Decision #183/06 - Type: Workers Compensation
Preamble
This case deals with the relationship between the worker’s ongoing medical problems and his employment. The worker claimed that the physical nature of his employment caused shoulder and arm injuries. The Workers Compensation Board (WCB) accepted his claim but only in relation to bursitis in his right shoulder. The WCB at the primary level and Review Office denied responsibility for his ongoing problems. The worker appealed to the Appeal Commission.
An appeal panel hearing was held on May 24, 2006, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal following the hearing on May 24, 2006 and again on July 10, 2006 and October 12, 2006.
Issue
Whether or not the worker is entitled to wage loss benefits and services beyond November 29, 2002.Decision
That the worker is entitled to wage loss benefits and services beyond November 29, 2002.Decision: Unanimous
Background
The worker filed a claim with the WCB for pain in his right shoulder and both hands which he related to the repetitive nature of his job duties that involved hanging wheels onto a conveyor belt approximately 800 to 1000 times per day. The date of accident was recorded as being October 18, 2002.
On October 23, 2002, the worker said he was not sure if his hand and shoulder pain was work related. His doctor told him that the pain may be related to the antibiotics he was taking for a kidney infection. On November 20, 2002, the worker advised the WCB that he quit taking antibiotics as the pain in his shoulder was getting worse.
In a report dated November 10, 2002, the treating physician diagnosed the worker’s condition as bursitis in the right shoulder.
The worker was seen for treatment by an orthopaedic specialist on November 1, 2002 with complaints of chronic pain in his right shoulder and right upper limb. He had occasional pain in his neck and aches in his left shoulder. There was numbness in the right thumb and index finger. Recent x-rays of the right shoulder showed that the glenohumeral joint and acromioclavicular joint was intact. The specialist concluded that the worker had right shoulder bursitis and was treated with injection, local heat and shoulder pendulum exercises.
In a follow-up visit on November 8, 2002, the orthopaedic specialist reported that the worker complained of weakness in the radial digits of both hands for several weeks. The worker had trouble grasping and pinching with the thumb to index finger bilaterally. The orthopaedic specialist concluded his report by stating, “The cause for the weakness in his hands is not clear at this time. There are some features compatible with interosseous median nerve palsy both hands or cervical disc syndrome.”
On November 28, 2002, a WCB adjudicator denied the worker’s claim for compensation as she was unable to establish a relationship between the development of the worker’s right shoulder and hand difficulties to an accident arising out of and in the course of his employment.
On May 25, 2004, the worker underwent surgery to his right forearm and on August 6, 2004 he underwent surgery to his left forearm. Both surgeries were for exploration and decompression of the anterior interosseus nerve.
On December 24, 2004, a worker advisor presented argument that the requirements of subsection 1(1) of The Workers Compensation Act (the Act) had been met. He submitted that the worker was responsible for hanging 600 to 700 wheel rims and that this was the thing that was done and the doing of which that worsened his hand and shoulder condition. The worker advisor also provided the WCB with additional medical reports from a neurologist and a surgeon along with a report from an occupational health physician dated December 20, 2004 in support of his position.
The worker was assessed by another orthopaedic specialist on February 2, 2005. He noted that the worker had been off work with regard to anterior interosseous nerve compression for which he underwent bilateral decompressions. The worker had not noticed any improvement in spite of being off work for the past two years. The worker’s pain was mostly over the lateral aspect of the shoulder and was exacerbated by any attempt at lifting or reaching overhead. The specialist’s impression of the worker’s condition was chronic impingement syndrome.
On June 2, 2005, a WCB medical advisor reviewed the file information which included operative reports dated May 25 and August 6, 2004. She concluded there were no findings at the time of surgery which could be related to a compensable injury.
On September 13, 2005, the same WCB medical advisor reviewed the file and stated,
“Initial reports on file dx [diagnose] ® shoulder bursitis. With appropriate tx [treatment] normal recovery would be 4-6 weeks.
The dx of bilateral RC [rotator cuff] impingement is introduced in 2004, 2 yrs. after the initial claim & after he stopped working. It would be very difficult to relate that dx to his work duties given the timing involved.”
In a decision dated September 15, 2005, a supervisor with short term claims advised the worker that the WCB was accepting responsibility for his right shoulder bursitis condition and that he would be entitled to benefits for six weeks after October 18, 2002 which was the normal recovery norm for such a condition. He further stated, “As the suggestion of bilateral impingement syndrome was not introduced until recently we are unable to attribute this condition to your past work activities. As a result, we are unable to accept responsibility for your ongoing shoulder difficulties.” On October 7, 2005, the worker appealed this decision to Review Office.
On January 5, 2006, Review Office determined that the worker’s ongoing problems with his shoulders and arms were not work related and that test results and medical investigations did not confirm any work related diagnosis other than bursitis of the right shoulder. Review Office found no conclusive diagnosis for the worker’s ongoing problems with his shoulders or arms and noted that the worker’s condition became much worse after he stopped working over the years between October 2002 and September 2005. Review Office therefore confirmed that the worker was not entitled to further benefits beyond November 29, 2002 as the change in diagnosis beyond that date was not related to the worker’s compensable right shoulder bursitis condition. On February 28, 2006, the worker appealed Review Office’s decision and a hearing was arranged.
Following the hearing, the appeal panel requested additional information from the worker’s treating neurologist. On June 23, 2006, the neurologist’s report of June 12, 2006 was forwarded to the interested parties for comment.
On July 10, 2006, the appeal panel met further to discuss the case and decided to write to the treating orthopaedic specialist to obtain clarification with respect to the operative reports of May and August 2004 concerning the worker’s bilateral forearm conditions. On September 21, 2006, all interested parties were provided with the orthopaedic specialist’s report of September 11, 2006 and were asked to provide comment. On October 12, 2006, the panel met further to discuss the case and to render its final decision.
Reasons
Applicable Legislation and Policy
In this case the worker is seeking wage loss benefits and other services. In general terms, if the worker is unable to work or requires ongoing medical treatment as the result of a workplace accident, wage loss benefits and other benefits are provided under the Act. Applicable provisions include subsections 4(2), 39(1), 39(2), and 27(1).
Worker’s Position
The worker attended the hearing with an advocate who made a submission on the worker’s behalf. The worker answered questions posed by his representative and the panel.
The worker described his duties which involved lifting rims from a conveyor at shoulder height and piling the rims onto pallets. The rims weighed between 40 to 60 pounds and were piled approximately head high. The worker worked between eight and ten hours each day and five to six days each week. In a typical day he would move 700 to 800 rims.
The worker described the onset of his symptoms. He advised that both shoulders became symptomatic around the same time. Suddenly his shoulders became painful and weak and he could not continue to work. He advised that his hand symptoms developed later, after he had stopped working. He described his hand symptoms as being unable to hold a pen. He was not able to grip items with his index finger and thumb.
The worker advised that he had surgery but still has some difficulty gripping items with his index finger and thumb. He cannot lift heavy items. He still has some pain in his shoulders but not as pronounced as in 2002.
The worker advised that he has not worked since 2002. He recently completed training to become an independent living attendant. At the time of the hearing he was completing the practicum portion of the training.
The worker’s representative noted the difficulty that the worker has encountered in obtaining a diagnosis for his condition. The representative submitted that the worker’s condition was caused by the heavy lifting at work and that the worker should be compensated for his injury.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits and services beyond November 29, 2002. For the appeal to be successful, the panel must first find that the worker’s ongoing medical difficulties are causally related to his employment duties.
The panel must apply the civil standard of a balance of probabilities in deciding the issue before it. The panel accordingly finds, on a balance of probabilities, that the worker’s medical difficulties are causally related to his employment duties and that the worker is entitled to benefits and services beyond November 29, 2002.
In arriving at this decision the panel finds that the worker suffered from anterior interosseus nerve syndrome and places significant weight upon the following:
- the worker’s job duties were very physical and affected both hands equally. This is consistent with the bilateral nature of the worker’s condition.
- June 12, 2006 report of treating neurologist. He noted that the clinical picture of the worker’s condition in 2002 was consistent with anterior interosseous nerve syndrome. He opined that the anterior interosseous nerve lesions were work related. He noted that the worker underwent bi-lateral decompression and his strength improved and that the surgical report on the right side did suggest a tendon causing compression of this nerve.
- September 11, 2006 report from treating orthopedic specialist. He noted that in the right forearm, there was a tendinous portion of muscle that ran over a nerve that supplied muscle to the index finger and thumb. Through surgery the tendinous portion of the muscle was released. The specialist also noted that the worker had small blood vessels running across the nerve and these were tied off. He opined that it is possible that with repetitive job duties these structures may have caused compression of the nerve. He noted that there was improvement in the worker’s function after the surgery.
- December 20, 2004 report of occupational health physician. The physician opined that the worker most likely suffered from anterior interosseus nerve syndrome which may have been caused or worsened by the worker’s employment.
The panel notes that in an April 28, 2005 memo, a WCB medical advisor noted that the diagnosis for the worker’s bilateral hand weakness appeared to be bilateral anterior interosseus nerve syndrome, but wished to see the operative report to see what was found in the surgery. After viewing the operative report the medical advisor commented there were no findings at the time of surgery which could be related to a compensable injury. The panel prefers the opinion of the treating neurologist and orthopedic specialist who opined that the condition could be related to the worker’s employment.
The appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of November, 2006