Decision #41/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits beyond November 13, 2019. A teleconference hearing was held on March 2, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after November 13, 2019.
That the worker is entitled to wage loss and medical aid benefits after November 13, 2019.
The worker filed a Worker Incident Report with the WCB on June 13, 2019, reporting an injury to his right elbow that happened at work on May 26, 2019 and was reported to the employer on June 8, 2019. The worker noted that he started having symptoms approximately two weeks prior to June 8, 2019, after repetitive tying of rebar, swinging sledge hammers and hammering nails. The worker reported he felt an ache, then a sharp pain that gradually escalated. The worker noted he returned home from the work location on June 3, 2019 and sought medical treatment on June 8, 2019.
The worker was seen at a minor injury clinic on June 8, 2019, and reported to the attending sports medicine physician that he had progressive pain to his lateral right elbow after repetitive work over the previous two weeks. He reported being unable to perform his job duties which involved hammering or lifting heavy objects. After examining the worker, the sports medicine physician noted no swelling and full range of motion in the worker's elbow, but tenderness in the lateral epicondyle. The physician diagnosed the worker with lateral epicondylitis, and recommended physiotherapy and that the worker remain off work for one week, then return to work with restrictions.
On June 19, 2019, the WCB received the Employer's Accident Report, which indicated the accident occurred on May 29, 2019 and was reported to the employer on June 10, 2019. The employer noted the worker indicated he was "…pounding in pegs for forming a…pad and also installing nails to construct the form. After a while of doing the same task the employee noticed that his right elbow was getting sore." It was further reported that the worker did not report the injury to the employer until after he had returned home and sought medical treatment.
The worker attended a follow-up appointment with the sports medicine physician on June 24, 2019, reporting pain in his right lateral elbow which was aggravated with repetitive use of his right arm. The worker noted he had not yet begun physiotherapy, but the modified duties at work were helpful. The physician reported findings of no swelling, full range of motion in the elbow, pain with resisted wrist extension and long finger extension, and tenderness in the lateral epicondyle. Physiotherapy, modified duties at work, and a topical pain relief medication were recommended.
The WCB contacted the worker on June 25, 2019 to discuss the claim. The worker confirmed he began noticing his symptoms at the end of May 2019 with a gradual onset, after repetitive use of various types of tools. The worker described feeling pain with maybe a little bit of burning and tingling sensation in his right elbow. The worker advised that he thought his symptoms would improve and that was why he waited before seeking treatment and reporting his injury to the employer. The worker also advised that there were witnesses to his difficulties, and provided their names, noting he would get back to the WCB with the witnesses' contact information. The worker further indicated that he agreed with the employer's reference to the date of accident as May 29, 2019. On June 27, 2019, the WCB advised the worker that given the delay in reporting the injury and seeking medical treatment, they were unable to establish an accident occurred at work on May 29, 2019, and his claim was not acceptable.
On August 15, 2019, the worker's representative requested that the WCB further investigate the worker's claim. The representative noted the worker had provided the WCB with the names of witnesses and asked that the WCB contact the witnesses. The employer provided the WCB with the contact information for the witnesses, and on September 9, 2019, the WCB spoke with the witnesses. The first witness the WCB spoke to confirmed that the worker had complained to him about his elbow, and that he believed this was in about December 2018 or January 2019. He advised that the worker initially just said that his elbow was sore, but towards the end of their time working together, he was "…walking around holding it." The second witness advised the WCB that he had worked with the worker until late May 2019 and the worker had advised him that his elbow was sore, noting it was tightening up. The witness said they were looking the worker's symptoms up on the computer and diagnosing his symptoms as tendonitis.
The last witness the WCB spoke to was the worker's supervisor, who advised that the worker had complained of his elbow being sore but had not mentioned that anything in particular had occurred. The supervisor said they were working really hard tying rebar and pouring cement, that everyone had aches and pains and to him it was like everyone else. He noted that nothing specific was really said, which was typical of the worker. By letter dated September 9, 2019, the WCB advised the worker that they had reviewed the information from the witnesses, but there would be no change to the decision that his claim was not acceptable.
On October 28, 2019, the worker requested that Review Office reconsider the WCB's decision. The worker noted that he reported his injury to his co-workers and his employer, sought medical attention, and reported the workplace incident to the WCB. The worker further noted that his injury was caused by repetitive movements from the type of work duties he performed on a daily basis with the employer. On December 9, 2019, the employer's representative provided a submission in support of the WCB's decision.
On January 13, 2020, Review Office determined that the worker's claim was acceptable. Review Office stated that they were satisfied with the reasons the worker provided regarding delays in seeking medical attention and reporting the injury. Review Office found that the worker complained to co-workers regarding his right elbow while at work, and the supervisor noted the job duties were laborious. Review Office found that the worker sought treatment on June 8, 2019 and was diagnosed with lateral epicondylitis. Review Office accepted that diagnosis, and found it was consistent with the work activities the worker described.
On January 20, 2020, the WCB spoke with the worker and requested a status update. The worker advised he had received a steroid injection in his elbow in October 2019, and his elbow had been "feeling pretty good" since then. The worker further advised that he had been performing his full duties, but no heavy labour, and had been attending multiple medical appointments since September 2019. The WCB requested and received copies of work capability forms completed by the worker's treating sports medicine physicians between June and November 13, 2019, when the worker returned to his regular duties, along with medical reports for the same time period. In a discussion with the worker on January 23, 2020, the WCB advised the worker that his claim would be closed, but that he should contact the WCB again if he had further difficulties.
On January 27, 2020, the worker contacted the WCB and advised that he was having pain in his elbow again and would be seeking further medical treatment. On February 4, 2020, the worker was seen by his treating sports medicine physician, who noted the worker reported a gradual increase in his symptoms since the injection in October 2019, and found that the worker had tenderness in the lateral epicondyle and pain with resisted extension in the wrist. The physician administered a further injection and recommended the worker continue working light duties.
The worker's file was reviewed by a WCB sports medicine advisor on February 26, 2020. The sports medicine advisor opined that the worker's current diagnosis was right lateral epicondylitis, and noted that a November 13, 2019 report from the treating sports medicine physician indicated the worker's elbow was much better and settled after the October 2019 injection. The worker's physician indicated the worker was not performing heavy labour at the time of the February 4, 2020 injection, and no trauma or cause for the worker's injury was noted. The WCB sports medicine advisor opined that the current diagnosis and treatment for that diagnosis were not medically accounted for in relation to the May 29, 2019 workplace injury.
On March 10, 2020, the WCB advised the worker that they had determined his current symptoms were not related to the May 29, 2019 workplace accident and his entitlement to wage loss and medical aid benefits would end as of March 4, 2020. A revised decision letter was sent to the worker on March 17, 2020, indicating the WCB would also approve his time loss for a medical appointment on March 4, 2020, but he was not entitled to further benefits after that date.
On June 8, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that he had not fully recovered from the workplace accident, that the injections were temporarily effective and he was still experiencing pain and difficulties due to his injury, and that he had been referred to an orthopedic surgeon for further treatment. On September 17, 2020, the employer's representative provided a submission in support of the WCB's decision, and the worker provided a response to that submission on October 2, 2020.
On October 7, 2020, Review Office determined that there was no entitlement to wage loss or medical aid benefits beyond November 13, 2019. Review Office accepted the WCB sports medicine advisor's opinion that the treating physician's report that the worker's elbow was "much better" and "settled" after receiving an injection in October 2019 implied that the worker's injury was functionally recovered. Review Office found that there was no continued or causal relationship between the further complaints made by the worker and the workplace accident. Review Office therefore concluded that they were unable to establish the worker sustained a further loss of earning capacity or required medical aid to provide relief necessary to cure an injury resulting from the original accident, and that the worker was not entitled to wage loss or medical aid benefits beyond November 13, 2019.
On August 6, 2021, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
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.
WCB Policy 22.214.171.124.10, Recurring Effects of Injuries and Illness (Recurrences), deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."
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 and his representative responded to questions from the panel.
The worker's position was that he had not recovered from his WCB accepted compensable injury as at November 13, 2019, and is entitled to wage loss and medical aid benefits beyond that date.
The worker's representative advised that they were relying largely on the written submission and attached documentation provided in advance of the hearing. The representative specifically noted that while the medical documentation referred to additional upper extremity conditions, the appeal was limited to consideration of further benefits relating to the worker's right lateral epicondylitis condition.
The worker's representative submitted that the issue on appeal is relatively straight-forward. The representative noted that the worker has an accepted claim for a right elbow injury he suffered in late May 2019 while performing physically demanding work, and that there is no doubt as to the nature of the compensable injury, being right lateral epicondylitis or tennis elbow. The representative further submitted that there is medical consensus between the attending sports medicine physician and the WCB's sports medicine advisor that the worker's medical presentation in February 2020 was consistent with right lateral epicondylitis.
It was submitted, therefore, that the primary or only contentious issue in the appeal was whether the worker's right lateral epicondylitis in February 2020 was related to the same condition for which the WCB accepted responsibility through to November 13, 2019. The worker's representative stated that, in their view, the available evidence supported that such a relationship existed, by way of injury continuance or recurrence, and the compensable injury required surgical intervention, which was eventually performed in December 2021.
The worker's representative submitted that the most compelling evidence in support of their position came from the sports medicine physician who performed right elbow cortisone injections in October 2019 and February 2020 and had provided a letter dated December 4, 2020. The representative noted that the physician explained in his December 4, 2020 letter that the recurrence or re-emergence of tennis elbow symptoms within roughly three months post-injection was not uncommon, even absent further exposure to provocative risk factors considered capable of initially causing the condition. In other words, the worker's post-injection experience formed part of the natural history of tennis elbow, and when such injections do not result in permanent or long-term relief, a surgical consultation may follow, as occurred in the worker's case.
The worker's representative submitted that temporary symptomatic relief is not the same as injury resolution, as clearly explained by the treating sports medicine physician. The representative submitted that as also explained by the treating sports medicine physician, temporary symptomatic relief of roughly approximately three months is common with such injections, and unfortunately, the benefit the worker obtained from the October 2019 injection was not long-lasting or permanent. The benefit of that injection wore off in January 2020 and led to further corticosteroid injections in February and July 2020, which provided less benefit to the worker.
The worker's representative submitted that the worker had a prolonged experience with his injury and exhausted non-operative methods to try and treat his injury, none of which provided permanent or long-term relief. The worker was referred to an orthopedic surgeon who recommended surgery that was eventually performed in December 2021. The representative noted that they had submitted a copy of the worker's medical chart for 2021, which included the December 3, 2021 operative report showing that the worker underwent a right tennis elbow debridement. It was submitted that this surgical procedure, and any associated time loss and medical aid that followed, were the responsibility of the WCB, and that the issue before the panel was broad enough to allow the panel to address the compensability of the worker's elbow surgery.
The worker's representative further asked that the panel attach less weight to the February 26, 2020 comments from the WCB sports medicine consultant, who appeared not to have acknowledged the likelihood or even possibility of a recurrence or the possibility of the October 2019 injection having provided only temporary relief.
In conclusion, it was submitted that the evidence supported that while the worker's compensable tennis elbow injury had improved symptomatically by mid-November 2019, it had not resolved, and the worker required more invasive treatment by way of surgery which occurred in December 2021. The worker's representative submitted that the January 2020 re-emergence of tennis elbow symptoms was predominantly attributable to the accepted compensable injury, and asked that the panel grant the worker's appeal.
The employer was represented by an advocate, who made an oral submission at the hearing.
The employer's position was that they supported the Review Office decision that the worker had recovered from his right elbow epicondylitis condition, and the worker's appeal should be dismissed.
It was submitted that the medical documentation shows the worker had a relatively mild case of epicondylitis which responded well to treatment. The worker's symptoms subsided for a full three months following the October 2019 injection, and the worker was cleared to resume full duties by the attending physician.
The employer's representative submitted that corticosteroid injection is the cornerstone of care for lateral epicondylitis, its objective being to relieve pain and reduce inflammation thereby allowing sufficient rehabilitation and a return to activity. It was submitted that the vast majority of cases resolve with conservative treatment, rest and avoidance of exacerbating activity, and that this is what occurred in the worker's case.
The employer's representative noted that the worker was not in a labouring position three months after he received his injection, when he complained of new symptoms. He had made no complaints to the employer, did not do heavy work or any work which would have exacerbated his condition, and his attending sports medicine physician had said he had recovered. He had three full months without any difficulties. In the employer's view, the worker suffered another bout of epicondylitis at that time which was not connected to the compensable injury or any subsequent workplace activity.
The employer's representative asked that the panel accept the opinion of the WCB sports medicine advisor, who indicated that the worker had functionally recovered in the fall of 2019, that there was no further trauma or cause for injury, and that the worker's ongoing symptoms were not medically accounted for with respect to the compensable injury.
The employer's representative submitted that the information the worker's representative had provided in advance of the hearing did not provide a full picture. The representative submitted that while the worker's representative asked that the panel address whether the later surgery was compensable, that issue had not been addressed by the WCB. The representative noted that the Appeal Commission's Rules of Procedure provide that where an issue that is raised has not been previously determined by the WCB, the issue is to be referred to the WCB for determination.
The employer's representative further submitted that the panel did not have sufficient information to make an informed decision on that issue. In addition, the representative noted that the medical evidence indicates the worker had other systemic conditions with his right arm which were non-compensable, as well as a knee claim and surgery, and that this further complicated the case.
In conclusion, it was submitted that the worker had recovered from his compensable injury and the fact that he started to experience symptoms again, as well as other issues with his right arm, points to a non-compensable cause of his symptoms. The employer therefore submitted that the Review Office decision was correct, and asked that the panel affirm that decision.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after November 13, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer from the effects of his compensable right lateral epicondylitis condition beyond November 13, 2019. For the reasons that follow, the panel is able to make that finding.
The worker had an accepted claim for right lateral epicondylitis as a result of his May 29, 2019 workplace accident. The evidence shows that the worker attempted conservative treatment for several months, but his right lateral epicondylitis condition did not resolve. The worker then underwent a cortisone injection on October 18, 2019.
Based on our review of the evidence which is before us, the panel is satisfied that the cortisone injection provided relief, but that such relief was only temporary, and that the worker experienced a continuation or recurrence of that condition once the effects of that injection wore off.
While the follow-up report from his treating sports medicine physician dated November 13, 2019 indicated that the worker was "…sore for few days, now much better, almost gone" and that worker's symptoms had "settled", the panel is not satisfied that this meant the worker had recovered from his compensable injury or his condition had resolved.
The follow-up report from the treating sports medicine physician dated February 4, 2020 indicates that the worker had no symptoms following the first injection, but that his elbow gradually started bothering him again about three months later, that he was given another injection, and that he was to be referred to an orthopedic surgeon. In his submission to Review Office dated September 29, 2020, the worker indicated that the February 4, 2020 injection had little effect on his elbow, and that he received another injection in July 2020, which had the same outcome.
The panel places weight on the December 4, 2020 letter from the treating sports medicine physician, in which the physician confirmed that:
I did an injection of his right elbow on October 18, 2019 which improved his symptoms and when I saw him on November 13, 2019 he was much better and the symptoms were almost gone. I did state at that time at his assessment he had settled and he should continue with physiotherapy exercises and follow-up with me as needed. He did return to me on February 4, 2020 saying that his elbow had started to bother him again.
The treating physician went on in that letter to opine that:
While he had no inciting factors for the return it is not unusual that symptoms can come back. Unfortunately cortisone is not necessarily a permanent fix and it is no (sic) unusual that symptoms return when the effects of the cortisone wear off.
The fact that he did get relief with the injection confirms the diagnosis of tennis elbow but the fact that he came back within 3 months even though he is not necessarily doing the physical work that brought it on initially is not unusual. Unfortunately for him the cortisone injections are only a temporary solution.
The panel understands that cortisone injections are effective in many cases in resolving or helping to resolve the symptoms of lateral epicondylitis, but that this is not always the case. The panel accepts the physician's advice that it is not unusual or uncommon that tennis elbow symptoms will return or re-emerge roughly three months after an injection, and is satisfied that the evidence supports that this occurred in the worker's case, with his symptoms re-emerging towards the end of January 2020. In the circumstances, the panel is satisfied that the worker's compensable right lateral epicondylitis had not resolved as at November 13, 2019 and the worker is entitled to further benefits beyond that date as a result of his compensable injury.
The worker's representative requested that in addressing the issue on appeal, the panel consider the worker's entitlement to benefits relating to the surgery. In the circumstances, the panel is satisfied that the matter of entitlement to coverage for the December 3, 2021 surgery falls within the scope of the issue which is before us and that there is sufficient evidence on file to enable us to address that issue.
The panel notes that although the February 4, 2020 report from the sports medicine physician indicated the worker was being referred to an orthopedic surgeon, the evidence shows that he was not seen by the orthopedic surgeon until March 12, 2021. In his report of that visit, the orthopedic surgeon noted that the worker had been referred for right lateral epicondylitis, and while other complaints were referred to in the report, the surgeon noted that the worker's "major complaint certainly is the elbow." The surgeon noted that the worker
…has been treated appropriately from a nonoperative perspective. He has had forearm strap bracing, which he thought actually made it worse. He has undergone extensive soft tissue work and three corticosteroid injections. The first gave him about three months worth of pain relief and the other two did not particularly help…
Following his examination of the worker, the surgeon noted that the worker's symptoms "have been going on for three (sic) years" and that "At this point in time, he would certainly be a candidate for a tennis elbow debridement…"
Evidence on file indicates that the surgery for the worker's right lateral epicondylitis condition was performed on December 3, 2021. A copy of the December 3, 2021 Operative Report was provided in advance of the hearing and indicates that the procedures which were performed consisted of right tennis elbow debridement (lateral epicondylitis) and right carpal tunnel release.
Based on our review of the evidence, the panel is satisfied that the December 3, 2021 surgery was necessary to cure and provide relief from the worker's compensable right lateral epicondylitis, and that the worker is entitled to benefits relating to that surgery. To be clear, our finding in this regard relates only to the worker's right lateral epicondylitis, and the panel makes no findings or comment with respect to other conditions which were addressed in the surgery, in particular, relating to the right carpal tunnel release.
In conclusion, based on the evidence and on a balance of probabilities, the panel finds, on a balance of probabilities, that the worker continued to suffer from the effects of his compensable right lateral epicondylitis condition beyond November 13, 2019 and that the worker suffered a loss of earning capacity and required medical aid after that date as a result of his compensable injury, including with respect to the December 3, 2021 procedure to address that injury.
The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after that date as indicated above.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 29th day of April, 2022