The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 3, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on February 3, 2005 and again on March 31, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 14, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond November 14, 2003.

Decision: Unanimous

Background

In August 2002, the worker submitted a claim to the Workers Compensation Board (WCB) relating the tingling, numbness and shooting pains in both arms and wrists to her employment activities as a general labourer. Following an investigation into the worker's job duties and medical history, the WCB accepted the claim on the basis of bilateral carpal tunnel syndrome (CTS). On October 30, 2002, a WCB medical advisor determined that the worker was capable of no lifting over 30 pounds as long as the actions were not intensely repetitive. The worker attempted a return to work but had to stop completely on December 2, 2002 because of increasing pain.

In a report to the attending physician dated March 5, 2003, the attending surgeon suggested that the worker undergo a division of the flexor retinaculum on the right in view of nerve conduction studies which demonstrated compression of the median nerve at the wrist. On March 28, 2003, the surgery was authorized by the WCB's healthcare branch. On April 24, 2003, the worker underwent the proposed surgery.

On March 11, 2003, a senior medical advisor stated, in part, that the claim had been accepted despite the fact that the worker had diabetes and hypothyroidism which were two of the most common causes of CTS.

On August 12, 2003, the attending surgeon asked a neurologist to review the worker's case to determine if there had been any change in her nerve conduction studies as the April 24, 2003 surgery did not lead to any systematic improvement.

Nerve conduction studies (NCS) were performed on September 9, 2003. The technician stated, in part, that the study was indicative of bilateral mild carpal tunnel syndrome and evidence of bilateral mild cubital tunnel syndrome.

On October 10, 2003, the case was reviewed by a second WCB medical advisor who felt that the worker was fit for work with restrictions. The medical advisor further indicated that the worker's bilateral cubital tunnel syndrome was not related to the compensable injury as it appeared to have developed after being off work.

Following consultation with the WCB's healthcare branch on October 29, 2003, the worker was advised by primary adjudication that wage loss benefits would be paid to November 14, 2003 inclusive and final. It concluded that the weight of evidence failed to support a causal relationship between the workplace activities and the worker's current difficulties. It was the WCB's further position that the worker's pre-existing conditions, i.e. hypothyroidism and diabetes, may be the cause of her nerve difficulties.

On November 24, 2003, a hand surgeon suggested that the worker would benefit from an exploration and neurolysis of the right median nerve. On December 5, 2003, the WCB's healthcare branch denied financial responsibility for the proposed surgery as it felt that the worker's generalized neuropathy was related more to her systemic diseases of diabetes and hypothyroidism.

In August 2004, the worker's union representative appealed the WCB's decision of November 7, 2003. The union representative presented argument that the worker had ulnar nerve involvement from the outset of her claim and that the work activities probably caused both the ulnar nerve and carpal tunnel conditions.

In a decision dated September 1, 2004, Review Office concluded based on the weight of evidence that the worker had recovered from her right wrist CTS surgery and that her ongoing bilateral complaints were not due to her workplace injury. Review Office opined that the worker's bilateral cubital tunnel syndrome was not related to the compensable injury as the worker had not been at work for approximately a year prior to this syndrome being diagnosed. This fact raised doubt that her work activities were the causative factor in the development of this condition. As there was no longer a loss of earning capacity due to the compensable injury, Review Office determined that the worker was not entitled to benefits beyond November 14, 2003. On September 24, 2004, the union appealed Review Office's decision and an oral hearing was held on February 3, 2005.

Following the hearing and after discussion of the case, the Appeal Panel wrote to the treating hand surgeon for additional information. A response from the hand surgeon dated March 7, 2005 was forwarded to the interested parties for comment. On March 31, 2005, the Panel met to consider a submission from the employer's advocate dated March 29, 2005 and to render a final decision.

Reasons

In a letter to the Appeal Commission dated March 7, 2005, the treating surgeon advised that he first saw the worker on the 24 of November 2003 following a referral from her attending physician. According to the surgeon’s letter, the worker was not seen again until September 30, 2004 at which time he recorded that “the symptoms and signs in her hand had remained unchanged”.

After having thoroughly considered all of the evidence, we find based on the weight of this evidence that the worker’s current bilateral wrist and arm difficulties (CTS and cubital tunnel syndrome) are on a balance of probabilities systemic in nature and as such are non-compensable. Accordingly, the worker is not entitled to wage loss benefits beyond November 14, 2003. 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 12th day of May, 2005