Decision #95/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond February 5, 2002 in regard to a work-related accident that occurred on February 15, 2001. A hearing was held on August 1, 2012 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 5, 2002.Decision
That the worker is not entitled to wage loss benefits beyond February 5, 2002.Decision: Unanimous
Background
The worker filed a claim with the WCB for a strain injury to his right arm, neck and back that occurred on February 15, 2001 during the course of his employment as a production worker.
When speaking with a WCB adjudicator on March 7, 2001, the worker noted that on the day of accident, a bus was being lowered by a crane onto a box pedestal that weighed about 40 pounds. As the bus was being lowered, he was holding the bus steady. When he noticed that one of the pedestals was out of place, he bent down and tried to pull the pedestal into place and that was when he felt a jerk in his right arm.
On February 15, 2001, the worker attended a chiropractor for treatment. The description of injury described to the chiropractor was as follows: "Went to pull box with right arm (was reaching) - box was heavier than expected - felt sharp pain in right neck, right shoulder and down right arm." The diagnosis rendered was a sprain/strain of the lower cervical spine with right neuropathy. The WCB accepted the claim for compensation and benefits were paid to the worker commencing February 27, 2001.
The worker sought treatment from a second chiropractor on February 19, 2001. The diagnosis reached was as follows: "Subluxations noted in the lower cervical and upper thoracic spine with alot of muscular hypertonicity and swelling in the trapezius region, scalenes and rhomboid muscle groups. Neurological involvement was noted at C7-C8 nerve root levels. He is experiencing a numbness and tingling sensation on the right side of his face as well as into his right arm with severe neuralgia extending down the arm. There is a sprain/strain component to the injury as well."
On March 12, 2001 the worker attended a general practitioner for complaints of pain on the right side of his neck and shoulder and numbness of the hand. The diagnosis was a muscular strain to the neck and shoulder.
The worker was seen by a neurologist on April 17, 2001 and was diagnosed with right ulnar neuropathy and right CTS [carpal tunnel syndrome] based on test results. On May 10, 2001, a second neurologist confirmed the diagnoses of right ulnar and right median neuropathy and right CTS.
On May 10, 2001, the worker was seen by a WCB chiropractic advisor who opined that the worker had a rotator cuff injury of the right shoulder and a disc herniation about the C7-T1 levels.
In a report dated August 13, 2001, an orthopaedic surgeon noted that the worker may require surgery in the future if his symptoms persisted from right ulnar neuropathy and right median nerve entrapment. The surgeon outlined the opinion that these conditions were related to the worker's job duties which required repetitive movements of his wrist and elbow.
On September 14, 2001, the worker was seen by a WCB medical advisor for a medical assessment. The examination demonstrated significant right neck/shoulder pain and upper extremity symptoms. It was suggested that the worker should undergo an MRI of the cervical spine and full nerve conduction studies of both upper extremities before decompression of the right median nerve at the wrist and transposition of the right ulnar nerve at the elbow was performed. On December 19, 2001, the worker underwent an MRI of the cervical spine.
On January 11, 2002, a WCB medical advisor stated: "The MRI scan of the C-spine demonstrates multi-level degenerative changes. No disc herniation or nerve root compression. His work-related injury involved his R [right] neck and is probably muscular in nature. The median nerve and ulnar nerve compression are unrelated to his C.I. [compensable injury]…He may benefit from soft tissue, muscular treatments…He should be capable of a RTW [return to work] in some fashion."
In a further note to file dated January 30, 2002, the above WCB medical advisor outlined restrictions for the worker for a four to six week period while he underwent assessment and possible treatment by a pain management specialist. The medical advisor also stated: "…median and ulnar nerve problems unrelated to C.I.".
On February 4, 2002, an advocate for the employer advised the WCB that the worker was terminated from employment as he did not respond to a "recall" notice that was sent to him on January 17, 2002. The advocate was of the view that because the worker was considered capable of a return to work in some fashion while undergoing concurrent treatment, the worker's loss of earning capacity was no longer related to his compensable injury.
On February 21, 2002, the WCB wrote the worker to advise that his benefits would be suspended based on subsection 39(2) of The Workers Compensation Act (the "Act") if it was determined that he had voluntarily removed himself from employment. The worker was asked to contact the WCB to confirm his current medical status.
A pain management specialist reported on March 12, 2002, that the worker "had a good range of motion of the neck. There was a mild restriction in internal rotation in the right shoulder. This is associated with some pain. Impingement testing was negative. There was a mildly positive Tinel's sign at the right cubital tunnel. There was no wasting of the intrinsic muscles of the hands. Reflexes were symmetrical in the upper extremities. There appeared to be full power in the shoulder and the right arm. On palpation, he had a trigger point in the right infraspinatus which reproduced his pain complaints…My feeling is that some of his neurological type symptoms might be coming from the infraspinatus; this is a common pattern to see numbness in an ulnar nerve type distribution with myofascial activity in the infraspinatus."
Following a meeting with his WCB case manager on February 27, 2002, the worker was advised on March 15, 2002 that no responsibility was being accepted for his cubital tunnel syndrome or CTS conditions as being related to the February 2001 compensable injury and that the WCB would continue to provide medical expenses related to his neck symptoms only. The case manager noted that wage loss benefits would not be reinstated beyond February 5, 2002 as it was considered that the worker had taken himself out of the course of his employment.
In a follow-up report dated April 29, 2002, the pain management specialist noted that the worker had a trigger point injection of the right infraspinatus on March 12, 2002 and his pain was significantly better but was then aggravated after a recent EMG.
On October 16, 2002, the orthopaedic surgeon wrote to the worker's family physician to advise that he was planning to perform decompression of the worker's right carpal tunnel and right cubital tunnel. On November 18, 2002, a WCB medical advisor wrote the surgeon to advise that no responsibility would be accepted for these procedures as the conditions were not related to the worker's workplace activities or to his compensable injury.
On December 6, 2005, the worker appealed the case manager's decision dated March 15, 2002 to Review Office. Review Office in turn referred the file back to primary adjudication to obtain missing medical information, mainly an operative report of February 18, 2003 regarding a cubital tunnel release and diagnostic test results.
In a further decision by primary adjudication dated April 3, 2006, the worker was advised that there would be no change to the decision to end his benefits as of February 5, 2002. It was felt that the worker's neck and right upper extremity injuries related to the compensable accident would have resolved by now and that there was no new medical information presented to support that his surgery of February 18, 2003 to release the right ulnar nerve was related to the compensable injury. On February 15, 2012, the worker appealed this decision to Review Office.
On April 10, 2012, Review Office determined that the worker was not entitled to wage loss benefits beyond February 5, 2002. Review Office stated that it agreed with the WCB medical advisor opinions on file that the description of the worker's compensable injury would not be responsible for entrapment of his right median nerve leading to his CTS condition and the entrapment of the right ulnar nerve leading to his cubital tunnel syndrome, which led to surgical correction on February 18, 2003. It stated that wage loss benefits were deemed not payable beyond February 5, 2002 as it was felt that the worker had not cooperated with his employer following their issuing of correspondence to him. On May 2, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In deciding the appeal, the Appeal Commission panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
The worker is seeking payment of wage loss benefits. 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 resulting from the accident ends.
Worker's Position
The worker attended the hearing. He outlined his reasons for appealing and answered questions from the panel.
The worker told the panel that he injured his ulnar nerve in his February 15, 2001 accident. He demonstrated how the accident occurred and provided the following description of the accident:
"I was painting the welds that, that needed painting and we moved, we moved bus, buses over from station to station and we were moving the bus over to, to the station where we were working. I was holding onto the bus with my left hand and just guiding it onto, guiding it so that it wouldn’t swing, so it wouldn’t swing.
I was holding onto it and we were getting to, getting to the place where it was to be set down and I looked, I looked to my left and seen that the stool was in proper place. It was gonna be left, but I looked to my right and the stool wasn’t in proper place that were the buses, so with my right hand, going with my thumb down, I pulled, I grabbed the stool and I pulled it to put it in the right place...
Like that, but I grabbed it underneath like that to, to place the stool in the proper place and as I yanked it I heard a pop and it went, it went, it shot from my wrist up to my neck. The pain was, the pain it, it, it shot up from my, from right from my wrist right up to my neck."
The worker said he saw a physician who advised him that he needed ulnar nerve surgery.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond February 5, 2002.
The worker told the panel that he sustained an injury to his right ulnar nerve in the February 15, 2001 workplace accident. He said that on February 5, 2002, he was not fit to return to any type of work because he required ulnar nerve surgery. He said he could not work and could not even hold a pencil with his right hand. Once the surgery was performed he began to improve and he ultimately recovered from the surgery.
For the worker's appeal to be successful, the panel must find that the worker's loss of earning capacity after February 5, 2002 was caused by his workplace injury. The panel was not able to make this finding. The worker said that he could not return to work because of this ulnar nerve injury; however, the panel is not able to find a relationship between the worker's ulnar nerve condition and his workplace accident.
The panel noted a difference in the mechanism of injury described in the file and the mechanism described at the hearing. The description contained in a memo from a WCB medical advisor refers to a sudden snapping sensation in the right neck and shoulder area with a sudden pain over the top of the right shoulder and base of the right neck, and radiated to the right axilla, medial right arm, medial forearm and wrist to the right third, fourth, and fifth fingers.
The description offered by the worker at the hearing was that he felt his elbow pop and pain shot from his wrist up to his neck. The description of the mechanism of injury provided at the hearing suggests an ulnar nerve involvement while the description of the mechanism of injury provided at the time of the injury does not support an ulnar nerve involvement.
The panel notes that memories can fade over time and therefore relies on the evidence provided nearer to the accident date. Accordingly the panel relies upon the description of the accident on the file and not that provided at the hearing. In the panel's view, the immediate problems noted in the neck and shoulder area described at the outset of the claim, are not consistent with the acute development of an ulnar neuropathy at the elbow. The panel finds that the ulnar nerve injury is not related to the accident.
Although the worker did not, at the hearing, attribute his inability to work in February 2002 to a median nerve problem, the panel finds that this condition is not related to the accident.
The panel agrees with the January 11, 2002 opinion of the WCB medical advisor that "The MRI scan of the cervical spine demonstrates multi-level degenerative changes. No disc herniation or nerve root compression. His work related injury involved his right neck and is probably muscular in nature. The median nerve and ulnar nerve compression are unrelated to his compensable injury." The panel also notes that another WCB medical advisor commented on August 30, 2001 that the right CTS and ulnar neuropathy are not related to the accident.
Regarding the worker's recovery from the workplace injury and his potential employability in early 2002 or his entitlement to wage loss benefits, the panel places significant weight on the March 12, 2002 report of the treating physician. The physician found, on examination, that the worker had good range of motion in the neck with mild restriction in internal rotation in the right shoulder. He found impingement testing was negative, and there appeared to be full power in the shoulder and the right arm.
The panel notes that the worker was offered appropriate employment in February 2002 but did not respond to the offer and was considered by the employer to have failed to cooperate in returning to work.
While the evidence shows the worker had not recovered from the compensable injury as of February 5, 2002, the panel is satisfied based on the evidence that the worker was offered employment that respected restrictions related to the compensable injury. The worker would not have sustained a loss of wages had he responded to the employer's call-back notice. The panel finds that he did not sustain a compensable loss of earning capacity after February 5, 2002.
In conclusion the panel finds that the worker is not entitled to wage loss benefits beyond February 5, 2002.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 7th day of September, 2012