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 further benefits after October 2, 2021. A hearing was held on March 21, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after October 2, 2021.

Decision

The worker is entitled to further benefits after October 2, 2021.

Background

On July 20, 2021, the worker submitted a Worker Incident Report to the WCB reporting injury to their right wrist and arm that occurred at work on July 16, 2021 when they pulled a heavy machine and experienced shooting pain in their thumb and wrist. Immediately, the worker had to stop what they were doing and afterwards, could only perform their job duties with their left hand until the end of the shift.

The worker sought treatment with a sports medicine physician on July 19, 2021, reporting a shooting pain at the radial aspect of their right wrist up to their elbow after pulling a machine at work. The worker further reported persistent pain in their wrist, radiating up to their forearm, aggravated by gripping or grasping, and decreased sensation in their right thumb. The sports medicine physician noted the worker had full range of motion in their right wrist with pain to the radial aspect with ulnar deviation, tenderness to palpation, a positive Finkelstein's test, and an unremarkable right wrist x-ray. The worker's elbow was noted to have full and pain free range of motion with a tender medial epicondyle. The physician diagnosed “de Quervain's tenosynovitis (traumatic aggravation)” and recommended the worker remain off work, with follow-up in 2 to 3 weeks to consider physiotherapy and a possible gradual return to work.

The employer provided an Employer's Accident Report on July 21, 2021, noting the worker had submitted an Injury Near Miss report for the July 16, 2021 workplace incident and also reported that the repetitive motions of their day-to-day job duties were causing ongoing achiness in their right elbow, lower arm and hand/wrist. The employer noted they could accommodate the worker with sedentary duties.

When the worker followed up with the treating sports medicine physician on August 4, 2021, the physician indicated the worker's right wrist pain had "settled a bit" with medication and brace use but the worker still had pain when gripping or grasping. The physician recommended physiotherapy and modified duties with left hand use only and always wearing the right wrist brace. The worker attended an initial physiotherapy assessment on August 16, 2021 reporting pain in their right wrist and thumb with movement, rotation and any pinch or grip. The physiotherapist noted reduced flexion and extension and grip/pinch strength and diagnosed de Quervain's tenosynovitis.

In follow up with WCB on August 25, 2021, the worker advised that their current symptoms included sharp pain, worse with movement in their right lower arm, elbow/forearm to their wrist and thumb area that began with the incident on July 16, 2021. Afterward, the worker noted they could only use their left hand and needed a coworker to help them by pulling the machine for them for the balance of their shift. The worker also provided the WCB with specifics of their job duties and noted there had been no significant changes in their job duties or their workload. The worker went on to note difficulty with activities of daily living since the workplace accident, that they have limited range of motion in their thumb, cannot write as they cannot hold a pen and believed themselves to be about 20% recovered. The WCB advised the worker their claim was accepted, and the payment of various benefits commenced.

On follow-up appointment with the treating sports medicine physician on August 25, 2021, the worker reported that gripping and grasping remained very painful, but they noted improvement with the hand physiotherapy. The physician recommended continued use of the brace and physiotherapy, as well as modified duties as outlined on August 4, 2021. The physiotherapist on August 31, 2021 noted continued improvement and recommended the worker remain off work due to the requirement to wear a brace.

When the worker provided a status update to the WCB on September 7, 2021, they advised they remained off work as the employer could not accommodate their restrictions. The worker noted feeling approximately 50% recovered, with pain only with movement and improving strength.

On September 22, 2021, a WCB medical advisor reviewed the worker's file and concluded that the diagnosis resulting from the July 16, 2021 workplace accident was a right wrist strain with a natural history of recovery in a few days to a few weeks, as supported by the medical evidence on file from the July 19, 2021 appointment with the sports medicine physician. The medical advisor noted there was no documented evidence of swelling and crepitus, and as such, the evidence did not support an aggravation of pre-existing de Quervain's tenosynovitis. The WCB medical advisor concluded the current diagnosis was right de Quervain's disease, supported by the clinical findings noted in the August 25, 2021 report of the treating sports medicine physician. The medical advisor opined the development of de Quervain's disease was not medically accounted for in relation to the mechanism of injury, which was a strain-type injury and that the worker's current difficulties related to their pre-existing condition rather than to the July 16, 2021 workplace accident.

On September 24, 2021, the WCB advised the worker that the diagnosis accepted as a result of the workplace accident was right wrist strain, and it had determined the worker recovered from that injury. In a September 29, 2021 decision letter, the WCB confirmed the telephone conversation and advised the worker that their entitlement to benefits would end as of October 2, 2021.

The treating sports medicine physician provided a letter to the WCB on October 11, 2021, indicating the worker's pre-existing de Quervain's tenosynovitis symptoms were mild and only present during certain job duties and noted their belief the worker was entitled to further treatment and benefits.

On January 20, 2022, the worker requested reconsideration of the WCB's decision to Review Office, noting they continued to experience difficulties resulting from the workplace injury. The worker provided a detailed description of their job duties, noting the requirement for repetitive grasping and twisting with their hands and indicating the incident on July 16, 2021 which required them to pull the heavy machine, resulted in pain in their right wrist, hand and thumb. On March 10, 2022, the employer provided an email indicating its support of the WCB's decision.

On March 21, 2022, Review Office determined that the worker was not entitled to further benefits after October 2, 2021. Review Office relied upon the WCB medical advisor's opinion that the compensable diagnosis was a right wrist strain, with recovery expected within a short time. Review Office found the evidence on file indicated the worker may have experienced difficulties at work due to a pre-existing condition, noted to be mild and only present during job duties involving fine motor tasks, but could not establish those difficulties were related to the July 16, 2021 workplace accident. As such, Review Office found the worker's current difficulties were unrelated 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 October 12, 2022 and a hearing was arranged.

Reasons

Applicable Legislation

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. 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. 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 WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury. “Aggravation” is defined as the temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury and “enhancement” is defined as when a compensable injury permanently and adversely affects a pre-existing condition. The Policy goes on to provide that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing with a worker advisor who made submissions to the appeal panel on behalf of the worker and relied upon a written submission provided to the Appeal Commission in advance of the hearing. The worker offered testimony through answers to questions posed to them by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined in the worker advisor’s submission, is that the action of pulling the machine on July 16, 2021 caused the worker’s injury, diagnosed as de Quervain’s tenosynovitis, which did not resolve by October 2, 2021 and resulted in the worker’s ongoing loss of earning capacity and need for medical aid. In the alternative, if the panel determines that this condition was pre-existing, the worker’s position is that the workplace accident caused a worsening of symptoms and function related to that pre-existing condition, the effects of which continued beyond October 2, 2021. In the further alternative, the worker’s position is that, even if the workplace accident caused only a right wrist strain, the evidence does not support that the worker was recovered from that injury by October 2, 2021 or that the injury no longer required work restrictions and medical aid.

The worker advisor noted the worker’s position that the WCB investigation of the claim was inadequate in that the adjudicator at first failed to take note that the claim was based upon a specific incident resulting in injury, rather than an accumulation of duties, and further, failed to seek information from the worker’s colleagues and supervisor.

Further, the worker advisor noted that the September 22, 2021 opinion of the WCB medical advisor was also flawed in its conclusions. In terms of the conclusion that the “initial diagnosis…appears to be a right wrist strain”, the worker advisor noted that none of the treating medical professionals identified this diagnosis in their assessment of the worker. The worker advisor further noted the medical advisor relied upon the absence of objective findings of swelling and crepitus as indicating there was no aggravation of the worker’s “pre-existing right de Quervain’s Disease” but submitted that these findings are not required to confirm that diagnosis. In addressing the conclusion that a wrist strain injury typically improves in “a few days to a few weeks”, the worker advisor noted the absence of evidence that the worker was actually recovered in that time, and further, that the worker’s de Quervain’s diagnosis could have delayed the worker’s recovery. In terms of the medical advisor’s conclusion that the worker could not have developed de Quervain’s Disease in relation to the reported mechanism of injury and that this diagnosis is generally of unknown etiology with no “strong evidence” for any occupational risk factor, the worker advisor noted that this was nonetheless the diagnosis provided by the worker’s treating physician on July 19, 2021 and subsequently, and by the treating physiotherapist on August 16, 2021. In response to the medical advisor’s conclusion that the worker’s current presentation was accounted for in relation to the pre-existing de Quervain’s condition rather than the workplace accident, the worker advisor noted that the medical advisor failed to point to any evidence in support of that conclusion, and further, failed to consider whether there was any evidence of aggravation or enhancement of that pre-existing condition.

The worker advisor also noted that the worker’s treatment providers indicated to the WCB in early October 2021 that the worker remained injured from the workplace accident and questioned the determination by the WCB that the worker was recovered. The worker advisor submitted that the subsequent medical reporting confirms the worker continued to obtain treatment from both the sports medicine physician and the physiotherapist beyond October 2, 2021, confirming the worker’s need for ongoing medical aid.

The worker described the mechanism of injury in their testimony, noting that the machine they were moving at the time of the accident weighs 162 kilograms and did not have handles to hold onto but required the worker to grip both sides of the machine with the arms extended away from their body while pulling the machine towards themselves. The worker noted that while doing so, they suddenly experienced intense pain in their right hand, such that they were unable to use that hand and within half an hour, experienced swelling in that hand. The worker initially self-treated by wrapping the hand and applying ice but within a few days could not hold a coffee cup or even a toothbrush and then sought medical treatment.

The worker noted that for a while the employer did not have modified duties within their restrictions available, but when appropriate alternate duties were available, the worker returned to an accommodated role.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue in this appeal is whether the worker is entitled to benefits after October 2, 2021 in relation to the July 16, 2021 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the injury sustained in the July 16, 2021 workplace accident beyond October 2, 2021 such that the worker either required further medical aid or continued to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel reviewed the medical reporting to determine whether there is evidence to support the WCB’s determination that the worker was recovered from their compensable workplace injury as of October 2, 2021. We noted that the WCB medical advisor, in their opinion of September 22, 2021 which the WCB based their determination upon, considered the medical reporting from July 19, 2021 through August 31, 2021. Although the medical advisor concluded that the compensable diagnosis from the initial assessment was a right wrist sprain, the report from the treating sports medicine physician of July 19, 2021 indicated a diagnosis of “right wrist de Quervain’s tenosynovitis (traumatic aggravation).” Further, the panel noted the clinical findings on that initial assessment by the sports medicine physician on July 19, 2021 included tender abductor pollicis longus (“APL”) and extensor pollicis brevis (“EPB”) as well as a positive Finkelstein’s test, which the medical advisor stated, support the diagnosis of de Quervain’s disease.

The panel noted that these same findings are again noted by the sports medicine physician on September 24, 2021, at which time they also noted the worker continued to progress but had experienced a setback in the previous week. On October 1, 2021, the sports medicine physician noted no change to the worker’s condition and treated the worker with an injection to the 1st extensor compartment of the worker’s right wrist. On the same date, the treating hand therapist recorded their clinical findings including reduced grip and pinch strength, tender but less sensitive, tender volar MCP thumb into volar hand but less than previous, swelling still evident through 1st dorsal compartment, and limited wrist flexion and extension. The hand therapist offered a clinical impression of “recovering thumb and wrist sprain due to work place incident” and recommended a treatment plan “that includes continued push towards range restoration, strength gains to functional [return to work].” In their October 11, 2021 narrative report, the treating sports medicine physician summarized that the worker “…initially presented for assessment with a clear history of traumatic cause of right wrist pain consistent with acute tenosynovitis. Although [they] reported pre-existing symptoms these were mild at best and only present with fine motor tasks at work…. [The worker] has been making slow progress with a certified hand therapist as expected for the condition.” On next assessment, on October 22, 2021, the physician recorded the worker’s report of “Significant improvement in wrist pain post cortisone injection” and that the worker was working in accommodated duties. Clinical findings from that date included a negative Finkelstein test, tender thenar muscle, full thumb opposition and “not tender 1st extensor compartment”. The physician recommended the worker continue to use the brace and continue in modified duties for another 4 weeks.

The worker’s position is that the diagnosis of de Quervain’s tenosynovitis was caused by the workplace incident, or alternatively, that it was a pre-existing condition aggravated by the accident. The WCB medical advisor concluded that it was a pre-existing condition and that there was no evidence that it was caused by or impacted by the mechanism of injury in the workplace accident. The panel also noted the treating sports medicine physician’s opinion that this was likely a pre-existing condition with mild symptomatic presentation prior to the accident and which was aggravated by the accident of July 16, 2021 and we accept and rely upon this opinion.

While the WCB medical advisor concluded that the worker’s continuing symptoms, at the time of their review, were no longer accounted for in relation to the compensable injury as a strain type injury, with a “natural history…of improvement in a few days to a few weeks”, the evidence here does not support that the worker was recovered from either a right wrist injury nor from a traumatic aggravation of pre-existing de Quervain’s tenosynovitis by the date of that review. Although recovery norms can be useful guideposts in claim management, the panel does not support reliance upon those norms in determining a specific worker’s entitlement to further benefits, absent clinical findings to confirm or indicate that recovery has in fact occurred. Here, none of the medical reporting on file indicated that this worker was recovered from the workplace injury by October 2, 2021, nor that the worker was capable of a full return to work without restrictions or accommodation, nor that the worker did not require additional treatment beyond that date. Rather, the evidence supported the worker’s need for continuing therapy in relation to the aggravation of the de Quervain’s tenosynovitis and the need for modified duties in their return to work.

Based on the evidence before us and on the standard of a balance of probabilities, the panel finds that the worker had not recovered from their compensable workplace injury by October 2, 2021 and continued to require medical aid and to sustain a loss of earning capacity beyond that date. Therefore, the worker is entitled to benefits after October 2, 2021. The worker’s appeal 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 1st day of May, 2023