The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of working as a service writer and that the was not entitled to full wage loss benefits in relation to his compensable condition diagnosed as bilateral carpal tunnel syndrome. A hearing was held on June 6, 2013 to consider the matter.

Issue

Whether or not the worker is capable of performing work in NOC 1453, Customer Service, Information and Related Clerks (Service Writer); and

Whether or not the worker is entitled to full wage loss benefits.

Decision

That the worker is capable of performing work in NOC 1453, Customer Service, Information and Related Clerks (Service Writer); and

That the worker is not entitled to full wage loss benefits.

Decision: Unanimous

Background

The worker was employed as an automotive mechanic when he filed claim with the WCB for bilateral carpal tunnel syndrome. His claim for compensation was accepted and various types of benefits and services were paid. In December 2004, the worker underwent a left carpal tunnel release followed by right carpal tunnel release in December 2005. The worker has permanent work restrictions to avoid forceful repetitive gripping or grasping and no working at extremes of flexion or extension. In 2006, the claim was referred to the WCB's vocational rehabilitation branch as the accident employer was unable to provide the worker with employment that met his compensable restrictions.

A vocational rehabilitation ("VR") plan was developed for the worker under National Occupational Classification ("NOC") 1453, Customer Service/Service Writer. The plan was to run from April 16, 2007 to May 16, 2008. At the completion of the plan, it was anticipated that the worker would be capable of earning $382.00 per week. In the event that the worker did not secure employment after the job search portion of the plan, his benefits would be reduced in accordance with WCB policy.

In October 2007, the worker met with WCB staff to advise that he was not interested in continuing with school as his hands were sore from taking notes and operating a computer. It was subsequently determined that the worker was ready to proceed with the job search portion of his VR plan as long as the employment met his compensable restrictions.

In late November 2007, the worker secured full-time employment as a Customer Service/Quality Control person. On December 4, 2007, the worker was advised that his weekly wage loss benefits would be reduced to $249.00 effective December 10, 2007.

On July 30, 2008, the worker advised the WCB that he had constant pain in both wrists since returning to work and that the pain was steadily getting worse. He found that keyboarding and test driving 10 to 12 cars a day was aggravating his condition. The worker noted that he saw his family physician on July 11, 2008 and was advised to remain off work.

In a report to the WCB dated July 15, 2008, the family physician advised that the worker was seen on March 28, 2008 complaining of soreness in both his hands and wrists. The examination showed tenderness over the MP joints with no obvious swelling. X-rays of both hands were reported as being normal and occupational therapy did not relieve the pain. The physician felt it was worthwhile for the worker to be re-evaluated by a WCB physician to determine his ability to return to work.

On August 13, 2008, a WCB medical advisor reviewed the claim at the request of the adjudicator. The medical advisor indicated that there was no clinical evidence to support the worker's time loss.

By letter dated September 15, 2008, the worker was advised that the WCB was unable to accept responsibility for his current claim of total disability as it was felt that his daily work duties consisting of data entry, road testing 10 to 15 automobiles and using a reader to diagnose vehicles (which were performed at different times throughout the day with no requirement for prolonged periods of exposure to these tasks) were within his compensable restrictions and limitations.

A nerve conduction study report dated April 15, 2009 revealed bilateral mild focal median neuropathy at the wrists (carpal tunnel syndrome) and there was no evidence of ulnar neuropathy in either upper extremity.

On June 18, 2009, the worker advised the WCB that he had not worked since July 14, 2008 when he was laid off by his employer. The worker noted that he was still attending his family physician for treatment.

On March 16, 2010, the family physician reported that the worker still had pain in both wrists and had persistent backache.

On June 15, 2010, the worker attempted a Functional Capacity Evaluation ("FCE") but was unable to complete the testing due to his report of increased bilateral wrist and back symptoms.

On July 30, 2010, the worker was seen at the WCB for a call-in assessment. The WCB medical advisor indicated that the findings and appearance on physical examination did not appear to correlate with the worker's reported extended disability. Pain focused behaviors were observed. Recommendations were that the worker should be referred for physiotherapy treatment and there be no change to his current permanent restrictions.

In a report to the WCB dated November 17, 2010, the treating physiotherapist stated: "The claimant appeared to overly limit his participation in active-based rehabilitation program, due to subjective report of symptoms. If the claimant were to get to a point where he could provide a full effort, and not limit his participation in active-based rehabilitation, consideration to a reconditioning program could be given."

On December 13, 2010, the worker was advised that the WCB was unable to reinstate full wage loss benefits based on the reports by the WCB medical advisor and the treating physiotherapist. The WCB felt that the worker still had function in his hands/wrist and that any limitation to function was self-limiting and was not based on any objective medical evidence. It was also felt that the physical requirements for NOC 1453 were within his compensable restrictions.

On June 12, 2012, the worker's legal representative provided the WCB with a medical report from a treating physiatrist dated April 25, 2012 for consideration. The report stated in part:

In recent F/U [follow-up], I ordered another NCS, which demonstrated full carpal tunnel syndrome bilaterally involving both median and sensory delay across the wrist. This means that second NCS is worse than the first one. At this point, I think the only reasonable option is referral to a plastic surgeon for median nerve release since conservative tx [treatment] failed. At this point, I do not recommend any repetitive work involving pts [patient's] hands. I am still recommending wearing his splints since they can still slow down the progression of carpal tunnel syndrome.

A WCB medical advisor specializing in physical medicine reviewed the claim on August 14, 2012. In his opinion, the medical findings did not support that the worker was totally disabled and that the worker's prior permanent restrictions were appropriate for any potential carpal tunnel irritability. The medical advisor indicated that the worker could seek employment within the listed restrictions despite the presence of a mild carpal tunnel syndrome.

On August 28, 2012, the WCB advised the worker and his legal representative that the WCB was unable to accept the worker's claim for total disability in relation to his compensable injury and accepted diagnosis. It was felt that the worker's VR plan was appropriate in that it was well within his permanent restrictions despite his reported worsening of symptoms. On September 10, 2012, legal counsel representing the worker appealed the decision to Review Office.

On October 31, 2012, Review Office determined that NOC 1453 was a suitable occupational goal and that the worker was not entitled to full wage loss benefits. In making its decision, Review Office referred to specific medical information to support that there was no clinical evidence of a deterioration of the worker's compensable carpal tunnel syndrome when he discontinued working in July 2008. Review Office concluded that the physical demands of NOC 1453 were compatible with the worker's permanent compensable restrictions. On January 9, 2013, legal counsel for the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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(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. 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.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides:

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.”

The Voc Rehab Policy also provides that: “The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.”

Worker's Position:

The worker appeared at the hearing represented by legal counsel. It was submitted that the worker was a man who had worked continuously for over forty years without having to rely on anybody else. He wanted to work but was unable to as a result of his injury. It was not the case that he did not want to work. For a period of nine months, he went to work every day to his position as a Quality Control Service Writer and pushed himself through the pain, but finally had to stop because of the physical and emotional effect on him.

An occupational therapist ("OT") was called as a witness at the hearing. The OT had conducted a functional capacity evaluation of the worker using the Matheson system which was set up specifically to test the worker's ability to perform his duties in the job position as a Quality Control Service Writer. The evaluation was conducted on April 30, 2013. The overall test findings, in combination with clinical observations, suggested the presence of high levels of physical effort on the worker's behalf. Although the worker reported moderate to high levels of pain, he did not self-limit testing due to pain. His reported increase in pain correlated with increased edema to both wrists/hands that was detected. The worker's measured functional abilities were compared to the critical physical demands for the position of Quality Control Service Writer.

The report concluded that although the worker did complete standardized testing in addition to work simulation for the job tasks, significant edema to both wrists/hands was detected at the completion of the assessment, with further edema the following morning. It was the OT's opinion that the bilateral wrist/hand edema would significantly impact on the worker's ability to be able to perform the job tasks on a consistent basis. Job demands relating to position, weight/force, and agility were an acceptable job match, however the job demands related to dexterity were problematic. The handling required in the job was frequent, but the worker's demonstrated functional tolerance was occasional. Fingering was occasional but the worker had poor ability for tasks requiring fingering and was only able to tolerate minimally for up to five minute durations. Pinching and writing requirements were occasional, and the worker's functional tolerance could fall within this frequency with accommodation. The job demands for reaching forward were within the worker's demonstrated functional tolerance.

The worker's evidence was that when he was in the vocational rehabilitation program, he did not finish the courses to obtain a high school diploma because of the difficulty he had with typing and writing assignments. It would cause increased pain to both wrists. When he initially went for on the job training for the service writer position, there was no computer work. This later changed. The worker spent some time describing the duties he performed as a Quality Control Service Writer from December 2007 to September 2008. During the first hour in the morning, he would be receiving cars, which involved getting in and out of vehicles, moving them around, and putting plastic down on the seats and floor mats. The worker would be responsible for approximately 20 to 40 vehicles. The rest of the day would involve taking approximately 10 to 12 cars out for road tests and then entering the information into a computer. The road tests could take from five minutes to an hour, and sometimes the worker would have to grip the steering wheel tightly and shake it in order to identify the customer complaint. A test drive could also involve walking around the vehicle with a pen and paper, opening up the hood, and running tests with a scanner, which would have to be hooked up underneath the dashboard. When the worker first started, he would only type in one or two lines, but the longer he worked there, the more information he was asked to input and therefore would input three or four lines. The worker was not a touch typist and demonstrated that he would input information using his two index fingers to "hunt and peck." The worker's evidence was that this method of typing would cause him pain, as did using the mouse to click. When picking up a pen and using a scanner, he would also experience pain and tingling.

While he was performing this job, the worker's wrists got worse and worse until he couldn't sleep any more at night due to the pain, numbness and tingling in his hands. Because of the worsening of his condition, he had to stop work.

It was submitted by counsel that the only objective evidence which was presented to the panel was the report of the OT. Issue was taken with the WCB medical advisors' opinions which said there was no objective evidence and which were based on scientific literature. It was submitted that the worker was an individual who ought to be assessed based on the actual information and not on what journals say should be the case. But for his carpal tunnel condition and given the worker's long work history, he would have been earning a much higher income as a mechanic. The worker's overall position was that objectively speaking, he was impaired from performing the job in NOC 1453 and he should be entitled to receive full wage loss benefits.

Analysis:

The issues before the panel are whether or not the worker is capable of performing work in NOC 1453, Customer Service, Information and Related Clerks (Service Writer) and whether or not the worker is entitled to full wage loss benefits. Both issues concern whether the worker's vocational rehabilitation plan identified an appropriate new occupation for him. In order for the worker’s appeal to be successful, the panel must find that the vocational rehabilitation assistance provided to the worker did not help the worker achieve a return to sustainable employment in an occupation which reasonably took into consideration the worker’s post-injury physical capacity. On a balance of probabilities, we are not able to make that finding.

At the hearing, the OT confirmed that her conclusion that the job demands of Quality Control Service Writer exceeded the worker's current work abilities was based primarily on the presence of edema which was measured at the time of the functional capacity evaluation. Her evidence at the hearing was that it was the swelling that developed at the end of the day (and worsened overnight) which was the main limiting factor. She indicated that if there had been symptoms of pain in the absence of any objective findings, then the job would have been considered to be a suitable position. However, because she detected objective findings in conjunction with reports of increased pain, her conclusion was that the job was not a suitable placement. She stated: "If there wasn't any swelling that was detected and there were no objective changes, you go, absolutely. He's got - - he participated all in the tasks. There's no reason why he can't do it."

The panel does not accept the OT's conclusion that the job was not suitable because we are not satisfied on a balance of probabilities that the edema identified by the OT as the limiting factor can be solely attributed to the performance of job duties as a Quality Control Service Writer. The reasons for this are as follows:

• The functional capacity evaluation was conducted over a seven hour period over the course of one day. Following an intake interview, a series of standardized tests were conducted in the morning. During the afternoon, a work simulation was performed.
• The standardized tests which were conducted in the morning included five-position grip testing using a hand dynamometer, rapid exchange grip tests and a pinch gauge. All of these tests require significant muscular recruitment and failure to use maximum voluntary effort during testing will affect the score distribution. The worker's scores indicated that a high level of physical effort was demonstrated by him on the testing day.
• At the time of the assessment, the worker had been out of the work force for almost five years and he described his activities of daily living as being limited. Accordingly, participation in the standardized tests in the morning would have been an unusual physical demand on the worker's hands and wrists which was far beyond his normal level of activity at the time.
• When asked whether the job simulation might have been confounded by the testing conducted earlier in the day, the OT acknowledged that the test participant is asked to give their maximum grip, but then added that as a Quality Control Service Writer, the worker would also be using maximum grip to do things like open the hood of a car. The panel is not satisfied with this explanation as we do not view the task of opening a car hood up to 10 or 12 times over an 8 hour day to be analogous to applying maximum grip strength to a dynamometer three times in five hand positions over the course of a few minutes.
• Documents on file, and particularly, medical reports from the 2007 and 2008 time period when the worker was employed in NOC 1453 do not identify edema as an issue for the worker. On an occupational therapy initial hand assessment form dated May 22, 2008, edema is identified as "normal." Similarly, in a report dated July 15, 2008, the worker's family physician wrote: "On March 28, 2008, he was seen complaining of painful both hands and both the wrists had been sore. On examination, he appeared to have tenderness over the MP joints. There was no obvious swelling noted."

Based on the foregoing, the panel is unable to conclude that the edema identified by the OT was a usual symptom which was attributable to the performance of job duties during the work simulation. We find that the edema was anomalous and unique to the time of the functional capacity assessment. As such, the panel does not accept the OT's conclusion that the job demands of Quality Control Service Writer exceed the worker's work abilities.

When considering the job duties as a Quality Control Service Writer, the panel finds that the functional demands are not beyond the abilities of the worker. The OT confirmed that the tasks were all within the worker's permanent restrictions, which were the typical standard restrictions for carpal tunnel syndrome. Although the worker indicated that the performance of these duties caused him pain, the OT's evidence was that in the absence of objective symptoms, pain alone would not prevent the performance of duties. The overall recommendation by the OT was that so long as the worker could minimize handling/fingering/pinching/writing activities and pace himself throughout the day with minimal pinch force, the physical demands of the job were within his physical abilities. There were no problems with respect to positioning, weight/force or agility demands.

From the worker's evidence at the hearing, it would appear to the panel that the only volume task which involved sustained use of the wrists was ripping perforated floor liner plastic off a roll during the first hour of work. While we can see how this may be problematic for a person with bilateral carpal tunnel syndrome, we also view this as being a task which could easily have been accommodated in the work environment. The assistance of a co-worker could have been recruited. The panel does not view this task as being a critical component of the worker's job duties. The rest of the worker's job duties were amenable to self-modification. The worker could control the pace at which he performed the tasks and the duties were varied and of light physical demand, with ample time for rest in between.

The medical opinions on file do not support the finding that the worker is totally disabled from all employment due to his carpal tunnel symptomatology. The WCB medical advisor's memo dated August 14, 2012 indicated that the medical findings did not support that the worker was totally disabled. The treating physiatrist's note of April 25, 2012 indicated: "At this point I do not recommend any repetitive work involving pts hands." He did not state total disability. The family physician did complete a medical report related to an application for disability benefits dated May 12, 2012; however, four separate medical conditions are listed as the basis for the worker's claim for total disability. The report did not support total disability based solely on the compensable carpal tunnel syndrome.

The panel's view overall is that the job position as a Quality Control Service Writer was sustainable employment within the worker’s post-injury physical capacity. We therefore conclude that the worker is capable of performing work in NOC 1453, Customer Service, Information and Related Clerks (Service Writer) and that he is not entitled to full wage loss benefits. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of August, 2013