The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 14, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to benefits and/or services beyond May 28, 2003.

Decision

That the worker is not entitled to benefits and/or services beyond May 28, 2003.

Decision: Unanimous

Background

In April 2003, the worker filed a compensation claim with the Workers Compensation Board (WCB) for a right wrist injury that occurred in the workplace on April 14, 2003. The worker described his injury as follows:

"I picked up a tool from it's (sic) holder and when I did that, my wrist felt awkward, but I didn't think anything of it. It felt like I had pulled a muscle. I continued to work throughout my shift, but noticed I was losing strength in my arm and that it was strained. I went home and when I woke, my wrist was sore, and I (sic) kept me up while I was trying to sleep. I could not relieve any pain so I went to the hospital."

A Doctor's First Report diagnosed the worker with a muscular injury. Subsequent reports questioned the possibility of a triangular cartilage complex tear and further diagnostic tests were ordered. In May 2003, the worker returned to modified duties and in July 2003 he returned to his regular duties. On August 12, 2003, the WCB accepted the claim on the basis of a right wrist strain and the worker was paid wage loss benefits from April 15, 2003 to May 28, 2003 inclusive.

In early September 2003, the worker advised the WCB that he last worked on August 22, 2003 and then went on one week's vacation. When he returned to work on September 3, 2003 there were no light duties available. The worker noted that he could use his right hand but not for physical work like using a hammer but he could do administrative work.

On September 16, 2003, a WCB case manager contacted the worker and gathered additional information concerning his right hand difficulties, details of his modified return to work duties, the medical treatment he received and any prior history of symptoms. Contact was also made with the accident employer to confirm the dates that the worker returned to work, confirmation of the modified duties he performed, etc.

In a report to the WCB dated October 6, 2003, a plastic surgeon noted that the worker complained of pain on the ulnar aspect of his wrist since April 2003 which had not gotten any better. An x-ray taken in August was suspicious for arthritis at the fifth CMC joint. The surgeon concluded that the worker may have sustained a TFCC tear and that he would benefit from an MRI evaluation.

In a report dated October 23, 2003, the attending physician reported that the worker had been referred to a specialist to determine the extent of his right wrist injury. The physician stated, in part, "The patient was put on sick leave to rest his wrist, as there was no other alternative work for him. After resting the wrist we slowly tried to get the patient back with some light-duty work and wearing a special brace to protect the wrist. It did not seem to make the pain worse and later the patient resumed normal activities. A follow-up x-ray was done which showed possible early osteoarthritic changes. For this reason, I decided the patient should totally stop using this hand until further investigations were done. …"

In a decision dated October 21, 2003, the worker was advised that the WCB was unable to accept responsibility for his claim beyond May 28, 2003. Based on a review of test results dated August 18, 2003, it was felt that the worker had an arthritic condition in his wrist and that the arthritic condition would have no relationship to the WCB's accepted diagnosis of a wrist strain. After thoroughly investigating the claim including medical information, the mechanics of the compensable injury and the duration of time since the compensable injury, the WCB determined that the worker had recovered from the effects of his right wrist strain effective May 28, 2003.

On December 24, 2003, a worker advisor appealed the WCB's decision of October 21, 2003 on behalf of the worker. The worker advisor referred to a report from the treating plastic surgeon dated November 12, 2003 which he felt supported his position that the worker had not recovered from the effects of his wrist injury and that his time loss was work related. The worker advisor also felt that the report from the plastic surgeon constituted a difference of medical opinion and that a Medical Review Panel (MRP) was warranted.

In a letter to the worker advisor dated January 29, 2004, the WCB stated that the plastic surgeon's expressed opinion in relation to the compensable injury could not be addressed until a definitive diagnosis was established. If the upcoming MRI suggested that the worker's current symptoms were related to the compensable injury, the WCB would revisit the claim. With respect to the convening of an MRP, the WCB stated there was no difference of medical opinion given that a diagnosis could not be established until an MRI was performed and because the decision to terminate benefits was an adjudicative decision.

An MRI examination was performed on November 27, 2003. The TFCC, scapholunate and lunotriquetral interosseous ligaments appeared intact. Carpal alignment was normal and no osseous abnormalities were apparent.

On March 15, 2004, the worker advisor asked the WCB to reconsider its decision of January 29, 2004. He referred to the March 12, 2004 report from the attending physician which stated that the worker's time loss was work related and that he was still restricted in his former employment as a direct result of his work related injury. The worker advisor noted that the employer was still unwilling to accept the worker back to their place of employment until he was considered fully recovered.

In a response dated March 25, 2004, the WCB stated that it was unable to relate the worker's current symptoms to his work injury of April 14, 2003 given that no TFCC tear was found on testing. With respect to the convening of an MRP, the WCB stated that the decision to terminate benefits was an adjudicative decision and that the previous decision to deny an MRP was unchanged. On April 6, 2004, the worker advisor appealed the WCB's decisions to Review Office.

On April 23, 2004, Review Office denied the request for an MRP as it was determined that the attending physician did not provide 'a full statement of the facts and reasons supporting a medical conclusion' to justify a difference in medical opinion. Review Office also determined that the worker was not entitled to benefits and services beyond May 28, 2003. Review Office felt there was insufficient medical evidence to support that the worker's ongoing symptoms represent a condition of the right wrist resulting from the relatively minor incident occurring at work on April 14, 2003.

On June 17, 2004, the worker advisor submitted further medical evidence to Review Office for consideration which consisted of a report from the attending physician dated June 10, 2004. On October 18, 2004, Review Office referred to the new medical report and it confirmed that no change would be made to its decision of April 23, 2004. On October 21, 2004, the worker advisor appealed Review Office's decision concerning the worker's entitlement to further benefits and a non-oral file review was scheduled.

Reasons

We were asked to determine whether the worker is entitled to benefits and/or services beyond May 28, 2003. For the appeal on wage loss benefits to be successful, we must find that the worker's loss of earning capacity beyond May 28, 2003 was caused by the worker's workplace injury of April 14, 2003. We were not able to make this finding. For the appeal for services to be successful, we must find that the worker continued to require services as a result of his workplace injury after May 29, 2003. We were not able to make this finding.

We found that the worker's medical difficulties beyond May 28, 2003 were not related to the worker's workplace injury of April 14, 2003.

Submissions by Worker and Employer

The worker was represented in this review by a worker advisor who made a written submission on behalf of the worker. The worker's representative submitted that the worker was unable to return to his former employment because of his repetitive soft tissue injury that was incurred in the workplace. He noted that after attempting to return to regular duties between July 18 and August 25, 2003, the worker found that he could no longer continue to work due to the steady increase in pain from pounding saws with a hammer. The worker's representative submitted that the medical evidence supports the worker's position and asked the WCB to reinstate full wage loss benefits for the time that the worker was unable to work.

The employer, in a written submission, stated that the worker is not entitled to any further benefits/services beyond May 28, 2003. The employer noted that the worker is currently working full time regular duties as a heavy duty mechanic without any complaints or issues.

Analysis

The worker was off work from April 14, 2003 until May 28, 2003 when he returned to modified duties. The worker's claim was accepted as a strain of the right wrist and WCB benefits were paid for this time period. In July 2003, the worker returned to his regular duties. He worked at his regular duties until August 22, 2003 at which time he took a one week vacation. Upon the return from vacation the worker sought a light duties position but light duties were not available. The worker did not return to work. This appeal revolves around the answer to the question "what caused the worker's time loss commencing in September 2003?"

It appears that in August 2003, an x-ray raised the possibility of arthritis of the fifth CMC joint. The surgeon subsequently concluded that the worker may have sustained a TFCC tear. This diagnosis was not ruled out until an MRI was performed on November 27, 2003. The MRI found no abnormalities.

It appears that the worker was kept off work because of concern over a possible TFCC tear or possible early osteoarthritic changes. Neither of these conditions was confirmed and the worker ultimately returned to work.

In a report dated June 10, 2004 the worker's treating physician explained the reason for taking the worker off work as follows:

"An x-ray was repeated to see if there were any changes to his symptoms and this was done on August 18. The x-ray impression was that there were some erosive changes subarticular…For this reason it was decided then to stop him from all activities as we thought it might be related to the injury that there were now some arthritic changes. We decided to keep him off work until he could see a specialist and get MRI done. For that reason he was not able to do physical activities with his hand since August and it was the result of the initial injury which I thought might have contributed to secondary osteoarthritic changes."

The WCB accepted the injury as a strain and paid benefits for the strain. By July 2003 the worker had successfully returned to full duties. The evidence does not establish that the worker was missing work due to the compensable strain. The WCB did not accept responsibility for the possible arthritic condition referred to by the treating physician. The WCB did not accept responsibility for a possible TFCC tear. In September 2003 a WCB medical advisor commented that a TFCC tear did not fit with the mechanics of injury.

Based on the medical evidence, we find that the acute effects of the April 2003 compensable injury had resolved by May 28, 2003, and that any ongoing medical difficulties such as the suspected arthritic changes are not causally related to the compensable injury.

Having considered all the evidence, on a balance of probabilities, we therefore find that the worker's time loss and condition beyond May 28, 2003 are not related to the worker's compensable workplace injury. We find that the worker was kept off work for a non-compensable condition.

The worker's appeal is denied.

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 1st day of March, 2005