Decision #143/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 7, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 7, 2004 and again on September 23, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In May of 1999, the claimant submitted an application for compensation benefits with respect to pain in her right arm, wrist, elbow and shoulder that she attributed to her work duties as a "QC inspector". These difficulties occurred over a period of time.

On May 25, 1999, the claimant filled out a WCB questionnaire in relation to carpal tunnel syndrome (CTS) and she described her job duties as follows: "I check lottery tickets. They are folded like a fan and I rotate them as I check. I use both wrists but mostly my right hand & then put the tickets into boxes & then into a cart." The claimant noted that she has diabetes but has never had problems with her wrists until she started her job. The claimant smoked ½ package of cigarettes for 20 years and was not involved in any hobbies, crafts or sports. The claimant is right hand dominant. She is 5'3" and weighs 160 lbs.

In a sworn declaration dated June 18, 1999, the claimant's supervisor provided the WCB with further details regarding the claimant's job duties, which involved the use of both wrists and arms. At the end of April, 1999, the claimant reported that her right wrist and arm were bothering her and she thought this was work related.

Following consultation with the WCB's healthcare branch on June 28, 1999, primary adjudication denied the claim as the diagnosis of CTS could not be confirmed based on the available medical information.

In a report dated July 19, 1999, the treating neurologist stated, in part, "Clinically, this appears to be carpal tunnel syndrome as well as lateral epicondylitis. This could be aggravated by work, but her symptoms still continue in spite of the fact that she stopped working over two months ago. The diabetes may be a pre-existing or pre-disposing factor but not necessarily the sole cause of her symptoms."

Nerve conduction studies taken on August 3, 1999 indicated the following: "There is no evidence of carpal tunnel syndrome or a more proximal lesion on this electrophysiologic study. There is, however, evidence of mild bilateral focal ulnar neuropathy at the level of the elbow including the ulnar grooves. These studies do not show any evidence of diabetic neuropathy."

On August 18, 1999, the WCB further confirmed to the claimant that a relationship could not be established between her bilateral wrist and arm symptoms and her employment activities. The WCB considered the opinion expressed by a WCB medical advisor when reaching its decision, namely, that there was no evidence of CTS and that the possible diagnosis of ulnar neuropathy was not considered to be related to the claimant's employment activities.

On January 28, 2000, the case was considered by Review Office following receipt of an appeal from the claimant. Review Office subsequently arranged for the claimant to be examined by a WCB medical advisor to confirm a diagnosis. The examination took place on February 28, 2000. Review Office also consulted with a WCB orthopaedic consultant on March 6, 2000.

In a decision dated March 10, 2000, Review Office outlined its opinion that the claim for compensation was not acceptable. Review Office accepted the opinions expressed by the examining WCB medical advisor and the WCB orthopaedic consultant that it was difficult to relate the worker's ongoing symptoms to her activities at work.

In January 2004, a worker advisor, acting on behalf of the claimant, appealed Review Office's decision and requested an oral hearing. The worker advisor subsequently provided the Appeal Commission with further medical information, which consisted of a report dated October 22, 2003 from the claimant's family physician. On July 7, 2004, an oral hearing took place to consider the appeal.

Following the hearing and after discussion of the case, the Panel requested additional information be obtained from the claimant's treating neurologist. On September 13, 2004, all interested parties were provided with copies of the neurologist's reports and were invited to provide comment. On September 23, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
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
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises
      out of, and in the course of, employment, and
  3. an occupational disease
    and as a result of which a worker is injured."

After thoroughly reviewing all of the evidence, we concur with the medical findings reached by the WCB medical advisor and recorded in his examination notes of February 28, 2000.

“On the basis of today’s examination there is no clinical evidence of carpal tunnel syndrome on either side and no evidence of a medial or a lateral epicondylitis. The main findings on today’s examination were rather diffuse tenderness in the deltoid/trapezius area, the upper triceps area and the flexor and extensor muscle mass of the forearm. No trigger points or taut bands were demonstrated on today’s examination. There was no clear-cut neurological loss and no myotomal or dermatomal pattern of referral of paraesthesia.

On the basis of today’s examination, therefore, there was little to support a myofascial regional pain disorder for the forearm. A clear-cut diagnosis was difficult to obtain on today’s examination, other than diffuse muscle pain. On this basis, it is difficult to relate the ongoing problems to the work duties described.”

These findings remained consistent and were later confirmed by the treating neurologist in his April 8th, 2000 letter to the attending physician:

“Neurologic exam is normal except for slight tenderness over the ulnar nerve. Tinel’s sign is not present and there is no weakness or sensory loss in the hands. The circumference (sic) of her wrists are 61/8 inch on the right and 63/8 inch on the left. This is quite similar to that of July 1999. Her reflexes are equal and the rest of the neurologic exam was normal. I don’t feel that there is any significant problem at this point.”

It is apparent that there is no clear cut diagnosis which can be causally related to her job duties. The preponderance of evidence has lead us to conclude that the claimant’s ongoing difficulties are not, on a balance of probabilities, as a consequence of her work activities. There being no accident as defined by the Act, we, therefore, find that the claim is not acceptable. Accordingly, the claimant’s appeal 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 26th day of October, 2004

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