Decision #78/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to benefits in relation to his compensable injury. A hearing was held on May 13, 2015 toconsider the matter.
Issue
Whether or not the worker is entitled to benefits beyond thedate of accident.
Decision
That the worker is entitled to benefits beyondthe date of accident.Decision: Unanimous
Background
On April 23, 2014,the worker filed a claim with the WCB for injury to his left hand, thumb andforearm with the accident date of November 21, 2013. The worker reported:
I was turning off a hot water tap at a kitchen sink and I just wasreaching forward and used my thumb to push the handle back and it wasproblematic at that time because there was a leak so it had to be turned offhard. As soon as I pushed on it I felt apain in my left forearm. Initially Ididn't feel anything in my thumb per se. Since that time I've been unable to flex my thumb up. I don't have full range of motion of mythumb. I thought it was minor at thetime and haven't missed any time as a result. I thought maybe I pulled a muscle or sprained it. I didn't even bother seeing a doctor. I thought it would go away in time. But it's not progressing at all.
A Doctor's FirstReport showed that the worker was seen for treatment on April 16, 2014. The physician reported that the worker wasturning a tap at work a few months ago when he felt pain in his forearm andsome numbness in his thumb. Thishappened on November 21.
A left thumb x-raydated April 16, 2014 showed no bone or joint abnormality.
In May 2014, a WCBadjudicator spoke with the employer to gather additional information regardingthe worker's reporting of the November 21, 2013 work event. The adjudicator also obtained additionalinformation from the worker with respect to the work incident, the nature ofhis ongoing symptoms and the reasons for his delay in seeking medicalattention.
On May 14, 2014, theworker was advised that the WCB was accepting his claim for compensation but hewas not entitled to healthcare expenses or wage loss benefits. The WCB adjudicator based her decision on theworker's delay in seeking medication attention and the fact that he was able tocontinue working at his regular job duties without apparent difficulties orcomplaints to his employer. Theadjudicator found no evidence to conclude that the worker's currentdifficulties for which he sought medical attention in April 2014 was due to the November 21, 2013 work event. On June 16, 2014, the worker appealed thedecision to Review Office.
On October 7, 2014,Review Office determined that the worker was not entitled to benefits beyondNovember 21, 2013. Review Office notedthat the accident employer was unaware of any ongoing difficulties beyondNovember 21, 2013 until being approached by the worker in April 2014. The worker also worked concurrent jobswithout any time loss. Review Officeplaced weight on the worker's lengthy delay in seeking medical treatment andwas unable to show a direct cause effect relationship between the worker'scurrent left thumb/forearm problems and the November 21, 2013 workplaceaccident.
On November 21, 2014,the Worker Advisor Office provided Review Office with a report from the worker'streating surgeon dated October 31, 2014 for consideration. The worker advisor stated:
"We submit [the treating surgeon's] report provides additionalevidence, from a medical perspective, in support of the causal relationshipbetween [the worker's] workplace accident on November 21, 2013 and his surgeryon August 8, 2014. He reported theaccident to the employer promptly, but did not seek immediate medical attentionas the injury was not causing significant pain or disability. [The treating surgeon] explained that, whilesurgical treatment was eventually necessary, the underlying tendon rupturewould not necessarily result in disability. We submit that the worker's decision to continue working without aformal medical assessment is reasonable, especially given the nature of hiswork, the needs of his clientele, and his own personal circumstances."
In the report datedOctober 31, 2014, the treating surgeon stated:
"...The patient states that he sustained an injury while at workon November 21, 2013. The patient stateshe was turning off a water tap when he felt a sharp pain in the dorsum of hisleft forearm. Since that time, thepatient states he has been unable to extend his thumb at the IP joint. The patient did not seek medical attentionuntil April 2014 as he had other issues...that took precedence. The patient presented with difficulties usinghis hand such as putting his hand in a glove as well as doing any activitiesthat require extension of the thumb. Given that the patient still had flexion and was still able to grip andpinch although he was unable to extend his thumb, he could still function inday-to-day activities.
The patient's past medical history includes psoriatic arthritis;however, the psoriatic arthritis would have no impact on his presentingcondition to his left thumb.
The patient was taken to the operating room on August 8, 2014, when heunderwent a tendon transfer in which the extensor indicis proprius wastransferred to the extensor pollicis longus tendon to allow for him to regain afull extension of the thumb...The patient has healed very well from surgery andis back using his thumb without any restrictions.
In my opinion, mechanism of injury is consistent with thediagnosis. The patient states that hefelt an instant pain in his forearm, which would have happened at the time ofthe attritional rupture of the extensor tendon. The tendon likely would have shot back into his forearm, causing him thepain. The majority of the activitiesperformed in daily life are performed with flexion; therefore, he may not havebeen impaired by the inability to fully extend his thumb. His history of psoriatic arthritis would notbe relevant to this workplace injury."
In a second decisiondated January 14, 2015, Review Office confirmed that the worker was notentitled to benefits beyond November 21, 2013 as it was unable to accept thatthe workplace accident on November 21, 2013 caused the injury which resulted inthe worker undergoing surgery on August 8, 2014. On January 27, 2015, the worker advisorappealed Review Office's decision to the Appeal Commission and a hearing wasarranged.
Reasons
ApplicableLegislation
The Appeal Commission and its panels are bound by TheWorkers Compensation Act (the “Act”), regulations and policies of the Boardof Directors.
The worker has an accepted claim for an injury arising froma November 23, 2013 accident. He isseeking benefits beyond the date of the accident.
Under subsection 4(1) of the Act, where a worker sufferspersonal 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 thatwage loss benefits will be paid: "…where an injury to a worker results ina loss of earning capacity…" Subsection 39(2) of the Act provides that theWCB will pay wage loss benefits until such a time as the worker’s loss ofearning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) of the Act provides that theWCB "...may provide a worker with such medical aid as the board considersnecessary to cure and provide relief from an injury resulting from anaccident."
Worker Position
The worker was represented by a worker advisor who outlinedthe worker's position. The worker answered questions from his representativeand the panel.
The workeradvisor commented that on November 1, 2013, while turning off a tap with hisleft thumb, the worker felt an intense shock-like sensation with pain in hisleft forearm. He completed a Notice ofInjury form immediately and reported the accident to his supervisor at the endof his evening shift. He did not feelmedical attention or time loss would be required, but made the report to ensurethat, in the event that either was required, the paper trail would be there andthe WCB would be there to support him.
The worker didnot have ongoing pain, but found that he was unable to fully extend histhumb.
In the daysafter his injury, he gathered with friends and family to celebrate hisbirthday. He provided a number ofstatements from individuals who confirmed that on the day that they met theyhad knowledge of his reported workplace accident, and they also had knowledgeof his thumb dysfunction which was observed visually. These same individualshave also confirmed in their letters that, during their interactions during theweeks and months that followed, the worker's range of motion remainedunchanged.
He expectedthat his symptoms would resolve in the following weeks and that he had justsimply sprained his thumb. But weeksturned into months, and the pain had resolved, but the mobility never did. He did continue to work his regular job, anda second job, believing that he had pulled a muscle.
The workeradvisor said that the worker continued working for a number of reasons. He endures pain on a daily basis because of hismedical condition. The worker felt hissymptoms were insignificant relative to the high needs of his clients, and themobility dysfunction did not prevent him at any time from doing his regularwork.
The workeradvisor submitted that the WCB erred in the decision to deny the workerbenefits beyond the date of his accident. He asked that the panel acceptresponsibility for the worker's injury beyond the date of his accident, and specifically,the 13 weeks of wage loss related to the surgical repair, which is a clearconsequence of the November 21, 2013, compensable injury.
The worker outlined his duties with the employer whichincluded "Everything frommeal preparation, bowel and bladder management, range of motion, dressing,undressing, transferring, bathing, and so forth." He generally worksmidnight to 7:00 AM and has little contact with his supervisor. He also advised that he works part-time as acare giver for a private client.
The workerexplained that several family and personal health concerns were the focus ofhis attention so he did not seek treatment for his hand issue.
Employer Position
The employer was represented by its Acting Managing Directorand Workplace Training Coordinator. Theemployer representatives advised that they attended the hearing to observe andto assist with providing information. The Training Coordinator confirmed theworker's evidence regarding his night shift and minimal contact with hissupervisor.
Analysis
The worker was injured on November 23, 2013. For the worker's appeal to be approved thepanel must find that the worker sustained a loss of earning capacity andrequired medical aid as a result of this accident after the date of the injury.
The panel was able to make this finding. The panel finds, on a balance ofprobabilities, that the worker is entitled to benefits beyond the date of theinjury. In reaching this decision thepanel notes the following:
- the worker immediately reported the incident to his supervisor
- the diagnosed injury is consistent with the mechanism of injury provided by the worker
- the treating surgeon's letter of October 31, 2014
- the evidence of persons, albeit family members and a client, who were aware of the injury beyond the date of injury
- the other significant events that were taking place at the time of the injury, which delayed the worker from obtaining medical care
- the video evidence showing the worker's thumb mobility before and after the surgery
- the video evidence showing the type of fixture involved in the incident and the mechanism of the injury
Throughout the file and at the hearing, the workermaintained that the injury did not impact his ability to perform his workduties and his activities of daily living. He referred to the injury as a minor injury without pain. The only impairment was an inability to flexhis left thumb, top knuckle. This causedsome difficulty putting gloves on his left hand, using a pool cue and giving a"thumbs up."
The treating surgeon acknowledged that the impact on theworker's daily activity would be minimal. In his October 31, 2014 report the surgeon opined:
"In myopinion, mechanism of injury is consistent with the diagnosis. The patient states that he feltinstant pain in his forearm, which would have happened at the time of the attritional rupture of the extensor tendon. Thetendon likely would have shot back to his forearm,causing him the pain. The majority of activities performed in daily life are performed with flexion; therefore, he maynot have been impaired by the inability tofully extend his thumb."
In conclusion, the panel finds that the overwhelming evidencesupports that the worker is entitled to benefits beyond the date of theaccident, specifically the medical aid related to the treatment of the injuryand related time off work.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 16th day of June, 2015