The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on May 23, 2000, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to benefits subsequent to February 5, 1999.

Decision

That the claimant is not entitled to benefits subsequent to February 5, 1999.

Background

The claimant submitted an application for compensation benefits with respect to carpal tunnel syndrome (CTS) and trigger finger, which she related to her occupational activities as a welder. Following review of statements from the claimant and the employer as well as medical documentation, the claim was accepted by the Workers Compensation Board (WCB) on June 16, 1998. On August 14, 1998, the claimant underwent right carpal tunnel release and release of the right third, fourth and fifth fingers.

In a letter dated November 4, 1998, the treating surgeon noted that the claimant's right hand had improved significantly with silicone gel. The claimant had full range of motion in her fingers and sensation had returned to normal. Grip strength in the right hand was 21 kg as opposed to the normal left hand of 31 kg. It was the surgeon's opinion that the claimant was fit to return to a lighter, non-repetitive job. "Under no circumstances should she return to work as a welder. I would therefore recommend retraining."

On November 16, 1998, a WCB adjudicator requested that a WCB medical advisor review the case to determine whether or not the claimant had recovered from the CTS and trigger finger conditions sufficiently enough to return to work as a welder. In response, the medical advisor was of the view that the claimant was capable of returning to work at her pre-accident duties if a job were available. The medical advisor also commented that the claimant may have some problems with her wrist in the future, but there would be no compensable restrictions.

On February 3, 1999, Claims Services determined that wage loss compensation would be paid to February 6, 1999 inclusive and final. In the opinion of Claims Services, the claimant had recovered from the effects of the compensable injury and any suggestion that she avoid certain activities was possibly made to prevent subsequent exacerbation of symptoms or further injury.

On behalf of the claimant, the treating surgeon wrote to the WCB on March 5, 1999, indicating the following:

"...It was my opinion that this patient should not return to work as a welder, since the onset of her symptoms had occurred within one month of her beginning that job. In order to perform her function as a welder, she was required to grip heavy pieces of metal, move them, and hold them while welding the pieces together.

It was and is my opinion that these activities were beyond her functional capacity, and that a return to work as a welder would likely precipitate injury to the same or the other hand. For that reason, I recommended retraining to a lighter occupation."

On March 16, 1999, a WCB medical advisor reviewed the above report. The medical advisor stated that the treating surgeon's concerns regarding return to pre-accident duties as a welder, related to the risk of re-injury.

On March 25, 1999, Claims Services wrote to the claimant advising that the March 5, 1999, report from the treating surgeon had been reviewed by the WCB's healthcare department and that there would be no change to its earlier decision. It was still Claims Services' opinion that the claimant had sufficiently recovered from the effects of the compensable CTS condition to allow her to return to her pre-accident duties as a welder.

On May 20, 1999, a worker advisor contended that there was no evidence on file to conclude that the claimant had returned to her pre-accident status and safely work in the same type of physical demanding job as she had before. The worker advisor was of the view that benefits were terminated prematurely. In the event that no change could be made to the decision to terminate benefits, the worker advisor requested that a Medical Review Panel (MRP) be convened as there was a definite difference of medical opinion noted on file.

In subsequent letters dated June 10, 1999, and June 16, 1999, Claims Services wrote to the worker advisor indicating the following:

• that it still remained of the opinion that the claimant had recovered sufficiently from the effects of the compensable carpal tunnel syndrome to allow her to return to her pre-accident duties.
• that the preventative vocational rehabilitation committee had reviewed the claim and stated that the claimant would not meet the preliminary criteria for consideration under the preventative vocational rehabilitation policy with the WCB.
• a MRP would not be convened as there was no dispute with respect to the medical findings concerning the claimant's condition. The issue at hand appeared to be whether or not the claimant would re-injure herself when she returned to her pre-accident duties. The decision to terminate the claimant's benefits was an administrative decision.

In a September 24, 1999, decision, Review Office confirmed that the claimant was not entitled to compensation benefits after February 5, 1999 and that a MRP would not be convened.

Review Office noted that prior to working with the accident employer, the claimant had taken a six-month welding course and did not have any wrist or hand problems during this time. She attributed this to the fact that she did not have to weld for full days and that the materials she was welding were lightweight. The claimant's symptoms presented within a very short time period of her starting work using heavier materials and that by all accounts, she had made an excellent recovery from the corrective surgery with the exception that her right grip strength was decreased. A functional capacities assessment was carried out on September 29, 1999. However, the results of the assessment were interpreted as being inconsistent and therefore invalid.

The treating surgeon's March 5, 1999, letter was interpreted by the Review Office as meaning that the claimant should not return to work as a production worker because she was not, and has never been, physically suited for that line of work. Review Office stated that the WCB did not provide claimants with assistance simply because they have made career choices which are later found to be ill advised.

Taking into consideration subsections 39(1) and 39(2) of the Workers Compensation Act (the Act), Review Office determined the evidence did not establish that the claimant had any restrictions to her activities as a result of the compensable injury. It followed that she did not have any further entitlement to wage loss benefits.

With respect to an MRP, Review Office concluded that there was no difference of medical opinion as was required in order to convene an MRP under subsection 67(4) of the Act.

In March 2000, the worker advisor appealed Review Office's decision and submitted two medical reports from the treating orthopaedic surgeon for consideration. A non-oral file review was then arranged.

Reasons

In November 1998 a WCB medical advisor was asked by an adjudicator to review the claimant's file and to provide an opinion as to whether the claimant had recovered from her CTS and trigger finger conditions sufficiently enough to allow her to return to work at her pre-accident duties. The medical advisor noted that apart from some decreased right hand grip strength the claimant had normal range of motion and with a further increase in strength she would be back to pre-accident status. This re-strengthening process would take approximately one month.

The adjudicator had further discussions with a second WCB medical advisor on January 28th, 1999. The medical advisor concluded, based on the information on file that the claimant would be capable of returning to pre-accident duties if such a job was available and also that there would be no compensable restrictions required at this time.

We find based on the weight of evidence that the claimant had on a balance of probabilities recovered from the effects of her compensable injury without restrictions by the time her benefits had been terminated. Accordingly, the claimant is not entitled to benefits subsequent to February 5th, 1999. We note that the claimant successfully returned to the workforce shortly after her benefits had ceased.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of June, 2000