The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he suffered no loss of earning capacity beyond May 1, 2013 in relation to his compensable elbow condition. A hearing was held on January 13, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after May 1, 2013.

Decision

That the worker is not entitled to wage loss benefits after May 1, 2013.

Decision: Unanimous

Background

On July 23, 2012, the worker was assisting a co-worker to load pipe onto a pick-up truck when he banged his right elbow. The claim for compensation was accepted based on the diagnosis of acute medial epicondylitis and benefits were paid to the worker while he underwent physiotherapy treatment and injections for his elbow condition. File records also showed that the worker suffered from right medial epicondylitis prior to the July 2012 work injury. By mid December 2012, it was determined that the worker was fit to return to his regular duties; however, at that time he had been seasonally laid off from employment with the accident employer.

In March 2013, the worker called the WCB to advise that he still had problems with the medial side of his right elbow which he related to the July 23, 2012 workplace injury.

On June 12, 2013, the worker was seen at the WCB offices for a call-in assessment. The WCB medical advisor commented as follows with respect to the worker's elbow condition:

• The initial diagnosis appeared to be right elbow medial epicondylosis. The condition typically resolves gradually over 3 to 6 months and flare-ups from time to time are common with the condition.
• The worker's current presentation was causally related to the effects of the July 2012 workplace injury. An alternate diagnosis was not apparent.
• A significant pre-existing condition was not apparent and it did not appear that the pre-existing right elbow condition was aggravated or enhanced.
• The worker did not require restrictions for his current new job position. If restrictions were required, they would be to avoid very heavy lifting and repetitive resisted movements of the wrists.
• An MRI of the right elbow would ascertain whether there was radiologic evidence of ongoing medial epicondylosis as well as any other associated surgical lesions which may require intervention.

An MRI report of the right elbow dated June 27, 2013 stated: "Impression: Signal change identified in relation to the common extensor origin consistent with clinical diagnosis of lateral epicondylitis."

On August 9, 2013, a WCB medical advisor reviewed the worker's file and stated:

• The diagnosis remained to be right medial epicondylosis. This was discordant with the recent MRI which was suggestive of lateral epicondylosis.
• The diagnosis of lateral epicondylosis was not accounted for by the reported mechanism of injury or by the clinical examination performed at the WCB. Both are consistent with findings at the medial right elbow.

In a decision dated August 23, 2013, the WCB advised the worker that he was not entitled to wage loss benefits or medical treatment beyond December 11, 2012 as the WCB was unable to find a work-related cause for the worker's increased symptoms beginning in March 2013. This decision was based on the following findings:

• the December 2012 report from the treating physician which stated that the worker had minimal findings in his right elbow and that he no longer required active treatment.
• the March 11, 2013 report from the treating physician which stated that the worker had more pain in his right elbow. As the worker had been off work for 8 months, the WCB was unable to find a work-related aggravation and was unable to account for the worker's increased symptoms.
• the current diagnosis was reaffirmed as being medial epicondylitis. This condition typically resolves within 3 to 6 months and flare ups are expected from time to time. As the worker had been diagnosed with medial epicondylitis prior to his July 23, 2012 work injury, the WCB was unable to confirm a work-related cause for his increased symptoms.

On September 22, 2013, the worker appealed the WCB's decision to Review Office. The worker stated that his arm had never healed properly and that he would not be able to return to a physically demanding job because of it.

In a submission received by Review Office on October 30, 2013, the employer advised that they agreed with the WCB's decision to discontinue benefits based on its review of the file evidence.

Prior to considering the worker's appeal, Review Office asked a WCB medical advisor to review the claim and to comment on the following question: "On the balance of probabilities, is the worker's presentation at the time of the call in exam in June 2013, medically accounted for in relation to the workplace injury? What are the medical findings to support your opinion?

In a response to Review Office dated October 11, 2013, the WCB medical advisor stated:

Yes that appears to be the case. The reported findings at the June 2013 examination were consistent with medial epicondylar irritation (based on tenderness and positive provocative testing). The same condition was reported by the treating orthopedic surgeon, physiotherapist and attending physician at various times over the course of the claim."

On November 21, 2013, Review Office determined that the worker was entitled to benefits beyond December 11, 2012. Review Office noted that the worker presented with symptoms of medial epicondylitis consistently throughout his claim and that by December 12, 2012, he had not sufficiently recovered to return to his regular duties on a full time basis. Review Office acknowledged that the worker had pre-existing medial epicondylitis but he was able to perform his regular duties up until the date of the workplace accident. Review Office noted that the worker denied any new accidents between December 2012 and March 2013 and that medial epicondylitis was prone to flare ups. Review Office indicated that it accepted the WCB medical opinion outlined on October 11, 2013.

File information showed that following Review Office's decision, initial adjudication referred the file to the WCB's healthcare branch to obtain a medical opinion as to whether or not the worker was able to work beyond December 11, 2012 and to determine whether or not his ongoing symptoms were related to the July 23, 2012 workplace injury.

On January 9, 2014, the WCB medical advisor outlined her opinion that the July 23, 2012 workplace injury diagnosis was likely a right medial elbow contusion with acute medial epicondylitis occurring in the environment of chronic medial epicondylitis/osis. It was felt that the worker's right medial elbow condition was at its pre-injury baseline by December 2012 and that the acute medial epicondylitis associated with the July 2012 workplace injury had materially resolved by December 12, 2012.

In a decision dated January 14, 2014, the worker was advised that he was not entitled to wage loss benefits beyond December 11, 2012 and that medical aid benefits including physiotherapy treatment would not be approved beyond January 14, 2014. The case manager stated that in her opinion, the worker's current symptoms were not related to the July 2012 work injury and there was no evidence of a combined relationship between his work injury and his pre-existing condition.

In April 2014, the WCB case manager met with the worker and his wife to discuss his claim.

In a decision dated May 8, 2014, the worker was advised that the accepted diagnosis of his claim had been changed to chronic epicondylitis and that his recent physiotherapy had been approved. He was also advised that he was not entitled to wage loss benefits beyond December 11, 2012. The case manager noted that the worker did not seek medical treatment from December 2012 to March 2013. She stated that the worker made a personal choice not to work up to April 15, 2014 because he did not have childcare and he wanted to obtain employment which was less labour intensive. Also, the case manager indicated that she was unable to find that his current earnings, which were lower than his earnings with the accident employer, were the result of his work injury of epicondylitis.

On April 14, 2014, the worker appealed the May 8, 2014 decision to Review Office. The worker was of the view that he was entitled to wage loss benefits after December 12, 2012 until he was 100% recovered.

On July 31, 2014, Review Office determined that the worker had a loss of earning capacity for the period December 12, 2012 to April 15, 2013 and therefore he was entitled to wage loss benefits for this period. Review Office indicated that the medical information supported a return to work in December 2012 on a graduated basis to modified duties and that the employer was unable to accommodate the worker with a suitable position due to a seasonal lay off. It was felt that the worker was not capable of his regular pre-accident duties full time and therefore he had a loss of earning capacity related to his compensable injury beyond December 11, 2012.

Review Office also determined that the worker was not entitled to wage loss benefits beyond May 1, 2013. Review Office stated that a return to work with the accident employer may have eliminated the worker's wage loss but the worker stated he would not return to work with the accident employer. As such, Review Office determined that there was no entitlement to wage loss benefits after May 1, 2013 as the worker's loss of earning capacity was not related to the compensable injury.

Based on video surveillance of the worker's activities between May 31 and July 25, 2014, the worker was advised on September 25, 2014 that no further responsibility would be accepted for his claim.

On October 9, 2014, the worker appealed Review Office's decision that he was not entitled to wage loss benefits beyond May 1, 2013 to the Appeal Commission and an oral 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.

Worker’s position:

The worker was self-represented at the hearing and was accompanied by his wife. The worker described being injured while working for the employer when he was loading a roll of pipe onto a truck. The injury was on top of another injury that had been building up over time. The worker went off work, but never returned to the accident employer as he knew he could not physically handle performing an extremely laborious job. The job duties included a lot of shoveling, heavy lifting, directional drilling and irrigation installation. The worker also noted that he was never called or contacted to return to work.

In May 2013, the worker obtained new employment but stated that he earned about $4.50 per hour less than he did at his pre-accident position. The worker felt that as he was injured on the job and was now unable to earn the same wage he previously earned, he ought to be entitled to WCB compensation benefits.

Employer's position:

The employer was represented by its president, general manager and HR manager. The employer was in support of the decision to deny further wage loss benefits to the worker. The employer noted a history of inconsistent statements on the part of the worker and it was noted that the worker's symptoms only began to recur in March 2013 which was coincident with the time that his wife's maternity leave was about to run out. The employer questioned whether the recurrence was a way to obtain wage loss benefits thus alleviating daycare issues. It was also noted that the medical reports were unclear and referenced issues with both elbows as well as confusion as to whether the worker's injury was medial epicondylitis or lateral epicondylitis. The employer submitted that the diagnosis of chronic medial epicondylitis could not reasonably be related to the work performed by the worker while in its employ. By the time of the hearing, the worker had returned to work for another employer and as such had reintegrated himself into the workforce. It was submitted that any ongoing symptoms claimed by the worker could not be attributed in any way to his employment with the accident employer.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits after May 1, 2013. In order for the appeal to succeed, the panel must find that the worker's compensable injury caused him to suffer a loss of earning capacity after that date. On a balance of probabilities, we are not able to make that finding.

The WCB has determined that the worker's compensable diagnosis is chronic medial epicondylitis. Although the employer questioned this diagnosis, this determination has not been appealed. The nature of a chronic medial epicondylitis condition is that it may wax and wane over time and is subject to flare ups. Although the worker was cleared for a graduated return to work in December 2012, the panel accepts that in March 2013, he suffered a flare up of the condition.

The issue before the panel revolves around the worker's physical status and functional ability as at May 1, 2013. The panel has concerns that the worker had a pattern of overstating his degree of disability and under-reporting his functional abilities. We considered the evidence surrounding the worker's condition as of May 2013 and beyond, and we noted the following:

• In a WCB memo dated April 15, 2013, the worker reported that he could not lift or push, and that even opening a door could be difficult as he had trouble twisting the handle and pushing the door open. This would suggest a very high level of disability in his arm.
• The worker's evidence at the hearing was that in April 2013, he was going stir crazy at home and so he decided to look for work. He started his new position on May 1, 2013. The panel finds it unusual that the worker would be able to commence a new job position at that time if his elbow was causing him that degree of disability.
• On June 12, 2013, the worker was examined at a WCB call-in examination. At that time, the range of motion was intact and no overt soft tissue swelling or inflammatory skin changes were noted. The only findings were based on reports of pain by the worker. Notably, a subsequent MRI was ordered to ascertain whether there was radiologic evidence of ongoing medial epicondylitis. The MRI report dated June 27, 2013 only identified signal change consistent with a diagnosis of lateral epicondylitis. No evidence of medial epicondylitis was reported.
• On June 13, 2014, surveillance video of the worker showed him working in the garden, digging up soil, and planting some plants. While the panel acknowledges the worker's explanation that the soil was very lightly packed and that he was only gardening for about 20 minutes, we nevertheless have concerns about the manner in which he was performing the shoveling motions and using his right elbow. We feel he demonstrated far more function than he was representing.
• A WCB medical advisor reviewed the surveillance video and noted that the worker demonstrated repetitive movements that would cause jarring through the right elbow and arm and would have imparted considerable load across the common flexor tendon, and yet he demonstrated no associated pain behaviour. This would suggest that the chronic medial epicondylitis condition was not causing the worker any significant degree of impairment.
• The worker's representations to the WCB indicated a far lesser degree of functional ability. WCB file notes indicate that on June 6, 2014, the worker advised that: "he tried throwing a ball around with him but after 2-3 throws, he was done" and "he can cut the grass and weed wack, but he won't be digging up anything in the yard anytime soon."
• Similarly, on June 18, 2014, the worker's wife (who was his authorized designate) advised that the worker was struggling with his condition and to date was still in too much pain. She advised that: "He can't do anything around the house with the kids, including chores inside and outside" and "he does no yard work at all."

In view of the minimal medical findings in June 2013 and the subsequent pattern of overstating of his degree of disability, the panel gave careful consideration to the worker's true functional ability to earn his pre-accident income. The worker's job duties with the accident employer were reviewed at the hearing. While the job certainly required some degree of shoveling and other physical work, it would appear that these tasks were limited and were not required to be performed on a constant repetitive basis. There was rotation of the various job duties and opportunity to rest between tasks. We feel that these job duties would have been within the worker's functional abilities.

In December 2012, after the worker's physician gave him clearance to resume a graduated return to work, the worker took no steps to re-establish himself with the accident employer. He had not spoken to the employer since November 2012, and although the crew was technically on a temporary lay-off position at that time, the worker at no time took any steps to inquire as to when he might be able to resume employment. In past lay-off situations, the worker's evidence was that he "kept calling, seeing if they had anything available." In this case, he never called or in any way contacted the employer. In the panel's opinion, the worker should have at least attempted to return to work with the employer and we feel that he could very well have performed his pre-accident duties, particularly given the fact that he was performing all of those duties prior to the acute compensable injury in July 2012 , in the environment of a pre-existing medial epicondylitis.

The panel also notes that in addition to the compensable chronic medial epicondylitis, the worker also has non-compensable diagnoses including a lateral epicondylitis, bicep tendonitis and a left elbow condition. The effects of these additional medical diagnoses likely contributed to the worker's overall perception of his functional ability, but are not compensable conditions and cannot be considered when determining the worker's entitlement to further wage loss benefits.

Overall, the panel finds on a balance of probabilities that by May 1, 2013, the worker's compensable injury had resolved sufficiently to allow him to perform his pre-accident duties and he is therefore not entitled to wage loss benefits after that date.

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 25th day of February, 2015