The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the diagnosis of Complex Regional Pain Syndrome was not accepted as being a consequence of the July 17, 2017 accident. A teleconference hearing was held on December 2, 2020 to consider the worker's appeal.

Issue

Whether or not the diagnosis of Complex Regional Pain Syndrome should be accepted as being a consequence of the July 17, 2017 accident.

Decision

The diagnosis of Complex Regional Pain Syndrome should be accepted as being a consequence of the July 17, 2017 accident.

Background

The employer reported to the WCB on July 19, 2017 that the worker sustained a crush injury to their left foot at work on July 17, 2017 when a vehicle backed up and drove onto the worker’s foot. The employer noted the worker was wearing steel-toed boots at the time of the workplace accident.

On July 26, 2017, the WCB accepted the worker’s claim and began paying benefits to the worker. Due to reported numbness, tingling and pain on the plantar surface of the worker’s left foot and along both sides of the left ankle, the worker saw a neurologist on September 13, 2017 for a nerve conduction study. The neurologist provided an opinion that the results were “…consistent with a left tarsal tunnel syndrome. That is compression of the tibial nerve at the ankle.”

On September 21, 2017, the worker’s treating sports medicine physician confirmed the diagnosis of tarsal tunnel syndrome and referred the worker for further nerve conduction studies. A further nerve conduction study was conducted on December 6, 2017 and the treating neurologist opined “…nerve conduction studies today once again show left tarsal tunnel, unchanged…I suspect [the worker] may be developing reflex sympathetic dystrophy….”

On December 7, 2017, a WCB medical advisor reviewed the worker’s file and concluded “…the neurological impairment demonstrated in the left foot is related to the workplace crush injury of the left foot.” A follow-up review took place on December 13, 2017 and restrictions were established. The medical advisor noted “Posterior tibial nerve compression symptoms often persist for a long time and some require surgical decompression, so there is a wide variance in recovery experience.”

The worker’s treating sports medicine physician provided an updated diagnosis on December 21, 2017 of “Tarsal tunnel syndrome/Secondary CRPS (Complex Regional Pain Syndrome).” The WCB medical advisor reviewed the worker’s file and on January 3, 2018 noted “The diagnosis of CRPS is difficult to confirm by objective criteria. Nonetheless, the chronic pain at the left foot is considered to be related to the workplace injury.”

On January 30, 2018, the worker saw an orthopedic specialist who referred the worker to a physiatrist at a pain clinic to assess whether the worker had a “…component of CRP as well as the tarsal tunnel.” On July 11, 2018, the worker attended for an appointment with the physiatrist at a pain clinic. After examining the worker, the treating physiatrist noted the worker had “…an absence of strength in [their] left foot dorsiflexion and great toe extension…” despite normal EMG and nerve conduction studies conducted previously, the findings were “…consistent with complex regional pain syndrome including pain out of proportion with the inciting event, in the form of calf pressure….” Further symptoms reported by the worker included skin temperature changes, nail growth changes and motor and sensory changes in the left foot and ankle. The physiatrist did not recommend any surgery on the worker’s left foot “…due to the possibility of worsening these neuropathic symptoms.”

The orthopedic specialist who saw the worker in follow-up on September 14, 2018 provided a diagnosis of “Chronic neurogenic pain in the left foot post crush injury with potential CRPS” and recommended continuing conservative treatment.

A WCB medical advisor reviewed the worker’s file on September 26, 2018 and provided an opinion that there were insufficient clinical criteria present for the WCB to accept the diagnosis of CRPS but confirmed the worker’s foot pain and hypersensitivity were related to the workplace injury.

On October 24, 2019, the WCB advised the employer that the worker’s restrictions were now permanent. The worker’s file was reviewed by a WCB medical advisor on November 7, 2019 to determine eligibility for a permanent partial impairment award. The medical advisor opined “On the basis of the file review and the lack of a specific pathoanatomic diagnosis that can be related to the compensable injury, there is no ratable PPI (permanent partial impairment) in relation to the compensable injury.” The WCB advised the worker on the same date there was no entitlement to a permanent partial impairment rating and award.

On December 17, 2019, the worker requested reconsideration of the WCB’s decision to Review Office. In the supporting submission, the worker referenced the diagnosis of CRPS and on December 18, 2019, Review Office returned the worker’s file to the WCB’s Compensation Services for further clarification of the compensable diagnosis and entitlement to a PPI rating. The worker’s file was again reviewed by a WCB medical advisor on January 2, 2020 and on January 21, 2020, the WCB advised the worker the claim was accepted for tarsal tunnel syndrome, but it could not establish that the ongoing complaints of pain or CRPS were related to the workplace injury. Further, the WCB medical advisor had noted “…there was no objective medical evidence that the chronic musculoskeletal pain at the left ankle and foot was caused by the workplace injury of July 17, 2017” and that pain was not a factor in assessing for a permanent partial impairment rating.

The worker again requested reconsideration of the WCB’s decision to Review Office on January 22, 2020 and on February 13, 2020, Review Office determined the worker was not entitled to a permanent partial impairment rating for their left foot/ankle injury. Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation regarding the worker’s request for a permanent partial impairment rating relating to the diagnosis of CRPS.

In a March 16, 2020 report to the WCB, the treating physiatrist noted the worker’s assessment of that date was for the worker’s “left foot complex regional pain syndrome” and provided a chronology of the worker’s treatment to her family physician.

A WCB medical advisor again reviewed the worker’s file on April 18, 2020 and concluded the medical evidence lacked “…the required consensus criteria” for a diagnosis of CRPS, noting concerns with “…the presence of this condition as related to the claim incident, with few findings on examinations in the early file period to one year remote from the claim incident.”

On April 28, 2020, the WCB advised the worker that the diagnosis of CRPS was not accepted by the WCB in relation to the workplace accident and there was no entitlement to a permanent partial impairment rating based on the accepted diagnosis of tarsal tunnel syndrome.

The worker again requested reconsideration of the WCB’s decision to Review Office on May 27, 2020. On June 5, 2020, Review Office found the worker’s diagnosis of complex regional pain syndrome was not a compensable condition, finding that the evidence did not meet the consensus criteria for a diagnosis of CRPS; therefore, that diagnosis was not accounted for in relation to the July 17, 2017 workplace accident and the worker was not entitled to a permanent partial impairment rating or award.

The worker filed an appeal with the Appeal Commission on June 26, 2020 and a teleconference hearing was arranged for December 2, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. When the requested information was received it was provided to the interested parties for comment. On February 25, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

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.

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.

Payment of wage loss benefits is addressed in s 4(2) of the Act, which sets out that where a worker is injured in an accident, wage loss benefits are payable for their loss of earning capacity resulting from the accident, and s 39(2) provides that such benefits are payable until the loss of earning capacity ends, as determined by the board or the worker attains the age of 65 years.

Subsection 27(1) of the Act allows the WCB to "…provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

When 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. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker appeared on their own behalf, providing an oral submission and offering evidence through answers to questions posed by members of the appeal panel. 

The worker’s position is that as a direct result of the compensable workplace accident that occurred on July 17, 2017, they developed complex regional pain syndrome. The evidence supports a finding that this diagnosis is a consequence of the workplace injury and further, that it has not resolved and continues to cause difficulty to the worker. For this reason, the appeal should be allowed, and the diagnosis of Complex Regional Pain Syndrome should be accepted as being a consequence of the July 17, 2017 accident.

The worker provided an outline to the panel of the progression of the diagnoses arising out of the workplace accident of July 17, 2017, describing how at first it was treated as a soft tissue injury, and then investigated for neural damage and tarsal tunnel syndrome. Ultimately, the treating physicians arrived at the diagnosis of CRPS secondary to tarsal tunnel syndrome. The worker noted that treating physicians agreed upon and confirmed this to be the diagnosis based upon their clinical assessments, having ruled out other diagnoses under consideration.

The worker noted for the panel that as early as December 2017, the diagnosis of reflex sympathetic dystrophy (“RSD”) was considered by the treating neurologist and explained that RSD is the primary term for CRPS. This diagnosis was determined on the basis of the worker’s symptomatic presentation, including muscle wasting, limitations in ankle mobility, greater pain with cold temperatures, consistent pain, limited sensation or numbness of the skin surface.

The worker confirmed that they continued in their employment until laid off in 2020 and that they began an office-based position with another employer on July 15, 2020. The worker noted that working outdoors 50-60% of the day, as required in the employment with the accident employer became difficult in the winter due to the increase in symptoms that accompanied cold weather.

In sum, the worker’s position is that the appeal should be allowed as the evidence, in particular, the medical opinions of the treating professionals, support a finding that the diagnosis of Complex Regional Pain Syndrome is a consequence of the July 17, 2017 accident.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question before the panel is whether or not the WCB should accept the diagnosis of Complex Regional Pain Syndrome as being a consequence of the July 17, 2017 accident. In order to grant the worker’s appeal, the panel would have to determine that as a result of the injury sustained in the compensable workplace accident of July 17, 2017, the worker developed CRPS. For the reasons outlined below, the panel was able to make such a finding.

The panel reviewed the medical reports and opinions contained in the worker’s WCB claim file, noting that the first reference to a potential diagnosis related to CRPS was made less than 5 months following the workplace accident. On December 6, 2017 the treating neurologist documented their suspicion that the worker may be developing reflex sympathetic dystrophy. As noted by the worker in their submission, RSD is the primary term for CRPS. A second treating physician provided the diagnosis of CRPS, as a secondary diagnosis to tarsal tunnel syndrome on December 21, 2017.

When a WCB medical advisor reviewed the worker’s file on January 3, 2018 it was noted that “The diagnosis of CRPS is difficult to confirm by objective criteria. Nonetheless, the chronic pain at the left foot is considered to be related to the workplace injury.” On September 26, 2018 a WCB medical advisor provided an opinion that there were insufficient clinical criteria present for the WCB to accept the diagnosis of CRPS but again, confirmed the worker’s foot pain and hypersensitivity were related to the workplace injury. In contrast, on January 2, 2020, a WCB medical advisor concluded there was no objective medical evidence that the worker’s chronic musculoskeletal pain at the left ankle and foot was caused by the workplace injury of July 17, 2017. On April 18, 2020, a WCB medical advisor stated the medical evidence lacked “…the required consensus criteria” for a diagnosis of CRPS and questioned the relationship of the worker’s symptoms to the accident, as there were “few findings on examinations in the early file period to one year remote from the claim incident.”

While the WCB medical advisors who reviewed the medical findings were unable to confirm the diagnosis of CRPS or its relationship to the compensable workplace accident, the panel noted that the treating physicians continued to consider and provide this diagnosis in relation to the worker’s ongoing symptoms arising out of the workplace accident as summarized below:

• On January 30, 2018, an orthopedic specialist referred the worker to a physiatrist at a pain clinic to assess whether the worker had a “…component of CRP as well as the tarsal tunnel”; 

• On July 11, 2018, the physiatrist noted findings consistent with CRPS “...including pain out of proportion with the inciting event, in the form of calf pressure…” as well as skin temperature changes, nail growth changes and “...an absence of strength in [the worker’s] left foot dorsiflexion and great toe extension despite normal EMG and Nerve Conduction Studies”; 

• On September 14, 2018, the orthopedic specialist provided a diagnosis of “Chronic neurogenic pain in the left foot post crush injury with potential CRPS"; 

• In a February 20, 2020 Doctor Progress Report, the treating physician noted a further request to the physiatrist to follow up on the “progression of CRPS or cold agglutination” and recorded findings including “...mottled colour on calf of left leg, diminished sensation to the left leg...”; 

• In a March 16, 2020 report to the WCB, the treating physiatrist, who assessed the worker on that date, noted a diagnosis of “left foot complex regional pain syndrome”; 

• In a September 21, 2020 report to the worker’s treating orthopedic specialist, the physiatrist stated that the worker is presenting with symptoms “...that may be consistent with post-traumatic nerve pain with some symptoms consistent with complex regional pain syndrome....It is quite likely that [the worker’s] present symptomology is related to the traumatic incident based upon the chronology and characteristics of the symptomology being consistent with nerve pathology.”

The treating physiatrist, in a January 22, 2021 response to the request for further clarification from the Appeal Commission, stated that while the worker’s

“...pain is not excruciating and severe, it is out of proportion from the expected recovery of [their] injury sustained in the work place accident which is the basis for a diagnosis of complex regional pain syndrome....[their] pain along with the neurologic deficits, skin and hair changes as well as temperature change in the limb and decreased muscle bulk meet the criteria for a diagnosis of complex regional pain syndrome. I standby the original diagnosis....”

The evidence supports a finding that, based upon their clinical findings, the treating medical professionals suspected a diagnosis of CRPS related to workplace injury within 5 months of the date of injury. The file documents other potential diagnoses first investigated and considered, including tarsal tunnel syndrome and neural damage, and that after December 2017, further clinical investigation supported the diagnosis of CRPS as being related to the worker’s injury sustained on July 17, 2017.

The panel noted the contrary opinions of the WCB medical advisors but noted as well the January 3, 2018 comment by a WCB medical advisor that the “diagnosis of CRPS is difficult to confirm by objective criteria.” Subsequent medical advisor opinions are premised upon an insufficiency of evidence of clinical criteria, although the panel noted that the treating physicians did not identify this same deficiency in the evidence and are less equivocal in their assessment of the clinical findings as being consistent with a diagnosis of CRPS.

The panel accepts and relies upon the January 22, 2021 opinion of the treating physiatrist setting out the clinical findings that correlate directly to the diagnosis provided, and notes that this opinion is further supported by the earlier opinions of the treating orthopedic specialist and the treating neurologist.

Having considered the evidence presented and on file, the panel is satisfied, on the standard of a balance of probabilities that the worker’s diagnosis of CRPS is related to and the result of the compensable workplace injury of July 17, 2017. The panel therefore determines that the WCB should accept the diagnosis of Complex Regional Pain Syndrome as being a consequence of the July 17, 2017 accident.

The worker’s appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of March, 2021