Decision #58/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further medical aid treatment. A hearing was held on March 22, 2023 to consider the worker's appeal.
Whether or not the worker is entitled to further medical aid treatment.
The worker is not entitled to further medical aid treatment.
This claim has been the subject of three previous appeals. Please see Appeal Commission Decision No. 73/19 dated June 25, 2019; No. 100/21 dated August 13, 2021; and No. 142/21 dated December 8, 2021. The background will therefore not be repeated in its entirety.
The worker has an accepted WCB claim for a soft tissue injury to his right pinky finger which occurred at work on September 26, 2018. The worker sought medical treatment the same day. The treating physician referred the worker for an x-ray and recommended he remain off work for one week as he suspected the worker had fractured his right little finger. An x-ray performed the following day did not identify a fracture or a dislocation, and the physician diagnosed the worker with a soft tissue injury and recommended he could return to light duties on October 2, 2018.
On September 28, 2018, the WCB advised the worker that his claim was accepted for a right little finger injury, but he was not entitled to wage loss benefits after September 27, 2018 as they had determined he was not totally disabled and the employer had offered him modified duties which were suitable based on his injury. On October 10, 2018, the worker's treating family physician completed a Work Capabilities Analysis Form, indicating the worker could return to his full, regular duties with no restrictions as of October 9, 2018.
The worker requested reconsideration of the WCB's September 28, 2018 decision, and on December 5, 2018 Review Office upheld that decision. On December 21, 2018, the worker filed an appeal with the Appeal Commission. A hearing was held, and on June 25, 2019, pursuant to Decision No. 73/19, the Appeal Commission determined that the worker was entitled to wage loss benefits beyond September 27, 2018.
On August 20, 2019, the worker attended at the WCB and advised that he had been referred to a plastic surgeon for further treatment on his pinky finger. On January 15, 2020, the WCB received a Doctor First Report in respect of the worker's December 17, 2019 appointment with the plastic surgeon. In that report, the surgeon noted the worker's complaints of stiffness and pain in his right little finger. After examining the worker, the surgeon noted tenodesis/ arthrodesis in the right little finger and the proximal interphalangeal (PIP) joint was not passively correctable. The surgeon diagnosed a Boutonniere deformity and recommended surgery to correct it. The WCB obtained medical reports and chart notes from the worker's treating healthcare providers, and on April 21, 2020, the WCB provided a letter to the worker's treating attending plastic surgeon, approving the first stage of the proposed two-stage surgical procedure.
On June 4, 2020, the worker contacted the WCB to advise that there was a delay in scheduling the surgery. The worker further advised he was no longer working with the employer and had other employment. On July 10, 2020, the WCB spoke with the attending plastic surgeon's office, who confirmed the worker had not booked the surgery and had requested to meet with the plastic surgeon again.
On July 21, 2020, the employer contacted the WCB for a status update on the worker's file. The employer advised that the worker had not returned from a leave of absence on July 20, 2020 and had told the employer he was seeking further medical attention to determine if he was able to return to work.
The WCB received a July 22, 2020 report from the worker's attending plastic surgeon, who opined that as documented in an x-ray of the worker's right little finger taken that day, the worker's finger "…over the course of time has now fused in a position of 20 degrees flexion…" The plastic surgeon noted that the worker was aware of the permanent nature of his condition and had already arranged for different employment. The surgeon further advised that the worker was no longer a candidate for surgery.
In a further conversation with the WCB on July 24, 2020, the worker confirmed the surgery was not proceeding and he had no further follow-up appointments scheduled. The worker also confirmed that he was not working with the employer and had arranged other employment since January 2020, noting he had taken a leave of absence from the employer. The worker further confirmed he no longer wanted to work for the employer, as he could not physically perform the job duties due to the compensable injury. On September 2, 2020, the employer provided the WCB with a copy of the letter advising the worker that his employment had been terminated effective July 27, 2020.
After gathering further information from the worker and the employer, the WCB advised the worker, on December 31, 2020, that he was not entitled to wage loss benefits after September 28, 2018. The WCB confirmed the worker was paid wage loss benefits for September 28, 2018, pursuant to Appeal Commission Decision No. 73/19, and that the worker returned to work on October 2, 2018 as set out in a note from his treating physician. Information had been provided by his employer that October 1, 2018 was a "production down day" and workers were not scheduled to work that day. The WCB further noted the employer had provided the worker with suitable accommodated duties, and the worker performed his full regular duties from October 8, 2018 up until May 5, 2019, when he began a leave of absence.
On January 13, 2021, the worker requested that Review Office reconsider the WCB's December 31, 2020 decision, noting in his submission that he continued to suffer the effects of the workplace injury and believed the WCB did not consider his entitlement to wage loss benefits after his employment ended with the employer. On February 23, 2021, the employer provided a submission in support of the WCB's decision.
On March 10, 2021, Review Office determined that the worker was not entitled to wage loss benefits beyond September 28, 2018. Review Office noted the worker had advised the WCB on several occasions that he had obtained different employment and did not intend to return to work for the employer after his leave of absence ended. Review Office could not establish the worker had a loss of earning capacity as there was no relationship between the worker's loss of employment with the employer and his compensable injury. On March 16, 2021, the worker provided further information to Review Office, and on the same date, Review Office confirmed that the March 10, 2021 decision remained unchanged.
On March 31, 2021, the worker filed an appeal with the Appeal Commission. A hearing was held, and on August 13, 2021, pursuant to Decision No. 100/21, the Appeal Commission determined that the worker was not entitled to wage loss benefits after September 28, 2018.
On February 16, 2021, the worker's WCB case manager requested that the WCB's Healthcare department determine if the worker was eligible for a permanent partial impairment rating and award. A call-in examination with a WCB physiotherapy advisor was arranged for May 7, 2021. At the call-in examination, the worker reported he had ongoing pain and stiffness in his right little finger, and the injury limited his ability to write with a pen or pencil. On examining the worker, the WCB physiotherapy advisor noted "Some thickening of the right little finger PIP (proximal interphalangeal) joint was observed. A boutonniere deformity was not apparent on observation. There is no rateable cosmetic impairment related to the compensable injury." Active guided range of motion measurements were taken for the worker's right and left little fingers, and when compared, a permanent partial impairment rating of 0.40% was calculated. On May 11, 2021, the WCB advised the worker that he was not entitled to a permanent partial impairment award as the examination findings did not support the results of the examination met the criteria for an award.
On June 22, 2021, the worker requested that Review Office reconsider the WCB's decision, noting he believed the examination was not fair. On July 13, 2021, the employer provided a submission in support of the WCB's decision. On July 29, 2021, Review Office determined that the worker was not entitled to a permanent partial impairment award. Review Office found that the calculation of a 0.40% permanent partial impairment rating recorded by the WCB's physiotherapy advisor from the May 7, 2021 examination was correct and accepted the advisor's recommendations. Review Office found the examination was conducted within the WCB's policy guidelines and was a fair assessment. Review Office went on to note that an impairment rating of less than 1.00% did not result in a monetary award, and as such, determined the worker was not entitled to a permanent partial impairment award.
On August 16, 2021, the worker filed an appeal with the Appeal Commission. The Appeal Commission held a file review, and on December 8, 2021, pursuant to Decision No. 142/21, the Appeal Commission determined the worker was not entitled to a permanent partial impairment award.
On October 28, 2021, the WCB received a copy of an October 27, 2021 report from a sports medicine physician. The report indicated the worker had been seen by his family physician a week earlier due to numbness in his PIP joint, with no new injury being noted. The sports medicine physician noted the worker had a Boutonniere deformity of the right fifth digit, and mild swelling of his PIP joint, with limited range of motion. The physician further noted the worker was "…looking for what amounts to medico legal opinion to appeal to WCB…" and he suggested the worker speak with the plastic surgeon he had seen in the past to look into this, as they had not previously been involved with his care. The physician recommended that splinting and right hand physiotherapy be considered.
On January 19, 2022, the WCB's plastic surgery consultant spoke with the worker's sports medicine physician to discuss the worker's medical history with respect to his right little finger. The plastic surgery consultant and the sports medicine physician discussed the physician's recommendation for physiotherapy, and the consultant noted it was agreed that physiotherapy was unlikely to result in significant change in light of the worker's "…fixed extension lag at the right small finger PIP joint…" Splinting was also discussed, with the WCB's plastic surgery consultant indicating she would discuss this further with a WCB physiotherapy advisor.
That same day, the WCB plastic surgery consultant discussed the worker's file with the WCB physiotherapy advisor, and it was noted that "Splinting and physiotherapy is unlikely to result in a sustained improvement in function or alter the natural history of recovery at this time." On January 21, 2022, the WCB plastic surgery consultant noted the worker's file had been reviewed and concluded that based on the medical information, physiotherapy / splinting at this time was "…unlikely to result in significant functional or structural change to the right small finger."
On January 31, 2022, the WCB advised the worker that they would not authorize further physiotherapy or medical treatment as the weight of evidence did not support the need for further treatment in relation to his injury. The WCB further noted that an impairment review had been completed and supported the functional status had likely reached maximum medical improvement.
On August 5, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that he was still experiencing severe pain as a result of the workplace accident and required additional treatment for his right pinky finger.
On September 16, 2022, Review Office determined that the worker was not entitled to further medical aid benefits. Review Office placed weight on the WCB plastic surgery consultant's opinion on file and found it was unlikely that treatment at that point in time would provide a significant benefit in recovery or change the status of the worker's injury, and further treatment was therefore not warranted in relation to the compensable injury.
On December 1, 2022, the worker filed an appeal with the Appeal Commission, and a hearing was arranged.
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.
Section 27 of the Act deals with compensation in the form of medical aid. Subsection 27(1) 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."
The WCB's Board of Directors has established Policy 44.120.10, Medical Aid (the "Policy"), which sets out general principles regarding a worker's entitlement to medical aid. The Policy provides that the WCB determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. The Policy also provides that the WCB'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 worker was self-represented on the appeal. The worker's position was that he is entitled to further medical aid as his pinky finger is still hurting him and requires urgent medical examination and attention.
The worker submitted that he has not slept well since the workplace accident due to his injury. He stated that his finger is very noticeable, that it gives him "discomforting feelings you can't express" and has disfigured him. He said that he cannot write for any length of time, as it is very uncomfortable, and he experiences severe pain in his right hand.
The worker submitted that he was examined by a physiotherapist who was not independent, having been hired by the WCB, and who advised that there would be no further improvement. He noted that the WCB then went on to conclude that there would be no improvement with any further treatment.
The worker said he requires a second examination and opinion from another specialist to determine if his pinky finger requires medical treatment. He indicated that when he saw the sports medicine physician, he assumed the physician could provide him with a specialized second opinion which he could submit to the WCB to have them approve treatment for his pinky finger. He noted that while the sports medicine physician said he could not provide him with a second opinion, the physician at least stated he needed physiotherapy and splinting, and the worker urged the panel to find that he is entitled to such treatments. The worker noted he did not have further medical evidence to submit, as he could not afford to go and see another medical practitioner who might charge him for such a visit or opinion.
The employer did not participate in the appeal.
The worker is appealing the decision that he is not entitled to further medical aid treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker requires further medical aid to cure and provide relief from his compensable injury. The panel is unable to make that finding, for the reasons that follow.
The panel does not dispute that the worker has permanent damage to his right little finger and ongoing difficulties and concerns with respect to that finger arising out of his September 26, 2018 workplace accident. The panel is not satisfied, however, based on our review and consideration of all of the evidence and the submissions which are before us, that any further medical aid is necessary to cure and provide relief from the right finger injury the worker sustained as a result of his September 26, 2018 accident.
The evidence shows that the worker saw a plastic surgeon in late 2019, who initially recommended surgery in his December 17, 2019 report. That surgery did not proceed, with the attending surgeon indicating in his July 22, 2020 follow-up report that the worker "returns 2 years post fracture/dislocation of the right little finger which over the course of time has now fused in a position of 20 degrees flexion as documented on the x-ray done today." The surgeon stated that there would be no further need for follow-up as the worker was "no longer considered a surgical candidate," and no further treatment was recommended.
The worker submitted that the sports medicine physician he saw in October 2021 said he needed physiotherapy and splinting, and urged the panel to find that these treatments should be covered. The worker said he strongly believed that such treatment would help him a lot. The panel finds, however, that the evidence does not support that either of these forms of treatment are necessary or likely to cure or provide relief from the worker's compensable injury. The panel is therefore unable to find that the worker would be entitled to coverage for the suggested physiotherapy or splinting.
In arriving at that conclusion, the panel notes that the WCB plastic surgery consultant spoke to the sports medicine physician following receipt of the physician's report. The WCB consultant noted that they discussed the medical history on file, including the December 17, 2019 report by the attending plastic surgeon of "an extension lag at the right little finger of approximately 25 degrees that was not passively correctible", and the sports medicine physician advised that he had not been aware of that information. The WCB consultant noted that it was agreed that "in light of the presence of a fixed extension lag at the right small finger PIP joint since 2019, physiotherapy at this time is unlikely to be of significant benefit."
It was further noted, with respect to the sports medicine physician's reference to the possibility of splinting, that the consultant indicated she would consult the WCB physiotherapy advisor as well. The evidence shows that the consultant did discuss the matter with the physiotherapy advisor that same day, and it was noted that "splinting and/ or physiotherapy is unlikely to result in a sustained improvement in function or alter the natural history of recovery at this time, i.e. over 3 years post injury with fixed extension lag of 20 degrees since 2019."
The panel notes that the worker was not able to identify anything specific he required or was seeking in terms of medical aid, other than physiotherapy and splinting. When asked at the hearing if there was some other medical aid he was seeking, the worker stated that "The medical aid I'm seeking is how to improve my pinky finger."
The worker also stated that he needs a second opinion "to determine if this pinky finger requires…a medical treatment." He noted that since the plastic surgeon's July 22, 2020 report, his issues and discomfort have increased and part of the reason he was asking for a second opinion or examination was to determine if further medical treatment is now required. In the circumstances, and based on the evidence, the panel is unable to find that such a second opinion is necessary or should be covered by the WCB.
Finally, the panel notes that this is a point in time decision. The worker's submission focused, in part, on his possible or prospective need for medical aid, but the totality of the evidence which is before the panel does not support he requires further medical aid at this time arising out of his September 26, 2018 workplace accident.
Based on the foregoing, and on a balance of probabilities, the panel finds that the worker does not require further medical aid to cure and provide relief from his compensable injury. The panel therefore finds that the worker is not entitled to further medical aid treatment.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of May, 2023