Decision #29/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 14, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to wage loss benefits for the period August 13, 2002 to December 4, 2002, inclusive.Decision
That the worker is entitled to wage loss benefits for the period August 13, 2002 to December 4, 2002, inclusive.Decision: Unanimous
Background
In late May 2001, the claimant experienced numbness in his fingers and thumb with shooting pains from his fingertips to his elbows while using his left hand to snap off an "H" bone during the course of his employment as a shell boner. The claimant was eventually diagnosed with bilateral carpal tunnel syndrome, severe on the right and moderate on the left. In February and May 2002, the claimant underwent carpal tunnel decompression to both wrists. File records showed that the claimant performed light duties leading up to his CTS surgeries and was paid wage loss benefits on those occasions when he was unable to work because of pain.In a memo dated June 11, 2002, a WCB medical advisor noted the opinion expressed by the treating hand surgeon in his report dated April 29, 2002 that the claimant should be able to return to work in 6 to 8 week's time following his May 3rd surgery. The medical advisor felt that a graduated return to work would be appropriate for the claimant starting in mid June to early July, 2002.
On June 17, 2002, a WCB case manager met with the claimant and the company nurse at the worksite to discuss potential alternate/modified duties. The claimant presented with a visibly swollen right wrist but felt the strength in his left hand was improving. A "hind foot saw" position was suggested for the claimant which involved the operation of a saw with a joystick on the left side. The job would not involve any use of the right arm and there was no resisted force or gripping with the left hand. The claimant was offered the opportunity to start at four hours per day and then review after the first week. The claimant said he was willing to consider the position but would speak to his doctor about it first. The case manager commented that he would give the claimant a videotape of the "hind foot saw" position for his and his physician's review. In a further memo dated June 21, 2002, the claimant called the WCB to advise that his doctor found the hind foot saw position was too repetitive and would not consent to the claimant accepting the position.
Following review of the videotape, a WCB medical advisor commented on July 18, 2002 that the modified duties shown on the videotape appeared to be within the claimant's restrictions. He also noted that he had spoken with the attending physician who recommended that the claimant be called in to the WCB's offices for an examination as his recovery had been slow.
The claimant was examined at the WCB's offices on August 12, 2002. The claimant continued to complain of wrist pain and paraesthesias despite both conservative and surgical treatment. It was indicated that some of the claimant's symptoms may be related to the ulnar nerve possibly at the elbow and that nerve conduction studies would be arranged. After reviewing the videotape evidence, the medical advisor commented that the claimant was capable of performing the modified duties offered by the employer and that the duties were in keeping with his restrictions.
On August 13, 2002, the company's health nurse called the WCB to state that the claimant, after 1 ½ hours of performing the light duties, reported left hand numbness and shooting pains into his elbow and that the force of the joystick was more than what he had thought. The claimant left for home and was told to go directly to his doctor.
In a letter dated August 12, 2002, it was confirmed to the claimant that his wage loss benefits would end effective August 13, 2002 as it was determined that he had been capable of performing the duties associated with the hind foot saw position. This decision was reached based on the August 12, 2002 call-in examination and after review of the videotape and job demands description of the hind foot saw position by WCB healthcare physicians.
In a letter dated October 10, 2002, the case manager confirmed to the claimant that the WCB was accepting responsibility for his bilateral cubital tunnel syndrome as part of the compensable injury, in addition to the acceptance of his bilateral carpal tunnel syndrome. The claimant was advised that he would be extended wage loss benefits for a period of time following the surgical procedures to his cubital tunnel. In the interim, it was still the opinion of the WCB that he had been considered capable of performing the duties associated with the "hind foot saw" position and that the decision of August 12, 2002 would still be maintained.
On November 6, 2002, a union representative, acting on behalf of the claimant, submitted reports by the treating physician and physiotherapist in which they expressed their opinions that the modified duties offered to the claimant were inappropriate. The union representative pointed out that the attending physician was not provided with a copy of the hind foot saw video and that both the physician and physiotherapist relied only on the claimant's description of the job. What concerned the union representative the most about the job was that it was repetitive in nature and that the work was done in a cold environment. Based on these factors, the union representative requested that the claimant's wage loss benefits be reinstated retroactive to the date that his benefits were terminated.
In a November 28, 2002 letter, the case manager advised the claimant that his case had been referred to a WCB medical advisor to determine whether or not working in a cold environment would constitute an additional restriction. Based on the medical evidence, the case manager noted that in some cases, working in a cold or refrigerated environment could exacerbate the claimant's neuropathy symptoms. However, it was noted that the duties associated with the operation of the hind foot saw did not require gripping, or hand dexterity and that the claimant would be allowed to wear appropriate garments to keep his hands, arms and body core warm. As such, the case manager did not agree that the claimant was precluded from working in a cold environment and therefore he was not in a position to reverse the previous adjudicative decision. In April 2003, the union representative appealed the WCB's decision that the claimant was not entitled to wage loss benefits effective August 13, 2002 to December 4, 2002 and the case was referred to Review Office for consideration.
On June 13, 2003, Review Office confirmed that the claimant was not entitled to wage loss benefits between August 13, 2002 and December 4, 2002. Review Office agreed with the WCB medical advisor's opinion following his assessment of the videotape of the hind foot saw position. Review Office noted that it too had reviewed the tape and felt that the operation of the joy stick was placing little or no stress on the claimant's left hand and as such the duties offered by the employer fell within the restrictions involved in this claim.
Review Office also considered the treating physician's and the physiotherapist's comments with regard to the claimant's working in a cold environment. Review Office agreed with the WCB medical advisor and the case manager's opinion that one could dress appropriately to accommodate a cold environment.
Review Office also pointed out that the opinion expressed by the claimant's physician concerning the modified duty position was made without his viewing the videotape of the position whereas the case manager and WCB medical advisor had had the opportunity to view the videotape and thus their opinions were more educated. On September 22, 2003, the union representative disagreed with Review Office's decision and an oral hearing was convened.
Reasons
As the background notes indicate, the worker’s claim was initially accepted by the WCB for bilateral carpal tunnel syndrome (severe right and moderate left). As to appropriate treatment, the treating hand specialist suggested that the claimant would benefit from surgical decompression of both hands. On November 8th, 2001, the WCB authorized the treating hand specialist to proceed with a sequential CT release of both wrists. Following the second surgery on May 3rd, 2002 and a suitable period of physiotherapy thereafter, discussion ensued with respect to the claimant’s returning to work at an alternate/modified duty position with the accident employer. The suggested position involved the operation of a saw with a joy stick on the left side.
The claimant underwent an examination by a WCB medical advisor on August 12th, 2002. Subsequent to his examination the medical advisor recorded the following comments:
“In the meantime, the claimant would be capable of light duties that do not involve repetitive wrist movements, sustained or repetitive gripping, vibratory tools, or lifting greater than 10 pounds. I have reviewed a videotape of the proposed modified duties which involve operation to align the hind foot cut of (sic) saw. The operator has to use a joy stick to ensure proper alignment. From review of the video, it is obvious that there is minimal movement at either the wrist or the elbow involved in controlling this joy stick. The joy stick does not even have to be gripped. As such, it would appear that these duties fall within the claimant’s prescribed restrictions. Further treatment should be guided by the pending nerve conduction studies.”
The WCB informed the claimant that wage loss benefits would be paid up to and including August 12th, 2002 as he was considered fit to return to work at the modified duty of operating the hind foot cut saw. The next day the claimant reported for work and after approximately 1 ½ hours on the job his left hand became numb and he began to experience shooting pains in his elbow. Consequently, he left the workplace.
At the hearing, the claimant was asked a number of questions concerning his modified work duties.
Q. So what I want you to do first is just tell me what the workstation looks like?
A. Well, basically you - - before you even get into the refrigerated environment you walk through a line and you pick up your gloves. You walk into the cooler and you wash your hands to start off with, the water is always cold, so your hands are cold even before you get started. I was wearing three pairs of gloves. You walk up to the station. You have to strap on this belt with a chain so that you don’t get sucked into the saw, and it’s got a little lever with a ball - - And the hogs come down the line and you’re cutting the feet off at the knuckle bone. They try to line them up, but they come in all different - - like where the knuckle comes across on the belt is at all different stages. That saw only moved forward and back so far and so when you’re moving your arm forward, if you move the blade all the way up, it sends a little jolt back into your arm, which was sending little; it feels like little electric shocks, up into my elbow. That’s what the problem was.
Q. I want you physically just to show the panel how you would place your hand on the joystick and how would you move it?
A. Well, basically they wanted me to move it like this, but my arms were still actually quite sore there, I was in between surgeries, so like my forearms weren’t really up to par, so when I was doing it I had to bend my wrist and do it like this to actually get enough weight behind it so that I could move it. It’s supposed to be a really easy joystick to move, but with three pairs of gloves on and no grip strength, it was really hard for me to grasp it.
Q. So you were basically pushing it?
A. Yes, pushing it back and forth, up and down. And when there’s broken feet and stuff like that you have to pick them up and stretch them out and carry them through the saw so that the knuckle gets cut at the right spot.
Q. How many cuts would you have to make in a shift?
A. They were cutting 1,000 an hour, so 6,000.
Q. So can you explain what a jolt means again?
A. When you push the joystick up and the saw can’t move any further, it’s at its limit, it - - it’s like it hits a bump and every time I hit that I would get like a little electric shock up my arm. It started out little, but after an hour and a half it was quite painful.
Q. And you told him [the treating physician] about wearing three gloves to keep warm, because I know working in a cold environment became an issue after awhile too?
A. Yes.
Q. Why was your doctor so insistent that you not do that job, did he tell you why he didn’t want you to do it?
A. Actually it was the cold environment that really did my hands.
Q. Now you had restrictions on your activities right?
A. Yes.
Q. And one of them was no repetitive wrist movements?
A. Right.
Q. So working that joystick, would that have been repetitive at 1,000 an hour, do you think?
A. I think so, yes, because I couldn’t keep my wrist straight, I had to have it bent in order to do it.
Q. When you were doing that alternate work job, how was your hand at the end of the shift?
A. Actually, my left hand and my fingers were all fat sausages and I had trouble even getting my gloves off.
Approximately one month after the claimant abandoned his modified duty, the treating surgeon reported that the claimant now clinically presented with bilateral cubital tunnel syndrome. He suggested that surgical decompression would benefit the claimant. A WCB medical advisor reviewed this latest development and concluded that there was definitely a cause and effect relationship between this new diagnosis of bilateral cubital tunnel syndrome and the claimant’s work duties. On October 7th, 2002, the WCB authorized the treating surgeon to proceed with the proposed bilateral cubital tunnel decompression surgeries.
After having thoroughly weighed all of the evidence, it became readily apparent that the claimant’s evidence detailing how he was able to perform the modified job was in sharp contrast as to what was shown on the video tape and also as to how this job was described by the WCB’s rehabilitation specialist. In addition, we took note of the fact that the claimant was singularly capable of performing this modified duty position with his left hand/arm only. We also accept the evidence that the claimant would have a heightened sensitivity to a cold environment following his series of surgeries as well as the difficulties that he encountered when treated with contrast baths while in physiotherapy.
Based on the weight of evidence, we find that the claimant was not, on a balance of probabilities, in a physical condition of readiness to work on the assigned modified duty. We further find that the worker is entitled to wage loss benefits for the period August 13th, 2002 to December 4th, 2002 inclusive. Accordingly, the claimant’s appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of February, 2004