The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits. A hearing was held on September 19, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

The worker is entitled to further benefits.

Background

The employer filed an Employer's Accident Report with the WCB on October 17, 2017 indicating that the worker injured her right wrist in an incident at work on the same date. The worker attended for medical treatment at a clinic where she reported that she was injured at work when her right hand was grabbed and her thumb bent back. The clinic physician diagnosed the worker with a right thumb sprain, referred her for an x-ray and recommended she remain off work until October 20, 2017. The x-ray of the right thumb and wrist taken that day did not identify any fractures.

The worker's claim was accepted by the WCB on October 26, 2017.

On October 26, 2017, the worker attended for a follow-up appointment at the clinic, reporting continuing pain in her right wrist. The clinic physician examined the worker and noted swelling and tenderness over the distal radius of the worker's right wrist, a good range of motion and no deformity. The physician reported a positive test for de Quervain's tenosynovitis. The worker again attended the clinic on October 27, 2017 and received an injection to address the continuing pain in her wrist.

When the worker saw her family physician on November 2, 2017, the physician noted reduced range of motion, tenderness along the worker's right wrist and decreased grip strength and diagnosed hyperextension of the worker's right thumb. A pre-existing hairline fracture in the area of this injury was also noted.

At the initial assessment with a physiotherapist on November 15, 2017, the worker reported constant pain at the base of her right thumb that extended along the radial aspect of her forearm. The physiotherapist also noted a positive de Quervain's test and diagnosed the worker with a thumb extensor and abductor strain.

On December 15, 2017, the worker's file was reviewed by a WCB medical advisor who stated that the worker's initial and current diagnosis was of a right thumb sprain/strain. The WCB medical advisor noted that sprain/strain type injuries typically resolve over a period of a few days to weeks and that a thumb injury was not indicative of total disability, suggesting that the worker would be capable of returning to work with restrictions of no use of her affected right arm. The employer was advised of the worker's restrictions on December 15, 2017.

At a follow-up appointment on February 5, 2018 with her family physician, the worker was referred for a nerve conduction study due to complaints of numbness and tingling involving the fingers of her right hand.

The worker returned to work with restrictions on February 7, 2018. At a follow-up appointment on March 1, 2018, the worker's treating family physician updated the worker's restrictions to no repetitive movements with her right arm and no lifting. These were provided to the employer on March 6, 2018.

On March 12, 2018, the worker attended for a nerve conduction study. The result of the nerve conduction study indicated that there was "…evidence of a very mild right carpal tunnel syndrome which does not explain her ongoing pain and limitation of motion."

The worker was seen by a sports medicine physician on March 21, 2018. The sports medicine physician noted the worker had a positive Finkelstein's test and her thumb was weak with extension and abduction. The worker was diagnosed with de Quervain's tenosynovitis and carpal tunnel syndrome in her right hand. The physician recommended the worker restart physiotherapy, consult with her family physician regarding a referral to a plastic surgeon for carpal tunnel release surgery and not return to work.

On March 28, 2018, the worker was seen by a WCB sports medicine consultant for a call-in examination. The WCB sports medicine consultant confirmed that based on the information on file, the worker's initial diagnosis from the workplace accident was of a right thumb/wrist strain, with a natural history of improvement in 4-6 weeks, and commented that the worker's current diagnosis was of non-specific wrist pain. The consultant concluded that the worker's current difficulties could not be medically accounted for in relation to the diagnosis of a strain injury from the workplace accident and that, based on the examination, the worker would not require restrictions on return to work.

On April 10, 2018, the WCB determined the worker had recovered from the workplace accident of October 17, 2017 and was not entitled to further medical aid. As well, the WCB determined that entitlement to wage loss benefits would end as of April 16, 2018 on the basis that the worker's ongoing symptoms were not related to the workplace accident.

On September 20, 2018, the worker provided WCB with a July 19, 2018 letter from her family physician that reported she had not recovered from the October 2017 workplace injury. WCB advised the worker on September 24, 2018 that the decision remained unchanged. On October 29, 2018, the worker also provided the WCB with a September 20, 2018 letter from her treating physiotherapist.

On October 29, 2018, the worker requested reconsideration of the WCB's decision to Review Office, expressing disagreement with the decision to end medical aid and wage loss benefits as she had ongoing symptoms and continued to seek medical attention for her injury.

Review Office determined on December 13, 2018 that the worker was not entitled to further benefits on the basis that the worker's file indicated the likely diagnosis resulting from the workplace accident was a right thumb/wrist strain that naturally resolves over a short period of time. Review Office accepted the March 28, 2018 WCB sports medicine consultant's opinion that the worker's current symptoms could not be medically accounted for in relation to the workplace accident and determined that the worker's ongoing difficulties were not related to the workplace accident and there was no entitlement to further benefits.

The worker's representative filed an appeal with the Appeal Commission on January 28, 2019. An oral hearing was arranged.

Reasons

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."

Worker's Position

The worker was represented in the hearing by an advocate who provided the panel with a written submission and made oral submissions in the course of the hearing. The worker answered questions put to her by her advocate as well as by members of the panel.

The worker's advocate outlined the worker's position that she had not recovered from the injurious effects of her compensable workplace injury of October 17, 2017 when WCB determined she was no longer entitled to benefits and that the worker therefore is entitled to further benefits.

The worker's advocate noted that the medical information on file indicates an injury more complex than the right thumb sprain/strain diagnosis provided by the WCB medical advisor. Rather, the advocate suggested, the medical reports point to injury of the worker's wright thumb and wrist and forearm. The WCB call in examination findings (but not conclusions) of March 28, 2018 were relied upon in support of this position. The WCB medical advisor documented the worker's report of ongoing right thumb and first extensor compartment pain, as well as pain radiating up the extensor mass into the forearm and the lateral elbow. These reports were confirmed by the clinical findings including a positive Finkelstein's test to indicate de Quervain's tenosynovitis.

The worker's advocate directed the panel to consider the report from the worker's own physician dated July 19, 2018 as support for the position that the worker's ongoing difficulties continue to be related to the October 17, 2017 workplace injury. The physician stated that the worker's symptoms began and have continued since the date of the accident and that the worker has no other reason for the continuation of those symptoms. The panel was also directed to consider the report from the worker's physiotherapist dated September 20, 2018 in which the physiotherapist notes that the worker continued to experience right thumb and forearm issues since returning to work in September 2018, consistent with de Quervain's tenosynovitis and irritation of her wrist extensors due to the accident of the previous year.

The worker's position, in sum, is that the WCB incorrectly determined that the worker had fully recovered from her compensable injury when benefits were terminated in April 2018, and that although the typical recovery period for such an injury had passed, the worker had an ongoing disability and was therefore entitled to further benefits beyond that time.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue for determination by the panel is whether or not the worker is entitled to further benefits in relation to the October 17, 2017 accident. In order to find that the worker is entitled to further benefits, the panel must find that the worker had not fully recovered from her compensable injury sustained on October 17, 2017. The panel was able to make that finding.

In considering whether or not the worker had fully recovered from the compensable injury when WCB benefits were terminated in April 2018, the panel considered in particular the medical reports provided in the period leading up to the termination of benefits.

On March 1, 2018, the worker's treating physician noted tenderness along the worker's right forearm and weaker than normal grip strength. The physician's report notes that recovery is not satisfactory and that the worker reported ongoing right arm and wrist pain worsened by use, with pain radiating from the wrist to the elbow. The March 13, 2018 report from this physician again notes the worker's ongoing report of pain in the right elbow and right middle finger that worsens with use, including lifting or trying to open lids.

The March 21, 2018 report from the treating sports medicine physician notes a diagnosis of "right dequeravins [sic] and CTS" and recommends the worker remain off work and seek further physiotherapy. Clinical findings include positive right Tinel's, Phalen's and Finkelstein's tests as well as weakness with thumb extension and abduction.

The WCB call-in exam findings of March 28, 2018 included report of lateral elbow pain with right elbow flexion and pain at the first extensor compartment of the wrist radiating into the forearm with right elbow extension. Right elbow pain was also noted with forearm pronation and supination. Pain was reported at the first extensor compartment area with Finkelstein's testing and there was tenderness to palpation at the radial aspect of the wrist as well as at the right thumb and over the forearm extensor mass. On this date the Phalen's and Tinel's signs at the wrist were negative. The overall findings are described by the WCB sport medicine advisor as "non-specific wrist pain" possibly with a "component of first extensor compartment tendinosis".

These reports indicate consistent evidence of ongoing symptomology and confirm that the worker's recovery was ongoing through March 2018. The panel notes in particular the consistent findings of positive results on Finkelstein's testing and that there are significant areas of overlap between the findings of the sport medicine physician of March 21 and the WCB sport medicine advisor of March 28. There are also some differences in the opinions and conclusions reached by the worker's treating sport medicine physician and the WCB sport medicine advisor. Where there is disagreement, the panel prefers and gives greater weight to the evidence of the treating sports medicine physician.

The panel members also note the report from the worker's treating physician of July 19, 2018 indicating continuation of the symptoms, although with some improvement over the summer break when the worker was able to rest her arm and wrist and the identification of ongoing issues as set out in the physiotherapist's report of September 20, 2018.

On the basis of the medical reports and findings, the panel determines, on a balance of probabilities, that the worker had not fully recovered from the injurious effects of her compensable injury by April 2018 when her WCB benefits were terminated. The worker is therefore entitled to further benefits.

In coming to this determination, the panel makes no findings as to wage loss entitlement or duration or kind of benefits to which the worker may be entitled.

The worker's appeal is allowed.

Panel Members

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 5th day of November, 2019