The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)

The issue to be determined by the panel deals with causation and whether there is a causal relationship between worker’s right wrist conditions and his employment.

Worker’s position

The worker was represented by a worker advisor at the hearing. The position advanced on behalf of the worker was that the right TFCC tear revealed in the September 27, 2010 MRI was a result of the February 12, 2010 workplace injury. The worker relied on a report dated May 15, 2012 from his surgeon which stated:

A triangular fibrocartilage tear was not noted in the initial operation as we did not have availability for a true wrist arthroscope. We required the use of a knee arthroscope and as such could only view the radial aspect of the wrist secondary to the inability to visualize the ulnar side of the wrist appropriately with a smaller scope. We did discuss this with him following the operation and he was taken back for a second procedure at a later date.

Certainly, the complicated tear that was noted in March, it was present for a long period of time as it was degenerative in nature. It was not an acute tear. I cannot specify for sure whether or not this was secondary to his accident but from discussing with him, he stated that he did not have significant wrist pain prior to the accident and therefore, it would be my conclusion that he likely did sustain a complicated tear of the TFCC during that injury.
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MRI usage in TFCC tears is good to diagnose the tear itself, but often cannot appreciate the size or complexity of the tear. Arthroscopy is the gold standard and certainly anything visualized through the arthroscope is much more appropriate than that on MRI.

The worker's evidence at the hearing was that following his first surgery on December 10, 2010, he still had shooting, burning pain up his forearm. He could hardly move his hand and was not able to perform activities of daily living which required use of his right arm. Following the TFCC repair surgery of March 9, 2011, the worker's right arm improved and was "almost at a hundred percent like I was when I was at work." At the time of the hearing, the worker was still attending physiotherapy but he was getting close to being able to do everything he did before he got injured.

Employer’s position

The employer was represented by a claims specialist who participated in the hearing via teleconference. The employer indicated that although at the prior Appeal Commission hearing, it did not believe the evidence supported that an incident occurred at work, they were not pursuing that aspect of the case at this hearing. It was submitted that what was of concern in this case was whether there was entitlement for the TFCC tear and the resulting surgery and loss of earnings associated with that surgery. It was the position of the employer that while critical information in the form of the surgeon's March 9, 2011 operative report was not available to the Appeal Commission at the time of the previous decision, the report did not offer sufficient information that would suggest that Decision 32/11 was incorrect and should be altered. The existence of the TFCC tear was known since the MRI of September 27, 2010 yet the surgeon made no reference to the tear and its possible relationship to the worker's employment. If it had any significance, it was submitted that the surgeon would have discussed it.

The employer also noted that while trauma could be a cause of injury to the TFCC, there were degenerative causes as well. In response to questions posed by the employer's representative, the worker acknowledged that he had broken his wrist twice before, when he was nine years old and again in 2000, and that he fell to the ground on his hand in a workplace incident in 2007. The worker also acknowledged that he had been complaining of wrist problems for about a year prior to the February 2010 accident, but claimed that this was in relation to a ganglion cyst he had on the inside of his hand. It was submitted by the employer that notwithstanding the most recent injury, the worker presented with other wrist factors that would explain possible causes of a TFCC tear, including an anatomical ulnar variance and two prior significant injuries involving fractures to his right hand and wrist. In addition, two witnesses suggested that the worker had issues in his right wrist for some time previous to his February 2010 incident.

Overall, the employer's position was that while there was an incident of February 12, 2010 that involved the right wrist, there was no evidence that the worker suffered more than a strain or a sprain as a result of that incident.

Analysis

This is a reconsideration of a previous Appeal Commission decision which determined that while the worker did have an acceptable claim, the extent of the injury was limited to a sprain/strain of the right wrist. When an appeal is reconsidered by the Appeal Commission, the second panel is charged with the jurisdiction to review the matter in its entirety and make its own decision independent of the previous adjudication. Although it is available to this panel to reconsider whether or not the claim is acceptable, given the employer's position that it does not now challenge that an accident occurred on February 12, 2010, we will allow that the worker has an acceptable claim for a compensable injury, and our deliberations will focus on the extent of the injury suffered by the worker as a result of the workplace accident.

In order for the worker’s appeal to succeed, we must find on a balance of probabilities that there is a causal relationship between the worker’s TFCC tear and his workplace accident. We are able to make that finding.

In coming to this decision, the panel placed significant reliance on the May 15, 2012 report of the treating surgeon. This was new evidence wich was not available at the previous Appeal Commission hearing. While the surgeon acknowledged that he could not specify with certainty that the TFCC tear was secondary to the workplace accident, he did state that since there was no significant wrist pain prior to the accident, the worker "likely did sustain a complicated tear of the TFCC during that injury." The panel was similarly persuaded by the fact that the worker was able to regularly and consistently perform the heavy lifting duties of a warehouseman before the accident, and then became unable to perform even basic activities of daily living after the accident. We were also persuaded by the fact that since the surgical repair of the TFCC tear in March 2011, the worker has experienced an almost complete recovery in his right wrist.