The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 31, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on May 31, 2001.

Issue

Whether or not the claim for carpal tunnel syndrome is acceptable; and

Whether or not responsibility should be accepted for the claimant's right ulnar nerve problem including the associated treatment and time loss.

Decision

That the claim for right sided carpal tunnel syndrome was acceptable; and

That no responsibility should be accepted for the claimant's right ulnar nerve problem including the associated treatment and time loss.

Background

In February 1999 the claimant filed a compensation claim for difficulties he was experiencing with both arms and wrists which he related to his employment activities as a furnace operator's helper/grinder. The claimant described his injury as follows:

"Both arms, within the last 3 or 4 weeks of work, were becoming sore and losing strength. My work involved a lot of lifting, as well as grinding, and towards the final day, my right arm, had swelled up, and was very painful. Both wrists were sore and difficult to move."

The date of accident was recorded as February 5, 1999.

On March 23, 1999, a Workers Compensation Board (WCB) medical advisor reviewed the file at the request of primary adjudication. The file contained medical information that included the results of nerve conduction studies dated February 15, 1999, and reports from the attending physician as well as an orthopaedic specialist. The file also contained information concerning the claimant's work history and a videotape of his job activities with the accident employer.

Primary adjudication asked the medical advisor to provide his opinion as to whether the diagnosis of bilateral carpal tunnel syndrome (CTS) had been confirmed. The medical advisor responded by saying that CTS was confirmed in the right hand and that it was possible that CTS was in the left hand, but there was no positive electrophysiological confirmation. The medical advisor stated that this was consistent with the claimant's work activities. The medical advisor also authorized surgery to the right hand, which had been proposed by the orthopaedic specialist (i.e. compression of the right median nerve). The surgery was carried out on March 26, 1999.

On March 30, 1999, the claim was accepted by the WCB and the claimant was issued wage loss benefits commencing February 5, 1999.

On April 26, 1999, the orthopaedic specialist reported that the claimant continued to have some problem with his little finger and the ring finger, which were in the distribution of the ulnar nerve. It was felt that the claimant quite possibly may have ulnar nerve neuritis and arrangements were made for ulnar nerve conduction tests. On May 17, 1999, nerve conduction tests revealed electrophysiological evidence of a moderate right ulnar compression at the elbow. On May 28, 1999, the claimant underwent decompression of the right ulnar nerve.

The claimant underwent further nerve conduction studies on June 16, 1999. There was no electrophysiological evidence of a carpal or cubital tunnel syndrome found in the left arm.

On June 29, 1999, primary adjudication asked a WCB medical advisor to review the file and comment as to whether there was a cause and effect relationship between the right ulnar nerve and the compensable injury. The medical advisor indicated that he could not establish a relationship based on the nerve conduction studies of March 2, 1999. On August 24, 1999, the claimant was notified that the WCB was not accepting responsibility for the right ulnar nerve decompression surgery and that wage loss benefits would be paid to June 28, 1999, being the date that the orthopaedic surgeon felt the claimant was fit for work. This decision was later confirmed by primary adjudication on January 17, 2000.

On February 23, 2000, a worker advisor forwarded an appeal submission to Review Office. She indicated that primary adjudication did not provide adequate reasons for its decision that there was no cause and effect relationship between the ulnar nerve problem and the compensable injury. The worker advisor contended that the most probable cause of the concurrent ulnar nerve entrapment neuropathy was the claimant's employment activities. Review Office in turn referred the case back to primary adjudication to respond to the worker advisor's submission.

Following consultation with healthcare services, primary adjudication confirmed on March 21, 2000, that there was no cause and effect relationship between the right ulnar nerve and the compensable injury. It felt that the claimant's job duties would not cause the right ulnar nerve problem. Work-related causes for ulnar nerve compression were few, but would include direct trauma and forceful repetitive hyperflexion at the elbow.

At the request of Review Office, a WCB orthopaedic consultant reviewed the case on April 12, 2000. The orthopaedic consultant was asked to provide his opinion with respect to the relationship between the diagnosis of cubital tunnel syndrome involving the right ulnar nerve to the carpal tunnel syndrome and related surgery; and also between the cubital tunnel syndrome and the claimant's workplace activities.

On April 28, 2000, Review Office determined that no responsibility would be accepted for the claimant's right ulnar nerve problem and that no responsibility would be accepted for the surgery to the right ulnar nerve, associated time loss or any related treatment. Review Office was of the view that the evidence did not support a causal relationship between the right cubital tunnel syndrome involving the right ulnar nerve to this claim for right wrist CTS. The evidence did not establish a cause and effect relationship between the cubital tunnel syndrome and the claimant's work activities as a furnace helper/pourer. Review Office placed significant weight on the opinions expressed by the WCB medical advisor and orthopaedic consultant in arriving at its decision.

On October 4, 2000, the employer's representative disagreed with the WCB's decision to accept the claim for CTS and the costs associated with the claim. It was the employer's position that:

1. the WCB should have taken into account the claimant's previous employment history prior to attributing all costs to the employer;
2. the claimant had a past history of psoriasis and to some extent his joint complaints could possibly be attributed to a mild psoriatic arthropathy;
3. the claimant's condition would not have been caused by three days of grinding;
4. the decision to pay the claimant up to June 28, 1999 (i.e. the return to work date recommended by the WCB doctor and the orthopaedic specialist) should not have occurred as this was due to the claimant's second surgery which was not authorized by the WCB;
5. the WCB should not have used the claimant's 1998 income tax return to establish 90% of his net income as this included monies that the claimant earned as a telemarketer which penalized the employer further with respect to the costs associated with the claim.

Prior to considering the appeal, Review Office sought a further opinion from a WCB orthopaedic consultant. In a memo dated November 7, 2000, the orthopedic consultant indicated the following:

• It was questionable that the claimant's occupation would lead to CTS;
• The claimant's work could cause an established CTS to be symptomatic, that is not to say it was causal;
• It had not been established that the claimant had an arthropathy of the right wrist.

In a decision dated November 10, 2000, Review Office determined that the claim for CTS and the March 26, 1999 right CTS surgery was not acceptable. Review Office considered the file documentation and worksite video in context with the employer representative's appeal submission. Following review of all information and the videotape, including the opinion expressed by the WCB's orthopaedic consultant, Review Office decided that the claimant's employment activities as a furnace/pourer's helper and grinder were not causal in the development of the claimant's CTS.

In February 2001, the worker advisor appealed Review Office's November 10th and May 12, 2000 decisions and an oral hearing was convened.

Reasons

We note that the claimant had only been working for the accident employer for approximately three months when he began to experience his wrist difficulties. We are of the view that the claimant’s right-sided carpal tunnel syndrome was a pre-existing condition, which was asymptomatic until February 1999. We find that this pre-existing condition was, on a balance of probabilities, aggravated by the claimant's work duties to the point that surgery eventually became necessary. Accordingly, the claim for right carpal tunnel syndrome is acceptable and the appeal is hereby allowed.

With respect to the second issue, we find based on the weight of evidence that responsibility should not be accepted for the claimant’s right ulnar nerve problem including the associated treatment and time loss. In this regard, we attached considerable weight to the opinion expressed by a WCB orthopaedic consultant in a memorandum dated April 12^th, 2000.

“In my opinion, it has not been established that there is a causal relationship between the onset of this claimant’s cubital tunnel syndrome, involving the right ulnar nerve at the level of the elbow, and his work activity. The symptoms related to the cubital tunnel syndrome were noted while he was off work for a right carpal tunnel syndrome and subsequent surgery that was performed on March 26, 1999. It is also noted that there is no reference made to symptoms in the distribution of the right ulnar nerve of the right hand in the Carpal Tunnel Syndrome Questionnaire that was completed in early March 1999. It is also not clear as to whether or not the claimant has psoriatic arthropathy involving his wrists and/or elbows, which could also be a contributing factor to the development of a carpal tunnel syndrome and a cubital tunnel syndrome.

In my opinion, the claimant’s carpal tunnel surgery to the right hand, and any subsequent treatment, did not contribute to the development of a cubital tunnel syndrome involving the right ulnar nerve at the level of the elbow.

It is also my opinion the claimant did not sustain any significant CI related to work activity, which would have contributed to the development of a cubital tunnel syndrome.

Cubital tunnel syndrome development can be due to either direct trauma to the nerve, acute flexed positions of the elbow for prolonged periods of time, as noted by the previous medical advisor, or due to congenital anatomical anomalies of soft tissues affecting the ulnar nerve at the level of the elbow, or in many instances can be idiopathic.”

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of June, 2001