The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Ins An Appeal Panel hearing was held on July 12, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on July 12, 2005 and again on October 25, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond June 23, 2004.

Decision

That the worker is not entitled to wage loss benefits and services beyond June 23, 2004.

Decision: Unanimous

Background

In January 2002, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome (CTS) which she attributed to the nature of her job duties as "ticket inspector". The claim for bilateral CTS was accepted by the WCB and benefits were paid accordingly.

Over the course of the claim, the worker underwent right carpal tunnel decompression and pulley reconstruction on May 2, 2002, carpal tunnel release to the left wrist on October 31, 2002 and repeat right carpal tunnel release on January 18, 2003. In March 2003, the worker returned to modified duties with restrictions. On April 14, 2003, the employer advised the WCB that modified duties were no longer available.

In a report to the WCB dated August 19, 2003, the treating surgeon indicated that the worker underwent nerve conduction studies on July 22, 2003 which revealed moderate slowing in the right median motor and sensory nerves across the wrist consistent with median neuropathy. The surgeon indicated that the results were marginally better than the test of December 2, 2002, but clinical correlation with her strength, Tinel's sign and ongoing symptoms suggested that the worker would unlikely be able to return to her original type of work. The surgeon was of the view that further surgery would not be of benefit and that it was possible that her compression neuropathy was as good as it was likely to get. A referral was made to a hand specialist for a second opinion regarding the worker's ability to return to work without wrist support.

In a letter to the treating surgeon dated September 29, 2003, a hand specialist and a rheumatologist indicated that the worker had a fairly strong positive Tinel's sign but there was no evidence of any motor wasting or weakness in the thenar suggesting only partial damage. The worker was considered positive for thoracic outlet syndrome.

In a report dated October 14, 2003, the treating surgeon indicated that the worker continued to have pain in the forearm along with weakness. He stated that the hand specialist confirmed the worker had elements of thoracic outlet syndrome plus or minus compression in the cervical nerve roots. He stated that the worker had been referred to a neurologist for further workup of her neck and that a CT scan was ordered. The surgeon concluded that the worker's wrists had healed satisfactorily with probable persisting fibrosis in the nerve in a patchy inter-neural fashion. Further surgery in the wrist would not likely improve this.

A CT of the cervical spine dated November 13, 2003 revealed no evidence of focal disc herniation or nerve root compression.

In a March 8, 2004 report, the hand specialist noted that the worker continued to have symptoms referable to her right median nerve. She also had evidence of bilateral intermittent cubital tunnel syndrome.

In a report dated April 5, 2004, the hand specialist noted that recent nerve conduction studies (NCS) showed that there was still some median nerve compression on both sides and that the right side had become more symptomatic over the last two months with persistent night pain. Further exploration and neurolysis was suggested.

On April 24, 2004, an MRI of the cervical spine revealed minor disc bulge at C5-6 and C6-7 levels and a small disc herniation at T5-6.

Nerve conduction studies results dated March 24, 2004 revealed "…moderate slowing in median motor and sensory conductions across the wrists bilat [sic], not significantly changed from test of July 2003. This is consistent with bilateral median neuropathy at the wrists and could simply be a residual from prior CTS. Clinical correlation required for diagnosis of ongoing CTS. Left ulnar nerve study is normal."

A WCB medical advisor examined the worker on May 17, 2004.

In a decision letter to the worker dated June 9, 2004, a WCB case manager noted that the examining medical advisor could find no reliable objective evidence to support any workplace restrictions whatsoever. Based on the weight of medical evidence, including history of injury, diagnosis, expected symptom duration, subsequent investigations, and lack of current clinical findings, it was the case manager's opinion that the worker had sufficiently recovered from her workplace injury to return to work. Based on subsection 39(2) of The Workers Compensation Act (the Act), he stated that wage loss benefits would be paid to June 23, 2004 inclusive and final.

On October 21, 2004, a worker advisor appealed the above decision to Review Office. The worker advisor submitted that there was no requirement for objective evidence of disability as a prerequisite for WCB benefits. The worker advisor referred to medical reports on file dated July 22, 2003, August 19, 2003, April 5, 2004, March 24, 2004 and June 21, 2004, which he felt provided sufficient 'objective' evidence to support that the worker continued to remain totally disabled from her regular duties.

On February 22, 2005, Review Office determined that the worker had recovered from the effects of her compensable condition and that she was not entitled to wage loss benefits and services beyond June 23, 2004. Review Office outlined its opinion that there was insufficient evidence to support the contention that the worker's ongoing hand complaints were, on a balance of probabilities, related to the compensable injuries incurred in the workplace.

On July 12, 2005, an Appeal Panel hearing took place at the worker advisor's request. Following the hearing and after discussion of the case, the Appeal Panel decided to have the worker examined by an independent third party medical examiner prior to determining the issue under appeal. An independent neurologist examined the worker and his report to the Appeal Panel is dated September 20, 2005. The neurologist's report was forwarded to the interested parties for comment. On October 25, 2005, the Panel met to render its final decision.

Reasons

As the background notes indicate, the worker was examined by a WCB medical advisor on May 17, 2004. He recorded the following comments in his examination notes which we considered to be rather significant:

"This 34-year-old right handed female presents with longstanding pain and sensory symptoms in her right wrist and hand. The only improvement following two carpal tunnel decompressive (sic) surgeries is the elimination of significant night time symptoms. Today's examination reveals no objective sensory findings or thenar atrophy (the right thenar eminence is actually bigger than the left). Today's examination and the investigations performed also do not support the presence of more proximal pathology to explain her symptoms. Therefore I find no reliable objective evidence to support workplace restrictions. She may always have abnormalities on NCS [nerve conduction studies], but in and of itself this does not limit her abilities - her range of wrist motion and strength were normal."

In light of the foregoing comments, we decided to have the worker examined by an independent third party medical examiner. A neurologist examined the worker and in his report to the Appeal Commission dated September 20, 2005, we attached considerable weight to the following remarks:

"I saw Ms. [the worker] for an independent medical examination on September 13, 2005. I had an opportunity to review the submitted medical reports and the surveillance video from June of 2003."

"Ms. [the worker] has difficulty providing detailed information about her original injury and my conclusions about the original injury rely to a large extent upon the information recorded in the submitted documents. Currently her symptoms are consistent with carpal tunnel syndrome on the right. The nerve conduction studies have not changed over the course of her illness and postoperatively and I would conclude, base (sic) on the submitted information, that they are not likely to improve with further intervention. Furthermore, I find very little evidence the carpal tunnel syndrome improved substantially when she was off work."

"There are no consistent objective abnormalities to suggest a functionally significant lesion of the median nerve on the right. It is my opinion that there are no functional limitations due to her carpal tunnel syndrome at this time."

"I do not find evidence of generalized neuropathy, cervical nerve root entrapment, thoracic outlet syndrome or other brachial plexus lesion."

"I would say that Mrs. (sic) [the worker] has 'residual carpal tunnel syndrome' on the left, similar to the right except that this is currently asymptomatic."

"It is my opinion that there currently is no functional limitation as a result of the carpal tunnel syndrome on the left."

"I find evidence of no other diseases or conditions affecting the left wrist and hand."

After having taken into consideration all of the evidence, we find that the worker has no functional limitations at the present time and that on a balance of probabilities she had no functional limitations at the time when her benefits were terminated in 2004. Therefore, we further find that the worker is not entitled to wage loss benefits and services beyond June 23, 2004. Accordingly, the worker'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 10th day of November, 2005