APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240006
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer
REPRESENTED by: self (not participating)
HEARING: HEARING IN WRITING – january 26, 2024
HEARD by: C. DA cUNHA, APPEALS RESOLUTION OFFICER
ISSUE
The worker objects to the March 9, 2022 and August 10, 2023 decisions of the Case Managers (CM). These decisions:
Determined that the diagnoses of left elbow lateral epicondylitis and left elbow common extensor partial tear were not compatible with the work-related November 22, 2021 left elbow strain, denying entitlement to the same; and,
Found that the worker reached maximum medical recovery (MMR) for the work-related left elbow strain on March 9, 2022, with no permanent impairment (PI) evident.
The worker seeks:
- Recognition that he sustained a left-elbow PI because of the November 22, 2021 workplace accident, with consequent ongoing entitlement to the same.
BACKGROUND
On November 22, 2021, the worker felt an onset of left elbow pain as a result of overcompensating for a pre-existing right shoulder injury with his left arm, while repetitively pushing walnut boards through a planer. He had worked with the employer as a Cabinet Maker for over seven years at the time.
The WSIB granted initial entitlement to a left elbow sprain/strain injury and monitored the worker’s recovery. The worker stopped working on November 30, 2021, and received full loss of earnings (LOE) benefits from that date.
On November 25, 2021, the worker’s family physician, Dr. C. Chang, assessed the worker and suspected that he had developed left tennis elbow (i.e. lateral epicondylitis). On December 9, 2021, Dr. Chang diagnosed the worker with left elbow tendinitis.
The worker underwent a left elbow X-ray and ultrasound on December 13, 2021. The results of both objective investigations were unremarkable.
On March 7, 2022, November 19, 2022, January 16, 2023, and March 7, 2023, Dr. Chang assessed the worker and reiterated the diagnoses of left elbow lateral epicondylitis/tendonitis.
The worker underwent left elbow ultrasounds again on December 17, 2022 and March 13, 2023. The results confirmed a small, stable partial tear of the extensor tendon.
The CMs’ Decisions
On March 9, 2022, the CM reviewed and considered the medical documentation on record. Upon doing so, the CM denied entitlement to the diagnosis of left elbow lateral epicondylitis. The CM found that, because continuity for the diagnosis from the date of injury (DOI) was not established, the diagnosis was not compatible with the accident history.
Furthermore, as the medical documentation did not support an ongoing impairment with respect to the work-related left elbow strain, the CM found that the worker had reached MMR for the strain, with no PI evident. Consequently, the CM terminated the worker’s LOE benefits effective March 10, 2022.
The worker representative objected to this decision. He subsequently submitted the December 17, 2022 and March 13, 2023 ultrasound reports, which confirmed the presence of a partial tear in the left elbow, in support of a request for a reconsideration of the decision.
On April 26, 2023, after receiving the worker representative’s request and submission, another CM secured the opinion of Dr. J.P. Champagne, WSIB Medical Consultant. The CM reviewed and considered Dr. Champagne’s opinion. However, he did not share, agree with, or accept it.
On August 10, 2023, the CM denied entitlement to the partial tear in the common extensor tendon of the left elbow, on the basis that the December 13, 2021 ultrasound, one month after the DOI, provided normal findings for the left elbow. Therefore, it was difficult to link the December 17, 2022 and March 13, 2023 ultrasound findings, about one year from the DOI, to the November 22, 2021 workplace accident. On this basis, the CM upheld the March 9, 2022 decision that the worker had reached MMR for the work-related left elbow strain on March 9, 2022, with no PI evident.
The Worker’s Position
The worker representative argues that the mechanism of the November 22, 2021 work-related accident, which involved the worker handling heavy walnut boards using only his left arm because of a prior right shoulder injury, causally precipitated the common extensor tendon tear noted on the ultrasound investigations. Therefore, entitlement to the same, recognition that he has sustained a left elbow PI, and ongoing entitlement are in order.
The Employer’s Position
The employer is not participating in the worker’s appeal.
AUTHORITY
Operational Policy Manual
Published
11-01-01: Adjudicative Process
11-01-05: Determining PI
15-05-01: Resulting from Work-Related Disability/Impairment
18-05-03: Determining the Degree of PI
November 3, 2008
November 3, 2014
April 9, 2021
November 3, 2014
ANALYSIS
I have carefully considered all of the available information and relevant operational policies in reaching this decision. Having done so, I find that:
Initial entitlement to left elbow lateral epicondylitis is in order;
Secondary entitlement to a partial tear of the extensor tendon in the left elbow is in order; and,
As of April 26, 2023, the worker had not reached MMR for his work-related left elbow injuries.
In the absence of any medical evidence from March 2023, the issue of a left elbow PI is left to the discretion of the Operating Area.
Initial Entitlement to Left Elbow Lateral Epicondylitis
According to operational policy 11-01-01, Adjudicative Process, WSIB decision-makers use the “five point check system” when ruling on entitlement to benefits. An allowable claim must have the following five points:
An employer;
A worker;
A personal work-related injury;
Proof of accident; and,
Compatibility of diagnosis to accident or disablement history.
The test for determining causation in WSIB claims is that of a significant or material contribution. A significant or material contributing factor is one of considerable effect or importance. It need not be the sole contributing factor.
The standard of proof applied is the “balance of probabilities”. A speculative possibility does not meet this standard, which requires a fact or a causal link to be “more probable than not”.
There is no dispute regarding the worker and employer relationship, that proof of accident is established, and that the worker suffered a personal work-related left elbow sprain/strain injury at work on November 22, 2021. The matter to be resolved is whether the accident, more likely than not, also caused the left elbow lateral epicondylitis diagnosed by Dr. Chang November 25, 2021.
Noting that:
a) Dr. Chang was the first medical professional to assess the worker on November 25, 2021, only three days after the DOI;
b) Dr. Chang diagnosed the worker with suspected left elbow lateral epicondylitis on that date;
c) Dr. Champagne confirmed that the diagnosis is compatible with the repetitive overcompensation of the left upper extremity on the DOI; and,
d) There is no contrary expert medical opinion of greater evidentiary weight on record;
I find that initial entitlement to left elbow lateral epicondylitis is in order
Secondary Entitlement to a Partial Tear in the Common Extensor Tendon of the Left Elbow
Operational policy, 15-05-01, Resulting from Work-Related Disability, prescribes that entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The development of a left knee disability or impairment due to an increased dependency following a work-related injury to the right knee is an example of such a secondary condition.
On April 26, 2023, Dr. Champagne reviewed all the documentation on record and provided the following expert medical opinion, in part:
The mechanism of injury that was reported to have occurred on November 22, 2021 in which the worker was feeding planks of wood through a planar and over compensating for impairments in his right shoulder due to his prior injury is likely to have placed additional strain of the left upper extremity including the elbow and surrounding musculature. This is consistent with the worker's initial presentation and diagnosis of left elbow strain sprain type injury including tenderness over the lateral aspect of the elbow as well as weakness of the left forearm. It is acknowledged that within a month of the initial date of injury the worker underwent an ultrasound study of various body regions including the left elbow which specifically noted the common extensor tendon and triceps as unremarkable. Therefore, it is difficult to conclude that the findings identified one year later on subsequent ultrasound of the left elbow, namely a small tear of the common extensor tendon and the triceps are causally related to the mechanism that occurred over that single day of working on November 22, 2021. [emphasis added] These findings with respect to the common extensor tendon were also confirmed on a third ultrasound in March 2023. It is relevant to note that there is no evidence of the worker experiencing any left elbow pain/dysfunction prior to the date of this claim. As previously stated, the mechanism that occurred on November 21, 2022 likely subjected the elbow to increased repetitive strain resulting in an acute soft tissue injury to the left elbow which could have been an instigating factor which precipitated the clinical manifestation of lateral epicondylitis in the left elbow, and this condition has subsequently progressed over time to the point of the findings that were apparently on ultrasound study approximately one year later (i.e., tearing of the common extensor tendon). It is also relevant to note that the worker continues to have ongoing right shoulder impairment which likely led to further overcompensation of the left upper extremity which may have further perpetuated this condition. [emphasis added]
It is relevant to note that the findings with respect to the triceps tendon do not appear to correspond to the worker's symptoms (i.e., pain over the lateral aspect of the elbow) and were likely an incidental finding, and moreover, this finding was not described on the worker's third left elbow ultrasound in March 2023, and therefore are unlikely relevant to the clinical presentation and claim.
As previously stated, the worker was not symptomatic at the left elbow prior to the date of injury for this claim. [emphasis added] He subsequently had an acute onset of symptoms in the left lateral elbow that progressively worsening and did not respond to conservative treatment measures (i.e., musculoskeletal program of care, cortisone injection). Although he does have ongoing impairment at the right shoulder, there appears to be distinct ongoing left elbow symptoms which appear to be a source of ongoing impairment for this worker. [emphasis added] Chart notes from the worker's Family Physician from January 2023 indicate the worker continues to experience ongoing left elbow pain with mild reduced left elbow ranges of motion. As detailed above, it is likely that the workplace injury in question was a significant factor that has contributed to the diagnosis of lateral epicondylitis. On this basis, in the absence of any other injury or inciting event to account for the onset and persistence of left elbow complaints, on the balance of probabilities, it is this Physician's opinion that the clinical evidence would support an ongoing work-related impairment. [emphasis added}
In short, Dr. Champagne acknowledges that it is “difficult” to connect the December 17, 2022 and March 13, 2023 ultrasound findings of a partial tear in the left elbow to the mechanism that occurred during a single workday on November 22, 2021. Nonetheless, he went on to opine that, on a balance of probabilities, the left lateral epicondylitis was caused by the November 22, 2021 workplace accident, and that the left lateral epicondylitis subsequently progressed over time to the development of the partial tear in the left common extensor tendon. Noting his area of expertise, I place a significant amount of evidentiary weight on Dr. Champagne’s opinion, which the WSIB requested. There is no contrary expert medical opinion of greater evidentiary weight on record. Therefore, I find that secondary entitlement to the partial tear in the left common extensor tendon is in order.
Finally, operational policy 11-01-05, Determining PI, states that a person reaches MMR when a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury. Furthermore, it defines “significant improvement” as a marked degree of improvement in the work-related injury that is demonstrated by a measurable change in clinical findings. A PI is an impairment that continues to exist after the date of MMR.
In addition, operational policy 18-05-03, Determining the Degree of PI, confirms that a worker who has a work-related PI is entitled to a NEL award determination.
The last medical document in the case record is from March 2023. Furthermore, as noted above, on April 26, 2023, Dr. Champagne opined that the medical evidence on record up to that date supported that the worker had an ongoing work-related impairment.
These facts and circumstances lead me to find that, as of April 26, 2023, the worker had not yet reached MMR. However, noting the absence of any medical evidence over the past year, I am not able to determine whether he has sustained a PI. Therefore, I leave this issue to the discretion of the Operating Area.
CONCLUSION
I find that:
Initial entitlement to left elbow lateral epicondylitis is in order;
Secondary entitlement to a partial tear of the extensor tendon in the left elbow is in order; and,
As of April 26, 2023, the worker had not reached maximum medical recovery for his work-related left elbow injuries.
In the absence of any medical evidence from March 2023, the issue of a left elbow permanent impairment is left to the discretion of the Operating Area.
The worker’s objection is, therefore, allowed in part.
DATED January 26, 2024.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division