The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 7, 2001, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claim for compensation was not acceptable. The Panel discussed the appeal on November 7, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

While performing the duties of a welder on March 10, 2000, the claimant stated he injured his right elbow while lifting a inch plate from the floor. The claimant continued working hoping that the problem was temporary; however, his condition gradually deteriorated. He then laid off work on June 19, 2000, at his doctor's advice. In a report dated April 10, 2000, the attending physician indicated that the claimant's symptoms were entirely due to osteoarthritis of the elbow.

In August 2000, the claimant advised a WCB adjudicator that he had been a welder for 47 years. He related his elbow difficulties to 47 years of performing the same job.

Following consultation with a WCB medical advisor on August 4, 2000, primary adjudication determined that the claim for compensation was not acceptable. It was the medical advisor's opinion that the claimant's osteoarthritic condition would not be caused by his employment activities and that the time loss in June 2000 would not be related to the lifting incident of March 10, 2000. Primary adjudication noted that osteoarthritis was a form of arthritis associated with bone and cartilage degeneration, often seen in aging people. A relationship between the claimant's elbow condition and an accident as defined by the Workers Compensation Act (the Act) could not be established.

In a November 8, 2000, letter to primary adjudication, a worker advisor made reference to a medical report dated November 1, 2000, which was authored by a physician specializing in occupational medicine. The worker advisor contended that based on the specialist's opinion and attached documented literature, the claimant's March 10, 2000, injury arose out of and in the course of his employment. Following consultation with a WCB medical advisor, primary adjudication wrote to the worker advisor on January 30, 2001, indicating that no change would be made to its previous decision. Primary adjudication was still unable to establish a relationship between the accident of March 10, 2000, and the development of the claimant's condition and his subsequent time loss from work. The case was then referred to Review Office at the worker advisor's request to reconsider the adjudicative decision of August 11, 2000.

On April 6, 2001, Review Office considered the entire case, which included a submission from the employer's advocate dated March 15, 2001, and an opinion expressed by a WCB orthopaedic consultant dated April 3, 2001. Review Office ultimately determined that the claim for compensation was not acceptable based on the following factors:

• following the workplace event of March 10, 2000, the claimant did not see a doctor until three months later when a diagnosis of degenerative arthritis (not a strain) was made. This was the diagnosis for which treatment was sought and time loss from workplace was authorized. Review Office found no evidence to suggest that this diagnosis arose out of the March 10, 2000 accident.
• there was no evidence to suggest that the claimant's osteoarthritic condition was enhanced by the March 10, 2000, incident. Review Office noted that the claimant had longstanding problems predating the compensable injury and that he sought medical attention for his right elbow in November 1999, attended physiotherapy sessions and saw an orthopaedic specialist in April 2000. The claimant reported to the specialist that he had problems with his right elbow for a number of months, and that he injured his elbow a few weeks ago when lifting something at work. The claimant did not attribute his problem to a work related incident occurring on March 10, 2000.
• significant weight was placed by Review Office on the orthopaedic consultant's expressed opinion that a cause and effect relationship had not been established between the worker's right elbow problems and the incident of March 10, 2000.

In a letter dated June 11, 2001, the worker advisor requested Review Office to reconsider its decision of April 6, 2001. The worker advisor made reference to the following comment that was made by the employer's advocate in his submission of March 15, 2001, ".it would appear that any aggravation of his pre-existing elbow condition as a result of that March 10, 2000, accident would've been short-lived, based upon the medical and other evidence on file." Reference was also made to a report dated June 6, 2001, by an orthopaedic surgeon who stated, "It is however probable in my opinion that the March 10, 2000, injury to his right elbow enhanced his pre-existing right elbow condition. It is well known that a traumatic episode in an already inflamed elbow joint can increase the inflammation of that joint." The worker advisor was of the opinion that the statement from the employer and orthopaedic surgeon supported the position that a personal injury by accident arose out of and in the course of the claimant's employment on March 10, 2000.

On August 3, 2001, Review Office confirmed its decision of April 6, 2001, that the claim was not acceptable. Review Office remained of the position that the claimant's time loss that began on June 19, 2000, and need for medical treatment was related to the worker's severe degenerative changes (inflammatory arthritis unrelated to a workplace injury) that predated any workplace incident, which had remained continuously symptomatic from November 1999. The worker advisor later appealed Review Office's decision and an oral hearing was convened.

Reasons

The Appeal Panel is unanimously of the opinion that the worker has not suffered personal injury by accident arising out of and in the course of employment that would allow us to find that his claim is acceptable. While there has been some medical discrepancy on the claimant's file as to whether or not he is suffering from rheumatoid arthritis versus osteoarthritis, the majority of the evidence lends credence to the claimant having rheumatoid arthritis. Such a condition is a disease, not caused by any specific activity and we find that it is unrelated to the claimant's employment.

Reviewing the whole picture relating to the claimant's work and medical history, this Panel was particularly swayed by the surgical pathology report dated May 31, 2001. This report was completed after the claimant underwent a right total elbow arthroplasty on April 24, 2001. The clinical data was reported as "inflammatory arthritis" with the following diagnosis:

"Sections show extensive hyperplasia of synovium with prominent aggregates of lymphocytes. After decalcification the underlying articular surface shows osteoarthritic degeneration. Appearances suggest a possible rheumatoid etiology."

A June 6, 2001, report from the orthopaedic surgeon who performed the surgery points to his affirmative view being that the claimant "has an inflammatory arthritis of his right elbow." In this same doctor's opinion "it [was] not probable that [the claimant's] years of work as a welder predisposed [him] to his right elbow condition."

In addition to the pathology report, this Panel has also placed weight on several of the blood tests performed by the claimant's consulting physician and set forth in his report dated November 1, 2000, (several months before the actual surgery was performed). The blood tests indicated an increased sedimentation rate (ESR) and increased C-reactive protein (CRP) which are general indicators of acute or chronic inflammation. The tests also showed that the claimant appeared to be suffering from iron deficiency anemia which is also an indication of inflammation within the body.

We have also noted the blood tests indicating a negative rheumatoid factor and antinuclear antibody (ANA). We find this information to be inconclusive given the number of patients that have rheumatoid arthritis who have a negative test for rheumatoid factor (15-25%) in the prevailing literature and the fact that a negative ANA does not exclude the possibility of auto immune disease.

We are also influenced by the fact that the claimant has had a longstanding history of problems involving his right elbow and decreased range of movement. These difficulties arose long before the March 10, 2000, incident. We note that the claimant sought medical attention for his right elbow in November 1999 for which he received physiotherapy. He was eventually seen by an orthopaedic surgeon in April of 2000 which visit led to his eventual surgery described in the pathology report. At the time that the claimant met with the orthopaedic surgeon he reported that he had had "problems with his right elbow for a number of months." He associated his problem at that time with the work he had been doing for the last forty years. This lends credence to the argument that the claimant's problems were continuous and not related to any one specific event.

We also do not agree with the claimant's argument that the incident at work on March 10, 2000, enhanced his right elbow problems. Although this was the expressed opinion of the orthopaedic surgeon in his report dated June 6, 2001, it is doubtful whether the surgeon was aware of the claimant's expressed years of difficulty with his right elbow.

We are also swayed by the orthopaedic consultant's report of March 30, 2001, wherein he affirmatively was of the view that no enhancement had taken place because "one incident would not do it." He noted the ultrasound report done on April 7, 2000, which found "multiple calcific densities lateral to the elbow joint." He was of the opinion that this might have precipitated the acute symptoms on March 10, 2000. He also noted that the presence of multiple loose bodies around the elbow suggest that the claimant may have had "synovial osteochondromatosis which is a condition of the synovia and over a longstanding period of time leads to osteoarthritis of the joint. This condition arises de novo in the joint and is not work related."

Having reviewed all of the above noted information as well as the contents of the claimant's file and his oral evidence at the hearing of this matter, the Panel is of the unanimous opinion that the weight of the evidence supports the view that the claimant's difficulties are not work related. Consequently the claim is not acceptable.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of January, 2002