Decision #145/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 27, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on April 27, 2005 and again on July 19, 2005.Issue
Whether or not the worker is entitled to wage loss benefits beyond July 15, 2003.Decision
That the worker is not entitled to wage loss benefits beyond July 15, 2003.Decision: Unanimous
Background
On October 30, 2001, the worker sustained a right arm injury during the course of her employment as a registered aide. The accident description outlined by the worker was as follows: "One of the residents went to hit me, and I went to bring my arm up to block her, and she hit my right arm with her arm." On November 3, 2001, a second injury occurred to the worker's right arm when a resident became aggressive and pinched her with his fingers and nails.On November 23, 2001, a WCB adjudicator spoke with the worker. The worker indicated that a resident tried to hit her on October 30, 2001 and she blocked it with her right forearm. The worker indicated that the injury had not been severe enough to prevent her from working but she continued to feel right arm pain after the incident. With respect to her second injury, the resident had gouged her with his/her right arm and pinched her left arm. She did not have any problems with her left arm but was feeling pain in her right arm. The worker noted that she sustained an infection to her right arm but that had subsided. The adjudicator accepted the claim based on a diagnosis of tendonitis and a soft tissue injury and benefits were paid to the worker commencing November 5, 2001.
On December 11, 2001, the worker commenced a graduated return to work program with restrictions of no heavy lifting.
Progress reports in February and March 2002, indicated that the worker's condition was showing improvement but she still felt weakness in her forearm.
On April 8, 2002, a WCB medical advisor examined the worker. Following the assessment, the medical advisor outlined his opinion that the worker likely sustained a mild lateral epicondylitis (and possibly medial epicondylitis) on the right side as a result of an acute dorsiflexion stress applied to her right wrist at the time of the original compensable injury. The medical advisor noted that resolution of the matter was reasonable over the ensuring weeks but that the worker experienced a set back during vigorous physiotherapy as there was some evidence of minor bruising of the right arm. The medical advisor concluded that the worker should continue with her graduated return to work program by increasing her hours. He stated that the worker's problem with her right arm and elbow was likely due to cumulative trauma.
In June 2002, the worker discontinued the return to work program due to problems with her elbow. In September 2002, the worker returned to alternate work duties.
On October 2, 2002, a neurologist reported his examination findings to the worker's treating physician. He stated, in part, "…I am really not convinced of any serious nerve entrapment as an explanation for this patient's symptoms. She may well have had a sensory branch injury in her forearm at the time of impact affecting the radial nerve based on some of the exam findings, but certainly nothing that we are going to be able to treat surgically. The main reason that she is limited in her ability to return to normal function of that arm seems to be the regional myofascial pain syndrome involving the brachioradialis, middle finger extensor and to a far lesser extent the deltoid trigger point mentioned." Treatment suggested included a low dose of botulinum toxin into the trigger points.
A follow-up report from the neurologist dated December 17, 2002, stated, in part, that the worker's condition generally worsened after the initial injection in November 2002 although the numbness in her middle finger had somewhat improved. The worker noted that her pain had been aggravated on November 18, 2002 when she slipped and fell on ice while leaving work, striking her back and both elbows.
On January 8, 2003, an orthopaedic surgeon diagnosed the worker's condition as lateral and medial epicondylitis of the right elbow. In a second report dated January 23, 2003, the orthopaedic surgeon noted that the injection he gave to the worker's lateral epicondyle did not help her at all.
In a February 24, 2003 report, the treating neurologist recommended that the worker undergo a repeat attempt at botulinum toxin and opined that he did not support any surgical intervention.
On March 25, 2003, a WCB physiatrist assessed the worker. He concluded that the worker most likely suffered a mild medial epicondylitis and a medial forearm strain from the mechanism of accident on October 30, 2001. The consultant believed that the weakness in the finger and wrist extensors was a direct consequence of an increased dose of botulinum toxin. On May 15, 2003, the physiatrist recommended restrictions for a three month period related to the weakness in the finger and wrist extensors.
Based on the findings of the WCB physiatrist along with the other available file evidence, Rehabilitation and Compensation Services determined that the worker had recovered from the effects of her October 30, 2001 work injury and that her reported weakness should resolve by July 15, 2003.
On June 20, 2003, a second orthopaedic specialist stated that the worker's symptoms sounded like lateral epicondylitis or common extensor tendonitis. Exploration and debridement to try to stimulate healing was recommended. On August 14, 2003, the WCB's physiatrist advised the specialist that the WCB was unable to take responsibility for the proposed surgery.
In a submission dated April 7, 2004, the worker's union representative provided the WCB with copies of two medical reports from the second orthopaedic specialist in support of their position that the worker had not recovered from the effects of her compensable right elbow injury and that surgery to the right elbow was directly related to her compensable injuries.
On May 3, 2004, the case manager asked the WCB physiatrist to review the new medical information provided by the second orthopaedic specialist. On June 25, 2004, the physiatrist informed the case manager that his prior comments of August 14, 2003 still applied. On June 28, 2004, the WCB advised the union representative that no change would be made to the adjudicative decision of June 8, 2003. The case was then forwarded to Review Office for consideration.
In a decision dated November 12, 2004, Review Office confirmed that the worker was not entitled to wage loss benefits beyond July 15, 2003. On a balance of probabilities, Review Office concluded that the worker's ongoing complaints could no longer be reasonably associated with the incidents at work. In February 2005, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Following the oral hearing held on April 27, 2005, the Panel determined that additional information was required prior to rendering its final decision. The Appeal Panel requested and received information from the worker's union representative and treating physiotherapist. This information was then forwarded to the interested parties for comment. On July 19, 2005, the Panel met to further discuss the case and considered a submission from the employer's advocate dated July 14, 2005.
Reasons
The Panel was asked to determine whether the worker is entitled to wage loss benefits beyond July 15, 2003. For the worker's appeal to be successful, the Panel must find that the worker continued to have a loss of earning capacity beyond July 15, 2003 as a result of her workplace injuries as noted in the background. The Panel found that the worker's loss of earning capacity was not due to the workplace injuries and accordingly the appeal is declined.Evidence and Argument at Hearing
The worker attended the hearing with her union representative who made a presentation on her behalf. The worker answered questions posed by the Panel.
The employer was represented by an advocate and Director of Human Resources. The advocate made a submission on behalf of the employer.
The worker described the accident and symptoms she experienced as a result of the accidents. The worker advised the Panel that she had surgery for tennis elbow on her right arm in October 2003. She advised that since the surgery she continues to have slight pain and that her arm is very weak. She noted that the numbness in her fingers is gone. She also advised that she had physiotherapy after the surgery.
The worker advised that since the surgery she has worked but not full time and has not returned to her pre-accident employment. She advised that she has looked for work. She described her current activities. She also described the light duties employment that she participated in prior to the termination of her benefits.
The union representative reviewed the medical information on the claim file. He noted that the second orthopaedic surgeon provided the opinion that the worker's surgery and other effects were directly related to the workplace injuries. He also noted that the MRI findings were consistent with the diagnosis made by the second orthopaedic surgeon. He submitted that the preponderance of medical information on file demonstrates a cause/effect relationship between the surgery and the worker's workplace injuries. He advised that the worker is seeking reinstatement of benefits retroactive to the date of termination of her benefits and that the WCB accept responsibility for the surgery.
The employer's advocate expressed the opinion that the preponderance of medical information shows that the worker recovered from the workplace injuries. She referred to the WCB physiatrist's opinion in support of this conclusion. She also noted that there is no indication on file or from the second orthopaedic surgeon that the worker was totally disabled and incapable of working. She stated that the employer had a job for the worker and that the worker did not have a loss of earning capacity as a result of the workplace injuries.
Analysis
The worker asked the Panel to find that she is entitled to benefits beyond July 15, 2003. The Panel was not able to reach this conclusion. After considering all the evidence, including the worker's testimony at the hearing, the Panel found, on a balance of probabilities, that the worker is not entitled to benefits beyond July 15, 2003.
The worker's position was supported by the opinion of the second orthopaedic surgeon who performed a right elbow common extensor debridement and arthrotomy on the worker's arm.
In terminating benefits the WCB and Review Office relied upon the opinion of the WCB physiatrist. The physiatrist examined the worker on March 25, 2003. His findings on examination included:
- No triceps or biceps tenderness
- Tenderness of the triceps tendon at the elbow
- On palpation, tenderness of the elbow medial joint line
- No tenderness over the medial or lateral epicondyle on either side
- No tenderness of the biceps tendon at the elbow
- No aggravation of pain at the medial or lateral epicondyle with specific stress tests for medial or lateral epicondylitis
The Panel considered these opinions and gave greater weight to the opinion of the WCB physiatrist. The Panel preferred the evidence of the physiatrist which was based upon a review of the full medical file including opinions and reports from other treating and examining physicians. The second orthopaedic surgeon's opinion regarding the causal connection to the compensable injury was "…purely based on the patient's history, which states that prior to this event, she had no problems and after the event, she did have problems."
The Panel also accepts the WCB's physiatrist's opinion that lateral epicondylitis is an unlikely diagnosis based on the mechanism of injury as described by the worker. The Panel concludes that any loss of earning capacity after July 15, 2003 is not due to the worker's workplace injuries.
Had the Panel found that the worker's continuing symptoms were causally related to the workplace injuries, it would have had difficulty in providing wage loss after July 7, 2003 given the personal decisions made by the worker. The Panel notes that at the hearing the employer's advocate stated that the employer had employment for the worker and that the worker did not contact the employer about returning to work. The worker stated she did contact the employer but this did not occur until November 2004. The Panel also notes that in March 2003 the WCB physiatrist commented that he would expect the worker to return to modified duties with no restrictions.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of September, 2005