The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Issue

Whether or not the worker is entitled to benefits on ‘the direct basis of the claim’ as that phrase is used in the decision of the Manitoba Court of Appeal in relation to this matter;

Whether or not the shoulder condition was sustained in an accident in the course of employment; and,

Whether or not the worker is entitled to benefits after July 16, 1993.

Decision

That the worker is entitled to benefits on ‘the direct basis of the claim’ as that phrase is used in the decision of the Manitoba Court of Appeal in relation to this matter;

That the shoulder condition was sustained in an accident in the course of employment; and

That the worker is entitled to benefits after July 16, 1993.

Decision: Unanimous

Background

On October 3, 1992, the worker was using a utility knife to open stock when he began to develop pain in the second joint and pad of his right index finger. He also suffered swelling in his right hand from the second knuckle to the base of his hand. When he attended a physician for treatment, he was diagnosed with soft tissue bruising of the right index finger which was related to his gripping of the utility knife. There was no pre-existing condition to affect the worker’s recovery. By October 20, 1992, it was determined by the treating physician that the worker was fit to return to work with respect to his right index finger. The WCB found that any loss of earning capacity due to this injury was compensable under The Workers Compensation Act (the Act).

On November 25, 1992, a second physician noted that the worker had sustained bilateral scaphoid fractures from playing football in 1979 or 1980 and that the worker had some difficulty with moving these joints over the years. The physician's examination findings revealed tenderness at the base of the worker's thumbs, a loss of horizontal movement at the wrist joints and limitation of movement in flexion and extension. There is no current finding by the WCB that these fractures were caused, aggravated or enhanced by his work.

On December 1, 1992, the worker was assessed by an orthopaedic specialist for bilateral non-united scaphoid fractures. As the specialist felt that surgical intervention was warranted, an appointment with an orthopaedic surgeon was made for February 17, 1993.

In a report dated March 2, 1993, the orthopaedic surgeon noted that the worker had bilateral fractures of the scaphoid which had been present for a number of years and that he also complained of pain in his right index finger. He opined that the worker required right wrist surgery which would take the form of a bone graft. He indicated that he would also assess the worker’s index finger during the right wrist surgery to see whether the tendons needed to be released. A copy of the surgeon's letter was sent to the WCB and the WCB has acknowledged that “we accepted responsibility for the right index finger surgery and the resulting time loss.”

On April 23, 1993, the attending physician reported that the worker was diagnosed with trigger finger by the orthopaedic specialist.

On June 4, 1993, the worker underwent the following surgical procedures to repair injuries to his right wrist and right index finger: “Bone graft right carpal scaphoid and release tendon sheath right index finger.” The post-operative diagnosis was “non-union right carpal scaphoid and stenosing tenosynovitis of right index finger.” In a follow-up report dated June 28, 1993, the orthopaedic surgeon noted that the wound on the worker’s right index finger had healed. The surgeon also observed that the worker had a slight decrease in the range of motion of his right index finger because of the pain but that he was expected to recover over the next two weeks.

In a progress report of November 24, 1993, the orthopaedic surgeon noted that the worker had winging of the right scapula secondary to a long thoracic nerve palsy.

In a letter to the worker’s solicitor dated March 4, 1994, the orthopaedic surgeon reported that the worker received a brachial plexus block during surgery on June 4, 1993 followed by a light general anaesthetic when complete pain relief was not provided. Within three days of surgery, the worker noted pain in his right shoulder and that his scapula was bulging posteriorly. When the worker was seen by a colleague of the surgeon on July 14, 1993, the worker’s scapula was observed to be winging. Following a neurologic consultation, the worker received electrophysiological confirmation of long thoracic nerve palsy. The long thoracic nerve supplies the muscles responsible for maintaining the scapula in the correct position.

On April 11, 1994, a WCB medical advisor was asked by primary adjudication to comment on the etiology of the worker’s shoulder problem. He responded that it was likely a complication from the brachial plexus block at the time of surgery in June 1993 and that the long thoracic nerve was likely damaged in the process.

The WCB accepted responsibility for the winging of the worker’s right scapula on the basis that it was directly related to the surgical procedure for his compensable finger injury.

Subsequent medical information showed that the worker continued to experience pain around the musculature surrounding his right scapula. He was treated accordingly.

On June 9, 1996, a WCB medical advisor expressed the view that the usual anaesthetic for a trigger finger would be a ring block to the involved finger. He said that no anaesthetist would use a brachial plexus or axillary block to deal with an isolated flexor tendon trigger finger. He stated the anaesthetic was only used because of the non-compensable scaphoid fracture.

The MRP

A Medical Review Panel (MRP) was later convened on November 25, 1996 to clarify a number of issues related to the worker’s surgery and its relationship to the compensable injury. In part, the MRP stated that the worker had a failed brachial plexus block followed by general anaesthesia. In the Panel's view, if the worker were only to have a repair of the flexor tendon of the right index finger, he would have had a local anaesthetic only. A brachial plexus block would not be done for release of the flexor tendon in the index finger. The choice of the brachial plexus block was because of the additional surgery to the right scaphoid.

Based on the findings of the MRP, it was determined by a WCB unit supervisor that the worker’s current disability was not a direct result of his right index finger but was a sequela solely due to the brachial plexus block which was required to address his non-compensable scaphoid problem. The worker was later informed that he would only be entitled to wage loss benefits to July 16, 1993 as a maximum of six weeks would have been appropriate in relation to the surgical repair of his trigger finger.

The Review Office Decision

In a submission to Review Office dated June 13, 1997, the worker’s union representative argued that the worker’s pre-existing fractures were enhanced by his work activities and that surgery was necessary. He based his position on the opinions he obtained from the worker’s family physician and orthopaedic surgeon dated April 29, 1997 and May 28, 1997 respectively.

On July 11, 1997, Review Office determined that the worker was not entitled to benefits after July 16, 1993, due to the effects of his work related accident in October 1992 or for any other work-related accident as defined by the Act. Review Office’s position on the matter was as follows:

• the worker’s scaphoid fractures to both wrists represented a non-compensable pre-existing condition which was related to the worker’s football playing in 1979 or 1980.
  
• the history of claimed wrist pains over the years did not establish any causal relationship to a work related accident or employment activities.
  
• the bone grafting was prescribed because the fractures had not united, not because the pain had increased to the point where surgery became necessary.
  
• there had not been any significant evidence to indicate that the pre-existing conditions had been permanently altered or made worse as the result of a work-related accident.

The Appeal Commission Decision

On July 31, 1997, the union representative appealed Review Office's decision on the grounds that Review Office ignored the opinions of the worker’s attending physicians. On November 5, 1997 a hearing took place at the Appeal Commission.

In Decision No. 245/97, a majority of the appeal panel determined that the worker was not entitled to benefits after July 16, 1993. The majority panel stated, in part,

We consider the claimant had recovered from his finger injury by July 16, 1993, to the point where it was not contributing to a material degree to his loss of earning capacity beyond that date, and that the pre-existing wrist conditions have not been enhanced as a result of an accident arising out of and in the course of the claimant's employment.

We consider that the right carpal scaphoid surgery performed on June 4, 1993, 8 months after the claimant had stopped work, or the need for left scaphoid surgery performed on April 14, 1994, 18 months after the claimant had stopped work, is not compensable or due to an accident arising out of and in the course of the claimant's employment.

The brachial plexus block which was given to the claimant on June 4, 1993, was on weight of the information and balance of probability, because of the right carpal scaphoid surgery the claimant underwent at that time, and not because of the flexion tendon release. The MRP has said: "The panel feels that the choice of the brachial plexus block was because of the additional surgery to the right scaphoid. In the absence of practitioner evidence to the contrary, we accept the MRP's opinion.”

Under the circumstances we conclude on weight of the evidence and on balance of probability, that there is no entitlement to benefits after July 16, 1993, due to the October 1992 accident, or to any other work related accident defined by the Workers Compensation Act (the Act).”

On August 10, 1998, the union representative requested reconsideration of the panel’s decision under subsection 60.91 of the Act. New medical evidence was submitted dated July 10, 1998 from a hand and wrist specialist in which he stated that the worker’s occupation involved repetitive activities involving gripping and lifting and there was no doubt that this would enhance his pre-existing condition.

On September 8, 1998, the Chief Appeal Commissioner concluded that the evidence submitted did not meet the requirements of subsection 60.91 of the Act and she was therefore unable to order reconsideration.

The Court of Appeal Decision

The worker subsequently brought an application for judicial review of Commission Decision 245/97. That review was heard by the Manitoba Court of Appeal on January 21, 2005. On April 1, 2005, the Court of Appeal quashed the Appeal Commission decision of November 25, 1997.

In making its decision, the Court observed that:

• the Board acknowledged that the injury to the worker's trigger finger was an injury by accident arising out of and in the course of his employment (the compensable injury);
• the worker was also suffering from sore wrists which were related to a pre-existing condition (the pre-existing condition)
• an orthopaedic surgeon recommended surgery on the worker's right wrist and right index finger;
• the Board was aware that there would be surgery on both the right index finger and the right wrist during the same operation;
• the Board accepted responsibility for the right index finger surgery and resulting time loss;
• the surgery on the right index finger and right wrist took place on June 4, 1993;
• during the course of the surgery, the worker was administered anaesthetic via a brachial plexus block;
• the worker's right long thoracic nerve was damaged during the application of the block and the worker began to experience bulging in his scapula and to suffer pain;
• as a consequence of the block, the worker became disabled due to severely disrupted mechanics to the right shoulder;
• the worker has never returned to work and “appears to be disabled with no likelihood that he will recover”.

In considering the merits of the worker's claim, the Court noted that:

If one paused here, stepped back, and examined the applicant's situation, it would be difficult, in my opinion, to see how a conclusion denying the applicant benefits could be anything other than clearly irrational, or patently unreasonable. After all, he was injured while at work, he received medical treatment with respect to that very injury, in the course of that treatment an anaesthetic was administered, and he was injured as a result of that anaesthetic. Why was he, then, not entitled to compensation? (para 55)

The Court of Appeal went on to find that the Appeal Commission had erred by failing to address the direct basis of the claim.

The fundamental problem created by the Decision, in my view, is that it failed to address the direct basis of the claim. Another way to express the problem is to say that the Commission failed to ask itself the necessary questions. (para 57, emphasis added)

The Court elaborated on the necessary questions:

The Commission has exclusive jurisdiction to determine whether (i) the applicant's shoulder injury was caused by an “accident” . . . and (ii) whether his injury arose out of, or in the scope of his employment. . . .The Commission had the duty to ask . . . whether the disabling shoulder injury was sustained in an accident in the course of employment. Had it asked that question, the direct basis of the claim would have been squarely raised and would have to have been considered. (para 60)

If the shoulder injury was sustained “in the course of employment,” which by the extended meaning to that phrase would include during surgery for the finger injury, then it would be inevitable . . that compensation would follow. (para 61)

The Appeal Commission Hearing

As a consequence of the Court of Appeal decision, a new hearing before the Appeal Commission was arranged at the request of legal counsel, acting on the worker’s behalf. At the outset of the hearing of February 8, 2007, counsel for the worker confirmed that the issue of whether the worker's pre-existing wrist injuries were enhanced by his work duties was not before the panel. He indicated that if necessary, that issue would be addressed at a separate hearing.

In terms of the issue of whether the worker was entitled to benefits after July 16, 1993, counsel for the worker noted that the following key facts were not in dispute.

• the worker suffered an injury to the trigger finger of his right hand via an accident arising out and in the course of his employment;
• surgery was recommended for the compensable injury;
• the surgery was approved by the WCB;
• the surgery was conducted on June 4, 1993;
• an anaesthetic was medically required to conduct the surgery;
• in the course of that surgery, an anesthetic was applied via a brachial plexus block;
• as a result of the anesthetic, a permanent injury resulted.

Counsel for the worker agreed that the same adjudicative result would follow whether one applied the “direct basis” analysis suggested by the Court of Appeal or WCB policy. In his view, “the decision of the Court of Appeal, in essence, reflects the policy.” In counsel's view, “the Board policy and the Court of Appeal and the law have acknowledged that an injury that occurs in the context of surgery for a compensable injury is compensable.” In support of this proposition, he cited the decision of the New Brunswick Court of Appeal in Keddy v. New Brunswick:

As a matter of law, a worker who is injured while receiving medical treatment with respect to a work-related injury is acting within the course of his or her employment at the time of suffering the subsequent injury. (2002 Carswell NB 89 (CA) at para 87)

In the view of counsel for the worker, “Compensable injury, surgery for compensable injury, injury in the context of the surgery for compensable injury equals compensation.”

Reasons

Panel Members

B. Williams - Presiding Officer

Signed at Winnipeg this 30th day of March, 2007