The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 25, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being March 23, 2004.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act; and

Whether or not the claim is acceptable.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of The Workers Compensation Act; and

That the claim is not acceptable.

Decision: Unanimous

Background

In March 2001, the claimant filed a claim with the Workers Compensation Board (WCB) for ulnar nerve entrapment at the left elbow which he felt was caused by his employment activities. In a letter attached with his application, the claimant described his difficulties as follows:

“On Friday, December 8, 2000 I noticed numbness in the little finger and half of my ring finger on my left hand which has not gone away since. On the Monday following I called for an appointment with my regular doctor (name) because my hand had not improved. This concerned me because in the past I had only felt this sensation when working with some equipment at (employer).”

The claimant outlined the type of work duties he performed which included jackhammering, shotblasting, cutting with slab saws, etc.

On March 4, 2001, an orthopaedic surgeon reported that the claimant was seen at his office on February 26, 2001 because of ongoing symptoms of numbness and tingling in his left hand. He noted that the claimant worked as a concrete cutter since 1995 and that he had been laid off from his job in November 2000. EMG studies done on February 5, 2001 showed “left ulnar neuropathy at the elbow joint.” The surgeon opined that since the claimant used to work as a concrete cutter which involved repetitive movement and vibration at the elbow, his condition appeared to be job related.

In a letter dated April 12, 2001, the employer’s advocate commented that the claimant suffered some sort of injury to his left arm on or near December 9, 2000, however his employment with the company ended on November 3, 2000. Prior to that time he did not report a left arm injury or any other disability to his employer nor did he make any complaints to any co-workers. The advocate was of the opinion that there was no clear cause and effect relationship between any disability and the claimant’s employment with the company and that the claim should be denied.

On August 9, 2001, the claimant was advised by primary adjudication that it was unable to establish that an accident as described under Section 1(1) of The Workers Compensation Act (the Act) occurred while in the employment of the accident employer and therefore his claim was denied. Primary adjudication cited the following factors in denying the claim:

• that there were no witnesses or time frames to verify the claimant’s complaints
• his symptoms began 3-4 weeks after his employment was terminated
• prior to his last day of work he was asymptomatic
• the majority of his job duties involved both hands, however only his left extremity was reported to be effected
• there had been no evidence of an increase or change in his work duties over the last 12 months.

On November 27, 2001, a worker advisor, acting on behalf of the claimant, presented Review Office with information to support her position that the worker’s claim for compensation was a just one. The claimant provided Review Office with his submission dated November 30, 2001.

On December 14, 2001, Review Office confirmed that the evidence did not establish that the claimant suffered a personal injury by accident arising out of and in the course of his employment and that the claim was not acceptable. Review Office’s opinion was that the claimant did not inform his employer of any symptoms nor did he seek medical attention during the period he was employed. Review Office placed weight on the opinion expressed by a WCB orthopaedic specialist who concluded that this was not a vibratory problem and that a causal relationship had not been established between the claimant’s left arm condition and his job duties.

In a letter dated February 5, 2002, the worker advisor requested Review Office to clarify its rationale for the decision rendered on December 14, 2001. Review Office responded to the claimant’s request on February 22, 2002.

On June 26, 2002, the worker advisor requested Review Office to review the case once again as new and additional medical reports had now been provided by a neurologist dated April 9, 2002 and May 28, 2002. The worker advisor contended that the weight of evidence confirmed that the claimant did sustain personal injury by accident arising out of and in the course of his employment and that the onset of his symptoms occurred while at work and were not ruled out by secondary causes. The worker advisor was of the opinion that the nature of the claimant’ work duties were known to cause this type of repetitive strain injury and that the new medical information reaffirmed her contention.

In a decision dated October 18, 2002, Review Office determined that no change would be made to its previous decisions dated December 14, 2001 and February 22, 2002. Review Office stated, in part, that the ulnar neuropathy was not a repetitive strain injury and that the ulnar neuropathy was caused by pinching or pressure on the ulnar nerve. There was no evidence to suggest that the claimant’s work activities were causal in the development of this condition.

On December 16, 2002, the worker advisor stated that she did not concur with Review Office’s decision and that she was not satisfied by the rationale, due to the treating specialists’ contrary opinions documented on file. The worker advisor requested primary adjudication to convene a Medical Review Panel (MRP) to resolve the difference of opinion between the WCB’s medical consultants and the claimant’s specialists.

In a response dated December 24, 2002, the supervisor in short terms claims advised the worker advisor that her request for an MRP was denied. The supervisor stated, in part, that there “…must be medical evidence provided by the worker’s attending physician that directly contradicts the medical opinion of the WCB medical advisor. A full explanation of why the attending physician disagrees with the WCB Medical Advisor should also be offered. At present, this is not on the file. For this reason, a Medical Review Panel cannot be convened.” The supervisor also commented that it was the Review Office’s opinion that the development of the claimant’s arm condition a number of weeks after his layoff does not allow the WCB to establish a relationship between his work activities and his condition. As such the claim decision was upheld. On January 8, 2003, the worker advisor appealed this decision to Review Office.

In a response to the worker advisor dated March 17, 2003, Review Office stated that it was unable to grant the MRP based upon the medical opinions presented as it had not been established adjudicatively that the worker had any symptoms prior to seeking medical attention on December 12, 2000.

On May 2, 2003, the worker advisor submitted an Application to Appeal to the Appeal Commission with respect to Review Office’s decisions of March 17, 2003, October 18, 2002, February 22, 2002 and December 14, 2001. On September 18, 2003, the worker advisor submitted additional articles/reports for consideration and on September 25, 2003 an oral hearing was held at the Appeal Commission.

Following the hearing and discussion of the case, the Panel determined that additional information was required prior to discussing the case further. On November 21, 2003, an independent specialist attended the Appeal Commission to speak with the Panel about the etiologies of cubital tunnel syndrome. A copy of the transcript was then distributed to the interested parties for comment.

On December 22, 2003, the Panel met further to discuss the case and determined that a worksite visit was warranted to review the job duties/equipment that the claimant utilized as an Equipment Operator and to which he felt had led to his left elbow difficulties. The Panel observed the following work duties that the claimant had performed: shotblaster; slab sawing; and core drilling. The employer also provided the Panel with a training videotape which was shared with the claimant and his worker advisor to review. On January 22, 2004, all parties were asked to provide the Panel with written comments concerning the worksite visits and the videotape evidence.

In a submission dated February 16, 2004, the worker advisor provided the Appeal Commission with written comments which had been prepared by the claimant regarding the worksite visits and videotape evidence. On February 23, 2004, the employer’s advocate was given the opportunity to provide final comments with respect to the information contained in the claimant’s letter. On March 22, 2004, the employer’s advocate provided the Panel with its final submission. On March 23, 2004, the Panel met to render its final decisions on the issues under appeal.

Reasons

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

As to this issue, after having thoroughly considered all of the evidence, we find that the claimant’s ulnar neuropathy did not, on a balance of probabilities, arise out of and in the course of his employment. We attached substantial weight to the opinions expressed by the independent neurologist as well as our observation of the work duties at the various work sites. Inasmuch as there was no accident resulting in injury as required by the Act, we further find that the claim is therefore not acceptable. Accordingly, the worker’s appeal is hereby dismissed.

As the background notes indicate, the claimant’s worker advisor has also requested pursuant to section 67(4) of the Act that a medical review panel (MRP) be convened. This section states as follows:

“Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.”

The worker advisor contends that there is a clear difference of medical opinion between the claimant’s treating physicians and the WCB’s medical advisors and thus the requirements of the above section have been satisfied, which would entitle the worker to request the convening of an MRP. However, it is extremely important to note that the claimant’s actual job duties and the way in which these duties are actually being executed is far different from the description/information that had been provided to the treating physicians. There is no common point of reference from which a difference of medical opinion can be established which is required by the expression “a full statement of facts”.

Inasmuch as the treating physicians’ opinions are not based on “a full statement of facts”, we find that the requirements of section 67(4) of the Act have not been met. Therefore, there is no entitlement to the convening of a medical review panel. Accordingly, the claimant’s appeal with respect to this issue as well is hereby dismissed.

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 7th day of May, 2004