The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further benefits in relation to his compensation claim. A hearing was held on April 26, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to his accident of May 23, 2015.

Decision

That the worker is entitled to further benefits in relation to his accident of May 23, 2015.

Background

The worker filed a claim with the WCB for a right elbow injury that occurred at work on May 23, 2015 when he struck his elbow on the outside edge of a steel door. Following the accident, the worker continued to work and sought medical attention on June 30, 2015. The diagnosis outlined was "right elbow epicondylitis NYD" (not yet diagnosed). When seen by a physiotherapist in early July 2015, the diagnosis was lateral epicondylitis. On July 2, 2015, an x-ray of the right elbow was read as follows:

"No fracture, malalignment or elbow joint effusion is identified. Bony spurring is noted at the insertion of the triceps tendon on the olecranon. Subtle calcific enthesopathy is also noted adjacent to the medial epicondyle."

A WCB sports medicine consultant reviewed the file on September 30, 2015 and opined as follows:

1. The current diagnosis is right lateral epicondylosis as per recent physiotherapy findings.

2. The mechanism of injury on May 23, 2015 was consistent with a right elbow contusion rather than epicondylosis. Epicondylosis occurs in relation to activities requiring repetitive firmly resisted hand grasp, or repetitive weight wrist extension. The current presentation is not concordant with the May 23, 2015 mechanism of injury.

3. The natural history of an elbow contusion is for improvement in pain/function over a few days or up to a couple of weeks.

In a decision dated October 23, 2015, the worker was advised by primary adjudication that based on all the available file information which included the WCB medical advisor's opinion, it was determined that he had recovered from the injury to his right elbow that he suffered on May 23, 2015 and any current difficulties were not related to the compensable injury.

On November 24, 2015, the family physician wrote the WCB to support that the origin of the worker's right elbow pain was directly related to the injury he sustained on May 23, 2015.

On December 17, 2016, a chiropractor wrote the WCB to advise that he referred the worker to an orthopedic specialist to discuss the issue of his acute right lateral epicondylitis.

In a report dated December 9, 2015 the orthopedic specialist stated "Regarding his right elbow, I do believe that contusion to the lateral epicondyle can be the cause and therefore, I think that since this happened at work, it should be covered by WCB."

On January 7, 2016, the worker was notified that the new medical reports had been considered by the WCB and that no change would be made to the previous decision dated October 23, 2015. On January 21, 2016, the worker appealed the decision to Review Office. On March 1, 2016, the employer's representative submitted that the diagnosis of lateral epicondylitis was not consistent with the mechanism of injury associated with the May 23, 2015 workplace injury.

On March 24, 2016, Review Office concluded that the worker was not entitled to further benefits. Review Office accepted the opinion provided by the WCB sports medicine consultant and concluded that by June 30, 2015, there was no evidence of ongoing disability that would support further entitlement to either wage loss or medical aid benefits. Any medical investigations of the left elbow or treatments beyond that date were considered by Review Office to be unrelated to the contusion sustained over two months earlier. On December 12, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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.

The worker has an accepted claim for a workplace injury on May 23, 2015.  He is appealing the WCB decision that denied responsibility for certain difficulties which he asserts are related to the compensable injury. He is seeking further benefits in relation to his accident of May 23, 2015.

Worker's Position

The worker attended the hearing with his daughter who assisted him in presenting his appeal. He was also assisted by an interpreter.

The worker advised that at about 4:00 a.m. on the day of the accident, he was picking up wood sticks to prepare for a blast.  He was loading the sticks into his work vehicle, opened the vehicle's door, left the door open and hit his elbow against the outside edge of the door when loading the wood.  He said this caused significant pain and he had to stop.  He then called his supervisor on the phone.  He told him that he injured his elbow.  

The worker pointed to a spot about two inches above the elbow bone where he hit his arm.  He said that his elbow was swollen and that his supervisor took him to first aid.  He was given ice and stayed in first aid for two and a half hours.  After this, the employer arranged for a cab to take him home.

When he returned to work his arm was still swollen.  He went to first aid and was given ice.  He said that every day, he went to work and used ice.  After about two weeks, he was told to see his physician.  The worker saw his physician and a physiotherapist.  He received physiotherapy treatments but this did not resolve his pain.  The physiotherapist recommended that he see an orthopedic specialist and his physician.  The worker also saw a chiropractor who referred him to the orthopedic specialist.  

The worker initially saw the orthopedic specialist on December 9, 2015.  He received injections which did not resolve his pain.  The orthopedic surgeon ultimately performed surgery on the worker's elbow on October 27, 2016.

Regarding his work duties, the worker advised that he was in a light duty positon at the time of the accident due to a prior injury.  He returned to this position after the accident.

Employer's Position

The employer was represented by its WCB Administrator and Manager, Safety, Health and Environment.

The employer representative submitted that:

• the evidence on file does not meet the criteria under legislation and policy.
• the worker’s current diagnosis is chronic lateral epicondylitis which is most often associated with overuse in the form of repetitive motion.
• the compensable injury associated with this claim, however, is contusion to the right elbow.
• the worker delayed diagnosis and treatment for over five weeks following the injury.
• the employer's records indicate that the worker worked two shifts following the injury and first saw the first aid on the worksite at 5:30 a.m. on May 25, 2015.
• on July 2, 2015, six weeks post-injury, the worker’s right elbow was x-rayed and the x-ray did not show any evidence of an acute injury to the compensable injury site.
• on September 30, 2015, a WCB medical advisor noted that the mechanism of injury is not consistent with the worker’s ongoing problems with his elbow.  He clearly states epicondylitis occurs in relation to activities requiring repetitive, firm grip, resisted hand grasp or repetitive weight wrist extension.
• the current presentation is not concordant with the May 23, 2015 mechanism of injury.
• because the diagnosis was delayed five weeks post-injury, the true impact of the direct force to his elbow is not known.
• the x-ray did not show any sign of contusion, only degenerative changes unrelated to the workplace injury.
• there is no evidence that the worker’s ongoing difficulties arose out of and in the course of employment as required under WCB policy 44.05.

In answer to a question about whether there is a log book or record of the worker's attendance at the First Aid station, the employer representative advised that she has the log books from the first aid visit, and the first record of him visiting is at 5:30 a.m. on Monday, May 25, with an indication that he injured himself on May 23.

The employer representative advised that the log book noted that on May 23, 2015 at 4:00 a.m., the employee was picking up blasting sticks when he hit his right elbow on the door of a vehicle.  It also indicated that:

Pain when flexing, radiating into hand, tender to touch, zero swelling, zero bruising, just reporting for today…

The Manager confirmed there is not a nurse on site on weekends.  He indicated that there are security staff with medical training on site at all times.

The employer representative read the Incident Report into the record:

 Hurt elbow, description, when employee was loading some wooden loading sticks in [vehicle], he banged his right elbow on rear door.  Immediate action, let supervisor know, will see first aid in a.m. on Monday.

Analysis

The worker is appealing the WCB decision that he is not entitled to further benefits in relation to his accepted accident of May 23, 2015.  For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and/or required additional medical aid benefits.  The panel is able to make this finding.

The panel finds, on a balance of probabilities, that the worker is entitled to further benefits in relation to his accident of May 23, 2015.  The panel finds that the worker developed lateral epicondylitis as a result of the workplace injury.  In support of this finding, the panel notes that:

• the worker described the accident as a blow to his elbow.  At the hearing, he pointed to his right lateral epicondyle area as the site of the blow and subsequent surgery.
• the worker immediately reported the accident to his direct supervisor and was provided with ice to apply to the injured area.  The worker sought medical treatment at the employer's first aid station on May 25, the first day that it was staffed.
• the incident report prepared by the employer is consistent with the worker's description of the accident.

With respect to the etiology of the injury, the panel notes the continuity of symptoms and pain management by the worker at that anatomical site, and accepts the December 9, 2015 opinion of the orthopedic specialist:            

Regarding his right elbow, I do believe that contusion to the lateral epicondyle can be the cause and therefore, I think that since this happened at work, it should be covered by WCB.

There was discussion regarding whether the worker sought first aid assistance on the morning of the injury or delayed for a couple days.  The panel finds, based on the evidence, that the worker was provided with ice on the morning of the injury and was provided with a taxi to get home as he could not drive.  The panel further finds that he first attended the First Aid station on May 25.  It is noted that he was injured early in the morning of the 23rd and this was a Saturday when the First Aid Station is not staffed.  The worker attended the First Aid station on Monday, May 25, the first day that it was staffed.

The panel finds that the worker reported the incident appropriately and promptly received first aid assistance.

In conclusion, the panel finds, on a balance of probabilities, that the worker injured his lateral epicondyle while at work on May 23, 2015, requiring surgical repair of his injury, and is accordingly entitled to further benefits as a result of the injury. 

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 29th day of May, 2017