The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her right wrist diagnosis was not a consequence of her compensable injuries occurring on September 28, 2009, August 15, 2011 or February 11, 2014.

The worker is also appealing the decision made by the WCB that the treatment/exercises prescribed to her for any and all of her three compensable injuries did not result in her right wrist diagnosis.

A hearing was held on November 1, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's right wrist diagnosis should be accepted as being a consequence of the worker's compensable injuries occurring September 28, 2009, August 15, 2011 or February 11, 2014.

Whether or not the worker’s right wrist difficulties should be accepted as being a consequence of the treatment/exercises prescribed to her for any and all of her three compensable injuries.

Decision

That the worker's right wrist diagnosis should not be accepted as being a consequence of the worker's injuries occurring September 28, 2009, August 15, 2011 or February 11, 2014.

That the worker’s right wrist diagnosis should not be accepted as being a consequence of the treatment/exercises prescribed to the worker for any and all of her three compensable injuries.

Background

The worker suffered an injury to her neck, upper back and right shoulder on September 28, 2009 when her car was struck from behind by another vehicle. The claim for compensation was accepted by the WCB and the worker was provided with chiropractic and physiotherapy treatment. Prior to completing needling treatments in 2011, the worker was involved in a second motor vehicle accident on August 15, 2011 when she injured her neck, upper back and right shoulder. This claim was accepted by the WCB and the worker was provided with physiotherapy treatment along with a home strengthening exercise program.

On February 11, 2014, the worker was pushed backwards by an aggressive client into a recycling bin and fell to the floor. The worker reported injuries to her right arm/right shoulder, mid-back and neck. This claim was also accepted by the WCB and benefits and services were paid.

On October 2, 2015, the worker advised the WCB that she injured her right wrist in the accident of February 11, 2014. She was ultimately diagnosed with ulnar styloid triquetral syndrome.

In a decision dated February 24, 2016, the worker was advised by Compensation Services that the WCB was unable to accept responsibility for her right wrist diagnosis as being causally related to the February 11, 2014 compensable accident. The decision was based on the following findings:

• There was no mention of a right wrist injury until 20 months after the original injury occurred. • There was no recorded medical information to connect the worker's report of right wrist issues to the mechanism of injury described in the initial injury report. • The specialist report on file speculated that the reported mechanism of injury would aggravate her diagnosis; he did not state the diagnosis was caused by a fall.

On April 15, 2016, the worker appealed the decision to Review Office.

After considering the worker's appeal submissions along with a submission provided by the employer's representative, Review Office determined on June 13, 2016, that the worker's right wrist difficulties were not related to the workplace accident.

Review Office noted that the worker kept in regular communication with Compensation Services and did not mention a right wrist injury until she contacted them in October 2015. Review Office noted that the worker's accident description changed over time and that it accepted the comments made by the WCB orthopedic consultant dated February 24, 2016.

Review Office stated in its decision that if the worker injured her right wrist at the time of the workplace accident, it would not have taken her close to two years to report difficulties especially considering how she described the injury impacting her life in her final submission of June 9, 2016. The worker also indicated in her final submission that her wrist injury had

impacted her ability to perform exercises to rehabilitate her shoulder and neck injuries, which have been accepted by the WCB. There was no mention in the medical information about this.

On November 17, 2016, the Worker Advisor Office asked Review Office to reconsider its previous decision based on additional medical information.

In a response dated November 22, 2016, Review Office determined that the new medical information from the worker's surgeon and the results of the June 21, 2016 surgery related to the right wrist did not impact its decision of June 13, 2016. Review Office indicated that the worker's appeal was denied based on the significant delay in reporting a right wrist injury and the change in accident description over the duration of the claim.

On December 20, 2016, the Worker Advisor Office wrote to the WCB case manager outlining the position that there was a relationship between the onset of the worker's right wrist symptoms and the strengthening exercises for the 2009, 2011 and 2014 compensable claims.

In a response dated February 13, 2017, the case manager indicated that the evidence did not support that the worker's right wrist symptoms and diagnosis are related to the treatment based strengthening exercises from the combined effect of the 2009, 2011 and 2014 claims. There was no medical evidence that the development of pathology in the ulnar side of the right wrist was related to these claims.

On March 17, 2017, the worker advisor appealed the decision to Review Office.

On April 28, 2017, the employer's representative provided a submission to Review Office.

On May 5, 2017, Review Office determined that the worker's right wrist difficulties should not be accepted as a consequence of her compensable injuries occurring on September 28, 2009, August 15, 2011 and February 11, 2014.

Review Office stated that it was not going to revisit the former decision that dealt with the February 11, 2014 specific accident and injuries arising out of and in the course of the employment that day, but would be rather specific as to whether the compensable treatment/exercises that the worker was prescribed, for any or all of the three compensable injuries, resulted in an injury to her right wrist.

Review Office said it failed to find evidence of an accident causing a right wrist injury, during in-clinic treatment the worker received for any of the compensable injuries. It stated that performing home exercises that were shown to her to help rehabilitate her compensable injuries was not under the direct specific control of the WCB. Therefore, any injury that may have occurred instantaneously or gradually while performing exercises at home does not meet criteria set out in policy 44.10.80.40.

On May 18, 2017, the worker advisor appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.

Reasons

In the present matter, the worker is appealing Review Office’s decision that the worker’s right wrist diagnosis should not be accepted as a consequence of her compensable injuries occurring on September 28, 2009, August 15, 2011 and February 11, 2014.

In addition, the worker is appealing Review Office’s decision that the treatment/exercises prescribed to her for any and all of her three compensable injuries did not result in her right wrist diagnosis.

For the worker to succeed in her appeal, the panel needs to find that she suffered a subsequent injury to a compensable injury. The panel is unable to make this finding.

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.

In that regard, subsection 4(1) of the Act provides:

Compensation payable out of accident fund 4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. What constitutes an accident is defined in subsection 1(1) of the Act which provides as follows:

“accident" means a chance event occasioned by a physical or natural cause; and includes (a) a willful and intentional act that is not the act of the worker, (b) any (i) event arising out of, and in the course of, employment, or (ii) thing that is done and the doing of which arises out of, and in the course of, employment, and (c) an occupational disease, and as a result of which a worker is injured;

WCB Policy 44.10.80.40 – Further Injuries Subsequent to a Compensable Injury (the “Policy”) sets out guidelines that are applicable in the present matter. The Policy states:

A further injury occurring subsequent to a compensable injury is compensable: (i) when the cause of the further injury is predominantly attributable to the compensable injury; or (ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or (iii) when the further injury arises out of the delivery of treatment for the original compensable injury. A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

Application to the Present Matter

The history of the worker’s three claims is well known, however it bears repeating:

1. September 28, 2009 Claim: The worker sustained an injury to her neck, upper back and right shoulder on September 28, 2009 when her car was struck from behind by another vehicle. The worker was provided with physiotherapy treatment. [Emphasis Added]

2. August 15, 2011 Claim: The worker injured her neck, upper back and right shoulder again on August 15, 2011 when she rear-ended by a vehicle. She received physiotherapy treatment and was provided with a home strengthening exercise program for her injuries. [Emphasis Added]

3. February 11, 2014 Claim: While the worker was still receiving active treatments and performing home exercises for the 2009-2011 compensable injuries she was injured again on February 11, 2014. The claim was accepted for neck and right shoulder sprain/strain due to a physical attack while at work. [Emphasis Added]

With respect to the 2014 Claim, it is important to underscore that the mechanism of injury (“MOI”) was as described as follows:

There was a client in our waiting room who had been advised by her case worker to leave the building because she was being abusive. She was not complying with the request. I was standing by and I had instructed to her leave as well or the police would be called. She was continuing to escalate and there is a security gate at our reception desk. Her case worker was removing herself leaving the general area to her office out of sight out of mind, hoping that it would deescalate her. When she saw this she approached the gate to reach over the gate to unlock it with the intention of going after her case worker and I was standing by. I put my right arm to block her hand from reaching the latch and upon doing so, she took both her hands, one on my right shoulder, and on my upper chest and forcibly pushed me. I was thrown about two feet and my mid back connected with the plastic recycling bin in the hallway and then I fell to the floor. As a result, I injured right arm/right shoulder, mid-back and neck. [Emphasis Added]

None of the MOIs for any of the compensable injuries related to the worker’s right wrist. However, eventually a new diagnosis for the worker presented as an ulnar styloid triquetral impaction syndrome at her right wrist.

While there are findings in earlier decisions of the worker first raising concern with respect to her right wrist on October 2, 2015 – some 20 months post-accident – those findings are not entirely accurate. Indeed, the file demonstrates that evidence of the worker first raising issues regarding her right wrist can be found in the information that she submitted to the WCB on April 18, 2014. Specifically, the Neck Disability Index Questionnaire Diagram dated December 8, 2014 where she describes an ache at the ulnar side of the right wrist and in the daily visit form dated December 9, 2014, where the following is noted:

“R (right) elbow anterior pain started recently: R wrist ROM (range of motion) full; Tender wrist at distal ulnar; R elbow ROM full, resisted extension painful at elbow.”

In a diagnostic imaging report with an exam date of September 27, 2015, a TFCC injury was ruled out and the report stated the following:

There is no significant ulnar variance. Carpal alignment is anatomic. There is mild diffuse synovial prominence present especially on the ulnar side of the wrist. Significance is uncertain. Inflammatory and arthropathy should be excluded clinically.

The TFCC and intrinsic interosseous ligaments appear intact.

A diagnostic imaging report dated January 27, 2016, gave the following impressions:

There are two densities present in the region of the triangular fibrocartilage which appear to be separated boney fragments likely related to old trauma rather than soft tissue calcification. There appears to be a marginal erosion of the triquetrum. No further abnormalities demonstrated.

On June 21, 2016, the worker had an operative procedure to address the problem she was facing with her right wrist. The operative note provided as follows:

Diagnostic scope revealed the above noted findings. There was no significant perforation of the TFCC, but there was generalized fraying and this was debrided through a 6R portal using a shaver. There was no overt TFCC tear. The articular cartilage of the wrist appeared in good condition as did the SL ligament. The shaver was used to debride the synovlum, which was somewhat inflamed in the ulnar side of the wrist particularly.

On the whole, the panel is unable to make a determination that there is any objective medical evidence that the diagnosis with respect to the worker’s right wrist was caused by the workplace injuries of September 29, 2009, August 15, 2011 or February 11, 2014. In particular regard to the February 11, 2014 occurrence, the MOI does not support the final diagnosis and the symptom onset. Here, the worker clearly indicated that her neck and back were affected. There was no immediate symptomology or any acute injury with respect to her right wrist.

While the medical evidence does clearly confirm the right wrist diagnosis, the panel notes, in particular, the June 21, 2016 operative report which finds a generalised fraying of the TFCC. This is supportive of the medical literature regarding ulnar impaction syndrome which characterizes this condition as largely degenerative and progressive.

With respect to the second issue, the panel is unable to find evidence of an accident causing the right wrist diagnosis during in-clinic treatment that the worker received for any of the compensable injuries of her previous claims. Here, the panel agrees with the Review Office’s decision that performing home exercises that were at one point shown to help her rehabilitate her compensable injuries is not under the direct specific control of the WCB. Therefore, any injury that may have occurred instantaneously or gradually while performing exercises at home does not meet the criteria set out in Policy 44.10.80.40.

Based on the foregoing, the panel is unable, on a balance of probabilities, to make the determination that the worker’s present difficulties with her right wrist are a consequence of her compensable injuries.

The worker’s appeal is therefore dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of December, 2017