Decision #105/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility is not accepted for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident. A hearing was held on August 11, 2021 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident.
Responsibility should not be accepted for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident.
The worker reported an injury to their right middle finger to the WCB on October 11, 2018, that occurred when an object weighing approximately 100 pounds dropped onto their right hand at work on October 9, 2018. The worker attended for medical treatment at a local emergency department where bruising was noted to the distal phalanx of the worker's right middle finger and a small laceration noted on the dorsal aspect just proximal to the distal interphalangeal (DIP) joint, and decreased range of motion due to pain. The emergency department physician diagnosed a contusion and laceration and recommended two days off work. On October 10, 2018, the worker attended at a different clinic and saw a sports medicine physician who reviewed the x-rays taken the previous day and diagnosed a distal tuft fracture of the worker's right middle finger and recommended the worker remain off work. The WCB accepted the worker's claim on October 15, 2018.
The worker continued to see their treating family physician and sports medicine physician and at a November 6, 2018 follow-up appointment, was referred for physiotherapy. At the initial physiotherapy assessment on November 12, 2018, the worker reported shooting pain into their right middle finger, decreased range of motion, no grip strength, inability to make a fist, disturbed sleep, sensitivity to hot and cold and that they could not perform some of the activities of daily living. Upon examination and testing, the physiotherapist diagnosed a right third digit tuft break and DIP break and recommended left handed duties only. On December 12, 2018, the treating family physician referred the worker to a plastic surgeon.
A December 20, 2018 MRI study of the worker's right 3rd finger indicated "Sprains of the radial and ulnar collateral ligaments of the proximal phalangeal joint" and "Mild swelling in the subcutaneous fat of the entire finger". On the same date, the plastic surgeon examined the worker and concluded they had a "…severe crush injury to the right long finger." The surgeon noted evidence of a tuft fracture but there was nothing surgically that could be done. The surgeon recommended "…dynamic splinting of both the PIP (proximal interphalangeal) and the DIP joint…" and for the worker to attend occupational therapy for "…aggressive range of motion exercises."
At a January 30, 2019 occupational therapist appointment, the treating therapist noted the worker's complaint of soreness in the PIP joint since the workplace accident, and for the previous two weeks, tenderness and palpable crepitus in the A1 pulley area of the middle finger, which the therapist queried to be early trigger finger. At a follow-up appointment with the plastic surgeon on February 6, 2019, the surgeon indicated the worker was "much improved" since the last appointment but noted the worker had "…some fullness at the MCP (metacarpophalangeal) joint on the volar aspect of the long finger as well as intermittent clicking and locking and crepitus consistent with early trigger finger. The patient is also demonstrating some stiffness of the ring finger DIP joint." The treating plastic surgeon recommended the worker's occupational therapist continue with the aggressive active and passive range of motion exercises for the worker's middle finger and recommended the worker's ring finger DIP joint be included in the therapy. The surgeon also noted a possible return to work could occur in eight weeks unless the worker developed trigger finger. At a follow-up appointment on March 13, 2019, the plastic surgeon recommended a trigger finger release surgery for the worker's right middle finger, with approval for the surgery provided by the WCB on March 25, 2019 and the surgery performed on March 27, 2019.
On May 7, 2019, the worker attended for a follow-up appointment with the plastic surgeon after their trigger finger release surgery. The surgeon noted the worker's reporting of no evidence of clicking or locking in their 3rd finger but there was a new onset of clicking and locking of their 5th finger. The treating plastic surgeon indicated the worker was slowly improving and administered a steroid injection into the worker's 5th finger. At a physiotherapy appointment on June 27, 2019, the treating physiotherapist noted a change in the worker's diagnosis to include developing trigger finger in the 4th digit. At a follow-up appointment with the treating plastic surgeon on July 17, 2019, the surgeon reported the worker had “obvious triggering” of the right 4th and 5th fingers that “Likely...is due to the aggressive physiotherapy and repetitive gripping with therapy". The plastic surgeon requested the WCB approve trigger release surgery for both.
A WCB medical advisor reviewed the worker’s file on August 1, 2019. In the report, the medical advisor noted they discussed the worker's physiotherapy exercise and treatment plans with both the physiotherapist who treated the worker in April 2019 to May 2019 and the worker’s current treating physiotherapist with respect to the plastic surgeon's opinion of the development of the triggering from therapy, and found neither physiotherapists' program included repetitive forceful gripping, which was noted as an activity associated with development of trigger finger. The WCB medical advisor concluded the worker's 4th and 5th finger triggering could not be medically accounted for in relation to the workplace accident as there was no evidence of repetitive forceful gripping during physiotherapy that could have contributed to the development; no reporting of blunt force trauma to those fingers at the time of the workplace accident; and no evidence on file of any reports of symptoms in those fingers proximate to the date of accident.
The worker and treating physiotherapist provided further information to the WCB on August 19, 2019. The WCB medical advisor reviewed this information on September 6, 2019 and concluded the information did not change the previous opinion that triggering of the 4th and 5th fingers was not related to the workplace accident. On September 9, 2019, the WCB provided the worker with a formal decision letter.
On October 4, 2019, the worker submitted a detailed chronology of the events following the October 9, 2018 workplace incident, including details of medical, physiotherapy and occupational therapy treatment received, as well as photos of the object that fell on their hand resulting in the injury. The worker requested further investigation of their claim for acceptance of the surgery to the right 4th and 5th fingers. Upon reviewing the additional information on December 20, 2019, the WCB medical advisor concluded “The medical evidence on file does not support that the presence of ring and small finger triggering, months later, likely developed in association with the workplace injury." On January 14, 2020, the WCB advised the worker the information provided had been reviewed but there would be no change to the earlier decisions.
The worker requested reconsideration of the WCB's decision to Review Office on January 21, 2020, including the submission of October 1, 2019 along with additional information and photographs of their injured hand. The worker advised they did not have issues with triggering of any fingers prior to the workplace accident and noted the triggering in their 4th and 5th fingers hindered their recovery from the workplace accident and as such, responsibility should be accepted for that condition by the WCB. On March 10, 2020, the employer provided a submission in support of the WCB's decision, which was shared with the worker on March 11, 2020. The worker provided a further response on March 25, 2020. On March 27, 2020, Review Office determined responsibility would not be accepted for the worker's 4th and 5th finger problems, relying on the opinions of the WCB medical advisor who reviewed the worker's file and the evidence on file of no reported injury to the worker's 4th and 5th fingers. Review Office was unable to establish a relationship between the worker's difficulties with their 4th and 5th fingers and the workplace accident.
On September 15, 2020, the worker's representative provided a submission, including chart notes and exercise programs from the worker's treating physiotherapists as new medical evidence and requested Review Office review the previous decision. The representative submitted the evidence supported a determination that the worker's 4th and 5th finger difficulties were subsequent injuries arising out of treatment the worker received for their original compensable injury. On October 21, 2020, the employer provided a further submission in support of the prior decisions not to accept responsibility for the worker's 4th and 5th finger difficulties. A copy of the employer's submission was provided to the worker's representative who provided a response on November 3, 2020.
On November 4, 2020, Review Office determined the WCB should not accept responsibility for the worker's right hand 4th and 5th finger difficulties as the evidence did not support that the nature and frequency of the worker's physiotherapy was forceful or repetitive and as such, a causal relationship could not be established between the treatment and therapy the worker received for their compensable injury or the workplace accident itself and the worker's 4th and 5th finger difficulties.
The worker's representative filed an appeal with the Appeal Commission on November 13, 2020. A hearing was arranged for August 11, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), 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.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which 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.
The WCB has established Policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury (the “Policy”). The Policy sets out that a further injury occurring subsequent to a compensable injury is compensable: (i) when the cause of the further injury is predominantly attributable to the compensable injury; or (ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or (iii) when the further injury arises out of the delivery of treatment for the original compensable injury. The Administrative Guidelines to the Policy clarify that:
A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:
1. The original injury causes or significantly contributes to the subsequent injury....
2. The subsequent injury arises out of a situation over which the WCB exercises direct control....
3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB) ....
The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury....
The worker appeared in the hearing represented by a worker advisor and accompanied by their spouse. The worker advisor relied upon a written submission provided to the appeal panel, and shared with the employer’s representative, in advance of the hearing and made an oral submission as well. The worker provided a video submission to the panel in advance of the hearing, shared with the employer’s representative, and provided testimony through answers to questions posed by members of the appeal panel. The worker’s spouse also provided comments in support of the worker’s appeal and answered questions on behalf of the worker.
The worker’s position, as outlined by the worker advisor, is that their right 4th and 5th digit trigger finger diagnoses arose out of the treatment provided for the compensable workplace injury to their right 3rd finger and as such is compensable as a further injury arising out of treatment for the compensable injury.
The worker advisor noted the August 1, 2019 opinion of the WCB medical advisor set out that forceful and repetitive gripping activity can bring on trigger finger. The worker’s position is that they engaged in such activity in the course of their in-clinic physiotherapy and at-home exercise program. The worker advisor stated that the panel should consider the evidence contained in the chart notes obtained from the worker’s two physiotherapists, as well as the reports of the occupational therapist in the context of the opinion of the treating plastic surgeon that the aggressive physical therapy provided likely caused the worker’s development of trigger finger in their right 4th and 5th digits. In this regard, the worker advisor urged the panel to give preference to the evidence contained in the contemporaneously prepared chart notes of the treating physiotherapists over that provided by the same professionals in July and August 2019 responses to the questions posed by the WCB medical advisor.
The worker advisor noted that the submitted video demonstration of the home exercises with the stress ball and putty in conjunction with the worker’s testimony as to how often and how long they did these exercises supports the worker’s position that these exercises were strenuous and repetitive.
The worker advisor further noted that although the Review Office decision referenced a number of risk factors for development of trigger finger, as the worker testified, none of those are applicable in the worker’s case, other than the worker’s age.
The worker advisor argued that the evidence supports a finding that the diagnosis of trigger finger in the worker’s right 4th and 5th fingers arose out of the combined effect of the worker’s rigorous completion of at-home physiotherapy exercises, aggressive in-clinic therapy and potentially, the worker’s “propensity” to develop this condition, as proposed by the second physiotherapist. Therefore, as the worker’s 4th and 5th finger condition arose out of the delivery of WCB-approved and funded treatment for the original injury, this is a compensable subsequent injury under the provisions of the Policy.
In sum, the worker’s position is that the evidence supports a finding, on a balance of probabilities that there is a causal connection between the treatment for the worker’s compensable workplace injury and the subsequent development of trigger finger in the worker’s right 4th and 5th digits. Therefore, the WCB should accept responsibility for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident and the worker’s appeal should be granted.
The employer was represented in the hearing by a workers compensation specialist who provided an oral submission to the panel and answered questions from the panel members as to the employer’s position.
The employer’s position, as outlined by its representative, is that there is no evidence the worker sustained any injury to their right 4th and 5th fingers in the workplace accident of October 9, 2018 and further that the evidence does not support that the worker’s diagnosed trigger finger in their right 4th and 5th fingers developed as a result of repetitive forceful gripping in the course of their rehabilitative therapy. The employer takes the position that the Review Office correctly determined the issue and that the panel should give significant weight to the July 25, 2019 opinion of the WCB plastic surgery consultant, confirmed on September 6, 2019 and December 20, 2019.
The employer’s representative provided the panel with a detailed chronological overview of the medical reporting with respect to the worker’s injury, noting that the early reporting provides no evidence that the worker sustained any injury to their right 4th and 5th fingers as a result of the accident of October 9, 2018. This is supported by the December 20, 2019 opinion of the WCB medical advisor.
The employer’s representative further reviewed the evidence with respect to the worker’s position that the right 4th and 5th finger condition developed in relation to and arising from the worker’s aggressive physiotherapy program delivered in-clinic and through home exercises. The employer’s representative noted that this possibility was considered and rejected by the WCB medical advisor in their July 25, 2019 opinion, and subsequently confirmed, on the basis of information obtained from the treating physiotherapists. Further, the employer’s representative noted that the treating physiotherapists also did not support this position; rather, each physiotherapist clearly stated that the therapies delivered, and exercises recommended did not include repetitive and forceful gripping activities.
The employer’s representative argued that although the WCB medical advisor was of the opinion that the development of the worker’s 3rd digit trigger finger “likely relates, at least in part, to the workplace injury” the same conclusion was not reached with respect to the 4th and 5th fingers, given the lack of evidence of repetitive forceful gripping in relation to either physiotherapy or occupational duties, the lack of report of blunt trauma to these fingers at the time of injury and the absence of findings related to these fingers in close proximity to the workplace injury.
The employer’s representative also noted the timing of development of the 4th and 5th finger difficulties, with first mention of any 4th finger difficulties in the February 4, 2019 report of stiffness from the treating plastic surgeon, and the diagnosis of trigger finger in the 4th digit did not arise until late June 2019. Further, the first mention of difficulties with the worker’s 5th finger is found in the May 7, 2019 report from the treating plastic surgeon.
The employer’s representative argued that an opinion that repetitive forceful gripping activity could contribute to the development of trigger finger is not sufficient to meet the standard of proof on a balance of probabilities. The representative also noted that the worker’s position on causation has changed over time, initially taking the position that the right 4th and 5th finger difficulties arose from the traumatic injury of October 9, 2018 and later suggesting instead that the condition was caused by their physical therapy.
In sum, the employer’s position is that the evidence does not support a finding that there is any causal relationship between the worker’s injury or treatment for that injury and their right 4th and 5th finger difficulties. Therefore, the worker’s appeal should be denied, and the decision of the Review Office should be upheld.
The question on appeal is whether the WCB should accept responsibility for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident. In order to grant the worker’s appeal, the panel would have to determine that the further injury to the worker’s right 4th and 5th fingers is causally related to the initial compensable injury. For the reasons outlined below, the panel was unable to make such a finding.
The panel noted that although the worker previously advanced the position to the WCB and the Review Office that they sustained injury to their right 4th and 5th fingers in the course of the compensable accident of October 9, 2018, this position was not advanced in the worker’s present appeal. We do not accept the employer’s argument that the worker is precluded from advancing potentially conflicting positions in their submissions. In light of the worker’s position on appeal that the right 4th and 5th fingers were injured arising out of treatment of the initial compensable injury to the worker’s right 3rd finger, the panel has not considered or made any findings as to the earlier submission that these fingers were injured at the time of the compensable accident.
The panel focused its consideration specifically on the worker’s submission that the worker developed trigger finger in their right 4th and 5th fingers as a direct result of the rehabilitative physical therapy they participated in, at the direction of the treating plastic surgeon and with the approval of the WCB. As outlined in the Administrative Guidelines to the Policy, a subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where the original injury causes or significantly contributes to the subsequent injury, or the subsequent injury arises out of a situation over which the WCB exercises direct control, or the subsequent injury arises out of the delivery of treatment for the original injury. In this case, the worker’s position is that the 4th and 5th digit condition of trigger finger arose out of delivery of treatment for the original injury to their 3rd digit.
The panel noted the WCB medical advisor’s comments as to how trigger finger develops. In their March 22, 2019 opinion with respect to the development of trigger finger in the worker’s 3rd digit, the medical advisor stated that trigger finger “...following blunt trauma to the region of the flexor tendon/A1 pulley has been reported in the medical literature.” In the July 25, 2019 opinion, the WCB consultant also indicated that trigger finger may develop arising out of repetitive, forceful gripping activities. In the December 20, 2019 opinion, the WCB medical advisor stated that:
“...trigger finger is thought to be caused by narrowing of the retinacular sheath/A1 pulley at the level of the metacarpophalangeal (MCP) joint, with associated inflammatory changes affecting the flexor tendon sheath at the level of the pulley. Trigger finger is considered to be an idiopathic condition; that is, its cause is unknown. It is seen more frequently in people with certain systemic conditions. Tasks that involve highly repetitious forceful grasping increase the risk for trigger finger. Less frequently, it may be associated with blunt or penetrating trauma.
In the event that triggering at a finger develops in relation to a blunt trauma, it would be expected that there was evidence of trauma to said finger with note of localized symptoms and findings in close temporal relation to the trauma.”
The worker advisor did not dispute this information and argued on behalf of the worker that the physiotherapy exercises, both at home and in-clinic undertaken by the worker from November 2018 through to spring 2019 when the worker switched to a different physiotherapist for treatment, in conjunction with the therapy provided by the occupational therapist from December 2018 onward, were sufficiently forceful and repetitive to have caused the worker to develop trigger finger in the 4th and 5th digits of the same hand. As noted by the worker in their testimony, it was not possible for the worker to carry out the physical therapy exercises using only the injured 3rd digit; rather, use of all fingers of the right hand was required to engage in the recommended exercises. The worker advisor noted the initial physiotherapist’s chart indicates the worker was required to lift and carry weight of up to 35 pounds in the course of their in-clinic therapy. Further, the worker testified they did not receive any formal instruction from the physiotherapist in how frequently and how long to engage in the home exercises demonstrated by the worker in the submitted video, and as a result engaged in the exercises frequently through the day for 10-15 minutes periods.
In considering whether the therapy the worker was provided amounted to “repetitive forceful gripping” the panel noted the treating plastic surgeon’s July 17, 2019 opinion indicates a likely causal relationship between the worker’s 4th and 5th finger injuries and the “aggressive physiotherapy and repetitive gripping with therapy”; however, the WCB medical advisor on August 1, 2019 noted the absence of evidence of such activity here. The medical advisor’s opinion is based upon the information provided by both treating physiotherapists, consulted separately. The physiotherapists’ evidence does not support the worker’s position, as each indicated that the exercises the worker engaged in did not involve repetitive forceful gripping. The initial treating physiotherapist does allow that the home exercises of squeezing a stress ball and putty might be repetitive but does not describe those exercises as forceful repetitive gripping activity. The initial treating physiotherapist also stated that:
“...due to the anatomy of the hand flexors, the [worker’s] previous injury, and the development of a previous trigger finger on that hand, the [worker] may have a propensity to developing additional trigger fingers. Although possible that [the worker’s] previous injury may have contributed to [their] current state, it would be difficult to determine the exact cause of pathology.”
The medical reporting confirms that the diagnoses with respect to the worker’s right 4th and 5th fingers did develop during the time period of the worker’s physiotherapy and occupational therapy treatment, but the timing alone is not sufficient to establish that the trigger finger diagnosis arose as a result of the treatment of the worker’s compensable 3rd finger injury.
Of the various treating and reviewing medical professionals, the panel notes that only the treating plastic surgeon stated there was a likely causal relationship between the therapy provided for the compensable 3rd finger injury and the development of trigger finger in the worker’s right 4th and 5th fingers. While the worker accepted that rationale, in this case, the panel gives greater weight to the opinions expressed by the treating physiotherapists who were present during the physiotherapy and provided the home program information to the worker. In particular, the panel accepts the information and opinions provided by the treating physiotherapists in response to the questions posed by the WCB medical advisor, and further, rely upon the medical advisor’s opinion in this respect. The medical advisor reviewed the file information repeatedly and each time confirmed their opinion that the medical evidence in this case does not support that the presence of ring and small finger triggering, months later, likely developed in relation to the 3rd finger injury or to treatment of that injury.
The panel further noted that although the worker’s further injuries to their 4th and 5th fingers occurred in the same hand as the initial compensable injury, the further injuries did not arise at the same time. The evidence before us indicates the worker was diagnosed with trigger finger in the 5th finger in early May 2019 and in the 4th finger nearly two months later, in late June 2019. There is no explanation in the worker’s submissions or in the evidence before the panel as to why, if these further injuries were caused by the same treatment, they arose at different times.
The panel finds, on the standard of a balance of probabilities, that the evidence does not support the conclusion that there is a causal relationship between the further injuries to the worker’s right 4th and 5th finger and the initial 3rd finger injury.
We therefore determine the WCB should not accept responsibility for the worker's right 4th and 5th finger difficulties as being related to the October 9, 2018 accident. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of August, 2021