The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the degenerative changes affecting her left wrist were not related to the compensable accident of April 25, 2005. A hearing was held on January 12, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the degenerative changes affecting the worker's left wrist as being related to the April 25, 2005 compensable accident.

Decision

That responsibility should not be accepted for the degenerative changes affecting the worker's left wrist as being related to the April 25, 2005 compensable accident.

Background

On April 29, 2005, the worker filed a claim with the WCB for a left wrist injury that occurred at work on April 25, 2005. The worker reported that she was lifting a box with both hands to a level of five feet, and when she placed the box onto another box, she heard a pop in her wrist. The worker was initially diagnosed with a left wrist strain, and treatment recommendations included anti-inflammatory medications and physiotherapy.

On July 29, 2005, an orthopedic surgeon reported that the worker was seen for assessment regarding pain in her left wrist and thumb. The surgeon stated:

…it seems that [the worker] has a fracture of her left trapezium. This would account for the pop as well as the continued pain that she has had since April. I would like to obtain a CT scan of the hand in order to better assess the left thumb and trapezium…She may also have a DeQuervain's tenosynovitis, which has developed as a result of this fracture. At this point in time, we will immobilize her in a thumb spica cast, until we can obtain a CT scan of the left thumb.

A CT scan dated September 30, 2005 was read as follows:

There are lucencies in the proximal trapezium and distal scaphoid also consistent with degenerative cysts or intraosseous ganglion. No fracture is apparent. In the trapezium there is considerable loss of the cortex at the trapezio-scaphoid joint related to this lucency.

On October 20, 2005, an MRI revealed no abnormality within the left wrist or hand.

In a follow-up report dated November 10, 2005, the treating orthopedic surgeon reported that the CT scan confirmed cystic changes within the trapezium as well as cystic changes in the distal scaphoid. There were particular degenerative changes in the scaphotrapezial joint and these were confirmed on MRI. The surgeon noted that the worker was taken out of her thumb spica cast and instructed to perform range of motion exercises and to rest her left hand. She said that most of the worker's symptoms seemed to be coming from the scaphotrapezial joint. If her symptoms persisted, a reconstructive type operation for the STT (scaphoid - trapezium - trapezoid) joint might be considered.

On January 12, 2006, the treating orthopedic surgeon stated in part:

…I think that [the worker] did sustain an injury to her thumb at work in April 2005. She was completely asymptomatic before this event. She now has evidence of osteoarthritis of the STT joint of the thumb. It is difficult to prove that this occurred as a result (sic) the event, but her symptoms and their timing suggest that the accident was responsible for these changes.

In a memorandum to file dated May 11, 2006, a WCB orthopedic consultant noted that the CT scan identified similar changes as those on x-rays taken May 30, 2005. He stated that he had examined the May 30, 2005 x-rays, and opined that the x-ray changes long pre-existed the workplace injury. He noted that small cysts in the carpal bones are not uncommon and loss of cortex might be an example of progression. He further stated:

Although the radiologic abnormalities long pre-existed the workplace injury, in the absence of any evidence of another injury, I recommend acceptance of WCB responsibility for an aggravation of the pre-existing condition which is approaching enhancement.

On June 1, 2006, the treating orthopedic surgeon recommended a release of left de Quervain's tenosynovitis, which was accepted as a WCB responsibility. The procedure took place on September 15, 2006. Following physiotherapy treatments and a graduated return to work program, the worker advised the WCB on May 16, 2007, that she was now performing her full hours and regular work duties. In a further conversation with the WCB on June 28, 2007, the worker noted that she was trying to do her work differently and using her body to help her lift items. On some days, her injury was still sore.

On August 12, 2009, the worker contacted the WCB to advise that she was having further problems with her left hand and wrist. She said the pain had been getting progressively worse and she had light shooting pains in her wrist. She had no feeling in her thumb and had numbness and tingling to the nail of the thumb. Her hand and fingers on the left were easily frozen in winter. The worker related her problems to the original workplace injury.

On October 21, 2009, a WCB medical advisor reviewed the medical reports on file and stated:

In my opinion, the current left wrist symptoms are likely related to the compensable injury. She has a documented positive finkelstein's test which supports that the worker has a recurrence of her de Quervain's tenosynovitis.

On June 28, 2011, the worker contacted the WCB to advise that she was still having some lingering problems with her injury and inquired about receiving a PPI award. On July 12, 2011, the worker provided the WCB with details of her ongoing thumb and wrist difficulties. On August 22, 2011, the worker advised her case manager that according to her treating physician, advancing osteoarthritis in her wrist was directly related to her claim.

In September 2011, a WCB medical advisor was asked to comment on the worker's eligibility for a PPI award and whether chronic changes to her left thumb would be related to de Quervain's tenosynovitis and/or the release that was performed in September 2006. On September 6, 2011, the medical advisor stated:

On the balance of probabilities, the chronic changes of the CMC joint are not related to the compensable incident and the de Quervain's tenosynovitis. There is no relationship to the surgery performed.

The attending physician on his last report notes that there is a negative Finkelstein's test it is likely the de Quervain's tenosynovitis has resolved.

A full range of motion of the wrist has been described and on this basis, there would not be a functional rateable PPI.

It is unlikely that the scarring from the de Quervain's release would result in the rateable cosmetic PPI.

On September 8, 2011, the WCB orthopedic consultant was asked by the case manager to review the file information and to comment on the worker's current symptoms and their possible relationship to the compensable injury of April 25, 2005. On September 14, 2011, the consultant opined that the original diagnosis related to the April 25, 2005 accident at work was de Quervain's tenosynovitis left wrist, and an additional diagnosis related to the workplace injury would be possible aggravation of the pre-existing condition noted on the imaging studies.

The consultant stated there was no clear information as to the cause of the worker's current symptoms. It was unlikely that there was a significant continuing de Quervain's tenosynovitis. Some of the worker's symptoms might relate to progression of pre-existing degenerative changes associated with cystic deformities of the carpal bones. The consultant said the information on file supported that the worker had recovered from the previous surgical procedure for the diagnosis of de Quervain's tenosynovitis of the left wrist/thumb.

The consultant opined there was no relationship between the de Quervain's tenosynovitis and the cystic/degenerative changes of the carpal bones. He further stated that:

…as noted in my memorandum on May 11, 2006, it is possible that the injury to the left thumb/wrist region may have caused a temporary aggravation of the pre-existing condition. The current report of a normal x-ray supports that the injury did not result in an enhancement of the pre-existing condition.

In a decision dated September 22, 2011, the worker was advised that the WCB was not able to accept that her ongoing issues were still related to the compensable injury of April 25, 2005. The case manager noted that two different WCB medical advisors found no relationship between the further degenerative changes of the first CMC joint and the compensable diagnosis of de Quervain's tenosynovitis. With respect to a PPI award, the case manager advised the worker that she was not entitled to a PPI rating based on the findings that she had recovered from her compensable condition and any scarring from the arthroscopic surgery was unlikely to leave her with greater than 1% whole body impairment. In April 2012, the worker appealed the case manager's decision to Review Office.

In memos to file dated July 24 and August 23, 2012, a WCB medical advisor outlined his opinion regarding the nature of the relationship between the worker's current hand complaints and her April 2005 accident.

On November 28, 2012, a WCB plastic surgery consultant outlined her opinion related to the nature of any relationship between the worker's left STT joint arthritis and her April 2005 accident.

On November 29, 2012, a WCB physiotherapy consultant specializing in impairment awards outlined his opinion regarding a cosmetic impairment rating.

On December 3, 2012, Review Office determined that the worker was not entitled to further medical aid and wage loss benefits beyond those she had already received. Review Office stated that the worker's complaints that led her to contact the WCB in August 2009 were not related to her April 2005 accident. Review Office placed weight on the fact that the worker's accident was comparatively innocuous, and on the September 14, 2011 opinion of the WCB orthopedic consultant and the November 28, 2012 opinion of the WCB plastic surgery consultant.

Review Office further determined that the worker was entitled to a 1% PPI award for cosmetic deformity based on subsections 38(2) and 38(4) of the Act.

On September 10, 2016, the worker appealed Review Office's decision that she was not entitled to further benefits 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.

Subsection 4(1) of the Act provides that 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.

WCB Policy 44.10.20.10 (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The Policy sets out the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented. The worker made a presentation, and responded to questions from the panel.

The worker's position was that she sustained a fracture to her left trapezium as a result of the April 25, 2005 accident. The fracture was left untreated for at least three months, and provoked degenerative changes which had affected the worker since then. The worker said that when she first saw the orthopedic surgeon, the surgeon had an x-ray taken and told her she had a fracture of the trapezium bone in her left hand. The surgeon put the x-ray up on the wall and showed her where the fracture was.

The worker stated that she did not have any pre-existing conditions or problems with her left hand, thumb or wrist prior to April 25, 2005. She said that when the CT scan and MRI results came back, there were a lot of degenerative areas, and the orthopedic surgeon told her degeneration would form in those bones over time. The worker said her own research showed that if a trapezium fracture is treated immediately and properly, it should be resolved in four to six weeks. She did not get treated, however, until at least three months later, which made matters worse. She said that in her view, and in that of her orthopedic surgeon and treating physician, the degenerative changes were directly related to the April 25, 2005 incident.

In response to a question from the panel, the worker said that the only way she could explain why the September 2005 CT scan and October 2005 MRI indicated there was no apparent fracture was that they occurred five and six months after the incident, by which time the evidence of the fracture had deteriorated. The worker submitted that there was obviously enough medical evidence in the earlier x-ray to prove that there was a fracture of the trapezium.

The worker said that she did not seek further medical help between 2007 and 2009 because she had been told that she would continue to have pain in the area due to arthritis and changes from her injury. She had pain in her hand every day during that period of time, but just put up with it. She had stopped doing many things outside of work, and felt she was getting more and more arthritis in the area. She went back to the treating physician in 2009 because she wanted to follow up to see if there was anything else she could do. The worker said the condition had just continued throughout, and nothing else had happened that could have caused it.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the degenerative changes affecting the worker's left wrist as being related to the April 25, 2005 compensable accident. In order for the worker's appeal to be successful, the panel must find that the April 25, 2005 accident caused or enhanced the degenerative changes affecting the worker's left wrist. The panel is unable to make that finding.

The worker has argued that degenerative changes in her left wrist were triggered by the trapezium fracture sustained in the workplace accident. Based on our review of the medical information on file, the panel finds that the worker did not suffer an acute fracture of the left trapezium as a result of the April 25, 2005 workplace accident. The evidence shows that the treating orthopedic surgeon initially suspected a fracture of the left trapezium and ordered a CT scan to better assess the left thumb and trapezium, and confirm or disprove her suspicion. The CT scan and subsequent MRI did not show a fracture to the trapezium. It is the panel's understanding that an MRI would show not only active but also healed fractures. No fractures or abnormalities were, however, identified.

The panel is satisfied that medical information on file establishes that the worker suffers from a pre-existing degenerative condition. The panel places weight on the May 11, 2006 opinion of the WCB orthopedic consultant who reviewed the file and examined the x-rays taken May 30, 2005, and opined that the radiologic changes and abnormalities long pre-existed the workplace injury. The panel agrees with the consultant's analysis and accepts his conclusion, which was also confirmed in subsequent reports and opinions on file.

The WCB orthopedic consultant went on to recommend that in the absence of another injury, the WCB accept responsibility for "an aggravation of the pre-existing condition which is approaching enhancement." That recommendation was accepted by the WCB, and responsibility for a release of the worker's left de Quervain's tenosynovitis was accepted.

The panel finds that any aggravation of the worker's pre-existing degenerative condition was essentially resolved and her condition had returned to its baseline or pre-accident state by June 2007. The panel notes that progress reports from the treating physician show that the worker saw him approximately twice a month between February 2007 and the end of May 2007, and that the areas of degeneration were continuing to improve to the point that there were no clinical findings with respect to her wrist. In the May 31, 2007 report, it was stated that things were going well and the worker was doing her usual hours and duties. At the hearing, the worker agreed that her wrist had come back and she had good range of motion by then, but added that the pain was still not good at various times.

The panel places significant weight on the November 28, 2012 opinion of the WCB plastic surgery consultant who reviewed the file, and opined:

In summary, the aggravation of left STT arthritis in 2005 appears to have materially resolved by June, 2007, in light of i) information up to that time indicating unremarkable/good thumb movement, non-affected radial and ulnar deviation (of the wrist), no carpal bone tenderness, and no crepitations at the dorsal wrist with movement combined with ii) the recognition that [the worker] was able to return to usual duties without evident medical treatment for a period of over two years, until September, 2009.

The panel further finds that the degenerative changes in the worker's left wrist were not enhanced by her workplace injury. The panel places significant weight on the September 14, 2011 opinion of the WCB orthopedic consultant who, after reviewing the file again in 2011 and discussing it with the case manager, opined that as indicated in his May 11, 2006 opinion, it was "possible that the injury to the left thumb/wrist region may have caused a temporary aggravation of the pre-existing condition", and the current report of a normal x-ray supported that "the injury did not result in an enhancement of the pre-existing condition."

The panel also places significant weight on the November 28, 2012 opinion of the WCB plastic surgery consultant who, in addition to reviewing the file, also reviewed a CD of the available x-rays of the worker's left wrist from June 1, 2006, September 17, 2009 and August 18, 2011 with a second WCB orthopedic surgery consultant, and opined:

This review of serial imaging studies has not revealed significant radiographic progression from the initial May 30, 2005, left wrist x-ray report which indicated several erosions in the trapezium, distal scaphoid and capitate or since the June 1, 2006, x-ray finding of degenerative/cystic changes at the proximal trapezium. It is concluded that the serial imaging studies have not demonstrated probable enhancement of the pre-existing STT arthritis since May 30, 2005.

In summary, based on the objective medical evidence on file, [the worker's] current presentation appears consistent with the natural history of the pre-existing STT arthritis, a condition typically characterized by exacerbations and remissions.

The panel accepts the opinion of the WCB plastic surgery consultant, and notes that her conclusion is consistent with our review of the medical information on file and our understanding of the natural course of a degenerative condition.

Based on the foregoing, the panel finds, on a balance of probabilities, that the April 25, 2005 workplace accident did not cause or enhance the degenerative changes affecting the worker's left wrist.

To be clear, the panel specifically finds that any ongoing issues with respect to the worker's left STT arthritis since June 2007 are no longer related to the April 25, 2005 workplace injury.

The panel therefore finds that responsibility should not be accepted for the degenerative changes affecting the worker's left wrist as being related to the April 25, 2005 compensable accident.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of March, 2017