Decision #117/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to wage loss benefits after September 13, 2019; and
2. They are not entitled to medical aid benefits after September 27, 2019.
A teleconference hearing was held on September 21, 2021 to consider the worker's appeal.
1. Whether or not the worker is entitled to wage loss benefits after September 13, 2019; and
2. Whether or not the worker is entitled to medical aid benefits after September 27, 2019.
1. The worker is not entitled to wage loss benefits after September 13, 2019; and
2. The worker is not entitled to medical aid benefits after September 27, 2019.
On April 5, 2019, the worker reported an injury to the WCB that occurred in the course of work on March 18, 2019. The worker indicated they reported the injury to the employer on March 19, 2019 and explained to the WCB that they slipped but did not fall on a driveway, causing their left leg to extend to the side, resulting in pain on the outer, rear left leg near the ankle. The worker reported seeking medical treatment on March 21, 2019 due to posterior ankle pain. The treating physician at that time diagnosed an Achilles strain and recommended the worker remain off work until April 1, 2019.
On seeking treatment from a sports medicine physician on April 7, 2019, the worker was diagnosed with a lateral ankle sprain and an Achilles strain/tendinosis. The physician noted the worker had full range of motion, with no laxity, tenderness in the lateral malleolus and Achilles with thickening. The physician recommended physiotherapy and that the worker return to work on light duties.
The worker attended for initial physiotherapy assessment on April 9, 2019, reporting pain in their left Achilles tendon on weightbearing, walking and resting. On assessment, the physiotherapist diagnosed a second degree strain of the Achilles tendon and recommended restrictions of walking limited to short distances and light, modified desk duties. The worker returned to modified duties on a graduated basis on April 9, 2019.
At a follow-up physiotherapy appointment on May 13, 2019, the worker reported the return to work was going well but also noted increased pain in their Achilles tendon after walking more than ten minutes or walking on an incline. The physiotherapist again recommended modified duties with restrictions of no incline-walking, walking limited to 5-10 minute intervals, standing duration as tolerated and sitting if needed.
The worker again saw the treating sports medicine physician on June 5, 2019. The physician did not note any restrictions on the report to the WCB but completed a functional abilities form indicating the worker could walk up to 1.5 hours per day.
When the worker attended for physiotherapy on June 10, 2019, they reported pain in the calf and Achilles tendon with prolonged walking, on incline and on uneven ground. The physiotherapist recommended continued stability, strengthening, balance and pain management exercises as well as soft tissue massage. The worker’s restrictions were updated to permit walking/normal duties for 1.5 hours per day. On July 31, 2019, the worker’s restrictions were again updated to allow walking 2 hours per day, to increase to 2.5 hours by August 15, 2019.
The worker attended a call-in examination with a WCB medical advisor on August 22, 2019. Based on the examination, the WCB medical advisor concluded the worker’s current diagnosis was left Achilles tendinosis. The medical advisor stated this was a degenerative condition, as the thickening noted on examination and indicated on April 7, 2019 would have taken time to develop and as such, likely represented a pre-existing condition. The WCB medical advisor determined the injury related to the workplace accident was an ankle strain, with a likely recovery period of two to six weeks and recorded findings of full ankle mobility, stability and strength, no ankle effusion or acute inflammatory changes, and good performance on functional testing. The medical advisor determined on the basis of these findings that the worker was able to perform their regular job duties and recommended a standard course of physiotherapy with home exercises.
On September 6, 2019, the WCB advised it had determined the worker had recovered from the workplace accident and that entitlement to wage loss benefits would end as of September 13, 2019, while entitlement to physiotherapy treatments would continue until September 27, 2019.
The worker requested reconsideration of the WCB’s decision to Review Office on October 28, 2019. In their submission, the worker noted they had not recovered sufficiently to perform their full, regular job duties and continued to work modified duties as a result. The employer provided a submission in support of the WCB’s decision to Review Office on December 16, 2019, a copy of which was provided to the worker on December 17, 2019 and who provided a further response on January 2, 2020.
Review Office ruled on January 7, 2020 that the worker was not entitled to wage loss benefits after September 13, 2019 and was not entitled to medical aid benefits after September 27, 2019. Review Office determined the worker’s pre-existing tendinosis in their left Achilles tendon was neither aggravated nor enhanced by the workplace accident and that the evidence did not support the workplace injury resulted in an increase in or any structural change to the pre-existing condition. Review Office concluded the medical evidence did not support a finding that the worker’s current difficulties and inability to perform their regular duties related to the March 18, 2019 workplace accident and as such, the worker was not entitled to wage loss benefits after September 13, 2019. Review Office relied on and agreed with the recommendation of the WCB medical advisor for the worker to have a standard course of physiotherapy, which was completed by September 27, 2019 and found no evidence to support the worker required additional physiotherapy treatment beyond that date.
The worker subsequently submitted an April 14, 2020 MRI of their left Achilles tendon to Review Office, along with a May 12, 2020 note from their treating sports medicine physician in support of their request to review their file based on this new medical information. The MRI study report indicated “Tiny partial interstitial tear of the Achilles tendon on a background of severe tendinosis. Mild associated Achilles peritendinitis” and the treating sports medicine physician stated, based on the history of the accident provided by the worker, their examination of the worker and the results of their investigation, their belief the worker’s left ankle sprain and Achilles partial thickness tear and tendinosis was a result of the March 18, 2019 accident.
At the request of Review Office, the worker’s file, including the new medical evidence submitted, was reviewed by another WCB medical advisor on September 30, 2020. The medical advisor concluded the worker sustained a strain/sprain of their left ankle as a result of the workplace accident. The WCB medical advisor noted the MRI findings were consistent with the natural progression of chronic Achilles tendinosis or tendinitis and stated there was no way to tell if the interstitial tear occurred as a result of the workplace accident, but that a sudden onset of symptoms would have indicated an exacerbation of the worker’s chronic tendinopathy of the worker’s ankle. The medical advisor concluded that based on the accepted diagnosis, the worker’s symptoms would be expected to resolve within a few weeks, and it was unlikely the worker continued to experience difficulties as a result of the workplace accident after September 2019.
On December 1, 2020, Review Office upheld its previous decision the worker was not entitled to wage loss benefits after September 13, 2019 and not entitled to medical aid benefits after September 27, 2019.
The worker’s representative filed an appeal with the Appeal Commission on February 9, 2021. A teleconference hearing was arranged for September 21, 2021.
Applicable Legislation and Policy
As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.
"Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").
The Appeal Commission and its panels are bound by the provisions of the Act, regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 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.
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. Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.
The worker appeared in the hearing represented by a worker advisor. The worker advisor provided documents for consideration by the panel in advance of the hearing and made an oral submission in the course of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.
The worker’s position, as outlined in the submission made by the worker advisor, is that the worker is entitled to wage loss benefits beyond September 13, 2019 and to medical aid benefits beyond September 27, 2019 as the evidence confirms that the worker was not at that time fully recovered from the effects of the compensable injury sustained on March 18, 2019 and as a result required ongoing medical aid and continued to sustain a loss of earning capacity.
The worker advisor noted that the worker’s recovery from the compensable injury reached a plateau by September 2019, and that later medical imaging revealed the worker had sustained a partial thickness tear to their Achilles tendon, which the worker believes was caused by or worsened by the workplace injury. The worker advisor relied upon a May 12, 2020 medical opinion from the treating sport medicine physician that the tearing was the result of the March 18, 2019 workplace accident on the basis of the history provided and the physical examination findings. The worker advisor also noted that, based on the WCB medical advisor’s opinion of September 30, 2020 that it cannot be determined from the imaging whether the tearing occurred on the date of accident or on some other date, it was possible that the tearing did occur as a result of the accident. The worker advisor remarked as well that the WCB medical advisor failed to explain or address the possibility that the workplace injury could have caused acute on chronic tearing, suggesting that if the mechanism of injury was capable of causing tearing it also could have caused further tearing in an environment of pre-existing chronic tearing.
The worker advisor pointed out that although there is evidence the worker had a prior left ankle injury claim, the WCB file from that claim confirms the worker made a full and complete recovery and returned to their regular duties within a reasonable period without further complications. Subsequently, the worker was able to fully function in their work environment without pain or limitation until the compensable accident of March 18, 2019.
The worker advisor stated that when the worker’s recovery from the ankle injury stalled in late summer or early fall of 2019, the treating physician was concerned by the lack of progress and undertook further investigations, ultimately leading to the MRI study in April 2020 that revealed the partial tearing of the worker’s left Achilles tendon. The worker advisor noted that the medical reporting reveals consistent findings throughout late 2019.
The worker offered testimony indicating that after the WCB discontinued benefits, they continued to work reduced hours until September 2020 on the advice of their physician. The reduced hours consisted of a portion of their regular duties, such that it could be completed within the reduced hours. There was no change in the overall duties during this time, but only a reduction in the quantity of work required to be completed. The worker indicated they were able to take time through the workday to stretch as required and that they would put their injured foot up after work. From April 2020 the worker began to wear a “night sock” as well.
The worker testified that they had two vacation periods of two weeks each during the summer of 2020 and that upon return from vacation their pain symptoms had decreased. The worker was able to return to fulltime hours as of September 2020, initially with some pain but now feeling “really good.” The worker indicated they have not returned to the sport medicine physician for further treatment since August 2020. The worker stated that they believe that due to the tear injury, they required more time to reach a full functional recovery and that the WCB’s decision to terminate benefits in September 2019 was therefore premature.
On questioning by members of the appeal panel, the worker confirmed that the only prior diagnostic imaging of their left ankle was an x-ray taken in relation to the 2018 injury. The worker further confirmed to the panel how the injury occurred on March 18, 2019, describing that their left foot slid out sideways while making a turn on compacted snow in the course of completing their work duties. The worker confirmed that they did not fall, but immediately felt pain up the back of their left leg, from ankle to calf. The worker continued working that day with pain and stiffness but did not seek medical attention until a few days later when symptoms persisted despite treatment with ice, elevation and anti-inflammatory medications. The worker confirmed that on returning to work, they were able to take breaks as needed, resting their ankle and stretching. The worker described limiting those breaks to 5 minutes at most so as to avoid stiffening up, noting that movement was helpful. The worker confirmed as well that they continued with the physiotherapy home program provided after WCB discontinued coverage for their physiotherapy.
In sum, the worker’s position is that the evidence confirms the injury sustained in the workplace accident was more significant than a sprain injury as initially diagnosed, and that the diagnostic imaging from April 2020 supports the worker’s position that the injury from the workplace accident was a partial tear to their left Achilles tendon which had not resolved by September 2019 and did not fully resolve until September 2020 when the worker was able to return to full-time hours and duties. As such, the worker continued to sustain a loss of earning capacity beyond September 13, 2019 and to require medical aid beyond September 27, 2019. The worker’s appeal should therefore be granted.
The employer was represented in the hearing by a representative who made an oral submission on behalf of the employer and provided answers to questions posed by members of the appeal panel.
The employer’s position is that the evidence supports the WCB’s decision that the worker was recovered from their injury sufficient to return to work as of September 2019. The employer pointed to the diagnosis of a grade 2 sprain of the worker’s left Achilles tendon as confirmed by the treating physician and physiotherapist. In April 2019 the worker was approved for a gradual return to work and by June 2019 the treating physician stated that the worker could return to full duties in July 2019.
The employer’s representative argued that the diagnosis of tendinosis is typically a degenerative condition and as such is likely to be pre-existing. They noted that the MRI study taken one year after the injury revealed some tearing on a background of severe tendinosis. This would be consistent with the trajectory of a degenerative condition. Further, there was no evidence as to when the tearing occurred given the only imaging available was dated more than one year after the accident occurred.
The employer’s representative queried the basis for the May 12, 2020 opinion of the treating sport medicine physician noting that the report does not indicate the nature of the investigations undertaken and does not outline how the worker’s accident caused the tendinosis.
On questioning by the appeal panel, the employer’s representative confirmed that after the WCB discontinued benefits to the worker, the employer accommodated the worker with reduced hours and honoured the restrictions indicated by the worker’s treating physician.
In sum, the employer’s position is that there is evidence of recovery from the workplace injury by summer 2019 and there is no objective evidence to support the worker’s position that their subsequent diagnoses of Achilles tendinosis and an interstitial tear were caused by the injury sustained in the workplace accident of March 18, 2019. Therefore, the decision of the Review Office should be confirmed, and the worker’s appeal denied.
The issues for determination on appeal are whether the worker is entitled to wage loss benefits after September 13, 2019 and whether the worker is entitled to medical aid benefits after September 27, 2019. In order to grant the worker’s appeal, the panel would have to determine that the worker’s continuing loss of earning capacity beyond September 13, 2019 was a result of the accident of March 18, 2019, and further that the worker continued to require medical aid to cure and provide relief from the injury sustained in the accident, beyond September 27, 2019. For the reasons set out below, the panel was not able to make such findings.
In considering the questions on appeal, the panel reviewed the medical findings and reports both in the worker’s claim file and as submitted by the worker advisor in advance of the hearing. The panel noted the WCB accepted the claim on the basis that the worker sustained a left Achilles tendon sprain. The medical reports confirm this diagnosis, provided by both the initial treating physician upon the worker first seeking medical care and subsequently, by the treating physiotherapist on their initial assessment. The treating sport medicine physician initially diagnosed lateral ankle sprain and Achilles strain/tendinosis, noting as well thickening of the worker’s Achilles tendon. The medical records do not reveal any other findings or concerns at that time.
The panel noted the medical reporting to WCB confirms the worker gradually recovered left ankle range of motion and function over the months subsequent to the injury such that they were able to return at first to modified work, and then gradually to their own duties on a limited basis in the summer 2019. By July 23, 2019 the treating sport medicine physician reported full range of motion in the ankle with no laxity although some tenderness persisted. At the WCB call-in examination on August 22, 2019, there was no evidence of heat, redness or swelling. The worker’s left Achilles tendon was again noted to be prominent with palpable thickening. On the basis of the examination of the worker, the WCB medical advisor concluded “Today’s examination demonstrated favorable objective findings including full ankle mobility, stability and strength, absence of an ankle effusion or acute inflammatory changes, and good performance on functional testing. In this regard the current objective findings support the ability to perform usual activities.”
The panel notes the consistency of the medical advisor’s findings with those of the treating sports medicine physician from the July and September assessments. On September 4, 2019 the sports medicine physician reported to the WCB that the worker’s ankle was improved and that the Achilles tendon was progressing, slowly toward recovery. The treating physiotherapist discharged the worker from treatment on September 27, 2019 noting the worker’s complaint of pain after prolonged walking, with objective findings of full active and passive range of motion, full strength and mild pain on palpation of the Achilles tendon.
Subsequent medical reporting from the treating sports medicine physician indicates the worker’s “slow functional improvement” (October 9, 2019) and difficulty tolerating increased duties (November 20, 2019) but no new clinical findings are reported in this period. It is not until January 3, 2020 that the physician noted chronic Achilles tendonitis and queried a partial thickness tear, as set out in the MRI request form of that date. The MRI study conducted April 14, 2020, more than one year following the date of the compensable accident, revealed a “tiny partial interstitial tear” of the worker’s Achilles tendon “on a background of severe tendinosis.”
The worker’s position is that although the injury was originally diagnosed as an ankle or Achilles sprain, as a result of the workplace accident, there was tearing to the worker’s Achilles tendon that prolonged the worker’s recovery for approximately another year beyond the date when WCB discontinued the worker’s benefits. In support of this position, the worker advisor urged the panel to place significant weight upon the May 12, 2020 opinion of the treating sports medicine physician that the “...partial thickness tear/tendinosis is a result of...” the worker’s March 18, 2019 workplace accident.
The WCB medical advisor, in the September 30, 2020 opinion, takes a different view, noting that:
“Individuals with Achilles tendinosis typically have clinically observed thickening and tenderness of the tendon. In chronic Achilles tendinitis or tendinopathy, MRI findings often include one or more interstitial tears where small gaps in the fibrous tissue exist. The natural process of chronic inflammation and repair in chronic tendinopathy causes more fibrous tissue to be formed in the tendon and some inflammatory reaction around the surface of the tendon. There is no way that one can tell from the imaging appearances whether the tiny interstitial tear occurred on 18-March-2019 or on some other date.”
The panel noted that the sports medicine physician did not initially diagnose or query the possibility of any Achilles tear arising out of the workplace accident and further that their May 12, 2020 opinion is offered without any indication as to the specific findings that would support the conclusion reached as to causation. As noted by the WCB medical advisor, it is not possible to determine on the basis of the diagnostic imaging alone when and why the interstitial tearing occurred, but the WCB medical advisor indicated such tearing can occur as a natural process relating to conditions of chronic Achilles tendinitis or tendinopathy.
The panel considered the initial examination findings of both the treating sport medicine physician and treating physiotherapist record thickening of the worker’s left Achilles tendon. As outlined by the WCB medical advisor in the call-in examination report of August 22, 2019, Achilles tendinosis is a degenerative condition that would have taken time to develop and as such, likely represented a pre-existing condition. The panel accepts the medical advisor’s opinion in this regard.
The worker advisor identified the possibility that an acute traumatic injury, in an environment of pre-existing Achille tendinosis, could have caused the interstitial tear and urged the panel to find in favour of the worker on this point based upon the treating sport medicine physician’s unequivocal opinion and the WCB medical advisor’s implied, but unstated opinion that it could have been caused by the injury. The panel noted the medical advisor stated only that it could not be determined from the April 2020 MRI study alone when the tearing occurred but did not state that this meant it could have occurred as a result of the workplace injury. There is no evidence as to when it occurred. Although the panel is urged to make this leap of faith, we are not prepared to do so, given the examination findings soon after the worker’s injury that support the accepted compensable diagnosis and the evidence of improvement, as would be expected through the months following a sprain injury. The evidence before the panel does not support a finding, on a balance of probabilities, that the tiny partial interstitial tear revealed by the April 2020 MRI study was caused by or the result of the compensable workplace accident.
The panel accepts the opinion of the WCB medical advisor who conducted the August 22, 2019 call-in examination that the compensable diagnosis arising out of the workplace injury was an ankle strain, with a likely recovery period of two to six weeks, noting the findings from that examination and assessment. We note that the medical advisor’s opinion as to the nature of the compensable injury is congruent with the worker’s evidence as to the mechanism of injury as well as the medical findings leading up to the call-in examination. While the panel accepts that the worker’s recovery may have been prolonged beyond typical recovery norms as a result of the pre-existing left Achilles tendinosis, there is no evidence before us that the tendinosis nor the interstitial tear discovered more than one year later, were caused by or permanently enhanced by the injury. As such, we do not find these conditions to be compensable.
The panel further accepts and relies upon the medical advisor’s conclusion, on the basis of these findings that the worker was functionally recovered from the compensable workplace injury by late August 2019 with a standard course of physiotherapy with home exercises to be provided in conjunction with the return to work. Having gradually increased their hours and tolerance to the job duties over the preceding months, the worker returned to their regular duties in September 2019. While the worker continued working limited hours thereafter, with support from their treating physician, the panel notes that there are no objective findings to support the worker’s reported lack of tolerance for a return to their full regular work duties and further, that the worker’s symptomatic presentation did not significantly change with the increase in hours in fall 2019. Indeed, the worker’s testimony confirms that their ankle symptoms would improve with use and stretching.
The panel is satisfied, on the basis of the totality of evidence before us and on a standard of a balance of probabilities, that the worker had functionally recovered from the workplace injury of March 18, 2019 by September 2019, and as such any continuing loss of earning capacity beyond September 13, 2019 was not the result of the compensable workplace accident. Further, the panel is satisfied on the basis of the evidence before us and on a standard of a balance of probabilities, that the worker did not require medical aid to cure and provide relief from the injury sustained in the March 18, 2019 accident beyond September 27, 2019.
Therefore, the worker is not entitled to wage loss benefits after September 13, 2019 and is not entitled to medical aid benefits after September 27, 2019. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of October, 2021