Decision #114/09 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which stated that she was not entitled to compensation benefits beyond November 12, 2008. The worker contended that her bilateral carpal tunnel condition was related to her compensable February 27, 2008 accident and that she was entitled to benefits beyond November 12, 2008. A hearing was held on September 30, 2009 to consider the matter. The worker participated via teleconference.Issue
Whether or not the worker is entitled to wage loss benefits after November 12, 2008.Decision
That the worker is not entitled to wage loss benefits after November 12, 2008.Decision: Unanimous
Background
The worker reported that she was flipping burgers on February 27, 2008 when both her wrists “snapped”.
When speaking with a WCB adjudicator on March 4, 2008, the worker indicated that she saw a doctor on March 3, 2008 and she was instructed not to use her hands right now. She indicated that the doctor thought she had carpal tunnel syndrome (“CTS”) and was referring her for nerve conduction studies. She was advised to wear wrist splints on both hands. She said her wrists were fine prior to her shift.
When speaking with a different WCB adjudicator on March 13, 2008, the worker indicated that it had been really busy at work and for 2 weeks she told her employer that she needed help. On the day of injury she worked an earlier shift and her arms felt like rubber. She went back to work and at about 6:45 p.m. she heard her wrists “snap”. The worker indicated that her hands had been shaking and her physiotherapist said this was not normal and to make another appointment with her doctor.
Medical information confirmed that the worker was seen on March 3, 2008 and complained of a snap to both hands on February 27, 2008. The diagnosis rendered was bilateral wrist pain and possible CTS. Nerve conduction studies were pending.
On March 19, 2008, a WCB healthcare advisor documented that it was difficult to be specific regarding a diagnosis beyond some type of nonspecific wrist strain. He indicated that the reported mechanism of injury of “snapping” would not be consistent with a diagnosis of CTS. A WCB examination was arranged to confirm a diagnosis. On March 26, 2008, the WCB adjudicator advised the employer that she was accepting the worker’s claim as a specific incident occurred on February 27, 2008. The employer expressed concerns that the worker’s job was not repetitive and asked that the WCB come out and assess the job site.
On April 15, 2008, a WCB medical advisor examined the worker’s wrists and made the following observations:
“Currently considering the nature of the duties, the mechanism of injury, and the lack of significant findings on examination today, it seems more likely that the work-related injury was a soft tissue wrist strain. The relationship of carpal tunnel syndrome, if it exists in this case, to the workplace duties in general, and the February 27, 2008, incident in particular, is not clear. No relevant pre-existing conditions were identified.”
The medical advisor outlined work restrictions which included the avoidance of heavy lifting greater than 2 kg., and repetitive forceful grip with the right hand based on the worker’s reported symptoms.
Nerve conduction studies dated April 2, 2008 revealed the following findings:
“Moderate slowing in right median motor and sensory conductions across the wrist consistent with right CTS. Left median motor conductions are normal but there is mild slowing in left median sensory conductions across the wrist consistent with left CTS.”
The worker was assessed by a neurologist on May 26, 2008. In his report dated June 12, 2008, the neurologist outlined the opinion that his examination findings suggested a benign essential tremor, a right fourth metacarpophalangeal arthralgia and right and left CTS. He indicated that the fourth metacarpophalangeal joint may be an arthritic process. He indicated that the worker may benefit from surgical intervention.
On July 16, 2008, the WCB medical advisor who saw the worker on April 15, 2008, reviewed the report from the neurologist. He stated:
“…While it is indeed possible that [the worker] has developed a degree of carpal tunnel syndrome, it is not clear that its development is related to the ci [compensable injury] of Feb 27 08. As I noted in my examination notes of Apr 15 08, “The reported description of discomfort and pins-and-needles symptoms in the right hand could be consistent with a dx [diagnosis] of CTS. That said it is difficult to relate the onset of CTS to the reported injury. The workplace duties which [the worker] had been carrying out in the 5 to 6 months prior to the Feb 08 incident were reportedly varied, and by her report did not appear to involve sustained repetitive forceful gripping as is typically regarded as being provocative for the development of CTS…The relationship of CTS, if it exists in this case, to the workplace duties in general, and the Feb 27 08 incident in particular, is not clear…” Expedited referral to a plastic/hand surgeon is available if it is adjudicated that CTS in this case is WCB responsibility/compensable.”
On September 5, 2008, the WCB medical advisor spoke with the attending physician. The attending physician maintained that the worker’s current symptoms/condition was a result of prior repetitive workplace duties and the February 2008 incident. The reason for the persistence of symptoms while away from the workplace for several months was not apparent.
On September 26, 2008, a second WCB call-in examination took place. The medical advisor commented that the worker reported a combination of discomfort, numbness, and weakness of the right arm and hand which would be difficult to account for on the basis of CTS. He noted, however, that some of the present reported symptoms may indeed relate to CTS. He said the area of numbness was consistent with the median nerve distribution. What was less clear was whether the workplace duties had made a material contribution to the development of CTS. The medical advisor noted that when the worker was involved with strictly grill duties prior to the date of the compensable injury, which involved frequent and repetitive use of grill implements and a moderate grip, she reported no symptoms. Her duties were changed and required more varied hand and arm activities, some of which were heavier in nature, though brief in duration. The worker related symptom onset to the flipping/supination episode of February 2008. It was not possible to account for the onset of carpal tunnel in relation to this incident alone. Neither was it possible to explain the worker’s ongoing non-CTS symptoms on the basis of this incident alone.
The medical advisor was of the view that the February 27, 2008 incident likely represented some type of wrist strain injury and that any significant effects of the 2008 “flipping injury” had now resolved. He said the causes of the worker’s present symptoms, though not clearly identified, were on a balance, likely unrelated to workplace duties. He noted that the worker’s lack of improvement in her symptoms after being removed from any type of work duties for the past seven months appeared to support the contention that workplace duties were not a major factor in causing or perpetuating the worker’s arm symptoms.
On November 5, 2008, the worker was advised that in the WCB’s opinion, she had recovered from the injury she sustained on February 27, 2008 and wage loss benefits would end effective November 12, 2008. The worker was advised that her CTS condition was not accepted as being related to her compensable injury of February 27, 2008 or to workplace influences.
A report was submitted by a plastic surgeon dated December 12, 2008. He stated the worker had obvious bilateral CTS with the right side being worse. It was recommended that the worker undergo surgical decompression as conservative treatment was not helping.
On February 5, 2009, the case was considered by Review Office at the worker’s request. Review Office indicated that the worker had a number of problems with her wrists and hands, i.e. a benign essential tremor, bilateral CTS, tenderness and swelling in hands, etc. It noted that the worker’s claim was accepted on the basis of wrist strains and felt that the worker’s wrist strains had resolved. This confirmed that the worker was not entitled beyond November 12, 2008 to any benefit provided for by section 37 of The Workers Compensation Act (the “Act”). Review Office indicated that the worker could file a separate claim with the WCB for CTS or any other conditions that she felt were related to her employment. On April 29, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
On July 29, 2009, a WCB medical advisor reviewed the WCB examinations of April and September 2008 and commented that there was no evidence of any relevant pre existing conditions that might have delayed the worker’s recovery.
The file contains a submission from the worker’s treating physician dated September 23, 2009 as well as a submission from the employer’s representative dated September 23, 2009. A hearing was held on September 30, 2009.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by 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.
The Worker’s Position
The worker participated by teleconference and was represented at the hearing by two union representatives. It was submitted on behalf of the worker that her CTS was related to the initial accident, and that the acceptance of this condition would entitle the worker to wage loss benefits after November 12, 2008. A substantial amount of evidence related to the worker’s general job duties was introduced by the union representatives. There was also discussion of the causative factors of CTS. The worker submitted that she was only injured once and that was on February 27, 2008 while she was at work. Her family doctor had identified her injury as CTS and nothing else. She described her work on that day as the straw that finally brought on the injury. The worker stated that she is not a doctor, but she knows what she has felt and stated that since the injury, she had not been able to work.
The Employer’s Position
Legal counsel appeared at the hearing accompanied by a representative from the employer. It was submitted that in order to accept the appeal, the panel would have to find on a balance of probabilities that the worker had not recovered from the effects of her compensable injury of February 27, 2008 and therefore continued to suffer a loss of earning capacity after November 12, 2008, as a result of that particular incident. The employer’s position was that although evidence and arguments related to the general nature of the duties was submitted on behalf of the worker, that issue was not before the Appeal Commission. Based on the medical information on file, it was submitted that the worker had recovered from the effects of her compensable injury and that her current ongoing symptoms, if any, that she was experiencing were not related to the particular specific accident that occurred. The diagnosis of CTS should not be accepted as being related to the compensable injury of February 27, 2008.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits and services after November 12, 2008. In order for the appeal to be successful, the panel must find that by November 12, 2008, the worker had not recovered from the effects of the injuries she sustained in the February 2008 workplace incident. We are unable to make that finding.
On reviewing the medical evidence, it would appear that as of November 12, 2008, the medical condition which was causing the worker to suffer a loss of earning capacity was CTS. In the earlier stages of the file, there were some inconsistent findings; however, in December 2008, a plastic surgeon diagnosed the worker as having “obvious bilateral CTS with the right being worse” and recommended surgical decompression. In fact, decompression surgery was performed on both the right side (May 8, 2009) and the left side (August 14, 2009), and at the hearing, the worker reported experiencing good relief from the surgeries. In the circumstances, the panel is prepared to find that the worker did have CTS and that this was the condition which was impairing her earning capacity as at November 12, 2008.
The question then becomes whether the CTS was caused by the workplace accident of February 27, 2008. The worker described the injury as occurring when she was flipping hamburgers on a kitchen grill. She is right hand dominant and was holding a flat metal spatula in her right hand. There were three eight ounce burgers on the grill and she used the spatula to flip the burgers over. As she was doing the third one, she felt a “snap” in her wrist, which she likened to the feeling which is experienced when a person’s knuckles crack. She then felt pain in the middle part of her wrist and at both ends of her wrist. Because of the pain, she felt she could not continue to use her right hand so she switched the spatula to her left hand. Then as she was flipping the burgers off the grill, she felt a snap in her left wrist, which caused her further pain.
After considering the mechanism of injury as described by the worker, we are unable to conclude that this workplace accident either caused, aggravated or enhanced the bilateral CTS condition which was impairing the worker’s earning capacity as at November 12, 2008. We do not view the worker’s performance of her job duties that day as being capable of causing a CTS condition. We find that the one isolated incident of flipping hamburgers on February 27, 2008 had no causative relationship with the worker’s bilateral CTS that was subsequently diagnosed. We agree with the WCB’s determination that the injury suffered by the worker on February 27, 2008 was a bilateral wrist strain and that by November 12, 2008, this injury had resolved completely.
There was considerable discussion at the hearing as to the scope of the issue before the panel. It was noted by the employer that the WCB had not previously considered the issue of whether the general nature of the worker’s duties caused her bilateral CTS. The panel agrees that the issue has not yet been adjudicated by the WCB and accordingly, we do not have the jurisdiction to address this issue. At this time, the worker may still ask the WCB to consider whether her general job duties were a contributing cause of her bilateral CTS condition, and if she is dissatisfied with the WCB’s determination, it remains open to the worker to exercise her general rights of appeal.
For the foregoing reasons, we find that the worker is not entitled to wage loss benefits after November 12, 2008. The worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of November, 2009