Decision #124/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits in relation to a cubital tunnel release. A hearing was held on June 20, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits in relation to a cubital tunnel release.

Decision

That the worker is not entitled to benefits in relation to a cubital tunnel release.

Background

This claim has been the subject of a previous appeal and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision No. 67/11 dated June 3, 2011.

The worker filed a claim with the WCB for right forearm/elbow difficulties that she related to the repetitive nature of her job duties as a nurse's aide. X-rays taken of the worker's right elbow on November 12, 2008 revealed no acute bone or joint abnormalities. On November 13, 2008, the claim for compensation was accepted, based on the diagnosis of right lateral epicondylitis, and payment of benefits commenced.

On April 20, 2010, Review Office determined that there was no entitlement to benefits or services beyond May 15, 2009, as a cause and effect relationship between the worker's current symptoms and the compensable injury of right lateral epicondylitis could not be established. On June 3, 2011, the Appeal Commission allowed an appeal from that decision, and determined "given the continuity of symptoms, that the worker suffered an injury to her elbow on September 12, 2008 and that she continued to suffer from the effects of that injury when her benefits were terminated in May 2009."

On September 30, 2014, based on a further claim submitted by the worker, the worker underwent surgery for a right ring finger trigger release, right open cubital tunnel release and right open carpal tunnel release. On January 31, 2017, the worker's union representative submitted that the surgery for the right open cubital tunnel release related to this claim, and the worker should be entitled to benefits in relation to that procedure.

On March 13, 2017, Compensation Services advised that there was no entitlement to benefits for the worker's cubital tunnel release surgery as it was not related to her workplace injury. In arriving at their decision, Compensation Services relied on a March 13, 2017 opinion from a WCB sports medicine advisor who opined:

The surgery of September 30/14 included: 

• Right fourth trigger finger release 

• Right open cubital tunnel release 

• Right open carpal tunnel release

The September 2014 surgery does not appear to be related to the September 12/08 injury.

The 2008 claim was accepted for right lateral epicondylitis, a diagnosis which was noted by the treating physician, treating physiotherapist, [name of clinic] sports medicine physician, rheumatologist, and WCB physician(s). [The worker] underwent a nerve conduction study on March 16/09 which did not demonstrate any abnormalities of the ulnar or median nerve. Carpal tunnel syndrome (median neuropathy at the wrist) and cubital tunnel syndrome (ulnar neuropathy at the elbow) are not diagnoses found on this claim. Additionally, there is no documentation of a right fourth trigger finger on this claim. None of the surgeries performed pertained to a diagnosis of right lateral epicondylitis, which is the relevant diagnosis on this particular claim.

On March 23, 2017, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The worker's representative submitted that the WCB sports medicine advisor failed to acknowledge the 2011 decision of the Appeal Commission, which had relied on the worker's complaints of persistent elbow pain (as opposed to accepting a specific diagnosis) and had accepted the opinion of an independent neurologist that the worker's symptoms were due in part to a mild ulnar neuropathy. The representative submitted that the worker's chronic elbow ache was due to a mild ulnar neuropathy which was attributable to her 2008 compensable injury, and that the WCB was responsible for the September 30, 2014 surgery as it successfully relieved the chronic pain she had endured since her 2008 injury. The employer's representative provided a submission in response to the worker's request for reconsideration, and the worker's union representative responded to that submission.

On June 8, 2017, Review Office determined that there was no entitlement to benefits in relation to a cubital tunnel release. Review Office noted that the Appeal Commission's 2011 decision relied on the opinions of a sports medicine doctor and an independent neurologist, both of whom discussed ulnar neuropathy or irritation as a possible source of some of the worker's symptoms. Review Office noted that ulnar neuropathies are common in the general population and are considered idiopathic in nature. Review Office also placed significant weight on the inability of a specialist in neuromuscular medicine to confirm the diagnosis of ulnar neuropathy with nerve conduction studies in 2009. Review Office considered the suggestion the worker needed surgery over five years later to be speculative.

Review Office also noted the neuromuscular medicine specialist's suggestion in his 2009 report of ways to prevent potential ulnar nerve injury, and the worker's indication that she had been utilizing some of those suggestions and had noted some improvement in her symptoms. Review Office gave weight to the non-occupational focus of the specialist's prevention recommendations and found that the advice provided to the worker reinforced that it was improbable that an ulnar neuropathy would be related to the worker's job duties.

Review Office further noted that the evidence referred to by the worker's union representative was available to the Appeal Commission at the time of their 2011 decision, and concluded that if the Appeal Commission had intended to accept an ulnar neuropathy in relation to the worker's claim, this would have been "expressed clearly in their ruling."

On June 9, 2017, the worker's representative appealed the Review Office 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.

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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act states that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel.

The worker's position was that she is entitled to benefits with respect to her September 30, 2014 right elbow surgery because that surgery effectively addressed the toothache-like pain she had endured since the onset of her symptoms in 2008.

It was submitted that although the WCB accepted the worker's claim based on a diagnosis of lateral epicondylitis, the worker had maintained throughout that her symptoms were different. The WCB ended responsibility for her claim on the basis that her lateral epicondylitis had resolved. However, the Appeal Commission concluded in its 2011 decision that the worker had not recovered from the effects of her compensable right elbow injury. In that decision, instead of adopting a specific diagnosis as compensable, the panel relied on the consistency of symptoms which reportedly affected the worker's entire elbow joint with a toothache-like sensation.

The worker's representative submitted that although the early nerve conduction studies did not confirm evidence of ulnar nerve compression, several physicians, including the specialist in neuromuscular medicine, the worker's treating physician, and the independent neurologist, all reported that aspects of the worker's clinical presentation were consistent with ulnar neuropathy. The worker lived with toothache-like pain in her right elbow for several years and no treatment really offered any sort of relief from her discomfort until the September 30, 2014 cubital tunnel release. It was submitted that the improvement with that procedure was further solid evidence that the 2008 compensable injury was due in part to compression of the ulnar nerve.

The worker's representative submitted that the previous panel in 2011 determined that the worker had not recovered from the effects of her injury based on the uncertainty around the diagnosis and the consistency of the worker's symptoms. It was submitted that the ulnar nerve condition and toothache-like pain contributed to the symptoms the panel relied on in 2011 to conclude that the worker continued to suffer the effects of the compensable injury. In the worker's view, the evidence demonstrates the improvement of what was accepted as a compensable injury in 2011. As the cubital tunnel release successfully addressed the pain and symptoms which had persisted since the 2008 workplace accident, the procedure should be the WCB's responsibility.

In conclusion, it was submitted that the cubital tunnel release was a direct consequence of the workplace injury in 2008, and the worker should be entitled to benefits relating to that surgery, including her recovery from that surgery.

Employer's Position

The employer, through its advocate, provided a written submission for the panel's consideration and did not attend the hearing.

The employer's position was that the worker is not entitled to benefits with respect to a right cubital tunnel release performed on September 30, 2014, and her appeal should be dismissed.

The employer's advocate submitted that there is no evidence that the worker's job duties as a healthcare aide in 2008 were a factor in the development of her cubital tunnel syndrome condition. The worker's duties, which were described in detail on the file, were varied and did not require sustained flexion of the elbow or pressure on the ulnar nerve. They were not consistent with the known etiologies of that condition.

The employer's advocate further submitted that there is no medical evidence linking the September 30, 2014 surgery to her job duties in 2008. The advocate noted that the procedure was performed more than six years after the worker's injury for a separate compensable right epicondylitis claim. The surgery was done primarily for a right trigger finger release, and the surgeon decided to operate on other areas of concern at the same time.

In the employer's view, the worker's position that the procedure to release the cubital tunnel was a direct result of the compensable injury was speculative; it was not supported by clinical evidence in close proximity to the 2008 workplace injury. With reference to specific reports, the employer's advocate noted that all clinical examination and diagnostic testing revealed no evidence of cubital tunnel syndrome. To the extent that there were complaints of ulnar tenderness in 2010, this was two years after the date of injury and after the worker had been off work, and did not mean that such a condition was caused by her work activities.

It was submitted that cubital tunnel syndrome is very common in the general population, and its origin is most often idiopathic or unknown; that it has numerous risk factors and is not normally associated with work duties. The advocate noted that the worker's doctors had cautioned the worker to refrain from different non-occupational activities which would cause cubital tunnel syndrome, and the worker had noted an improvement in her symptoms when she did so.

The employer's advocate asked that the panel accept the opinion of the WCB sports medicine advisor who reviewed the worker's 2008 and 2013 claims. She noted that the medical advisor observed that the March 2009 nerve conductions studies did not demonstrate any ulnar neuropathy and that there was no diagnosis of cubital tunnel syndrome on this claim. The employer agreed with the advisor's opinion that the September 30, 2014 surgery, which included the cubital tunnel release, was not related to the injury which occurred six years earlier, in 2008.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits in relation to a cubital tunnel release. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's cubital tunnel release was causally related to or necessary to provide relief from an injury resulting from her 2008 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The previous panel in 2011 found that the worker experienced a continuity of symptoms and continued to suffer from the effects of the September 12, 2008 injury to her elbow beyond May 2009, but was not specific in terms of the condition or conditions they were referring to in this regard.

The worker had argued that her cubital tunnel release was a direct consequence of the workplace injury in 2008 and her cubital tunnel condition was a compensable injury. The panel acknowledges that the worker developed a cubital tunnel condition for which she underwent a cubital tunnel release procedure, but is unable to relate that condition back to her 2008 workplace accident. Based on the information before us, the panel is not satisfied that the worker's cubital tunnel condition or release was causally related to or necessary to provide relief from an injury resulting from her 2008 workplace accident.

The panel carefully examined the worker's job duties with her at the hearing. The previous appeal panel in 2011 had questioned the worker at length with respect to her job duties as a nurse's aide. The panel confirmed the accuracy of the worker's description of those duties as set out in the transcript of proceedings from that hearing and inquired as to any further duties which the worker performed. At the same time, the worker demonstrated how she would be positioned as she performed her various duties.

The panel accepts the worker's description of her job duties and finds that the duties did not cause the worker's cubital tunnel syndrome. The panel notes that the worker's duties were varied. The evidence indicates that the worker would use her arms a lot while performing her job duties, but the panel is not satisfied that her movements were such as would irritate the ulnar nerve. With reference to risk factors or common causes for the development of work-related cubital tunnel syndrome, the worker acknowledged that she did not experience any particular trauma to her right elbow, that she was always moving and was not repeatedly leaning on her elbow, and she did not have a lot of bending her elbow up to her shoulders or pulling objects close to her body.

Medical information on file shows that the worker did not initially identify symptoms in the right cubital tunnel area. The panel notes that in his report dated April 28, 2009, a WCB medical advisor stated that the "first report of medial/posterior right elbow symptoms was not until December 3, 2008, representing approximately 12 weeks/six physician visits after the September 12, 2008 workplace accident…" The panel agrees with that statement, which is consistent with our review of the medical information on file.

The panel finds that there is a lack of consistency in the worker's symptomatology. Nerve conduction studies on file from the neuromuscular medicine specialist in 2009 and the independent neurologist in 2011 were both normal.

The panel notes that both specialists refer in their reports to a "possible" ulnar nerve irritation only. In his report dated March 16, 2009, the neuromuscular medicine specialist indicated that one of the diagnoses he discussed with the worker was "possible ulnar nerve irritation at the right elbow", then went on to confirm that there was "no definite evidence for an ulnar neuropathy at the right elbow." In his March 9, 2011 report, the independent neurologist confirmed that the worker's nerve conductions in 2009 and 2011 did not indicate an ulnar neuropathy. He went on to state that there "may be a mild irritation of the ulnar nerve at the elbow, despite normal tests," but further stated that "there has never been evidence historically, clinically, or on todays' (sic) or prior nerve conductions of any significant ulnar nerve compression." The neurologist concluded that "Although hindsight is always difficult, I believe she had both the lateral and medial epicondylitis/tendonitis as the initial problem in September 2008."

It is not until the nerve conduction study on May 5, 2014, or approximately five and one half years after the workplace injury, that there is a positive result, with the study showing "Mild slowing in right ulnar motor conductions across the elbow consistent with right ulnar neuropathy. Possible minimal left ulnar…neuropathy at the elbow." In the panel's view, the 2014 results indicate that something has changed, and the panel is unable to relate this positive finding to the workplace injury more than five years earlier. The panel notes that it is the findings from the 2014 nerve conduction study, demonstrating a positive result, that led to the worker needing the cubital tunnel release.

The panel further finds that the cubital tunnel release was a secondary issue to the trigger finger release procedure. The evidence shows that the reason for the surgery being done in 2014 was the worker's trigger finger condition. The worker confirmed at the hearing that "the trigger finger had to be done" and the attending plastic surgeon said that because of the findings of the nerve conduction tests "he was just going to do it all at once."

Based on the foregoing, the panel finds that the worker's cubital tunnel release was not causally related to or necessary to provide relief from an injury resulting from the worker's 2008 workplace accident. The worker is therefore not entitled to benefits in relation to her cubital tunnel release.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of August, 2018

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