Decision #117/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility is not accepted for the right lateral epicondylosis condition as being a consequence of the compensable injury and her right shoulder permanent partial impairment rating and award have been correctly determined. A hearing was held on January 23, 2019 to consider the worker's appeal.
Whether or not responsibility should be accepted for the right lateral epicondylosis condition as being a consequence of the compensable injury; and
Whether or not the worker's right shoulder permanent partial impairment rating and award have been correctly determined.
Responsibility should not be accepted for the right lateral epicondylosis condition as being a consequence of the compensable injury; and
The issue as to whether the worker's right shoulder permanent partial impairment rating and award had been correctly determined was withdrawn by the worker at the hearing.
On May 3, 2013, the worker reported to the WCB that she injured her lower back and right elbow at work on April 25, 2013. She reported tripping, falling backwards, hitting her tailbone on the floor and then her head. She further noted "As I was coming down backwards, my right arm hit the rolling rack injuring my right elbow."
The worker attended for an examination at her chiropractor's office on April 26, 2013. Her chiropractor noted a "baseball sized" large contusion on the worker's ulnar side forearm under her elbow and "swelling posterior occiput" and on her left tailbone. The treating chiropractor had x-rays conducted and noted no abnormalities. The worker was diagnosed with pronounced bruising of her right forearm, a cervical sprain and pelvic subluxation. It was recommended that she remain off work for a week. The worker was seen by her treating family physician on May 3, 2013. The worker reported to the physician that she fell and hit her tailbone, back and head but had continued to work with increasing pain. The treating physician noted that the worker had pain on palpation to her forearm and ulna radius and referred the worker for an x-ray. The WCB accepted the worker's claim on May 14, 2013.
The WCB medical advisor reviewed the worker's file on May 18, 2013 and recommended restrictions of no prolonged firm grasp with her right arm, no repetitive movements of right arm, no push/pull/lift/carry of greater than fifteen pounds total or more than five pounds with the right, no repetitive bending or twisting of back or neck, no awkward positions and able to change position as needed. The worker began a graduated return to work on May 22, 2013.
At a follow-up appointment with her family physician on July 26, 2013, the physician reported subjective complaints of increased pain on "…Tuesday this week," to her extensor right forearm and noted that she was unable to work. The objective findings were noted to be "pain to lateral epicondule (sic) and extensor tendon".
On August 6, 2013, the worker's file was reviewed by a WCB medical advisor. The advisor opined:
There has been continuity of medical attention for the right elbow. However, the initial dx (diagnosis) was a contusion. The DC (chiropractor) noted the contusion to be to the ulnar side. It is now noted that symptoms are more to the radial side. It is not likely that a contusion to the ulnar side would cause pain to the radial side over three months later. Furthermore, the natural history of a contusion to the elbow is for full recovery in a few weeks and we are well past that time now.
The most recent medical information is consistent with a lateral epicondylopathy. This was not noted to be the initial dx or the initial area of symptoms or findings. While this dx can be a result of a direct blow to the elbow, symptoms and signs to the area would be expected right away, not months later.
In a discussion with the WCB on August 8, 2013, when questioned about her elbow, the worker stated that since her workplace accident, the issues with her elbow have been on the ulnar side. However, after returning to work, she developed issues on the radial side and her treating physician believed the symptoms "deferred from one side to the other."
The WCB advised the worker on August 9, 2013, that it was determined she had recovered from the April 25, 2013 workplace injury and she was not entitled to wage loss benefits after June 18, 2013.
New medical information from the worker's treating physician was provided to the WCB on October 8, 2013 and was reviewed by the WCB medical advisor on October 26, 2013. The WCB medical advisor provided:
The report from [treating physician] provides no new information to support how the current dx of lateral epicondylopathy is related to the contusion injury initially dx'd. The initial dx was a contusion (ulnar area of elbow), the current dx is lateral epicondylopathy. The following points still remain:
• Lateral epicondylopathy is not in the same area as the area noted to be contused.
• An elbow contusion does not lead to lateral epicondylopathy.
• July 26 is the first time the doctor mentioned lateral epicondylar symptoms or findings (3 months after the injury). If an acute blow to the elbow causes epicondylopathy, the symptoms and findings to that area would be immediate.
On October 28, 2013, the worker was advised that based on the WCB medical advisor's opinion, the August 9, 2013 decision remained unchanged and her current right elbow difficulties related to the diagnosis of lateral epicondylosis was not related to her workplace accident.
New medical evidence, including an MRI of the worker's right elbow, conducted on March 22, 2016 was received, which noted "No significant interval change from 2013 MRI except for resolution of the previously noted ganglion cyst volar to the radial neck. A partial low grade tear of the common extensor tendon origin at its humeral attachment is unaltered." This evidence was reviewed by a WCB medical advisor on May 24, 2016, who provided:
A common extensor tear can come from:
• Degeneration - wearing out the fibres of the tendon with age
• Overuse - mainly from repetitive strain from use of the hand/wrist against force (on a regular basis, most hours of a work day, with the hand in un-natural positions or against more than 20 lbs of force)
• Acute trauma - a sudden heavy contraction or stretch of the tendon beyond its capacity, a fall on an outstretched hand, a forceful direct blow to the area, or forceful traction.
The WCB medical advisor further noted that the worker was not provided with a diagnosis of lateral epicondylosis by her treating physiotherapist and physician until approximately three months after the workplace accident. On May 17, 2016, the WCB advised the worker that the medical evidence had been reviewed but the previous decision from October 28, 2013 remained unchanged.
On January 26, 2017, the worker requested reconsideration of the WCB's August 9, 2013 decision that responsibility should not be accepted for the right lateral epicondylosis condition as being a consequence of the compensable injury.
Review Office determined on March 1, 2017 the diagnosis of right lateral epicondylosis was not compensable. Review Office placed weight on the WCB medical advisor's opinion that an injury to one area of the body, in the worker's case the ulnar side of her elbow, does not lower the threshold for developing an injury to another area - the radial side. It was further noted by Review Office that the worker had returned to work, with the employer accommodating her right upper extremity restrictions, and there was no evidence that the job duties she was performing during her return to work would lead to the development of lateral epicondylosis.
The worker's representative filed an appeal with the Appeal Commission on November 14, 2017. An oral hearing was arranged for January 23, 2019.
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 September 5, 2019, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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.
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 to the worker by the WCB.
"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.
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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.
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.
The worker is appealing the WCB decision that her lateral epicondylosis is not a consequence of her compensable injury.
The worker had appealed a second issue regarding a Permanent Partial Impairment award, but withdrew this issue at the commencement of the hearing.
The worker was represented by legal counsel and was accompanied by her daughter. The worker's counsel confirmed that the issue before the panel is whether the worker's diagnosed right lateral epicondylosis is compensable.
The worker's counsel described the accident as:
[Worker] was carrying a bundle of clothing in the merchandise room, and tripped over a storage rack. She lost her balance and tried to grab onto another storage rack, and ultimately fell backwards, striking her elbow on a rolling storage rack on the way down, and hitting her elbow, head, back and shoulder on the ground. [Worker] was unconscious for approximately five minutes following the accident. The initial diagnosis of the right elbow was a contusion.
The worker's counsel noted that the Review Office placed significant weight on the evidence of the WCB medical advisor who took issue with three factors concerning the worker's diagnosis of lateral epicondylosis, specifically:
• the timeline between the accident, the initial diagnosis, and the diagnosis of lateral epicondylosis.
• the reports of pain, initially being located on the ulnar side of the elbow, and later, the development of lateral epicondylosis on the radial side of the elbow.
• the mechanism of the injury.
The worker's counsel relied on an opinion provided by the worker's treating physician, in a report dated July 20, 2018. The treating physician did not agree with the WCB medical advisor. The physician, indicated that he believes a contusion to the elbow would take in excess of two weeks for a full recovery. The physician also noted that his initial examination of the worker did show pain on both sides of the worker's elbow. He also noted that in a medical report dated June 16, 2017, the worker was seen primarily for issues with her shoulder and the scapulothoracic region after the immediate injury. He opined that the treatment provided to the worker has been consistent with a strain to the common extensor tendon in her right elbow.
The worker's counsel also noted the December 11, 2018 report of the orthopedic specialist who operated on the worker. He advised that "contusion to the elbow can be of varying severity and the recovery takes serval days to several months." He commented that he sees "… patients who have sustained multiple injuries simultaneously and often, the focus is on the most serious of those injuries." He opined that the worker's lateral epicondylosis could be a result of numerous injuries she suffered in the accident. In addition, the orthopedic specialist commented that recovery from lateral epicondylitis surgery can be relatively prolonged and the plateau in the recovery can take between one and two years.
The worker’s counsel also noted that the chiropractor who saw the worker the day after the accident, wrote in her report of August 2, 2016, that the worker presented with a baseball-sized contusion to her right forearm at the elbow. She advised that she had treated the worker since 2008 and that she had no history of any issues regarding her right shoulder and arm.
The worker's counsel noted that the above medical practitioners' opinions differed from that of the WCB medical advisor who commented that the natural history of a contusion to the elbow is for a full recovery in a few weeks.
Regarding the WCB medical advisor's opinion that the initial diagnosis concerned the ulnar side, the worker's counsel noted that the treating physician advised that his initial examination indicated pain on both sides of the elbow.
The worker's counsel was critical of the WCB medical advisor's opinion regarding the mechanism of injury, when she stated that if someone is falling backwards and strikes their elbow on something, it is more likely that they are going to strike the medial part of the elbow. He noted the worker's physician’s comment that:
My opinion would be that the likelihood of someone striking any part of their body would be dependent on their fall, and not predictable as to which item of their body they would injure in the process.
The worker's counsel advised that:
[Worker] maintains that her injury, lateral epicondylosis, is a result of trauma from the accident. But in the event that the injury is not directly as a result of trauma sustained during the accident, she submits that the injury is predominately attributable to her shoulder injury.
The worker's counsel referred to two Appeal Commission decisions and an Ontario WCAT decision regarding lateral epicondylitis.
The worker answered questions from the panel regarding her accident, current medical condition and return to work. She indicated that she does not feel she can return to work at this time.
In response to a question about the chiropractor's evidence that the worker's symptoms were on the ulnar side, the worker's counsel commented:
Concerning the ulnar side, I mean, it's [worker's] position that there were multiple impact points. It is also [worker's] position that it is possible, that in the initial reports, the ulnar side was given more attention because of the nature of the contusion, the swelling. As far as the radial side goes, it’s noted in [treating physician's] report, as early as May 2nd, which is less than a week after the injury, around roughly a week after the injury, that there was pain on both sides.
In closing, the worker's counsel commented:
So the Review Office pronounced a decision on [the worker's] file on March 1, 2017, denying compensation for the diagnosis of lateral epicondylosis. Significant weight was placed on the evidence of the Workers Compensation Board medical advisor at that time.
[The worker] has presented new evidence today, which she submits, on a balance of probabilities, supports her position that the diagnosis of lateral epicondylosis should be compensable, as it resulted from the mechanism of her injury.
The Review Office accepted evidence from the medical advisor that the delay in diagnosis constituted a new diagnosis unrelated to the accident. [The worker] has presented evidence today which supports her position that from the outset, immediately following the accident, she reported radial pain in the elbow. [The worker] has also presented evidence that the delay in diagnosis was on the balance of probabilities as a result of the numerous injuries she sustained, and her initial focus on injury to her shoulder…
[The worker] submits that despite the delay in diagnosis in her case, her diagnosis of lateral epicondylosis was a result of her accident.
The Review Office also accepted the evidence of the medical advisor that [the worker] initially complained of pain to the ulnar side, and later developed lateral epicondylosis on the other side of her elbow. [The worker] has presented medical evidence that she had pain on both sides of her elbow from the outset. [The worker] has indicated that she struck her elbow twice in the course of her accident, accounting for the injury to both sides of her elbow. The initial focus of [the worker's] care was her shoulder, and she respectfully submits that her elbow diagnosis was either incomplete or mistaken early on. And as her shoulder progressed and her arm mobilized, her pain became more apparent, and it was diagnosed properly.
[The worker] contests the medical advisor’s evidence that states, someone falling backwards would be more likely to strike the medial side of their elbow. She questions the medical advisor’s expertise in the physics of her accident, and his opinion is further suspect when other medical professionals are unwilling to comment on the mechanism of her injury.
Based on her claim of multiple impacts to her elbow, [the worker] contends that her injury to her lateral radial side of her elbow is consistent with the accident.
In conclusion, [the worker] submits that her diagnosis of lateral epicondylitis was a direct result of trauma sustained in the course of her accident of April 25, 2013. She, therefore, maintains that the appeal should be allowed, and the injury should be deemed to be compensable.
The employer did not participate in the hearing.
The worker is appealing the WCB decision that her right lateral epicondylosis is not a consequence of her compensable injury. For the worker's appeal to be approved, the panel must find on a balance of probabilities that the worker's right lateral epicondylosis was caused by her workplace accident or her other injuries suffered on that date. After careful consideration of all the evidence and submissions on file, at the hearing and subsequent to the hearing, the panel is unable to make this finding. Our reasons follow.
It is evident to the panel from all the information on the file that the worker suffered injuries to a number of areas of her body when she fell backward at work on April 25, 2013. At that time, a right elbow injury was also noted, described then as a contusion on the ulnar side of the elbow. Three months later, on July 26, 2013 a diagnosis of right lateral elbow issues, later diagnosed as lateral epicondylosis, was provided by the worker’s physician. This condition did not respond to treatment and eventually required surgery on December 11, 2018.
The question facing the panel is fairly straightforward, being whether the worker’s ongoing lateral elbow difficulties are causally and medically related to the workers fall on April 25, 2013. The worker’s position, as noted above, places particular emphasis on early reports that the whole elbow was contused; that contusions can last much longer than two weeks; that it cannot be determined with certainty exactly which part of the elbow was hit; and that other more major injuries may have distracted from attention to the worker’s lateral elbow condition.
The panel finds that these arguments are not sufficient to displace what the panel determines to be a more compelling view of the evidence. In particular, the panel notes that the worker was treated and examined by a number of healthcare practitioners in the first three months following her injury in respect of right upper extremity issues. All were asking the worker questions regarding the mechanism of injury and her subjective complaints prior to their examinations, and all had the expertise to examine the worker’s right upper extremity and to report clinical findings indicating lateral elbow difficulties and to suggest diagnoses if any was apparent. There were no such findings. This is consistent with the worker’s evidence on this point: On August 8, 2013, in a discussion with her WCB adjudicator, the worker confirmed that since the date of the accident, her elbow symptoms had only been on the ulnar side of the elbow, and that it was only after she returned to work that she noted symptoms on the radial side.
The panel also notes that the worker’s later diagnosed condition of right lateral epicondylosis was not insignificant; in a right arm that was compromised because of other injuries, the condition worsened to the point that it required surgical treatment. In the panel’s view, if this was an acute injury that was caused by the worker’s fall on April 25, 2013, it would have been symptomatic at that time and would have been disclosed by the worker or discovered by the worker’s multiple treating healthcare practitioners at that time. In this regard, the panel, accepts and adopts the August 6, 2013 and October 26, 2013 opinions (inaccurately described by the worker’s counsel as “evidence”) provided by a WCB medical advisor, that if the injury was acute, symptoms would be immediate and ongoing, and that there was no medically plausible explanation for the delayed symptoms or the movement of symptoms from one side of the elbow to the other.
Worker’s counsel also proposed that the worker’s right elbow condition was, in the alternative, predominantly attributable to her compensable right shoulder injury. This argument suggests that the worker overused her right elbow as a result of her shoulder injury. The panel finds that the evidence on the file and at the hearing does not disclose a pattern of overuse to support this argument. The worker has been off work and has minimized the use of her right upper extremity since the time of the injury, using it much less that she had prior to her workplace injury with only a short attempted return to work in the interim.
The panel also understands that lateral epicondylosis can be a degenerative condition and that, in the circumstances of this case, the onset of this condition is more likely to be contemporaneous with the timing of the worker’s injury than to be caused by it.
Based on this analysis, the panel finds on a balance of probabilities that the worker’s right lateral epicondylosis condition is not a consequence of the compensable injury.
The worker’s appeal is therefore denied.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
A. Finkel - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of September, 2019