Decision #93/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker’s right elbow difficulties after March 8, 2019 in relation to the November 27, 2017 accident. A videoconference hearing was held on April 15, 2021 to consider the worker's appeal.
Whether or not responsibility should be accepted for the worker’s right elbow difficulties after March 8, 2019 in relation to the November 27, 2017 accident.
Responsibility should not be accepted for the worker’s right elbow difficulties after March 8, 2019 in relation to the November 27, 2017 accident.
On December 4, 2017, the worker filed a Worker Incident Report with the WCB reporting they injured their right elbow at work. In a letter attached to the Report, the worker advised that after performing repetitive job duties on November 27, 2017, they noticed increasing pain in both their elbows but specifically their right elbow. The worker reported continuing to work but self-modifying their duties due to pain, and that they reported the incident to their employer on December 4, 2017.
The employer contacted the WCB on March 13, 2018, with the worker, to discuss the worker’s claim. The employer advised the worker had been on light duties since August 2016 due to another unrelated injury and had submitted a Notice of Injury to the employer after the repetitive duties on November 27, 2017. A copy of the Notice of Injury completed by the worker was provided to the WCB on March 16, 2018 and indicated the worker’s report of pain in their right elbow and tendonitis in elbow after performing a repetitive task for approximately an hour and a half. The employer submitted an Employer’s Accident Report to the WCB on March 27, 2018 reporting the worker’s right elbow injury that occurred on November 27, 2017 after performing repetitive job duties.
Medical information received by the WCB included a Chiropractor First Report from an assessment that took place on December 4, 2017. The chiropractor noted limited mobility in the worker’s right elbow and forearm and diagnosed sprain/strain of the right elbow. A nerve conduction study undertaken on December 18, 2017 was normal but provided the worker’s “…current symptoms are likely attributable to right lateral epicondylitis.” On December 21, 2017, the worker saw their treating family physician, reporting right elbow pain, stiffness and decreased range of motion. The physician noted tenderness on palpitation and decreased supination, pronation and flexion in the worker’s right elbow. An x-ray taken the same date did not reveal any abnormalities and the worker was referred to an orthopedic specialist.
The worker saw an orthopedic specialist on January 31, 2018 reporting greater pain in their right arm that radiated to their forearm and that they had been experiencing the pain for approximately 2 months that worsened with slight swelling after repetitive job duties. The orthopedic specialist diagnosed right greater than left chronic lateral epicondylitis and proposed a pain relief injection for the worker, which was provided on May 16, 2018. The report from a follow-up appointment with the specialist on September 17, 2018 noted the injection helped but the worker’s pain worsened over the previous few months.
On January 7, 2019, at a further follow-up appointment with the orthopedic specialist, the worker reported ongoing pain in their right elbow, which was aggravated by reaching and lifting at work.
A WCB medical advisor reviewed the file on January 30, 2019 and provided an opinion that the worker’s initial and current diagnoses was a right lateral epicondylitis, with a natural history of recovery in one to 12 weeks. The medical advisor was of the view the worker’s current presentation was not related to the workplace accident 14 months previously and that the worker would not require restrictions related to their job duties as their current difficulties were not related to the workplace accident.
On March 1, 2019, the WCB advised the worker their entitlement to benefits would end on March 8, 2019 as it had been determined they had recovered from their compensable injury. The worker requested reconsideration of the WCB’s decision to Review Office on May 13, 2019 noting they had not recovered from their injury and further, their continued performance of repetitive job duties was not allowing their injury to heal. Review Office found on July 8, 2019, that responsibility would not be accepted for the worker’s right elbow difficulties after March 8, 2019, relying upon the opinion of the WCB’s medical advisor that the worker sustained an acute right elbow injury in the environment of a chronic condition and the worker’s current difficulties were not related to the November 27, 2017 workplace accident.
On August 29, 2019, the worker submitted additional information to Review Office, requesting the July 8, 2019 decision be reconsidered. The worker provided a detailed chronology of the claim and a letter dated August 20, 2019 from the worker’s treating orthopedic specialist in support of the worker’s request. On October 23, 2019, Review Office again determined responsibility would not be accepted for the worker’s right elbow difficulties after March 8, 2019, noting the worker’s treating healthcare providers had reported the worker had a chronic condition with respect to their right elbow. Review Office also noted the worker had bilateral elbow difficulties which typically suggested a non-work related cause as both arms are generally not used equally when performing job duties, and concluded the worker had an acute injury in the environment of a chronic condition and that the worker’s current difficulties were not related to the workplace accident.
The worker’s representative provided Review Office with new medical information from the worker’s treating orthopedic specialist on March 24, 2020 and requested Review Office again reconsider the decision. The specialist noted the worker’s “…diagnosis of lateral epicondylitis has never completely resolved and has become a chronic condition. My opinion is that this patient has persistent symptoms of chronic lateral epicondylitis and these conditions don’t always completely resolve without potential surgical intervention…”. The representative argued that the worker was continuing to experience right elbow difficulties and should be entitled to further benefits.
On April 21, 2020, Review Office again determined responsibility would not be accepted for the worker’s right elbow difficulties after March 8, 2019. Review Office acknowledged the worker continued to experience right elbow difficulties; however, Review Office found the evidence did not support the worker’s difficulties, almost two and a half years later, could be related to the performance of repetitive job duties for a short period of time on November 27, 2017.
The worker’s representative filed an appeal with the Appeal Commission on May 28, 2020. A videoconference hearing was arranged and held on April 15, 2021. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 19, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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's Board of Directors has established WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the 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 Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury, but that when a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The Policy allows for consideration of evidence concerning the progression of a pre-existing condition based on statistical norms or predictions based on the best available data. The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition.
The worker appeared in the hearing represented by a worker advisor. The worker advisor provided a written submission in advance of the hearing and made an oral submission in the course of the hearing. The worker provided testimony in response to questions posed by their representative and by members of the appeal panel.
The worker’s position is that the WCB should accept responsibility for the worker`s right elbow difficulties after March 8, 2019 as a consequence of the compensable workplace accident of November 27, 2017.
The worker advisor provided the panel with a summary of the medical findings and investigations from the date of the compensable injury through to the worker’s surgery in August 2020, noting that the worker had an ongoing loss of earning capacity resulting from the continuing effects of the injury and the employer’s inability to provide light duties after August 2019.
The worker advisor referenced information provided to the panel in advance of the hearing as confirming that lateral epicondylitis can persist beyond 6-12 months and that when it does, surgery may be indicated.
With respect to the worker’s pre-accident upper limb issues, the work provided evidence that they experienced tingling and stiffness in their fingers after a back injury in 2005. The worker described numbness, tingling and stiffness from their arm into their hands that began inside the elbows but was not of itself, an elbow problem. The worker stated that their pain after November 27, 2017 was different than the elbow symptoms experienced before that date.
In terms of job duties, the worker confirmed that they were working modified duties since 2016 as a result of an unrelated health issue. In those modified duties, the worker would use a hammer to clean deposits off a table. This took approximately 20-30 minutes and did not occur daily. The job duties on November 27, 2017 that resulted in the compensable injury related to forceful use of a hammer to stamp approximately 200 items and required 8-10 hits per item. The worker also noted that after the injury occurred, continuing to work, even on light duties, caused their healing to be impaired as the job duties irritated the elbow.
In response to the additional information obtained by the panel, the worker advisor provided a further submission in writing. In that submission, dated June 8, 2021, the worker advisor stated that the further medical reporting supports the worker’s position that they had not recovered from the compensable diagnosis of right lateral epicondylitis as of March 8, 2019. The worker advisor relied in particular upon the chart notes and documents provided by the sport medicine physician as well as the operative and post-operative reporting which confirms the diagnosis of right lateral epicondylitis. Of note, the orthopedic surgeon provided an opinion that the worker’s symptoms may reoccur if the worker returns to heavy labour.
In sum, the worker’s position is that the WCB remains responsible for the worker’s diagnosis of right lateral epicondylitis beyond March 8, 2019 as the evidence confirms that the worker had not recovered from the effects of the compensable injury by that date.
The employer did not participate in the appeal.
The issue on this appeal is whether or not the WCB should accept responsibility for the worker`s right elbow difficulties after March 8, 2019 as being in relation to the November 27, 2017 accident. For the panel to grant the worker`s appeal, it would have to determine that the worker`s ongoing right elbow difficulties, beyond March 8, 2019 are a consequence of the compensable workplace injury that was incurred on November 27, 2017. For the reasons outlined below, the panel was unable to make such a determination.
The WCB in this case determined that although the worker continued to experience right elbow difficulties beyond March 8, 2019, the evidence did not support that those difficulties related to the performance of repetitive job duties for a short period of time on November 27, 2017 but did support a finding that that worker’s ongoing difficulties were related to the worker’s non-compensable and chronic elbow condition. The worker’s position, however, is that the ongoing right elbow difficulties indicate the worker has not recovered from and continues to be impaired by the right lateral epicondylitis that arose out of the work duties undertaken on November 27, 2017, beyond March 8, 2019.
The Act provides for compensation for injuries arising out of and in the course of employment, but for entitlement to such compensation to be established, there must be a causal relationship between the accident and the injury. While the Policy specifically allows for the WCB to also compensate an injured worker for the effects of an accident upon a pre-existing non-compensable condition, that entitlement only continues until such time as the worker has recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity and where the pre-existing condition has been enhanced as a result of compensable injury arising out of and in the course of the employment.
The accepted mechanism of injury arose out of the worker’s job duties performed November 27, 2017, which included approximately 1.5 hours of use of a 2-pound hammer to stamp tags, causing the worker to experience right elbow pain. When the worker first sought chiropractic treatment a week later, the initial diagnosis was of a strain/sprain injury to the worker’s right elbow. The WCB later accepted the diagnosis of right lateral epicondylitis on the basis of the specific job activities undertaken on this particular date but did not accept the worker’s claim on the basis of an occupational injury arising out of the worker’s ongoing performance of occupational duties.
The further evidence obtained by the panel after the hearing and shared with the worker included numerous medical reports predating the accident. The panel noted the worker sought medical attention from their treating family physician as recently as 5 days prior to the injury, on November 22, 2017 for “some paresthesia and numbness” in both hands as well as shooting pain to the elbows. The physician recorded findings of slight tenderness to palpation of the olecranon process, with no edema in either elbow, intact radial, ulnar and medial nerves, normal tone in upper limbs and full power, with “reflexes 2 plus symmetrical, sensation intact”, assessed “upper limbs paresthesia and numbness” and ordered bilateral elbow x-rays. The chart notes make no mention of any work-related cause for the symptoms. The family physician’s chart also included results from investigation of the worker’s bilateral hand paresthesia and night pain in April 2008 and February 2009, at which time a diagnosis of carpal tunnel syndrome was ruled out. As confirmed by the treating physiatrist in the report dated December 18, 2017, “[The worker] has had persistent symptoms for several years with normal nerve studies. [The worker] has neuralgia and symptoms of CTS without measurable impairment of nerve function. [Their] current symptoms are likely attributable to right lateral epicondylitis.”
Upon initial assessment by the sport medicine physician on January 31, 2018, the physician recorded the worker’s report of bilateral elbow pain greater on the right than left, located posteriorly and laterally with radiation to the worker’s forearm, with insidious onset, worsening with slight swelling with repetitive hammering, for 2 months. The physician found tenderness over the lateral condyle and forearm, as well as pain with resisted dorsiflexion and supination. The diagnosis was “right > left chronic lateral epicondylitis”.
The file record confirms the worker continued to seek medical treatment and by March 6, 2018, the treating family physician noted “much improvement” in the edema and tenderness of the worker’s right elbow and “fairly good” flexion-extension and pronation-supination. When the WCB chiropractic advisor reviewed the worker’s file and spoke with the treating chiropractor on May 2, 2018, they noted the worker continued with weekly treatment or more often as required. The treating chiropractor reported the worker had increased grip strength, reduced discomfort and more functional abilities in the workplace, although the worker continued to favour their right elbow with activity. The reporting confirmed the worker was improving and at work.
On May 16, 2018 the worker received a first injection from the sport medicine physician. When the worker next saw their family physician, on August 21, 2018, the family physician recorded no edema or erythema and minor tenderness to touch, with “fairly good” flexion-extension and pronation-supination and noted the worker’s report that the injection “worked somewhat well however the pain is now returning. Patient is at work with modified duties.” On September 17, 2018, the sport medicine physician reported improvement post-injection but worsening over recent months. On January 7, 2019, they reported continuing tenderness to the lateral epicondyle and pain with resisted supination and dorsiflexion. Physiotherapy was recommended.
On January 30, 2019 the WCB medical advisor reviewed the worker’s file and noted the worker’s diagnosis at that time was right lateral epicondylitis. The medical advisor noted that the natural history of this diagnosis was for recovery within 1-12 weeks and that the worker’s recovery was “beyond the normal recovery range at this point in time and likely not related to the compensable injury.” The medical advisor considered the initial mechanism of injury as well as the fact that nearly 14 months had passed since that injury and the noted involvement of left elbow pain and determined that the worker’s current presentation was “not likely related to the mechanism of injury” but to an alternate cause.
When the worker was assessed for physiotherapy on February 6, 2019, the diagnosis provided was “Acute on chronic lateral epicondylitis” and the physiotherapist, in a letter to the sport medicine physician dated March 15, 2019 outlined the worker’s report of receiving a cortisone injection from the sport medicine physician “...in the spring of 2018 which provided full resolution of [their] lateral elbow symptoms.” The symptoms reportedly returned in late 2018 and the worker stated that their symptoms occur with increased use of their right hand with hammering and tool use at work. The physiotherapist outlined their findings as follows:
“...positive Cozen’s, middle finger tests, as well as painful weakness with resisted wrist and finger extension. [The worker] was quite painful to touch on the lateral epicondyle. It should also be noted that on initial assessment, there were signs of mild C6 key muscle weakness with fatiguing weakness of [the worker’s] biceps resisted flexion, as well as stiff C5/6 and C6/7 segments into right rotation and sideflexion (sic). With these objective findings, [the worker] presented with lateral epicondylitis secondary to a facilitated C6 nerve root from chronic stiffness in [the] C5/6 segment.”
The physiotherapist also noted that with physiotherapy treatment the C6 nerve root issue resolved and the worker demonstrated “full strength of wrist extension/finger extension with no pain, negative cozens and middle finger tests” but the worker’s right elbow pain persisted with restricted movement. The physiotherapist noted the worker had plateaued in terms of treatment and speculated that there may be other issues at play, including “...moderate to significant osteoarthritis in [the worker’s] superior ulnar joint of the radial head which is likely related to the nature of [their] work repetitively hammering daily.” An x-ray taken April 8, 2019 revealed “...a small amount of calcification at the origin of the common extensor tendons possibly due to an underlying chronic tendinopathy.”
On April 23, 2019 the family physician again recorded minor tenderness on palpation with slightly improved flexion-extension and pronation-supination and assessed chronic elbow pain. On May 7, 2019 the sport medicine physician noted tenderness at lateral epicondyle but no swelling and administered a repeat injection. On July 29, 2019, the sport medicine physician noted the worker reported right elbow pain improved with injection and “ok on holidays, but worsening with return to work with lifting/hammering/twisting motions.” At that time, as the worker noted no light duties were available, the physician recommended the worker not return to work and referred the worker for assessment for surgery. On August 20, 2019, the sport medicine physician recorded right elbow lateral pain, limited function, variable but daily pain and that worker had been off work. The physician noted a “...separate issue with right elbow variable medial pain, with paresthesias of 4 5 digits worsening over many years” in addition to chronic lateral epicondylitis.
On December 2, 2019 the worker was assessed by another physiatrist who diagnosed mild ulnar neuropathy at the right elbow. The sport medicine physician, in chart notes dated January 27, 2020 noted the right elbow medial symptoms and diagnosis of mild ulnar neuropathy and recorded that the worker’s right elbow lateral pain is improving with less usage.
In a March 2, 2020 letter to the worker advisor, the sport medicine physician described the worker’s current diagnosis as:
“...persistent and refractory lateral epicondylitis. My clinical impression is that this is a continuum of [their] pain as a consequence to the injury...sustained in November of 2017. [The worker’s] right elbow symptoms have persisted despite treatment....In all examinations, this patient continued to have targeted tenderness at the right lateral condyle with weakness and pain or resisted supination and/or dorsiflexion. This would indicate that [the] diagnosis of lateral epicondylitis has never completely resolved and has become a chronic condition.”
A March 3, 2020 letter from another physiatrist contains findings that are noted to demonstrate no evidence of right median neuropathy at the wrist or of right ulnar neuropathy at the wrist or elbow. The physiatrist concluded: “For the most part, I think [the worker] is simply suffering from multifocal tendinopathy. [The worker] has quite a widespread picture of tendinopathy. I wonder if these might represent multifocal enthesopathies.” The physiatrist proposes a referral to a rheumatologist.
The worker was assessed by an orthopedic surgeon who reported on September 11, 2020 findings of tenderness over the lateral epicondyle with positive provocative testing for lateral epicondylitis and proposed a surgical release, in conjunction with other non-compensable surgical procedures. That surgery took place on October 15, 2020 and follow up reports from the surgeon indicate the worker continued to have symptoms related to lateral epicondylitis post-surgery, with slow improvement.
In considering the totality of the medical evidence before us, the panel notes the repeated remarks of the treating family physician that the worker has multiple health concerns and chronic pain in multiple sites and presents as a “complex case”. This is clear from the medical records reviewed by the panel. There is evidence the worker has and has had multiple health issues before and since the date of this claim. There is evidence before the panel that the worker had prior bilateral concerns with their upper limbs. The evidence detailed above outlines multiple investigations related to symptoms of paresthesia in the worker’s fingers, shooting pain to the worker’s elbows, right elbow medial, posterior and lateral pain, with a variety of potential diagnoses considered.
The worker advisor outlined the worker’s position that the medical reporting after March 8, 2019 confirms that the worker’s diagnosis of right lateral epicondylitis remained ongoing and symptomatic beyond that date. The WCB medical advisor also found on January 30, 2019 that the worker’s diagnosis at that time was right lateral epicondylitis. There is no evidence that this diagnosis resolved by March 8, 2019, and in fact, there is ample evidence that the condition was chronic. In fact, we note the sport medicine physician already described the worker’s right elbow condition as chronic on first assessment on January 31, 2018, just two months following the date of accident.
However, the issue the panel must determine is whether or not the worker’s continuing right elbow condition beyond March 8, 2019 was related to the compensable injury of November 27, 2017. The WCB medical advisor was of the view that the acute injury to the worker’s right elbow of that date ought to have resolved given more than 14 months had passed and that worker’s current presentation was “not likely related to the mechanism of injury” but to an alternate cause. In fact, the medical advisor provided an opinion that the normal recovery period for such injury was 1 – 12 weeks. We accept and rely upon the January 31, 2019 opinion of the WCB medical advisor in this regard.
The evidence before the panel also proposes a number of other potential concerns that could account for the range of the worker’s right elbow symptomatic presentation beyond March 8, 2019, which are not directly related to the mechanism of injury on November 27, 2017.
In light of all the evidence before the panel, we find that the mechanism of injury on November 27, 2017 as accepted by the WCB and described by the worker to the panel in the course of the hearing is consistent with an acute injury to the worker’s right elbow that occurred in an environment of chronic bilateral upper limb problems that include chronic right lateral epicondylitis. The panel noted that the worker’s condition did not remain static through the period following the accident but is seen to improve in the months following the injury but that later there is evidence of increase of symptoms with greater activity, including light duty work activities as well as evidence of periods of improvement with treatment and rest. The panel finds that this variability of symptoms beyond the initial period of recovery is not consistent with an unresolved acute elbow injury but more likely points to the natural progression of a chronic elbow condition temporarily aggravated by an acute injury. In other words, while the acute right elbow injury resolved with time, the non-compensable pre-existing condition continued to deteriorate over time.
Taking into account the evidence of an active bilateral elbow condition predating the compensable injury, as well as the accepted mechanism of acute right elbow injury on November 27, 2017, the evidence of recovery norms for an injury such as this and the natural progression of chronic epicondylitis, the panel finds on the standard of a balance of probabilities that the worker’s right elbow difficulties beyond March 8, 2019 do not relate to the accident of November 27, 2017.
Therefore, responsibility should not be accepted for the worker’s right elbow difficulties after March 8, 2019 in relation to the November 27, 2017 accident. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of July, 2021