The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that she had recovered from the effects of her thumb strain by April 6, 2010 and that her ongoing difficulties were not related her compensable accident. A hearing was held on October 11, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond April 6, 2010.

Decision

That the worker is not entitled to benefits beyond April 6, 2010.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right thumb/wrist injury that occurred in the workplace on December 6, 2009. The worker described the accident to the WCB as follows:

"I lifted a bread box (about 30 pounds) I felt a pop and pain in my right hand. I stopped working because of the pain, it was very strong. Shortly after my thumb, wrist started to swell and started bruise. I put ice on my thumb and wrist."

Medical information showed that the worker attended a hospital facility on December 6, 2009 and was diagnosed with a right thumb strain.

On December 8, 2009, the worker was seen by a physiotherapist who noted that the worker was moving a fridge and stove to clean at work and felt a burning in her right wrist and thumb. The physiotherapist's diagnosis was right DeQuervain's tendonitis.

On December 17, 2009, the physiotherapist advised the WCB that the worker was fit for modified duties at her job as a support worker beginning December 18, 2009. Work restrictions were outlined.

On December 18, 2009, the worker spoke with a WCB adjudicator and indicated that she lifted a bread box on December 6, 2009. She had just tried moving the stove and fridge to clean behind it but she decided against it. She was then doing dishes and her hands were wet. She was supposed to wash the inside and outside of the bread box but as she lifted it she felt a snap in her right thumb. The worker described her symptoms. She said it started with a sharp snap in her right thumb. Her hand was swollen from the thumb to the wrist. The tendon kind of stuck out from the wrist to the thumb. She had a lump on her wrist by the thumb. She noticed it while at physiotherapy on December 8, 2009. She had not noticed it previously because of the swelling in the wrist.

On December 29, 2009, the worker advised the WCB adjudicator that the return to work was going well and she was doing her regular duties at her own pace. The worker stated that her wrist was not bad and the knuckle of her thumb was painful. The thumb was cracking.

On January 7, 2010, the employer advised the WCB that the worker was terminated from employment and her last day at work was December 31, 2009. The termination was not related to the work injury.

The worker spoke with her adjudicator on January 7, 2010. The worker indicated that it was her wrist that was causing her problems, not the thumb. She said that she told the physiotherapist that the difficulties were in her wrist and that the physiotherapist was not attentive to her wrist problems.

A doctor's progress report for an examination on January 13, 2010 indicated that the worker had a brace for her right thumb which helped her with her right wrist. The worker fell on December 8, 2009. The worker had a synovial cyst visible on the dorsum of the wrist, small a bit tender, and thumb pain and pain on the medial side of the wrist with lateral movements. The worker said she was pushing a stove on December 6 when the pain started in her thumb and wrist. The diagnosis was a sprain of the right wrist and thumb.

A doctor's progress report of January 19, 2010 reported "WCB review - arthritis of R wrist, no evidence of De Quervains." The diagnosis was now "right wrist sprain."

An ultrasound of the worker's right scaphoid was taken on January 20, 2010. There was no fracture or dislocation demonstrated. An ultrasound of the right hand and wrist taken January 14, 2010 showed mild degenerative joint space narrowing, subchondral sclerosis and osteophyte formation.

On January 26, 2010, the worker advised the WCB that she was allowed to return to her pre accident duties starting January 28, 2010.

On February 2, 2010, a WCB medical advisor reviewed the file. He noted that the most likely diagnosis related to the compensable injury was a right wrist sprain. The resolution of symptoms would be expected in four to six weeks particularly with modification of duties and physiotherapy. He noted that an x-ray of the wrist demonstrated osteoarthritis at the base of the thumb and that would likely prolong recovery. Restrictions were outlined.

The worker spoke with a different WCB adjudicator on February 3, 2010. The worker said she reinjured her wrist on the morning of January 30, 2010 (shift of January 29, 2010) when she caught a resident that was falling. She felt a shock sensation in her right thumb and wrist. Lumps formed around her wrist region.

The treating physician reported that the worker hurt her wrist again on January 29, 2010 when she tried to prevent a woman from falling. He authorized the worker to remain off work from February 3-10, 2010 due to a diagnosis of stress-anxiety situational from her work environment.

On February 9, 2010, the treating physiotherapist indicated that the worker was able to do her general bathroom/kitchen/bedroom duties and also required help with difficult/heavy clients.

On February 12, 2010, another physician reported that a resident struck the worker's right hand at work on February 11, 2010.

The worker advised a WCB adjudicator on March 4, 2010 that her hand was still swollen with fluid and she felt lumps at the base of her right thumb joint.

A letter from the treating physician dated March 10, 2010 diagnosed the worker with anxiety, partially situational. He noted that the worker can return to work physically but not mentally, and she would benefit from not returning to the same workplace.

The worker's claim was reviewed by a WCB medical advisor on March 23, 2010. His review of the physiotherapy discharge report was that the worker had recovered from her wrist sprain. He noted full range of active and passive motion was described and negative TFCC testing signs and reasonable strength suggested there was no need for restrictions.

On March 30, 2010, the worker was advised of the WCB's position that she had recovered from the wrist injury that she suffered at work on December 6, 2009 and that no further responsibility would be accepted for her ongoing symptoms.

On June 7, 2010, the worker advised the WCB that she saw a different physician and that she had a fractured scaphoid.

On June 17, 2010, an occupational health physician reported that he saw the worker for an assessment on April 20, 2010. He noted that a right hand and scaphoid bone x-ray dated April 20, 2010 showed a faint lucency in the scaphoid with the possibility of an undisplaced scaphoid fracture. A bone scan dated May 31, 2010 revealed focal uptake of the right scaphoid consistent with a fracture. A second focus was noted at the first MCP joint involving the adjacent carpal bone which was of uncertain etiology. It was concluded that the worker's wrist pain was due to her scaphoid fracture and a referral was made to an orthopaedic clinic.

On June 25, 2010, the treating orthopaedic specialist reported "…[the worker] had a fall onto her outstretched hand. She notes that about six months ago, she was moving a refrigerator and stove about. She began having some pain. At one point soon after this, she lifted a cutting board and felt a snap on the radial side of her carpus followed by significant swelling and pain. Some months prior to this, she did have a fall, which resulted in back issues. She cannot recall if she braced the fall with her hand or exactly how she fell. [The worker] has never been casted for her fracture." The specialist reported that the worker was fitted with a thumb spica brace and he was arranging another CAT scan.

A WCB medical advisor outlined the following opinion on July 12, 2010:

"The mechanism of injury as described on file, lifting up a box/cutting board, would not usually result in a scaphoid fracture. The more common mechanism would be a fall on the outstretched hand or a high load twisting of the wrist. Expected recovery time for scaphoid fracture would be 6-10 weeks although nonunion is known to occur. The common symptom is pain with the radial aspect of the wrist."

In a decision dated July 13, 2010, the WCB case manager indicated that he was unable to establish a relationship between the worker's original December 6, 2009 workplace injury and her ongoing symptoms. He was of the view that the mechanism of injury would not likely cause a scaphoid fracture. He indicated that the other incidents of pushing the fridge/stove, washing dishes or restraining a resident would not likely cause a scaphoid fracture. The case manager indicated that the incidents may have aggravated the original injury but medical information supported that the worker would have been capable of resuming her duties by March 25, 2010.

On September 16, 2010, the WCB case manager advised the worker that although it was confirmed that she had a scaphoid fracture, it was felt that her job duties did not cause the fracture. The case manager confirmed his decision in a further letter to the worker dated October 12, 2010 after reviewing information from the worker's treating physician and the hospital facility she initially attended for treatment.

A WCB medical advisor reviewed the file on December 22, 2010 and stated:

"On reviewing the file, the mechanism of injury is described as pain after moving a heavy stove and then further pain with lifting of a bread box. Given this mechanism and the documented imaging evidence of a scaphoid fracture, on balance, the scaphoid fracture is likely related to the two incidents described at work in December 2009. The attending orthopaedic surgeon describes complete healing of the fracture with resolution of the symptoms in October 2010."

In a further decision dated January 13, 2011, the WCB case manager advised the worker that the reported mechanism of injury (lifting a breadboard) was consistent with a soft tissue injury and not of a scaphoid fracture. This mechanism of injury was stated on the worker's incident report, the employer's injury report and the December 6, 2010 hospital report. The worker was advised that the new information brought forward in regards to other activities that may have caused the scaphoid fracture would constitute a new injury to the same body part.

A submission dated March 23, 2011 by the Worker Advisor Office was submitted to Review Office. The Worker Advisor Office contended that the worker's scaphoid fracture was caused by the activities she undertook at work on December 6, 2009. It was felt the scaphoid fracture validated the worker's claim that she was not able to return to her pre-accident employment duties and therefore she was entitled to benefits beyond March 24, 2010.

Prior to considering the worker's appeal, Review Office sought medical advice from a senior WCB medical advisor and his report to Review Office is dated April 27, 2011. The report was forwarded to the worker advisor for comment. His response to Review Office is dated May 13, 2011.

On May 27, 2011, Review Office determined that the worker was entitled to benefits until April 6, 2010. Review Office outlined the opinion that the worker was involved in two events on December 6, 2009 resulting in her right wrist and thumb difficulties. One event related to pushing a stove and the other was lifting a bread box. These events confirmed an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act").

Review Office considered the initial medical information on file and determined that the compensable injury was a right thumb sprain. It did not find, on a balance of probabilities, that the worker had a scaphoid fracture between December 6, 2009 and January 29, 2010.

Review Office indicated that the worker further aggravated her compensable injury when she re-injured her wrist on January 30, 2010 as a result of catching a resident that was falling. The case manager accepted the worker's ongoing difficulties from this event. When assessed by a physiotherapist on February 9, 2010, the worker's condition was overall improved and a return to work to full hours at many of her regular duties was suggested with the support of her physician.

The worker shoveled snow around her car and was involved in another event when her right hand was hit by a resident. The case manager had accepted the aggravation and full wage loss benefits were paid.

From the period January 30 to March 23, 2010, Review Office concluded that the worker had recovered from the effects of her right thumb sprain and no further restrictions were applicable. Based on WCB Policy 44.30.60, Notice of Change in Benefits or Services, Review Office considered that the worker was entitled to full wage loss benefits until April 6, 2010 as a result of the compensable strain injury.

Review Office indicated that medical findings beyond April 6, 2010 were not causally related to the compensable injury or any work-related aggravations. Review Office indicated that it preferred to accept the file evidence in the closest proximity to the workplace accident/aggravation.

On June 28, 2011, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged. On October 3, 2011, the Worker Advisor Office provided the Appeal Commission with chart notes and a consultation report for consideration.

Reasons

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

The worker is seeking benefits beyond April 6, 2010. 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.

Worker's Position

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker answered questions from her representative and the panel.
The worker advisor stated the worker is entitled to further wage loss and medical aid benefits because the evidence supports she continued to suffer the effects of her compensable injury after April 6, 2010. The worker advisor noted that the WCB accepted that the worker sustained a strain of her right thumb. He submitted that the evidence on file confirms that the worker injured both her right thumb and wrist. He noted there is file evidence in support of this position, including:

The worker advisor submitted that the evidence supports that the worker's difficulties after April 6, 2011 continued to be causally related to her compensable injury. He noted the worker reported a number of incidents that aggravated the injury while attempting to return to work.

The worker described her duties and the work environment. She said that she worked with cognitive and physically challenged persons in their homes. She worked 12-hour shifts and worked alone most of the time. Her duties included preparing meals, giving medications, and general housecleaning.

On December 6, 2009 she was working a 12-hour shift. She said she liked to perform the heavier tasks first but would prioritize her activities. She attempted to pull a fridge out from the wall but could not budge it. She was asked to clean the stove. She said:

"The day prior I had actually cleaned behind that appliance, so that part was done. This day there was, as far as the stove was involved, to clean all sides of the stove, to clean the top of the stove, to clean inside of the stove -- lots to do with the stove. So I attempted to pull the stove forward and I was sort of wiggling it because it was in there really tight, and then at some point I decided that it’s too difficult to pull it all the way out."

The worker said she moved the stove wiggling it a bit and pushing it back. While doing this she felt something funny in her hand so rested her hand on top of the counter and then placed her hands in a sink of water to loosen up. She attempted to wash dishes but was "fumbling" and splashing water. She then attempted to wash the bread box. She said:

"I reached over to pick up the bread box and as soon as I picked it up, I felt severe sharp pain all the way down along here and I dropped it. I didn’t realize it was going to be that heavy. My intent was to wash it out."

She described the pain as being near the bottom joint on her thumb along a tendon. She said it locked and that she noticed swelling in the area she knows as the "snuff box". The worker said that she called for a replacement worker and when someone finally came, she went to a local hospital but as a doctor was not available she went to the hospital near her home. The worker described her attendance at the hospital and her subsequent treatments, including physiotherapy treatments. Although her symptoms did not change, she said that her doctor felt she could return to work.

Regarding her return to work, the worker advised that she struggled with some duties. She said she had constant difficulties. She said her duties were only slightly altered. She noted that some tasks were removed from the list of duties. She said that she had constant difficulty with her hand. She said:

"I struggled with lifting anything. I struggled with trying to get the medication out of the medication jars, you know and pop them out and get them ready for the clients. I struggled with pretty much all of the tasks."

On one of her returns to work, she was assigned to work in a home where the clients had more severe problems. One of the clients was bed ridden and dependent on staff and others for help with bathing, dressing and other personal activities. She questioned why she was assigned these duties.

The worker said that she ultimately saw an occupational health physician who referred her to an orthopaedic surgeon. The surgeon told her that she had a non-displaced scaphoid fracture.

The worker indicated that she did have a fall at home before she commenced employment with her accident employer. She said that she did not injure her hand in this fall.

The worker said that her symptoms have been consistent since the beginning of the injury and only improved after seeing the orthopaedic surgeon. She said that she still has trouble with her wrist but acknowledged that the surgeon advised she could return to work.

Employer's Position

The employer did not participate in the hearing.

Analysis

For the worker's appeal to be successful, the panel must find that the worker's ongoing difficulties are caused by the workplace injury of December 6, 2009 and that as a result of this injury the worker sustained a loss of earning capacity. The panel was not able to make this finding. In reaching this decision the panel relies upon the following:

• December 6, 2009 report by physician which diagnosed right thumb strain injury. There is no reference to tenderness in the scaphoid area.
• December 8, 2009 Physiotherapy Initial Assessment provides a diagnosis of right DeQuervain's Tendonitis. There is no reference to tenderness in the scaphoid area.
• January 1, 2010 Physiotherapy Initial Assessment from a second physiotherapist indicates a diagnosis of tear right TFCC/articular disc of wrist. There is no reference to scaphoid injury.
• January 20, 2010 report from family physician notes that clinically no fracture. The physician diagnosed the condition as a right wrist sprain and ordered a scaphoid view x-ray.
• January 20, 2010 x-ray of right scaphoid demonstrated no fracture or dislocation.
• February 9, 2010 report from family physician indicated that the worker could return to work. There is no reference to a scaphoid fracture.
• February 18, 2010 report from second physiotherapist indicates resolved TFCC irritation /tear and that the worker is capable of returning to work.
• March 10, 2010 report from family physician indicates that worker states she is under considerable stress at work due in part to the fact that employer did not always accommodate restrictions for her wrist injury. The physician diagnosed anxiety, partially situational and indicates "Physically, she can return to work."
• April 27, 2011 opinion of WCB medical consultant who reviewed the various medical reports and concluded that the probable diagnosis of the worker's injury is a right thumb sprain, which implies some ligamentous injury at the metacarpophalangeal joint, as well as some tendon straining to the abductor and extensor tendons of the right thumb. The medical consultant opines that this diagnosis is consistent with the reported mechanism of injury of manipulation of an object. The medical consultant opines further that a scaphoid fracture has not been confirmed.

In reaching this decision, the panel relies upon the evidence which is more contemporaneous to the event. The panel notes there was no early reference to symptoms or tenderness in the scaphoid area and finds, on a balance of probabilities, that the worker did not sustain a scaphoid fracture in the December 6, 2009 accident or in the other work-related incidents noted in the file.

The panel does not place weight on the evidence of the occupational health physician and orthopaedic surgeon, as the early evidence indicates there was no scaphoid fracture.

The worker is not entitled to benefits beyond April 6, 2010.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 10th day of November, 2011