The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 4, 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 responsibility should be accepted for the claimant's right wrist complaints;

Whether or not responsibility should be accepted for the Dupuytren's nodules on the claimant's right palm; and

Whether or not the claimant is entitled to payment of wage loss benefits after January 14, 2003.

Decision

That responsibility should be accepted for the claimant's right wrist complaints;

That responsibility should not be accepted for the Dupuytren's nodules on the claimant's right palm; and

That the claimant is entitled to payment of wage loss benefits after January 14, 2003.

Decision: Unanimous

Background

While employed as a nursing assistant on June 5, 2002, the claimant's right thumb was bent backwards when he tried to prevent a "violent" patient from leaving his department.

In an operative report dated June 5, 2002, it was recorded that the claimant had fallen on his thumb at the time of his work accident which caused an abduction injury to his thumb at the MCP (metacarpophalangeal) joint. The pre-operative diagnosis was "avulsion fracture gamekeeper's thumb right hand" and the operative procedure "open reduction and K-wire fixation with fluoroscopy control" was performed. This surgery was authorized as a Workers Compensation Board (WCB) responsibility.

In a follow-up report dated July 16, 2002, the treating surgeon noted that the claimant's recovery from surgery was satisfactory but slow because of pain. Note was made that the claimant had a small ganglion on the dorsum of his right hand over the index extensors; and a small area of thickening on the palm of his right hand over the fourth metacarpal which was thought to be "early Dupuytren's".

In a progress report dated July 26, 2002, the family physician noted that the claimant complained of pain and swelling of his thumb along with pain in his right wrist. On August 8, 2002, a WCB medical advisor commented that he could not find evidence in the reports to suggest any wrist injury at the time of the claimant's accident.

On October 22, 2002, the family physician added the following diagnoses to the claimant's medical status: pain on the right wrist, numbness of the right thumb, post traumatic tendonitis, disturbed sleeping pattern and gastritis.

In a November 27, 2002 report, a plastic surgeon noted that the claimant had a previous ulnar collateral ligament injury of his thumb and that this appeared to have healed well and was solid. The claimant had good range of motion but he still had tenderness in the area of his operative site. Nodules were identified in the palm at the base of the claimant's middle and ring fingers. The claimant was also noted to have an older injury to his right wrist and the specialist questioned whether this was an old scaphoid ligamentous injury.

On December 9, 2002, a WCB medical advisor reviewed the file at the request of primary adjudication and expressed the following opinions:

• the claimant made a good recovery from his ulnar collateral ligament repair;
  
  
• the Dupuytren nodules would not be related to the injury and were pre-existing conditions;
  
  
• a review of the accident mechanics were in keeping with injury to the thumb as documented. There would be no relationship or causation associated with the wrist scaphoid lunate ligament injury;
  
  
• the old wrist injury was non-compensable and was not related to the present injury.

On January 9, 2003, primary adjudication informed the claimant that payment of his wage loss benefits would end on January 14, 2003. After review of the medical information on file which included the WCB medical advisor's opinion of December 9, 2002, it was determined that the claimant had recovered from the effects of his work injury and that he could return to work. It was also determined that the nodules and old wrist injury were not related to the June 5, 2002 work injury and that these conditions were preventing the claimant from returning to work.

On January 16, 2003, the claimant asked the WCB to reconsider the above decision. The claimant contended that the pain in his right wrist and nodules on the palm of his right hand were noticed after his cast had been removed and that neither condition was present before his June 5, 2002 accident. The claimant argued that even if there was an old injury to his right wrist, it had been reactivated by his June 5, 2002 work injury.

The file contains follow-up reports from the claimant's family physician as well as from his treating plastic surgeons. A submission was received from the employer's representative dated March 3, 2003 which supported the WCB's position that the claimant had recovered from the effects of his work injury and that he was not entitled to further wage loss benefits.

On June 13, 2003, Review Office rendered the following decisions:

• That no responsibility would be accepted for the claimant's right wrist complaints.

Review Office referred to file evidence which showed that the claimant injured only his right thumb at the time of his June 5, 2002 work accident and that there was no evidence of an injury occurring to his right wrist or evidence of an 'aggravation' of any pre-existent injury at the time of his accident.

• That no responsibility would be accepted for the Dupuytren's nodules on the worker's right palm.

Review Office accepted the opinion expressed by a WCB medical advisor that the nodules were pre-existent and were not related to the compensable work injury.

• That the claimant had recovered from the effects of his right thumb compensable injury and was able to return to his pre-accident employment insofar as this injury was concerned and that he was not entitled to wage loss benefits after January 14, 2003.

Review Office was of the view that the claimant had recovered from his "avulsion fracture gamekeepers right thumb" based on the opinions expressed by the claimant's treating surgeons dated November 27, 2002 and January 8, 2003.

On February 10, 2004, a union representative, acting on behalf of the claimant, provided Review Office with additional medical reports for its consideration. The union representative's position was that the new medical reports supported that the claimant's compensable injury caused, on a balance of probabilities, an enhancement of a previous injury/condition.

On February 18, 2004, Review Office asked a WCB orthopaedic consultant to review the new medical reports and to provide an opinion "…on the possible or causal relatnship (sic) between the 'nodules', & 'scapholunate injury' - to the workplace event of June 2002, or to the related compensable surgery (to thumb) and/or splint?" The consultant's response to Review Office is dated February 23, 2004.

In a decision dated February 27, 2004, Review Office confirmed its previous decisions of June 13, 2003. In brief, Review Office felt there was no evidence that the claimant suffered an injury to his right wrist on June 5, 2002; that no information was provided by the claimant's advocate to establish a direct cause and effect relationship between the nodules on the worker's palm that appeared six weeks post-accident and his compensable right thumb injury; and that there was no new evidence to establish that the worker had not recovered from his right thumb compensable injury or that he was entitled to wage loss benefits after January 14, 2003.

On March 15, 2004, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant suffered a fracture of the right thumb metacarpal on or about June 5, 2002. He subsequently underwent surgery that same day for what was described by the surgeon as "an avulsion fracture gamekeeper's thumb right hand". Following the operation, the claimant's hand was placed in a cast. It should be noted that the claimant's right wrist symptoms became immediately apparent upon the removal of the cast. For this reason, the fact that there was a delay in the claimant's reporting of wrist symptoms becomes less critical in our view.

The claimant provided a very thorough demonstration of how the compensable injury exactly occurred. During the course of this demonstration, it became readily apparent that the wrist had been subjected to considerable bending stress while being in an extremely awkward position. Based on the weight of evidence, we find that the claimant's ongoing symptomology was, on a balance of probabilities, directly related to his compensable incident.

As to the second issue under appeal, we carefully reviewed all of the evidence. We agree with the analysis and conclusions of the WCB orthopaedic consultant recorded in his memo of February 23, 2004 and conclude that there is no pathological link between the claimant's compensable injury and his Dupuytren's nodules. Therefore, responsibility should not be accepted for the Dupuytren's nodules on the claimant's right palm.

We note that the claimant's treating orthopaedic surgeon had examined him on June 16th, 2003. At that time, the claimant had declined further surgery and had indicated that despite his ongoing pain he was able to return to work. However, the employer insisted on medical clearance prior to its allowing the claimant to return to work. As such, the claimant's willingness to return to work was not sufficient to trigger a termination of benefits as of June 16th, 2003. In the meantime, the evidence disclosed that the claimant had been involved in an intervening non-compensable motor vehicle accident on August 1st, 2003 for which he received ongoing medical treatment and which in effect delayed his returning to work. We note that the claimant was not, however, able to obtain the medical clearance for the employer until August 25, 2003. The medical clearance provided at that time was for both the motor vehicle accident and the compensable injury. Based on the weight of evidence, we find that the claimant could have been, on a balance of probabilities, cleared for a return to work on August 1st, 2003 if the intervening non-compensable motor vehicle accident had not occurred.

Therefore, in light of our determination with respect to the first issue, we further find that the claimant is entitled to payment of wage loss benefits after January 14, 2003 and continuing on thereafter up to but not including August 1, 2003, which is the date of the claimant's intervening non-compensable motor vehicle accident.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of November, 2004