The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury.  A hearing was held via teleconference on December 15, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after April 14, 2014.

Decision

That the worker is not entitled to benefits after April 14,2014.

Decision: Unanimous

Background

On March 5, 2014, the worker was cleaning out snow and ice with a shovel when he jarred his right elbow and felt pain from his elbow to his forearm.

On the day of the accident, the worker attended a healthcare facility where he underwent a right elbow x-ray. The results showed no fracture, dislocation or effusion. The diagnosis rendered by the treating physician was a sprain to the right elbow.

When seen by his family doctor on March 12, 2014, it was reported that the worker had a history of bilateral tendinitis and that he had surgery done 18 years go. It was reported that the worker aggravated his tendinitis and was placed on medication with no relief of symptoms.

As the worker's elbow condition was not improving, his file was referred to a WCB medical advisor who outlined the following opinions on April 5, 2014:

• based on the minimal objective medical findings listed in reports dated March 5, March 12 and April 1, 2014 and the mechanism of injury, the probable diagnosis was a mild strain.
• treatment of an elbow strain typically involved ice, activity modification and functional exercises and recovery was normally within several days up to a week.
• the worker's right elbow tenderness was insufficient to warrant medical restrictions of usual activities.
• there was no objective medical evidence of a physical or functional impairment from the March 5, 2014 injury.

Based on the WCB medical advisor's opinion, the worker was advised on April 8, 2014, that he had recovered from his workplace injury and any residual symptoms were not related to his March 5, 2014 compensable injury. Therefore no responsibility would be accepted for his claim beyond March 12, 2014.

After the decision of April 8, 2014, further medical information was submitted from a physiotherapist, a chiropractor and included CT scan results. The information was then referred to a WCB medical advisor for comment.

On May 27, 2014, the worker was advised that the new information had been considered and that a relationship had not been established between his ongoing neck and right elbow/forearm and later neck issues beyond March 12, 2014 and an accident arising out of and in the course of his employment. On June 4, 2014, the worker appealed the decision to Review Office.

On August 14, 2014, Review Office confirmed that there was no entitlement to benefits beyond April 14, 2014. Review Office placed weight on the following when making its decision:

• the worker sustained a right elbow strain resulting from the March 5 accident. The mechanism of injury and the clinical findings at the time of injury supported that the injury was relatively minor. The normal recovery for a minor strain injury was within a short duration of time.

• there was insufficient evidence to show that the worker's left elbow symptoms seven days after March 12 were related to the March 5 workplace injury.
• the medical opinion outlined by the WCB medical advisor on April 5.
• the April 16 chiropractic diagnosis of nerve root irritation was not related to the workplace injury six weeks earlier.
• based on WCB policy, the worker was entitled to benefits up until April 14, 2014.

On September 8, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on December 15, 2014.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. On February 18, 2015, all interested parties were provided with a copy of the new medical information and were asked to provide comment. On March 10, 2015, the panel met further to discuss the case and rendered its decision on the issue under appeal.

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.

The worker has an accepted claim for a right elbow injury. He is seeking benefits after April 14, 2014.

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."

Worker's Position

The worker was self-represented and participated by teleconference. He explained his reason for the appeal and answered questions from the panel.

The worker told the panel that he was injured on March 5, 2014, went to the local emergency room and was diagnosed with a strain and irritated nerve. He said the ER physician recommended a week of light duties and said that if he doesn't get better, to see his own physician. He said that after a week he was not getting better and started to get irritation on the other side of his body. He said his other elbow and hand started to tingle. He subsequently saw his family physician and was referred to an orthopedic surgeon who had previously operated on the tendinitis on both his elbows. He then saw a chiropractor who suggested a neck problem. Ultimately, his family physician referred him to a neurosurgeon and an MRI was conducted.

In answer to a question about his current condition, the worker advised that things are "relatively decent." He added that he has stiffness in his neck and that his hands are tingling in the fingertips and his elbows ache periodically. He said that he has more issues on his left side than his right. He acknowledged that the left-sided issues started several days after the accident.

When asked whether the pain feels like a muscular problem or a nerve problem, he responded that he thinks it is a muscle problem. He said his neck is usually the first thing that is sore. On his left side he has pain in three fingertips and into the forearm and elbow joint on the left side. On his right side he has a little tingling in his fingertips but his elbow does not "feel bad right now."

The worker described the accident. He was cleaning packed ice and snow with the use of a spade and..."I hit something solid, and then I just felt a pain in my elbow, into my forearm, and then down in my fingertips." He said he got a numb sensation into his fingertips and his elbow and forearm were sore to move.

Regarding his prior tendinitis surgery, he advised that it was a tennis elbow impingement surgery, which he believes was related to repetitive work although a WCB file was not opened. He advised that he had no problems with his elbows after the surgery until this incident.

The worker advised that he continues to see a chiropractor. He said the chiropractor told him he had spinal stenosis. He also advised that he has been referred to a neurosurgeon.

The worker advised that prior to his workplace injury he did not have neck problems. He said he had "...a stiff neck from doing stuff, occasionally, but nothing to the point where I was down for the count for a while, no."

Employer's Position

The employer was represented by its WCB and Sick Benefits Administrator who participated by teleconference. She provided oral comments in addition to the written submission which is on file.

The employer representative advised that the employer is not questioning the worker's claim. She noted that it occurred on March 5 and that the effects of the injury, according to medical, supports the original diagnosis of strained elbow.

She noted that a CT scan indicated that the worker has central spinal stenosis, with possible nerve root compression. She advised that spinal stenosis is usually caused by age-related changes in the shape and size of the spinal canal, and is most common in people older than 50 years. She advised that it is the employer's position that the worker sustained an injury to his right elbow/forearm on March 5 and on a balance of probabilities his ongoing issues are not related to the workplace injury but to his spinal stenosis.

Analysis

The worker is appealing the WCB decision that he is not entitled to benefits beyond April 14, 2014. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and required additional medical assistance after April 14, 2014 as a result of his workplace injury. The panel is not able to make this finding.

To assist with our consideration of this appeal, the panel obtained medical information from the worker's physicians and a copy of a November 2014 MRI report. Based on all the evidence, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits beyond April 14, 2014.

In making this decision, the panel relies upon the initial medical report, dated March 5, 2014. This report, prepared by an emergency room physician noted full range elbow movement and tender extensor musculature. A diagnosis of right elbow strain was provided.

The panel notes that on March 12, 2014, the worker's family physician provided a medical report indicating "no visible deformity/swelling. Tender both ulnar sides of elbows". He provided a diagnosis of bilateral tendinitis. An April 1, 2014 report from the family physician indicates complaints of pain to the right elbow and findings of right sided elbow tenderness.

The panel is unable to relate the worker's left sided complaints to the accident. These symptoms were first reported a week after the accident. The panel finds that the mechanism of injury would be unlikely to cause left-sided symptoms. In any case, the April 1, 2014 report from his physician identified only right-sided symptoms which supports a finding that any left-sided symptoms had resolved.

For the reasons noted above, the panel is not able to relate the symptoms noted by the treating chiropractor in an April 16, 2014 report to the workplace injury.

In regard to his current condition, the worker was asked how he is doing right now and he responded:

"Relatively decent. Like, I mean, I've got stiffness in the neck, obviously. And my hands are, I get tingling in the fingertips, and the elbows ache periodically, on and off.

It's not debilitating to the point where I can't do anything, but it's like an ache."

The worker relates these symptoms to his workplace accident. He said he did something to his neck in the accident. He advised that he has been referred to a specialist and had an MRI scan.

As noted previously, the panel obtained additional medical information to ensure that it had a full picture of the worker's condition. The panel notes the findings in the November 2014 MRI report are:

"The most significant findings are at C4-5 where there is a large posterior disc-osteophyte complex resulting in moderate spinal canal stenosis as well as severe left neural foraminal narrowing."

The panel also notes that the symptoms at the time of the injury, namely right forearm and elbow pain, do not support a finding that the worker injured his neck in the workplace accident. The panel finds that the worker's ongoing symptoms are not related to the mechanism of injury described by the worker, which involved jarring his right arm while shoveling.

Regarding the diagnosis of spinal stenosis, the panel notes that this condition is generally viewed as degenerative, developing over time. The panel notes that the worker had an x-ray in November 2012 which noted degenerative changes and that his medical records note a history of neck pain. The evidence does not support, a finding that the March 5, 2014 workplace incident caused, aggravated or enhanced the worker's cervical spine or neck conditions.

The panel finds that the worker is not entitled to benefits beyond April 14, 2014. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 24th day of March, 2015