Decision #110/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after November 2, 2022. A hearing was held on October 10, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after November 2, 2022.

Decision

The worker is entitled to benefits after November 2, 2022.

Background

On September 20, 2021, the WCB received an Employer’s Incident Report, indicating the worker injured their left arm, wrist and buttocks in an incident at work on September 18, 2021 when they fell off a step ladder. The Worker Incident Report was provided to the WCB on September 29, 2021. The worker described using a step stool to retrieve items on a high shelf, when they stepped down and the stool moved or tilted, and they lost their balance. They reported reaching out with their hands to attempt to stop their fall, landing on their left wrist, arm and buttocks/hip. A coworker saw them on the ground and an ambulance was called and the worker was transported to a local emergency department.

The emergency department report from September 18, 2021 noted the worker had a visible deformity on their left wrist and was diagnosed with a closed intraarticular distal radius and ulnar styloid fracture. The worker’s wrist was splinted, and the worker was scheduled for an open reduction and internal fixation surgery, which surgery took place on September 24, 2021. A Functional Abilities Form completed by the treating orthopedic surgeon on that date indicated the worker would be unable to work for 2 to 3 months. The WCB accepted the worker’s claim on October 1, 2021.

At a follow-up appointment with their treating orthopedic surgeon on October 20, 2021, the worker reported painful and tight feeling fingers and wrist on their left side. The surgeon examined the worker and found a well-healed incision, with swelling in the worker’s fingers and hand and distal forearm. Range of motion was noted to be significantly decreased in the left wrist including dorsiflexion, palmar flexion and pro-supination. The surgeon recommended the worker attend physiotherapy for left wrist range of motion exercises and strengthening. Early chronic regional pain syndrome symptoms were noted, and high-dose vitamin C was recommended.

The worker attended for an initial physiotherapy assessment on November 4, 2021, reporting left neck, shoulder, arm and hand pain, numbness and soreness when moving their neck or shoulder. The treating physiotherapist noted they were unable to complete testing due to the worker’s reporting of pain and diagnosed the worker with a post-open reduction, internal fixation surgery, and queried a lumbar, cervical and shoulder strain/sprain. At a follow-up appointment on December 22, 2021, the treating orthopedic surgeon noted the worker was not using their left hand and had placed themselves in a splint. The surgeon advised the worker to stop using the splint and to move their hand more. A note to the treating physiotherapist was also provided to encourage more left-hand movement by the worker. In a discussion with the WCB on January 12, 2022, the worker advised they had stopped using the splint, was trying to use their left hand more often and was attending physiotherapy regularly. The worker reported ongoing pain in their back and left leg and noted the physiotherapist was providing exercises to help with those areas.

The worker’s file was reviewed by a WCB medical advisor on January 13, 2022. The advisor opined the worker’s diagnosis was a left wrist distal radius fracture, which was medically accounted for in relation to the September 18, 2021 workplace accident. It was further noted, the treating orthopedic surgeon had provided a diagnosis of chronic regional pain syndrome for the worker on December 22, 2021, and the worker had been referred to a pain clinic specialist for further treatment. The WCB medical advisor recommended the reports from the specialist be obtained and referred to a WCB physiatrist for review and recommended a work restriction of no use of the left arm. The WCB spoke with the worker regarding a graduated return to work plan on modified duties, and provided a letter to the employer, copied to the worker, on January 14, 2022, setting out the temporary restrictions of no use of left arm, start at 4 hours/day, 3 shifts/week for two weeks.

On January 18, 2022, the WCB spoke with the worker’s treating physiotherapist to discuss the worker’s recovery and return to work. The WCB advised the treating physiotherapist the employer had sedentary one-handed duties to offer the worker, but the physiotherapist advised that the worker also had difficulties with their back, left side of their neck and left shoulder. The physiotherapist also advised the worker was unable to open or close their left hand fully, only to approximately 10%, and was reporting difficulty sleeping due to pain. The physiotherapist advised the WCB they did not support the worker returning to work at this time. On January 24, 2022, the WCB also spoke with the worker’s treating pain clinic physician’s office who also reported they did not support the worker returning to work until further treatment had been provided. The WCB advised the worker on the same date they supported the worker was currently totally disabled from work.

On March 23, 2022, the worker’s treating physiotherapist requested the WCB provide approval for a referral for the worker to an upper extremity physiotherapy specialist, which approval was provided by the WCB on the same date. The worker was seen by the hand physiotherapy specialist on April 27, 2022. The worker reported loss of function of their left hand, swelling from the nape of their neck to their fingertips, pain into their neck and shoulders, that radiated down their lateral arm into their fingers, difficulty with sleeping, headaches and dizziness to the point of nausea. The treating physiotherapy specialist found swelling to the entire limb, skin deterioration greater on the medial side, hypersensitivity with hesitation to move and guarding and noted they were unable to test active and passive range of motion due to the worker’s reported pain. The specialist provided a diagnosis of chronic regional pain syndrome throughout the worker’s upper extremity, greater on the distal side than proximal.

The worker attended for a call-in examination with a WCB medical advisor on May 18, 2022. After examining the worker, the advisor noted “The clinical examination was not able to be completed related to inability of [the worker] to tolerate any movement or contact of the left upper extremity.” The medical advisor noted the examination of the worker’s right upper extremity only indicated a minor report of discomfort on palpation on the top of the soft tissues of the shoulder. The left upper extremity sensitivity was indicated to extend from the worker’s lateral neck to the top of the shoulder, scapular/interscapular and trunk areas and included sensitivity to touch in the left upper buttock area. It also extended across the top of the left shoulder more anteriorly and to the left of the shoulder, into the arm, forearm and hand. A cervical spine MRI study was conducted on May 27, 2022, and indicated “Mild degenerative changes at the mid cervical spine. These are most pronounced at C5-C6 where there is mild narrowing of the spinal canal.”

On June 2, 2022, the worker attended a second physiotherapy clinic for an assessment. The assessment identified the worker reported pain with all testing of their lower extremities, upper extremities, cervical spine and lumbar spine, with minimal touch causing the reports of pain and dizziness. Aquatic therapy was recommended for the worker, and the therapy was approved by the WCB on July 5, 2022. A follow-up report from the second treating physiotherapist dated August 10, 2022, recommended the following restrictions for the worker’s return to work: use of right arm only, 20 minutes sitting alternating with 20 minutes standing, Week 1: 2 hours, 3 times per week, and Week 2: 3 hours, 3 times per week. The restrictions were to be reassessed after 2 weeks. The restrictions were provided to the employer on August 18, 2022, and it was arranged for the worker to return to work on August 22, 2022. On August 24, 2022, the worker contacted the WCB and advised they had returned to work for approximately 1 hour on August 22, 2022 but they felt dizziness and increased symptoms and was sent home. A Doctor Progress Report for the worker’s appointment on August 24, 2022 indicated the worker’s complaints of left arm and wrist pain and the physician found the worker’s left arm, wrist and hand were tender and range of motion was significantly restricted.

The worker’s treating physiotherapist provided the WCB with a discharge report on September 22, 2022 indicating the worker was discharged due to nonattendance. It noted the worker’s reporting of pain in their back and left shoulder and increased pain the day following treatment. The worker reported attempting to return to work but was in too much pain and that their treating physician recommended they remain off work. The physiotherapist indicated the worker reported attempting the home exercises but felt the aquatic therapy was not helping in their recovery. The worker’s file was reviewed by a WCB physiotherapy consultant in consultation with a WCB physical medical consultant on September 29, 2022 who provided the worker had recovered from the left distal radial and ulnar styloid fracture, with improvement in pain and function expected after 12 aquatic therapy visits. It was further provided that any workplace restrictions would be put in place for the worker’s complaints of dizziness, neck, back and left upper extremity pain and not the compensable injury. On October 20, 2022, the WCB provided the worker with a formal decision letter advising it had been determined their current difficulties were not related to the September 18, 2021 workplace injury and their entitlement to benefits would end after November 2, 2022. Additional medical information was received by the WCB on November 19, 2022, with a further file review completed by a WCB medical advisor on January 5, 2023. The WCB physical medical consultant noted they had conducted a call-in examination of the worker on May 18, 2022 and after review of the additional medical information received, opined the injuries the worker sustained as a result of the September 18, 2021 workplace accident did not provide a diagnosis that would require the restriction of movement by the worker. In addition, the consultant recommended movement and resumption of use of the worker’s left upper extremity in the worker’s activities of daily living and work duties would be therapeutic for the worker. On January 10, 2023, the WCB sent a further decision letter to the worker advising the previous decision they were not entitled to benefits after November 2, 2022 was upheld.

The worker requested reconsideration of the WCB’s decision to the Review Office on February 15, 2023. In their submission, the worker advised they continued to suffer the effects of their injuries from the September 18, 2021 workplace accident, which was supported by their treating healthcare providers and as such, should be entitled to further benefits. The employer provided a submission in support of the WCB’s decision on March 31, 2023, a copy of which was shared with the worker. On May 10, 2023, the Review Office accepted the WCB’s decision and determined the worker was not entitled to benefits after November 2, 2022. The Review Office accepted and agreed with the WCB physical medicine consultant that the worker’s diagnosis of chronic regional pain syndrome was not supported based on the findings of the May 18, 2022 call-in examination. In addition, the Review Office found the worker was not in compliance with their treatment plan, was not using their left upper extremity and had a pre-existing medical condition that contributed to their ongoing difficulties. Therefore, the Review Office found those difficulties were not related to the workplace accident and the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on April 15, 2024, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) of the Act states that 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 Section 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 Act requires that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury and co-operate with the WCB in

developing and implementing programs for returning to work, rehabilitation or disability management. If a worker fails to comply with this duty to mitigate, the WCB may reduce or suspend the worker’s compensation (Subsection 22(2)).

WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the "Co-operation and Mitigation Policy"), elaborates on the responsibilities of workers and the WCB in ensuring compliance with section 22 of the Act.

Worker’s Position

The worker was present at the hearing, supported by an advisor from the Worker Advisor Office, an interpreter and their spouse. Two representatives of the Worker Advisor Office also attended the hearing for training purposes. The worker advisor made an oral submission during the hearing and relied upon a written submission provided to the panel and shared with the employer in advance of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the panel.

The worker’s position is that the evidence confirms the worker was not recovered from the injury sustained in the workplace accident of September 18, 2021, but continued to sustain a loss of earning capacity and to require medical aid in relation to that injury beyond November 2, 2022. Therefore, the worker submits they should be entitled to benefits beyond that date.

The worker advisor states that the evidence supports the worker has complex regional pain syndrome and the diagnosis is based on the opinions of two treating anesthesiologists and two orthopaedic surgeons who relied upon the Budapest Criteria in their assessments. The advisor pointed out that the WCB’s legislation and policies do not require the Budapest Criteria to be met to accept responsibility for complex regional pain syndrome.

The worker’s position is that the WCB medical advisor dismissed the findings of the treating orthopaedic surgeons and hand specialist. The worker submits that the WCB and the Review Office failed to provide an explanation why they preferred the opinion of the WCB medical advisor over that of the specialists and treating orthopaedic surgeons.

The worker submits that but for the workplace accident, the worker would not have had a distal fracture, a rotator cuff tear, and an extensive period of immobilization, all of which are causally related to the workplace accident.

The position of the worker is that they followed the direction of their treatment providers and therefore disagree with the Review Office’s assertion that there was a failure to mitigate by the worker.

The worker is seeking benefits after November 2, 2022 and that the Review Office decision be overturned.

Employer’s Position

The employer’s representative was present virtually. The representative made an oral submission on behalf of the employer and answered questions posed by members of the panel.

The employer’s position is that WCB’s decision to deny benefits after November 2, 2022 was correct, given the delays in reporting and seeking medical attention in relation to the worker’s neck difficulties and given the worker was recovering post-surgery in relation to their left wrist.

The employer states that the worker did not report any neck difficulties or left shoulder difficulties until November 5, 2021. In addition, there was no medical report or treatment respecting the worker’s neck or left shoulder until November 4, 2021 and therefore, the employer’s position is that there is no evidence to establish a relationship between the September 18, 2021 compensable injury and the issues with the worker’s neck or left rotator cuff tear.

With respect to the worker’s left wrist, the employer submits that the report from the orthopedic specialist on October 20, 2021 notes that the worker’s physical presentation, three weeks post-operative recovery, supports that the worker’s post-surgical recovery was progressing as anticipated. The employer states that there were inconsistencies documented both in the worker’s symptoms and functionality. Therefore, the employer submits that the panel should put more weight on the objective findings, such as the imaging results, which suggest that the left wrist fracture was healing satisfactorily.

The employer noted that the November 4, 2021 physiotherapy initial assessment report suggests that the worker’s own subjective levels of pain were not consistent with the physical findings from that date.

The employer states that the evidence is that the worker was advised to use their wrist more, but notes that the worker continued to use a wrist brace, despite the recommendation otherwise. The employer argues that the worker’s effort to improve the mobilization of their hand was minimal.

The employer points to a report by the physiotherapist hand specialist on April 27, 2022 that states that the worker’s symptoms and difficulties had spread to other body areas, “which would not be expected or accounted for in relation to the compensable injury.”

The position of the employer is that the worker’s subjective complaints of pain are not in keeping with the actual medical findings, and therefore is asking that the decision of the Review Office be upheld and the worker’s appeal be denied.

Analysis

This appeal arises from the decision of the WCB that the worker is not entitled to benefits beyond November 2, 2022. For the worker’s appeal to succeed the panel would have to find that the worker continued to require medical aid or to sustain a loss of earning capacity resulting from the workplace injury of September 18, 2021 after November 2, 2022. As detailed in the reasons that follow, the panel was able to make such a finding.

The panel accepts the evidence from the worker that they were able to perform their duties prior to September 18, 2021. The worker was injured on September 18, 2021 and the panel finds there is insufficient evidence to conclude that the worker has recovered from that injury.

The panel notes that on September 16, 2022 the treating physician advised that the worker “continues to have ongoing disabling pain” and that “interventions to date have been of limited benefit.” The physician goes on to state that returning to work is going to be of no benefit to the worker.

A review of the Physiotherapy Discharge Report of September 22, 2022 indicates that there were no improvements in the worker’s reports of pain or function. The treating physiotherapist recommended, at the time, sedentary work with the worker using their right hand and arm, only if recommended by the worker’s treating physicians. The panel notes that not one of the worker’s treatment providers recommended that the worker return to work. The evidence before the panel is that the recommendations/restrictions set out in the physiotherapy discharge report of September 22, 2022, remain in place and were never altered.

The treating orthopedic surgeon specializing in hand surgery opined that a nerve block was necessary to attempt more aggressive range of motion and indicated on October 27, 2022 that “unfortunately this may be a permanent type of deficit for this worker”. This specialist’s opinion was that this worker had developed one of the “most severe cases” of complex regional pain syndrome that the specialist had ever seen. Additionally, there are multiple instances where the worker’s treating health care professionals reiterate the ongoing pain of the worker. The panel therefore relies on and prefers the opinions of the worker’s treating health care professionals to that of the WCB medical consultant.

The treating physician indicated in a letter dated February 23, 2024 that “in view of the ongoing pain and limited mobility and function of the hand, I do not believe that a work hardening program would have been of any benefit and may have actually made things worse."

The panel acknowledges that the worker’s treating health care professionals have diagnosed the worker with complex regional pain syndrome, however the question before the panel is not whether the diagnosis is accurate, but whether the worker is entitled to benefits after November 2, 2022. The panel accepts that the worker was experiencing ongoing pain after November 2, 2022 and is unable to work as a result. Therefore, the worker is entitled to continued benefits.

Based on the evidence before us, and on the standard of a balance of probabilities, the panel is satisfied that the worker continued to sustain a loss of earning capacity as of November 2, 2022 and required additional medical aid, in relation to and as a result of the compensable workplace injury of September 18, 2021. Therefore, the worker is entitled to wage loss and medical aid benefits after November 2, 2022.

The worker’s appeal is granted.

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 9th day of December, 2024

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