered from the effects of the compensable left ankle injury of December 10, 2017. The worker experienced ongoing symptoms in his left ankle since the date of the initial injury, caused by the accident and aggravated by the inadequate treatment for the injury in the period subsequent.

The worker outlined for the panel the mechanism of injury on December 10, 2017. He confirmed that he sought attention from a paramedic onsite and saw the site nurse the next day. He then went to hospital where x-rays of his left ankle were taken. He stated that he was advised to stay off his foot for 3-5 days, but when his employer sent him home he had to maneuver through airports with two bags on the journey home. By the time he arrived at home, the worker said, he was not able to walk at all.

The worker confirmed to the panel that he had no prior issues with his left foot. He advised that he lives in a split level house and has had to crawl up the steps since his injury. He reported he has been unable to take his boat out, hunt or fish since the injury and that he continues to experience a lack of stability in his left foot.

The worker reported that his family physician at first recommended to him that he rest his foot and apply ice as needed, but after seeing no improvement after 4-5 weeks, the worker's physician made the referral to an orthopedic surgeon. Some two months after the injury, the worker's physician recommended the worker wear a walking boot, and in mid-April, also referred him to physiotherapy.

The worker advised the panel that at the time WCB advised him to return to work, in early January, 2019, he continued to rely upon a walking cane and the walking boot. He advised that on May 1, 2019, he began new employment that accommodates his continuing left foot problems, but noted that he still cannot climb around a construction site. The worker also advised the panel that he does a home-based physiotherapy program twice daily.

The worker's advocate summarized the evidence for the panel, suggesting that there are two causes for the worker's ongoing left foot difficulties. The first is the workplace accident of December 10, 2017 and the second is the aggravation of that injury arising out of the inadequacy of treatment provided. Both, he argued, are the responsibility of the WCB. The worker's May 2019 return to different work that he is capable of confirms that he wants to work. A proper rehabilitation program, with occupational therapy as well as physiotherapy and on-the-job activity and testing should have been provided to the worker, rather than just a clinic-based physiotherapy program. In the result, the worker has not yet returned to his pre-accident functional capacity. The worker was not able to resume his work duties as of January 4, 2019 and continued to require medical aid at that time. He should therefore be entitled to wage loss benefits and medical aid benefits after January 4, 2019.

Employer's Position

The employer did not participate in the hearing but provided a written submission in advance of the hearing, shared with all parties.

The employer's position, as outlined in the written submission received by the Appeal Commission on September 19, 2019, was that the worker is not entitled to further wage loss and medical aid benefits after January 4, 2019. The employer noted that the medical evidence did not support any current diagnosis or injury and concluded, therefore, that the worker's loss of earning capacity should end, with the result that no further wage loss benefits would be paid.

Analysis

In order to find that the worker is entitled to further wage loss and medical benefits beyond those already provided by the WCB, the panel must find that the worker experienced a loss of earning capacity and/or required further medical aid beyond January 4, 2019 as a result of the injury sustained in the accident of December 10, 2017. The panel was not able to make such a finding.

In considering the question before it, the panel took into account the oral submissions of the worker's advocate, the testimony of the worker and the written submission provided on behalf of the employer, as well as the reports and documents in the worker's WCB file.

Compensation benefits, including wage loss and medical aid benefits, are payable under the Act and policies of the WCB only when there is evidence of a disability arising from a compensable accident. In other words, there must be a causal link between the disability and the compensable injury sustained in the accident.

The worker's position here is that further benefits should be provided to him because the treatment the worker received for his injury was inadequate or improperly provided and as a result, he had not recovered from his injury by January 4, 2019. Therefore, he continued to experience a loss of earning capacity and required further medical aid beyond that date.

The panel considered the medical opinions provided by the worker and on file, placing significant weight upon the following:

• The orthopedic surgeon, in his June 27, 2018 letter to the worker's treating physician, sets out his opinion that the worker "…basically had an ankle sprain which has been poorly treated up to this point. He has had physiotherapy, but he needs an aggressive rehabilitation program now to start getting his ankle movement and strength back. This fellow has been basically doing nothing for far too long and needs to get back to normal activities. There is no indication for surgical intervention and no need for further investigation. He needs to discontinue the use of the boot immediately and resume activities as tolerated." 

• The worker was approved for a course of 20 physiotherapy treatments as of May 9, 2018 in addition to the initial assessment that had already taken place. As outlined in the physiotherapist's July 11, 2018 report that treatment included at least 90 minutes of gym activity in each visit. 

• The August 17, 2018 request for additional treatment from the worker's treating physiotherapist outlined that the worker received 10 more physiotherapy treatments after he saw the orthopedic surgeon, and described clinical findings as of that date as including restricted anterior posterior range of movement despite improved talar position, and that strength, conditioning and proprioception are all nearing normal limits. The physiotherapist noted her suspicion of underlying osteochondral injury and requested further diagnostics. 

• The November 18, 2018 MRI imaging revealed no abnormalities, other than a possible deltoid ligament sprain. 

• The report of the WCB orthopedic consultant based upon the November 20, 2018 call-in examination of the worker outlines that there are no clinical findings consistent with a specific structural diagnosis for the worker's left ankle. The orthopedic consultant notes that an osteochondral injury, initially suspected by the treating physiotherapist, was ruled out in the examination. Further, the WCB orthopedic consultant noted that the MRI findings do not indicate any ongoing pain generator or structural lesion arising out of the December 10, 2017 ankle sprain injury. The conclusion of the WCB orthopedic consultant is that there is no current diagnosis of ongoing injury to a specific bony, ligamentous or articular structure that is medically accounted for by the MRI imaging and clinical examination. 

• The October 1, 2019 report from the WCB orthopedic consultant, in response to queries from the panel, confirms that there was no evidence of osteochondral pathology, tendon pathology or pathology in the joints adjacent to the worker's left ankle. The report also outlines that the MRI finding of a possible deltoid ligament sprain could not be linked to the "acuity of the causative event."

The panel noted as well that the recommendation arising out of the November 20, 2018 assessment by the WCB orthopedic consultant is consistent with that of the June 27, 2018 orthopedic surgeon; namely, that the worker needed to normalize his activities. No restrictions or limitations on the worker's functional ability are proposed by either the orthopedic surgeon or the WCB orthopedic consultant.

Although the worker's position, as outlined by his advocate, is that treatment of the injury was inadequate or untimely, the panel noted that when a request for physiotherapy treatment was ultimately made, it was quickly approved and the worker was provided with at least 28 physiotherapy treatments over the course of May through August 2018. The panel also noted that when the orthopedic surgeon recommended the worker be weaned off of the immobilizing boot, that too occurred soon thereafter under the care of the treating physiotherapist. Further, the panel noted that the worker received medical attention from a range of practitioners through the period from the date of injury through to the date when the WCB determined his wage loss and medical aid benefits be terminated.

The panel is convinced by the evidence indicating that there was no pathology to explain the worker's ongoing symptoms or impairment of function nearly 13 months after the December 2017 ankle sprain/strain injury. Further, the panel finds that the evidence does not support the worker's position that his ongoing non-specific left ankle and foot issues are resulting from the injury incurred in the accident of December 10, 2017.

On the basis of the evidence before the panel, we conclude that, on a balance of probabilities, the worker's ongoing symptoms and impairment of function are not causally linked to the compensable ankle sprain/strain injury of December 10, 2017. The worker is therefore not entitled to further wage loss and medical aid after January 4, 2019.

The worker's appeal is denied.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of December, 2019