The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits in relation to her left index finger as being a consequence of the May 30, 2016 accident. A hearing was held on April 25, 2017 to consider the matter.

Issue

Whether or not the worker is entitled to benefits in relation to a left index finger injury as being a consequence of the May 30, 2016 accident.

Decision

That the worker is entitled to benefits in relation to a left index finger injury as being a consequence of the May 30, 2016 accident.

Background

On May 30, 2016, the worker was in the process of draining a pond when she slipped. The worker stated:

My arm landed on a big log on the edge of the pond and then bounced down to a stone, then bounced to the edge of the cement pond. I tried to get up and couldn't. When I looked at my arm, I realized it was hanging strangely and it looked like I had an extra elbow.

On the same day of injury, the worker attended a hospital facility and underwent the following surgical procedures:

• Irrigation and debridement Grade 1 open radius shaft fracture.

• Open reduction internal fixation of left radius shaft fracture.

• Open reduction internal fixation of left distal ulna shaft fracture

• Open reduction internal fixation of left proximal ulna shaft fracture.

On June 20, 2016, the worker was seen by a physiotherapist for an initial assessment. The diagnosis outlined was a radius/ulnar fracture, a possible ulnar nerve injury and a possible D2 PIP fracture.

On June 21, 2016, an x-ray report of the worker's left hand stated:

…There is what appears to be a recent fracture of the distal ulna just distal to the side plate. There is an amorphous appearance in the shafts of the 2nd metacarpal as well as the middle and proximal phalanges of the index finger with some expansion of the shafts of uncertain nature but likely due to fibrous dysplasia. No further abnormalities are identified.

In a report dated June 21, 2016, the family physician noted that the worker had a work-related injury to her left forearm and that she had been suffering from left index finger pain. The physician noted that the worker was not able to bend it to straighten it without the side shifting. The diagnosis was "left index finger tendon tear?/fracture."

In a report dated July 21, 2016, the family physician stated:

[Worker]…presented to our clinic with a history of fibrous dysplasia of the left hand wrist on March 2016, no pain. Had a fracture of her left wrist as a child, MRI confirmed diagnosis, and CT showed no evidence of pathological fracture.

On June 21, 2016 she came for F/U (follow up) of her most recent injury related to work, on June 22, 2016 came back with a long Hx (history) of enability (sic) of straightening of her left index, x- ray showed same issue with her hand, referring to the dysplasia.

On August 4, 2016, a WCB orthopedic consultant reviewed the information and stated:

• The diagnosis of the left hand was a bone lesion of the second metacarpal consistent with polyostotic fibrous dysplasia of bone.

• Although it was possible that a fracture has occurred in the abnormal second left metacarpal bone at the time of the workplace injury, the information on file suggests that it is more likely that the symptoms at the index finger ray are caused by an expansile bone lesion which was symptomatic prior to the workplace injury.

• The workplace injury caused an open fracture of the left mid-radius and proximal and distal segmental fractures of the left radius. Surgery for debridement and ORIF (open reduction & internal fixation) was appropriate and was related to the workplace injury.

• After such a fracture, it is usual for hand and wrist and elbow movements to be affected, requiring physiotherapy addressed to the entire upper limb.

In a report dated August 11, 2016, the treating surgeon reported:

She has a history of fibrous dysplasia of the second ray of the ipsilateral hand. She had some ulnar splay of the second finger in the initial postop period and this was gradually improving. She states that her forearm is starting to feel better.

In a report dated September 8, 2016, a hand specialist reported:

…Since the time of the injury, the patient has had issues with the left index finger. The patient states that it has rotated. Therefore she was sent for x-rays, CT scans, and MRIs to assess whether there was a fracture. The patient does have a past medical history of fibrous dysplasia involving the left index finger. The patient states that with physiotherapy the pain as well as the range of motion as well as the rotation has improved…X-ray reveals that she does have fibrous dysplasia involving the left index finger. However, I cannot appreciate a fracture. She does have some expansile lesions. However, she does not have significant thinning of the outer cortex to put her at risk of a pathological fracture at this time.

In a report dated October 5, 2016, the treating orthopedic surgeon stated:

"…In terms of the finger, considering that she did not have this deformity prior to the accident, we do believe that the hand deformity was caused by the accident. This may be due to scarring or tethering of the several of the tendons, which insert on the index finger."

On October 8, 2016, the WCB's orthopedic consultant opined to the file that fibrous dysplasia of bone is a pre-existing condition and that there was no medical evidence that this pre-existing condition had been aggravated. The plastic surgeon agreed that there was not a metacarpal fracture. The worker's ongoing symptoms were caused by a combination of the pre-existing condition and the workplace injury.

In a decision dated October 11, 2016, the worker was advised by Compensation Services that a relationship could not be established between the development of her left hand difficulties (index finger) and the workplace injury of May 30, 2016. The adjudicator noted that the first mention of left hand symptoms was on June 20, 2016 and that the medical providers indicated a history of left hand symptoms that pre-dated the work injury of May 30, 2016. The adjudicator also referred to the opinion of the WCB orthopedic consultant that the worker's ongoing left hand symptoms were related to a pre-existing condition.

On November 8, 2016, the worker filed an appeal with Review Office as she disagreed with the adjudicator's decision of October 11, 2016. The worker noted that the treating physiotherapist and the treating surgeon both agreed that the problem with her left index finger was caused by the workplace accident.

In a decision dated January 10, 2017, Review Office determined that there was no entitlement to benefits in relation to a left index finger injury on this claim. Review Office noted that there are several medical reports on file detailing the worker's injuries at the time of her accident. While none record a specific injury to the left index finger initially, Review Office acknowledged that the extent of the worker's wrist injuries were such that this could have been overlooked at that point in time.

Review Office referred to the telephone conversation dated June 23 between the worker and her WCB adjudicator and the narrative report from the family physician dated July 21. Based on its review of these documents, Review Office said it gave weight to the fact that the worker's pre-existing condition was symptomatic and being treated prior to the compensable injury. It noted that this condition was of unknown etiology and appeared to be progressive in nature. Given the lack of evidence supporting a new fracture or tendinous injury at the time of the accident, Review Office was not able to conclude the worker sustained a specific new injury to her finger.

On January 25, 2017, the worker 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 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 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

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 Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) 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.

(b) When a worker has:

1. recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2. the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3. the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The Worker’s Position:

The worker was self represented at the hearing.

The worker provided a detailed narrative of the accident and mechanism of injury, which included multiple fractures. She also described the treatment she underwent, including surgery which involved an open reduction and internal fixation including the insertion of plates and screws. She says that, at the time of the accident and in the first few weeks which followed, she was preoccupied with the fractures in her wrist and may have overlooked an injury to her finger. As her fractures began to heal, however, she noticed that she was also having difficulties with her left index finger. In particular, she observed significant ulnar deviation of the finger with an overlay of her left index finger over her third digit which was not present prior to the accident, extreme tenderness in her finger extending into her forearm, and problems with left hand function.

The worker further says that, prior to her accident, she had no problems with her left hand and finger despite the existence of a small bump caused by the fibrous dysplasia. Her condition was being monitored. It had no effect on her hand function. Since the accident, she has had ongoing difficulty with pain and tenderness, lack of grip strength and wrist strength, and physical deformity. She attributes the problems with her index finger to the accident or surgery undertaken to repair the fractures. She therefore submits the accident caused her index finger injury and therefore asked the panel to overturn the decision of the WCB Review Office and to find that she should be entitled to benefits in relation to her left index finger injury as a consequence of the May 30, 2016 accident.

The Employer’s Position:

The employer did not participate in the hearing.

Analysis:

The issue before the panel is whether the worker should be entitled to benefits in relation to her left index finger injury as a consequence of the May 30, 2016 accident. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker’s on-going left index finger difficulties are related to her workplace accident. The panel was able to make this finding.

In our view, given the mechanism of injury, the extent of the injuries to the worker’s left arm and wrist including multiple fractures, and the subsequent invasive surgery, we accept that the index finger issues are a consequence of the injuries sustained in the workplace accident. In reaching this conclusion, the panel relies on the opinion of the orthopedic surgeon who operated on the worker’s fractures and who opined that the hand deformity may have been caused by the scarring or tethering of several of the tendons through the wrist and forearm which insert on the index finger. We also attach significant weight to the worker’s evidence that prior to the accident, her condition had been asymptomatic aside from a deformity, or bump, on her hand, evidence which was also confirmed in a clarifying report by her family physician.

We therefore find that the worker’s pre-existing dysplasia is an incidental finding and not related to her symptoms in her left index finger.

Finally, the panel notes that while there has been some speculation about nerve damage, there is no specific evidence to support that conclusion at this time.

For the foregoing reasons, the panel finds that the worker should be entitled to benefits in relation to her left index finger injury as a consequence of the workplace accident. The appeal should therefore be allowed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of June, 2017