The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and policies made by the WCB Board of Directors.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-Existing Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Pre-Existing Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

b. Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and

3) the pre-exiting condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The definition portion of the Pre-Existing Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable accident on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable accident.

Enhancement: When a compensable injury permanently and adversely affects a pre-existing condition or makes necessary surgery on a pre-existing condition.

The Worker’s Position:

The worker was self-represented at the hearing. He started off by noting that aside from a genetic condition which does not allow him to straighten his arms fully, he has never had any difficulties with his left arm. It was only when he injured his left shoulder in September 2005 that problems began. It took a long time for him to be seen by the shoulder surgeon, and by the time that condition was treated, his elbow had been immobilized for just over 23 months in a bent position. After a few months into his recovery from left shoulder surgery, he began to notice that his elbow was getting sorer and sorer. He was referred to an elbow surgeon who performed surgery to remove “chunks of calcium” which were identified as pain generators. The worker believed that the lack of use of his left arm had caused the calcium to build up. The worker indicated that the surgeon gave him the option of an open surgery which would increase the range of motion of his elbow, but he told the surgeon that straightening the elbow was not a problem. He said “I really don’t care how straight my arms go. The problem is the pain in the elbow.” At the time of the hearing, the worker indicated that he had been scheduled for a second surgery to excise the radial head of the left elbow in hopes of further reducing the pain, but that he had cancelled the surgery, pending the outcome of this appeal. Overall, the worker’s position was that were it not for his compensable left shoulder injury, he would not have had any issue with his left arm.

Analysis:

The issue before the panel is whether or not the worker’s left elbow problems and associated surgical treatment are related to the compensable left shoulder injury and surgery. In order for the worker’s appeal to succeed, the panel must find that his left elbow problems qualify as a “further injury” under one of the three tests set out in the Further Injuries Policy. The test applicable to the worker’s left elbow injury would be the one contained in paragraph (i), that is, whether or not the cause of the further injury is predominantly attributable to the compensable injury.

The administrative guidelines to the Further Injuries Policy provide the following guidance:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

1. The original injury causes or significantly contributes to the subsequent injury. For example, the subsequent injury results from a residual weakness in the area of the original injury (e.g. unstable knee) or from the use of a prosthetic devise (sic) or other appliance. The test for whether the subsequent accident is compensable may include whether, on balance of probabilities, the unstable knee caused or significantly contributed to the subsequent accident or whether the prosthetic device/appliance malfunctioned or there was extraordinary risk associated with the use of the device/appliance.

At the hearing, the panel heard evidence from the worker as to how, after suffering the compensable injury to his left shoulder, he began to hold his left arm in a bent position up against his torso. After the left shoulder arthroscopy in January 2007, he kept his arm against his body even more frequently, particularly given the fact that for the first two months after surgery, he wore a shoulder/arm brace for a majority of the time. The worker attributed his subsequent left elbow pain to the lack of use of his left arm and the fact that he almost constantly held it in an immobilized bent position. He felt that when he did not use his arm, this allowed calcium to build up in his elbow and that was what ultimately necessitated his surgery.

Following the hearing, the panel requested further information from the surgeon who performed the elbow surgery as to the reasons for the surgery and the potential causes of these conditions. In particular, the panel wished to seek clarification on whether osteoarthritis remained the pre and post-operative diagnoses, as indicated on the surgical report. The worker’s evidence was that the surgeon had expressed some uncertainty as to whether or not the worker really had osteoarthritis in his left elbow.

By report dated June 12, 2009, the surgeon indicated the following:

1. The primary purpose of the surgery on July 22, 2008 was to perform a contracture release, remove loose bodies and alleviate osteoarthritic symptoms.

2. Contracture can be related to immobilization and/or osteoarthritis…

3. The primary cause of the worker’s pain, both pre and post-surgery, is osteoarthritis of the elbow, particularly of the radiocapitellar joint.

4. Immobilization of the elbow can cause stiffness and synovitis. It is not a cause of osteoarthritis (including osteophytes, loose bodies, and grade IV chondromalacia) but certainly can aggravate an already osteoarthritic elbow.

5. The worker’s osteophytic calcification buildup is not a result of disuse or diffuse immobilization, but symptoms can be aggravated and I believe this will happen in his case.

When examining the items listed as the “primary purpose” for the surgery, we find that none of them were caused by the left shoulder injury. With respect to contracture release, the worker was quite adamant at both the hearing and in his written submission that the contractures and reduced range of motion in his elbow were not an important issue to him. He was born with non-fully extending arms and this condition does not bother him at all. He did not experience any pain or loss of function from this condition. It would therefore appear that the contractures were a genetic pre-existing condition, and were not related to the compensable shoulder injury.

The other two purposes for the surgery were to remove loose bodies and to alleviate osteoarthritic symptoms. Both these conditions relate to the presence of osteoarthritis in his elbow. Osteoarthritis is typically related to degenerative changes which occur in the normal course of aging and in this case, particularly as there was no history of trauma to the elbow, the panel finds that the worker’s osteoarthritis was a pre-existing condition which was not caused by the shoulder injury. The surgeon’s report also confirms that the osteophytic calcification build-up was not the result of disuse or diffuse immobilization.

Although we find that the osteoarthritis was a pre-existing condition, the surgeon’s report also clearly indicates that the immobilization of the elbow could aggravate an already osteoarthritic elbow. Similarly, he states that symptoms caused by osteophytic calcification buildup could be aggravated by disuse or diffuse immobilization. It was clear that the reason for proceeding with the July 2008 elbow surgery was the pain complained of by the worker. He did not have any pain in his elbow prior to the shoulder injury and no osteoarthritic symptoms. In the circumstances, the panel accepts that pre-existing osteoarthritis in the worker’s left elbow was aggravated by the immobilization due to the compensable left shoulder injury, and as a result of this aggravation, the July 2008 surgery was required to relieve the pain. Because surgery was made necessary, the pre-existing elbow condition is considered “enhanced” by the compensable injury and should therefore be accepted as part of the full injurious result of the accident, as per the Pre-Existing Policy. Given these findings, the panel is satisfied on a balance of probabilities that the left elbow condition and resultant surgery were predominantly attributable to the original compensable injury and that the pre-existing condition was enhanced. Both of these findings will result in coverage, as per the WCB Policies.

The panel notes that although the worker gave evidence about a proposed surgical radial head excision procedure on his elbow and the surgeon was asked by the panel to comment on same, WCB responsibility for this procedure has not been previously adjudicated. We therefore make no comment on whether the worker is entitled to WCB coverage for this procedure.