Decision #06/08 - Type: Workers Compensation

Preamble

A hearing was held at the Appeal Commission on May 10, 2007 at the worker’s request. The panel discussed the case on several occasions, the last one being December 19, 2007.

Issue

Whether or not the worker’s entitlement to full wage loss benefits should be reinstated; and

Whether or not responsibility should be accepted for the worker’s radial tunnel condition.

Decision

That the worker’s entitlement to full wage loss benefits should not be reinstated; and

That responsibility should not be accepted for the worker’s radial tunnel condition.

Decision: Unanimous

Background

On June 30, 1999, the worker suffered an injury to his right elbow when he climbed down a ladder and struck it on a ladder rung. The claim for compensation was accepted based on the diagnosis of a soft tissue injury and lateral epicondylitis. The worker subsequently underwent a number of treatment modalities to improve the function in his right elbow but the treatments proved to be unsuccessful. In 2003, the worker was assigned permanent restrictions with respect to his right elbow and was provided with WCB vocational rehabilitation benefits and services to assist him with finding suitable employment.

In April 2004, an Individualized Written Rehabilitation Plan (IWRP) was established for the worker with the occupational goal of National Occupational Classification (NOC) 6421 – Retail Sales Person/Sales Clerks. A summary of vocational rehabilitation services that were provided to the worker can be found in a memo to file dated April 28, 2005. On May 30, 2005, the worker completed his vocational rehabilitation plan but was unsuccessful in finding employment. The WCB then determined that he was capable of earning $349.92 per week effective May 25, 2005. The worker disagreed and appealed to Review Office.

On August 8, 2005, Review Office determined that the post-accident deemed earning capacity should have been implemented effective May 25, 2005 but the amount of the post-accident deemed earning capacity of $349.92 per week was incorrect. Review Office requested an updated Earning Capacity Analysis (ECA) to determine a correct deem, as documentation to support the previous ECA had not been placed on the worker’s file. Review Office concurred that NOC 6421 was the best match for the worker’s skills, aptitudes, education and physical capabilities. It felt that despite having significant right upper extremity limitations, the worker demonstrated the physical requirements to work in many of the positions offered in NOC 6421. It noted that the worker placed limitations on his job search based on what he was prepared to consider as suitable to him based on his past work history and prior wages. Review Office further was of the opinion that the WCB met the requirements of Policy 43.00, Vocational Rehabilitation and Policy 44.30.80.20, Post Accident Earnings – Deemed Earning Capacity to support that it was appropriate to implement a deem on completion of the worker’s IWRP.

On February 28, 2006, the worker provided the WCB with new medical information from an occupational health physician dated February 9, 2006. The occupational health physician outlined his view that the worker’s right elbow condition was related to radial tunnel syndrome. Based on this opinion, the worker submitted that his right elbow condition had been misdiagnosed, that his permanent impairment award had been underestimated and that his ongoing condition and impairment was affecting his employment prospects.

The occupational health physician’s report of February 9, 2006 was reviewed by a WCB orthopaedic consultant at the request of primary adjudication on May 5, 2006. The WCB consultant felt that the diagnosis of radial tunnel syndrome was not consistent with the worker’s mechanism of injury. He made reference to nerve conduction studies taken on December 21, 2000 which did not show any abnormalities related to the radial nerve.

On May 16, 2006, a WCB case manager informed the worker that based on the opinion expressed by the WCB orthopaedic consultant on May 5, 2006, the confirmed compensable diagnosis was lateral epicondylitis. As a result of this finding, there was no need to alter the worker’s permanent work restrictions, the IWRP of NOC 6421 remained appropriate and the worker’s earning capacity would not be altered.

On May 23, 2006, the worker appealed the above decision to Review Office. The worker contended that he was unemployable at any position at the current time. He noted that he was unable to manipulate a cash register in his prior work experience and that his hand swelled up at a recent work experience (an optical shop) while performing light lifts or applying small amounts of pressure with his right hand. He felt that NOC 6421 should be considered as a reference tool and not as a definite or exhaustive information source. He felt that his condition was misdiagnosed and that he underwent inappropriate and painful surgery and other medical interventions that did not assist him in his recovery. The worker requested that his benefits be reinstated, his PPI award be increased and that the WCB provide him with medical intervention to assist with his recovery.

In a decision dated June 23, 2006, Review Office agreed that it would be appropriate for the worker’s PPI rating to be reassessed. It also determined that full wage loss benefits should not be reinstated. Review Office found no compelling evidence to rescind its decision that was made on August 8, 2005 to implement a deem. It outlined its view that jobs in the optical industry typically involve a significant amount of manual manipulation at a pace directed by production demands. This type of work would not be suitable to the worker’s injury and to his compensable restrictions and was not considered indicative of the worker’s employability or unemployability. Review Office noted the worker’s contention of not being able to operate a cash register was disputed by the worker’s expressed interests and activities involving computers which involved similar upper extremity activities. It noted that retail salespeople perform cash register operations on an intermittent rather than repetitive basis and thus this activity was consistent with his compensable restrictions. It stated that sedentary occupations involve lifting up to 10 pounds at a frequency of no more than 33% of the workday. Review Office indicated that the physical requirements of sedentary occupations fell within the worker’s restrictions.

Review Office also determined that medical treatment should not be authorized for a radial tunnel condition. After reviewing the medical evidence on file which included previous nerve conduction study results, MRI examinations and the opinions expressed by the treating physiatrist and WCB orthopaedic consultant, it concluded that the worker developed lateral epicondylitis as a result of his compensable injury. If the worker had radial tunnel syndrome, it was not connected temporally to the compensable injury and would not be a diagnosis consistent with the mechanism of injury. On February 14, 2007, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged and held on May 10, 2007.

Following the hearing, the appeal panel met to discuss the case and decided to convene a Medical Review Panel (MRP) in accordance with subsection 67(3) of The Workers Compensation Act (the Act). An MRP later took place on November 2, 2007. In response to questions posed by the appeal panel, the MRP responded as follows:

“Question #1:

What medical conditions are in play with regard to the worker’s right upper extremity?

Answer:

The worker has two medical conditions:

  1. Right lateral epicondylitis – chronic – causing pain throughout his entire arm.
  2. Right ulnar neuropathy of the sensory component.

Question #2:

Are the condition(s) consistent with the acute trauma to the right elbow area sustained in June 1999, and if not, what is the likely etiology of the condition(s).

Answer:

The conditions are not consistent with the acute trauma to the right elbow area:

  1. Right lateral epicondylitis. This condition while caused by the acute trauma has become magnified over time because of disuse, related to fear of pain and avoidance of use.
  2. Ulnar neuropathy. This is of uncertain etiology but certainly part of the cause would be related to his sitting for prolonged periods of time with his arm resting on the arm of a chair or on his thigh. All of this results in involuntary pain magnification affecting his entire arm.

Question #3:

Based on each condition, please outline the worker’s physical restrictions, including time limitations on the performance of activities respecting these restrictions.

Answer:

This worker is limited to non-repetitive sedentary work or other light work which would involve not lifting more than five pounds at any time and with no repetitive movements.”

The MRP’s report was forwarded to the interested parties for comment. On December 19, 2007, the panel met and rendered its final decision with respect to the issues under appeal and considered a final submission from the worker dated December 11, 2007.

Reasons

The hearing:

The worker represented himself at the hearing. The employer was not represented.

The worker’s position:

The worker provided a written submission to the Appeal Commission on August 4, 2006 which formed the basis for his appeal. In addition, the worker provided a verbal submission regarding the two issues and answered questions from the panel.

His medical condition and diagnosis:

Regarding his medical condition, the worker submitted his diagnosis is radial tunnel syndrome. He submitted the surgeries for lateral epicondylitis did not succeed and therefore the diagnosis was incorrect. He said at the hearing “I just think they operated on the wrong thing basically. My arm did not change over the last seven years and I live in pain all the time. I can barely use my arm. Anything I do it swells up, so needless to say it’s not fine.” In support of his position he referred to correspondence and opinions from his treating physiotherapist in 2002 and 2003 along with an occupational health physician who agreed his condition could be radial tunnel syndrome.

The worker detailed the constant pain in his elbow with any activity. He therefore avoids performing even the most menial of tasks in order to limit the pain and swelling that occurs with arm use. He elaborated that his entire arm is affected including the shoulder along with tingling into his 3rd, 4th, and 5th fingers.

Regarding medical treatment or interventions respecting his right arm condition, the worker saw the occupational health physician in 2006 and has not seen any other physicians or received treatment. He told the panel he has had no treatment since 2004 and discontinued all medications approximately three years ago and decided to live with the pain.

His employability:

The worker said his right arm today is exactly the same as it was in 2005 when the permanent restrictions were imposed. He agreed these would be the same guidelines he would use today. He described two contacts he made for positions that may have been suitable for his restrictions however quickly pointed to the limitations he would have in performing either a sales or an estimator job. The worker has no hesitation in outlining his physical restrictions to potential employers.

The worker described the December 2005 job he found polishing lenses at an optical company and told the panel the job only lasted one day as his arm was swollen at the end of the shift.

Following this job, the worker has not sought further employment in 2006 or 2007. He told the panel he hopes to get reinstated on WCB full wage loss benefits and get his arm fixed. He did offer that he could do some work but only for a very short period of time. When questioned, he did not know of any 40 hour jobs he could perform. He said that work for even a short period of time causes swelling of the arm and he is then limited for 5 – 8 days. He basically tries not to use the arm at all.

The MRP:

Following the hearing, the panel in reviewing the evidence felt there were a number of medical conditions preferred by various medical professionals that may be affecting the worker and his ability to work in some capacity which might or might not be related to the worker’s compensable injury. The panel choose to convene an MRP in accordance with subsection 67(3) of the Act to determine what conditions the worker currently has, whether they are related to the original compensable injury, and what restrictions the worker may have.

Legislation and policy:

Policy 44.80.30.20 Post Accident Earnings-Deemed Earning Capacity:

(a) Deemed earning capacity will typically be demonstrated in the context of vocational rehabilitation activity. Generally, vocational rehabilitation is designed to maximize the worker's post-accident earnings and keep the loss of earning capacity to a minimum. Detail on the goal and process for vocational rehabilitation within the WCB is provided in Policy 43.00, Vocational Rehabilitation.

(b)  The decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan.  Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted.

Analysis:

In order for the worker’s appeal to be successful, the panel would have to determine that the worker has a diagnosis of radial tunnel syndrome that can be linked to his original compensable injury. In order to reinstate full wage loss benefits, the panel would need to determine the worker’s medical condition which rendered him unable to perform any employment. The panel was not able to come to either of these determinations.

Regarding the radial tunnel syndrome, the panel finds this diagnosis not consistent with the injury of striking his elbow. While several medical professionals have opined that the worker may have radial tunnel syndrome, the panel finds the original mechanism of injury more likely resulted in a lateral epicondylitis. The panel places significant weight on an examination report and nerve conduction study from a neurologist in December 2000 that shows the neurological exam was unremarkable and the studies showed no evidence of radial or ulnar nerve entrapment in the elbow or forearm. The NCS was performed closer to the original injury date and therefore would have likely noted the radial entrapment if it was a consequence of the compensable injury. If the worker has radial entrapment some seven years later, the panel cannot on a balance of probabilities, relate it to the original compensable injury. The worker was seen and treated by several specialists following his injury and the majority of the investigations and treatments including surgeries determined lateral epicondylitis to be the diagnosis.

The panel also placed considerable weight on the report of the MRP. The MRP diagnosed the worker with right lateral epicondylitis and right ulnar neuropathy of the sensory component. The panel notes that while his right lateral epicondylitis is a result of his compensable injury, this condition has become chronic as a result of avoidance of use.

Regarding the ulnar neuropathy, the panel finds this condition, on a balance of probabilities, is not directly related to his compensable injury but instead due to limited use of the right arm, along with being deconditioned.

With respect to the issue of wage loss benefits being reinstated, the panel notes the worker has permanent restrictions of no repetitive gripping, no lifting greater than 10 pounds and the ability to work with the right arm in neutral positions. These restrictions are essentially echoed in the MRP report that says “This worker is limited to non-repetitive sedentary work or other light work which would involve not lifting more than five pounds at any time with no repetitive movements.”

The panel agrees the chronic right lateral epicondylitis and the right ulnar neuropathy prevent the worker from returning to his pre-accident employment; however they do not prevent him from engaging in suitable work that respects his permanent restrictions. While the worker is of the position that he is very limited in the use of his right arm because of pain and swelling, the panel notes he has been advised by medical practitioners to use his arm. In fact, the WCB by May 2005 had determined the worker was able to commence some form of suitable employment.

This determination had previously been assessed through the WCB’s vocational rehabilitation process followed by a job search period. Even though the worker remained unemployed following the job search period he was deemed capable of earning minimum wage in accordance with NOC 6421, Retail Sales Persons Sales Clerks. The deemed earning capacity was determined through Policy 44.80.30.20 Post accident Earnings- Deemed Earning Capacity.

In assessing the worker’s appeal regarding the restoration of full wage loss benefits, the panel has considered the evidence as a whole and notes that while the worker has created barriers around job search and limits the use of his right arm in any capacity, the panel finds this decision not to be supported medically. The panel, in light of the findings of the MRP, finds the worker is capable of performing work in a sedentary or light capacity.

The panel therefore finds the deem appropriate and therefore denies the reinstatement of full wage loss benefits.

The worker’s appeal is denied on both issues.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Day - Commissioner

Signed at Winnipeg this 7th day of January, 2008

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