The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was no cause and effect relationship between her current symptoms and her compensable injury of right lateral epicondylitis. An appeal panel hearing was held on January 26, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 15, 2009.

Decision

That the worker is entitled to wage loss benefits beyond May 15, 2009.

Background

The worker filed a claim with the WCB for right forearm/elbow difficulties that she related to the repetitive nature of her job duties as a nurse's aide. X-rays taken of the right elbow on November 12, 2008 revealed no acute bone or joint abnormalities. On November 13, 2008 the claim for compensation was accepted based on the diagnosis of right lateral epicondylitis and wage loss benefits were paid.

The worker was assessed on December 9, 2008 by a rheumatologist at the request of the family physician. He diagnosed right lateral epicondylitis, and expressed the opinion that she was unable to return to her work as a nurse’s aide.

When seen for examination on December 29, 2008, the treating family physician reported no improvement in the worker's condition. On January 8, 2009, the treating physiotherapist advised the WCB that the worker's injury was not healing as it should, and that the worker reported pain in the tricep of her elbow.

On January 12, 2009, a WCB medical advisor saw the worker for an assessment of her right arm. The worker reported no pain free days since the September 12, 2008 injury, and that her right elbow pain was increased with heavy lifting, swinging her arms while walking and activities which required supination against resistance or pushing. The WCB medical advisor concluded that the likely diagnosis for the worker's reported right lateral elbow pain was right lateral epicondylosis. While he was uncertain as to the diagnosis for the worker's posterior elbow pain, right triceps tendinosis was a possible diagnosis considering the mechanism of injury, which included forceful pushing and pulling during her typical workplace activities. Current work restrictions were outlined and it was suggested that the worker continue to work her modified hours and duties until the results of a scheduled MRI were on file.

The MRI report of January 26, 2009 noted that the worker reported right elbow pain and pain over the lateral epicondyle and olecranon. The results revealed no abnormality within the medial and lateral epicondyle and there was no soft tissue abnormality in the area of indicated concern.

In a progress report dated February 5, 2009, the treating sports medicine physician noted "better lateral epicondylitis" but questioned an ulnar entrapment. In a letter referring the worker to a neurologist he noted that while there had been improvement to the lateral pain following an injection to the lateral epicondyle, the worker was now complaining of medial aspect elbow pain.

On February 6, 2009, a WCB medical advisor reviewed the MRI results, and concluded there was no change to the compensable diagnosis. Restrictions remained in place of no lifting greater than 30 pounds, no forceful repetitive grasping, no forceful/repetitive push/pull, and no contact with clients who may physically resist care.

The worker had nerve conduction studies performed on March 16, 2009 to examine for an ulnar neuropathy at the right elbow. The results showed a normal study. There was no evidence for a medial neuropathy at the wrist or definite evidence for a cervical radiculopathy on the right. A specialist in neuromuscular medicine noted tenderness over the lateral and medial epicondyle and the right ulnar nerve. While there was no definite evidence for an ulnar neuropathy at the right elbow, he noted that “the nerve is vulnerable to compression or stretching at this site.” He discussed with the worker possible diagnoses including medial and lateral epicondylopathy and possible ulnar nerve irritation at the right elbow.

A physiotherapy discharge assessment dated April 8, 2009 reported that "tennis elbow has resolved and now presents as intermittent aggravation of ulnar nerve."

On April 9, 2009, the treating sports medicine physician reported the right medial epicondyle was sore and the right lateral epicondyle was less irritable. It was reported that the worker should continue with modified duties and her restrictions become permanent.

On April 28, 2009, a WCB medical advisor responded to questions from a case manager as follows:

"…based on i) the January 12, 2009 call-in examination, ii) the normal January 26, 2009 right elbow MRI, iii) the normal March 12, 2009 right upper limb electrophysiologic examination, iv) the report of the treating physiotherapist stating that [the worker's] tennis elbow (lateral epicondylitis) had resolved and v) the absence of a probable pathoanatomic diagnosis to account for [the worker's] right medial/posterior elbow symptoms in relation to the September 12, 2009 CI [compensable injury], it is concluded that there is no longer a relationship between the September 12, 2009 CI (sic) and [the worker's] reported right elbow symptoms, which are deemed to be non-specific in nature."

The medical advisor indicated that the worker had materially recovered from her work-related right lateral epicondylosis and that her non-specific right elbow symptoms were not likely related to the compensable injury. Workplace restrictions were no longer required in relation to the worker's reported right elbow symptoms as a result of the September 12, 2008 CI. The worker was therefore advised that no responsibility for treatment or time loss from work after May 15, 2009 would be accepted by the WCB as a relationship between her original workplace injury in September 2008 and her current difficulties with her elbow could not be established.

In a report dated August 18, 2009 the neuromuscular medicine specialist found no evidence for an ulnar neuropathy at the right elbow, but moderate lateral epicondylopathy at the right elbow, mild right medial epicondylopathy and mild lateral epicondylopathy at the left elbow. He noted that following a three week return to work in July 2009 the worker experienced daily pain in the forearm and elbow region.

On November 26, 2009, a union representative wrote to the WCB to advise that the worker continued to have difficulties with chronic lateral epicondylitis and forearm flexor and extensor strain related to her original compensable injury. The medical reports of August 18, 2009 from the neuromuscular medicine specialist and September 16, 2009 from the worker’s sports medicine physician were submitted in support of the position that the worker continued to have a loss of earning capacity and had not recovered from the effects of her workplace injury.

On December 10, 2009, a WCB medical advisor reviewed the additional information at the request of primary adjudication. He remained of the opinion that the worker had recovered from her September 12, 2008 work related right lateral epicondylosis. He noted that the new medical information reported findings consistent with a current diagnosis of right lateral epicondylopathy. He stated that the additional diagnoses outlined in these reports were right medial epicondylopathy and left lateral epicondylopathy and forearm flexor and extensor strains, based on subjective reports of pain and tenderness rather than any demonstrable structural pathology in the worker's upper limbs. The updated reports indicated no impairment in terms of reduced range of motion, reduced power or abnormal sensation in the worker's upper limbs. He therefore stated that, "to the extent that [the worker] currently has right lateral epicondylopathy, (and any combination of the above mentioned additional current diagnoses) it is unlikely that the current diagnoses are related to the September 12, 2008 workplace accident. Rather, and particularly in light of [the worker's] absence from repetitive forceful loading in the workplace, it is more likely that [the worker's] current reported right (and left) elbow symptoms are related to grasping involved in day to day activity”.

On December 17, 2009, the worker was advised that following a review of the new information in consultation with a WCB medical advisor, no change would be made to the previous WCB decision.

On April 20, 2010, the case was considered by Review Office based on submissions by the worker's union representative dated January 28, 2010 and April 12, 2010. Review Office concluded that a cause and effect relationship between the worker's current symptoms and the compensable injury of right lateral epicondylitis could not be established and that the worker was not entitled to benefits and services beyond May 15, 2009. In making its decision, Review Office referred to the opinions of the WCB medical advisor in April and December 2009 and to the physiotherapy discharge report of May 22, 2009 which reported that the worker "currently presents as ulnar nerve related pain. Tennis elbow resolved. Medial pain first noted January 5, 2009.”

On June 15, 2010, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on January 26, 2011. On January 18, 2011, the union representative submitted to the Appeal Commission a report from the treating sports medicine physician dated January 3, 2011.

Following discussion of the case, the appeal panel requested that the worker be assessed by an independent medical examiner specializing in neurology with regard to her right arm complaints. An examination report dated March 9, 2011 was obtained and forwarded to the interested parties for comment. On April 8, 2011, the appeal panel met further to discuss the case and render its final decision.

Reasons

Chairperson Dangerfield and Commissioner Walker:

The worker attended at the hearing and was accompanied by a union representative. The employer attended together with a representative. Both the worker and the employer made submissions and responded fully to questions from the panel members.

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act ("the WCA"), regulations and policies of the Board of Directors. Section 39 of the WCA provides that where an injury to a worker results in a loss of earning capacity, wage loss benefits are payable until the loss of earning capacity ends.

The Issues

The worker argued before this panel that she had not recovered from the September 2008 compensable injury when her benefits were terminated on May 15, 2009. The employer submitted that wage loss benefits were properly terminated as the worker had recovered from the condition of lateral epicondylitis which was the accepted diagnosis, and that her ongoing symptoms were unrelated to the compensable injury.

For the worker to be successful the majority of the panel must be satisfied that the compensable injury of September 12, 2008 contributed to a material degree to her loss of earning capacity after May 15, 2009.

After having reviewed all of the evidence before us, we find on a balance of probabilities that the worker had not recovered from the effects of her workplace injury by May 15, 2009 and her compensable injury contributed to a material degree to her loss of earning capacity after that date.

Analysis

The worker had been employed in the same facility for over twenty years as a health care aide, working with patients who required a high degree of care. At the time of her injury she was working full time. When she first returned to work in December 2008 following her compensable injury, the worker did so on a graduated basis with reduced hours and modified duties (3 hours/day, 5 days/week), as her arm continued to be painful. Her typical duties prior to her injury included feeding, washing, dressing and positioning patients. She changed bedding, cleaned patient rooms, carried food to their rooms and pushed them in wheelchairs. Washing and dressing patients would require her to turn or push them, and pull their pants and socks up. In her evidence the worker described the effort required to pull tensor stockings on patient’s feet. Her modified duties consisted of lighter duties such as hair care, nail care, tooth care, shaving and tidying up rooms.

When the worker’s benefits were terminated in May 2009 she was still on a graduated return to work with modified duties. She then ceased working but was temporarily accommodated in July for three weeks with light duties and reduced hours. She was then unable to work until December 7, 2009 when she returned with restrictions. She began working modified duties 3 hours per day, 4 days per week with the intention of reaching full capacity in a six week period. By May 12, 2010 she was advised by her treating physician that she could return to full duties on May 15, 2010 and she was accommodated in a 0.8 position.

The worker was encouraged by her physicians to increase her duties, however her evidence was that as she did so on each return to work her symptoms were exacerbated. The worker is right hand dominant, and because of her injury it became necessary to use her left arm more frequently. In approximately July or August 2009 the worker started to experience pain in her left arm as well. At the date of the hearing she was still unable to grasp or hold anything in her right hand. The worker’s evidence was that she continued to have an ache in her right arm in the area of her ulnar nerve if she puts too much pressure on it. The arm gets fatigued more quickly, however both the tennis elbow and the golf elbow had, at the time of the hearing, resolved. In order to manage the condition the worker wears bands at work every day and an arm brace at night. She does home exercises with weights and applies both heat and ice. She has purchased a TENS machine for home use and also applies an anti-inflammatory cream.

The worker had previously submitted a claim for an injury to her right arm in 2002 which she described as right elbow tendinitis. Since then she would get tennis elbow intermittently, approximately two times per year, with symptoms lasting from several days to two weeks. In her evidence before this panel the worker stated in reference to her September 12, 2008 compensable injury:

“This time was different and I said it right from - - when I first started to go see my own doctor, I told him I’ve had epicondylitis before. This is different. It hurts different . . . it felt like I had a toothache in my bone, in my arm . . . . I mean it was epicondylitis, but not just epicondylitis because it hurt too much to be just one thing…I couldn’t tell you whether the pain was more at the back or more at the front. It just hurt. And as time went by and it did settle down, that’s when I started to feel specific areas of pain, but it was so painful in the beginning that I couldn’t tell you specifically anything”.

The union representative submitted a medical report dated January 3, 2011 from the worker’s sports medicine physician which referenced the worker as having an ongoing chronic condition related to her work duties. He diagnosed ulnar entrapment at the elbow and chronic forearm strain with lateral greater than medial epicondylitis involving her right arm. He concluded that “It is not my view that this patient had fully recovered from the effects of her injury when her benefits were terminated by the WCB”. That conclusion is consistent with his progress notes of May 14, 2009 reporting “the patient is not recovered – chronic medial and lateral epicondylitis” and May 28, 2009 reporting intermittent soreness in the lateral forearm and pain in the medial epicondyle, and recommending that the worker continue light duties. In a medical report dated September 16, 2009 he referenced the worker’s chronic lateral epicondylitis and forearm flexor and extensor strain, concluding that she had not recovered from the effects of her workplace injury. He noted that such problems are recalcitrant to treatment and people rarely recover completely.

The employer argued that the March 16, 2009 nerve conduction studies and the January 26, 2009 MRI were normal and that ulnar neuropathy had been ruled out. However, in his report of March 16, 2009 the neuromuscular specialist did note that the worker’s ulnar nerve was vulnerable to compression. This was consistent with the physiotherapist’s report of April 8, 2009 which noted that “tennis elbow had resolved”, but referenced medial pain having been reported on January 5, 2009 which was still persisting and also ongoing ulnar nerve related pain. Notwithstanding the absence of significant abnormalities detected on the studies, the worker continued to have subjective complaints of pain.

Subsequent to the hearing the panel arranged an independent medical exam with a neurologist. Following an examination of the worker the neurologist submitted a report dated March 9, 2011 in which he diagnosed the worker with right lateral more than medial epicondylitis/tendonitis. He noted that there may be a mild irritation of the ulnar nerve at the elbow, despite normal tests and that:

“. . . her history of elbow pain indicates a repetitive strain injury. I note that there is some dispute over whether it is just lateral pain or also medial pain initially. I don’t think this distinction is significant. At any rate I suspect it was both, as the mechanism of injury is similar, that is due to repetitive strain.”

He concluded that the worker “had both the lateral and medial epicondylitis/tendonitis as the initial problem in 2008. . . Although the emphasis was on the lateral aspect initially, the medial was noted a few months later. It is hard to conceive how the medial could have been involved as a new problem without a specific new injury”.

The employer submitted to the panel that the neurologist’s diagnosis ought to be ascribed less weight than those provided immediately post injury and that all of the medical evidence demonstrates that the lateral epicondylitis had resolved by May 9, 2009. The employer argued that the first report of medial elbow pain was not made by the worker until January 9, 2009, four months post accident. The worker’s evidence before the panel was that from the outset the pain she was experiencing was different from her previous bouts with epicondylitis. She described the pain as being in the “whole joint”.

The medical reports are themselves supportive of a reporting by the worker of an injury that was not limited exclusively to the region of the lateral epicondyle. In medical reports from the treating family physician dated December 12 and December 29, 2008 reference is made to the area of injury as being the worker’s “right arm”. On December 3, 2008 he noted a “sore elbow with pain over lateral epicondyle and discomfort at tricep”. On December 15, 2008 the treating sports medicine physician noted that the worker was “complaining of sore right elbow”. A physiotherapist’s report of November 13, 2008 reports the area of injury as being the “right forearm/elbow” with subjective complaints of a “general ache to the right elbow”. The family physician’s reports of October 14 and 27, 2008 reference the area of injury as being the “right wrist/elbow”. He recorded the patient’s subjective complaints on September 18, 2008 as a “sore right elbow”. All of this was consistent with the worker’s incident report of October 29, 2008 reporting an injury to her right forearm and elbow and with her evidence before this panel that she experienced pain in the whole elbow joint.

The initial diagnosis of the worker’s condition was not definitive. While the compensable diagnosis was that of right lateral epicondylitis, neither the worker’s treating physicians nor the WCB’s own medical advisor could identify her condition with certainty. While her diagnosis may have been unclear, the worker’s complaints of pain in her arm were consistent throughout. The reports from her treating physicians demonstrate that she experienced pain without interruption since September 12, 2008 and was continuing to experience pain in her right elbow when her benefits were terminated in May 2009. Her sports medicine physician stated in his September 16, 2009 report that she had not yet recovered from her workplace injury. In his January 3, 2011 report he expressed the view that her work activities requiring her to repetitively grip and pull could cause her injury, and that she had not fully recovered from the effects of her injury when her benefits were terminated.

We think it was significant that both her family physician and the sports medicine physician noted minimal improvement in her condition in late December 2008 when she was commencing a graduated return to work. Although her duties were modified, the worker was encouraged to work toward increasing her workload. The nature of her work necessitated an increased use of her upper extremities. As she increased her activity, however, her evidence was that her pain increased. Although the severity of the pain from the lateral epicondylitis subsided somewhat, in particular after receiving an injection in the lateral epicondyle on December 10, 2008, she was then able to identify pain and tenderness not merely in the “whole joint” but more specifically in the medial epicondyle and in the area of the ulnar nerve. As reported by the neuromuscular specialist in August 2009, following a three week return to work in July 2009 the worker had experienced daily pain in the forearm and elbow region. It was those symptoms which caused her to cease working entirely by August 2009, and which have since prevented her from returning to the full time duties that she had prior to her compensable injury.

We have placed great weight on not only the reports of the sports medicine physician evidencing a lack of recovery, but also the independent neurologist’s report of March 9, 2011 confirming that the distinction between the complaints of medial versus lateral pain is, in this case, not significant. We find on a balance of probabilities, given the continuity of symptoms, that the worker suffered an injury to her elbow on September 12, 2008 and that she continued to suffer from the effects of that injury when her benefits were terminated in May 2009.

The appeal is therefore allowed.

Panel Members

K. Dangerfield, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 3rd day of June, 2011

Commissioner's Dissent

In assessing this medical report against the other evidence on the file, I have ultimately chosen to place little weight on this report for the following reasons:

• With respect to the worker's right lateral elbow conditions, the independent medical examiner appears to have failed to consider the successful treatment of the condition (confirmed by more than one healthcare practitioner), the lack of work-related stressors from that point forward, and an explanation for its reappearance months later, or a consideration of work versus non-work-related etiologies for the later appearance of the condition.
• With respect to the worker's right medial elbow conditions, the independent medical examiner has now introduced a causal connection between this particular (and present) condition and the original workplace injury for the first time, even after recognizing that it was not noted by medical practitioners until a few months after the September 2008 workplace injury. The examiner's suggestion that "It is hard to conceive how the medial could have been involved as a new problem without a specific new injury" again does not deal with the real and significant passage of time until symptoms are first reported, and seems to suggest "What else could it be from?" This is not the test normally used in our enquiry model; in my view, it is our responsibility to establish, on a positive basis and on a balance of probabilities, that there is a causal connection between a particular medical condition and a particular set of job duties. It is an evidence-based model, where a significant delay in the onset or report of symptoms will often be a major determinant in establishing a causal relationship. The failure to establish a non-work related alternate cause does not mean that a medical condition therefore must have come from the job, simply because of a temporal relationship.
• The independent examiner is also silent as to the multiplicity of left elbow/upper extremity conditions that have become more prominent on the file with the passage of time in terms of assessing other possible etiologies for the worker's right upper extremity medical conditions. This again is especially problematic given the absence of significant (or any contributions) from ongoing work-related job duties at the time of these later complaints.

Based on these findings, I have concluded that the worker's ongoing right upper extremity complaints after May 15, 2009 are not related to the worker's September 2008 compensable injury, and I would therefore deny her appeal.

A. Finkel

Commissioner

Signed at Winnipeg, this 2^nd day of June, 2011.