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 further benefits in relation to the September 18, 2019 accident. A teleconference hearing was held on September 9, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the September 18, 2019 accident.

Decision

The worker is entitled to further benefits in relation to the September 18, 2019 accident.

Background

The worker reported to the WCB on September 19, 2019 that his right leg was injured at work on September 18, 2019 when a ladder struck his leg as it fell. The worker sought treatment that same day, reporting pain, swelling and stiffness in his lower right leg, and was diagnosed with a hematoma/varicose vein rupture. The treating physician recommended the worker remain off work for two weeks and treat the injury with rest, ice, compression and elevation. The WCB accepted the worker’s claim on September 27, 2019.

On October 1, 2019, the worker confirmed the mechanism of injury to the WCB adjudicator, advising that at the time of the accident, he had pain in the range of 7 or 8 on a scale of 1 to 10, he had to use crutches to walk and had a contusion on the inside of his knee approximately 6 inches long and 3 inches wide. He advised that his treating physician indicated he could return to work on September 30, 2019 but he had given his notice with the employer and started a new position on that date. Wage loss benefits were paid to September 29, 2019. The WCB advised the worker on October 1, 2019 as he had returned to his full regular duties and was no longer receiving medical treatment for his workplace injury, his claim would be closed.

The worker contacted the WCB on October 21, 2019 to advise that he was experiencing further difficulties with his right leg. Three days previously, he woke up with a sore right calf. He went in to work that day and worked his regular duties, but his calf began to swell, and the pain increased so that he attended a local emergency department the following day. The worker was diagnosed with a deep vein thrombosis, treated with antibiotics and blood thinners and was referred for an ultrasound on October 21, 2019. He confirmed that he had not missed any time from work since September 29, 2019 and had not sought medical treatment until October 20, 2019.

On November 6, 2019, a WCB medical advisor reviewed the October 20, 2019 report from the emergency department, an x-ray of the same date and an ultrasound study taken October 21, 2019. The medical advisor opined the worker’s diagnosis related to the workplace accident was a hematoma of the soft tissues of his right knee and concluded that the medical evidence suggested the worker had recovered from the workplace accident to the point where he could return to his full regular duties on September 30, 2019. A causal relationship between the development of an “…acute thrombus (clot) in a superficial vein in his right calf area with no reports of injury or re-injury around that time period” could not be established. The medical advisor also noted the worker’s pre-existing medical history of varicose veins in his right lower extremity.

On November 8, 2019, the WCB advised the worker it would not accept responsibility for his ongoing right leg difficulties as it could not establish a relationship between those difficulties and the workplace injury he had recovered from.

The worker requested reconsideration of the WCB’s decision to Review Office on November 18, 2019. In his submission, the worker noted the acute thrombosis was located in the “…exact location my leg was struck on the inside of the knee and where the b[r]uising occurred after the incident” and as such, he believed his current difficulties were related to the September 18, 2019 workplace accident. A Doctor’s First Report from the worker’s treating physician dated November 20, 2019 set out that as a result of the September 18, 2019 incident the worker suffered “A large subcutaneous hematoma resulted affecting whole medial aspect of right knee. The subcutaneous hematoma resolved but got worse again with swelling and pain in the medial aspect of the knee and edema of the calf area.” Further, the treating physician stated that the September 18, 2019 workplace injury “…is obviously directly related to the formation on the thrombus in the saphenous vein of his right leg….”

On January 8, 2020, Review Office determined the worker was not entitled to further benefits in relation to the September 18, 2019 accident, relying upon the WCB medical advisor’s November 6, 2019 opinion that there was not a causal relationship between the worker’s development of an acute thrombus four weeks after the workplace accident with no reported injury or re-injury or ongoing complaints since the accident.

The worker filed an appeal with the Appeal Commission on February 10, 2020. A teleconference hearing was arranged and took place on September 9, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was received and provided to the interested parties for comment. On November 2, 2020, the appeal panel met again 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 under that Act and the policies established by the WCB 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 to the worker. That compensation, under s 4(2), includes wage loss benefits for the loss of earning capacity resulting from the accident. Medical aid may be provided as necessary to cure and provide relief from an injury resulting from an accident, under s 27(1) of the Act.

Where the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.

Worker’s Position

The worker appeared before the appeal panel on his own behalf, providing an oral submission as well as giving answers to questions posed to him by members of the panel.

The worker’s position is that the WCB erred in determining that his ongoing right leg difficulties were the result of a non-compensable pre-existing condition and unrelated to the injury arising out of the workplace accident of September 18, 2019. Because the ongoing right leg difficulties are the result of the compensable workplace injury, the worker stated he should be entitled to further benefits.

The worker described to the panel that the initial bruising was very painful, and he had difficulty walking at first. He indicated to the panel that the site of impact on his right leg was the same location where the clot developed as the bruising subsided. He described how the development of the clot impeded blood flow in his lower limb causing swelling below that site. The worker referenced the photograph in the claim file that he provided to the WCB on October 1, 2019 noting he took the photo and it shows the location and size of the bruising still evident on his right inner knee as of that date.

The worker explained that when he returned to work at a new job on September 30, 2019, the pain had subsided although he continued to experience some discomfort. By October 20, 2019 when he sought further medical attention, the bruising was mostly gone but new symptoms had developed including swelling of his right lower leg and pain. At that time it was identified by the treating emergency room physician that a blood clot was causing the swelling and the worker was placed on a robust regime of blood thinners and underwent ultrasound testing on multiple occasions to determine the location and extent of the clotting.

Subsequently, the worker experienced a pulmonary embolism arising from this injury. He is currently awaiting surgery to have the remaining clot removed.

The worker noted that his treating physician stated unequivocally that the formation of the clot was directly related to and the result of the initial traumatic injury of September 18, 2019. The worker confirmed that he has a long-term relationship of trust with this physician who he has seen for more than 20 years.

The worker confirmed to the panel that he has a varicose vein condition, noting he had treatment for that condition on his left leg approximately 14 years earlier, but that he had never been treated for the condition on his right leg. He stated that there was no bruising on his right leg at the time he was struck with the ladder and that he believes that this impact caused a vein to rupture resulting in significant bruising and the subsequent clotting.

In terms of loss of earning capacity, the worker confirmed he missed 10 days of work initially after the compensable injury occurred but had no further time loss after that date. He noted that when the surgery takes place, he expects to be off work for 4-6 weeks for recovery.

In sum, the worker’s position is that the September 18, 2019 traumatic injury to his right knee area caused the development of the thrombus in the saphenous vein of his right leg and therefore he should be entitled to further benefits arising out of the treatment of this condition.

Employer’s Position

The employer participated in the hearing and was represented by its safety coordinator who outlined the employer’s position in respect of the worker’s appeal.

The employer supports the findings of the Review Office that there was not a causal relationship between the worker’s development of further right leg difficulties some four weeks after the workplace accident took place and the injury of September 18, 2019.

The employer’s representative queried whether it should be responsible for the costs associated with the worker’s claim, noting that the worker submitted his resignation the morning of the accident and did not return to this employment after he recovered from the injury, but started a new job upon his recovery and return to work. The employer’s representative wondered whether the worker’s functional abilities had been assessed before the return to work, and whether the further difficulties could be related to the worker’s new employment.

For these reasons, the employer’s position is that the worker should not be entitled to further benefits.

Analysis

The issue on appeal is whether the worker is entitled to further benefits. In order to grant the appeal, the panel would have to find that the worker’s right leg condition was caused by and the result of the September 18, 2019 compensable injury. The panel was able to make such a finding for the reasons outlined below.

The panel accepts the worker’s evidence in respect of the mechanism of injury and further development of new symptoms after his return to work on September 30, 2019, noting there is no evidence before us to suggest any intervening cause of injury to the worker.

The panel reviewed the medical findings and noted that the October 20, 2019 emergency room chart documents that the worker attended with complaints of redness, swelling and pain at the site of the previous trauma injury to his right leg. A possible diagnosis of deep vein thrombosis was ruled out by the October 21, 2019 ultrasound which revealed instead an “...occlusive thrombus in a branch of the greater saphenous vein.”

The worker’s treating physician outlined in a report to the WCB dated November 20, 2019 that the worker was injured on September 18, 2019 when a ladder fell and “...contused medial aspect of right knee. A large subcutaneous hematoma resulted affecting whole medial aspect of right knee. The subcutaneous hematoma resolved but got worse again with swelling and pain in the medial aspect of the knee and edema of the calf area. [Ultrasound] did not show DVT but a thrombus in the greater saphenous vein which runs medial to the right knee”. The physician noted that the swelling was resolving and concluded that there was an obvious and direct relationship between the formation of the thrombus and the earlier injury.

In a further report from the treating physician dated September 25, 2020 this conclusion is repeated noting as well that the thrombus was not evident on the previous ultrasound of the same area from May 2019.

The panel considered as well the November 6 opinion of the WCB medical advisor who reviewed the medical reporting on November 6, 2019 and determined that a causal connection between the initial injury and the subsequent development of the thrombus could not be established, pointing to the worker’s pre-existing varicose vein condition as an alternative explanation. The panel places less weight upon this opinion than that of the worker’s longstanding treating physician who was providing ongoing care to the worker and was familiar with the worker’s pre-existing condition.

The panel accepts the opinion of the worker’s treating family physician that there is a clear and direct link between the compensable workplace injury sustained by the worker on September 18, 2019 and the subsequent development of a thrombus in the saphenous vein of the worker’s right leg, and that there was no prior evidence of any such clot related to the worker’s pre-existing varicose vein condition.

On the basis of the evidence before us, the panel is satisfied, on a balance of probabilities, that the thrombus in the worker’s greater saphenous vein developed as a result of the September 18, 2019 compensable injury. Therefore, the worker is entitled to further benefits.

The appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of December, 2020