The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 9, 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 worker is entitled to wage loss benefits beyond January 30, 2004.

Decision

That the worker is not entitled to wage loss benefits beyond January 30, 2004.

Decision: Unanimous

Background

In April 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report right and left hand difficulties that developed during the course of her employment as a production worker in a meat packing plant.

Medical reports on file confirmed that the claimant was diagnosed with bilateral carpal tunnel syndrome (severe on the right, mild on the left) and tendonitis. In September and November 2003, the claimant underwent carpal tunnel release surgery to both wrists, which was authorized by the WCB. On December 11, 2003 the claimant returned to modified duties following her second surgery.

On January 13, 2004, the claimant advised her case manager that she did not go into work as her left wrist was sore and she needed to see her doctor. The claimant commented that cafeteria work caused her wrist to become sore and that she wasn't happy with the visual inspection job as her neck was sore from sitting and looking up.

In a January 30, 2004 report, the treating physician stated, in part,

"…she has ongoing symptoms of numbness and tingling, and also pain. She has seen Dr. [neurologist] and basically according to his letter dated the 15th of January, the compression on both median nerves have been relieved. Also has seen Dr. [treating surgeon] and he is quite happy with the results of the surgery. States that she might have been having some bilateral tendinitis. Unfortunately she shows no improvement, she is not happy with the modified duties they are giving her at work and is requesting to be taken off work completely…"

On February 2, 2004, the claimant advised her case manager that she could not perform the visual inspection position as her hands were sore and she did not want to wear a sling which was suggested by the company nurse. The claimant voiced concerns that her shoulders were sore and that her wrist splints were too heavy. The worker commented that her compensable condition and child care issues were causing her problems with the alternate duties. The worker stated that the company nurse suggested that she apply for stress leave.

Following consultation with a WCB medical advisor on February 5, 2004, the WCB concluded that the alternate work offered to the claimant on January 30, 2004 met the restrictions in place at that time. Furthermore, the WCB was of the opinion the claimant had recovered from the effects of her workplace injury and could return to work with no restrictions.

In a submission to Review Office dated March 22, 2004, a worker advisor argued that the worker's right hand did not get better with surgery and that her left hand became worse and had been aggravated from cleaning tables at work. The claimant declined the visual inspection position due to fear of re-injury. Based on a report from the treating surgeon dated January 19, 2004, the worker advisor concluded that there continued to be a cause and effect relationship between the claimant's ongoing bilateral tendonitis and her February 6, 2003 compensable claim.

On May 14, 2004, Review Office determined that the claimant was not entitled to wage loss benefits beyond January 30, 2004, the day that she declined to perform the modified duties provided by her employer. Review Office was of the opinion that the job offered to the claimant, i.e. visually inspecting hogs, clearly respected any suggested restrictions with respect to her ability to work. Review Office also made reference to the opinions expressed by the claimant's attending neurologist and treating physician that the claimant's subjective complaints were not consistent with the results of diagnostic testing or the lack of objective findings found upon clinical examination. In September 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

At the time of her compensable injury, the claimant presented with what was diagnosed by her treating chiropractor as bilateral tendonitis and possibly carpal tunnel syndrome (CTS). Quite some time subsequent to her February 6, 2003 incident, the claimant developed arm, neck and shoulder difficulties that she believed to be as a consequence of the compensable injury.

After a thorough review of the file materials, we find, however, that the medical evidence does not substantiate the worker's stated arm, neck and shoulder difficulties, which she claims occurred while performing the alternate duties of a return to work program on or about January 12, 2004. In this regard, we note the total absence of any reference to these areas of difficulty in a January 15, 2004 consultation with her treating neurologist, in a January 19, 2004 office visit with her treating surgeon or in a January 30, 2004 appointment with her attending physician.

All of the treating physicians confirm that the claimant was capable of performing the assigned alternate modified duties. We further find that the claimant's wrist difficulties resulting from the compensable injury would not, on a balance of probabilities, prevent her from performing the visual inspection job (modified duties).

Therefore, we find that the worker is not entitled to wage loss benefits beyond January 30, 2004. 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 1st day of December, 2004