Decision #84/08 - Type: Workers Compensation
Preamble
On October 25, 2006, the worker filed a claim with the Workers Compensation Board (“WCB”) for pain in her right forearm and hand which she related to her work duties. The claim for compensation was accepted and benefits and services were paid to the worker. On August 10, 2007, it was determined by primary adjudication that there was no longer a cause and effect relationship between the worker’s current complaints and the original injury and therefore she was not entitled to further benefits. This decision was confirmed by Review Office on September 11, 2007. The worker disagreed and filed an Application to Appeal with the Appeal Commission and an oral hearing took place on May 29, 2008.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits after August 10, 2007.Decision
That the worker is entitled to wage loss and medical aid benefits after August 10, 2007.Decision: Unanimous
Background
The worker filed a claim with the WCB for pain in her right forearm and hand which she attributed to the repetitive motion of pressure washing which she performed two to three hours per day at 20 to 30 minute intervals. The worker described a sharp shooting pain from her right forearm all the way to her right pinky finger which commenced on October 15, 2006. She also described on and off left wrist pain and pain in both thumbs for the last couple of years.
On December 20, 2006, the worker advised a WCB adjudicator that she had symptoms and difficulties in both hands, wrists and forearms. She related her difficulties to pressure washing and the opening and closing of bio-seal doors. The worker indicated that she was claiming for physiotherapy treatments as she did not lose any time from work.
After considering the worker’s job duties and information obtained from the employer, the claim for compensation was accepted based on the diagnosis of bilateral chronic strain/sprain to both hands, wrists and forearms and physiotherapy treatments were authorized.
On January 3, 2007, a WCB medical advisor outlined temporary restrictions for the worker to avoid forceful repetitive movements of either wrist against force, no prolonged or repetitive forceful grip and no repetitive lifting over 50 lbs.
The employer placed the worker in modified duties that consisted of computer and paper work and putting up signs in the workplace. On January 29, 2007, the treating physician indicated that the worker’s condition was worsening and that she was to limit all hand use. Further testing was recommended which consisted of nerve conduction studies and blood work to rule out a metabolic source. The worker ceased working modified duties because of her condition and wage loss benefits commenced on January 30, 2007.
On February 21, 2007, the treating physiotherapist applied for four weeks of additional treatment. The physiotherapist noted tight anterior forearm compartment both right and left and reported: “The patient’s symptoms worsened between December 20 and January 8 with attempts to strengthen hands.”
Following an examination at the WCB’s offices on March 5, 2007, a WCB medical advisor reported that the worker’s high levels of pain were not supported by clinical findings. The worker had full range of motion and strength and special tests were negative. The only positive clinical finding was tenderness. The medical advisor opined that the lack of objective findings did not support total disability and that the worker would be fit for modified duties. Temporary restrictions were outlined to avoid repetitive or sustained forceful gripping with either hand, no lifting greater than 10 lbs., no repetitive movements of her wrists or hands against force and no activities where a firm grip is needed for safety reasons. If the employer did not have duties that met these restrictions, the medical advisor recommended reconditioning type exercises for the worker and at the end of such program she would be fit to return to her fulltime regular duties.
On March 21, 2007, the employer advised the WCB that it was unable to accommodate the worker with duties that met her temporary restrictions. Arrangements were then made for the worker to undergo a conditioning program commencing April 2, 2007. At the end of the program, it was anticipated that the worker would be able to return to her pre-accident duties.
The final work hardening report dated April 30, 2007 indicated that the worker’s physical abilities had improved considerably from the initial assessment. It stated that the worker should continue with a home exercise program emphasizing cardiovascular and flexibility and that the worker appeared to be able to start full time employment.
On May 15, 2007, the employer confirmed that the worker returned to modified duty work at full time hours on April 30, 2007. He reported, however, that the worker was having difficulties after drawing blood from a few mice which he related to the pinching motion required to perform the procedure. The employer noted that prior to this, it had been accommodating the worker in duties that did not require this motion and the worker had no complaints. The employer advised that they were planning a fitness to work assessment but a date had not yet been set.
In a progress report dated May 15, 2007, the treating physician reported that there was no change in diagnosis and that according to the worker, her condition had not significantly improved and she objectively was experiencing moderate pain. He suggested caution with repetitive type work.
On May 15, 2007, the worker indicated that she struggled with some of her duties and the main ones which caused pain on the base of her thumb and fifth finger bilaterally were fine grasping or pinching movements for sustained periods of time, drawing blood, using needles or holding on to pieces of paper for a period of time.
On May 28, 2007, nerve conduction study results identified no abnormalities.
On June 26, 2007, the treating physician reported that the worker still had pain on palpation of the forearm extensor muscles and that grip strength was 5/5. He felt the worker should continue with modified duties.
The WCB medical advisor who examined the worker in March 2007 was asked to review the file by primary adjudication and to respond to a number of questions. The medical advisor’s response dated July 30, 2007 was as follows:
“1. From review of my call in notes, I was unable to provide an anatomic diagnosis for the claimant’s pain complaints as they were not validated objectively. This continues to be the case as she complains of pain yet has no objective clinical findings being reported.
2. I see no ongoing effects of the compensable injury given the explanation from #1.
3. There is no evidence of a pre-x condition affecting recovery.
4. The reconditioning summary notes that the claimant demonstrates the ability to work with no restrictions.
5. As there are no ongoing effects of the C/I [compensable injury], there is no need for any further treatment to be supported by the WCB.”
In an August 10, 2007 decision, the worker was advised that the WCB was unable to accept further responsibility for wage loss or medical aid costs as being related to her compensable injury. This decision was based on the opinion expressed by the WCB medical advisor on July 30, 2007. The worker disagreed with the decision and filed an appeal with Review Office. She contended that she was still experiencing difficulties with her arm and hand while performing her modified job duties and that she was entitled to further benefits.
On September 11, 2007, Review Office confirmed that wage loss and medical aid costs were not payable beyond August 10, 2007 in regard to the worker’s bilateral arm/hand claim from October 2006. Review Office stated, in part, that since returning to work on April 30, 2007, the worker was on much lighter duties than what she was performing in October 2006 and still had significant complaints. Review Office stated it was unable to conclude that the worker’s ongoing and present complaints were related to handling the pressure washer from October 2006. It therefore agreed with the case manager’s decision of August 10, 2007. On January 8, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
On May 14, 2008, the worker’s union representative provided the Appeal Commission with additional medical reports from a physiotherapist and Health Canada to support the position that the worker was still suffering from the effects of her medical condition and was not yet fit to perform her prior work duties.
Reasons
Worker’s submission:
The worker was represented at the hearing by a union representative who submitted that the worker remained disabled by her compensable injury. It was noted that the worker’s diagnosis which was accepted by the WCB as compensable was “mild repetitive strain injury to the forearms bilateral chronic sprain/strain to both hands, wrists and forearms”. Issue was taken with the Review Office’s reasoning that: “…although Review Office can certainly see an epicondylitis or tendonitis or strain scenario arising out of the task of handling the pressure washer, Review Office’s concern with the situation is the fact that almost a year later, the worker still has subjective complaints … It would seem logical, that if the muscles in her arms and hands were removed from the source of the production of the symptoms of the strain, then logically there should be some resolution of the symptoms.” It was argued that a major reason for the extensive timeframe in effecting a recovery was the result of the worker following a recovery program which did not assist her, but instead exacerbated her condition and delayed final recovery. New medical information from a treating physiotherapist and the employer’s occupational health medical officer was provided to the panel.
Employer’s submission:
A representative from the employer appeared at the hearing. The representative advised the panel that the employer acknowledged and accepted that the worker was injured. Symptoms reported by the worker had been consistent since her initial report and the symptoms reported were also similar to injuries reported by other staff who performed the same duties. The report from the employer’s occupational health medical officer was referenced and it was noted that in a follow-up teleconference, the medical officer related that the worker’s condition had been responding to her current regime of physiotherapy and that she was now able to begin a phased return to her substantive position, excluding power washing activities.
Applicable Legislation:
The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).
Analysis:
To find that the worker is entitled to benefits after August 10, 2007, we must find on a balance of probabilities that the worker continued to suffer the effects of her compensable injury. We are able to make that finding.
At the hearing, the worker provided a detailed description of her normal workday prior to becoming injured. It was evident that the job was very physical and that in addition to the pressure washing, there were also a number of duties which required forceful gripping and hand strength. Even after her return to work on modified duties at the end of April, 2007, the worker continued to perform tasks which required gripping, albeit with smaller specimens.
The worker testified that from May 2007 until February 2008, she did not receive physiotherapy, although she did see a massage therapist. At the time of her return to work, she continued to experience a chronic ache in her forearms, with tightness and a sharp shooting pain which would go from her elbow to her fingertips. In February 2008, she decided to start paying for physiotherapy herself and consulted with a new physiotherapist. She commenced twice weekly sessions with the new physiotherapist, and continued to see her massage therapist once a week. A definite improvement was noted and the worker found that some of her tasks at work became easier to do. The aching forearm pain was reduced and there was no longer any sharp shooting pain. When asked about the differences in physiotherapy treatment, the worker’s evidence was that during the first course of physiotherapy, the sessions were short (between 20 minutes to half an hour). She would receive electrical stimulus on her arm and was told to do putty ball strengthening exercises. When she did them, the worker said that the pain just seemed to get progressively worse. The current physiotherapy regime was very different. She would usually attend for an hour and a half, and treatment was focused on myofascial release, tissue mobilization, passive stretching, acupuncture and contrasting thermal and cryo therapies. The worker believed that she was getting better and at the time of the hearing, she was preparing to be slowly reintroduced to her regular job duties.
In coming to our decision, the panel places significant reliance on the following medical evidence:
- April 3, 2008 Fitness to Work Evaluation prepared by the employer’s occupational health medical officer. This report indicated that due to her medical condition, the worker was not at the time able to perform all of her work duties. His prognosis was that although her medical condition had already shown to be quite persistent, he could not accurately say how many more months it would affect her. He did, however think it would be reasonable to update her condition in 3 to 6 months. He recommended that she continue to work under restrictions and that she could occasionally spend some time in her old job and expand her duties in a limited fashion. The restrictions outlined in the report were:
- No forceful repetitive movements of either wrist against force;
- No prolonged repetitive grip activities;
- No repetitive lifting greater than 50 lbs.
- May 5, 2008 report of the treating physiotherapist. This report indicated that the worker presented for physiotherapy on February 4, 2008 with complaints of bilateral hand and forearm pain and tightness. Symptoms were aggravated by repetitive occupational demands such as gripping and pressure washing. Symptoms were also aggravated by the work hardening program the worker had participated in, as well as by the wrist and hand strengthening exercises on which she had been instructed by her previous physiotherapist. On completion of examination, the physiotherapist’s diagnosis was chronic low grade edema of the forearms creating a pseudo “compartment syndrome”. A treatment plan to decrease tissue tension in the forearms was developed and with the treatment plan, the worker was able to maintain her occupational status without time off work and made objective gains in her condition. By February 27, 2008, the worker indicated no soreness after working with specimens. Previously this work had been a source of discomfort. By March 17, 2008, she was able to write much longer with minimal symptoms. By April 28, 2008, she experienced no tightness after 3 hours shovelling/cleaning up the yard. From February 4 to May 6, 2008, the worker had attended a total of 23 treatment sessions.
Overall, the panel accepts that the worker’s continuing symptoms of bilateral hand and forearm pain and tightness are causally related to her job duties. The panel also accepts the compensable restrictions as outlined by the employer’s medical officer. Although the condition has persisted for an extended period of time and beyond the typical recovery norms, the worker reports that she is experiencing improvement with her new physiotherapy regime and that the symptoms are abating with treatment. The worker’s evidence that the previous physiotherapy treatment exacerbated her condition is confirmed by the first physiotherapist’s report of February 21, 2007 which reports that her symptoms worsened with attempts to strengthen hands. The panel finds that the physiotherapy currently being received by the worker has facilitated her recovery and is directly focused on restoring her ability to return to regular duties.
It is therefore the panel’s decision that the worker is entitled to compensation, including medical aid benefits beyond August 10, 2007. Although the issue before the panel is framed to address both medical aid and wage loss benefits, the worker has not incurred post-August 10, 2007 wage loss benefits as her employer has accommodated her compensable restrictions with modified duties.
The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of July, 2008