The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on October 14, 1999, at the request of the employer.

Issue

Whether or not the claim is acceptable;

Whether or not the duration of the claim is appropriate; and

Whether or not the employer is entitled to further cost relief.

Decision

That the claim is acceptable;

That the duration of the claim is appropriate; and

That the employer is not entitled to further cost relief.

Background

In July 1996, the Workers Compensation Board (WCB) established a claim for this worker with regard to bilateral carpal tunnel syndrome (CTS) which he related to his employment activities as a labourer on a paint line/assembling parts. File documentation also showed that the claimant started employment with the accident employer on July 8, 1996, and after one week developed bilateral hand symptomology. The claimant was also diagnosed with diabetes as well as being obese.

On September 30, 1996, an adjudicator informed the claimant that the WCB would accept financial responsibility for his bilateral hand complaints. The adjudicator pointed out, however, that he did not feel that the claimant's employment with the accident employer was the sole cause for the development of his CTS condition given the relatively short time period that he was employed with the company. It was also noted that the claimant presented with pre-disposing risk factors for the development of CTS which included diabetes as well as obesity.

The claimant received wage loss benefits from August 9, 1996 to January 15, 1997, when it was determined, on a balance of probabilities, that the progression of his condition was due to factors other than his employment. This decision was largely based on repeat EMG nerve conduction studies performed on November 5, 1996, which suggested a worsening of the CTS condition involving the right hand and no change involving the left hand. WCB healthcare services were of the opinion that the worsening of the claimant's symptoms in the right hand while he was off work clearly suggested a natural progression of the disease.

On January 20, 1997, Review Office acknowledged receipt of an appeal submission from the claimant who disagreed with the decision to end benefits. Prior to deciding the case, Review Office obtained an opinion from a WCB orthopaedic consultant on April 3, 1997. The orthopaedic consultant stated that it was not entirely clear whether the claimant was a diabetic, and that both diabetes and obesity could predispose one to develop CTS. It was noted that the claimant also had a very short exposure to the workplace activity before he developed symptoms. If his condition was work related, then the symptoms should resolve quickly with cessation of work and apparently they did not. The consultant further indicated that vigorous wrist movements do not cause carpal tunnel syndrome as the wrist tendons do not enter the carpal tunnel. The most common cause of CTS is a non specific tenosynovitis of the finger flexor tendons as they transgress the carpal tunnel and this can result from vigorous repetitive use of the fingers.

In a decision, dated April 11, 1997, Review Office determined that the claimant was not entitled to wage loss benefits beyond January 15, 1997 and that the employer was entitled to 50% cost relief. Review Office noted that the claimant experienced symptoms in his wrists after only working two days in his job duties. The acceptance of the claim was based on the fact that the work duties may have in some way contributed to the carpal tunnel syndrome, however, the worker was pre-disposed to developing CTS due to other factors. Review Office was of the opinion that the claimant had recovered from the workplace accident to the point that it was no longer contributing, to a material degree, to a loss of earning capacity. Therefore, the claimant was not entitled to wage loss benefits beyond January 15, 1997. In addition, Review Office felt that the employer was entitled to 50% cost relief as the worker's CTS was accepted on the basis that his work duties, contributed, in part, but was not the sole cause of his condition.

On September 24, 1997, a worker advisor submitted to Review Office a report from a physician specializing in occupational diseases, dated July 17, 1997. Based on the opinions expressed by the specialist, the worker advisor was of the view that a difference of medical opinion existed between the specialist and the WCB’s medical consultant which in turn warranted the convening of a Medical Review Panel (MRP). On November 7, 1997, Review Office granted the worker advisor’s request for an MRP which was later held on February 13, 1998. Based on the findings of the MRP, Review Office rendered the following decisions on March 13, 1998:

• that no responsibility be accepted for the tendonitis;
• that responsibility be accepted for CTS; and
• that the worker was entitled to payment of wage loss benefits retroactive to January 15, 1997.

With respect to the above decisions, Review Office was of the opinion that:

• no responsibility could be accepted for the tendonitis as it had not been shown that there had been a continuity of symptoms and that the worker himself had indicated that he had had no problems during the interval from 1994 to 1996; and
• responsibility should be accepted for the CTS as the medical information seemed to indicate that the CTS was caused by the worker’s work activities while employed with the accident employer. The claimant was therefore entitled to wage loss benefits as it was considered he was disabled from employment.

On May 13, 1999, an advocate, acting on behalf of the employer, wrote to Review Office requesting reconsideration of the decision regarding the acceptance of the claim, the duration of the claim and the amount of cost relief.

In a decision, dated June 11, 1999, Review Office confirmed the acceptance and duration of the claim and also determined that the employer was not entitled to cost relief beyond the 50% already awarded. Review Office reiterated its previous decision that the claimant’s CTS had been accepted because its development was caused by his work activities with the accident employer. It also recognized that other factors contributed to the development of CTS and for this reason 50% cost relief was awarded. Review Office indicated that 50% was the maximum allowed under the WCB’s cost allocation policy. The Review Office stated that the employer could not receive 100% cost relief and that the 50% cost relief was effective on the first day of the claim and that it continued to date.

With regard to duration of benefits, Review Office noted that the claimant underwent carpal tunnel decompression surgery in January of 1999 after having the appropriate tests carried out together with the approval of the WCB’s medical department. Review Office indicated that the case was currently being closely monitored by the medical department and that the worker would be attending the WCB offices for a second functional capacity evaluation in mid June. The case would then receive further consideration by the adjudicator at that time to determine if further benefits are warranted.

On July 22, 1999, the advocate for the employer appealed Review Office’s decisions and requested a non-oral file review. A further submission was later received from the advocate, dated September 3, 1999, and from the worker advisor, dated October 6, 1999. On October 14, 1999, the Panel met to determine the issues being appealed.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

A Medical Review Panel (MRP) examined the claimant on February 13th, 1998. The Panelists concluded that the claimant's most probable diagnosis at the time he ceased working on August 8th, 1996, was carpal tunnel syndrome. The clinical findings supporting such a diagnosis were reported as being: "With regard to the carpal tunnel syndrome, there is a history of numbness and tingling involving the fingers and there is positive electrophysiological evidence in the form of abnormal nerve conduction studies performed on August 6, 1996."

As to issue two, there has been no information presented in argument by the employer’s advocate to suggest that the duration of this claim with respect to the entitlement to benefits should be something less than what has already been provided to the claimant.

With respect to issue three, in accordance with section 60.8(6) of the Workers Compensation Act (the Act), the Appeal Commission is bound by the policies of the Board of Directors. WCB policy section 31.05.10 provides in part:

“For claims where a pre-existing condition has affected the disability duration and/or associated costs, the WCB may provide cost relief. The following pre-existing conditions will result in 100% cost relief to the employer:

· Where the prior condition is determined to be the primary cause of the accident, for example, epilepsy.

· Where the wearing of an artificial appliance is determined to be the primary cause of the accident.

For other claims involving a pre-existing condition where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim.”

We find that the WCB’s policy dealing with cost relief does not entitle the employer to a greater reduction than the 50% already awarded.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of November, 1999