APPEALS RESOLUTION OFFICER DECISION
decision number:
20230036
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
Employer representative
REPRESENTED by:
employer representative
HEARING:
HEARING IN WRITING
HEARD by:
B. Fairburn, appeals resolution officer
PRELIMINARY ISSUE
In their letter dated June 23, 2022, the worker representative requested a reconsideration of the decision dated April 26, 2021. They requested entitlement to a non-economic loss benefit, a decision regarding entitlement to chronic pain disability and the assistance of a Return-to-Work Specialist. The only decision before me is the decision dated April 26, 2021, which outlines the issues of maximum medical recovery for the compensable left elbow impairment. The decision denying entitlement to chronic pain disability was rendered in a separate decision and this issue is not properly before me. I confirmed with the worker representative on January 11, 2023, that the issue of entitlement to chronic pain disability is not within my jurisdiction. I will proceed with issue of maximum medical recovery of the compensable left elbow injury.
ISSUE
The worker objects to the Case Manager’s decision dated April 26, 2021, determining the worker achieved maximum medical recovery of their left elbow injury as of April 22, 2021, without an ongoing impairment.
BACKGROUND
On July 19, 2019, this Warehouse Associate reported a gradual onset of left elbow pain, which they attributed to the repetitive nature of their regular duties. The worker received initial entitlement to benefits for left elbow lateral epicondylitis. They remained at work until they began losing time from work in November 2019. The worker received entitlement to full loss of earnings benefits effective November 14, 2019. It was determined the worker was unable to perform their regular duties and the employer had not offered modified duties.
The employer offered modified duties on December 6, 2019. In their decision dated January 2, 2020, the Case Manager denied ongoing entitlement to loss of earnings benefits as they determined the employer offered suitable modified duties as of December 6, 2019. The worker returned to modified work on December 11, 2019, without an ongoing loss of earnings.
The worker participated in treatment and assessments through the Specialty Programs. They followed up with the Specialty Clinic on April 22, 2021.
In their decision dated April 26, 2021, the Case Manager determined the worker achieved a full functional recovery from their left elbow injury as of April 22, 2021. They determined the worker was not limited in their ability to perform their pre-injury duties. As a result, the Case Manager determined the worker did not have any further entitlement to benefits.
The worker objected to this decision providing information to support the worker remained accommodated with functional limitations in their left elbow. They also submitted the evidence supports the worker had an ongoing work-related impairment.
In their decision dated July 12, 2022, the Case Manager upheld their decision determining maximum medial recovery without an ongoing impairment of the left elbow. They also denied entitlement to benefits for chronic pain disability.
The worker objects to the determination that they achieved full functional recovery without an ongoing impairment as of April 22, 2021. This objection is now before the Appeals Services Division.
AUTHORITY
Operational Policy Manual
Published
11-01-05 – Determining Permanent Impairment
November 3, 2014
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons set out below, I find that the worker achieved maximum medical recovery without an ongoing impairment as of April 22, 2021, for their left lateral epicondylitis.
Worker Position
In their Appeal Readiness Form dated July 19, 2022 and their submission dated July 27, 2022, the worker representative provided their position that more weight be given to Dr. Kember’s report speaking to the worker’s level of impairment. They submitted the worker has an ongoing work-related impairment and has entitlement to a non-economic loss benefit.
Employer Position
The employer representative provided a Respondent Form dated October 24, 2022, without an additional submission for review.
Operational Policy 11-01-05 – Determining Permanent Impairment provides 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.
Impairment is defined as a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss. Once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.
The WSIB considers
- A physical abnormality to be a change to or damage to a body part or organ system
- A physical loss to be a loss of some or all of a body part or organ system
- A functional abnormality to be a malfunction of a body part or organ system
- A functional loss to be a loss of some or all of the functioning of a body part or organ system
- A disfigurement to be an altered or abnormal appearance such as an alteration of color, shape, structure, or a combination of these, and
- Psychological damage to be the loss of or abnormal psychological functioning.
In discharge from their treatment program on October 5, 2020, the worker demonstrated the ability to lift 20lbs from floor to waist, 40lbs of pulley-rows and lats, and carrying 20lbs. On January 26, 2021, Dr. Taromi assessed the worker noting they continued to present with left elbow pain and tenderness in the presence of a normal range of motion and strength. They recommended the worker continue their home exercise program and recommended surgical release of the tendon. Dr. Taromi provided a cortisone injection at this assessment.
The worker followed up with Dr. Taromi, Orthopaedic Surgeon, on April 22, 2021, and they discussed the pros and cons of elbow tendon surgical release, noting the worker expected a 100% pain recovery rate. The worker continued to work full hours performing modified duties at the medium NOC level lifting up to 30lbs with a reduced quota. The worker reported repetitive movements of the left elbow, heavy lifting, pushing and pulling with the left arm, gripping with the left hand and driving for long periods aggravated their left elbow discomfort. The reported difficulties are secondary to pain. The worker had full range of motion on assessment and full strength of the left elbow with reported pain. On assessment, the worker reported generalized tenderness with no specific tenderness over the left lateral elbow, lateral epicondyles or the origin of the common extensor tendon. The worker’s left elbow ligament stress test was negative with a generalized pain response.
From a subjective standpoint, the report indicated the worker’s prognosis was guarded. Their symptoms were not correlated with objective findings. The worker’s subjective symptoms were potential barriers for return to work and further recovery. Further formal therapy was not recommended, noting minimal improvement of their subjective symptoms reported by the worker. Dr. Taromi noted that since the worker’s symptoms were generalized and not specific to the lateral epicondyle and common extensor tendons, they did not recommend surgical management in the form of a tennis elbow release. They recommended the worker return to work without any specific restrictions for their left upper extremity. They found no objective deficits to support any specific restrictions. They recommended the worker graduate to their pre-injury job duties over the next twelve weeks.
There was a shift in the worker’s assessment between January 28, 2021 and follow up on April 22, 2021. The worker demonstrated full range of motion and strength during both of these assessments. They continued to report ongoing pain. On January 28, 2021, the worker reported pain over the common extensor tendons and along the course of the extensor muscles. The worker did not report pain over the lateral epicondyle. I am unable to determine that MMR occurred on January 28, 2021 as Dr. Taromi recommended surgical intervention at this assessment and provided a cortisone injection expecting further significant improvement of the worker’s subjective symptoms.
On April 22, 2021, the worker’s subjective symptoms became generalized. As a result, Dr. Taromi did not recommend surgical intervention and was unable to identify objective deficits to explain the worker’s subjective complaints. They did not provided formal functional limitations, as there was no ongoing physical diagnosis. Given this information, noting formal therapy was no longer recommended and the worker was cleared to return to their pre-injury duties, I find the worker achieved MMR as of April 22, 2021. The claim file supports that further significant improvement was not expected.
The evidence supports the worker reported functional limitations secondary to subjective symptoms or pain. Dr. Taromi reported there were no objective findings to support the worker’s subjective symptoms. Despite these symptoms, the worker had full strength and full range of motion in their left elbow. Formal functional limitations were not provided, as there was no rational to support the worker’s inability to progress back to their pre-injury duties. I am unable to find evidence to support the worker had an ongoing functional abnormality or loss. Their strength and range of motion were normal. There is also no evidence of a physical abnormality or loss for which to attribute an ongoing impairment for the left lateral epicondylitis.
The worker representative has submitted the worker has a permanent impairment of their left elbow. They provided further clinical information. Dr. Kember, Orthopaedic Surgeon, provided a report dated June 8, 2021, after assessing the worker’s left elbow. They noted the worker experienced pain over the lateral aspect of their elbow, which had not resolved since the onset of the injury. Dr. Kember confirmed the worker had full range of motion on examination and the x-rays did not demonstrate any bony abnormality. Dr. Kember did not have the opportunity to review the ultrasound. Dr. Kember provided a diagnosis of lateral epicondylitis and recommended surgical intervention noting the worker’s ongoing pain, with a guarded prognosis.
Dr. Kember also provided a written letter dated June 13, 2022, in response to the worker representative’s request for information and specific questions. Dr. Kember stated the worker’s point of maximum tenderness on June 8, 2021 was over the origin of the extensor carpi radialis brevis, on the lateral epicondyle of the left elbow. The worker’s discomfort in their elbow was worse with resisted wrist extension when combined with elbow extension. They noted their diagnosis of left lateral epicondylitis was known as an “overuse” syndrome, caused by repetitive lifting and gripping activities. The prognosis was guarded due to the repetitive nature of the worker’s regular job duties and the chronicity of the worker’s pain.
I note that neither Dr. Taromi nor Dr. Kember provided objective findings to support an ongoing functional loss or impairment for the worker. Dr. Kember recommended the worker continue with modified duties, however this was based on the worker’s subjective symptoms. Dr. Kember did not quantify this recommendation nor explain the restrictions. The worker’s reported symptoms in the absence of objective rationale are not sufficient to support the presence of an ongoing impairment or functional abnormality or loss resulting from the compensable left lateral epicondylitis. There are no objective findings to support the worker is functionally unable to perform the pre-injury duties or that they have an ongoing functional impairment.
Therefore, I find the worker achieved maximum medical recovery as of April 22, 2021, without an ongoing impairment for their compensable left lateral epicondylitis, in accordance with Operational Policy 11-01-05 – Determining Permanent Impairment. Entitlement to benefits beyond April 22, 2021 are denied.
CONCLUSION
The worker achieved MMR without an ongoing impairment as of April 22, 2021 for their left lateral epicondylitis.
The worker’s objection is denied.
DATED January 12, 2023
B. Fairburn Appeals Resolution Officer Appeals Services Division