Decision #12/21 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:
1. Date of Accident – May 29, 2017: He is not entitled to benefits in relation to the May 29, 2017 accident; and
2. Date of Accident – June 14, 2017: Responsibility is not accepted for the worker’s right elbow difficulties as being a consequence of the June 14, 2017 accident.
A teleconference hearing was held on November 26, 2020 to consider the worker's appeal.
1. Date of Accident – May 29, 2017: Whether or not the worker is entitled to benefits in relation to the May 29, 2017 accident; and
2. Date of Accident – June 14, 2017: Whether or not responsibility should be accepted for the worker's right elbow difficulties as being a consequence of the June 14, 2017 accident.
1. Date of Accident – May 29, 2017: The worker is entitled to benefits in relation to the May 29, 2017 accident; and
2. Date of Accident – June 14, 2017: Responsibility should not be accepted for the worker's right elbow difficulties as being a consequence of the June 14, 2017 accident.
Date of Accident – May 29, 2017
A Worker Injury Report was completed by the worker and received by the WCB on July 20, 2017, indicating the worker injured his right elbow in an incident at work on May 29, 2017. In an employer's internal accident report dated May 31, 2017, the worker indicated he was swinging a sledge hammer and hit his elbow on the rail of a trailer.
The worker sought treatment from his family physician on June 27, 2017. The physician noted the worker's elbow was "…severely painful despite ice" and use of pain medication. No obvious bruising was observed, with tenderness noted over the right elbow on palpation and the worker was diagnosed with a right elbow contusion and referred for an x-ray. The physician completed a Functional Abilities form on June 28, 2017, which indicated that the worker "will restrict lifting at his discretion. Reduced speed of job performance." The employer confirmed that after the accident was reported to them on May 31, 2017, the worker was offered light duties but the worker advised he self-modified his duties and continued to work until he saw his family physician on June 27, 2017.
An x-ray of the worker's right elbow taken July 6, 2017 was normal. At a follow-up appointment with the family physician on August 22, 2017, it was noted the pain in the worker's elbow was worse after his wrist injury. Restrictions of no lifting greater than 15 kg were recommended, and the worker was referred for an MRI and a nerve conduction study.
On September 12, 2017, the worker attended for the nerve conduction study. The attending neurologist opined that "…the pain on the right elbow is due to right lateral epicondylitis." Mild abnormality of the right median nerve distally was also noted, but the neurologist noted the worker denied any symptoms of carpal tunnel syndrome. The MRI of the worker's right elbow, performed September 24, 2017, indicated "Tendinosis and low grade partial tearing of the common extensor tendon origin."
On November 16, 2017, the worker attended a call-in examination with a WCB medical advisor, who opined that the clinical examination regarding his right elbow was consistent with a lateral epicondylopathy. Restrictions of no prolonged or repetitive firm grasp and no lifting more than 10 lbs were recommended.
On January 30, 2018, the WCB's Compensation Services advised the employer by letter, with a copy to the worker, that the worker's claim was accepted for a right elbow injury, but that they were continuing to investigate with regard to ongoing entitlement to benefits. Additional information was gathered from the worker, the employer and the worker's healthcare providers, and on April 20, 2018, Compensation Services advised the worker that his claim was accepted for the workplace accident only and he was not entitled to further wage loss or medical aid benefits.
On April 12, 2019, the worker underwent a right tennis elbow release in addition to other procedures related to his June 14, 2017 WCB claim.
On November 14, 2019, the worker's representative requested that Review Office reconsider Compensation Services' April 20, 2018 decision. The representative submitted that the most reliable evidence with respect to the worker's right elbow injury came from his treating physician and the WCB medical advisor. The representative noted that the worker's treating physician observed reduced grip strength and visible swelling over the worker's lateral epicondyle on June 27, 2017. It was submitted that as the WCB medical advisor had predicted on November 16, 2017, the worker experienced a poor outcome from conservative efforts directed at his right elbow, which ultimately required a tennis elbow release which was performed April 12, 2019. The representative submitted that the WCB was therefore responsible for wage loss and medical aid benefits for his right elbow injury (including his elbow surgery). Submissions in response were received from the employer's representative and the worker's representative.
On January 21, 2020, Review Office determined that the worker was not entitled to benefits. Review Office found that the evidence supported that a minor injury occurred as a result of the May 29, 2017 accident involving the right elbow. Review Office found that they could not account for the worker's failure to seek medical attention in relation to the claim until June 27, 2017, over four weeks after the accident. Review Office noted the worker was able to continue working his regular duties without medical treatment until June 27, 2017, and the evidence did not support the worker's ongoing right elbow difficulties were related to the May 29, 2017 workplace accident or that there was a need for long-term restrictions or time loss in relation to the elbow injury.
Date of Accident – June 14, 2017
On July 10, 2017, the worker filed a Worker Incident Report with the WCB, indicating he injured his right wrist in an incident at work on June 14, 2017, which he described as: "I was wrapping a chain around a tailgate to chain it up and pulling on the chain and it caught and it stopped and I was still pulling and it wrenched my right wrist."
At the appointment with his family physician on June 27, 2017, the physician noted that "His right wrist was very tender to palpation over the dorsum" and he had reduced grip strength. An x-ray of the worker's right wrist taken July 6, 2017 indicated "No acute fracture or dislocation is identified. Ulnar styloid process is non-united, consistent with remote trauma."
On July 10, 2017, the worker attended a local emergency department, where he reported that he "injured right wrist at work June 15th while repetitive motion pulling chain, jerked at part of chain that was stuck and felt sudden pain." The worker reported that 3 days previously he was performing similar repetitive motion and "…felt pain to ulnar flexor surface of wrist by the end of the day, worsened over the weekend." The emergency room physician noted "swollen area of focal tenderness over flexor carpi ulnaris" and pain with flexion of 4th and 5th digits of hand in the right wrist region. The emergency room physician diagnosed the worker with flexor tendonitis of his right wrist and recommended he follow up with his family physician and remain off work from July 10 to 14, 2017.
On July 13, 2017, the worker attended an appointment with his family physician. The worker reported swelling and pain in his right wrist and an inability to grip or pull with his right hand. The physician found the worker had a swollen flexor carpi ulnaris tendon in his right hand, which was tender on palpation and that the worker could not grip with pressure due to pain. The physician diagnosed the worker with a right wrist flexor tendon injury, referred him for physiotherapy, and recommended he remain off work until reassessed on August 2, 2017.
At an initial physiotherapy assessment on July 19, 2017, the worker was diagnosed with a flexor sprain/strain. On August 22, 2017, the worker's family physician referred the worker for an MRI and a nerve conduction study.
A nerve conduction study was completed on the worker's right wrist/hand on September 12, 2017. The attending neurologist opined that the worker's symptoms in his right wrist and distal forearm medially were due to tendinopathy. The neurologist further noted a "…mild abnormality of right median nerve distally" but also noted the worker denied having symptoms of right carpal tunnel syndrome. On September 15, 2017, the worker's claim was accepted, and benefits were approved.
On the recommendation of his family physician after a follow-up appointment on September 21, 2017, the worker stopped working due to ongoing symptoms. On September 24, 2017, an MRI of the worker's right wrist was performed. On November 9, 2017, the worker's family physician recommended the worker could return to work on light duties of "desk duties only, no lifting above 10 lbs, no prolonged keyboarding effective November 13 2017." The worker returned to light duties on November 14, 2017.
The worker attended the call-in examination with the WCB medical advisor on November 16, 2017, after which the medical advisor noted a full examination could not be performed to determine what, if any, of the findings from the September 24, 2017 MRI were clinically significant. The WCB medical advisor opined that some of the MRI findings were pre-existing but recommended the worker be referred to a wrist specialist for an assessment.
On December 6, 2017, the worker was seen by a plastic surgeon for assessment of his right wrist. The plastic surgeon reported the MRI was "…nondiagnostic and symptoms are certainly out of proportion" and recommended a right wrist scope "…as it is the gold standard for diagnosis particularly in cases where the MRI is unable to diagnose the cause." On December 20, 2017, the WCB accepted responsibility for funding of the proposed wrist arthroscopic procedure, and surgery was scheduled for January 25, 2018. On January 23, 2018, the worker advised the WCB he had cancelled the surgery due to his uncertainty as to its outcome and possible repercussions.
On July 2, 2018, the worker's WCB case manager advised that as the worker had not participated in the recommended medical treatment, his wage loss benefits would be suspended effective July 4, 2018. On July 3, 2018, the worker requested that Review Office reconsider the decision to suspend his wage loss benefits, noting that the worker had sought a second opinion regarding the proposed right wrist scope but had been placed on a waiting list since December 2017. On October 25, 2018, Review Office determined it was premature to rule on the worker's appeal and returned the file to Compensation Services for further investigation.
On November 23, 2018, the worker advised he had an appointment with an orthopedic specialist on January 29, 2019 for a second opinion. On December 31, 2018, a WCB plastic surgery consultant reviewed the worker's file and opined that based on the information on file, the worker's current diagnosis in relation to the workplace accident was a right wrist sprain. The consultant noted that the natural history for wrist sprains is recovery over the course of several weeks to months, with restrictions during recovery typically being temporary and including avoiding heavy activities with the wrist and limiting repetitive forceful grasping/loading of the wrist. On January 3, 2019, Compensation Services advised the worker that his entitlement to benefits would end as of January 10, 2019 as it had been determined he had recovered from the June 14, 2017 workplace accident.
On February 4, 2019, the worker saw the orthopedic specialist, who recommended a bilateral tennis elbow procedure, along with a right wrist arthroscopy for diagnostic purposes. The specialist's report was reviewed by the WCB, and on March 25, 2019, the worker was advised there would be no change to the January 3, 2019 decision.
On April 12, 2019, the worker underwent a right wrist arthroscopy, wrist synovectomy, TFCC (triangular fibrocartilagecomplex) debridement, and midcarpal arthroscopy, as well as the right tennis elbow release related to May 29, 2017 right elbow claim. On July 8, 2019, the WCB plastic surgery consultant reviewed the worker's file again, including the operative report, and opined that the medical information on file indicated the "…operative findings at the right wrist were likely pre-existing and degenerative in nature, and not likely medically accounted for in relation to the workplace injury." On July 10, 2019, Compensation Services advised the worker that the medical information had been reviewed but there would be no change to the January 3, 2019 decision.
On August 8, 2019, the worker requested that Review Office reconsider Compensation Services' decisions. The worker provided a lengthy submission detailing various concerns with his WCB claims, and noting his treating healthcare providers supported that he required surgery to repair damage caused to his wrist and elbow from the workplace accidents. The worker's file was reviewed in consultation with a WCB manager, and on August 9, 2019, Compensation Services advised the worker that following review of the operative report, they had determined wage loss benefits would be authorized for an expected recovery time of six weeks.
On October 8, 2019, Review Office determined that the worker was not entitled to benefits beyond May 23, 2019. Review Office noted that as the worker's other right and left elbow difficulties were not related to the June 14, 2017 accident, the decision was focused solely on the June 14, 2017 right wrist compensable injury.
On October 31, 2019, the worker's representative asked that Review Office reconsider its decision. The representative noted the WCB plastic surgery consultant had opined that recovery from the April 12, 2019 diagnostic surgery would be in the range of 6 to 12 weeks, and requested the worker be provided with at least 12 weeks' wage loss benefits. The worker's representative also requested that Review Office adjudicate whether the June 14, 2017 accident caused an injury to the worker's right elbow and /or aggravated or enhanced an existing right elbow injury caused by the May 2017 accident. Submissions were received from the employer's representative, with responses by the worker's representative.
On January 21, 2020, Review Office determined that the worker's right elbow difficulties were not a compensable condition related to the June 14, 2017 claim, and there was no entitlement to benefits beyond May 23, 2019. Review Office was unable to find that the descriptions of the June 14, 2017 accident documented that an injury occurred involving his right elbow, or that a previous right elbow injury/condition was made worse by that accident.
On February 7, 2020, the worker's representative appealed Review Office's October 8, 2019 and January 21, 2020 decisions to the Appeal Commission and a teleconference hearing was arranged.
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.
Section 37 outlines the compensation which is payable to workers as follows:
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.
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.
The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that the evidence supports the WCB is responsible for wage loss benefits and medical aid benefits for the worker's right elbow injury resulting from his May 29, 2017 workplace accident, which injury was likely also exacerbated by his June 14, 2017 accident, and his appeal on both issues should be allowed.
The worker's representative asked that the panel attach weight to their written submission provided in advance of the hearing and to the evidence and arguments identified in their November 14, 2019 submission to Review Office.
The worker's representative submitted that the issues are relatively straightforward, particularly with respect to the May 29, 2017 accident. The representative submitted that the majority of the evidence supports that the worker developed a right-sided lateral epicondylitis or epicondylopathy similar to what he had experienced on his left side with respect to a previous WCB claim.
The worker's representative submitted that there were a number of legitimate factors and reasons which explained why the worker did not seek medical attention sooner than June 27, 2017 and how he continued to manage after his May 29, 2017 accident. The representative submitted that it was reasonable that despite having sustained an acute elbow injury, the worker preferred to wait and see his long-term physician, as opposed to attending a walk-in clinic or other unknown healthcare provider. The representative noted that due to his longstanding left elbow injury from his prior claim, the worker had access to and the use of prescribed opioid medications to help him mitigate the effects of his right elbow injury until he could see his physician. Further, he rested his right arm and applied ice to his elbow after work. He also did not work in the same capacity as before. He self-modified his work duties leading up to his June 27, 2017 appointment with his physician, beyond what he had been doing previously for his permanent left elbow injury. Following the June 27, 2017 appointment, he wore an elbow brace at work and continued working in a modified duty capacity.
It was submitted that the report of the WCB medical advisor, following her November 16, 2017 call-in examination of the worker, supports their position. The representative noted that the medical advisor discussed at length the different injuries and clearly supported that the May 29, 2017 accident which involved the worker striking his right elbow, was a mechanism which was capable of causing a tennis elbow injury and that the MRI and clinical findings all pointed to the worker having experienced right-sided tennis elbow as a result of that accident.
The worker's representative submitted that the above factors, when combined with the opinion from the WCB medical advisor, establish a causal relationship between the May 2017 accident, extensor tear as shown on the September 24, 2017 MRI and associated lateral epicondylopathy that was addressed surgically on April 12, 2019. It was submitted that the worker is therefore entitled to wage loss and medical aid benefits with respect to his right elbow condition, the extent of which would be determined by Compensation Services.
With respect to the June 14, 2017 accident, the worker's representative submitted that while their primary position was that the May 29, 2017 accident was predominantly responsible for the worker's right elbow lateral epicondylopathy, they were also of the view that the June 14, 2017 accident likely exacerbated his already symptomatic right elbow injury. The representative noted that although this was a secondary issue for the worker, he was seeking acknowledgement that this accident, in addition to causing injury to his right wrist, likely also aggravated his vulnerable right elbow.
The employer was represented by an advocate who made a presentation at the hearing and responded to questions from the panel.
The employer's position was that Review Office's decisions that the worker was not entitled to benefits in relation to the May 29, 2017 accident and that responsibility should not be accepted for the worker's right elbow as being a consequence of the June 14, 2017 accident were correct, and the worker's appeal should be dismissed.
The employer's advocate submitted that the evidence indicates the May 29, 2017 accident was minor in nature. The advocate noted that the worker continued to work and did not seek medical attention until June 27, 2017, more than four weeks after the accident. She submitted that most people have personal physicians they would prefer to see, but if the accident had been significant or severe enough, the worker would have attended a walk-in clinic or hospital earlier.
The employer's advocate submitted that the worker was offered clerical duties, but advised that he self-modified his duties. The worker's ability to continue working without having to switch to the alternate light clerical duties further supported that the injury was minor in nature. The advocate submitted that it was unclear if the worker continued to modify his job duties, given the duties he was performing on June 14, 2017 which led to his wrist injury. The advocate submitted that they were therefore unable to account for the worker's ongoing right elbow difficulties with respect to the May 29, 2017 accident, and there was no need for time loss or restrictions or other benefits with respect to that accident.
With respect to the June 14, 2017 accident, the employer's advocate also submitted that the mechanism of injury on June 14, 2017 would not have caused an elbow injury or anything more severe than the right wrist sprain/strain injury which was accepted.
Date of Accident – May 29, 2017
The issue on appeal is whether or not the worker is entitled to benefits in relation to the May 29, 2017 accident. For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid as a result of his May 29, 2017 workplace accident. The panel is able to make that finding.
The worker described the mechanism of injury of the May 29, 2017 workplace accident in detail at the hearing, indicating that he was swinging a sledgehammer, and repeatedly trying to hit seized tires on the trailer in order to vibrate and unseize them, and while doing so his right elbow struck the rail on the side of the trailer. The panel is satisfied that the mechanism of injury, as described on file and at the hearing, was consistent with a diagnosis of epicondylopathy or epicondylitis.
The panel places significant weight on the opinion of the WCB medical advisor who opined, following her November 16, 2017 call-in examination of the worker, that:
His clinical examination today was consistent with a lateral epicondylopathy.
He had an MRI of the right elbow with a clinical history of injury to right elbow at work. There was noted to be tendinosis and low-grade partial tearing of the common extensor tendon.
Noting the mechanism of injury, the presentation for an x-ray and MRI without medical reports, findings during today's examination consistent with a lateral epicondylopathy, and the MRI showing a small tear of the common extensor tendon, the diagnosis of the tear is consistent with the mechanism of injury and presentation. It would be an adjudicative issue to determine whether the lack of medical documentation for the right elbow prior to June 28 (but with no clinical detail) affects the acceptance of the diagnosis.
Based on our review and consideration of all of the evidence before us, on file and as presented at the hearing, the panel is satisfied that the worker has reasonably accounted for the delay in seeking medical treatment until he could see his family physician on June 27, 2017. The worker's evidence was that his family physician had been treating him for more than 20 years and was familiar with his medical history, including his previous left elbow injury and medications. The worker said he had been seeing his family physician roughly every two months for several years, and had a pre-scheduled appointment for June 27, 2017. The worker also indicated that he had contacted the physician's office on May 30, 2017 to see if he could see the doctor earlier, but was told they were booked and he would have to wait. The panel accepts that it was reasonable in the circumstances for the worker to wait to see his family doctor.
The worker has further indicated that he was self-treating his right elbow injury by icing it after work and through the use of strong pain medication. The evidence shows that the worker had been prescribed and was using opioid medications for his longstanding left elbow condition at the time, and that he increased his use of that medication following the May 29, 2017 accident. The worker indicated at the hearing that he was taking more pain pills to try and get through the day and perform his duties, and that he was informed that he was not to do that. Medical information on the worker's prior WCB claim file further indicates that there were serious concerns following the May 2017 accident that the worker had escalated the use of those medications, due at least in part to his right elbow injury, so he could perform his job duties.
The panel further accepts that while the worker continued to work following the May 29, 2017 accident, he was self-modifying his duties. In this regard, the worker described at the hearing how he would try to do the work he was assigned, but if he found he was unable to do something, he would ask for help and the foreman or someone else would come and help him get through the work. The worker indicated that he would also be assigned smaller and lighter duties as much as possible, and would not be doing heavy work.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid as a result of his May 29, 2017 workplace accident. The worker is therefore entitled to benefits in relation to the May 29, 2017 accident, the nature and extent of which is to be determined by Compensation Services.
The worker's appeal on this issue is allowed.
Date of Accident – June 14, 2017
The issue on appeal is whether or not responsibility should be accepted for the worker's right elbow difficulties as being a consequence of the June 14, 2017 accident. For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's right elbow difficulties were causally related to, or aggravated or enhanced by, the June 14, 2017 workplace accident. The panel is unable to make that finding.
The worker reviewed the mechanism of injury of the June 14, 2017 workplace accident in detail at the hearing, describing how he was up on a ladder, trying to wrap a chain around a tailgate and pulling on it to get it all the way wrapped around, and the chain jammed and the chain and his arm stopped, and he just about fell off the ladder. The worker noted that his whole arm hurt, "…not only the wrist, but the elbow hurt, because it had already hurt earlier."
The panel accepts that the worker's elbow would have hurt following that accident, but is of the view that the sudden stop as described would have been absorbed by the worker's wrist. The panel is not satisfied that the mechanism of injury of the June 14, 2017 accident, as described, would have caused or had a significant or material impact on the worker's right elbow injury arising out of his May 29, 2017 accident or his ongoing right elbow difficulties.
The panel further notes that in reporting that accident to the employer, the worker referred to having sustained an injury to his wrist, and did not mention his elbow. When asked about that at the hearing, the worker said that he "…had already mentioned it to them back in May that I had hurt the right elbow…I mentioned the wrist because that was the new, the new pain."
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right elbow difficulties were not causally related to, or aggravated or enhanced by, the June 14, 2017 workplace accident, and that responsibility should therefore not be accepted for the worker's right elbow difficulties as being a consequence of that accident.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of January, 2021