Decision #73/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she does not have a pre-existing condition associated with her right wrist which was affected by the accident, that responsibility should not be accepted for her left wrist difficulties as being a consequence of the June 17, 2015 accident and that the permanent partial impairment rating of 1.2% for her right wrist condition has been correctly calculated. A hearing was held on April 11, 2018 to consider the worker's appeal.

Issue

Whether or not the worker has a pre-existing condition associated with her right wrist which was affected by the accident;

Whether or not responsibility should be accepted for the worker's left wrist difficulties as being a consequence of the June 17, 2015 accident; and

Whether or not the worker's permanent partial impairment rating of 1.2% for her right wrist condition has been correctly calculated.

Decision

The worker has a pre-existing condition associated with her right wrist which was affected by the accident;

Responsibility is not accepted for the worker's left wrist difficulties as being a consequence of the June 17, 2015 accident; and

The worker's permanent partial impairment rating of 1.2% for her right wrist condition has been correctly calculated.

Background

The worker filed a claim with the WCB for injuries to her right side that happened on June 17, 2015. She described the incident as:

It had rained and hailed just before I went into the client's house. I don't believe I was hurrying. Their steps are larger than normal steps, and I don't know if I slipped or tripped, but I went down and hit my right shin on the corner of the third step. The rest of my body fell to the right and forward onto the steps. No hazard on the steps.

When the worker saw the doctor the next day, June 18, 2015, she was examined and the doctor noted "She is tender over the soft tissue superior and posterior to the right shoulder and in between the right shoulder and neck. She is also tender over the soft tissue right forearm and right wrist." It was also noted "Examination of right lower leg reveals two areas of bruises over the tibia, mid to lower tibia with some swelling and some mild discoloration. No broken skin. No deformity to suggest a fracture." The worker was advised that the doctor suspected soft tissue injuries and to treat her injuries with heat and ice, anti-inflammatories as needed.

The worker returned to see her doctor on June 25, 2015 as she was continuing to have pain in her wrist. The doctor recommended that she continue to work but suggested a wrist splint and arranged for an x-ray. The x-ray conducted on June 25, 2015 noted widening of the scapholunate ligament in the worker's right wrist, together with indications of mild osteoarthritis.

On June 29, 2015, the worker saw her physiotherapist with subjective complaints of pain in her right wrist and shoulder, thoracic and lumbar back. The physiotherapist recommended using her right wrist as tolerated, no push/pull/climb, no lifting greater than ten pounds and no overhead lifting.

At a July 31, 2015 follow-up appointment with her family doctor, further tests were requested including x-rays and an MRI and the worker was referred to an orthopedic surgeon as she was having continuing pain and no grip strength in her right wrist. A Healthcare Provider Assessment of Injury Or Illness form completed on July 31, 2015 which was to continue to September 30, 2015, notes the worker's restrictions of no putting on TED stockings or lifting heavy weights.

The worker's file was reviewed by a WCB medical advisor on September 15, 2015, who opined, in part:

The chronic changes seen on the recent MRI take years to develop. The MRI was done within 2 months of the workplace accident, meaning the tear was not caused by the workplace accident but happened years earlier…

The worker was examined by an orthopedic specialist on October 15, 2015 who diagnosed the worker with "Right sided scapholunate interosseous ligament injury with subsequent degenerative changes of the lunate and capitate and cystic changes from the lunate indicating a SLAC wrist."

On November 6, 2015, the worker attended a follow-up visit with her family doctor who noted that the worker reported injuring her left wrist at the time of the workplace accident on June 17, 2015 but it was not evaluated at that time. The worker's family doctor reported that an x-ray of the worker's left wrist conducted on November 4, 2015 showed the same scapholunate deterioration as on the worker's right wrist. The family doctor also made a referral to an orthopedic surgeon for the worker's left wrist.

The WCB advised the worker on May 16, 2016 that responsibility would not be accepted for her left wrist difficulties in relation to her June 17, 2015 workplace accident. The WCB noted that the WCB medical advisor who reviewed the worker's file had provided the opinion that the findings on the worker's left wrist were similar to the findings on her right wrist but that did not confirm that they were caused by the same workplace accident. The x-ray conducted on the worker's left wrist on November 4, 2015 noted that the changes to the left wrist were old, "…which means they happened years ago, not from the June 2015 workplace accident."

The worker requested reconsideration of the WCB's decision to Review Office. On August 4, 2016, Review Office advised the worker that they upheld the WCB's May 16, 2016 decision. Review Office placed weight on the WCB medical advisor's February 28, 2016 opinion that the worker had seen many medical practitioners for her right wrist from the time of her workplace accident up until her doctor began treating her left wrist on November 4, 2015. Review Office also determined that the worker's right wrist difficulties were as a result of a pre-existing condition which had been aggravated as a result of the workplace accident.

On June 14, 2017, the worker was examined by a WCB medical advisor to determine a Permanent Partial Impairment (PPI) award. Based on the WCB medical advisor's examination and review of the worker's file, the worker's pre-existing condition was considered major and the PPI rating of 2.4% was therefore prorated by 50%, resulting in a PPI award of 1.2% whole person impairment. The worker was advised of the PPI award by the WCB on June 15, 2017.

The worker requested reconsideration of the WCB's PPI award on September 25, 2017. The worker disagreed with the PPI award as she felt her workplace accident left her with more restrictions than the PPI award indicated. The worker also supplied a letter from her family physician in support of her application. Review Office upheld the WCB's decision on October 20, 2017. Review Office noted that only the worker's right wrist difficulties had been accepted,

despite the worker's family physician's description of the worker's injuries as bilateral. Review Office also determined that the WCB's policy on PPI ratings was correctly calculated as "Given that the worker's ongoing right wrist injury is considered an enhancement of a pre-existing condition, the value of the total PPI rating was reduced by half in keeping with the policy." Review Office also noted that the lump sum amount for a PPI award is as set out in the Act and was correctly determined.

The worker filed an application with the Appeal Commission on November 6, 2017. An oral hearing was held April 11, 2018.

Reasons

Applicable Legislation and Policy

The Appeal Commission is bound to follow The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors.

In this case the worker is appealing three issues related to her 2015 accident.

Issue One deals with whether the worker has a pre-existing condition which affects her right wrist. Issue Two deals with whether the worker's left wrist difficulties are related to her accepted claim. Issue Three deals with whether the worker's permanent partial impairment award has been correctly calculated.

With respect to Issue One, the WCB Board of Directors enacted WCB Policy 44.10.20.10, Pre-existing Conditions, which states, in part that:

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.

With respect to Issue Two, WCB Board of Directors WCB Policy 44.05, Arising Out of and In the Course of Employment, provides guidance when determining whether a claim arose out of and in the course of employment.

With respect to Issue Three, subsection 4(9) of the Act is applicable. It provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. The method for calculating compensation for impairment is set out in section 38 of the Act which provides that the board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

The WCB Board of Directors established Policy 44.90.10, Permanent Impairment Rating (the “Policy”) to determine impairment ratings. Appendix A to the Policy sets out how impairment ratings are determined. The Policy sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.

The Policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB. Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury. The rating calculation does assess loss of functional ability by measuring loss of range of motion. The monetary value of PPI awards is calculated under section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation.

The Policy also provides that where there is a pre-existing condition that is considered to be major, it will reduce its impairment rating by 50%:

A pre-existing condition is considered to be major where: the impairment was significantly affected by the pre-existing condition; the accepted diagnosis was an enhancement of the pre-existing condition; or the accepted diagnosis would not have occurred in the absence of the pre-existing condition.

Worker's Position

The worker was self-represented. At the commencement of the hearing the worker provided the panel with additional documents/photos which were not on the claim file. These materials were accepted as exhibits.

The worker advised that her right and left wrists injuries were diagnosed by her family doctor and by an orthopedic surgeon. She noted that her condition has been diagnosed as a scapholunate dissociation. She advised that this condition results from a significant tear to the ligament which joins the scaphoid and lunate wrist bones together, and it is caused solely by trauma. The worker explained her understanding of the causes of this type of injury.

The worker described the June 12, 2015 accident. She referred to her fall on the stairs shown in Exhibit 4. She said that as she ascended the front steps of the new client’s home, she tripped and her body fell, first hitting below my right knee, and then on both outstretched hands. She explained that her left hand was carrying her work backpack, and the bottom of the backpack hit the step and her body made contact with it, which caused the rest of her body to roll to the right and into the step.

She said that at first she believed that her injuries were not significant; there were no fractures, physiotherapy would help, and over time the injuries would heal. She advised that her injuries worsened, and she sought the attention of three other walk-in doctors in the course of the next six weeks, before a proper diagnosis of scapholunate dissociation was confirmed. An MRI was done seven weeks after the injury, which confirmed the diagnosis. Her left wrist exhibited the same conditions and pain level as her right wrist.

The worker addressed each of the three issues under appeal:

1. Whether or not the worker has a pre-existing condition associated with her right wrist which was affected by the accident.

The worker noted that the MRI of August 2015 dealing with her right wrist showed tiny cysts on the scaphoid and lunate bones. She said these cysts are associated with mild osteoarthritis, and can medically present themselves in most people as early as their mid-twenties.

The worker advised that her family physician told her that mild chronic arthritis makes people more prone to this injury, but that the tear would have had to occur during trauma.

Regarding any prior issues with her wrist, she advised that there is no prior documentation or imaging in her physician's files of injuries to her wrists and no prior WCB claims related to her wrists.

She said that:

The tear that is my injury is due from trauma. It’s not due to these cysts being there. It’s not due to bone spurs, it’s there. Osteoarthritis is common in people as early…mid-twenties.

The worker advised that her family physician told her that osteoarthritis can make the wrist more prone to my injury, but the trauma of the accident has caused the tear. The worker added that she has been working since she was 17 years old with no problems until this fall.

2. Whether or not responsibility should be accepted for the worker's left wrist difficulties as being a consequence of the June 12, 2015 accident.

The worker advised that she thought that the accident reports noted that she injured her left hand. It was much later that she realized that there was no mention of a left-hand injury. She submitted it was clearly stated in the worker’s incident report that the rest of her body fell to the right and forward onto the steps.

She advised that:

The left wrist was hurt, it wasn’t, I believe, as hurt, or as big an impact on the cement as my left because of the bouncing off of the backpack.

The worker said that she was very busy during the six week period after the accident but was not working, or carrying a backpack.

She advised:

So it made sense to me that when I started having troubles in August with my left hand from a couple weeks of doing a full workload, that I just continue with my physio exercises with that hand. I was just thinking because I’m right hand dominant, and that now was injured, I’m now left hand dominant, and it’s taking the strain.

Regarding the onset of left sided symptoms, she advised that a physiotherapist mentioned in her letter of March 2, 2018 that the worker first mentioned left side upper extremity pain on August 19, 2015, which was most marked in the suprascapular region. On September 2, 2015 she noted that the worker reported having soreness on the left side.

The worker explained that on her visits to the physiotherapist's office, the physiotherapist's assistant started treating her left side.

In reply to a question about what triggered the left wrist to worsen, the worker advised:

The severe ache, similar symptoms, weakness and stuff that I experienced. But as I said, I was working two jobs fairly steady after that, I was off for two and a half months without a full paycheque, and working fairly steady, so I was putting a lot of stress on my left hand due to the fact that my right was not functioning as well.

3. Whether or not the worker's permanent partial impairment rating of 1.2% for her right wrist condition has been correctly calculated.

The worker disagreed with the permanent partial impairment rating given by the WCB. Regarding her right wrist, she advised:

I had a great range of motion, but because I’m still -- despite my injuries, I still can flex, but that to me is a personal decision, because I could have had surgery that, you know, screwed everything.

She advised that her family physician encouraged her to seek reconsideration because he believes she has a greater impairment than the WCB had has calculated.

She confirmed that the WCB medical advisor used an instrument to measure the range of motion in her wrist.

Regarding the 50 percent discount for a pre-existing degenerative condition, the worker commented:

Well, I’ve talked this over with [family physician], my medical physician, and I’m trying to understand what these radiologists are saying on these reports that were given. I found it interesting that, you know, they use words, and I’ve said this to [family physician] directly, they use words such as you’re probably, probably chronic, likely all degenerative, and yet, there is a phrase in the MRI saying that the scapholunate ligament is poorly defined.

General comments:

The worker said she chose to live with chronic pain rather have surgery which would worsen her condition.

The worker advised that:

I was well able to work for the last 40 years without time off due to injuries, without any restrictions, and able to meet workplace criteria, jobs I would certainly have not been able to do with pre-existing conditions, conditions that would in time lead to severe weakness and instability in my wrists. … In conclusion, I would like to see the pre-existing condition ruling on my right wrist overturned. I would also like to see my left wrist injury acknowledged by WCB as part of the workplace accident of June 17, 2015, and that it was not a pre-existing condition.

The worker also raised the issue of payment for a particular drug which has been prescribed for pain related to her left wrist.

Employer's Position

The employer did not participate in the appeal. However, its advocate did make a submission to the WCB Review Office indicating that it agreed with the WCB's decision to reject the worker's left wrist issues as part of the claim.

Analysis

The worker has appealed three issues arising from WCB decisions regarding her right and left wrist conditions and the related permanent impairment rating. The issues are as follows:

1. Whether or not the worker has a pre-existing condition associated with her right wrist which was affected by the accident.

For the worker's appeal of this issue to be approved, the panel must find that worker's right wrist condition, scapholunate dissociation, was not present prior to the accident. The panel was not able to make this decision. The panel finds for the reasons that follow that the worker's condition was present before the workplace injury.

In finding that the condition was present prior to the accident the panel attaches weight to the opinion of the WCB medical advisor. The medical advisor reviewed the file and opined that:

"The worker reported right wrist pain initially. When first examined, she had right wrist tenderness and her doctor assumed a soft tissue injury. Xray was performed and interpreted as mild widening of the scapholunate interval with OA changes around the scaphoid….Then it looked like a different doctor saw her and recommended an MRI. That has since been done, showing changes consistent with a chronic scapholunate ligament tear.

A scapholunate ligament tear typically occurs after a fall on an outstretched hand. It is not uncommon for this condition to go undiagnosed initially (years ago) as a minor sprain. If untreated, the joint is likely to undergo severe degeneration. The chronic changes seen on the recent MRI take years to develop. The MRI was done within 2 months of the workplace accident, meaning the tear was not caused by the workplace accident but happened years ago…

The panel also notes that the WCB medical advisor responsible for assessing the worker's permanent impairment also commented that: 

Imaging studies completed shortly after the injury demonstrated widening of the scapholunate joint as well as degenerative changes.

The panel notes that the WCB has accepted responsibility for the aggravation/enhancement of the worker's pre-existing scapholunate injury of the right wrist. The WCB has found that the workplace injury made the worker's right wrist condition symptomatic. The panel concurs and finds that the workplace injury, where the worker fell on the steps to a residence, made the worker's pre-existing condition symptomatic.

2. Whether or not responsibility should be accepted for the worker's left wrist difficulties as being a consequence of the June 17, 2015 accident.

In addition to the right wrist condition, the worker has been diagnosed with a left scapholunate condition.

The worker suggested that she must have injured her left wrist in the accident when she fell, although she did not immediately report a left wrist injury. The worker also suggested that the left wrist condition worsened after the injury. She advised that after the workplace injury:

The severe ache, similar symptoms, weakness and stuff that I experienced. But as I said, I was working two jobs fairly steady after that, I was off for two and a half months without a full paycheque, and working fairly steady, so I was putting a lot of stress on my left hand due to the fact that my right was not functioning as well.

For the worker's left wrist difficulties to be accepted as a consequence of the workplace accident, the panel must find, on a balance of probabilities, that the worker injured her left wrist in the workplace accident or that the injury developed as a consequence of the workplace accident. The panel was not able to make this finding. For reasons that follow the panel finds that the worker's left wrist condition is not related to her June 17, 2015 workplace accident.

The panel reviewed all the evidence and was not able to find, on a balance of probabilities, that the worker injured her left wrist in the workplace accident nor is it able to find evidence that the condition was a consequence of an accident. Regarding the accident details, the worker did not mention a left wrist problem at the time of the accident. Similarly, medical reports received within the first few months of the accident also refer only to right wrist and right-sided issues. In the panel's view, this evidence is not consistent with the worker having suffered an acute injury to her left wrist.

The panel attaches significant weight to the opinion of the WCB medical advisor who reviewed the worker's file and provided an opinion dated February 28, 2016. She noted that the worker received an x-ray on November 4, 2015 which showed a widening of the scapholunate joint space, consistent with old injury to the ligament. The x-ray also noted degenerative changes to the base of the thumb. She noted that there was no indication within a reasonable period of the workplace accident that she injured her or aggravated her left wrist. The medical advisor noted that the worker saw multiple medical practitioners for the right wrist from June 2015 and there was no mention of any issues with the left wrist until November 2015.

The panel also notes that the surgeon who has been following the worker's condition has described her left hand condition as similar to the right hand condition. Interestingly, the surgeon

examined the worker's right wrist on October 15, 2015 and did not identify any issues with the left wrist or report any complaints about the left wrist. The panel finds the lack of reference to a left wrist problem is consistent with its decision that the left wrist injury is not related to the workplace injury.

The panel finds that the worker's left wrist condition is not related to the accepted workplace accident. The worker's appeal of this issue is dismissed.

3. Whether or not the worker's permanent partial impairment rating of 1.2% for her right wrist condition has been correctly calculated.

The Act provides that in determining impairment under 38(1) the WCB shall determine the degree of a worker’s impairment expressed as a percentage of total body impairment. The rating calculation assesses loss of functional ability by measuring loss of range of motion. The worker believes that the assessment does not accurately measure her loss.

For the worker's appeal of this issue to be approved, the panel must find that the calculation of the impairment is incorrect. The panel was not able to make this finding.

The panel notes there are two steps in reviewing the calculation of the worker's permanent partial impairment. The first is considering whether the 2.4 percent was correctly calculated. The second is whether the discount of 50 percent for a major pre-existing condition is appropriate.

The panel has reviewed the report of the WCB medical advisor who performed the PPI assessment. The report shows that the consultant measured and calculated the degree of impairment in respect of range of motion for the worker's right wrist. The panel finds that the assessment was thorough, and the consultant appears to have examined the worker and made the appropriate measurements, correctly applying the criteria set out in the Policy. The panel has also reviewed the calculations themselves and finds that they are correct. The panel finds that the 2.4% accurately reflects the worker's loss in her right wrist.

Regarding the application of the 50 percent discount for a major pre-existing condition, the panel finds that it was appropriate to apply the discount given the worker's significant pre-existing condition of scapholunate dissociation, as noted previously in the file and confirmed by this decision. This deduction is made pursuant to Policy 44.10.20.10, Pre-Existing Conditions, subsection 3, which provides in part:

A pre-existing condition is considered major for the purpose of impairment rating if: 1) the impairment was/is significantly affected by the pre-existing condition.

In conclusion, the panel finds that the Act and Policy were correctly applied and the PPI rating of 1.2% was correctly established.

The worker's appeal of this issue is denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of May, 2018

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