Decision #114/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after October 5, 2021. A videoconference hearing was held on September 28, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after October 5, 2021.
The worker is not entitled to wage loss benefits after October 5, 2021.
The worker provided a Worker Incident Report to the WCB on August 27, 2020 indicating he had injured his right ankle at work when he slipped on a rail track while adjusting his footing, causing his right leg to twist, and fell under his own weight. The worker sought medical treatment that same day, reporting right ankle pain and an inability to walk. The treating physician noted swelling and tenderness, and x-rays were taken, which showed no acute fracture or dislocation. The physician diagnosed the worker with a right ankle sprain, and completed a Functional Abilities Form ("FAF") indicating the worker should remain off work until September 3, 2020.
The worker attended an initial physiotherapy assessment on September 1, 2020, reporting an injury to his right ankle and foot, with significant pain, swelling, bruising, and reduced function, including difficulty walking, after falling at work on August 26, 2020. The physiotherapist noted the worker had reduced range of motion in all directions. The physiotherapist diagnosed the worker with a second degree sprain of his right ankle and queried whether the worker had a small medial malleolus tear. Restrictions of sedentary duties, not wearing a work boot, and only one to two minutes of continuous walking were recommended.
On September 2, 2020, the WCB contacted the worker to discuss his claim. The worker confirmed the mechanism of injury and that he had sought medical treatment and received a doctor's note placing him off work until September 3, 2020. The worker noted he was currently using crutches and was wearing a half cast if he had to leave home. He indicated his ankle was very swollen, bruised and tender and he could not weight-bear. The worker advised that he was waiting for an in-person appointment at a local clinic for further treatment.
On September 3, 2020, the worker attended an in-person appointment with a physician. The physician noted the worker reported swelling and bruising around his ankle from a workplace accident the week previously, with minimal improvement. On examination, the physician noted the worker had:
Swelling around medial and lateral malleolus
Some bruising around malleoli and at the chin (sic)
No swelling of calf
Gait: Antalgic favoring right leg -able to bear full weight
ROM: limited inversion and aversion due to pain
Normal flexion and extension
Normal power 5/5
Normal light touch sensation
Palpable dorsalis pedis.
The physician provided a diagnosis of a right ankle sprain versus a ligamentous injury, and requested an MRI to rule out a ligamentous injury. An FAF and a Modified Work Progress Sheet completed September 4, 2020 recommended sedentary duties only, no work boot, and no walking longer than one to two minutes to September 14, 2020. On September 8, 2020, the WCB's Compensation Services advised the worker that his claim was accepted and payment of benefits commenced. A further FAF, completed September 11, 2020, recommended mostly sedentary duties to September 23, 2020.
On September 17, 2020, the worker underwent an MRI of his right ankle. The results of the MRI indicated the worker had an injury to the syndesmotic and medial ankle ligaments, with likely joint instability, and a referral to an orthopedic surgeon for further management was recommended. The MRI also showed the worker had a bone bruise at the medial malleolus and tibial plafond posteriorly and ankle joint effusion.
On September 21, 2020, the worker attended a follow-up appointment with a further physician, who discussed the results of the MRI with him and referred him to an orthopedic surgeon. A medical note was also provided placing the worker off work until September 28, 2020. On September 22, 2020, the worker's file was reviewed by a WCB sports medicine consultant, who opined that referral to an orthopedic surgeon was appropriate.
The worker attended a hospital emergency department on September 22, 2020, reporting tenderness and pain and requested a CT scan. A CT scan of the worker's right lower extremity was performed on September 23, 2020, and showed an "Acute fracture of the proximal fibula…" The attending physician provided a medical note, placing the worker off work until October 16, 2020.
The worker was seen by an orthopedic surgeon on October 19, 2020. The orthopedic surgeon noted the worker's history and that he had some edema around his ankle and tenderness to palpation in the syndesmosis, but near full range of motion in his ankle. The surgeon also noted full range of motion in the knee with "…tenderness at terminal range of motion at both his knee and his ankle." The surgeon noted that the worker's ankle was relatively stable and he was able to partially weight-bear without great difficulty, and that a neurovascular examination of the worker's foot was normal. The treating orthopedic surgeon noted he explained to the worker that he had sustained a Maisonneuve injury to his leg, which involved a fracture of the proximal fibula and torn tibiofibular ligaments, including the syndesmotic ligaments and medial deltoid. The surgeon further explained that such an injury normally required surgery, but in this case, the worker's syndesmosis was well aligned and the ankle mortise was "…in near-perfect alignment on the x-rays taken today," and the worker would likely not require surgery as a result. The surgeon provided prescriptions for a cast boot and physiotherapy, and a referral to a sports medicine physician to follow-up from a non-operative perspective.
On October 28, 2020, the worker attended for physiotherapy and advised the treating physiotherapist that he was at 25% weight-bearing status and his pain was well controlled with the prescribed medication, but he remained in the walking boot and had reduced functioning. The physiotherapist provided the worker with information on the protocol the orthopedic surgeon had recommended for weight-bearing, and noted the worker had recently been laid off by the employer. On October 30, 2020, the employer formally advised the WCB that the worker had been laid off.
During a virtual appointment on November 18, 2020, the worker's treating sports medicine physician recommended the worker continue with physiotherapy to progress to full weight-bearing in the walking boot, as tolerated, with the possibility of transitioning to an ankle brace in three to four weeks. On December 1, 2020, the worker advised the WCB that he was no longer using the walking boot and was continuing with physiotherapy.
Improvement was noted at a physiotherapy appointment on December 9, 2020 and a follow-up appointment with the sports medicine physician on December 14, 2020, and continued physiotherapy treatment was recommended. In a February 19, 2021 discharge assessment report, the worker's treating physiotherapist noted improving pain, and difficulty with prolonged walking or standing and stiffness. The physiotherapist queried whether the worker was at maximum medical improvement, and noted with respect to restrictions, that prolonged walking/standing duties might be pain provoking.
On March 17, 2021, the WCB contacted the worker to discuss the claim. The worker advised he was able to perform all of the activities of daily living without difficulty. He noted he experienced some stiffness throughout the day, but was doing well. On April 9, 2021, the worker's claim was reviewed by a WCB medical advisor, who opined that the worker's diagnosis was a Maisonneuve fracture, and the right ankle symptoms were medically accounted for in relation to the August 26, 2020 workplace incident. The WCB medical advisor further opined that the medical information on file did not support any specific restrictions in relation to the worker's right ankle.
On April 14, 2021, Compensation Services advised the worker that they had determined he was capable of returning to his pre-accident position and his entitlement to wage loss benefits would end on April 21, 2021.
On May 10, 2021, the WCB received a copy of a report and clinic notes from the worker's attendance at a local clinic on May 5, 2021. The treating nurse practitioner noted in that report that the worker was attending for a second opinion on his workplace injury. The nurse practitioner noted the worker reported poor exercise tolerance and inability to walk for extended periods due to pain, clicking at the ankle joint and stiffness which impeded ability for full range of motion, and that he was being referred back to his treating orthopedic surgeon for reassessment.
On June 7, 2021, the worker requested that Review Office reconsider Compensation Services' decision to end his entitlement to benefits, noting he continued to experience pain and difficulties in his calf area, and could only work short periods of time before having to rest. The worker further noted he had difficulty maintaining balance and stability and was unable to wear his work boots without pain.
On July 13, 2021, the WCB received a report from the worker's treating orthopedic surgeon for a July 8, 2021 appointment. The surgeon noted that x-rays had been taken of the worker's right ankle and reviewed with the worker. The x-rays indicated "…anatomic alignment of his ankle mortise and a well-healed proximal fibula fracture," and the surgeon advised the worker that the Maisonneuve injury had healed well. The surgeon noted the worker had continued complaints of pain and discomfort in his lower leg, and opined that the worker would certainly be able to return to modified duties, but functional capabilities assessment might determine whether he could do even more than that. On July 21, 2021, Review Office returned the worker's file to the WCB's Compensation Services for further investigation.
On August 3, 2021, the worker attended a call-in examination with a WCB orthopedic consultant. On examination, the consultant opined that the worker stood and walked normally, had full painless range of motion in his right knee with stable ligamentous supports and noted no swelling. The WCB orthopedic consultant set out his findings and opined, in summary, that there were no abnormal physical findings present to medically account for the worker's reported ongoing symptoms or disablement.
In a letter dated September 29, 2021, Compensation Services advised the worker that there was no change to their decision that the worker was not entitled to further benefits as of April 21, 2021.
On September 28, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the WCB did not have updated medical information on his workplace injury when they ended his entitlement to benefits. On November 26, 2021, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker, who provided a response to that submission on December 9, 2021.
On December 14, 2021, Review Office determined that the worker was entitled to additional wage loss benefits and returned the worker's file to Compensation Services for further adjudication.
On January 25, 2022, following further review of the worker's file, Compensation Services advised the worker that they had determined he was entitled to further benefits up to and including to October 5, 2021. Compensation Services noted that they had provided a decision letter to the worker on September 29, 2021, advising that workplace restrictions were not required in relation to his compensable injury and a loss of earning capacity could not be identified. Compensation Services advised the worker that pursuant to the WCB policies, he was entitled to wage loss benefits to that date, along with a seven day notice period, resulting in wage loss benefits being payable to October 5, 2021.
On January 25, 2022, the worker requested that Review Office reconsider Compensation Services' decision. On February 2, 2022, the worker provided a submission, noting he continued to experience pain and discomfort and could only manage walking short periods of time before having to rest, and that he believed he was entitled to further benefits. On February 15, 2022, the worker provided a further submission indicating he believed that a functional capacity evaluation was required to assess his capabilities and help with his return to work.
On February 28, 2022, Review Office determined that the worker was not entitled to wage loss benefits beyond October 5, 2021. Review Office placed weight on and agreed with the August 9, 2021 opinion of the WCB orthopedic consultant, and found that the medical evidence supported the worker had functionally recovered from his compensable injury by September 29, 2021. Review Office further noted that the WCB orthopedic consultant stated on November 1, 2021 that based on a review of the worker's claim, including the results of his call-in examination of the worker on August 3, 2021, a functional capacity evaluation was not required.
On June 6, 2022, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.
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.
Subsection 4(2) provides that 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 39(2) of the Act states that 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 self-represented on the appeal. The worker made a presentation and responded to questions from the panel.
The worker submitted that the evidence shows he has not fully recovered from his compensable injury and is entitled to further benefits.
The worker noted that he was injured on August 26, 2020, and it took approximately a month for the healthcare providers to diagnose him with a Maisonneuve injury. The worker submitted that he still has difficulty with his right leg, and continues to require physiotherapy, as noted in medical report he provided in advance of the hearing. The worker stated that the bone and the ligaments themselves have healed, but he needs treatment to recover muscle strength in his leg.
The worker submitted that he has difficulty getting proper footwear, and noted that it is difficult for him to wear even a work boot for any extended period of time. He noted that while he worked 11½ hours a day prior to his injury, he barely works 5 hours a day in his new employment, and the pain is excruciating by the end of the day.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after October 5, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity beyond October 5, 2021 as a result of his August 26, 2020 workplace incident and injury. The panel is unable to make that finding, for the reasons that follow.
Based on our review and consideration of the evidence and submissions of the worker, the panel is satisfied that the worker had functionally recovered from his compensable injury as at October 5, 2021, and is not entitled to wage loss benefits after that date.
In arriving at our decision the panel places weight on the July 8, 2021 report from the treating orthopedic surgeon, who reported that on physical examination, the worker was able to ambulate without a limp and had full range of motion of his ankle. The surgeon noted that x-rays revealed "…anatomic alignment of his ankle mortise and a well-healed proximal fibula fracture" and that he had advised the worker that "… his fracture and his Maisonneuve injury had healed well both clinically and radiographically." The surgeon further opined that the worker "…would certainly be able to return to modified duties at this stage..."
The panel notes that while the treating orthopedic surgeon reported on July 8, 2021 that the worker was still having pain and discomfort in his lower leg, the worker advised at the hearing that any issue with respect to his calf had resolved and that the only issue was with respect to his right ankle or leg.
The panel notes that the worker was subsequently examined by the WCB orthopedic consultant at an August 3, 2021 call-in examination. Following his examination of the worker, the consultant opined that his findings, as well as the treating orthopedic surgeon's findings, could not adequately account for the worker's ongoing ankle or calf complaints or limitations. The orthopedic consultant further opined that his findings did not suggest the need for present day restrictions.
At the hearing, the worker indicated that the only healthcare professional who is currently treating him with respect to his right ankle or right leg is his chiropractor, and estimated that he currently sees him only once every 8 weeks. The worker provided an August 29, 2022 letter from the chiropractor in advance of the hearing. The panel reviewed that letter, but is unable to attach much weight to it. The chiropractor indicates he started treating the worker for ankle pain 6 months previously, has seen him 10 times, and was currently seeing him once every 8 weeks. The panel notes, however, that there is an absence of clinical findings in the letter.
The worker confirmed that he has not seen his orthopedic surgeon since July 8, 2021, and has not sought treatment from, or followed up with, any specialists or healthcare providers, other than his chiropractor, with respect to his ankle.
The panel also finds that there are a number of inconsistencies in the evidence. While the worker suggested in his submission that he could not work a full day as it was too painful, the worker also indicated that he only worked 5½ hours a day because of his childcare responsibilities.
In addition, in response to questioning from the panel, the worker first commented that he had chronic pain, all the time, then later stated that this might be a little too strong a word, and indicated that he absolutely had periods where he was pain free without medication. He noted that he has varying degrees of discomfort, and that weather changes affect him, and when he starts to exert himself for extended periods of time "it starts to get painful."
The worker further indicated that he sees a pain management specialist for a different injury, to get the pain with respect to that injury under control. The panel would have expected, given the worker's reference at the hearing to experiencing "excruciating" pain at the end of a work day, that he would have raised this with the pain management specialist, but it does not appear from the worker's evidence that this is the case.
The panel notes that Review Office expressly noted at the end of their February 28, 2022 decision that the worker had an MRI scheduled for mid-March 2022, and that he could submit a copy of the results of that MRI and request a further review by Review Office if he felt there was new impactful medical information as a result. When asked about this at the hearing, the worker said he had attended for the MRI, but it had shown that everything had healed and he had not provided it "because it wouldn't make a difference."
Finally, the panel notes that while the worker referred in his presentation to such matters as a need for further treatment, the issue which was before the panel on this appeal was very specific, dealing only with the worker's entitlement to wage loss benefits, and such other matters have therefore not been addressed.
In conclusion, the panel finds, based on the evidence and on a balance of probabilities, that the worker had functionally recovered from his compensable injury as at October 5, 2021. The panel therefore finds that the worker did not have a loss of earning capacity beyond October 5, 2021 as a result of his August 26, 2020 workplace incident and injury, and that the worker is not entitled to wage loss benefits after that date.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of November, 2022