Decision #46/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a right lateral epicondylitis condition that occurred on July 24, 2008 due to a work related injury. The employer’s representative disagreed that the worker’s right elbow condition was caused by the July 24, 2008 work incident but rather alleged that it was a pre-existing condition. A file review was held on March 17, 2009 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker’s right epicondylitis, its associated treatment and time loss from work.

Decision

That responsibility should be accepted for the worker’s right epicondylitis, its associated treatment and time loss from work.

Decision: Unanimous

Background

In the Employer’s Accident Report dated July 28, 2008, it was indicated that the worker struck his right elbow against the corner of a bumper on July 24, 2008 at 1:00 p.m. There were no witnesses to the incident. The employer noted that the worker commenced modified duties on July 28, 2008.

A hospital emergency report showed that the worker sought treatment on July 25, 2008 and reported that he banged his elbow against a truck bumper yesterday and now had pain in the right lateral aspect of his elbow. The examination findings included puffiness to the lateral aspect of the right elbow and tenderness to the lateral epicondyle. There was pain on full extension of the elbow tendon to the extensor tendons. The diagnosis rendered was right elbow tendinitis and the worker was cleared to perform modified duties and to ice and rest his elbow.

File records confirm that the worker returned to modified duties on July 28, 2008 and was advised to avoid lifting anything greater than 10 pounds. If there was any lifting to be done over 10 pounds, the worker was instructed to ask other co-workers for assistance (as per the return to work form dated July 28, 2008).

On August 6, 2008, the attending physician reported that the worker suffered an acute injury and soreness to his right elbow after he banged it at work. The worker reported that it was sore to lift anything with his hand and he felt cramping down the right elbow to his forearm. The diagnosis rendered was right lateral epicondylitis. The worker was prescribed medication and was told to rest for two weeks.

On August 11, 2008, an employer representative advised the WCB that the worker reported an increase in symptoms and that he was off work effective August 5, 2008. The employer asked the WCB to determine if there was objective medical evidence to support that the worker was totally incapacitated from all forms of accommodated work.

When speaking with his WCB adjudicator on August 11, 2008, the worker indicated that he was working modified duties until last Tuesday when his elbow was too sore to continue. He confirmed that his employer advised him not to lift more than 10 pounds and that he tried to get the guys to help whenever he could, but he felt that he was always bothering people and that the employer was unrealistic in the duties they wanted him to perform. He said he told his supervisor on Tuesday, that he was having trouble and needed to see his doctor. The worker indicated that he was right handed and that regular welding could be difficult as lifting the hoses can sometimes weigh up to 30 pounds depending on how high up he had to weld. The worker indicated that the soonest he was able to see his doctor for treatment was on August 5, 2008. He stated that his symptoms decreased since being off work but he was still quite sore and he was worried about going back to work duties that he really should not be doing.

On August 12, 2008, the worker attended a hospital facility for reassessment of his right elbow. The worker indicated he was unable to work his regular duties as his welding gun weighed 20 pounds. The diagnosis rendered was tendonitis of the right elbow. On the same date, the worker was seen by a triage nurse who noted slight swelling to the outer aspect of the right elbow.

On August 12, 2008, the employer advised the WCB that they would be able to accommodate the worker with one handed duties, i.e. removing old labels and affixing new labels onto bottles.

In an adjudicative decision dated August 15, 2008, the employer was advised that there was medical evidence to support that the worker aggravated his elbow while working the modified duties and that benefits would be paid to the worker between August 6 and 13, 2008 inclusive.

On October 15, 2008, an advocate for the employer asked Review Office to rescind the acceptance of all costs related to the worker’s epicondylitis condition. The advocate stated:

“…the diagnosis of tendonitis (epicondylitis) was provided when seen at the [hospital] on July 25, 2008; however, that does not in any way infer that the bumper incident of July 24, 2008, caused this condition. There is also, in our opinion, no credible evidence to suggest that the epicondylitis condition was aggravated by the bumper incident of July 24, 2008. File evidence would tend to indicate that the epicondylitis was present for some time prior to the compensable injury of July 25, 2008. We believe that responsibility ought to be limited to those costs directly related to the contusive type injury that would have resulted from the incident of July 24, 2008.”

In a memorandum dated October 16, 2008, Review Office indicated that it spoke with the employer’s representative to clarify the issues for reconsideration. They were:

“Whether the worker’s lateral epicondylitis is due to the work injury; and

Whether responsibility should be accepted for treatment related to the epicondylitis condition; and

Whether the worker was entitled to payment of wage loss benefits for the period August 5 to August 23, 2008.”

On October 23, 2008, Review Office determined that the worker’s tendonitis/epicondylitis condition was consistent with the accident mechanics of July 24, 2008. As a rationale for its decision, Review Office indicated that the worker’s accident description to the WCB, to the employer and to the emergency physician was consistent with an injury occurring on July 24, 2008. It also found that the July 25, 2008 clinical examination findings of the worker’s elbow and the worker’s subjective complaints of pain were consistent with the accident mechanics to that area of the elbow occurring on July 24, 2008.

Review Office also found that the worker was entitled to wage loss benefits from August 5, 2008 to August 13, 2008. The clinical examination of August 6, the worker’s described complaints to the adjudicator on August 11, 2008, the fact that the injury was to his dominant arm and the doctor’s recommendations to rest for two weeks and take medication, confirmed that the worker was medically authorized to be off work during the above time frame.

On December 5, 2008, the employer’s representative appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that the WCB may provide a worker with such medical aid as the WCB considers necessary to cure and provide relief from an injury resulting from an accident.

Employer’s position:

The employer was assisted by an advocate in its appeal. The written submission of the advocate did not challenge the fact that the worker struck his right elbow against a bumper at work, but questioned whether there was evidence of disability to support the acceptance of wage loss during the period August 5 to 13, 2008, and also whether that time loss was a direct consequence of the July 24, 2008 incident. It was noted that the accident mechanics were not consistent with a diagnosis of tendonitis/lateral epicondylitis. A blow to the elbow is not generally considered to be a precipitating factor in the development of this condition. There was also indication in the medical reports that the worker had been suffering with tendonitis for approximately one month prior to the incident. It was submitted that the time loss authorized was done so in relation to the diagnosis of right lateral epicondylitis, which existed prior to the accident. That notwithstanding, it was submitted that there were no objective findings noted in the physician’s report to warrant total disability. On a similar vein, it was also argued that the physiotherapy treatment was related to the right lateral epicondylitis rather than the result of a contusive type injury that one might reasonably expect from striking one’s elbow against a truck bumper. It was requested that the panel rescind the decision of Review Office based on the information before us.

Analysis:

For the employer’s appeal to be successful, we must find on a balance of probabilities that the worker’s right epicondylitis, its associated treatment, and time loss from work were not related to the workplace accident of July 24, 2008. We are not able to make that finding. In the panel’s opinion, the July 24, 2008 workplace injury caused the worker to suffer an aggravation of a pre-existing tendonitis and lateral epicondylitis condition. Prior to July 24, 2008, the pre-existing condition was symptomatic, but was not disabling. After he hit his elbow at work, the worker’s symptoms increased significantly, causing him to require medical treatment and miss time from work. As the increased symptomatology was directly related to the workplace accident, responsibility should be accepted for the treatment of the condition and time loss from work.

In coming to our decision, we place weight on the following evidence:

  • On the day immediately following the accident, the emergency room medical record documents puffiness to the lateral aspect of the right elbow and tenderness on the lateral epicondyle. The panel accepts these objective findings as evidence that an acute injury occurred on July 24, 2008 in the right epicondyle area;
  • The report of the physiotherapist dated August 18, 2008 references elbow pain which the worker reported experiencing over a period of a month prior to the accident, with the pain increasing significantly after he bumped his elbow;
  • While the panel agrees with the employer’s submission that a lateral epicondylitis condition would not likely be caused by a single strike to the elbow, we do accept that the symptoms of a pre-existing lateral epicondylitis condition could be aggravated by a blow to the tendon in the elbow area;
  • The worker returned to modified work, however the duties he was given may not have been ideal for him. His restrictions at the time were to avoid lifting weights of more than 10 lbs, but the emergency room record dated August 12, 2008 indicates that the welding gun used by him weighed 20 lbs. The panel is of the view that the time loss from work for August 5 to 13, 2008 was related to the aggravation and not the pre-existing condition. We find that at the beginning of August, the worker still had lingering symptoms and the modified duties he was performing caused the condition to worsen. The panel considers the flare-up of his symptoms to be related to and part of the aggravation caused by the July 24, 2008 accident.

The panel notes that although we find that the worker had pre-existing tendonitis and right epicondylitis, we make no comment with regard to the cause for this pre-existing condition. This issue has never been adjudicated by the WCB.

For the foregoing reasons, the panel finds that responsibility should be accepted for an aggravation of the worker’s right epicondylitis, its associated treatment and time loss from work. The employer’s appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 27th day of March, 2009

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