WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090042
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: N/A
HEARING DATE: N/A
ATTENDEES: N/A
ISSUE
The worker seeks a non-economic loss (NEL) benefit for his right elbow.
HOW THE ISSUE ARISES
On July 29, 1999, at the age of 44, this worker reported a gradual onset of pain in the right shoulder and right arm from the repetitive use of a hammer, power drill and lifting of material. The original diagnosis provided on August 10, 1999 was traumatic tendonitis of the right forearm and elbow. The symptoms and physical findings were pain in the right forearm, hand numbness and right elbow tenderness with reduced range of motion. He was treated with medication and prescribed restricted activity. The claim was allowed for health care benefits. The worker performed modified duty but did not lose any time from work due to the injury.
The worker’s claim remained inactive until it was reopened to determine if the surgery the worker had on July 17, 2001 (right ulnar nerve transposition) was related to the injury of July 29, 1999.
On October 8, 2001 the recurrence was denied based upon a conclusion that the right ulnar nerve transposition surgery was not related to the mechanics of the original accident or related to the diagnosis of right arm tendonitis.
Upon receipt of new medical information that indicated that the worker had right medial epicondylitis, the decision of October 8, 2001 was reconsidered. With advice of the Workplace Safety and Insurance Board (WSIB) medical consultant, the diagnosis of right sided medial epicondylitis was accepted as related to the original injury and it was also concluded that the right ulnar nerve condition was related to the medial epicondylitis. Noting the medical compatibility between the original area of injury, the medial epicondylitis and the ulnar nerve, the worker was granted allowance for the right ulnar nerve transposition surgery. The worker received full loss of earnings (LOE) from July 3, 2001 to July 30, 2001. He then received partial LOE to September 9, 2001 while he was performing modified duties at earnings that were less than his pre injury earnings. The worker was also paid full LOE for lost time to attend medical appointments on January 16, 2002 and August 7, 2002.
On April 18, 2007 the worker spoke to the adjudicator and requested a NEL assessment of his right elbow. He stated that he has been having ongoing problems with his right arm which he feels are permanent. On November 21, 2007, the worker’s request was denied as it was not felt that the worker had an injury-related permanent impairment. This decision was reconsidered and confirmed on June 22, 2009.
The worker objected to the decision of November 21, 2007 denying him a NEL assessment of the right elbow.
AUTHORITY
11-01-05 Determining Maximum Medical Recovery
18-05-03 Determining the Degree of Permanent Impairment
RESOLUTION METHOD AND PROCESS
The worker opted for a 60 Day Decision. The employer has chosen not to participate.
ASSESSMENT OF THE EVIDENCE
In assessing the issue in dispute I have had regard for all of the information in the claim file and in particular the following categories of information/evidence as summarized below:
Operational policy
Medical information on record
WSIB medical consultants’ opinions
1. Operational policy
The following two policies provide the criteria and guidelines which must be considered when deciding if a work-related impairment is permanent and provides the authority to grant a NEL assessment in cases of a work-related permanent impairment.
11-01-05- Determining Maximum Medical Recovery
In this policy it states:
“Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss.”
“Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery (MMR).”
“After MMR is identified and recorded, if there is a permanent disability/impairment, the worker is eligible for a permanent disability assessment or a NEL determination.”
18-05-03 Determining the Degree of Permanent Impairment
In this policy it states:
“Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits.”
2. Medical information on record
The following represents a summary of the medical information on record:
August 10, 1999 - The Physicians First Report (Form 8) completed by the family physician provides a diagnosis of traumatic tendonitis with pain in the right forearm, hand and elbow.
August 13, 1999 - Preliminary EMG Report provides a diagnosis of right lateral epicondylitis and right thumb extensor tendonitis and states that upon examination, the worker’s neck movements are completely full and pain free.
October 12, 1999 - Specialist’s Report. In this report the specialist states that the inflammation of the worker’s right medial epicondyle may be caused by an ulnar neuritis. Upon examination of the worker he found full movements of his cervical spine, no weakness in the right shoulder girdle region muscle, no weakness of the biceps, triceps, flexors or extensors of the worker’s right wrist.
December 28, 1999 - Specialist’s Report. The doctor notes that the worker had a sensory loss in the distribution of the right ulnar nerve. He recommended a cortisone injection of the right lateral epicondyle.
April 10, 2000 - Specialist’s Report. At this time, the specialist indicates since an EMG of the worker’s right arm did not show significant slowing of the ulnar nerve at the elbow and due to continued complaints of numbness in the fourth and fifth digits, he recommended an MRI of the worker’s neck to rule out a neck related cause for the continued problems in the worker’s hand.
November 8, 2000 - Specialist’s Report. The specialist diagnoses the worker with an ulnar neuropathy with compression in the cubital tunnel and he recommended surgical decompression.
July 17, 2001- Operative Note. This note confirms the operation of right ulnar nerve transposition.
January 16, 2002 - Specialist’s Report. The specialist indicates that the worker continues to have significant neurological symptomatology in the right elbow area. The worker was advised that it takes a month for nerve regeneration and that he should return for reassessment in 6 months.
August 7, 2002 - Specialist’s Report. The specialist recommends that a repeat nerve conduction study be done noting the worker’s continued right hand numbness to rule out further impingement.
October 16, 2002 - Specialist’s Report. The specialist states that the nerve conduction study of the worker’s right arm show a C8 radiculopathy which in his opinion may account for the worker’s symptoms in the right hand. There was no evidence of any ulnar nerve neuropathy found at the elbow. X-rays of the cervical spine showed narrowing between C7 and T1. An MRI of the cervical spine was recommended.
January 22, 2003 - Specialist’s Report. The specialist notes that the worker showed him the MRI which showed a possible costochondral bar or disc at the right foramen on the C7, T1 level. He expressed the opinion that he feels that this is causing the impingement on the C8 nerve root on the right side.
April 4, 2005 - Specialist’s Report. This doctor provided the worker the option of surgical intervention of the worker’s cervical spine to alleviate symptoms of right arm pain, numbness and burning.
February 4, 2003 to May 2, 2005 - Family Doctor Clinical Notes. In May 2007 the family doctor provided a package of clinical notes for assessment dates from 2003 to 2005. These records provide the results of an MRI from 2003 (noted above). The notes also indicate that on February 3, July 8 and September 30, 2003 and May 27, 2004 that the chief complaints of the worker are of pain radiating from the cervical area to the right shoulder, arm and hand. The remainder of the medical notes discuss unrelated issues.
3. WSIB medical consultants’ opinions
The worker’s claim was referred by the adjudicator on three separate occasions to the WSIB medical consultants to obtain medical advice. The adjudicator sought clarity around the compatibility of the worker’s diagnosed condition(s) to the original injury, whether there was evidence of ongoing work related impairment and to determine if there was evidence of permanent impairment of the worker’s right elbow. On each occasion all of the new medical information was assessed.
The following are the opinions of the WSIB medical consultants after review of the medical documents:
On December 27, 2001 the medical consultant opined when looking at the job duties performed in July 1999 (repetitive right hand movements) the development of right sided medial epicondylitis was a compatible diagnosis. He also stated that the right sided medial epicondylitis may be the cause of the worker’s night sided ulnar neuritis and hence right ulnar nerve transposition surgery is related.
On August 20, 2007, the medical consultant reviewed the specialist’s reports and the findings of the electrodiagnostic study. He opined that the medical evidence indicates that the residual numbness the worker is experiencing in his right hand is being caused by a medical condition found in the worker’s neck and that there is no evidence that the worker has a medical condition in the right elbow.
On June 4, 2009, the medical consultant concluded, based on review of all of the medical information, that the medical evidence does not support an ongoing impairment in the worker’s right elbow. Secondly, the EMG and MRI results provide the cause of the worker’s symptoms in his right hand, elbow and shoulder as a non occupational degenerative condition in the worker’s neck/cervical area.
ANALYSIS
It is the opinion of the worker that he has a work-related permanent impairment in the area of the right elbow and wishes to be assessed for a NEL benefit.
As indicated in policy, the criteria for allowance of a NEL assessment is evidence of a permanent work related injury.
In this case, the original areas of injury post accident were the right forearm and elbow with the diagnosis of traumatic tendonitis. This was caused by unaccustomed overuse of the right arm. There was no evidence of injury to any other area of the body. The worker received conservative treatment for the tendonitis of the right forearm and elbow. The medical information suggests that the right ulnar nerve transposition surgery of July 17, 2001 was conducted because, at that time, it was believed the worker’s right medial epicondylitis was causing the swelling and the symptoms of numbness in the worker’s right hand. Unfortunately, the surgery of July 17, 2001 did not resolve the symptoms in the worker’s right hand. A further EMG and an MRI were conducted to assess reasons for the worker’s continued condition. These tests confirmed a non-work condition in the worker’s neck/cervical area.
Based on the results of these tests, both the worker’s doctors and the WSIB medical consultants have opined that the cause of the worker’s continued symptoms in his right hand and arm are linked to the findings in the neck/cervical area.
The WSIB medical consultant has indicated that there is no evidence that the worker has an impairment in his right elbow and that the medical findings of the worker’s neck is a non work related condition. I accept this medical opinion and further note that there was no evidence of injury to the neck or shoulder on the date of accident, July 29, 1999. I also note that the family doctor’s clinical notes indicate that the worker’s symptoms are a result of radiating pain from the cervical area to the right shoulder and arm.
While I appreciate the worker’s comments that the symptoms he is experiencing in his right hand and arm are a result of the work injury of July 29, 1999, the medical findings do not support that the symptoms the worker is experiencing are caused by or related to his original injury of July 29, 1999.
In conclusion, having considered the policy criteria, the medical information on record, the original area of injury, the opinions of the worker’s doctors and the WSIB medical consultants, I find that there is no evidence to support that the worker has a continued work related impairment of the right elbow. As the worker does not have a work related permanent impairment, the worker’s request for a NEL assessment of the right elbow cannot be allowed.
CONCLUSION
The worker’s objection is denied.
DATED September 1, 2009
G. Matthew Appeals Resolution Officer Appeals Branch