The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 2, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on December 2, 1999.

Issue

Whether or not the claimant sustained a new accident.

Decision

The claimant sustained a new accident.

Background

On November 21, 1997, the claimant was reaching for the lunchroom door when a co-worker opened the door, accidentally pushing the claimant's left hand back.

On November 22, 1997, the claimant attended the out-patient facility at a local hospital and the initial diagnosis was a fractured left wrist. Following x-ray examination on the same day, the left wrist showed degenerative changes of the carpus with narrowing of the radiocarpal articulation. Splaying of the scaphoid and lunate were also noted likely due to degenerative change. No fracture was identified.

On January 26, 1998, a sports medicine specialist was of the opinion that the claimant had pre-existing scapho-lunate disassociation with resultant degenerative arthritis involving the radial carpal joint as well as the first metacarpal joints. It was felt that these pre-existing conditions were exacerbated by the hyper-extension injury which had occurred at work. The specialist further stated that he did not feel the claimant would develop any permanent limitation of function as a result of the accident. He felt that the claimant could anticipate that her function would be adversely affected in the future, secondary to her pre-existing degenerative changes.

The claimant returned to work on February 2, 1998, performing modified duties. By March 23, 1998, the claimant returned to her regular duties.

On May 28, 1998, the claimant contacted the WCB indicating that she was experiencing pain and swelling in her wrist that started about two weeks previously. The claimant felt that her wrist complaints were due to continuous lifting of trays at work with the weight being on her left hand, more than the right.

A WCB adjudicator spoke with the claimant on June 11, 1998. The adjudicator documented that the claimant's wrist was fine when she first returned to work but it started to became worse after lifting trays. She had not been at work since May 14, 1998 and had been attending physiotherapy treatment. The claimant advised that there was nothing unusual at home or at work to cause the accident. The WCB then made a new claim/file for the claimant, however, this was consolidated into the present claim/file.

On May 19, 1998, the attending physician diagnosed a possible ligamentous strain of the left scaphoid/trapezium. Left wrist x-rays taken the same day revealed the following impression: "Degenerative arthritis left wrist. Possible ligamentous injury. Views of the scaphoid are suggested to reassess the radiopaque ossific or calcific density adjacent to the articulation between the trapezium and scaphoid."

Following consultation with a WCB medical advisor, primary adjudication wrote to the claimant on July 17, 1998. The claimant was informed that in the opinion of primary adjudication, her difficulties were related to her pre-existing condition. It was also determined that the claimant had recovered from the effects of the compensable injury and that any ongoing difficulties were due to degenerative changes in her wrist.

On January 12, 1999, a worker advisor, acting on behalf of the claimant, appealed the above decision. The worker advisor submitted a letter written by the claimant stating, in part, that between May 11 to 14, 1998, she had lifted 1,170 trays, twice the amount of what she had normally lifted due to a shortage of one person that week. In the four days the claimant had lifted a total of 4,680 trays. Based on this new information, the worker advisor requested that the claim for benefits as of May 28, 1998, be re-evaluated as a new claim and not a recurrence. The worker advisor also pointed out that the attending physician, did not have a description of the claimant's job duties or of the events leading up to her inability to continue to work past May 14, 1998, at the time when he examined the claimant on May 15, and 19, 1998.

Subsequent statements were taken from the claimant as well as the employer. On January 28, 1999, primary adjudication determined that based on a review of file information there would not appear to have been a new injury which caused the claimant to stop work in May 1998. It was also noted that the claimant's treating physician, at the time she stopped work made no mention of any new injuries or accidents at work.

On April 21, 1999, the worker advisor appealed the WCB's decisions, dated July 17, 1998 and January 28, 1999. The worker advisor referred to new and additional medical information, dated February 22, 1999 received from the treating physician and specifically to the physician's comments that the claimant's diagnosis as of May 15, 1998, was "ligamentous strain of her carpal bones." The worker advisor also quoted the following from the attending physician's February 22, 1999, letter:

"Mrs. [the claimant] realistically has some underlying osteoarthritis. Because she had no previous symptoms, her compensable injury either causing ligamentous damage at the scaphoid lunate articulation, or an aggravation of an underlying and previous existing osteoarthritis, are both possibilities. However, her ongoing symptoms are definitely related to compensable injury. As well, most likely her full duties and increased duties related to the increased work in mid May of 1998 would realistically aggravate her condition."

Based on the above, the worker advisor believed that the worker was entitled to benefits as a consequence of her accelerated repetitive work duties between May 11 and 14, 1998.

Following consultation with a WCB medical advisor on April 30, 1999, the worker advisor was informed by primary adjudication that there would be no change to its previous decision. On July 12, 1999, the worker advisor wrote to Review Office outlining her position that the claimant's claim should be accepted as a new claim and that the claimant should be provided with benefits as of May 15, 1998.

Prior to considering the appeal, Review Office sought an opinion from a WCB orthopaedic consultant dated August 3, 1999.

On August 6, 1999, Review Office determined that the claimant did not sustain a new accident or injury to her wrist in May of 1998. Review Office did not believe that the worker's claimed difficulties in May of 1998 were related to the traumatic incident that occurred at work on November 21, 1997. Review Office was of the opinion that the claimant's ongoing difficulties were primarily due to her pre-existing condition.

Review Office noted that one day after the accident, the claimant's wrist x-rays revealed rather severe pre-existing changes. The orthopaedic consultant to Review Office stated that the condition of the wrist in 1998 was most probably related to the long standing pre-existing condition and not to the claimant's compensable injury. It was his opinion that the worker's pre-existing condition was simply progressing and was presumably at the point where the worker could no longer undertake her normal employment duties.

The worker advisor appealed Review Office's decision and an oral hearing was held on December 2, 1999.

Reasons

As the background notes indicate, this appeal involves the determination of the occurrence of a new accident. We find, based on the weight of evidence, that the claimant did sustain a new accident. The claimant testified that following her initial compensable injury she was able to return to her former duties. She further testified that during the week of May 11th through the 14th her work duties increased dramatically. It was this excessive lifting of trays during this period which resulted in the swelling and sharp pain in her left wrist.

A review of the x-ray examinations of the left wrist dating back to November 22nd, 1997, revealed the following: “Long standing degenerative arthritis of the left wrist which was present at the time of the initial examination of Nov. 22, 1997.  Possible ligamentous injury of the right wrist.”

The orthopaedic consultant to Review Office was asked to reply to two questions posed by the review officer:

Q. In your opinion is there evidence of any ligamentous injury either clinically or on x-ray?

A. There is reported radiological evidence of pre-existing degenerative arthritis & scapho-lunate dissocration (sic) (a ligament injury) of long standing duration noted on X-rays one day post C.I. (see X-ray review report of Feb 25/97).

Q. Given the nature of the pre-ex problem, would you expect to her develop problems more easily than someone without such degenerative changes?

A. Yes, as the condition progresses the individual may find it increasingly more difficult to carry out the normal everyday work activities, which previously were not posing a problem.

We find, on a balance of probabilities, that the claimant aggravated her pre-existing condition as identified in the radiological summary report. This event constitutes a new accident in our view and therefore the claim should be accepted on that basis. The claimant's appeal is hereby allowed.

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 15th day of December, 1999