The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss and medical aid benefits. A hearing was held on April 2, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits.

Decision

The worker is not entitled to further wage loss and medical aid benefits.

Background

The worker reported to the WCB on May 26, 2017 that he injured his right thumb and wrist in an incident at work on May 24, 2017. He described marking measurements on a field when a metal peg snapped and struck his right hand “…between my right thumb and right wrist.” The worker noted that he finished his shift using his left hand.

The worker sought medical attention on May 24, 2017 with his family physician. The physician noted the worker’s report of pain and swelling in his right hand, with difficulties attempting the activities of daily living. The treating family physician further noted on examination that the worker had tenderness and mild swelling with pain mainly at his thumb on testing range of motion. No diagnosis was provided and the worker was referred for an x-ray. It was recommended the worker be provided with restrictions of no repetitive movement or lifting with his right hand. The x-ray of the worker’s right hand and wrist taken on May 25, 2017 indicated: “There is a well corticated ossific density in the region of the radial styloid. This may relate to an ununited fracture or ossification center. No acute bone or joint abnormalities are appreciated, however.” At a follow-up appointment with his family physician on May 26, 2017, the x-ray was reviewed and the physician queried whether the worker had a fracture of his wrist and referred the worker to an orthopedic surgeon. The worker’s claim was accepted by the WCB on May 30, 2017.

On May 30, 2017, the worker was seen by the orthopedic surgeon. The surgeon opined that the worker had a “…provisional diagnosis of clinical scaphoid fracture…” based on review of the x ray and examination and a cast was applied to the worker’s wrist on June 5, 2017. The treating orthopedic surgeon noted that “It is planned to remove his cast two weeks subsequently when further clinical and radiological evaluation will be undertaken.” The worker returned to left-handed only accommodated duties on June 7, 2017. The worker attended for a follow-up appointment with the orthopedic surgeon on June 7, 2017. The surgeon noted the worker’s complaints of pain and stiffness in his right wrist and that the worker was tender over the “snuff box” area of his wrist. The surgeon recommended the worker not return to work as he had ongoing wrist pain even with his wrist casted. In a June 8, 2017 discussion with the worker, the WCB advised the worker that he would not be entitled to wage loss benefits after June 7, 2017 as his employer had offered suitable accommodated duties for him and his treating family physician had not provided clinical support for his need to be away from work. A letter confirming this discussion was provided to the worker on June 13, 2017.

After returning from a scheduled vacation, the worker attended a further follow-up appointment with the orthopedic surgeon on July 5, 2017. An x-ray taken that day noted no scaphoid fracture and the worker was provided with a note to remain off work until August 16, 2017, along with a referral for physiotherapy. Also on July 5, 2017, the employer confirmed they could continue to accommodate the worker with left-handed duties.

The worker was seen for an initial assessment by a physiotherapist on July 6, 2017. The physiotherapist noted that the worker’s wrist was stiff and that he had limited active and passive range of motion. The worker was diagnosed with post immobilization stiffness and restrictions of using his left hand, no lifting/pushing and pulling with his right hand was recommended. Those restrictions were provided to the employer on July 10, 2017.

The worker’s file was reviewed by a WCB medical advisor on July 7, 2017 who provided that the diagnosis related to the workplace accident was a “...contusion/sprain of the right wrist” and noted that the natural history for recovery would be a few days to weeks. Further, the WCB medical advisor noted that the total disability related to a diagnosis for the worker’s wrist would not have been accounted for and the worker would be capable of left handed duties. A follow-up review with a WCB orthopedic consultant was completed on July 11, 2017 by the WCB medical advisor and it was agreed that there was no evidence to support a diagnosis beyond a right wrist contusion/sprain, diagnostic imaging conducted consistently reported no fracture of the scaphoid and given there was no evidence of a recent or acute fracture of the worker’s radial styloid, the “well corticated ossific density in the region of the radial styloid” noted on x-rays likely represented an old ununited fracture or ossification center.

On August 16, 2017, the worker was seen by a second orthopedic surgeon who recommended a right wrist arthroscopy with possible removal of an ossicle after review of an x-ray which indicated “…the non-union of the radial styloid fragment which is reasonably small.” On August 30, 2017, the second orthopedic surgeon was advised by the WCB orthopedic consultant that the WCB would not fund the proposed surgery as “…the ossicle at the radial styloid is a pre-existing condition.”

The worker’s file was reviewed again by the WCB medical advisor on September 7, 2017 who opined that the accepted diagnosis of the worker’s injury was a contusion/sprain of the right wrist that would resolve over six weeks and there were no restrictions related to the workplace injury. The WCB medical advisor further noted that the worker’s current diagnosis was of a pre-existing ununited fracture of the right radial styloid. On September 8, 2017, the worker was advised that the current difficulties with his right wrist could not be related to his workplace accident and as such, he was not entitled to further benefits.

The worker submitted a copy of his surgery report from February 8, 2018 and requested reconsideration of the WCB’s decision to Review Office on May 2, 2018, noting his surgeon’s advice that his pre-existing condition was exacerbated by the workplace accident on May 24, 2017. On May 3, 2018, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation and gathering of updated medical information.

On June 26, 2018, the worker’s file, including the February 8, 2018 surgery report and diagnostic imaging from 2017, was reviewed by a WCB orthopedic consultant. The orthopedic consultant noted the surgery report referred to an arthrotomy as well as an arthroscopy was conducted, with inflamed synovium and chondromalacia of the scaphoid and distal radius observed. The WCB orthopedic consultant also referenced the orthopedic surgeon’s opinion on February 28, 2018 that the workplace accident exacerbated the worker’s pre-existing condition. The WCB orthopedic consultant opined that the medical evidence supported the non-union of the radial styloid was a pre-existing condition. Further, the degenerative changes and synovial inflammation observed were also opined to be a result of the radial styloid non-union with the ongoing symptoms experienced by the worker being part of the “…natural progression of the degenerative changes related to the pre-existing condition.” The orthopedic consultant went on to note that there was no medical evidence to support the workplace accident made the pre-existing condition worse and the February 8, 2018 surgery was not related to the workplace accident. On July 19, 2018, the worker was advised there was no change to the decision he was not entitled to benefits after September 12, 2017. On November 19, 2018, the worker submitted a copy of the second orthopedic surgeon’s September 27, 2018 report to the worker’s family physician and asked the WCB to reconsider his entitlement to further benefits. On November 28, 2018, the worker was advised that the information submitted did not provide any new medical evidence and the previous decision remained unchanged.

The worker submitted a chronology of the events of his injury and requested reconsideration of the WCB’s decision to Review Office on December 4, 2018. In the chronology, the worker noted that he had not experienced any pain in his wrist, despite the pre-existing condition, until the workplace accident of May 24, 2017, which was resolved by the February 8, 2018 surgery. The worker believed that the opinion of his treating orthopedic surgeon that the workplace accident exacerbated his pre-existing condition should be given more weight over the opinion of the WCB medical advisor.

Review Office determined on January 21, 2019 that the worker was not entitled to further benefits. Review Office placed weight on the opinions of the WCB medical advisor and the evidence on file that supported the worker sustained a right wrist sprain from the workplace accident of May 24, 2017. Review Office acknowledged that the evidence supports the workplace accident may have aggravated the worker’s pre-existing condition however, the worker was suitably accommodated by his employer with modified duties and received physiotherapy treatment that would have allowed the aggravation to resolve. Review Office found that the worker did not have a loss of earning capacity after August 16, 2017 and did not require medical aid after September 13, 2017 and was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on December 13, 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 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.

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) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Conditions Policy”) addresses the issue of pre-existing conditions when administering benefits. The Pre-Existing Conditions Policy states in part:

The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition, as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Pre-Existing Conditions Policy further provides:

WAGE LOSS ELIGIBILITY

(a) When a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

(b) When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker’s Position

The worker was represented by a worker advisor. The hearing took place by teleconference.

The worker says that, as a result of his workplace accident, he immediately felt pain and an onset of symptoms in his right wrist and hand. He subsequently sought medical attention. A fracture of his right hand was suspected and he was casted. Although subsequent x-rays revealed that he had not, in fact, sustained a fracture as a result of the workplace injury, the x-rays did reveal a pre-existing condition which was likely the result of a longstanding non-unified fracture of the right radial styloid.

Although the worker was referred to physiotherapy, the worker says he continued to experience pain and difficulties with his right hand. Conservative measures led to no improvement and he continued to experience pain and difficulties with his wrist. He therefore followed up with his orthopedic surgeon who recommended surgery.

The worker says that, as a result of the subsequent surgery, his right wrist has completely recovered. Although he does not deny the presence of a pre-existing condition, the worker says that he was completely asymptomatic for 19 years prior to the compensable injury and at no time did he ever have any issues with his wrist. He denies any previous injuries to his wrist and, in fact, says that he was entirely unaware of any issue with his wrist at all until the workplace accident and subsequent investigation.

Given the acute and sudden onset of symptoms following the workplace accident, the worker submits that his injury is more in line with an acute cause than a gradual onset of a degenerative condition. He relies on the opinion of the treating specialist who opined that the workplace injury was likely the cause of his symptoms. The worker therefore says that the compensable workplace accident either caused, aggravated, enhanced or sped up the progression of the worker’s previously asymptomatic pre-existing condition. The worker therefore submits that his appeal should be allowed.

Employer’s Position

The employer did not participate in the appeal.

Analysis

For the worker’s appeal to succeed, the panel must find, based on a balance of probabilities, that the worker had a further loss of earning capacity and required medical aid beyond the date on which his benefits were terminated. For the reasons that follow, the panel is unable to make that finding.

The worker sustained a direct blow to the radial side of the wrist from a metal bar while at work. He was initially provisionally diagnosed with a fracture and his wrist was casted. Subsequent imaging of the worker’s wrist revealed that although the possibility of a fracture of the scaphoid bone was initially queried, x-rays reported the scaphoid as normal. He did not, therefore, sustain a fracture as a result of the workplace injury. His diagnosis was a right wrist contusion/sprain. The standard recovery period for recovery from a sprain/strain injury was a matter of weeks.

Incidentally noted on the x-rays was a “well corticated ossific density in the region of the radial styloid.” This was assumed to possibly represent an old ununited fracture or ossification centre. This was also found to be an incidental finding and a pre-existing condition; it was not considered to have been caused by the workplace accident.

When the worker continued to experience symptoms despite conservative treatment, he consulted an orthopedic surgeon who recommended surgery. The surgery was performed in February 2018.

During the hearing, the worker described his symptoms both before and following the surgery. He described the on-going difficulties he experienced with his right hand following the injury and the treatment which he underwent to address his hand. It is clear from the worker’s evidence at the hearing and based on a review of the file, that the worker did not have issues with his right hand prior to the workplace injury and that he was completely unaware of any underlying condition. His symptoms continued until the surgery and improved dramatically after the surgery.

The orthopedic surgeon who performed the surgery commented that although the worker’s condition was pre-existing, it was likely, in his opinion, that there was a relationship between the workplace injury and the symptoms the worker was experiencing as a result of the pre-existing condition. The orthopedic surgeon wrote:

It certainly seems that although the radiological findings were suggestive of possible longstanding fracture of the radial styloid it seems that this work-related injury of 2017 had a greater relationship as being the fact for the patient’s pain. After his surgery he seems to be doing better. I certainly will support the relationship between his work-related injury and his disability.

The WCB medical advisor who reviewed the file, however, disagreed with the suggestion that the workplace injury caused or contributed to the worker’s symptoms. In his opinion, although it was possible that the worker’s symptoms were aggravated by the workplace injury, it was “more likely than not that the on-going symptoms were explained by the natural progression of the degenerative changes related to the pre-existing condition.”

The medical evidence was also reviewed by the WCB orthopedic consultant. In his opinion, the need for surgery was related to the pre-existing injury. He wrote:

The medical evidence points to a non-union of a fracture of the radial styloid as a pre-existing condition. In my view, the degenerative changes and synovial inflammation are explained by the radial styloid non-union. Although it is possible that symptoms were aggravated by the progression of the degenerative changes related to the pre-existing condition. There is no objective medical evidence that the workplace injury worsened this pathology.

In his view, therefore, the need for surgery in February 2018 was not related to the workplace injury.

Based on a review of all of the evidence, we find that, on a balance of probabilities, the worker’s on-going symptoms following the workplace accident were caused by the pre-existing condition and not the workplace injury. The findings in the x-ray were not related to the compensable injury. Although it was clear from the evidence that the worker did not experience symptoms with his wrist prior to the workplace accident and was unaware of any underlying or pre-existing condition, the panel finds that, overall, the evidence is more consistent with the discovery of a degenerative condition having merely coincided with, but not having been caused, aggravated or enhanced by the compensable injury. As such, the need for surgery was not a result of the workplace accident and the worker had recovered from the workplace accident prior to the surgery.

Accordingly, the panel finds that the worker is not entitled to further wage loss and medical aid benefits. The worker’s appeal is therefore denied.

Panel Members

K. Wittman, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of May, 2020