Decision #52/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 1, 2005, at the worker's request. The Panel discussed this appeal on March 1, 2005.

Issue

Whether or not the worker is entitled to payment of wage loss benefits beyond August 30, 2004; and

Whether or not responsibility should be accepted for the right wrist fusion surgery.

Decision

That the worker is entitled to payment of wage loss benefits beyond August 30, 2004; and

That responsibility should be accepted for the right wrist fusion surgery.

Decision: Unanimous

Background

On January 24, 2001, the worker felt a pulling sensation in her right wrist which she related to her work activities which included folding and wrapping surgical gowns and unloading linens from a cage. The initial diagnosis rendered was tenosynovitis of the right wrist and the worker was referred for physiotherapy treatments. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. The file evidence also shows that the worker has a prior WCB claim for a right wrist injury that occurred in August of 1997.

Between June 2001 and January 2002, the worker was treated by a plastic surgeon and by a physiotherapist. On March 23, 2002, an MRI assessment of the right wrist was reported to be normal with no evidence of a TFCC tear. On November 22, 2002, an orthopaedic surgeon found no objective evidence for the worker's disability. He felt that no further investigations or treatment was required and trial of return to work was suggested.

On April 28, 2003, the treating plastic surgeon noted the worker was seen for management of her ongoing and persistent right wrist pain. Following his clinical examination of the wrist, the plastic surgeon reported that the working diagnosis was a tear of the TFCC and that a previous MRI exam was negative. It was discussed with the worker that the only available option was for her to undergo an arthroscope. He stated that the worker was aware that the diagnostic procedure may have very minimal therapeutic benefits and that it was possible that nothing further may be done with her wrist pain. The worker advised that she wished to proceed with the arthroscope.

An arthroscopic examination of the right wrist was carried out on June 17, 2003. The surgery report showed the scapholunate interosseous ligament was torn and frayed and there was some surrounding synovitis and capsular tears. The surgeon noted that the etiology of the worker's wrist pain was "related to the scapholunate interosseous ligament partial tear with the associated instability and synovitis."

On September 17, 2003, the plastic surgeon reported that the worker had good range of motion and generalized tenderness throughout her wrist and there was no evidence of carpal instability. No further surgical treatments were planned and the worker was instructed to continue with physiotherapy until she plateaued and to concentrate on a return to work program with restrictions. If the employer was unable to accommodate the worker with employment respecting her restrictions, retraining was recommended.

As the employer was unable to accommodate the worker with employment respecting her restrictions, the WCB approved a 2 week trial of a reconditioning program for the worker.

On April 20, 2004, the treating plastic surgeon reported that since the worker underwent work-strengthening she found her wrist pain to be quite constant. The surgeon felt that the scapholunate instability could be treated with a limited wrist fusion. On May 27, 2004, a WCB medical advisor advised the surgeon that before authorizing surgery, arrangements would be made for the worker to be assessed at the WCB's offices.

The WCB examination took place on June 8, 2004. The WCB orthopaedic consultant concluded there were no objective findings and the worker's apparent disability appeared inconsistent with the findings and imaging studies. He also commented on a video of the worker's duties. He expected she could perform the tasks shown in the video, except for moving a barrel of soap.

In a July 6, 2004 memo, a WCB case manager noted that she had further discussed the case with the WCB orthopaedic consultant and it was concluded that, based on lack of findings, that the worker should be able to perform tasks related to her job but should avoid manual labor where one might be expected to lift 100 lbs.

In the decision dated July 20, 2004, the worker was advised of the WCB's position that she was capable of returning to full duties based on the lack of objective findings found in the June 8, 2004 call in examination. As the employer was unable to accommodate the worker in a 6 week graduated return to work program, the WCB would provide the worker with wage loss benefits to August 30, 2004 in lieu of the graduated return to work program.

On August 9, 2004, a WCB senior medical advisor informed the plastic surgeon that the WCB would not accept financial responsibility for the proposed right wrist surgery.

In a letter dated August 11, 2004, the plastic surgeon advised the WCB that the worker wished to go ahead with the surgery as her wrist pain was significant and she was aware of the risks and potential outcomes.

On August 16, 2004, the worker requested that wage loss benefits continue pending a review of the October 5, 2004 operative report. She felt that if these procedures were not warranted, they would not be performed by a qualified physician.

On September 28, 2004, Review Office referred the file to a WCB orthopaedic consultant and asked him to comment on whether or not the WCB should authorize the proposed right wrist fusion. On September 30, 2004, the orthopaedic consultant responded that he would be hesitant to recommend a limited wrist fusion on the basis of the history of wrist symptoms, the repetitive unremarkable findings by numerous examinations as well as the negative investigative findings, i.e. MRI or x-rays. He stated there were no radiological findings to indicate scapholunate dissociation. The complaints outweighed the clinical findings that one would anticipate with a significant scapholunate problem.

In the decision dated September 30, 2004, Review Office determined that the worker was not entitled to payment of wage loss benefits beyond August 30, 2004 and that responsibility should not be accepted for the proposed right wrist fusion. Review Office stated that the worker's claim of almost total disability was not supported by the clinical findings during repeated medical examinations. Review Office did not believe that the surgical procedure should be accepted as part of this claim and believed that the worker was capable of resuming her pre-accident employment with the exception of undertaking the one task of moving the heavy barrel of soap.

On October 5, 2004, the worker underwent a right wrist scaphocapitate fusion. In a follow-up report dated October 20, 2004, the treating surgeon reported that the worker was wearing a wrist splint and would be receiving some basic physiotherapy over the next 6 weeks.

On November 11, 2004, the worker appealed Review Office's decisions that were made on September 30, 2004 and an oral hearing was arranged.

On February 7, 2005, the surgeon reported that the worker's pain had improved. Clinical examination showed the incision was healing well. There was no instability of the distal radial ulnar joint and she had reasonable range of motion, flexion and extension.

Reasons

There were two issues before us. We were asked to determine whether the worker is entitled to payment of wage loss benefits beyond August 30, 2004. For the appeal to succeed on this issue, we must find that the worker's loss of earning capacity after August 30, 2004 was caused by her workplace injury or in other words that she could not work after this date because of her workplace injury. We did find that the worker was unable to work due to her workplace injury and accordingly is entitled to payment of wage loss benefits after August 30, 2004.

The second issue we were asked to determine is whether responsibility should be accepted for the worker's right wrist fusion surgery. For the appeal to succeed on this issue we must find that the surgery was required to treat the worker's workplace injury. We did find the surgery was required to treat the worker's workplace injury and that the WCB is responsible for the surgery.

Evidence and Argument at Hearing

The worker attended the hearing with a union representative who made a submission on the worker's behalf. The worker answered questions posed by the Panel. The employer was represented by an employer advocate and its' Director of Human Resource Services. The employer advocate made a submission on behalf of the employer. The employer's representatives answered questions on behalf of the employer.

The worker's representative argued that the worker's wage loss after August 30, 2004 was directly related to the worker's workplace injury. The representative submitted that the worker had not recovered from the workplace injury by August 30, 2004 and could not perform her regular duties. He reviewed the worker's job duties and identified elements of the duties which the worker could not perform. The representative stated that the worker's condition has improved since the surgery and that "…obviously the surgery worked and is capable of bringing [the worker] back into an employable situation."

The worker advised the Panel that she could not return to work and perform her regular job after August 30, 2004. She advised that the surgery was successful and that she is looking forward to returning to her former position. She indicated that her wrist is now "fine" and that she is currently receiving some physiotherapy. She said she will contact her physician to discuss a return to work. She denied any current problems with the wrist and provided examples of actions she can now perform which she could not perform before the surgery. When asked why she had not contacted her employer about returning to work when her benefits were terminated in the summer of 2004, she advised that as she could not perform her regular job duties, she did not consider applying to return to her regular job.

The employer's advocate reviewed the medical evidence on file. In her opinion the medical evidence supported the WCB Review Office decision, that the worker had recovered from the workplace injury and the need for surgery was not supported by the evidence.

The worker's representative and employer's representatives described the return to work process and the employer's practice of accommodating workers with disabilities.

Analysis

Although there was evidence on the file which suggested that the worker had recovered and that surgery was not indicated, we place greater weight on the following:
  • June 17, 2003 arthroscopic examination of the right wrist which showed the scapholunate interosseous ligament was torn.

  • the plastic surgeon's report of April 20, 2004 where the surgeon notes "On examination she has generalized tenderness throughout the wrist. When performing a Watson's test there is evidence of instability of the scapholunate region with some clicking and definite pain." The plastic surgeon notes that the scapholunate instability could be treated with a limited wrist fusion.

  • the operative report of the October 5, 2004 surgery confirms that the scapholunate interosseous ligament was torn and there was instability between the scaphoid and the lunate, as a result a scaphocapitate fusion was performed.

  • the plastic surgeon's report of February 7, 2005 which notes "There is no instability of the distal radial ulnar joint. She has reasonable range of motion and flexion and extension." The plastic surgeon also notes that the worker's pain has improved since the surgery.

  • the worker's evidence that the fusion surgery has corrected her wrist problem. When asked to describe the current condition of her right wrist she replied "It's fine, I've had no problems. My gripping is better." When asked whether she can perform her job she replied "Yes, if I was given a chance to go back, yes." The worker did indicate that she would obtain approval from the plastic surgeon before returning to work.
We find that the worker's successful recovery after the surgery is consistent with the evidence that the worker's wrist had not recovered and that the surgery was required.

We find that the worker is entitled to payment of wage loss benefits beyond August 30, 2004 and that responsibility should be accepted for the worker's right wrist fusion surgery. Accordingly, the worker's appeal is allowed.

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 31st day of March, 2005

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