Decision #135/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on August 26, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.Issue
Whether or not the claimant is entitled to wage loss benefits beyond August 19, 2002 in relation to the July 1, 2002 compensable injury.Decision
That the claimant is entitled to wage loss benefits beyond August 19, 2002 in relation to the July 1, 2002 compensable injury.Decision: Unanimous
Background
On July 1, 2002, the claimant was stepping onto the back of his tractor when his foot slipped off and he twisted his left shoulder while trying to hold onto the hand rail. Initial medical information received from two different physicians diagnosed the claimant with a left rotator cuff tendinopathy and a sprain of the left shoulder. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid.In a report dated August 6, 2002, the treating orthopaedic specialist noted that the claimant still complained of pain on elevation and rotation of his left arm. X-rays of the left shoulder were within normal limits. The claimant was advised to continue with his physiotherapy treatments and medications and to return to work on August 20, 2002.
On August 23, 2002, the claimant contacted the WCB to indicate that he did not return to work on August 20, 2002 as his truck was not ready and because his hand was becoming numb (tingling in his last 2 left fingers), just like it did following the accident.
In a report to the family physician dated September 16, 2002, a neurologist reported that in his opinion, the claimant had a mild left ulnar neuropathy. He noted that the claimant's symptoms were not in the distribution of the median nerve and he didn't think the diagnosis of carpal tunnel syndrome was tenable.
On September 6, 2002, the claimant was advised by the WCB that it would not be responsible for his claim beyond August 19, 2002. This decision was based on the opinion expressed by a WCB medical advisor who stated that the claimant had recovered from the effects of his shoulder injury and that his current symptoms and probable diagnosis of carpal tunnel syndrome was unrelated to his left shoulder injury.
In December 2002, an orthopaedic specialist advised the family physician that the claimant's symptoms and signs were consistent with irritation of the left ulnar nerve in the proximal forearm and hand and that the sensory component of the distal ulnar nerve appeared to be limited.
On January 29, 2003, the claimant underwent a left ulnar release. The post-operative diagnosis was left ulnar compression.
On February 11, 2003, a worker advisor provided the WCB with a report from a neurosurgeon dated January 15, 2003. The worker advisor contended that the neurosurgeon's report provided a medical opinion that a relationship did exist between the claimant's injury and his current ulnar symptoms.
On March 1, 2003, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor recorded the current diagnosis as being "focal compression L ulnar nerve at the elbow". And he felt that there was no cause and effect relationship between the diagnosis and the workplace injury of July 1, 2002. On March 3, 2003, the claimant was advised that no change would be made to the earlier WCB decision.
Nerve conduction studies were undertaken on March 10, 2003 and the left ulnar nerve across the elbow was considered to be in the moderate to moderately severe range. There was normal conduction through the brachial plexus and more proximally.
In a submission dated March 19, 2003, the worker advisor requested the convening of a Medical Review Panel (MRP) in accordance with section 67(4) of The Workers Compensation Act (the Act). On April 10, 2003, the request for a MRP was granted by primary adjudication and a MRP took place on September 15, 2003.
In a letter to the claimant dated October 23, 2003, primary adjudication stated, in part, "The Medical Review Panel indicated that the most probable diagnosis in relation to your left arm injury included; musculoskeletal injury to left shoulder involving mainly the rotator cuff and a traction injury to the left brachial plexus. The Medical Review Panel indicated that the etiology of the diagnosis of the ulnar neuropathy is unknown. The Medical Review Panel indicated that the surgery was in relation to the ulnar neuropathy." Based on all the information on file along with its interpretation of the MRP results, primary adjudication advised the claimant that his ulnar neuropathy surgery and loss of earnings after August 19, 2002, were not related to his July 1, 2002 accident. On November 24, 2003, the worker advisor disagreed with this decision and the case was forwarded to Review Office.
On December 19, 2003, Review Office noted that the reports on file received from the treating orthopaedic surgeon and physiotherapist together with the worker's own statement, confirmed that he was capable of returning to his pre-accident work as a truck driver by August 20, 2002. The MRP confirmed that the etiology of the claimant's left ulnar neuropathy was not apparent given the idiopathic onset of the condition. The MRP indicated that further treatment of the shoulder was warranted.
Based on the above evidence, Review Office stated it was unable to accept responsibility for the worker's left ulnar neuropathy, the condition which disabled him from work beyond August 19, 2002. Review Office accepted the recommendation by the treating orthopaedic surgeon who recommended physiotherapy directed towards the shoulder. Review Office clarified that the claimant was entitled to wage loss benefits while he attended physiotherapy treatments but such benefits were not to be paid retroactive to August 20, 2002 as the shoulder was not the reason for his ongoing disability. On June 22, 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
Reasons
According to the evidence submitted by the treating neurosurgeon, he suspected that the claimant sustained a brachial plexus injury with left ulnar nerve compression at the elbow. Nerve conduction studies administered on October 1, 2002 and March 10, 2003 revealed moderate to moderately severe focal ulnar neuropathy at the left ulnar groove.
On or about March 28, 2003, a discussion took place between a WCB adjudication supervisor and a WCB medical advisor regarding the claimant’s injury diagnosis and prognosis. The following is an excerpt of that discussion:
“It was noted that this gentleman was felt to have a traction injury. Dr. [medical advisor] explained that this means a ‘pull’ type of injury. Upon further review it was seen that Dr. [treating neurosurgeon] felt that the claimant’s ulnar problem could be related to the described mechanism of injury and Dr. [medical advisor] agreed that this hypothesis is plausible.
Dr. [medical advisor] explained that with a traction type of injury this could put a strain on the entire length of the nerve and that in this case a stretching of the nerve likely occurred at the site of the ulnar groove. He stated this could be verified by nerve conduction studies. We reviewed the NCS that had recently been obtained and they confirmed that this is where the slowing of the nerve impulses was. Dr. [medical advisor] then said that by transposing the nerve from the ulnar groove to a more medial position the tension that the nerve encounters would be removed and the nerve would function more properly. I then asked if this surgery is therefore reasonable for this type of injury. He confirmed that it was. I asked about a recovery time. Dr. [medical advisor] said that the longer it takes to have surgery performed in a case such as this the longer the recovery time will likely be.”
A MRP was convened on September 15, 2003. Following its examination of the claimant, the MRP responded to various questions that had been posed by the adjudication supervisor. The MRP was asked if any relationship exists between the worker’s diagnosed condition after August 22, 2002 and the injuries sustained as a result of the July 2002 compensable injury. The MRP replied as follows:
“There is a relationship because on August 22, the claimant had not fully recovered from either the musculoskeletal injury of the shoulder or from the traction injury to the left brachial plexus. The history as well as the physical findings supports (sic) this. The conditions have never gone away completely in that there continues to be stiffness of the shoulder as well as residual numbness and tingling in the hand stemming from a likely combination of brachial plexus injury and idiopathic onset of the ulnar neuropathy.”
In addition, the MRP also concluded that “the surgery of January 29, 2003 was a reasonable method of treatment for the ulnar neuropathy.”
After having considered all of the evidence, we find that the claimant had not fully recovered from the effects of his compensable injury by the time his benefits were terminated. In other words, we find that the claimant is entitled to wage loss benefits beyond August 19, 2002 in relation to the July 1, 2002 compensable injury. The claimant testified at the hearing that the accident employer required a written statement from a treating physician that the claimant could attempt a return to work doing flat decking before it would re-hire him. We note that the treating orthopaedic surgeon wrote a letter to the claimant’s attending physician on May 27, 2004 and indicated:
“He was wondering about returning to trucking. What happens to his neurological picture is difficult to predict and he can certainly consult with the doctors who did his surgery for him regarding the long term prognosis. I certainly don’t believe he will do any harm by trying to use this arm for work. The only problem is he may not be able to manage it and he won’t know unless he gives it a try. I would recommend a strengthening program concentrating on the external rotators to get the shoulder better balanced.” We certainly endorse the foregoing recommendation notwithstanding that the claimant was able to return to a trucking industry related job on July 27, 2004.
The claimant’s appeal is hereby allowed.
Panel Members
R. W. MacNeil, Presiding OfficerB. Popowich, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of October, 2004