The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) on July 12, 2002 for pain that she experienced in her wrists and thumbs that she related to her job duties as a nursing assistant. The claim was accepted and benefits were paid. Subsequently, the worker’s wage loss benefits were suspended from January 28, 2004 to August 31, 2004, on the grounds that she failed to participate in modified duties that were offered to her by her employer.

On November 21, 2005, the worker filed another WCB claim for pain in her wrists and thumbs which she related to her modified work activities as a unit clerk. The worker’s claim for compensation was subsequently denied by primary adjudication as it was unable to relate the worker’s job duties to her diagnosed condition.

Primary adjudication’s decisions were confirmed by Review Office on November 2, 2006. Legal counsel representing the worker filed an application to appeal with the Appeal Commission. A hearing took place on August 28, 2008 to consider the two issues.

Issue

Whether or not the worker is entitled to wage loss benefits for the period January 28, 2004 to August 31, 2004; and

Whether or not the August 19, 2005 claim is acceptable.

Decision

That the worker is not entitled to wage loss benefits for the period January 28, 2004 to August 31, 2004; and

That the August 19, 2005 claim is not acceptable.

Decision: Unanimous

Background

On July 12, 2002, the worker reported to the WCB that she awoke on June 3, 2002 with very bad pains in her wrists and thumbs.

In a telephone conversation with a WCB adjudicator on August 12, 2002, the worker advised that she returned to work in February 2002 from a previous WCB injury. She was working her full regular duties when the pain developed in her wrists at the end of May 2002. She stated there were no specific job duties that bothered her wrists more than the others. On June 3, 2002, she attended a physician for treatment and was diagnosed with tenosynovitis of both wrists. The claim for compensation was accepted based on this diagnosis and benefits were paid to the worker.

As the worker continued to experience ongoing pain in her wrists, the worker was examined by a WCB medical advisor on September 10, 2002. He noted that the worker had a previous WCB claim for bilateral wrist pain which occurred while the worker was doing chest compressions on a patient on September 16, 2001. The diagnosis made by a physiotherapist at that time was de Quervain’s tenosynovitis and a repetitive strain of both wrists. After completing a course of physiotherapy, the worker returned to work. With respect to the present examination, the WCB medical advisor determined that the worker had classic de Quervain’s tenosynovitis, with the left side being worse than the right. He indicated that her condition was related to her work environment. He noted the worker was showing early signs of myofascial activity on the left hand side. He found the worker was capable of performing sedentary work with little use of her wrists. These restrictions were to be in place for a two month period. As the employer did not have work to accommodate the worker’s restrictions, she did not return to work at this time but attended physiotherapy treatment.

The worker was seen by a sports medicine specialist on January 30, 2003. He assessed the worker with chronic de Quervain’s disease, or tenosynovitis scarring of the APL and EPB muscles. He said there were other mechanical features to her problem. Surgical debridement of the area was suggested.

The worker underwent a Functional Capacity Evaluation (“FCE”) on February 10, 2003. The functional abilities evaluator concluded her report by stating: “The claimant is capable of medium-light lifting and carrying tasks as specified in the body of this report. She does not exhibit significant restrictions in fine motor activities with her hands. She reports significant increase in pain with repetitive use of her hands. The pain is located in the forearm muscles primarily.”

In February 2003, the worker started a graduated return to work program which consisted of 2 hours per day at light duties. The worker only managed to complete a couple of shifts and complained of swelling and pain in her arm, thumb and wrist.

On May 28, 2003, a plastic surgeon reported that the worker had been in a cast for four weeks yet still complained of continuing pain and a burning sensation. The cast was removed and the worker was placed back on soft splints. He also reported that the worker had “epicondylitis, right greater than left elbow and medial greater than lateral epicondyle.” He requested authorization to perform release of the first extensor compartment of the left wrist or left de Quervain’s release. This procedure was accepted as a WCB responsibility.

On July 7, 2003, a WCB case manager documented that she spoke with a WCB medical advisor who opined that the diagnosis of epicondylitis would not be related to this claim as this condition was not present at the earlier WCB examination.

The worker underwent decompression surgery on her left wrist on August 19, 2003. In a follow-up report dated November 5, 2003, the plastic surgeon indicated that the worker had decreased tenderness and improved range of movement at the thumb and that the worker felt the surgery made some improvement with respect to the de Quervain’s. The worker still had tenderness at the MCP joint of her thumb and marked tenderness of her medial and lateral epicondyle compatible with an epicondylitis. It was suggested that the worker consult an upper extremity specialist regarding a tennis elbow release. As the worker was still having problems with the contralateral right wrist, decompression surgery on the right was suggested. This was also authorized as a WCB financial responsibility.

During her recovery, the worker attended physiotherapy.

By letter dated December 2, 2003, the worker was advised by her WCB case manager that her claim was accepted for her wrists and thumbs but that the diagnosis of epicondylitis was not related to this compensable injury. As a result, any treatment related to epicondylitis would not be covered by the WCB.

On December 17, 2003, a WCB medical advisor outlined the following work related restrictions:

· No lifting more than 10 pounds or lifts to 15 pounds with both hands;

· To avoid repetitive grasping and gripping; and

· Okay to write chart notes.

On December 19, 2003, the WCB case manager met with the worker along with several employer representatives. The worker advised that she had an upcoming appointment to see the upper extremity specialist on March 2, 2004 regarding her elbow symptoms and that she had no appointment with the plastic surgeon until her elbow issue resolved. The parties then discussed the WCB’s recommended restrictions and the worker advised that she did not think she could do any of the tasks that were outlined. The employer advised they needed clearance from the worker’s doctor before the worker could return to work. The case manager advised all parties that because a non-compensable condition was delaying the worker’s recovery, the WCB could not continue to pay benefits if the worker was capable of performing modified work duties until such time as she had her surgery.

In a January 21, 2004 report, the plastic surgeon reported that the worker’s recovery seemed to be satisfactory, although she had some residual pain at the MCP joint of the left thumb. He also reported that the worker continued to have pain around the left elbow and that this was caused from the compensatory use of muscles of the left hand as a result of her de Quervain’s disease and therefore the two entities were related. The specialist also commented that the worker had some numbness to her right second and third digits. He indicated that the worker would be sent for EMG studies to investigate the possibility of carpal tunnel syndrome on the right side.

On February 14, 2004, a WCB case manager wrote to the worker. She noted that the worker was given the option of participating in a return to work plan to modified duties that would last 3 weeks, in order to support her transition back to work. The worker declined to participate in a return to work plan, indicating she did not feel she was capable of the work duties that had been offered to her. The case manager noted that a letter was sent to the treating physician asking for clarification on whether the worker was prevented from working as a result of her compensable injury or non-compensable condition. No clarification had yet been received from the physician. The case manager further advised the worker that since her non-compensable medical condition was delaying her second surgery, the WCB was unable to continue to pay wage loss benefits while this was being treated. When her non-compensable condition was resolved and she was able to proceed with surgery for her compensable condition, wage loss benefits would then be reinstated.

A Hand Grip Evaluation dated March 3, 2004, revealed that the worker’s participation was not a full voluntary effort passing 0 out of 3 validity checks. Compared to the previous FCE of February 10, 2003, the worker’s grip strength had decreased in all positions of the grip dynamometer by 40%.

The worker was examined by a WCB medical advisor on March 4, 2004 and the following conclusions were made:

· that the worker had recovered from her previously diagnosed and surgically treated left de Quervain’s tendonitis.

· once the worker undergoes surgery to de Quervain’s release on the right side, it was anticipated that work restrictions would not be required.

· the worker’s current pain in each thumb MCP joint and effect of same on activities of daily living had not been shown to be causally related to her workplace duties that she was exposed to in June 2002;

· the structural basis underlying the worker’s symptoms of pain deep in the left wrist with weight bearing remained undefined. A probable causal relation between these symptoms and the workplace duties up to June 2002 had not been established;

· symptoms pertaining to the right ulnar wrist, the digits of both hands, recent numbness in the third, fourth and fifth fingers of each hand and the middle finger going white, was not accounted for in relation to the workplace exposure in 2002;

· the worker had recovered from the previously diagnosed bilateral lateral epicondylitis and the imposition of restrictions was not required.

· the symptomatology the worker reported over the left dorsal forearm and lack of improvement over time despite rest and various treatment modalities was difficult to account for on the basis of a probable musculoskeletal process.

On April 19, 2004, the WCB case manager advised the worker of the opinions expressed by the WCB medical advisor on March 5, 2004. The case manager noted that the decision to suspend wage loss benefits would remain in effect as the worker declined to participate in modified duties that were available and because her second surgery was reportedly being delayed due to non-compensable medical problems.

On September 1, 2004, the worker underwent release of the first compartment of the extensor tendon on the right hand. In a follow up report dated September 8, 2004, the plastic surgeon reported that the worker’s sutures were being removed in 3 or 4 days, that she was being referred to physiotherapy treatment, and in six weeks time she may be able to return to either modified duties or would be returning to work in some capacity.

A report was received from a physical medicine and rehabilitation specialist dated October 15, 2004. The consultant reported that the worker was seen on April 15, 2004 with a 3 year history of pain in the elbows and forearms and with radiation to both thumbs. His impression of the worker’s condition was de Quervain’s syndrome right thumb, tenosynovitis of the right wrist and regional myofascial trigger points of both forearm muscles.

On January 21, 2005, the worker was advised that in the opinion of the WCB, she no longer had a loss of earning capacity related to her original injury and that wage loss benefits would be paid to January 28, 2005 or the date that she returned to work, if sooner.

2005 Claim:

On November 21, 2005, the worker filed a claim with the WCB with the accident date being August 19, 2005. The worker reported pain in her forearms, wrists and thumbs that she related to the following job duties: “…transcribing doctors (sic) order, filling in requisitions for diagnostic tests, book transportation and escorts, fax and photocopy medical information, thin patient charts, create and dismantle patient charts and file tests in patients charts while they are being treated…carry the files to medical records.”

A WCB case manager spoke with the worker on December 1, 2005. She stated that transcribing involved writing only. The worker reported that she used her thumbs to open the tab on a pneumatic tube but this did not require a lot of force. She used the pneumatic tube once every half hour at least, maximum 3 times per hour. By the end of her shifts her hands were tired and sore. The worker felt that the combination of all her duties was what caused her hand problems to occur. The worker noted that she had never been symptom free from her prior 2003 claim. She stated she returned to work in January 2005 and then to her regular duties on February 7, 2005. The worker stated she did not have any symptoms in her hands during the graduated return to work until about two weeks after she started her regular duties.

On December 12, 2005, the treating physician diagnosed the worker’s condition as de Quervain’s tenosynovitis bilaterally.

In a decision dated December 20, 2005, the WCB case manager noted that the worker’s condition was diagnosed as bilateral de Quervain’s tenosynovitis and that this diagnosis was associated with forceful grasping, twisting and awkward hand positions. As none of these activities had been identified in the worker’s job duties as a unit clerk, her claim for compensation was denied.

In July 2006, legal counsel representing the worker provided the WCB with medical information to support his contention that the worker was entitled to payment of wage loss benefits for the period January 2004 to September 2004.

In his report to legal counsel dated June 30, 2006, the treating physician indicated that in January 2004, the worker was awaiting a right sided de Quervain’s release which was later performed on September 1, 2004. He noted that since the worker was right hand dominant and her symptoms were most severe in the right wrist and forearm, she was unable to return to work during the interval between surgery on her left forearm and the subsequent right sided procedure. He noted that the worker continued to have bilateral wrist and forearm pain with grasping objects and when lifting during the period in question. She had pain in the wrists and forearms with flexion and extension of the wrists. She was also tender to palpation over the extensor tendons of both thumbs and over the brachialis muscles bilaterally.

A report was submitted from the upper extremity specialist dated March 2, 2004. He assessed the worker with bilateral elbow pain but no specific diagnosis. He indicated the worker may have some medial epicondylitis or pain from the subluxation ulnar nerve although she did not have any ulnar nerve symptoms distally.

On August 8, 2006, the WCB case manager stated that he reviewed all relevant information and was still unable to accept ongoing responsibility from January 21, 2004 to August 31, 2004. The case was referred to Review Office.

When seen by a physiatrist for treatment on August 10, 2006, it was reported that the worker had vague tenderness in the extensor aspects of the forearms and there were no signs of inflammation throughout the forearm, especially around the radial tunnel.

When seen by her treating physician on October 6, 2006, it was reported that the worker’s x-rays, nerve conduction studies and MRI were normal. He found tenderness throughout the forearm, particularly around the radial tunnel.

On November 2, 2006, Review Office considered the worker’s 2002 and 2005 claims and rendered the following decisions:

· That the worker was not entitled to wage loss from January 28, 2004 to August 31, 2004.

In reaching the above decision, Review Office considered the following file evidence: the report by the physical medicine specialist dated January 30, 2003, the February 10, 2003 FCE results, the examination findings of March 3, 2004, and the opinion expressed by a WCB orthopaedic consultant. Review Office noted that the WCB orthopaedic consultant provided the opinion that the worker’s forearm symptoms were not related in any matter to the compensable injury. Even if it accepted the surgeon’s opinion that the worker’s forearm symptoms were caused by compensatory use of other muscles as a result of the de Quervain’s, there was no evidence to support that the worker was totally disabled from working or that she was incapable of performing the tasks offered to her by her employer. Review Office felt that the worker did not mitigate her injury as is required under section 22 of The Workers Compensation Act as she failed to participate in the suitable work duties offered to her by the employer and therefore she was not entitled to benefits between January 28, 2004 and August 31, 2004.

· That the August 19, 2005 claim is not acceptable.

Review Office noted that when the worker returned to work as a unit clerk in January 2005 she performed clerical duties were which varied, were not performed repetitively nor for extended periods of time. When examined in early November 2005, the worker reported numerous upper extremity complaints with symptoms in the thumbs, wrists, forearms, elbows and shoulders. These multiple symptoms did not receive a diagnosis which could be attributed to the clerical tasks the worker was performing. It was noted that despite being off work for nearly one year, the worker’s condition had deteriorated. These factors did not support a work related cause for her symptoms. Review Office noted that the WCB orthopaedic consultant found no evidence of a current work related condition. Review Office confirmed primary adjudication’s decision that a relationship between the work activities and the diagnosed condition could not be established and therefore the August 19, 2005 claim was not acceptable.

Legal counsel representing the worker appealed Review Office’s decisions to the Appeal Commission and a hearing was arranged.

Reasons

In the panel’s opinion, the duties which were being performed by the worker at the time that her second condition arose did not have the forceful or repetitive nature typically present when a repetitive strain type injury is caused by work activity. Although the family physician stated that light duties performed repetitively could trigger the condition, the panel finds that none of the duties described by the worker at the hearing involved constant, demanding repetition. There would be sufficient time for the worker to allow her thumbs, wrists and hands to recover between tasks. Even if the worker was left with susceptible hands and wrists bilaterally post-surgery, we do not view her unit clerk duties as being responsible for the development of this generalized, non-specific and non-diagnosed bilateral problem. On a balance of probabilities, we find that work did not cause the worker’s symptoms which arose in August 2005. It is therefore our decision that the August 19, 2005 claim is not acceptable. The worker’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 15th day of October, 2008