The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 17, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 17, 2003.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond July 7, 1999.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond July 7, 1999.

Decision: Unanimous

Background

While employed as a fitter welder on January 6, 1999, the claimant slipped when welding a bushing and struck his right elbow. When seen by his family physician for treatment, the diagnosis rendered was acute left elbow joint pain and strain NYD (not yet diagnosed). X-rays of the right elbow showed a slight prominence of the soft tissues medial to the elbow. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on January 22, 1999.

In a report to the family physician dated February 25, 1999, an orthopaedic specialist outlined his examination findings pertaining to the right elbow and was of the opinion that the claimant's injury was soft tissue in nature, either due to strain or bruises at the elbow region. The specialist further stated, "However, the soft tissue injury to the posteromedial aspect of the elbow does not explain the swelling on the anteromedial aspect of the elbow that is more in keeping with a lipoma rather than due to a hematoma. I did suggest to him to keep an eye on it. If this swelling shows any signs of increasing in size or continued to bother him, one may need to consider surgical excision."

Further progress reports were received from the family physician indicating that the claimant complained of medial right elbow pain and was easily fatigued. The family physician also reported that the claimant was showing very slow improvement with associated pain in his right neck, shoulder and upper arm.

In a memo dated April 10, 1999, a WCB medical advisor stated that the compensable injury "caused aggravation, i.e. soft tissue contusion, ongoing problems if they exist, they are likely aggravation pre-existing from old: 1. Saw injury; 2. Arthritis (spur noted); 3. Lipoma; 4. Neck spondylosis."

The above medical advisor examined the claimant on April 29, 1999. He was of the opinion that the claimant likely sustained a blunt trauma to his right olecranon as a result of the compensable injury. He concurred with the treating orthopaedic specialist that the soft tissue swelling on the medial aspect of the distal humerus may be a cyst or lipoma, which was likely unrelated to the compensable injury. The claimant also had a mild area of myofascial pain of the supraspinatus muscle, although it was unlikely that this was related to the compensable injury. The medical advisor indicated that the claimant may have experienced a non-compensable cerebrovascular accident as he showed evidence of weakness on the right side of his body. Recommendations were made to refer the claimant to a neurologist and that the claimant discontinue physiotherapy treatments. It was also suggested that it would not harm the claimant to attempt a graduated return to work program beginning with 4 hours per shift per week, with restrictions, until the full complement of hours was achieved.

On June 7, 1999, the family physician noted that the claimant would not be able to go back to full time work as he was still having pain in his right elbow and now in the right shoulder. The claimant was instructed to continue working 3 hours a day for another four weeks.

In a June 8, 1999 report, a neurologist reported that he had seen the claimant on May 11, 1999. Nerve conduction studies were undertaken and the results were interpreted as being normal, showing no evidence of ulnar neuropathy. The reason for the test was because the claimant complained of weakness in his intrinsic hand muscles which were innervated by the ulnar nerve. The neurologist stated that even though the nerve conduction test was normal, it did not exclude minimal injury to the nerve, but certainly suggested that if such injury existed, it was minor and it would undoubtedly recover.

In a memo to file dated June 15, 1999, a WCB medical advisor commented as follows, "…I reiterate the swelling on the medial aspect of the distal humerus has nothing to do with the CI [compensable injury]."

In a further memo dated June 28, 1999, the same WCB medical advisor commented as follows: "…any injury relevant to CI ought to have resolved by now and there is no evidence that further harm will occur if claimant RTWFD (return to work full duties)."

In a decision dated June 30, 1999, primary adjudication informed the claimant that his case had recently been reviewed by a WCB medical advisor who was of the opinion that the claimant had recovered from the effects of his work injury and was fit to return to full time, regular duties. Compensation benefits would therefore end effective July 7, 1999, in accordance with Sections 4(1) and 39(2) of The Workers Compensation Act. The claimant was also advised that any suggestion he avoid certain activities was made to possibly prevent subsequent exacerbation of symptoms or further injury and that there were no provisions in the Act to allow for compensation for such preventative measures. The claimant appealed this decision on July 6, 1999, indicating that his doctor had advised him to work only 3 hours a day until he had an opinion from another specialist. The claimant stated that his right elbow was at least ½ inch bigger than his left elbow and that it was swollen with a big lump which was not there before his accident.

On August 27, 1999, Review Office noted that the claimant's work related injury of January 1999 probably caused minor soft tissue contusion to the right elbow region and which had likely resolved prior to July 7, 1999. This seemed reasonably consistent with the medical evidence and reported objective findings.

There were some complications involving the claimant's right elbow and shoulder region which may require further treatment and may interfere with the claimant's job activities, i.e. swelling in the right elbow, pain of the elbow and shoulder and right sided weakness. Review Office found that the weight of evidence suggested that these complications were not a reasonable or probable consequence of the claimant's accident at work. Review Office, therefore, confirmed that further benefits were not payable to the claimant beyond July 7, 1999.

In a report dated June 27, 2001, the family physician noted that the claimant had undergone surgery to his right elbow on February 15, 2000. He also stated, "Because of the continuing problems and pain in his right elbow with pain radiating into his right arm, shoulder and now into his right neck area, [the claimant] was unable to work during the month of July, 1999, through the end of December, 1999."

In 2002, the claimant's union representative appealed Review Office's decision of August 31, 1999, and submitted additional medical information received from the family physician dated May 15, 2002. On April 17, 2003, an oral hearing took place at the Appeal Commission.

Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant's orthopaedic surgeon with respect to right elbow surgery that had been performed on February 15, 2000. On May 5, 2003 (received on May 14, 2003), the orthopaedic specialist provided the Appeal Panel with the requested information. The reports were forwarded to the interested parties for comment. On June 5, 2003, the Panel met further to discuss the case and to render a decision with respect to the issue under appeal.

Reasons

As the background notes indicate, the claimant incurred his compensable injury when he slipped and struck his right elbow on the tank that he was welding. The initial diagnosis rendered by the treating physician was acute right elbow joint pain and strain not yet diagnosed. X-rays taken of the right elbow revealed no abnormality other than a "slight prominence of the soft tissues medial to the elbow." The treating physician referred the claimant to an orthopaedic specialist for a consultation. On February 25th, 1999, the orthopaedic specialist reported the following comments to the treating physician:

"On examination, he seemed to have a small swelling on the anteromedial aspect of his elbow, on the medial side of the biceps tendon that is somewhat ill-defined. It is pear-shaped and approximately 2" in length at the apex distally and the base being about 1". It seemed to lie over the anterior aspect of the brachialis muscle. The swelling is not tender. There is full range of motion of the elbow itself. Motions of the elbow were painless, although he complained of slight discomfort on extension. X-rays of his elbow that were done on January 21st, 1999 were normal. I took further x-rays. These are also noted to be normal suggesting that his injury was soft tissue in nature, either due to strain or bruises at the elbow region. However, the soft tissue injury to the posteromedial aspect of the elbow does not explain the swelling on the anteromedial aspect of the elbow that is more in keeping with a lipoma rather than due to a hematoma. I did suggest to him to keep an eye on it. If this swelling shows any signs of increasing in size or continues to bother him, one may need to consider surgical excision." (Emphasis ours)

The claimant underwent surgery to his right elbow on February 15th, 2000. The preoperative diagnosis was lipoma right elbow. The pathology report confirmed that the mass excised by the surgeon from the right elbow was indeed compatible with lipoma.

We are satisfied based on the weight of evidence that this lipoma or fatty tissue on the claimant's right elbow was at a different location than the point of impact and in all probability pre-existed the compensable injury and was, on a balance of probabilities, neither aggravated nor enhanced by this event. We further find that the claimant is not entitled to payment of wage loss benefits beyond July 7th, 1999 as there was no longer a loss of earning capacity as a consequence of the compensable injury. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of July, 2003