The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left elbow difficulties were not related to his compensable accident and that he was fit to return to his pre-accident duties and therefore was not entitled to further wage loss benefits. A hearing was held on October 16, 2014 to consider the matter.

Issue

Whether or not the worker's left elbow difficulties are a consequence of the January 9, 2013 compensable injury; and

Whether or not the worker is entitled to benefits after June 28, 2013.

Decision

That the worker's left elbow difficulties are not a consequence of the January 9, 2013 compensable injury; and

That the worker is not entitled to benefits after June 28, 2013.

Decision: Unanimous

Background

While employed as a driver on January 9, 2013, the worker was applying the parking brake and when he pulled it up, he felt a pull to his left wrist followed by instant pain. He said the pain radiated up into his arm, elbow and shoulder.

When seen for medical treatment on January 9, 2013, the worker was diagnosed with a possible triangular fibrocartilage complex sprain and an extensor carpi ulnaris strain injury and a cast was applied for 10 days.

On January 15, 2013, the worker advised the WCB that since the accident, he was having pain in his left wrist up to the bicep and had pain with certain left arm extensions. He had more pain in the left bicep than the wrist. On January 23, 2013, the worker advised that his wrist was doing better. He continued to have ongoing pain and reduced range of motion issues with his shoulder.

On January 24, 2013, the worker was assessed by a physiotherapist and was diagnosed with supraspinatus tendonitis.

On February 20, 2013, a WCB medical advisor noted to the file that the current diagnosis appeared to be a left wrist strain and non-specific left shoulder pain.

A WCB physiotherapy consultant noted to the file on March 7, 2013 that the diagnosis was a sprain/strain injury and that the more specific shoulder complaints related to the biceps were recent. The consultant indicated that it was difficult to relate these findings to the mechanism of injury.

On March 12, 2013, the worker was seen at the WCB for a call-in examination. The examining medical advisor outlined the following opinions:

• the likely diagnosis related to the January 9, 2013 workplace injury was a left wrist sprain and left rotator cuff strain.
• there continued to be a temporal relationship between the January 9, 2013 workplace incident and the worker's current symptoms.
• the worker was capable of returning to work on modified duties and work restrictions were outlined.

The worker underwent an MRI assessment of his left shoulder on April 30, 2013 which revealed:

1. Mild focal tendinosis of the supraspinatus tendon at the footprint.
2. Mild acromioclavicular joint osteoarthritis.

On June 10, 2013, the treating physician noted that the worker's condition had improved overall and he had minor tingling over his little finger. Mild ulnar neuropathy to the little finger was a new diagnosis.

On June 20, 2013, the worker was advised that no responsibility could be accepted for his current left elbow symptoms as "there is no prior indication of any type of nerve injury in all of the prior medical information. Development of this new diagnosis over 5 months post injury cannot be medically accounted for."

In a second letter dated June 20, 2013, the WCB advised the worker that he would be fit to return to his full regular work hours by July 1, 2013.

On July 5, 2013, the treating physician noted that the worker had tenderness over the lateral epicondyle and pain with gripping and wrist extension. There was also tenderness over the lunar side of the wrist and pain with impingement tests. A tennis elbow brace was suggested. It was also felt that the worker should continue with 6 hours of driving and 2 hours of office work and if no improvement, a change in occupation was suggested.

On July 25, 2013, the WCB advised the worker that the WCB was unable to reimburse him for the July 5, 2013 medical note from this treating physician or the elbow support as these expenses were not related to his workplace injury.

On February 28, 2014, the worker's union representative appealed the WCB's decision to deny the worker partial wage loss benefits from June 29 to September 8, 2013 and the payment denial for purchase of the elbow strap. The union representative noted that the worker was following the restrictions placed upon him by his treating physician for his compensable injury. These restrictions were in place to help the worker return to full time employment where he would not reinjure himself.

On April 3, 2014, the employer's representative submitted to Review Office that there was no basis to vary the adjudicative decision of June 20, 2013. The representative noted that the worker had chose not to increase his hours at work from 6 to 8 hours per day as of July 1, 2013 and thus was only paid for those hours worked. The worker eventually resumed his full duties by September 9, 2013. The representative also noted that the possible diagnosis of lateral epicondylitis did not correlate with the medical findings from January 9 onwards.

In a decision dated April 24, 2014, Review Office confirmed that the worker's left elbow issues were not compensable and that he was not entitled to benefits after June 28, 2013. Review Office agreed with the WCB medical opinion offered following the March 12, 2013 examination that the compensable diagnosis was a left wrist and shoulder strain. It stated that a causal relationship could not be made between the emergence of left elbow issues six months after the accident and the accident itself. It was concluded that no responsibility should be accepted for the worker's left elbow issue or for wage loss benefits after June 28, 2013. On June 27, 2014, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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 ends, or the worker attains the age of 65 years. 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.

Worker’s position:

The worker was assisted by a union representative at the hearing. The position advanced on behalf of the worker was that the worker's left elbow issues were related to the compensable injury of January 9, 2013 and that the worker should be compensated as such. The injury occurred when the worker pulled on the parking brake of the vehicle he was driving. The parking brake was under about 120 pounds per square inch of pressure. To activate the brake, the worker had to pull up a square knob approximately two inches by grasping the knob with his left hand. As a result of the action, it was submitted the worker injured his left wrist, shoulder and arm. It was noted that on the same day, the worker went to a clinic and a cast was placed on his left wrist. He was cleared for modified duties with restrictions of no lifting, no carrying, no pushing or pulling and right hand use only. On March 8, 2013, he was seen by the same doctor and the same restrictions were carried forward.

It was submitted that the adjudication of the worker's claim changed quite drastically when the worker was seen at the gym lifting weights on February 19, 2013 by his supervisor. Although this was part of the worker's exercise program recommended by his physiotherapist, the employer's attitude changed and there was a big push for the worker to return to all of his regular duties. The worker was being told by the WCB that he should return to full duties but his doctor said he should gradually return to work, starting at two hours per day. It was submitted that the worker was following his doctor's recommendations and that he should be compensated for his extra time as he was only doing what he was supposed to do.

Employer's position:

The employer was represented by its compensation coordinator. It was submitted that despite relating his left elbow problems to the compensable incident of January 9, 2013, no mention of this particular anatomical site was made by the attending physician until June 10, 2013, some six months post-accident. In that report, the attending physician reported "ulnar neuropathy to little finger" which he described as a "new diagnosis." Examination by a WCB medical advisor on March 12, 2013 made no reference of any complaint regarding numbness of the left pinky finger. It was submitted that the WCB properly concluded that the accepted diagnosis for the January 9, 2013 accident was strain injury to the worker's left shoulder and wrist. The evidence failed to establish the necessary nexus between the worker's left elbow problems and the compensable accident, and the panel was called upon to confirm the decision of the WCB.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after June 28, 2013 were related to the injury he sustained in the workplace accident of January 9, 2013. We are not able to make that finding. On a balance of probabilities, we find that the worker's compensable injury was limited to a left wrist and left shoulder strain and that these injuries had resolved by June 28, 2013. The panel does not accept that the subsequent left elbow difficulties complained of by the worker are attributable to the January 9, 2013 workplace injury.

On reviewing the medical evidence, there would appear to be two diagnoses which were contributing to the worker's left elbow difficulties: carpal tunnel syndrome ("CTS") and ulnar neuropathy.

The CTS diagnosis is found in a nerve conduction study report dated October 25, 2013. The report indicated that the worker's chief complaint was of parasthesia of the left 3rd, 4th and 5th fingers since January 2013. Nerve conduction studies indicated the left ulnar nerve was normal across the wrist, forearm and elbow but that the distal latencies of the left median sensory responses were mildly delayed suggesting left median neuropathy at or distal to the wrist (e.g. CTS). A note dated November 18, 2013 from the worker's physician prescribed a left sided brace for CTS.

The panel has considered the mechanism of injury described by the worker and we find that it is not consistent with a diagnosis of CTS. A CTS condition would not typically be expected to have been caused by an acute pulling action.

When reviewing the earlier medical reports, we note that there was no indication of a CTS condition in the first few months following the injury. The physiotherapist's report of February 21, 2013 indicated that there were no recent complaints regarding the wrist and elbow. At the call-in examination on March 12, 2013, the worker was tested for CTS and both Phalen's and Tinel's signs were negative bilaterally, indicating the absence of CTS at that point in time.

Based on the foregoing, the panel is unable to relate the worker's October 25, 2013 diagnosis of CTS to his January 9, 2013 workplace injury.

With respect to the diagnosis of left ulnar neuropathy, the panel notes the attending physician's report of June 10, 2013 which characterizes the mild ulnar neuropathy to the little finger as a "new diagnosis." By the time of the next report on July 5, 2013, the attending physician was reporting tender lateral epicondyle and pain with gripping and wrist extension. When, however, the worker was examined at the call-in examination of March 12, 2013, testing of the left elbow did not indicate the presence of lateral epicondylitis. It would appear that there was a gap of approximately five months before the left elbow issues were reported. Based on the foregoing, the panel is unable to relate the worker's left elbow difficulties to the January 9, 2013 workplace injury.

With respect to entitlement to benefits after June 28, 2013, the medical reports indicate that it was the left elbow issues which were troubling the worker on an ongoing basis, and not his left wrist and left shoulder strains. The treatment plan in the July 5, 2013 report from the treating physician indicated a prescription for a tennis elbow brace, but did not direct any specific treatment to the wrist or shoulder. In the panel's opinion, by this point in time (six months post accident), the strain injuries had mostly resolved and the worker's ability to return to work on a full time basis was confounded only by the non-compensable left elbow condition. The panel accepts the WCB medical advisor's June 19, 2013 opinion that the diagnosis of the left wrist sprain and left rotator cuff strain would have a natural history of resolution in six to eight weeks and that at that time, the worker should be able to progress to full time over the next two weeks. Based on this opinion, the panel finds that it would be reasonable to expect the worker to resume his regular full time duties by June 28, 2013, given his compensable injuries. The panel acknowledges that the worker's attending physician had recommended an ongoing modified schedule of 6 hours per day, but this was largely based on the non-compensable findings of tender lateral epicondyle and pain with gripping and wrist extension and we therefore place less weight on this recommendation.

It is therefore the panel's finding that the worker is not entitled to benefits after June 28, 2013. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of December, 2014