Decision #129/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A hearing was held on January 23, 2018 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On November 15, 2016, the worker filed a claim with the WCB for IP (interphalangeal) joint problems in his right thumb related to an incident that occurred on October 15, 2014. The worker has an accepted claim for a right thumb trigger finger with the same incident date. The worker related his issues to his job duties as a research assistant.
An x-ray of the worker's right thumb performed on September 22, 2016 showed:
On one the (sic) of the images there is linear calcific density within the soft tissues along the lateral aspect of the IP joint. This may represent dystrophic calcification or evidence of a remote avulsion type fracture. No other significant abnormalities are demonstrated.
On November 16, 2016, the worker was seen by a physiotherapist who diagnosed "Dystrophic calcification R (right) lateral 1st IP joint (as per Xray Sept 22/16) - possibly a result of repetitive microtrauma."
On January 23, 2017, Compensation Services advised the worker that his claim was not acceptable. Compensation Services was unable to establish a relationship between the worker's current symptoms and an accident occurring at work.
The worker submitted further information to Compensation Services between January 27, 2017 and March 16, 2017, and requested that Compensation Services reconsider their decision. On March 17, 2017, Compensation Services advised the worker that their previous decision remained unchanged.
On March 17, 2017, the worker requested reconsideration of Compensation Services' decision by Review Office. The worker provided several submissions and additional information between March 17, 2017 and April 25, 2017 in support of his request for reconsideration. An advocate acting on behalf of the employer provided a submission in response to the worker's request for reconsideration, and the worker replied to that submission. Review Office further requested that the WCB plastic surgery consultant review the file and the worker's other file for a right thumb trigger finger and provide an opinion in response to certain questions. The WCB plastic surgery consultant's opinion dated June 7, 2017 was forwarded to the parties for comment.
In a decision dated June 12, 2017, Review Office determined that the worker's claim was not acceptable. Review Office found that the medical evidence on file did not substantiate that a separate injury occurred on October 15, 2014. Review Office also found that a causal relationship between the worker's right IP joint thumb complaints and his right-handed job duties was not substantiated given the bilateral nature of the IP joint imaging findings and the continued symptom complaints after the worker had stopped working.
On June 15, 2017, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was held on January 23, 2018.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 10, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(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.
The worker was self-represented, and provided a number of written submissions in advance of the appeal. The worker made an oral presentation at the hearing and responded to questions from the panel with the assistance of an interpreter.
The worker's position was that his claim for a right thumb IP injury should be accepted as a workplace injury and he should be entitled to benefits under the Act.
The worker submitted that his right thumb IP injury was due to his job duties, and particularly to his repetitive pipetting and cutting of rat bones with small scissors. With reference to photographs which he had provided in advance of the hearing and in response to questions, the worker described in detail the nature, frequency and challenges of his job duties, focusing in particular on his duties of pipetting and bone cutting.
The worker submitted that his IP joint injury was separate from his trigger thumb injury. He stated that the reports of the sport medicine physician, who was the first specialist he saw, are important in this regard. The sport medicine physician diagnosed him with two separate problems: trigger thumb and IP synovitis or arthrofibrosis. It was submitted that the IP injury could be considered a separate problem from the trigger finger or it could be secondary to the trigger finger, as an injury from which he had not yet recovered.
The worker said that he felt his delayed recovery from his injury and permanent disability were due to mismanagement by his employer. He said he was forced back to full duties in the spring of 2015, before his thumb had been given sufficient time to recover. He was subsequently put to work in payroll, where he had an increased workload. Then, in August 2015, he was also asked to do laboratory work. He noted that while he was not doing pipetting or the dangerous part of his duties at that time, he still needed to use his right thumb a lot. In September 2015, he went on sick leave as suggested by his doctor.
The worker submitted that opinions by the WCB plastic surgery consultant, on which the WCB decisions were largely based, were biased. The WCB plastic surgery consultant was hired by the WCB and was not independent. The worker submitted that the consultant had selectively edited and misinterpreted different results in arriving at her conclusions. Although the consultant had said that measurements related to the worker's left and right thumbs were symmetrical, that was not correct based on the data. The consultant had concluded that the worker’s right thumb IP injury was not related to his work duties, but the numbers and data did not in fact support that conclusion.
The worker submitted that the fact that he cannot perform his job as a result of his injury is supported by three doctors, as well as x-rays performed September 22, 2016 and January 26, 2017. He pointed to reports from a second sport medicine physician dated March 9, 2017, an occupational health physician dated April 18, 2017 and his family physician dated November 28, 2017. All of these doctors had shown that his left and right thumb movements were different. All of them had said that he should not do laboratory work, and should be doing work where he is not using his thumbs.
The worker noted that medical literature which he had previously submitted showed that overuse of joints from pipetting can cause and accelerate synovitis and arthrofibrosis and supported that his IP problems were related to his workplace injury and should be accepted.
The employer was represented by an advocate. The employer's position was that they agreed with the Review Office decision that the claim was not acceptable, based on the extensive medical evidence on file, and in particular, on the expertise of the WCB's plastic surgery consultant who specializes in disorders of the hand.
The employer's advocate noted that the worker sustained a workplace injury on October 15, 2014 which was accepted for a right trigger thumb condition that resolved by June 2016. More than two years after the incident, on November 15, 2016, the worker made a second claim, for an injury to the first joint of his right thumb.
The employer's advocate asked that the panel accept the opinions of the WCB plastic surgery consultant, who concluded that the worker did not have a separate IP joint injury and that his symptoms were related to the accepted trigger finger injury under the prior claim. The advocate noted that the consultant's opinions were based on multiple reviews of the file and her two call-in examinations of the worker.
It was noted that the parties were not there to argue with respect to the right trigger thumb injury. The worker had given an idea of the sort of work activities he had, which the employer was not disputing. The employer accepted that the worker had a trigger thumb injury which had resolved. In the employer's view, there was no indication that there was a separate and distinct IP joint injury to the right thumb. Based on the clinical findings on file, the employer was therefore asking that the worker’s appeal be dismissed.
The issue before the panel is claim acceptability. For the worker's appeal to the successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel is not able to make that finding, for the reasons that follow.
The worker filed a prior claim on October 29, 2014, for an injury to his right hand and thumb. The worker's prior claim was accepted for right thumb tenosynovitis/trigger thumb, which was determined to have resolved as of June 12, 2016. On November 15, 2016, the worker filed this claim for IP joint problems in his right thumb, with the same incident date of October 15, 2014.
On February 2, 2015, the worker was diagnosed by the attending sport medicine physician with a dual diagnosis of right flexor stenosing tenosynovitis and IP synovitis. The panel finds that the medical evidence on file does not support that a separate work-related incident or injury occurred relating to the worker's right thumb IP joint. The worker has relied in this claim on his same job duties as in the previous claim as the cause of his IP joint problems.
The worker confirmed at the hearing that he did not go back to the same job after October 2014, and was not performing the same repetitive or onerous duties following the incident date. He specifically confirmed that he was not doing pipetting or bone cutting or dangerous duties after that time.
Medical information on file indicates that the worker's symptoms progressively improved over time. The panel accepts that the workplace right thumb tenosynovitis/trigger thumb had resolved. The panel finds that the medical information on file indicates that all thumb symptomatology had resolved by June 2016.
The panel acknowledges the worker's comment that he feels the WCB plastic surgery consultant is biased. However, the panel accepts the information which the WCB plastic surgery consultant has provided. The panel notes that the consultant conducted two call-in examinations of the worker, and her reports contain and are based in part on the narrative which the worker reported to her, and which has not been disputed.
The examination notes from the worker's February 2, 2016 call-in examination with the WCB plastic surgery consultant indicate that the examination involved an approximately 1½ hour clinical assessment of the worker. It is noted that the worker reported at the interview that he began experiencing pain at his right thumb, including at the IP joint, in October 2014. The worker went on to note that between January 2015 and March 2015 his symptoms improved, he had been off work since September 2015, and by December 2015 his swelling had gone down by 50% at the MCP and IP joints.
The panel notes that in his December 22, 2015 report, the treating plastic surgeon had reported on the prior claim that "really, at this time, he has a trigger thumb and it really just needs to be treated with surgical release…" Surgery was authorized by the WCB, but the worker decided to continue with conservative treatment.
The panel recognizes the subsequent letter from the treating plastic surgeon dated June 28, 2016, in which he noted that he had last seen the worker on June 10, 2016, and "at that time he was noted to have a stenosing tenosynovitis which was improving on conservative treatment. The [worker] felt that he was better. He had less pain and pain only in the extremes of motion and his extension and flexion were noted to be identical right to left…"
Notes from the call-in examination of the worker by the WCB plastic surgery consultant on July 28, 2016, indicate that the examination involved an approximately one hour clinical assessment of the worker, and that the worker indicated that since the February 2016 exam, he had noted significant improvement of his right trigger thumb. The worker also noted significant improvement in performing various activities, and stated that he was now able to use chopsticks, had no problems getting dressed and was able to turn keys in a door.
The worker indicated in his submission that he placed weight on the reports of x-rays performed September 22, 2016 and January 26, 2017. The panel notes that the WCB plastic surgery consultant obtained the actual films of the September 22, 2016 x-ray of the worker's right thumb and a February 2, 2015 x-ray of the worker's right and left thumbs and reviewed them with a WCB orthopedic surgeon consultant, following which it was noted, on January 11, 2017, that:
In summary, a calcific density was noted dorsal to both the right and left thumb IP joints. Considering the bilateral nature of the findings, it appears unlikely that the densities are accounted for in relation to right handed work duties.
At the request of the WCB plastic surgery consultant, a WCB radiologist consultant also reviewed the films of the three x-rays, and confirmed that they demonstrated identical findings. The WCB plastic surgery consultant noted, on March 17, 2017, that:
There is no basis on which to alter the previous March 6, 2017 medical opinion, including that considering the bilateral nature of the findings (on the February 2, 2015 bilateral thumb x-rays), it appears unlikely that the calcific densities are accounted for in relation to right handed work duties. Further to same, the WCB radiologist consultant noted that such calcifications within tendons or ligaments are frequent age related incidental x-ray findings, and that they did not have the appearance of avulsion injuries.
The worker relied on reports from a second sport medicine physician dated March 9, 2017, an occupational health physician dated April 18, 2017 and his family physician dated November 28, 2017. The worker argued that reports from these or some of these physicians should be given more weight as they were independent and unbiased, and that all three doctors suggested the worker should avoid the jobs using his right thumb, such as animal surgery and pipetting. The panel is unable, however, to attach weight to these reports or suggested restrictions as being causally related to the worker's claim.
The panel notes that the worker saw the second sport medicine physician and the occupational health physician well over two years after the stated date of incident when the worker ceased performing the duties which were said to be a problem, and that their knowledge of the history of the file, including the worker's improvement over time, is unclear. None of the three reports referred to by the worker provide any clinical findings which would connect his current difficulties to a workplace accident in October 2014. The panel further notes that the second sport medicine physician expressly stated in his March 9, 2017 report that "It is not clear to me what caused the initial problem."
The panel places significant weight on the June 7, 2017, opinion of the WCB plastic surgery consultant, which is consistent with our view of the information on file:
The medical information on file does not substantiate that a separate injury to the right thumb IP joint, beyond the influence of a trigger thumb, occurred in relation to the October 2014 work duties. To the extent that an element of synovitis involving the right thumb IP joint was present, it had, in any case, clinically resolved as early as June 10, 2016, when the treating plastic surgeon noted right thumb flexion and extension was equal to the left, and as late as the second call-in examination on July 28, 2017 (sic), when range of motion was normal in right thumb IP joint extension, right IP joint flexion was symmetric to the left, and there was no swelling at the IP joint as confirmed by circumferential measurements.
Finally, the panel is unable to attach any weight to the literature provided as a basis for concluding that the worker's IP joint problems arose out of and in the course of the worker's employment in this case.
In conclusion, based on our review of all of the information which is before us, on file and as presented at the hearing or subsequently received, the panel is satisfied that the worker's IP joint difficulties are not acceptable as either a separate injury or as secondary to the trigger finger injury which had been diagnosed more than two years earlier and resolved at the time this claim was filed.
Accordingly, the panel finds, on a balance of probabilities, that the worker did not sustain an injury by accident arising out of and in the course of his employment, and the worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of August, 2018