The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are entitled to further benefits in relation to the January 3, 2020 accident. A videoconference hearing was held on February 23, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the January 3, 2020 accident.

Decision

The worker is entitled to further benefits in relation to the January 3, 2020 accident.

Background

The WCB received an Employer’s Incident Report on February 5, 2020 reporting the worker injured the top of their left hand in an incident at work on January 4, 2020. The employer reported that a co-worker of the worker’s witnessed them pushing a cart into a bathroom stall and slamming their hand into the metal frame of the stall. The employer noted the worker’s hand was swollen and bruised as a result. The WCB wrote to the worker on February 10, 2020 to advise their claim was accepted, noted that the worker had not missed time from work due to the injury and advised the worker to contact them should they have medical expenses, further medical appointments, or ongoing symptoms.

The worker contacted the WCB on February 14, 2020 to discuss their claim. The worker advised the WCB they had missed work on January 29 and 30, 2020 as their hand was painful and swollen but they did not report the injury to the employer as they didn’t think they were hurt too badly. The worker advised they were sent for an x-ray which indicated they had a soft tissue injury, and they were now attending physiotherapy. On February 18, 2020, the employer confirmed the date of accident should be amended to January 3, 2020 as the worker would not have been working on January 4, 2020.

On March 18, 2020, the WCB received a copy of the Doctor’s First Report for the worker’s appointment on February 4, 2020. The worker reported to the treating physician that they hit their left hand on a metal door at work and the physician provided a diagnosis of a contusion on the worker’s hand after reviewing the x-ray taken that day and examining the worker. The physician noted the worker had tenderness to the dorsum area of the carpal bones and also noted a “…small reactive ganglion.” The x-ray of that date indicated “…mild degenerative change noted involving the trapeziometacarpal articulation.”

When the worker attended for an initial physiotherapy assessment on February 5, 2020, they reported left hand/finger pain, with swelling and weakness that was improving but that it was still difficult to use their hand. The physiotherapist examined the worker and noted flexion/extension was only ¾ in their third metacarpophalangeal joint on their left hand with pain in their knuckle, and that grip strength in the worker’s left hand was less than their right. The physiotherapist provided a diagnosis of a left-hand contusion, dorsally worse in the third metacarpophalangeal joint and recommended home strengthening exercises. The worker continued to work but missed time to attend for medical appointments and physiotherapy. Some treatment was delayed due to the Covid-19 pandemic.

The worker attended for an appointment with their treating family physician on May 22, 2020, reporting recurrent left-hand pain and swelling with overuse. The physician noted mild swelling at the dorsum of the hand and recommended continued physiotherapy treatment. On June 5, 2020 the worker was first assessed by a physiotherapist specializing in hand therapy. The hand therapy specialist noted mild edema at the left 4th digit extensor tendon and that the tendon deviated ulnarly on making a fist. They noted active range of motion within normal limits but decreased grip strength of the left versus right hand. The therapist diagnosed left 4th digit metacarpal radial collateral ligament and sagittal band injury secondary to blunt trauma and recommended follow-up to adjust the worker’s splint. At a follow-up appointment with the treating physician on June 8, 2020, the worker reported severe burning pain and shooting pain in their left hand up to their forearm for the previous three days after physiotherapy treatment, with swelling and loss of strength. On examination, the treating physician recorded tenderness to touch along the dorsal tendon in the third and fourth digits and thumb on the worker’s left hand, with the worker unable to make a fist. The physician also noted tenderness with flexion and extension of the left hand. The physician recommended the worker remain off work for two weeks.

On June 19, 2020, the worker followed up with the physiotherapist specializing in hand therapy. The physiotherapist recorded the worker’s report that their left hand was still painful but improving with decreased burning and tingling sensations and less swelling. On examination, the physiotherapist noted the worker showed signs of healing in both the fourth digit metacarpophalangeal radial collateral ligament and the sagittal band and recommended continuing physiotherapy and splinting. Recovery at that time was noted to be satisfactory, with continued splinting recommended for another 4 weeks.

A WCB medical advisor reviewed the worker’s file on June 23, 2020 and provided an opinion that the initial diagnosis was a hand contusion, and the current diagnosis provided by the physiotherapist specializing in hand therapy of a left fourth digit radial collateral ligament and radial sagittal band injury. The medical advisor opined the contusion injury would have recovered over a period of days to weeks, while a radial collateral injury similar to a sprain type injury with recovery over a period of six to eight weeks. The medical advisor noted there was no reference in the worker’s reporting of the mechanism of injury to an injury to their digits/fingers, with the first reference being a February 5, 2020 physiotherapist assessment noting examination findings of the worker’s third digit only. There was no medical information between that assessment until May 22, 2020, when again, there were no references to findings in the worker’s fingers. Injury to the worker’s fourth finger was not noted until the June 8, 2020 assessment by the physiotherapist who specialized in hand treatment. As such, the WCB medical advisor was of the view that the radial collateral injury noted on June 8, 2020 was not medically accounted for in relation to the January 3, 2020 workplace accident. Further, the advisor opined total disability was not medically supported in relation to the accepted hand contusion injury and recovery was expected to have occurred as it was five months since the workplace accident.

On June 24, 2020, the WCB advised the worker they were not entitled to further benefits as it had been determined they had recovered from the workplace accident.

On August 20, 2020, the WCB received a copy of an MRI study conducted on the worker’s left hand and wrist on August 10, 2020 that indicated the worker had a small 7mm ganglion cyst interposed between the third flexor tendon and distal third metacarpal, a 1.1cm subcutaneous ganglion cyst volar to the scaphoid, and small non-aggressive appearing lesions within the first proximal phalanx and first metacarpal. A WCB medical advisor reviewed the MRI and provided a further opinion to the worker’s file on September 4, 2020, stating that the finding of the non-aggressive lesion on the MRI was pre-existing and not related to the workplace accident and further, that the reported mechanism of injury of striking their left hand, was not considered a factor associated with the development of a ganglion cyst. On the same date, the WCB advised the worker by letter that the earlier decision they were not entitled to further benefits remained unchanged.

On October 19, 2020, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted they continued to experience difficulties from the workplace accident.

On October 30, 2020, the WCB plastic surgery consultant requested a review of the worker’s file and in particular, the diagnostic imaging by a WCB radiology consultant. The imaging reviewed was conducted and the radiology consultant provided their opinion to file on November 22, 2020. The WCB plastic surgery consultant opinion of November 26, 2020 outlines that, when considering the information on the worker’s file and the opinion of the WCB radiology consultant, in the absence of any initial reporting of an injury to the worker’s fourth metacarpophalangeal joint and no evidence of pathology or injury noted to that joint on the August 10, 2020 MRI, an injury to the worker’s fourth metacarpophalangeal joint or sagittal band was not related to the January 3, 2020 workplace accident. Further, the WCB plastic surgery consultant opined that the ganglion cysts and lesions indicated on the MRI were not located in the same region of the worker’s hand as the reported contusion and as such, were not medically accounted for in relation to the workplace accident. A copy of the opinion was provided to the worker on November 26, 2020.

On December 3, 2020, Review Office determined the worker was not entitled to further benefits. Review Office accepted the November 26, 2020 opinion of the WCB plastic surgery consultant and found that the compensable injury sustained by the worker as a result of the January 3, 2020 workplace accident was a left-hand contusion. Further, Review Office determined the findings on the MRI were not causally related to the workplace accident and the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on August 17, 2021. A videoconference hearing was arranged for February 23, 2022. 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 April 27, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the 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 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 because 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. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

The WCB has established Policy 44.120.10, Medical Aid (the “Policy”) to define key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes:

(a) Transportation to a hospital or other place where medical care can be given; 

(b) Services provided by a hospital or other health care facility; 

(c) Treatment or services provided by a health care providers; 

(d) Diagnostic services; 

(e) Drugs, medical supplies, orthotics and prosthetics; 

(f) Any other goods and services authorized by the board.

The Policy goes on to set out that the general principles governing the WCB's funding of medical aid include the following:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

• In determining the appropriateness and necessity of medical aid, the Board considers: 

o Recommendations from recognized healthcare providers; 

o Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services; 

o Standards developed by the WCB Healthcare Department. 

• The Board promotes timely and cost-effective access to medical aid. 

• Workers are entitled to select their own health care provider, subject to the Board's control and supervision of medical aid. 

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission to the panel outlining the worker’s position and addressed questions to the worker. In response to the further information obtained by the appeal panel following the hearing, the worker advisor also provided a written submission for consideration by the panel on April 11, 2022. The worker provided testimony through answers to the questions posed by their representative and by members of the appeal panel.

The worker’s position is that they are entitled to further benefits, including both medical aid and wage loss benefits, in relation to the accident of January 3, 2020. The worker advisor noted that although the WCB medical advisor focused their attention first, on whether or not the initial medical information supported the diagnosis in relation to the 4th digit provided by the physiotherapy hand specialist, and later on whether or not the ganglion were caused by the injury, the medical reporting supports the worker’s position that they sustained injury to the whole of their left hand including the regions of the 3rd and 4th metacarpals. Further, the medical reporting of the treating practitioners confirms that the worker’s treatment was ongoing in June 2020 with recommendations made by both treating physiotherapists for further treatment beyond June 24, 2020 and continuing use of hand splints after that time.

The worker advisor noted that the worker’s treatment was delayed, through no fault of the worker, by the closures resulting from the Covid-19 pandemic declaration in March 2020 and that as a result the worker could not be assessed by the physiotherapy hand specialist until early June 2020 at which time further treatment was recommended as well as use of the splints.

The worker advisor further noted that the worker continued working their regular duties until their treating family physician recommended that they be off work from June 4 – 19, 2020. The worker’s position is that it is not unreasonable that they would follow the instructions of their physician in this regard.

In the written submission provided to the appeal panel on April 11, 2022, the worker advisor noted that the additional medical information obtained by the appeal panel supports the worker’s entitlement to further benefits in relation to the January 3, 2020 accident. The worker advisor noted the comment in the treating physiotherapist's March 26, 2020 chart note that healing “…is taking longer than expected but [the worker] is continuing to perform [their] regular duties so that may be aggravating it.” The worker advisor further noted that it was after the first treatment by the physiotherapy hand specialist that the worker experienced an increase in symptoms such that the treating physician recommended the worker stay off work for two weeks.

The worker testified that immediately following the accident they continued to work. On the first shift following the accident they experienced extreme pain and swelling in their left hand, resulting in a reduction of function. The worker noted that they are right-hand dominant but that they need both hands to push the carts as part of their job. The worker explained that they did not seek medical attention sooner as they believed the symptoms would go away, noting that they often hurt themselves at work. When symptoms did not go away but worsened, the worker sought medical attention from a minor injury clinic and then from their physiotherapist.

The worker disputed the statements recorded by the case manager that the worker said they didn’t want to get a brace. The worker noted that the splints were expensive to obtain and they did not receive any insurance coverage as neither the WCB nor their other insurance provider would cover this. The worker also acknowledged that using the braces did help with reducing their symptoms and noted they are still using the day brace which allows them to work without pain.

The worker recalled that their symptoms would improve and worsen depending on activity. Typically, they would experience an increase in swelling after strenuous days of work or at night.

In sum, the worker’s position is that the evidence supports a finding that the worker required use of the hand braces and continuing physiotherapy treatment beyond June 24, 2020 as a result of the compensable workplace injury to their left dorsal hand. Further, the worker continued to work with their injured hand resulting in periodic symptom flareup and resulting periods when the worker could not perform their job duties. There is no evidence that the employer offered or had available any modified duties and the worker’s symptoms did not resolve until after the period of time away from work as recommended by their treating physician. Therefore, the worker should be entitled to further benefits in relation to the January 3, 2020 workplace accident.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue for the panel to determine in this appeal is whether the worker is entitled to further benefits in relation to the January 3, 2020 accident. For the worker’s appeal to succeed, the panel would have to determine that the evidence supports, on a balance of probabilities, that the worker had not recovered from the workplace accident at the time when the WCB determined that the worker’s entitlement to benefits was terminated, and more specifically, that the worker required further medical aid as a result of the injury sustained in the compensable workplace accident and/or that the worker experienced a further loss of earning capacity as a result of the injury sustained in that accident and is therefore entitled to additional wage loss benefits. As outlined in the reasons that follow, the panel was able to make such a finding and the worker’s appeal is therefore granted.

In their testimony, the worker described to the panel the mechanism of injury on January 3, 2020 as hitting the full back of their hand, from index finger to their pinkie finger, on the end piece of a metal door frame. Initially the worker self-treated the injury with ice and taping. The worker noted they are not able to tolerate anti-inflammatory pain medications. The worker described that bruising and swelling occurred right away, but the bruising went away within one to two weeks; however, swelling continued and symptoms would worsen with heavy lifting at work. Nonetheless the worker continued with their regular job duties until early June 2020 when their family physician provided a medical note for two weeks away from work entirely due to the injury.

The medical report from the worker’s first attendance for treatment on February 4, 2020 indicates the worker reported pain and swelling to the dorsum of their proximal left-hand area. Findings from that assessment include “Tenderness to dorsum of carpal bones” and a small reactive ganglion. No fractures were evident on the x-ray taken that day but some mild degenerative change was noted “involving the trapeziometacarpal articulation.”

The initial physiotherapy assessment report of February 5, 2020 confirms that the worker had reduced flexion and extension at their 3rd metacarpal joint in the left hand with pain in their knuckle and significantly less grip strength with pain. The physiotherapist provided a diagnosis of contusion of the worker’s left hand dorsally, worse at the 3rd metacarpal joint. Despite physiotherapy, the worker’s grip strength did not improve over the first month of treatment and the physiotherapist therefore recommended use of a hand brace to allow the worker to continue working. The physiotherapist also requested on March 10, 2020 that the WCB fund a referral to a hand specialist to provide a “proper brace.”

Assessment by the physiotherapy hand specialist was delayed due to closure of the clinic due to the Covid-19 pandemic and the worker was not assessed until June 5, 2020. At that time, the hand specialist also reported decreased grip strength in the worker’s left hand with pain at the 4th metacarpal joint and mild edema at the left 4th extensor tendon and tendon deviation ulnarly with making a fist. The hand specialist diagnosed left 4th metacarpal radial collateral ligament and sagittal band injury “secondary to blunt trauma” and recommending splinting and continuing physiotherapy. On June 19, 2020, the physiotherapy hand specialist noted some signs of healing and improvement in symptoms and that the worker reported that the splints were helpful. At that time the edema was nearly resolved with continuing tenderness between the 3rd and 4th digit metacarpal heads and less tendon deviation ulnarly at the 4th digit, and the hand specialist recommended continued use of splints and additional physiotherapy.

The worker’s treating family physician noted on June 8, 2020 that the worker’s left hand was tender to touch along the dorsal tendon on the 3rd and 4th digit, that the worker was unable to make a fist, and tenderness at the wrist with flexion and extension. The physician noted that the worker reported their symptoms increased in the previous three days following physiotherapy and recommended continuing physiotherapy while the worker remain off work for 2 weeks.

The WCB medical advisor determined in an opinion dated June 23, 2020 and confirmed on September 4, 2020, that the worker’s compensable injury was a contusion to their left hand that should have healed within “days to weeks.” The panel agrees that if the worker’s injury was no more than a contusion, it would be reasonable to expect that the worker’s recovery would occur within a reasonably short period of time; indeed, the panel notes that this was the worker’s own expectation at first. As the worker testified, they initially believed the injury would heal quickly and therefore did not seek medical attention until approximately one month later when it became evident that their hand was not healing as expected and in fact their symptoms were worsening.

The medical reporting and the worker’s testimony confirm that while continuing to work after beginning physiotherapy treatment for the injury in early February 2020, the worker would experience flare-up of symptoms from time to time depending on their work activities. The panel notes that the worker continued in their regular job duties, which are physical in nature and require, as the worker testified, use of both hands. The worker’s testimony is confirmed by the evidence of the treating physiotherapist who noted a lack of progress toward recovery, and as a result, reached out to the WCB on March 10, 2020 with their recommendation that the worker obtain hand splints and be referred to a physiotherapist hand specialist. As noted in the worker’s submission, this referral was delayed by the pandemic and as a result the worker’s recovery was also further delayed.

The WCB medical advisor’s opinion of June 23, 2020 also set out that the June 8, 2020 clinical findings related to the left 4th digit were not medically accounted for in relation to the workplace injury as 4th digit findings were not noted at all until the assessment by the physiotherapy hand specialist. The medical advisor concluded that the worker only suffered a hand contusion and that use of hand splints was not accounted for in relation to a contusion, and, furthermore, stated that “Total disability is not supported in relation to the compensable hand contusion. Restrictions is [sic] not medically supported in relation to the compensable injury."

The panel noted that although the WCB determined the worker was fully recovered from the workplace injury by June 2020, the worker’s treating family physician referred the worker for an MRI study on the basis of “Left hand contusion injury. Pain and restricted movement dorsal tendon of hand.” That study took place on August 10, 2020 and revealed two small ganglion cysts as well as “small nonaggressive-appearing lesions within the first proximal phalanx and first metacarpal. The WCB medical advisor’s opinion of September 4, 2020 considered those findings and determined that the formation of ganglion cysts was not related to the compensable injury as the described mechanism of injury would not be a factor in their development. A WCB radiology consultant also reviewed the MRI findings on November 22, 2020 and concluded there was no evidence of a sagittal band injury, fracture, interosseous ligament injury or tendon tear, and that the ganglions and degenerative changes noted were not “clinically significant.” A WCB plastic surgery consultant also reviewed the medical reporting and concluded on November 26, 2020 that the MRI findings of bone lesions were likely incidental to the injury, and that the ganglions were not present in the region of injury. The plastic surgery consultant further concluded that the ganglion cysts and intraosseous lesions were “not likely patho-anatomically accounted for in relation to the workplace injury” and that given the absence of 4th digit metacarpal joint findings on initial assessment and in light of the MRI findings, that there was no evidence for sagittal band injury, there would be no need for treatment of such condition in relation to the workplace injury.

The panel also noted that the hand surgeon who assessed the worker on March 30, 2021 noted that the worker had full range of motion and no evidence of swelling or bruising at that time, although the worker continued to report pain on the dorsum of their hand. The surgeon further stated that “Certainly initially following [the] injury I believe that the splinting to rest the hand and range of motion exercises with physiotherapy was beneficial.” The hand surgeon also noted that the worker’s pain was on the dorsum of their hand, away from the two ganglions evident in the August 10, 2020 MRI study.

Taking into account the various medical opinions with respect to the development of the ganglion cysts and the lesions indicated on the August 10, 2020 MRI study, the panel is satisfied that the MRI findings of August 10, 2020 are not related to the compensable workplace injury. This finding, however, does not rule out the worker’s entitlement to further benefits.

In determining that the worker was, or should have been, recovered from that injury as of June 24, 2020, the WCB did not give weight to the evidence of the treating physician and the two treating physiotherapists, relying instead upon the June 23, 2020 opinion of the WCB medical advisor that the worker’s current complaints could no longer be related to the workplace injury given the passage of time since the injury and the lack of specific findings relating to the 4th digit metacarpal joint in the early medical reporting.

Taking into account the evidence of the worker as to the mechanism of injury to their left hand, from index finger to pinkie finger and on considering the medical reporting more proximal to the date of injury which indicates tenderness to the dorsum of the carpal bones (February 4, 2020) and contusion of the hand dorsally, worse at the 3rd digit metacarpal joint (February 8, 2020), the panel is satisfied that the workplace accident resulted in an injury not only to the worker’s 3rd digit metacarpal joint but to the worker’s hand more broadly. Further, the panel is satisfied that the evidence supports a finding that the worker’s injury was more significant than the contusion initially diagnosed, given that the worker’s symptoms did not abate with time as would be expected with a contusion, but rather would increase and wane with the worker’s activities, until such time as appropriate splinting and physiotherapy treatment was provided beginning in June 2020.

The panel finds that the medical reporting by the worker’s treating practitioners does not support the WCB’s determination that the worker was recovered from the workplace injury when the worker’s entitlement to benefits was terminated. Had that been the case, it is unlikely that the worker’s treating physician would have seen fit to refer the worker for an MRI study of their hand nor to take the worker away from work for a period of two weeks in June 2020.

The panel is satisfied on the basis of the evidence before us that the worker’s injury of January 3, 2020 was not fully resolved when the WCB terminated the worker’s benefits and further, that there is evidence of the worker’s continuing need for medical aid beyond that date, including the provision of continuing physiotherapy and the provision and use of hands splints as recommended by the treating physiotherapist and the treating physiotherapy hand specialist, and as subsequently supported by the consulting hand surgeon.

With respect to the worker’s request for further wage loss benefits based upon the treating family physician’s recommendation, the panel notes and accepts the WCB medical advisor’s opinion of June 24, 2020 that total disability was not accounted for in respect of the worker’s continuing left-hand injury, as the evidence confirms that the worker was able to continue to meet their regular work obligations until early June 2020, but we note that the WCB did not consider the question of whether the employer could have accommodated the worker at that time in modified duties. We therefore refer this question back to WCB for further adjudication.

On the standard of a balance of probabilities, the panel finds that the worker is entitled to further benefits in relation to the January 3, 2020 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of May, 2022