Decision #66/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injuries and was not entitled to benefits beyond December 17, 2013. A hearing was held on April 24, 2014 to consider the matter.Issue
Whether or not the worker is entitled to benefits after December 17, 2013.Decision
That the worker is entitled to benefits after December 17, 2013.Decision: Unanimous
Background
On October 15, 2013, the worker filed a claim with the WCB for injuries sustained in a work-related accident that occurred on October 11, 2013. Following review of the accident details with the worker and other file information, the WCB accepted that the worker injured his low back, right arm/shoulder and left elbow in the accident. The diagnoses accepted by the WCB were an aggravation of pre-existing low back pain (spinal stenosis), contusion to the left elbow and a right shoulder sprain.
On December 2, 2013, the worker was seen by a WCB medical advisor to determine the status of his elbow, shoulder and back conditions. The opinion of the WCB medical advisor was that the current diagnosis for the worker's back condition was non-specific low back pain. With respect to the worker’s right shoulder injury, the medical advisor noted that the current diagnosis appeared to be a recovering rotator cuff tendinopathy and that functional recovery for such an injury should take place within six to eight weeks.
With respect to the worker’s left elbow, the medical advisor noted some aspects of lateral epicondylitis but commented on inconsistencies he noted in the physical examination. He went on to suggest that the relationship to the compensable injury was tenuous given the mechanism of injury and a lack of consistent reporting from multiple healthcare providers regarding the left elbow early in the case so as to establish a temporal relationship.
Finally, the medical advisor noted there were no restrictions for the low back or the right shoulder related to the compensable injury but that there may be suggestions for restrictions with respect to the left elbow. He did not specify those restrictions given his finding that the left elbow diagnosis was not related to the compensable injury.
Based on this opinion, the WCB determined that the worker had functionally recovered from his work injuries and the worker was advised on December 10, 2013 that wage loss benefits would be paid to December 17, 2013.
On December 12, 2013, the worker appealed the December 10 decision to Review Office. Included with the appeal was a letter from the worker’s treating physician dated December 12, 2013 supporting the worker’s position that he had persistent elbow pain related to his compensable accident.
On January 23, 2014, Review Office determined that the worker was not entitled to benefits after December 17, 2013. On the same date, the worker provided Review Office with further medical information to consider, including a report from the treating physician dated January 17, 2014 and results from a January 13, 2014 MRI of the lumbar spine and left elbow.
On January 30, 2014, Review Office determined that no change would be made to its earlier decision based on their review of the new medical information. Review Office indicated that the MRI supported the previous decision and offered little in the way of new information for reconsideration.
On February 27, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on April 24, 2014.
Reasons
The issue to determine is whether the worker was entitled to benefits after December 17, 2013.
Applicable Legislation
In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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.
Worker’s Position
The worker, through his advocate, advanced the position that he should be eligible for benefits beyond December 17, 2013 as the worker had not at that time recovered from the effects of the left elbow injury incurred in the workplace accident of October 11, 2013.
The worker described the mechanism of injury whereby he lost his footing and slipped into a 3’ x 4’ hole, landing 12-15’ below the surface. He described how his left arm swung out and hit the concrete footings as he fell, before landing on his right shoulder and back.
The worker described noticing symptoms in his left elbow as early as three days following the workplace accident. He described ongoing sharp pain above the joint on the outside of his left arm and shooting down the top of his forearm to his fingers when he makes a fist. While physiotherapy helped to address the pain symptoms, the worker was unable to continue that treatment after his WCB medical aid benefits were discontinued on December 17, 2013.
The worker, through his advocate, took the position that the reported clinical findings as well as the medical evidence beyond December 17, 2013 confirm that as of that date, the worker’s left elbow injury remained symptomatic and disabled the worker from performing his full pre-accident duties. Further, there was a continuity of symptoms and medical findings that support the worker’s position that he had not recovered from his compensable left elbow injury by December 17, 2013.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue to determine is whether the worker was entitled to benefits after December 17, 2013. In order to determine this issue, the panel must find that the worker continued to suffer from the injuries incurred in his workplace accident of October 11, 2013 such that he was not fit to return to his job duties as of December 17, 2013. The panel as able to make this finding.
In determining this issue, the panel considered first whether the worker’s physical complaints in respect of his left elbow injury, ongoing as of December 17, 2013 were related to the compensable injury of October 11, 2013.
The WCB initially found that the worker’s left elbow was injured in the workplace accident of October 11, 2013 but that the accepted compensable diagnosis with respect to the left elbow was limited to a contusion.
We note from reviewing the medical evidence on file that on October 15, 2013, the worker’s physician indicates that the worker fell “on abducted arm, which was forced above his head.” Based upon the worker’s description of the fall, this would refer to his left arm.
On November 1, 2013, the worker’s physiotherapist diagnosed “left elbow tendinopathy” based upon a finding of “left elbow tender lat epicondyle with tightness ECRL.”
On November 5, 2013, the worker’s physician noted the worker’s report that “After leaving last time, noticed L elbow pain.” The objective findings included mildly limited range of motion in the left elbow and “++ painful.” His diagnosis was a soft tissue injury to the left elbow. He explained in his report that the injury was not previously diagnosed due to distracting injuries.
The treating physiotherapist’s report of November 25, 2013 confirmed that although the right shoulder and back injuries were improving, the worker continued to complain of constant pain in the left elbow and demonstrated tenderness. Further, the worker had decreased grip strength in that arm.
On December 4, 2013, the worker’s physician noted that pain in the worker’s left elbow had worsened. At that time, the worker was receiving physiotherapy treatment for his injuries, including the elbow injury, but that treatment was interrupted by the WCB’s December 10, 2013 decision.
We note that the subsequent MRI findings of January 2014 in relation to the left elbow are consistent with the worker’s reports and his own doctor’s clinical findings. At that time, the worker continued to experience symptoms of mild lateral epicondylitis in his left elbow.
The panel finds that the mechanism of injury as described by the worker and documented in the file is consistent with the worker’s reported complaints with respect to his left elbow. The mechanism of injury is also consistent with the diagnosis of lateral epicondylitis in the worker’s left elbow.
Based on the totality of evidence before us, we find that the diagnosis of lateral epicondylitis in relation to the worker’s left elbow is the result of the workplace accident of October 11, 2013 and should be accepted as a compensable injury arising out of the workplace accident of that date.
Having determined that the worker’s left elbow diagnosis is a result of the workplace accident of October 11, 2013, the panel then considered whether the worker was fit to return to his regular job duties on December 17, 2013.
The worker’s position is that he was unable to return to his job on December 17, 2013. Just two months after a significant fall injury, the worker’s treating physician reported “He is still limited in supination and has pain over his olecranon. It seems unlikely that he would be able to lift a heavy duty drill given his current level of strength.”
Further support for this position is found in the WCB medical advisor’s report of December 9, 2013. In that report, the medical advisor noted that “As there are aspects of lateral epicondylitis, there may be suggestions for restrictions on a subjective basis” but he did not elaborate on what those restrictions might be as he did not relate the elbow symptoms to the compensable injury.
In the hearing, the worker described how at that time he continued to experience ongoing symptoms in his left elbow. His reported complaints were subsequently confirmed by the MRI findings of January 2014.
Taking into account the heavy duty nature of the worker’s job duties, the worker’s description of his ongoing left elbow complaints after physiotherapy treatments were discontinued, and the clinical findings in the medical reports, we find on a balance of probabilities that the worker was not fit to return to regular work duties on December 17, 2013.
While the worker’s physician has made some recommendations as to restrictions on the worker’s return to work, these are outside the scope of this appeal and we leave it to the WCB to determine: when the worker is fit to return to work; if restrictions are appropriate; and if so, what those restrictions should be.
Based upon the unresolved and ongoing complaints related to the worker’s compensable diagnosis of left elbow epicondylitis and our finding that he was unable to return to work on December 17, 2013, we conclude that the worker was entitled to benefits after December 17, 2013, including both medical aid and wage loss benefits.
Panel Members
K. Dyck, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
K. Dyck - Presiding Officer
Signed at Winnipeg this 5th day of June, 2014