Decision #100/09 - Type: Workers Compensation
Preamble
The worker is presently appealing a decision made by the Review Office of the Workers Compensation Board (“WCB”) that she was capable of returning to her pre-accident employment and was not entitled to wage loss benefits after April 8, 2007. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on September 2, 2009 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond April 8, 2007.Decision
That the worker is not entitled to wage loss benefits beyond April 8, 2007.Decision: Unanimous
Background
The worker reported to the WCB that she injured her right wrist on July 31, 2006 when she bent over to pick up something and her “hand just twisted - caused pain in wrist and hand”.
Medical reports on file showed that the worker had a past medical history of carpal tunnel syndrome (“CTS”). With regard to the injury of July 31, 2006, the worker was diagnosed with a right wrist sprain at a hospital emergency outlet. In a follow-up visit, the diagnosis changed to right wrist tendinitis. When seen by her family physician on August 8, 2006, the diagnosis was deQuervain’s tendinitis.
On October 2, 2006, the WCB denied responsibility for the worker’s claim on the grounds that it was unable to identify an exposure to significant work related risk factors which would contribute to the development of deQuervain’s tenosynovitis and CTS. The adjudicator opined that the worker’s difficulties were caused by a non-compensable pre-existing condition.
On October 18, 2006, the worker appealed the above decision to Review Office. On December 20, 2006, Review Office overturned the decision and found that the worker’s claim for compensation was acceptable. Review Office indicated that the worker was not claiming for a condition of CTS and whether or not she was being followed for this condition was irrelevant to the claim at that juncture. Review Office indicated that the accident that led to the injury was reaching with her right hand/wrist and twisting in the process, which led to the initial diagnosis of a strain, then a deQuervan’s type tendinitis.
On January 22, 2007, the worker was first seen by a physiotherapist. The entrance complaints were “aching, at times sharp pain to wrist/thumb localized, pinch grip quite painful.” Examination showed positive Finklestein’s test, tendon thickening to lateral wrist, and crepitus.
Historical medical reports indicate that the worker was seen by a rheumatologist in 2005 and was diagnosed with the following conditions: bilateral CTS, right lateral epicondylitis, osteoarthritis of the CM joints of both thumbs and chondromalacia of the patella. In April 2006, nerve conduction studies showed bilateral severe carpal tunnel syndrome.
On March 19, 2007, the worker was assessed by a WCB medical advisor and the following opinion was provided: “…(it) would appear from the evidence available that the claimant had in fact a muscular injury in the forearm which radiated into the tendons of extensor pollicis longus and abductor pollicis brevis. At this time examination of the wrist does not suggest deQuervain’s; however, examination of the brachio radialis muscle area suggests a muscle injury which could account for the current complaints and findings on this claimant.” The medical advisor outlined the following restrictions: no repeat gripping, no weights greater than 10 pounds and no repeated pronation and supination for the next four weeks.
In a discharge report dated April 8, 2007, the physiotherapist indicated that the worker experienced soreness with overuse but overall felt much improved and had a good response to treatment.
On June 15, 2007, the attending physician noted that the worker’s right wrist was painful when driving.
When speaking with a WCB case manager on June 19, 2007, the worker stated that she worked as a cook with a new employer between April 30 and May 15, 2007. Her arm did get sore after 5 or 6 hours of work. The worker also indicated that she did some fish packing for about an hour every week. The case manager advised the worker that she would be paid benefits to April 8, 2007, which was the date she was discharged from physiotherapy. The case manager indicated that the physiotherapist advised that the worker did not require any restrictions and the worker said she was fine with this. A formal letter was sent to the worker dated June 21, 2007 confirming that the WCB considered her to have recovered from her compensable injury as of April 9, 2007 and that she was no longer entitled to wage loss benefits. The worker was advised that her restrictions, as noted by the WCB medical advisor on March 19, 2007, would be reviewed in four weeks’ time.
On July 17, 2007, the physician noted that the worker was still wearing her elbow brace and there was no change in her complaints. “Needs a firm diagnosis and treatment if possible at this point…experiencing problems with driving at the present.”
On August 8, 2007, the file was referred to a WCB medical advisor to review the file at the request of primary adjudication. The case manager noted that the worker was claiming that she still had trouble lifting and that she could not work as a result. On August 9, 2007, the medical advisor stated that he reviewed his call in notes for the worker and considered that the worker’s injury was of a minor nature and that adequate time for restrictions and healing had been given.
In a letter dated August 23, 2007, the case manager advised the worker “After reviewing the comments of our healthcare advisor, the findings found in March 2007 (WCB exam), the length of time you have been off work and the original diagnosis it is my opinion that you recovered from the compensable injury as of April 8, 2007 and are therefore no longer entitled to any wage loss benefits.”
On September 27, 2007, Review Office confirmed that the worker is not entitled to wage loss benefits beyond April 8, 2007. Review Office noted that the WCB’s decision to end wage loss benefits was based on the March 19, 2007 examination findings and the April 8, 2007 discharge report from the physiotherapist. Review Office noted that the worker did not appear to be seeking regular ongoing treatment for her injury and provided little if anything in terms of medical support for her position that she continued to be incapable of returning to her pre-accident employment. In March 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s submission:
The worker was self represented at the hearing. She submitted that the WCB’s decision that she was ready to go back to work in April 2007 was premature and required her to return to the workplace too early. At that time, her arm could not yet tolerate 8 hour shifts. She therefore asked that wage loss benefits be extended beyond April 8, 2007.
The worker also raised an issue as to whether all of her pre-accident income was properly included in her wage loss benefit calculation. However, as the WCB had not previously considered this issue, it was explained to the worker that the panel did not have the jurisdiction to address the issue at the hearing.
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends, or the worker attains the age of 65 years.
Analysis:
In order to conclude that the worker is entitled to further wage loss benefits, the panel must find on a balance of probabilities that the worker continued to suffer a loss of earning capacity after April 8, 2007 as a result of her compensable injury. We are not able to make this finding. In the panel’s opinion, by April 8, 2007, the worker had sufficiently recovered from the effects of her compensable right hand/wrist injury so as to allow her to return to her pre-accident employment, and therefore no further wage loss benefits are payable.
The compensable diagnosis accepted by the WCB was a muscular strain to the worker’s right hand/wrist which she suffered when she was reaching forward to lift something in the course of her employment as a housekeeper. The worker’s condition and course of recovery was made complicated by pre-existing conditions of severe CTS in both wrists and bilateral osteoarthritis of the CM thumb joints. These conditions made it difficult to determine the extent to which the worker’s symptoms were attributable to the compensable muscle strain as opposed to the non-compensable pre-existing conditions.
In concluding that the worker had sufficiently recovered by April 8, 2007, the panel relied upon the following evidence relating to the worker’s medical condition and functional ability at the relevant time:
- The physiotherapist’s discharge report of April 8, 2007 indicated that the worker had had good response with treatment. Objectively, there were no current impairments, and subjective complaints were of soreness felt with overuse. No work restrictions were outlined. The worker described her pain as being 1/10 and her Disabilities of the Arm, Shoulder and Hand (DASH) score was relatively low at 16.67;
- A recovery period of approximately 8 months should be sufficient to allow a muscular strain to resolve;
- On April 30, 2007, the worker did return to similar employment as kitchen staff for a local hotel. Although the worker described her arm being sore and losing strength after 4 to 5 hours, she was still able to complete her shifts in this full time position. In the panel’s view, given her pre-existing CTS and osteoarthritis, it could not be expected that the worker would be completely symptom free. She was, however, able to do the work;
- On May 15, 2007, the worker left the kitchen position as a result of personality conflicts. Following that, she looked for new full time employment in the healthcare field and as a cook.
In view of the foregoing, the panel finds that the worker’s earning capacity was no longer impaired after April 8, 2007 as a result of her compensable injury. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
D. Zirk, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of October, 2009