Decision #134/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after August 27, 2020. A videoconference hearing was held on October 6, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after August 27, 2020.
The worker is entitled to benefits after August 27, 2020.
The worker filed a Worker Incident Report with the WCB on January 3, 2020 reporting an injury to their right wrist as a result of an incident at work on January 2, 2020. The worker described that in attempting to open a door with a handle that was frozen, they “…felt pain and a pop” in their right wrist. In an initial physiotherapy assessment on January 3, 2020, the worker reported that they “Jammed wrist while reached up to open…door that was frozen.” The physiotherapist recorded findings of mild swelling with no bruising and tenderness in the mid-proximal carpal bones of the worker’s right wrist and made a diagnosis of a Grade 1-2 wrist sprain. The physiotherapist recommended the worker remain off work as their injury was “quite acute” and use a wrist support brace.
In discussion with the WCB on January 13, 2020, the worker confirmed the mechanism of injury and advised they had returned to work, on modified duties wearing the wrist support brace. On February 10, 2020, the WCB was advised the worker aggravated their wrist while pushing a bar into a lock position on February 6, 2020.
At a February 25, 2020 appointment, the physiotherapist recommended physical restrictions of continuing to use brace as needed, no lifting above shoulder/chest greater than 15 pounds, and no pushing greater than 15 pounds. The WCB provided these restrictions to the employer on March 2, 2020.
On initial assessment on March 13, 2020, a sport medicine physician noted the worker's report of "pain to dorsum of wrist, pain with wrist extension, unable to put weight through it", offered a diagnosis of a right wrist sprain and referred the worker for an MRI as symptoms continued despite physiotherapy.
On March 17, 2020, the employer advised the WCB due to the pandemic, the worker's light duties could not be accommodated and as a result, the WCB placed the worker on wage loss benefits beginning March 20, 2020.
An MRI study of the worker's right wrist conducted March 26, 2020 indicated a small partial-thickness tear of the scapholunate ligament and a dorsal ganglion. On reviewing the MRI on March 31, 2020, the treating sport medicine physician recommended the worker continue use of the wrist brace as well as home exercises provided by their physiotherapist, noting that due to the pandemic, the physiotherapy office was closed. The physician noted the worker's restrictions of using a brace as needed, no lifting/push/pull more than 15 pounds, and no lifting over shoulder-height greater than 15 pounds.
A WCB medical advisor reviewed the worker’s file on April 2, 2020 and opined that the current diagnosis was a partial tear of the dorsal scapho-lunate ligament, noting this was a more precise description of the injury than a Grade 2 wrist sprain but described the same thing. The medical advisor confirmed the diagnosis was accounted for in relation to the January 2, 2020 workplace accident and that the restrictions were appropriate.
The worker continued with physiotherapy treatment. On June 29, 2020, a further WCB medical advisor review supported restrictions of limited repetitive, weighted pushing using the right hand to be reviewed in two to four weeks.
On July 8, 2020, the worker advised the WCB that the treating physiotherapist recommended referral to a specialist/hand therapist. On first assessment by the hand therapist on July 31, 2020, the worker reported pain in their wrist with load and twist, grip and twist, and pull and carry. The therapist diagnosed scapholunate instability in the worker's right wrist and queried a 3rd digit sagittal band injury.
The WCB medical advisor reviewed the worker's file on August 20, 2020 and provided an opinion that the July 31, 2020 assessment did not support the worker had symptoms related to their scapholunate ligament, and as such, no further treatment or restrictions were required. The medical advisor also concluded treatment for the sagittal band injury was not medically accounted for in relation to the January 2, 2020 workplace accident. On August 20, 2020, the WCB advised the worker that it had determined they were recovered from the workplace accident and their entitlement to benefits would end on August 27, 2020.
On September 2, 2020, the worker's treating sport medicine physician provided a letter to the WCB outlining the worker's need for ongoing benefits, including physiotherapy and noted the worker was referred to a plastic surgeon for possible surgery. On September 3, 2020, the WCB advised the worker the information from the sport medicine physician was reviewed but there would be no change to the earlier decision. On October 2, 2020, the WCB received chart notes detailing treatment by the hand therapist on August 6, 14, and 21, 2020. The WCB confirmed by decision letter to the worker on October 6, 2020 that the worker was not entitled to benefits after August 27, 2020.
The worker requested reconsideration of the WCB's decisions to Review Office on October 15, 2020, noting they continued to experience difficulties as a result of the workplace accident. On December 3, 2020, the employer's representative provided a submission in support of the WCB's decision, and the worker's representative provided a response on January 5, 2021. Review Office determined on January 21, 2021 that the worker was not entitled to benefits after August 27, 2020, on the basis that the medical evidence on file supported a finding that the worker's compensable injury was a Grade 2 sprain. As the mildest form of scapholunate ligament tear, improvement was expected within a few weeks of injury, and as such, Review Office was unable to account for the worker's ongoing difficulties and therefore the worker was not entitled to benefits after August 27, 2020.
The worker's representative filed an appeal with the Appeal Commission on March 23, 2021 and a videoconference hearing was arranged for October 6, 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. Section 39(2) of the Act sets out that wage loss 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 worker appeared in the hearing represented by a worker advisor who made submissions on behalf of the worker and relied upon a written submission made in advance of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and in response to questioning by members of the appeal panel.
The worker’s position, as outlined by the worker advisor, is that the worker had not recovered from the injury sustained in the workplace accident but continued to require medical aid for the compensable injury beyond August 27, 2020. The worker advisor outlined to the panel how the worker sustained the grade 1 to 2 sprain injury to their right wrist and the progress made in the period of recovery, noting that although the WCB determined, initially on August 20, 2020 that the worker was not entitled to benefits after August 27, 2020, the evidence confirms that the worker had not recovered by that date and that the worker continued to require medical treatment for the compensable injury beyond that date.
With respect to the dorsal ganglion cyst identified by the March 26, 2020 MRI study, the worker’s position is that it is impossible to know if there was a cyst prior to the workplace accident as there is no previous imaging of the worker’s right wrist but there is no evidence of previous right wrist complaints. If the ganglion cyst pre-dated the right wrist injury, it was asymptomatic and did not cause the worker any issues. The June 2021 opinion of the hand surgeon is that the ganglion, in combination with the scapholunate tear caused an aggravation or a combined effect on the worker's right wrist, and further that the ganglion did develop as a result of the right wrist trauma and scapholunate tearing.
The worker advisor outlined that when the WCB medical advisor last reviewed the worker’s file on August 20, 2020 the information from the treating sport medicine physician was not yet available and this information, when provided to the WCB was never reviewed or considered by the WCB medical advisor. Further, the chart notes recorded by the hand therapist for treatment in August 2020 also were never provided to the WCB medical advisor for comment or review.
Although the medical advisor dismissed the hand therapist’s query on initial assessment as to the worker’s D3 sagittal band symptoms as being unrelated to the compensable injury, the worker’s position is that the D3 sagittal band injury first identified on July 31, 2020 was related to or caused by some of the physiotherapy exercises that the previous physiotherapist had provided. The worker advisor noted that these symptoms were not evident prior to commencing physiotherapy and subsided after the worker’s physiotherapy ended, as confirmed by the sport medicine physician on December 17, 2020.
The worker advisor submitted that the evidence on file confirms that the original compensable injury was still symptomatic at the time benefits ceased, and that the treating medical professionals agreed that the worker required ongoing treatment for that injury. The treating professionals continued to propose and recommend further treatment including specialized hand physiotherapy, and referral to a hand surgeon for further follow up. Although the WCB medical advisor offered an opinion that the original compensable injury, the scapholunate ligament tear, was no longer symptomatic, this is not reflected by the information provided by the treating professionals. The medical advisor relied only upon their file review and never examined the worker, failed to follow up with the treating professionals that did not agree with this opinion, and was never provided with the further medical information available after August 20, 2020. The worker advisor argued that for these reasons, the opinions of the treating professionals ought to be given greater weight than the opinion of the WCB medical advisor in this claim.
In answer to questions posed by the worker advisor, the worker outlined the nature of their symptoms immediately following the injury and in the subsequent months, how the injury to their right wrist was aggravated by weight-bearing activity in work, such as opening latches, lifting and placing items on shelves and closing equipment. The worker described feeling pain in their right 3rd finger which was aggravated by physiotherapy exercises and subsided after they discontinued physiotherapy. The worker indicated actively avoiding activities that they knew would aggravate their right wrist, where possible and that when unavoidable, the result would be pain for several days to a week. The worker noted that the hand surgery recommended in June 2021 took place on October 1, 2021, and that the recovery from that procedure is ongoing.
In sum, the worker’s position is that the evidence supports, on the standard of a balance of probabilities, that the worker continued to suffer symptoms of and require treatment for the compensable injury after their benefits were terminated on August 27, 2020. Therefore, the worker should be entitled to benefits beyond that date and the appeal should be granted.
The employer did not participate in the hearing.
The question for the panel to determine is whether the worker is entitled to benefits after August 27, 2020. In order to grant the worker’s appeal, the panel would have to determine that the worker was not recovered from the compensable injury sustained on January 2, 2020 as of August 27, 2020. For the reasons set out below, the panel was able to make such a finding and the worker’s appeal is granted.
The worker’s position, as noted, is that there is no evidence to support the WCB’s determination that the worker was recovered from the compensable right wrist injury by August 27, 2020. The panel therefore carefully reviewed the medical opinions that supported the WCB decision.
The panel noted that a WCB medical advisor provided an opinion on July 31, 2020 that the worker continued to recover from the compensable workplace injury, but that it appeared that their recovery had plateaued. Ongoing physical restrictions were identified at that time, to be reviewed upon receipt of the report from the referral to the hand therapist. The medical advisor noted that the worker’s recovery was by that time “prolonged beyond the typical recovery norms” of 6-8 weeks post injury. The medical advisor also provided an opinion that the ganglion first identified in the MRI study of March 26, 2020 was pre-existing.
The WCB medical advisor again reviewed the worker’s claim file on August 20, 2020 upon receipt of the initial assessment report from the hand therapist. The hand therapist’s report of July 31, 2020 indicated scapholunate instability in the worker's right wrist and queried a 3rd digit sagittal band injury. The physiotherapist noted scapholunate laxity in the worker’s right wrist with reduced grip strength and imposed restrictions for review in two weeks. On considering this report, the WCB medical advisor stated there were no examination findings documented in relation to the wrist other than “slight laxity of the right wrist” and concluded that this finding did not medically support that the worker’s scapholunate ligament remained symptomatic.
The panel noted that the WCB medical advisor’s opinion of August 20, 2020 considered only the report on initial assessment by the hand therapist to the WCB but did not consider the subsequent treatment reports, which were not provided to the WCB until October 2, 2020. The medical advisor further concluded based upon the file information available at that time that the D3 sagittal band injury was not related to the compensable injury and further that the scapholunate ligament injury was no longer symptomatic and therefore did not require further treatment.
The panel considered the chart notes from the August 2020 physiotherapy treatments by the hand therapist, noting that on each of the three treatment dates, there is report of a positive scapholunate Ballottement test and diagnosis of scapholunate partial tear, right wrist sprain and possible sagittal band injury at the worker’s 3rd digit. Although improvement is noted with treatment, the chart notes indicate the worker continued to experience symptoms of wrist pain and swelling between treatments through August 21, 2020. Further, the panel noted that the chart notes reference additional findings from the July 31, 2020 initial assessment that are not included in the report of that date to the WCB. These findings include mild swelling through dorsal right wrist and tenderness on palpation through the scapholunate interval.
The panel noted that the opinion of the WCB medical advisor provided on August 20, 2020 stands in contrast to the subsequent opinions of the sport medicine physician, the occupational health physician and the hand surgeon, each of whom assessed the worker in person and who are in agreement that the worker continued to demonstrate ongoing symptoms of the scapholunate injury beyond August 27, 2020.
The sport medicine physician stated on September 2, 2020 that the March 26, 2020 MRI study
“…showed a scapholunate ligament tear and a ganglion cyst. There is the possibility that the ganglion cyst may have been pre-existing however it would then be deemed non-contributory to [the worker’s] current symptoms as prior to the accident [they] did not have any issues with the right wrist. [The worker’s] pain and exam findings are consistent with a scapholunate ligament injury and [the worker] would benefit from ongoing physiotherapy.”
In a further opinion dated December 17, 2020, the sport medicine physician confirms this earlier opinion and that the worker’s wrist symptoms continued at that time. The physician further noted that while there were no findings of pain along D2/D3 initially, the symptoms may be related to the worker’s physiotherapy given their resolution when physiotherapy was discontinued.
The opinion of the occupational health physician provided to the worker advisor on March 18, 2021 outlines the treatment history for the present injury and provides findings from a January 18, 2021 clinical assessment of the worker’s hands and arms. The physician reported that:
“When I performed the scapholunate shift test on the right hand…I could appreciate 5-6 mm of movement of the scaphoid on a fixed lunate, with pain felt in the proximal dorsum over the carpals. I found no laxity performing [the] same test on the left uninjured wrist. I did not elicit pain or clunking performing resisted finger extensions, nor with resisted deviation of the wrist combined with fist clenching as was described in the July 2020 assessment. The dorsal ganglion…was neither visible nor palpable in my exam.”
The occupational health physician concluded, based on their assessment and interview of the worker and review of the WCB claim file documents, that “the worker has scapholunate instability that is a direct result of [the] January 2, 2020 work injury and that causes ongoing functional limitations.”
The panel noted that although the subsequent medical opinions offered by treating professionals to the WCB do not support the WCB medical advisor’s most recent opinion, there are no subsequent WCB medical advisor reviews on file.
The worker’s position is that their ongoing right wrist difficulties beyond August 27, 2020 relate to the compensable workplace injury and that the evidence confirms the injury remained symptomatic and continued to require treatment beyond that date. The panel agrees and finds that the evidence offered by the treating medical professionals confirms the worker was not recovered from the effects of the compensable workplace injury by August 27, 2020 but continued to experience ongoing scapholunate symptomology beyond that date.
With respect to the worker’s submissions as to the development and impact of both the ganglion cyst and the possible D3 sagittal band injury, the panel noted that the relationship of these conditions to the accepted compensable injury has not been specifically adjudicated and further, as noted above, that the additional medical evidence offered after August 20, 2020 has not been considered by the WCB. We therefore make no determinations in this regard.
Considering the totality of evidence before us, the panel is satisfied, on a balance of probabilities, that the worker was not recovered from the compensable injury sustained on January 2, 2020 as of August 27, 2020. Therefore, the worker is entitled to benefits after August 27, 2020 and the appeal is granted.
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 19th day of November, 2021