Decision #172/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his right hand/wrist difficulties were only partially related to his compensable accident of December 8, 2011. A hearing was held on November 19, 2013 to consider the matter.Issue
Whether or not full responsibility should be accepted for the worker's right hand/wrist difficulties in relation to the December 8, 2011 compensable accident.Decision
That responsibility should not be accepted for the worker's right hand/wrist difficulties in relation to the December 8, 2011 compensable accident.Decision: Unanimous
Background
On December 8, 2011, the worker suffered injury to his right arm, shoulder and neck when he caught his foot in the loop of a washing hose, tripped and fell, landing on his right hand and knee. The fall caused pain to his right arm, shoulder and neck.
The worker was initially treated by his family doctor and received physiotherapy beginning shortly after the injury. MRI results from early January 2012 indicated a right rotator cuff partial tear. A second MRI in February 2012 confirmed the injury and noted the tear had increased in size since the previous study.
The worker’s injury was treated with surgery on March 19, 2012. The post-operative diagnosis was a right rotator cuff tear and type IV superior labral anterior to posterior lesion.
Following consultations with a rheumatologist in December 2012, the worker’s compensable diagnosis was expanded in January 2013 to also include right lateral epicondylitis, as a late complication of the failed rotator cuff repair.
A WCB case manager determined, in a decision dated January 11, 2013 that there was no relationship between the worker's current right shoulder symptoms and his right wrist based on the opinion expressed by a WCB medical advisor on December 28, 2012.
Based upon a further WCB medical opinion provided on February 11, 2013, the WCB case manager determined that no change would be made to the decision of January 11, 2013. In a letter dated March 8, 2013, the WCB case manager again confirmed the WCB decision that the worker's right hand/wrist difficulties were not related to the original shoulder injury of December 8, 2011.
The worker appealed this decision to Review Office, taking the position that his right hand/wrist symptoms were directly related to the compensable shoulder injury and based his position on medical reports from his treating physiotherapist, neurologist and his family physician.
On June 17, 2013, Review Office determined that partial responsibility should be accepted for the worker's right wrist/hand difficulties in relation to his compensable right shoulder injury. On July 25, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
The sole issue in this appeal is whether full responsibility should be accepted for the worker's right hand/wrist difficulties in relation to the December 8, 2011 compensable accident.
Applicable Legislation and Policy
In considering this appeal, the panel is 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.
WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries 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 Further Injuries 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.
Worker’s Position
The worker’s position is that his ongoing symptoms in his right hand relate directly to the workplace accident of December 8, 2011 when he fell onto that hand and which led to the accepted compensable injuries to his right shoulder and arm.
In making this submission, the worker noted that he had no complaints with respect to his right hand until after the surgery of March 2012 to correct the rotator cuff tear. The worker further challenged the finding of Review Office that limited responsibility for the right wrist and hand difficulties to the initial reports of right thumb pain. As he continues to experience symptoms, WCB should accept full responsibility for these difficulties as relating directly to the compensable injury he incurred in the workplace accident on December 8, 2011.
Employer's Position
The employer did not participate in the appeal hearing.
Analysis
For the worker to succeed in his appeal, the panel would have to find, on a balance of probabilities, that the worker's right hand/wrist difficulties were caused by his compensable accident or as a consequence of his compensable medical treatment in accordance with the Further Injuries policy. The panel was not able to make these findings.
In coming to our decision in this matter, the panel considered the medical evidence on file, as well as the worker’s submissions to us with respect to his claim arising out of the injury of December 8, 2011.
We note that the accepted compensable diagnoses arising out of the December 8, 2011 workplace accident are right lateral epicondylitis and a right shoulder strain with partial bursa tear.
The panel considered, in determining the issue before us, whether the worker's right hand/wrist difficulties relate to a localized hand injury incurred as a result of the December 8, 2011 compensable accident.
The worker noted that he only began to notice symptoms, including pain radiating from his right shoulder down into the fingers of his right hand after the surgery in March 2012. He noted that he had never experienced the symptoms in his right hand before the fall and resulting surgery, and pointed our attention to the report of his physician of February 8, 2013 as supporting a relationship between his right hand/wrist difficulties and the compensable accident. The worker’s physician in that report confirms that the worker’s right hand/wrist difficulties did not arise until after the surgical repair took place in March 2012.
The worker’s own physician gave the opinion, in her report of February 8, 2013 that the worker’s right wrist pain was the result of overuse of his right hand and wrist, post-surgery, in compensation for the immobility of his shoulder. The worker’s evidence, however, was that he is limited in the use of his right hand as a result of the injury to his shoulder.
The worker’s evidence is consistent with the medical evidence we reviewed. Based on the worker’s ongoing reports of difficulties with his right hand/wrist, he was ultimately referred to a rheumatologist in December 2012. The rheumatologist’s December 3, 2012 report notes that the worker developed new discomfort in his right hand when he began post-surgical physiotherapy treatment in April 2012.
Subsequently, the worker saw a neurologist in January 2013. His report of January 4, 2013 also noted that the worker developed “distal discomfort” following the surgery, including, in particular, pain radiating from the palm to his 2nd, 3rd and 4th fingers when he makes a fist and tenderness to palpation in these areas, but no numbness or tingling. The neurologist did not find any neurological explanation for the worker’s hand/wrist difficulties.
Based on the medical evidence before us, the time gap between the date of accident and the onset of his right hand/wrist difficulties is not medically supported. We find that the worker's right hand/wrist difficulties are not the result of a localized injury to his hand on December 8, 2011.
We then considered whether the worker's right hand/wrist difficulties relate to a remote injury incurred as a result of the December 8, 2011 compensable accident. In other words, are the ongoing difficulties related to the existing accepted compensable diagnoses or the treatment he received for same?
The conclusion reached by the WCB medical advisor, in reports dated December 28, 2012 and February 11, 2013, is that the clinical and investigative evidence does not support that the worker's right hand symptoms were related to his shoulder injury. In coming to that conclusion, the medical advisor reviewed the reports of both the rheumatologist and the neurologist consulted by the worker.
The medical advisor, in those reports, goes on to suggest that the worker's hand symptoms might be longstanding and related to the worker's occupation as a mechanic. The panel did not consider this issue as it was not the subject of the appeal before us which is based on an accident history of an acute event, rather than of a cumulative injury.
The worker consulted with a physiatrist in June 2013 and again in August 2013 and we have before us reports dated June 11, 2013 and August 13, 2013 arising out of those consults. In answering questions from the panel, the worker indicated that at these consults, he received nerve block injections to treat his right shoulder pain. While there was some benefit in terms of his shoulder pain, the worker reported that there was no benefit from the injections in terms of his right hand/wrist difficulties. In our view, the medical evidence does not establish a right hand/wrist diagnosis which can causally be related as a secondary or further injury to either the worker's compensable shoulder/arm diagnoses or to any treatment for those injuries.
Based on the evidence before us, we find that the worker’s right hand/wrist difficulties are not related to the worker’s compensable diagnoses of right lateral epicondylitis and a right shoulder strain with partial bursa tear.
We find, on a balance of probabilities, that the evidence does not support the worker’s position that his ongoing symptoms in his right hand are the result of the compensable injury that occurred on December 8, 2011. In the result, responsibility should not be accepted for the worker's right hand/wrist difficulties in relation to the December 8, 2011 compensable accident.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 12th day of December, 2013