The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker injured his right thumb in a work related accident on October 27, 2006. On November 30, 2007, it was determined by primary adjudication that the worker misrepresented his disability and that he should not have been paid benefits from May 22, 2007 to October 10, 2007. The worker disagreed and filed an appeal with Review Office. On March 13, 2008, Review Office determined that the worker was not entitled to wage loss benefits beyond August 9, 2007. The employer’s representative disagreed and an appeal was filed with the Appeal Commission. A file review was held on September 23, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from May 22, 2007 to August 9, 2007.

Decision

That the worker is not entitled to wage loss benefits from May 22, 2007 to August 9, 2007.

Decision: Unanimous

Background

On October 27, 2006, the worker was using a polish bar when the polish bar slipped out of his right hand, shot backwards and he jammed his right thumb. The claim for compensation was accepted by the Workers Compensation Board (“WCB”) based on the diagnosis of an undisplaced hairline fracture through the base of the first metacarpal joint. On November 6, 2006, the worker underwent surgical repair.

In a follow-up report dated December 15, 2006, the treating surgeon reported that the worker’s fracture was healing satisfactorily and that the worker would be ready to return to work around the beginning of January 2007.

File records indicate that the worker returned to his regular work duties at full hours in February 2007. On February 15, 2007, the worker advised his case manager that his thumb was very sore by the end of the day. On April 23, 2007, the worker advised the WCB that he was experiencing numbness in his thumb when driving or when grinding.

On May 22, 2007, the treating physician reported that the worker had subjective complaints of pain in his right thumb that was severe and was worse with right hand use on gripping. The treatment plan included nerve conduction studies, a referral to the treating surgeon and for the worker to wear a wrist splint. The physician indicated that the worker was capable of performing alternate duties with the following restriction, “Limited to use of right hand or arm.”

On May 25, 2007, the worker advised WCB staff that he tried to hold off as long as he could but the numbness in his hand was getting worse. He had difficulty using the grinder at work as his fingers in his hand could not open. He said he dropped the grinder at work a few times already.

In a doctor’s progress report dated June 5, 2007, the treating physician outlined subjective complaints of persistent pain in the right thumb and numbness. He stated that the worker should continue wearing his thumb/wrist splint and that he was not capable of alternate or modified duties.

When speaking with the accident employer on June 5, 2007, the case manager documented that the employer had no concerns with the worker being off work and that they were aware that the worker was having increased thumb difficulties. The plant manager indicated that the worker was overly motivated regarding work and that he may have been trying to do too much. The employer indicated that they were unable to provide the worker with duties based on his restrictions and felt that the worker should obtain further medical attention. On June 5, 2007, the case manager authorized wage loss benefits to the worker effective May 22, 2007 as a recurrence.

In a report to the treating physician dated June 12, 2007, the plastic surgeon reported that the worker’s fracture had united and that he had done well but now was complaining of numbness to his thumb and also at the base. The worker said his whole hand becomes numb. The plastic surgeon thought that the worker’s symptoms could be caused by carpal tunnel syndrome or that he may have issues with the previous fracture site. The surgeon indicated that the worker was wearing a splint to hold his thumb in a neutral position and that he should continue to do so. An EMG was ordered.

When speaking with WCB staff on June 19, 2007, the worker commented that the numbness in his hand only started after his surgery.

An EMG report dated June 19, 2007, indicated that the worker had bilateral median neuropathy at or distal to the wrists that was moderate on the left and mild to moderate on the right side.

On June 28, 2007, the employer advised the WCB that the worker returned to work on June 27, 2007 at light duties. It was indicated that the employer could offer light duties to the worker for the next few weeks however work may run out again in the future.

On July 17, 2007, the worker advised the WCB that he was having difficulty with his right hand. The worker advised that he had not worked since July 3, 2007 as the employer ran out of modified duties.

On July 17, 2007, a WCB case management representative authorized full wage loss from July 4 to July 18, 2007.

In a July 23, 2007 report, the plastic surgeon reported that the worker had bilateral CTS and that he was still experiencing pain in his right thumb.

On July 26, 2007, the employer advised the WCB that they were unable to accommodate the worker with light duties.

A WCB medical advisor reviewed the file on August 3, 2007. With respect to a current diagnosis, the medical advisor noted that the worker experienced a Bennett’s fracture of the right thumb on October 27, 2006 and that surgery was carried out on November 5, 2006. He stated that this type of fracture and its treatment exposes the wrist to trauma and swelling that can predispose the wrist to getting CTS. The medical advisor indicated that the worker’s right CTS was likely related to the right thumb injury and treatment. He noted that the physiotherapist was suspicious the worker may have De Quervain’s tenosynovitis of the right thumb. The medical advisor also commented that the normal recovery time for a Bennett’s fracture was from 3 to 6 months. The worker’s recovery had become more complicated as he has developed CTS.

On August 9, 2007, the treating plastic surgeon reported that the worker was progressing satisfactorily and that he was advised to return to work. The surgeon noted that the worker was still hesitant to go full time and thought he could do a graduated return to work program over the next couple of weeks.

During a telephone conversation on August 9, 2007, the worker advised his WCB case manager that he was told by the plastic surgeon to return to light duties and that there was nothing more to be done for his thumb. The worker indicated that he felt the specialist was ignoring his thumb pain and told him that he had CTS instead. The worker indicated that he was concerned about returning to work because he may end up losing his job. He did not think there was work for the employer to offer him modified duties. The worker indicated that his symptoms were in the right thumb and the first three fingers. He used to have nocturnal numbness and now it happened with most gripping/grasping activities bilaterally. It was difficult to hold things and both hands would go numb when driving. He dropped packs of cigarettes or had problems holding coffee.

On August 24, 2007, the employer advised the WCB that they could accommodate the worker with duties such as painting brackets, pushing signal lights into bumpers for production, and operating an automatic forklift with a steering wheel that had a ball operation.

Surveillance video was taken of the worker’s activities on September 5, 6, 7, 9 and 11, 2007.

On October 11, 2007, a WCB medical advisor made the following comment after his review of the file information: “The EMG/NCS shows bilateral changes compatible with CTS. Since the changes are bilateral the rationale that the right hand findings are related to the fracture is not tenable and therefore are not included as part of this CI [compensable injury]”.

In a memorandum dated November 30, 2007, the WCB case manager documented that there was evidence to support that the worker was gainfully employed with another company while claiming full wage loss benefits from his accident employer and that he was also providing a service of value consistent with paid employment while involved with home renovation activities.

In a letter dated November 30, 2007, the worker was advised that based on the weight of evidence, he misrepresented his employability, his actual loss of earnings related to employment and the level of disability after wage loss benefits were reinstated on May 22, 2007 (in relation to his right thumb injury). The worker was advised that benefits paid to him between May 22, 2007 to October 10, 2007 were considered an overpayment and that he was responsible for repaying the full amount of the overpayment.

In late December 2007, the worker appealed the case manager’s decision regarding the overpayment. On March 6, 2008, the employer’s advocate provided Review Office with a submission.

On March 13, 2008, Review Office determined that the worker was not entitled to wage loss benefits beyond August 9, 2007, that the worker’s overpayment should be recalculated and that the worker was required to repay any overpayment. Review Office indicated that the worker received more benefits than he was entitled to under WCB legislation and policy. It stated that the information provided by the worker throughout the claim was highly questionable given his statements to WCB staff regarding his severe restrictions which was in contrast to the video surveillance evidence as well as the worker’s concurrent employment activities. As of May 22, 2007, Review Office felt the objective medical evidence suggested that the worker was likely restricted from full duties due to his right thumb injury and a loss of earnings had been a compensable result until August 9, 2007. Review Office concluded that the worker’s loss of earning capacity due to a recurrence of the right thumb injury ended on August 9, 2007, the date the surgeon examined him, and cleared him to return to work on a full time basis without restrictions. Beyond this date, wage loss benefits were a result of misrepresentation and were payable by the worker to the WCB.

On April 4, 2008, the employer’s advocate appealed Review Office’s decision to the Appeal Commission. The advocate’s position was that the worker was not entitled to benefits for the period May 23, 2007 to June 26, 2007. The advocate indicated the worker was accommodated by the accident employer until May 22, 2007 when he declared himself totally disabled. This declaration was not supported by the physician he consulted on May 22, 2007 when he was instructed to continue light duties.

Reasons

Employer’s position:

The employer submitted that according to the surgeon of record, the type of thumb fracture sustained by the worker generally requires up to three months of convalescence. As the surgery occurred on November 5, 2006, the three month convalescence period would have ended on or about February 5, 2007. In fact, the worker returned to part time work effective January 2, 2007, which falls within the generally accepted recovery norm. The employer disputed that the reason why the worker discontinued work on May 22, 2007 was because he was impaired by his right thumb injury. It was submitted that any time loss beyond May 22, 2007 was unrelated to the compensable incident of October 27, 2006. This contention was based on two factors. First, the symptoms beyond May 22, 2007 were due to a CTS condition which was unrelated to the workplace. Second, the symptoms clearly did not prevent the worker from participating in the light duty accommodation that the employer had made available from January to May, 2007. As such, the worker was not entitled to wage loss benefits for the relevant period.

Worker’s position:

A submission was provided by a worker advisor on behalf of the worker. It was submitted that although the worker returned to his regular work at full hours in the middle of February, 2007, on May 22, 2007 he attended his treating physician due to an escalation of symptoms in his right hand and thumb. The treating physician placed restrictions on the worker comprising: “Limited to no use of right hand or arm.” As the employer was unable to accommodate the worker’s restrictions, wage loss benefits were reinstated effective May 22, 2007. The worker did return to work from June 27 to July 3, 2007, when the employer had appropriate modified duties available. For most of the relevant period, however, the employer was unable to accommodate with suitable duties. As such, wage loss benefits were payable. With respect to the CTS, it was submitted that while there may have been a concurrent diagnosis of carpal tunnel syndrome, the medical evidence confirmed that the most disabling symptoms and those which prevented the worker from returning to his full duties after May 22, 2007 arose from the compensable thumb injury.

Applicable Legislation:

Pursuant to section 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. The issue in this case concerns whether the worker continued to sustain a loss of earning capacity during the relevant time.

Analysis:

For the employer’s appeal to be successful, we must find on a balance of probabilities that between May 22, 2007 and August 9, 2007, the worker no longer suffered a loss of earning capacity as a result of his compensable injury. We are able to make that finding. In the panel’s opinion, between May 22 and August 9, 2007, the worker’s right thumb fracture no longer caused any loss of earning capacity. Any impairment to the worker’s earning capacity during that time period was attributable to his bilateral CTS, which has not been accepted by the WCB as a compensable condition.

In coming to our decision, we place weight on the following evidence:

• The worker returned to modified work in early January, 2007 and was able to resume his regular duties in early February, 2007.
• Although the treating physician’s report of May 22, 2007 records pain in the right thumb, all of the proposed treatment is directed at managing CTS symptoms. A nerve conduction study is ordered and the treatment plan consists of analgesics and a wrist splint, with modified work to limit the use of the right hand or arm.
• By his report of June 26, 2007, the treating physician indicates a changed diagnosis to CTS.
• The plastic surgeon indicates in his June 12, 2007 report that: “I think all his symptoms could be caused by the carpal tunnel syndrome although he may have issues with the previous fracture site as well.”
• Importantly, discussions with the worker as documented in the WCB claim notes would suggest that it was CTS symptomatology which was causing him difficulty. In a memo to file dated May 25, 2007, it was recorded: “Worker noted his hand is getting numb all the time now and in pain. He tried to hold off as long as he can but now the numbness is getting longer. He has difficulty using the grinder at work as his fingers in his hand cannot open. He has dropper the grinder at work a few times already.”
• Similarly, an August 9, 2007 WCB memo states: “He noted his symptoms are R (right) thumb and the first three fingers. He used to have nocturnal numbness now it happens with most gripping/grasping activities bilaterally. He stated it is difficult to hold things and both hands will go numb when driving. He stated he drops packs of cigarettes or has problems holding coffee.”
• A September 24, 2007 WCB memo indicates: “He stated he wakes up with both hands being numb now. He stated he can’t move his fingers. He confirmed his difficulties are with all his fingers now.”

In the panel’s opinion, on a balance of probabilities, the foregoing evidence supports a finding that the worker’s compensable thumb fracture had resolved sufficiently and no longer impaired his earning capacity. He was able to resume his regular duties in February, 2007 and continued until May 22, 2007. The new symptoms of numbness which became more prominent in May, 2007 were attributable to the non-compensable bilateral CTS and were the cause of the worker discontinuing regular duties effective May 22, 2007. As the compensable thumb fracture was not the cause of the worker’s loss of earning capacity, the worker is not entitled to wage loss benefits from May 22, 2007 to August 9, 2007. The employer’s appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of October, 2008