Decision #11/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 12, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 12, 2000 and December 19, 2000.
Issue
Whether or not the claimant is entitled to wage loss benefits beyond March 22, 2000; and
Whether or not responsibility should be accepted for the claimant's ongoing right ulnar nerve problem and any associated treatment.
Decision
That the claimant is entitled to wage loss benefits up to May 27, 2000; and
That responsibility should be accepted for the claimant's ongoing right ulnar nerve problem and any associated treatment.
Background
While employed as a bakery sales clerk on July 12, 1999, the claimant injured her right hand when it caught between a rack oven and a transit tray rack. Following the accident, the claimant attended a local hospital for treatment and was diagnosed with a soft tissue trauma to the right hand. The attending physician, on July 15, 1999, diagnosed the claimant with a right hand contusion. The claim was accepted by the Workers Compensation Board (WCB) and benefits comments shortly thereafter.
In a report to the attending physician dated September 1, 1999, a plastic surgeon indicated that the claimant injured her right fifth digit when it was crushed at work. Examination findings revealed the claimant had "very weak flexion of the DIP and the proximal interphalangeal joint. The tendons appear to be intact but they are weak. I am not sure of the exact etiology of this but this could be just from the crushing or from disuse." The specialist indicated that he would enroll the claimant for physiotherapy and occupational therapy so she could get more aggressive treatment including muscle stimulation. The specialist noted that the claimant may require some EMG or nerve conduction studies as "She had some reduced sensation in the distribution of the ulnar nerve but I don't think the injury can explain that. She may have a bit of cubital tunnel syndrome as well."
On October 27, 1999, the claimant underwent nerve conduction studies and the results showed "a mild slowing of the right ulnar nerve just above the elbow, consistent with right ulnar neuropathy."
On December 1, 1999, a second plastic surgeon reported that clinical examination of the claimant's right upper extremity revealed a positive Tinel's sign just proximal to the cubital tunnel. There were no other significant abnormalities identified at the elbow. Weakness of the ulnar innervated instrinsics and the long flexors to the right and little fingers were noted. The diagnosis was compression of the right ulnar nerve and surgical decompression was recommended.
In early January 2000, the claimant provided a WCB adjudicator with further details regarding the compensable accident of July 12, 1999. The claimant indicated that she injured her right hand when it became pressed between a bread rack and the storage rack. There was no trauma to her elbow.
Following review of the case including the claimant's description of the compensable injury, a WCB medical advisor concluded that the ulnar nerve compression was not related to the compensable injury as there had been no trauma to the elbow at the time of injury. A letter dated January 18, 2000, was sent to the plastic surgeon indicating that the WCB would not accept any financial responsibility for the ulnar nerve decompression.
On March 7, 2000, a second medical advisor reviewed the case. In his opinion the current diagnosis of the claimant's condition was ulnar neuropathy and that it was not related to the July 1999 work injury.
On March 15, 2000, the claimant was informed by Rehabilitation and Compensation Services that wage loss benefits would end on March 22, 2000, as the evidence suggested that her current problems were no longer directly related to the compensable accident. The claimant appealed this decision on March 28, 2000.
Reports were received from the claimant's family physician dated March 22, 2000, and from her physiotherapist dated March 27, 2000. The family physician maintained that the claimant's problem was related to her work injury of July 12, 1999 and that she still required surgery. The physiotherapist stated his opinion that the ulnar nerve injury was directly related to the compensable injury.
Prior to considering the claimant's appeal, Review Office requested an opinion from a WCB orthopaedic consultant on April 12, 2000. In response to the questions posed by Review Office, the orthopaedic consultant indicated, in part, the following on April 18, 2000:
- that on a balance of probabilities, the right ulnar neuropathy was not considered to be a sequela of the July 12, 1999 compensable injury. The rationale for this opinion as stated by the orthopaedic consultant, "the nerve lesion is above the level of the right elbow whereas the injury the claimant sustained was to the right hand, in particular the right small finger."
In a decision of April 20, 2000, Review Office determined there was no entitlement to wage loss benefits beyond March 22, 2000 and that responsibility for the proposed surgical decompression of the right ulnar nerve was not accepted as a consequence of the July 1999 accident. In reaching these conclusions, Review Office took into consideration the initial diagnosis (i.e. soft tissue trauma to the right hand), the current diagnosis (i.e. right ulnar neuropathy), the comments expressed by the attending specialist following his examination of September 1, 1999 and the opinion of the WCB orthopaedic consultant on April 18, 2000. Review Office was of the opinion that the whole of the evidence did not support an ongoing causal relationship between the current diagnosis, the proposed surgical procedure and the work related injury of July 1999. The claimant's union representative appealed this decision on July 12, 2000 and an oral hearing was requested.
On October 12, 2000 an oral hearing was convened. Following the hearing and discussion of the case, the Appeal Panel requested a report from the plastic surgeon regarding an upcoming examination. A report was later received from the plastic surgeon dated November 8, 2000 along with a nerve conduction study report dated November 13, 2000. The reports were forwarded to the interested parties for comment. On December 19, 2000, the Panel met again to discuss the case and took into consideration a submission from the employer's advocate dated December 14, 2000.
Reasons
The panel met to consider an appeal, by the claimant, of a decision by the Review Office, dated April 20, 2000. That decision denied a request for reconsideration of an earlier adjudicative decision.
Two issues were to be determined in this appeal: whether or not the claimant was entitled to wage loss benefits beyond March 22, 2000; and whether or not responsibility should be accepted for the claimant's ongoing right ulnar nerve problem and any associated treatments.
Issue #1:
For the first issue to succeed, it must be determined that the claimant's inability to earn a wage was as a result of the compensable injury.
As noted above, the claimant suffered a trauma to her hand in a workplace accident. This was accepted by WCB as a compensable injury. She developed problems with her right ulnar nerve, which seemed to indicate that she had cubital tunnel syndrome.
There is conflicting medical evidence as to whether or not her right ulnar nerve problem could result from the trauma to her hand. While her treating physician and treating physiotherapist were of the view that her problems were related to the injury, Board medical advisors were of the opposite opinion.
As a result of the latter opinions, the claimant was cut off wage loss benefits as of March 22, 2000 and no responsibility was accepted by the Board for the surgery performed on May 2, 2000.
At the time of the appeal hearing, the Panel was made aware that the claimant had an upcoming medical examination with a specialist. We chose to await the results of this examination, prior to making our decision. Furthermore, we would seek some specific information from this specialist in respect of the above-noted conflicting medical advice.
In his response, the specialist stated that it was possible that the claimant's right ulnar nerve condition could result from the type of trauma she had suffered, through a traction-type injury. This is consistent with the earlier comments of the treating physiotherapist.
The Panel found this medical opinion, when added to the other evidence in the file, to be persuasive in allowing for acceptance of the proposed right ulnar nerve surgery. We found the claimant to be a credible witness, who has returned to work, in spite of her ongoing problems. We noted that her attending physician was consistent in her opinion that the claimant's problems were related to the compensable injury. This was further corroborated by the physiotherapist. Therefore, we conclude that it was not unreasonable to explore a possible causal link between the claimant's ulnar nerve condition and the original injury, and for the attending physician to place work restrictions on the claimant between March 22, 2000 and the date of the surgery.
While it was unclear whether or not the cubital tunnel syndrome was caused by the compensable injury, there were indications of possible mechanisms of injury that could have led to this conclusion. Although there were legitimate questions as to whether or not the surgery was necessary to treat the results of the compensable injury, we find, on a balance of probabilities, that it was a reasonable medical procedure. We find that the surgery was justified, if for no other reason than to clarify the conflicting opinions as to the source of her ongoing problems.
Therefore, the claimant is entitled to wage loss benefits beyond March 22. In our opinion, it is appropriate for the WCB to pay benefits to the date of the operation. Beyond that, continued wage loss benefits would be conditional on the surgery proving to be of medical benefit.
The surgery did not relieve the claimant's symptomatology, which led us to conclude that, on a balance of probabilities, the cubital tunnel syndrome is not related to the compensable injury. Therefore, we feel that wage loss benefits should be limited, specifically, to the time of the operation and for a reasonable recovery period, after the operation. Based on evidence from the treating specialist, on May 17, 2000, that she could return to work in 7 - 10 days, benefits should be paid from March 22 to May 27, 2000.
As indicated, when seen by the specialist on May 17, 2000, it was suggested that she would be able to return to work to normal duties within the next 7-10 days. The panel notes that the next medical report covers an examination of the claimant on August 21, 2000 with no evidence of the claimant seeking medical attention between those dates. In light of the above, we must conclude that beyond May 27, 2000, there is no evidence to support a loss of earning as a result of her compensable injury.
Issue #2:
For the second issue to succeed, it must be determined that the claimant continues to suffer problems as a result of the compensable injury.
It is clear from observation and from her oral evidence before the Panel that she continues to have problems with her right hand and arm. It is also clear from the medical evidence that she did not show such symptoms prior to the compensable injury.
In his letter to The Appeal Commission, dated November 8, 2000, the treating specialist noted that she continues to show symptoms of a compression neuropathy of the ulnar nerve, which, in his view, are related to the compensable injury. By way of treatment he recommends restrictions on certain activities in the workplace.
Based on this evidence, we conclude that the claimant has not fully recovered from the original injury and may be entitled to medical treatment as appropriate for the compression neuropathy. We note that, at the present time, there is no loss of earning capacity; the claimant is back at work.
Accordingly, the appeal is allowed, as noted in the foregoing reasons.
Panel Members
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of January, 2001