The Appeal CommissionThe Workers Compensation Act of Manitoba

Description of the Injury:

According to the description in the Worker’s Incident Report, for approximately 5 to 6 hours beginning on the morning of July 7, 2008, the worker was standing in a warehouse cooler and reaching overhead with his right arm in order to scrape and chip ice off overhead pipes that were approximately 8 feet from the ground. The worker wrote that his right arm and neck became increasingly sore with a throbbing pain in his middle back. He stopped working when he could no longer lift his right arm without experiencing shooting pain and he couldn’t squeeze his right hand to hold the scraper. The worker reported that he went to the hospital the same day and waited 5 hours without being seen. He returned to the hospital on July 10, 2008 at which time he was diagnosed as suffering from paravertebral muscle strain and medial epicondylitis with tenderness over the paravertebrals and right elbow.

Treatment:

The worker sought treatment from his physician on July 15, 2008 and he was referred for physiotherapy. Medical reports indicate that the worker was examined by his treating physician on July 22, 2008, August 19, 2008, September 22, 2008 and September 29, 2008 for ongoing pain in his right elbow. In the Doctor’s report dated September 29, 2008, it is noted that the worker complained of right elbow pain with grasping heavy objects and there was slight tenderness on the medial epicondyle. Light work was recommended with restrictions of not lifting over 20 pounds. The report indicated that the worker was expected to return to regular duties by October 14, 2008.

In a progress report dated October 6, 2008, the worker’s physician noted that the worker had no subjective complaints. On examination, he noted slight tenderness on the medial aspect of the worker’s right elbow. An MRI was recommended. The worker was instructed to perform home exercises and to use a forearm/elbow support. The physician noted a return to work date of October 14, 2008.

On October 30, 2008, the worker sought further treatment from his physician for right elbow pain. The doctor’s report notes right elbow tenderness on the medial epicondyle. The report also notes a new employer and states that the worker “re-injured right elbow due to lifting heavy boxes”. Further physiotherapy was recommended and the worker was restricted to not lifting more than 10 pounds. The worker contacted the WCB adjudicator indicating that he was still having symptoms in his right elbow and forearm region.

According to the physiotherapist’s reports, the worker was assessed on July 17, 2008 with a recommendation for 2 to 3 treatments per week over a 4 to 8 week period. In the physiotherapist’s discharge report dated November 20, 2008, it was noted that the worker’s last treatment occurred on October 7, 2008 and that as the worker had not returned since that date, he was discharged from physiotherapy. The report noted that as of October 7, 2008, the worker continued to suffer from right elbow pain and function and strength were improving slowly.

WCB Decisions:

On November 12, 2008, the worker contacted the WCB case manager and indicated that he has ongoing elbow pain and soreness. The WCB case manager advised the worker that the last physician’s report noted that the worker had re-injured his elbow and was working for a new employer, and that the doctor’s report from October 6, 2008 indicated that the worker would be able to return to work on October 14, 2008. According to the memo on file, the worker explained that the doctor was not correct; He had not had another accident at work and the new employer had let him go because he couldn’t work. The case manager asked the worker why his elbow had deteriorated from October 6, 2008 to October 30, 2008. The worker explained that his ongoing pain is related to the July 7, 2008 injury, and he didn’t know why his elbow was still a problem.

On December 29, 2008, the worker was advised that the WCB was unable to relate his current right elbow symptoms to his July 7, 2008 compensable injury. The adjudicator noted that the physiotherapist had discharged the worker from treatment on October 7, 2008; the doctor’s report of October 6, 2008 gave a return to work date of October 14, 2008; and the doctor’s report on October 30, 2008 noted a new employer and a new accident date of October 22, 2008.

On March 3, 2009, the worker requested that Review Office reconsider the adjudicator’s decision. In the Request for Review, the worker explained that he had only worked at the new job for one hour but he couldn’t do the lifting because his elbow and arm were injured. The worker explained that the doctor was incorrect in saying that he was hurt at the job.

In a decision dated March 5, 2009, Review Office denied further responsibility for the worker’s right elbow problems after October 14, 2008. The Review Office was of the view that the worker’s right elbow problems were no longer related to the July 7, 2008 injury noting that the worker was cleared by his physician to return to his regular duties by October 14, 2008; that the worker discontinued physiotherapy treatment on October 7, 2008; and that the worker reported to his physician on October 30, 2008 that he re-injured his right elbow due to lifting heavy boxes on October 22, 2008.

On March 17, 2009, the worker appealed Review Office’s decision to the Appeal Commission.

Appeal Commission Hearing on June 9, 2009:

At the hearing the worker explained to the panel that he continued to suffer from ongoing pain in October 2008 and that he had not had a new injury on October 22, 2008. He testified that he tried to go back to work during this time by contacting a placement agency. He testified that he was sent to a new employer where he discovered that the job involved lifting heavy boxes of meat. He advised the new employer that he couldn’t do the lifting and left without doing any work with the new employer.

The worker also testified that he stopped going to physiotherapy after October 7, 2008 because his elbow had started to improve and his physiotherapist had advised that he only had 2 more sessions that would be covered by the WCB. In addition, no MRI was ever performed.

Following the hearing, the appeal panel requested that arrangements be made for the worker to be assessed by an independent medical examiner. The worker was seen by an orthopaedic specialist who provided a report dated October 5, 2009, which was provided to the parties. The panel met to consider its decision on November 5, 2009.

Report of Orthopedic Specialist:

The orthopaedic specialist reviewed the file and provided an initial opinion prior to examining the worker. The specialist’s initial opinion was that the worker’s most probable diagnosis was persistent right medial epicondylitis caused by the cumulative stress associated with the worker’s July 7, 2008 work duties. The specialist notes that recurrence of this condition is common and return to activity should not occur too quickly. It was the specialist’s opinion that the decision to allow the worker to return to work was arbitrary and too short a time given that the last medical examination noted localized tenderness and restrictions of not lifting over 20 pounds and the last physiotherapy report referred to his condition on October 7, 2008 as making only slow improvement with palpable tenderness and only grade 4/5 in flexion, pronation and supination. According to the specialist, these findings would not be consistent with discharge from physiotherapy and return to work at that time.

In the specialist’s opinion, the medial epicondylitis had not healed and since this type of injury was prone to easy aggravation, it was more likely that during the two week period in October the worker’s injury had flared up because he had not fully recovered, rather than his having experienced a new injury. The specialist also noted that medical reports in March 2009 indicated ongoing problems in the medial aspect of the right elbow.

Following examination of the worker on September 21, 2009, the specialist’s opinion that the worker’s ongoing condition was likely caused by the work injury of July 7, 2008 remained the same; however, the diagnosis and prognosis changed. The specialist noted that the worker’s pain and tenderness was actually distal to the medial epicondylitis and that the worker suffered from an ulnar nerve irritation (ulnar neuritis) and there was evidence of ulnar nerve compression.

With respect to the cause of the ulnar neuritis, the specialist stated as follows:

With respect to etiology, previously I discussed the etiology of medial epicondylitis considered to be an accumulative trauma type of injury. The causation of an ulnar neuritis is a little more variable, likely having to do with some degree of predisposition of ulnar nerve compression in this anatomic area, brought into clinical relevance by the stretching and positioning of his arm during the prolonged overhead work, clearing the ice off of the pipes…

From the information available, the apparent ulnar neuritis and compression came on with the work duties of July 7, 2008 and for one reason or another, and some of this likely is related to a complex regional pain problem, did not subsequently resolve. There may have developed some degree of fibrotic scarring around the nerve, but this could only be identified at surgery….

Therefore, if the initial overhead activity over a number of hours was sustained for long enough and this man was somewhat of deficient musculature, to result in development of some fibrosis and scarring around the nerve, it could remain as a long term problem related to that…

His prognosis at this time is for continued pain and soft tissue disability without some type of intervention, change or long term restriction to sedentary activities.

The specialist also notes that at the examination, the worker explained what occurred when he attended at the second employer. The worker indicated that as soon as he got to the job site he was given work which was essentially the same as his previous work in terms of demand on his elbow and he indicated that he was completely unable to do it. The worker was firm that this did not actually involve another new injury, but simply a continuity of work he could not do related to his previous injury. The specialist concludes: “I find this the more likely scenario than him having actually recovered and then gone on to a new injury. From everything I have seen to this point, this was not the case.”

Conclusion:

The panel agrees with and adopts the conclusions of the orthopedic specialist that the worker’s ulnar neuritis is causally related to the worker’s job duties on July 7, 2008 and that the worker’s ongoing right elbow pain and disability subsequent to October 14, 2008 are related to the ulnar neuritis that had not resolved. The panel also accepts the worker’s evidence that he did not work when he attended at the new employer on October 22, 2008 and we find that there was no new accident at that time.

The panel therefore finds, on the balance of probabilities, that the worker’s ongoing elbow pain and disability subsequent to October 14, 2008 are related to the compensable July 7, 2008 injury. The appeal is allowed.