Decision #66/05 - Type: Workers Compensation
Preamble
A non-oral file review was held on March 17, 2005, at the request of a worker advisor, acting on behalf of the worker.Issue
Whether or not wage loss benefits are payable beyond August 6, 2004.Decision
That wage loss benefits are not payable beyond August 6, 2004.Decision: Unanimous
Background
On April 7, 2003, the worker filed a claim with the Workers Compensation Board (WCB) for soreness in her left elbow and arm which she related to the repetitive nature of her work duties. The initial diagnosis rendered by the treating physician was a left lateral epicondylitis. On May 8, 2003, the WCB accepted responsibility for the claim based on subsections 4(1) and 1(1) of The Workers Compensation Act (the Act). The decision to accept the claim was also confirmed by Review Office on June 20, 2003.During the early part of the claim, the worker performed modified duties with her employer while attending physiotherapy treatments. In June 2003, the worker stopped physiotherapy treatments as her doctor told her it was not helping her left elbow condition.
In August 2003, the accident employer offered the worker a severance package as it was no longer able to accommodate her with modified duties and because the company was downsizing. Based on these factors, the WCB provided the worker with full wage loss benefits commencing August 7, 2003.
On November 6, 2003, the worker was assessed by both a WCB medical advisor and a WCB physiotherapy consultant. The worker appeared to have a left forearm extensor muscle strain and muscular irritability. There was tightness noted in the forearm flexors and biceps musculature on the left. Based on these examination findings, the worker was encouraged to increase the spontaneous use of her left upper extremity. Both the medical advisor and physiotherapy consultant felt that the worker was capable of working with restrictions respecting her left hand for six weeks followed by reassessment.
The WCB then arranged for the worker to undergo physiotherapy treatments from January 5, to January 16, 2004 inclusive with respect to her left elbow condition. On January 30, 2004, a WCB medical advisor recommended a call in examination with a WCB medical advisor specializing in arm conditions.
The worker was examined by a WCB medical advisor on March 8, 2004. The medical advisor found little in the way of a measurable impairment to the left elbow function and that the current objective findings did not substantiate the imposition of restrictions of the left elbow.
On July 8, 2004, the above medical advisor provided primary adjudication with his opinion concerning x-rays that were taken of the worker's left elbow on March 31 and May 8, 2003 and April 29, 2004. The medical advisor concluded his report by stating that the imposition of left elbow restrictions was not required. He suggested preventive restrictions of no forceful gripping with the left hand.
In a decision dated July 30, 2004, primary adjudication determined that the worker had recovered from the effects of her compensable injury based on the medical evidence and that wage loss benefits would be paid to August 6, 2004 inclusive and final. On September 1, 2004, this decision was appealed to Review Office by a worker advisor, acting on behalf of the worker.
On October 12, 2004, Review Office confirmed that the worker was not entitled to wage loss benefits beyond August 6, 2004. Based on the time that the worker had been off work, allowing for natural healing time, and the results of the March 8, 2004 WCB examination findings, Review Office found no reason to take the position that the worker still had a functional impairment from returning to the workforce and agreed with primary adjudication's decision of July 30, 2004. On January 27, 2005, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.
On March 7, 2005, the Appeal Panel considered the file information which included a report from the worker's treating physical medicine and rehabilitation specialist dated January 11, 2005, an undated submission by the worker advisor (received on February 18, 2005) and a submission from the worker dated February 24, 2005.
Reasons
On or about March 20, 2003, the worker developed a sore left elbow and arm as a consequence of her repetitive daily work duties. Her condition was diagnosed as left lateral epicondylitis (tennis elbow). File information reveals that the worker was laid off on August 2, 2003 as the employer no longer had suitable modified duties available.
The worker was examined by a WCB medical advisor specializing in sports medicine on March 8, 2004. On examination the medical advisor recorded the following findings:
“Ms. [the worker] demonstrated full forearm mobility bilaterally. During repetitive assessment of isometric forearm strength over the course of the exam, gross grip power felt normal bilaterally. There was non specific tenderness over the left dorsal forearm without trigger point activity. There was no tenderness over the left volar forearm.”
The medical advisor’s overall impression included these comments:
“Non-specific left postero-lateral elbow pain. Accompanying same, there is little in the way of measurable impairment of the left elbow function. A clinically significant left elbow flexion contracture was not apparent. There are currently no functional features of medial epicondylar pathology.
The current objective findings do not substantiate the imposition of restrictions on left elbow function. Limiting repetitively forceful gripping with the left hand when the left elbow is fully extended would decrease the risk of symptomatic recurrence.”
The worker was first examined by her treating physical medicine and rehabilitation specialist on October 19, 2004. We note that this examination was conducted nearly 19 months post injury. Interestingly enough the specialist’s exam disclosed diagnoses, which were not apparent at the time when the worker was examined by the WCB medical advisor on March 8, 2004 i.e., “myofascial trigger points and tight muscle bands in biceps, brachioradialis and lateral head of triceps.”
We prefer to attach more weight to the opinion expressed by the WCB’s sports medicine specialist than that of the worker’s treating physical medicine and rehabilitation specialist. The WCB’s examination of the worker was closer in time to the compensable injury. In addition, it should also be noted that the worker had been off work for over one year prior to her being examined by her specialist on October 19, 2004.
After having thoroughly considered all of the evidence, we find that the worker had, on a balance of probabilities, fully recovered from the effects of her compensable injury by the time her WCB benefits were terminated. We further find therefore that wage loss benefits are not payable beyond August 6, 2004. Accordingly, the worker’s appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of April, 2005