Decision #130/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the June 16, 2016 accident. A hearing was held on September 17, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the June 16, 2016 accident.
The worker is entitled to further benefits in relation to the June 16, 2016 accident.
The worker filed a Worker Incident Report with the WCB on June 24, 2016 reporting injury to her right wrist in an incident at work on June 16, 2016. She described experiencing a slight discomfort in her right wrist while performing a testing function in the morning. Approximately 45 minutes later, while picking up a heavy object, the worker described that the pain in her right wrist became acute.
The worker saw a sports medicine physician on June 24, 2016 and reported pain on the ulnar side of her right wrist when lifting things for the previous week and a half. The physician noted the worker had ulnar-sided mild tenderness, but no swelling. The worker was diagnosed with non-specific right ulnar-sided wrist pain, most consistent with tendinosis. Bracing and physiotherapy were recommended, as well as modified duties through to July 29, 2016.
On June 26, 2016, the worker attended for an initial physiotherapy assessment. At that time, she reported that her right wrist was sore and tight, even when resting and that it became more sore and painful with use. The physiotherapist diagnosed a right extensor carpi ulnaris tendinopathy with mild triangular fibrocartilage complex irritation.
On June 28, 2016, the worker confirmed the mechanism of injury to WCB and advised that she had a concurrent employer. She noted the concurrent employer was unable to accommodate her restrictions and she would likely miss a shift as a result. She advised that the employer was looking for modified duties for her to perform.
On June 29, 2016, the WCB accepted the worker's claim. The worker returned to work on modified duties on July 15, 2016.
At a follow-up appointment with the sports medicine physician on July 18, 2016, improvement with physiotherapy was noted and new restrictions were recommended to remain in place until August 22, 2016. For the return to work, the physician recommended that the worker start at four hours per day, increasing two hours per day until she was back at full hours. At her August 17, 2016 follow-up appointment, the sports medicine physician noted that the worker still had "…some persistent pain with activity" but noted that she was slowly improving. At that time, a recommendation was made for an MRI study of the worker's right wrist.
On September 15, 2016, the worker advised the WCB that she was off work since August 25, 2016 due to an unrelated health issue and that she was not claiming any further time loss with regard to her WCB claim. She further advised that her wrist was "…feeling a lot better." At a September 20, 2016 assessment, the worker's physiotherapist noted that the worker's right wrist was pain free and that the worker was ready to "…trial full duties with wrist…" once she had returned to work from her unrelated health issues.
On August 16, 2017, the worker contacted the WCB to advise that she suffered a recurrence of her June 2016 injury. The worker advised that she had not returned to her position with the employer and had accepted a permanent position with her concurrent employer in January 2017. She noted that approximately one month before, she had felt an increase in her symptoms with a worsening tightness and soreness in her right wrist but there had been no new accident or increase in demands in her job duties. The worker also reported she had been referred to a neurologist in March 2017 for an unrelated issue.
The WCB obtained a copy of the March 8, 2017 report from the worker's neurologist, which noted that on examination, "Palpating over the right flexor carpi ulnaris was a specific tender area for her." The electrodiagnostic impression noted no evidence of right median neuropathy at the wrist and no evidence of right ulnar neuropathy at the wrist or elbow. The neurologist opined that the worker still suffered pain in her right extensor carpi ulnaris tendon and recommended that she follow-up with her family physician and/or physiotherapist.
The worker was seen by her family physician on August 18, 2017. At that time, the worker reported pain in her right wrist and forearm and the physician noted tenderness to the volar aspect of the right wrist. The physician recommended the worker restart physiotherapy and noted restrictions of not lifting or carrying greater than ten pounds for four weeks.
On September 7, 2017, the worker's file was reviewed by a WCB medical advisor who provided the opinion that the worker's initial diagnosis in relation to the June 16, 2016 workplace incident was to her extensor tendons of her right wrist but there was no current medical evidence of an extensor tendinopathy and as such, her current symptoms could not be related to the workplace accident. On September 15, 2017, the worker was advised that her current right wrist difficulties were not accepted as related to the June 16, 2016 workplace accident.
The worker submitted further medical information from her physiotherapist and chiropractor and requested the WCB reconsider their September 15, 2017 decision. The worker outlined that her treating healthcare providers determined her current symptoms were a recurrence of her June 16, 2016 workplace injury. A WCB medical advisor reviewed the worker's file including the new information supplied and on July 31, 2018, opined that the worker's ongoing wrist pain could not be accounted for in relation to a specific incident, but was related to the worker's performance of her regular job duties. On August 13, 2018, the worker was advised that the WCB's September 15, 2017 decision remained unchanged.
On November 26, 2018, the worker's representative requested reconsideration of the WCB's decisions to Review Office, arguing that the worker suffered a recurrence of her workplace injury when she returned to work in November 2016 and her symptoms continued to worsen over time with performance of her job duties, as she was unable to get the proper treatment.
Review Office determined on December 5, 2018 that the worker was not entitled to further benefits as the worker's current right wrist difficulties could not be related to the workplace injury on June 16, 2016. Review Office also noted that the worker's compensable injury did not involve structural damage to her wrist that would cause further complaints or need for further treatment.
The worker's representative requested Review Office reconsider their decision on December 13, 2018 and submitted further medical evidence, which included an October 31, 2018 medical report from a consulting physician who suggested that had the worker returned to her previous position, she would likely have suffered a recurrence of her workplace injury earlier than she did, and that her ongoing right wrist difficulties were a consequence of her compensable injury.
On January 22, 2019, Review Office again determined that the worker was not entitled to further benefits in relation to the June 16, 2016 accident, having considered the evidence submitted by the worker's representative.
The worker's representative filed an appeal with the Appeal Commission on February 11, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and the policies approved by the WCB's Board of Directors.
Section 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. That compensation includes wage loss benefits and medical aid, as set out in s 37 of the Act.
Wage loss benefits are addressed in s 4(2) of the Act which indicates such benefits are payable for loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as "…necessary to cure and provide relief from an injury resulting from an accident."
The WCB has established Policy no. 188.8.131.52.10, Recurring Effects of Injuries and Illness (Recurrences) (the "Policy") to address the circumstances where injured workers have returned to work and then subsequently discover they have not recovered from their original injury or illness. The Policy states that workers have experienced a recurrence when they "…suffer an increase in permanent impairment or relapse of their injury that result[s] in a loss of earning capacity that arises from the original compensable injury or illness."
The worker was represented in the hearing by a union representative who provided the panel with a written submission in advance of the hearing and made oral submissions in the course of the hearing. The worker answered questions put to her by her representative as well as by members of the panel.
The worker's position as outlined by her representative is that she is entitled to further benefits in relation to the June 16, 2016 accident as she experienced a recurrence of her compensable injury. The worker's representative advocated that the worker had experienced a nearly complete resolution of her symptoms in 2016 with the benefit of ongoing physiotherapy and period away from work due to a non-compensable condition. The injury reoccurred due to increased use of the worker's right wrist after she returned to work with the concurrent employer, worsening progressively as the physical demands of her job increased.
The worker's representative argued that while the WCB considered the worker's injury as a consequence of a single traumatic event, the medical evidence supports a more complex development with an element of repetitive strain.
The representative noted that the degree of the worker's symptoms has consistently been demonstrated to depend upon her activity levels. This view, he argued, is supported by the treating physiotherapist's report of June 20, 2018 which sets out:
When I reassessed her on October 18, 2017 I found her to present with right wrist flexor AND extensor tendinosis/tendinopathy which I think is still in line with and consistent with her presentation of her initial June 2016 compensable injury.
The representative also directed the panel to consider the opinion of the physician who has an interest in occupational health who provided an opinion on October 31, 2018 as follows:
While [the worker's] injury symptoms resolved with treatment and modified duties and she was cleared to return to her pre-injury job in September, this is not the same as 'cure', and she had recurrences which WCB does not recognize.
Further, the worker's representative took the position that the WCB medical advisor opinion of July 31, 2018 concurred with this view:
If the worker has continued to perform highly repetitive or combinations of force/repetition or force/awkward positioning, then ulnar sided wrist pain could result. This opinion would concur with that provided by the treating physio with regards to overuse. In other words, the worker's ongoing and changing wrist pain cannot be medically accounted for in relation to a specific injury but can be medically accounted for in relation to her general work duties.
In summary, the worker's position is that she is entitled to further benefits because the evidence supports, on a balance of probabilities, that she suffered a recurrence of her compensable right wrist injury. While she demonstrated objective improvement, she did so in a context in which her wrist was not subjected to the physical demands of her pre-accident work with the employer, nor those of her concurrent employer, and when she returned to work, the physical demands of her work caused a recurrence of her symptoms.
The employer did not participate in the appeal.
The issue for determination by the panel is whether or not the worker is entitled to further benefits in relation to the June 16, 2016 accident. In order to find that the worker is entitled to further benefits, the panel must find that either the worker had not fully recovered from her compensable injury sustained on June 16, 2016 or experienced a recurrence of that injury.
In determining this question, the panel considered the clinical findings from the worker's treating medical professionals. In March 2017, the neurologist seen for other non-compensable issues noted ongoing concerns with the worker's right wrist, including "medial flexor forearm tenderness involving flexor carpi ulnaris".
The reports from the worker's physiotherapist support that the worker made consistent progress toward a full recovery through the summer and into the fall of 2016. The physiotherapy assessment of September 20, 2016 indicates a DASH score of 5 as well as the worker's readiness to "trial full duties with wrist". The October 4, 2016 physiotherapy discharge report showed a further reduction in the worker's DASH score but not a full resolution of symptoms at that time.
The panel finds that this evidence supports the worker's position that there was not a full resolution of her symptoms as of the discharge from physiotherapy in early October 2016.
While she otherwise was doing well at that time, the panel notes the worker had not been working at any job since late August 2016 for unrelated health reasons, while continuing with physiotherapy treatment and home exercises during this time. As noted by the worker's representative, the degree of the worker's symptoms has been demonstrated to depend upon her activity levels. The worker did not return to active employment with her concurrent employer until early November 2016, although the worker's WCB benefits terminated approximately one month earlier. The worker's own evidence is that by the end of November 2016, she was already experiencing a recurrence of symptoms that she related to the wrist injury of June 16, 2016.
It was not until she consulted with the neurologist in March 2017 for unrelated issues that the worker shared with a medical professional about the ongoing wrist difficulties she was experiencing. The clinical findings from that visit confirm that the worker was experiencing ongoing, growing problems with her right wrist and that the worker reported that these had reappeared some three months earlier. The panel notes that this recurrence would have been in early December 2016, within approximately one month of the worker's return to employment, consistent with the worker's testimony.
Further, the panel notes the comments of the worker's treating physiotherapist of June 20, 2018 support this position. The physiotherapist states that when assessed on October 18, 2017, the worker presented with "…right wrist flexor AND extensor tendinosis/tendinopathy which I think is still in line with and consistent with her presentation of her initial June 2016 compensable injury."
On the basis of the clinical findings and the worker's reports and testimony, the panel finds, on a balance of probabilities, that at the time WCB terminated benefits in early October 2016, the worker had not fully recovered from the compensable injury sustained on June 16, 2016. The panel therefore determines that the worker is entitled to further benefits in relation to the June 16, 2016 accident and the worker's appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of October, 2019