The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that the WCB is not responsible for their current right arm difficulties as a consequence of the November 8, 2004 accident. A videoconference hearing took place on June 28, 2023 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's current right arm difficulties as being a consequence of the November 8, 2004 accident.

Decision

The WCB is not responsible for the worker's current right arm difficulties as those difficulties are not a consequence of the November 8, 2004 accident.

Background

The WCB accepted the worker’s claim for injuries to their right ankle and elbow that occurred at work on November 8, 2004. After accepting the claim, the WCB provided wage loss and medical aid benefits to the worker.

At a call-in examination on April 7, 2005, a WCB physiotherapy consultant assessed the worker and, noting they were not receiving active physiotherapy and were sedentary, encouraged the worker to return to activity as tolerated. The physiotherapy consultant also noted a recent nerve conduction study indicated right ulnar nerve irritation, with "…atrophy of the forearm and hypothenar muscles, decreased sensation in the ulnar nerve distribution and weakness of some of the muscles supplied by the ulnar nerve" and recommended the worker seek treatment with their physician and receive a course of acupuncture.

On assessment by an orthopedic surgeon on May 2, 2005, the worker reported pain and poor function in their right hand, with numbness, weakness, and clumsiness. Based on clinical findings, the surgeon concluded the worker had right ulnar neuropathy, secondary to a contusion, which did not appear to be improving, and recommended nerve transposition surgery.

On May 20, 2005, a sports medicine specialist noted improvement in the worker's ankle but that the worker reported feeling like they were developing wasting of their hand, numbness in their fingers, and pain and a catching sensation in their elbow. Clinically, the sports medicine specialist noted some right posterior shoulder girdle wasting, likely related to disuse, and intact deep tendon reflexes, brisker on the left at the brachial radialus and in the biceps, but equal at the triceps. The specialist noted unremarkable strength, some bicep and wrist extension weakness, reduced finger abduction and wrist flexion, tenderness to palpation of the radial head of the right elbow and some tenderness in the cubital tunnel, but no gross deformity at the elbow, wrist, or shoulder. The specialist indicated the x-rays revealed a possible loose body in the right elbow, some squaring of the radial head and mild elbow joint effusion and recommended further diagnostic imaging "…to rule out a loose body or healed fracture…" in the right elbow area. The July 11, 2005 MRI study indicated no evidence of any intraarticular loose body or other abnormality, and on July 29, 2005, the specialist concluded they could not provide "…a hard explanation for [the worker's] problem" and opined the worker likely had a regional elbow contusion with some transient neuropraxia of the ulnar nerve, recommending a trial of acupuncture to address the neuropathic-type pain.

Based on the worker’s continued report of right elbow difficulties, a call-in examination of the worker took place on August 2, 2005. The WCB medical advisor noted the worker's continued report of right arm pain, especially at the elbow, which they described as burning, with radiation to their hand with numbness, poor grip strength, poor rotatory gripping with their right hand, clumsiness, and difficulty writing. On assessment, the medical advisor noted some loss of strength in the right upper and lower arm but no neurological findings, no loss of sensation, and good range of movement in the hand and fingers and recommended further investigation and restrictions for 4-6 weeks.

Reporting from a sports medicine physician and athletic therapist provided to the WCB on September 26, 2005 indicated, based on performing testing, the need for additional pain relief medication to address the worker’s right upper extremity pain and numbness, as the worker's pain level would make a rehabilitation plan unlikely to succeed. The treating family physician advised the WCB of the worker’s belief they were being investigated by the WCB and on September 29, 2005, requested the WCB refer the worker for psychological counselling. A WCB medical advisor reviewed the worker’s file and noted in an October 25, 2005 memorandum to file that there was no physical barrier preventing the worker’s return to work.

On November 4, 2005, the WCB advised the worker that their claim would close on November 9, 2005. The worker provided the name of the psychiatrist they saw, and the WCB confirmed the claim would not be closed until the psychiatrist’s report was reviewed. On November 1, 2005, the WCB received a report from the treating psychiatrist, noting no ongoing psychological difficulties. On December 4, 2005, the WCB advised the worker by letter that it determined they recovered from the right ankle and elbow injuries arising out of the compensable workplace accident.

On January 23, 2006, the worker advised the WCB that during a July 2005 MRI study, they felt the positioning of their arm during the study worsened their symptoms. The worker described that afterward, their right arm was completely numb, and they noticed a lump at their right elbow. The worker noted they continued to experience difficulties with their right arm and had a further MRI study on January 19, 2006 which indicated probable tendinopathy or partial tear at the origin of the radial collateral ligament and mild tendinopathy changes involving the common flexor origin, but did not suggest compression of the ulnar nerve at the level of the cubital tunnel. In a subsequent report, the treating orthopedic surgeon referenced the MRI study findings and outlined their opinion that the worker had a "…combination of chronic ulnar nerve neuropathy and possibly also tendinopathy of the common flexor tendon", recommending a trial of physiotherapy and strengthening exercises with light weights, as well as reassessment and a repeat nerve conduction study.

In a March 10, 2006 report, the treating sports medicine physician noted the worker’s report of ongoing elbow pain, indicated they did not recommend any specific treatment, and concluded they could not offer a diagnosis to explain the degree and extent of the worker’s symptoms, noting the MRI findings would not explain all of the reported concerns. The physician confirmed they referred the worker to an orthopedic surgeon specializing in upper extremity issues.

After an April 7, 2006 nerve conduction study, the treating neurologist commented that the results were the same or possibly better than in the previous study and noted that while there was slowing in ulnar nerve conduction, significant ulnar neuropathy was not indicated and recommended conservative treatment. The neurologist noted the absence of muscle wasting and that the worker’s strength was reasonable in the ulnar nerve distribution, including finger abduction. Further, palpation of the ulnar nerve in the elbow region produced some local discomfort, sensory examination of the hand revealed a mild deficit involving the ulnar aspect of the hand and the ulnar forearm, and the worker’s reflexes were symmetrically intact.

In an April 9, 2007 report to the WCB, the treating chiropractor noted the worker's continued complaints of increased pain sensation with exposure to cold, limited right wrist extension and limited right hand function and that while objective signs of the injury had decreased, the worker was reluctant to indicate any degree of improvement. The chiropractor recommended further conservative treatment "…with a focus on the psychosocial aspects [of] this injury and restoration of functional capacity such as occupational therapy".

In a further report to the WCB, received on April 17, 2007, the treating sports medicine physician reported the worker continued to receive treatment for their right arm difficulties, with no improvement in their symptoms, and discussed possible surgical release and transposition of the ulnar nerve. The physician encouraged the worker to use their right hand for light activities and weightlifting.

On July 6, 2007, the worker's representative submitted additional medical reports and requested the WCB reconsider the worker's entitlement to wage loss benefits. The WCB received a report from the treating orthopedic surgeon on September 20, 2007, reporting the worker's ongoing difficulties and that a recent nerve conduction study suggested a possible focal ulnar nerve neuropathy at the centre of the ulnar groove, and that the WCB had not approved the recommended surgical release and ulnar nerve transposition.

A WCB medical advisor reviewed the worker’s file and on January 24, 2008, the WCB advised the orthopedic surgeon that the proposed surgery was not supported. On April 6, 2008, the WCB advised the worker’s representative that on review of the medical information provided, there was no change to the decision that the worker's current right elbow difficulties did not relate to the workplace accident.

On November 9, 2016, the worker's representative submitted a March 25, 2015 opinion from the treating family physician to Review Office, requesting reconsideration of the WCB's decision that the worker was not entitled to further benefits. Review Office returned the worker's file to the WCB for further investigation. In a report received on June 26, 2017, the family physician outlined a chronology of the worker's treatment and indicated a hand specialist was treating the worker with a view to improving their hand function. After reviewing the medical report and the worker’s file, a WCB medical advisor concluded on August 2, 2017 that the information did not indicate a diagnosis to account for the worker's reported right arm symptoms and difficulties. Noting that none of the treatment providers who assessed the worker could account for their reported right arm and hand symptoms and “associated perceived functional limitations." On August 10, 2017, the WCB advised the worker that the new medical information was reviewed, and the decision remained unchanged.

On September 14, 2017, the worker's representative resubmitted the March 25, 2015 report from the treating family physician and requested Review Office reconsider the WCB's decision. On November 3, 2017, Review Office found the worker's current right arm difficulties were not related to the workplace accident, relying upon the WCB medical advisor’s opinion that the evidence did not support a physical or neurological diagnosis for the worker's continued symptoms. The worker's representative submitted further medical information to Review Office on July 8, 2021 and requested reconsideration of that decision. On September 10, 2021, Review Office again determined the worker's current right arm difficulties were not related to the November 8, 2004 workplace accident.

The worker's representative appealed to the Appeal Commission on June 16, 2022 and a hearing took place. At the hearing, the worker offered testimony in support of their appeal. The treating orthopedic surgeon and the worker’s sister also offered testimony in support of the worker. After the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on April 8, 2025 to discuss the appeal and render a decision on the issue under appeal.

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 in force on the date of accident are applicable to this claim.

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.

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 results from an intervening incident, event or exposure and there is a causal link or relationship between that event and the workplace accident. A secondary injury is compensable if the dominant cause of the intervening event is the previous workplace accident, or 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.

Worker’s Position

The worker was represented in the hearing by legal counsel who made an oral submission on behalf of the worker and provided written submissions in support of the worker’s appeal.

The worker’s position is that the WCB should accept responsibility for the worker’s current right arm difficulties as being a consequence of the November 8, 2004 accident. The worker’s position is that since the injury occurred, they have had ongoing and unremitting symptoms in their right arm, which have worsened over time despite treatment and surgical repairs, and which continue to the present. Further, the worker submits that their treatment providers agree that the worker’s right arm difficulties stem back to their accident in 2004. As the evidence confirms the worker did not recover from the injury sustained in that compensable workplace accident, the WCB should accept responsibility for the worker’s current right arm difficulties as being a consequence of that accident.

The treating orthopedic surgeon testified that they first treated the worker in February 2006 in relation to their right arm symptoms, noting the diagnosis of right ulnar neuropathy at that time and continued to treat the worker into 2007, at which time they recommended ulnar nerve decompression and anterior transposition surgery. The surgeon testified that they again assessed the worker in March 2021 at which time the worker’s right hand was quite disabled. The surgeon confirmed they maintained the opinion expressed in their report of June 25, 2021.

The worker’s sister testified that the worker’s right arm symptoms worsened since the accident in November 2004 and significantly impacted the worker’s function, even after the surgeries were performed.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker’s appeal requires that the panel determine if the worker’s ongoing right arm condition is a result of the compensable workplace accident of November 8, 2004, whether as a continuation of the initial injury or as a secondary injury. For the worker’s appeal to succeed, the panel would have to find a causal relationship between the worker’s current right arm difficulties and the injuries they sustained in that accident. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.

The panel considered the position of the worker, as outlined in the submissions of their counsel, that the worker has not recovered from the workplace injury to their right elbow and that the worker’s ongoing right arm complaints are causally related to the workplace accident of some 20 years ago. The panel reviewed the evidence presented in support of the appeal, including the reports and documents contained in the WCB claim file as well as the testimony given by the worker, the treating orthopedic surgeon and the worker’s sister. The file evidence confirms that as a result of the workplace accident of November 8, 2004 the worker sustained injury to their right arm and ankle. We note the WCB accepted the claim on this basis, but that by late 2005, the WCB determined the worker’s ongoing right arm symptoms could not be related to the injury sustained in the workplace accident. Since that time, the worker has continued to experience symptoms in their right arm which they maintain are related to the workplace accident.

After the WCB first determined the worker recovered from the accident-related injuries, in December 2005, the various treatment providers continued to investigate the basis for the worker’s ongoing reports of right arm symptoms, but those investigations failed to ascertain an organic cause for the variety of reported symptoms. The panel noted in particular the investigations in relation to a possible diagnosis of right ulnar neuropathy which the treatment providers related to contusion of the worker’s elbow at the time of the accident. There were also investigations into a possible intra-articular loose body. The worker also indicated that an MRI study conducted in July 2005 caused an increase in their symptoms. The medical reports confirm the worker’s right arm symptoms have been extensively investigated, and various treatment approaches have been attempted, without any notable change in the worker’s reported symptomatic experience.

The panel acknowledges that some of the treatment providers who investigated the worker’s symptoms concluded that those symptoms must be or are likely due to the workplace injury because the worker did sustain a contusion to their right elbow at that time, and has continued to report symptoms over time in relation to their right arm; however, the panel has the benefit of having access to nearly 20 years of additional medical reports in relation to the worker’s right arm complaints. We noted that in July 2005, the treating sports medicine physician opined there may be “some transient neuropraxia of the ulnar nerve” but noted the lack of diagnostic findings that provided a “hard explanation” for the worker’s ongoing symptoms. While there were some indications the worker developed right ulnar nerve neuropathy, the diagnostic nerve conduction studies did not support that diagnosis. The panel also noted that the worker’s right arm symptoms did not diminish with conservative treatment measures nor with the right ulnar nerve decompression and transposition surgery performed in June 2010. Rather, the evidence indicates the worker experienced additional symptoms, including contracture of the fingers of the right hand and decreased muscle bulk in their right forearm after that time, and that a further surgical procedure to release those contractures, undertaken in June 2018 also did not eliminate the worker’s right arm symptoms. Based on our review of the totality of the evidence, the panel is not satisfied that the worker’s ongoing symptoms stem from the 2004 workplace injury, nor from any subsequent injurious event. While it is clear that the worker’s ongoing right arm complaints arose after the 2004 workplace injury, the evidence as a whole does not support the finding that the current right arm condition arose out of or as a result of that injury.

In the absence of a physiological explanation to support a causal relationship between the workplace injury of 2004 and the worker’s current right arm condition, the panel also considered if there might be any psychological cause for the worker’s ongoing symptoms and if so, considered whether there might be a causal relationship between the workplace accident, the worker’s subsequent psychological status and their ongoing right arm condition. We noted that in August 2005, the WCB medical advisor recommended psychological counselling to address the worker’s pain behaviour and noted their belief that “there are considerable non-compensable issues which are also driving this claimant’s presentation." Beginning in September 2005, the treating family physician also requested that the WCB arrange a psychological referral for the worker, noting that the worker believed the WCB was spying on them. While the November 1, 2005 psychiatric report did not note any concerning findings, the treating family physician continued to express some concerns to the WCB. The panel also noted the internal medicine physician’s July 2009 report to the treating family physician indicating that treatment of the worker’s psychiatric condition resulted in improvement in the worker’s right hand symptoms, and that they believed the worker’s right arm issues were more ““functional” than "pathological”. The panel noted that this physician assessed the worker during a period of inpatient psychiatric treatment for what the physician described as a “delusional syndrome.” The panel also noted a query by the treating physiatrist in 2014 of a possible diagnosis of conversion disorder, and noted that in the physiatrist’s January 12, 2015 report, they confirmed they could not identify any organic basis for the worker’s right arm symptoms and again queried a conversion disorder. In the hearing, the treating orthopedic surgeon also alluded to potential mental health concerns as potentially providing an explanation for the worker’s symptoms.

In light of these indications of a psychological component to the worker’s experience of ongoing right arm symptoms, the panel also reviewed evidence in respect of the worker’s post-accident psychiatric admissions and sought a further opinion from the WCB psychiatric consultant as to the possibility that the worker developed a psychological injury or condition, whether related to the workplace accident or not, that could account for the ongoing right arm symptoms reported by the worker.

In a comprehensive January 21, 2025 report, the WCB psychiatric advisor concludes that while there is a possible relationship between the worker’s symptoms and their psychological condition, such a relationship is not likely. The psychiatric advisor reviewed the medical reporting in totality and concluded that:

“[The worker is] an individual with a high risk of developing a psychotic disorder given the reported isolation, strong family history… and possibly impaired cognition….

The etiology of psychotic disorders … is considered a mix of genetic factors, biochemical factors, and physiological changes at the neuronal levels. In other words, there is no possible medical/psychiatric mechanism that can account for emergence of a psychotic episode in response to an incident such as the November 8, 2004 workplace incident.”

The psychiatric advisor also reviewed other explanations for the worker’s symptomatic presentation that could relate to a psychotic disorder, noting that:

“Whether the initial symptoms were prodromal symptoms of a psychotic disorder, somatic delusions, or tactile hallucinations, it appears that they resulted in disuse atrophy, and further deterioration of symptoms. Therefore, presence of a psychotic disorder is most likely to explain the atypical course of symptoms, as well as the lack of objective test findings that could explain the degree of impairment. The improvement in symptoms while taking antipsychotic medications also points toward the nature of these symptoms being related to psychosis, rather than any organic causes. ”

The panel noted the WCB psychiatric advisor also considered the diagnosis of conversion disorder, which other treatment providers queried, but noted the worker does not meet the diagnostic criteria for conversion disorder. Further, the psychiatric advisor concluded that:

“…it is highly unlikely that the conversion disorder alone could account for the reported symptoms and clinical presentation. …[E]ven if present, conversion disorder cannot be accounted for by a slip and fall, such as November 8, 2004 incident. On the other hand, presence of a psychotic disorder of a chronic nature could explain the clinical presentation and reported symptoms.

[The worker] has a history of medication non-compliance, and abrupt discontinuation of these medications that has led to a relapse of psychosis. …Most likely the undertreatment of psychosis and focusing on investigations to find a physiological cause, has contributed to the worsening of [the worker’s] symptoms over the years.”

The panel accepts and relies upon these conclusions by the WCB psychiatric advisor. Based on this report, we are satisfied that the worker’s psychological condition did not arise as a result of the workplace accident, and that while there may be a psychological explanation for the worker’s continuing experience of right arm symptoms, this cannot be causally related to the workplace accident nor to the subsequent treatment of injuries sustained in that 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 current right arm difficulties are a consequence of the November 8, 2004 accident. Therefore, the worker’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 1st day of May, 2025