The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on August 7, 2001, at the employer's request.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 25, 1996.

Decision

That the worker was entitled to wage loss benefits beyond April 25, 1996.

Background

On August 30, 1991, the claimant was bringing boxes into a production area and accidentally struck her left wrist just below the thumb and before the forearm. When seen by a physician for treatment, the claimant was diagnosed with de Quervain's tenosynovitis. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits commenced. On February 20, 1992, the claimant underwent surgical release of the stenosing tenosynovitis.

File documentation showed that the claimant continued to experience difficulties with her left wrist and was seen for treatment by various physicians/specialists over the course of her claim. In March 1996, the WCB determined based on the weight of evidence that the claimant was capable of returning to her previous work and that there was no basis to pay ongoing wage loss benefits beyond April 25, 1996.

On August 2, 1996, Review Office confirmed the decision that no further responsibility could be accepted for the claimant's ongoing complaints and claimed wage loss benefits beyond April 25, 1996. It concluded that the claimant had recovered from her compensable left wrist and thumb injury and that she did not require any ongoing physical restrictions as a result of the compensable injury. Review Office concurred with the opinions expressed by a WCB neurological consultant and by a WCB orthopaedic consultant that the claimant's left elbow difficulties along with her upper arm, neck and pectoral area difficulties were not related to the trauma sustained at work on August 30, 1991. This was confirmed by Review Office in later decisions dated November 26 and 27, 1998.

In April 2000, a worker advisor, acting on behalf of the claimant, requested that a Medical Review Panel (MRP) be convened in accordance with Section 67(4) of the Workers Compensation Act (the Act). The worker advisor contended that there was a difference of medical opinion between the WCB's orthopaedic consultant and the claimant's treating occupational health physician. On May 19, 2000, the request for a MRP was granted and a MRP was held on October 6, 2000. The MRP ultimately determined that the claimant had nerve damage as a result of her 1991 workplace injury and that she had not fully recovered from the effects of the workplace accident. The MRP agreed that a trial of Amitriptyline or Nuerontin would be appropriate in an attempt to control the claimant's pain and that the claimant was permanently restricted from repetitive or forceful work with the left hand.

On January 11, 2001, a WCB case manager advised the claimant that her wage loss benefits would be reinstated retroactive to April 26, 1996 based on the MRP's opinion of her medical condition. On January 24, 2001, the Review Office concurred with this decision. On February 20, 2001 the employer appealed the decision that the claimant was entitled to wage loss benefits beyond April 25, 1996, and a non-oral file review was conducted.

Reasons

This case was the subject of an appeal initiated by the injured worker's employer. The primary focus of the employer's argument centered on its disagreement with the conclusions reached by the Medical Review Panel (MRP) on October 6th, 2000. We extensively reviewed the various medical reports and opinions contained on the file and after which we were able to conclude that the MRP findings were consistent with this body of evidence.

The employer, through its medical consultant, also advanced the argument that the claimant voluntarily assumed any and all risks that might have been associated with her corrective surgery and as such the company should not be responsible for any "post surgical consequences."

"As per the possibility that the claimant's symptoms might have been related to the surgery, I would like to advise you that the surgical decompression does carry a risk of transection of radial sensory nerve and its branches, postoperative neuroma or neuritis, which can be far more symptomatic than the original tenosynovitis. However, assuming that the orthopaedic surgeon who performed the surgical intervention has discussed the advantages and disadvantages of this type of intervention, I believe that Mrs. [the claimant] has consciously taken the presented risk. In either case, I do not see any responsibility of the company for voluntary acceptance of post surgical consequences, if any."

In response to this contention, we would like to point out to the employer WCB policy 42.10.10, which states in part as follows: "The WCB will accept responsibility for the costs associated with elective surgery and the worker's subsequent recovery if the surgery is required as a result of a compensable injury." There is no question that the WCB through its medical consultants determined that the surgical release of the claimant's left wrist was both appropriate and related to the compensable injury. In addition, we attached considerable weight to the opinion expressed by the MRP. "The Panelists agree that based on the history and physical examination, Ms. [the claimant] has nerve damage. The nerve damage is undetectable by conventional testing. The nerve injury is related to either the accident or to the surgery." The WCB has adopted the position that if it has approved of the surgery then any complications or further injuries occurring as a result thereof will be compensable.

We find based on the preponderance of evidence that the worker is entitled to wage loss benefits beyond April 25th, 1996. Accordingly, the employer's appeal is hereby dismissed.

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 17th day of September, 2001