The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 16, 2006 at the worker's request.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 26, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond August 26, 2005.

Decision: Unanimous

Background

On July 31, 1999, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral hand and wrist difficulties that he related to the repetitive nature of his employment activities as an auto mechanic. The worker was diagnosed with bilateral carpal tunnel syndrome (CTS) and the Workers Compensation Board (WCB) accepted financial responsibility for the claim. In September 1999, the worker suffered a non-compensable heart attack and decompression surgery to repair his left median nerve was postponed.

On October 10, 2001, the worker informed the WCB that he was off work for one year due to his heart condition and that he had little problem with his hands during this period. In September 2001, he returned to work as a mechanic with a different employer and began to experience further CTS symptoms. He told the WCB that he did not want to undergo CTS surgery as he wanted to continue working with the hopes that his symptoms would resolve.

In June 2002, the worker filed a claim with the WCB for left elbow complaints that he related to the constant repetitive motion of turning wrenches during his employment activities as a mechanic. The WCB accepted the claim based on the diagnosis of left lateral epicondylitis. On August 6, 2002, the worker returned to his regular full time duties but experienced an aggravation of his left elbow complaints. On August 13, 2002, the worker's wage loss benefits were reinstated.

A WCB medical advisor examined the worker's elbows, hands and wrists on November 4, 2002. The medical advisor found the worker to have left lateral epicondylitis and to a lesser degree medial epicondylitis. There was no clear myofascial evidence of the forearm muscle and no neurological damage. Restrictions were outlined for an eight week period, however, the employer was unable to accommodate the worker with modified duties that met the restrictions.

In a December 30, 2002 report to the family physician, an orthopaedic surgeon reported that the worker had severe medial and lateral epicondylitis which was slowly resolving with physiotherapy. Treatment recommendations included a tennis elbow brace over the proximal forearm and for the worker to continue with physiotherapy treatments for another six weeks.

In late March 2003, the worker underwent a Functional Capacity Evaluation (FCE) to determine his present work capabilities. The FCE report stated, in part, that the worker was unable to complete the light repetitive activities or the dynamic lifting studies because of symptoms in his medial elbow and lateral epicondyle.

On May 28, 2003, the treating orthopaedic surgeon reported that the worker demonstrated a full range of flexion, extension, pronation and supination and there was no significant muscle wasting around the elbow. Moderately acute tenderness was found over the medial epicondyle and there was moderate tenderness over the lateral epicondyle. The surgeon commented that the worker's elbow should be treated conservatively.

In December 2003, the worker was examined by a neurologist and his examination results identified a left ulnar focal neuropathy at the elbow.

On April 20, 2004, cervical spine x-rays revealed degenerative disc disease at the C5-6 and C6-7 levels.

File records revealed that the worker underwent treatment for a non-compensable medical condition and further diagnostic testing for his elbow condition was postponed.

In a progress report dated October 26, 2004, the treating physician indicated that the worker was unfit to return to modified duties due to his non-compensable medical condition.

Nerve conduction studies (NCS) dated December 22, 2004 confirmed focal left ulnar neuropathy at the ulnar groove of moderate severity. There was also evidence of moderately severe left CTS.

On May 26, 2005, an orthopaedic surgeon was of the impression that the worker would benefit from decompression of the left ulnar nerve at the elbow and the left median nerve at the wrist. He felt that surgery for tennis elbow or golfer's elbow was not warranted. The surgeon noted that the worker wanted to await the results of an upcoming CT scan before making any decision concerning surgery to his left upper extremity.

In a memo dated June 1, 2005, a WCB medical advisor stated that he was prepared to authorize surgery for the worker's left elbow and wrist. He noted, however, that the worker's decision to delay surgery was based on his non-compensable condition and felt that the worker could return to light duties.

In a June 21, 2005 decision, a WCB case manager informed the worker that she was suspending wage loss benefits effective June 30, 2005 based on the following rationale:

"Information on file confirms that claims were established based on the repetitive nature of job duties. The claims were accepted for left medial/lateral epicondylitis and bilateral carpal tunnel syndrome.

Recent treatment recommendation included decompression of the left ulnar nerve at the elbow as well as the left median nerve at the wrist. The specialist documented that given the non-compensable health issues, you have opted to put treatment on hold pending upcoming medical tests/assessments (related to non-compensable health issues)."

The case manager advised the worker that should he pursue treatment and undergo surgery, his benefits would be payable effective the day of surgery. Following the surgery, she would review up-dated medical information to determine whether restrictions were required as a result of his compensable injury. Details of Section 22 of The Workers Compensation Act ("the Act") was referred to in the decision. On June 22, 2005, the worker appealed the decision to Review Office.

On July 14, 2005, Review Office determined that the worker was entitled to wage loss benefits after June 29, 2005. Review Office stated in its decision that although the worker failed to mitigate the consequences of his compensable injury he was entitled to wage loss benefits for a recovery period from the proposed surgical procedures.

In a decision dated August 15, 2005, the case manager informed the worker that he would be paid eight weeks of wage loss benefits from July 1, 2005 to August 26, 2005 at which time his wage loss benefits would end. This represented the normal recovery period for the proposed surgical procedures. Should the worker decide to proceed with surgery at a later date, the WCB would inform him of its responsibility at that time. On August 25, 2005, the worker appealed this decision to Review Office.

On October 14, 2005, Review Office outlined its decision that the worker was not entitled to wage loss benefits beyond August 26, 2005. Review Office felt that an eight week recovery period for carpal tunnel release and ulnar nerve decompression was appropriate and found no basis to alter the case manager's decision of August 15, 2005. As the worker disagreed with Review Office's decision, a non-oral file review was arranged.

Reasons

This is a review by the panel of a decision by the WCB terminating the worker's wage loss benefits. The issue before the panel was whether the worker is entitled to wage loss benefits beyond August 26, 2005. For the appeal to succeed, the panel must find that the worker's loss of earning capacity after August 26, 2005 is a result of his compensable injuries. In other words the panel must find that the worker's compensable injury is preventing him from working and earning an income. The panel did not reach this conclusion.

This case involves a worker who has compensable injuries relating to his arms and hands. He has also been diagnosed with a serious non-compensable medical condition. Because of the non-compensable medical condition, the worker has not been able to receive treatment for his workplace injuries. The WCB's position is that the worker would be able to receive treatment for his compensable injuries and return to work but for his non-compensable medical condition. Accordingly, the WCB has determined that the worker's compensable injuries are not the cause of his loss of earning capacity.

In a letter dated June 22, 2005 the worker wrote:

"I would like to appeal the decision to end my claim.

I went to see [physician] as I was scheduled to. He told me he could do surgery on my left inner elbow and carpal tunnel surgery on left hand. After he heard my other non comp injury, he was hesitant to do surgery. We agreed to wait till I find out more in early June about my other problem. I don't feel this is my fault and would have surgery done tomorrow if he was or is willing….

These hand and elbow problems have very much interrupted my life as I am very limited to what I can do. It was a work place injury and I feel I should be compensated till it is fixed."

Applicable Legislation and Policy

For the worker to receive wage loss benefits, the worker's compensable injury must cause a loss of earning capacity. Subsection 39(1) of the Act provides that where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits are payable to the worker. Section 40 deals with the calculation of the loss of earning capacity and subsection 60(1)(e) provides that the WCB has jurisdiction to determine the loss.

Section 22 has been applied in this case by the Review Office. It provides that where the worker refuses to submit to medical or surgical treatment which in the opinion of the WCB is reasonably essential to promote his recovery, or fails in the opinion of the WCB to mitigate the consequences of the accident, the WCB may reduce the compensation of the worker to the sum which would be payable if the worker had submitted to the treatment or had mitigated the consequences of the accident.

WCB policy 44.10.30.60 has also been applied in this case. This policy provides, in part, that:

1. Treatment
   In order to maintain eligibility for compensation benefits a worker is required to:
   
   1. undergo reasonably essential, acceptable, and established medical, surgical, or therapy interventions if the WCB believes that the loss of earning capacity or degree of impairment would be lessened as a result.

Consequences of a worker's failure to mitigate

1. If a worker fails to submit to appropriate treatment or submits to treatment against the advice of the WCB, the WCB will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker undergone the recommended intervention or not submitted to the inappropriate treatment.
   
   
2. a) In the event that a worker refuses treatment the WCB will pay the worker an amount that would likely have been payable if the worker had received the treatment. The WCB will estimate this amount using the best information available at the time.

Analysis

After considering all evidence on the file and the worker's written submissions, the panel has determined, on a balance of probabilities, that the worker's loss of earning capacity after August 26, 2005 is not due to his compensable injuries. The panel finds that the non-compensable medical condition is preventing treatment for the compensable injuries. The panel also finds that the worker's compensable injuries do not prevent him from returning to light duty employment. In making this determination, we relied on a February 9, 2005 progress report from his treating physician which notes "light duties?" in response to the question "Is the worker capable of alternate or modified work?"

The worker's refusal to submit to surgery also falls within the ambit of Section 22 noted above. The refusal to submit to surgery is delaying the worker's recovery and amounts to a failure to mitigate the consequences of the accident.

The worker has argued that surgery is not recommended in this case and that his benefits should not be terminated for refusing such surgery. The panel disagrees with this position. The panel notes and relies on the following medical evidence in support of its decision:

• May 26, 2005 opinion of orthopaedic surgeon which states:
  
  "It is my impression that the patient would benefit from decompression of the left ulnar nerve at the elbow as well as the left median nerve at the wrist. I do note that I would however not consider any surgery as far as tennis elbow or golfer's elbow is concerned.
  
  The patient is not interested in any injections by his elbow. It is my impression however that the patient does not have severe enough tennis elbow or golfer's elbow to consider an injection."
  
  
• June 1, 2005 opinion of WCB medical advisor which states:
  
  "I would be prepared to authorize surgery of left ulnar nerve and left CTS tho (sic) cannot indicate the prognosis of same. If he wishes to defer surgery then such deferral relates to his [non compensable medical condition] and for now I would have thought he could return to light duties."

The worker's benefits have been terminated in accordance with the Act and applicable policy. The WCB is only able to compensate the worker for loss of earning capacity caused by workplace injuries. The panel considers that the worker's current loss is not due to his compensable injuries.

The appeal is declined.

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 28th day of February, 2006