The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility for their left wrist difficulties should not be accepted as being a consequence of the March 10, 2020 accident. A videoconference hearing was held on July 19, 2023 to consider the worker's appeal.

Issue

Whether or not responsibility for the worker's left wrist difficulties should be accepted as being a consequence of the March 10, 2020 accident.

Decision

Responsibility for the worker's left wrist difficulties should not be accepted as being a consequence of the March 10, 2020 accident.

Background

The WCB accepted the worker’s claim for right elbow lateral epicondylitis and non-specific wrist pain and provided wage loss and medical aid benefits to the worker in relation to those injuries. The Worker’s Incident Report of March 10, 2020 described right wrist/elbow complaints, which the worker related to their repetitive job duties. The worker received physiotherapy. Nerve conduction studies indicated mild right carpal tunnel syndrome and normal left median nerve. An MRI revealed normal right wrist findings.

When the worker attended a follow-up appointment with the treating sports medicine physician on November 2, 2021, the physician recorded the worker’s complaints of bilateral forearm, wrist and hand pain, variable depending on use with recurrent flare-ups. In discussion with the worker on November 19, 2021, the WCB reviewed the physician’s November 2, 2021 report with the worker and the worker advised that they had sought treatment for many issues, including their left wrist, and had been sent for a nerve conduction study, which was noted to be normal. The worker further advised that a few weeks earlier “…a lump developed on the outside of the left wrist area [palm facing down] where [the] thumb meet (sic) the hand” and that when they bend the left hand at the wrist downward, the lump moves over the tendon on the thumb and they experience a grinding sensation. The worker noted the physician requested further investigations.

The worker contacted the WCB on May 10, 2022, to request that the WCB adjudicate the left wrist issues as part of their claim. The worker confirmed that left wrist difficulties had been noted throughout the length of their claim, including on the employer’s accident report and reports from their treating healthcare providers.

On June 24, 2022, the WCB provided a decision letter to the worker advising it would not accept responsibility for their left wrist difficulties as part of their claim. The WCB noted the medical evidence on the worker’s file did not support the worker’s left wrist difficulties were related to the March 10, 2020 workplace accident.

The worker’s representative submitted a September 7, 2022 report from a physician with an interest in occupational medicine and noted the incidents where the worker had mentioned and received treatment from their healthcare providers for their left upper extremity issues. The report from the physician noted the worker’s “…left-sided arm complaints were always relatively milder, in episodes during times of significant right sided flare-ups when [the worker] relied on [their] left arm to substitute or compensate for right-sided arm pain limitations.”

On February 15, 2023, Review Office determined the worker’s left wrist difficulties were not compensable. Review Office noted the worker’s initial reporting to the WCB on April 9, 2020 only references their right wrist and elbow, although the employer’s report on April 14, 2020 made note of the worker’s report of pain in both wrists, and that it was not until May 10, 2022, almost two years later, that the worker requested their left wrist be considered as part of this claim.

The worker’s representative filed an appeal with the Appeal Commission on April 24, 2023 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 the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation and policy in force at the date of 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. The Act sets out the definition of an accident in s 1(1) as follows: 

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured….

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 27 of the Act provides 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 has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses 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, but that when a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

The WCB has also established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) which 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.

Worker’s Position

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

The worker’s position is that they developed left upper limb injuries arising from the same job duties as caused their right upper limb injuries, and that the evidence, including the employer’s report to the WCB, the medical reporting and other file documents confirm this to be the case; therefore, the WCB should accept responsibility for the worker's left wrist difficulties as a consequence of the March 10, 2020 accident.

The worker advisor outlined the worker’s position that their bilateral upper limb injuries developed as a cumulative result of their continuing job duties, and that the worker’s right upper limb condition flared up while carrying out their job duties in March 2020, which lead the worker to make a WCB claim at that time.

The worker advisor outlined in their submission that the worker’s occupation requires them to undertake heavy, repetitive duties using both hands. They confirmed that the worker was first diagnosed with bilateral tendonitis in their upper limbs in 2018, with the right limb more symptomatic than the left because the worker is right hand dominant. The worker advisor confirmed that the employer was aware of the worker’s bilateral diagnosis, as confirmed in the Employer’s Accident Report of April 14, 2020.

The worker confirmed that in 2018-2019 they attended physiotherapy where they learned appropriate exercises and stretches for their upper limb issues and learned how to tape their upper limbs. Since then, the worker wore braces and tape on their upper limbs while at work. The worker stated in response to questioning by members of the appeal panel that they frequently had flare-ups of their bilateral symptoms prior to March 10, 2020, which they related to their specific job duties, but that after the flare-up caused by the incident on that day, they decided to make a claim to the WCB in relation to those symptoms, which at the time, were worse on the right side than the left side.

The worker advisor confirmed that although there was a specific incident on March 10, 2020 that caused a flare-up of the worker’s right upper limb symptoms, described in the reporting as the worker stumbling while stepping off a ladder and catching their fall with an outstretched right arm overextending the wrist against a cardboard box, the worker’s injury arises out of their repetitive job duties which they perform using both upper limbs. The worker advisor outlined that when the worker sought treatment in March 2020 for the flare-up of symptoms at that time, the history of bilateral tendonitis was noted, and the restrictions put in place applied equally to both upper limbs, although not specified as such. For example, the limitation on ladder use and carrying limits would apply equally to both upper limbs. The worker advisor reviewed the file evidence highlighting the references to “wrists” through April and May, 2020 and noted that by June 5, 2020, the treating hand specialist physiotherapist indicated that the worker was developing left elbow pain as a compensatory condition related to their increased use of that limb because of the increased symptoms in their right upper limb and the related restrictions.

The worker advisor further noted that the medical reporting in relation to this claim contains frequent references to the worker’s bilateral upper limb tendinitis and the worker’s history of both right and left upper limb symptoms. The WCB claim file contains numerous references to the worker’s left upper limb symptoms, beginning soon after the worker made their claim. The worker advisor also noted the absence of any medical reports that dispute or deny a causal relationship between the worker’s job duties and their left upper limb issues.

In sum, the worker’s position is that the medical evidence supports that the left upper limb issues were caused by their workplace duties, which are the same duties that the WCB accepted as causing the worker’s right upper limb issues. If the panel finds that the worker's left upper limb issues were pre-existing, then the workplace duties at least aggravated those issues, and in the further alternative, the worker's compensable right upper limb injuries caused the worker to over-rely upon their left upper limb, resulting in a secondary injury. Therefore, as the worker sustained injury to their left upper limb as a result of carrying out their workplace duties, or as a result of the compensable injury to their right upper limb, the worker is entitled to coverage for the left wrist difficulties as a consequence of the March 10, 2020 accident.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine is whether the WCB should accept responsibility for the worker’s left wrist difficulties as a consequence of the March 10, 2020 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker’s left wrist difficulties are causally related to that accident claim, in that they were caused by the same accident, or if pre-existing that injury, were aggravated or enhanced by that injury, or were a further injury secondary to the right upper limb injury. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The circumstances giving rise to the worker’s appeal are somewhat unusual, in that the worker initially made a claim to the WCB only for injury to their right upper limb, including both their right elbow and wrist, based on an accident date of March 10, 2020, and did not raise the question of compensation for their left upper limb injury until May 2022. In their initial incident report, the worker noted that their right elbow and wrist had been bothering them for “about 3 years. It would come and go depending on the type of work I was doing. On March 10 something caused it to flare up.” The worker further noted that their regular job duties, including using a hand drill, repetitive motion and bending pipes would aggravate their injury. The worker also noted in the report that they are right hand dominant.

The panel noted that the evidence confirms the worker had a “long history of” bilateral wrist issues, with symptoms first noted in 2017, described by the occupational health physician as a “pattern of intermittent and recurrent complaint of activity related predominantly wrist, and elbow pains…flaring up during the work day and evening, resolving overnight.” The evidence indicates that the worker sought treatment for bilateral wrist difficulties in 2018. The panel further noted that the medical reporting from before the 2020 claim does not indicate any work-related accident history or any relationship between the worker’s specific job duties and their left wrist symptoms. The evidence confirms the worker sought physiotherapy in relation to both wrists in November 2018 continuing until February 2019, and that the worker continued to work in their job duties with the employer after that date, while experiencing what they described as flare-ups from time to time. Nerve conduction studies in March 2019 did not reveal any physiological cause for the worker’s symptoms, and the medical and physiotherapy chart notes also do not provide any information as to the cause of the worker’s bilateral upper limb symptoms at that time. Based on the evidence before us, the panel finds that the worker’s left wrist issues pre-date the worker’s March 10, 2020 accident claim, and we are satisfied that this was a pre-existing condition as defined in the Pre-existing Policy.

As such, the panel also considered whether there is evidence that the worker’s pre-existing left upper limb conditions were enhanced or aggravated by the accident of March 10, 2020 or by the worker’s job duties leading up to that date. The panel noted that although the initial medical reporting records the worker’s history of bilateral wrist issues, the treating medical professionals focused their treatment only on the worker’s right wrist when the worker sought medical care after March 10, 2020. While the worker advisor aptly noted that restrictions such as no climbing ladders would protect the left as well as right upper limb, the panel finds that there is no indication in the file that there was any need to protect the worker’s left upper limb before the comment in the June 5, 2020 physiotherapy progress report that the worker is “now developing pain to the left elbow with compensating.” The panel is satisfied based on the evidence before us that the worker’s pre-existing left upper limb condition was not aggravated or enhanced as a result of the incident on March 10, 2020.

The panel also considered the worker’s alternate position that their left upper limb condition arose as a secondary injury to the workplace injury. The physiotherapist’s June 5, 2020 report described a “new tenderness to the left lateral epicondyle” which they attributed to the worker’s compensatory use of their left limb due to the restrictions in place in respect of the right arm; however, the panel noted that this finding is not repeated in any subsequent reporting. There are no further references to the worker’s left upper limb symptoms in the physiotherapy reporting until the January 26, 2021 request for additional treatment, which noted the worker’s report of “left arm getting worse with the right arm being sore.” The panel further noted that clinical findings in terms of the worker’s left upper limb strength and mobility are relatively consistent in the reporting. The panel also considered the evidence that the worker’s left upper limb symptoms apparently worsened after the worker left their job duties in early June 2020 due to the right upper limb injuries. While the treating physiotherapist speculated that the increase in symptoms at that time was related to the worker’s overcompensation for the injured right upper limb resulting from the injury, we do not find that the evidence supports that conclusion. We find that the evidence of an increase in left upper limb symptoms from June 2020 onward does not indicate that these symptoms are causally related to the workplace event or to the worker’s job duties, nor that those symptoms are the result of a secondary, or further injury as defined in the Further Injuries Policy.

The panel finds that the evidence does not support the worker’s position that their left upper limb difficulties were caused by the accident of March 10, 2020, nor does the evidence support the worker’s position that the left upper limb difficulties are predominantly caused by the compensable injury sustained on March 10, 2020, or the treatment of that injury or the restrictions imposed in relation to that injury. Furthermore, the evidence does not support a finding that the March 10, 2020 injury enhanced or aggravated the worker’s pre-existing left wrist condition.

Therefore, based on the totality of the evidence before the panel, and on the standard of a balance of probabilities, the panel finds that the WCB should not accept responsibility for the worker’s right wrist difficulties as a consequence of the March 10, 2020 accident. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of August, 2023