Decision #49/11 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board ("WCB") for a repetitive injury that she related to her employment activities. The claim for compensation was accepted and benefits were paid to the worker until February 13, 2009 when it was determined that she had recovered from the effects of her compensable injury and that her present difficulties were not work related. The decision was upheld by Review Office on November 19, 2009. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on February 22, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 13, 2009.Decision
That the worker is not entitled to wage loss benefits beyond February 13, 2009.Decision: Unanimous
Background
On September 1, 2006, the worker filed a claim with the WCB for multiple injuries to her upper extremities that she related to her job duties with a cabinet manufacturer which involved repetitive lifting and carrying.
A Doctor's First Report dated August 31, 2006 diagnosed the worker with bilateral lateral epicondylitis. The diagnosis later changed to bilateral lateral and medial epicondylitis. The claim for compensation was accepted and benefits were paid.
The worker was treated with physiotherapy and returned to modified duties that involved no lifting, pulling or pushing doors. As the worker's symptoms continued, the worker stopped work on October 22, 2007 and benefits were reinstated.
In a consultation report dated November 13, 2007, a sports medicine consultant noted that the worker was seen for bilateral elbow and wrist pain. X-rays of the elbows and wrist showed no significant bony abnormality. There was preserved joint space with no significant degenerative changes. The consultant's impression was that the worker was suffering from non-specific wrist and elbow pain.
On November 19, 2007, the worker was assessed by a WCB medical advisor and the examination suggested right lateral epicondylitis with an ulnar tunnel effect on the right elbow and to a lesser degree, the left side. The hand showed evidence of a mild degree of degenerative changes of the bones but also a suggestion of long term effects from the carpal tunnel with a decreased two-point discrimination of the fingertips. There were no signs of atrophy of the hands.
Nerve conduction studies done on December 5, 2007 showed a normal study and did not show any evidence of carpal tunnel syndrome, Guyon's canal syndrome, cubital tunnel syndrome in either upper extremity or any evidence of neurogenic thoracic outlet syndrome or a more proximal abnormality in the right upper extremity.
The worker returned to work at the beginning of January 2008, but stopped work again on January 18, 2008 due to swelling in both hands and tingling and numbness in her last 3 fingers. The worker had elbow pain more on the right than the left.
On April 28, 2008, a WCB medical advisor reviewed the file and outlined the opinion that on a balance of probabilities, the worker's symptoms were due to the effects of rheumatoid arthritis ("RA"). The medical advisor considered the worker to be recovered from the effects of her compensable injury.
On May 15, 2008, the worker was advised by her case manager that wage loss benefits would be paid to May 23, 2008 inclusive as it was felt that her ongoing problems were not related to the compensable injury.
A doctor's first report dated June 1, 2008 from a rheumatologist diagnosed the worker with arthralgia of unknown etiology and no evidence of RA.
On July 15, 2008, a WCB medical advisor stated that he reviewed x-rays of the worker's hand. The worker had minor degenerative changes at her right thumb. He considered the main barrier to recovery was de Quervain's of the right thumb. The worker's benefits were reinstated effective May 24, 2008.
In a report dated October 21, 2008, the rheumatologist reported that although the worker had a positive rheumatoid factor, her presentation was not suggestive of RA. It was noted that a rheumatoid factor could be positive for other diseases. He recommended continued monitoring for inflammatory joint disease, but did not schedule any future appointments.
On November 27, 2008, the worker advised the WCB that she had pain in both hands which become worse with activity. She had pain in her hands, wrists and to the elbows.
On January 19, 2009, a WCB medical advisor indicated that he reviewed the rheumatologist's comments. He stated: "While no diagnosis is given the note continues to raise concerns about various causes of the worker's complaints which are not work related."
In a decision dated February 6, 2009, the worker was advised that in the opinion of the WCB, there was no further loss of earning capacity beyond February 13, 2009 related to her bilateral hand injury of August 24, 2006. The decision was based on the opinion of the WCB medical advisor that the report of October 21, 2008 raised concerns about various causes for the worker's complaints which were not work related.
On July 14, 2009, the Worker Advisor Office submitted to the WCB a report from the worker's treating physician dated June 19, 2009 to support that there was an ongoing cause and effect relationship between the worker's work duties and the diagnosis of bilateral wrist tendonitis and bilateral medial and lateral epicondylitis.
In his report dated June 19, 2009, the treating physician stated:
I believe there is a continuing causal relationship between [the worker's] diagnoses and her described work duties. [The worker's] diagnoses are a direct result of the workplace activities. She had no symptoms of either diagnosis prior to her work-related injury. [The worker's] job duties included lifting, pulling, and pushing cabinet doors repetitively, and this would explain the symptoms she developed and her eventual diagnoses. [The worker] was assessed by [doctor in sports medicine] in November 2007 who did x-rays showing no underlying degenerative changes. [A rheumatologist] assessed [the worker] October 21, 2008. He did not find any evidence of rheumatoid arthritis or any other inflammatory joint disease.
[The worker's] symptoms continued to worsen despite being completely away from the workplace as of October 22, 2007. I believe this is because her symptoms had become fairly severe before she went off work. Actual return to work in January 2008 for approximately 2 weeks significantly aggravated her symptoms…In order for her to return to the workplace she would need to perform a job that does not require any repetitive hand or forearm activities. This would include no writing or keyboarding duties, and no lifting, pulling or pushing duties.
On August 18, 2009, a WCB medical advisor stated:
I have reviewed this claim in its entirety. The worker according to her physician in correspondence dated June of 09 continuous (sic) to have difficulties in managing her activities of daily living and household chores. The rationale of this claim is that the worker sustained the above-noted complaints because of the repetitive nature of her occupation. The worker has not participated in this occupation since January of 08 and therefore it seems highly improbable that in the ensuing period of time her condition would deteriorate instead of improve if they were related to the described mechanism. The alternative explanation therefore has to be looked for in possible physical causes which are common in this age group.
Based on the medical advisor's opinion outlined on August 18, 2009, the worker was advised that no change would be made to the decision of February 6, 2009. On September 24, 2009, a worker advisor appealed the decision to Review Office. The worker advisor asked Review Office to consider the continuity between the worker's current diagnoses and symptoms and those first reported early in her claim.
In a submission to Review Office dated October 20, 2009, the employer's advocate advanced the position that the appeal must be denied as there was definitely no evidence to support that any ongoing problems experienced by the worker could be causally related to the compensable injury. The advocate was also of the view that the initial reported injury was no more than a strain/sprain type injury and that benefits to May 2008 were excessive.
The worker advisor and the employer's advocate provided Review Office with further submissions dated November 3, 2009 and November 9, 2009 respectively.
On November 19, 2009, Review Office denied the employer's appeal and determined that the worker was entitled to wage loss benefits after May 2008. Review Office noted that the worker's benefits were reinstated retroactive to May 24, 2008 based on the opinion made by the WCB medical advisor on July 15, 2008. Review Office indicated that it agreed with the medical advisor's findings and the decision to reinstate benefits.
Review Office also determined that the worker was not entitled to wage loss benefits beyond February 13, 2009. In making this determination, Review Office placed weight on the medical opinions expressed by the WCB medical advisor on January 19, 2009 and August 18, 2009. Review Office said the medical evidence did not support a cause and effect relationship between the worker's ongoing symptoms and her job duties which would result in a loss of earning capacity. The worker disagreed with Review Office's decision and a hearing was held at the Appeal Commission.
Reasons
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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 ends, or the worker attains the age of 65 years.
Worker’s submission:
The worker was self-represented at the hearing. In her written submission, the worker noted that she did not have rheumatoid arthritis and that x-rays and nerve conduction tests showed no abnormalities. Her treating physician maintained that it was her work-induced epicondylitis which prevented her from returning to work. At the present time, she continued to have difficulty using her hands to perform activities of daily living. Her hands hurt and cramped up and were unable to do some of the things she tried to do. It was submitted that her benefits should not have been terminated as she was still unable to return to work because of her work-induced epicondylitis.
Employer’s submission:
An advocate and the employer's back-to-work coordinator appeared on behalf of the employer. The employer's position was that the worker's continuing problems with her upper extremities did not arise out of and in the course of her employment with the accident employer. What was troubling was that even though the worker was away from the workplace, this did not appear to have helped her to resolve her symptoms. The pain she was experiencing was described as non-specific and burning. It was submitted that the worker's condition could arise from multiple causes, and since there had been no excessive responsibilities placed on her upper extremities for almost five years, it was difficult to accept that her ongoing problems were still related to her work activities. It was therefore submitted that the condition was no longer the responsibility of the WCB.
Analysis:
In order for the worker's appeal to succeed, we must find on a balance of probabilities that the worker suffered a loss of earning capacity beyond February 13, 2009 as a result of her compensable injuries. We are unable to make that finding. In the panel’s opinion, by February 13, 2009, the worker had recovered from the effects of her compensable injuries and the ongoing difficulties she is experiencing are not caused by her workplace duties.
In coming to our decision, the panel placed particular reliance on the following evidence:
- The diagnoses which were accepted by the WCB as compensable and caused by the repetitive performance of work duties were lateral and medial epicondylitis, bilaterally. A diagnosis of de Quervain's tenosynovitis of the right thumb was later also accepted as being related to her work duties.
- In her submission to the panel, the worker filed an updated report from her rheumatologist dated January 20, 2011. In his report, the rheumatologist indicated that the worker complained of pain involving her hands, wrists, forearms and elbows over the last 10 years. On examination, he noted that there was no evidence of joint line tenderness or joint swelling. There was no discomfort on resisted wrist extension and no tenderness over the lateral epicondyles. These examination findings would suggest that the original diagnoses of bilateral lateral and medial epicondylitis, and the subsequent diagnoses of de Quervain's syndrome were no longer symptomatic;
- The rheumatologist's findings are consistent with expected recovery progression for the compensable diagnoses. The worker had not been in the workplace since January 2008 and therefore had not been exposed to the repetitive job duties for quite some time. As indicated by the WCB medical advisor, it seems highly improbable that the worker's condition would deteriorate instead of improve if her symptoms were caused by the repetitive nature of her occupation, and that an alternative explanation would have to be looked for as a cause for her condition;
- The rheumatologist noted that the worker described her pain as burning in nature and that it radiated from her hands, up her forearm into her elbows. Because of these characteristics, the rheumatologist raised the possibility that her hand and arm pain was related to carpal tunnel syndrome and referred the worker for nerve conduction studies and further evaluation;
- In the panel's opinion, a diagnosis in 2011 of carpal tunnel syndrome cannot be related to the worker's job duties. A nerve conduction study was performed on December 5, 2007, which indicated normal results and did not show any evidence of carpal tunnel syndrome. The carpal tunnel syndrome must therefore have developed at some time subsequent to December 2007. As noted earlier, however, the worker has not been in the workplace since January 2008, so it is very unlikely that her job duties contributed to this new condition.
Overall, the panel notes that the worker has been almost continuously away from the workplace since October, 2007, with only one approximately two week return to modified duties in January 2008. In June, 2009, the treating physician stated that the reason why the worker's condition worsened despite being away from work was because of the severity of her symptoms. The treating physician also stated that in order to return to work, the worker would need to perform a job that did not require any repetitive hand or forearm activities. Implicit in this statement is that the worker's condition would be expected to improve with avoidance of these types of activities. The problem is that the worker has now been out of the workplace for over three and a half years and her problems continue. Given the length of time, we do not accept that her ongoing difficulties can still be related to repetitive job duties she was performing so long ago.
For the above reasons, the panel finds that the worker has recovered from the effects of her compensable injuries and the present difficulties she is experiencing are not caused by her workplace duties. She is therefore not entitled to wage loss benefits beyond February 13, 2009. The appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 19th day of April, 2011