The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker's left elbow difficulties as being a consequence of the May 21, 2021 accident. A teleconference hearing was held on October 4, 2023 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's left elbow difficulties as being a consequence of the May 21, 2021 accident.

Decision

Responsibility should be accepted for the worker’s left elbow difficulties as being a consequence of the May 21, 2021 accident.

Background

An Employer’s Accident Report was provided to the WCB on May 27, 2021, reporting the worker injured their left forearm in an incident at work on May 21, 2021, which was reported to the employer over the telephone on May 24, 2021. The worker described fixing equipment inside a trailer then slipping on hydraulic oil and falling, injuring their left forearm. The employer noted they offered the worker modified duties, which the worker had been performing.

The worker sought medical treatment on May 25, 2021 with a virtual telephone consultation with a physician. The worker reported left arm/forearm pain after falling at work, with weakness, decreased strength and swelling. The physician diagnosed a strain and recommended the worker attend a local sports medicine clinic for a further assessment to rule out a break. The worker attended at the sports medicine clinic on the same date. The worker reported injuring their left arm at work on May 21, 2021 when they slipped on hydraulic oil and fell, grabbing the trailer to stop their fall. They reported feeling an “…initial pulling sensation anteriorly to the biceps, pain and loss of motion to the elbow” and since that time, reports continued to note pain posteriorly in the elbow and inability to fully extend their arm. On examining the worker, the sports medicine physician noted normal alignment of the elbow, with full pronation and supination. Mild tenderness was noted on palpitation of the worker’s bicep. It was further noted an x-ray taken during the appointment indicated “…significant underlying degenerative changes and possible articular loose bodies.” The treating physician recommended the worker be referred for an MRI study to determine whether the diagnosis is a partial tear/strain or a deeper intra-articular loose body blocking motion. The MRI study was conducted on May 27, 2021 and indicated an intact distal biceps tendon and elbow joint osteoarthritis with moderate imaging findings.

On June 3, 2021, the worker submitted their Worker Incident Report to the WCB. They described using their left arm to break a fall after slipping on hydraulic oil in their trailer on May 21, 2021. On June 7, 2021, the WCB contacted the worker to gather further information. The worker confirmed the mechanism of injury and advised they returned to work on modified duties on May 26, 2021 and full regular duties on May 31, 2021. They noted their left forearm was improving. The WCB advised the worker their claim was accepted and the worker was provided with wage loss and other benefits to May 31, 2021.

The WCB received a February 8, 2023 consultation report from an orthopedic surgeon on February 13, 2023. The treating surgeon noted the worker’s reporting of falling and striking their elbow approximately a year previously and since that time, had limited range of motion in extension and flexion in their elbow and experiences occasional locking. After examining the worker, the surgeon found limited range of motion in flexion of the worker’s left elbow, with posterior and anterior impingement and a normal neurologic exam. The diagnostic imaging was reviewed and it was noted there were “…multiple osteophytes and loose bodies within the elbow as well as a prominent olecranon fraction spur.” A left elbow arthroscopy with debridement of osteophytes, removal of loose bodies and open excision of the olecranon traction spur was recommended by the orthopedic surgeon. An x-ray report for the worker’s left elbow was included with the report and found “There is a moderate osteoarthritis in the elbow as well as a large spur at the triceps tendon insertion. No other significant abnormality is appreciated.”

The WCB contacted the worker for an update on February 17, 2023. The worker advised since their last WCB wage loss payment in July 2021, they continued to experience difficulties with their left arm including inability to straighten their arm and pain. They noted they had not experienced a new injury or accident and had the same symptoms as previously. The worker advised they had been referred to a specialist but only had the appointment recently and their treating orthopedic surgeon recommended surgery, with a 4 to 6 week recovery period afterward. The WCB advised the worker their claim would be reviewed.

On February 28, 2023, the worker’s file was reviewed by a WCB medical advisor. The advisor provided the worker’s initial diagnosis related to the May 21, 2021 workplace accident was a left elbow biceps strain based on the evidence on file, with an expected recovery to baseline function within one month. It was noted the worker returned to their full regular duties on May 31, 2021. The WCB medical advisor went on to opine the medical evidence did not support an aggravation or enhancement of the worker’s pre-existing left elbow arthritis, which was found to be evident in the diagnostic imaging. The advisor further opined the worker’s current diagnosis of left elbow osteoarthritis and proposed surgery were not medically accounted for in relation to the May 21, 2021 workplace accident. A letter denying WCB support for the proposed surgery was directed to the worker’s treating orthopedic surgeon on February 28, 2023. On March 1, 2023, the WCB advised the worker it had been determined their current left elbow difficulties are not related to the May 21, 2021 workplace accident and they were not entitled to benefits.

The worker requested reconsideration of the WCB’s decision to Review Office on April 24, 2023. In their submission, the worker noted they had not recovered from the May 21, 2021 accident and due to scheduling issues with the clinic, had not been seen by an orthopedic surgeon until February 2023, at which time they were scheduled for surgery, which took place on April 18, 2023.

A physiotherapy initial assessment was received by the WCB on May 5, 2023. It was noted the worker was post left elbow arthroscopic surgery and has been placed off work for a minimum of 6 weeks by the surgeon. On May 11, 2023, a WCB medical advisor reviewed the worker’s file, including the April 18, 2023 surgical report provided by the worker’s orthopedic surgeon. The advisor opined the medical information on file were “…all consistent with a diagnosis of left elbow osteoarthritis, which would be considered a pre-existing degenerative left elbow condition that is not medically accounted for in relation to the May 21, 2021 workplace incident or the accepted compensable diagnosis of a left forearm strain.” The WCB medical advisor went on to provide the worker’s treating surgeon had not provided any evidence to support a relationship between the worker’s left elbow difficulties and the surgery and the workplace accident. A further decision letter was provided to the worker on May 17, 2023 advising the new information was reviewed and there was no change to the earlier decision they were not entitled to further benefits in relation to their left elbow difficulties.

Review Office determined on May 25, 2023, the worker’s current left elbow difficulties were not related to the workplace accident. Review Office accepted and agreed with the opinions of the WCB medical advisors and found the April 18, 2023 surgery was directed at the worker’s pre-existing degenerative condition in their left elbow, which condition was not aggravated or enhanced by the May 21, 2021 workplace accident.

The worker filed an appeal with the Appeal Commission on June 8, 2023 and a hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On January 10, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 made by the WCB's Board of Directors. The Act and regulations in effect on the date of the May 21, 2021 incident are applicable.

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

The 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") outlines the process the WCB uses to determine whether an accident is related to employment. It explains what a pre-existing condition is and the principles governing payment of compensation when a worker's pre-existing condition impacts the severity of the workplace injury experienced by the worker or increases their recovery time, or alternatively, when the workplace injury worsens the worker's pre-existing condition.

Pursuant to the Policy when a worker’s pre-existing condition is temporarily worsened because of a workplace injury, this is considered an aggravation of a pre-existing condition. When a worker’s condition is permanently worsened because of a workplace injury, this is considered an enhancement of the pre-existing condition.

Worker's Position

The worker made a submission at the hearing and responded to questions from the appeal panel.

The worker's position was that his left elbow difficulties were caused by the May 21, 2021 workplace accident, and his appeal should be granted.

The worker submitted evidence that his left arm and elbow were injured in an accident at work on May 21, 2021. The Employer Accident Report confirmed the worker slipped on hydraulic oil in a truck trailer and fell injuring his left arm. The worker's evidence was that he injured his arm and below, falling on his left elbow on the steel grated flooring of the vehicle hauler trailer. The worker stated that he did not have any issues with his left elbow prior to the workplace incident. The file review confirms the worker sought medical attention in May 2021, had an MRI in February 2023 and eventually surgery in April 2023. The worker told the panel that he had believed the delay in getting an appointment with the orthopedic surgeon was simply due to the Covid-19 pandemic and therefore did not initially follow up with the clinic. He eventually contacted the clinic and they advised they had inadvertently misplaced the file and within 2 days the worker got in for an MRI and surgery on his elbow shortly thereafter.

The worker submitted that the injury was caused by the workplace accident and that the WCB should accept responsibility for his left elbow difficulties.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's left elbow difficulties as being a consequence of the May 21, 2021 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's left elbow difficulties are causally related to the May 21, 2021 workplace accident. The panel is able to make that finding, for the reasons that follow.

The evidence before the panel is that the worker was involved in a workplace accident on May 21, 2021 and while the Employer's Accident Report references an injury to his left arm, the panel accepts the worker's evidence that his left elbow was injured in the accident. The panel is also satisfied that the medical evidence on the file supports an injury to the worker's left elbow.

A claim was accepted based on an Employer Accident Report, but the panel notes that no further action was taken on the worker's file until the worker saw an orthopedic surgeon in 2023. There is a lack of evidence on file regarding whether the WCB was aware the worker was waiting for an appointment with an orthopedic surgeon. The evidence does show however that the worker was not contacted about his claim between June 2021 and February 2023, when new medical information was provided. The panel accepts the worker's evidence provided at the hearing and also contained in the worker's Request for Review form that he was awaiting an appointment with an orthopedic surgeon and that he believed the delay in seeing the orthopedic surgeon was due to backlog from the Covid-19 pandemic.

The panel is satisfied that the medical evidence on file indicates the worker continued to experience difficulties with his left elbow and sought medical attention for his left elbow injury following his workplace accident, but that there was an inadvertent delay to seeing a surgeon and also a lack or failure of any real investigation into his left elbow injury prior to 2023. The worker saw a doctor promptly following his injury and an x-ray was taken on May 25, 2021. Following this an MRI was ordered and completed on May 27, 2021. The evidence of the worker was that he was being referred to an orthopedic surgeon as a result of the findings. Delay ensued and eventually the worker was able to get an appointment with the surgeon. A further MRI of the worker's left elbow was then ordered and completed on February 8, 2023, which resulted in a surgery being recommended and later performed on the worker's left elbow.

In the panel's view, it is significant that following his initial appointment with the sports medicine physician and expedited MRI, the next step was a referral to an orthopedic surgeon.

The panel places weight on the November 23, 2023 letter of the treating orthopedic surgeon who noted that while it is not reasonable for him to suggest that all the findings radiographically in the worker's elbow are due to the workplace injury, it is possible that the injury to his elbow aggravated the underlying osteoarthritis within the elbow.

Furthermore, the panel is satisfied with the worker's evidence that he had no issues with his elbow prior to the workplace injury, despite the physical work duties performed by the worker.

The medical evidence of the treating orthopedic surgeon combined with the lack of evidence that the worker had any issues preforming his regular, and notably physical, duties prior to the workplace accident, the panel finds, on a balance of probabilities, that the worker's left elbow difficulties are causally related to his May 21, 2021 workplace accident. The panel further finds that the evidence supports the conclusion that the workplace injury sustained on May 21, 2021 is the result of a pre-existing degenerative condition that was enhanced by the workplace accident.

The panel therefore finds that responsibility should be accepted for the worker's left elbow difficulties as being related to the May 21, 2021 accident.

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of January, 2024