Decision #31/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on January 19, 2006, at the request of a worker advisor, acting on the worker's behalf. The panel discussed this appeal on the same day.

Issue

Whether or not responsibility should be accepted for the worker's right elbow/arm/hand symptoms as being related to the August 1, 2001 compensable accident; and

Whether or not the worker is entitled to wage loss benefits beyond August 15, 2004.

Decision

That responsibility should be accepted for the worker's right elbow/arm/hand symptoms as being related to the August 1, 2001 compensable accident; and

That the worker is entitled to wage loss benefits beyond August 15, 2004.

Decision: Unanimous

Background

In August 2001, the worker filed a claim with the Workers Compensation Board (WCB) for right wrist and forearm difficulties that she related to the nature of her job activities as a data entry operator. The worker described her accident as follows: "I was typing and my hand just gave out. I felt a pop and pull then my hand started shooting with pain." Following receipt and review of initial medical information, the WCB accepted the claim based on the diagnosis of right wrist strain and benefits were paid to the worker commencing August 20, 2001.

Following an examination on November 27, 2001, a WCB medical advisor outlined his opinion that the worker had a "persisting flexor carpi ulnaris tendonitis". Treatment recommendations included an examination by an orthopaedic surgeon if additional physiotherapy treatment did not relieve the worker's symptoms.

In a report to the treating physician dated February 6, 2002, an orthopaedic specialist determined that the worker had tendinitis of the wrist and that the tendon most involved was the flexor carpi ulnaris tendon. Conservative treatment was recommended.

On May 1, 2002, a plastic surgeon made the following comments after examining the worker's right wrist: "…she has an unstable pisiform bone with tenderness and pain on lateral stressing. This is in conjunction with a secondary flexor carpi ulnaris tendinitis. I feel that she has developed chondromalacia of her pisiform due to the instability of this bone and I feel that she would benefit from excision on a day surgery basis."

On August 20, 2002, the worker underwent excision of the pisiform bone of the right wrist. In January 2003, the treating plastic surgeon noted that the worker's surgical site scarring had resolved significantly and that her grip strength had increased. He stated the worker's endurance however remained poor but felt this would gradually improve over the next several months.

A WCB medical advisor examined the worker on April 15, 2003. Following the examination, the medical advisor could not find any objective evidence of any pathology in the left upper extremity other than tenderness and that the worker showed evidence of deconditioning in her wrist. It was noted that the worker was seeing a plastic surgeon in June 2003 regarding the possibility of a neuroma formation as she still had some sensitivity over the scar area with numbness going into her fingers. The medical advisor felt that the worker was capable of modified work with restrictions for a six month period.

On June 3, 2003, the plastic surgeon reported that the worker was now developing symptoms of an early right cubital tunnel syndrome and nerve conduction studies (NCS) were suggested. On August 12, 2003, a WCB medical advisor found it was difficult to relate the new diagnosis to the worker's work duties since it occurred a long time after the worker stopped work. The worker denied having any neurological symptoms and Tinel's tests were negative at the wrist when she was examined in April 2003.

NCS dated August 28, 2003 revealed no evidence of median or ulnar neuropathy.

On September 22, 2003, the plastic surgeon noted that the worker was still complaining of paresthesiae at nighttime in both her hands. He suspected that the worker had early nerve entrapment. At a follow-up examination on December 22, 2003, it was noted that the worker's symptoms had remained unchanged for the last three months.

On March 3, 2004, the worker was again examined by a WCB medical advisor. The medical advisor noted that the worker now complained of paraesthesia to the right arm and hand whereby she did not complain of that at all in April 2003. Tinel's and Phalen's tests were negative in April but now were positive at different areas. The medical advisor stated "...it is difficult to relate those symptoms to her work related injury, since she did not have them for some time after the injury. They are not related to her work duties since again she did not have them until some time after she had stopped working. They might be related to the treatment of her compensable injury, but since I am uncertain as to the diagnosis, I cannot confirm that at this time." Recommendations were made for an MRI examination to determinate a pathology in the right wrist and a second opinion with a specialist who dealt with upper extremity conditions.

An MRI of the right wrist dated May 10, 2004 showed "…no evidence for mass lesion, ganglion nor anatomic variant to account for the worker's symptoms."

On June 15, 2004, NCS of the right upper extremity was considered to be normal. There was no evidence of carpal tunnel syndrome, Guyon's canal syndrome, cubital tunnel syndrome, neurogenic thoracic outlet syndrome, plexopathy or a more proximal lesion.

On June 15, 2004, the worker was assessed by an orthopaedic surgeon specializing in upper extremity conditions. He stated that the worker's pain and numbness were most likely due to the ulnar nerve at the elbow. After a review of the NCS, the specialist suggested the possibility of a transposition of the ulnar nerve at the level of the elbow.

On July 9, 2004, a WCB medical advisor reviewed the file information and concluded "paraesthesia to little & ring fingers started in Apr/May /03 - almost 2 yrs. after being off work - 8 to 9 months post surgery. I cannot relate those symptoms or dx [diagnosis] to her work duties, surgery or any other tx [treatment] related to her C/I [compensable injury]. Duties that could cause ulnar n. problems at the elbow would be those involving repetitive bending/straightening of elbow, leaning on the elbow for a prolonged period of time, or something that would involve a direct blow to the cubital tunnel. The claimant's duties did not involve any of those duties. The effects of her compensable injury (tendinitis) have resolved."

Based on the weight of evidence, a WCB case manager confirmed to the worker on August 9, 2004, that it was the WCB's position that she had recovered from the effects of her compensable right wrist tendinitis injury and that there was no basis to extend wage loss benefits or medical treatment costs beyond August 15, 2004. The case manager also advised the worker that the WCB was not accepting responsibility for her current right arm/elbow symptoms diagnosed as ulnar neuropathy at the elbow as it was felt that the condition was not related to the August 1, 2001 workplace event.

On August 11, 2004, the worker's treating physician wrote to the WCB and stated that the worker "…has been seeing me from August 9, 2001 to August 11, 2004 regarding a work place injury. During this whole period Mrs. [the worker] has complained of paraesthesiae to her right arm and hand. [The worker] has had an ongoing problem since her work place injury on August 1, 2001 that has never been resolved."

In a report dated August 10, 2004, the orthopaedic surgeon specializing in upper limb extremities opined that the worker's ulnar nerve may have been the problem since the compensable accident.

On August 18, 2004, a WCB case manager advised the worker that the information submitted by her treating physician and orthopaedic surgeon was reviewed by a WCB medical advisor and that no change would be made to the WCB's decision of August 9, 2004.

On October 20, 2004, a worker advisor submitted that the worker had a combination of injuries to her right wrist/hand/arm at the time of her August 1, 2001 accident and that she experienced continual ulnar-sided symptoms immediately following the accident. The worker advisor believed that the worker was presently unable to return to her full regular duties as evidenced by a Functional Capacity Evaluation and that her attending specialist agreed that a relationship did exist between the diagnosis and the worker's employment.

In a decision dated December 2, 2004, Review Office outlined its position that it could not find a relationship between the worker's ulnar nerve problems and her original right wrist pain which became evident on August 1, 2001. Review Office noted that much of the worker's ulnar nerve related symptoms appeared to be coming on many months after the worker ceased working and that this provided support for a contention that the condition was not work related.

On April 4, 2005, the worker advisor requested Review Office reconsider its earlier decision based on new medical information from the treating physician and from the worker.

On May 18, 2005, Review Office confirmed its earlier decision that the worker was not entitled to wage loss benefits beyond August 15, 2004 and that responsibility should not be accepted for the worker's right elbow/arm/hand symptoms as being related to the incident of August 1, 2001. In reaching its decision, Review Office agreed with a WCB orthopaedic consultant that the worker's duties as a data entry operator would not cause the condition which led to the subluxing of her right ulnar nerve.

In a further submission dated June 16, 2005, the worker advisor asked Review Office to reconsider its last decision based on new evidence from a neurologist. The worker advisor stated, "His report dated April 14, 2005 states Ms. [the worker] deficit is a shallow groove and the MRI of the radial elbow showed the ulnar nerve to be more medial than normal. [The neurologist] also provides his opinion that a relationship/rationale as to how Ms. [the worker] was using her arm by turning a lot of pages which could irritate the nerve and cause intermittent subluxation."

On June 30, 2005, Review Office stated that no change would be made to its earlier decisions. Review Office's opinion was that the condition noted by the neurologist through the MRI evidence was not one that was caused by work but rather was an anatomical variance which would have nothing to do with the worker's employment. Review Office noted that such a condition can be aggravated as stated by the WCB's orthopaedic consultant through use of the arm at work, home or play. In October 2005, the worker advisor appealed Review Offices decisions and an oral hearing was arranged.

Reasons

This is an appeal by a worker regarding entitlement to wage loss benefits. The panel has been asked to address two issues. The first issue was whether responsibility should be accepted for the worker's right elbow/arm/hand symptoms as being related to the August 1, 2001 compensable accident. For the appeal of this issue to succeed, the panel must find, on a balance of probabilities, that the worker injured her right elbow/arm/hand in the compensable accident. The panel finds that the worker injured her right elbow/arm/hand in the August 1, 2001 compensable accident and that responsibility should be accepted for the injury.

The second issue before the panel is whether the worker is entitled to wage loss benefits beyond August 15, 2004. For this appeal to succeed the panel must find that the worker has a loss of earning capacity after August 15, 2004 due to the compensable injury. The panel made this finding.

Evidence and Argument at Hearing

The worker participated in the hearing via telephone. She was represented by a worker advisor who attended in person and made a presentation on behalf of the worker. The worker answered questions posed by her representative and the panel. The employer did not participate in the hearing.

With regards to the relationship between the compensable accident and the right elbow, arm and hand symptoms, the worker's representative noted that the worker had no problems with her elbow/hand/arm prior to the compensable accident. She reviewed the various medical reports on file to demonstrate that symptoms in this area were evident from the inception of the claim. She argued that the worker's loss of earning capacity after August 15, 2004 is caused by the right elbow/arm/hand condition. On this issue she relied upon the medical opinion of the three specialists (orthopaedic surgeon, neurologist and plastic surgeon) who have seen the worker and the opinion of the treating physician.

The worker described her duties at the time of the accident. She advised that the duties had changed from her prior two contracts. She stated that:

"This particular contract I had to have the keyboard directly in front of me and therefore the papers were situated well above and I would have to turn them at a high speed because the contract, the papers were - there was a lot more paper flipping involved, and then I would have to move those papers way off to the right-hand side with my right hand.

So I was speed typing with my right hand, flipping pages really quick and then once I was done a page I would have to throw it off to the other side."

With respect to her symptoms she advised that her symptoms always involved the elbow but that the focus was on her wrist because there was visible swelling. She advised that she learnt to deal with the nerve which can pop out of the channel. She described activities which bother her right arm. Specifically she advised that work activities can cause the nerve to move including flipping pages and anything pressure-wise or rotation wise. She also advised that her left arm is fine and that she uses her left arm at her current job.

Analysis

After considering all the evidence, including the evidence and argument presented at the hearing, the panel finds on a balance of probabilities that the worker's right elbow/arm/hand symptoms are related to her compensable accident and that the worker is entitled to wage loss benefits after August 15, 2004.

Regarding the relationship between the right elbow/arm/hand symptoms, the WCB Review Office found there was no mention in the medical evidence of numbness or tingling, other than the questionnaire filled out for the chiropractor in March 2002. At the hearing the worker's representative reviewed the medical file and noted evidence on file referencing the symptoms affecting the elbow/arm/hand. The evidence includes, but is not limited to the following:
  • first report completed by a physician and dated August 2, 2001, notes subjective findings of pain on the ulnar inside of the wrist and forearm.

  • treating physician's first report of August 9, 2001 noted subjective findings of right wrist pain moving up worker's arm and findings of swelling of the ulnar side of the right wrist with discomfort in the fifth, fourth and third fingers.

  • physiotherapist report of September 27, 2001 refers to "…continue and progress strengthening right wrist, hand and forearm."

  • November 27, 2001 WCB examination report notes "The claimant has pain in the extremes of pronation and supination…[also] she is tender to palpitation over the area of insertion as well as over the entire muscle body and its insertion into the epicondyle."

  • DASH questionnaire completed by the worker in March 2002 records that worker had numbness and tingling to her hand and arm.
The panel also notes and relies upon the opinion of the orthopaedic surgeon specializing in upper limb extremities dated August 10, 2004 which states.
"She has been cut off by Workers Compensation as they say that the elbow is not related to her initial injury back in 2001. She described to me what she was doing when she was injured. She also brought to me a DASH questionnaire she filled out for a chiropractor back in 2002 describing numbness and tingling in the hand coming from the elbow. She denies having any previous problems with the elbow wrist prior to her injury. For those reasons I think that it is quite possible that this has been the problem all along. She did not get any benefit from having the pisiform excised so it is quite possible that the ulnar nerve was the problem."
The panel also relies on the opinion of a neurologist in a report dated April 14, 2005 which states "…MRI of the radial elbow showed the ulnar nerve to be more medial than normal. She has a known shallow groove there. I reviewed her use of the arm in the past. She was using it to do a lot of page turning which certain (sic) could irritate the nerve and causes intermittent subluxation." The neurologist's exam of the worker showed slightly decreased sensation in the ulnar of the right hand with normal strength.

The panel notes that the plastic surgeon has also supported a relationship between the worker's right ulnar nerve subluxing around the medial epicondyle causing irritation and producing symptoms. He also comments that "Her work does involve repetitive pronation and supination actions of her right arm which could likely have exacerbated the rotation of the nerve, producing clinically evident symptoms."

Regarding the worker's loss of earning capacity, the panel finds that the worker did have a loss of earning capacity after August 15, 2004 which was caused by the workplace injury.

The panel notes that the worker's treating physician advised in a letter dated February 28, 2005 that "At this time there are work restrictions in place. She is unable to do any repetitive work with her right hand and elbow. She is also unable to sustain a grip with her right hand."

The panel also notes the worker's evidence at the hearing that she attempted to work after August 15, 2004 but has difficulty with duties which involve her right arm/hand. She finds that she is unable to do "Anything keying, anything lifting, anything basically repetitive." She advised that she has relocated to Alberta and has had four jobs since September. At the time of the hearing the worker was working six hours per day, four days per week.

The worker's appeal on both issues is allowed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of March, 2006

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