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 not entitled to wage loss and medical aid benefits after November 13, 2019. A teleconference hearing was held on November 1, 2022 to consider the worker’s appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after November 13, 2019.

Decision

The worker is entitled to wage loss and medical aid benefits after November 13, 2019.

Background

The worker filed a Worker Incident Report with the WCB on June 13, 2019, reporting they injured their right elbow at work on May 26, 2019 and reported the injury to the employer on June 8, 2019. The worker noted the onset of symptoms approximately two weeks prior to June 8, 2019, after performing repetitive job duties, and reported feeling an ache that gradually escalated to sharp pain, such that they sought medical treatment on June 8, 2019.

When the worker attended a minor injury clinic on June 8, 2019, they reported progressive pain in their lateral right elbow after repetitive work over the previous two weeks. On examination, 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 lateral epicondylitis, and recommended the worker receive physiotherapy, remain off work for one week and then return to work with restrictions.

When the WCB contacted the worker on June 25, 2019 to discuss the claim, the worker confirmed they first noticed symptoms at the end of May 2019 with a gradual onset, following repetitive use of various types of tools. The worker described feeling pain with some burning and tingling sensation in their right elbow. The worker advised of the names of witnesses to their difficulties and indicated they agreed with the employer's reference to the accident date of May 29, 2019.

On June 27, 2019, the WCB advised the worker that given the delay in reporting the injury and seeking medical treatment, it could not establish that an accident occurred at work on May 29, 2019, and the claim was therefore not acceptable.

On August 15, 2019, the worker's representative requested that the WCB further investigate the claim by contacting the witnesses named by the worker. 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 confirmed that the worker had complained to them about their elbow, and that they believed this was in about December 2018 or January 2019. They advised that the worker initially just said that their elbow was sore, but towards the end of their time working together, the worker was "…walking around holding it." The second witness advised the WCB that they had worked with the worker until late May 2019 and the worker had advised them that their elbow was sore, noting it was tightening up. The witness stated they looked up the worker's symptoms on the computer and concluded their symptoms were due to tendonitis. The WCB also spoke to the worker's supervisor, who advised that the worker had complained of their elbow being sore but had not mentioned that anything had occurred. The supervisor said that the worker was working hard, that everyone had aches and pains and to them it was like everyone else. The supervisor further 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 their claim was not acceptable.

On October 28, 2019, the worker requested Review Office reconsider the WCB's decision, noting that they reported their injury to their co-workers and the employer, sought medical attention, and reported the workplace incident to the WCB. 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 accepted the diagnosis of epicondylitis and found it was consistent with the work activities the worker described.

When the WCB requested a status update from the worker on January 20, 2020, the worker advised that they had been performing 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 their regular duties, along with medical reports for the same period. In a further discussion with the worker on January 23, 2020, the WCB advised the worker that the claim would be closed, and they should contact the WCB again if they experienced further difficulties.

On January 27, 2020, the worker contacted the WCB to advise that they had pain in their elbow again and would be seeking further medical treatment. On February 4, 2020, the worker saw the treating sports medicine physician, who noted the worker reported a gradual increase in symptoms since an 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 provided a further injection and recommended the worker continue working light duties.

A WCB sports medicine advisor reviewed the worker’s file on February 26, 2020 and provided an opinion that the current diagnosis was right lateral epicondylitis. The medical advisor 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, that the treating physician indicated the worker was not performing heavy labour at the time of the February 4, 2020 injection, and that that no trauma or cause for the worker's injury was noted. The WCB sports medicine advisor opined that the diagnosis and ongoing treatment were not medically accounted for in relation to the May 29, 2019 workplace injury.

The WCB advised the worker on March 10, 2020 that it determined their current difficulties were not related to the May 29, 2019 workplace accident and therefore 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 time loss for a medical appointment on March 4, 2020, but they were not entitled to further benefits after that date.

On June 8, 2020, the worker’s representative requested Review Office reconsider the March 10, 2020 decision that the worker’s current difficulties were not related to the May 29, 2019 workplace accident and that entitlement to wage loss and medical aid benefits would end on March 4, 2020. Review Office determined on October 7, 2020 that the worker was not entitled to wage loss and medical aid benefits after November 13, 2019.

On August 6, 2021, the worker’s representative appealed the decision of Review Office to the Appeal Commission. On March 2, 2022, a hearing was held to consider the worker’s appeal and Decision No. 41/22 was published on April 29, 2022. The Appeal Commission found the worker was entitled to wage loss and medical aid benefits after November 13, 2019.

A letter was provided to the worker on May 19, 2022 by the WCB’s Corporate and Legal Services advising an application was being brought before the WCB’s Board of Directors under Section 60.9 of The Workers Compensation Act ("the Act") for review of the Appeal Commission’s Decision No. 41/22, noting that Appeal Commission Decision No. 41/22 also determined the worker was entitled to benefits related to a surgical procedure that had been performed after the Review Office decision had been made and that the WCB had not made a decision related to entitlement of benefits related to that surgical procedure. The WCB Board of Directors considered the request on June 21, 2022 and on June 23, 2022, the Appeal Commission was advised the WCB Board of Directors had determined section 60.8(5) of the Act and Rule 14 of the Appeal Commission’s Rules of Procedure had been misapplied and directed the appeal to be re-listed and heard by a new panel.

A hearing was arranged for November 1, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

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.

The WCB has established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In these cases, the WCB must determine whether the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate intervening event.

Worker’s Position

The worker was represented in the appeal by a worker advisor, who made an oral submission on behalf of the worker and relied as well upon their written submission of February 23, 2022 and submissions and evidence provided to the previous appeal panel on March 2, 2022. The worker also provided testimony in response to questions posed to them by members of the appeal panel.

The worker’s position is that the evidence confirms that although the worker experienced symptomatic relief from the compensable workplace injury by November 13, 2019, this relief was temporary, and the worker’s right lateral epicondylitis did not fully resolve until after the surgical procedure in December 2021. There is evidence that the worker required further medical attention for this condition after November 13, 2019 and that as a result, the worker experienced additional wage loss beyond that date, which is causally related to the workplace injury. As such, the worker should be entitled to wage loss and medical aid benefits after November 13, 2019.

In support of the worker’s position, the worker advisor pointed to the February 2020 injection and the July 2020 injection provided to the worker for relief from the symptoms of their right lateral epicondylitis. The worker advisor submitted that the worker’s ongoing symptomatic presentation points to either the continuation of the worker’s compensable condition or a recurrence of that condition, as defined by the WCB’s Recurrence Policy, noting that there is no evidence of any new or intervening event causing the worker’s symptoms to increase. The worker advisor urged the panel to rely upon the December 4, 2020 report from the treating sport medicine physician which sets out that it is not unusual that symptoms can come back despite the lack of inciting factors as the injections do not necessarily offer a “permanent fix and it is no[t] unusual that symptoms return when the effects of the [injection] wear off. The fact that [the worker] did get relief with the injection confirms the diagnosis of tennis elbow but the fact that [they] came back within 3 months even though [the worker] is not necessarily doing the physical work that brought it on initially is not unusual.”

The worker advisor noted that the February 26, 2020 opinion of the WCB sport medicine advisor does not consider the possibility that the October 2019 injection provided the worker with only temporary relief of symptoms such that no further activity was required for the worker’s symptoms to return but determined that based upon the November 13, 2019 report the worker was functionally recovered and that because there was no new trauma or cause for injury, the worker’s symptoms were not accounted for in relation to the compensable diagnosis. The worker advisor therefore submitted that the panel should give greater weight to the opinion of the treating sport medicine physician who continued to provide care to the worker, than to the opinion of the WCB sport medicine physician.

The worker advisor submitted that the evidence supports a finding that following the initial pain injection in October 2019 the worker returned to work in a different position, and that approximately three months later, in late January 2020, the worker began to experience symptoms of right lateral epicondylitis again as confirmed by the February 4, 2020 reporting of the treating sport medicine physician. In these circumstances, the WCB’s Recurrence Policy applies.

In sum, the worker’s position is that the symptoms of right lateral epicondylitis arising from the compensable workplace injury were temporarily diminished because of the October 2, 2019 injection but that the condition was not resolved, and the worker experienced a recurrence of symptoms in late January 2020 that are causally related to the initial compensable injury. As such, the worker sustained a further loss of earning capacity and required further medical aid after November 13, 2019. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by an advocate who made oral submissions on behalf of the employer and provided answers to questions posed to them by members of the appeal panel.

The employer’s position is that while the evidence confirms that the worker developed a mild case of epicondylitis arising from their workplace duties in May 2019 as accepted by the WCB, the worker’s condition responded well to conservative treatment and following an injection in October 2019, the worker’s symptoms resolved and the worker had recovered from the compensable injury.

The employer’s advocate noted the evidence from the worker’s November 13, 2019 appointment with the treating physician who confirmed the worker’s symptoms had resolved. The advocate further pointed to the fact that the worker resumed work at that time, in a position that did not involve any physical labour activities and that the worker did not make any ongoing complaints to the employer related to symptoms of this injury nor did the worker seek further medical treatment.

The advocate pointed out that the worker noted in discussions with the WCB on more than one occasion in January 2020 that their elbow was feeling good and that they had “zero symptoms” since the injection but then, on January 23, 2020 advised the adjudicator of some elbow soreness that day and one week later, advised that the elbow pain had returned. The employer’s advocate noted that during January there were no new workplace incidents or injuries reported, and that the worker continued working in the same position. The employer’s advocate submitted that the worker’s statement that their elbow pain returned indicated that the worker’s symptoms were not a continuation of the compensable workplace injury but a new bout of symptoms which were not related to the worker’s workplace activities at that time.

The employer’s advocate also referenced the medical evidence that the worker has other systemic health conditions in the same arm which are not work related and noted there is no evidence as to how or when those conditions developed or if they impacted the compensable condition as there has been no further medical information provided since April 7, 2020.

In sum, the employer’s position is that the evidence supports a finding that the worker is not entitled to wage loss or medical aid benefits after November 13, 2019 and therefore the decision of the Review Office should be upheld, and the worker’s appeal denied.

Analysis

The worker is appealing the WCB’s decision that they are not entitled to wage loss and medical aid benefits after November 13, 2019. For the worker’s appeal to succeed, the panel would have to determine that as a result of the compensable injury sustained in May 2019, the worker continued to sustain a loss of earning capacity and required medical aid beyond November 13, 2019. The panel was able to make such findings as outlined in the reasons that follow.

The file evidence confirms that the worker developed right lateral epicondylitis arising from the May 2019 workplace accident. Following treatment with a cortisone injection on October 18, 2019, the worker reported on November 13, 2019 feeling much better and was able to return to work to a position that did not involve physical labour. These facts are not in dispute in this appeal.

The panel considered whether the evidence indicates the worker made a full recovery from the compensable workplace injury by November 13, 2019. We note the evidence confirms the worker reported reduced symptoms of right lateral epicondylitis by November 13, 2019 as set out in the treating sport medicine physician’s report of that date to the WCB. At that time, the worker reported their symptoms had settled and were “now much better, almost gone”. The panel noted however that the treating physician recommended the worker continue with physiotherapy exercises and follow up as needed, suggesting that the worker’s condition may not have been fully resolved at that time.

The evidence further confirms when the worker returned to work after November 13, 2019, they took on a different role that was not physically demanding and continued in that role. Approximately two months later, the worker reported to the WCB at first that they were experiencing some right elbow soreness, and approximately a week later, that their right elbow symptoms had returned. The panel noted that when the worker followed up with the treating sport medicine physician on February 4, 2020, they reported a gradual increase of symptoms over the previous ten days, consistent with the worker’s reports to the WCB, and the physician noted tenderness of the lateral epicondyle and pain with resisted wrist extension and provided a further injection treatment, recommending the worker continue with their light duties.

Relying upon the opinion of the WCB sport medicine advisor of February 26, 2020, the WCB determined that the worker’s right lateral epicondylitis as presenting on February 4, 2020 was not “medically accounted for in relation to the WCB injury” as the November medical reporting indicated the worker was functionally recovered from the compensable injury and there was no evidence of any trauma or other cause for the injury.

However, the panel noted that the treating sport medicine physician stated on December 4, 2020 that cortisone injections such as the worker received on October 18, 2019 do not necessarily provide a permanent resolution and that symptoms of lateral epicondylitis can return when the effects of the injection wear off. The treating physician further stated that the fact that the worker’s symptoms came back within three months even though they were not doing the kind of physical work that initially brought on the worker’s symptoms, is not unusual. The panel accepts and relies upon the treating physician’s opinion in this regard.

We find that this was the case for the worker whose symptoms of right lateral epicondylitis initially responded to the injection treatment, but then re-emerged in late January 2020. This finding is further supported by the absence of any evidence of a new injury after November 13, 2019 or that the worker’s new job duties after that date caused further injury to the worker. The evidence supports a finding that the worker’s compensable injury was not resolved by November 13, 2019 and that despite the initial favourable response to treatment, the worker’s symptoms gradually returned in January 2020 and required further medical treatment, as confirmed by the treating sport medicine physician. The panel finds that this was a continuation of the worker’s compensable condition developed in May 2019 and as such, we find that the Recurrence Policy is not applicable.

The panel is satisfied based on the evidence before us, on the standard of a balance of probabilities, that the worker’s right lateral epicondylitis was not resolved by November 13, 2019 and as such the worker is entitled to further benefits beyond that date as a result of the compensable injury.

The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of December, 2022