Worker v. Employer, 2024 CanLII 34660

20240025

Worker

REPRESENTED by:

Self-Represented

Employer (not participating)

HEARD by:

DATED:

C. Reid, appeals resolution officer

MARCH 14, 2024

ISSUES

The worker objects to the case manager’s decision dated May 21, 2021, which denied entitlement to secondary conditions without listing the conditions. They further object to the decision dated July 9, 2021, which denied entitlement to the proposed surgeries.

Preliminary issues

I note in the decision dated May 21, 2021, the case manager did not confirm the specific “secondary conditions” which they denied, however, they indicated they relied on the medical consultant’s opinion on these conditions in support of the denial. I find the case manager inferred that they were denying the following conditions: carpal tunnel syndrome (CTS), De Quervain’s tenosynovitis and posttraumatic volar subluxation of the carpus.

I also note the case manager did not delineate that the diagnoses changed between the appointments from March 19, 2021, to May 19, 2021. However, they again referred to the medical consultant’s opinion which clearly noted the new diagnoses in their conclusions, and it was these conclusions that led to the denial of the surgeries in the decision dated July 9, 2021.

Based on the wording of the decision letters, I find my jurisdiction allows for the review of the new diagnoses confirmed further to the appointment of May 19, 2021, those being dynamic distal radial ulnar joint instability with early arthrosis, pancarpal arthrosis slowly developing, and relative sparing of the radiocarpal joints.

BACKGROUND

On October 14, 2003, this now 45-year-old worker was in a motor vehicle accident and sustained lacerations to the head, and left arm and severe lacerations to the left-hand tendons. The worker underwent multiple surgeries on their left hand. In October 2003, they underwent the initial repair of the complete laceration of the extensor digiti minimi (EDM), repair of the dorsal ulnar joint capsule and repair of a laceration on their left elbow. In June 2004, they required surgery to reattach the flexor retinaculum and in September 2007, surgery to debride scar tissue adhesions.

The worker achieved maximum medical recovery (MMR) on March 25, 2005, and remained with an ongoing impairment. The worker was awarded a Non-economic Loss (NEL) of 25% for their left hand following the surgical repair of the tendons and reconstruction of the extensor retinaculum with a fascia graft and the disfigurement of the left wrist.

In early 2021, the worker contacted the WSIB advising their left wrist impairment was getting worse. The worker was referred for an assessment at the Upper Extremity Specialty Program and they were diagnosed with CTS, De Quervain’s tenosynovitis and posttraumatic volar subluxation of the carpus. In a letter dated May 21, 2021, the case manager determined the worker was temporarily below their NEL level (i.e., suffered a temporary worsening) and approved treatment. However, they did not accept the above-noted diagnosis as being causally related to the compensable injury. The case manager did not extend entitlement to include these new diagnoses.

Further to a follow-up at the Specialty Program on June 9, 2021, the diagnoses were updated to dynamic distal radial ulnar joint instability with early arthrosis, pancarpal arthrosis slowly developing, relative sparing of the radiocarpal joints, and the evidence of a prior surgical wrist extensor repair. Several surgical options were recommended. The diagnoses of CTS and De Quervain’s tenosynovitis were no longer indicated. The case manager confirmed in a decision dated July 9, 2021, that the surgeries were not approved as they were to address non-compensable injuries.

The worker underwent the left wrist fusion on August 11, 2022.

AUTHORITY

Operational Policy Manual

Published

15-02-05 Recurrences

15-05-01 Resulting from Work-Related Disability/Impairment

April 9, 2021

ANALYSIS

I have carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. Entitlement does not need to be expanded to CTS or De Quervain’s tenosynovitis as these conditions were not reaffirmed once the diagnostic imaging was reviewed. The worker is entitled to the surgical left wrist fusion.

Employer Position

The employer is not participating in the appeal.

Worker Position

In their submission dated March 22, 2022, the worker noted their disagreement with the denial of the left wrist fusion. They referred to the fact that Dr. Riediger supported that their current condition was related to the original injury. The worker noted that it was obvious they would not need this surgery if they had not had a workplace accident in 2003.

With their Appeal Readiness Form dated August 8, 2023, the worker restated their prior arguments but further advised that there was no other reason that they needed the fourth left wrist surgery; they did not do anything new to their wrist. They did not fall on it or cause any excessive strain.

Assessment of the Evidence

The worker is requesting entitlement for a fourth surgery, a left wrist arthrodesis (fusion), which they believe is causally related to their index injury. The worker claimed their wrist had been getting worse for the past year and finally, they sought further medical attention in their home community in March 2021.

Policy 15-02-05 Recurrences states that a worker may be entitled to benefits for a recurrence of a work-related injury if the worker experiences a significant deterioration that does not result from a significant new injury and is clinically compatible with the original injury.

The worker complained of a worsening of their left hand/wrist and was referred to the Upper Extremity Specialty Program. They underwent a comprehensive assessment on March 19, 2021, with Dr. Riediger, Orthopaedic Surgeon. At the time of their assessment, Dr. Riediger did not have access to the diagnostic imaging that had been performed weeks earlier. They provided working diagnoses of posttraumatic volar subluxation of the carpus, De Quervain’s tenosynovitis, and CTS based on their clinical examination only.

The worker had a follow-up appointment with Dr. Riediger on May 19, 2021, who now had access to the MRI and CT scan. The testing, performed on March 8, 2021, revealed early osteoarthritis of the distal radial ulnar joint, severe cystic changes, and arthritic changes in the lunocapitate joint, and scapotrapezial joint. The clinical examination revealed a probable dynamic deformity with dorsal subluxation of the ulna. Further to the review of the diagnostic imaging, Dr. Riediger clarified their diagnoses as follows: dynamic distal radial ulnar joint instability with early arthrosis, pancarpal arthrosis slowly developing, relative sparing of the radiocarpal joints, and the evidence of a prior surgical wrist extensor repair.

Significant deterioration

Policy 15-02-05 defines significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.

Indicators of a significant deterioration may include:

the need for active (non-maintenance) clinical treatment
a change in functional abilities, or
a change in the ability to perform a job or suitable occupation.

Further to their assessment dated May 19, 2021, Dr. Riediger recommended a wrist arthrodesis and that the worker participate in physiotherapy once per week for eight weeks and use a splint before their surgery. The worker was deemed to have achieved MMR in March 2005. There is no evidence in the case record that indicates the worker has needed ongoing treatment since 2005. I note that further physiotherapy was approved as the deterioration in the wrist function was deemed to be compensable. Not only was physiotherapy and splinting needed but also another surgery was recommended to address the instability in the wrist and the post-traumatic osteoarthritic pain. I find the evidence supports the worker suffered a significant deterioration by March 2021.

New Incident

Policy 15-02-05 states that if the significant deterioration results from a significant new incident/exposure (work-related or not) a recurrence is not considered. Instead, if the significant new incident/exposure is work-related, a new claim is considered. If the significant deterioration occurs when there is no new incident/exposure or results from an insignificant new incident/exposure (work-related or not) a recurrence is considered. A significant new incident/exposure is one of some consequence or importance (e.g., falling from a ladder). An insignificant new incident/exposure is one of negligible consequence or importance (e.g., reaching for an object on a shelf).

I found no evidence in the case record that points to a “new incident” that would be the cause of the worker’s deterioration in March 2021. In their submission dated August 8, 2023, the worker denied having done anything to their wrist that would better account for their current presentation and symptoms.

Clinically compatible

Policy 15-02-05 states that in order to establish that the significant deterioration is clinically compatible with the original injury/disease, the WSIB must determine that:

the body parts and/or functions affected now are the same as, or related to, those affected by the original injury, and
there is a causal link between the significant deterioration and the original injury.

To make these determinations, the WSIB considers the nature and severity of the significant deterioration, the original injury and any relevant non-work-related conditions that are present. The WSIB may also consider whether a worker has experienced continuing symptoms since the original injury/disease. Generally, continuing symptoms are an indicator of a causal link, though they are not required to establish a causal link.

Indicators of continuing symptoms may include:

continuing clinical treatment
continuing workplace accommodations, or
evidence that continuing symptoms were reported to health care providers, supervisors, or co-workers on an ongoing basis.

If the WSIB determines that the existing evidence does not clearly demonstrate whether the significant deterioration is clinically compatible with the original injury/disease, the WSIB may seek a clinical opinion to assist in making this determination.

The worker was assessed with a 25% NEL award for their left wrist impairment. This established that there was continuity to the injury sustained in 2003. The worker’s current complaints are for their left wrist, which is the same body part as originally injured.

While Dr. Riediger initially indicated the worker was suffering from CTS and De Quervain’s tenosynovitis, they provided this opinion before having access to the diagnostic imaging. Once they had all the available information, Dr. Riediger updated their diagnoses and no longer indicated CTS and De Quervain’s tenosynovitis as applicable. As Dr. Riediger clarified the worker did not actually have CTS or De Quervain’s tenosynovitis, there is no entitlement for these conditions. Entitlement is not extended for these conditions.

In their report dated May 19, 2021, Dr. Riediger noted that with the benefit of the diagnostic testing reports, the occupational diagnoses were as follows: left wrist osteoarthritis and subluxation (also known as volar subluxation) caused by index injury. They further noted that the level of distal radial ulnar joint stability and pancarpal arthrosis was directly related to the traumatic injury sustained in 2003. They believed that the worker’s functional status over the last 15 years has further exacerbated and accelerated the development of this diagnosis. They recommended an arthrodesis with pinning in the distal radial ulnar joint effectively fussing the mass of carpal bones. Dr. Riediger noted the left wrist arthrodesis would target the osteoarthritic pain which has resulted from the previous injury and surgeries.

Three medical opinions were requested from the medical consultant Dr. Dessouki, Orthopaedic Surgeon. In the memos dated May 17, 2021, June 9, 2021, and September 27, 2021, Dr. Dessouki maintained that the original injuries were sustained on the dorsum ulnar side of the wrist and affected the tendons of the middle to pinkie fingers. In 2021, the worker’s complaints were on the radial side. Dr. Dessouki found the worker’s current complaints/areas of pain were not consistent with their complaints/areas of pain initially. Dr. Dessouki also believed if there had been volar subluxation, this would have been confirmed earlier in the claim, noting the worker underwent three surgeries and numerous diagnostic tests. Dr. Dessouki did not believe these possible secondary conditions would have been causally related to the index injury.

I note that Dr. Riediger provided a diagnosis of dynamic distal radial ulnar joint instability with early arthrosis and that Dr. Dessouki referred to “volar subluxation”. Medical research confirmed that a volar subluxation can occur when there is distal radial ulnar joint instability. It appears that both doctors were speaking of the same conditions using different terms.

The operative report dated June 21, 2004, confirmed that the worker underwent a reconstruction of the left extensor tensor retinaculum, which is the large tendon that runs across the wrist from left to right. While Dr. Riediger found the worker’s presentation in 2021 was related to the prior trauma, surgeries, and ongoing use of the left hand, they did not specifically outline which trauma/laceration or surgical procedure might account for the instability that necessitated the wrist fusion. Dr. Dessouki stated that it might be possible that some biomechanical changes occurred in the wrist that could account for the worker’s current symptoms, but they felt this would be unusual. Dr. Dessouki also felt that if the volar subluxation was compensable, it would have been discovered years before, noting all the prior surgeries and diagnostic testing.

Both Dr. Riediger and Dr. Dessouki are orthopaedic surgeons. There is nothing in the case record that leads me to believe that either of these doctors has additional credentials that would make their opinion more important. If either has more accreditation or specialization over the other, it is not indicated in the documents contained in the case record. I note that Dr. Dessouki provided three separate medical opinions and never called Dr. Riediger to discuss this case, despite providing a contrary opinion. In determining the weight to afford each of these specialists’ opinions, the only thing I can rely on is the fact that Dr. Riediger had the benefit of reviewing not only the paper documents but also the diagnostic imaging and was able to perform the clinical exam. For this reason, I afford more weight to Dr. Riediger’s opinion on causation.

Keeping in mind my weighing of the medical evidence and that the standard of proof in the WSIB compensation system is one of “balance of probability”, I find on the balance of probabilities, the worker’s left-hand symptoms in 2021 were clinically compatible with the original injury. The worker denied having done anything to cause further damage to their left hand/wrist. I found no evidence that contradicted this assertion.

As all conditions for a recurrence, as set out in policy 15-02-05, have been met, I find the worker suffered a recurrence of their work-related injury in March 2021. I further find the diagnoses of dynamic distal radial ulnar joint instability with early arthrosis, pancarpal arthrosis slowly developing, and relative sparing of the radiocarpal joints are compensable noting that on a balance of probabilities, they developed secondary to the index injury and compensable surgeries.

Policy 15-05-01 Resulting from Work-Related Disability/Impairment states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. As such, I find entitlement should be extended to these diagnoses.

Benefits flowing

Dr. Riediger advised the worker had a choice of procedures to address the distal radial ulnar joint instability, either a pinning of the joint or ligamentous reconstruction or total wrist arthrodesis. A second surgery may be needed if the instability persists. In all three opinion memos, Dr. Dessouki confirmed that all these surgeries would address the updated diagnoses. Noting that I have accepted that the new diagnoses are compensable and that the surgery is needed to address the new diagnoses, I find the surgery completed in August 2022 was compatible with the compensable injury.

I find the worker is entitled to full LOE benefits for any lost wages related to the surgery, if applicable. The duration of entitlement to LOE benefits shall be determined by the operating area subject to the usual rights of appeals.

The worker is also entitled to all travel expenses paid out of pocket related to the surgery and subsequent follow-up appointments. I remit back to the operating area to gather the necessary documentation to pay these expenses as appropriate and in keeping with the current legislation, subject to the usual rights of appeal.

Finally, the worker would be entitled to a review for a NEL redetermination noting the wrist fusion procedure once a plateau in their recovery has been achieved and a permanent worsening date is achieved.

CONCLUSION

The worker’s objection is allowed.

DATED March 14, 2024.

C. Reid

Appeals Resolution Officer

Appeals Services Division