The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right elbow difficulties were not directly related to his compensable right wrist injury.

A hearing was held on April 16, 2013 to consider the matter.

Issue

Whether or not responsibility should be accepted for the worker's right elbow difficulties.

Decision

That responsibility should not be accepted for the worker's right elbow difficulties.

Decision: Unanimous

Background

On June 22, 2011 the worker filed a claim with the WCB for injuries he suffered in a work-related accident on June 21, 2011. The worker described the incident as follows:

I slipped on debris that was on the ground and I slipped and fell. Both feet went out from under me and I reached out and banged my wrist on the car. I didn't fall all the way to the ground but in regaining my balance I injured my back/forearm and wrist.

Initial medical reports showed that the worker was diagnosed with mechanical non-radicular back pain and a right flexor carpi ulnaris sprain. By June 30, 2011, medical reports showed that the worker's back condition was improving but he still suffered from wrist pain.

On August 12, 2011, the treating physician reported that the worker had pain in the triangular fibrocartilage complex ("TFCC") region of his right wrist as well as tenderness in the lateral epicondyle. An MRI was recommended to rule out a TFCC injury. An MRI of the right wrist was later carried out and a TFCC tear of the right wrist was confirmed. On December 7, 2011, the worker underwent a right wrist diagnostic arthroscopy with debridement of synovium and debridement of the TFCC.

In a follow-up report dated March 27, 2012, the plastic surgeon noted that the worker had slight tenderness in the TFCC region as well as tenderness of the lateral epicondyle with resisted extension of the wrist and fingers.

On May 1, 2012, a WCB medical advisor was asked to comment on whether there was a relationship between the worker's right elbow difficulties and the injury of June 2011. On May 25, 2012, the medical advisor indicated that the medical evidence did not support a diagnosis of right lateral epicondylosis in relation to the June 21, 2011 mechanism of injury or its subsequent treatment.

On May 30, 2012, the worker was advised that the WCB was not accepting responsibility for his elbow difficulties diagnosed as right lateral epicondylosis as it was considered that the condition was unrelated to his June 21, 2011 compensable injury. The case manager indicated that she reviewed the various medical reports on file from the attending physician, plastic surgeon and treating physiotherapist and found that his symptoms of right lateral epicondylosis "wax and wane over time." The case manager concluded that the natural history of lateral epicondylosis was a condition of living and was also consistent with fitness activity such as push-ups and biceps curls which are provocative of lateral epicondylosis.

In August 2012, the worker advised the WCB that he was appealing the May 30, 2012 decision as he had support from his treating surgeon and physiotherapist that his lateral epicondylitis condition was caused by his compensable right wrist injury.

On July 4, 2012, the treating physiotherapist outlined the opinion that the worker sustained an overuse injury (lateral epicondylitis) of his right elbow due to compensatory mechanisms from his right wrist. The physiotherapist stated: "Since the radius bears 95% of weight bearing forces when the TFCC is not intact, which has been the case in [the worker's] situation."

In a report to the WCB dated August 7, 2012, the plastic surgeon outlined his opinion that the worker's lateral epicondylitis condition was related to mal-positioning of the hand, wrist and elbow during the time of the worker's wrist issues.

In a WCB letter dated September 7, 2012, the worker was advised that the report from the plastic surgeon did not provide support for a change to the previous WCB decision dated May 30, 2012. On September 27, 2012, the worker appealed the decision that his elbow condition was not related to his wrist injury.

On November 27, 2012, a WCB review officer documented a telephone conversation she had with the worker regarding his wrist and elbow difficulties. The worker indicated that he first noticed symptoms in his right elbow prior to his wrist surgery and there was no particular event or trigger. The worker indicated that he was not moving his arm properly because of his wrist injury and that he modified his exercise work-out and certain work activities so that he did not exert a lot of pressure on his injured wrist. The worker indicated that his elbow was injured due to compensation for his right wrist. He confirmed he did not injure the elbow during the initial fall.

On December 7, 2012, a WCB medical advisor reviewed the file at the request of Review Office and stated:

The evidence currently on file in support of [the worker's] right lateral epicondylitis being related to his June 21, 2011 right wrist injury is primarily contained in two documents. The first is an April 9, 2012 physiotherapy progress report (and a subsequent July 4, 2012 letter from the treating physiotherapist reiterating her position), stating that when the TFCC is not intact, the radius then bears 95% of the load through the wrist which results in increased work load to forearm extensors. This mechanism for the development of lateral epicondylosis is considered speculative, unlikely and not based on evidence. This matter was reviewed with two physiotherapy advisors and the plastic surgery advisor to the WCB who agree.

The second document on file in support of [the worker's] right lateral epicondylitis being related to the June 21, 2011 CI is a letter from the treating plastic surgeon. In it, she states that she "would have to think that the lateral epicondylitis is due to malposition of the hand wrist and elbow during the time of his wrist issues."

I spoke to the treating plastic surgeon on December 5, 2012 at 9:10. She stated that she had no evidence to support that [the worker's] right lateral elbow issues were related to his right wrist issues and likely wrote that opinion as [the worker] had stated same. She stated that the theory expressed by the treating physiotherapist regarding load through the radius following TFCC surgery as a mechanism for development of lateral epicondylitis was speculative, and that as a plastic surgeon specializing in hand/wrist issues she could not support it based on evidence. The treating plastic surgeon went on to state that of all the wrist/TFCC procedures she has performed [the worker's] would be the first case to develop lateral epicondylitis and that on balance, it is more likely that [the worker's] lateral epicondylitis is a condition of living.

In light of the above, and reasons expressed in the May 1, 2012 medical opinion to file it is likely that [the worker's] right lateral epicondylitis is not related to the June 21, 2011 CI or any treatment thereof.

On December 7, 2012, Review Office accepted the opinion of the WCB medical advisor that the compensable injury did not cause or significantly contribute to the worker's right wrist difficulties. On January 14, 2013, the worker disagreed with the finding and an appeal was filed with the Appeal Commission.

Prior to the Appeal Commission hearing, two additional medical reports were placed on the worker's file. By report dated March 19, 2013, the plastic surgeon reported on the worker's current medical status:

My impression is that this patient continues to heal and he is doing very well. I have encouraged him to continue doing activities as tolerated. Given that his lateral epicondylitis has improved with his wrist symptoms and improvement in the wrist, likely these two entities were related. It is probable that the wrist issues caused the lateral epicondylitis.

In an assessment report dated March 18, 2013, a certified athletic therapist reported the following impression:

Assessment findings indicate [the worker] has lateral epicondylitis, secondary in nature to his wrist injury. Forearm anatomy indicates that the wrist extensors originate from the common extensor tendon which originates on the lateral epicondyle. These extensor muscles include extensor carpi radialis brevis, extensor digitorum, extensor digiti minimi and, extensor carpi ulnaris. These muscles are responsible for wrist and finger movement. Due to the nature of the original wrist injury there would have been a major muscle imbalance that would have occurred in the wrist/forearm/upper arm causing certain muscles to have to overcompensate and overwork for the lack of use/function of the other muscles that were unable to fire properly due to the wrist injury, surgery that followed and immobilization of the forearm and wrist. Overuse and imbalance of forearm musculature is the number one cause of lateral epicondylitis. It is therefore this writer's opinion that without question, the lateral epicondylitis onset was due to the initial wrist injury.

On April 16, 2013, a hearing was held before an appeal panel.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and policies made by the WCB Board of Directors.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Policy”) applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Policy provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) where the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

The Worker’s Position:

The worker was self-represented at the hearing. The Appeal of Claims Decision form submitted by the worker set out the following reasons for appealing the decision:

• The onset of the lateral epicondylitis is consistent with the June 21 injury and the progression of time it would take for lateral epicondylitis to develop.
• The treating physiotherapist supported the position that the lateral epicondylitis is a direct result of the injury.
• The treating plastic surgeon also supported that the lateral epicondylitis is likely to be a result of the injury of June 21 and the subsequent surgery and recovery.
• Other medical professionals including an athletic therapist who specializes in sports injuries also firmly believe that the lateral epicondylitis is a direct result of the workplace injury.
• Until the injury of June 21, 2011, the worker had not suffered from any type of lateral epicondylitis or any other elbow discomfort.

Overall, it was submitted that it was clear that the workplace injury and the lateral epicondylitis were directly related and to say otherwise was simply ignorant. Simple anatomy and physiology should make this obvious for even non-medical individuals.

The Employer’s Position:

A representative from the employer appeared at the hearing. It was submitted that the injuries the worker sustained on June 21, 2011 did not involve the right elbow. The first indication of any problems with the elbow occurred approximately eight weeks post-accident. Medical literature indicates that the condition can occur due to overuse of the arm or wrist, or an insidious onset, occurring without any repetitive motion or cause. Normally, it is not produced from a traumatic injury. Most people who get this condition are between the ages of 30 and 50. The opinion of the WCB medical advisor was that the worker's right lateral epicondylitis was not related to the June 21, 2011 compensable injury or any treatment thereof. The opinion of the physiotherapist was reviewed by the WCB medical advisor who felt that the physiotherapist's proposed mechanism for the development of lateral epicondylitis was speculative, unlikely and not based on evidence. With respect to the plastic surgeon's opinion, the WCB medical advisor documented a conversation wherein the surgeon confirmed that she had no evidence to support that the worker's right lateral epicondylitis issues were related to his right wrist issues. Overall, it was submitted that there was no credible evidence that would establish the necessary nexus between the worker's elbow problems and the compensable incident of June 21, 2011, and the WCB's decision should be confirmed.

Analysis:

The issue before the panel is whether or not responsibility should be accepted for the worker's right elbow difficulties. In order for the worker's appeal to succeed, the panel must find that there is a causal relationship between the worker's right elbow lateral epicondylitis and the TFCC injury he suffered at work on June 21, 2011. On a balance of probabilities, we are unable to make that finding.

In the panel's opinion, in order to find a causal relationship between the compensable TFCC injury and worker's subsequent right elbow difficulties, we would have to find that there was some sort of unusual stressor on the elbow which was a result of the compensable injury. The panel's understanding is that when lateral epicondylitis is found to be work-related, it is typically associated with overuse. The mechanism of injury proposed in the treating physiotherapist's report of July 4, 2012 identified increased use in establishing causation, that is, that the radius would bear 95% of the weight bearing forces when the TFCC is not intact. Similarly, in a report dated March 18, 2013, an athletic therapist retained by the worker stated: "Overuse and imbalance of forearm musculature is the number one cause of lateral epicondylitis."

There was a significant disparity between the medical opinions in this case. Both the worker's physiotherapist and athletic therapist identified overuse due to changed body mechanics as being causative of the lateral epicondylitis. The treating plastic surgeon was supportive of a causal relationship, but in her latest report, she referred only to the temporal relationship between the improvement in the wrist and improvement in the lateral epicondyle as a basis for concluding that the two entities were related.

On the other hand, the WCB medical advisor dismissed as speculative the opinion that the increased load caused the lateral epicondylitis and stated that he reviewed the matter with two physiotherapy advisors and the plastic surgery advisor to the WCB who agreed that this mechanism was speculative.

The panel is therefore left with some evidence that the changed arm mechanics resulting from the TFCC tear could cause lateral epicondylitis to develop, but we must keep in mind that this evidence is considered to be speculative by other medical practitioners.

In the panel's opinion, even if we accepted that the increased load caused by the TFCC injury could cause lateral epicondylitis to develop, the facts in this case do not support such a finding. The first noted onset of the lateral epicondylitis was in a report from the worker's physician on August 12, 2011. This was approximately eight weeks following the workplace accident. It is notable that the worker had only returned to work since July 14, 2011. The evidence at the hearing was that the worker was left hand dominant and that after his injury, he avoided use of his right hand as much as possible. He stopped doing any activity that increased his pain. The worker specifically modified his job duties and exercise regime to reduce any unnecessary stressors on his right arm (although due to the nature of the worker's profession, there were occasions where this could not be avoided). When considering the short timeframe and the reduced use of his right arm, the panel is not convinced on a balance of probabilities that there was an increased load on his right elbow and forearm musculature such as to be causative of lateral epicondylitis.

The panel is sympathetic to the worker's situation, and found him to be a credible witness, but we simply are not convinced on a balance of probabilities that the changed use of his arm resulting from the TFCC tear was sufficient as to cause lateral epicondylitis to develop as a further injury subsequent to a compensable injury, within the terms of the Policy. We therefore find that responsibility should not be accepted for the worker's right elbow difficulties.

The worker'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 8th day of May, 2013