The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 14, 1998, at the request of legal counsel, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she had been provided with appropriate light duty work and that she was consequentially not entitled to wage loss benefits. Due to the circumstances surrounding the case, the Appeal Panel decided to immediately advise legal counsel for the claimant and the employer regarding its decisions, with written reasons to follow within 60 days from the hearing date.

Issue

Whether the claimant has been provided with appropriate light duty activity in keeping with injuries sustained;

Whether the claimant is entitled to payment of wage loss benefits for the period April 18, 1997 to March 15, 1998, inclusive; and

Whether the claimant is entitled to payment of wage loss benefits for the period May 6, 1998 to September 16, 1998, inclusive.

Decision

That the claimant was not provided with appropriate light duty activity in keeping with injuries sustained;

That the claimant is entitled to payment of wage loss benefits for the period April 18, 1997 to March 15, 1998, inclusive; and

That the claimant is entitled to payment of wage loss benefits for the period May 6, 1998 to September 16, 1998, inclusive.

Background

During the course of her employment at a furniture manufacturing company on September 26, 1996, the claimant stepped off a pallet and fell, injuring her right arm, wrist and right knee. On the same day, the claimant sought medical attention and was diagnosed with a contusion to the right wrist. The claim was accepted by the WCB and the claimant was compensated for one day of time loss and returned to work.

On March 5, 1997, the claimant filed another claim for compensation indicating that she experienced right wrist swelling followed by pain in early February 1997. In a letter attached to the application form, the claimant indicated the following:

• since the September 26, 1996, accident she was waking up every morning with swollen fingers and wrist pain. On February 3rd and 4th, 1997, her job changed to include using a hand trigger blower gun which entailed blowing cabinets free from dust and patch work. When she awoke on February 5, 1997, her wrist and arm were throbbing and swollen. The claimant indicated that she attended a chiropractor for treatment and he advised her that she had carpal tunnel, had sent her for x-rays and was given a prescription for a wrist brace.
• the claimant stated that when she returned to work on February 6th & 7th her supervisor placed her on light duties. On February 11, 1997, she was asked to go sanding and she was fine wearing the brace but within one half a day later her wrist and hand could not take it anymore.

Medical information showed that the claimant was assessed by a chiropractor on February 5, 1997, and he diagnosed flexor tendon strain and upper dorsal myofascial pain. When seen by a general practitioner on February 24, 1997, the diagnosis was a right wrist tendinitis. On April 15, 1997, a WCB medical advisor recommended light duties with restrictions of no heavy lifting over 20 lbs., and no repetitive movement of the right wrist/hand for 2 weeks.

File information revealed that the claimant was paid wage loss benefits between February 5 and 24, 1997, March 10 and April 3, 1997 and then was transferred to another light duty job producing cleats on April 4, 1997. On April 18, 1997, the claimant ceased work indicating that her back and neck were sore due to her job duties.

The claimant was examined by a WCB neurologist on May 30, 1997. The neurologist stated that there was no evidence of any ongoing neurological pathology and that the carpal tunnel syndrome was not a confirmed diagnosis. The consultant indicated that there was no strong indication that surgery on the carpal tunnel would affect her main complaint which was right ulnar wrist pain and discomfort. Surgery was not recommended and there were no restrictions from a neurological perspective.

In June 1997, the claimant was advised by Claims Services that she was not entitled to wage loss benefits from April 18, 1997 as it was considered she was capable of performing the alternate duties that were provided by her employer. This decision was reached following discussion of the case with a WCB medical advisor and the employer. It was also determined by Claims Services that the WCB was not able to accept the diagnosis of carpal tunnel syndrome in relation to the claimant's work duties.

In September 1997, the claimant was assessed by a hand specialist who reported that the carpal bones appeared to be significantly tender in the vicinity of the scapholunate ligament. The physician suggested that the claimant undergo additional x-rays, repeat nerve conduction studies, a referral to a physical medicine specialist, and an arthroscopic investigation to determine the scapholunate instability.

On December 11, 1997, the claimant was advised by Claims Services that both her 1996 and 1997 claims were reviewed by a WCB medical advisor. In the opinion of the medical advisor, the claimant was considered capable of modified duties with no repetitive movements and no handling of hand-held tools for a period of one month. It was determined also that these restrictions would be in place as a result of the September 1996 compensable injury. The claimant was advised that she would not receive wage loss benefits as her employment was terminated with the accident employer.

In a letter dated January 6, 1998, a plastic surgeon concluded that the claimant likely had a partial scapholunate ligament tear and TFCC tear. Arthroscopic examination of the wrist was recommended. Subsequent file documentation showed that the WCB accepted financial responsibility for all costs associated with the arthroscopic procedure.

On January 16, 1998, a physical medicine specialist gave the following impression regarding the claimant's condition: "The myofascial and soft tissue trigger points have resolved and on this visit, there are really no active trigger points or any soft tissue pathology."

On March 16, 1998, the claimant underwent surgery to the right wrist. The post operative diagnosis was a right scapholunate ligament tear and right lunotriquetral ligament partial tear. At a follow-up visit in April 1998, the hand surgeon indicated that the claimant noticed significant improvement in her wrist but was still tender on the dorsum. The specialist concluded that an adequate time of recovery from the arthroscopic procedure was warranted and that the claimant could then start on light work and progress as tolerated.

It was noted that the claimant received wage loss benefits from the date of surgery, March 16, 1998, up to May 5, 1998, when the WCB determined the claimant had suitably recovered from the surgery. This decision was appealed to the Review Office.

On May 22, 1998, the Review Office made the determination that the claimant was not entitled to benefits beyond May 5, 1998. The Review Office stated that while the claimant was entitled to wage loss benefits from March 16, 1998, she was considered fit to return to her light duty work by April 3, 1998. The employer and Review Office considered that the claimant abandoned her position with the employer on April 18, 1997, and consequently had no job to return to. The claimant was considered capable of returning to modified duties. Review Office stated that it must consider that the modified duties previously available from her former employer were in keeping with the restrictions previously indicated by the specialist and as outlined on the claim for injuries sustained February 3, 1997. Review Office was satisfied that the claimant had been adequately compensated in accordance with the opinions expressed by the WCB medical advisors noted on file.

The Review Office also considered an appeal received on May 14, 1998, from a worker advisor who presented argument that the alternate/light duties performed by the claimant in April 1997, were outside of her workplace restrictions given her right wrist condition. The worker advisor believed that the claimant was entitled to wage loss benefits beyond April 18, 1997, and submitted a May 12, 1998, medical report in support of her position.

On May 22, 1998, the Review Office determined that the claimant had been provided with appropriate light duty activity in keeping with injuries sustained and that the claimant was not entitled to payment of wage loss benefits beyond April 18, 1997. When rendering these decisions, the Review Officer stated that he and the worker advisor attended the job site to view the work that had been provided to the claimant. In the opinion of Review Office, the claimant had been provided with suitable alternate duties which could be performed with either the left or right hand.

The Review Office made reference to additional medical reports and other notations that were on the claimant's personnel file that were not previously available to the WCB. The Review Office commented that the reports confirmed that the claimant's physician felt the claimant was capable to continue with the light duty activity. The Review Office confirmed that the claimant was capable of performing the light duty work at the time she abandoned her position on April 18, 1997. The light duty was in keeping with any restrictions she may of had. Review Office stated it could not demonstrate that the claimant was not capable of performing that work.

Subsequent file documentation revealed that the claimant continued to experience right wrist symptoms and that a scapholunate ligament reconstruction with a bone graft and a Blatt's capsulodesis had been recommended. On this basis, the claimant was called in to the WCB offices for an examination to determine whether the proposed surgical procedure would be accepted as a WCB responsibility.

On August 26, 1998, the WCB medical advisor reported his examination findings and made the following comments:

• the clinical findings of local pain on palpation and stressing of the scapholunate and lunotriquetral articulations were consistent with the arthroscopic findings of a right scapholunate ligament tear and right lunotriquetral partial ligament tear.
• there was no indication of myofascial pain in the upper extremities that might complicate the claimant's recovery from surgery and there was no indication of abnormal illness behavior.
• the proposed surgery would be accepted as a WCB responsibility.

On September 17, 1998, the claimant had undergone a reconstruction of the right scapholunate ligament and a Blatt's capsulodesis right wrist. The diagnosis was "dissociative carpal instability right wrist." In a follow-up report dated December 8, 1998, the attending plastic surgeon commented that the claimant had very limited movement at the wrist joint and would require a course of physiotherapy to improve her range of motion and hand strength.

In a letter dated September 18, 1998, Claims Services advised the claimant that her benefits would be re-instated from the date of surgery, i.e. September 17, 1998, up to the date she was determined capable of performing modified work.

On September 24, 1998, a solicitor acting on behalf of the claimant, appealed the Review Office decisions and an oral hearing was held on December 14, 1998.

Reasons

The claimant and the employer have been involved in a long and complicated series of events which has led to a great deal of animosity between the parties. For the reasons set out below, this Panel has determined that neither the employer nor the claimant can be faulted for their positions. The problems have arisen principally because of the difficulty the medical profession had in diagnosing the correct etiology of the claimant's symptoms and the length of time it took for the claimant to have medical appointments arranged for her as well as the time that elapsed in providing the appropriate diagnosis. As a result of a series of incorrect diagnoses being made and the subsequent incorrect comments upon the nature of the light duties that the claimant was capable of performing, the claimant remained for a considerable amount of time in pain which left her unable to perform any form of light duties. This unfortunately led to the employer erroneously dismissing the claimant from her employment.

Issue 1: That the claimant was not provided with appropriate light duty activity in keeping with injuries sustained;

The Panel has determined that the claimant was not provided with appropriate light duty work in keeping with the injuries that she sustained. Fortunately, this Panel has the benefit of hindsight to make this decision as it took the medical profession several incorrect diagnoses before they were able to properly assess the claimant's condition. As a result of the incorrect diagnoses it was also erroneously assumed by all concerned, except the claimant who knew how she was feeling, that she could perform light duty employment.

The claimant was initially diagnosed with a contusion of the right wrist immediately after her fall on September 26, 1996. Although the claimant only missed one day of work at that time, she never wavered in her position that her wrist gradually became worse over time. She experienced worsening pain and swollen fingers until she was unable to perform her regular work by February 4, 1997.

The claimant's initial contact with the medical profession at that point was with a chiropractor who diagnosed her with carpal tunnel and flexor tendon strain and upper dorsal myofascial pain. She was placed on light duties at work by her employer who responded appropriately to this diagnosis. She was also given a brace to wear by the employer.

The problem with this diagnosis is that it subsequently proved to be wrong. The light duty work was a response to the diagnosis which was as a consequence also incorrectly based.

Due to the fact that the claimant continued to be in constant pain and the fact that she could not continue with the light duty work given to her, she went to see a general practitioner on February 24, 1997. At this time she was diagnosed with right wrist tendinitis. In response to this a WCB medical advisor, without examining the claimant, prescribed light duty restrictions which included no heavy lifting over 20 lbs. and no repetitive movement of the right wrist/hand for 2 weeks. Again, this proved in hindsight to be an incorrect diagnosis and consequently incorrect restrictions were prescribed.

By her own evidence, the claimant has indicated that she continued after that point to perform her light duties in a considerable amount of pain until she was unable to continue to do so. She left her job on April 18, 1997, feeling frustrated both at her inability to do the job required of her and at the lack of medical reasons for her continuing pain.

For the employer's part, it is more than fair to say that they attempted to accommodate the claimant within the restrictions which had been medically prescribed. She was provided with several different light duty jobs by the employer, which included wiping furniture, utilizing the air gun to blow dust off the furniture, dripping sticks in paint, sanding furniture and finally putting screws into all different sized cleats. The problem with these jobs was not that they were beyond the restrictions at that time prescribed by the medical profession, but that the claimant was performing this job while in constant pain from a torn wrist which had not yet been diagnosed.

It is unfortunate that the claimant, due to the constant and excruciating pain that she was suffering, had to leave work without the blessing of her employer. By all accounts, including the evidence given by the employer's representative at the hearing of this matter, the claimant was a good worker. In particular, at page 100 of the transcript the following was commented upon by the employer's representative:

"... there is no question about your integrity at work. ... It says here [referring to the claimant's personnel file] that you were a good worker when you were at work and that wasn't a problem."

The claimant left work because she felt that she had no other choice. At page 126 of the transcript she described her position as:

"To me, I was in pain the whole time, and I didn't know where to put the pain, you know, except for hang it there, set it there, and that was it. I didn't know what to do."

This Panel is of the opinion, that after reviewing all of the evidence surrounding the claimant leaving the job site on April 18, 1997, that she did so for legitimate reasons and that she did not abandon her job.

From that point on, it is clear that the claimant remained in pain while playing a waiting game with the medical profession both for appointments and medical procedures until she was eventually correctly diagnosed. Up until approximately January of 1998, the medical profession continued to assume for the most part that the claimant was suffering from right carpal tunnel syndrome and tendonitis. The claimant was even scheduled for surgery for carpal tunnel syndrome on May 22, 1997, which surgery was canceled two hours before commencement after review by a WCB specialist. All of the restrictions to that date and for sometime thereafter were based upon this incorrect diagnosis.

As it turned out, in September of 1997 the claimant was seen by a hand specialist who recommended a series of tests on the claimant and referral to several specialists. A plastic surgeon, for the first time in the claimant's case, in January of 1998, concluded that the claimant likely had a partial scapholunate ligament tear and TFCC tear. It turned out that that would be the correct diagnosis and as the claimant explained in her evidence at page 65 and 66 of her testimony:

"The injury proved to be on the upside of my hand where Dr. [name] says when I fell, my fingers snapped back. That's where it actually that's why the injury had happened, on the top, that he could foresee."

Had the carpal tunnel surgery actually been performed it would have been on the underside of her wrist.

On March 16, 1998, the claimant underwent arthroscopic surgery to examine her right wrist. She was found by the operating surgeon to have a scapholunate ligament tear and partial lunotriquetral ligament tear. Further surgery was recommended in the form of a limited wrist fusion. In a report dated May 12, 1998, the surgeon noted the following:

"With the current diagnosis, [the claimant] should avoid any form of repetitive lifting, gripping or pinching activities with her right hand. This would include the activities in the job description provided in April, 1997."

Based on the above recommendation, the Panel is therefore of the opinion that the claimant was unable to perform her light duty functions at the time that she left her job. This information coupled with the claimant's evidence that she was in constant pain, on a balance of probabilities, supports this conclusion.

On June 2, 1998, the surgeon continued to note that the claimant was suffering from pain in her wrist and that her restrictions remained the same (i.e. ones that her previous light duty work did not comply with). Surgery was recommended. The Panel is of the opinion, therefore, at this point in time, until surgery and recovery were completed, that the claimant could not perform the previously prescribed light duty employment at her workplace. She would not have been fit to return to that same employment by April 3, 1998.

The claimant continued to experience significant wrist pain until a scapholunate ligament reconstruction with bone graft and a Blatt's capsulodesis were performed on September 17, 1998. At the time of the hearing of this matter, she was recovering fairly well from this procedure.

Due to all of the above reasons, the Appeal Panel has concluded that it was difficult if not impossible for the claimant to undertake any of the alternate duties that she was assigned at her workplace. She would not have been able to perform any of these duties up until her last surgery and recovery had been completed. By the same token, this Panel has also concluded that it was also impossible for the employer to try and accommodate her restrictions as a result of the continuing incorrect diagnoses up until the time of her termination.

Issue 2: That the claimant is entitled to payment of wage loss benefits for the period April 18, 1997 to March 15, 1998, inclusive;

For the above reasons the Appeal Panel concurs that the claimant is entitled to payment of wage loss benefits for the period April 18, 1997 to March 15, 1998, inclusive.

Issue 3: That the claimant is entitled to payment of wage loss benefits for the period May 6, 1998 to September 16, 1998, inclusive.

For the above reasons the Appeal Panel concurs that the claimant is entitled to payment of wage loss benefits for the period May 6, 1998, to September 16, 1998, inclusive.

Due to the personal circumstances of the claimant, the Appeal Panel elected to give an expedited decision on this matter on December 15, 1998.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of February, 1999