Decision #37/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 21, 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 claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
On March 19, 2001, the claimant filed an application for compensation benefits for an injury to her right wrist which she attributed to her employment activities as a grocery cashier. The claimant provided the following explanation as to what caused her injury:"My right wrist has shown signs of injury since 1998. Was mentioned to Dr. [a hand specialist] at that time. Nothing has been done about the injury. A syst (sic) has formed, and my wrist is very weak. I get pain up my arm, and it is very hard to do even simple things."The claimant did not file for WCB with respect to her right wrist in 1998. She did on July 8, 1998 file a claim with respect to a left wrist injury which is the subject of another ruling by this panel.
In a memo dated March 27, 2001, an adjudicator with the Workers Compensation Board (WCB) documented that the claimant was currently on WCB benefits under another claim (i.e. a compensable left wrist injury) and was told by her case manager that she would have to file a new claim for her right wrist difficulties. The claimant related her right wrist difficulties to the repetitive nature of her job duties as a cashier which involved scanning and lifting. The claimant was claiming time loss benefits, prescription costs, etc.
In a Doctor's First Report dated March 16, 2001, the attending physician diagnosed the claimant with possible tendonitis of the right wrist following an examination on January 25, 2001.
As noted in a April 5, 2001 memo by a WCB adjudicator, a complete review of the left wrist injury file revealed some references to the right wrist. When a statement was taken with regard to her left wrist injury on August 10, 1998, the claimant did express concerns in terms of her right wrist. She indicated that her right wrist problems began in May of 1998. She attributed her right wrist problems to overuse in compensation for the injury to the left hand. She indicated that the symptoms she was experiencing were shooting pains up her right arm.
There are also a number of references in the file relating to the left wrist injury in which a concern is expressed that the claimant might injure her right arm if she was at work and using it exclusively. These references include a July 23, 1998 fax from the employer to the WCB on the subject as well as notes from a August 27, 1998 telephone call from the employer to the WCB.
As noted in the adjudicator's April 5, 2001 summary, the claimant also expressed concerns regarding her right wrist in a January 5, 2001 meeting with the WCB case manager and Vocational Rehabilitation Consultant.
In a memo dated April 26, 2001, primary adjudication asked a WCB medical advisor to provide his opinion with respect to the following queries:
- whether or not the claimant's right wrist difficulties were a secondary condition resulting from the left wrist injury; and
- whether or not there was any objective medical evidence to establish a causal relationship between the claimant's right wrist condition and her left wrist injury.
The medical advisor said he was inclined to say that the right hand difficulties came about as a result of usual work stresses and stresses of daily living activities. There was no definitive objective evidence to establish a causal relationship between the claimant's right wrist condition and her left wrist injury.
On June 6, 2001, primary adjudication wrote to the attending physician, asking him to review his records and to provide a report outlining all the dates he examined the claimant for her right wrist problems. His response to primary adjudication is dated June 11, 2001.
In a decision by primary adjudication dated June 20, 2001, the claimant was informed that her claim for compensation had been denied. In reaching this conclusion, primary adjudication referred to the attending physician's report of June 11, 2001, where he noted that the first mention of a right wrist problem was on January 21, 2001 when the claimant stated she had another lump.
Reports on his file from the treating hand specialist made no reference to the right wrist being examined or talked about. The physician commented that the claimant made no mention of any right wrist problems when she was examined by a WCB physician. Based on this evidence along with information that was supplied by the employer that the claimant never reported any right wrist problems, primary adjudication was unable to establish that a right wrist injury occurred at work.
In an undated report faxed to the WCB on December 6, 2001, a hand surgeon reported that the claimant had TFCC tears on both wrists which were noted on MRI assessments. In January 2002, the claimant was scheduled to undergo an arthroscopy for the left wrist. Depending on the outcome of this procedure, a decision would be made as to whether or not he would proceed with a right wrist arthroscopy.
On January 15, 2002, the claimant's union representative provided a submission to Review Office, appealing primary adjudication's decision to deny the claim.
Prior to rendering a decision on the appeal, Review Office sought the medical advice of a WCB orthopaedic consultant on February 14, 2002. The consultant commented that a tear to the TFCC of the wrist joint required significant trauma and that repetitive activity with the wrist or even repetitive lifting would not lead to a tear of the TFCC.
The consultant noted that in some wrists, there is a defect in the TFCC which was a normal anatomical variant but did not truly represent a tear of the TFCC. It was pointed out that on the arthrogram of the left wrist performed on November 19, 1999, contrast material flowed through the TFCC and that this can occur with a normal anatomical central defect in the TFCC. The April 5, 2000 MRI of the left wrist showing a central defect in the TFCC, which could, again, represent a normal anatomical variant.
The consultant commented that there may be no significant symptoms with a tear of the TFCC. If it was symptomatic, it usually was in the form of local pain, localized over the area of the TFCC with movements of the wrist. It should not normally given rise to any migrating proximal pain up the arm.
In a decision dated February 15, 2002, Review Office found that the claim was not acceptable. Taking into consideration the opinion expressed by the WCB orthopaedic consultant, Review Office said it had a medical scenario where, at present, it was not clear as to whether or not there was a true tear in the TFCC or if this was a normal anatomical variant found in both of the claimant's wrists.
With respect to the claimant's August 10, 1998 statement where she complained of a shooting type pain up her arm, the orthopaedic consultant commented that such symptoms would not be expected from a TFCC condition in the right wrist. He also indicated that significant trauma would be required to produce a TFCC tear and thus he did not relate such a diagnosis to overuse or repetitive lifting.
Review Office could not find any evidence that would lead to a conclusion that the claimant sustained a work related injury to her right wrist. Review Office found it odd that one who was in regular contact with her attending physician between 1998 and January 2001, would not comment to him that she experienced symptoms in the right wrist which was causing her concern. On April 9, 2002, Review Office's decision was appealed by the union representative and an oral hearing was arranged.
The oral hearing took place on January 21, 2004. In her submission to the panel, the claimant's representative argued that:
- the claimant had advised her employer in July, 1998 of her attending physician's concern that she would injure her right wrist by overcompensating for the injury to her left;
- the claimant had advised the WCB of problems to her right wrist in August 1998;
- the WCB was again advised by her employer in the late summer of 1998 that the claimant's physician was recommending that she should not be using her right arm repetitively;
- the medical advisor had stated on May 12, 2001, that he "would be inclined to say the (r) hand came about as a result of usual work stresses and stress of activity of daily living" which suggests that her injury was related to her work as a cashier and to the overeliance on her right wrist while she was unable to use her left;
- the right wrist injury came about as a result of overuse syndrome relating to her work as a cashier.
Reasons
The central issue in this appeal is whether, on a balance of probabilities, a causal relationship can be found between the claimant's right wrist condition and her workplace job duties.Upon reviewing the totality of the evidence including the oral hearing, the medical and WCB reports and the able submissions of the representatives of the claimant and the employer, the panel is unable, on a balance of probabilities, to find a causal relationship between the claimant's injury to her right wrist (TFCC) and the workplace job duties.
The starting point for our analysis must be the diagnosis of the injury and an exploration of its causes. It is noteworthy that the TFCC tear was not diagnosed until on or about December, 2001. The uncontroverted evidence of the WCB orthopaedic consultant dated February 14, 2002, makes it clear that a tear to the TFCC of the wrist joint required significant trauma. He notes that repetitive activity with the wrist or even repetitive lifting would not lead to a tear of the TFCC.
The claimant's central claim is that her right wrist injury came about as a result of overuse syndrome relating to her work as a cashier. In support of this proposition, her representative relied upon the May, 2001 report of the WCB Medical Advisor who was unable to say that there was a definitive relationship between the right and left hand injuries but who was inclined to say that the right hand injury came about as a result of usual work stresses and stress of activity of daily living.
However, it should be noted that the Advisor expressed this "inclination" prior to the diagnosis of the TFCC tear which as stated above could be caused by significant trauma but not by repetitive activity with the wrist or even repetitive lifting. There is no relationship between his suggestion and the actual injury suffered. For that reason, the medical advisor's suggestion cannot be given material weight.
While the claimant expressed concerns about her right wrist in 1998, there is nothing on the record to document or suggest a traumatic injury at work to the right wrist which might have caused the TFCC. There is no report to the employer or the WCB of such a work related injury nor is there any indication of that type of work related injury in the medical reports provided to the panel.
The panel recognizes that the claimant's wrist is injured. However, on a balance of probabilities, it is unable to find a causal connection between a workplace injury and the claimant's right wrist condition. Accordingly, the appeal is denied.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of March, 2004