The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The return to work plan commencing July 29, 2019 is appropriate; 

2. They are not entitled to benefits for the diagnoses of Costochondritis, left bicep tendonitis and left carpal tunnel syndrome in relation to the December 18, 2017 accident; and 

3. They are not entitled to further physiotherapy treatment.

A hearing was held on November 10, 2022 to consider the worker's appeal.

Issue

1. Whether or not the return to work plan commencing July 29, 2019 is appropriate; 

2. Whether or not the worker is entitled to benefits for the diagnoses of Costochondritis, left bicep tendonitis and left carpal tunnel syndrome in relation to the December 18, 2017 accident; and 

3. Whether or not the worker is entitled to further physiotherapy treatment.

Decision

1. The return to work plan commencing July 29, 2019 is appropriate; 

2. The worker is not entitled to benefits for the diagnoses of Costochondritis, left bicep tendonitis and carpal tunnel syndrome in relation to the December 18, 2017 accident; and 

3. The worker is entitled to further physiotherapy treatment.

Background

This claim was the subject of a previous appeal in Appeal Commission Decision No. 104/19, dated August 16, 2019. The background will therefore not be repeated in its entirety.

On December 19, 2017, the WCB received an Employer's Incident Report indicating that the worker injured their right shoulder, right wrist, head and right toe in an incident at work on December 18, 2017 when they were providing assistance to a resident and they tripped on the leg of a bed and fell forward hitting their head on a table and hitting their right arm on a door frame, then landing on their right wrist. The worker was treated in hospital and diagnosed with a head contusion and right arm distal radius and proximal humerus fractures. The right arm fractures were treated by surgery consisting of an open reduction and internal fixation of the humerus and percutaneous fixation of the radius.

The WCB accepted the worker's claim and provided benefits.

After the surgery, the worker attended physiotherapy and followed-up with the orthopedic surgeon, who recommended continued physiotherapy and occupational therapy to assist with the worker’s right shoulder difficulties. On May 10, 2018, the worker was assessed by a second orthopedic surgeon due to ongoing complaints with their right shoulder. The second orthopedic surgeon noted non-union of the right humerus fracture and recommended a right shoulder arthroplasty. On May 23, 2018, the worker underwent hardware removal and a right reverse ball and socket shoulder arthroplasty.

At follow-up on June 15, 2018, the second orthopedic surgeon recommended the worker attend physiotherapy for active assisted range of motion, progressing to active range of motion of the right shoulder, as well as range of motion of the right elbow and wrist. On August 20, 2018, the surgeon recommended the worker would benefit from more aggressive range of motion rehabilitation for their right shoulder and from further massage therapy to help relax their muscle prior to the exercises. On September 4, 2018, Compensation Services authorized five further sessions of massage therapy, and on October 3, 2018, Compensation Services advised that further funding for massage therapy sessions was denied as they were of the view that massage therapy was not essential to restore the worker’s function and fitness for work.

On October 17, 2018, the worker requested that Review Office reconsider Compensation Services' decision regarding massage therapy. On November 27, 2018, Review Office determined that the worker was not entitled to further massage therapy treatments. Review Office noted that the second orthopedic surgeon recommended more active and aggressive therapy for the worker's rehabilitation, and that although the worker felt massage therapy was beneficial, it was a passive form of treatment, rather than the active therapy recommended by the surgeon.

After a nerve conduction study on November 21, 2018, the neurologist indicated the worker had moderate left carpal tunnel syndrome (“CTS”). On follow-up with the treating family physician on November 29, 2018, the family physician reviewed the nerve conduction study results and provided an opinion that the CTS developed “…on the left as a result of overuse of this side…”, relating the condition to the worker’s ongoing right shoulder issues.

A WCB medical advisor reviewed the worker’s file on December 5, 2018, noting the treating family physician’s opinion that the left CTS developed due to overuse, but stated to develop an overuse issue, the worker would have had to have performed the following activities: 

• combination of force/repetition: 

o force = grip of > 10 lbs. 

o repetition = cycle repetition of at least once every 30 seconds for 20 hours/week 

• combination of force/posture 

o repetitive hyperflexion and twisting of wrist against force 

• exposure to vibration 

• forceful work 

o moving > 50 lbs. several times per hour over most hours of the work day

The WCB medical advisor concluded the worker’s left CTS was not related to the workplace accident and the WCB adopted this conclusion, as confirmed in a letter of December 10, 2018.

In follow-up with the worker on December 11, 2018, the treating family physician noted “…some chest wall costochondritis from an overuse due to [their] shoulder problem which is benefiting from ice and heat, conservative approach, physio (physiotherapy) and massage therapy” and recommended the worker get a second opinion from an orthopedic surgeon.

On January 2, 2019, a WCB medical advisor reviewed the worker’s file and provided an opinion that if the worker had been performing repetitive heavy duties, the costochondritis could be related to the workplace accident but otherwise it was likely non-specific chest wall pain.

On January 3, 2019, the worker appealed the Review Office decision to the Appeal Commission. On August 20, 2019, in Appeal Commission Decision No. 104/19, the appeal panel determined the worker was not entitled to further massage therapy treatment.

On January 10, 2019, the worker requested that Review Office reconsider the WCB’s decision that the left CTS was not related to the workplace accident, noting that prior to the workplace accident, they had not experienced any symptoms or other difficulties with CTS in their left hand. Further, the worker noted that the treating healthcare providers supported that the worker developed CTS in their left hand due to overuse as a result of their right shoulder difficulties. On February 19, 2019, Review Office determined there was no coverage for the worker’s left CTS.

A WCB rehabilitation consultant conducted a Worksite Assessment on March 12, 2019. The consultant noted the worker’s current restrictions of sedentary duties no more strenuous than activities of daily living and work within the body envelope with a 5-pound lifting maximum with the right hand. Return to work discussions between the worker, the employer and the WCB followed.

On June 4, 2019, the worker attended the WCB for a psychiatric call-in examination. On interviewing the worker, the WCB psychiatric consultant provided an opinion that the worker would benefit from returning to work in a capacity consistent with their physical abilities, noting that the worker’s psychological state did not preclude them from work.

On June 10, 2019, the worker’s treating physiotherapist requested extension of physiotherapy treatment for the worker noting the worker required treatment to restore their cervical and thoracic spine range of motion. A WCB physiotherapy advisor reviewed the request on June 19, 2019 and denied it on the basis that there was “No measurable evidence of a sustained improvement of function as determined by validated outcome measures and the movement towards return to work.” The WCB advised the treating physiotherapist and the worker of the decision on June 20, 2019.

Following a further discussion with the WCB regarding returning to a reception position with the employer, the worker advised the WCB on July 12, 2019, they would not be participating in the proposed return to work plan.

A WCB medical advisor reviewed the worker’s file on July 17, 2019 after receipt of a July 10, 2019 report from the treating family physician indicating the worker had “…evidence of a left biceps tendinitis…” which the physician related to the worker’s “…overuse and compensatory measures for the right side.” The WCB medical advisor noted the treating physician did not provide any clinical details to support the diagnosis and stated that the worker would have had to perform the following activities with their left side for the diagnosis to be related to the workplace injury:

• Repetitive heavy lifting (more than 25lbs, at least 2-3 times per hour) 

• Repetitive reaching with weight 

• Prolonged use of left arm held unsupported and away from the body 

• Repetitive overhead motion

On July 24, 2019, the WCB advised the worker it determined their left bicep difficulties were not related to the December 18, 2017 workplace accident.

On July 25, 2019, the WCB advised the worker that their wage loss benefits would be reduced based on the return to work schedule developed beginning July 29, 2019 as the worker chose not to participate in the plan developed.

On July 29, 2019, the worker requested Review Office reconsider the WCB’s decision to reduce their wage loss benefits noting their belief they were unable to return to work as the accommodated position offered by the employer was not acceptable and outside of their restrictions. On September 10, 2019, Review Office upheld the WCB’s decision and found the return to work plan commencing on July 29, 2019 was appropriate and as such, the worker’s wage loss benefits would be reduced based on that plan.

On October 25, 2019, the worker requested Review Office reconsider the WCB’s June 20, 2019 decision to deny further physiotherapy, on the basis that their treating healthcare providers supported continuation of physiotherapy to improve the worker’s range of motion and allow for management of their symptoms for both of their arms. On December 4, 2019, Review Office determined the worker was not entitled to further physiotherapy as the evidence did not support a finding that the worker required further treatment for their right upper extremity injuries.

On January 27, 2020, the worker again requested that Review Office reconsider the WCB’s decision to reduce their wage loss benefits as of July 29, 2019, noting that an August 28, 2019 CT scan indicated a large bone ossification next to the total shoulder arthroplasty, which interfered with the articulation in their shoulder. Further, the worker noted their healthcare providers recommended continued physiotherapy treatment to aid in the worker’s recovery. Review Office determined on April 1, 2020 that the return to work plan commencing on July 29, 2019 was appropriate, as most of the job duties listed in the plan were within the worker’s physical restrictions, and a gradual increase in hours within that plan was appropriate given the worker had been off work since the December 18, 2017 workplace accident. Furthermore, Review Office noted no psychological restrictions had been placed on the worker.

At the request of the worker’s representative, the WCB provided the worker with a decision letter on February 8, 2021 indicating the diagnosis of costochondritis was not accepted in relation to the December 18, 2017 workplace accident.

On May 17, 2021, the worker’s representative requested Review Office reconsider three decisions made by the WCB. The representative submitted that the worker’s diagnoses of left bicep tendonitis, right costochondritis and left carpal tunnel syndrome were compensable injuries that related to the December 18, 2017 workplace accident. The representative noted that following the workplace accident and subsequent surgeries, the worker increased their use of the left upper limb as they were right hand dominant, and the injury was to their right upper extremity. Further, the representative noted that while the physiotherapy treatment the worker received was directed at their right upper limb injury, the treatment relied on the worker using their left upper limb.

On July 8, 2021, Review Office determined the worker was not entitled to benefits for the diagnoses of costochondritis, left biceps tendonitis or left wrist carpal tunnel syndrome. Review Office accepted the opinions of the WCB medical advisors that the worker had not engaged in activities or therapies associated with the risk factors for developing those diagnoses.

The worker’s representative filed an appeal with the Appeal Commission on July 11, 2022 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.

Section 22(1) creates an obligation upon workers as follows:

Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and 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 treatment or services provided by healthcare providers. 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.

The WCB has also established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) with an effective date of May 1, 1993 to December 31, 2021. This policy applies to a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This Policy sets out that a further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

The WCB has also established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) which outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. This policy sets out the following hierarchy of objectives that employers are expected to consider in respect of a return to work:

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer.

The Return to Work Policy defines suitable work as that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers. To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

Worker’s Position

The worker appeared in the hearing, represented by a worker advisor who provided an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker advisor outlined the worker’s position that the return to work plan commencing July 29, 2019 is not appropriate. In this case, the employer and the worker did not agree upon the suitability of the offered alternate duties and as such, the WCB should have conducted a worksite assessment and a functional capacity evaluation of the worker to determine whether the proposed duties were suitable as defined in the WCB’s Return to Work Policy. The worker advisor noted that the worker’s compensable restrictions arising from the workplace injury allowed the worker to take on sedentary work whereas the offered alternate duties involved work in a busy reception desk position that would necessarily involve repetitive and reach tasks with the worker’s right arm as well as left arm. The worker advisor further noted that the worker’s treating physicians agreed that there was a need for a functional capacity evaluation before the worker returned to work. The worker advisor submitted that the WCB should not have determined that the offered job duties were appropriate without conducting a more detailed assessment of the tasks required to ensure that the job duties were safe for the worker to undertake, and noted that the WCB medical advisor, in January 2020, ultimately agreed that a functional capacity assessment was required.

The worker advisor outlined the worker’s position with respect to the worker’s entitlement to benefits arising from the diagnoses of costochondritis, left bicep tendonitis and left carpal tunnel syndrome in relation to the workplace accident of December 18, 2017. The worker’s position is that they developed symptoms of left CTS arising out of the rehabilitation activities and activities of daily living undertaken in the months following the December 18, 2017 surgical repair of the injuries sustained in the accident of that date. Specifically, the worker advisor noted that the worker was required to repetitively and forcefully use their left hand, in a pinch grip, to don and doff the compression sleeve that they used to control the swelling arising from the injuries. The worker reported numbness and tingling symptoms to their occupational therapist in early March 2018 which were noted as potentially related to CTS. The worker noted that activities causing symptoms included wringing out a face cloth, holding a phone and gripping or holding activities. The worker advisor noted that the treating neurologist provided a diagnosis of moderate left CTS in November 2018 and that the consulting occupational health physician provided an opinion that but for the worker’s use of their compression sleeve following the right shoulder injury, the worker would not have developed CTS. In December 2018, the worker’s treating family physician provided a diagnosis of costochondritis, which the physician attributed to the worker’s overuse due to the shoulder injury. The worker advisor noted that the WCB medical advisor confirmed that non-specific chest wall pain could develop arising from non-fluid movement of the worker’s right shoulder, and if that was the case then non-specific chest pain would be related to the compensable injury. The worker’s family physician also provided a diagnosis of left biceps tendinitis on July 10, 2019 noting their belief that this was secondary “to overuse and compensatory measures for [the worker’s] right side.” The worker advisor submitted that this condition was the result of the worker’s participation in physiotherapy that required repetitive and forceful use their left upper limb and due to the worker’s use of water dumbbells as part of aquatic therapy in 2018.

In sum, the worker’s position is that the evidence supports a determination that the totality of demands on the worker’s left upper limb following the workplace accident led to the development of the worker’s repetitive use diagnoses of costochondritis, left bicep tendonitis and CTS. As such, these diagnoses are compensable as further injuries arising from the compensable injury which are primarily attributable to the compensable injury or are the result of delivery of treatment for the compensable injury.

The worker’s position with respect to entitlement to further physiotherapy is that the worker should be entitled to additional therapy as the evidence supports the worker’s continuing need for such treatment related to the compensable injury. The worker advisor stated that the WCB denied further physiotherapy on the basis of the worker’s sustained improvement in function but noted that this occurred while the WCB was trying to facilitate the worker’s return to work. Specific concerns were noted with respect to the reliance on a home program placing demands on the worker’s left limb which was at that time compromised and worsening in condition. When the worker’s treating physiotherapist requested further treatment, it was for therapies that the worker could not self-administer. The worker advisor noted the evidence that physiotherapy helped the worker to maintain their level of function, and that during the pandemic related suspensions of treatment, the worker’s range of motion was reduced, supporting a conclusion that the continuing treatment was of benefit to the worker’s function. Therefore, the worker should be entitled to further physiotherapy.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are three questions in this appeal, which are addressed in turn below.

Is the return to work plan commencing July 29, 2019 appropriate? 

The worker appealed the WCB’s decision that the return to work plan with a start date of July 29, 2019 is appropriate. For the worker’s appeal to succeed, the panel would have to find that the offered alternate duties were not suitable. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal on this question is denied.

The panel considered the worker’s position that the evidence does not support a finding that the alternate work offered by the employer was suitable, as the WCB did not arrange a functional capacity evaluation of the worker and did not conduct a workplace assessment to confirm that the offered duties would align with the worker’s compensable restrictions. The provisions of the WCB’s Return to Work Policy outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy defines suitable work as that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Further, suitable work is permanent or transitional employment that considers the worker’s pre-accident employment, aptitudes, skills, and what work is available, as well as any safety concerns for the worker or co-workers. In determining if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The file evidence confirms that by July 2019, the treating medical professionals were of the view that the worker was not capable of a return to their pre-accident work, nor to modified duties in that role. The WCB medical advisor on March 11, 2019 noted that the worker’s treating physician supported a return to less physical duties such as clerical or supervisory tasks and noted this to be consistent with the recommendations from the rehabilitation specialist. At that time, the WCB had established restrictions of mainly sedentary duties, no lifting greater than 5 lbs., and work within the body envelope.

As a result, the employer offered alternate duties in the same facility, which would entail the worker providing reception desk services and various other support services to residents in the facility. The employer’s offer of two days weekly at a lower rate of pay was communicated to the WCB on May 2, 2019. On May 3, 2019, the WCB presented the offer to the worker, noting that the WCB would top up the wages and that the worker would have the ability to decline specific tasks if there were safety concerns.

On May 6, 2019, the worker advised the WCB that they could not even think about entering the employer’s premises where the accident occurred and that they were having flashbacks and needed help responding to the trauma associated with the compensable injury. The panel noted that a psychological assessment conducted by a WCB psychiatric consultant on June 4, 2019 found there were no restrictions related to the worker’s diagnosis of adjustment disorder with persistent anxiety, and that the worker “would benefit from a return to work in a capacity consistent with [their] physical ability.” The worker also communicated to the WCB on July 12, 2019 their objection to taking on this role as it was potentially “anxiety trigger provoking”.

In the hearing, it was clear from the worker’s testimony that they struggled to accept that they would not return to their pre-accident profession as a result of the workplace accident. The worker stated that they refused the alternate work as it was not meaningful to them and noted their concerns with their direct supervisor’s approach to management. Despite the worker’s stated concerns in this regard, the evidence before the panel confirms that the worker’s compensable psychological condition was not a barrier to their return to work and that a return to work was supported by the psychological assessment in June 2019 as being helpful to the worker’s mental health.

After the WCB confirmed on July 12, 2019 that the offered alternate work remained available, the worker raised additional concerns about the specific job duties proposed and their ability to undertake those duties given their physical limitations arising from the compensable injury. As a result, the WCB adjudicator proposed a meeting with the worker and employer to address the worker’s concerns, but the worker stated that they would not consider a return to work without a functional capacity evaluation. The panel noted there is no requirement in the Return to Work Policy that a formal functional capacity evaluation be undertaken prior to a return to work, but the WCB must determine that the work is such that the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. The panel considered the proposed job duties and the related concerns outlined by the worker advisor and the worker in the hearing, noting that the WCB confirmed the worker’s ability to refuse any duties outside of their restrictions or which they felt to be unsafe given their physical limitations. While there may have been certain aspects of the job duties outlined in the alternate work offer that did not align with the worker’s restrictions, the panel is satisfied that the job duties generally fell within the worker’s capabilities at that time and that the employer would accommodate the worker’s restrictions. Further, the panel noted the employer’s willingness to meet with the worker and the WCB to discuss any concerns about the proposed return to work. As such, we are satisfied that the return to work plan was appropriate.

The panel further noted that the worker did not fully participate in the return to work process, having raised concerns about the proposed job duties and environment, but then refused to meet with the WCB and the employer to address those concerns. The panel finds that the worker failed to mitigate the effects of their compensable injury in that they failed to fully participate in the planning for the anticipated return to work, which their care providers and the WCB supported.

Based on the totality of the evidence, and on the standard of a balance of probabilities, the panel is satisfied that the return to work plan commencing July 29, 2019 is appropriate. The worker’s appeal on this question is denied.

Is the worker entitled to benefits for the diagnoses of costochondritis, left bicep tendonitis and carpal tunnel syndrome in relation to the December 18, 2017 accident? 

The worker appealed from the WCB’s determinations that the further diagnoses of costochondritis, left bicep tendonitis and left carpal tunnel syndrome cannot be causally related to the injuries sustained in the December 18, 2017 accident. For the worker’s appeal to succeed the panel would have to find that the evidence supports a finding that the cause of these additional diagnoses is predominantly attributable to the compensable injury or arises out of the delivery of treatment for the compensable or out of a situation over which the WCB exercises direct specific control. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal of this question is denied.

The panel considered the medical reporting with respect to the development of each condition, in turn. The medical reporting indicates the occupational therapist recorded the worker’s report of symptoms of numbness and tingling with certain activities on March 6, 2018, in the course of treatment for the compensable injury. At that time the occupational therapist queried a diagnosis of CTS and proposed the worker trial use of a carpal tunnel splint. As noted by the WCB medical advisor in their March 14, 2018 opinion, there were no clinical findings documented to confirm a diagnosis at that time. The medical advisor further noted that the medical literature does not support a lowered threshold for development of CTS based on overuse of the non-injured side such that the diagnosis is only medically accounted for in relation to the compensable injury “…if the worker was doing activities with the left because of the injury to the right that are known to cause CTS (ie repetitive forceful grip, heavy lifting, highly repetitive wrist movements – ADL’s do not involve these activities).”

The panel noted the November 21, 2018 findings from nerve conduction study of the worker’s left upper limb indicate that the worker developed left CTS “…likely from overuse compensation due to the right arm injury.” A December 3, 2018 chart note from the treating orthopedic surgeon also noted the recent nerve conduction study and that the worker developed moderate left CTS “…secondary to overuse while compensating for [their] right arm.” The panel also considered the December 5, 2018 opinion of the WCB medical advisor that the worker would have had to be exposed to activities arising from the compensable injury that were sufficiently repetitive and forceful to medically account for the diagnosis in relation to the compensable injury, and that CTS is typically multifactorial, with numerous risk factors other than forceful, repetitive activities that would not relate to the compensable injury.

The panel considered the detailed testimony provided by the worker as to the nature of their post-accident activities using their non-dominant left hand, including description of their activities of daily living, home-based physiotherapy exercises and the process of doffing and donning their right arm compression sleeve multiple times each day to do their exercises. While the panel acknowledges that the worker experienced a degree of difficulty in undertaking those activities with their non-dominant left hand, we are not able to make a finding that those activities were of sufficient force and repetition to have been the predominant cause for the development of left carpal tunnel syndrome, nor are we able to find that the diagnosis arose out of the delivery of treatment, specifically the therapy provided to the worker as part of their rehabilitation from the compensable injury.

The medical reporting from the treating family physician indicates on December 11, 2018 that the worker developed costochondritis and on July 10, 2019, that the worker developed left bicep tendonitis. In each case the physician attributed the development of the condition to overuse injuries arising from the worker’s overreliance on their left upper limb due to the compensable right upper limb injury. As noted by the WCB medical advisor, there are no clinical findings noted by the treating physician in support of either diagnosis, and in each case, the subsequent reporting does not reference any continuing diagnosis or treatment. The panel further noted that the other treating physicians did not provide any comment on these diagnoses, other than noting the worker’s reporting of same.

In testimony, the worker pointed to their swimming activities as a potential cause of these diagnoses, noting that their right shoulder limitations caused them to rely primarily on their left arm when swimming or climbing the ladder out of the pool. The worker testified that they swam to strengthen and increase function in their injured shoulder. The worker also noted their belief that use of water dumbbells in their rehabilitation exercises further contributed to the development of these conditions.

The panel noted the opinions offered by the WCB medical advisor in respect of each of these conditions that repetitive forceful movements are required to develop such conditions based on overuse and that the evidence does not support that the worker was engaged in activities of sufficient repetitive and forceful nature to have developed such overuse injuries. The medical advisor did allow that if the worker was unable to move their right shoulder “in a normal fluid pattern”, the worker might have developed non-specific chest wall pain related to the compensable injury but noted that costochondritis is an inflammatory condition with poorly understood etiology that often occurs spontaneously. With respect to the proposed diagnosis of left bicep tendinitis, the medical advisor outlined in their July 17, 2019 opinion that the worker would have had to engage in left-sided repetitive heavy lifting, repetitive reaching with weight, prolonged used of the left arm held unsupported and away from the body and repetitive overhead motion.

The panel is unable to find, based on the evidence of the worker’s activities in the periods in question that the worker was engaged in activities of sufficient force and repetition to have resulted in the development of costochondritis or left bicep tendinitis, nor are we able to find that the diagnosis arose out of the delivery of treatment or therapy provided to the worker as part of their rehabilitation from the compensable injury.

Based on the totality of evidence before us and on the standard of a balance of probabilities, the panel determines that the worker is not entitled to benefits for the diagnoses of costochondritis, left bicep tendonitis and carpal tunnel syndrome in relation to the December 18, 2017 accident. The worker’s appeal on this question is denied.

Is the worker entitled to further physiotherapy treatment? 

The worker also appealed the denial of further physiotherapy treatment. For this appeal to succeed the panel would have to determine that the worker required further physiotherapy to cure and provide relief from the compensable injuries sustained in the workplace accident. As set out in the reasons that follow, the panel was able to make such a finding and the worker’s appeal of this question is granted.

This appeal arises from the WCB’s June 20, 2019 decision to deny the treating physiotherapist’s June 8, 2019 request for further treatment. The denial was based upon the WCB’s determination that there was no evidence of sustained improvement in the worker’s function and movement toward the goal of returning to work.

The panel considered that the WCB’s objectives in funding medical aid, such as physiotherapy, as set out in the WCB’s Medical Aid Policy, 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.

The panel noted the treating physiotherapist’s June 8, 2019 request for additional treatment required for restoration of the worker’s cervical and thoracic spine range of motion. The proposed treatment was not of a kind that the worker could self-administer. The treating orthopedic surgeon’s chart note of May 29, 2019 indicated that although the worker was not likely “to get much more improvement in the function” of their arm, they would still benefit from symptomatic treatment such as massage therapy or physiotherapy. The June 12, 2019 report from a consulting orthopedic surgeon also noted “it is unlikely that [the worker] will see major functional gains moving forward.” On this basis, the WCB physiotherapy consultant concluded that there was “No measurable evidence of a sustained improvement of function as determined by validated outcome measures and the movement towards return to work. May benefit with WCB physio call in exam to review home exercise program.” On June 25, 2019 another WCB physiotherapy advisor determined that a physiotherapy call-in examination was not necessary as the worker “has had an extensive course of treatment and has been provided with a home program.”

The panel further considered that by June 2019, the worker’s difficulties related to use of their left arm had already been identified. While the panel has determined that the diagnosis of left CTS is not compensable in relation to the accident of December 18, 2017, the diagnosis itself is not in dispute and would likely have had implications in terms of the worker’s ability to engage in only a home-based exercise program that relied upon use of the left upper limb to exercise the right upper limb. In the context of the worker’s non-compensable left arm difficulties, the panel finds that reliance upon only a home-based exercise program was not appropriate.

The panel also noted the comments by Review Office and the WCB physiotherapy advisor as to the number and extent of physiotherapy treatments provided to the worker to the date of suspension of that benefit. We do not find that this metric is determinative of whether or not this worker requires further medical aid; however, we do note that the worker sustained significant injuries requiring two surgical interventions to that point in time and further that the evidence confirms the worker was an active and engaged participant in their therapy, both in clinic and at home and that they continued with physiotherapy as they were able to after the WCB discontinued this benefit until treatment was suspended in 2020 as a result of the Covid-pandemic. The panel further noted evidence of a decline in the worker’s range of motion over this period. The panel accepts that physiotherapy was demonstrated to be safe and effective in minimizing the effects of the worker’s injuries and that the worker’s range of motion was improved with physiotherapy.

The panel also noted the June 22, 2020 opinion of the WCB medical advisor that any return to work “would have the best chance of success if it’s done gradually and likely with support from physio…”. Given the file evidence confirms that return to work discussions were ongoing in June 2019 when the WCB determined that further physiotherapy was not required, it is difficult to reconcile the decision to terminate physiotherapy with the planning for the worker’s imminent return to work.

Based on the totality of evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker required medical aid, specifically, physiotherapy to eliminate or minimize the impacts of their compensable injuries and to support their safe recovery and return to work. As such the worker is entitled to further physiotherapy treatment. The worker’s appeal on this question is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of January, 2023