The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding her compensation claim.  A hearing was held on November 9, 2016 to consider the worker's appeal.

Issue

Whether or not the focal tenosynovitis should be accepted as a consequence of the July 20, 2012 compensable accident; and

Whether or not the worker is entitled to benefits after October 3, 2012.

Decision

That the focal tenosynovitis should be accepted as a consequence of the July 20, 2012 compensable accident; and

That the worker is entitled to wage loss benefits from the day of surgery up to and including her recovery date and medical aid benefits for treatment of the focal tenosynovitis and related surgery.

Background

On July 24, 2012, the employer submitted an Employer Injury Report dated July 24, 2012 which included an "Employee Accident Report" dated July 20, 2012, signed by the worker, stated:

Incident occurred July 19. Was carrying a bag…tripped…braced arm against metal clothing rack. Strained wrist went to hospital July 20th for professional opinion.

Initial medical information consisted of an x-ray and a hospital emergency report dated July 20, 2012 and a report from the treating physician dated July 31, 2012. The claim for compensation was accepted by the WCB based on the diagnosis of a left hand extensor and flexor tendonitis.

At the request of the treating physician, the worker was seen at the WCB office for a call-in assessment on September 18, 2012. After the assessment, the medical advisor stated:

Based on the medical information on file and on today's examination, the initial diagnosis was likely a left hand contusion and soft tissue injury. The typical natural history of such conditions is for recovery over a period of days to a few weeks without a requirement for specific treatment. Currently the symptoms described by [worker] and the findings of the examination point to non-specific pain and numbness to the left hand, not accounted for by the compensable injury.

As noted above, restrictions are not currently medically accounted for in relation to the compensable injury. It has been 8 weeks since the aforementioned injury and a contusion would not explain the degree of disability which was shown during the examination.

In a decision dated September 26, 2012, the worker was advised that based on the results of the call-in assessment, it was the adjudicator's opinion that she had recovered from the effects of the July 20, 2012 compensable injury and was not entitled to wage loss or medical aid benefits beyond October 3, 2012.

In a doctor progress report dated September 28, 2012, a different physician reported that the worker had pain, weakness and numbness of the left hand, wrist and fingers. The diagnosis was possible development of left carpal tunnel syndrome ("CTS").

At the WCB's request, the worker was seen by a second neurologist for an assessment on January 4, 2013 who stated:

In my opinion [worker] suffered a soft tissue injury to the palm of her left hand. Her ongoing tenderness and pain in the palm is related to injury to deep structures in the palm and in particular, there may have been injury to the deep transverse metacarpal ligament and that type of injury would result in pain for six to twelve months or more…

On February 12, 2013, the worker was seen at the WCB offices for a call-in assessment. The examining plastic surgery consultant stated, in part:

[Worker] reported a fall on July 20, 2012, in which she noted impact to her left distal mid-palm, a mechanism of injury suggestive of a contusion to said area. Contusions are typically anticipated to improve over the course of weeks. It has been approximately seven months post-injury which is outside the expected recovery time for a contusion.

The medical advisor recommended an MRI assessment of the left hand to assess for any underlying pathology in the ligaments and tendons. The medical advisor also noted that the mild CTS on the left side was not medically accounted for in relation to the workplace injury.

An MRI of the left hand dated March 15, 2013 revealed a suspected very mild focal tenosynovitis of the flexor tendons supplying the third digit at the level of the third metacarpal phalangeal joint. No other acute abnormality was noted.

On March 22, 2013, the WCB plastic surgery consultant reviewed the March 15, 2013 MRI report and stated that a focal tenosynovitis appears to have developed.

At the WCB's request, the worker was seen by a sports medicine physician for an assessment and his examination reports are on file dated May 31 and June 10, 2013.

On June 25, 2013, the WCB plastic surgery consultant reviewed the reports by the sports medicine physician and stated:

The May 31, 2012 (sic) report noted left hand exam findings similar to those of my February 12, 2013, call-in exam, i.e. no swelling or deformity at the left hand, no tendinous thickening at the flexor region, full range of motion at the wrist, MCP, and IP joints, and no crepitus. The treating sports medicine physician noted that there was no objective evidence of physical impairment as it relates to [worker's] hand that would prevent working in some capacity…the imposition of restrictions on left hand function is not recommended.

In a decision dated June 27, 2013, the worker was advised that based on the WCB healthcare opinion dated June 25, 2013, it was the WCB's position that she had recovered from the effects of the July 20, 2012 compensable injury and wage loss and medical aid benefits would be paid up to and including July 4, 2013.

On December 8, 2014, an MRI of the left hand and wrist was read as follows:

A minor scar with a very minimal metallic artifact is present at the third midcarpal level volar, likely at the site of prior injury. From this level to the MCP joint there is early splitting of the flex superficialls into medial and lateral hands, with minor fluid in the flexor tendon sheath.

At a follow-up visit on March 12, 2015, the neurologist outlined his examinations findings and stated the worker was unable to work at or perform the essential tasks of her employment or any other employment as a result of the accident.

On March 30, 2015, a WCB medical advisor spoke with the reading radiologist via telephone to clarify the December 8, 2014 and March 15, 2013 left hand MRI findings.

On April 24, 2015, a WCB orthopedic consultant stated, in part:

The reports of the comprehensive physical assessments at the Workers Compensation Board have not identified unequivocal evidence of loss of function, which would merit placement of workplace restrictions, and in particular, do not support the neurologist's opinion of total disability.

On May 5, 2015, the worker was advised that based on the WCB orthopedic opinion, there were no workplace restrictions related to the July 20, 2012 left hand injury.

On October 13, 2014, the Worker Advisor Office submitted a September 10, 2015 report from the treating neurologist who indicated that the worker was recently diagnosed with a trigger finger involving the left hand middle finger and that the worker was awaiting surgery. The neurologist believed that the diagnosis was a direct result of the July 2012 workplace injury.

In a report dated October 26, 2015, the treating surgeon reported that surgery was planned for November 10, 2015 to release the left middle trigger finger.

On November 4, 2015, a WCB orthopedic consultant stated, in part, that the proposed surgery may be appropriate to the current diagnosis, but the diagnosis was not the result of the compensable injury of the claim.

In a decision dated November 16, 2015, the worker was advised that the WCB was unable to rescind its previous decision of May 5, 2015 and that the proposed surgical release of the left middle trigger finger was not the WCB's responsibility as it was not considered related to the compensable injury of July 2012.

On December 14, 2015, the worker advisor submitted to Review Office that the worker's left hand difficulties beyond July 4, 2013 were related to her workplace accident of July 20, 2012 and asked for reconsideration of the decisions dated May 5 and November 16, 2015.

Prior to considering the worker's appeal, Review Office sought medical advice from the WCB orthopedic consultant dated February 24, 2016. The consultant provided rationale to support that the initial diagnosis of the compensable injury was a minor soft tissue contusion of the left palm and that the compensable injury was not responsible for the much later development of stenosing tenosynovitis of the left middle finger.

On March 1, 2016, Review Office expanded the issues to include whether the flexor tenosynovitis was a compensable condition and whether there was entitlement to benefits beyond October 3, 2012.

In a decision dated March 17, 2016, Review Office determined that the focal tenosynovitis was not a compensable condition and there was no entitlement to benefits beyond October 3, 2012.

Review Office concluded that the worker had recovered from her compensable hand contusion/soft tissue injury based on the examination findings and opinion expressed by the WCB medical consultant following the examination on September 18, 2012. Review Office noted that benefits were paid to the worker up to October 3, 2012 based on policy 44.30.60, Notice of Change in Benefits and Services, and that there was no entitlement to benefits beyond that date in relation to the compensable injury.

Review Office also concluded that the diagnosis of focal tenosynovitis was not a compensable condition nor was it a "subsequent injury" and that Compensation Services should not have reinstated the worker's benefits. Review Office noted that the findings associated with this diagnosis were not present at close proximity to the accident nor at the time of the September 18, 2012 examination.

Review Office stated the worker also had a prior injury involving the palmar aspect of her left hand in which surgery was undertaken several years earlier. Based on the mechanism of injury and the early clinical findings on file, Review Office said the workplace injury did not aggravate or enhance this asymptomatic pre-existing condition.

Review Office concluded that the diagnosis of trigger finger that was diagnosed three years later was not related to the soft tissue contusion based on the medical evidence in closest proximity to the workplace accident. On March 30, 3016, the worker advisor 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 WCB's Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB. To have an acceptable claim, the worker must have suffered an injury by accident that arose out of and in the course of employment.

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."

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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

The worker has an accepted claim and is seeking WCB coverage for a medical condition which was identified after the workplace injury.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from her representative and the panel.

The worker's representative advised that it is the worker's position that her focal tenosynovitis is a compensable condition, which is a consequence of the July 20, 2012 compensable accident. It is also her position that she is entitled to benefits beyond October 3, 2012 for this injury.

The worker's representative noted the WCB’s plastic surgery consultant’s opinion of March 22, 2013 that the focal tenosynovitis had developed as a subsequent injury in relation to the worker’s contusion injury and that based on this opinion, benefits were considered as payable up to July 4, 2013. She noted that Review Office did not support the diagnosis of focal tenosynovitis as being related to the workplace accident.

At the request of her representative, the worker described the accident. She said she was:

Walking to put a box away that I had packed, I tripped over, whatever, on the floor, a bunch of…donations, dropping the box, putting my hands forward to brace my fall. There was a clothes rack in the corner by the door, and I hit my hand, left hand, on the clothes rack, which was shaped kind of like an umbrella, hurting my hand.

In answer to questions from the panel on the mechanism of injury, the worker indicated that she hit her hand on the palm below the middle finger. She described the surface where her hand hit as flat "but very narrow." She said she sat down after hitting the rack. She said that she hit with "a pretty good force because I was moving pretty quickly…"

The worker explained that she hit the middle finger of her left hand, but her biggest concern at the time was about the injury to her left hand, which is her dominant hand, so she sought medical attention at a hospital. She said that her hand was bruised.

The worker's representative submitted that the injury to the flexors of the third and fourth fingers have been ongoing and was consistent with a flexor tendon-type injury, particularly to the third or middle finger. The worker's representative noted that the first doctor’s first report, dated July 31, 2012, confirmed a diagnosis of tendonitis, extensor and flexor aspect of the left hand. The examination findings also confirm a decreased range of motion at the metacarpal joints.

With respect to the WCB’s position that the worker had recovered by September 2012, the worker's representative submitted that the examination findings by WCB medical advisor of September 18, 2012 counter this position. She stated that:

The examination confirms at the metacarpal phalangeal joints and discomfort over the second and third metacarpal phalangeal joints which are located at the base of the fingers.

The worker's representative noted that an independent assessment, by a neurologist, dated January 8, 2013, confirmed there continued to be a maximal point of tenderness in the middle of the palm and extension of the middle and ring fingers on attempted extension of those fingers. He provided a diagnosis of a soft tissue injury to the palm of her left hand and concluded there is a "clear cause and effect in this situation."

The worker's representative also noted the March 22, 2013 opinion of the WCB plastic surgery specialist, who commented that after a review of the MRI, in relation to the initial mechanism of injury and resulting contusion, a focal tenosynovitis appears to have developed as evidenced by the March 15, 2013 MRI.

The worker representative submitted this supports a direct relationship between the mechanism of injury, being a contusion, and a further injury of focal tenosynovitis having developed.

The worker's representative noted other medical reports support the worker's position.

The worker's representative submitted that:

It is our position that this is a further WCB responsibility based on Board policy 44.10.80.40, further injury subsequent to a compensable injury, which states that when a cause of a further injury is predominately attributable to the compensable injury, a WCB responsibility continues.

Regarding wage loss, the worker's representative advised that the worker has a loss of earning capacity because her employer was not willing to accommodate her but terminated her employment.

With respect to a metal artifact noted on an MRI, the worker advised that she had fallen many years before and had a wooden splinter which was surgically removed. She denied having any metal splinter. She also noted that the splinter was closer to the base of her palm, rather than the fingers, and demonstrated the location to the panel.

In answer to a question about when she first noticed the trigger finger, the worker advised that it was two to three months after the accident. She said she went to grab things like a cup and her finger would lock, or she would drop it, and she had to physically unclick her finger.

Employer's Position

The employer was represented by its President/CEO.

The employer representative could not confirm the date of the accident. He advised that he understood there was a different accident. He also advised that the worker was terminated for reasons unrelated to the accident.

In answer to questions, the employer provided a description of the business and staff duties.

Analysis

The appeal deals with two issues arising from a fall at work on July 20, 2012.

Issue 1: Whether the worker's focal tenosynovitis should be accepted as a consequence of the July 20, 2012 compensable accident.

For the worker's focal tenosynovitis to be accepted, the panel must find that the condition arose out of and in the course of her employment. For the reasons that follow, the panel finds that the worker's focal tenosynovitis condition did arise out of and in the course of the worker's employment and that the condition is compensable.

The panel notes that on March 22, 2013 the WCB plastic surgery consultant stated: In relation to the initial mechanism of injury and resulting contusion, a focal tenosynovitis appears to have developed, as per the March 15, 2013, MRI finding of very mild focal tenosynovitis of the flexor tendons to the middle finger at the level of the MCP joint.

The panel accepts this opinion and finds that the worker's focal tenosynovitis condition in 2012/2013 was a consequence of the compensable injury. As for the later findings of focal tenosynovitis, the panel finds that it is also related to the worker's compensable injury, even with the absence of significant findings in the interim period (see Issue 2 analysis below). The panel notes that a later MRI report of December 2014 stated "Previously there was fluid within the third flexor tendon sheath at the level of the distal metacarpal and this is again identified but there is a very minimal fluid."

The panel finds that this report confirms the symptoms had improved but that the underlying condition in the same anatomical area had not resolved. The panel further finds that the worker had no functional impairment at the time the December 2014 MRI was conducted but that at a later date, her condition flared up and she required surgery.

The panel notes that the worker had surgery on her hand on November 10, 2015 and that the operative report confirms the excision of ganglion left middle finger and release of left middle trigger finger. This confirms the early diagnosis.

The worker's appeal of this issue is approved.

Issue 2: Whether the worker is entitled to benefits after October 3, 2012.

For the worker's appeal of this issue to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical aid benefits as a result of the accident.

The panel finds, on a balance of probabilities, that the worker's work injury did cause a loss of earning capacity beyond October 3, 2012, specifically for the period related to the compensable hand surgery and recovery from the surgery. The panel also finds that the worker is entitled to medical aid benefits relating to treatment of her focal tenosynovitis and resulting surgery.

In making the finding that the worker has a limited entitlement to benefits, which address the worker's condition after October 3, 2012, the panel attaches weight to the following medical opinions:

• Treating sports medicine physician report dated June 4, 2013 that "presently no objective evidence of physical impairment as it relates to her hand that would prevent working in some capacity."

• WCB plastic surgery consultant report dated June 25, 2013 which considers the sports medicine physician's above noted report and agrees that there is no impairment of the worker's hand.

The panel acknowledges that the neurologist opined in March 2015 that the worker was unable to work due to her hand injury. However, the panel attaches little weight to this opinion given the neurologist's disclaimer that "I am a neurologist and not either an orthopedic or hand surgeon and can make no further comments."

As stated above, the panel finds that the worker is entitled to wage loss for the date of the surgery and a reasonable period thereafter for recovery from the surgery.

The worker's appeal on this issue is approved, in part.

Panel Members

A. Scramstad, Presiding Officer

A. Finkel, Commissioner

M. Payette, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of January, 2017