The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 13, 2002, at the request of the employer's representative. The Panel discussed this appeal on February 13, 2002.

Issue

Whether or not responsibility for wage loss and medical treatment should be extended to May 18, 2000.

Decision

That responsibility for wage loss and medical treatment should be extended to May 18, 2000.

Decision: Unanimous

Background

On November 8, 2000, an Appeal Panel hearing was held to determine the following issue "whether or not the problems incurred by the claimant beyond June 22, 1999 were related to the compensable injuries sustained on May 8, 1999." A complete background surrounding the details of this case leading up to the November 8th hearing can be found in Appeal Panel Decision No. 27/01 dated February 15, 2001 and will not be repeated in its entirety at this time.

On May 21, 1999, the claimant filed an application for compensation benefits claiming that the problems she experienced with both elbows, wrists and thumbs were due to the nature of her employment activities as a cashier/file clerk. File records also showed that the claimant had a past history of sero negative (RF negative) polyarthritis.

Initial reports from the attending physician noted that the claimant had pain in both hands and elbows which were aggravated by the repetitive grabbing of products at work. The diagnosis rendered was tendonitis of both wrists and elbows.

In a memo to file dated June 21, 1999, a Workers Compensation Board (WCB) medical advisor reviewed the case and commented that repetitive work could cause difficulty in an arthritic patient, however, the aggravation would be short-lived. The medical advisor suggested 4-6 weeks for recovery and was of the view that any ongoing difficulties would be attributed to the claimant's pre-existing polyarthritis. Based on this opinion, the claimant was paid compensation benefits from May 12, to June 22, 1999 inclusive.

In January 2000, updated information was received from the claimant's general practitioner and was reviewed by primary adjudication. In a decision dated February 7, 2000, primary adjudication made reference to the general practitioner's comments and it concluded that the claimant's current disability was the result of an underlying or pre-existing condition, the progression of which was not enhanced or accelerated by the accident at work. The adjudicator concluded that the WCB would not accept responsibility for any time loss or medical treatment subsequent to June 22, 1999.

On April 28, 2000, Review Office considered the case based on an appeal from a union representative. Review Office ultimately determined that the problems incurred by the claimant beyond June 22, 1999 were not related to the compensable injuries sustained on May 8, 1999. On February 15, 2001, Review Office's decision was overturned by the Appeal Panel and the following is an excerpt of the Appeal Panel's decision:

"The claimant's compensable injury was diagnosed as bilateral tendinitis of the hands and elbows. In addition to this condition, the evidence also confirms that the claimant had a medical history of pre-existing polyarthritis. It should be noted that the anatomical sites of the claimant's tendinitis are the same as those affected by her arthritis. We find that the activities performed by the claimant subsequent to her compensable injury have, on a balance of probabilities, resulted in an aggravation of her pre-existing condition and/or a recurrence of her compensable tendinitis. In our view, the work duties that aggravated the claimant's tendinitis could equally cause a pre-existing arthritic condition to become symptomatic."

Following review of the Appeal Panel's decision and the opinion expressed by a WCB medical advisor, primary adjudication determined the following on March 29, 2001:

• on a balance of probabilities, the aggravation of the claimant's pre-existing medical condition had resolved at the time of reporting on January 20, 2000; and
  
  
• the claimant had recovered from the effects of her compensable accident (aggravation) and any suggestion to avoid certain activities was made to possibly prevent subsequent exacerbation of symptoms or further injury.
  
  
• the claimant had preventive restrictions to avoid repeated gripping, lifting, etc. and her case would be referred to the preventive vocational rehabilitation committee for consideration in relation to her non-compensable pre-existing condition.

In an appeal submission dated May 3, 2001, the claimant's union representative disagreed with the WCB's decision that the claimant's condition had returned to her pre-accident status as of January 20, 2000 and that her ongoing symptoms were related to a pre-existing condition. The appeal was considered by primary adjudication on May 31, 2001 and it concluded that no change would be made to its decision of March 29, 2001. The case was then referred to Review Office for further consideration.

On November 30, 2001, Review Office determined that the WCB was responsible for wage loss and medical treatment up to and including May 18, 2000. Review Office made reference to the attending physician's examination findings of January 20, 2000, February 12, 2000 and May 18, 2000 in reaching its decision. Review Office stated it was aware that the claimant had complaints beyond January 20, 2000 and it was very difficult to definitively describe the cause of her symptoms. Review Office was satisfied that on the May 18, 2000 examination the claimant had a very positive exam and it was safe to say the vast majority of subjective complaints of pain had resolved by that date. Review Office was satisfied that it was reasonable and fair to extend WCB coverage to May 18, 2000 and to declare the claimant recovered from her compensable injury of May 8, 1999 by that date. On December 6, 2001, the employer's advocate appealed Review Office's decision and an oral hearing was held.

Reasons

This case involves a worker who, in May 1999, sustained injuries to her wrists and thumbs as a result of her employment as a cashier and file clerk. Her claim for compensation was accepted and wages paid accordingly.

This claim has been the subject of a previous appeal to this Commission, which found that she was entitled to benefits beyond June 22, 1999. Following this decision, the adjudicator extended her benefits to January 20, 2000. A subsequent decision by Review Office further extended her benefits to May 18, 2000. The issue before the Panel is an appeal of that decision by her employer.

For the appeal to succeed, we would have to determine that she had recovered from the effects of her workplace injury on a date prior to May 18, 2000. We did not come to such determination.

In coming to our decision, we made a careful review of the file and held an oral hearing, at which we heard testimony and argument from both the employer and the claimant.

In his presentation, the employer's advocate submitted that any problems related to her compensable injury had resolved no later than January 28, 2000. He argued that there was ample evidence on file that her condition was not aggravated by working as a file clerk and that, since she had done no other work after December 1999, any ongoing symptoms must be related to non-work-related factors. In particular, he attributed her problems to her history of polyarthritis.

That specific issue was dealt with by the previous panel in Appeal Commission Decision No. 27/01. That Panel noted that the claimant had been referred to a rheumatologist who examined her on March 23, 2000. He noted that the claimant had not been taking any medication for arthritis since July 1999. As a result, if her arthritis were at play, joint inflammation would be evident. He concluded "that, from February 1999 onward, soft tissue pain, not arthritis, was and still is present."

This was supported by her own physician, who reported that, on examination on January 28, 2000 and a follow-up on February 12, 2000, the claimant continued to have some soreness in her elbows and right thumb.

Based on this medical evidence, we find that the preponderance of evidence supports the conclusion that the claimant did continue to suffer from the effects of her injury after the end of January 2000.

In considering whether or not benefits should continue to May 18, 2000, we again relied on the report of her physician, as did Review Office. This doctor reported that:

This patient's current diagnosis: resolved strain right and left hand, right and left wrist and right and left elbow epicondylitis. There has been persistence of right thumb extensor tenosynovitis of mild to moderate degree.
....

At the present she doesn't require any treatment and most likely will do well if she continues her present work (light duties) indefinitely.

We agree with the decision of Review Office that this was a positive exam. Based on this report, we conclude that - on a balance of probabilities - the claimant had recovered from the effects of her injury by May 18, 2000. We note that there was no evidence on file to suggest an earlier recovery date. Therefore, we find that benefits should continue to that date.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of March, 2002