The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on November 16, 1998, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being June 28, 1999.

Issue

Whether responsibility can be accepted for medical treatment and claimed wage loss beyond June 6, 1996; and

Whether there is basis for payment of wage loss benefits between the date of accident and June 6, 1996.

Decision

That responsibility cannot be accepted for medical treatment and claimed wage loss beyond June 6, 1996; and

That there was no basis for payment of wage loss benefits between the date of accident and June 6, 1996.

Background

On May 1, 1996, the claimant submitted an application for compensation benefits for a right wrist injury occurring on April 29, 1996. The claimant indicated that he was standing on his tip toes cutting a nylon rope above his head with a utility knife when he lost his balance and twisted his right wrist.

Initial medical reports consisted of a letter from the first treating physician dated October 14, 1997. The physician outlined her examination findings as follows:

• on April 29, 1996, the claimant's right wrist showed mild swelling over the dorsal aspect of the lateral part of the distal ulna on the right side. Neurovascular examination of the right arm was intact. X-rays were requested and were normal. Treatment consisted of ice packs, Tylenol, and a tensor.
• on May 6, 1996, the claimant had similar complaints of pain over the distal ulna. Follow-up x-rays were done to assess possible callus formation and the report proved negative. The claimant was provided with a wrist brace and was placed on light duty with maximum weights of 10 pounds with the right wrist.
• on May 23, 1996, examination of the wrist was negative and treatment continued with the brace and light duties.
• on June 6, 1996, the patient complained of pain with flexion of his right wrist and examination revealed a recurrence of a previous ganglion to the right wrist (previously resected). The claimant was then referred to a specialist for further assessment and an arthrogram was ordered. The arthrogram showed no loose bodies, no ligamentous tears, no TFCC tear but it did show a small ganglion in the pisotriquetral recess.

The claimant was examined by two specialists at the Hand Clinic on May 12, 1997. After reviewing the history and arthrography, it appeared that the claimant's continuing discomfort in the right wrist was due to a recurrent piso-triquetral ganglion. The claimant was placed on a surgical waiting list for excision of the carpal pisiform bone. In a further report dated November 17, 1997, the specialist indicated that the continuing discomfort in the right wrist was due to instability of the pisiform at the pisotriquetral junction following an old injury with evidence of ganglion formation at the joint. When seen again on July 10, 1997, the claimant had a recent twisting injury to his right wrist which had exacerbated his symptoms. Accordingly, on August 5, 1997, on a day surgery basis, the pisiform bone was excised and the flexor carpi ulnaris tendon reconstituted. When seen August 14th the sutures were removed and the claimant felt that his preoperative pain was relieved. By September 18th, significant improvement in pain was noted and it was felt the claimant was capable of returning to work.

On January 19, 1998, the treating hand specialist stated the claimant was still having discomfort on the ulnar aspect of the right wrist which was particularly present when he had to carry an object with the wrist in ulnar deviation. There was little in the way of tenderness on palpation of the flexor carpi ulnaris tendon but pain did not occur in that vicinity on stressing the tendon in passive radial deviation. There was no evidence of myofascial pain and no instability of the lower end of the ulnar. It was felt the claimant would benefit from intensive physiotherapy to strengthen the wrist and hand.

Subsequent medical reports consisted of a report dated December 20, 1997, from a physician whom the claimant attended in Grand Forks. Briefly, the physician noted that the claimant sustained a recent right shoulder injury when he had fallen off a sled that was being dragged behind a snowmobile while he was out caribou hunting. Following examination, the physician was of the following impression: "1) Persistent ulnarward wrist discomfort, possibly related to try and get her (sic) fibrocartilage derangement, right wrist. 2) Possible cubital tunnel syndrome." The physician indicated the claimant had abnormalities with his right wrist that was most likely related to the chronic use of jack hammers.

On January 26, 1998, the claimant provided the WCB with a sworn statement describing his right wrist difficulties prior to and subsequent to the April 29, 1996, compensable injury. As well, the claimant provided details regarding his employment activities between 1996 and 1997.

On February 6, 1998, an orthopaedic specialist noted that EMG's and nerve conduction studies showed a mild conduction defect in the ulnar nerve across the elbow, but no abnormalities of conduction of the ulnar nerve at the wrist or hand and no abnormalities of the median nerve conduction at the wrist was seen.

In a decision dated February 19, 1998, Claims Services noted that according to medical reports, the claimant attended the emergency room on the date of the accident complaining of pain to the right wrist. He then returned to see his doctor on May 6, 1996, and May 23, 1996. On these visits the claimant was complaining again of pain in his right wrist. When seen on June 6, 1996, the claimant attended his physician, this time complaining about a ganglion in the right wrist which had previously been operated on. In accordance with all the medical information noted on file, Claims Services determined that claimant's right wrist problems stemmed from a pre-existing condition which was present prior to the April 29, 1996, compensable injury. Claims Services therefore concluded that any wage loss beyond June 6, 1996, was related to the pre-existing condition and not to the accident of April 29, 1996. No responsibility would be accepted for any treatment or wage loss beyond June 6, 1996. Claims Services also determined there was no wage loss between the date of accident and June 6, 1996, as the claimant was performing modified duties provided by his employer.

Subsequent to the above decision, the claimant called a WCB adjudicator indicating that his current wrist problems were related to his white hands claim and would like this re-examined. The claimant asked the adjudicator to reconsider the accident of June 27, 1997 and whether this accident precipitated the need for surgery on his wrist in 1997. The adjudicator later responded that the surgery was proposed prior to the accident of June 1997 and therefore it was unlikely that the accident in June 1997 caused the need for surgery. The claimant was advised that no change would be made to the previous decision.

On March 16, 1998, the Review Office acknowledged receipt of an appeal from the claimant's work advisor requesting reconsideration of the adjudicator's decision dated February 19, 1998. Prior to considering the appeal, the Review Office requested the opinion of the WCB orthopaedic consultant assigned to Review Office. On March 24, 1998, the consultant stated the following:

"The surgery on the Rt wrist performed Aug. 5/97 was for a recurrent piso-triquetral ganglion that was demonstrated on an arthrogram post incident on Apr. 29/96. This ganglion was reportedly excised in 1993. Ganglions do recur and in my opinion the recurrence is unrelated to the one isolated twisting episode to the wrist occurring Apr. 29/96."

On April 3, 1998, the Review Office stated that the injury involving the claimant's right wrist appeared to have been a soft tissue injury. The worker was placed on modified duties following the accident and, therefore, in the opinion of Review Office, was not entitled to payment of any wage loss benefits between April 29, 1996 and June 6, 1996. In the opinion of Review Office, the difficulties experienced by the claimant after that date were primarily because of a ganglion that had recurred in the worker's right wrist. The original ganglion was a non-work related condition that had been surgically excised in 1993 or 1994. Review Office also accepted the opinion of the WCB orthopaedic consultant that ganglions do recur spontaneously and that the recurrence of this worker's ganglion was unrelated to the episode that occurred on April 29, 1996.

On August 19, 1998, the worker advisor appealed the Review Office's decision and submitted two medical reports and an operative report dated July 30, July 2 and July 1, 1998 respectively, from an orthopaedic surgeon from Grand Forks, North Dakota. According to the surgeon, the claimant underwent arthroscopy of the right wrist on July 1, 1998 at which time a dorsal peripheral tear of the triangular fibrocartilage was noted. An ulnar plus variant of the wrist was also noted which results in pressure on the triangular fibrocartilage over the end of the ulna resulting in the above tear and ulnarward pain with wrist functions. Arthroscopic debridement of the triangular fibrocartilage was performed and it was recommended, should ulnarward wrist pain continue, that the claimant consider undergoing an ulnar shortening osteotomy to shorten the ulna. At the same time, the peripheral tear of the triangular fibrocartilage could also be repaired.

On October 27, 1998, the employer submitted copies of interviews taken by the union on behalf of the claimant and on October 30, 1998, presented the Appeal Commission with its opinion as to why the decision rendered by Review Office should be upheld. Submissions made by the claimant were also placed on file.

A further operative report was submitted to the Appeal Commission on November 3, 1998, by a representative of the claimant. The report described an arthroscopic examination of the claimant's left wrist which was performed by a plastic surgeon on August 14, 1998. The operative report stated the following in part:

"...The scope was then introduced into the 6R portal. Here further examination of the distal radius was normal. The TFCC had a small tear and fraying on the volar aspect which was debrided with a suction punch...."

On November 18, 1998, a non-oral file review was conducted at the Appeal Commission, after which, additional medical information was requested. Subsequently, the Appeal Commission requested and received a copy of the operative report dated August 5, 1997, related to the excision of the pisiform of the right wrist and a right wrist arthrogram report dated August 30, 1996. In the interim, the claimant submitted additional reports from his (then) General Foreman, now superintendent, for the Panel's consideration. All information received by the Appeal Panel was forwarded to the interested parties for comment.

On January 27, 1999, the Panel met again to discuss the case and decided to arrange for an independent specialist to review the entire file and to respond to specific questions posed by the Panel.

The Panel met again on March 10, 1999, to discuss the case as additional information was received from the claimant which included correspondence and medical information which was not previously available on the file. Following discussion, the Panel requested that the additional information supplied by the claimant be forwarded to the independent specialist for review.

On April 6, 1999, the independent specialist provided the Appeal Panel with his response to questions posed by the Panel. The report was then distributed to the interested parties for comment. Rebuttal arguments were received from both the claimant and worker advisor in response to the specialist's report.

On April 28, 1999, the Panel met again in light of the specialist's report and decided to request clarification from the independent specialist. The specialist responded by letter dated June 2, 1999, and a copy was provided to all interested parties for comment. On June 28, 1999, the Panel met to render its final decision.

Reasons

The issues in this appeal are whether or not responsibility can be accepted for medical treatment and claimed wage loss beyond June 6, 1996; and whether or not there is basis for payment of wage loss benefits between the date of the accident and June 6, 1996.

The relevant subsection of the Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

Subsection 39(2) states:
Duration of wage loss benefits

39(2) Subject to subsection (3) wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

Issue 1:

Whether or not responsibility can be accepted for medical treatment and claimed wage loss beyond June 6, 1996.

The claimant injured his right wrist at work when he was standing on tiptoes cutting a nylon rope above his head with a utility knife when he lost his balance and twisted his right wrist. The WCB accepted responsibility for the claim as a soft tissue injury and subsequently terminated benefits in June 1996 upon discovery of a recurrent pre-existing ganglion of the right wrist.

In reviewing the medical evidence in this file subsequent to the April 29, 1996 injury there appears to be a focus on two main medical conditions in the claimant's right wrist submitted to be related to the compensable event of April 29, 1996 namely a ganglion and a triangular fibrocartilage complex (TFCC) tear. We will address these conditions individually.

With respect to the right wrist ganglion, the evidence indicates that on June 6, 1996 the examination of claimant's attending physician revealed a recurrence of a ganglion of the right wrist which had been previously surgically resected. The claimant was then referred to an attending orthopaedic specialist for further assessment and an arthrogram was ordered. The arthrogram performed on August 30, 1996 showed no loose bodies, no ligamentous tears, and no TFCC tear but did show a small ganglion in the pisotriquetral recess.

We note that surgical intervention took place to resect this recurrent ganglion in August 1997. We accept the findings of the claimant's attending plastic/hand specialist and his attending physical medicine and rehabilitation specialist that the continuing discomfort in the claimant's right wrist at that time was related to a recurrence of a piso-triquetral ganglion. We note from a review of the file that the original ganglion was a non-work related condition that had been surgically excised in 1993 or 1994. In this regard we also accept the opinion of the WCB orthopaedic consultant dated March 24, 1998 that ganglions do recur spontaneously and that the recurrence was unrelated to the isolated twisting injury that occurred at work on April 29, 1996.

Accordingly we cannot accept any medical aid or time loss associated with the right wrist ganglion.

With respect to the second medical condition noted in the right wrist, namely the TFCC tear, we note that the first diagnosis of this condition was made during a diagnostic arthroscopy on July 1, 1998 when the claimant was seen by an attending orthopaedic consultant in the United States. We also note that a separate diagnostic arthroscopy of the left wrist was performed on August 14, 1998 by an attending plastic/hand surgeon in Canada and showed the presence of a similar peripheral TFCC tear in the left wrist. The claimant's advocate has argued that the right wrist TFCC tear is related to the compensable accident of April 29, 1996.

In reviewing the medical evidence on file we note the following:

• that the diagnosis of a TFCC tear in the right wrist was not made until more than two years after the compensable event. In this regard we note the comments of the independent orthopaedic surgeon consulted by the Appeal Panel who notes that:

  " it is somewhat unusual to find a tear such as is described at such a late date. The earlier surgeries would not have contributed since they were in a different area of the wrist and the surgeon would not have seen the triangular fibrocartilage complex at the time of ganglion excision or pisiform excision."

• it appears from the evidence on file that a TFCC tear of the right wrist was specifically investigated and excluded in an arthrogram performed August 30, 1996 some four months following the accident;
• in this regard we note that, in the request form to the Department of Radiology for the arthrogram examination which was performed August 30, 1996, the provisional diagnosis is to "Rule out TSCC (sic) tear"; and the arthrogram records that:

  " On the post-arthrogram images no evidence of a triangular fibrocartilage complex tear is identified."

• we also further note, on this point, the opinion provided by the independent orthopaedic consultant who reviewed the file and answered specific questions for the Appeal Panel:

  " Arthrography of the wrist for TFCC tears is felt to be 95 % accurate. Dr. [physician arthrographer], who performed the arthrogram in this case, is an experienced arthrographer and false negatives are in my experience rare."

• regarding the presentation of a TFCC tear condition in both wrists as confirmed by respective arthroscopies performed in July and August 1998, we note the following comments made by the two respective attending orthopaedic and plastic/hand surgeons;
• with respect to the arthroscopy of the right wrist the attending orthopaedic surgeon notes:

  " we were able to identify that he has a dorsal peripheral tear of the triangular fibrocartilage of his right wrist. He also has a ulnar plus variant of his wrist. This means that his ulnar bone is slightly longer than his radius bone which puts resultant pressure on the triangular fibrocartilage over the end of the ulna resulting in the above tear and ulnarward pain with wrist functions."

• with respect to the arthroscopy of the left wrist the attending plastic/hand surgeon notes:

  " Based on this examination, the etiology of the wrist pain may be related to some degree of ulnar impaction syndrome. Further surgical intervention will be based on clinical examination and on the clinical findings."

• on this we also note the comments of a second attending orthopaedic surgeon as recorded in a medical follow-up form completed with respect to employee disability dated October 20, 1998:

  Primary and Secondary Diagnosis:
  " Bilat. ulnar impaction syndrome with associated ligament tears."

  Physical Findings:
  " ulnar sided wrist pain both wrists."

• with respect to the bilateral presentation of TFCC tears in both the right and left wrists, we note the comments of the independent orthopaedic consultant in his reply to the Appeal Panel dated June 2, 1999 in which he states:

  " I cannot explain the apparent finding of bilateral TFCC tears except to state once again that dorsal peripheral tears are extremely uncommon findings and I am at a loss to explain their significance."

In summary, we find that the evidence supports a finding, on a balance of probabilities, that the right wrist TFCC tear is not causally related to the compensable event of April 29, 1996. We particularly note from the evidence that this condition is extremely rare; was specifically investigated and excluded by investigative and diagnostic testing shortly after the accident of April 29, 1996; and was not ultimately diagnosed until more than two years after the accident. We also note that the presentation of this condition is currently simultaneously present in both wrists which is not consistent with the mechanics of the original compensable injury to the right wrist alone but is consistent with the documented indications on file of a bilateral anatomical cause.

As such we find that the evidence does not support a finding, on a balance of probabilities, that either the TFCC tear or the ganglion of the right wrist are related to the compensable event of April 29, 1996. Accordingly, the claimant's appeal on this issue is denied and therefore there is no entitlement to benefits or services beyond June 6, 1996.

Issue 2:

Whether or not there is basis for payment of wage loss benefits between the date of the accident April 29, 1996 and June 6, 1996

The evidence on file indicates that the claimant was placed on modified duties on a full time basis subsequent to the accident which is confirmed by the claimant in his sworn statement of January, 1998 where he states:

" Following this accident there was no time loss from work but I was given modified duties within Dr.'s [claimant's attending physician] recommendations of no lifting, pushing or pulling weights heavier than 10 lbs with my right hand/arm."

The employer also confirms that there was no time loss during this period in a WCB memorandum to file dated February 18, 1996. Accordingly we concur with both Claims Services and Review Office that there is no entitlement to the payment of wage loss benefits between April 29, 1996 and June 6, 1996.

Panel Members

D. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of July, 1999