The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss and medical aid benefits beyond April 22, 2020. A teleconference hearing was held on March 17, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after April 22, 2020.

Decision

The worker is not entitled to wage loss and medical aid benefits after April 22, 2020.

Background

The worker filed a Worker Incident Report with the WCB on August 27, 2019, reporting he injured his right wrist and forearm in an incident at work on August 22, 2019. The worker described the incident as:

We were breaking apart some asphalt. I was moving the chunks of asphalt into a bucket and hear (sic) a loud pop in my wrist. 

I experienced immediate pain that felt like a 9/10.

The worker sought treatment from a family physician on August 26, 2019, complaining of right wrist pain, greater with movement, after doing heavy lifting at work on August 22, 2019. The family physician reported findings of mild swelling, decreased range of motion, and tenderness in the radius styloid of the lower forearm. The physician diagnosed the worker with a contusion on his right wrist and recommended restrictions of avoid lifting with the right hand for one week. On August 28, 2019, the WCB advised the employer of the worker's temporary restrictions. On August 29, 2019, the employer provided the WCB with their Employer's Accident Report and advised that they could not accommodate the worker with alternate/modified duties. On September 4, 2019, the WCB advised the worker that his claim was accepted and payment of benefits commenced.

The worker attended an initial physiotherapy assessment on September 11, 2019, where he reported pain, swelling and bruising around his lateral wrist and thumb, with decreased movement, strength and activity tolerance. The physiotherapist diagnosed the worker with de Quervain's/radial nerve irritation and recommended restrictions of no lift/carry/push/pull with the right arm. On September 12, 2019, the WCB provided the restrictions to the employer, and on September 17, 2019, the employer advised that they could not accommodate the worker.

On September 26, 2019, the worker attended an appointment with a sports medicine physician. The worker advised that he had persistent pain, had been off work since August 26, 2019, and was using a wrist brace only when he left the house. The sports medicine physician noted the worker had full range of motion in both shoulders, but pain in his right wrist with active and passive range of motion. An x-ray was taken of the right wrist and right radius/ulna, which was reviewed with the worker and noted to be normal. The sports medicine physician diagnosed the worker with a right tendon strain/partial tear forearm, to extensors of the 2nd and 3rd digits and thumb abductor pollicis longus, and recommended restrictions of no use of the worker's right hand/forearm.

At a follow-up appointment on October 15, 2019, the treating sports medicine physician referred the worker for an MRI of his right wrist and forearm. The MRI, which was performed on October 30, 2019, indicated "Tear scapholunate interosseous ligament tear complicated by wrist arthrosis demonstrating a SLAC (scapholunate advanced collapse) pattern of instability." At a further appointment with the treating sports medicine physician on November 11, 2019, the physician referred the worker to an orthopedic surgeon.

The worker was seen by the orthopedic surgeon on December 2, 2019. After examining the worker, the surgeon noted he had a "quite impressive" range of motion in his wrist, with tenderness to palpation over the scapholunate interosseous ligament. The surgeon opined that the diagnostic imaging demonstrated a complete tear of the scapholunate interosseous ligament, with the MRI showing "…early SLAC arthrosis…" of the worker's wrist. The surgeon discussed treatment options with the worker and recommended against surgery. The surgeon recommended the worker wear the wrist brace less and do a diligent course of wrist range of motion and strengthening exercises to get as much function as possible back into his wrist.

The worker attended further physiotherapy sessions, and at a January 16, 2020 session, the worker reported pain with lifting, throbbing pain at night, and decreased sleep. Restrictions of no push/pull/carry/lift greater than ten pounds and no repetitive work with the right hand were recommended.

As the worker continued to report difficulties with his wrist and inability to work, a call-in examination with a WCB plastic surgery consultant was arranged for January 13, 2020. The consultant's notes of that examination were placed on the worker's file on April 6, 2020. The consultant opined that the worker's probable diagnosis in relation to the August 22, 2019 workplace injury was a right extensor tendon strain primarily at the thumb, as well as the index and middle fingers, which appeared to be resolving given the negative findings at the tendons and improved examination findings since 2019.

The WCB plastic surgery consultant further opined that SLAC is "…a long-standing degenerative condition that may occur over time following a scapholunate ligament tear," and the findings on the MRI of a scapholunate ligament tear with associated SLAC wrist were likely pre-existing. The consultant also opined that the medical information on file did not support a material aggravation or enhancement of the pre-existing condition in relation to the workplace injury. With respect to the restrictions recommended by the worker's treating physiotherapist, the plastic surgery consultant opined that those restrictions were made in relation to the SLAC wrist, not the diagnosis of an extensor strain, and that no restrictions appeared to be necessary. On April 16, 2020, the WCB advised the worker that they had determined he had recovered from his compensable injury and was not entitled to wage loss and medical aid benefits after April 22, 2020.

Additional medical information was provided to the worker's file, including reports from a further sports medicine physician dated September 14, 2020, from the worker's treating physiotherapist dated October 7, 2020, and from the treating orthopedic surgeon dated October 22, 2020. An x-ray of the right forearm taken September 26, 2019 was also provided, and on October 21, 2020, the WCB's plastic surgery consultant wrote to the radiologist who had read the October 30, 2019 MRI and requested that he review and comment on the September 26, 2019 x-ray. On October 26, 2020, the radiologist responded to that request, noting in part that:

• The initial radiographic study performed September 26, 2019…demonstrates scapholunate diastases and carpal instability consistent with DISI (dorsal intercalated segmental instability). 

• The MRI performed October 30, 2019 demonstrates complete tearing of the scapholunate interosseous ligament, DISI and scapholunate advance collapse with early arthrosis involving the radioscaphoid articulation.

On October 30, 2020, the WCB plastic surgery consultant reviewed the updated information and provided a further opinion, concluding that a patho-anatomic basis for altering her earlier opinion was not apparent. On November 5, 2020, the WCB advised the worker that there would be no change to their earlier decision that he was not entitled to wage loss and medical aid benefits after April 22, 2020.

On January 4, 2021, the worker was seen by a second orthopedic surgeon who specialized in hand surgery. The orthopedic hand surgeon noted the worker had chronic right-sided scapholunate insufficiency and that he discussed possible options with the worker, who indicated he wished to proceed with surgery.

On February 2, 2021, the WCB plastic surgery consultant reviewed the report from the orthopedic hand surgeon and noted the surgeon referred to an impression of chronic scapholunate insufficiency and early SLAC wrist which, as noted in the consultant's earlier opinion, related to a pre-existing condition. The plastic surgery consultant concluded that the new medical information did not provide a patho-anatomic basis on which to alter her earlier opinion. On February 24, 2021, the WCB again advised the worker that there would be no change to their April 16, 2020 decision.

On March 12, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker stated that he disagreed with the WCB's decision that he had recovered from a strain injury. The worker noted he continued to experience difficulties with his right wrist, had not returned to work, and now needed surgery on his wrist.

On March 23, 2021, Review Office determined there was no entitlement to medical aid and wage loss benefits beyond April 22, 2020. Review Office found that the worker's injury was a right extensor tendon strain primarily at the thumb, as well as the index and middle fingers, from which recovery would occur within a short duration. Review Office placed weight on and agreed with the January 13, 2020 and October 30, 2020 opinions of the WCB's plastic surgery consultant, and concluded that the worker did not have a further loss of earning capacity or further need for medical treatment in relation to the compensable injury.

On November 4, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

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 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, 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.

With respect to wage loss eligibility, the Policy states, in part, 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 following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: 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.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position was that he had not recovered from the effects of his August 22, 2019 workplace accident and injury as at April 22, 2020, and is entitled to continued benefits beyond that date.

In her presentation to the panel, the worker's representative highlighted information on file and additional medical information that was submitted in support of the appeal including, in particular, a September 8, 2021 report from a physician with an interest in occupational health medicine ("occupational health physician").

The worker's representative submitted that the disagreement in this case was whether the worker's scapholunate tear and subsequent SLAC instability pre-dated the workplace accident. The worker's position was that the accident involved sufficient force to tear the worker's scapholunate ligament, the worker suffered a torn ligament as a result of the accident, and the worker's continued symptoms or difficulties were causally related to the workplace accident and injury. The worker's further position was that even if the tear or pathology were pre-existing, the workplace accident caused a significant enhancement of that pathology to the point that surgery was required. In either event, it was submitted that the worker was entitled to further benefits.

The worker's representative noted that in his September 8, 2021 report, the occupational health physician stated that he vigorously disagreed with the WCB's opinion that the worker's scapholunate tear and instability were pre-existing, citing the imaging results as evidence. The representative noted the occupational health physician indicated the September 26, 2019 x-ray, taken closer to the date of the accident, showed scapholunate separation but no arthrosis, and that the beginning of early arthrosis only appeared later, on the October 30, 2019 MRI. It was further noted that the occupational health physician indicated the medical evidence pointed to the ligament tear and articular disruption being recent.

The representative submitted that the occupational health physician pointed out that the mechanism of injury was of sufficient force to tear a ligament, and the fact the worker felt a pop and the immediate onset of severe pain at the time of the accident supported that the scapholunate ligament tore at that precise moment.

The worker's representative also noted that the occupational health physician opined that the scapholunate tear and SLAC instability would have been sufficient to prevent the worker from performing his work as an asphalt labourer, and he would not have been able to lift the asphalt or do his job if the wrist pathology that was noted after the accident was pre-existing. The representative submitted that it was therefore reasonable to assume that the wrist pathology was not present prior to the accident, or at least not present to the same degree, and noted that two of the attending physicians had in fact certified that the worker had no previous wrist symptoms or injuries.

The representative submitted that even if the wrist pathology were pre-existing, a pre-existing condition does not shield a worker from sustaining new acute injuries. Rather, the opposite is the case, as the pre-existing condition represents a weakness which allows the worker to become injured with less force than would be required for a healthy worker. In addition, injuries sustained by workers with pre-existing conditions tend to be more severe and require longer recovery time than in the case of healthy workers suffering similar accidents.

In conclusion, the representative submitted that there is no evidence the worker had recovered at the time his benefits were terminated. It was submitted that the worker continues to suffer the same symptoms at present as he experienced after the accident and is therefore entitled to further wage loss and medical aid benefits.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after April 22, 2020. 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 August 22, 2019 workplace accident and injury beyond April 22, 2020. For the reasons that follow, the panel is unable to make that finding.

The worker has an accepted claim for an extensor tendon strain primarily at the thumb, as well as the index and middle fingers. The panel notes that the WCB plastic surgery consultant confirmed that diagnosis at the call-in examination of the worker on January 13, 2020, and indicated that this appeared "to be resolving in light of the negative MRI findings at the tendons, and the improved examination findings since the medical reports in 2019." The panel is satisfied that the accepted strain injury had resolved as at April 22, 2020, and notes that the worker has not suggested otherwise.

Rather, as indicated previously, the worker maintains that he sustained a scapholunate tear and subsequent SLAC instability as a result of the August 22, 2019 workplace accident, from which he has not recovered. The panel acknowledges that the worker has been diagnosed with a scapholunate tear and subsequent SLAC instability. Based on our review and careful consideration of all of the evidence and submissions which are before us, however, the panel is unable to find that such a diagnosis or associated symptomatology is causally related to the August 22, 2019 workplace accident or injury.

In arriving at that conclusion, the panel finds that we are unable to attach much weight to the September 8, 2021 report from the occupational health physician.

While the occupational health physician opined that the incident involved sufficient mechanical forces to result in, and did result in, an acute scapholunate ligament tear and consequent SLAC wrist, the panel is not satisfied that this is supported by the evidence.

While the occupational health physician relies on the results of the September 26, 2019 x-ray and October 30, 2019 MRI and adds that "All evidence points to the fact that the wrist ligament tear and consequent articular disruption is recent," the panel is unable to find that this is the case. The physician refers in particular to the findings on the October 30, 2019 MRI of SLAC with early arthrosis as being consistent with an acute tear having occurred at the time of the accident. The panel is unable to accept, however, that such a condition would have developed in such a short period of time following the accident.

In this regard, the panel prefers and places significant weight on the October 30, 2020 opinion of the WCB plastic surgery consultant, who noted that as reported following her January 13, 2020 call-in examination of the worker:

…medical reports after the workplace injury noted findings related to extensor tendons, including note of obvious swelling of the tendon sheaths, pain with D2 and D3 extension and thumb abduction. Symptoms or findings in relation to SLAC wrist or scapholunate ligament tear were not noted in the initial medical reports on file. Rather, the treating sports medicine physician's report noted that the MRI finding of scapholunate tear/SLAC wrist was unexpected and there was no correlating tenderness at the scapholunate interval.

SLAC wrist is a long-standing degenerative condition that may occur over time following a scapholunate ligament tear. The MRI findings of a scapholunate ligament tear with associated SLAC wrist, including degenerative changes at the radioscaphoid joint and DISI, were likely pre-existing to the workplace injury, and were not likely to have developed over the two-month interval between the injury and the date of the MRI.

In light of the information on file, including i) the initial diagnosis of extensor strain with related findings reported at the time, ii) the November 11, 2019 report by the treating sports medicine physician noted that the October 30, 2019 MRI findings were unexpected and there was no pain, laxity or clicking at the scapholunate interval, iii) today's examination findings of no tenderness at the scapholunate interval, and iv) the October 30, 2019 MRI report, which did not note any acute findings in relation to the SLAC wrist, the medical evidence on file does not support a probable material aggravation or enhancement of the preexisting condition in relation to the workplace injury…

In her October 30, 2020 opinion, the WCB plastic surgery consultant went on to consider the radiologist's updated review of the September 26, 2019 x-ray and October 30, 2019 MRI, which she had specifically requested, and opined that:

The updated medical information on file revealed imaging findings indicative of a pre-existing condition, i.e. scapholunate diastasis with DISI at the right wrist was present on the September 26, 2019 x-ray.

In the presence of SLAC wrist, the typical x-ray findings include scapholunate diastasis and DISI deformity, as noted on the September 26, 2019 x-ray. These findings are consistent with the findings on the October 30, 2019 MRI, previously noted on file to be indicative of a pre-existing condition of SLAC wrist.

As noted above, SLAC wrist develops over the long-term following a scapholunate ligament tear. The SLAC wrist was noted to be of a mild-moderate degree and to include proximal migration of the capitate and degenerative thinning at the radiocarpal joint, i.e. findings in relation to SLAC wrist which are further indicative of a long-standing condition.

In light of the above, it is likely that the September 26, 2019 and October 30, 2019 imaging findings were pre-existing to the August 22, 2019 workplace injury, and were not patho-anatomically accounted for in relation to same.

The above matter is further substantiated in light of the clinical presentation at the time of injury and in close temporal proximity to same.

In the event of an acute scapholunate ligament injury, findings at the scapholunate interval would be anticipated at the time of injury, in close temporal proximity to same. This was not the case. Rather, there was no mention of findings at the scapholunate interval in the initial medical reports on file (including the August, September, October and November 2019 medical reports). In addition, following the October 30, 3019 (sic) MRI, a November 11, 2019 treating sports medicine physician's report noted no tenderness over the scapholunate interval, no click on instability testing, full wrist range of motion, and that the MRI finding of a SLAC wrist was unexpected. This clinical presentation is not concordant with that of an acute scapholunate injury.

Finally, the panel notes that while the occupational health physician suggested that it was unlikely the worker could have performed his work with such wrist pathology if it were pre-existing as the WCB plastic surgery consultant had said, the occupational health physician provided little or no rationale to explain or support that suggestion. The panel is accordingly unable to accord much weight to that suggestion.

In conclusion, the panel finds, on a balance of probabilities, that the worker's scapholunate tear and subsequent SLAC instability were not causally related to, or enhanced, as a result of the August 22, 2019 workplace accident. The panel therefore finds that the worker did not continue to suffer from the effects of his August 22, 2019 workplace accident and injury beyond April 22, 2020, and is not entitled to wage loss or medical aid benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of May, 2022