The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the current difficulties she is experiencing with both wrists are not related to her compensation claim for right-sided Carpal Tunnel Syndrome ("CTS"). A hearing was held on August 26, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further benefits in relation to her bilateral wrist difficulties.

Decision

That the worker is entitled to further benefits in relation to her right wrist difficulties but not for her left wrist difficulties.

Decision: Unanimous

Background

In 2006, the worker filed a claim with the WCB for right wrist difficulties that she related to her employment activities as a leather cutter dating back to 2004. She underwent a nerve conduction study on March 10, 2005 and was diagnosed with mild right CTS. On September 22, 2006, she had right carpal tunnel release surgery, responsibility for which was accepted by the WCB. File records also showed that the worker has an accepted WCB claim for bilateral shoulder difficulties and underwent bilateral rotator cuff repairs which were also accepted by the WCB.

On April 25, 2007, the worker was seen by a WCB orthopedic consultant at a call-in examination. The consultant reported that the worker had some persisting symptoms of CTS with swelling on the volar aspect of the right wrist. It was opined that the right hand and wrist condition did not prevent the worker from returning to her full time regular work duties.

In late July 2007, the worker voluntarily resigned from her position with the accident employer with the intention of returning to school. The WCB paid the worker wage loss benefits to July 30, 2007 and continued to pay for medical treatments with respect to her right wrist.

On August 27, 2007, the worker was seen at the WCB for a call-in examination. With regards to the worker's right wrist, the WCB medical advisor noted that the worker continued to have significant symptoms to the right hand but little by way of objective findings. The medical advisor noted that with Tinel's testing over the carpal tunnels, the worker felt localized pain on the right and nothing on the left.

On October 16, 2009, the treating plastic surgeon reported that the worker was seen for management of recurrent right CTS. The worker had changed her occupation from a factory worker to work in a medical lab. He said that recent nerve conduction studies showed only very mild evidence of CTS. The worker did not want to pursue any further surgery so they would continue to treat conservatively.

The next report from the plastic surgeon was dated November 4, 2013. The surgeon noted that the worker was seen for management of bilateral CTS. There was clinical evidence of recurrent CTS and surgical decompression of both wrists was suggested.

On December 11, 2013, the worker provided the WCB with an update of her work history and details of her right wrist complaints. The worker indicated that she worked as a phlebotomist from 2008 until she was laid off in 2013. She attended 50 to 60 patients per day drawing blood and also entered data onto a computer.

By letter dated January 22, 2014, the worker was advised that no responsibility would be accepted for her bilateral wrist conditions in relation to the workplace injury of March 10, 2005. The case manager outlined the opinion that the worker's compensable right wrist CTS condition had been repaired and was mitigated with permanent alternate work duties prior to her voluntary resignation from employment with the accident employer in 2007. The letter stated:

You commenced your phlebotomist position in 2008 and sought treatment for a right wrist condition (May 2009). In my opinion, any possible bilateral injury currently noted may have developed at your most recent vocation...I am of the opinion that there is no significant medical information to support a direct relationship between your 2005 compensable right wrist condition with the current condition. I suspect that the left wrist is also implicated suggested (sic) there are activities at recent Clinic (sic) (not yet determined) and/or externally that are significantly contributing to your bilateral wrist condition.

On January 30, 2014, a second decision was sent to the worker stating that the decision made on January 22 remained the same. The letter indicated that the worker had permanent restrictions related to her 2005 claim and had been accommodated by the 2005 accident employer. The file indicated that the worker had been employed elsewhere where she developed additional symptoms to her right wrist and the left wrist as well. If a worker chose not to mitigate their risk by working outside their permanent restrictions, that may also have an impact on whether or not there was further entitlement. If the recent difficulties were related to physical demands from another occupation they would also not be the WCB's responsibility.

In a submission to Review Office dated February 25, 2014, the worker noted that she saw the plastic surgeon in November 2013 and the test results showed that her right wrist injury still persisted in relation to her 2005 claim and that she now required further wrist surgery.

On April 1, 2014, the employer's advocate submitted to Review Office that the worker had good results after decompression surgery in 2006 with resolution of her right wrist symptoms. The worker then obtained work with another employer from 2008 to 2013 and the work tasks during this time period had been repetitive suggesting that the worker was working outside of her permanent restrictions. The advocate indicated that she concurred with the adjudicative decisions dated January 22 and 30, 2014.

In a second submission to Review Office dated April 12, 2014, the worker indicated that her treating surgeon clearly stated that the pain she was experiencing at the present time was directly related to the injuries she sustained while employed with the accident employer.

On April 30, 2014, Review Office determined that there was no further entitlement to benefits in relation to the worker's bilateral wrist condition.

With respect to the worker's left wrist condition, Review Office agreed with Compensation Services that there was no medical evidence to support that the worker had left-sided CTS close in time to her employment with the accident employer. The first available evidence of a left wrist condition was in November 2013 as noted by the treating plastic surgeon. Review Office referred to the August 27, 2007 WCB call-in findings that Tinel's testing showed that the worker felt localized pain in the right and nothing on the left. Given the absence of findings to support a clinical diagnosis of left sided CTS which could be causally and chronologically linked to her employment with the accident employer, Review Office confirmed that there was no entitlement to benefits in relation to the left wrist condition.

Review Office further indicated that in relation to the right wrist, weight was placed on the fact that the worker left employment with the accident employer in 2007 and since then, she was no longer exposed to the type of forces that are normally associated with the development of CTS. Given that the worker's condition was bilateral, this strongly suggested that non-occupational factors were the cause of the worker's current condition in both wrists. Review Office indicated that the worker presented with a number of risk factors that are associated with the development of CTS. Given the fact the worker has not been exposed to the original duties and associated forces that led to the acceptance of CTS in 2006, Review Office could not confirm a probable causal association between her former employment and the current condition of either wrist.

On June 22, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was convened.

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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s submission:

The worker was self-represented at the hearing and the services of an interpreter were provided. The worker's son attended as an observer. The worker described the work she used to perform for the accident employer. She would cut leather which was heavy work on the arms. She had to lift and place large wooden forms on a table covered with leather. She then would apply pressure on the form with her left hand while cutting with the right. She did this work for eight hours per day. As a result of these job duties, she had to have not only surgery on her right wrist in September 2006, but she also had surgery on both shoulders. After she recovered from the surgeries, she went back to work. Her doctors suggested that she not return to the same repetitive position, but the employer did not change her job. The worker therefore resigned and went back to school to become trained as a phlebotomist.

The worker's evidence was that her carpal tunnel problem remained present, but as her new job was not as repetitive, she was able to manage her symptoms. She would modify the way she did things and she did exercises to reduce the numbness in her fingers. The condition, however, became worse and eventually she was no longer able to wear gloves while performing her job duties. For a period of time, she was allowed to work in this manner, but when a new manager took over, working without gloves was no longer permitted and the worker was laid off.

The worker relied on the opinion of her surgeon who stated that he thought that her current problems were related to the old injury. The worker expressed frustration with the length of time the appeal process had taken and the impact the injuries had had on her life. She stated that her injuries never healed properly and that when her claim was closed, she had not fully recovered. She therefore asked that responsibility be accepted for her bilateral wrist condition which she submitted was directly related to the injuries she sustained when she worked for the accident employer.

Analysis:

The issue before the panel is whether or not the worker is entitled to further benefits in relation to her bilateral wrist difficulties. For the worker’s appeal to be successful, the panel must find that the job duties the worker performed for the accident employer prior to her resignation in July 2007 caused or contributed to her current bilateral CTS condition. On a balance of probabilities, we are able to make that finding with respect to the right wrist.

With respect to the right wrist, the worker's evidence at the hearing was that since her CTS release surgery in 2006, the symptoms never fully resolved. The panel finds that this statement is confirmed by the WCB medical advisor's August 27, 2007 call-in examination notes where she indicates that the worker continued to have significant symptoms in the right hand, although little by way of objective findings. Nevertheless, the WCB medical advisor recommended ongoing workplace modifications and the worker was assessed for a permanent partial impairment.

After she ended her employment with the accident employer, the worker attended school for two years. The worker's evidence was that while she attended classes, she continued to experience pain and discomfort in her right wrist. She was limited in the amount of writing she could do and had a lot of difficulty with keyboarding.

On a balance of probabilities, the panel accepts that the worker's right CTS condition never fully resolved despite the CTS release surgery performed in September 2006. She remained symptomatic, but was functional. Over time, the condition slowly deteriorated, as evidenced by the fact that the worker returned to her treating surgeon in 2009 complaining of right wrist symptoms. At that time, NCS studies identified evidence of CTS, but the worker did not want to pursue further surgery. By 2013, the right CTS condition had deteriorated to the point where the worker wished to undergo a second surgery on her right wrist, which was performed in June 2014.

Based on the foregoing, the panel finds that the worker's compensable right wrist injury sustained from her work duties performed in 2005 never fully resolved and she is entitled to further benefits in relation to this right sided injury.

With respect to the left wrist, the panel is unable to find a causal relationship between the worker's current left wrist symptoms and the work she performed for the accident employer prior to her resignation in 2007. The worker's evidence was that when she first reported her right wrist problems in 2005, she also had symptoms in her left hand. The symptoms on the left were much milder than her right-sided problems so she did not mention them. She was also having problems with both her shoulders during that time period so she did not want to make any further issues about her left wrist. Her doctors had hoped that her left wrist problems would resolve after she had the shoulder surgery.

On reviewing the medical evidence from the relevant time period, unfortunately, there is no record of CTS symptoms on the left side. On April 25, 2007, the worker was examined by the WCB orthopedic consultant who reported that Tinel's sign was negative throughout the left wrist. Similarly, when the worker was examined by a WCB medical advisor on August 27, 2007, it was reported that both Tinel's and Phalen's testing on the left were negative. It would therefore appear that there were no clinical signs of CTS in the left wrist around the time when the worker ceased performing the leather cutting job duties for the accident employer.

The panel is therefore unable to find that there is a causal relationship between the worker's current left wrist difficulties and the work she performed for the accident employer.

The panel notes that the November 4, 2013 report from the treating surgeon states that the worker was seen for bilateral CTS that was recurrent and that she had previous surgical decompression of both carpal tunnels in the past. This is incorrect. The worker was only ever previously treated for the right wrist. As such, a causal relationship can only be established for the right wrist.

The panel therefore finds that the worker is entitled to further benefits for the right wrist only. In making this decision, the panel makes no comment on whether the worker's current bilateral symptoms are in any way attributable to workplace influences which occurred after her resignation from the accident employer in July 2007. The panel also notes that we have not adjudicated the worker's specific entitlement to wage loss benefits for her recurrent right wrist symptoms. The Review Office decision of April 17, 2008 regarding entitlement to wage loss benefits after July 30, 2007 is not affected by this decision and remains appealable.

The worker's appeal is allowed in part.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of September, 2014