The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 17, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 17, 1999.

Issue

Whether the claimant's right elbow difficulties including the ulnar nerve decompression surgery performed on November 20, 1997, are related to the right hand injury of January 14, 1997, and

Whether the claimant is entitled to payment of wage loss benefits due to the November 20, 1997 right elbow surgery.

Decision

That the claimant's right elbow difficulties including the ulnar nerve decompression surgery performed on November 20, 1997, are not related to the right hand injury of January 14, 1997, and

That the claimant is not entitled to payment of wage loss benefits due to the November 20, 1997 right elbow surgery.

Background

While employed as a labourer/warehouseman on January 14, 1997, the claimant was pulling a box on conveyor rollers when his glove was caught in the roller and his hand was pulled in.

On the same day of incident, the claimant attended a local hospital for treatment. The hospital report indicated that the claimant's right hand was crushed by rollers. Right wrist x-rays identified no fracture. The diagnosis was reported as a soft tissue injury.

The claimant attended his family physician for treatment on January 16, 1997. The physician noted multiple abrasions of the dorsum of the right hand along with swelling, bruising and loss of power. On January 28, 1997, the claimant still had stiffness and swelling of the right hand and developed numbness and paresthesia of the right 4th and 5th fingers. On February 18, 1997, the claimant was referred to a hand specialist and was considered fit for light duties. Wage loss benefits were paid from January 15, 1997, to February 18, 1997.

The next medical report was the results of nerve conduction studies that were carried out on June 11, 1997. The impression of the results were reported as follows:

1) "There is mildly impaired conduction along the R median nerve at the wrist without any signs or symptoms of CTS (carpal tunnel syndrome).

2) There is a mild delay in conduction across the R elbow without any evidence of conduction block. The significance of this slowing is unknown."

When seen by the hand specialist on May 5, 1997, the claimant was reported to have symptoms consistent with a right ulnar nerve compromise. Surgery was not recommended at this time and the claimant was referred to occupational therapy for fabrication of a moulded elbow extension splint.

The case was reviewed by a Workers Compensation Board (WCB) medical advisor on August 9, 1997, to determine whether the proposed elbow extension splint was related to the compensable accident. The medical advisor denied authorization for the splint as he was of the view that the compensable injury involved only the right hand and not the elbow.

On November 17, 1997, the treating hand specialist reported that the claimant continued to experience symptoms and signs of a right ulnar neuropathy and evidence of entrapment of the nerve at the level of the elbow. The claimant was placed on a surgical waiting list for ulnar nerve decompression.

On November 28, 1997, a WCB medical advisor wrote to the hand specialist to advise that the proposed surgery would not be authorized as a WCB responsibility. The medical advisor clarified that the initial injury was a crush injury to the right hand with no indication of soft tissue injury or other injury to the upper extremity, above the level of the wrist. The medical advisor concluded that a causal relationship did not exist between the original injury and the pathology present in the elbow region.

A worker advisor, acting on the claimant's behalf, wrote to the treating hand specialist on March 3, 1998, providing him with a detailed description of how the claimant's injury occurred. In response to the worker advisor's request the hand specialist provided a report dated March 23, 1998. The worker advisor made note of the following comment made by the hand specialist and asked primary adjudication to reconsider its earlier decision to deny benefits:

"I feel that it will be very difficult for the Workers Compensation Board to prove that his injury was not a factor in his development of a cubital tunnel. It is quite possible that he had an incipient cubital tunnel problem which the twisting injury could have aggravated and turned into a full blown clinical situation."

Subsequent file information consisted of sworn statements from the claimant and two co-workers/witnesses dated June 9, 1998. A video tape was also taken of the claimant re-enacting the accident of January 14, 1997. The case and video tape was reviewed by a WCB medical advisor in June 1997 and he concluded there was no evidence that any injury occurred to the arm proximal to the wrist, therefore the pathology in the cubital tunnel could not be related.

On June 23, 1998, following a complete review of the file including statements and the video, primary adjudication determined that the evidence did not support a causal relationship between the mechanism of the September 1997 accident and the need for an elbow brace and right elbow surgery.

On November 18, 1998, the Review Office acknowledged receipt of an appeal by the worker advisor dated November 3, 1998. Prior to considering the appeal, the Review Office obtained an opinion from a WCB orthopaedic consultant dated December 8, 1998.

In a decision dated December 11, 1998, the Review Office confirmed that responsibility would not be accepted for either the ulnar nerve decompression procedure of November 20, 1997, or for any related time loss.

The Review Office stated in part that the claimant's right hand was crushed between two rollers and there was no indication that any injury occurred at a point above the right wrist. If damage was done to the ulnar nerve, Review Office believed there would have been compromise at the level of the right wrist and hand with the mechanics of the injury sustained. In the opinion of Review Office, the described injury did not compromise the ulnar nerve at the level of the elbow.

It was noted by Review Office that according to the specialist treating the claimant "exploration showed that there was chronic thickening and scarring of the tissues within the cubital tunnel causing compression of the nerve together with extra slip of the triceps muscle that was crowding the tunnel as well." Review Office stated that these findings in themselves were inconsistent with an injury occurring involving the right hand/wrist.

On January 26, 1999, the claimant and worker advisor appealed the Review Office's decision and an oral hearing was held on March 17, 1999.

Reasons

The issues in this appeal are whether the claimant's right elbow difficulties including the ulnar nerve decompression surgery performed on November 20, 1997 are related to the right hand injury of January 14, 1997; and whether the claimant is entitled to the payment of wage loss benefits due to the November 20, 1997 right elbow surgery.

The relevant subsections of The Workers Compensation Act (the Act) are subsections 1(1) which defines accident and 4(1) which provides for the payment of compensation for personal injury by accident arising out of and in the course of employment.

Subsection 1(1) states:

Section 1(1) of the Workers Compensation Act, states:

"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

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

Subsection 4(1) states:

"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."

We reviewed all the evidence on file and given at the hearing including a videotape filmed at the workplace which showed the claimant at the job site and a re-creation/simulation of the original accident. We find that the weight of the evidence, on a balance of probabilities, does not support a finding that responsibility should be accepted for the claimant's right elbow difficulties and consequent decompression surgery as related to the accident of January 14, 1997 and that therefore there is no entitlement to benefits due to the November 20, 1997 right elbow surgery.

The claimant was injured on January 14, 1997 while working as a warehouseman placing boxes on a conveyor belt when the glove he was wearing caught in the rollers of a conveyor belt pulling in and trapping his hand between two rollers. Initial medical reveals that the claimant sustained a soft tissue crush injury to the right hand up to and including the wrist area with multiple abrasions to the dorsum of the hand with swelling and bruising with no noted neurovascular injury.

Two weeks after the accident the attending physician noted complaints of numbness and parasthesia to the right 4th and 5th fingers of the affected hand. The claimant returned to light duties February 27, 1997 but continued to experience problems. The claimant was referred for nerve conduction studies which were performed June 11, 1997 which revealed a mild delay in conduction across the right elbow without any evidence of conduction block.

The claimant was seen by a hand specialist who noted the slowed conduction but felt that surgery was not indicated at that time. The claimant was seen again by the hand surgeon on November 17, 1997 who noted the signs and symptoms of right ulnar nerve neuropathy had not improved and the claimant was placed on a waiting list for right ulnar nerve decompression which took place November 20, 1997.

We find that the weight of the evidence reveals that no relationship has been established between the original compensable injury and the right elbow condition and consequent surgery. The initial injury was clearly a soft tissue crush injury to the right hand including the wrist involving multiple abrasions with swelling and bruising with no indication of any neurovascular injury and no soft tissue injury to any other area above the wrist. We have reviewed the results of the ulnar nerve decompression surgery at the right elbow as outlined in a narrative report from the hand surgeon dated March 23, 1998. We note from this report that there was significant pre-existing pathology which was not caused by the compensable injury. Although the hand surgeon offered his opinion that:

" I feel it would be very difficult for the Workers Compensation Board to prove that his injury was not a factor in his development of a cubital tunnel. It is quite possible that he had an incipient cubital tunnel problem which the twisting injury could have aggravated and turned into a full blown clinical situation."

A review of the videotape recreating the mechanism of injury and the claimant's evidence at the hearing where he indicated his right hand was trapped in the conveyor at the wrist between two rollers; that only one attempt was made to pull the hand free and the initial medical evidence immediately following the injury leads us to conclude that a twisting injury to the elbow did not occur.

Having also taken into account the videotape evidence, we place greater weight on the comments of a WCB medical advisor who in response to an adjudicator's inquiry in June 1997 indicated the following:

" Video viewed. I see no evidence that any injury occurred to the arm proximal to the wrist. Therefore pathology in cubital tunnel cannot be related in my opinion."

We also place weight on the opinion offered by a second WCB orthopaedic medical advisor who indicated:

" In my opinion it is not consistent that the claimant sustained an injury to the right ulnar nerve at the level of the elbow with the mechanism of injury described occurring January 14, 1997. The injury was to the right hand up to the level of the wrist and the right wrist was x-rayed at the time of his initial hospital visit. It is more likely that the ulnar nerve would have been compromised at the level of the wrist and hand with this type of injury. Furthermore, the findings reported on surgical exploration of the ulnar nerve at the level of the elbow are also inconsistent with an injury occurring to the right hand and wrist. It is my opinion that the described injury would not compromise the ulnar nerve at the level of the elbow."

In summary, we note that the claimant sustained an unfortunate and frightening incident at work. Nevertheless, based on the evidence as noted, we are unable to relate the claimant's subsequent problems with his right elbow and consequent surgery to the compensable event. Therefore the claimant's appeal is denied.

Panel Members

D. A. Vivian, Presiding Officer
P. Challoner, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 8th day of April, 1999