REVIEW DECISION. Review Reference #: R Board Decision under Review: June 17, 2011

Transcription

1 REVIEW DECISION Re: Review Reference #: R Board Decision under Review: June 17, 2011 Date: December 2, 2011 Review Officer: Gurprit Bains Introduction The Workers Compensation Board (the Board ), which operates as WorkSafeBC, accepted the worker s claim for a left ankle sprain/strain injury arising out of a slip and fall that occurred on June 6, Thereafter, in February of 2011, the worker had an MRI performed which indicated peroneus brevis tendinopathy with a possible fibulocalcaneal ligament tear of the left ankle. The worker s treating orthopaedic specialist subsequently diagnosed a collateral ligament tear of the left ankle. In a decision letter dated June 17, 2011, a Board Officer denied the worker s claim for her left ankle peroneus brevis tendinopathy and collateral ligament tear. The worker requests a review of the Board s June 17, 2011 decision and is represented in this review by her union representative. The worker s representative (the WR ) filed written submissions as well as new evidence. The employer is participating in this review and it also filed written submissions. In response, the WR filed rebuttal submissions. Disclosure to the parties has been made in accordance with the Review Division Practices and Procedures. In the course of this review, I requested an opinion from the Review Division Medical Advisor (the RDMA ). The RDMA s written opinion dated November 22, 2011, was disclosed to the parties so that they could make additional comments and comments were submitted by both of the parties. My authority to conduct this review is found under section 96(6) of the Workers Compensation Act (the Act ). Issue The issue that I must decide in this review is whether the worker s left ankle peroneus brevis tendinopathy and/or collateral ligament tear arose out of and in the course of her employment on June 6, Background On June 6, 2008, the worker injured her left ankle at work when she slipped and fell on a wet floor. On June 12, 2008, the worker sought medical treatment from Review #R Page 1

2 her family physician, Dr. F, who referred the worker to physiotherapy and initially diagnosed an ill-defined sprain/strain of the left ankle. Dr. F s report notes that the worker s ankle was swollen and tender. The worker received physiotherapy treatment from August to early October of 2008 for her left ankle. By letter dated June 18, 2008, the Board accepted the worker s claim for a left ankle sprain/strain injury for health care benefits only, as the worker had not missed any time from work. Dr. F s subsequent reports to the Board in the summer/fall of 2008 document ongoing swelling and tenderness in the worker s left ankle. After the fall of 2008, the Board did not receive any further medical reports from Dr. F regarding the worker s left ankle until Dr. F s report of May 18, In this report, Dr. F notes that the worker had been experiencing ongoing chronic swelling of her left ankle since the work incident. Dr. F also notes that the worker was working but having difficulty with prolonged standing and walking. Dr. F queries whether the worker could be seen at the Board s Visiting Specialists Clinic. In her next report to the Board of July 8, 2010, Dr. F notes that x-rays of the worker s left ankle indicated soft tissue swelling only. Dr. F reports that the worker s ongoing pain was recently more prevalent with her attempts to increase walking. Dr. F advises that the worker required an MRI for her left ankle and requests the Board expedite it. On May 28, 2010, the worker contacted the Board to advise that she was having ongoing problems with her left ankle and she requested that her claim be reopened. The worker informed the Board that there had not been any new incident. The Board then obtained Dr. F s medical records pertaining to the worker s left ankle. Between the Fall of 2008 and May of 2010, Dr. F s chart notes document one visit on July 3, 2009, regarding the worker s left ankle. The chart notes for this visit indicate that the worker s left ankle had occasional swelling, with aching over the posterior lateral aspect. By decision letter dated December 7, 2010, the Board denied a reopening of the worker s claim, and thus denied the worker s request for an expedited MRI. In reaching this decision, the Board relied on an opinion obtained from a Board Medical Advisor (the MA ) dated August 9, In this opinion, the MA expresses the view that there is less than 50% probability that the worker s need for medical attention in July of 2009 and May of 2010 (and the need for an MRI) was related to the June 6, 2008 left ankle injury. The MA, in providing his opinion, consulted with a Board orthopaedic specialist who agreed that if the worker had received no treatment for about a year and was working without further injury, he could not accept that the need for an MRI was related to the work incident. Review #R Page 2

3 The worker sought a review of the Board s December 7, 2010 decision. In the course of that prior review, the worker submitted new evidence which is summarized, in part, as follows: A medical legal letter from Dr. F dated March 25, 2011 wherein Dr. F notes that she saw the worker on November 7, 2008, for complaints of persistent left ankle swelling and postero-lateral ankle pain. Dr. F states that she was of the view that the worker had persistent tendinitis and referred her to ongoing physiotherapy (the worker was receiving physiotherapy on her shoulder at the time for an unrelated injury). Dr. F concludes that the worker sustained a soft tissue injury to her left ankle as a direct result of the work incident, that there were no other injuries or conditions contributing to her ankle injury, and that the worker had residual symptoms related to this original injury. A consult report dated May 5, 2011, of Dr. E, an orthopaedic specialist, wherein Dr. E advises that the worker s history, the MRI findings and clinical findings are consistent with a diagnosis of collateral ligament tear of the left ankle. The MRI had been performed in February of 2011, indicating peroneus brevis tendinopathy with a possible fibulocalcaneal ligament tear of the left ankle. The worker s evidence that in October of 2008, she underwent surgery for an unrelated condition, resulting in her being off work for about four months, which gave her ankle time to rest. The worker advised that when she returned to work in March of 2009, her ankle again would be swollen by the end of the day. A statement from a co-worker dated March 11, 2011, advising that she had witnessed the work incident and that she had seen the worker s swollen ankle on many occasions since the June 6, 2008 work incident. The co-worker stated that she had noticed that the worker s ankle had been swollen ever since the work incident. The Review Officer set out the issue under review as being whether the worker was entitled to further health care benefits in relation to her compensable left ankle sprain injury. The Review Officer confirmed the Board s December 7, 2010 decision to deny the worker further health care benefits. I note that the worker has sought a review of this decision to the Workers Compensation Appeal Tribunal (the WCAT ). This appeal to the WCAT has been suspended pending the outcome of my review. In this present review, the employer, in its submissions, submits that the issue in this review has already been adjudicated in the above noted review of the December 7, 2010 decision. However, in that prior decision, the Review Officer specifically noted that the issue of whether the worker s newly diagnosed left Review #R Page 3

4 ankle tendinopathy and ligament tear were compensable was not before him as the compensability of those conditions had not yet been decided by the Board. I agree that the Board had not adjudicated the compensability of these newly diagnosed conditions in its December 7, 2010 decision letter and, that the issue was not decided by the Board until its June 17, 2011 decision letter, the subject of this review. Accordingly, I am satisfied that I have the jurisdiction to consider the compensability of the worker s diagnosed tendinopathy and collateral ligament tear in this review. Evidence, Reasons and Decision As noted above, an MRI performed in February of 2011, indicated peroneus brevis tendinopathy with a possible fibulocalcaneal ligament tear of the worker s left ankle. Dr. E, the worker s treating orthopaedic specialist, in his consultation report dated May 5, 2011, set out a diagnosis of a collateral ligament tear of the left ankle. Based on the RDMA s opinion dated November 22, 2011, I am satisfied that the fibulocalcaneal ligament tear identified on the MRI is the same injury as the collateral ligament tear diagnosed by Dr. E. Thus, the issue before me is whether the worker s peroneus brevis tendinopathy and/or collateral ligament tear of her left ankle arose out of the June 6, 2008 work incident. In the decision letter under the review, the Board Officer characterized the issue of the worker s entitlement to further benefits as a reopening and determined that the worker s peroneal brevis tendinopathy and collateral ligament tear were not related to the work incident. In my view, the issue is not a reopening under section 96(2) of the Act but rather whether the worker s peroneus brevis tendinopathy and collateral ligament tear should be accepted as new compensable injuries under section 5(1) of the Act. The board of directors of WorkSafeBC approved changes to the policies on compensation for personal injury set out in Chapter 3 of the Rehabilitation Services & Claims Manual, Volume ll (the RSCM ). These new policies, however, only apply to claims for injuries, mental stress, or accidents that occur on or after July 1, Since the worker s injury occurred before July 1, 2010, the previous Chapter 3 policies apply to this review. Section 5(1) of the Act and policy item #14.00 of the RSCM, Arising Out of and In the Course of the Employment, require that in order for a claim for compensation to be accepted, a worker must experience a personal injury arising out of and in the course of their employment. This means an injury must occur at work and be caused by work. The standard of proof in determining whether an injury is compensable under section 5(1) of the Act is the balance of probabilities. Policy item #97.00 provides, in part, that there must not be any presumption against the worker or any presumption in the worker s favour. If, on weighing the available evidence, Review #R Page 4

5 there is a greater weight in favour of one view over the other, then that is the conclusion that must be reached. In its submissions, the employer submits that the MRI findings of tendinopathy and a tear in the worker s left ankle are not related to the work incident including on the basis that the worker was able to continue working after the work incident and that there is a gap in the worker s complaints of left ankle symptoms to Dr. F. While the worker did continue working for a period of about three weeks after the work incident, she was then off work on a pre-scheduled vacation for two months and returned to work in September of The worker was off work again from about October of 2008 until March of 2009, as a result of surgery for an unrelated injury. She then worked until the end of June of 2009, and was off again on vacation for the summer, returning to work in September. In respect to the medical evidence, I agree with the employer that the medical evidence indicates that there were periods of time during which the worker did not seek treatment from Dr. F for her left ankle symptoms. Dr. F s records do not document left ankle complaints after the visit of November 7, 2008 until July 3, Further, after the visit of July 3, 2009, there are no further documented left ankle complaints until the visit of May 18, The fact that the worker was able to work during the periods noted above and that she did not regularly seek medical treatment from Dr. F, in my view, indicates that her left ankle symptoms were not totally disabling, but it does not provide conclusive evidence that the worker s left ankle symptoms had subsided or resolved. Rather, I accept the worker s evidence that she has had ongoing problems with swelling and pain in her left ankle since the work incident. In accepting this evidence, I am guided by policy item #97.32 of the RSCM which provides that a worker s statement about her own condition is evidence insofar as it relates to matters that would be within the worker s knowledge, and it should not be rejected simply on the assumption it is bias. This policy also sets out that there is no requirement that the worker s statement about her own condition be corroborated. I note that the worker s evidence is consistent with the statement of her coworker dated March 11, 2011, wherein her co-worker advises that she had noticed the worker s ankle being swollen ever since the work incident. The worker s evidence as to her symptoms is also consistent with Dr. F s evidence as set out in her medical legal letter dated July 15, 2011, submitted by the WR as new evidence in this review. In this letter, Dr. F notes that the worker s ankle pain, swelling and tenderness have persisted. In placing weight on Dr. F s evidence, I am mindful of the fact that Dr. F did not document any left ankle symptoms for the periods noted above. Nonetheless, as the worker s family physician, I have placed some weight on Dr. F s evidence regarding the persistence of the worker s symptoms. Review #R Page 5

6 However, the presence of ongoing symptoms in the worker s left ankle is not sufficient evidence on its own to conclude that the worker s peroneus brevis tendinopathy and collateral ligament tear arose out of the work incident. In this case, causation requires a consideration of the medical evidence and opinions. Policy item #97.34 explains that where there are differences of medical opinions, the opinions must be analyzed and the Board must not automatically prefer one category of doctors to another, or rely merely on the quantity of opinions in favour of a particular view. Rather, the Board must assess all of the opinions and determine where the preponderance of the evidence lies. Having considered the medical evidence and opinions before me, I am persuaded by and accept the medical opinion of the RDMA dated November 22, After reviewing the medical information on the claim file, the RDMA notes as follows: The physiotherapy report of August 11, 2008, indicates that, on examination, the worker s ankle showed a positive anterior drawer test left foot and ankle, with anterolateral joint swelling and weakness. The RDMA expresses the view that these findings, about two months after the work incident, support a ligament injury. The RDMA also notes that the location of the objective findings of tenderness and swelling do not change over time. The RDMA notes that the May 5, 2011 consultation report from Dr. E, the worker s orthopaedic specialist, indicates findings consistent with a collateral ligament tear of the left ankle, with tenderness over the anterior talofibular ligament and a positive anterior drawer test. The RDMA expresses the view that the MRI findings of possible peroneus brevis tendinopathy and inferior fibulocalcaneal ligament tear would be consistent with the mechanism of injury. The RDMA notes that peroneus brevis tendinopathy could either develop with an ankle twist injury or more likely could develop as a result of chronic lateral instability in the left ankle. The RDMA advises that, in her opinion, the worker s ankle injury did not completely resolve in the timeframe expected for an ankle sprain/strain injury. The RDMA concludes that the worker s current symptoms, MRI findings, and clinical examination are consistent with, but not necessarily diagnostic for persistent ligament or tendon pathology. The RDMA states that the recommended surgery is medically appropriate and related to the work incident. Review #R Page 6

7 The RDMA s opinion is consistent with the opinion of Dr. F. In her July 15, 2011 medical legal letter, Dr. F advises that the worker s ankle pain, swelling and tenderness have persisted and confirms that the worker did not have a preexisting condition in her left ankle and that she had not sustained any new injury to it since the work incident. Dr. F sets out her opinion that the work incident was the cause of the worker s diagnosed peroneus brevis tendinopathy and ligament tear as it is her view that the mechanism of injury is consistent with the diagnosis. Further, I prefer the opinion of the RDMA and Dr. F on causation to that of the Board s MA. In the MA s second opinion dated February 24, 2011, the MA expresses the view that it would be difficult to relate the MRI findings to the work incident. The MA consulted with the Board s orthopaedic specialist who understood that the worker had only attended one session of physiotherapy after the work incident and that she had not sought any treatment from August of 2008 until July of The orthopaedic specialist notes that there was no evidence of the need for any treatment until May of On this basis, the orthopaedic specialist expressed the view that it is probable that the changes do not relate to the work incident. In preferring the opinion of the RDMA, I note that neither the Board s MA nor its orthopaedic specialist refer to the physiotherapist s report dated August 11, 2008, setting out findings that the RDMA advises are consistent with a ligament injury. Nor does the MA or the orthopaedic specialist refer to the fact that the location of the objective findings of tenderness and swelling in the worker s left ankle do not change over time as identified by the RDMA. The opinion of the MA and the orthopaedic specialist rely, in part, on the gaps in the worker seeking treatment for her left ankle symptoms and do not address whether the mechanism of injury could be consistent with the MRI findings. Further, the orthopaedic specialist relies on his assumption that the worker had only attended one physiotherapy session. The worker, however, received physiotherapy for her left ankle from August to early October of Moreover, the MA and the Board s orthopaedic specialist did not have the benefit of reviewing the worker s orthopaedic specialist, Dr. E s consultation report dated May 5, In this report, Dr. E notes that the worker sustained a trauma to her left ankle at work three years earlier when she slipped and twisted her left ankle. Dr. E concludes that the worker s history (ie, the work incident), symptoms and clinical findings are consistent with a collateral ligament tear. I have given weight to Dr. E s opinion which I find is consistent with the opinions of Dr. F and the RDMA. Having considered all of the evidence before me, I am satisfied that the worker s left ankle peroneus brevis tendinopathy and collateral ligament tear injury arose out of the June 6, 2008 work incident. I accept that the worker had ongoing symptoms in her left ankle. I also accept the opinions of the RDMA, Dr. F and Dr. E as supporting a causal connection between the work incident and the Review #R Page 7

8 worker s left ankle peroneus brevis tendinopathy and collateral ligament tear injury. Accordingly, I find that the worker s peroneus brevis tendinopathy and left ankle collateral ligament tear injury are compensable under section 5(1) of the Act. Thus, the worker s request is allowed. Conclusion As a result of this review, I vary the Board s decision of June 17, Gurprit Bains Review Officer Review Division Review #R Page 8