The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker has a claim with the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome (CTS). In May 2009, it was determined by primary adjudication that the worker had returned to her pre-surgery state and that her benefits would revert back to partial wage loss based on a deemed earning capacity to work at minimum wage. The decision was upheld by Review Office on December 1, 2009. The worker disagreed with the decision, submitting that she was unable to find work within her restrictions. A hearing was held on December 16, 2010 to consider the matter.

Issue

Whether or not the deemed post-accident earning capacity equal to provincial minimum wage was correctly implemented effective May 16, 2009.

Decision

That the deemed post-accident earning capacity equal to provincial minimum wage was correctly implemented effective May 16, 2009.

Decision: Unanimous

Background

In July 2001, the worker filed a claim with the WCB for symptoms she developed in her right hand, fingers and wrist that she attributed to the repetitive nature of her work duties which involved meat processing. The worker was initially diagnosed with right wrist tendonitis/carpal tunnel syndrome ("CTS") but the diagnosis was later changed to bilateral CTS. The claim for compensation was accepted and benefits have been paid to the worker. These benefits included vocational rehabilitation.

Medical reports on file show that the worker underwent right CTS release surgery on December 5, 2007 and left CTS release surgery on August 22, 2008.

On December 2, 2008, a hearing took place at the Appeal Commission in relation to an appeal brought by the worker. Under Decision No. 19/09 dated January 28, 2009, it was ultimately determined by the appeal panel that the worker's vocational rehabilitation plan with an occupational goal of working within National Occupational Classification ("NOC") 6421 (Retail Salesperson and Salesclerk) was appropriate and that a deemed post-accident earning capacity of minimum wage should have been implemented as of November 22, 2006.

Prior to this decision the worker's left CTS surgery in August 2008 resulted in the reinstatement of full wage loss benefits during recovery. The file contains progress reports from the worker's plastic surgeon dated February 24, 2009, March 23, 2009 and April 27, 2009. The February 24, 2009 report suggested the worker had full range of motion at the left wrist, with good sensation in the left hand. The March 23, 2009 report suggested that while the left hand was a bit stronger, the left index finger felt numb in the cold. In the April 27, 2009 report, the plastic surgeon reported that the worker appeared to have clinical findings of recurring left CTS.

A March 27, 2009 report from the worker's family physician suggested the worker's left hand was improving but was recently more sore due to increased use. An examination by the physician dated April 7, 2009 suggested that sensation was decreased in the left hand.

On March 13, 2009, a WCB case manager referred the file to the WCB's healthcare branch to provide an opinion on whether the worker was now at her pre-surgery state, with the questions specifically limited to the CTS surgery on the left side performed in August 2008.

The medical advisor responded that overall, it appeared that the worker had at least returned to her pre-August 2008 state. He stated that the treating plastic surgeon had ordered a repeat nerve conduction study to assess the worker's current left median nerve function. The medical advisor indicated that he spoke with the plastic surgeon and it was agreed that the worker could attempt a return to work at this time with the following permanent work place restrictions:

· No forceful repetitive grasping;

· No vibratory tool use; and

· No prolonged posturing of either wrist in flexion or extension.

In a note to file dated May 8, 2009, the WCB case manager noted that she advised the worker that she had recovered to, at minimum, her pre-surgery state and that effective May 16, 2009 her benefits would revert to partial wage loss based on her earlier deem of minimum wage. The worker told the case manager that she had been looking for work but did not find anything locally that was within her restrictions.

In a letter dated May 11, 2009, the WCB case manager indicated to the worker that effective May 16, 2009, her benefits would be reduced by the deemed earning capacity of minimum wage previously determined based on her vocational rehabilitation plan and in accordance with WCB Policy 44.80.30.20 Post Accident Earnings - Deemed Earning Capacity.

The nerve conduction study report of May 28, 2009 indicated “medial, radial and ulnar sensory conductions are normal across the wrists. Median motor responses are normal at the wrists as well.” The report concluded that "this electrophysiologic study is normal and does not show any evidence of focal median neuropathy at the wrist (carpal tunnel syndrome) in either upper extremity."

In a report dated July 17, 2009, the plastic surgeon observed that the worker had numbness improvement. He noted that her recent nerve conduction test did not show any recurrence of the carpal tunnel syndrome. The surgeon reported that the worker continued to have pain in the surgery scars from her bilateral CTS surgeries. He suggested that the worker had not been able to return to the work she was doing prior to the August 2008 surgery as she felt that this work was too intense for her hands. He noted that the worker had been placed on restrictions by the WCB to avoid repetitive work, no bending at the wrists and no forceful gripping but the worker was not able to find suitable work within these restrictions. He stated that based on her present symptoms, the worker was not able to return to work.

On August 4, 2009, the case was referred back to the WCB medical advisor to comment on whether there was any medical evidence to support the worker's inability to return to work as a sales person or to support that she was incapable of working.

In a response dated August 31, 2009, the medical advisor noted that he spoke with the plastic surgeon regarding his July 2009 comment that "With her present symptoms she is not able to return to work." The plastic surgeon indicated that his comment referred to the worker not being able to return to her former occupation before surgery and to what the worker had told him regarding being unable to find work within her current restrictions in her community. The surgeon did not mean to imply that the worker was totally disabled.

In the view of the WCB medical advisor, there was no clinical medical evidence to suggest the worker could not return to work as a retail sales person or that she was totally disabled. The medical advisor indicated that the worker was not totally disabled given the absence of muscle wasting in either hand, her full range of motion in several progress reports and the normal May 28, 2009 nerve conduction study of both upper limbs. He stated the restrictions outlined on April 28, 2009 were still applicable.

On September 15, 2009, the WCB case manager wrote the worker to advise her that it was still the WCB's position that she continued to be employable within NOC 6421 and that the restrictions outlined on April 28, 2009 continued to be applicable. This decision was based on the comments made by the WCB medical advisor. On September 28, 2009, the worker appealed the decision to Review Office.

On December 1, 2009, Review Office determined that the post accident earning capacity equal to the provincial minimum wage was correctly implemented effective May 16, 2009. Review Office placed weight to the following when making its decision:

· the medical advisor's opinion that the worker had at least returned to her pre-August 22, 2008 state;

· the plastic surgeon's opinion of April 28, 2009 that the worker could return to work within her restrictions;

· the May 28, 2009 nerve conduction study results that did not show any evidence of focal median neuropathy at the wrist in either upper extremity.

· the plastic surgeon's opinion of August 31, 2009 that the worker was fit to return to work within her restrictions.

On July 27, 2010, the worker appealed Review Office's decision of December 1, 2009 to the Appeal Commission and a hearing was arranged.

The oral hearing

At the onset of the oral hearing, the worker confirmed that the issue before the panel was whether or not the deemed post accident earning capacity was correctly implemented effective May 16, 2009.

During her presentation, the worker indicated that there she was experiencing considerable challenges in finding a job within her restrictions in her region of the province.

And now with the (area), there's no jobs. Like our area's pretty - - there's a lot of people losing their jobs. And they they just keep deeming me down. And it's kind of hard to find a job, like what I'm supposed to be in sales or whatever . . . .”

The worker initially argued that she was not capable of working. When asked whether she meant medically not capable or because of the job market, the worker indicated “actually both.” Later the worker was asked “do you have a sense that you could work full-time?” Her response was “if I had to, yes.”

In terms of the number of Tylenol 3 the worker took to manage her pain, she noted that in January 2009 she was using about six a day. By May 2009, she was down to about three a day.

Reasons

The panel's conclusion that the worker had recovered from her intervening surgery by May of 2009 also is supported by the worker's evidence that she had materially reduced her intake of Tylenol 3s by May of 2009. Her evidence suggests that she was taking roughly half the number of Tylenol 3s as compared to January of 2009.

The panel notes that the worker's evidence at the hearing was focused to a significant degree on challenges in the labour market as compared to limitations in terms of her physical capacity. In particular, we observe and rely upon the worker's candid admission in December of 2010 at the hearing that she could work full time. In large part, this subjective opinion of the worker strongly supports the conclusions of the medical experts.

Conclusion

Based on a balance of probabilities, the panel finds that the worker had fully recovered from her left CTS surgery to the point of her having achieved or exceeded her pre-surgery capacity by May 16, 2009. In the panel's view, she was physically capable of obtaining and keeping employment in the occupation in the labour market on which her deemed earning capacity was based.

The panel finds that the deemed post-accident earning capacity equal to provincial minimum wage was correctly implemented effective May 16, 2009.

Accordingly, the appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 14th day of February, 2011