The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 6, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is capable of participating in a graduated return to work program leading to a return to regular duties; and

Whether or not wage loss benefits are payable beyond June 4, 2004.

Decision

That the worker is not capable of participating in a graduated return to work program leading to a return to regular duties; and

That wage loss benefits are payable beyond June 4, 2004.

Decision: Unanimous

Background

In August 1998, the worker submitted a compensation claim to the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome (CTS) that she related to the repetitive nature of her work duties as a patient registration clerk. Medical information on file confirmed the diagnosis of CTS, the right greater than the left. On March 19, 1999, the Review Office determined that the claim was acceptable as a personal injury arising out of and in the course of the worker's employment.

On June 21, 1999, the worker underwent an open neurolysis to her right wrist. On August 9, 1999, the treating surgeon reported that the worker was doing well post CTS and that she was capable of a graduated return to work program at light or modified duties.

In November 1999, the worker returned to her pre-accident duties but had to lay off work in March 2000 because of recurring pain in her right wrist. The recurrence was accepted by the WCB and wage loss benefits were again issued to the worker.

On August 8, 2000, the claimant underwent decompression surgery to her left wrist. In November 2000, the worker returned to a graduated return to work program at light duties and returned to her regular duties in late December 2000. Wage loss benefits were paid up to December 22, 2000 inclusive.

In May 2002, the worker laid off work again as she was experiencing right CTS symptoms. The WCB reinstated wage loss benefits to the worker.

Following an examination on August 14, 2002, a WCB medical advisor determined that the worker displayed signs and symptoms of recurrent CTS on the right. No evidence was found of any myofascial pain syndrome or chronic pain behavior. She determined that the worker was capable of modified duties and should avoid any repetitive movements of her wrists including keyboarding, gripping and lifting greater than 10 lbs. and the use of any vibratory tools.

On June 19, 2003, the worker underwent right carpal tunnel decompression/neurolysis which was accepted as a WCB responsibility.

In September 2003, reports on file revealed that the worker was still experiencing difficulties with her right wrist. On November 26, 2003, nerve conduction studies revealed the following: "Right median motor conductions are normal but there is mild slowing in right median sensory conductions across the wrist. This is consistent with right median neuropathy at the wrist. This is similar to test of April 2002."

On March 18, 2004, the worker underwent a Functional Capacity Evaluation (FCE). In a memo on file dated April 8, 2004, a WCB medical advisor stated, "Based on FCE results it would seem claimant's regular work duties are within those restrictions."

On April 19, 2004, the WCB contacted the employer with regard to a return to work program for the worker starting at two hours per week and increasing by one hour every two weeks. Subsequent file records showed that the worker did not participate in the return to work program as she expressed concerns that she was still having symptoms as a result of her injuries. Effective June 4, 2004, the worker's wage loss benefits were terminated by the WCB based on her failure to participate in the return to work program.

In a July 3, 2004 report to the WCB, the treating surgeon commented that the worker was last seen on May 7, 2004 and was given a steroid injection to see if it could improve her occasional paraesthesia. The surgeon stated, "I do not see any reason why a return to work program would not be possible for this patient in a light duties type of work environment."

In a phone conversation with the WCB on July 8, 2004, the worker's advocate questioned why the WCB was returning the worker to the same position that was causing her complaint. On July 20, 2004, the WCB case manager wrote to the advocate, stating that no change would be made to her earlier decision of April 19, 2004 as it was the WCB's position that the worker had recovered from the effects of her June 19, 2003 surgery to the extent that she could participate in a graduated return to work program proceeding to her full regular duties. The case manager further stated, "It should be noted that Ms. [the worker] is a part time patient registration clerk. I would consider this work within the definition of light work."

In a submission to Review Office dated July 26, 2004, the worker's advocate appealed the case manager's decisions of April 19 and July 20, 2004. It was argued that the worker had not recovered from the effects of her right CTS and second surgery of June 19, 2003 and that the worker was unable to return to her pre-accident employment. This submission was then forwarded to the employer for comment and a submission from the employer was later received dated August 26, 2004. In this submission, the employer appealed the initial acceptance of the claim.

On October 12, 2004, Review Office determined that the claim for bilateral CTS was acceptable as a work-related injury. Based on the restrictions outlined in the FCE results of March 18, 2004 and the opinion expressed by the treating surgeon on July 3, 2004, the Review Office was of the view that the worker was capable of returning to work, including her pre-accident hours and duties and was therefore not entitled to wage loss benefits beyond June 4, 2004. On October 28, 2004, the worker's advocate disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the worker has undergone several surgeries to correct her compensable bilateral CTS. More specifically, she has had two surgeries and various steroid injections to the right wrist alone. Following her treatment regimen, the worker has on at least two occasions made attempts to return to work to her regular duties. Unfortunately, these attempts failed as on each and every opportunity her right wrist carpal tunnel symptomology returned and eventually caused her to lay off work.

Both the treating surgeon and general practitioner expressed the opinion that the worker's regular work duties did not constitute light duties, which would indeed respect her ongoing wrist difficulties. It should also be noted that a WCB medical advisor outlined restrictions that for all intent and purpose would prohibit the worker's returning to her regular duties: "Mrs. [the worker] is capable of modified duties which avoid any repetitive movements of her wrists including keyboarding, any gripping, any lifting greater than 10 pounds, and any use of vibratory tools."

We find that later medical information received on file supported the imposition of similar restrictions. For instance, this would include the FCE of March 18, 2004, which recorded the worker's fatigue over time and reduced strength in her right upper extremity. We accept the worker's evidence that the minimal use of a keyboard inevitably lead to pain and numbness symptoms lasting for several hours.

While we are in agreement that the position of a .5 registration clerk is a "light type duty position", we nevertheless find that it is not truly a light duty position for this particular worker inasmuch as it does not respect her previously mentioned medical restrictions. We further find based on the weight of evidence that the worker is not capable of participating in a graduated return to work program leading to a return to regular duties. It necessarily follows therefore that wage loss benefits are payable beyond June 4, 2004. Accordingly, the worker's appeal is hereby allowed.

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 18th day of February, 2005