The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB") regarding her claim for compensation. A hearing was held on January 19, 2016 and reconvened on March 8, 2016 to consider the worker's appeals.

Issue

Whether or not the worker is capable of working full hours within her permanent restrictions;

Whether or not the worker is entitled to wage loss benefits after June 6, 2014; and

Whether or not the worker is entitled to wage loss benefits for the period September 9, 2014 to October 5, 2014.

Decision

That the worker is capable of working full hours within her permanent restrictions;

That the worker is not entitled to wage loss benefits after June 6, 2014; and

That the worker is not entitled to wage loss benefits for the period September 9, 2014 to October 5, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right wrist injury that she related to the repetitive nature of her job duties as a diagnostic coordinator assistant. The date of accident was recorded as February 19, 2008 and the date it was reported to the employer as February 20, 2008.

Medical reports on the claim file showed that the worker complained of pain and swelling on the dorso-radial aspect of her right wrist. Based on MRI examinations in January and November 2009, the worker underwent surgery to excise a right wrist volar ganglion on June 1, 2009. The worker underwent a second surgery for a right wrist de Quervain's release and re-excision of a recurrent volar ganglion on September 21, 2010. On August 25, 2011, the worker was seen at the WCB's offices regarding her wrist condition and was referred to a physiotherapist for treatment.

Between September 27 and November 5, 2011, video surveillance was conducted of the worker's activities and was compared to the medical information on file by a WCB medical advisor. On December 8, 2011, the worker was advised by the WCB that based on the information to date, including inconsistencies when comparing functional abilities shown on the video surveillance to reported limitations at the call-in exam, the WCB was no longer able to relate her current condition to the original workplace injury. Therefore, wage loss and medical aid benefits would conclude on December 13, 2011.

On February 22, 2012, the worker's case was considered by Review Office, as the worker disagreed with the December 8, 2011 adjudicative decision. Based on its review of the file evidence, Review Office concluded that the worker was entitled to benefits beyond December 13, 2011. Review Office accepted that the compensable injuries related to the February 19, 2008 work accident were a right wrist volar ganglion and right de Quervain's tenosynovitis. It felt the evidence did not support a causal relationship between the compensable injuries of February 19, 2008 and the worker's right shoulder and elbow difficulties. After reviewing the surveillance evidence, Review Office was unable to conclude that the worker had recovered from her compensable injuries or was capable of performing her full regular duties. Benefits were therefore reinstated for the worker's right wrist difficulties.

On April 3, 2014, the worker's claim was again considered by Review Office as the worker disagreed with the WCB decision that she was capable of returning to full time work and that she was not entitled to additional physiotherapy treatments. In its decision, Review Office found that the worker was entitled to limited wage loss benefits after December 6, 2013 and was capable of a gradual return to work with the addition of one work shift per week over a period of four weeks until full time hours were achieved. Review Office also determined that there was no need for further in-clinic physiotherapy treatment based on the weight of file evidence.

File records showed that the worker continued to work 3 days per week and that she did not increase her hours as directed by Review Office.

In a progress report dated April 30, 2014, the treating physician assessed the worker as having acute chronic wrist and metatarsal and metacarpophalangeal soft tissue pain and inflammation. In a further progress report dated May 2, 2014, the physician stated that the acute chronic pain syndrome all stemmed from the original claim injury and subsequent surgery. He noted that the worker "cannot perform her duties to the extent that she did prior to the original injury" and that she remained symptomatic.

By letter dated June 16, 2014, the worker was advised by the WCB that given her decision not to participate in the gradual return to work program, further benefits in respect of her claim would not be paid beyond April 25, 2014.

In a further decision dated August 29, 2014, the worker was advised that a WCB plastic surgeon consultant was in agreement with the May 2, 2014 medical opinion that there was no distinct structural pathology to account for her current right wrist symptoms in relation to the accepted diagnosis of non-specific post-surgical right volar and dorsal wrist pain. The worker was also advised that there were no medical findings to support the need for ongoing restrictions and that she was considered capable of returning to her regular hours and job duties.

On September 8, 2014, the worker was provided with details of her graduated return to work program for the period September 9 to October 5, 2014 and was advised that she would be provided with wage loss benefits while she progressed to full hours.

On November 6, 2014, the worker's claim was again considered by Review Office based on an appeal from the worker dated October 1, 2014.

Review Office stated, in part, that their previous decision of April 25, 2014 to end the worker's wage loss benefits was premature as there were somewhat contradictory medical opinions on file regarding the worker's abilities and tolerances. Based on e-mail correspondence from the employer that they were willing to provide the worker with a graduated return to work commencing on May 12, 2014 and ending on June 6, 2014, Review Office found that the worker was entitled to wage loss benefits until the end of the proposed graduated return to work on June 6, 2014.

Review Office further determined that as of June 6, 2014, the worker was considered able to work her full duties within the following work restrictions and was not entitled to further wage loss benefits:

• Avoid continuous repetitive right wrist movement under load;

• Avoid repetitive right hand gripping;

• Lifting through the right wrist and hand should not exceed 5 to 10 pounds on an occasional basis.

Review Office also indicated that as the worker would be compensated with partial wage loss benefits in line with the increasing hours set out in the return to work plan ending June 6, 2014, any wage loss after that date would not be considered related to the compensable accident but rather to her refusal to accept the graduated return to work plan hours as proposed in May 2014. Review Office further stated that the worker was not entitled to any partial wage loss benefits from September 9 to October 5, 2014.

On February 25, 2015, the worker wrote Review Office requesting reconsideration of their decision dated November 6, 2014 based on new medical information which consisted of an MRI report dated January 25, 2015, a report from the treating physician dated February 17, 2015, and a physiotherapy report dated November 4, 2014. As the medical reports were new, Review Office referred the case back to Compensation Services to consider the new information.

On April 10, 2015, the worker was advised that her claim was reviewed by a WCB medical advisor and it was determined that her current condition was not related to the initial injury that occurred on February 19, 2008. The decision stated:

A WCB Medical Advisor reviewed your file and noted that the January 25, 2015 MRI report shows 2 dorsal ganglia of the right wrist and mild tendinosis of the right ECU tendon. The original ganglion as shown on the November 9, 2009 MRI report was a volar ganglia. The medical opinion states that the new diagnoses of dorsal ganglia and ECU tendinosis are not caused by the workplace injury, on balance of probabilities; these diagnoses represent a degenerative process.

The medical opinion also advises that "a recurrence of a volar ganglion at the same site as the previously excised ganglion is not evident on MRI report. A different pathological process would account for development of ganglia at a dorsal site. There is no MRI evidence of tenosynovitis of the deQuervain's tendons in the first extensor compartment."

Based on the above, the new ganglia are located in another area of the wrist and cannot be related to the original volar ganglion.

On May 15, 2015, the worker asked Review Office to reconsider its decision of November 6, 2014 that she was capable of working full hours within her permanent restrictions and that a loss of earning capacity did not exist beyond June 6, 2014. The worker also appealed the case manager's decision dated April 10, 2015.

On July 14, 2015, the WCB plastic surgeon consultant reviewed the claim file at the request of Review Office and outlined the basis for her opinion that the worker's new right wrist ganglion identified in the January 2015 MRI findings was not related to the compensable accident.

On August 10, 2015, Review Office accepted the WCB medical opinion that the worker's new diagnoses related to her right wrist were not related to the compensable accident. Given these findings, Review Office felt the worker was capable of working full hours within her permanent restrictions and she was not entitled to benefits beyond June 6, 2014.

On September 15, 2015, the worker appealed Review Office's decision dated August 10, 2015 and an oral hearing was held on January 19, 2016. The hearing was adjourned as the appeal panel required confirmation from the employer as to whether or not they wished to participate in the appeal process. The hearing reconvened on March 8, 2016.

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.

The worker was employed by a federal government agency or department and her claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Pursuant to subsection 4(2) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Manitoba Act.

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.

Subsection 4(2) of the Act provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented at the hearing. In support of her appeal, the worker called her workplace supervisor as a witness.

The worker's position is that she is not capable of working full hours due to her compensable injury and that all benefits should be reinstated.

The worker began her submission with a fairly detailed review of what had transpired with respect to her claim from the time it was filed in February 2008. It was submitted that the WCB accepted her claim as a right wrist injury. The worker stated that she now has permanent restrictions, is on medication for the rest of her life, and needs special aids to work just 3 days a week. She said that her attending doctor, who sees her every week, has still not cleared her to work 5 days a week.

The worker stated that she did not have evidence of ganglions in 2011, and the MRI was clear. WCB then forced her to return to work, and after returning to work with some aids and at 3 days a week, she now has two new ganglions, one of which is large and causes significant discomfort. In the worker's submission, the only thing that changed was that she went back to work, and it is clear that returning to work contributed to her dorsal ganglions.

The worker noted that the WCB plastic surgeon consultant saw her in 2011 but had not physically seen her since then, and in her view, did not have the data or facts to make an informed decision when she provided her July 15, 2015 opinion, or perhaps the wrong question was asked. The opinions of the WCB consultant and of the worker's treating physiotherapist conflicted, and she understood from speaking with the physiotherapist that she and the consultant had agreed to disagree.

The worker submitted that the panel should rely more on the opinions of her attending physician and her treating physiotherapist, who had actually seen her and have said that the original and new ganglions are all related.

It was submitted that if the panel is unable to agree that the ganglion formation is from the original injury of February 19, 2008, then we must conclude from the MRI of January 25, 2015 that it is a workplace injury and that all benefits should be reinstated.

The worker noted that she has tried working 4 days a week and 5 days a week, but it was not possible. She has modified the days she works from heavy to non-heavy workdays, and has done everything possible so that she can return to five days a week.

Employer's Position

The employer did not participate in the appeal.

Analysis

1. Whether or not the worker is capable of working full hours within her permanent restrictions.

For the worker's appeal on this issue to be successful, the panel must find that the worker is unable to work full hours within her permanent restrictions as a result of her compensable injury. The panel is unable to make that finding.

The January 25, 2015 MRI recorded that:

There is a large ganglion situated dorsal to the scapholunate ligament from which may arise. This ganglion measures 1.4 cm in transverse dimension, and 0.5 cm in proximal to distal dimension. There is a second ganglion arising dorsal to the lunotriquetral ligament that measures 0.6 cm in transverse dimension and 0.2 cm in proximal to distal dimension. No other ganglion is identified.

The panel notes that the MRI report was compared to an MRI performed April 19, 2011, and the final impression is stated to be "Two new dorsal ganglia are observed as described."

The panel places considerable weight on the opinions of the WCB medical advisors dated April 2, 2015 and July 14, 2015. In the April 2 opinion, the medical advisor, an orthopedic surgeon, having reviewed the worker's entire file, concluded that these new ganglia were not caused by the compensable injury, and that: "The recent flare-up of increased pain and dorsal swelling is explained by the new additional diagnoses identified on MRI dated 25-Jan-2015." The medical advisor stated that the new diagnoses were not caused by the workplace injury, but rather represented a degenerative process. The medical advisor further concluded that:

With respect to the longstanding effects of the workplace injury, and excluding the effects of the new diagnoses above, permanent physical restrictions related to the workplace injury would be expected to remain unchanged.

The panel notes the worker's treating hand physiotherapist and treating family physician had disagreed with the above opinion, and the WCB asked the WCB plastic surgeon consultant to review the file, and the MRI findings in particular, and to comment on whether the new ganglia were related to the compensable injury. In her response dated July 14, 2015, the consultant concluded:

These two new ganglia are i) not likely related to the original compensable accident, ii) not likely sequelae of the two surgeries [the worker] underwent and iii) have occurred in distinct/separate anatomical sites from the initial ganglion accepted as part of the compensable diagnosis…

The WCB plastic surgeon consultant further noted that:

…when ganglia recur after surgical excision, they typically recur in the same location (volar or dorsal) as they had originally been (as initially occurred after the first surgery in 2009). It is evident from the medical information described above, including the January 25, 2015 right wrist MRI report, that there has not been recurrence of the initially excised ganglion volar to the radiocarpal joint overlying the radial styloid, but rather, there has been occurrence of new ganglia in anatomically distinct regions. These new ganglia, including their influence on [the worker's] reported symptoms and impairment of function, are not likely medically accounted for in relation to the initial workplace duties to which she was exposed in 2009, nor to the surgical procedures she has undergone to address the initially diagnosed ganglion at the right volar radial wrist (surgeries, which based on the operative reports, did not involve the scapholunate or lunotriquetral ligaments). Rather, the presence of the new ganglia dorsal to the scapholunate and lunotriquetral ligaments has likely occurred on the more commonly accepted basis for ganglia occurrence, that is, on an idiopathic or degenerative basis.

The WCB consultant subsequently spoke to the worker's treating physiotherapist and asked her to clarify her opinion with respect to the source of the worker's symptoms and their relationship to the new ganglia being related to the original injury. In a memorandum to file dated July 20, 2015, the WCB consultant documented the results of that conversation, noting that the treating physiotherapist's opinion was not substantiated by the medical evidence on file, as follows:

1. The initial January 14, 2009 right wrist MRI noted in particular that the scapholunate ligament was not involved (indicating that there was not likely a scapholunate ligament injury at the time of the workplace injury).

2. The subsequent November 7, 2009 and April 19, 2011 right wrist MRIs did not note scapholunate ligament pathology or involvement.

3. The June 1, 2009 and September 21, 2010 operative reports did not mention scapholunate ligament pathology or involvement.

4. The actual cause of ganglia is unknown; opining that the presence of a new ganglion related to an anatomically distinct joint in 2015 is accounted for in relation to repetitive grasping in 2009 would be speculative and not based on medical evidence.

The plastic surgeon consultant therefore concluded that there was no change in her July 14, 2015 opinion.

The panel accepts and adopts the findings of the WCB plastic surgeon consultant. In particular, we find, on a balance of probabilities, that there was no scapholunate ligament injury at the time of the workplace injury and that the newly identified ganglion are not related to the original 2008 work injury.

Accordingly, any restrictions to be considered by the panel will be limited to those arising out of the worker's original compensable injury. The panel notes that the worker's permanent restrictions in relation to the right wrist, as listed above, were originally identified by a WCB medical advisor in a memorandum dated September 26, 2012. These include:

• Avoid continuous repetitive right wrist movement under load;

• Avoid repetitive right hand gripping;

• Lifting through the right wrist and hand should not exceed 5 to 10 pounds on an occasional basis.

In identifying these restrictions, the WCB advisor stated that the restrictions were felt to be permanent as the worker was at maximum medical improvement, and opined that there was no medical contraindication to the worker performing work duties under those restrictions on a full time basis. As previously noted, the WCB medical advisor concluded in his April 2, 2015 opinion that with respect to the longstanding effects of the workplace injury, the physical restrictions related to the compensable injury would be expected to remain unchanged. The panel accepts that conclusion, and finds that the worker's permanent restrictions are appropriate as related to the compensable injury.

The panel notes that the worker is seeking to add further restrictions to the permanent restrictions already in place with respect to her compensable injury, namely that she be limited to working only 3 days a week. As indicated above, the panel is unable to find any basis for altering the worker's permanent restrictions in this way.

In conclusion, the panel is satisfied, based on the evidence and on the balance of probabilities, that the worker's ongoing pain and difficulties are not related to the compensable injury, and that the worker is capable of working full hours within her permanent restrictions. In reaching this conclusion, the panel does not question that the worker has ongoing pain in her wrist. We are unable to find, however, that the worker's ongoing complaints are related to the compensable injury.

The panel would note that in her submission, the worker stated that if we were unable to conclude that the ganglion formation is from the original injury, then we must conclude that it is a workplace injury on its own. No claim has been filed with respect to such an injury, and that issue is not before the panel. It is open to the worker to file a new claim, should she choose to do so.

The worker's appeal on this issue is dismissed.

2. Whether or not the worker is entitled to wage loss benefits after June 6, 2014.

For the worker's appeal on this issue to be successful, the panel must find that the worker had a loss of earning capacity after June 6, 2014 due to her compensable injury. The panel is unable to make that finding.

The panel has found that the worker's permanent restrictions are appropriate, as related to the compensable injury. The evidence discloses that the employer was willing to provide the worker with a graduated return to work leading to full time hours which would have ended on June 6, 2014. The panel therefore finds that the worker is not entitled to wage loss benefits after June 6, 2014.

The worker's appeal on this issue is dismissed.

3. Whether or not the worker is entitled to wage loss benefits for the period September 9, 2014 to October 5, 2014.

For the worker's appeal on this issue to be successful, the panel must find that the worker had a loss of earning capacity for the period September 9 to October 5, 2014.

For the reasons set out in response to Issue 2, the worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 6th day of May, 2016