The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 15, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not there is entitlement to payment of wage loss benefits beyond April 22, 2002; and

Whether or not responsibility can be accepted for the surgical procedure of March 25, 2003.

Decision

That there is no entitlement to payment of wage loss benefits beyond April 22, 2002; and

That no responsibility can be accepted for the surgical procedure of March 25, 2003.

Decision: Unanimous

Background

In February 2002, the worker filed a claim with the Workers Compensation Board (WCB) for left forearm, wrist and finger difficulties that he related to his employment activities of using a mouse and keyboard at work. Based on medical reports on file, the worker was diagnosed with left carpal tunnel syndrome (CTS). The claim for compensation was initially denied by primary adjudication and Review Office as it was felt that the worker's job duties did not contribute to the development of his CTS condition. This decision was later overturned by the Appeal Commission under Decision No. 60/04. The Panel determined that the repetitive nature of the worker's job activities aggravated his pre-existing median nerve neuropathy. The decision was based on a review of the medical information on file which included a Medical Review Panel (MRP) report dated October 15, 2003. The claim was then referred back to the WCB to determine the worker's entitlement to wage loss benefits.

On July 22, 2004, primary adjudication advised the worker that he was entitled to wage loss benefits between February 21, 2002 and April 22, 2002 inclusive. Based on medical reports by the worker's plastic surgeon dated April 22, 2002 and July 5, 2004, it was determined that the worker had recovered from the aggravation of his pre-existing condition as of April 22, 2002.

In December 2004, a worker advisor, acting on the worker's behalf, expressed her view that the worker was entitled to benefits beyond April 22, 2002. The worker advisor contended that benefits should be issued, at the very least, to the date of the MRP as the MRP determined that the worker had not yet recovered from the aggravation of his pre-existing condition.

In a letter to the worker advisor dated December 23, 2004, an adjudication supervisor stated that he was unable to issue benefits to the worker beyond April 22, 2002. The supervisor referred to the report by the worker's treating specialist dated April 22, 2002 which indicated that the worker's left hand/wrist symptoms were mild and that he tested positive for thoracic outlet syndrome and should remain off work for the next month. At the August 19, 2002 examination, the specialist noted that the worker's left hand/wrist condition was worse compared to the previous examination of April, 2002. The worker acknowledged that he did not perform activities that would stress/aggravate his wrist/hand symptoms between the two examinations. The supervisor concluded that the worker had sufficiently recovered from the aggravation to the point that he would have been capable of returning to work effective April 23, 2002.

On January 5, 2005, the worker advisor appealed the WCB's decisions of July 22 and December 23, 2004. The worker advisor felt that the rationale used by the WCB in its decisions was not in compliance with the Appeal Panel's ruling or Board policy. The worker advisor summarized her appeal by stating that the worker was entitled to wage loss benefits up to the date of the Appeal Panel's May 6, 2004 decision. She also contended that further adjudication was warranted given the surgical intervention that followed the hearing, which was unavailable evidence to the MRP and the Appeal Panel.

In a decision dated January 15, 2005, Review Office confirmed that the worker was not entitled to payment of wage loss benefits beyond April 22, 2002 and that no responsibility could be accepted for the surgical procedure of March 25, 2003. Review Office noted that the worker's treating physician sent him off work because of his thoracic outlet syndrome and not because of any wrist difficulties and that he was appropriately compensated for the aggravation identified as emanating from his workplace.

Review Office did not accept that the surgical procedure of March 25, 2003 was necessary to cure and relieve the worker from the "at work" aggravation. Review Office noted that the findings at surgery were purely pre-existing and arose from scarring from the first CTS surgery that was non-compensable. Review Office stated there were no findings of recent origin which could be construed to be part of the aggravation accepted under this claim. On January 26, 2005, the worker advisor appealed Review Office's decisions and an oral hearing was convened.

Reasons

There were two issues before the Panel. The first issue was whether the worker is entitled to payment of wage loss benefits beyond April 22, 2002. For this appeal succeed, the Panel must find that the worker suffered a loss of earning capacity after this date due to his workplace injury. In other words, did the worker's workplace injury and/or its relationship to the worker's pre-existing condition prevent the worker from working? The Panel found that the worker's workplace injury did not prevent him from working.

The second issue was whether responsibility can be accepted for the surgical procedure of March 25, 2003. For the appeal of this issue to succeed the Panel must find that the worker's workplace injury enhanced the worker's pre-existing condition. The Panel found that the worker's workplace injury did not enhance the pre-existing condition to the point that surgery was required. The Panel finds that responsibility should not be accepted for the surgical procedure.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the Panel.

The worker described the condition of his hand at this time. In answer to questions, the worker advised that his condition worsened between 1998 and 2002 when he laid off work. He also advised that from 2002 to 2003 it remained about the same. Since the surgery in 2003, he advised "It's the same and even worse."

The worker advised that after leaving his accident employment in 2002, he worked in a position at a park. He had previously worked in this position in 1998. He described his duties as involving a lot of public relations with incoming traffic. He spoke with visitors, collected fees and distributed information. This job lasted approximately nine weeks. He has not worked since. He stated he was not able to return to this position because his condition was bothering him more.

The worker's representative submitted that the weight of evidence confirms the worker's median neuropathy had not resolved as of April 23, 2002. She stated that the medical reports confirmed that as conservative treatment was not effective in resolving the ongoing symptomatology, surgical intervention was necessary. She noted that the MRP confirmed that the symptoms from the worker's median neuropathy had not resolved and that it was in part caused by his work duties. The representative submitted that the workplace injury enhanced the worker's pre-existing condition. She referred to Board Policy 44.10.20.10, Pre-existing Conditions, and submitted that because the worker's increased median neuropathy was caused in part by his workplace injury, the worker is entitled to wage loss benefits as long as his loss of earning capacity continues.

Analysis

Issue 1

The worker has asserted that he could not work because of the impact of his workplace injury on his pre-existing condition and therefore sought wage loss benefits. After considering all the evidence, we find, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond April 22, 2002. We find that the worker has not suffered a loss of earning capacity as a result of his workplace injury.

The evidence on file confirms that the worker's pre-existing condition had been present and worsening since 1998, approximately 3 years before he started working for the accident employer. We find that any inability to work after April 22, 2002 was due to the pre-existing condition and not the work injury which aggravated the pre-existing condition. We find that the aggravation did not prevent the worker from working after April 22, 2002.

We note that the evidence establishes that the worker was capable of working after April 22, 2002 and in fact did work at a position that paid more than his accident employment. For approximately nine weeks in the summer of 2002, the worker worked at a park in a position which required little use of his hand. While the worker told us that he could not return to this work because his condition was bothering him more, the MRP report notes that the worker performed these duties without stressing his arm or hand.

We also note that the treating specialist reported on April 22, 2002 that the worker tested strongly positive for thoracic outlet syndrome (not related to the compensable injury) and recommended that the worker remain off work for the next month until the shoulder girdle developed greater strength.

Finally we note there are other non compensable conditions which may impact the worker's ability to work and which we consider are more likely the cause of any loss of earning capacity. These include psychological and physical problems arising from an unrelated accident.

The worker's appeal on this issue is declined.

Issue 2

The second issue before the Panel was whether responsibility should be accepted for the neurolysis of the median nerve which was performed on March 25, 2003.

The MRP found that the worker's symptoms were due to a median nerve neuropathy probably related to his prior surgery or his prior carpal tunnel injury. The MRP found a relationship between the worker's pre-existing condition and workplace injury, specifically that the condition was aggravated by the repetitive nature of the worker's employment.

We rely upon the MRP's findings that the worker's condition was aggravated by his employment. We find that the worker's pre-existing condition was not permanently enhanced by the workplace injury and that surgery was not required as a result of the workplace injury.

We also rely upon the opinion of the WCB orthopaedic consultant in a memo dated January 14, 2005. The orthopedic consultant stated that:

"The claimant's surgery of May 1/03 (sic - date of surgery was actually March 25, 2003) was a neurolysis of the L median n. for a focal neuropathy of the nerve due to intra neural scarring which was a result of his prior surgeries for CTS. Symptoms as a result of this would have been present whether working or not & there is a history of this being the case prior to his employment & in my opinion his work did not materially affect the condition."

In making this decision we also place significant weight upon the treating specialist's report of May 1, 2003 which notes there was an approximately three cm segment of very ischemic looking nerve which was scarred and white in the region of the previous carpal tunnel. The report notes that the compression was likely in the form of scarring. This supports our conclusion that the surgery was not required as result of the workplace injury but was due to the pre-existing condition.

Accordingly, we find that responsibility should not be accepted for the surgical procedure of March 25, 2003. The worker's appeal on this issue is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of July, 2005