Decision #66/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a right elbow condition that she related to her work activities on May 3, 2005. The claim for compensation was accepted and benefits were paid to the worker up until March 23, 2006 when it was determined by primary adjudication and the Review Office that she had recovered from the effects of her compensable injury . The worker disagreed with the decision and her union representative filed an appeal with the Appeal Commission. An oral hearing was held on December 11, 2007.Issue
Whether or not the worker is entitled to benefits beyond March 23, 2006.Decision
That the worker is not entitled to benefits beyond March 23, 2006.Decision: Unanimous
Background
On May 3, 2005, the worker banged her right elbow on a metal plate at work. The claim for compensation was accepted based on the diagnosis of a right elbow epicondylitis. The worker’s elbow condition was treated by physiotherapy and with a cortisone injection and she was accommodated with light duty work by the accident employer.
In a telephone conversation with a WCB case management representative on August 16, 2005, the worker advised that she had “swelling and aching in her knees, a sore back and her neck went out”. She related these difficulties to the performance of her modified duties.
In a follow-up report dated August 24, 2005, the treating physician noted that the worker’s elbow felt much better after the injection. Objective findings included mild tenderness in the lateral epicondyle and mild pain with resistance testing. The worker was advised to continue with physiotherapy and to return for a follow up appointment in two week’s time. He suggested that the worker may be able to return to normal duties in two week’s time.
At a follow up visit on September 13, 2005, the treating physician reported that the worker’s elbow condition had improved but she was now getting numbness and tingling in both hands. Nerve conduction studies (“NCS”) were prescribed.
On September 22, 2005, the worker advised her WCB case manager that her bilateral wrist symptoms started after her modified duties were switched to sorting gloves on August 16, 2005. With regards to the status of her right elbow, the worker indicated that her elbow pain disappeared after her injection. She still had some swelling but it was not painful. She said she was uncertain whether her current disability was the result of her elbow or bilateral wrists but stated her wrist pain was more disabling than her elbow pain.
The September 26, 2005 NCS report indicated that the worker’s chief complaint was paresthesia of the hands, worse on the right side. The NCS results were described as follows: “This study suggests right median mononeuropathy at or distal to the wrist (e.g. CTS), which electrographically appears to be mild. There was a small difference between the left median and ulnar sensory, distal latencies (0.3ms), which can be due to early or very mild carpal tunnel syndrome but because the difference is fairly small, I cannot make that diagnosis electrographically”.
On September 29, 2005, a physiotherapist noted that the worker complained of continuous tingling in both hands and pain in both wrists. Epicondylitis of the elbow was better. The therapist’s diagnosis was “Beginning of carpal tunnel syndrome both wrists.”
The worker filed a separate claim with the WCB for her carpal tunnel condition. The claim was denied by primary adjudication on November 17, 2005.
In a report to the WCB dated January 20, 2006, the treating physician commented that when he saw the worker on December 13, 2005, she wanted to return back to her normal duties but her elbow was still painful. The worker was found to have tenderness on the lateral epicondyle and pain with resisted wrist extension. This confirmed that the worker still had symptoms of a lateral epicondylitis of the right elbow. He further stated that in his opinion, the worker’s right lateral epicondylitis condition was unlikely to settle down with her normal duties of meat packaging.
On February 14, 2006, the worker was seen at the WCB’s healthcare branch by a WCB medical advisor. In his examination report dated February 14, 2006, the medical advisor noted that the worker’s right elbow lateral epicondylitis had settled following the steroid injection, physiotherapy and splinting but several months later, the symptoms gradually returned though not with the same intensity. He said the manual and repetitive nature of the work duties may have initially contributed to the development of this condition but it was difficult to relate the current symptoms at the right elbow to her recent lighter work duties. He further noted that the worker had evidence of 11 of 18 fibromyalgia tender spots. He stated the worker’s complaints of pain at the shoulders, neck, back, hips and knees were, on a balance of probabilities, related more to fibromyalgia type condition rather than any workplace influence.
In a memorandum dated March 6, 2006, the WCB medical advisor discussed the case with the worker’s case manager. He stated that on a balance of probabilities, the worker’s present right elbow symptoms and ongoing restrictions would be related more to her fibromyalgic condition than to the injury of May 2005 which apparently resolved with time, rest and the steroid injection.
On March 7, 2006, the treating physician reported that the worker complained of pain in her upper right shoulder, right elbow and arm, left upper gluteus, knees and lower legs. He concluded that the worker was suffering from lateral epicondylitis and myofascial pain and was treated with a second steroid injection into the right elbow.
In a decision dated March 22, 2006, the worker was advised that it was the opinion of primary adjudication that based on the weight of medical evidence, she had recovered from the effects of her compensable injury and any ongoing symptoms related to a non-compensable condition. It was therefore determined that the worker was capable of returning to her pre-accident duties as a result of her May 3, 2005 compensable injury and that wage loss benefits would be paid to March 23, 2006 inclusive and final.
On April 4, 2007, the worker’s union representative appealed the WCB’s decision that the worker had recovered from the effects of her compensable injury by March 23, 2006. Included with the submission was additional evidence that had not been considered by primary adjudication. This consisted of a report from the treating physician, the treating physiotherapist, the treating chiropractor and medical literature.
In a decision dated May 31, 2007, the WCB case manager stated that a WCB medical advisor reviewed the new information on May 29, 2007 and offered the medical opinion that a diagnosis of tennis elbow was an equivalent term for lateral epicondylitis and that the findings do not support a cause and effect relationship between the May 3, 2005 mechanism of injury and the diagnosis of myofascial pain, fibromyalgia and carpal tunnel syndrome. In light of this opinion, primary adjudication determined that the worker was not disabled from employment by reason of the compensable injury of May 3, 2005. On June 18, 2007, the union representative appealed this decision to Review Office.
In a decision dated July 18, 2007, the Review Office determined that no responsibility would be accepted for the worker’s right elbow complaints beyond March 26, 2006. The Review Office noted that the union representative argued that the worker’s epicondylitis had been unremittant since the injury of May 2005 and that she subsequently developed myofascial pain secondary to the compensable injury. The union representative also contended that the type of work performed by the worker may have been responsible for the development of lateral epicondylitis.
The Review Office stated that in the opinion of a WCB orthopaedic consultant, the worker’s duties did not contribute to the development of epicondylitis given the worker’s admission that she was asymptomatic prior to May 3, 2005. Regarding the injury of May 3, 2005, the consultant was of the view that the mechanism of injury would not have been significant enough to result in any ongoing signs and symptoms lasting for such a prolonged period of time.
After considering all available information, the Review Office stated that it was unable to disassociate the return of the worker’s right elbow symptoms with the myriad of other joint complaints which arose at approximately the same time in late 2005, irrespective of what diagnosis is suggested for these symptoms. It accepted the opinions provided by two separate WCB healthcare providers who concluded that the worker recovered from the effects of the injury sustained on May 3, 2005 and rejected the worker’s request for ongoing benefits. On September 12, 2007, the union representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Following the oral hearing, the appeal panel requested additional information from the treating physician. A response to the appeal panel’s request for information was submitted by the treating physician dated January 17, 2008 and was provided to the interested parties for comment. On March 27, 2008, the panel met further to consider the appeal and requested that the employer provide copies of the worker’s health records. These records were shared with the worker. The panel met on April 23, 2008 to consider the appeal and a submission from the worker’s representative dated April 18, 2008.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the WCB’s Board of Directors. This appeal deals with provision of ongoing benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. Subsection 27(1) provides that the WCB may provide a worker with medical aid to cure or provide relief from a workplace injury.
Worker’s Position
The worker was represented by a union representative who made a submission on her behalf. The worker answered questions posed by her representative and the panel.
The worker’s representative submitted that although a traumatic incident resulted in the worker’s claim, that her condition is caused by both trauma and repetitive strain. He referred to literature on file in support of this position.
The representative noted discussion on the file regarding fibromyalgia and submitted that the worker never suffered from this condition. He noted that this diagnosis caused confusion on the file. He advised that the worker was diagnosed by her treating chiropractor with multiple vertebral subluxations, was treating her for this, and that the treatments were successful He submitted that the symptoms have all gone and all that is left is the epicondyle which the bulk of physicians agree is epicondylitis. He referred to various reports in which the physicians diagnosed lateral epicondylitis.
The worker’s representative also disagreed with the employer’s interpretation of the functional capacity assessment. He noted it referred to “light/medium strength category” and did not state the worker could return to her regular duties.
The worker described her duties at the employer’s plant commencing when she started work in 1998 up to the time of the injury. She indicated that the duties were very physical and involved working with meat including deboning certain cuts of meat. She described the injury which occurred when she banged her elbow on a metal object as she tried to get a box from a conveyor belt.
Regarding the information on the file which indicated the worker did not have prior problems with her forearms, the worker indicated that she did have pain in the forearm before the injury. She advised that she was not familiar with the diagnosis of tennis elbow and did not associate the diagnosis with the prior problems so answered the question about prior problems negatively. She advised that she had been told that she had permanent tendonitis in her forearms. She also advised that she had visited the employer’s health office on prior occasions, had been provided with medications and had completed green cards. Her representative submitted that she had also been on and off modified duties for these symptoms.
With respect to the impact of a cortisone injection, the worker advised that she received some relief from the first injection but that a second injection provided no relief. The worker’s representative submitted that the evidence indicating the worker experienced relief from the injection did not mean that her condition had healed.
The worker advised the panel that over time her condition has healed but that she was not capable of returning to her regular duties with the employer. She advised that her physician identified restrictions and her employer advised that it did not have modified duties. The worker subsequently found employment with a different employer.
The worker’s representative provided a written submission dated February 19, 2008 in response to information received from the treating physician. He noted the physician’s comments that the worker’s condition is not purely inflammatory epicondylitis but rather more likely a damaged extensor tendon. He also noted the physician’s comments that it is not uncommon for lateral epicondylitis to return a few months after a cortisone injection. Her representative concluded that the worker was originally diagnosed with right sided epicondylitis, is still being diagnosed with this condition and continues to be disabled by it.
On April 18, 2008, the worker’s representative provided comments regarding the worker’s health records obtained from the employer’s on-site health unit. He noted that the information is not an “exhaustive cataloging” of all the worker’s visits due to differing requirements of two different employers, differing practices of different staff and the fact that the unit was not staffed for much of the worker’s work day.
Employer’s Position
The employer was represented by an advocate and by a staff person. The advocate made a submission on the employer’s behalf and answered questions posed by the panel.
The advocate advised that the employer agreed with the WCB’s adjudication of the claim. She noted that the accepted diagnosis was traumatic right elbow epicondylitis. The advocate suggested that if the worker has a repetitive strain injury, she should apply for benefits under a new and separate claim.
The advocate reviewed the medical information on the claim file. She noted the opinion of the WCB medical advisor who examined the worker. This physician commented that the medical reports on file indicate that with time, splinting, physiotherapy, steroid injection and modified duties, the epicondylitis symptoms settled after August 2005 and materially resolved. She also noted the opinion of the WCB orthopedic consultant that file evidence supported the contention that the worker had recovered from the injury.
The employer representative made a further submission upon receipt of the treating physician’s report of January 17, 2008. She submitted that the treating physician’s report is consistent with the opinions of a WCB medical advisor and the WCB orthopedic consultant who concurred that the effects of the compensable injury of May 2005 had resolved by September 2005. Regarding the worker’s health records provided by the employer on April 4, 2008, the representative noted that the records prior to the compensable injury indicate the worker was receiving medication for arthritis in her hands, knees and legs. She noted that the worker’s workplace injury was right traumatic epicondylitis.
Analysis
The issue before the panel is whether the worker is entitled to benefits beyond March 23, 2006. To accept the worker’s appeal the panel must find, on a balance of probabilities, that her ongoing symptoms are related to her workplace injury and that she had a loss of earning capacity related to this injury. The panel was not able to make these findings.
The panel considered the worker’s position that she suffered from a repetitive strain injury and that her condition was chronic epicondylitis. The panel obtained copies of the worker’s health records from the employer’s on-site health unit to determine whether there was support for this position. The panel finds that the records do not demonstrate that the worker attended the station prior to the May 2005 for treatment of symptoms related to a repetitive strain injury of the right arm and elbow. The panel finds, on a balance of probabilities, that the specific cause of the worker’s symptoms was a blow to the worker’s right elbow. This was the mechanism of injury originally reported by the worker to the WCB and to the employer. She stated that she banged her right elbow on a metal plate. Accordingly, the panel finds that the worker suffered from traumatic epicondylitis.
The panel finds that the worker had recovered from the traumatic epicondylitis before March 23, 2006. The panel sought information from the worker’s treating physician to determine the relationship between the worker’s symptoms in March 2006 and the compensable injury. The physician confirmed that on September 13, 2005 the worker reported that her elbow had improved a lot and on clinical examination it appeared that it had resolved. In his report of October 14, 2005 the physician notes that the “elbow improved a lot.”. Regarding the later recurrence of symptoms, the physician reported that normal household chores can be the reason that symptoms flare-up and that it is impossible to tell exactly what might be the cause. Given the physician’s report that the worker’s epicondylitis had resolved and also that the worker had been working at modified duties since August 2005, the panel finds that the flare-up of the condition was not caused by the original injury or related modified duties.
The panel notes that its findings that the worker had recovered from the workplace injury is consistent with the opinion provided by the WCB orthopedic consultant and the WCB medical advisor.
The panel notes that when the worker ceased working in March 2006 she reported a variety of symptoms which the panel is unable to relate to the May 2005 elbow injury. These conditions included carpal tunnel syndrome, shin splints and a pinched nerve in her spine. She advised that in March 2006 she was receiving physiotherapy for her legs, hips, and knees. The panel finds that these unrelated symptoms were more likely to cause the worker to cease working in March 2006 than her compensable injury.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of May, 2008