Decision #61/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that she was not entitled to further compensation benefits in relation to her compensable right arm injury. A file review was held on March 14, 2013 to consider the matter.Issue
Whether or not the worker is entitled to medical aid benefits after September 7, 2012.Decision
That the worker is entitled to medical aid benefits after September 7, 2012.Decision: Unanimous
Background
The worker filed a claim with the WCB for a right arm injury occurring at work on January 15, 2007. The worker related her injury to the repetitive lifting of bundles. The worker's claim was accepted and she received benefits and services. Despite receiving treatment and modifying her work, the worker's condition did not resolve. Further, she developed new symptoms in her right arm, including lateral epicondylitis. On September 24, 2010, Review Office reconsidered the worker's entitlements. The compensable diagnosis accepted by Review Office was a right elbow medial epicondylopathy. Review Office also determined that the worker's right lateral epicondylitis condition was not related to the January 15, 2007 compensable injury.
On October 21, 2010, a WCB medical advisor noted to the file that the worker was receiving acupuncture treatment for right medial epicondylopathy and that it was reasonable to approve another 6 to 12 sessions of acupuncture treatment.
Progress reports from the treating physician dated December 6, 2010 and 21, 2010, indicated that the worker still had pain in her right elbow that became worse with repetitive activities over the lateral and medial epicondyles. He said the worker should continue with acupuncture treatments.
In February 2011, the worker suffered a non-compensable medical condition which prevented her from working.
On May 25, 2011, a WCB case manager noted that acupuncture treatment for the worker's right arm had not been ongoing due to her non-compensable condition. She noted that by the end of August 2011, the worker should be back at work.
On July 19, 2011, the worker advised the WCB that she was having problems with her right shoulder which she related to her compensable right elbow condition.
On September 15, 2011, the worker advised the WCB that her rotator cuff was permanently damaged which she related to a 2005 WCB claim for injury to her right arm and both shoulders. The worker indicated that she did not feel capable of working and her employer did not have modified duties.
On September 15, 2011, the case manager noted that the worker did not return to her regular duties and was still off work due to her non-compensable medical condition.
In a report dated November 15, 2011, a pain management specialist commented that the worker reported symptomatic relief with acupuncture treatments but overall reported that she had significant pain and reduced functional capacity with her right upper extremity. His working diagnosis was right shoulder capsulitis and right medial epicondylitis.
On April 5, 2012, the worker was seen at a call-in exam by a WCB physical medicine consultant. Based on his assessment, the consultant concluded on May 16, 2012, that there was no obvious relationship between the worker's shoulder capsulitis and either her 2007 or 2005 WCB claims nor was there any new diagnosis which could be related to either claim.
On June 12, 2012, the WCB physical medicine consultant opined that while earlier in the file ongoing symptoms on the medial side of the elbow and the MRI of the elbow supported a medial epicondylopathy as likely present, the most recent call-in examination of April 5, 2012 did not suggest any active medial epicondylopathy present based on specific stress testing. There was guarding and not a complete examination of the medial epicondyle as a result. The consultant also opined that the evidence did not support a right lateral epicondylitis.
On July 23, 2012, the physical medicine consultant gave a further opinion regarding whether the worker's current presentation with respect to her medial epicondyle was medically accounted for in relation to the workplace duties. His opinion was that her current presentation was only partially medically accounted for in relation to the prior work duties.
In a decision dated August 31, 2012, the worker was advised that based on the file information including the results of the April 2012 call-in exam and the fact that she had not been in the workplace for almost two years, the WCB was unable to find any evidence to support an ongoing workplace condition of medial epicondylitis. Therefore, further wage loss or medical aid benefits would not be considered beyond September 7, 2012.
On October 25, 2012, the worker appealed the decision made on August 31, 2012. The worker submitted that she was still suffering from medial epicondylitis based on the medical evidence on file and that the WCB was responsible to cover all costs related to her condition beyond September 7, 2012.
On January 4, 2013, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after September 7, 2012. Review Office concluded that there was no causal relationship between the worker's right shoulder issue and her right elbow medial epicondylopathy and any treatments related to the right shoulder would not be related to the compensable accident. Review Office noted that since being off work, the worker continued to make complaint of increasing right elbow symptoms in the absence of all aggravating factors. During the April 5, 2012 call-in exam, manual testing to support her symptomatic complaints were negative. In the absence of any aggravating occupational factors and with all manual test results being negative, it was Review Office's opinion that the worker had recovered from her compensable right elbow medial epicondylopathy. On January 15, 2013, the worker appealed the decision to the Appeal Commission and a file review was held on March 14, 2013.
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.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The Worker’s Position
The worker was assisted in her appeal by her sister. The reasons for appeal set out in the Appeal of Claims Decision form were as follows:
I have right medial epicondylitis as a result of a work injury dated back to January 15, 2007 which has been confirmed on numerous documents on my file from my Doctor, pain clinic Doctor, MRI report, WCB [Medical Advisor] and including the WCB Review Office. This is a CHRONIC disease of a continual or intermittent basis. I have never been totally rehabilitated from this disease. (emphasis original)
Analysis
The issue before the panel is whether or not the worker is entitled to medical aid benefits after September 7, 2012. In order for the appeal to be successful, the panel must find that the worker continued to suffer from the effects of the right medial epicondylopathy injury she sustained in her work-related accident of January 15, 2007. We are able to make that finding.
On a balance of probabilities, the panel accepts that the nature of the worker's condition is chronic and despite the fact that the injury occurred in January 2007 and she has not been in the workplace since November, 2010, the panel finds that the worker is entitled to medical aid to cure and provide relief for the residual effects of her compensable right medial epicondylopathy which has never fully resolved.
In May 2010, the WCB medical advisor recognized that the initial diagnosis of right elbow medial epicondylitis had become chronic, thus changing the compensable diagnosis to a right medial epicondylopathy.
More recently, in April 2012, the worker was examined by the WCB physical medicine consultant. When asked to comment on his findings, the consultant's July 23, 2012 memo stated:
The file does suggest a medial epicondyle area irritation to have been present since onset of the most recent claim. There is file confirmation of a medial epicondylosis to be present, based on the MRI (May 15, 2008). This could be medically accounted for in relation to her work place duties as documented on the earlier file. However the most recent call in examination did not suggest any mechanical irritability to be any longer present with specific stress to the medial epicondyle area suggesting that there has been improvement with time. There is however ongoing severe reported subjective symptoms in the medial epicondyle area and a complete examination was not allowed. That is palpation of the area was not allowed. However the degree of the reported subjective pain appears beyond that expected for an area of residual irritability. Now five years 5 months remote. Therefore in summary the worker's current presentation appears to be only partially medically accounted for in relation to the prior work place work duties.
Temporary restrictions, a surgical referral and a trial of a TENS unit to manage symptoms were suggested.
Although the consultant viewed the workers' report of symptoms to be beyond that expected, he did acknowledge that her current presentation was at least partially medically accounted for in relation to the prior workplace duties. As such, the panel finds that the worker's compensable injury has not completely resolved and she is entitled to some medical aid to provide relief from the residual irritability.
The panel notes that our decision is limited to finding that the worker is entitled to medical aid for her right medial epicondylopathy. We agree with the Review Office's determination that there is no causal relationship between the right medial epicondylopathy and the worker's right shoulder symptoms and that she is not entitled to medical aid in respect of her shoulder.
The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of April, 2013