The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his recurrent right elbow difficulties were not linked to his compensable claim and therefore he was not entitled to physiotherapy coverage. A hearing was held on January 20, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to physiotherapy coverage due to recurrent elbow difficulties.

Decision

That the worker is not entitled to physiotherapy coverage due to recurrent elbow difficulties.

Decision: Unanimous

Background

The worker has a compensable claim with the WCB for a work-related injury occurring in February 2007. As a result of performing his job duties, the WCB accepted that the worker developed bilateral medial epicondylitis. According to a report dated June 18, 2007 from the family physician, by June 5, 2007, the worker continued to have symptoms in his left elbow, but the right epicondylitis had resolved.

The worker continued to experience symptoms in his left elbow and on April 28, 2008, surgical release of the left medial epicondyle was performed. The worker's recovery was slow, and was complicated by an exacerbation of a pre-existing condition. In March 2010, the worker was determined to be at maximal medical improvement and permanent restrictions of lifting, push and pull were put in place.

In May 2014, the worker contacted the WCB claiming a recurrence of his right elbow injury. On May 9, 2014, a WCB case manager spoke with the worker regarding his right elbow difficulties. The worker stated:

• There were no new accidents or incidents.
• When his claim ended, he was taking medication to deal with certain symptoms and his right elbow had been pain free.
• About one month ago, he began to experience right elbow symptoms. He noticed that his elbow pain increased when operating the controls on his work vehicle. When away from the workplace, he refrained from activity due to a hip replacement.
• His right elbow symptoms were caused from using his right arm more to compensate for his permanent left elbow condition.

After an investigation into the worker's claim and consultation with the WCB's healthcare services branch on June 10, 2014, the WCB determined that the worker was entitled to physiotherapy treatment in relation to the recurrence of his right elbow condition.

On June 24 and July 17, 2014, the employer's representative appealed the WCB's decision to provide the worker with physiotherapy treatment for his right elbow condition. The employer felt there was no work-related event that caused the worker's increased symptoms and therefore a recurrence and treatment should not be accepted as a consequence of employment.

In decision dated September 15, 2014, Review Office accepted the employer's appeal and found that the worker was not entitled to physiotherapy coverage due to his recurrent elbow problems. Review Office referred to medical documentation on file dated April 7, 2010 and March 7, 2011 to support that the worker's elbow condition had been stable and did not require treatment prior to May 2014. Review Office agreed with the WCB medical opinion outlined on June 10, 2014 and concluded that the worker's elbow condition was a transient episode of an inflammation condition that was not uncommon in the general population given the worker's age and other risk-related factors. Review Office could not establish a chain of causation between the worker's recent elbow problems and the compensable injury on the claim. On September 18, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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 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.

WCB Policy 44.120.10, Medical Aid presents a comprehensive and coordinated approach to the delivery of medical-aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible.

Worker’s Position

The worker was self-represented in the appeal and was accompanied by a union representative. The worker's concern was that the WCB indicated that the right elbow condition had been stable for several years and that there were no mitigating factors at work that could have contributed to a recurrence of the injury. It was the worker's position that because of the large doses of anti-inflammatory medication which he had been taking for the left elbow condition, the symptoms he would have otherwise experienced in the right elbow were masked. The worker noted that he suffered from another condition, osteoarthritis, in his right hip. While this condition was unrelated to the bilateral epicondylitis, the worker noted that he rapidly progressed within six months from diagnosis of the hip osteoarthritis to a total hip replacement. The worker was told by his surgeon that it was unusual for osteoarthritis to progress that quickly and that a possible explanation was that the anti-inflammatory medications, which are usually given to treat osteoarthritis, had been masking the hip symptoms. The worker submitted that the same would be true for the right elbow symptoms.

With respect to work duties, the worker noted that on review of his past history of work, he identified that there had been a large increase in the number of times he was assigned to an older style of locomotive which required him to climb ladders which were entirely vertical, as opposed to newer style locomotives where the ladders were attached at a 25 degree angle. The worker submitted that climbing up the vertical ladders placed much more strain on his elbow, particularly since he had undergone the total hip replacement and had experienced weight gain since 2008. Given the permanent restrictions on the left arm, the worker's right arm had to bear most of the weight when he climbed up a vertical ladder.

Overall, the worker submitted that he did not believe that the initial injury ever completely healed but that the medications that he had been taking on a continual basis masked the symptoms. This was combined with the increase in locomotives with vertical ladders where the right arm was required to do most of the weightbearing. Eventually, the repetitive activity of getting on and off locomotives caused the right elbow injury to develop past the point where the medication could alleviate the symptoms.

Employer's Position

The employer was represented by a benefits specialist who participated via teleconference, and a return to work specialist who attended the hearing. It was noted that in May 2010, permanent restrictions for the worker were accepted and he was at maximum medical improvement for his bilateral arm injuries. The use of vertical ladders was not included in these restrictions and the worker could not recall ever telling anyone that he was having difficulty with vertical ladders. It was submitted that the worker's job position was within his compensable restrictions.

The employer further submitted that there was no substantial proof to indicate that the worker's condition had worsened. The medical opinion on file was that there are age related changes accounting for both epicondylar areas to be affected over time. A review of the medical reports since 2011 made no mention of the right elbow by any treating practitioner. The symptoms had not increased and had not required treatment for years.

Overall, it was submitted that the worker's condition was stable and did not require treatment for several years prior to May 2014. There was no causal link between his recent elbow symptoms and the compensable injury on this claim. As such, the worker should not be entitled to physiotherapy treatment.

Analysis

The issue before the panel is whether or not the worker is entitled to physiotherapy coverage due to recurrent elbow difficulties. In order for the worker's appeal to succeed, the panel must find that the right elbow difficulties which recurred in May 2014 were causally related to the bilateral epicondylitis sustained in February 2007. On a balance of probabilities, we are not able to make that finding.

On reviewing the medical evidence on file, it would appear that the worker was first seen for bilateral medial epicondylitis in February 2007. At the time, the left elbow condition was reported to be greater than the right. The condition persisted, and in April 2007, the worker received a steroid injection in his left elbow. No injection was administered to the right elbow. On follow-up on June 5, 2007, the worker was reported to continue to have symptoms in his left elbow, but his right epicondylitis had resolved.

Following the June 2007 report, there was no further mention of the worker's right elbow condition until he contacted the WCB in May 2014. It is notable that from 2007 to 2013, the worker was in frequent contact with the WCB but no difficulties regarding the right elbow were reported. During that period, the worker's right elbow was specifically examined but no abnormalities were noted. Of note, on December 21, 2009, the worker was seen for assessment by a pain management specialist who observed that strength and motor exam was grossly normal in the right arm and no reports of right sided pain, numbness or dysesthesia. Approximately a year and three months later, on March 3, 2011, the worker was examined by another pain specialist who found that elbow stress tests were negative bilaterally. No difficulties with the right elbow were reported.

The panel has considered the worker's argument that the anti-inflammatory medication had masked the symptoms, but we do not accept that the medication would completely eliminate all signs of an ongoing chronic condition. The worker's right elbow was specifically examined by two pain specialists, with no report of any issues whatsoever.

In the absence of any indication of symptoms or complaints concerning the right elbow, it is difficult to find that there was a chronic medial epicondylitis condition in the right elbow continuing from 2007 which was exacerbated in 2014 by the worker's job duties, specifically, ladder climbing. There is simply too large of a gap between 2007 and 2014 for us to find that there remains any causal relationship between the two conditions. On a balance of probabilities, the panel finds that the 2007 right medial epicondylitis resolved completely and that the more recent right elbow complaints are unrelated to the accepted claim for bilateral epicondylitis. We therefore find that the worker is not entitled to physiotherapy coverage due to recurrent 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 11th day of March, 2015