The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker suffered an injury to his right elbow in a work related accident. His claim for compensation was accepted and the Workers Compensation Board ("WCB") paid the worker benefits to October 9, 2009, when it was determined that he could return to his pre-accident employment with no restrictions. The decision was confirmed by the Review Office on March 11, 2010. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on January 18, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond October 9, 2009.

Decision

That the worker is entitled to wage loss benefits beyond October 9, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right elbow injury that occurred at work on November 2, 2007 when he tossed a 7/8 inch wrench 10 feet into the air as a result of which his arm snapped upwards at the right elbow.

On December 14, 2007, the worker advised a WCB adjudicator that around 11:00 a.m. on November 2, 2007, he was requested to toss a 7/8 wrench about 10 feet in the air to his foreman who was in the paint box fixing the fresh air vent. He immediately felt his arm snap at the elbow. He thought he possibly overextended his elbow. The worker indicated that he finished his shift and later that day he sought medical attention at a clinic but was unable to get in. His elbow caused him discomfort over the weekend. On November 5, 2007 he saw a doctor at the hospital and had tenderness over the outside of his elbow. He had full range of motion. X-rays were taken and a spur was seen. He was diagnosed with a fracture and was prescribed T3's and told to avoid using his arm. He was told he could return to work on the same day.

The worker indicated that he continued to work with discomfort and went to a medical facility on November 25 where he was diagnosed with bursitis/tendonitis. He had limited range of motion and was referred to an orthopaedic specialist. He was told to refrain from using his right arm and x-rays were taken.

The worker indicated that his last day at work was on December 10, 2007. He was experiencing so much difficulty with his elbow that he could no longer work. He was unable to raise his arm and could not brace or push down. Within his body range, he was able to move his arm. The top of his forearm was cold and he felt pain in his fingers. The middle and ring finger felt like the tendons were pulling from underneath his forearm. He felt like he was losing motion in his fingers.

On December 11, 2007 he again saw a doctor and had swelling and numbness of the right arm and hand. He had little movement and strength in his right arm. He was authorized 3 weeks off work while awaiting an MRI. His workplace did not have light duties consistent with his restrictions. The diagnosis rendered by the treating physician was a crack fracture of the right olecranon.

Medical information confirmed that the worker sought medical treatment on November 5, 2007 with objective findings of pinpoint tenderness over the olecranon with full range of motion. The diagnosis rendered by the treating physician was a crack fracture of the right olecranon.

An x-ray report of the right elbow dated November 5, 2007 stated, "An olecranon spur is present. There is a lucency through the spur and this may represent a fracture of the spur. No other bony abnormality is demonstrated."

On November 25, 2007, a different physician reported right elbow tenderness. The diagnosis outlined was right elbow tendonitis/bursitis.

The worker was seen at an emergency facility on November 25, 2007. The diagnosis was triceps tender calcification.

On December 5, 2007, the treating physician stated:

"…He threw a wrench about a month ago and felt a sudden crunching pain and some feeling of something breaking at the elbow posteriorly. Since then his extension of the elbow is weak and painful over the olecranon process. The olecranon process is also tender. Sometimes the pain comes down to the forearm, but it doesn't appear to be ulnar nerve type of pain, although some pain in the fourth and fifth digits examination of the ulnar nerve does not show any subluxation of the nerve or any localized abnormality at the elbow. However, he has tenderness over the inversion of the triceps and a prominent olecranon process and also a tender olecranon bursa. This seems to interfere with his work so we will arrange for an MRI first to check regarding the triceps tendon where there is a partial rupture here, whether it needs reinforcement and at the same time remove the prominent olecranon process and the bursa."

An MRI of the right elbow dated December 28, 2007 was compared with a radiograph taken on November 2, 2007. The results were outlined as follows:

"The findings may be secondary to a very minimal olecranon bursitis. There is bony enthesophyte arising from the olecranon at the triceps tendon attachment and this is in keeping with the finding on the radiograph. No evidence of triceps tendon rupture or tendonitis are seen."

On January 15, 2008, the adjudicator noted in a memo to file that she discussed the case with a WCB medical advisor. The medical advisor was of the opinion that the diagnosis was a fractured olecranon spur, which was consistent with the mechanism of injury and original x-ray. It was felt that surgery may not be warranted at this time and that treatment was similar to tendonitis. On January 15, 2008, the worker was advised that the WCB was accepting his claim and that he was entitled to wage loss benefits.

On January 22, 2008, the case manager noted that the worker returned to modified duties where he did not have to do any of the heavy lifting and repetitive motion which had been aggravating his right elbow. He noted that the accident employer was able to modify the job to the extent that the worker could work full time and not experience any wage loss.

On May 5, 2008, the treating surgeon wrote the WCB to advise that the worker was apparently asymptomatic and going back to work and surgery was not being performed.

In a consultation report dated November 28, 2008, the treating surgeon noted that the worker had complaints in relation to the olecranon bursa and prominence of the olecranon process.

"The swelling is intermittent. Some days it is prominent and some days not but it is painful according to him. The range of movement of the elbow is normal. The olecranon process has an exostosis protruding. This bony prominence makes the bursa further irritated. Apparently he has to lean on his elbow when he has to move the trailers. He thinks it could be work related….this would need excision of the bursa also and also the exostosis of the olecranon underneath it."

In claim notes dated December 8, 2008, a WCB orthopaedic consultant stated "the first report of the accident by Dr. [name] on 6 November, 2007, indicates an injury and possible crack fracture of the olecranon. The proposed surgery is appropriate and related to the CI [compensable injury]."

On December 16, 2008, the worker told his case manager that he missed approximately 10 hours of work over the last six months due to ongoing pain in his right arm and pinky finger.

An operative report showed that the worker had surgery on February 6, 2009. The pre-operative and post-operative diagnosis outlined was exostosis olecranon with associated bursitis.

On March 2, 2009, the worker advised the WCB that his arm was 100% worse than before having surgery. He said the doctor removed the whole end of his elbow and when he moves his arm, it feels like the tendons are almost tearing inside. He also gets a shock down his arm and then it goes numb.

On May 7, 2009, a WCB medical advisor outlined the opinion that the current diagnosis was post-operative pain from the right elbow operation and numbness in the right little finger. The numbness appeared to predate the surgery and was unlikely directly related to the surgery but may be related to the initial injury. The etiology of the numbness was presently not clear and the etiology of the pain in the right elbow was also not entirely clear; however, it was likely related to the performed surgery. The medical advisor indicated that a medical report on file dated February 25, 2009 indicated normal range of motion and no abnormalities of healing from the surgery suggesting that any current impairment was likely secondary to pain. He said it was not clear whether the numbness was causing any impairment.

The worker was seen by a different orthopaedic surgeon for a second opinion. In a report dated May 21, 2009, the surgeon stated,

"Right elbow surgery was done February 6, 2009. He complains of a lot of pain now with numbness in his right fifth finger. He had numbness in this same finger for five months, however, preoperatively which suggested a pre-existing cubital tunnel syndrome. The surgery also does not pass through any territory occupied by the ulnar nerve…x-ray looks normal. The spur is perfectly excised. No evidence of osteomyelitis."

The surgeon arranged for the worker to undergo testing which included nerve conduction studies and to undergo physiotherapy for strengthening and maintenance of motion.

On June 22, 2009, a WCB medical advisor outlined the opinion that the mechanism of injury would not likely result in injury to the ulnar nerve. He said the medical information currently on file did not substantiate a likely relationship between the current symptoms in the right arm and the workplace injury of 2007 or the subsequent surgery performed.

Nerve conduction studies dated July 27, 2009 showed the following results: "This electrophysiologic study of the right upper extremity is normal distally at the wrist, at the elbow (across the scar) as well as more proximally (as per "P" responses)."

On August 24, 2009, the worker advised his case manager that his arm pain was getting much worse.

On September 24, 2009, the worker's right arm was examined by a WCB medical advisor. It was concluded from the examination that the current diagnosis was non-specific superficial pain of the posterior right elbow and surgical scar hypersensitivity. A likely structural cause to account for the pain was not found on the examination or in the medical evidence on file. The numbness, tingling and shooting pains in the right arm described by the worker could not be accounted for. The medical advisor stated that the initial diagnosis involved a likely fracture of an olecranon spur and the presence of this spur was considered a pre-existing condition related to the right elbow. Since a structural cause for the worker's current pain was not found and function of the right elbow/arm appeared to be normal, formal workplace restrictions in relation to the November 2, 2007 workplace injury was not recommended.

In a decision dated October 5, 2009, the worker was advised that based on the call-in examination findings, the WCB considered him to be able to return to his regular job with no restrictions and that the WCB would approve 8 physiotherapy treatments. Wage loss benefits would be paid to October 9, 2009 inclusive.

File records showed that the worker applied for long term disability benefits through his employer. On November 30, 2009, the WCB medical advisor indicated that the information on the disability form did not support the need to change the opinion provided at the time of his call-in examination.

On January 18, 2010, the worker had an MRI of the right elbow. Comparison studies were made of the MRI performed on December 28, 2007 and radiographs performed May 21, 2009. The impression outlined was:

• Post surgical changes at the posterior soft tissues;
• Tendinosis of the distal 2 cm of the triceps tendon with low grade partial tearing. No evidence of full thickness tear was visualized.

On January 28, 2010, the worker was referred to a doctor specializing in upper extremity traumas by the treating orthopaedic surgeon.

On February 26, 2010, a WCB medical advisor reviewed the file information and stated, "[the WCB medical advisor who examined the worker in September 2009] reports that function of the right elbow appears to be normal. The MRI findings would not change this opinion which was based on a thorough history and clinical exam."

In a decision by a WCB manager dated March 1, 2010, the worker was advised that the January 18 MRI and doctor's report of January 28, 2010, did not substantiate a change to his WCB benefit eligibility. "Specifically, while I can appreciate your reports of variable sensitivity of your right elbow, this appears to be exclusive to the superficial levels associated with the surgical incision (i.e. scar sensitivity). The medical evidence indicates a relative absence of structural joint dysfunction or significant tricep tendinosis."

On March 11, 2010, Review Office upheld the decision that the worker was not entitled to wage loss benefits beyond October 9, 2009. Review Office indicated in its decision that it was unable to accept the level of disability being contended by the worker in connection with the effects of the injury he sustained in November 2007. Review Office was of the opinion that the medical information (reports from the orthoapedic surgeon, nerve conduction studies, MRI results) provided no reasonable contraindication to a return to the duties that the worker was performing prior to his surgery. On July 14, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on January 18, 2011.

Following the hearing, the appeal panel requested and received additional information from the second orthopaedic surgeon in relation to the conditions in the worker's right elbow. The surgeon's report was forwarded to the interested parties for comment. On March 1, 2011, the panel met further to discuss the case and rendered its final decision.

Reasons

In dealing with this appeal, the panel obtained a report from the worker's second orthopedic surgeon which identified three conditions affecting the worker's right arm. The second orthopedic surgeon opined that the worker has a partial triceps tendon rupture with no retraction, the etiology of which is from the November 2, 2007 workplace jury. The panel has reviewed the mechanism of injury and agrees that the tendon rupture is causally related to the workplace injury. The panel accepts this diagnosis.

The worker's second orthopedic surgeon notes that the worker also suffered from olecranon bursitis which he considered related to the worker's employment. A review of the file shows that this condition was noted by the attending orthopedic surgeon in a report dated December 5, 2007. The panel note that on December 8, 2008, a WCB orthopaedic consultant reviewed the file and noted the possible crack fracture of the olecranon, for which he was prepared to authorize surgery, as a condition related to the compensable injury. The panel therefore finds that the condition is related to the workplace injury.

The third condition noted by the second orthopedic surgeon is cubital tunnel syndrome which he considered to be related to the workplace accident. The panel does not agree with this opinion. The panel prefers the opinion of the WCB orthopedic consultant noted in a memo dated November 3, 2010. The orthopedic consultant wrote:

"the present condition has developed since the WCB call-in examination. The ulnar neuropathy is probably related to enthysopathy of the bones at the elbow, a progressive condition which is not related to trauma. Small spurs develop over time at the bone ends and irritate the adjacent soft tissues."

In support of our finding, the panel notes that nerve conduction studies performed on July 27, 2009 showed the right radial, median and ulnar sensory conductions were normal at the wrist. Right ulnar sensory conductions across the wrist were also normal. Median and ulnar motor response were normal at the wrist and elbow. Similarly, there were no neurological findings in respect of this condition at the WCB medical call-in examination.

The worker's appeal is granted. The worker is entitled to wage loss benefits beyond October 9, 2009 given our findings that additional medical diagnoses have been considered to be compensable as a consequence of our decision. The panel refers the case to the WCB to determine the amount and duration of wage loss benefits owed to the worker beyond that date.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of March, 2011