The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after November 20, 2019. A teleconference hearing was held on April 22, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 20, 2019.

Decision

The worker is entitled to wage loss benefits after November 20, 2019.

Background

The worker filed a Worker Incident Report with the WCB on September 18, 2017 reporting they injured their right wrist and arm in an incident at work on August 31, 2017, which they reported to the employer on September 14, 2017. The worker described feeling, when pulling some wires, a “…sharp pull just below my right elbow. There was then a sharp pain…The pain travelled down my forearm and into my fingers. There was tingling and numbness in my middle, ring and pinky fingers. My grip strength has diminished. Making a fist or bending my fingers causes a very sharp pain in my right forearm that travels down my wrist.” Further, the worker noted they did not report the incident right away as they felt the difficulties would get better. A Doctor’s First Report was provided for an appointment with the worker’s treating family physician on September 14, 2017. The worker reported pain over their right wrist, forearm and elbow, inability to grip hard and pain on extension of their arm. The physician recorded tenderness over the worker’s right wrist, with a positive Phalen test and a negative Tinel’s sign and a positive test for supraspinatus tendonitis. The worker was diagnosed with tendonitis/carpal tunnel syndrome and restrictions of avoiding pulling, pushing and lifting more than 5 pounds with their right hand/arm were recommended.

On September 26, 2017, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and advised that while they didn’t report the injury to the employer right away, they had made complaints to their co-workers. They further noted they self-treated their difficulties with ice and rest and when their difficulties did not resolve, they sought medical treatment on September 14, 2017. On the same date, the WCB spoke with the worker’s co-workers who confirmed the worker had made ongoing complaints during the times they worked with the worker. On September 27, 2017, the WCB accepted the worker’s claim.

The worker underwent an initial physiotherapy assessment on October 4, 2017. The physiotherapist recommended the worker perform only very light sedentary tasks, avoiding excessive grip/grasp/lifting after diagnosing the worker with a wrist extensor strain/tendinopathy, radial-humeral joint synovitis. The worker advised the WCB on October 20, 2017, they were terminated from their position by the employer.

On January 3, 2018, due to ongoing difficulties, the worker was seen by a sports medicine physician. The worker reported pain at night, feeling of stiffness in their elbow and pain when lifting anything heavier than a coffee mug. On examination, the physician noted painful wrist flexion and extension and positive middle finger and Tinel's tests. The sports medicine physician diagnosed the worker with lateral epicondylitis and performed a pain injection in the worker’s right elbow. At a follow-up appointment on January 31, 2018, the sports medicine physician referred the worker for an MRI. The MRI was performed on February 23, 2018 and indicated the worker had a partial tear of the common extensor origin in their right elbow. On March 6, 2016, the treating sports medicine physician requested the WCB expedite a surgical consultation for the worker.

The worker had an initial appointment with the orthopedic surgeon on May 31, 2018. The surgeon noted the worker had exhausted all of the nonoperative treatment they had been referred for and recommended an open debridement of their right lateral epicondyle/common extensor origin surgery. On June 4, 2018, the WCB provided approval for the surgery to the worker’s surgeon. On June 18, 2018, the worker underwent a right elbow open debridement lateral epicondyle/common extension tendon.

The worker continued with physiotherapy after the surgery and on October 27, 2018, advised their WCB case manager they had experienced little improvement in their difficulties and were now having difficulties with their right shoulder. The worker was seen by an orthopedic specialist on November 2, 2018. The specialist recommended a further MRI study to investigate the site of the June 18, 2018 surgery to determine if there was an issue with healing of the torn portion of their common extensor tendon origin. With respect to the worker’s reported right shoulder difficulties, the specialist provided the worker may have developed rotator cuff tendonitis due to their therapy regime and recommended rotator cuff strengthening and avoiding overhead activities. The worker’s file was reviewed by a WCB medical advisor on November 29, 2018 who recommended the WCB gather further information from the worker’s treating physiotherapist regarding the physiotherapy regime the worker was following.

On December 6, 2018, the WCB received a narrative report from the worker’s treating physiotherapist noting details of their treatment and examination of the worker on October 18, 2018 when the worker exacerbated their right shoulder. The physiotherapist noted the worker did not mention any right upper arm difficulties at that time. The worker underwent an MRI study of their right shoulder on March 12, 2019 which indicated a high-grade, near full-thickness, partial articular tear at the posterior insertional supraspinatus tendon near the junction with the anterior infraspinatus insertional fibers. Background supraspinatus and infraspinatus tendinosis; tendinosis of the subscapularis tendon; and mild degenerative changes at the acromioclavicular joint.

At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on April 17, 2019. After examining the worker, the WCB medical advisor opined the worker’s diagnosis with respect to their right shoulder was a right rotator cuff tear; however, a relationship between the diagnosis and the workplace accident could not be established. With respect to the worker’s right elbow, the WCB medical advisor opined the worker had “…persistent lateral epicondylitis, which has not responded favorably to surgery for common extensor release.” The advisor noted the worker’s recovery was unsatisfactory and recommended restrictions of no firm grasping and twisting with force greater than 15 pounds with the right upper limb; no lifting and carrying more than 15 pounds with the right upper limb; and no pushing and pulling with force greater than 15 pounds with the right upper limb. The worker was advised by the WCB on April 23, 2019, responsibility for their right shoulder difficulties was not accepted by the WCB. The worker requested reconsideration of the decision to Review Office and on August 13, 2019, Review Office upheld the WCB’s decision.

The worker was referred for vocational rehabilitation services by the WCB on May 6, 2019 as they did not have a position with the employer and it was anticipated they would have permanent restrictions with respect to their right elbow. On August 29, 2019, the worker’s treating orthopedic surgeon recommended restrictions of no heavy work with repetitive lifting or gripping. The restrictions provided by the surgeon were reviewed by a WCB medical advisor on September 18, 2019 who recommended the worker undergo a Functional Capacity Evaluation in order to determine the worker’s permanent restrictions.

On October 4, 2019, the worker attended for the Functional Capacity Evaluation. The WCB physiotherapy consultant who conducted the evaluation and examined the worker, provided on October 8, 2019, that the evaluation was not considered valid as there was an absence of atrophy in the worker’s right upper limb muscles compared to the left, indicating the worker had been using their right upper limb; there were invalid results from the grip strength and rapid grip strength testing; and the right hand grip strength graphing did not meet the expected shape and values. Further, the consultant noted the worker did not report an increase in their symptoms in the right arm and did not appear to be in any discomfort after the evaluation. The results of the evaluation, along with the worker’s file were reviewed by a WCB medical advisor on October 10, 2019 who opined “There are no objective findings to point to the need for ongoing physical restrictions related to the workplace injury. The reported functional losses appear to be related to non-compensable shoulder problems on that side.” On October 23, 2019, the worker was advised they were not entitled to benefits after October 30, 2019 as it had been determined they were recovered from the August 31, 2017 workplace injury.

The worker requested reconsideration of the WCB’s decision to Review Office on November 1, 2019. In their submission, the worker noted their treating healthcare provider supported their right elbow had not recovered and they required permanent restrictions for same. The worker further noted they experienced an “extreme amount of pain” after the evaluation, preventing them from sleeping for 3 to 5 days after.

Review Office determined on December 12, 2019, the worker was entitled to medical aid benefits in relation to their right elbow injury beyond October 30, 2019 and they were entitled to wage loss benefits to November 20, 2019. Review Office acknowledged and accepted the worker may require further medical aid treatment related to their right elbow and noted that should be adjudicated on a case by case basis by the WCB’s Compensation Services. With respect to the issue of wage loss benefits, Review Office noted the worker had been in receipt of wage loss benefits from the WCB for more than two years and as such, additional notice before a change in benefits should have been provided to the worker. Review Office found the worker should have been given four weeks’ notice their entitlement to wage loss benefits was ending, which would be to November 20, 2019.

The worker’s representative filed an appeal with the Appeal Commission on October 9, 2020. A teleconference hearing was arranged.

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 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 the worker advisor, and the worker and the worker advisor responded to questions from the panel.

The worker's position was that they are entitled to wage loss benefits beyond November 20, 2019 because the available evidence supports that the worker has continued to suffer the effects of the compensable injury which occurred on August 31, 2017.

Surgery on the worker’s right elbow was unsuccessful and continued restrictions were advised, including not returning to heavy work with repetitive lifting or gripping. A Functional Capacity Evaluation (FCE) was conducted in October, 2019, to determine the worker’s physical restrictions but some of the testing could not be carried out because of significant pain in the worker’s shoulder. The FCE was shown to be invalid but, of the five validity checks that are part of the FCE process, the worker passed 3 out of 5. Once the FCE was found to be invalid, the WCB concluded that the invalidity was due to the worker’s lack of effort rather than the worker’s injury, finding that the worker had recovered and could return to employment without restrictions. The worker argues that this conclusion is not supported by the evidence.

The treating surgeon was of the view that the repetitive testing could have exacerbated the worker’s right shoulder symptoms and affected the outcome of the FCE; and that an old left arm injury also could have affected his ability to perform the FCE. The worker had reported pain as a limiting factor in the FCE. A repeat MRI confirmed continued pathological changes of the common extensor tendon that supports the worker’s complaint of persistent pain. The treating surgeon disagreed with the WCB’s determination that the worker had functionally recovered and stated that the worker had demonstrated consistent and persistent symptoms of lateral epicondylitis.

Employer’s Position

The employer participated in the hearing and made a submission to the panel. The employer raised concerns regarding a pre-existing condition of which the worker complained. The employer described the duties of the worker as being light in nature, therefore questioned how the worker’s injury could have been caused by workplace duties.

Analysis

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond November 20, 2019 as a result of the worker’s August 31, 2017 workplace incident.

In January, 2019, the worker’s treating physician noted continued discomfort to the lateral elbow with gripping or use, with no improvement from physiotherapy, concluding that there should not be any change to restrictions and the worker should not do any form of repetitive work. The results of the March, 2019, MRI were essentially the same as the MRI conducted in February, 2018, confirming continued pathological changes that would support the worker’s complaint of persistent pain. In October, 2019, as there had been no symptomatic improvement it was recommended that the worker retrain for lighter work.

In September, 2019, the WCB medical advisor was of the opinion, based on the report of the attending orthopedic surgeon, that the worker had likely achieved maximum medical improvement with respect to the right elbow. The FCE was arranged to assist in determining permanent restrictions related to the right elbow injury. Based on the results of the invalid FCE, the medical advisor found there were no objective findings to identify a need for ongoing physical restrictions and that the reported functional losses appeared to be related to a non-compensable shoulder injury.

However, the panel notes that an invalid FCE does not mean that the worker had fully recovered. The physiotherapist who conducted the FCE did not offer an opinion as to why the FCE was invalid or conclude that the worker had fully recovered. The evidence of the worker was that he stopped parts of the testing due to pain. The medical advisor’s conclusion does not appear to be based on clinical findings. The worker’s surgeon disagreed with the conclusion drawn by the medical advisor.

The panel prefers the medical opinions and evidence, based on clinical medical findings, over that of the WCB consultant who concluded, without clinical evidence, that the worker had fully recovered.

With respect to the submissions of the employer that the worker’s job duties were light and thus would not have caused the injury, the panel noted that the issue before it was not claim acceptability but whether or not the worker was entitled to benefits after November 20, 2019.

Based on the evidence before it, the panel finds, on a balance of probabilities, that the worker continued to suffer the effects of the compensable injury and suffered a loss of earning capacity beyond November 20, 2019. The panel therefore returns the file to the WCB to address the issue of the benefits to which the worker is entitled after November 20, 2019.

Panel Members

K. Gilson, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of May, 2021