The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that there was no cause effect relationship between his left medial elbow/forearm symptoms and the August 1, 2007 workplace injury to the left ulnar nerve.

A hearing was held August 28, 2012 to consider the matter.

Issue

Whether or not the worker's current left medial elbow/forearm symptoms are related to the August 1, 2007 compensable injury.

Decision

That the worker's current left medial elbow/forearm symptoms are related to the August 1, 2007 compensable injury.

Decision: Unanimous

Background

The worker filed a claim with the WCB on September 27, 2007 for ongoing left elbow pain that he related to his employment activities as a truck driver. The worker stated:

Ongoing injury over time. I'm a truck driver…and I've been a truck driver for 8 ½ to 9 years. Turning the steering wheel repetitively, and having my left elbow sitting on the arm rest/door in the truck. I was having left elbow pain, but I thought this was from my left wrist injury. I saw Dr. [name] in July 2007 because I thought it was from my wrist, he x-rayed my wrist and told me that everything in my wrist is fine and intact, ie two screws and metal plate, but told me he believes I have ulnar nerve damage to my left elbow."

Medical information consisted of nerve conduction studies taken July 30, 2007. The findings were described as follows: Left median nerve studies are normal. There is mild slowing in left ulnar motor conductions across the elbow consistent with left ulnar neuropathy.

On October 10, 2007, the worker's claim for compensation was denied by primary adjudication as it was felt that the evidence did not support the occurrence of an injury arising out of and in the course of the worker's employment. The decision to deny the claim was further confirmed by primary adjudication on April 15, 2008. The worker disagreed and an appeal was filed with Review Office.

In a decision dated June 25, 2008, Review Office indicated that it accepted the opinion of the worker's attending neurosurgeon that while the worker's work was not likely causative for his left elbow neuropathy, his habit of leaning on his elbow while driving had probably resulted in a worsening of his symptomatology. Review Office also solicited an opinion from a WCB medical advisor who concurred with the opinion of the treating neurosurgeon that workplace factors likely resulted in a prior ulnar nerve compression being symptomatic. Review Office concluded that the worker's claim was acceptable on the basis that his work activities resulted in a worsening of a pre-existing, non-compensable left ulnar neuropathy.

On September 26, 2008, an orthopaedic surgeon reported that the worker was suffering from left- sided ulnar nerve neuropathy and surgery was recommended in the form of an ulnar nerve transposition. This procedure was accepted by the WCB and the surgery was performed on February 3, 2009.

On September 30, 2009, the orthopaedic surgeon reported that the previous left ulnar nerve transposition was causing the worker pain and swelling around his elbow. A revision with submuscular transposition was recommended. On October 15, 2009, the worker underwent a revision ulnar nerve submuscular transposition of the left elbow.

On November 5, 2009, a WCB medical advisor documented to the file that he was approving the surgery recommended by the orthopaedic surgeon. He stated: "This is a revision surgery from the 1^st elbow surgery, in which the ulnar nerve is apparently now closer to the surface, is being consistently irritated."

In early November, the worker developed an infectious hematoma in his left elbow secondary to the October 15, 2009 surgery. As a result of the hematoma and swelling, the worker was admitted to hospital for treatment.

In a report dated December 9, 2009, the orthopaedic surgeon noted that at eight weeks post revision the worker was doing well and that the hematoma on the posterior aspect of his distal left arm had resolved.

On December 9, 2009, the worker commenced physiotherapy sessions. He continued to attend regularly two times per week.

In February, 2010, the WCB approved the worker for a compression sleeve to alleviate swelling in his forearm.

By report dated March 16, 2010, the treating physiotherapist noted that the worker continued to complain of intermittent "knotting" in his anterior forearm and that he was limited in what he could do.

On April 29, 2010, the worker was discharged from physiotherapy treatment. The physiotherapist reported that recovery was not satisfactory and that the worker continued to have subjective complaints of intermittent pain in the anterior forearm which was worse if he was not able to do his regular exercise program. Objective findings included painful resisted wrist pronation and flexion and grip fatigued on successive testing.

In a follow-up report dated June 14, 2010, the orthopaedic surgeon reported that the worker was doing pretty well with respect to his left ulnar nerve submuscular transposition. The worker had good range of motion and hardly any numbness in his fingers. The worker had some sensitivity of the scar. The surgeon indicated that the worker worked hard at physiotherapy and improved his strength. He was still weaker on the left side compared to the right side. It was felt no further follow-up was required.

On December 22, 2010, the worker was seen by a WCB physiotherapy consultant for the purposes of establishing a permanent partial impairment ("PPI") award. The consultant noted that the cosmetic impairment related to the compensable injury was 1%. Passive mobility of the left elbow and forearm was equal to the right and was considered to be normal. He stated there was no rateable impairment of the left ulnar nerve. It was concluded that the worker was entitled to a total PPI of 1%.

In a medical report dated May 25, 2011, a physician reported that the worker still complained of pain and ongoing problems in his left arm and was awaiting an MRI.

On June 2, 2011, the worker advised his WCB case manager that his symptoms flared up about four weeks ago for no apparent reason. He described numbness in his fingers and sensitivity to the cold. The worker reported that when his arm is down for a while (i.e. when walking) it became warm and swollen. It was sometimes difficult to put on his watch. He noticed a bulge a few inches above the wrist.

In a report dated July 4, 2011, the treating orthopaedic surgeon noted that the worker complained of some medial elbow pain for the last couple of months. The worker remembered one specific incident where he was putting on a pair of shorts and felt a snap on the inside of his elbow. The surgeon noted that the worker had full range of motion of his elbow and very mild if any numbness in the ulnar nerve distribution of the hand. The pain was all medial radiating down the forearm to the fingers. He had a positive Tinel's at the medial epicondyle. He had reasonably good strength at abduction of the fingers. The surgeon stated: "I am not exactly sure why [the worker] is complaining. He has also noted quite a bit of swelling in the forearm particularly independent position when walking. I think it would be unlikely for this to be a displacement of the nerve as it is buried under the muscle but I suppose it is a possibility." An MRI assessment was going to be arranged.

On July 20, 2011, the worker was advised by his WCB case manager that in her opinion, his claim for a recurrence in relation to his left elbow was not related to the original injury of August 1, 2007. The case manager based her decision on the WCB's physiotherapy consultant's PPI findings of December 22, 2010 and the report from the orthopaedic surgeon dated July 4, 2011.

In a physiotherapy report dated August 30, 2011, the treating physiotherapist outlined the view that the worker's subjective complaints and objective exam findings seemed to indicate that the worker was still experiencing symptoms and functional impairments secondary to the ulnar nerve injury and two transposition surgeries.

An MRI report of the left elbow dated September 4, 2011 noted a clinical history as follows: "Previous left ulnar submuscular transposition. Increased pain after feeling snap medial elbow." The MRI results were read as follows: "Some minor increase in signal intensity within the medial epicondyle, possibly related to the recent trauma. No other significant abnormalities are identified on the current study."

In a September 7, 2011 report, a physiatrist reported that he saw the worker for reassessment of symptoms possibly arising from left sided ulnar neuropathy. Nerve Conduction Studies ("NCS") demonstrated some residual slowing across the elbow segment which was not uncommon post surgical decompression and was not in and of itself a sign of ongoing nerve compression. He concluded his report by stating that he did not feel that the worker's current symptoms were due to pathology with the ulnar nerve.

In a follow-up report dated September 19, 2011, the hand surgeon noted that the worker described pulling and tearing in the forearm and that this may be related to the flexor pronator mass which was cut during the revision surgery. The surgeon indicated that he was not sure if surgery would be of help and he was referring the worker to physiotherapy to work on strengthening modalities.

On October 18, 2011, the worker was advised by his WCB case manager that her original decision of July 20, 2011 remained unchanged after reviewing the worker's submission of additional information related to his left elbow.

On December 7, 2011, the worker was seen by a WCB medical advisor for a call-in examination. The medical advisor concluded that there was an intact/lack of clinical pathology of the left ulnar nerve and flexor pronator musculature to account for the worker's left medial elbow/forearm symptoms. She concluded that the worker's left medial elbow/forearm symptoms were not likely based on ulnar nerve pathology.

On December 20, 2011, the worker was advised by his WCB case manager that she was unable to establish a cause and effect relationship between his left medial elbow/forearm symptoms and the compensable ulnar nerve injury. The decision was mainly based on the December 7, 2011 WCB medical advisor's examination findings.

On May 14, 2012, a worker advisor acting on the worker's behalf, requested Review Office to reconsider the case manager's decision that the worker's ongoing left elbow/forearm symptoms were not related to the August 1, 2007 compensable injury. The worker advisor stated that it was the worker's position that the treating orthopaedic surgeon had provided evidence to support that his ongoing left elbow difficulties were related to the second surgery, which was causally related to the 2007 compensable injury.

In a decision dated June 18, 2012, Review Office determined that there was no cause-effect relationship between the workers' left medial/forearm symptoms and the August 1, 2007 workplace injury. In reaching its decision, Review Office relied on specific reports from the worker's surgeon dated December 2009 and July 2011, the December 22, 2010 PPI examination, the September 4, 2011 MRI, the September 7, 2011 physiatrist's report and the December 2011 medical advisor's examination findings. On July 17, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission on the worker's behalf and a hearing was held on August 28, 2012.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the worker's orthopaedic surgeon. A report from the orthopaedic surgeon was later received and was forwarded to the interested parties for comment. On October 19, 2012, the panel met further to discuss the case and rendered its final decision.

Reasons

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 20th day of November, 2012