The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with three compensation claims filed by the worker regarding injuries to her right middle finger and right thumb sustained in 1979, 1987 and 1997. The worker submitted that her compensable injuries led to her present difficulties and that she was entitled to retroactive wage loss benefits. The worker also asked that a Medical Review Panel (“MRP”) be convened due to a difference of medical opinion. These issues were considered by Review Office and it was ultimately determined that the worker was not entitled to retroactive wage loss benefits and that the convening of an MRP was not warranted. The worker disagreed with these decisions and an appeal was filed with the Appeal Commission by an advocate, acting on behalf of the worker. A file review was held on October 1, 2009 to consider the issues.

Issue

Whether or not a Medical Review Panel should be convened; and

Whether or not the worker is entitled to wage loss benefits retroactive to May 15, 2006.

Decision

That a Medical Review Panel will not be convened; and

That the worker is not entitled to wage loss benefits retroactive to May 15, 2006.

Decision: Unanimous

Background

As noted in the preamble, the worker has three claims with the Workers Compensation Board (“WCB”) for injuries she sustained to her right middle finger and thumb. The following is a brief summary of each claim:

· On August 12, 1979, the worker cut her right middle finger on broken glass. When seen at a local hospital facility for treatment following the injury, it was reported that the worker had two lacerations of the middle phalanx. On September 14, 1979 the worker had surgery to repair the extensor tendon on the dorsum of the right long finger. The claim for compensation was accepted and benefits were paid to the worker between August 1979 and October 1979.

· On July 7, 1987, the worker suffered a crush injury to her middle right finger at work. She was seen for treatment with swelling and decreased range of motion of the DIP joint. The diagnosis rendered was a contused finger. The claim for compensation was accepted and 3 days of time loss benefits were issued to the worker.

· On February 10, 1997, the worker suffered a laceration to her right thumb during the course of her employment as a chicken deboner. When seen for medical treatment, a small flap laceration of the radial side of the right thumb was sutured. The claim was accepted and 5 days of time loss benefits were issued.

2000 and Onward:

On May 11 and May 12, 2000, the worker was seen by a WCB medical advisor for the purposes of establishing a Permanent Partial Disability (“PPD”) award for her right middle finger pertaining to her 1979 and 1987 injuries. Following the assessment, the medical advisor calculated 0.9% for the DIP joint, 0.3% for the PIP joint and 0.1% for the MP joint. A 1% award was calculated for a cosmetic impairment. The total PPD award was 2.3%.

On May 12, 2000, a PPD assessment took place in regard to the worker’s right thumb injury. The final PPD rating was determined to be 0.6%.

On January 21, 2003, the family physician reported that the worker was seen on October 18, 2001 with entrance complaints of migraines and finger throbbing/tenderness for 5 years. When last seen on June 9, 2002, there was normal range of motion and no neurological deficit in the injured right finger. The diagnosis rendered was muscle sprain finger and because the examination was normal, no medications were prescribed.

On May 4, 2005, the worker advised the WCB that she was experiencing ongoing problems with her right index finger that was injured in 1979.

A report from the treating physician dated May 6, 2005, indicated that the worker was examined on March 26, 2005 for right middle finger complaints. The examination revealed swelling, erythema, tenderness and warmth. The diagnosis rendered was cellulitis of the right middle finger. When seen again on March 28, 2005, the cellulitis condition had cleared. An April 1, 2005, examination revealed what seemed to be a mallet finger to the right middle finger. A referral to a plastic surgeon was arranged. The physician indicated: “The tendon injury is probably related to the previous WCB incident 25 years ago.”

On May 27, 2005, the plastic surgeon reported that the worker had a swan neck deformity of the PIP joint and a mallet deformity of the DIP joint. There was hyperextension at the PIP joint, a small lesion just proximal to her mallet finger DIP incision which appeared to be compatible with suture granuloma. “The patient states it has been infected twice and it would appear that this is due to an underlying suture granuloma which was protruded through the skin. Removal of this granuloma and repair of extensor tendon mechanism would be beneficial…she may be a candidate for superficial oblique retinacular ligament reconstruction to try and improve her swan neck deformity.”

On July 12, 2005, the worker was advised that the WCB was accepting responsibility for her upcoming surgery and that she would be paid WCB benefits effective March 26, 2005 (the first recorded date showing that the worker was seen at a clinic for pain and swelling to her finger) which would continue throughout her recovery period. The adjudicator indicated that there was no basis to provide the worker with benefits predating March 25, 2005. The adjudicator noted that the plastic surgeon found normal range of motion and no neurological deficit in the worker’s finger at a June 9, 2002 visit and that it was difficult to measure loss of earnings when the worker removed herself from the work force in 2000. The worker was also advised that she was not entitled to vocational rehabilitation benefits as the expected prognosis for recovery from surgery was good and there would be no loss of earning capacity.

On December 2, 2005, the plastic surgeon reported that the worker decided to proceed with only the excision of the granuloma, as she was used to living with the mallet type deformity. On February 15, 2006, the suture granuloma was excised from the worker’s finger. After completing physiotherapy treatment, the worker’s wage loss benefits ended on May 15, 2006.

On June 15, 2006, a WCB Review Officer spoke with the worker’s advocate to clarify the issues he wanted addressed by Review Office. On June 16, 2006, under Order No. 428/2006, Review Office decided that there was no basis to provide the worker with vocational rehabilitation benefits and that the worker was not entitled to wage loss benefits from July 23, 2002 to March 25, 2005.

On March 15, 2007, the worker contacted the WCB to indicate that she noticed a lump re-appearing on her hand. The WCB case management representative advised the worker to follow-up with her doctor as the WCB required medical information to determine ongoing responsibility.

On April 14, 2008, the worker contacted the WCB stating that she was having ongoing problems with her finger and that it was double the size of her other fingers. The worker indicated that she saw the plastic surgeon and he told her to re-open her claim. The worker commented that she should be retrained for a job, as she kept having ongoing problems with her finger and had never been able to return to work.

Updated medical information was received from the plastic surgeon dated April 25, 2008. He reported that he saw the worker on April 14 and April 16, 2008 and that the worker had “osteoarthritis finger”. A referral was made to a rheumatologist.

On June 4, 2008, a rheumatologist reported that he saw the worker regarding the possibility of psoriatic arthritis. His examination revealed a completely normal peripheral joint with the exception of the right third digit. The right third digit showed a mild swan neck deformity and no swelling to any small joints. The consultant could not find any evidence of psoriatic arthritis. He stated that the abnormalities in the right third digit relate to her history of prior trauma.

An x-ray of the right hand was done on June 4, 2008. The x-ray showed no soft tissue, bone or joint abnormality. There were no findings to suggest synovial inflammatory disease.

The case was reviewed by a WCB medical advisor on July 3, 2008. In his opinion, the current diagnosis was a mild swan neck deformity of the right middle finger. He stated that the swan neck deformity of the right middle finger was similar to the findings of 2006 and was therefore related to the compensable injury of 1979. The medical advisor also stated:

“The worker had previously demonstrated the ability to function at a level of capability sufficient enough to perform the serving duties. The mild swan neck deformity of the right middle finger does not seem to be appreciably different than the findings reported in 2006 and the medical evidence does not support the presence of other symptoms/findings related to the right middle finger that are appreciably different than the findings reported in 2006. As a result, the evidence on file does not support the need for restrictions that would preclude the worker from performing the duties of a banquet serving attendant.”

On July 4, 2008, the worker was advised that no change would be made to a decision dated May 26, 2008 that there was no entitlement to benefits and services related to “loss of earnings”. The case manager noted that based on the updated medical information, the current diagnosis was mild swan neck deformity of the right middle finger. The case manager indicated that this diagnosis was not appreciably different than the findings reported in 2006. The case manager concluded that the file evidence did not support that there was any total disability or the need for restrictions that would preclude a return to work which was available from either the hotel (accident employer) or the chicken processing plant.

In a letter dated July 7, 2008, the case manager advised the worker that the WCB was not accepting responsibility for any psychological difficulties as being related to the compensable injury and that a review of the worker’s PPD award was not warranted.

On September 20, 2008, the worker’s advocate submitted to the WCB a report from an occupational health physician for consideration. In his report dated September 12, 2008, the specialist stated the following:

· the worker had a swan-neck deformity secondary to her previous tendon injury of her right middle finger;

· the suture found in the finger from the 1979 surgery likely contributed to the original granuloma but he did not think it was an ongoing problem;

· he did not think the worker could work at a job that required her to carry trays with both hands or work in an area that could be cold or required repetitive motions with her right hand. For these reasons, the worker could not work as a banquet server or in the chicken processing line;

· the worker had unrealistic expectations of what could be done for her finger at this point in time as she wanted it to be fixed to a normal state. The worker would benefit from some counselling in helping her to deal with the situation.

· the worker’s problems seem to stem from her 1979 injury and the related subsequent treatments.

On September 26, 2008, the plastic surgeon noted that the worker had a DIP joint which was flexed and could not fully extend. She had a very mild swan neck deformity but was noted to have hypermobile PIP joints at all joints. The surgeon indicated that he did not see any need for surgical intervention and that it may be of benefit for the WCB to look at job placement for the worker.

On September 26, 2008, a WCB sector services manager wrote to the worker’s advocate outlining the decision that there was no basis to reinstate benefits or to convene a Medical Review Panel (“MRP”). The case manager indicated that the specialist’s opinion outlined on September 12, 2008 did not support that the worker was disabled from all types of work. The case manager referred to the decision made by Review Office on June 16, 2006 and indicated that it was well established that the worker could have been accommodated by both her pre-accident employer and a post-accident employer in other jobs that were within her restrictions. The request for reinstatement of benefits was denied as the worker was not considered to be totally disabled from work as a result of her 1979 compensable injury.

Regarding the request for an MRP, the case manager found no difference in opinion on diagnosis amongst the different healthcare providers and the occupational health physician. She noted that the issue of whether nor not the worker could work as a banquet server or in a processing plant did not fit within the definition of “medical opinion”. The case manager concluded that the requirements for subsection 67(1) and 67(4) of the Act had not been met and that an MRP would not be convened.

On October 27, 2008, the worker’s advocate made reference to the worker’s 1979, 1987 and 1997 claims. He submitted to Review Office that the worker had serious flare-ups of her 1979 injury with re-injuries in 1987 and 1997, and she was hindered in the activities of daily living as it related to the use of both hands. He contended that the worker was incapable of returning to the duties of a banquet server or chicken processing plant and required employment services to assist in obtaining employment that respected restrictions and wage loss. He submitted that a MRP was in order given the variance of opinions on file as to “two-handed” employment duties.

On November 13, 2008, Review Office determined that the worker was not entitled to wage loss benefits retroactive to May 15, 2006. Review Office found that the worker continued to experience some difficulties with the finger that she injured on August 12, 1979, but did not consider her injury to be totally disabling. Review Office indicated that the worker had been reasonably compensated during the post-operative recovery period from her 2006 surgery. It felt that the worker could easily have performed the duties that were provided to her by her employer (front desk clerk) by the time her benefits ended on May 15, 2006.

Review Office further determined that there was no basis for an MRP under subsection 67(4) of the Act as it was not considered that any difference of opinion was expressed regarding the worker’s capabilities that would impact on the decision to deny retroactive benefits. Review Office was of the view that the worker “need only be capable of performing the post-accident accommodated duties of a front desk clerk to negate any loss of earning capacity, and does not find any support that the worker would have been incapable of performing those duties.” Review Office ruled that the worker should be provided wage loss benefits and job search assistance for a 12 week period contingent on her willingness to participate in job search activities.

On December 31, 2008, Review Office wrote to the worker’s advocate. The advocate indicated in a previous conversation with Review Office that the worker had returned to the accident employer for only a short period of time as a front desk clerk and not for 5 years as referenced in previous Review Office decisions. Review Office advised the advocate that “irrespective of the amount of time the worker spent with the accident employer after returning to work following her injury, the file evidence suggested that she left their employ for personal reasons and did not contact the WCB with respect to an ongoing inability to work.” Based on these findings, Review Office remained of the opinion that the worker was only entitled to short term vocational assistance and retroactive wage loss benefits were not payable.

On January 17, 2009 the worker’s advocate appealed Review Office’s decisions dated November 20 and December 31, 2008 to the Appeal Commission and a file review was arranged.

Reasons

After reviewing the evidence as a whole, the panel is unable to identify a basis for extending wage loss benefits beyond May 15, 2006. After the worker recovered from the simple granuloma excision, there was no remaining impairment to her ability to earn income. She still had the deformity in her finger, but historically, she has been able to secure and maintain employment despite the deformity. Although there is some indication that the worker has some residual discomfort and sensitivity to cold in her right middle finger, there is not sufficient evidence to satisfy the panel on a balance of probabilities that her ability to earn income was impaired as a result of these residual effects. Accordingly, we find that the worker is not entitled to wage loss benefits retroactive to May 15, 2006. The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of November, 2009