Worker v. Employer, 2024 CanLII 77388

20240052

REPRESENTED by:

HEARD by:

DATED:

JUNE 17, 2024

ISSUES

The worker, through their representative, is objecting to the Case Manager’s decision letter dated November 16, 2023 with respect to the following:

The denial of ongoing entitlement to the hands and bilateral upper extremities, including entitlement to the diagnosis of inflammatory arthritis;
The determination that maximum medical recovery (MMR) was reached on January 13, 2023 with no permanent impairment; and,
The denial of entitlement to loss of earnings (LOE) benefits from March 1, 2023 ongoing.

BACKGROUND

On October 21, 2022, the worker was in the course of employment picking up and moving sheets of wet heavy plywood on a cold and rainy day when they began to experience hand pain. The worker noticed that their hands were very sore once they were home. The worker returned to work the following day performing repairs with sod and soil when they noticed symptoms upon lifting the sod out of the truck.

Left carpal tunnel syndrome (CTS) was diagnosed by a physician on October 24, 2022. The worker returned to modified duties in the office on October 25, 2022. A Workplace Safety and Insurance Board (WSIB) decision letter dated October 27, 2022 confirmed the allowance of initial entitlement to health care benefits for the left wrist.

A seasonal layoff occurred on December 16, 2022 and the worker began to receive Employment Insurance (EI) benefits. In March 2023, the employer contacted the worker for recall. The worker informed the employer that they were unable to return to work due to bilateral hand pain. The worker’s EI benefits ended on July 3, 2023. A Case Manager’s decision letter dated October 10, 2023 confirmed the work-related diagnosis of bilateral upper extremity stiffness involving primarily the hands and wrists, as

well as the elbows and shoulders. The Case Manager’s decision letter of November 16, 2023 determined that the work-related bilateral upper extremity strain/sprain soft tissue injuries fully resolved by

January 13, 2023. The Case Manager denied entitlement to undifferentiated inflammatory arthritis. Entitlement to LOE benefits from March 1, 2023 onward was denied based on the Case Manager’s determination that the worker’s ongoing issues were related to the non-work-related arthritis.

The Appeal Readiness Form signed March 5, 2024 requested that the worker’s objection to the decision of November 16, 2023 be addressed as a hearing in writing. The Case Manager’s reconsideration letter of March 28, 2024 upheld the decision that MMR was reached with no permanent impairment and that there was no entitlement to the diagnosis of seronegative rheumatoid arthritis. The issues are now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

11-01-05 Determining Permanent Impairment

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

November 3, 2008

November 3, 2014

September 1, 2021

ANALYSIS

I find that the work-related injury reached MMR with full recovery as of January 13, 2023. Additionally, I find that entitlement to either inflammatory arthritis or LOE benefits from March 1, 2023 ongoing is not in order. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position and remedy sought

The worker representative is seeking ongoing entitlement, including LOE benefits from March 2023.

It is the worker representative’s position that there is a loss of earnings from March 2023 as the worker was unable to be recalled due to the ongoing injury. The Appeal Readiness Form of March 5, 2024 encloses the rheumatologist’s report of February 21, 2024 confirming that the worker’s condition is permanent.

If the worker’s appeal is successful, the worker representative is requesting ongoing entitlement for the hands and bilateral upper extremities, including entitlement to LOE benefits from March 1, 2023 ongoing.

What is the ongoing diagnosis and is it work-related?

I find that the ongoing diagnosis is seronegative rheumatoid arthritis and that it is not the result of the workplace injury.

Policy 11-01-01, Adjudicative Process, requires compatibility of diagnosis to disablement history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the worker’s job duties.

I am aware that the physician’s report of October 24, 2022 provides the diagnosis of CTS and states that there were no known pre-existing conditions. Left wrist CTS and tenosynovitis are documented within clinical chart notes dated November 28, 2022 and December 14, 2022. The neurologist’s report of February 27, 2023 confirms that the EMG is normal, although there are moderate median neuropathies at the wrist consistent with bilateral moderate CTS. On April 7, 2023, the worker confirms in writing that they have not been able to make a fist since November 2022 and that the right wrist issue developed approximately one month after the left wrist injury. A clinical chart note dated April 19, 2023 suggests the diagnosis of stenosing tenosynovitis.

All that being said, I afford significant weight to the plastic surgeon’s narrative report of June 12, 2023 which indicates that the worker presents with a very unusual history and that it is unlikely to be simple tenosynovitis. The specialist outlines that it is highly unusual for a single episode to initiate progressive inflammation involving both hands, and now both elbows as well as the shoulders. Importantly, the plastic surgeon states that it is unlikely that something like this could be expected for the hands given the one single episode described by the worker. Instead, the report suggests that perhaps something more systemic in nature is underlying the symptoms. A referral to a rheumatologist is made by the family doctor on June 21, 2023.

The Upper Extremity Specialty Program’s comprehensive assessment of August 18, 2023 provides a diagnosis of bilateral upper extremity stiffness involving primarily the hands and wrist, and also the elbows and shoulders. The rheumatologist’s assessment of August 29, 2023 indicates that there is a new onset of undifferentiated inflammatory arthritis. The rheumatologist indicates that psoriatic arthritis is more likely than rheumatoid arthritis, although the diagnosis will be clarified once blood work and an MRI are completed. The subsequent MRI report dated October 20, 2023 identifies synovitis at the metacarpophalangeal (MCP) joints and flexor tenosynovitis. A follow-up report from the rheumatologist dated October 25, 2023 provides the confirmed diagnosis of seronegative rheumatoid arthritis. The worker’s written progress report of the same date indicates the treatment plan has only been established as of that date and that they are unable to drive.

I place the most weight on the clinical expertise of the rheumatologist as their clinical opinion is based on having the opportunity to review the blood work and the MRI results. I observe that the rheumatologist’s narrative report of February 21, 2024 once more confirms the diagnosis of seronegative rheumatoid arthritis that is ongoing and permanent. The report provides the clinical opinion that this diagnosis cannot be concluded to be related or compatible with the mechanism of injury on October 21, 2022 as there is no know cause of autoimmune disease.

I appreciate that the report of February 21, 2024 indicates that anecdotally there have been cases of onset after trauma due to local inflammation/immune system activity in an injured area. However, as discussed above, the mechanism of injury in this case involves the worker picking up and moving sheets of wet, heavy plywood on a cold and rainy day. In my view, there is insufficient evidence of any direct trauma to the worker’s upper extremities that would be compatible with the development or triggering of such an inflammatory or immune system process. Therefore, it is my opinion that the necessary policy criterion of clinical compatibility is not established between the disablement history of October 21, 2022 and the confirmed diagnosis of seronegative rheumatoid arthritis. As a result, I find that there can be no entitlement to the ongoing diagnosis as it is not work-related.

Did the work-related injury fully resolve by January 13, 2023?

It is my view that the work-related injury resolved with no ongoing impairment as of January 13, 2023.

Policy 11-01-05, Determining Permanent Impairment, defines the term maximum medical recovery (MMR) as a plateau in recovery at which point further significant improvement in the work-related injury is unlikely. Policy outlines that in order to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. Policy 11-01-05 directs decision-makers to review the clinical evidence in order to determine MMR and if there is any ongoing work-related impairment. A recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time that MMR is reached.

As discussed above, I find that the ongoing diagnosis relates to non-work-related arthritis. The Case Manager suggests that in typical cases, a full recovery for strain/sprain or soft tissue injury would be expected within eight to 12 weeks. I note that 12 weeks from the date of injury on October 21, 2022 is January 13, 2023. When reviewing the evidence dating after January 13, 2023, it is my view that there are insufficient objective clinical findings of ongoing work-related strain/sprains involving any part of the bilateral upper extremities. Therefore, in keeping with Policy 11-01-05, find that there is no clinical evidence of an ongoing work-related injury. Accordingly, I accept that MMR of the work-related injury was reached on January 13, 2023 with no permanent impairment.

Entitlement to loss of earnings benefits from March 1, 2023

I am not persuaded that entitlement to LOE benefits is in order from March 1, 2023 onward.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the wage loss to be as a result of the work-related injury. Full LOE benefits may be in order if the work-related injury prevents a return to any type of work or if suitable work is not available. Policy 18-03-02 provides the authority for decision-makers to consider entitlement to partial LOE benefits in cases where the worker is able to return to some form of work but is unable to restore all of the pre-injury average earnings in suitable and available employment.

For the reasons previously discussed, I find that the wage loss relating to the worker being unable to return to work upon recall in March 2023 is not the result of the work-related injury as the work-related injury fully resolved by January 13, 2023. For this reason, I find that the necessary criterion required under Policy 18-03-02 is not established. Consequently, it is my view that there is no basis for entitlement to LOE benefits from March 1, 2023 ongoing.

CONCLUSION

I conclude the following:

There is no ongoing entitlement to the hands and bilateral upper extremities.

Entitlement to the diagnosis of inflammatory arthritis, including seronegative and/or rheumatoid arthritis, is denied.

Maximum medical recovery (MMR) for the work-related bilateral upper extremity strain/sprain soft tissue injuries was reached on January 13, 2023 with no permanent impairment.
Entitlement to loss of earnings (LOE) benefits from March 1, 2023 ongoing is not in order.

The worker’s objection is denied.

DATED June 17, 2024

K. MacMillan

Appeals Resolution Officer Appeals Services Division