The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 9, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 9, 2003.

Issue

Whether or not wage loss benefits are payable between February 6 and March 16, 2003.

Decision

That wage loss benefits are payable between February 6 and March 16, 2003.

Decision: Unanimous

Background

On several occasions in late August 2002, the claimant experienced pain in both hands and wrists, the right more-so than his left, while performing work related activities during the course of his employment as an industrial mechanic. Following discussions with the claimant and after a review of submitted medical information, primary adjudication accepted his claim on the basis of a right wrist strain/sprain injury and wage loss benefits were issued to the claimant commencing November 19, 2002.

On December 7, 2002, the claimant was examined by a neurologist and he also underwent nerve conduction studies (NCS) of both hands. The NCS results were interpreted as follows: "Relatively minor abnormalities are found. There is only trivial electrophysiological abnormality to suggest carpal tunnel syndrome as a cause of his complaints."

In a January 28, 2003 report, an orthopaedic specialist commented that he had seen the claimant "post nerve conduction study". Clinically, the claimant had right carpal tunnel syndrome and "nerve conduction studies are not always right 100% of the time." The recommended treatment plan was a right carpal tunnel release. On January 31, 2003, responsibility for the proposed surgery was accepted by a WCB medical advisor. The surgery was then scheduled to take place on March 17, 2003.

In the interim, the WCB determined that the claimant could perform light duties with restrictions to avoid repetitive, forceful activity with the right hand. On February 7, 2003, the claimant agreed to attempt light duties, but reported that his fingertip pain was so severe he could not even use a computer mouse.

On February 11, 2003, the employer advised the WCB that the claimant was unable to perform the modified duties that were made available for him, which included scanning slides and logging them in a computer and transferring files from a cabinet to a storage box.

In a decision dated February 28, 2003, a WCB case manager informed the claimant that his wage loss benefits would end effective February 6, 2003, the date that modified duties were offered to him by the employer. The case manager noted that the employer offered modified duties that included operating a mouse, sorting film slides and repacking files. "These duties can be performed in a non-repetitive manner by changing tasks frequently throughout the day. As well, they can be performed by the left hand, which in WCB's opinion you have no restrictions on." The claimant was advised that his wage loss benefits would be reinstated during he time that he was recovering from surgery, i.e. March 17, 2003.

In a further report dated March 13, 2003, the orthopaedic surgeon provided his opinion that the claimant had bilateral carpal tunnel syndrome based on the results of his examination findings. It was felt that the claimant required bilateral surgical release to the left and right carpal tunnels.

Following consultation with the WCB's healthcare branch, primary adjudication wrote to the claimant on March 14, 2003. The case manager referred to the orthopaedic surgeon's report and the clinical findings disclosed by the nerve conduction studies. Based on this review, the following restrictions were outlined by a WCB healthcare consultant: "no repetitive, forceful gripping with either hand." The case manager further advised the claimant that after reviewing the job description of the modified duties being offered by the employer, it was felt that these job duties were well within the claimant's restrictions and that no wage loss benefits would be paid between February 6 and March 16, 2003. On March 31, 2003 a worker advisor appealed this decision to Review Office.

In a decision dated April 25, 2003, Review Office indicated that there was no medical evidence on file to substantiate the claimant's contention that he was unable to perform modified duties such as operating a computer mouse, sorting film slides and repacking files. Review Office agreed with the two decisions rendered by primary adjudication with respect to the WCB's position on the matter of modified duties and loss of earning capacity between February 6 and March 16, 2003. The worker advisor subsequently disagreed with Review Office and an oral hearing was arranged.

Reasons

We found the claimant to be very credible and he was extremely forthright in his testimony when describing the difficulties that he experienced in performing the modified duties, which had been made available by the employer. The modified job duties involved a considerable amount of pinching and gripping. Without question such activities clearly exacerbated the claimant's condition.

The claimant's evidence was corroborated by his union representative, who attempted these modified duties himself and confirmed that considerable pressure was required in order to insert and to remove the slides into and out of the scanner.

We find based on the weight of evidence that the modified job duties were not appropriate for this claimant and his diagnosed medical condition. Accordingly, we further find that wage loss benefits are payable to the claimant between February 6th and March 16th, 2003. The claimant's appeal is hereby allowed.

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 1st day of October, 2003