The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The worker is not entitled to benefits after November 18, 2019; and 

2. Responsibility should not be accepted for the worker's recurrent right elbow difficulties after March 2, 2020.

A hearing was held on September 27, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to benefits after November 18, 2019; and 

2. Whether or not responsibility should be accepted for the worker's recurrent right elbow difficulties after March 2, 2020.

Decision

1. The worker is not entitled to benefits after November 18, 2019; and 

2. Responsibility should not be accepted for the worker's recurrent right elbow difficulties after March 2, 2020.

Background

The worker provided a Worker Injury Report to the WCB on July 20, 2017 reporting injury to their right elbow arising from an incident at work on May 29, 2017 when they were using a sledgehammer to loosen a seized tire and hit their elbow on the rail of a trailer. The worker sought medical treatment on June 27, 2017, after also injuring their right wrist, resulting in another WCB claim.

The employer confirmed the accident was reported to them on May 31, 2017, and that they offered the worker light duties, but the worker declined on the basis they self-modified their duties, and noted the worker continued working until June 27, 2017. On assessing the worker on June 27, 2017, the treating physician noted the worker’s elbow was “…severely painful” and provided pain medication. There was no bruising observed, but the physician noted tenderness over the right elbow on palpitation, and diagnosed a right elbow contusion, referring the worker for an x-ray. The physician recommended regular duties to be “…performed cautiously and slowly.” The right elbow and wrist x-ray of July 6, 2017 indicated normal findings. At follow-up on August 22, 2017, the treating physician recorded that the pain in the worker’s elbow worsened since their wrist injury and recommended restrictions of no lifting greater than 15kg. The physician referred the worker for MRI and nerve conduction studies.

Following the nerve conduction study of September 12, 2017, the neurologist concluded that “…the pain on the right elbow is due to right lateral epicondylitis.” The neurologist also noted a mild abnormality of the right median nerve distally but noted the worker denied any symptoms of carpal tunnel syndrome. The MRI study of September 24, 2017 indicated “Tendinosis and low grade partial tearing of the common extensor tendon origin.”

When the worker attended a WCB call-in examination on November 16, 2017, the WCB medical advisor concluded their examination findings were consistent with right lateral epicondylopathy, and a small tear of the common extensor tendon, which the medical advisor found to be consistent with the mechanism of injury and presentation. The medical advisor noted there was no evidence of a pre-existing condition that would prolong recovery and recommended restrictions of no prolonged or repetitive firm grasping and no lifting more than 10 pounds.

By letter of January 30, 2018 to the employer and copied to the worker, the WCB accepted the claim, but noted the need for further investigation to determine the worker’s ongoing entitlement to benefits. Upon gathering additional information from the worker, the employer, and the treating healthcare providers, the WCB advised the worker on April 20, 2018 that the claim was accepted for the workplace accident only and they were not entitled to further wage loss or medical aid benefits.

On April 12, 2019, the worker underwent a right tennis elbow release surgery in conjunction with right upper limb procedures related to another WCB claim.

On November 14, 2019, the worker’s representative requested Review Office reconsider the WCB’s decision. In their submission, the representative noted the treating physician observed reduced grip strength and visible swelling over the worker’s lateral epicondyle on June 27, 2017 and ongoing symptoms after May 29, 2017. Further, the representative noted the WCB medical advisor opined in the November 16, 2017 call-in examination report that the worker would have a poor outcome with conservative treatment of their elbow injury and required a right tennis elbow release surgery. As such, the representative submitted the worker should be entitled to wage loss and medical aid benefits in relation to the May 29, 2017 workplace accident. After receiving further submissions, Review Office determined on January 21, 2020 that the worker was not entitled to benefits.

The worker filed an appeal with the Appeal Commission and a hearing took place on November 26, 2020. As set out in Appeal Commission Decision No. 12/21, dated January 25, 2021, the Appeal Commission determined the worker was entitled to further benefits in relation to the May 29, 2017 workplace accident, to be decided by the WCB.

On March 18, 2021, the WCB requested the treating orthopedic surgeon provide treatment information and copies of chart notes. Those chart notes indicated that at three months post-surgery, the worker was doing well, with continued physiotherapy recommended. A WCB medical advisor reviewed the worker’s claim file on March 22, 2021 and stated that recovery from tennis elbow release surgery typically occurred in approximately three months. The medical advisor noted the orthopedic surgeon’s May 16, 2019 comment that the worker was doing well and that a significant amount of their pain was relieved. At the time, the surgeon noted findings of 130 degrees elbow flexion, 30 degrees flexion contracture at their elbow, full pronation, and supination with full range of motion of their wrist and fingers, some pain to palpitation along the right epicondyle and a well-healed incision. The WCB medical advisor also noted that the November 18, 2019 report from the treating orthopedic surgeon indicated “…fairly dramatic improvement in pain…” at the worker’s right elbow, with no pain on resting and light activities. At that time, the surgeon’s report indicated the worker could lift 25 pounds on a regular basis over their head, had excellent range of motion of their right elbow and there was no noting of clicking or cracking, no pain with resisted wrist extension, negative provocative testing at the right lateral epicondyle and excellent strength in elbow flexion. The surgeon also recommended a functional capacity evaluation before the worker returned to their regular duties. The medical advisor concluded that by one month post-surgery, the worker could work with restrictions of sedentary use of their right arm and by eight months post-surgery, the worker was able to lift 25 pounds regularly and overhead.

The worker’s representative provided additional information to the WCB on March 25, 2021, and on May 6, 2021, the WCB confirmed the worker was entitled to full wage loss benefits from July 7, 2018 to April 11, 2019. On the same date, the representative requested the WCB investigate whether the worker was entitled to further wage loss benefits. The worker’s representative provided additional information to the WCB on June 23, 2021. On July 6, 2021, the WCB confirmed the decision to pay wage loss benefits to the worker and advised that it was seeking additional information regarding the worker’s potential entitlement to further benefits. In an update provided to the representative on July 30, 2021, the WCB advised that based on information from the employer that they could not accommodate the worker within their restrictions during that period, the worker was entitled to full wage loss benefits to September 24, 2019. The WCB advised a final review was being undertaken to determine if the worker had entitlement to any further wage loss.

On August 16, 2021, in a discussion with the worker’s representative, the WCB noted the reporting from the treating orthopedic surgeon and advised that the evidence indicated the worker was recovered to their baseline and would have been capable of performing regular duties with some self-modification as of that time. On August 31, 2021, the WCB wrote to the worker advising them they were not entitled to full wage loss benefits after November 18, 2019.

The WCB also contacted the worker on August 31, 2021 to request further information regarding their medical treatment and any difficulties with their right elbow after November 18, 2019. The worker provided updated information to the WCB on September 13, 2021, noting their current difficulties included limited strength, pain and visible swelling with continued use of their right elbow and sleep issues due to pain. On September 24, 2021, the WCB received copies of chart notes from the treating family physician from November 2019 to that date.

The WCB advised the worker on October 8, 2021 that the treating family physician’s chart notes indicated the worker attended for treatment on two occasions after November 18, 2019, before returning to work on March 2, 2020, but made no note of ongoing right elbow difficulties. As such, the WCB advised there would be no change to the August 31, 2021 decision the worker was not entitled to benefits after November 18, 2019. The WCB also wrote to the worker on October 12, 2021, advising that a review of the medical information provided did not support a material change in the clinical findings relating to the worker’s right elbow and the evidence did not support a finding that the worker experienced a further loss of earning capacity or required further medical treatment for their right elbow. Therefore, the WCB did not accept responsibility for the worker’s recurrent right elbow difficulties.

On December 3, 2021, the worker’s representative requested Review Office reconsider the WCB’s decisions. On the issue of benefit entitlement after November 18, 2019, the representative argued that the treating orthopedic surgeon recommended a functional capacity evaluation, which the WCB did not act upon and as such, noted there was insufficient medical evidence to support the worker did not require further benefits. The representative also noted the worker continued to experience difficulties with their right elbow, which resulted in the treating family physician removing the worker from work on August 4, 2020, indicating the worker required further benefits for their recurrent right elbow difficulties after March 2, 2020. Review Office determined on January 13, 2022 that the worker was not entitled to benefits after November 18, 2019 and their recurrent right elbow issues were not compensable. Review Office found the medical evidence indicated the worker experienced full recovery from their right elbow difficulties and returned to baseline functioning as of November 18, 2019. Further, Review Office found that the worker’s recurrent right elbow difficulties were not related to the May 29, 2017 workplace accident and accordingly, the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on February 14, 2022 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and provided to the interested parties for comment, the appeal panel met on February 14, 2024, to render its decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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.”

The WCB has established Policy 44.10.20.60, Recurring Effects of Injuries and Illnesses (Recurrences) (the “Recurrence Policy”) to address the circumstances where workers return to employment after a workplace accident and later experience a renewal of symptoms or increase in permanent impairment. In such situations, the WCB must determine if the worker has experienced a recurrence of a previous workplace injury, or whether their current condition is caused by a new and separate event. The Recurrence Policy provides that the WCB will determine the worker’s current condition is a recurrence if the previous workplace accident is the dominant cause of the renewed symptoms or increase in permanent impairment.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission and relied upon their written submissions to the appeal panel of September 16, 2022 and to Review Office of December 3, 2021. The worker provided testimony through answers to questions posed by the worker advisor and in response to questions posed by the appeal panel.

The worker’s position, with respect to the question of entitlement to benefits after November 18, 2019, is that the evidence confirms the worker was not sufficiently recovered from the compensable right elbow condition by November 18, 2019 such that they could resume work with the accident employer without restrictions in relation to that injury. The worker advisor noted that the treating orthopedic surgeon, on November 18, 2019, indicated a need for the worker’s functional capacity to be assessed before returning to work, and further submitted that the absence of evidence the worker sought or obtained ongoing medical care for their right elbow is not evidence the worker did not require such treatment.

With respect to the question of the responsibility for the worker’s right elbow injury after March 2, 2020, the worker’s position is that the increase in right elbow symptoms at that time was the result of the worker’s continuing and not fully resolved compensable injury, which became symptomatic on March 3, 2020 after the worker’s return to work the previous day. The worker described to the employer that they experienced a sudden onset of pain while gesturing with their right arm in the course of their employment. The worker advisor submitted that the medical reporting of March 5, 2020 indicates a diagnosis of “acute on chronic pain in the right lateral epicondyle”, The worker advisor described this incident as “quite trivial in nature, and likely incapable of causing any injury to the lateral epicondyle” but for the worker’s susceptibility to recurrence and aggravation of the original compensable injury of 2016, and subsequent surgical repair. The worker advisor submitted that the increase in the worker’s right elbow symptoms after March 2, 2020 meets the definition of a recurrence, as set out in the Recurrence Policy and as such, the WCB is responsible for the recurrence in relation to this claim.

The worker testified to participating in physiotherapy from after the surgery in April 2019 until the WCB terminated their benefits, around Christmas 2019. The worker noted that they continued with the provided home exercises even after this point, emphasizing that they worked up to pain, but not into it. The worker indicated that after November 2019, their right elbow remained sore, and they could not lift a milk jug or open a jar with their right arm. The worker reported that with repetitive activity over a number of hours, they would experience swelling in their right arm. The worker confirmed they saw their family physician twice in January 2020, and then not again until March 5, 2020 in respect of the increase in symptoms upon their return to work. The worker indicated that in January, their family physician advised them to wait another couple of months before returning to work.

The worker described that on March 3, 2020, they were working on the floor servicing equipment that was jacked up and on blocks. While doing so, they noted a broken part and in using their arm to point this out to their manager, with their elbow jammed onto the floor, felt a sharp pain in their right elbow. The worker stated they reacted to the pain and their manager told them to complete WCB forms. The worker indicated that they finished their work that day and felt sore afterwards. They sought medical treatment two days later. From that point until the worker sought medical treatment again on May 7, 2020, the worker indicated that their right elbow remained sore, and they iced it and relied on daily pain medication. The worker stated that this remains the case to date. The worker testified that prior to the return to work on March 2, 2020, they had no swelling in either arm.

In response to questions from the appeal panel, the worker confirmed that they did not believe that the 2019 right elbow surgery put them back into their pre-accident condition and noted that the treating orthopedic surgeon said, before the surgery, that the worker would not be 100% after surgery. The worker confirmed that they have not had any physiotherapy since 2020. They indicated that they are not totally disabled but remain limited in terms of their function and abilities.

Employer’s Position

The employer did not participate in the hearing of the worker’s appeal.

Analysis

This appeal arises from the WCB’s decisions that the worker is not entitled to further benefits after November 18, 2019 in relation to the workplace accident of May 29, 2017, and that the worker’s recurrent right elbow difficulties after March 2, 2020 are not related to that accident. For the worker’s appeal on the first question to succeed, the panel would have to determine that the worker continued to sustain a loss of earning capacity or to require medical aid in relation to the compensable injury beyond November 18, 2019. On the second question, for the appeal to succeed, the panel would have to determine that the dominant cause of the worker’s further right elbow difficulties after March 2, 2020 is the workplace accident of May 29, 2017. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied in respect of both questions.

Is the worker entitled to benefits after November 18, 2019? 

The panel reviewed the evidence to determine if the worker sustained a loss of earning capacity as a result of the workplace accident of May 29, 2017 or required further medical aid in relation to that injury beyond November 18, 2019.

The panel considered the file evidence that prior to the May 29, 2017 right elbow injury, the worker was performing regular duties with some modifications or help as required and was working with restrictions in place in relation to their left upper limb only.

The panel noted that after the compensable right elbow surgery on April 12, 2019, the worker was treated with physiotherapy through to October 18, 2019. In the physiotherapy chart note of that date, the physiotherapist recorded that the worker’s right elbow was “doing well, able to 20lb unilateral clean and jerk. No more pain unless uses it a lot. Very deconditioned but strength improving. In comparison to average person is doing well, BUT, for [their] job as [occupation], feels like elbow is at 35-40%.” We further noted the worker’s testimony that after they discontinued physiotherapy, they continued with the home-based exercise program as recommended.

The panel reviewed the treating orthopedic surgeon’s report of November 18, 2019, which outlines that the worker “…has had fairly dramatic improvement of [their] pain bilaterally. At rest and with light activities, [the worker] has no pain on the right. [The worker] is able to lift 25 pounds on a regular basis and lift 25 pounds above [their] head. [The worker] has no pain with resisted wrist extension.” The surgeon also noted the worker’s wounds were healed and that the worker had excellent range of motion in both elbows, with no clicking or catching. The surgeon noted that the worker continued to recover from their left upper limb surgery and would be unable to return to work from that surgery for some time and that the worker would be unable to return to any work that required lifting 200 pounds regularly. The surgeon stated that “Should there be a lighter activity position, [the worker] would certainly likely be available” and went on to recommend a functional capacity evaluation before the worker returned to heavier work, noting the worker “may be available for return to moderate type duties using both upper extremities in the early New Year if [the worker] continues on this course.”

The panel considered the submission of the worker’s representative that the recommendation for a functional capacity evaluation indicated the worker was not fully recovered and noted that no assessment of the worker’s functional capabilities occurred before their return to work on March 2, 2020. However, the panel accepts and finds that the surgeon made this recommendation in the context of their assessment of both upper limbs and predicated upon a return to heavy duty work which did not occur. Given the success of the right elbow release surgery, as indicated by the surgeon’s post-surgical reporting, the panel finds that the evidence does not demonstrate the need for a functional capacity evaluation specifically in relation to the worker’s compensable right elbow injury.

Further, the panel accepts and relies upon the treating orthopedic surgeon’s reporting to support a finding that the worker was capable of a return to work based on a full recovery from their right elbow condition and related surgery. This finding is also supported by the lack of evidence that the worker required or sought further treatment from the orthopedic surgeon or their family physician in relation to their right elbow before their return to work in March 2020. We noted that the chart notes from the treating family physician for the worker’s January 7, 2020 and January 16, 2020 appointments relate primarily to the worker’s other medical conditions, and indicate the physician recommended a gradual return to full duties, as tolerated. In making this finding, the panel also considered that the functional abilities form completed by the treating family physician on January 7, 2020 suggests some limitations in terms of both upper limbs, with right hand lifting limited to 20 pounds or less and more stringent limits noted for the worker’s left hand. Although the worker’s representative suggested that this supports a need for restrictions in relation to the worker’s right elbow at that time, the panel noted the physician’s chart does not indicate any assessment of the worker’s right or left upper limb capabilities, but rather refers to the orthopedic surgeon’s November 2019 report and then outlines recommendations that do not even reflect the worker’s right arm capabilities at that time. As such, the panel gives little weight to the functional abilities document of January 7, 2020.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker was recovered to their pre-accident baseline by November 18, 2019 and that they did not sustain any loss of earning capacity beyond that date in relation to the accident of May 29, 2017. Further, based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker did not require further medical treatment or care beyond November 18, 2019 in relation to the accident of May 29, 2017. The worker’s appeal on this question is denied.

Should the WCB accept responsibility for the worker's recurrent right elbow difficulties after March 2, 2020?

The panel reviewed the evidence to determine if the increase in the worker’s right elbow symptoms following their March 2, 2020 return to work was a recurrence of their injury of May 29, 2017, as the Recurrence Policy provides that when a worker returns to work following an injury and later experience a renewal of symptoms, the WCB must determine if the worker has experienced a recurrence of the previous workplace injury, or whether their current condition is caused by a new and separate event.

The panel considered the worker’s testimony that on March 3, 2020, while at work, working on the floor and using their right arm, they experienced a sudden onset of acute pain in their right elbow, with a subsequent increase in right elbow symptoms including swelling. Although the worker advisor described this event as trivial, the panel noted that the worker did not. The worker testified that they felt a “sharp little” pain and reacted, such that their manager asked what happened and encouraged them to complete a WCB claim form. We note that the worker’s testimony in this regard is consistent with the reporting to their physician at that time and their subsequent report to the WCB.

While the worker experienced an increase in symptoms in their right elbow, the same body part as the worker injured in this claim, the worker was able to describe a specific event that resulted in an increase in those symptoms. We noted that despite the worker’s report of an increase in right elbow symptoms after March 3, 2020, there is no evidence of continuity of any elbow symptom reporting immediately prior to that date. The worker testified they had ongoing pain with increased activity, but there is no other evidence that supports these statements. Specifically, there are no clinical findings reported in relation to the worker’s right elbow between November 18, 2019 and March 5, 2020 and there is no evidence that the worker sought any medical treatment for their right elbow during this period. Further, and as noted above in this decision, the evidence confirms that the right elbow surgical repair undertaken in April 2019 was successful such that by November 18, 2019, the surgeon reported dramatic improvements, with excellent range of motion and the worker’s pain-free status. We also noted that the worker testified that they had no swelling in either elbow upon returning to work on March 2, 2020. As such, we find that the worker’s right elbow difficulties after March 2, 2020 were caused by a new and separate event.

Based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker’s right elbow difficulties after March 2, 2020 are not the result of a recurrence of their May 2017 injury. Therefore, the WCB should not accept responsibility for the worker's recurrent right elbow difficulties after March 2, 2020 in relation to this claim. The worker’s appeal on this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of March, 2024