The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she had functionally recovered from her elbow condition, diagnosed asmedial epicondylitis, and was fit to participate in a graduated return to workprogram effective March 4, 2013.  Ahearing was held on April 8, 2015 to consider the matter.

Issue

Whether or not it was appropriate for the worker toparticipate in a graduated return to work program effective March 4, 2013; and 

Whether or not the worker is entitled to full wage lossbenefits after March 4, 2013.

Decision

That it was appropriate for the worker to participate in agraduated return to work program effective March 4, 2013; and 

That the worker is entitled to partial wage loss benefitsafter March 4, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for right arm/elbow symptoms that she related to her work duties as a healthcare aide. The right arm/elbow symptoms were reported to the employer on July 29, 2011. The claim for compensation was accepted based on the diagnosis of epicondylitis and in December 2011, the worker returned to modified duties with work restrictions at reduced hours.

By June 1, 2012, file information showed that the worker complained that her arm condition prevented her from doing any type of heavy lifting and that she had not returned to her regular work duties.

On July 17, 2012, an orthopedic specialist reported that the worker had cortisone injections with only limited benefit and a medial epicondylectomy was suggested. On July 31, 2012, a WCB medical advisor determined that the surgery was appropriate and related to the compensable injury. On August 23, 2012, the worker underwent medial epicondylectomy of the right elbow followed by physiotherapy treatments.

In a follow-up report dated December 18, 2012, the treating surgeon reported that the worker still had localized tenderness, a slight extension lag but otherwise her flexion, pronation and supination was satisfactory. Neurologic testing was intact. He felt the worker would likely reach maximal medical improvement in another few months.

On January 18, 2013, the worker was seen at a call-in examination by a WCB sports medicine consultant. In response to questions posed by WCB case management, the consultant indicated that the initial diagnosis related to the July 29, 2011 injury was a medial epicondylitis or "golfer's elbow." The consultant noted inconsistencies in the examination findings and was unable to determine a current pathoanatomical diagnosis. When asked about a prognosis for the worker to return to her pre-injury status, the consultant answered "As the writer is unable to find a particular pathoanatomical contraindication, prognosis for the worker to return to pre-injury status or pre-injury duties would be good on an objective basis."

In February 2013, the WCB case manager spoke with the family physician and it was agreed that the worker was able to commence a graduated return to work program.

In a referral letter to a sports medicine specialist dated February 12, 2013, the orthopedic surgeon noted that the worker underwent a medial epicondylectomy in August 2012 and there were no resulting complications. The surgeon stated: "...she had gone through all the usual rehab and she had an improved range of motion but she still has residual medial pain and tenderness and there is no neuro deficit, no infection...From my perspective, I have told her I think there is little else that can be done curatively orthopedically and progressing on and working to her level of limitation would be better than an overemphasis on rest and avoidance."

On February 21, 2013, a WCB physiotherapy advisor noted to the file that there was no supportive objective evidence to support the need for additional physiotherapy treatment.

By letter dated February 22, 2013, the worker was provided with details of her graduated return to work program that was to commence on March 4, 2013 at 2 hours per day without restrictions. The case manager noted that the return to work program was discussed with the family physician and it was agreed that a return to work would act like a reconditioning program to slowly build up the worker's strength and capacity. By April 26, 2013, it was felt that the worker would be back to her full regular work duties. The worker was advised that partial wage loss benefits would be paid during the return to work program.

In a March 1, 2013 report, the treating physiotherapist outlined work restrictions for the worker along with a list of graduated hours to be put in place. On March 11, 2013, the worker was advised by the WCB that the graduated return to work hours set out by the WCB would remain the same.

In April 2013, the worker asked Review Office to reconsider the above decisions. On June 5, 2013, Review Office wrote the worker clarifying the issues under appeal.

On June 27, 2013, Review Office determined that the worker was fit to return to full duties without restrictions as of March 4, 2013 and that she was not entitled to benefits after April 26, 2013.

Review Office noted in its decision that though the worker was of the opinion that she had severe limitations and pain related to her compensable injury, the medical findings on file did not support her position. Review Office felt the medical findings on the physiotherapy report of January 16, 2013 was contradictory to the January 18, 2013 call-in examination findings that the worker had made a functional recovery from the August 23, 2012 surgery.

Review Office noted that though the worker's physiotherapist recommended further delays in the progression of the worker's graduated return to work plan and her doctor was of the opinion that she should monitor her duties and only perform those she was comfortable with, there was no measureable or objective medical evidence to suggest this was necessary.

In conclusion, Review Office found the medical evidence did not demonstrate restrictions in relation to the worker's compensable injury and that she had functionally recovered from her right elbow medial epicondylitis. It was felt that the graduated return to work schedule laid out by the WCB was reasonable and that the worker was not entitled to further benefits after April 26, 2013.

The WCB then received a report from a physical medicine specialist dated December 20, 2013 who saw the worker in consultation on August 29, 2013. The specialist stated that it appeared the worker had ongoing pain issues with her right medial epicondyle and that she should undergo a trial of myofascial trigger point needling. He also found significant probability that she was experiencing irritation of the right ulnar nerve in the ulnar groove and that it would be worthwhile doing ulnar nerve conduction studies to assess for potential entrapment at the ulnar groove. He stated that the findings were consistent with medial epicondylitis.

On April 17, 2014, Review Office considered the new medical report and indicated that the worker's current complaint of disability and the new suggested diagnosis involving myofascial trigger points would not be related to her compensable accident given the late emergence and two years of negative findings by multiple practitioners. Review Office confirmed that the worker was fit to return to her full duties as of March 4, 2013 and to resume her full pre accident hours after April 27, 2013.

In November 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged. On December 15, 2014, the worker provided the Appeal Commission with a written submission as well as a report from an occupational health physician dated October 7, 2014.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The worker has an accepted claim for a workplace injury. She is appealing the WCB decision that it was appropriate for her to participate in a graduated return to work program effective March 4, 2013. She is also seeking full wage loss benefits after March 4, 2013.

Worker's Position

The worker was self-represented. She explained her concerns with the WCB decision and answered questions from the panel.

The worker disagreed with the WCB decision that she was fit to return to work. She also disagreed with the opinion of the WCB medical advisor that she was fit to participate in a graduated return to work program. She expressed concern about the call-in examination and the report by the WCB medical advisor which she found to be inaccurate.

The worker said that she could not return to work as recommended by the WCB. She participated in a graduated return to work program recommended by her physiotherapist. As the employer accepted the treating physiotherapist's recommended return to work program, she could not work additional hours proposed in the WCB plan. This resulted in a loss of earnings.

She said that she could not perform the duties in the position offered by the employer at the end of the program. She submitted that the position was supposed to be light duties but that it was not. She also advised that she had to take pain killers to enable her to work and that this caused a relapse in her depression. This resulted in her retirement.

She advised that the employer offered her another healthcare aide job in a facility which was a long distance from her home. She preferred to work as a healthcare aide at her original position which was in a facility closer to her home.

She described her retirement as "forced" and advised that she has since found employment in a different occupation.

The worker advised that she retired in May 2014. She is seeking wage loss benefits to the date of her retirement.

With respect to her medical condition, the worker advised that she saw a physical medicine specialist who recommended that she have injections. She said that she did not undergo the recommended treatments.

In response to a question about the condition of her arm today, she responded "Very good. Certain movements, like driving the vehicle, I can feel it in my elbow." She said that she does self-massage, weights and push-ups. Regarding the improvement, she attributed it to "...just healing and time, and then continuing to do a certain amount of my own physiotherapy and strengthening."

Employer's Position

The employer was represented by an employer advocate. He noted that the worker was in a position where the WCB made one determination, that she was recovered from her injury and her physiotherapist had a different opinion. He said that the employer followed the physiotherapist's recommendation.

The employer representative noted that this resulted in a gap in benefit eligibility for the worker. He advised that the employer did its best to accommodate the worker within the parameters identified by the physiotherapist. He noted that the worker was not able to meet those parameters.

The employer representative explained that if the WCB ends responsibility and the worker has a doctor or a physiotherapist recommending restrictions, the employer will follow such a recommendation. He advised that the employer attempts accommodation, but if they’re unable to accommodate, then the default would be sick time or insurance.

The employer representative said that the employer does not disagree with the WCB decision but that the employer had a duty to accommodate the worker. He said that every effort was made to accommodate the worker but that it didn’t work out. She ended up on health benefits (disability) for a period of time and then retired. He noted that the medical evidence that was put forward by the WCB medical advisor essentially didn’t find subjective findings to warrant ongoing responsibility. He said that at the end of the day the return to work and accommodation efforts failed not really because of the workplace injury but due to other issues and other health care problems.

Analysis

There were 2 issues before the panel.

Issue 1. Whether it was appropriate for the worker to participate in a graduated return to work program effective March 4, 2013?

For the worker's appeal to be approved, the panel must find that the worker continued to suffer the effects of the compensable injury and was medically unable to participate in the return to work program. The panel was not able to make this finding.

The panel has considered the medical evidence on the file and finds that the worker was fit to participate in a graduated return to work program. The panel accepts the opinion of the WCB medical advisor set out in a memo dated January 21, 2013. The memo notes that the worker was examined by the WCB medical advisor on January 18, 2013. The medical advisor reported that he could not find a pathoanatomical diagnosis for the worker's symptoms and concluded that "...the prognosis for the worker to return to pre-injury status or pre-injury duties would be good on an objective basis."

The panel also notes the worker's treating physician's letter dated February 5, 2013 indicates that she reviewed the WCB medical advisor's notes and is in agreement with a gradual return to work.

The panel finds that it was appropriate for the worker to participate in a graduated return to work program effective March 4, 2013.

The worker's appeal of this issue is dismissed.

2. Whether the worker is entitled to full wage loss benefits after March 4, 2013.

For the worker's appeal of this issue to be approved, the panel must find that the worker sustained a loss of earning capacity as a result of the injury after March 4, 2013 to the extent that she could not participate in a graduated return to work. The panel was not able to make this finding.

As noted under Issue 1 above, the panel finds that the worker was able to participate in a graduated return to work program effective March 4, 2013. The panel notes that the worker did participate in a graduated return to work program which was recommended by the treating physiotherapist. This program provided for a slow increase in hours. The panel finds, in the circumstances of this claim, that it was appropriate for the worker to follow the plan recommended by the physiotherapist. It is noted that the employer implemented the plan proposed by the physiotherapist. Accordingly, the panel finds that the worker is entitled to partial benefits based on the schedule recommended by the treating physiotherapist and implemented by the worker and employer. The panel understands that the worker ceased participation in the plan, for non-compensable reasons on April 22, 2013. Accordingly, partial wage loss benefits should be paid to this date.

The worker's appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 1st day of May, 2015