Public Decisions | The Appeal Commission

Decision #102/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 2, 2000, at the request of the claimant. The Panel discussed this appeal on October 2, 2000.

Issue

Injury Date: October 26, 1998

Whether or not the claim is acceptable.

Injury Dates: November 22, 1997; July 29, 1996; January 1, 1995; September 30, 1994:

Whether or not the claimant is entitled to further benefits and services in relation to her previous compensable injuries.

Decision

Injury Date: October 26, 1998

That the claim is not acceptable as we find the claimant's carpal tunnel syndrome difficulties to be a recurrence of her 1995 compensable injury.

Injury Dates: November 22, 1997; July 29, 1996; January 1, 1995; September 30, 1994:

That the claimant is not entitled to further benefits and services in relation to her foregoing compensable injuries with the exception of her January 1, 1995 claim.

Background

On October 27, 1998, the claimant filed an application for compensation benefits indicating the following:

"Felt sharp pain in lower back after lifting pumpkin (large) out of customers cart onto scale. Later on in evening my right knee started to ache as I was favoring my back pain. My carpal tunnel syndrome in wrists has been reoccurring and bothering me again. I requested to leave earlier throughout my shift, but request denied."

The date of injury was reported as October 26, 1998 and was notified to the employer on the same date.

An Employer's Report of Injury or Occupational Disease dated October 27, 1998, indicated that the claimant had never made mention of these two injuries.

Medical information showed that the claimant had attended a physician for treatment on October 27, 1998. The physician noted that the claimant had wrist problems dating back to 1996 and that the previous diagnosis was carpal tunnel syndrome. The physician remarked that the claimant's symptoms had been worsening of recent date and that her neck and back problems appeared chronic but there had been no specific new injury. Problems with the right knee were also reported. The final diagnosis was carpal tunnel syndrome and chronic pain.

On November 12, 1998, a WCB adjudicator documented that the claimant had gone to her physician's office to get time off work for her knee. The physician advised the claimant that her knee problems were not related to a compensable claim and that he would not authorize the claimant's absence. The claimant also requested physiotherapy but did not state for what.

In a December 1998 statement, the claimant indicated that her neck, back, right knee and wrist difficulties were related to the 19 years she had been employed with the accident employer. The claimant indicated that on October 26, 1998, there was no new accident or specific incident. All her problems gradually worsened over the course of her shift while performing her regular duties. The claimant related the right knee difficulties to her having to stand during her shift since she could not recall any specific incident to account for the knee problems. In a subsequent statement, the claimant stated that there was a specific accident on October 26, 1998, which caused her back and neck difficulties.

On December 16, 1998, Claims Services determined that the claim was not acceptable. It had not been established that there was a direct relationship between the development of the claimant's difficulties and an accident arising out of and in the course of her employment. On February 18, 1999, a union representative appealed this decision and the case was referred to Review Office for consideration.

In a May 14, 1999 decision, Review Office determined the following:

That it had not been established that the claimant had sustained personal injury by an accident arising out of and in the course of her employment on October 26, 1998;
That the claim was not acceptable; and
That the claimant was not entitled to the payment of any benefits.

Review Office noted the claimant had acknowledged that she did not at any time sustain any personal injury arising out of and in the course of her employment on or about October 26, 1998 (according to her sworn declaration). She related her carpal tunnel syndrome to a January 1995 WCB claim. Review Office indicated that it would not discuss this claim further and that any comments concerning CTS would be dealt with by a benefits adjudicator.

With respect to the right knee difficulties, Review Office could not establish that the claimant sustained any accident on October 26, 1998 which may have caused a knee problem.

As to the claimant's neck and back, Review Office concluded that the claimant's treatment by her chiropractor prior to October 26, 1998 was unrelated to an accident which may have occurred on our about October 26, 1998.

With respect to the second issue being appealed, the claimant has several claims with the WCB dating back to 1994 while employed with the same employer. The following is a brief summary of each of these claims:

On September 30, 1994, the claimant was lifting a bag of flour and sugar and felt soreness in her right upper arm. The diagnosis was tendonitis of the right shoulder. On October 12, 1994, x-rays of the right shoulder showed no bone or joint abnormality. Nerve conduction studies performed on November 16, 1994, showed no evidence of carpal tunnel syndrome or more proximal abnormalities. The claimant was treated by physiotherapy and was seen by a sports medicine specialist whose diagnosis was an acute rotator cuff strain. Degenerative disc space narrowing was noted at the C7-T1 level.

The claimant was examined by a WCB medical advisor on March 2, 1995. It was noted that most of the claimant's pain was in her right wrist and that she had no limitation of movement in any of her other joints. The shoulder had a small area of tenderness to palpation and little tenderness along the upper part of the biceps tendon. The medical advisor indicated that the claimant could return to 4 hour shifts and to stay away from heavy lifting so that she does not suffer a recurrence.

On January 9, 1996, a neurologist reported that the claimant's clinical picture was suggestive of a carpal tunnel syndrome and likely an associated tenosynovitis or repetitive strain injury. Nerve conduction studies were performed on April 8, 1996, which confirmed a mild bilateral carpal tunnel syndrome (worse on the left). On May 14, 1996, an adjudicator advised the claimant that the WCB was unable to pursue her claim for carpal tunnel syndrome as a continuation or recurrence of her 1994 claim and that a new claim would be established.

Based on the above commentary, a new claim for carpal tunnel syndrome was established. In an adjudicative decision dated August 14, 1996, the claimant was advised that her claim for carpal tunnel syndrome had been accepted and that wage loss benefits would be paid from July 5 to 29, 1996, inclusive.

On July 29, 1996, the claimant filed another claim indicating that she injured her left shoulder, neck and lower back when lifting a bag of flour and dog food into a customer's grocery cart. On August 2, 1996, the claimant was diagnosed with a mild strain of the left shoulder. On September 13, 1996, the attending physician noted that the claimant was limited by severe neck pain together with limited mobility of her spine. The left shoulder was injected but the specialist indicated that it was too soon to determine what effects this would have. On the basis of pain and reduced mobility, the claimant did not seem fit for even light duty work at present. The specialist indicated that stress and tension played a significant role in her symptoms.

The claimant was later assessed by a chiropractor on September 17, 1996. The chiropractor diagnosed the claimant's condition as an acute cervical and lumbo-pelvic subluxation strain/sprain with myalgic effusion.

The claimant was examined by a WCB medical advisor on December 10, 1996. Following his assessment, the medical advisor concluded that the compensable injury appeared to have resulted in a left shoulder and neck strain. As the claimant was already in a graduated return to work program, the medical advisor suggested that the claimant increase her program by one shift per week and to work three to four hour shifts.

In a subsequent memorandum dated January 13, 1997, a WCB chiropractic consultant indicated that he had spoken with the treating chiropractor and they both agreed that the claimant was fit to return to full duties with unrestricted hours. In a January 29, 1997 progress report, the attending chiropractor stated that the claimant was capable of working full time as of February 3, 1997 and that she should perform lighter duties which did not involve work as a cashier.

On January 27, 1997, the claimant was advised by Claims Services that based on the opinions of a WCB medical advisor, and her treating physician, she was now considered fit to return to work on full duties. The claimant's benefits were paid to February 3, 1997 inclusive and final.

The claimant filed another claim with the WCB on November 22, 1997, indicating that she injured her back, neck and right shoulder as a result of lifting water jugs at work. On November 24, 1997, the diagnosis rendered by the attending physician was a cervical strain. He noted that the claimant had full range of motion in both shoulders.

On November 25, 1997, a chiropractor diagnosed an acute dorsal costo cartilage and sacroiliac joint subluxation strain/sprain with myalgic effusion. The claimant was considered capable of returning to light duties effective December 1, 1997. In February 1998, the claimant was discharged from chiropractic treatment.

In a progress report dated March 23, 1998, the treating chiropractor indicated that the claimant still had some subluxations but these could not be linked directly to the November 1997 accident.

On October 28, 1999, a WCB adjudicator advised the claimant that the WCB would recognize her ongoing complaints with respect to her CTS as being related to the difficulties she experienced in 1996. The WCB would therefore assume financial responsibility for the treatments she received as a result of this condition. However, as it was felt that the claimant was capable of performing modified duties, no responsibility would be accepted for any time loss from work related to the CTS.

In a January 14, 2000 decision, Review Office indicated that the claimant was not entitled to payment of wage loss benefits from October 26, 1998. Review Office concurred with the various decisions made on the claimant's many claims. Review Office noted that an appeal had been submitted under the carpal tunnel syndrome claim (1995 claim). It was of the opinion that the worker would be capable of continuing with her express lane checkout duties regardless of her CTS condition. Review Office noted that the claimant had originally stopped work on October 26, 1998 claiming a new and separate injury. However, this was not substantiated and the claimant now claimed the exact period of time loss under the carpal tunnel claim. Review Office did not feel that the claimant was entitled to wage loss benefits with respect to the time that the claimant claimed to have missed from work because of her carpal tunnel difficulties. These difficulties, in the opinion of Review Office, were not severe enough to warrant complete absence from the work place since October 1998.

On June 7, 2000, the union representative appealed Review Office's decisions of May 1998 and January 2000 and requested an oral hearing.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

We concur with the opinion of the WCB's medical advisor that there is no ongoing cause and effect relationship between the claimant's current symptoms including her wrist difficulties and the 1997 claim for her neck and shoulders, the 1996 claim for her left shoulder, the 1994 claim for right upper arm. Any and all difficulties arising from these claims have long since resolved. However, we find the claimant's wrist complaints to be a recurrence of her 1995 compensable carpal tunnel syndrome injury.

The claimant described her injury on the worker's report of injury form as "my carpal tunnel syndrome in wrists has been reoccuring (sic) & bothering me again." The treating physician's first report advanced a diagnosis of carpal tunnel syndrome chronic pain. By way of treatment, he recommended that repeat nerve conduction studies be arranged and that the claimant take time off work if non-repetitive modified duties were unavailable.

Nerve conduction studies administered on January 6th, 1999 resulted in the treating neurologist's reaching the following conclusion:

"The clinical and electrophysiologic picture are most consistent with a carpal tunnel syndrome, which has progressed on the basis of nerve conduction testing from 1996. I suspect on the basis of her occupation and her symptoms that it is work related. She may well benefit from physiotherapy. Surgical decompression may well be necessary at some point if all other conservative measures fail."

We note that the WCB has continued to cover the claimant's medical aid costs for her carpal tunnel syndrome. As well, it should be noted that there has been no further claim made for benefits and services with respect to the carpal tunnel syndrome subsequent to the initial compensable injury and prior to the 1998 recurrence. It is now up to the WCB to determine the loss of earning capacity period.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of October, 2000

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