Decision #39/20 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:
1. He does not require physical restrictions;
2. He is not entitled to benefits after June 12, 2016;
3. He is not entitled to a permanent partial impairment award.
A hearing was held on February 5, 2020 to consider the worker's appeal.
1. Whether or not the worker requires physical restrictions;
2. Whether or not the worker is entitled to benefits after June 12, 2016;
3. Whether or not the worker is entitled to a permanent partial impairment award.
1. The worker does not require physical restrictions; .
2. The worker is not entitled to benefits after June 12, 2016;
3. The worker is entitled to an assessment for a permanent partial impairment award.
The worker filed a Worker Incident Report with the WCB on October 29, 2014 indicating he injured his right hand and thumb at work on October 15, 2014. In that report, the worker indicated he suffered a repetitive strain injury from the repetitive use of a pipette and his work with laboratory animals. The worker's family physician provided the WCB with a note dated October 28, 2014 indicating that the worker had a repetitive strain injury to his right thumb and while awaiting physiotherapy, it was recommended that the worker decrease the repetitive tasks he was performing.
At an initial physiotherapy appointment on October 29, 2014, the worker reported to the physiotherapist the same mechanism of injury and that it was difficult for him to perform his job duties in that it was painful to hold, grip and use the pipette. The physiotherapist diagnosed joint inflammation of the worker's right thumb and recommended he modify his duties by working more slowly and taking breaks for the next 4 - 6 weeks. On November 28, 2014, the worker's treating physician recommended that the worker be off work two days per week from December 15, 2014 to January 14, 2015.
A WCB medical advisor reviewed the worker's file on January 28, 2015 and provided an opinion that the worker's diagnosis was "right thumb stenosing tenosynovitis" or right trigger thumb, which was medically accounted for in relation to the workplace duties. The WCB medical advisor noted the worker’s referral to a sports medicine physician for consideration of an injection was appropriate, and recommended the worker avoid repetitive firmly resisted grasping involving the right thumb. The WCB medical advisor noted the worker could return to full time hours within the recommended restrictions.
On February 2, 2015, the worker saw the sports medicine physician and was diagnosed with right flexor tenosynovitis and IP (interphalangeal) synovitis. The physician recommended treatment with continued physiotherapy and an injection. At a March 23, 2015 appointment with the sports medicine physician, the worker declined the injection and the sports medicine physician had no further suggestions for treatment.
The worker was treated by injections to the right flexor tendon sheath at the metacarpophalangeal (MCP) joint on April 13, 2015 and May 26, 2015. Due to ongoing symptoms with his right thumb, the worker’s treating family physician took him off work on September 9, 2015.
On September 15, 2015, the worker saw a plastic surgeon who diagnosed stenosing tenosynovitis with the worker’s right thumb "locked in flexion". The plastic surgeon recommended surgical decompression. The WCB approved the surgery on October 15, 2015 and it was scheduled for October 28, 2015.
On October 29, 2015, the worker contacted the WCB to advise he cancelled the surgery due to illness and would be rescheduling. The worker attended a second consultation with the plastic surgeon on December 18, 2015 but the surgery was not rescheduled, as the worker was unsure about proceeding with the surgery.
The WCB arranged a call-in examination with a WCB plastic surgery consultant on February 2, 2016. The WCB plastic surgery consultant noted the worker's hesitation regarding the recommended surgery and agreed to the worker's request for two further months' conservative treatment. At that time, restrictions related to the worker's diagnosis of trigger thumb were avoidance of repetitive, firmly resisted thumb flexion and grasping with his right hand. The restrictions were to be reassessed after two months.
On March 14, 2016, the WCB advised the worker that based upon the information from the treating plastic surgeon, and input provided by the WCB plastic surgery consultant, he was capable of a return to modified duties with restrictions. The restrictions would be reviewed in April 2016. If the worker was not able to work without restrictions at that time, the treatment plan was for right trigger thumb release surgery as recommended by the treating plastic surgeon. The WCB confirmed to the worker that if he chose not to follow this treatment plan, WCB benefits would subsequently be based on the next available surgery date and the anticipated recovery period for that surgery.
On March 16, 2016, the employer advised the WCB that the worker's term positio
n would end on March 31, 2016.
On April 13, 2016, the WCB advised the worker that the surgery his treating plastic surgeon had recommended as the treatment for his right trigger thumb release could take place by May 2, 2016. Based upon a normal recovery period of a maximum of 6 weeks injury, a functional recovery date would be June 12, 2016. On this basis, the WCB determined the worker would have been functionally able to return to full work duties as of June 12, 2016 if he had the surgery, and he would not be entitled to benefits after that date.
The worker requested reconsideration of the WCB's decision to Review Office on April 18, 2016 but withdrew his request on June 1, 2016. He noted that he would be requesting consideration of new medical evidence after his upcoming specialist appointment.
The WCB plastic surgery consultant reviewed the new medical evidence and the worker's file, and a second call-in examination was conducted on July 28, 2016. The WCB plastic surgery consultant noted the report from the worker's treating plastic surgeon of July 10, 2016 set out that the worker "…was better, had less pain and only with extremes of motion/right thumb extension, and the nodule is smaller and less tender. It was noted that right thumb flexion and extension were symmetric to the left."
After the call-in examination and consultation with the worker's treating plastic surgeon, the WCB plastic surgery consultant was of the view that "…the findings did not support the need to impose restrictions in relation to the initial diagnosis of right trigger thumb." Further, the WCB plastic surgery consultant opined the conservative clinical course chosen by the worker for treatment of his right trigger finger injury was "…associated with a prolonged time frame when compared to a typical recovery following trigger finger surgery."
The WCB plastic surgery consultant also concluded that, given the worker's right thumb range of motion was relatively symmetrical to his left, it was not likely that the injury would be rateable as a permanent partial impairment. On August 29, 2016, the WCB advised the worker there would be no change to the decisions that he was not entitled to benefits after June 12, 2016 and that he did not require workplace restrictions.
Additional medical information was placed to the worker's file, including a June 7, 2017 medical opinion by the WCB plastic surgery consultant on another WCB claim filed by the worker. On June 27, 2017, the worker was again advised by the WCB that the earlier decision that he was not entitled to benefits after June 12, 2016 remained unchanged and did not require workplace restrictions.
On July 5, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The employer's representative provided a submission that was shared with the worker on August 22, 2017. The worker provided a further response on August 28, 2017. Review Office determined on August 29, 2017 that: the worker was not entitled to benefits after June 12, 2016; there was no requirement for workplace restrictions; and, the worker was not entitled to a permanent partial impairment rating.
On June 20, 2019, the worker filed an appeal with the Appeal Commission. An oral hearing was arranged.
Applicable Legislation and Policy:
Under s 4(1) of the Act, 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. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
Entitlement to wage loss benefits is addressed in section 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an 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 is "…necessary to cure and provide relief from an injury resulting from an accident."
Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy") sets out that benefits are calculated under the Policy by determining a rating which represents the percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.
Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits: • loss of a part of the body; • loss of mobility of a joint(s); • loss of function of any organ(s) of the body identified in the Schedule; and • cosmetic disfigurement of the body
The worker appeared on his own behalf and with the assistance of a translator, as required, made submissions to the panel. The worker provided the panel with a written copy of his submission and answered questions put to him by members of the panel. As well, the worker submitted, in advance of the hearing, numerous documents outlining his position and including photographs and diagrams of the tools used in the course of his work. In addressing the panel, the worker also demonstrated the mechanics of using a pipette so as to illustrate the mechanism of his injury.
Does the worker require physical restrictions?
The worker’s position with respect to the question of whether or not restrictions are appropriate is that he does require ongoing physical restrictions. In his submission to the panel, the worker noted that from June 2016 to present, 8 of the 9 healthcare professionals who assessed him recommended modified work duties. He noted that only the WCB medical consultant recommended regular job duties. The worker suggested that panel members consider this in their assessment of the medical evidence on the issue of restrictions.
He further noted that he has not fully recovered from his thumb injury and continues to have significantly reduced active range of motion, extension and strength in his right thumb IP joint, as compared to his left. The occupational therapist who reviewed the worker’s July 28, 2016 call-in examination findings reported in June 2019 that the worker had lost 35 degrees of hyperextension in his right thumb and that his left hand grip strength was 2-4 times stronger than on the right. As a result, the occupational therapist stated that the worker “…is unable to rapidly pipette, hold struggling animals, or cut bones using his right hand.”
The worker relied on the medical report from his treating sport medicine physician, dated May 23, 2019 who stated that after treating the worker in 2016, “Due to progressive stiffness of his IP joint, I, then diagnosed a progression to IP arthrofibrosis from which I do not anticipate full recovery in mobility and permanent limitation from extension. As repetitive thumb motions have been contributory to the tendon and joint pathologies, I have recommended that permanent restriction from repetitive pipetting and bone cutting procedure.” The worker also relied on another report from a different sport medicine physician, dated March 9, 2017 that stated “With respect to function, he has some physical impairment that would limit his ability to use scissors or pipette repetitively. Alternative duties in the [workplace] would be appropriate. I suspect these limitations would be permanent.”
In sum, the worker’s position is that the medical reports support a finding that he could not return to his specific pre-accident duties and that he does require continuing physical restrictions.
Is the worker entitled to benefits after June 12, 2016? The worker’s position is that he has not yet fully recovered from the compensable workplace injury in that he is not capable of performing the regular duties of his job such as pipetting and animal surgery. He noted that he has not been able to find a job because of the continuing inefficiency of his right thumb.
The worker pointed to range of motion and other measurements from June 9, 2016 and July 28, 2016 as demonstrating that his active range of motion, extension and strength in the right thumb IP joint are significantly reduced as compared to his left thumb. The need for continuing restrictions as outlined in the medical reports confirms that the worker was not able to return to his pre-accident job duties after June 12, 2016.
The worker urged the panel to find that he is entitled to benefits in respect of wage loss and retraining, as he remains unable to return to his pre-accident employment to this day.
Is the worker entitled to a permanent partial impairment award?
The worker’s position is that, as a result of the compensable injury, he has a permanent loss of mobility with respect to the reduction in hyperextension of his right thumb. He stated that this is a ratable impairment, under the provisions of the WCB’s Permanent Impairment Rating policy and that he should therefore be entitled to a permanent partial impairment award.
The employer did not participate in the hearing.
The three issues for determination on this appeal are each considered in turn below. In considering the questions before us, the panel took into account the oral submissions and testimony of the worker, as well as the various reports and documents in the worker's WCB file.
Does the worker require physical restrictions? In order to determine that the worker requires physical restrictions, the panel would have to find that, at the time the worker was deemed able to return to work, he continued to suffer the effects of the compensable workplace injury such that his capacity to do his job was limited by the injury in some way. The panel was not able to make that finding.
In the February 4, 2016 report from the call-in examination of the worker, the WCB plastic surgery consultant outlined that typical “…restrictions in relation to a trigger thumb are to avoid repetitive, firmly resisted thumb flexion and grasping on the right.” These were put in place and were to be reassessed after two months.
The worker’s treating plastic surgeon assessed him on April 8, 2016 and stated that “I believe [the worker] could return to at least modified duties [and] repetitive acts may not be able to be done.” The plastic surgeon at this time stated that with restricted activities the worker should continue to improve, noting the worker’s intention to continue with conservative treatment, rather than the recommended surgery.
On May 9, 2016, the worker’s treating physiotherapist recommended that restrictions remain in place and noted that any repetition or strong action in terms of pipetting, cutting, handling bottles and animals, preparing chemicals and samples or gripping, would aggravate the worker’s symptoms and prolong his recovery. The physiotherapist repeated this recommendation on further assessment on June 9, 2016.
The worker again saw his treating plastic surgeon on June 10, 2016. The plastic surgeon notes that the worker is “better. He has less pain [and] only pain in extremes of motion….” The worker’s right thumb extension is noted to be equivalent to the left and the nodule is noted to be smaller and less tender. The plastic surgeon reports that the worker is requesting an additional two months off repetitive duties at his workplace and suggests a further WCB examination if this is not acceptable.
The WCB arranged a second call-in examination with the plastic surgery consultant on July 28, 2016. The report from that examination contains the conclusion that the examination findings of that date “…do not indicate the need to impose restrictions in relation to the initially accepted diagnosis of right trigger thumb.” The plastic surgery consultant notes that there is no pathoanatomical diagnosis to account for the worker’s continuing pain localized to the right thumb IP joint. Further, the plastic surgery consultant indicates that on discussion of the findings from the call-in examination with the worker’s treating plastic surgeon, there was agreement that the findings did not support a need for restrictions in relation to the initial diagnosis of right trigger thumb.
The panel accepts the conclusions of the treating plastic surgeon and the WCB consulting plastic surgeon with respect to the question of continuing restrictions. The treating plastic surgeon’s June 10, 2016 report suggests that the request for continuing restrictions was initiated by the worker. This request was supported by his treating physiotherapist. Nonetheless, the treating plastic surgeon did not impose any restrictions and the WCB consulting plastic surgeon agreed.
The panel therefore finds, on a balance of probabilities that there is no requirement for workplace restrictions. Is the worker entitled to benefits after June 12, 2016? The second issue for determination is whether or not the worker is entitled to benefits after June 12, 2016. In order for the worker's appeal on this issue to succeed, the panel must find that the worker continued to experience a loss of earning capacity as a result of his compensable injury, or that he required medical aid to cure and provide relief from his compensable injury after June 12, 2016. On the basis of the evidence before us, the panel was not able to make such a finding.
The panel reviewed and considered the medical reports and documents on the worker’s file, focusing in particular on the reporting leading up to and following June 12, 2016.
The December 22, 2015 report from the treating plastic surgeon outlined that the worker’s compensable trigger thumb injury “…just really needs to be treated by surgical release.”
In the February 2, 2016 report from the WCB plastic surgery consultant, the worker demonstrated 5/5 strength with resisted right thumb abduction, although he reported associated pain at the volar aspect of the right MCP joint. He had decreased resistance to resisted right thumb flexion due to pain at the dorsal aspect of the IP joint. The worker reported that his range of motion in terms of thumb flexion had improved since August 2015. On palpation of the right thumb and assessment of joints, no locking was noted although there was slight occasional clicking. On the basis of this assessment, the WCB consultant concluded that “…triggering appears to have been improved significantly without obvious locking of the right thumb. Decreased, though functional, range of motion was observed at the right thumb.” Based upon the worker’s expressed hesitation to undergo surgical release, the WCB consultant agreed that in light of the recent improvements with conservative treatment, 2 more months of conservative management would be reasonable.” With respect to treatment of a trigger finger injury, the consultant noted that: “WCB typically will fund standard of care treatment for trigger finger, such as a course of physiotherapy and splinting, cortisone injections, and/or surgical release if conservative management is not successful. Laser or shock wave therapy for trigger finger is not funded by the WCB.”
The March 22, 2016 progress report from the primary care physician noted the worker was “…doing home recovery programme and physio for lazer (sic) treatment…Encouraged to do plastic surgery after his treatment….”
Chart notes from the worker’s April 8, 2016 appointment with the treating plastic surgeon set out that the worker has “improving stenosing tenosynovitis” and is requesting to continue with conservative treatment for 2 more months before considering surgery. The physician stated that the worker could at that time return to “…at least modified duties” although he may not be able to do repetitive activities.
The WCB plastic surgery consultant again reviewed the file documents on April 18, 2016, and noted the new clinical findings from March 22 and April 8, 2016. The conclusion offered, on the basis of the reports reviewed is as follows:
“…the medical information on file indicates that while there was initial improvement at the right thumb from the presentation in August/September 2015 to the February 2, 2016 call-in exam, the medical evidence does not indicate a significant improvement to date since the February 2, 2016 call-in exam…This matter is concordant with the treating plastic surgeon’s December 2, 2015 report, which noted that [the worker] ‘…has a trigger thumb and it just really needs to be treated with surgical release.’ In light of the above medical information, i.e. not recovered following conservative treatment and steroid injections, the standard treatment would be a surgical release of the right thumb A1 pulley.”
On May 5, 2016, the worker again saw his primary care physician who reported to the WCB that the worker’s recovery was not satisfactory because the worker was “reluctant to have surgery due to possible post-op/operative complications.” The physician noted on the Doctor Progress Report, signed May 16, 2016 that the worker was capable of alternate or modified duties as outlined by the physiotherapist on May 9, 2016.
Even if restrictions were in place, the worker’s treating medical professionals agreed, as of at latest early May 2016, that the worker was capable of a return to work at full-time hours, with accommodation made for self-pacing and rest as needed. The treating physiotherapist, on June 9, 2016 confirmed that the worker was “able to continue working at full time hours but continues to require modified duties.”
Chart notes from the worker’s next assessment by the treating plastic surgeon on June 10, 2016 indicated the worker was “better” in that he had less pain and pain only in extremes of motion. His right thumb extension was noted to be equivalent to his left thumb. In a narrative report based upon that visit and dated June 28, 2016, the plastic surgeon also noted some improvement in the worker’s trigger finger from the visit in April and improved range of motion by some 25 degrees.
The panel notes that the treating plastic surgeon was clear in December 2015 that the worker’s trigger thumb injury needed to be treated with surgical release. The WCB plastic surgery consultant agreed with this recommendation in February 2016, but allowed for two additional months of conservative treatment at the worker’s request. The WCB agreed with this recommendation but advised that if there was not sufficient progress with conservative treatment, the treatment plan would be for the surgical release to proceed. When the findings from the worker’s April 2016 assessment by the treating plastic surgeon did not indicate further progress toward recovery, the WCB determined that the surgery should proceed and on April 13, 2016, the WCB advised the worker that the surgery could take place by May 2, 2016. Based upon a normal recovery period of a maximum of 6 weeks, a functional recovery date would be June 12, 2016. At that time, the WCB determined the worker would have been functionally able to return to full work duties as of June 12, 2016 if he had the surgery, and he would not be entitled to benefits after that date.
The panel accepts the treatment plan recommended by the worker’s treating plastic surgeon in December 2015 and confirmed by the WCB’s consulting plastic surgeon in February 2016. The worker was reminded by the WCB in March 2016 of his obligation to comply with the recommendations of his treating professionals, and notified that although he had a choice as to the treatment he pursued, his entitlement to wage loss and medical aid benefits could be impacted by failing to comply with the recommended treatment plan.
The worker consistently advised his treating professionals of his preference to pursue a conservative treatment plan in spite of the recommendation that he undergo the surgical release to address his trigger thumb injury. While the results of the July 28, 2016 call-in examination indicate significant improvement in the worker’s right trigger thumb, the WCB plastic surgery consultant concluded that “…it appears, more likely than not, that the clinical course noted on file has been associated with a prolonged time frame when compared to a typical recovery following trigger finger surgery.”
The panel finds that the worker’s choice to continue with a conservative course of treatment resulted in a prolonged recovery period and that if the worker had pursued the recommended treatment plan, he would likely have been recovered by June 12, 2016 when his benefits were terminated. Therefore, any loss of earning capacity or need for further medical aid beyond that date was, on a balance of probabilities, the result of the worker’s choice of treatment, rather than the result of the compensable injury. For that reason, the panel determines the worker is not entitled to benefits beyond June 12, 2016.
Is the worker entitled to a permanent partial impairment award? For the worker's appeal on this question to succeed, the panel must find that the worker has a permanent partial impairment resulting from the workplace injury. The panel is not able to make any such finding, as the worker has not been assessed by the WCB for permanent partial impairment. For the reasons set out below, the panel determined that the worker is entitled to an assessment by the WCB as to whether he is entitled to a permanent partial impairment award.
The question of whether the worker would be entitled to a PPI rating was addressed by the WCB plastic surgery consultant in the report dated July 28, 2016, which sets out that the question “…was discussed with a WCB PPI Advisor. As the right thumb range of motion is relatively symmetric to the left, it is unlikely to result in a ratable PPI.” On this basis, the WCB determined that the worker was not entitled to a PPI award.
There is no evidence on file that the WCB at any time undertook the PPI assessment process with respect to the worker’s right thumb injury. The Act requires, in s 38(1) that the WCB “…shall determine the degree of a worker's impairment.” Here, the evidence does not support that the WCB undertook such a determination; rather, the evidence suggests that an assessment was not undertaken based on a discussion between WCB advisors, who speculated as to the likely result should an assessment be undertaken.
The panel finds, therefore, that the WCB did not take steps to determine the degree of the worker’s impairment as required by the Act and that the worker is entitled to an assessment to determine whether a permanent partial impairment rating is appropriate.
The worker’s appeal is denied with respect to the requirement for workplace restrictions and entitlement to benefits beyond June 12, 2016. With respect to the worker’s appeal on the question of entitlement to a permanent partial impairment rating, the panel directs the WCB to conduct an assessment determine the worker’s entitlement.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of March, 2020