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 further benefits in relation to the April 20, 2022 accident. A hearing was held on November 26, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the April 20, 2022 accident

Decision

The worker is entitled to further benefits in relation to the April 20, 2022 accident.

Background

On April 21, 2022, the worker submitted a Worker Incident Report to the WCB to report they injured their left thumb in an incident at work on April 20, 2022. The worker described the injury as follows: “We receive boxes and when I was lifting a box I twisted my hand, which affected my thumb.” The worker attended for medical treatment on April 20, 2022, reporting a sore left thumb after an injury at work. The treating physician on examining the worker, found tenderness over the thumb tendon with some swelling but not redness or discoloration and normal motor function. The physician diagnosed the worker with tendinopathy, provided a prescription for a thumb splint for tenosynovitis of the left thumb, anti-inflammatory medication and recommended activity as tolerated at work.

At a follow-up appointment with a sports medicine physician on April 25, 2022, the worker reported “Left radial wrist pain post repetitive lifting at work” and went on to describe putting products away when they experienced left radial wrist pain that went away with rest but returned when putting more products away. The worker advised the physician they also experienced swelling, and the pain radiated into their forearm. The treating sports medicine physician examined the worker and found left wrist pain on active range of motion and palpitation and a positive Finklestein test. An x-ray taken that day did not indicate a fracture or osteoarthritis. The worker was diagnosed with de Quervain’s tenosynovitis and bracing, physiotherapy and modified duties of no left-hand work was recommended for 2 weeks.

The WCB spoke with the worker on May 4, 2022 to discuss their claim. The worker confirmed on April 20, 2022, they lifted a box and twisted their hand in the handles of the box and felt immediate pain in their left thumb. The worker noted they sought medical treatment on the same date and after experiencing increasing pain, saw a sports medicine physician on April 25, 2022, where modified duties were recommended. The worker noted they missed time from work from April 20, 2022 to May 1, 2022 and returned to modified duties on May 2, 2022 but was off on May 3, 2022 due to lack of modified duties and they missed time on May 4, 2022 due to pain. The worker advised the WCB they had been previously diagnosed with carpal tunnel syndrome. The WCB accepted the worker’s claim, and the payment of various benefits started. The employer was advised of the worker’s restriction of no use of their left hand on May 4, 2022. On May 10, 2022, the employer advised the WCB they could not accommodate the worker.

The worker attended an initial physiotherapy assessment on May 10, 2022 and reported to the physiotherapist that they injured their left thumb after lifting a box with both hands, with the left hand holding the handle when the container pulled and twisted their thumb. The worker reported feeling immediate pain and swelling and described their current complaints as intermittent sharp, shooting pain from their left thumb up their forearm, soreness to their left index finger and wrist and a lump proximal to their wrist on the radial side of their forearm. The treating physiotherapist noted swelling to the left radial aspect of the wrist, tenderness on palpitation on the left radial aspect of the forearm and along extensor compartments and decreased active range of motion of the left thumb and wrist. The physiotherapist diagnosed the worker with left de Quervain’s tendonitis and recommended no use of the left hand during the acute inflammatory phase of the injury. At a follow-up appointment on May 30, 2022, the treating physiotherapist noted improvement however, recommended an additional 4 weeks off work for ongoing treatment, with a possible gradual return to work considered at the beginning of July 2022. The worker's restrictions were updated after a July 13, 2022 physiotherapy appointment to lifting a maximum of 5 pounds, carrying/pushing/pulling 5 pounds, and a graduated return to work schedule of half time shifts for 3 weeks, then progressing to full time. The employer was provided with the worker's restrictions on July 27, 2022, and the worker advised the WCB on July 29, 2022 that the employer had advised them they were not able to accommodate those restrictions. A Physiotherapy Discharge Report dated September 6, 2022 noted the worker had been referred for a nerve conduction study to query whether they had carpal tunnel syndrome based on the pattern of paresthesia and pain along their thumb and was awaiting a surgical consultation.

On October 18, 2022, the worker was seen by an orthopedic surgeon. The surgeon recorded the worker's reporting of twisting their left wrist and thumb at work approximately 6 months previously and now experiencing "moderate left ulnar neuropathy". It was noted the worker was treated for de Quervain's tenosynovitis and had an injection, which improved their pain, but the worker continued to experience pain from the lateral aspect of their elbow when they gripped objects. On examining the worker, the treating surgeon noted a positive Tinel's test for the worker's left elbow and some swelling, with pain on palpitation. A left ulnar nerve neurolysis was recommended, which took place on November 21, 2022. At a post-surgery appointment on December 13, 2022, the surgeon noted the worker's incision was well-healed and recommended the worker avoid heavy lifting for 2 to 3 weeks, after which the worker could resume normal activity.

The worker’s file was reviewed by a WCB medical advisor on January 4, 2023. The advisor reviewed the medical reports on file and opined the worker’s diagnosis with respect to the April 20, 2022 workplace accident was a left thumb strain, with a natural history of resolution up to 8 weeks. With respect to the worker’s diagnosis of de Quervain’s tenosynovitis, the WCB medical advisor provided it was not likely medically accounted for in relation to the workplace accident and appeared to be a pre-existing condition, symptoms of which may have increased on a temporary basis by the workplace accident. The advisor went on to further provide the worker’s complaints of left elbow difficulties, including ulnar neuropathy were not reported until September 7, 2022, and would not be medically accounted for in relation to the workplace accident. Further, the diagnosis of left lateral epicondylopathy, was a new diagnosis as those symptoms were not reported when the worker was seen by the sports medicine physician or the physiotherapist. The WCB medical advisor further opined the worker’s current difficulties were not medically related to the workplace accident and while the worker may require work restrictions due to those difficulties, they would not be related to their compensable injury. On February 22, 2023, the WCB provided the worker with a formal decision letter confirming the discussion of February 9, 2023, the worker was not entitled to further benefits after January 24, 2023 as it had been determined their ongoing thumb and elbow difficulties were not related to the April 20, 2022 workplace accident.

The worker’s representative requested reconsideration of the WCB’s decision to the Review Office on May 16, 2023. The representative noted the worker continued to experience difficulties as a result of the workplace accident, including dropping items due to lack of strength, flexibility and mobility in their left hand. Included with the submission, were an April 13, 2023 letter in support of the worker’s ongoing difficulties from their treating sports medicine physician and a February 21, 2023 letter from the worker’s treating physiotherapist indicating the worker’s ongoing left thumb/wrist pain. The Review Office determined on June 8, 2023, the worker was not entitled to further benefits. The Review Office accepted and agreed with the opinion of the WCB medical advisor the worker’s compensable injuries with respect to the workplace accident were a left thumb strain and a temporary aggravation of the worker’s pre-existing left wrist difficulties and found that recovery from those injuries had likely occurred. As such, the worker was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on May 16, 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, regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Section 4(2) of the Act provides that 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 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 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.”

Worker’s Position

The worker appeared at the hearing, represented by a worker advisor and with their spouse, for support. The worker advisor provided a written submission in advance of the hearing and made an oral submission in support of the appeal. The worker provided information to the panel in response to questions posed by the worker advisor and the panel.

The position of the worker is that they are entitled to further wage loss and medical aid benefits in relation to the accident of April 20, 2022 as the evidence indicates the injury from that accident did not resolve by the time the WCB terminated benefits, and that as a result of the accident, the worker remained off work and sought further medical treatment on the advice of their treating medical providers beyond that time.

The worker advisor submits that the prior decisionmakers relied on the fact that the WCB medical advisor indicated the timeframe for recovery of a thumb strain was eight weeks. The Review Office noted that that period of time had passed, and treatment had been received and therefore found that the injury ought to have resolved. The worker advisor argues that the passing of time is not good enough and a review of whether the evidence supports actual recovery is required. The worker submits that the evidence is that the worker has not recovered.

The worker advisor also submits that the Review Office relied solely on the treating physician’s October 2022 report but did not consider the additional available medical reporting that identified an ongoing left thumb/wrist problem. The additional medical evidence provided to the Review Office from the treating physician from as recent as March 2023 confirms that the worker’s de Quervain’s injury was present well beyond the January 24, 2023 date that benefits were terminated and that injury was preventing the worker from returning to work.

The worker’s position is that the evidence supports that the worker is entitled to further benefits for their left thumb injury.

Employer’s Position

The employer was represented in the appeal by the owner, the Director and the Human Resources manager. The employer took no position with respect to the claim before the panel, but the employer’s representatives were present to provide information in response to questions from the panel members.

The employer emphasized that their focus was the worker’s best interest and confirmed that they were continuously in contact with the worker to check in following the injury. The employer further confirmed that they will attempt to provide any accommodation necessary for their workers.

Analysis

The panel is tasked with determining whether or not the worker is entitled to further benefits in relation to the accident of April 20, 2022. For the appeal to succeed, the panel would have to decide that when the WCB ended the worker’s benefits, the worker continued to have a loss of earning capacity or continued to require medical aid arising out of the injuries sustained in the workplace accident. For the reasons outlined below, the panel was able to make such findings.

The medical evidence on the file demonstrates that at the initial medical appointment on April 20, 2022 following the injury the treating physician identified tenosynovitis of the left thumb. Again, on April 25, 2022 another physician diagnosed left wrist de Quervain’s tenosynovitis. The medical reporting continuously and consistently identified that de Quervain's and an ongoing left thumb/wrist problem was present. The only contrary medical opinion before the panel is from the WCB medical advisor, which was formed without an examination of the worker.

The panel members also note that there is no evidence before them of a pre-existing de Quervain’s injury and the worker had been working their regular duties, without restrictions, prior to the workplace injury.

The Review Office found that the worker’s left wrist complaints were not caused by the mechanism of injury, but accepted that the workplace accident aggravated the worker’s prior left wrist issues. The Review Office’s finding that due to the passage of time and the fact that treatment had been received, recovery has likely occurred. The evidence before the panel, however, is that recovery has not occurred.

The Physiotherapy Initial Assessment report from an assessment on January 4, 2023 notes that the worker is unable to close their left hand fully or touch fingertips to one another, and had a strong ache to their thumb. These are the same symptoms the worker had been describing since the onset of the injury following the accident on April 20, 2022. The panel reviewed the Physiotherapy Initial Report dated May 10, 2022 and noted the worker had left thumb pain, and weakness and pain with gripping and pinching.

The treating physiotherapist’s letter of February 21, 2023 and chart notes of May 10, 2023 and the treating specialist’s chart notes of March 16, 2023 all confirm that the worker has not yet recovered from their left wrist symptomology, resulting from the workplace injury on April 20, 2022. The panel relies on the treating physiotherapist’s opinion that the worker “still suffers from left thumb/wrist pain. But most importantly is that lack of strength [the worker] continues to experience since the injury.” The treating specialist notes on March 16, 2023 that the worker “continued to notice weakness in [their] thumb and index finger.”

The evidence from the worker and their spouse mirrors that of the treating health care professionals. The worker states that they have not fully recovered and continue to suffer pain and weakness in their left hand and wrist.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker had a further loss of earning capacity or required further medical aid because of the injuries sustained in the workplace accident of April 20, 2022. Therefore, the worker is entitled to further benefits in relation to the April 20, 2022 accident. 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 24th day of January, 2025