The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, 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. Under Subsection 27(1) of the Act a worker is also entitled to medical aid benefits as determined by the WCB.

Worker's Position

The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by the worker advisor and the panel.

The worker advisor submitted the evidence supports that the worker sustained a right wrist injury as a result of a work-related incident on March 31, 2009. In this accident, the worker received a hit to the right wrist area and the dorsal part of her hand. She noted that the injury has been diagnosed as deQuervain’s tenosynovitis which can be caused by a hit or blow to the wrist which causes trauma. She also said that the worker has had ongoing difficulties to the area of the injury. Therefore, on a balance of probability, a relationship exists between the accident, the diagnosis and the ongoing difficulties to the right wrist. She submitted that the WCB is responsible for any time loss and medical aid associated with the diagnosis of deQuervain’s tenosynovitis.

The worker advisor noted that benefits are payable under subsection 4(1) of the Act where there is a personal injury by accident that arises out of and in the course of employment. She said there is no doubt that the worker was injured on March 31, 2009. She said that the initial injury was severe enough to cause ongoing difficulties.

In answer to a question from her representative, the worker advised that she had no difficulties with her hand or wrist prior to the accident. The worker described the accident. She stated that a couple of hours after the accident her wrist was swollen so she iced it. She said the swelling was on the inside of the right wrist, and the pain ran from the elbow area down to the end of the hand.

The worker said that she did not take time off work because she was working 7 days on and 7 days off and thought she had time to recover. She also said that she regularly took pain medication. She said by July she noticed that she could not do certain activities such as use a key in a lock or use scissors.

She did not seek medical attention immediately. She explained that she received a letter from her family doctor advising that her file had been transferred to a new doctor in the clinic. She did not see the new doctor until her pain increased. She advised that she did not attempt to reach her physician until June 2009 and did not see her until September 2009.

In answer to a question from the panel the worker advised that she never had a proper orientation because of a succession of managers and was not aware of the role of WCB.

The worker advisor noted that a WCB medical advisor, provided an opinion on November 22, 2010 that based on his review of the files the diagnosis is right-wrist sprain or deQuervain’s tenosynovitis. He states that deQuervain’s may be caused by acute trauma.

She noted that Review Office obtained an opinion from the WCB orthopaedic consultant who opined that it was possible that the worker’s condition could have been caused by the reported incident of March 31, 2009, but due to the absence of time loss or medical aid, this was not probable. The worker advisor noted that a co-worker confirmed that the worker had ongoing problems with her wrist.

The worker advisor advised that the worker saw a sports medicine physician whose report, dated December 10, 2009, confirms the worker reported her right wrist pain was due to being struck by a patient in the wrist and dorsal aspect of the hand in March 2009. The report also notes she reported that the pain and swelling in the region has persisted.

The sports medicine physician's April 16, 2011 report includes the medical opinion that on a balance of probabilities, the worker's right wrist injury is related to her compensable accident of March 2009. The physician agreed that the reported mechanism of trauma could result in this condition. He confirmed that the condition or diagnosis is deQuervain’s tenosynovitis. He also confirmed that this diagnosis is susceptible to chronicity and it is not unusual for it not to resolve. He also states that the nature of her condition is one which has the potential to develop a prolonged course of recovery.

Employer's Position

The employer was represented by an advocate who made a presentation on behalf of the employer.

She said the employer accepts there was an incident on March 31, 2009 which was promptly reported. However, the employer agrees with the WCB submission that there simply is no evidence of a cause and effect relationship between this incident and the diagnosis of deQuervain’s tenosynovitis. She also said that the employer does not accept that it was a severe incident as the worker did not seek medical care. She noted the worker's assertion that she called in sick when the wrist was painful, but said there is no evidence that this was due to the injury. She noted that the worker continued to work her regular duties without any complaint to her supervisor or to the Occupational Health Department, and actually picked up extra shifts after the injury. She also noted that prior to the accident the worker did not work overtime but after she picked up shifts. The employer's advocate submitted there is no wage loss in this claim.

The employer advocate noted the first visit to her primary physician was on September 22, 2009, and a WCB claim was not initiated until October 2010. She said this implies that the primary physician did not consider it necessary to report the condition to the WCB. The WCB orthopaedic consultant also concluded, on the balance of probabilities, it seems more likely that the condition of the deQuervain’s disease of the wrist in this case is a chronic condition related to repeated wrist stressors, rather than to any specific incident in March 2009.

The employer advocate noted that although deQuervain’s tenosynovitis can be caused by direct injury to the wrist or tendon, this is far less chronic, occurring in cases where scar tissue restricts the movement of the tendon. But no scarring was seen on diagnostic testing. She noted that in November 2009, the worker had an MRI of the right wrist which showed no evidence of any abnormality of the dorsal tendons. She said that the MRI would have picked up the scar tissue.

The advocate also noted that in many cases, deQuervain’s is simply idiopathic; it just arises. There’s no known cause for it. She said it occurs eight to ten times more frequently in women than men, and the major risk factor identified as being a woman between the ages of 30 to 50. It can also be associated with arthritis.

The advocate asked that the panel put greater weight upon the expert opinion of the WCB’s orthopaedic specialist who reviewed the claim twice, and his opinion that the incident on March 31, 2009 was not likely the cause of her current condition.

Analysis

The issue before the panel was whether the worker is entitled to wage loss and medical aid benefits in relation to her March 31, 2009 compensable injury. For the worker's appeal to be successful, the panel must find that the worker's compensable injury caused or aggravated the worker's right wrist condition. We were able to make this finding.

We have considered all the evidence including the medical reports and the evidence provided at the hearing. We were assisted in our deliberations by the submissions from the worker and employer representatives.

We have found, on a balance of probabilities, that the worker's compensable injury aggravated her right wrist condition and that the aggravation resolved as of December 10, 2009.

The panel accepts that the diagnosis for the worker's right wrist condition is deQuervain's disease. Three theories were advanced at the hearing regarding the cause of the worker's right wrist deQuervain's disease. The worker advanced the theory that the accident, involving a blow to the right wrist, caused this condition. The employer advanced the theory that the worker's condition is a chronic condition related to repeated wrist stresses, as proposed by the WCB orthopaedic consultant or was idiopathic, rather than caused by the specific incident in March of 2009. The panel attaches greater weight to the opinion of the WCB orthopaedic consultant on the cause of the condition but finds that the pre-existing condition was aggravated by the workplace injury.