The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for their current left elbow difficulties. A videoconference hearing was held on February 24, 2021 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker’s current left elbow difficulties.

Decision

Responsibility should be accepted for the worker’s current left elbow difficulties.

Background

On January 12, 2018, the worker reported injuring their left elbow in an incident at work on November 6, 2017 when a person to whom they were providing support grabbed their arm, pulling and yanking on it. The worker did not report the incident to their employer until November 13, 2017 as it did not at first seem to be that serious an injury.

The worker sought medical treatment on January 8, 2018 with their family physician, reporting pain in their lateral left elbow area, with weakness in their left arm and hand. The physician noted tenderness at the left lateral epicondyle, weakness on extension of left arm, pain when gripping and weakness with resisted movement. The worker was diagnosed with left lateral epicondylitis.

In a discussion with the WCB on January 17, 2018, the worker advised that there were numerous other incidents involving this same individual and confirmed that the dates the employer provided to the WCB on January 12, 2018 were when other incidents had occurred. The worker further advised they had not missed any work and continued with regular duties. The WCB accepted the claim and approved physiotherapy treatment.

The worker attended for an initial physiotherapy assessment on January 17, 2018 and a diagnosis of left lateral epicondylitis was confirmed. On May 16, 2018, the worker was assessed by a sports medicine physician who provided a pain medication injection into the worker’s left lateral epicondyle area.

On February 21, 2019, the worker contacted the WCB to advise of ongoing issues with their left elbow and that a further pain medication injection may be required. When the WCB spoke with the worker on March 4, 2019, the worker advised that at the end of December 2018 and early January 2019, their elbow started getting stiff and symptoms increased again. The worker reported by the end of January 2019, they had started losing mobility and were unable to do as much as before. The worker confirmed there was no other accident at work or at home.

On March 8, 2019, the worker attended for a follow-up appointment with their family physician and due to the increased symptoms, was placed off work for three weeks to rest their arm. The worker attended for follow-up appointment with the sports medicine physician on March 15, 2019 and was referred to an orthopedic surgeon.

A WCB medical advisor reviewed the worker’s file on April 12, 2019. The advisor provided an opinion the worker’s diagnosis was left lateral epicondylosis but noted the reported mechanism of injury was consistent with a strain injury in the elbow and that lateral epicondylosis is typically a “...degenerative condition of wrist extensor tendons at their attachment to the lateral elbow” which would not be related to the mechanism of injury.

On April 25, 2019, the WCB advised the worker that it would not accept responsibility for their current left elbow difficulties as a causal link between the diagnosis of lateral epicondylosis and the November 6, 2017 workplace accident could not be established.

On July 26, 2019, the WCB received a copy of a letter from the worker’s treating sports medicine physician, dated June 12, 2019, in which the physician provided “I believe the diagnosis of lateral epicondylitis/epicondylosis fits with [the worker’s] mode of injury” and requested the worker be provided with further treatment. On August 15, 2019, the WCB advised the worker the medical information was reviewed but there would be no change to the earlier decision.

On September 12, 2019, the worker requested reconsideration of the WCB’s decision to Review Office noting their treating healthcare providers support that their left elbow difficulties are related to the workplace accident and providing a letter from their treating family physician in support. Additional information in support of the worker’s request, including a detailed timeline of the incidents, was provided to the WCB on October 16, 2019.

Review Office requested a WCB medical advisor review the worker’s file and provide an opinion. In the opinion provided on November 18, 2019, the WCB medical advisor noted no change to their previous opinion of April 12, 2019. A copy of the opinion was provided to the worker on November 18, 2019, who provided a response on December 3, 2019.

On December 4, 2019 Review Office determined the WCB would not accept responsibility for the worker’s current left elbow difficulties, agreeing with the opinion of the WCB medical advisor and noting “…lateral epicondylitis is an overuse and muscle strain injury.” Review Office further noted the reported mechanism of the worker’s arm being pulled multiple times over the period of a few months did not meet the criteria for repetitive use. As well, the mechanism of injury did not involve repetitive gripping, flexing or extending of the worker’s wrist or repetitive pushing and pulling motions that are typically noted to be the cause for development of lateral epicondylitis. Review Office therefore found the diagnosis was not related to the November 6, 2017 workplace accident and responsibility for the worker’s left elbow difficulties would not be accepted.

The worker filed an appeal with the Appeal Commission on January 20, 2020. A videoconference hearing was arranged and held on February 24, 2021.

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.

Section 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker. 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."

Worker’s Position

The worker represented themselves in the hearing, providing an oral submission and providing evidence through answers to questions posed by members of the appeal panel. 

The worker’s position is that as a result of the repeated tugging and pulling on their left arm, arising out of and in the course of completing their job duties, the worker experienced injury to their left elbow, which was first noted on or about November 6, 2017. The injury to the worker’s left elbow has not resolved and continues to cause difficulties to the worker; therefore, the appeal should be allowed and the WCB should accept responsibility for the worker’s current left elbow difficulties.

The worker noted they sought medical attention and reported a claim to the WCB when their left elbow symptoms did not resolve but worsened over time. The worker was referred for physiotherapy and continued with that for a period of time but did not consider that the therapy provided was helping. The worker then sought a referral to the sport medicine clinic and saw a physician there who provided information on appropriate home-based exercises to address the worker’s symptoms and administered a pain medication injection. The worker advised the injection allowed them to return to about 90% of baseline function until some 9-10 months later when the benefits subsided, and symptoms returned. At that time, the sports medicine physician determined that another injection was not recommended and referred the worker for an orthopedic consult. As a result of the increase in symptoms, the worker’s treating family physician removed the worker from employment for a period of weeks in March 2019. Both the treating family physician and the treating sports medicine physician confirmed that the worker’s diagnosis at that time was lateral epicondylitis.

The worker advised that a virtual consult took place by telephone with the orthopedic surgeon on January 25, 2021 and noted a report was to be provided to the WCB claim file regarding this consult. The worker reported that the orthopedic surgeon agreed with the diagnosis of left elbow lateral epicondylitis and discussed surgical treatment options.

The worker raised a concern to the panel that the WCB determined that they had recovered from the original compensable diagnosis without examining or assessing the worker’s elbow, relying only upon medical reports and file documents.

The worker advised the panel they are no longer working with the accident employer as it became too difficult to continue in that job due to the left elbow condition and the resulting reduction in strength and mobility. The worker advised they are now working part-time with another employer. The worker described the continuing impact of the left elbow concerns on their activities of daily living, noting they continue to self-adapt in order to function with their left arm.

In sum, the worker’s position is that the ongoing diagnosis of left lateral epicondylitis relates directly to and is the result of the compensable workplace accident, and therefore the WCB should accept responsibility for the worker’s current left elbow difficulties.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question before the panel is whether or not responsibility should be accepted by the WCB for the worker’s current left elbow difficulties. In order to grant the worker’s appeal, the panel would have to determine that the worker’s current left elbow condition relates to and is the result of the compensable workplace accident of November 6, 2017. The panel was able to make such a determination for the reasons that follow.

The WCB file reveals that the WCB initially accepted the worker’s claim of injury to their left elbow resulting from an accident that occurred on November 6, 2017 and in January 2018 approved a course of physiotherapy as treatment for that injury. The initial diagnosis provided by the worker’s treating physician was of left lateral epicondylitis. The treating physiotherapist confirmed this diagnosis upon initial assessment. This was the diagnosis accepted as compensable on January 18, 2018.

The worker described to the panel that after being treated with physiotherapy for a few months, in May 2018 the worker saw a sports medicine physician who administered a pain medication injection into the left lateral epicondyle area. The worker testified that the injection took effect soon thereafter with the result that the worker was largely symptom-free for approximately 9 months. Early in 2019, the worker noted a return of the symptoms and sought further medical attention for their left elbow. The worker’s treating family physician reported objective findings including reduced active and passive range of motion and left arm flexion, reduced grip strength, reduced range of motion on supination and pronation, and reduced range of motion and extension of the worker’s left wrist. At this time, the worker again contacted the WCB to advise of the return of symptoms and sought further medical attention from the sports medicine physician. The sports medicine physician was unwilling to provide a further pain relief injection based upon concerns regarding adverse side effects from the first injection and referred the worker to an orthopedic surgeon, reporting to the WCB that the worker had a return of symptoms relating to the original diagnosis. The referral request to the orthopedic surgeon sets out the request for consultation regarding the worker’s left elbow lateral epicondylitis and notes that the injection provided in 2018 “helped temporarily but concerned about repeat injections as [the worker] does have some atrophy from the initial one.”

The panel considered the opinion provided by the WCB medical advisor who reviewed the file on April 12, 2019 and determined that the reported mechanism of injury “would have been consistent with a strain injury of the elbow” noting that lateral epicondylosis “...is typically a degenerative condition” that can become symptomatic as a result of forceful, repetitive hand grasp activities but would not develop as a result of the mechanism of injury reported by the worker. It was on the basis of this opinion that the WCB determined not to accept responsibility for the worker’s current left elbow difficulties.

The panel also considered the opinion of the sports medicine physician that the worker’s left elbow symptoms, which recurred in early 2019, were related to the original workplace injury of late 2017, as well as the concurring opinion of the consulting orthopedic surgeon based upon the clinical findings of the sports medicine physician and the virtual assessment of the worker.

While the view of the consulting WCB medical advisor is that lateral epicondylitis is typically a degenerative condition that would not develop as a result of the mechanism of injury reported by the worker, the panel prefers and gives more weight to the opinion of the worker’s family physician and the treating sport medicine physician, noting both the treating professionals examined and assessed the worker and diagnosed lateral epicondylitis. These opinions are further supported by the opinion of the consulting orthopedic surgeon who reviewed the worker’s medical records and spoke with the worker directly. The worker’s treating professionals do not take the same view as the WCB medical advisor, but accept that the reported mechanism of injury could have resulted in the identified diagnosis.

Further, the panel notes there was a continuity of symptomatic presentation, although these symptoms waned over the period of May 2018 – January 2019 as a result of the successful pain medication injection and finds that there was not a full recovery from the injury first incurred in November 2017.

We are satisfied, on the standard of a balance of probabilities and based upon the evidence heard and reviewed that the worker continues to suffer and experience symptoms of lateral epicondylitis, which reappeared in early 2019 and which relate to and arose out of the compensable workplace accident of November 6, 2017.

The panel is therefore satisfied that responsibility should be accepted for the worker’s current left elbow difficulties. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of March, 2021