Decision #90/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 9, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 9, 2003.Issue
Whether or not the claimant is capable of working 34 hours per week on modified duties.Decision
That the claimant is not precluded from working 34 hours per week of modified duties in relation to her compensable bilateral medial epicondylitis.Decision: Unanimous
Background
In October 1997, a general practitioner wrote to the Workers Compensation Board (WCB) to report that the claimant incurred a right medial epicondylitis condition and that she was unable to perform the requirements of her current job duties. The physician felt that the claimant required a job that involved minimal lifting, pulling or grasping.File records showed that the claimant's occupation was a meat wrapper and that she had been experiencing pain in both her arms and elbows, off and on, since December of 1996. Based on further medical information, the claim was accepted on the basis of the following diagnoses: bilateral medial epicondylitis and a bilateral forearm injury. On May 20, 1998, the WCB outlined restrictions for the claimant with respect to a return to work and these restrictions were to be reviewed in six month's time.
In a letter to the claimant dated July 21, 1998, primary adjudicator noted that during a recent call-in examination at the WCB, a WCB medical advisor noted that the claimant had a back and shoulder injury as well as ulnar nerve irritation which had not been reported to the employer. The claimant was advised to file separate WCB claims for her back, right shoulder and ulnar nerve irritation and that the WCB would determine its responsibility in this regard.
A WCB vocational rehabilitation consultant (VRC) met with the claimant and the employer to arrange a return to work program respecting the claimant's physical restrictions with regard to her 1997 claim. Commencing in August 1998, the claimant returned to work performing alternate light duties in the deli department on a graduated basis, with the ultimate goal of returning her to her pre-accident work duties as a meat wrapper.
In a memo to file dated June 1, 2000, a Vocational Rehabilitation Consultant (VRC) reported that the claimant was working 25 hours per week and that the employer could not accommodate the claimant with a full time position at this time.
On January 12, 2001, a WCB case manager wrote to the claimant. The case manager noted that the claimant continued to work at 25 hours per week and that a WCB medical advisor was of the opinion that she would be capable of increasing her hours over the next three months. It was felt that by March 2001 (the claimant took a leave of absence from work between January 6, 2001 and March 11, 2001) the claimant should be capable of working 34 hours per week.
In March 2001, the claimant advised her adjudicator that she was unable to work 34 hours per week because of increased symptoms in both her arms, upper back and neck. Following consultation with a WCB medical advisor on March 28, 2001, the case manager advised the claimant on April 2, 2001 that the WCB could not relate the symptoms in her left arm, upper back and neck to the effects of her May 1, 1997 work injury. It was felt that the claimant was still capable of participating in the modified duties program at 34 hours per week effective March 11, 2001. This decision was again confirmed to the claimant on May 1, 2001.
On September 10, 2001, primary adjudication provided the claimant and her union representative with clarification as to the WCB's position with respect to the decisions which were rendered on this claim and two 1998 claims filed by the claimant. With respect to the 1998 claim for bilateral carpal tunnel syndrome, primary adjudication concluded that as of April 26, 2001, no responsibility would be accepted for further treatment or time loss in relation to the diagnosis of CTS. With regard to the 1998 claim for right shoulder and neck complaints, the WCB determined that it could not accept the claim as a work related condition.
On October 10, 2001, a union representative prepared a submission to Review Office appealing the decisions which were made on both the 1998 claims as well as the decision under the 1997 claim that the claimant was capable of working 34 hours per week.
With respect to whether or not the claimant was capable of working 34 hours per week, Review Office agreed with the position put forth by primary adjudication. Review Office took into consideration the time that had transpired since the original condition and the fact that the claimant had been avoiding significant physical tasks in the workplace. Review Office noted that the claimant had a multitude of complaints throughout the vast majority of areas in her upper torso and it was very difficult to distinguish what was work related and what wasn't. Review Office felt there was a significant non-compensable component to this vast array of physical complaints and that clinical objective evidence was lacking to support the claimant's contentions.
On September 12, 2002, a worker advisor provided Review Office with a report by an occupational health physician dated September 6, 2002, which she felt supported the position that the claimant was incapable of working 34 hours per week. After taking into consideration the contents of the September 6th report, Review Office upheld its previous decision that the claimant was capable of working 34 hours per week on modified duties with regard to her compensable conditions. In April 2003, the worker advisor appealed Review Office's decision and an oral hearing was convened on July 9, 2003.
Reasons
This case involves a worker who suffered injuries to her elbows and forearms as a result of her employment. Her condition was diagnosed as bilateral medial epicondylitis. Her claim for compensation was accepted and benefits paid accordingly.At much the same time, the worker was also suffering from problems with her neck, upper back and right shoulder, which she believed were also caused by her work duties. A separate claim for compensation for these problems was not accepted.
A third medical problem, which was at play during much of this time, was carpal tunnel syndrome. The board accepted this claim as work-related. However, the symptoms were generally found to be so mild as not to warrant surgical or other medical intervention.
The issue before the Appeal Panel was whether or not the epicondylitis was limiting her ability to work. For her appeal to succeed, we would have to determine this to be so. We were not able to make that determination.
In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from the claimant, her representative and a representative of the employer.
While the problems the claimant has with her neck and upper back region was not part of the issue before us, they did play a significant role in our ultimate decision.
We note that, in August 1998, a return-to-work program was established. She was to start at four hours for five days a week, increasing to six-hour days. Within a few weeks, she found that her pain symptoms increased when she worked in excess of five hours a day.
By early 2000, it was recommended to the worker that her bilateral elbow problems had recovered to the point where she could return to working, with restrictions, for 25 hours a week. Over the ensuing few months, this should be increased until she was working 34 hours per week. However, she was not able to do this. She still found it difficult to work more than five-hour days.
It was argued before us that this was due to her ongoing problems with her elbows. However, the evidence presented does not support this position. In particular, we note the following:
- In August 2000, she was seen, in follow-up, by a neurologist, who found that her medial epicondylitis continued. But, he could find no objective signs supporting any ulnar nerve involvement.
- In February 2001, the board recommended to her family doctor that she was ready to increase her hours of work from 25 hours a week to 30 and, then to 34. This began in mid-March.
- In May 2001, her doctor reported that work beyond 25 hours a week led to "considerable increase in her pain of her neck, right shoulder, both forearms and midback."
- In June 2001, her doctor wrote that she had not recovered from her back, neck and bilateral arm problems. He noted that she could not "tolerate more than 5 hours per day at her current restricted job [and] will not tolerate any further extension of her work hours." He related her problems, in particular, to her initial back injury.
- "She estimates that 80% of her overall pain and activity limitations are related to shoulder, neck and upper back, versus the problems she was having in her forearms and hands."
- In respect of her shoulder, neck and back conditions, he diagnosed her as having "regional myofascial pain syndrome secondary to postural and dynamic muscle overuse." It was his opinion that this was related to her work duties.
- In response to a question as to whether or not she was capable of performing modified duties 35 hours per week, he felt that she wasn't, but wrote that "it was largely her upper back, shoulders and neck which limited her ability to perform her modified duties."
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of September, 2003