Decision #145/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held via teleconference on October 12, 2004, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits between June 11, 2002 and July 15, 2003; and

Whether or not the worker is entitled to wage loss benefits between September 10, 2003 and October 20, 2003.

Decision

That the worker is not entitled to wage loss benefits between June 11, 2002 and July 15, 2003; and

That the worker is not entitled to wage loss benefits between September 10, 2003 and October 20, 2003.

Decision: Unanimous

Background

In 1999, the worker submitted a claim to the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome which she related to her work activities in a poultry processing plant.

In March and April 2000, the worker underwent carpal tunnel releases to both hands.

The WCB accepted the claim for compensation and the worker was paid benefits and services which included vocational rehabilitation assistance. In March 2002, the worker's benefits were reduced based on an established earning capacity as the worker remained unemployed at the time she completed her vocational rehabilitation plan.

In 2002, the worker participated in a Functional Capacity Evaluation (FCE) to determine her work capabilities. Based on the FCE results and after consulting with the WCB's healthcare branch, it was confirmed that the worker's functional abilities fell within the occupational group set out in her rehabilitation plan. This decision was relayed to the worker in writing on June 4, 2002. The worker was also informed that wage loss benefits would be paid to June 4, 2002 as it was determined that she no longer had a loss of earning capacity. The WCB would, however, continue to monitor her ongoing medical status.

In a report to the family physician dated July 18, 2002, a plastic surgeon made the following comments:
"…I have offered her possible release of right carpal tunnel with neurolysis with the full understanding that there may not be much improvement after surgery. … I have told her that I will be happy to arrange for her surgery if it is okay with the Workers Compensation Board."
On August 7, 2002, the worker was assessed by a WCB psychological advisor with respect to her psychological status. The consultant's opinion with respect to a diagnosis was recorded as follows, "…a Major Depressive Episode - moderate to severe severity, without psychotic features. There are, as well, chronic adjustment-related issues associated with her carpal tunnel syndrome, family relational factors, family health issues, and family mental health issues."

In a further letter dated August 22, 2002, the WCB advised the worker that the WCB would cover the cost of medications related to her psychological condition until November 22, 2002. The WCB specified to the worker that her psychological components were being treated as a barrier to her recovery and were not compensable conditions related to her injury. The worker was advised that the WCB would not approve further surgery as it was the opinion of a WCB medical advisor that further surgery would likely result in minimal improvement and may even further aggravate her condition.

On September 27, 2002, the case was considered by Review Office at the worker's request. After considering all the information on file, Review Office rendered several decisions. The first decision was that the worker's average earnings should be $275.75 per week. Review Office found the weight of evidence supported that the average earnings were correctly established. The second decision rendered by Review Office was that the WCB should not authorize the repeat right carpal tunnel release. Given the worker's current circumstances and the difficulty in accurately determining the extent of her disability, Review Office stated there was no convincing reason to authorize repeat surgery at this time.

The third decision by Review Office was that the worker was not entitled to benefits after June 10, 2002. Review Office felt the weight of evidence supported that the worker was physically capable of working within the limitations placed upon her. Review Office further commented that the claimant's depression was non-compensable. It followed that if the worker was unable to work by reason of her depression, the worker was not entitled to receive wage loss benefits. Review Office noted the worker's contention that the side effects of her medication prevented her from work. Review Office found that the worker was taking a number of potent medications and that only some of them were related to her injury and that these did not preclude her from working. Therefore, Review Office felt she was not entitled to wage loss benefits on this basis.

On May 27, 2003, the treating plastic surgeon advised the WCB that the worker still had fairly symptomatic bilateral carpal tunnel syndrome and that she wanted to pursue surgical release in the near further. The surgeon noted that the worker was feeling much better and was off most of her medications for psychiatric problems. On June 3, 2003, the WCB accepted financial responsibility for the costs associated with the procedure. On July 15, 2003, right carpal tunnel release surgery was performed.

In a letter dated June 6, 2003, the WCB advised the worker that her benefits would be reinstated effective July 15, 2003 and would be paid during her recovery from surgery or to September 9, 2003. The worker would then return to her deemed earning capacity as set out in her vocational rehabilitation plan. This decision was confirmed in a subsequent letter dated September 11, 2003.

In a letter dated June 17, 2003, the WCB clarified to the worker that the recent authorization for surgery would not result in a retroactive reinstatement of benefits over the last year. "Medical information on file supports that regardless of the need for further surgery, your functional abilities allow you to work within the occupation group set out in your rehab plan."

In a follow-up report dated August 13, 2003, the treating surgeon reported that the worker felt much better and her symptoms had almost completely subsided. The surgeon suggested future surgery to the left hand and this was authorized by the WCB on September 12, 2003. Left carpal tunnel release later took place on October 21, 2003.

On September 24, 2003, the WCB advised the worker that her wage loss benefits would be reinstated effective October 21, 2003 and would continue to be paid during her recovery period. Following her recovery period, she would be returned back to her deemed earning capacity as set out in her vocational rehabilitation plan.

On October 31, 2003, the case was considered again by Review Office at the worker's request. Review Office determined that the worker was not entitled to receive wage loss benefits between June 11, 2002 and August 8, 2003. Review Office stated, "Notwithstanding that the claimant required repeat bilateral CTS repairs, Review Office considers that the reasons it gave in September 2002 for not extending wage loss benefits during the time period under review remain valid. As such, it confirmed its previous decision not to do so."

With regard to the claimant's entitlement to wage loss benefits between September 10, 2003 and October 20, 2003, Review Office agreed with the case manager's decision letter of September 11, 2003, i.e. that the worker had sufficiently recovered from her July 15, 2003 surgery to warrant a referral back to her previously established earning capacity.

On June 14, 2004, the worker appealed Review Office's decision of October 31, 2003 and an oral hearing via teleconference was arranged.

At the hearing held on October 12, 2004, it was agreed to by all parties that the first issue dealing with wage loss benefits between June 11, 2002 and August 8, 2003 should be amended to read "June 11, 2002 and July 15, 2003". The worker confirmed that benefits were re-instated on July 15, 2003.

Reasons

We were asked to decide whether the worker was entitled to wage loss benefits for the periods between June 11, 2002 and July 15, 2003 and between September 10, 2003 and October 20, 2003. For the appeal to be successful we must find that the worker was not able to work during the respective periods due to her workplace injury. We did not come to this conclusion.

The worker participated in the hearing by teleconference. As noted in the background, the worker had surgery for CTS on both right and left wrists which had been approved by the WCB. She noted that these surgeries performed in March and April 2000 were not successful. She also indicated that after the first surgeries she continued to have pain and could not use her hands. The worker required further surgeries on her wrists which took place in July and October 2003. These second surgeries were also approved by the WCB.

The worker advised that during the noted periods she was not employable. She described the physical symptoms which she experienced and the impact of the prescription drugs she was taking. She acknowledged that she was suffering from a psychological condition but felt this was directly attributable to the physical pain and mental stress due to the workplace injuries. She also described her participation in the WCB return to work program. She considered that the jobs which the WCB placed her in were not appropriate.

The worker consulted a second surgeon who sought authorization from the WCB to proceed with further surgeries to correct the worker's CTS. The WCB did not authorize the further surgeries at that time. A subsequent request was made in May 2003 and was approved by the WCB. The worker argued that she would have been back in the work force much sooner if the WCB would have authorized the second surgery when the surgeon first sought approval.

With respect to the period between September 10, 2003 and October 20, 2003, she notes that she was still recovering from the surgery on her right wrist and was not fit to return to the workforce.

The employer was represented at the hearing by a staff person. The employer representative supported the Review Office decision to deny benefits to the worker during the noted time periods and stated that the worker's psychological condition prevented the worker from obtaining employment, not the workplace injury.

Law and Policy

The worker is entitled to wage loss benefits if it can be shown that her loss of earning capacity during the two periods was caused by the workplace injury.

Subsection 39(2) of The Workers Compensation Act (the Act) provides that wage loss benefits are payable to a worker until the worker's loss of earning capacity ends.

The Board of Directors has made a policy for cases where a worker suffers from a psychological condition. Policy 44.20.60 provides that where the psychological condition is a result of an accident, the condition and its consequences are compensable.

Analysis

We found that the worker's loss of earning capacity was not due to workplace injury. In arriving at this decision we also found that the worker's psychological condition was not the result of an accident as defined in the Act.

We recognize that the first surgeries performed on the worker's wrist were not successful. However, this did not render the worker unemployable. After the first surgeries in 2002, a FCE was performed. It found that the worker was physically capable of performing certain work activities including lifting 25 pounds and carrying 20 pounds over 30 feet. Restrictions were placed on the type of employment that the worker could perform. She was provided with vocational rehabilitation including interview, job search and resume preparation workshops.

We also note that her new treating surgeon commented in a report dated July 18, 2002 that "I am quite surprised that she has not been able to return back to work for all this time." This suggests to us that he considered that the worker was fit for appropriate duties while waiting for the further surgeries.

Given the above evidence, we find that the worker was fit for employment with restrictions during the period from June 11, 2002 to July 14, 2003. The worker's loss of earning capacity during this time was not a result of the workplace injury.

During this time period the worker was diagnosed with major depression. The WCB did not consider this to be related to the injury but arranged for professional help as the condition was creating a barrier to the worker's return to employment.

We find the psychological condition was not the result of the accident. In reaching this decision we rely upon the opinion of the WCB's Psychological Advisor that there is no direct relationship between the worker's psychological condition and the worker's injury. To the extent that the psychological condition caused the worker to remain out of the workforce, her loss of earning capacity is not caused by the injury and no wage loss benefits are payable.

With respect to the period between September 10, 2003 and October 20, 2003 we find the worker was not entitled to wage loss benefits during this period. This period is between the second right wrist surgery and second left wrist surgery. We note the worker was paid wage loss benefits for a period of eight weeks commencing with the date of the right wrist surgery, July 15, 2003. In a report dated August 13, 2003 the operating surgeon noted that the worker feels much better and her symptoms have almost completely subsided. He also noted that she has full range of movement and grip strength is almost the same as the other hand. A report from her family physician dated August 20, 2003 notes that her right wrist is better with only some minor burning. We find that the worker was fit for employment within previously established restrictions during this time period.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 2004

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