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 benefits after July 19, 2021. A hearing was held on November 8, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 19, 2021.

Decision

The worker is entitled to benefits after July 19, 2021.

Background

In a Worker Incident Report provided to the WCB on October 20, 2020, the worker reported an injury to their right wrist that occurred at work on October 10, 2020. The worker described feeling a "pulling type" of pain in their right wrist after moving a person, and noted that after the incident, they sat down for a few minutes "…and the sharp pain dropped down to an achy pain. I did take it easy after that but the pain would intensify if I had to move a [person] or do something that required me to move my wrist. I did finish working my shift." The worker sought medical treatment on October 19, 2020 reporting "…sudden pain in the right wrist" while in the course of their job duties on October 10, 2020, with pain that increased with activity, and extension of the wrist causing worsening pain. On examination, the physician noted no swelling or deformity, full flexion but pain with full extension and normal neurovascular tests, and provided a diagnosis of wrist sprain, recommending use of a wrist brace.

When the WCB contacted the worker on October 23, 2020, the worker confirmed the mechanism of injury and advised that they worked on October 15, 2020 and October 16, 2020 but immediately felt pain in their wrist when performing their job duties. The worker advised that their manager was aware of their ongoing wrist difficulties, and that they were wearing the prescribed wrist brace, which improved their symptoms. The WCB advised the worker their claim was accepted.

On attending an initial physiotherapy assessment on October 17, 2020, the worker reported intermittent pain when not wearing the wrist brace with the pain aggravated by gripping and wrist flexion. The physiotherapist found full wrist flexion and extension with pain at the end range, painful resisted wrist flexion and mild tenderness on palpitation of the distal volar wrist below the wrist crease and diagnosed mild to moderate wrist flexor and flexor digitorum superficialis (FDS) strain. The physiotherapist recommended restrictions on returning to work of avoiding repetitive gripping and wrist flexion for two weeks.

In discussion with the WCB on October 28, 2020, the worker advised that although the physiotherapist recommended the worker wear the wrist brace for two weeks, they were unable to return to work while wearing the brace. On November 10, 2020, the worker advised they met with the employer and arranged a graduated return to work schedule beginning on November 12, 2020.

The treating physiotherapist reported on November 24, 2020 that the worker advised the return to work was going well. On December 2, 2020, the worker advised the WCB they had returned to their full regular duties and their shifts had been going well. A December 3, 2020 report from the treating physiotherapist indicated the worker reported no issues with their full regular duties and as such, the physiotherapist cleared the worker to return without restrictions. In discussion with the WCB on December 22, 2020, the worker advised their right wrist had recovered, they had returned to work at full regular duties, and were discharged from physiotherapy treatment. On January 20, 2021, the worker contacted the WCB to report ongoing difficulties with their wrist. The worker noted that when they provided the update to the WCB on December 20, 2020, they had been absent from work due to an unrelated illness for approximately 3 weeks, but when they returned to work, they noticed their right wrist was a little sore and their symptoms continued until they experienced pain even on their days off. The worker indicated they were scheduled for shifts that were less busy, but they continued to experience wrist difficulties, and advised that they had a physiotherapy appointment the next day.

When the worker attended physiotherapy on January 21, 2021, they reported pain increasing over the previous week at the volar ulnar wrist area, that travelled up their forearm with use, and limited both work and home activities. On examination, the physiotherapist found reduced range of motion in the worker's right wrist, flexion and extension of the wrist caused pain and tenderness in the flexor carpi ulnaris (FCU) tendon. The physiotherapist recommended one week off work to rest the wrist and then a return to light duties beginning at 6 hours per shift, increasing to 8 hours, then 10 hours and finally to 12 hours.

On seeing their treating physician on January 27, 2021, the worker reported pain that increased with certain movements when they returned to work on January 7, 2021 after being off work for an unrelated illness. The worker advised the physician they did not sustain a new injury. The treating physician found no swelling or deformity, and pain on the ulnar side of the volar area of the wrist. They noted range of motion testing was normal with pain on full extension, and diagnosed right wrist sprain.

The WCB participated in a return to work meeting with the worker, their union representative, and the employer on January 28, 2021. At that time, it was determined the worker would return to work on February 1, 2021 for 6-hour shifts and would work to increase their ability to perform their job duties before an increase in shift length takes place.

After follow-up on February 8, 2021, the treating physiotherapist noted the worker's restrictions in terms of limiting repetitive lifting/gripping with right hand, occasional lifting, carrying, and gripping up to 10 pounds, and frequent pushing and pulling of 10-20 pounds. They recommended that the worker continue working 6 hours per day, 4 days per week for 2 weeks, then increase to 8 hours per day, 4 days per week for 1 week, and then full hours. The WCB provided these restrictions to the employer.

On recommendation of the treating physiotherapist, the worker saw a second physician on February 22, 2021. The physician noted the worker's report of soreness and fatigue in their right wrist after working the 6-hour shifts, with pain that worsened with certain job duties. The physician diagnosed chronic wrist pain and referred the worker to a sports medicine clinic for a further opinion. An x-ray of the same date did not indicate any bone or joint abnormality in the worker's right wrist. The sports medicine physician assessed the worker on March 3, 2021 and noted their report of pain in the right wrist after an injury at work, which was aggravated by repetitive activity. On examining the worker, the physician noted tenderness over the distal ulnar wrist, with swelling “…localized to the flexor carpi ulnaris. Resisted testing of the flexor carpi ulnaris is painful.” The sports medicine physician provided a diagnosis of flexor carpi ulnaris strain and recommended continued physiotherapy, with restrictions of no gripping, pulling, or twisting with the right wrist and no pushing. On March 4, 2021, the employer advised they could not accommodate the worker.

A WCB medical advisor reviewed the worker’s file on March 4, 2021 and concluded the diagnosis resulting from the workplace accident was a right wrist sprain, with the proposed current diagnosis from the worker’s sports medicine physician being a flexor carpi ulnaris strain. The WCB medical advisor noted that such injuries typically resolve over a period of a few days to a few weeks and that the worker’s “…persistence of symptoms and functional limitations now at five months later is unaccounted for”, but that the worker reported their symptoms were not completely resolved in December 2020.

On follow-up with the sports medicine physician on March 18, 2021, there was improvement in the worker’s symptoms and their restrictions were updated to light gripping, avoid pulling or twisting with the right wrist and no pushing. On March 26, 2021, the worker returned to work at 6 hours per shift with light duties. Following physiotherapy on April 9, 2021, the worker’s restrictions were again updated to lift/push/pull/carry 10 pounds bilateral; maximum of 2 pounds with right hand; occasional right hand dexterity, fine motor, and grip; 6-hour shifts, 3 days per week until April 19, 2021, when shifts would increase to 8 hours, 3 days per week. The WCB provided the updated restrictions to the employer on April 12, 2021.

On May 5, 2021, the worker was assessed by a physiatrist who specialized in hand and wrist injuries. Following nerve conduction and other testing, the physiatrist noted the worker’s complaints of right-sided medial wrist pain, worse with pronation and supination and ulnar deviation. They noted the worker did not have carpal tunnel syndrome or ulnar neuropathy at their bilateral wrists and provided a diagnosis of an FCU tendinopathy with a possible triangular fibrocartilage complex (TFCC) injury. The physiatrist referred the worker for an MRI study of their right wrist.

The worker’s restrictions were again updated on May 14, 2021, based on recommendations from the treating physician and physiotherapist to maximum bilateral lift of 5 pounds and increase to 8 hours per day, 3 days per week. On June 7, 2021, the WCB advised the employer that based on the reporting of the treating healthcare providers, the worker was cleared to return to their full regular duties. Due to increasing symptoms after their return to regular duties, the worker’s restrictions were again updated on July 5, 2021 to light gripping, no pulling, twisting, or pushing with the right wrist.

The May 21, 2021 MRI study of the worker’s right wrist indicated “No definite cause for the patient’s clinical presentation on this study”. A WCB medical advisor reviewed the worker’s file and provided an opinion on July 8, 2021 that there was no evidence to support a current diagnosis beyond non-specific right ulnar wrist pain. The medical advisor noted the initial diagnosis based on the October 10, 2020 workplace accident was a right wrist sprain, which typically resolves over a period of a few days to a few weeks, and that the diagnostic imaging did not indicate any further structural abnormality.

On July 12, 2021, the WCB advised the worker their entitlement to benefits would end as of July 19, 2021 as it had determined they recovered from the compensable injury.

On November 30, 2021, the worker’s representative requested Review Office reconsider the WCB’s decision, providing a November 5, 2021 medical opinion from the treating sports medicine physician who provided the worker had not recovered from the October 10, 2020 workplace accident and as the worker could not wear the protective brace prescribed for them while at work, the worker’s job duties continued to aggravate the compensable injury resulting in the worker requiring further benefits.

On December 2, 2021, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. The WCB’s Compensation Services requested a WCB medical advisor review the medical opinion provided by the worker’s treating sports medicine physician and on January 10, 2022, the medical advisor noted the November 5, 2021 opinion did not provide new medical information, with the physician acknowledging the MRI did not support the worker had a structural abnormality of their wrist. The medical advisor concluded that at over one year since the October 10, 2020 workplace accident, the worker’s job duties were unlikely to have resulted in a significant re-injury that would require “…further prolonged disability (for weeks or months)” and noted that the worker may continue to have symptoms in their wrist but those would not be medically accounted for in relation to the workplace accident. On the same date, the WCB advised there would be no change to the decision to end the worker’s entitlement to benefits.

On June 23, 2022, the worker’s representative again requested Review Office reconsider the WCB’s decision. The representative noted the worker applied for disability insurance through the employer and was referred to a hand specialist, whose treatment enabled the worker to return to full duties. The representative noted the new physiotherapist recommended a wrist brace that the worker could wear while at work, which also enabled the worker to successfully return to their full duties. As such, the representative noted their belief the worker’s entitlement to further benefits was ended prematurely. The employer provided a submission in support of the WCB’s decision on August 5, 2022, which was shared with the worker and their representative on August 9, 2022.

On September 9, 2022, Review Office determined the worker was not entitled to benefits after July 19, 2021. Review Office relied on the opinions of the WCB medical advisor that the worker’s compensable injury was consistent with a right wrist sprain and found that a more significant injury did not occur as a result of the October 10, 2020 workplace accident. As such, Review Office found the worker’s current difficulties were not related and the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on June 1, 2023 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.”

Worker’s Position

The worker appeared in the hearing, represented by a union representative. The union representative made an oral submission in support of the worker’s appeal and the worker provided testimony through answers to questions posed by the union representative and by members of the appeal panel.

The worker’s position is that the worker was not recovered from the compensable workplace injury sustained on October 10, 2020 as of July 19, 2021 but required additional medical treatment and continued to experience a loss of earning capacity after that date, which is the result of that injury. Therefore, the worker is entitled to additional wage loss and medical aid benefits, and the appeal should be granted. The worker’s representative noted that the worker returned to their job without restrictions or limitations as of January 23, 2022. For this reason, the representative requested that the panel consider reinstatement of the worker’s benefits from July 19, 2021 to January 22, 2022.

The worker testified that they were advised on October 18, 2020 to use a wrist splint, or brace, but the employer’s occupational health and safety protocols did not allow for the worker to wear the brace while at work. As a result, the worker wore the brace only away from work. The worker further noted that in September 2021, the treating hand physiotherapist prescribed a different kind of wrist brace which the employer permitted the worker to wear at work. The worker stated they continued to wear that brace until approximately 6 months before the date of the hearing.

The worker’s representative outlined the timing and details of the worker’s various attempts to return to work after the injury occurred, beginning in November 2020 when the worker returned to modified duties with restrictions. After the injury, the worker returned to full duties as of December 2, 2020 but soon afterward was away from work for approximately three weeks due to a non-compensable illness. Shortly after the worker returned to work on January 7, 2021, they began to experience pain in their wrist following their shifts and sought further medical attention. The WCB accepted the recurrence of the worker’s injury on January 22, 2021 and on February 8, 2021, the worker again returned to modified duties with restrictions, but by February 19, 2021, the worker again sought medical care in relation to their wrist symptoms. On March 3, 2021 the treating physician outlined further restrictions, which resulted in the worker being removed from work. After returning to work with restrictions on March 26, 2021, the worker continued with treatment. On June 3, 2021, the treating sports medicine physician approved a return to regular duties as of June 3, 2021, but the worker’s symptoms increased with the return to regular duties, and on June 30, 2021, the sports medicine physician recommended a return to modified duties, with restrictions that remained in place as of July 19, 2021 when the WCB discontinued the worker’s benefits.

The worker described to the panel the job duties that caused aggravation of their wrist symptoms, noting that some job duties require using their hand with a gripping, twisting, and pushing motion, with those duties typically repeated 100-150 times within a regular shift. The worker described how their symptoms would improve with rest and restrictions and then worsen with each increase in their duties:

And that's how I felt about it. Kind of, like, as that time was going on, it's just that it was never actually getting better. It was just improving. And then, I would work more and then, like, an increase in my duties, and then, it would get worse again. And then, we'd scale back and it would improve, but then we would scale up and it would get worse again.

The worker also testified that after the WCB terminated their claim, they relied on their employer-provided disability insurance plan. Through that plan, the worker began to see a different physiotherapist with a certification in hand physiotherapy. The worker noted that the approach in this therapy was very different and noted that they soon found relief from their symptoms through this treatment. The treatment was further supported by the prescription of a wrist brace that the employer did permit use of within the workplace. The worker described that:

…it was so quickly after I started working with [the hand physiotherapist] and wearing this that I wasn't having pain. I was, like, comfortable again, and I was feeling, like, things were moving along. So, it was, like, a -- a game changer for me. And I credit it a lot to [the] exercises, they were a lot more focused. But the wrist brace I felt made such a difference. Like, I could feel throughout the work shift that it was better.

The worker’s representative outlined that the medical reporting from the worker’s treating physician and physiotherapist did not support the WCB medical advisor’s opinion that the worker was recovered from the workplace injury. Specifically, the reports from the treating providers identified a continuity in the worker’s symptomatic presentation, with periods of rest and recovery followed by increasing symptoms with return to their job duties, and a need for greater limitation in the worker’s restrictions with each return to work, which is not consistent with a finding that the worker was recovered. The representative noted the March 21, 2021 opinion of the medical advisor that “If the recent wrist symptoms and requirement for time away from work were related to the effects of the October 10 2020 injury, one would have to accept that there was incomplete recovery initially and subsequent repeated re-injury or interference with the normal healing process” and submitted that this describes exactly what the worker experienced, and continued to experience beyond July 19, 2021, as supported by the evidence of the treating physician, in their July 28, 2021 report.

In sum, the worker’s position is that the evidence confirms the worker was not recovered from the workplace injury of October 10, 2020 by July 19, 2021, but continued to experience symptoms related to that injury that impacted the worker’s ability to return to their pre-accident job duties and necessitated ongoing treatment. As such, the worker should be entitled to further benefits after July 19, 2021 and the appeal should be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine in this appeal is whether the worker is entitled to benefits after July 19, 2021. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to require medical aid or to experience a loss of earning capacity beyond July 19, 2021 because of the personal injury sustained in the workplace accident of October 10, 2020. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel considered the medical findings and reporting in relation to the injury sustained by the worker on October 10, 2020, focusing on the period most proximate to the WCB’s July 12, 2021 decision that the worker had recovered from the workplace injury. We noted the findings from the May 21, 2021 MRI study did not indicate any structural abnormalities, and that the treating sports medicine physician indicated on June 3, 2021 that the worker could return to work without restrictions, with follow up in four weeks. But, on follow up on June 30, 2021, the physician recorded that the worker had again aggravated their right wrist while performing their regular duties, and that as the employer would not permit the worker to use a splint, modified duties were required, with follow up in four weeks. The treating sports medicine physician reported on July 28, 2021 that the worker continued to work light duties but experienced a “return to soreness” at the pericarpal with good range of motion. The panel also noted the report from the treating family physician of July 26, 2021 indicating the worker’s report of pain with twisting of 5-6/10, worse with extension of the wrist and activities. This supports the worker’s position that their right wrist soft tissue injury was not fully resolved by the time of the June 2021 return to regular duties, but remained vulnerable to further aggravation, which proved to be the case within a few weeks, and resulted in the placement of further restrictions on June 30, 2021.

The panel also reviewed the clinical findings outlined by the treating physiotherapist with a specialty in hand therapy, as outlined in their letter of July 18, 2023. The physiotherapist indicated the following findings from their initial assessment of September 21, 2021:

• AROM right wrist – near full right pronation (with early myofascial endfeel and pain to ulnar wrist – “pulling” reported), full supination but reports same “pulling” sensation over region of FCU. 

• No visible swelling 

• Ulnar deviation painful to ulnar wrist (small click detected), no pain with passive ulnar sided compression 

• Tension right supinator and wrist extensors and mildly along common flexor tendon (at medial epicondyle) 

• Mild weakness finger abductors 

• Resisted isometrics – pain with wrist flexion > wrist extension, pronation, supination (performs resistance but reports sense of self-protection/guarding) 

• Mild pain reported over volar wrist and FCU tendon with resisted wrist flexion and Synergy test

The physiotherapist also recorded reduced tripod pinch, lateral pinch, and tip to tip pinch in the worker’s right hand versus left hand and provided a diagnosis of “chronic right ulnar sided wrist pain (strain/sprain)”, recommending treatment with heat, ultrasound, soft tissue massage, exercise, pain management and use of a wrist hand strap for daytime activities and a rigid wrist brace for sleeping. The physiotherapist also outlined their opinion that:

“…tendinitis can be a secondary consequence with primary wrist sprain injuries. As ligaments and tendons work together to create stability and motion across a joint, it could be deduced that ligament laxity following a sprain would require more stabilizing action from the surrounding soft tissue structures. These structures, including tendons, experiencing a short term increased load therefore may develop tendinitis.”

The panel also considered the information provided by the treating sports medicine physician to the worker’s representative, on November 5, 2021 that although the usual recovery period for an injury such as the worker sustained would be 8-12 weeks, with ongoing aggravation or a tear, the injury could persist. The physician confirmed their view that workplace aggravation of the worker’s wrist injury could have extended their recovery, and that the worker needed to use a splint as part of the recommended treatment for their injury.

The panel noted the opinions of the treating sports medicine physician and hand physiotherapist in relation to the persistence of the worker’s right wrist symptoms align with the March 21, 2021 comments from the WCB medical advisor relied upon by the worker’s representative in their submissions, that “…there was incomplete recovery initially and subsequent repeated re-injury, or interference with the normal healing process.” However, the panel also noted that the medical advisor did not again consider this explanation in their subsequent opinions of July 5, 2021 and July 8, 2021, and then discounted it in their January 10, 2022 opinion, as follows:

Even if one allows for the questionable possibility that such activities might have re-strained the wrist to some minor degree, it is not likely that such a mechanism would have resulted in a significant re-injury to the wrist likely to result in further prolonged disability (for weeks or months). Now at well over one year post initial sprain/strain injury, even allowing for proposed minor subsequent strains...a continued material impairment of function would not be accounted for in continued relation to effects of the Oct 10 21 workplace incident and/or subsequent workplace duties.”

While we accept the opinions of the WCB medical advisor in respect of the typical course of such an injury as the worker sustained, we do not find that the evidence in this claim fits neatly within the expected pattern of recovery. Rather, the panel finds that the medical reporting throughout this claim indicates a pattern in the worker’s symptomatic development and resolution, and a consistency of reported symptoms, which would worsen, or flare-up with each return to work and then begin to resolve with rest and modified duties. This pattern is also evident in the file history of multiple returns to work, with restrictions that at first become less limiting and then begin to increase in degree of limitation. Even after clearing the worker for a return to their full duties on June 3, 2021, the treating physician reinstated restrictions on June 30, 2021 based on the worker’s recently aggravated symptoms and the employer’s continuing prohibition of the worker’s use of the prescribed wrist brace while at work. Further, the panel noted that despite the evidence that the worker was prescribed a wrist brace very soon after the injury initially occurred, the employer’s protocols did not permit the worker to use their brace while at work until fall 2021, when the treating hand physiotherapist prescribed a different kind of brace which the employer did not object to the use of in the workplace. As noted in numerous medical reports, the treating medical providers continued to recommend that the worker use the brace, but the worker was not able to act on this treatment recommendation while at work. The panel accepts the worker’s testimony that with the use of this brace while at work and the treatment provided by the hand physiotherapist beginning in late September 2021, they were able to return to full duties and hours without restrictions by early January 2022. As such, the panel finds that that the possibility of a normal or expected recovery was hampered both by the worker’s inability to protect their wrist by use of the recommended brace while at work and by the recurring aggravations or reinjuries that occurred with each attempted return to work.

Based on the totality of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker’s compensable right wrist injury continued to require medical aid and continued to impact the worker’s ability to resume their full job duties beyond July 19, 2021 when the WCB determined that the worker had recovered from the   compensable workplace injury. Therefore, the worker is entitled to benefits after July 19, 2021 and the appeal is granted.

Panel Members

Panel Members: K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 4th day of December, 2023