The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker’s right hand difficulties as a consequence of the November 6, 2023 accident. A videoconference hearing was held on May 16, 2024 to consider the employer's appeal.

Issue

Whether or not responsibility should be accepted for the worker’s right hand difficulties as being a consequence of the November 6, 2023 accident.

Decision

Responsibility should not be accepted for the worker’s right hand difficulties as being a consequence of the November 6, 2023 accident.

Background

In a Notice of Injury provided to the WCB on November 8, 2023, the worker described an incident at work that day, in which their thumb was caught in machinery, causing an object to fly up and strike them in the face. The Employer Incident Report of the same date reported the same mechanism of injury and noted injury to the worker’s left thumb, lip, and nose and that the worker went to a local emergency department for treatment.

When the WCB spoke with the worker on November 10, 2023, the worker confirmed the mechanism of injury as described and advised their finger got caught in the machinery, which led to their thumb also being caught and compressed, and that an object rolled off the machine, striking them in the face, on their lip and nose. The worker described bleeding from their nose and the inside of their lip, a small cut to their left thumb had a small cut, some skin torn off their middle finger and blackening of the nail bed of their left ring finger. The worker also noted some abrasions under their right arm but was unsure how they got those. The worker further noted they had chipped a tooth. The worker stated x-rays taken at the emergency department indicated a displaced fracture of the left thumb, with a plaster cast placed on it. The worker confirmed they were off work on November 9, 2023 and would return to work on November 10, 2023.

On November 21, 2023, the worker attended for a physiotherapy assessment, reporting localized left tricep pain to the back of their left elbow, which was intermittent aching and sharp and worsened with lifting their arm overhead and bending their elbow, as well as left thumb and hand pain, and general intermittent aching pain and tightness in their right hand which they related to using only their right hand while at work. The treating physiotherapist examined the worker and found the worker’s range of motion in their left elbow was unremarkable as was the range of motion in the worker’s right wrist. The physiotherapist diagnosed post left thumb internal fixation, left tricep strain and myofascial pain in the right hand secondary to overuse. The physiotherapist recommended no use of left hand, noting the worker had returned to work with this restriction.

In a December 1, 2023 discussion with the WCB, the worker confirmed attending physiotherapy for their right arm difficulties due to overuse and occupational therapy for their left thumb injury.

The WCB case manager spoke with the worker on December 28, 2023 about their right hand difficulties. The worker explained they were seeking treatment from the physiotherapist for their right arm as they were experiencing pain in their right wrist and thumb due to overuse since the injury to their left hand. The case manager noted the worker injured their non-dominant hand and was using their dominant right hand, and as such it was unlikely they were experiencing overuse symptoms by November 21, 2023. The case manager advised the worker the WCB could not relate their right hand difficulties to the workplace accident. On January 8, 2024, the WCB provided a letter to the worker indicating the decision that their right hand difficulties were not related to the November 8, 2023 workplace accident.

On February 11, 2024, the worker requested Review Office reconsider the WCB’s decision. In their submission, the worker stated they did not initially include right hand injuries in their report at the time of the accident as they were more concerned with the injury to their left thumb but that both hands were involved in the accident. The worker set out that within two weeks of the November 8, 2023 workplace accident, they had pain in their right hand, which they treated with physiotherapy despite the WCB not covering treatment. The worker outlined that their pain and joint inflammation has increased and stated their belief the right hand difficulties are related to the November 8, 2023 workplace accident. On February 14, 2024, the worker submitted a prescription from a treating nurse practitioner for right hand physiotherapy or athletic therapy for right thumb tendonitis, and an undated copy of an x-ray of their hand. The worker provided further medical information on February 21, 2024.

On March 6, 2024, Review Office determined the worker’s right hand difficulties were not related to the November 8, 2023 workplace accident. The employer filed an appeal with the Appeal Commission on March 12, 2024 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 shared with the interested parties for comment, the appeal panel met on July 25, 2024 to further discuss the appeal and render its final decision.

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.

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident. When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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 to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-Existing Policy"), to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, which may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. Workplace injuries can impact pre-existing conditions. A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of an injury is an enhancement of the pre-existing condition.

The WCB has also established WCB Policy 44.10.80.40, Secondary Injury (the “Secondary Injury Policy”) which explains when a secondary injury will be compensable. This policy outlines that an injury is a secondary injury when it is caused to the worker by an intervening incident, event or exposure, the intervening event is not work related; and there is a causal link or relationship between that event and the workplace accident. A secondary injury will be compensable when the dominant cause of the intervening event that caused the secondary injury is the previous workplace accident, when the secondary injury is caused by an intervening event over which the WCB exercises direct, specific control or when the secondary injury is caused by the delivery of treatment for the workplace accident.

Employer’s Position

The employer appeared in the hearing represented by its chief financial officer, who made an oral submission in support of the employer’s appeal and provided testimony in response to questions posed by the appeal panel.

The employer’s position is that the worker’s right hand condition is caused by and the result of the workplace accident of November 8, 2022 and therefore the worker is entitled to compensation in relation to their right hand difficulties.

The employer’s representative noted the worker had no previous right hand difficulties, having worked some 23 years with the employer in a role that required full function of both hands. The employer’s representative noted the worker developed right hand symptoms soon after the accident and the employer now believes the worker injured both hands at the time of the accident. The representative suggested that the worker may have used their right hand to try to protect their face as the piece of equipment sprang up to the worker’s face, and that the worker may have hurt their right hand in doing so, or else that the injury occurred while the worker was pulling at the equipment with their right hand to try to release their left hand.

Worker’s Position

The worker appeared in the hearing on their own behalf, making an oral submission in support of the employer’s appeal and providing testimony through answers to questions posed by the appeal panel.

The worker’s position is that their right hand difficulties are the result of the workplace accident of November 8, 2022 and therefore they should be entitled to benefits in relation to their right hand condition.

The worker submitted that there is evidence that they experienced and reported right hand symptoms within two weeks of the accident date, and at first believed the symptoms were the result of overuse, but when the symptoms did not resolve and they sought further treatment, they believed they must have injured their right hand at the time of the accident, but did not notice it at first because of the focus on the more severe left hand symptoms.

In response to questions from panel members, the worker described the accident in detail, noting that when their left thumb was caught and crushed in the machinery, they used their right hand to try to release their left hand and, in the process, part of the machinery released and flew up into their face. The worker indicated that since first making their claim in respect of this accident, they have come to believe that they must have injured their right hand at the same time.

Analysis

This appeal requires that the panel determine whether the worker sustained injury to their right hand as a result of the compensable workplace accident of November 8, 2022. For the appeal to succeed, the panel would have to determine that the accident caused injury to the worker’s right hand or that the worker’s right hand difficulties are a secondary injury resulting from the injuries sustained in the accident. As outlined in the reasons that follow, the panel was not able to make such findings and therefore the appeal is denied.

The WCB accepted the worker’s claim in relation to injuries to their left hand and tooth, as described in the worker’s claim and confirmed by the employer and medical reporting. As such, in this appeal, the panel focused on the evidence relating to the worker’s right hand condition, as outlined in the file documents including the medical reporting and in the worker’s testimony.

The panel noted the first mention in the file documents of any right hand difficulties is found in a physiotherapy report of November 21, 2023 just under two weeks after the accident. In that report, the treating physiotherapist outlined the worker’s complaint of general pain in their right hand and the worker’s belief that the pain was due to being able to use only their right hand since the accident. At that time, the worker described symptoms of “intermittent aching pain/tightness throughout [the] day while at work, worse following” and the physiotherapist noted “unremarkable” findings in relation to the right wrist and hand range of motion, and “increased tone thenars/hypothenars” in the worker’s right hand with pain reproduction. The physiotherapist provided a diagnosis of “myofascial pain…secondary to overuse.”

The panel considered that the worker did not report any injury to their right hand in the accident report provided to the WCB on November 9, 2023, nor are there any references to injury to the worker’s right hand contained in the November 8, 2023 emergency room chart notes. Following the accident, the worker returned to work on November 10, 2023, avoiding use of their left hand and relying on their dominant right hand. The panel further noted the absence of any reference to right hand complaints in the plastic surgeon’s chart notes arising out of the November 17, 2023 consult, nor in any of the later reporting by the plastic surgeon who continued to treat the worker’s left hand injury. The panel also noted that when the worker was assessed by an occupational therapist on November 23, 2023, there was no mention of any right hand issues or concerns as part of that assessment.

The worker testified that they attended a different physiotherapist for treatment of their right hand complaints, and the panel therefore considered that physiotherapist’s chart notes from November 21, 2023 onwards. These notes paint a picture of waxing and waning of the worker’s right hand symptoms over the subsequent five months, with various explanations offered by the worker. After assessing the worker on November 21, 2023, the next chart note, dated December 18, 2023, indicates the worker’s report that their right thumb and forearm have been increasingly sore due to overuse, worse with gripping tasks and at the end of the day, but on December 29, 2023, the physiotherapist recorded that the worker’s right hand and thumb symptoms “continue to be improving as function in [left] hand increases”. Further improvements were noted on January 5, 12 and 25, 2024. On February 2, 2024, the worker reported having good and bad days, which they attributed to use at work while unable to fully use their left hand, and on February 17, 2024, the worker described symptoms that increased the previous day, but were better that day. On February 23, 2024, the physiotherapist noted the worker’s pain was at the base of their right thumb, varied with activity and was worse with gripping, and queried an ulnar collateral ligament strain. The worker continued with one physiotherapy treatment in March, and three in April, noting improvement on April 10, 2024, “…not sure if it is from performing exercises more consistently, using automatic instead of standard car and/or using topical cream more often” and worsening over the previous couple of days on April 26, 2024, “…thinking that may be [due to] weather as had not done anything in particular.”

The panel also noted that February 13, 2024 x-ray imaging of the worker’s right hand indicated “…mild joint space narrowing and subchondral sclerosis of the first CMC, in keeping with mild osteoarthritis. No acute abnormality is seen.” A further x-ray dated May 17, 2024 indicated similar findings. A June 8, 2024 MRI study of the worker’s right hand indicated a sprain of the ulnar collateral ligament at the first metacarpal joint as well as moderate osteoarthritis in the worker’s right carpometacarpal joint and mild osteoarthritis in their right first metacarpal joint.

The panel is satisfied based on the medical reporting that the worker had ongoing right hand complaints from late November 2023 onwards, with their reported symptoms in the worker’s right thumb, forearm, and hand. The evidence further indicates these symptoms varied in intensity over this period, sometimes improving and other times worsening, with the worker attributing the waxing and waning primarily to overuse at work, but also to weather, driving a standard vs manual vehicle, use of topical cream and performance of exercises. The panel finds the evidence does not support that the dominant cause of the injury to the worker’s right hand was the compensable workplace accident, nor that the worker sustained any right hand injury arising from treatment of their left hand, nor that the right hand injury was caused by any intervening event over which the WCB exercised direct, specific control.

The panel further noted the diagnostic imaging indicates the worker has osteoarthritis in their right thumb and first finger. Osteoarthritis symptoms are known to wax and wane over time, consistent with the worker’s symptoms as reported. While the worker and employer both testified that the worker did not previously have right hand symptoms, the panel is satisfied that the diagnosis of osteoarthritis is a pre-existing condition, not caused by the workplace accident less than two weeks before right hand symptoms first appeared. Further, we find there is no evidence before us to indicate this pre-existing condition was aggravated or enhanced because of the accident.

While the June 2024 diagnostic imaging also indicated an ulnar collateral ligament strain, the panel cannot causally relate this finding to the workplace accident that occurred many months earlier, as there is no evidence before us that the worker sustained an injury to their right hand during that event. We noted the worker’s statement that they do not know what their right hand was doing during the accident, except that they recall using it to try to free their left hand. There are no witnesses to the accident and as such, the worker and the employer can only speculate as to the involvement of the worker’s right hand during this event.

The panel must determine based on the available evidence and on the standard of a balance of probabilities, whether the worker’s right hand difficulties are a consequence of the workplace accident. This means the evidence must suggest that it is probable, or more likely than not, that the worker’s right hand condition was caused by the workplace accident. It is not sufficient to find only that it is possible that right hand condition was caused by the accident.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is unable to find that the worker’s right hand difficulties are a consequence of the November 8, 2023 accident. Therefore, the employer’s appeal 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 2nd day of August, 2024