APPEALS RESOLUTION OFFICER DECISION
decision number:
20220131
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
n/a
RESPONDENT:
worker
REPRESENTED by:
Worker REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
a meadows, appeals resolution officer
SEPTEMBER 9, 2022
ISSUES
The employer objects to the following:
The June 5, 2019 decision, which accepted entitlement to the worker’s bilateral thumbs, wrists and hands as a gradual onset injury resulting from the workers’ regular job duties.
The Non-Economic Loss (NEL) decision of January 6, 2021, which awarded the worker a 10% whole person impairment for their bilateral wrist and elbow impairments.
The decision dated January 26, 2022, which accepted entitlement to bilateral elbow epicondylitis.
BACKGROUND
On February 26, 2019, this then 50-year old Offset Press Operator reported a gradual onset type of injury to their bilateral thumbs, wrists, and forearms to their employer, which they attributed to their job duties requiring repetitive lifting, squeezing, and grasping.
The worker sought medical attention from their family doctor on February 25, 2019, who provided a medical note for modified job duties, noting bilateral thumb tendonitis. The worker was assessed by a physiotherapist on March 4, 2019, who diagnosed bilateral De Quervain’s tenosynovitis and impaired radial nerve mobility.
On June 5, 2019, initial entitlement in the claim was accepted for the bilateral wrist, thumbs and hands for De Quervain's tenosynovitis for health care benefits, as the worker did not lose time from work. The employer objected to this decision.
Updated medical was reviewed by the Case Manager (CM) on April 8, 2020, and entitlement was updated to include an exacerbation of bilateral thumb CMC joint osteoarthritis (OA), bilateral sprain/strain of thumbs and bilateral epicondylitis. Although this was documented in a memo, a formal decision letter was not issued.
On November 19, 2020, the CM determined that the worker had reached maximum medical recovery (MMR) from their injuries as of September 8, 2020. The worker was referred for a NEL assessment for bilateral elbows epicondylitis, and bilateral wrist strain injuries. On January 6, 2021, the worker was granted a 10% NEL benefit for the permanent loss of function for their bilateral wrists and elbows. The employer objected to this decision.
On January 26, 2022, the CM provided a decision letter that clarified that bilateral epicondylitis was accepted in the claim.
On February 23, 2022, the Eligibility Adjudicator (EA) reconsidered and upheld the June 5, 2019 entitlement decision, noting that the CM had confirmed the allowance of the updated and clarified diagnoses in the letter of January 26, 2022.
On June 30, 2022, the CM reconsidered and upheld the decision to accept the condition of bilateral epicondylitis.
The employer’s objection to the EA’s decision of June 5, 2019, the decision of January 26, 2022 and reconsideration of that decision on February 23, 2022, as well as the NEL decision of January 6, 2021, forms the basis for this appeal.
PRELIMINARY MATTER
The employer representative provided a written submission further to their Appeal Readiness Form (ARF) dated February 1, 2022, indicating that they are “…objecting to the initial allowance and all ongoing diagnoses, Loss of Earnings benefits, Health Care benefits, entitlement to Non-Economic Loss Award and the subsequent bilateral CMC osteoarthritis of thumb surgeries and benefits.” I noted that not all of these decisions were properly before me. Additionally, and as pointed out in the employer representative’s correspondence on file, there was no formal decision letter granting entitlement to bilateral elbows in the claim file. In light of this, and noting that they were within the time limit to appeal this issue, the file was returned to the Operating Area to provide a formal decision regarding bilateral epicondylitis, which was subsequently issued on January 26, 2022. Noting that this decision was intrinsically intertwined, this appeal was put on hold in order to bring forward the January 26, 2022 decision and the reconsideration of this decision on June 30, 2022, to ensure a fulsome review and comprehensive decision at the appeal level.
For clarification, the issues properly before me were outlined in the Objection Intake Team (OIT) correspondence dated February 28, 2022, and were the following: the initial entitlement decision dated June 5, 2019, and the January 6, 2021 NEL entitlement decision. Further to the above, the decision of initial entitlement to bilateral epicondylitis dated January 26, 2022 has been brought forward and added to the issues under appeal.
AUTHORITY
The Workplace Safety and Insurance Act (WSIA), Section 13 (2)
Operational Policy Manual
Published
15-02-01, Definition of an Accident
11-01-01, Adjudicative Process
11-01-05, Determining Permanent Impairment
15-02-03, Pre-Existing Conditions
15-02-04, Aggravation Basis
18-05-03 Determining the Degree of Permanent Impairment
October 12, 2004
November 3, 2008
November 3, 2014
November 3, 2014
November 3, 2014
November 3, 2014
18-05-04 Calculating NEL Benefits
February 1, 2018
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on my assessment of the claim file evidence, I find that the worker has entitlement to bilateral thumbs strain/sprain, exacerbation of underlying bilateral thumb CMC joint OA, and bilateral lateral epicondylitis. I find the worker does not have entitlement to a bilateral wrist repetitive strain injury. I find the worker reached MMR with evidence of a permanent impairment for the bilateral elbow lateral epicondylitis, and is entitled to a NEL award of eight (8) percent to recognize the associated loss of function. The reasons for my decision are outlined below.
The employer representative completed an Appeal Readiness Form (ARF) and addendum dated February 1, 2022, with written submissions dated May 12, 2022, and July 15, 2022, which outlines their position. The representative has provided additional written submissions throughout the claim file. To summarize, their submissions note that they object to the initial entitlement allowance and all ongoing diagnoses, payment of loss of earnings (LOE) benefits, and acceptance of a NEL benefit for bilateral wrists and elbows. They submit that the accident history of a gradual onset injury to bilateral thumbs, wrists and forearms after working many years as an Offset Press Operator and doing repetitive lifting, squeezing, and grasping activities is not accurate and there were no significant changes to the job prior to the reported injury. They contend that he worker’s condition did not arise out of and as a result of the job duties, and that their bilateral thumb symptoms were the result of the natural progression of their underlying osteoarthritis. Additionally, they argue that the worker’s EMG studies were normal and these findings combined with the information in the September 8, 2020 Speciality Program Assessment report would support their position that there is no clinical basis to support entitlement to bilateral wrists and elbows nor a 10 percent NEL award for same.
The worker and their representative are participating in the appeal, and have submitted completed Participant Forms in this regard. They have not provided any additional submissions pertaining to the matters at hand, other than what is contained in the claim file.
According to Policy 15-02-01, Definition of an Accident, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable unintended event that causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties.
For a disablement-type injury the worker does not have the benefit of the presumption under Section 13(2) of the WSIA which states if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown. In the case of a disablement, there must be evidence that demonstrates that the disablement arose out of and in the course of employment. There must be a causal relationship between the work being performed and the disablement.
With respect to establishing initial entitlement, Operational Policy 11-01-01, Adjudicative Process states that all decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points:
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history
The first issue before me in this case is to determine if the worker’s bilateral hands, wrists, thumbs, and elbow injuries arose out of and in the course of their employment. There must be a causal relationship between the work performed and the disablement.
Initial entitlement in the claim was accepted in the claim on June 5, 2019, for bilateral wrist, thumbs and hands. Entitlement to a bilateral forearm injury was denied noting that there was not an objective medical diagnosis provided for this area of injury. The worker spoke with a Customer Service Representative (CSR) on March 21, 2019 to provide a statement regarding the accident history. The worker stated that they have worked for the employer for the past seven (7) years, and had been a printer for the last 30 years. The worker claimed a gradual onset of pain in their bilateral wrists, hands, and forearms starting in March 2018. They attribute their pain to repetitive movements (lifting, squeezing and gripping of paper) required in their regular job duties. They estimate that 30 to 40 percent of their shift is spent performing the activities that caused the injuries, and that there have been no changes to their job duties.
The worker sought first medical from their family doctor on February 25, 2019 and was diagnosed with bilateral thumb tendonitis and De Quervain’s tenosynovitis. They were given a note to refrain from grasping and squeezing for the next six (6) weeks.
The employer provided the physical demands analysis (PDA) of the worker’s job, and noted that there had been no changes to the worker’s job to account for the onset of symptoms, and the worker should be accustomed to the duties that they have been performing for the past seven (7) years.
I have reviewed the PDA for the worker’s job duties as a press operator, and find the following to be relevant:
lifting activities up to 25 pounds on a rare basis (0-5%) and up to 15 pounds on an occasional basis (6-33%), using bilateral hands
carrying up to 25 pounds on a rare basis, and up to 10 pounds on an occasional basis
pushing/pulling 60+ pounds on a rare basis, up to 20 pounds on an occasional basis
forward reach between waist and shoulder is performed frequently (34-66% of shift)
gripping is required frequently for the mouse, scanner, stacks of paper, pallets, sledgehammer, pallet jack, cleaning accessories
pinch grip, handling, and fingering requirements vary from occasional to frequent
wrist flexion, extension and deviation varies from rare to occasional
The worker attended a physiotherapy assessment on March 4, 2019. The working diagnosis provided was bilateral De Quervain’s Tenosynovitis and impaired radial nerve mobility. It was noted that the worker had no prior upper extremity injuries.
Following the injury, the worker was provided modified duties and was only working on the front end of the press. The worker saw their doctor on October 7, 2019, who provided a diagnosis of “bilateral writs pain, not yet diagnosed”, and referred the worker to a specialist as their symptoms had not improved and they remained on modified job duties. The worker contacted the CM on January 10, 2020 to advise of ongoing symptoms, and delays in seeing a specialist. The worker stated that the physiotherapy treatment was not effective and their symptoms were moving up their forearms. Noting the continuity of the worker’s symptoms and continuance of modified job duties, the CM accepted ongoing entitlement in the claim for wrist/hand/fingers repetitive strain injuries and De Quervain’s tenosynovitis. The CM referred the worker for a Specialty Clinic assessment to clarify the diagnosis and prognosis and determine a treatment plan.
The Upper Extremity Specialty Program (SPEC) comprehensive assessment report dated January 21, 2020, referenced the accident history of a gradual onset of pain in both thumbs, wrists and forearms after many years as a press operator performing repetitive activities. The worker reported symptoms of right thumb sharp pain, right lateral epicondyle pain, left thumb pain and left lateral epicondyle pain with gripping, squeezing and twisting activities. Rest was an easing factor. The worker advised that their modified duties required them to complete approximately half of their pre-injury job duties. The clinical impression was that the worker’s injuries appeared to be from repetitive strain injuries related to job duties. The x-rays showed mild CMC joint arthritis in the bilateral thumbs, which is not typical for males. The clinical examination demonstrated that the worker had significant tenderness on palpation of their CMC joints bilaterally and on their lateral epicondyles. The SPEC provided the occupational diagnoses of exacerbation of bilateral thumb CMC joint osteoarthritis, bilateral strain/sprain of thumbs, and bilateral lateral epicondylitis. The mild CMC joint arthritis was considered non-occupational. The specialist administered cortisone injections in the bilateral thumbs, and prescribed braces and physiotherapy treatment.
The worker was seen in follow up at the SPEC on March 16, 2020. They reported good improvement with the injection and physiotherapy treatment, which they were attending 2 to 3 times per week. Continued modified duties were recommended with another block of physiotherapy treatment with a work hardening focus in order to support a gradual return to regular job duties. A full functional recovery was anticipated over the next two (2) months.
On April 8, 2020, the CM reviewed the claim file information. It was noted that the worker had been laid off due to work shortage/covid-19 as of March 23, 2020. The CM noted that the SPEC had provided clarification of the worker’s diagnoses, and entitlement was updated to an exacerbation of bilateral thumb CMC joint osteoarthritis, bilateral sprain/strain of thumbs and bilateral epicondylitis. It was noted that the mild bilateral thumb arthritis was not part of the claim. This information was communicated verbally to the worker; however, no formal decision was issued. The CM requested prior medical chart notes for the purpose of confirming that the worker did not have prior symptoms related to their bilateral thumbs.
In follow-up at the SPEC via telemedicine on May 19, 2020, the worker reported regression with their symptoms due to not attending physiotherapy treatment because of Covid-19. They remained on a three (3) month lay-off from work, but had no improvement with pain since being off work. The worker was seen in-person on June 30, 2020 and having resumed some physiotherapy was noticing minor improvement. Objective testing was performed, with results of De Quervain’s test equivocal was bilaterally, Phalen’s test negative was bilaterally, and Cozen’s and Mill’s tests were positive bilaterally for lateral epicondylitis. It was noted that the worker has noticed some improvement with restarting physiotherapy, but when they stop the symptoms return. PRP injections were recommended, however not approved/covered by the WSIB. On September 8, 2020 the worker attended the SPEC for a final assessment, where it was determined that the worker had reached maximum medical recovery (MMR) with permanent limitations for bilateral hands and elbows. It was noted the worker continued to have ongoing pain with the repetitive nature of the job, despite being moved to an easier press which did not require heavy pushing and pulling.
In my review of the issue of initial entitlement, I have considered the employer representative’s submissions which contend that the worker’s job duties are not significantly repetitive, do not require heavy or forceful repetitive aspect, and there was no change in the worker’s job duties to cause an injury.
Based on my assessment, I find that the worker’s job duties have risk factors associated with developing repetitive strain type of injuries. Specifically, I note from the PDA that the worker can be required to lift up to 15 pounds for up to one third of their shift, and can perform forward reaching and gripping for up to two thirds of their shift. While this is not considered“high” repetition in terms of cycle time, and I acknowledge that the worker performs various tasks in between, I find that the weight and force associated with the duties is not insignificant or negligible, and could reasonably contribute to the development of an injury. Further, I note that many of the duties require the use of bilateral hands/arms, which would align with the bilateral diagnoses. Although I acknowledge the worker has been performing this job for several years and may be accustomed to the process, I find it significant that the SPEC medical assessors have also considered this factor and proceeded to provide the opinion that the workers’ diagnoses are medically compatible with the job duties performed over time with no changes noted.
As reviewed above, the initially accepted diagnoses in the claim file were De Quervain’s Tenosynovitis, bilateral wrists/thumbs/hands repetitive strain injuries. These diagnoses were subsequently clarified by the SPEC assessors to be an exacerbation of bilateral thumb CMC joint osteoarthritis, bilateral thumbs sprain/strain and bilateral epicondylitis, with the non-occupational diagnosis of mild pre-existing arthritis in the thumbs. In my review of the file, the accepted diagnosis was clarified in the memo of April 8, 2020, however not communicated in writing nor updated in the entitlement status section of the claim. It was later communicated in the correspondence of January 26, 2022 and February 23, 2022. In considering this information file, I find that although a bilateral wrist repetitive strain injury was initially accepted, this diagnosis was not maintained upon assessment at the SPEC. The worker continued to participate in assessment and treatment; however, this was directed toward their bilateral thumbs and elbows. I find that while the worker may have experienced symptoms in their wrists, the medical evidence does not provide an ongoing diagnosis for the wrists. Thus, I find it is reasonable to presume that the symptoms in the wrists were stemming from the worker’s confirmed issues in the CMC joints of the thumbs, and I find there is no ongoing entitlement to a bilateral wrist repetitive strain injury.
As noted above, I have determined that the job duties have risk factors for the development of repetitive strain/sprain injuries and noting the requirement of significant gripping and handling (often involving force and weight); I accept the diagnosis of bilateral strain/sprain of the thumbs, which was clarified by the SPEC, as compatible with the accident history. As such, I find that the worker has entitlement to bilateral thumb strain as proof of accident is established in keeping with Policy 11-01-01.
I have further considered entitlement to bilateral epicondylitis, and have considered the employer’s submissions in this regard. They note that the early medical documentation on file does not speak to elbow issues, but to the hands, wrists, and thumbs. They further note that EMG report of November 28, 2019 did not show evidence of a median or ulnar neuropathy at either wrist or elbow, and state that EMG studies would detect neuromuscular abnormalities and also consider the tendons, which are attached to the muscles. In my assessment, I find that the worker reported pain in their bilateral forearms from the date of claim establishment. The entitlement decision of June 5, 2019, recognized the worker’s report of this, however denied entitlement to the forearms on the basis that there was no specific diagnosis provided for this area of injury. When assessed at the SPEC, the clinical exam noted tenderness to palpation over the lateral epicondyle, which is located next to the extensor muscles of the forearm. They did not provide a diagnosis related to the worker’s forearms, but diagnosed bilateral lateral epicondylitis. In the assessment of June 30, 2020, the Cozen and Mills tests were performed and provided positive results for lateral epicondylitis. I find that the worker’s forearm pain was in proximity to and resulting from the diagnosed bilateral lateral epicondylitis, and noting this I find that these symptoms existed at the time of injury, despite not being diagnosed until the initial assessment at the SPEC. Therefore, I do not accept the employer’s submission that the worker did not initially report issues with their elbows and thus should not have entitlement. In regard to the normal EMG studies, I find that this does not conclusively rule out the existence of lateral epicondylitis, particularly when considered in the presence of positive objective clinical testing, such as the Cozen and Mills tests. I note that EMG studies are typically used to rule out nerve compression, and further that the symptoms of nerve compression may be similar to that of epicondylitis. The MRI of the worker’s cervical spine did not show any disc or neck injuries or arthritis that could account for the production of bilateral arm pain. I find that the worker’s job duties requiring some repetitive movements, handling weights typically 10 to 15 pounds and occasional heavy pushing and pulling are compatible with the diagnosed bilateral lateral epicondylitis. I find the worker reported a personal work-related injury, that proof of accident has been established, and that the diagnosis is compatible with the accident history, as outlined in Policy 11-01-01.
The employer has submitted that the worker’s bilateral thumb osteoarthritis is degenerative in nature and was not related to their job duties, but a natural progression of the degenerative condition.
In this case, I have reviewed Operational Policy 15-02-03, Pre-Existing Conditions, which provides that entitlement for a work-related injury/disease will not be denied due to the existence of a pre-existing condition. Once initial entitlement is established, the decision-maker considers the impact, if any, of pre-existing conditions on the worker’s ongoing impairment.
A pre-existing condition is any condition that existed prior to a work-related injury/disease, and may including injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the conditions must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.
Pre-existing conditions include but are not limited to
- conditions that have produced periods of impairment/disease requiring health care and have caused a disruption in employment prior to the workplace injury or disease, as defined in policy
15-02-04, Aggravation Basis
underlying or asymptomatic conditions which only become manifest post-accident as defined in policy 14-05-03, Secondary Injury and Enhancement Fund, and
work-related permanent impairments for which the WSIB has granted a permanent disability or non-economic loss benefit.
Consistent with the “thin skull” doctrine, the fact that a worker may have a pre-existing condition that could increase susceptibility to injury/disease is not considered during the initial determination of entitlement in a claim.
Where the clinical evidence demonstrates that a pre-existing condition has been aggravated as a result of a work-related injury/disease, benefits continue until the worker recovers from the aggravation of the pre-existing condition.
On January 18, 2022, a medical opinion was obtained with regard to the worker’s CMC joint osteoarthritis condition. The opinion provided that “…considering there was no pain prior to the [date of injury], in my opinion, the ongoing pain and bilateral thumb impairment can be reasonably considered compatible with the claim and represents and ongoing claim related impairment.” The consultation goes on to state that the repetitive work duties are the most reasonable primary contributor to the exacerbation of the pre-existing CMC joint osteoarthritis and has been a significant contributor to the ongoing impairment. The employer representative has submitted that this opinion should not be given weight, as it is inconsistent as it states both that the worker did not have pain prior to the injury and that there was pain for “several years”. In my review of the consultation and the additional medical information on file, I find that the worker claimed a gradual onset of pain in their thumbs dating back to 2018. The representative references that the worker had pain and swelling to their thumbs “four years prior to the accepted date of injury”. I note that there is an x-ray of the finger and thumb in 2016, which was clarified by the physician to be related to a finger fracture. In reviewing the medical report of Dr. Gan dated October 7, 2021, while it notes that the worker reports experiencing pain and swelling in the thumbs for “several years”, I do not find this to be conclusive evidence that the worker’s symptoms pre-date 2018, which is three (3) to four (4) years prior to this report.
I have also considered policy 15-02-04, Aggravation Basis, which states, “where the worker has a pre-accident impairment and suffers a minor work-related injury/disease to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis”. A “pre-accident impairment” in this policy is defined as “a condition that has produced periods of impairment/disease requiring health care and has caused a disruption in employment (lost time and/or modified work). Although the period of time cannot be defined, the decision-maker may use a one to two year timeframe as a guide” (emphasis added by this writer). I find no evidence on file to indicate that prior to the date of injury the worker had a disruption in employment and required health care for their bilateral thumbs. Although the worker’s prior clinical chart notes were not submitted to the claim file, I note that the representative has not provided evidence that modified work or lost time attributed to the worker’s thumb condition transpired. Therefore, based on my review of the information and in the absence of a pre-accident impairment, I find policy 15-02-04, Aggravation Basis, is not applicable to this worker’s case.
I have also considered policy 15-02-03, Pre-existing Conditions, which is outlined above.
Based on my assessment of the medical information, I find, on the balance of probabilities, that the worker’s pre-existing bilateral thumb CMC joint OA was exacerbated by the worker’s job duties. I have considered the employer representative’s submission (which references the Workplace Safety and Insurance Appeal Tribunal’s Medical Discussion Paper on Osteoarthritis), that repetitive job duties would not cause OA, and this is a common condition in people over 50 years of age. As indicated above, entitlement was accepted as an exacerbation of the worker’s underlying bilateral CMC joint OA. I find that in my review of the PDA, the worker was required to perform a significant amount of bilateral gripping, requiring force as well as weight handling in their daily job duties. I accept the medical consultant’s opinion that this condition is compatible with the claim, and find that this opinion is in alignment with the assessment provided by the SPEC. There are no medical opinions or information in the claim to indicate another cause of the exacerbation of this condition. I find it significant that the SPEC assessment commented that the worker’s condition was not typical for their physical characteristics. I find the worker’s job duties were a significant contributing factor and that, but for the worker’s job duties, their previously asymptomatic underlying bilateral CMC joint OA was not likely to have become exacerbated over time in 2018-2019. Consequently, I find that the worker’s pre-existing condition was aggravated by their job duties and the criteria for policy 15-02-03 has been met.
Policy 11-01-05, Determining Permanent Impairment, states that a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.
A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
In terms of the worker’s bilateral elbow epicondylitis, I find that the SPEC report of September 8, 2020 supports that the worker has an ongoing impairment, noting that the worker was determined to have reached maximum medical recovery with permanent restrictions. The worker was noted to have ongoing pain with repetitive activity, and limited strength in their bilateral elbows, wrists and grip. It was noted that the worker was managing with their modified job (alternate press) that did not require any heavy pushing or pulling. The worker reported some difficulty with some activities of daily living, and challenges with repetitive gripping, squeezing, twisting and turning of bilateral hands and lifting repetitively. Their functional tolerances were limited to a certain extent, and they require frequent breaks. As PRP injections were not approved by WSIB, and there were no further treatment options, the worker’s condition was not expected to change significantly. Considering this information, I find the criteria for a permanent impairment for bilateral lateral epicondylitis under the policy is met.
The NEL decision in the claim is specific to the workers’ bilateral wrists and elbows. I am limited in my jurisdiction to determine initial entitlement to the bilateral thumbs, and as such, I make no findings beyond the acceptance of initial entitlement to a bilateral thumb strain/sprain injury and initial entitlement to an exacerbation of the bilateral thumb CMC joint OA diagnosis.
In light of my findings above, I will now address the NEL decision that is also an issue under this appeal. As outlined previously, the employer representative has submitted that there is no clinical basis to support entitlement to a NEL award for the bilateral wrists and elbows, noting a normal range of motion of the elbows, wrists and hands. They have referenced the SPEC report of September 8, 2020 to support their position. As I have determined that the worker does not have entitlement to an ongoing/permanent bilateral wrist impairment, I have reviewed the NEL rating in this regard.
The worker was determined to have reached MMR for their bilateral wrist and bilateral epicondylitis conditions as of September 8, 2020, per the final SPEC report of the same date. As the clinical findings from the medical documentation contemporaneous to the MMR date indicated that the worker’s range of motion was considered normal, the NEL Clinical Specialist found that the worker’s condition would more fairly be rated as a repetitive strain injury rather than based on the clinical findings per the Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
The “Adjudicative Advice Document: Permanent Impairment (NEL) Rating Guidelines for Upper and Lower Extremity Repetitive Strain Injuries (RSI)”, states:
Where the AMA Guides do not provide for an impairment and there is no close analogy, or where application of the prescribed rating schedule would result in an unfair assessment of the person’s impairment, the WSIB has established Rating Guidelines for determining the degree of the impairment in these cases…
It goes on to say, that in some cases, a person may attend a medical assessment(s)…and their range of motion may be within normal limits. According to the AMA Guides, the degree of impairment in these cases would be zero (0) percent. In non-surgical cases where the clinical findings show normal range of motion, the following rating guideline is used to ensure consistency and fair recognition of permanent impairment for RSIs for both upper and lower extremities.
The impairment detail was rated as follows:
Impairment Detail
Repetitive Strain Injury (RSI)
Impairment
Location
Description of Impairment
Reference
Left Elbow
1
Right Elbow
1
Left Elbow
Activities of Daily Living
2
Right Elbow
Activities of Daily Living
3
Left Elbow
Clinical Findings
2
Right Elbow
Clinical Findings
2
Left Elbow
1
Right Elbow
1
Left Wrist
Additional Level - Wrist - Clinical Findings
2
Right Wrist
Additional Level - Wrist - Clinical Findings
2
I have determined that the worker does not have evidence of a permanent impairment for the bilateral wrists, however does have a permanent loss of function related to the bilateral lateral epicondylitis of the elbows. It is specifically noted in the SPEC report of September 8, 2020 that the worker’s symptoms are aggravated with use/overuse, which is typical of a repetitive strain type of injury. I am in agreement with the NEL Clinical Specialist’s decision to use the Adjudicative Advice Document: Permanent Impairment (NEL) Rating Guidelines for Upper and Lower Extremity Repetitive Strain Injuries (RSI) in order to determine the worker’s NEL Quantum.
I find that the ratings for the worker’s left and right elbows, based on the description of impairment, is appropriate and aligned with the medical documentation. It is noted that this has accounted for the worker being right hand dominant. In removing the additional level of the bilateral wrists clinical findings, the worker’s right upper extremity was rated at seven (7) percent, and the left upper extremity was rated at six (6) percent impairment. The right arm impairment of seven (7) percent reduces to a four (4) percent whole person impairment (WPI), and the left arm impairment of six (6) percent reduces to a four (4) percent WPI for each arm as per Table 3 of the AMA Guide. Combining the 4 percent and 4 percent results in an eight (8) percent WPI, using the Combined Values Chart.
In conclusion, I find that the worker is entitled to an eight (8) percent NEL award to recognize their bilateral elbows/epicondylitis condition. This is reduced from the prior 10 percent NEL award, noting that I have overturned the acceptance of a permanent impairment for the bilateral wrists.
CONCLUSION
I conclude the following:
The worker has entitlement to bilateral thumb strain/sprain, and an exacerbation of underlying bilateral thumb CMC joint OA. The worker does not have entitlement to a bilateral wrist repetitive strain injury.
The worker is entitled to an eight (8) percent NEL award for their permanent bilateral lateral epicondylitis (both elbows). There is no entitlement to a permanent impairment for bilateral wrist repetitive strain injuries.
The worker has entitlement to bilateral lateral epicondylitis as resulting from their job duties.
The employer’s objection is allowed in part.
DATED September 9, 2022
Appeals Resolution Officer
Appeals Services Division