Decision #113/10 - Type: Workers Compensation

Preamble

The employer is appealing two decisions made by Review Office of the Workers Compensation Board ("WCB") on January 15, 2010 which determined that the worker's arm difficulties that occurred in April 2008 and March 2009 were related to her original compensable injury of November 29, 2007. The employer disagreed and an appeal was filed with the Appeal Commission. A hearing was held on October 7, 2010 to consider the two issues.

Issue

Whether or not the worker's arm difficulties in April 2008 are related to the November 29, 2007 compensable accident; and

Whether or not the worker's arm difficulties beyond March 11, 2009 are related to the November 29, 2007 compensable accident.

Decision

That the worker's arm difficulties in April 2008 are related to the November 29, 2007 compensable accident; and

That the worker's arm difficulties beyond March 11, 2009 are related to the November 29, 2007 compensable accident.

Decision: Unanimous

Background

On December 4, 2007, the worker reported to the WCB that she injured both elbows on November 29, 2007 from the following work related activity:

"I was moving the generator (100 lbs) onto a forklift, and it was in a tight spot, and the forklift operator couldn't get at it, so I pulled and yanked the generator and that’s when I hurt my elbows. I didn't feel pain right away, and I continued to work, at the end of the day, my arms were sore. After work it got worse. The next morning I went to crank the hose up at work, and I felt a lot of pain, then I reported the injury, I continued to work and I called my doctor and made an appointment…".

A doctor's first report dated December 3, 2007 documented painful medial epicondyles of both arms with a diagnosis of medial arm tendonitis bilaterally.

On December 5, 2007, the treating physiotherapist diagnosed the worker with lateral/medial tendinopathy - right epicondylitis and muscle strain, right more than left.

A December 10, 2007 progress report documented bilateral medial and lateral epicondylar tenderness. In early January 2007, the progress report noted bilateral medial epicondylar tenderness.

The worker's claim was accepted based on the diagnosis of bilateral tendonitis. On January 2, 2008, it was expected that the worker would return to modified duties at four hour shifts to start.

On January 22, 2008, the worker advised the WCB that she suffered a setback on January 17, 2008 when she was opening a door on a truck that was not closing properly. She first tried to open and close it while driving. She then pulled over to the side of the road and tried it a couple of more times. Since then she had pain and aching in both arms and difficulty sleeping. When seen by a physician on January 22, 2008, it was reported that the worker had severe tenderness with forearm and arm pain bilaterally.

On February 1, 2008, the treating physician noted pain of forearms/arms around elbows.

On February 5, 2008, the worker commenced a part-time job with the employer which involved desk work/sedentary duties.

On February 20, 2008, the worker was examined by a WCB medical advisor who noted, in part, "….[the worker] reports that her elbows are not painful, and on today's examination, lateral and/or medial epicondylosis in either elbow are not likely significant pain generators…" The medical advisor recommended further testing to rule out metabolic disorders associated with neuropathies/myopathies.

The WCB medical advisor reviewed the test results on March 10, 2008 which consisted of blood work, EMG and nerve conduction studies. In his opinion, the initial diagnosis to account for the worker's bilateral forearm pain was likely muscle strains. He stated that medial or lateral epicondylosis tendonitis was not likely playing a significant role as a pain generator. The test results did not provide evidence to substantiate a pathologic process that would account for the worker's reported upper limb symptoms. The medical advisor stated: "Notwithstanding that [the worker] may continue to report symptoms related to both forearms, in light of the February 20, 2007 (sic) examination findings, as well as the normal bloodwork and nerve conduction studies, there is no pathoanatomic diagnosis present that would require ongoing compensable restrictions. In this scenario, the treatment of choice would be mobilization of [the worker's] upper limbs."

A physiotherapy discharge report dated March 20, 2008 diagnosed the worker with left myofascial tenderness.

On March 26, 2008, the treating physician reported that the worker continued to complain of left arm pain and recommended restrictions of decreased lifting, repetitive movements, and pushing or pulling with the left arm/shoulder.

In a decision dated March 28, 2008, the worker was advised that in the opinion of the WCB there was no need for compensable restrictions relative to her compensable injury of November 29, 2007, diagnosed as muscle strains by a WCB medical advisor. This was based on the WCB medical advisor's findings of March 10, 2008.

On April 28, 2008, e-mail correspondence from the employer noted that the worker aggravated her existing arm strain by rolling up a sprayer hose. On April 28, 2008, the treating physician noted tenderness over the elbow epicondyles.

On May 1, 2008, the worker advised the WCB that she had been having pain on and off for quite some time (about 5 months) in both elbows and both upper arms. She thought the old injury was just aggravated. She said her doctor and union representative advised her to file a new claim.

The worker was referred to a sports medicine specialist at the request of the family physician. In a doctor's first report dated May 1, 2008, the diagnosis outlined was bilateral medial epicondylitis.

In a decision dated May 23, 2008, the worker was advised that no responsibility could be accepted for her April 23, 2008 bilateral elbow difficulties. The adjudicator stated:

"Medical information received indicates that you first sought treatment on April 25, 2008. A diagnosis of bilateral medial epicondylitis was provided. Medical evidence provided also indicates that the condition was pre-existing prior to the April 23, 2008 incident. Given that the condition was pre-existing and that you were continuing to seek treatment and receive restrictions for it, medical information from your November 29, 2007 claim was reviewed. Though an increase in pain was noted on the April 25, 2008 medical report, there was no difference in objective medical findings when compared to a March 26, 2008 medical report. Given that there has been no change in medical findings, WCB is unable to establish that you sustained further injury to both elbows as a result of the incident occurring on April 23, 2008."

On May 25, 2008, a physiotherapist initial report stated that the worker suffered a re-aggravation of pain in her arms bilaterally from pulling on a long hose at work. The diagnosis was left more than right medial epicondylitis, general arm myofascial pain.

On July 4, 2008, the worker's union representative appealed the WCB's decisions dated March 28, 2008 and May 23, 2008. He indicated that the only incongruity was the WCB medical advisor's diagnosis of muscle strains and that all other medical practitioners have made the diagnosis of bilateral medial epicondylitis/tendinopathy. He noted that the worker had maintained all along that her elbows were painful. On May 1, 2008, the sports medicine specialist's diagnosis was bilateral medial epicondylitis. The union representative indicated that a definitive diagnosis was not necessary to create entitlement to compensation benefits under the WCB Act. He submitted that the worker suffered a personal injury caused by an accident at work and the diagnosis had been consistent throughout with the exception of the WCB medical advisor. On a balance or probabilities, it was felt that the worker still suffered from the effects of her November 29, 2007 injury and that the April 23, 2008 workplace accident aggravated the same compensable condition. It was requested that the WCB accept ongoing responsibility for the worker's workplace injuries beyond March 28, 2008.

In a report dated June 26, 2008, the sports medicine specialist indicated that the worker had been diagnosed with bilateral medial epicondylitis/tendinopathy. He stated the mechanics of injury were consistent with the worker's symptoms and the duration of the symptoms. "Despite being assigned to do light duties she continued to do lifting and pulling. She had made a partial recovery, while on April 23, 2008 she experienced an increase of her symptoms while whipping a 50-foot hose. In my opinion, [the worker's] current difficulties are directly related to the November 29, 2007 injury and the April 23, 2008 injury."

On July 18, 2008, the WCB medical advisor who examined the worker in February 2008 indicated that based on the history and physical findings found during the exam, his conclusion was that the worker's primary pain generator did not involve her epicondyles. He stated that while the sports medicine specialist's report of June 26, 2008 documented different findings than those that were present at the time of the February 20, 2008 examination, his opinion regarding the compensable diagnosis was based on the documented history and physical findings, and was unchanged. In view of the difference of opinion, the WCB medical advisor recommended that the matter be referred to a WCB sports medicine consultant, for consideration of an updated call in examination.

On September 24, 2008, the worker was examined by a WCB sports medicine advisor and the diagnosis outlined was possible bilateral medial epicondylosis and bilateral nonspecific upper arm pain.

In notes to file dated November 10, 2008, the case manager advised the worker that her claims had been combined into a single claim and would be accepted as bilateral arm tendonopathy.

On November 14, 2008, the case manager wrote to the employer to advise that due to the consistent medical information and consistent complaints from the worker regarding her upper arm difficulties, there was sufficient evidence to establish an ongoing cause and effect relationship between the November 29, 2007 accident and her ongoing bilateral arm difficulties. The case manager noted that the worker had presented with bilateral upper arm difficulties since her accident at work on November 29, 2007. These difficulties had affected her arms in various degrees since then and developed on the activities she had been performing. Further aggravations came on April 23, 2008 and were again consistent with the earlier areas of injury.

A physiotherapy report dated November 13, 2008 diagnosed the worker with bilateral right, more than left, medial epicondylitis with mild signs of lateral epicondylitis on the left.

An MRI of the elbows dated July 30, 2008 showed no abnormality about the medial epicondyle and no excessive joint effusion or chondral abnormality.

On December 8, 2008, the worker advised the WCB that her left arm was improving but her right arm was still bothering her and the pain was going into her armpit again and felt like it did in March when she received physiotherapy treatment.

Physiotherapy progress reports were received at the WCB for treatments in January and February 2009. On March 3, 2009, the physiotherapist noted bilateral medial epicondylitis (tendinopathy) with a neck component.

On March 10, 2009, a WCB physiotherapy advisor noted that the cervical findings were not the WCB's responsibility. He noted that the worker had not worked for 5 months, yet grip strength was reduced and she reported a subjective increase in symptoms. He said the worker plateaued with respect to physiotherapy.

On March 11, 2009, the case manager advised the worker that he was unable to accept that her ongoing upper arm difficulties were related to the November 29, 2007 accident at work. This decision was based on recent medical information which noted an increase in symptoms as well as a new area of injury and the fact that the worker had not worked in almost five months.

On June 9, 2009, the worker's union representative appealed the above decision stating that the worker still suffered from the effects of her November 29, 2007 workplace injury. He submitted a May 28, 2009 letter from the treating physiotherapist which outlined the sequence of events that lead to the aggravation of the worker's compensable injury during the WCB approved treatment, up to and including the March 3, 2009 reassessment. Also submitted for consideration was a report from the treating sports medicine specialist which stated that in his opinion, it was possible for the worker to have an aggravation of her symptoms while increasing her physiotherapy. He stated that recurrent symptoms are common in this type of condition (bilateral medial epicondylitis).

On June 29, 2009, the case manager spoke with the treating physiotherapist. The physiotherapist noted that they tried doing some wall push-ups and the worker complained right away that this caused her triceps to hurt as well as her elbows. They stopped the exercise immediately.

On July 3, 2009, the case manager advised the worker that no change would be made to his previous decision. The case manager noted that he referred the file to a WCB medical advisor who was not able to find a causal relationship between the new complaints and the previous aggravations of the November 29, 2007 accident or the accepted diagnosis of the November 29, 2007 compensable injury. On July 7, 2009, the union representative appealed the case manager's decision to Review Office. He outlined the position that the worker still suffered from the effects of the November 29 workplace injury and that the treatment and examinations provided had aggravated the same compensable condition. It was also contended that there was no new neck component that the worker was relating to her compensable injury. Based on these factors, Review Office was asked to overturn the March 11, 2009 and July 3, 2009 decisions and to accept ongoing responsibility for wage loss benefits and medical treatment.

A submission was submitted by the employer's representative dated September 21, 2009. He stated that the decisions made on March 11 and July 3, 2009 should not be amended. He also appealed the case manager's decision of November 14, 2008 to accept responsibility for the worker's bilateral upper extremity problems.

A rebuttal submission was submitted by the union representative dated October 22, 2009 in regards to the employer's submission of September 21, 2009.

Prior to considering the worker's appeal, Review Office sought medical advice from a WCB senior medical advisor. On November 23, 2009, the medical advisor responded to questions posed by Review Office. In his opinion,

  • the November 29, 2007 workplace incident where the worker was assisting to unload a generator was a probable mild regional strain of the medial and lateral epicondyles of both arms.

  • with regard to the WCB examination of February 20, 2008, "…the only manifestations of ongoing effects of the 2007 workplace injury were some medial elbow pain. The symptomatic/subjective expression appeared to be somewhat different than are articulated in close temporal proximity to the event in question. There was a relative absence of physical findings at the time of [the WCB medical advisor's] examination".

  • the diagnosis following the April 23, 2008 work event was bilateral medial epicondylitis. This would have been the original diagnosis in relationship to the February (sic) 29, 2007 event. "In the interim, the worker appeared to have improved, when assessed by [the WCB medical advisor], and then there was a return of the original symptoms. Therefore, I would not state that this was a new injury, but a re-activation of the old injury. The findings that support this diagnosis are the regional tenderness, described as marked over the medial epicondyles, as well as pain on activation with pronation and flexion. These findings are different from those that were articulated by [the WCB medical advisor]."

  • the diagnosis of epicondylitis was typically clinical and was not based on MRI. The MRI can be considered a tool used to rule out other pathology as opposed to document medial epicondylar problems.

  • when the worker was seen in February 2009 by the sports medicine specialist, the worker "…was still having pain over the medial epicondylar area. She manifested active range of motion that was described as "okay". There was ongoing tenderness over the medial epicondyle on the right and left sides. The tenderness over the medial epicondyle would be considered the only manifestation of the 2007 workplace diagnosis of bilateral medial and lateral epicondylopathy. Apparently, only a medial epicondylopathy had remained. The only documentation to support my opinion would be regional tenderness over the medial epicondyle."

On January 15, 2010, Review Office determined that the worker's arm difficulties beyond March 11, 2009 are related to the November 29, 2007 injury. Review Office indicated that it accepted the opinion of the attending sports medicine physician dated June 2, 2009 and November 9, 2009 and the WCB sports medicine consultant's recent opinion. Review Office said it was evident that the worker's condition was such that it was easily aggravated by activity and determined that the worker was entitled to benefits beyond March 11, 2009.

Review Office further determined that the worker's arm difficulties in April 2008 were related to the November 29, 2007 incident. Review Office stated it was reasonable to accept on a balance of probabilities that the worker's bilateral arm conditions were aggravated by the return to work processes and by the increase in physiotherapy work hardening processes. It felt that the incident of April 23, 2008 was sufficient to have caused an aggravation and re-injury to the worker's compensable arm condition. On January 25, 2010, the employer's representative appealed Review Office's decisions to the Appeal Commission and a hearing was held on October 7, 2010.

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 section 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.

Employer’s submission:

A representative from the employer appeared at the hearing. In his written submission and again at the hearing, the employer representative reviewed physical findings set out in the medical reports and argued that the evidence did not support ongoing effects from the workplace accident. With respect to the first issue, it was submitted that there was no relation between the problems experienced in April 2008 and the compensable incident. In particular, the call-in findings of the WCB medical advisor on February 20, 2008 failed to reflect any ongoing discomfort in the elbows. This was despite the worker's allegation of increased forearm pain following the closing of a truck door and also increased pain in elbows after performing alternate modified duties. As there were no findings supportive of a diagnosis of epicondylitis, any continuity of symptomatology between November 2007 and April 2008 was broken.

With respect to difficulties beyond March 11, 2009, the WCB medical advisor's examination of February 20, 2008 was again relied upon to support that at that time, there were no clinical findings to support a diagnosis of bilateral medial epicondylitis. It was submitted that the subsequent call-in examination of September 24, 2008 also failed to confirm this diagnosis. With respect to aggravation caused by physiotherapy treatment it was argued that a physiotherapist would commonly cease any activity that caused a significant increase in symptomatology. It was therefore unlikely that an aggravation occurred. Further, regardless of any temporal aggravation, it was argued that the residual effects would not be prolonged as suggested in the case at hand. The initial diagnosis was that of a strain type injury, and the WCB sports medicine consultant tended to concur with this diagnosis. The sports medicine consultant then changed his diagnosis "midstream" to support a bilateral medial and lateral epicondylopathy, despite the total absence of any clinical findings supportive of this diagnosis during the call-in examinations. It was submitted that this was a disjointed opinion and ought not to be relied upon. Overall, in reviewing the medical findings, it was submitted that there was little in the way of objective findings and that the preponderance of findings were subjective in nature. The evidence did not support ongoing acceptance of the worker's claim.

Worker’s submission:

The worker appeared at the hearing accompanied by a union representative. The worker fully supported the WCB's decisions and submitted that due to the consistent medical information and consistent complaints from the worker, there was sufficient evidence to establish an ongoing cause and effect related to the November 29, 2007 compensable injury. It was also submitted that the incident of April 23, 2008 was sufficient to have caused an aggravation and re-injury to the worker's November 2007 compensable injury. On the second issue, it was noted that the fact that the worker continued to have arm difficulties on an ongoing basis was documented on file. It was evident from the file that the worker's condition was easily aggravated by activities. Overall, there was sufficient evidence on file to support that the worker's arm difficulties were related to the November 29, 2007 incident.

Analysis:

The issues before the panel are whether or not the worker's arm difficulties in April 2008 were related to the November 29, 2007 compensable accident and whether or not the worker's arm difficulties beyond March 11, 2009 were related to the November 29, 2007 compensable accident. For the employer’s appeal to be successful, we must find on a balance of probabilities that by those dates, the worker's arm condition had fully resolved and there was no aggravation of her previous compensable injury. For the reasons outlined below, we are not able to make that finding and therefore the appeal must fail.

At the hearing, the worker was present and available to answer questions from the panel. Unfortunately, several years have passed since the dates in question on this appeal and it was difficult for the worker to clearly recall the details regarding her condition. Accordingly, the panel relied primarily on the written record as evidence of the worker's condition at any particular time.

Although not able to precisely place when certain events occurred, the worker was, nevertheless, able to describe types of activities which tended to aggravate or increase the pain in her arms. Her evidence was that activities such as shoveling, sharpening a mower blade, doing a wall push-up, using a trigger gun at a spray wash, making her bed, and even opening a jar or pop bottle could cause pain to flare up. At one time, she was using a computer mouse at a non-ergonomic work station where the mouse was located on a lower surface and her elbow became extremely painful. The WCB files document the more significant aggravations which occurred when she was slamming a truck door with faulty hinges in January 2008 and later when she was handling a hose in April 2008. It is apparent to the panel that the worker's condition was such that it took very little activity to re-activate her symptoms.

After reviewing the medical evidence as a whole, the panel finds on a balance of probabilities that the worker suffered bilateral medial and lateral epicondylopathy while attempting to move a generator with her arms on November 29, 2007, and that her arm difficulties in April 2008 and March 2009 were related aggravations of the November 2007 injury. In coming to this conclusion, the panel relied on the following:

  • The panel accepts the November 23, 2009 analysis of the WCB senior medical advisor regarding the worker's condition. In particular, the panel notes that the analysis identifies the worker's initial injury as a "strain of the medial and lateral epicondyles" and characterizes the 2007 workplace diagnosis as a "bilateral medial and lateral epicondylopathy."
  • Contrary to the employer's submission, we see no inconsistency between an initial diagnosis of a strain of the epicondyles and an overall diagnosis of epicondylopathy.
  • The June 26, 2008 report of the sports medicine specialist also diagnoses a bilateral medial epicondylitis/tendinopathy and notes that the worker had only made a partial recovery.
  • The worker's evidence at the hearing was that very little activity was required to reactivate her condition.
  • The second call-in examination by a WCB medical advisor noted that a possible diagnosis was bilateral medial epicondylosis, with a non-classic presentation of the area of tenderness. In other words, it was acknowledged that the diagnosis may be epicondylosis.
  • When combined with the opinions of the WCB senior medical advisor and the sports medicine specialist, the panel is satisfied on a balance of probabilities that a bilateral medial and lateral epicondylopathy is the compensable diagnosis.
  • The lack of symptoms at the first call-in examination does not necessarily mean that the worker was entirely recovered from the November 2007 workplace injury. While her condition may have been improved at that time, subsequent events demonstrate that she continued to be susceptible to re-activation of the injury.

Overall, the panel is of the view that the worker's medical history reflects a fluctuating condition which may at times have improved, but was not fully healed. We therefore find that the worker's arm difficulties in April 2008 and beyond March 11, 2009 are related to the November 29, 2007 compensable accident. The employer's appeal is 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 1st day of December, 2010

Back