The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 18, 2001, at the request of the claimant and the employer. The Panel discussed these appeals on January 18, 2001 and June 28, 2001.

Issue

Employer’s Issue: Whether or not the claim is acceptable.

Claimant’s Issue: Whether or not the claimant is entitled to wage loss benefits between July 18, 1999 and October 28, 1999.

Decision

Employer’s Issue: That the claim is acceptable.

Claimant’s Issue: That the claimant is entitled to wage loss benefits between July 18, 1999 and October 28, 1999.

Background

While performing the duties of a cashier on July 15, 1998, the claimant felt a sharp pain in her right arm while scanning groceries. The initial diagnosis reported by the attending physician was tendonitis or a muscular strain to the right wrist. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on June 18, 1998. On June 29, 1998, the claimant returned to light duties which consisted partly of cashing duties and collecting coupons, making phone calls, etc.

In December 1998, the claimant developed left arm difficulties that she related to favoring her left arm due to the right arm injury. The diagnosis rendered by the attending physician was left medial epicondylitis. The claimant was prescribed a left forearm air cast splint and a referral was made to a physical medicine and rehabilitation specialist (physiatrist).

On February 26, 1999, the physiatrist reported that the claimant had findings of right upper limb dysfunction and that some of the symptoms were consistent with an epicondylitis. The specialist requested electrodiagnostic studies to assess for possible carpal tunnel syndrome.

Nerve conduction studies were performed on April 23, 1999 and the report showed moderately impaired median nerve conduction across both wrists, which was consistent with the clinical diagnosis of carpal tunnel syndrome. In view of these nerve conduction findings, the physiatrist indicated on May 19, 1999, that the claimant should be considered for a left carpal ligament release.

With respect to modified job duties, file information showed that by April 1999, the claimant discontinued any work related to cashier duties. At the end of May 1999, the claimant’s duties consisted of price checking only. On June 18, 1999, the attending physician advised the claimant to remain off work totally. The employer offered the claimant work that involved speaking with customers and offering suckers to children.

On July 21, 1999, the claimant was informed that the WCB would be accepting financial responsibility for her bilateral carpal tunnel condition as it was felt that the nature of her job duties had been a major precipitating factor to the onset of this condition. With respect to wage loss benefits, the adjudicator indicated that even though the diagnosis of carpal tunnel syndrome had been confirmed, the WCB remained of the opinion that the claimant was not totally disabled from work. Restrictions previously outlined, i.e. to avoid repetitive use of her arms and any heavy lifting would remain in place. The employer apparently had work that was in keeping with these restrictions.

In July and August 1999, discussions took place between the WCB adjudicator, the claimant, employer and attending physician concerning the various modified duties that had been offered/performed by the claimant. In a letter dated August 16, 1999, the WCB confirmed that it was still of the opinion that the claimant was not totally disabled from employment and that the employer had sufficient modified duties available, which were within her restrictions.

On August 17, 1999, the employer appealed the acceptance of the claim. The employer’s position was that the claimant’s present condition (i.e. carpal tunnel syndrome) was not the result of the initial injury that occurred on June 15, 1998 or that the claimant’s work duties and activities had caused her present condition.

An appeal was received from a union representative, dated September 9, 1999, contending that the claimant was entitled to wage loss benefits commencing June 18, 1999, which was the date her attending physician had declared her totally disabled. In subsequent correspondence, a job description of a “price checker” was submitted for consideration.

On October 29, 1999, the claimant underwent carpal tunnel release of the right hand. Financial responsibility for the procedure was accepted by the WCB and the claimant’s benefits were reinstated on October 29, 1999.

On February 18, 2000, Review Office determined that the claim was acceptable and that the claimant was not entitled to wage loss benefits for the period of June 18, 1999 to October 28, 1999.

With respect to the acceptance of this claim, the employer argued that the claimant actually performed scanning for only short periods of time following her right wrist and arm injury in June 1998. Review Office did not accept the contention that the modified duties performed by the claimant subsequent to her return to work after the June 1998 injury would be a significant factor in the development of carpal tunnel syndrome.

Review Office made reference to a January 10, 2000, medical report that was submitted by the employer. Review Office stated the report concurs that grocery scanning was causal for the development of carpal tunnel syndrome and that median nerve symptoms could be brought on by use of a wrist splint. Reports on file confirmed that a right wrist splint was being used by June 1998 for the claimant’s right medial epicondylitis. Similarly, in December 1998, the claimant had been prescribed a left wrist splint for problems experienced in the left forearm. Review Office concluded that the true cause of the claimant’s bilateral carpal tunnel syndrome was debatable, however on a balance of probabilities, her work must be considered a causative factor in the development of this condition.

Review Office confirmed that the claimant was not totally disabled between June 18, 1999 and October 28, 1999. According to Review Office, the duties of a price checker or a greeter were considered to be suitable for an individual diagnosed with mild to moderate bilateral carpal tunnel syndrome. Both the employer and union representatives appealed Review Office’s February 18, 2000, decisions and an oral hearing was arranged.

Following a hearing on January 18, 2001, the Appeal Panel requested that sworn statements be obtained from all parties who were present at a meeting which took place at the employer’s premises prior to June 18, 1999 when the claimant was offered modified duties. On June 7, 2001, all interested parties were given copies of the statements that were received in connection with the Appeal Panel’s request and were asked to provide written comments. On June 28, 2001, the Panel met to discuss the case further.

Reasons

Chairperson MacNeil and Commissioner Monk:

On appeal, the employer challenged the acceptability of the claimant’s carpal tunnel syndrome stating that her work duties were not causative factors of this condition and that in all likelihood the condition had developed idiopathically. It is not entirely clear from the file materials whether the WCB accepted the claim based on the claimant’s work duties as being the causative factor or whether the work duties had caused an aggravation or acceleration of what was otherwise an asymptomatic pre-existing condition. We note, however, that for whatever the reasons the WCB medical advisors accepted responsibility for the surgical procedures performed on the claimant. Regardless, we are not inclined in light of the evidence that is before us at this time to disturb the WCB’s determination. Suffice it to say that an accident, as defined by the Act, did occur, which resulted in injury to the claimant. Accordingly, we find the claim to be acceptable and the employer’s appeal is hereby dismissed.

With respect to the second issue, we find that the claimant is entitled to wage loss benefits from June 18^th, 1999 to October 28^th, 1999. At the time the claimant returned to work, the treating physician had assigned her temporary work restrictions. These restrictions were to remain in effect until such time as the claimant returned to her pre-accident status. A modified work program was established to assist the claimant with her difficulties. Despite the light duties assigned to the claimant, she began over time to find it increasingly more difficult to perform these tasks. In April 1999, a meeting involving the claimant, her supervisor, the shop steward and the store manager was arranged to discuss the possibility of providing the claimant with a variety of daily light duty jobs as opposed to her doing one particular job all the time.

We note that there was never any work site assessment done by either the employer or by the WCB with respect to these alternate or modified duties. In addition, there was no documentation made of the various job duties that had been canvassed at the meeting or what was expected of her. The claimant informed the employer that she experienced problems performing the pricing and checking duties. These activities, as well as others, aggravated her condition and many were not consistent with the restrictions set out by her treating physician. It was the claimant’s evidence that she ended up having to do repetitive duties as opposed to being assigned a variety of different duties.

We find that although the claimant was not totally disabled she was nevertheless, on a balance of probabilities, physically incapable of performing many of these light duties on a repetitive basis. Accordingly, we are of the view that the claimant is entitled to receive wage loss benefits between June 18^th, 1999 and October 28^th, 1999.

Panel Members

R. W. MacNeil, Presiding Officer
H. W. Middlestead, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of July, 2001

Commissioner's Dissent

The contentious issue is whether the claimant was totally disabled prior to her surgery, i.e. the period from July 18, 1999 to October 28, 1999.

There is no medical report on file supporting her claim of total disability from work effective June 18, 1999. Indeed, the claimant’s own physician noted on June 30, 1999 that the claimant was fit for temporary modified work. This point was echoed by the WCB’s specialist on May 12, 1999.

Other factors appear to be present here. For example, on June 17, 1999 the claimant stated that “she could not perform the job function of price checking because her arms and knees could not handle the walking. She refused a job as a ‘greeter’ which involves speaking with customers and offering suckers to children.” The file indicates that the claimant is “even trying to say that handing out suckers is a chore.” Another time the claimant is quoted as saying “that she felt she was too old to be walking around the store doing price checks”. On August 11, 1999 the claimant’s file quotes her as saying “standing all day long was causing problems.”

These comments by the claimant should be taken in conjunction with the opinion of a medical specialist in occupational medicine who states that “non-occupational factors are predominant in the claimant’s case.”

Based on these facts, it is my contention that the claimant was not totally disabled during the period in question and hence is not entitled to wage loss benefits from June 18, 1999 to October 28, 1999.

H. W. Middlestead, Commissioner