Decision #48/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her bilateral wrist and thumb difficulties were not a consequence of her compensable accident.
A hearing was held on February 11, 2016 to consider the worker's appeal.
Issue
Whether or not responsibility should be accepted for the worker's bilateral wrist and thumb difficulties as being a consequence of the September 10, 2007 compensable accident.
Decision
That responsibility should be accepted for the worker's left wrist and thumb difficulties as being a consequence of the September 10, 2007 compensable accident.
Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to her left wrist and thumb with an incident date of September 10, 2007. The worker reported that she looked after an extremely obese client, and the wear and tear on her wrist and thumb from attending to the client was the cause of her condition.
The Employer's Accident Report dated September 24, 2007 indicated that the worker suffered a repetitive strain to her left wrist and hand. It was noted that the worker, employed as a home care attendant, would wash the client with her right hand while holding the client with her left hand, and this had "caused an increased amount of pain & discomfort in her left hand."
Following contact with the worker and her direct supervisor to clarify the nature of the worker's job duties and the onset of her symptoms, the claim for compensation was accepted based on the diagnosis of a left thumb extensor tendonitis.
On January 22, 2008, the WCB advised the accident employer that the worker was fit to return to work with the following restrictions:
No lifting, carrying or pushing/pulling greater than 5 lbs
No overhead lifting
Not able to assist clients with Ted Stockings or putting on bras
Should start at 2 hours per day, 2 days per week, and gradually increase hours of work over an 8 week period
Goal for regular work duties is April, 2008.
By the end of January 2008, the worker commenced modified duties. File records also showed that the treating physician recommended an MRI as the worker's thumb was continuing to "lock."
A March 7, 2008 MRI of the worker's left thumb identified no abnormalities of the 1st or 2nd extensor compartment, and no evidence for tendinosis or a subluxing tendon.
In a March 11, 2008 report, a plastic surgeon noted that the worker was right hand dominant and presented with complaints that her left thumb "locks and snaps." The report stated that the worker was tender near the E1, and it appeared she had some problems compatible with de Quervain's tenosynovitis.
In a follow-up report dated April 7, 2008, the plastic surgeon reported that the worker's MRI results appeared to be normal. He stated that although the worker had occasional snapping and tenderness over the E1, she stated it was not a big problem for her. The surgeon stated that conservative management was best at this point.
On April 29, 2008, a WCB medical advisor stated:
Prognosis for this condition would be considered guarded. Often, symptoms will improve, but as soon as aggravating activities are re-introduced, the symptoms will flare. We will need to see if she recovers (and then long term restrictions might be needed on a preventative basis) or not (and then long term restrictions would be compensable and permanent).
On July 30, 2008, the worker advised the WCB case manager that her treating physician recommended that she continue with modified duties for another 6 months before determining whether she was a surgical candidate. The worker advised that her biggest issue was her lack of strength, and she sometimes found it hard to pick up basic things like a milk carton.
In a memo dated July 31, 2008, the WCB medical advisor stated:
The current dx (diagnosis) remains deQuervain's and this remains related to the C/I (compensable injury). Current treatment with modified activities, bracing, and home exercises is appropriate. Surgery is still not being considered, which is completely reasonable if symptoms can be controlled with conservative management.
We are now 10 months post injury with ongoing symptoms and supportive findings. The prognosis for full recovery is poor. Let's review with the next progress report from (the treating physician). If there's no significant change she may be at MMI (maximum medical improvement) and restrictions should be reviewed and possibly made permanent.
On January 6, 2009, the WCB case manager noted in a memo to file that the worker advised she was cleared for full regular work duties by her treating physician, that he recommended she be careful and know her limitations, especially when it came to tight TED stockings, and that she return to see him if any flares occurred/as needed. The worker further advised she had full range of motion in her wrist/thumb and continued to perform ball exercises.
On September 11, 2013, the worker called the WCB to provide the following information:
Due to the new EFT rollout, her caseload had changed effective September 8, 2013. Prior to this, and since 2009, she had been working with clients in a block setting where she had no clients requiring Hoyer lifts or transfer belts. With new clients, she was now expected to perform these tasks.
She had advised her employer that she has a permanent restriction of avoiding repetitive use of her wrists. An accommodation was made through work to avoid clients requiring compression stockings since February 2013.
Since January 2009, her left wrist would flare up when she applied or took off compression stockings from clients. She only had 2 to 3 clients requiring this, and would only do it a few short times per day, so she was handling things okay. There was no time loss from work.
The worker's current EFT was 64 hours bi-weekly. In a recent meeting with her employer, she provided a medical note regarding workplace restrictions. Based on this accommodation, she was only working approximately 24 hours bi-weekly.
In the past year, her right wrist had been feeling weak due to overcompensating, and she had pain in the ring finger of her left hand.
She denied any other medical conditions occurring, or new injuries to account for her ongoing symptoms.
On September 25, 2013, the WCB case manager wrote to the worker's treating physician to request a narrative report regarding the dates he saw the worker for examinations since January 5, 2009, copies of his chart notes and tests results, and his medical opinion regarding the worker's diagnosis and recommended treatment plan. A response from the treating physician dated November 7, 2013 is on file.
On December 2, 2013, the WCB medical advisor responded to specific questions posed by the case manager concerning the worker's current medical condition and its possible relationship to the original compensable injury in September 2007.
The medical advisor stated that the probable diagnosis related to the compensable injury of September 10, 2007 was de Quervain's. This diagnosis was supported by the examination findings of loss of movement, tenderness, weakness, and positive Finkelstein's test. The medical advisor stated that the natural history of this diagnosis was variable:
Some have an acute course where full recovery occurs over a number of weeks or months.
Some have a course with repeated flares, with asymptomatic periods in between.
Some have a more protracted course with a baseline of pain and repeated flares.
The medical advisor stated that the current diagnosis remained the same. The tendonitis referred to by the treating physician was the same as the de Quervain's. The worker might also have some osteoarthritis of the thumb. The treating physician had documented only tenderness on exam. It would be difficult to confirm any diagnosis based only on tenderness. Furthermore, the tenderness changed in location from February to September 2013, making it unlikely that it was related to the same anatomic diagnosis.
The medical advisor further stated:
The worker saw the doctor early in 2009 with ongoing symptoms, then there was nothing until 2013. Since there is a variable natural history for the condition, we can determine which history she is following based on the medical information we have. The medical information we have best fits with the first scenario provided. There is no documentation of repeated flares over the past 4 years and no evidence of a protracted course and ongoing pain complaints for the past 4 years.
This supports that the worker recovered from the episode of deQuervain's in 2009 and this is supported by her ability to return to her regular activities.
The current presentation cannot then be medically accounted for in relation to the workplace accident of 2007...
In a decision dated December 5, 2013, the WCB case manager advised the worker that in the opinion of Claims Services, she had recovered from the effects of the September 10, 2007 workplace injury, and any suggestion to avoid certain activity would be due to conditions unrelated to the workplace injury. The case manager's decision was based on the following factors:
The claim was accepted based on left wrist and thumb pain on and around September 10, 2007.
A final progress report was received from the attending physician of January 5, 2009, noting fit for normal duty, with no follow up assessment planned.
On September 11, 2013 it was stated that medical information was supplied to the employer, resulting in workplace restrictions being implemented in February 2013.
Updated medical information was obtained noting recent treatment first occurred February 11, 2013. In September 2013 further assessment was performed noting symptoms were more apparent in different areas of the left hand.
A WCB Healthcare Advisor has recently reviewed the claim regarding possible relationship of the recently reported symptoms and the workplace injury of September 10, 2007. The Advisor has indicated that with an absence of 4 years of medical treatment, or indication of symptoms, it would appear recovery had occurred from the September 10, 2007 workplace injury. The current medical presentation then cannot be attributed to the workplace injury of 2007.
On October 9, 2014, the worker's union representative appealed the case manager's decision to Review Office.
On January 7, 2015, Review Office confirmed that no responsibility would be accepted for the worker's current bilateral wrist and thumb difficulties. Review Office accepted the opinion of the WCB medical advisor provided in December 2013. It found the opinions provided by the medical advisor in 2008 were based on evidence on file at that time.
Review Office found the worker had sufficiently recovered from her condition by January 2009 to the point where her physician advised she could return to her regular duties. No formal restrictions were provided and the employer was not aware of the worker requiring restrictions.
Review Office stated that the medical evidence did not support a continuity of symptoms between January 2009 and February 2013. The worker performed her regular duties which involved some changing of compression stockings from January 2009 to February 2013 with no ongoing complaints and no medical treatment sought. The November 2013 physician's report did not provide any findings for the worker's right wrist complaints.
On May 7, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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.
Worker's Position
The worker was represented by a union representative, who made a presentation on her behalf. A second union representative also attended the hearing. The worker responded to questions from her representative and the panel.
It was submitted that with the benefit of hindsight, it is clear that the worker's injury falls within the second category referred to by the WCB medical advisor in December 2013: "a course with repeated flares, with asymptomatic periods in between." This is consistent with the opinion of the treating physician in his November 7, 2013 letter.
It was noted that when the worker returned to work in January 2009, she did not perform the full scope of her duties due to her injury. Based on the medical advice she received from her treating physician, the worker took it upon herself to arrange for an appropriate accommodation in her workplace. The employer was aware of her need for accommodation, and agreed with the worker's modified duties. She was not assigned specific tasks which were known to aggravate her injury, including the application of TED stockings, lifts, transfers, and sliders.
The worker continued to work in this accommodated capacity until September 2013, when the job changed due to the employer's EFT implementation process. At that time, the worker was reassigned and required to perform the duties which were known to aggravate her injury, resulting in a recurrence of her original injury from 2007.
It was submitted that it is reasonable that there would be no continuity of symptoms between 2008 and 2013, because the worker was not performing the job tasks that aggravated her injury and was being accommodated. That changed with the EFT implementation in September 2013. As anticipated by the WCB medical advisor in 2008 and by the worker's treating physician, the worker's symptoms flared-up.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not responsibility should be accepted for the worker's bilateral wrist and thumb difficulties as being a consequence of the September 10, 2007 compensable accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's bilateral wrist and thumb difficulties are causally related to the September 10, 2007 accident. The panel is able to make that finding with respect to the worker's left wrist and thumb difficulties.
In her evidence at the hearing, the worker described her work duties between 2009 and 2013. She said that she worked at a single location. Her tasks included helping clients get ready for the day, doing baths, and getting meals ready. During that period of time, she had the same resource coordinator, who was aware of her difficulties and would not assign her tasks which were known to aggravate her injury. If she was assigned a client who required assistance with TED stockings, the employer would arrange for someone else to do that task. She had no problems as long as she was not doing those tasks.
The worker said that her restrictions were not updated between 2009 and 2013. She did not see her doctor with respect to her wrist and thumb during that period of time, because she did not need to, as she was not assigned tasks which would aggravate her condition. When the EFT implementation process began at the beginning of 2013, she reported her restrictions to the employer and was told to get an updated medical from her doctor. She saw her doctor in February 2013, and he said that her restrictions should continue.
The worker stated that when the EFT was implemented in September 2013, work was assigned based on blocks of time which workers had selected, as opposed to particular tasks. The worker was assigned new tasks with new clients. The work she was assigned was basically transfers, lifts and sliders, all of which she could not do. She was sent for a refresher course for lifts and transfers in September, and again in October, 2013, but was unable to do this work. She said she noticed that her arm was being aggravated during the refresher course.
The worker stated that when the employer discovered that she was not able to perform the full scope of her duties, she was assigned respite work, which resulted in a significant reduction in her hours. Even then, she continued to have difficulty, as the employer continued to assign her tasks which aggravated her injury, including the application of TED stockings and laundry. She has continued to do respite work since 2013, with reduced hours.
The worker said that the nature of the pain and its location was the same in 2013 as it had been in 2008, but was not as severe in 2013, as she was being very careful. In 2008, her left thumb would lock and result in excruciating pain between her left thumb and wrist. In 2013, there was no locking of her thumb, but there was a feel of tugging and pulling in exactly the same area as before. She stated that the problem is still there, and will flare-up if she does things which she should not be doing.
The panel accepts the worker's evidence with respect to the duties she performed from 2009 through to September 2013, and that the employer accommodated her left thumb and wrist difficulties throughout that period of time, at first informally, then more formally starting in February 2013. The panel accepts that the worker only had problems if she performed particular tasks which fell outside her original restrictions, at which point the employer would arrange for someone else to do those tasks.
In the panel's view, the evidence indicates that it was not anticipated that there would be full and permanent recovery from the worker's September 10, 2007 compensable injury. The panel notes that on April 29, 2008, the WCB medical advisor stated that the "prognosis for this condition would be considered guarded", and that symptoms will often improve, but will flare as soon as aggravating activities are re-introduced. Three months later, the WCB medical advisor stated that it was now 10 months post injury with ongoing symptoms and supportive findings, and the "prognosis for full recovery is poor." Sixteen months after the worker's compensable accident, the treating physician cleared the worker to return to "normal duties", but recommended caution with respect to excessive loading through the hand, and noted in his progress report of January 5, 2009, that the worker should follow up as necessary "re: exacerbation".
The panel is satisfied that there was no reason or need for the worker to have sought medical attention for her left wrist and thumb between 2009 and 2013, as she was generally not required to perform the types of duties which would aggravate her injury and was managing to control any difficulties which arose through an accommodation process with the employer. The worker saw her treating physician in February 2013 at the employer's request. Her physician noted that she indicated at the time that she was having ongoing left wrist and hand pain with specific demands at work and had been continued on light duties. At that time, and again in September 2013, the treating physician indicated that she was to continue restrictions in her job duties.
The panel also places weight on the treating physician's November 7, 2013 response to the case manager's request for his medical opinion regarding the worker's diagnosis and recommended treatment plan, where he wrote that:
I do not anticipate this individual's symptoms will completely resolve at any point and I would anticipate that she would require long-term limitation in hand function.
In light of the foregoing, and based on all of the evidence, the panel is satisfied, on a balance of probabilities, that the worker's left wrist and thumb difficulties are causally related to the September 10, 2007 compensable accident.
With respect to the worker's claim for right hand difficulties, the worker's evidence at the hearing was that she started noticing symptoms in her right hand when she went back to work in 2008. She attributed the symptoms to using her right hand to compensate for her left hand, and a certain amount of repetitive motion which that involved. The worker said the problem was more with the wrist than the thumb, and she had not talked to any doctor about her right hand or wrist.
The panel notes that the worker's representative acknowledged at the hearing that they were not suggesting that the worker has sustained a permanent injury to her right wrist, but simply that there was an aggravation to that wrist, due to the worker overcompensating for her left wrist. What was happening on the right side was simply part of what was going on in the big picture, and evidence that ongoing concerns and issues with the left wrist had resulted in the worker overcompensating with her right hand.
The panel notes that there is no medical evidence or diagnosis with respect to the worker's right hand or wrist. The panel also notes that the worker was already on modified duties when she was said to have started experiencing problems with her right wrist. Further, having carefully reviewed the evidence, the panel is unable to identify any particular injury or work duties sufficient to cause an injury to the worker's right wrist.
Based on the foregoing, and in the absence of any diagnosis with respect to the worker's right hand or wrist, the panel finds that responsibility should not be accepted for right wrist or thumb difficulties as being a consequence of the September 10, 2007 compensable accident.
In conclusion, the panel finds that responsibility should be accepted for the worker's left wrist and thumb difficulties only as being a consequence of the September 10, 2007 compensable accident.
The worker's appeal is allowed in part.
Panel Members
L. Harrison, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
Signed at Winnipeg this 31st day of March, 2016