Decision #56/21 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that he is not entitled to additional benefits in relation to a June 28, 2016 accident and his claim for an accident occurring on January 25, 2017 is not acceptable. A videoconference hearing was held on February 3, 2021 to consider the worker's appeal.
Date of Accident - June 28, 2016: Whether or not the worker is entitled to additional benefits;
Date of Accident - January 25, 2017: Whether or not the claim is acceptable.
Date of Accident - June 28, 2016: That the worker is not entitled to additional benefits;
Date of Accident - January 25, 2017: That the claim is not acceptable.
Date of Accident - June 28, 2016
The employer notified the WCB on June 30, 2016 that the worker injured his right elbow at work on June 28, 2016 when a tool he was using caught, "…causing it to fly out of his left hand forcing his right arm to be twisted." The employer noted the worker reported "Pain and weakness in elbow, difficulty picking up something as light as my tooth brush."
The worker sought treatment from a sports medicine physician on June 29, 2016, who noted "no acute fracture" after an x-ray of the worker's right elbow was performed, tenderness in the worker's distal tricep, no swelling and full range of motion in the worker's elbow. The physician diagnosed the worker with a right distal tricep strain injury, and recommended physiotherapy. The physician also recommended restrictions of no lifting with right arm/elbow; no carrying; no pushing/pulling; partial use of right hand; no reaching; no climbing ladders; no twisting; no repetitive grasping; no use of vibratory tools; and indicated the worker was able to work regular hours.
On June 30, 2016, the worker attended an initial physiotherapy assessment. The worker reported to the physiotherapist that he had pain when he raised his arm and bent his elbow, brushing his teeth increased symptoms, and the tricep felt tight and weak, and tender to touch. The physiotherapist noted positive ulnar nerve tension tests, most intense pain over the ulnar nerve and slight pain over the triceps and distal tendon, and diagnosed the worker with a tricep strain/ulnar nerve irritation. The worker's claim was accepted by the WCB, and payment of benefits commenced.
At a follow-up appointment with the physiotherapist on July 28, 2016, the physiotherapist noted the worker reported "Gets some pain in the elbow when he actively brings it into full extension or weightbearing through and extended elbow. Some tension with ulnar tension positions but not pain. More sensitive in the elbow if he bumps it on something." The physiotherapist further noted the worker demonstrated functional ability to lift 25 pounds unilaterally on the right from waist to shoulder, shoulder to overhead and waist to floor, with only slight discomfort when the elbow was fully extended to place the weight on the floor. The physiotherapist recommended the worker return to full duties the week of August 1, 2016, and self-modify his duties as needed. At an appointment on July 29, 2016, the treating sports medicine physician also advised that the worker could return to his regular work duties on August 2, 2016. The worker was discharged from physiotherapy on August 11, 2016.
On August 25, 2016, the worker's physiotherapist contacted the WCB and advised that the worker had attended their clinic and indicated his arm was still bothering him, with the same symptoms in the same elbow area. The physiotherapist noted the worker's maximum treatment allotment had not been reached, and the WCB confirmed they could continue the worker's treatment. A subsequent application for additional treatment was declined on October 11, 2016, and the worker was finally discharged from physiotherapy treatment on October 11, 2016, with the physiotherapist noting the worker's condition had nearly resolved.
On October 28, 2016, after being advised that his claim was being closed, the worker contacted the WCB and advised that he felt his elbow was actually getting worse and that there was ulnar nerve damage. The WCB advised the worker he could see his doctor if he was concerned, and have the doctor submit a report which would then be reviewed. A report was subsequently received from the worker's treating sports medicine physician of an appointment on November 25, 2016, in which the physician noted slight tenderness in the worker's medial epicondyle, no further pain in the tricep, full range of motion, and no numbness or tingling. The physician noted he advised the worker he likely had a chronic condition and recommended he modify his activity level to avoid aggravating the condition.
On January 16, 2017, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's current presentation would not be explained in relation to the June 28, 2016 workplace accident. The medical advisor noted the medical information on file supported the worker had functionally recovered in October 2016 from his compensable diagnosis of a triceps strain. On January 25, 2017, the WCB's Compensation Services advised the worker that they had determined he had recovered from the workplace injury to his right elbow and was not entitled to further benefits.
On September 18, 2017, the worker contacted the WCB to advise he was having ongoing difficulties with his right elbow. The worker confirmed he had no new accidents and advised that surgery on his right elbow was being scheduled. On September 20, 2017, the worker's WCB case manager advised the worker that if new medical information was submitted, it could be reviewed. Medical information was submitted to the worker's 2017 WCB claim file [see below], and on June 1, 2018, the worker's WCB case manager confirmed with the worker that he was attributing his ongoing difficulties to his ongoing duties and the 2017 cumulative injury claim.
On June 11, 2020, the worker requested that Review Office reconsider Compensation Services' January 25, 2017 decision. The worker submitted that he had not fully recovered from the workplace accident when his claim was closed.
On August 11, 2020, Review Office determined that the worker was not entitled to additional benefits. Review Office found that the medical information on file supported the worker had fully recovered from the workplace accident by October 2016, when his benefits were discontinued. Review Office noted that the worker had returned to his full regular duties and filed a separate WCB claim several months later for the same body part.
On October 30, 2020, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission.
Date of Accident – January 25, 2017
On July 26, 2017, the worker filed a Worker Incident Report with the WCB, indicating he had an ongoing and progressive injury to his right elbow since his previous 2016 WCB claim. The worker noted "Constant everyday pain. Repetitive strain. I've mentioned to my employer every now and then. I've bought a brace for my elbow out of pocket." The worker described the cause of the injury as "Repetitive pushing, pulling, gripping using grinders, vibratory tools used overhead for hours and hours with both my arms in the air, more so my right arm/elbow would take the brunt of it being right hand dominant."
On August 2, 2017, the employer provided the WCB with a Notice of Injury to Employer dated July 26, 2017, in which the worker had noted a description of incident as "The constant physical labour and use of vibration tools throughout the entire day causing pain and weakness," and a description of injury as "Right elbow which is relevant to a previous work injury…"
On September 18, 2017, the WCB spoke with the worker regarding his claim. The worker advised he had been having ongoing difficulties with his right elbow and had not had any new accidents since his 2016 claim ended. The worker confirmed he was not missing time from work. The worker further advised that his healthcare provider had said he needed surgery, which would be scheduled in the next three months.
On May 29, 2018, the worker was seen by a sports medicine physician. The worker reported medial elbow pain and numbness down his arm when working. The physician noted a positive Tinel test at the cubital tunnel, and a diagnosis of ulnar neuropathy/olecranon pain was queried. The physician referred the worker for an MRI of his elbow, and recommended he avoid vibration tools and direct pressure on his elbow.
Additional medical information was received, including a December 7, 2016 report from the worker's family physician, noting a diagnosis of a right elbow injury, and a November 20, 2017 report from another sports medicine physician, noting "chronic irritation pain in his right elbow right at the triceps insertion." On June 6, 2018, the WCB spoke to the worker, who provided further information on his claim including a further description of his job duties and medical attention sought. The worker also saw another sports medicine physician on June 6, 2018, who noted the worker's report of chronic pain, which the worker thought was from using vibrating tools at work. The physician noted the worker had tenderness at the ulnar nerve cubital fossa, a positive Tinel test and full active range of motion, and provided a diagnosis of ulnar neuropathy.
On June 13, 2018, the WCB received a report of an August 31, 2017 x-ray of the worker's right elbow, which showed "There is a small fragmented enthesophyte on the dorsal olecranon at the triceps tendon attachment site. No other bone or joint abnormality or effusion is seen." The WCB also received, on June 28, 2018, the results of a nerve conduction study ("NCS") performed October 24, 2017, which the examining physician reported showed "Normal study. No findings of left [sic] ulnar or median nerve impairment."
On July 4, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that the reported mechanism of injury of using vibrating tools "…would not likely account for the development of symptoms arising about the enthesophyte at the insertion of the triceps muscle. Nor would the workplace duties account for the development of the enthesophyte in the first place." The WCB medical advisor further noted enthesophytes were considered incidental findings and typically did not require specific treatment, and no restrictions were required. On July 9, 2018, Compensation Services advised the worker that the medical information did not support a causal connection between his current symptoms and difficulties and a workplace injury, and his claim for a right elbow injury was not acceptable.
On December 19, 2018, the worker was seen by an orthopedic surgeon, who reviewed the worker's medical information and opined the clinical evidence supported the worker had ulnar neuropathy at both elbows. Treatment options were discussed with the worker and ulnar decompression surgery was recommended. The surgeon noted the worker had similar symptoms bilaterally, and the worker had decided to have the decompression surgery on his left arm first.
On January 17, 2019, a WCB orthopedic consultant reviewed both of the worker's claims and provided an opinion. The consultant opined that there was no pathoanatomic diagnosis to identify a relationship between the worker's current right upper limb symptoms and the workplace. The consultant opined that the medical information confirmed the worker made a full recovery from his June 28, 2016 diagnosis of a triceps tendon strain and there had been no recurrence. The WCB orthopedic consultant further noted the worker told the orthopedic surgeon that he had not worked for six months, and opined that if the worker's symptoms were work-related, separation from the workplace would have been expected to allow improvement, and even recovery. On January 30, 2019, Compensation Services advised the worker that the new medical information had been reviewed and there would be no change to the July 9, 2018 decision.
On February 5, 2019, the worker underwent surgery on his left elbow. On February 7, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted he had injured both his elbows and submitted that he and his treating healthcare providers believed his work duties and the use of vibrating tools were the cause of the pain and trauma to his left and right arms. The worker subsequently provided a further submission with respect to a co-worker's WCB claim. On March 27, 2019, the employer provided a submission in support of Compensation Services' decision, and on April 8, 2019, the worker provided a response to that submission.
On April 9, 2019, Review Office determined that the worker's claim for right elbow difficulties was not acceptable. Review Office found that the evidence did not support the worker suffered an injury by accident arising out of or in the course of his employment, given the varying clinical diagnoses provided on file, delays in reporting an injury and lack of findings on diagnostic imaging.
On May 15, 2019, the worker advised Review Office that he had now undergone surgery for his right arm and requested the April 9, 2019 decision be reviewed. On May 23, 2019, the WCB received a copy of the April 30, 2019 operative report, which indicated the worker underwent a right elbow anterior subcutaneous ulnar nerve transposition. On May 28, 2019, the operative report and the worker's file were reviewed by the WCB orthopedic consultant, who advised that his January 17, 2019 opinion was unchanged, and a relationship between the worker's current difficulties and right elbow surgery and his job duties could not be identified. A copy of the WCB orthopedic consultant's opinion was provided to both parties for comment, and the employer provided a response supporting no change to Review Office's decision.
On July 3, 2019, Review Office again determined the worker's claim was not acceptable. Review Office placed weight on and accepted the WCB orthopedic consultant's opinion that the surgery to the worker's right elbow was not required as a result of the worker's described job duties. Review Office further found it difficult to relate the worker's ulnar nerve symptoms to work, given the worker had not been performing work duties at the time of assessment or in the six months leading up to the assessment. Review Office noted the examination by the treating orthopedic surgeon in December 2018 indicated full range of motion of the worker's elbows, no evidence of ulnar nerve subluxation and the neurovascualar examination of the worker's hand was normal. Review Office found the clinical findings did not demonstrate evidence of ulnar neuropathy, and the operative report did not provide supporting evidence to relate the need for the surgical procedure to the worker's job demands. Review Office therefore concluded that the new medical information provided by the worker did not change the April 9, 2019 decision that the claim was not acceptable.
On February 4, 2020, the worker's representative provided a further submission to Review Office, including new medical information and a written statement from a co-worker, and requested a further review of the April 9 and July 3, 2019 decisions. A response to this further request was received from the employer on April 14, 2020, and a further response from the worker's representative on April 17, 2020.
On April 21, 2020, Review Office found the worker's claim for right elbow difficulties was not acceptable. Review Office found the new information provided by the worker's representative did not change their previous decisions. Review Office concluded the evidence did not support the worker suffered an injury to his right elbow arising out of or in the course of his employment.
On May 14, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission.
On November 2, 2020, the Appeal Commission advised that the appeals in relation to the 2016 and 2017 claims would both be heard on February 3, 2021, and the hearing proceeded by way of videoconference on that date.
Following the hearing, the appeal panel requested additional information prior to discussing the appeals further. The requested information was later received and was forwarded to the interested parties for comment. On March 11, 2021, the appeal panel met further to discuss the appeals and render its final decision on the issues under appeal.
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.
"Accident" is defined in subsection 1(1) of the Act as:
…a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
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.
The WCB's Board of Directors has established WCB Policy 18.104.22.168, Pre-existing Conditions, which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The stated purpose of that Policy is identified, in part, as follows:
The Workers Compensation Board (WCB) 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 WCB 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 worker was represented by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation at the hearing summarizing their position. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.
The worker's representative submitted that their position had always been that the worker's right elbow injury, being ulnar neuropathy, is compensable under both claims, although predominantly resulting from the cumulative impact of his regular job duties performed following his June 2016 workplace accident.
With respect to the 2016 claim, the worker's representative noted that the accepted diagnosis was a right triceps strain, which the WCB believed resolved no later than January 25, 2017. The representative stated that they agreed with that determination, but submitted that a triceps strain was not the only compensable diagnosis arising from that claim. The representative submitted that the mechanism of injury also caused the initial onset of the worker's right-sided ulnar neuropathy or an acute ulnar nerve irritation, which persisted or recurred with the performance of the worker's regular work duties over a lengthy period of time where he was constantly exposed to vibration while using a grinder.
The worker's representative submitted that the panel should attach no weight to the WCB orthopedic consultant's comment that there was no evidence the worker's ulnar nerve symptoms arose from the workplace accident, noting that no supportive rationale was provided for that comment and the implication that the onset of the injury was merely coincidental was unlikely given the facts of the case.
The worker's representative submitted that the identification of medial elbow/medial epicondyle findings was consistent with the worker's ulnar nerve injury, and noted that several healthcare providers made note of medial elbow complaints while diagnosing an ulnar nerve injury, including the physiotherapist, two sports medicine physicians and an orthopedic surgeon.
The worker's representative submitted that if the panel accepted that the workplace accident caused the initial onset of the worker's ulnar neuropathy, the correspondence and medical reports on file demonstrate this injury persisted beyond 2016, or recurred in 2017, due to the continuance of his regular work duties, and eventually necessitated surgery in April 2019. Accordingly, the worker was seeking and ought to be entitled to further wage loss and medical aid benefits.
With respect to the 2017 claim, the worker's representative submitted that while the claim is for a cumulative injury and there did not appear to be any dispute the worker was working at his regular job duties through 2017 to mid-2018, the primary focus should be on the nature, frequency, pace and duration of the job duties to determine if they caused an ulnar neuropathy injury.
The worker's representative submitted that any perceived reporting delays, as cited by Review Office, should not be significant factors in adjudicating this claim. The representative added that to the extent such delays might be considered to be of significance, they were mitigated by a number of matters, including a co-worker's written statement noting the worker having repeatedly mentioned being in pain through 2017.
Noting there appeared to be a variance between the treating surgeon and the WCB orthopedic surgeon regarding the presence of ulnar neuropathy during and after December 2018, the worker's representative submitted that the panel should attach greater weight to the opinion of the orthopedic surgeon, who examined the worker and observed the presence of ulnar nerve subluxation intraoperatively.
With respect to the negative NCS report, it was submitted that the worker had provided a reasonable explanation for such results. The worker's representative further noted that the orthopedic surgeon reported a history of operating on patients who had negative NCS results but demonstrated clear ulnar neuropathic symptoms intraoperatively. The representative submitted that a positive NCS report is not a requirement to confirm the presence of ulnar neuropathy or to determine if the condition relates to work duties.
The worker's representative submitted with respect to the worker having discontinued work in June 2018, that it was important to remember he performed his regular job duties with a symptomatic ulnar nerve condition for at least 1.5 years. It was submitted that by the time the worker stopped working, the damage seemed to be too significant or had been going on for too long, such that simply discontinuing work was not sufficient to achieve full recovery, and surgery was required.
In conclusion, the worker's representative submitted that the accident in June 2016 was essentially the initial cause of injury, and engaging in work duties after that prolonged his injury and never allowed a full symptomatic or functional recovery. The representative submitted that the evidence is sufficient to establish that the worker had not recovered from the effects of his initial 2016 injury and his claim for a repetitive motion injury should be accepted.
The employer was represented by its Workers Compensation Coordinator, who made a presentation at the hearing.
The employer's position was that they agreed with the Review Office decisions on both the 2016 and 2017 claims, and the worker's appeals should be dismissed.
The employer's representative submitted that based on all of the information, and looking at what was initially described as the primary diagnosis in the 2016 case, the June 28, 2016 accident resulted in a distal triceps strain that had resolved at the time the worker's benefits ended.
The employer's representative submitted that this was supported by the WCB orthopedic consultant, who did a complete review of the 2016 claim and opined that there was no evidence the symptoms of ulnar nerve tenderness at the elbow related to the mechanism of injury, and that the worker had made a full recovery from the compensable right distal triceps strain injury.
The employer's representative noted that it was documented in the file that in a discussion with the WCB in June 2018, the worker advised that he was not relating his difficulties to the specific injury he suffered in June 28, 2016, but rather to the January 25, 2017 cumulative injury.
With respect to the 2017 claim, the employer's representative submitted that the evidence does not support that the worker's ulnar neuropathy resulted from his work duties. The representative submitted that there was a significant period of time following the worker's return to work from his June 2016 injury, where he continued performing his regular duties without seeking medical treatment. The representative submitted it was not until August 2017, when the worker ran into a sports medicine physician who suggested he come and see him, that he sought any medical attention or treatment. It was submitted that while the worker may have been experiencing some problems during that period of time, one could only speculate as to the degree and severity of any such symptoms. The representative suggested that if there was no treatment during that period of time, the worker was probably managing fairly well.
The employer's representative noted that the worker indicated there had not been any increases or significant changes in the workload, and that while the work appeared to be busy, the worker continued doing the same work after he returned to work.
The employer's representative submitted that multiple diagnostic tests were done, including an NCS, ultrasound and MRI, all of which showed no real issues with the ulnar nerve and were reported to be normal. The representative submitted that the worker was still working when he underwent the NCS in October 2017 and did not leave the workplace until June 2018, and that there would have been evidence of subluxation of the ulnar nerve at that time if the work was causing the ulnar neuropathy. The representative stated that it was only with the surgery that there was some evidence of subluxation of the ulnar nerve.
The employer's representative referred to the November 25, 2020 report from the treating orthopedic surgeon, and submitted that all that can be gleaned from that report and the surgery that was done months after the worker stopped working was that there was evidence of subluxation of the ulnar nerve; there was no definitive evidence that such a finding had any relationship to the worker's job duties or work with vibratory tools.
Date of Accident - June 28, 2016
The issue on this appeal is whether or not the worker is entitled to additional benefits. 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 further loss of earning capacity and/or required further medical aid as a result of his June 28, 2016 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a right distal triceps strain injury. The panel is satisfied that the evidence shows that the worker had materially recovered from the effects of his June 28, 2016 compensable injury by October 24, 2016. In arriving at that conclusion, the panel places weight on the following:
• The worker was first assessed by the sport medicine physician on June 29, 2016 who noted tenderness in the distal tricep, neurovascular intact, and full elbow range of motion with no swelling, and diagnosed the worker with a right distal tricep strain injury;
• The initial physiotherapy report of June 30 2016 refers to a diagnosis of a strain;
• In a progress physiotherapy report dated July 29, 2016, it is recommended that the worker return to full duties for the week of August 1, 2016;
• In a July 29, 2016 report, the treating sports medicine physician noted that the worker had been performing modified duties and attending physiotherapy and improved significantly, had no further pain in the tricep and full range of motion with no numbness or tingling, and recommended he return to full regular duties on August 2, 2016;
• The August 11, 2016 physiotherapy discharge report indicates that the worker had good overall recovery and returned to full duties with no symptoms, and that minimal symptoms remained;
• The October 24, 2016 final physiotherapy discharge report indicates satisfactory recovery, noting that some symptoms remain and the worker was completing full work duties.
The panel notes that the worker's representative acknowledged in his submission that the right tricep strain injury had resolved. The representative argued, however, that the June 28, 2016 accident caused the onset of ulnar neuropathy or an acute ulnar nerve irritation, which persisted or recurred beyond the benefit end date, with the performance of the worker's duties, and was also compensable. The panel is unable to accept that argument. The panel is not satisfied that the mechanism of injury, as described, would have resulted in an ulnar nerve injury.
While the worker has argued that he had ongoing difficulties with his right elbow, the evidence shows that he continued working his full regular work duties from August 2, 2016 through to the spring of 2018. The evidence also shows that the worker attended physiotherapy treatment to October 11, 2016, and saw his family physician in December 2016, who prescribed anti-inflammatory medication. The evidence further shows that the worker did not seek medical attention or treatment for right arm or elbow difficulties for a period of seven or eight months after that, between December 2016 and at least August 2017.
The worker indicated at the hearing that his family physician had indicated it would take months for the medication to work, and after seeing him in December 2016, he was waiting to give the medication time to work and see if his elbow would get better. The worker stated however, that he kept taking the medication but did not notice any difference with it, and in his opinion, it did not help at all. He said that when he found out after so many months that the medication was not working, he "reinitiated a different strategy."
The worker's evidence at the hearing was that he later saw a sports medicine physician he knew at a weekend social event, and casually talked to him about his frustration with his elbow issues, and the physician recommended he come and see him. The evidence shows the worker saw the sports medicine physician on November 20, 2017.
In the circumstances, and given the lengthy period of time following the worker's return to his work, during which time the worker was performing his full regular work duties, without seeking medical attention, the panel is unable to relate his ongoing right elbow difficulties to his 2016 workplace injury.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had recovered from his June 28, 2016 workplace accident and injury, and did not suffer a further loss of earning capacity or require further medical aid as a result of that accident. The worker is therefore not entitled to additional benefits.
The worker's appeal on this issue is dismissed.
Date of Accident - January 25, 2017
The issue on this appeal is claim acceptability. For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.
The worker's 2017 claim is for a cumulative or repetitive motion injury to the worker's right elbow, more particularly an ulnar nerve injury or ulnar neuropathy. Based on our review of all of the information which is before us, the panel is unable to find that the worker's claim is acceptable.
The worker's representative has argued that the primary focus on this appeal should be on the nature, frequency, pace and duration of the worker's job duties to determine if they caused an ulnar neuropathy injury. In addition to the information on file, the worker described his job duties at the hearing and physically demonstrated how he would be holding and using a grinder when he was performing those duties. The panel also questioned the worker in detail with respect to his workplace activities, including in particular his use of the grinder.
The panel accepts that the worker's job duties were high paced and physically demanding. Based on our review of the information which is before us, the panel is unable to find, however, that the worker suffered a cumulative or repetitive motion injury to his right elbow as a result of his performance of those duties.
The panel has previously found, with respect to the 2016 claim, that the worker recovered from his June 28, 2016 workplace accident and injury, and that the mechanism of injury in relation to the accident would not have resulted in an ulnar nerve injury.
The panel places weight on a November 25, 2020 letter from the worker's treating orthopedic surgeon written in response to questions from the worker's representative, in which the surgeon wrote:
I am often asked to comment on whether or not a particular workplace injury may have been the cause of the patient's symptoms. It is very challenging for me to make an accurate assessment given that I met [the worker] almost two years after his workplace injury. Ulnar neuropathy most commonly takes place as a result of either repetitive micro-trauma or vibration and typically comes on insidiously. It is not possible for me to say definitively whether or not [the worker's] workplace injury caused his bilateral ulnar neuropathy but in numerous clinical visits I had with him, it was clear that the vibratory use of his tools was aggravating his symptoms.
Based on the enclosed physician reports, physiotherapy reports and my own clinical observations of [the worker], I do feel that he had evidence of bilateral ulnar neuropathy. In addition, we noted subluxation of his ulnar nerves intraoperatively, which could explain the symptoms he was experiencing.
The panel notes the surgeon's advice that he was unable to say whether the worker's June 28, 2016 workplace injury caused his ulnar neuropathy.
The panel notes the surgeon's further indication that the subluxation of the worker's nerves which was noted during surgery "could" explain the symptoms he was experiencing, is speculative. The panel acknowledges the surgeon's comment that the vibratory use of the worker's tools was aggravating his symptoms, in the sense of causing him pain or hurting him, but is not satisfied that the evidence shows that the use of those tools caused or contributed to the worker's ongoing difficulties.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of his employment. The worker's claim is therefore not acceptable.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of May, 2021