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 teleconference hearing was held on April 16, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is entitled to further benefits.

Background

On December 1, 2017, the worker reported to the WCB that she injured her right elbow and arm in an incident at work on November 29, 2017. The worker reported that she lifted an item weighing approximately 10 pounds with her right arm and "…felt a zap in my right elbow and it went all the way to my little finger." In her report, the worker commented that she continued working but felt increasing pain to her hand and through her arm.

The worker sought medical treatment from her family physician on December 1, 2017. The physician noted normal range of motion and strength in her elbow with no swelling or redness but tenderness over the lateral epicondyle, and diagnosed the worker with acute tendonitis of her right elbow after. The physician recommended the worker remain off work for a week and referred her for physiotherapy. At a follow-up appointment on December 8, 2017, the worker's family physician completed a Physical Capabilities Assessment, noting the worker was unfit for work, and recommended she remain off work until December 15, 2017.

On December 8, 2017, the worker attended an initial assessment with the physiotherapist, who provided a diagnosis of right lateral epicondylitis. The physiotherapist noted positive middle finger and grip tests and the worker's reporting of her wrist being painful and weak on extension. The worker's claim was accepted and payment of benefits commenced.

At a December 22, 2017 assessment, the worker's physiotherapist noted that the worker could return to light duties for 4 hours per shift, starting December 27, 2017. The worker returned to work on a graduated basis, with reduced hours, on January 3, 2018.

At a follow-up appointment with her family physician on January 5, 2018, the worker noted her elbow still "flares up" at work when performing some of her job duties. The physician recommended the worker continue with physiotherapy and anti-inflammatory medication. The physician also recommended she continue with the graduated return to work at 4 hour shifts, 3 times a week until January 12, 2018; then 6 hour shifts, 4 times a week the following week; then be reassessed after that. The family physician further recommended that the worker avoid lifting more than 5 pounds. The restrictions were provided to the employer on January 9, 2018. Updated restrictions were provided by the worker's physiotherapist and were forwarded to the employer on January 11, 2018.

The worker's file was reviewed by a WCB medical advisor on January 19, 2018. The medical advisor opined that the worker's current diagnosis was right lateral epicondylosis, supported by the medical findings of localized tenderness and lateral elbow pain with resisted wrist/third finger extension. The medical advisor further opined that the diagnosis of lateral epicondylosis was not consistent with the worker's reported mechanism of injury, as described, with typical causes being tendon degeneration over time or forceful repetitive hand grasp activities. The advisor noted that recovery from lateral epicondylosis was usually by 12 to 16 weeks, longer in some cases.

On January 22, 2018, the WCB's Compensation Services advised the worker that she was not entitled to benefits after January 25, 2018. The worker was advised that a review of her file by a WCB medical advisor indicated that her right arm/elbow difficulties were degenerative in nature and not consistent with the workplace accident of November 29, 2017. The accepted diagnosis for her workplace injury was a right elbow strain, with a typical recovery occurring in 2 to 3 weeks, and the WCB was ending her entitlement to benefits effective January 25, 2018.

On January 26, 2018, the worker was seen by a sports medicine physician. The sports medicine physician reported tenderness of the worker's lateral epicondyle and pain with resistance on wrist extension. The physician noted that the initial diagnosis was a strain, now lateral epicondylosis, with cubital tunnel syndrome symptoms. The treating sports medicine physician referred the worker for MRI and nerve conduction studies of her right elbow and recommended she continue physiotherapy.

On February 2, 2018, the worker requested that Review Office reconsider Compensation Services' decision. Review Office returned the worker's file to Compensation Services for further investigation, including clarification of the diagnosis, details of the worker's job duties and the results of the MRI and nerve conduction studies.

On March 1, 2018, the WCB spoke with the worker and confirmed her job duties along with her advice that she did not have any problems with her right arm or elbow prior to November 29, 2017. The worker advised that outside of work, she attended at a gym but did not do weights, and she used to ride horses but had not done so since June 2017. The worker further advised she was not back to working her full shifts yet and was just cleared to lift up to 5 to 8 pounds. The WCB received a copy of the nerve conduction study conducted on February 21, 2018, which indicated "No evidence…of right medial, ulnar, or radial neuropathy."

On March 12, 2018, the worker's representative provided the WCB with a letter in support of the worker's request for reconsideration. Included with the letter was a note from the worker's family physician indicating the worker had not been treated for an injury for her right arm or elbow pain, injury or tendonitis prior to the workplace accident, and letters from two of the worker's co-workers who were on duty with the worker when the workplace accident occurred and confirmed the worker's complaints of difficulties with her right arm and elbow.

On March 22, 2018, the worker's file was reviewed again by the WCB medical advisor who opined that the evidence supported a current diagnosis of lateral epicondylosis and that the reported mechanism of injury was "…not consistent with one that would cause lateral epicondylosis." The medical advisor further noted the initial medical reports by the worker's physician noted acute lateral epicondylitis but did not indicate findings consistent with the diagnosis such as swelling, redness or heat, only lateral epicondyle tenderness. The WCB medical advisor went on to opine that the initial diagnosis related to the reported mechanism of injury would be an elbow strain, which would improve within a few weeks. On April 12, 2018, Compensation Services advised the worker's representative that the new information had been reviewed, but there would be no change to the WCB's earlier decision except that the worker's benefits would be covered until January 29, 2018.

On May 29, 2018, the WCB received a further report from the worker's family physician. The report indicated that an MRI of May 24, 2018 showed a partial tear in the lateral tendon and the physician recommended the worker remain at 10-hour shifts as opposed to her full 12-hour shifts and continue with physiotherapy. On May 31, 2018, the worker's representative requested that Compensation Services reconsider their decision to end benefits for the worker, based on the MRI results indicating the worker had a "…moderate partial tear of the common extensor origin."

On June 3, 2018, the WCB medical advisor reviewed the new medical information, and on June 7, 2018, Compensation Services advised the worker's representative that there would be no change to the earlier decisions. Compensation Services noted that the WCB medical advisor had opined that partial tears of the common extensor tendon are "…usually degenerative in nature" and traumatic tears could be caused by "…penetrating trauma or sudden forceful eccentric wrist extension" but the reported mechanism of injury did not appear to be consistent with the typical mechanisms causing traumatic partial tears.

On October 10, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decisions. Included with the representative's request were opinions and chart notes from the worker's treating sports medicine physician and physiotherapist, both of which were said to support that the mechanism of injury reported by the worker could have caused the partial tear to the worker's common extensor tendon. The employer's representative provided a submission in support of Compensation Services' decisions on January 8, 2019.

On January 16, 2019, Review Office requested the WCB medical advisor review the worker's file and the new medical information provided by the worker's representative. On January 28, 2019, the WCB medical advisor opined that the MRI study did not indicate "…features of acuity documented on the examination (i.e. edema, effusion)." The medical advisor further opined that chronic causes of tears of the common extensor tendon origin included activities involving repetitive firmly resisted hand grasping, and acute causes could include a laceration to the proximal lateral elbow or a very heavy lift/forceful grasp. The WCB medical advisor noted the worker's reported lateral epicondylar tenderness was in the same area as the tendon tear and that a single lift of 10 pounds, regardless of what position a person's hand was in, would not typically be associated with an acute tendon tear. The medical advisor's opinion was shared with the parties on January 28, 2019, with the worker's representative providing a response on February 5, 2019, and the employer’s representative submitted a response on February 6, 2019.

On February 7, 2019, Review Office determined the worker was not entitled to further benefits. Review Office relied on the opinions of the WCB medical advisor. Considering the medical findings in close proximity to the workplace accident, the absence of objective findings in support of the partial tear of the common extensor being acute and the causes of the types of injuries identified, Review Office found the MRI findings were not related to the November 29, 2017 workplace accident, and the worker was not entitled to further benefits after January 29, 2018.

On September 30, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission. A hearing was arranged and proceeded by way of teleconference on April 16, 2020.

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 October 20, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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.

Worker's Position

The worker was represented by her union representative, who made an oral presentation to the panel. The worker responded to questions from her representative and from the panel.

The worker's position was that her WCB claim was terminated prematurely, and she should be entitled to an extension of benefits.

The worker's representative submitted that the worker continued to have difficulties due to her workplace injury and required an extension of her gradual return to work plan in relation to her November 29, 2017 compensable injury.

In support of her position, the worker's representative noted that the worker had no previous issues with her right elbow, as confirmed by her treating physician; that she did not have any previous WCB claims for her right arm; and that two co-workers who had worked with her for six years had provided statements confirming they had never heard the worker complain of any issues with her right elbow.

The worker's representative also submitted that the incident and mechanism of injury were very specific, and there was a very specific change in the worker's ability to function as a result of her accident and injury.

It was noted that the worker documented in her Worker Incident Report that consistent with her training, the worker had been able to self-manage her symptoms, using ice, over the counter medication and rest.

The worker's representative noted that the WCB medical advisor reviewed the worker's file several times, but no call-in examination was arranged. The representative referred to reports from the worker's healthcare providers, and urged the panel to give more weight to the opinions of the three healthcare providers who assessed the worker in person and treated the worker.

With respect to indications that the worker's condition was degenerative, the worker questioned how it could be said that her condition was degenerative, when it healed completely with rest and physiotherapy and had not returned, and she was back doing the same job now.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing and responded to questions from the panel.

The employer's position was the worker had been fairly and reasonably compensated for her right elbow injury and there should be no further entitlement to benefits.

The employer's advocate submitted that the return to work plan was reasonable, and medical information documented a normal recovery from a strain type of injury, with insignificant clinical findings.

The employer's advocate referred to reports or opinions provided by the WCB sports medicine advisor. The advocate noted that the WCB sports medicine advisor had opined that neither the diagnosis of right lateral epicondylosis or the diagnosis of a partial tear of the common extensor tendon were consistent with the described mechanism of injury of a one-time lift of a relatively small weight.

The advocate urged that the panel accept the considered opinions of the WCB sports medicine advisor, who reviewed the file on several occasions. The advocate submitted that although the worker's representative had argued that the injury was more serious than a strain, this was not supported by the opinion of the WCB sports medicine advisor, who had the expertise in this type of injury, nor was it backed up by clinical findings.

In conclusion, the employer's advocate submitted that based on the mechanism of injury, the diagnosis of a strain injury, and the medical documentation of relative recovery by January 30, 2018, the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further benefits beyond January 29, 2018 as a result of her November 29, 2017 workplace incident. The panel is able to make that finding, for the reasons that follow.

The panel is satisfied, on a balance of probabilities, that the worker had not recovered from the effects of her November 29, 2017 workplace injury as at January 29, 2018 and is entitled to further benefits.

The panel finds, based on our review of all of the evidence which is before us, on file and as presented at the hearing and subsequently in response to a request from the panel, that the mechanism of injury was more sinister, and the injury which the worker suffered on November 29, 2017 was more significant than just a strain injury.

In response to questions at the hearing, the worker provided a detailed description of the tasks she was performing, her positioning as she performed those tasks, the workplace environment on the day of the accident, and the specific incident which caused her injury.

The panel is satisfied that the evidence supports that the worker has a fairly active job in a busy workplace, where she is constantly grasping, lifting and moving items and having to react and adjust quickly to events. The panel is further satisfied that the worker's shift on the date of the accident was particularly busy and difficult.

The panel notes in this regard that when asked whether there was anything different or unusual about her shift on November 29, the worker said that was absolutely the case. The worker said they were short-staffed that day, and while she usually worked one-on-one, she had to attend to two clients that day at the same time. The worker noted that one of those clients was particularly vulnerable and she had to pay particular attention to that client. The worker also indicated that some of the equipment she was using was broken. They had patched it together, but it was very dangerous and she had to watch it carefully.

The panel is further satisfied that the medical evidence supports that the worker continued to suffer from the effects of her injury. The evidence supports that the worker was on a gradual return to work program at the time, and was unable to return to her regular duties when her benefits ended.

The panel notes that the worker advised at the hearing that she had recovered from her injury and was back at work performing her regular duties by September 2018, being approximately 10 months after her workplace accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a further loss of earning capacity and required further benefits beyond January 29, 2018 as a result of her November 29, 2017 workplace incident. The worker is therefore entitled to further benefits.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of November, 2020