The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the March 31, 2021 accident. A videoconference hearing was held on March 7, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the March 31, 2021 accident.

Decision

The worker is not entitled to further wage loss benefits, but is entitled to further medical aid benefits, in relation to the March 31, 2021 accident.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 68/22 dated June 16, 2022. The background will therefore not be repeated in its entirety.

On June 14, 2021, the worker reported an injury to her right elbow that occurred on March 16, 2021. The worker reported the injury was cumulative and was as a result of doing data entry and date stamping duties, with the pain being "…inside the bone, felt like needles." The worker noted she reported the injury to the employer on April 15, 2021.

On April 15, 2021, the worker had a virtual visit with her treating sports medicine physician. The worker noted she had started on a graduated return to work plan due to a non-compensable injury and was working 4 hours per day. She reported to the treating physician she had "…previous problems with date stamping and may be aggravating arm." A doctor's note listing the worker's restrictions completed on the same date indicated the worker should "…minimize repetitive movement (date stamping) until reassessed until (sic) May 31, 2021."

A further virtual visit took place on May 25, 2021, where the worker reported her right elbow pain had become progressively worse, which she related to the date stamping, and did not feel she could continue that specific job. The treating sports medicine physician opined that the worker likely had lateral epicondylitis, but a clinical assessment would be required to confirm the diagnosis. A doctor's note the same date requested the worker be excused from performing the date stamping duties until she could be assessed on June 11, 2021.

At the follow-up appointment with the sports medicine physician on June 11, 2021, the physician noted the worker had a normal x-ray and found tenderness in her right lateral epicondyle, which tenderness increased with isometric extension of her wrist and some weakness. A diagnosis of lateral epicondylitis was provided, and a brace, physiotherapy and topical anti-inflammatory medication were recommended. A physician's note was also provided, setting out restrictions of no repetitive gripping (date stamping), no lifting greater than 5 pounds and may require short breaks from typing duties for four weeks.

On June 15, 2021, the worker attended an initial physiotherapy assessment, reporting lateral elbow pain, "…worse at work with excessive typing, stamping or any lifting over 5lbs." The worker advised the physiotherapist that the pain restricted her activities of daily living such as cooking and cleaning. The physiotherapist reported that with testing, the worker had pain with resisted wrist extension, elbow extension and finger extension, and noted a positive Cozens and middle finger test. The physiotherapist diagnosed the worker with right lateral epicondylitis and recommended restrictions of no typing more than one hour continuously, breaks required as needed; no repetitive gripping or wrist movements; and no lifting over 5 pounds.

The WCB contacted the worker on June 21, 2021 to discuss her claim. The worker advised she was on a gradual return to work plan for a non-compensable injury and started her current position on March 16, 2021. On the third day of working in this position, she began to experience elbow pain, which she related to the date stamping portion of the job duties. On April 15, 2021, the worker was given a note to minimize the date stamping duties until she could be assessed in person on May 25, 2021. The May 25 appointment ended up being a virtual appointment, and an in-person appointment was arranged for June 11, 2021. The worker advised that the treating physician recommended at the June 11 appointment that she take short breaks from typing, but the employer advised the worker not to return to work after her June 14, 2021 work shift.

On June 23, 2021, the WCB again contacted the worker who provided further details about her claim. The worker advised she performed the date stamping duties from March 16 to April 15, 2021, with her gradual hours of work increasing from 4 hours per shift, to 5 hours per shift on April 14, 2021 and 6 hours per shift on June 7, 2021. The worker advised that she performed the date stamping duties for approximately one hour when she was working 4-hour shifts, and those duties increased to approximately one and one half hours per shift when she started working 5-hour shifts on April 14, 2021. The worker noted her current symptoms included pain with any movement of her right arm, and she had been performing home based exercises provided by the physiotherapist after the initial assessment.

The employer provided the WCB with the job duties for the worker's position on June 25, 2021 and advised the worker had been participating on a graduated return to work plan since March 2021. The employer further advised that the worker was only performing portions of the job duties listed, and more responsibilities would be added as she gained proficiency with the assigned duties until she was performing the full scope of the position. The employer also advised an ergonomic assessment had been conducted for the worker prior to her return to work, and the recommendations implemented for the worker.

On July 29, 2021, the worker's file was reviewed by a WCB medical advisor. The medical advisor opined that the worker's current diagnosis was right lateral epicondylitis which would typically improve or resolve over a period of weeks to months with modification of activities and physiotherapy. The WCB medical advisor advised that lateral epicondylitis develops as the result of activities involving repetitive and relatively forceful use of forearm muscles, and/or repetitive extension of wrist and hand and "…typically require a cumulative exposure of days rather than hours depending on the intensity of forces involved."

On July 29, 2021, the WCB advised the worker that her claim was not acceptable as they could not relate the worker's diagnosis of lateral epicondylitis to her job duties. The worker advised that she had returned to work on July 27, 2021.

On August 19, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker provided a chronology of the events leading up to and after her workplace injury and advised that as she continued to suffer the effects of that injury, she required medical treatment and further benefits. On October 5, 2021, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on October 9, 2021.

On October 13, 2021, Review Office upheld the WCB's decision that the worker's claim was not acceptable. Review Office agreed with the opinion of the WCB medical advisor that the job duties that lead to the development of lateral epicondylitis typically involve a strong grip against force with twisting and pulling motions and take several months to years of repetitive work against force to develop. Review Office found that the worker's date stamping job duties did not involve forceful or resisted movement for a long duration, and as such, they could not establish a relationship between those duties and the worker's diagnosis of lateral epicondylitis.

On October 16, 2021, the worker requested that Review Office again review the medical information submitted on her claim and noted disagreement with a portion of Review Office's decision related to her stopping work in June 2021. By letter dated October 19, 2021, Review Office provided further clarification, and advised that their decision remained unchanged.

On November 1, 2021, the worker filed an appeal with the Appeal Commission and a videoconference hearing was arranged. On June 16, 2022, pursuant to Appeal Commission Decision No. 68/22, the Appeal Commission determined the worker's claim was acceptable, and the worker's file was returned to the WCB's Compensation Services for further adjudication.

After gathering information from the worker and the employer, the WCB issued wage loss benefits for the period of June 15, 2021 to July 26, 2021. On July 7, 2022, the employer advised the WCB that the worker returned to work in July 2021 and worked until December 14, 2021. On the same date, the WCB contacted the worker for a status update. The worker advised she continued to experience pain in her right elbow, which would come and go, with her elbow being tender to the touch, and that she was able to perform modified duties. The worker noted she felt she was 75% recovered from the workplace accident.

On July 11, 2022, the worker contacted the WCB and provided a list of dates she had been seen by her treating sports medicine physician. On July 13, 2022, the employer advised the WCB that the worker was placed on leave without pay as of December 2021, as she had "…very limiting permanent medical restrictions from a pre-existing medical condition (non-WCB)" and the employer was unable to accommodate the worker within those restrictions.

On August 11, 2022, the WCB received copies of medical reports and chart notes from the worker's treating sports medicine physician from August 17, 2021 to July 5, 2022. The reports noted the worker's complaints of right elbow pain and noted restrictions, including the restrictions from the July 5, 2022 report of no lifting greater than 5 lbs, no repetitive movement and may require short breaks from sustained activity for medical reasons.

On August 12, 2022, the worker attended an initial physiotherapy assessment. The worker reported sharp pain to the inside of her right elbow, difficulty with holding/carrying objects, and inability to perform repetitive tasks, and noted her right elbow did not feel the same as the left. The physiotherapist provided a diagnosis of right tennis elbow and queried whether the worker had a ligamentous injury to her elbow. Restrictions of no repetitive movements of the right arm, and can perform light desk duties such as typing and filing were provided.

On September 2, 2022, the worker's file was reviewed by a WCB medical advisor. The medical advisor opined that the worker's current diagnosis was right elbow lateral epicondylitis, which typically resolves over a period of 2 to 6 weeks with avoidance of potentially provocative activities and involvement in an appropriate strengthening program. The WCB medical advisor opined that epicondylitis is a commonly occurring condition in the general public, and that there is evidence "…that participation in activities involving repetitive and forceful wrist movements of flexion/extension and/or supination/pronation may contribute to the development of epicondylitis."

The medical advisor further noted the restrictions provided by the worker's treating sports medicine physician and physiotherapist "…have been proposed in response to reported symptoms rather than any objective findings or structural abnormalities." Treatment for epicondylitis was noted to typically involve avoidance of potentially provocative activities, and involvement in a physiotherapy-based strengthening program, with more resistant cases possibly requiring bracing, steroid injection or surgery.

On September 8, 2022, the WCB advised the worker that she was not entitled to further benefits as it had been determined she had recovered from the March 31, 2021 workplace injury and no longer required treatment or restrictions in relation to her compensable injury.

On September 22, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker noted she returned to work in July 2021 and was placed on leave by the employer in December 2021 as the employer could no longer accommodate her restriction of "…repetetive (sic) task i.e. date stamping because of the nature of this responsibility is crucial to this position…" and noted that job tasks could not be eliminated from the position. The worker submitted that she injured her elbow doing date stamping and could not do data entry as well. She was not approved for physiotherapy treatment to heal her injury and the employer said in December that they could not continue to keep her in this office as she had given them "new medical restrictions i.e. to avoid repetetive (sic) task." On November 7, 2022, the employer provided a submission in support of the WCB's decision, and the worker provided a response to that submission on November 16, 2022.

On November 18, 2022, Review Office determined that the worker was not entitled to further benefits. Review Office accepted the WCB medical advisor's opinion that improvement of symptoms would be expected over a period of weeks to months after stopping the date stamping duties. Review Office noted the worker returned to work on July 27, 2021 to a data entry position, working reduced hours. Review Office found that the data entry position did not require the worker to date stamp and the worker indicated she had no issues completing the job duties. Review Office therefore concluded that as of July 27, 2021, the worker no longer had a loss of earning capacity or need for medical treatment due to the compensable injury.

On November 23, 2022, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

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

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

Worker's Position

The worker was self-represented, and provided a written submission in advance of the hearing. The worker made an oral presentation at the hearing, and responded to questions from the panel.

The worker's position was that she totally disagreed with the decision that there was no entitlement to further benefits.

The worker submitted that the employer placed her on leave without pay as of December 3, 2021 because they could no longer accommodate her due to the restrictions related to her right elbow injury.

The worker noted that she had prior ongoing medical restrictions from a 2007 accident. She was placed in an accommodated position starting March 16, 2021, where she was told she would be doing only two tasks, being data entry and date stamping. The worker said she injured her right elbow doing the repetitive task of date stamping, and when she reported her injury to the employer in June 2021, she was told not to come to work and to get better.

The worker said she was off work from June 22 to July 27, 2021, and with the help of the union pressuring the employer, she reported back to work on July 27. The worker noted that the employer made sure she was not doing the date stamping task and was only doing data entry at that time, which was fine with her. The worker noted she started back on a gradual basis, and was able to increase her hours to her regular eight-hour day on October 4, 2021.

The worker noted that while the employer was allowing her to do data entry only, date stamping was also an important task in that office, which she could not do. The worker stated that on November 30, 2021, the employer told her they could not continue to employ her there, as they were moving into a busy period and needed someone who could do all of the tasks well and more efficiently in order to meet the higher demand. The worker said that on December 3, 2021 she was told that it was her last day, and was sent home without pay. The worker stated that the employer said they would find a job for her, but later advised that they could not find a job because of all her restrictions.

The worker submitted that her pre-existing medical restrictions were permanent, and the only new restriction since she started the job in March 2021 was the restriction to avoid the repetitive task of date stamping due to her elbow injury. The worker said that after she filed this appeal for further benefits, the employer sent her a letter terminating her employment effective December 13, 2022.

In conclusion, the worker submitted that she should be entitled to wage loss benefits from December 2021 to the present, as the employer took her off work instead of allowing her to continue doing the data entry. She also indicated that she should be entitled to further physiotherapy treatment, noting that the WCB paid for five physiotherapy treatments starting August 2022, then stopped those treatments, even though her treating physician and physiotherapist had recommended continuing with the treatment so she could fully recover from her injury.

Employer's Position

The employer was represented by their WCB Coordinator, who provided a written submission in advance of the hearing and made an oral submission to the panel.

The employer's position was that the worker is not entitled to further benefits in relation to the March 31, 2021 accident as the information does not support further entitlement to wage loss benefits or further need for medical treatment related to her right elbow injury.

The employer's representative noted that the worker filed her claim on June 14, 2021 for an injury to her right elbow which she related to the performance of her job duties, noting that "doing data entry and date stamping duties has caused pain in my elbow." The Appeal Commission accepted responsibility for the worker's claim on June 16, 2022, and the claim was referred back to Compensation Services to determine the worker's entitlement to benefits. Compensation Services accepted responsibility for the claim based on a diagnosis of right lateral epicondylitis in the presence of pre-existing chronic right shoulder and cervical myofascial pain, and paid wage loss benefits for the period of June 15 to July 26, 2021.

The employer's representative noted that the worker returned to work on July 27, 2021 and the employer continued to accommodate her from July 27 to December 3, 2021, but was no longer able to accommodate her after that. The representative submitted that the employer's inability to accommodate the worker after December 3, 2021 was due to her permanent non-work related restrictions, and was not due to restrictions with respect to her right elbow injury.

It was submitted that the employer's position was supported by the July 29, 2021 opinion of the WCB medical advisor, who stated that lateral epicondylitis will typically improve/resolve over a period of weeks to months with activity modification and physiotherapy.

The employer's representative submitted that there was no causal connection between the modified duties the worker performed from July 27 to December 3, 2021, and her physician's findings on December 3, 2021 of a tender right lateral epicondyle. The representative noted the worker stopped date stamping in May 2021, approximately six months earlier, and she told the appeal panel at the April 21, 2022 hearing that she "was working all fine until December 3rd" and had not had any problems with her right elbow since stopping work in December 2021.

The employer's representative further noted that in a January 26, 2022 report, the worker's physician documented "Not working because work not able to accommodate. Right elbow improved," and subsequent reports from the worker's physician did not mention any difficulties with her right elbow until his October 26, 2022 report, where he noted "Right elbow still sore." The representative questioned how an apparent increase in the worker's right elbow difficulties in October 2022 would be related to the performance of her job duties, as she had not worked for the employer since December 3, 2021.

In conclusion, the employer's representative submitted that based on the information on file, the worker is not entitled to further benefits in relation to the March 31, 2021 accident and her appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the March 31, 2021 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of further loss of earning capacity and/or required further medical treatment as a result of her March 31, 2021 workplace accident.

Based on our review and consideration of all of the available information and the submissions of the parties, and for the reasons that follow, the panel is unable to find that the worker suffered a further loss of earning capacity, but is satisfied that the worker required further medical treatment, as a result of her March 31, 2021 workplace accident.

The panel notes that the worker is seeking further wage loss benefits beyond December 3, 2021 on this appeal. The worker has argued that she was placed off work by the employer on December 3, 2021 due to her work-related restrictions concerning repetitive date stamping. The panel is unable to accept that argument.

The panel finds that the evidence supports, on a balance of probabilities, that the employer placed the worker off work due to an inability to accommodate her pre-existing non-compensable restrictions, and is satisfied that there is an absence of evidence to the contrary.

The panel notes that after her return to work in July 2021, the employer accommodated the worker's restriction with respect to date stamping, such that the worker was not required to perform such duties. The panel acknowledges the worker's position that while she had other restrictions which were pre-existing, these were permanent and did not change, and the only new restriction in December 2021 when the worker was placed off work was the restriction with respect to repetitive date stamping. The panel notes, however, that the restriction was not particularly new as the worker and the employer had been working within that restriction for more than four months.

The panel further acknowledges that the worker stated at the hearing that the employer told her on November 30, 2021 they needed someone who could do all the tasks well and more efficiently. The panel finds, however, that there is an absence of a foundation or other evidence which would enable us to arrive at such a conclusion.

In the circumstances, and based on the available evidence, the panel finds that the worker did not suffer a further loss of earning capacity beyond December 3, 2021 as a result of her March 31, 2021 workplace accident.

The panel notes that the worker referred to various additional issues or concerns relating to the wage loss payments she had received, including concerns with respect to the accuracy of the calculations that were done, incorrect information having been provided, incorrect references to overpayments, and sick credits or vacation credits having been misapplied. The panel confirmed that we had no jurisdiction to address such matters on this appeal, and have not done so.

With respect to medical aid benefits, the panel is satisfied, however, that the evidence supports that the worker required further medical treatment as a result of her March 31, 2021 workplace accident. In this regard, the panel is unable to find that the worker had recovered from her right elbow injury when she returned to work on July 27, 2021 or when she was placed off work on December 3, 2021. The evidence shows that on her return to work in July 2021, the worker was in a graduated return to work program, with reduced hours and a restriction with respect to repetitive date stamping. In the panel's view, the fact that the worker was accommodated and able to perform her work duties at that time, indicates that she had not fully recovered from her injury.

It is the panel's understanding that treatment for lateral epicondylitis typically includes physiotherapy, as was noted by both of the WCB medical advisors in their opinions dated July 29, 2021 and September 22, 2022, respectively. In his September 22, 2022 opinion, the medical advisor thus stated that "Typical treatment of epicondylitis involves avoidance of potentially provocative activities, and involvement in a PT-based strengthening program. Treatment of more resistant cases may include bracing, steroid injection, or surgery."

In this instance, the worker's treating sports medicine physician recommended physiotherapy, and the worker attended an initial physiotherapy appointment on June 15, 2021, where a treatment plan was proposed. The panel notes that the WCB medical advisor opined on July 29, 2021 that the treatment plan for the worker was appropriate, and the panel is satisfied that physiotherapy would have been provided to the worker if the claim had been accepted at that time. Treatment was not approved, however, as the claim was not accepted at that time.

Following the acceptance of the worker's claim by the Appeal Commission on June 16, 2022, the worker attended another initial physiotherapy assessment on August 12, 2022, where a treatment plan was again proposed. The WCB approved five sessions pending adjudication of the worker's claim for benefits. On September 8, 2022, however, Compensation Services determined that the worker had recovered from her work injury and no longer required treatment or restrictions in relation to her compensable injury. The worker was therefore advised that she was not eligible for physiotherapy beyond the 5 sessions that were initially authorized.

Following the acceptance of the worker's claim on June 16, 2022, reports were obtained from the worker's treating sports medicine physician for the period of time prior to and after December 3, 2021. The panel notes that in a number of those reports, the treating physician documents ongoing symptoms relating to the worker's right elbow. The panel acknowledges that the information on file shows the worker indicated at various times that she was fine and her elbow was not bothering her. The panel is of the view, however, that this is to be considered in the context of the worker not performing the duties which caused or aggravated her lateral epicondylitis at those times.

In response to questions at the hearing, the worker stated that she was focused in her daily life on doing other little things that she could do, and after December 3, 2021, she was just staying home and was generally not doing anything that would irritate her elbow. The worker further noted at the hearing that her symptoms flared when she went for the physiotherapy assessment and treatment in August 2022, and commented that the pain was probably hidden and then flared up and came back when she went for the assessment and was asked to do certain exercises, and the physiotherapist recommended that she needed to continue with the treatment.

In sum, the panel is satisfied, on a balance of probabilities, that the worker had not fully recovered from her compensable injury as at December 3, 2021. While the panel finds that the worker required and was entitled to further medical aid, the panel is not in a position, based on the information which is before us, to assess when or to what extent such further treatment or medical aid was or continues to be required to cure and provide relief from the worker's compensable injury, and refers the matter back to the WCB for further adjudication.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of further loss of earning capacity, but did require further medical treatment as a result of her March 31, 2021 workplace accident. The panel therefore finds that the worker is entitled to further medical aid benefits in relation to the March 31, 2021 accident.

The worker's appeal is allowed, in part.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of May, 2023