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 not entitled to benefits for the period January 30, 2009 to February 4, 2015. A hearing was held on September 21, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits for the period between January 30, 2009 to February 4, 2015.

Decision

That the worker is not entitled to benefits for the period between January 30, 2009 to February 4, 2015.

Background

In March 2007, the worker filed a claim with the WCB for injury to his right wrist that he related to the repetitive nature of his job duties while employed as a lumber stacker. His claim for compensation was accepted and benefits were paid. The initial compensable diagnoses noted on file were right volar wrist tendinopathy, right wrist ganglion, later determined to be a misdiagnosis, left rotator cuff tendinopathy/impingement (the left shoulder diagnosis was a secondary injury caused by repetitive use of the shoulder while performing WCB sanctioned modified duties) and aggravation of pre-existing carpal tunnel syndrome ("CTS").

On January 21, 2009, the WCB wrote the worker to advise that full wage loss benefits would be paid to January 30, 2009 inclusive on the basis that he had recovered from the right wrist injury sustained in March 2007 and the left shoulder injury sustained in July 2007.

On January 6, 2015, the worker's counsel contended that the worker was entitled to retroactive wage loss benefits back to 2009 on the findings that the worker's wrist injury was an enhancement of the pre-existing condition and the rotator cuff tendinopathy/impingement of the left shoulder and wrist injuries rendered him totally disabled from returning to his employment. In the alternative, the worker was entitled to reinstatement of full wage loss benefits retroactive to a report from the treating specialist dated November 6, 2012, which confirmed CTS of the right wrist.

In a decision dated January 22, 2015, Compensation Services wrote the worker to advise that wage loss benefits would not be reinstated retroactively to 2009. The decision was based on the following findings:

* The WCB authorized CTS release with median nerve neurolysis and exploration of the right wrist May 1, 2008. * The WCB did not authorize surgery about the scapholunate region in the right wrist. In a medical report dated April 17, 2008, the physician wrote "I have told him that there are chances that this pain is related to the underlying scapholunate ligament disruption". * The May 15, 2008 operative report related to the right wrist recorded a repeat carpal tunnel release with neurolysis of the median nerve. * The post-operative examination showed intermittent numbness, improved sensation and no pain. In September 2008, the worker was examined at a rehabilitation clinic and they noted full digital flexion including the thumb, full strength, no obvious median nerve dysfunction and no local tenderness. They also noted that the pain the worker was experiencing was neurologic and thought to come from his cervical spine. * On January 21, 2009, the case manager decided that the worker had recovered from his injuries he sustained on the claim. Wage loss benefits were issued to January 30, 2009. * The worker states he has not returned to work since he went off work March 6, 2007. * On March 11, 2009, a specialist referred the worker for an MRI which took place on June 18, 2009. The physician wrote "not have s/s of CTS but rather neuritis/neurogenic pain on distal 1/3 of forearm. Previous 2 surgeries unsuccessful & I do not think surgery would benefit him." * In a report dated March 31, 2014 the specialist states "I had the opportunity to evaluate [the worker] again." The specialist later wrote "He recently saw Dr…again and Dr…did not feel another surgical management of his wrist would change his symptoms". * Various medical reports refer to medications taken by the worker. * Medical reports dated December 10, 2013 and November 6, 2014 were proposing a repeat right CTS release. * In reviewing the worker's claim and after speaking with him in person, there was conflicting information and opinions about the cause of the symptoms in the worker's right wrist and the appropriate treatment. * A review of his 1991 claim showed that his right arm symptoms are long-standing and a definitive diagnosis was not established. * Various medical reports and personal meetings with the worker confirm that he was not a good historian and was pain-focused. All of this information supports that it is important that further medical information for the period 2009 to 2015 was obtained and reviewed carefully before further decisions are made about ongoing entitlement and treatment authorizations.

On February 4, 2015, the worker underwent revision carpal tunnel release with extended proximal and distal approach and neurolysis of the medial nerve.

On March 24, 2015, the worker was advised by Compensation Services that the February 4, 2015 surgery "would be authorized on the basis that the 2008 surgery previously authorized by the WCB contributed to an extent to the worker's ongoing chronic right wrist pain probably through the development of further compressive scarring deposition around the carpal tunnel region." The decision also stated: "The healthcare consultant reviewing this claim also wrote that "given that the pre-surgery nerve conduction studies in 2008 were considered negative for carpal tunnel syndrome, in addition to similar results from the 2010 and 2011 nerve conduction studies, it is unlikely that the 2007 work place events led to the electrodiagnostic presentation of carpal tunnel pathology as demonstrated by the November 6, 2012 electro-diagnostic study…"

On June 16, 2015, the worker's counsel advised Review Office that the worker's right wrist was already starting to decline as noted in reports from a rehabilitation clinic. He noted that the restrictions outlined in the report should have been in place after the worker's surgery in May 2008. At the time of the 2009 decision to terminate the worker's benefits, he was not able to return to his workplace duties. Between January 21, 2009 and February 4, 2015, the worker continued to have a loss of earning capacity, and under the Act he was eligible for full wage loss benefits. Based on the workplace injuries to both wrists/hands, counsel asked Review Office to reinstate full wage loss benefits retroactive to January 21, 2009. Counsel also stated:

The worker's benefits were re-instated for a period of 90 days from the February 4, 2015 CT surgery and without any justification his benefits were terminated again. Although it is the worker's primary position that permanent restrictions should have been in place after the 2008 right CT surgery, if Review Office disagrees with the worker, he is asking Review Office to reinstate his benefits commencing May 2015, and he will move to the next level of appeal.

On July 31, 2015, Review Office advised the worker that it was premature for them to rule on his appeal and returned his case to Compensation Services to complete further investigation and review of the decision.

On August 28, 2015, the worker was advised that based on medical opinion from the WCB's healthcare branch dated August 7, 2015, there was no medical evidence to suggest that permanent restrictions should be in place from the carpal tunnel surgery in 2008. It was also the WCB's position that there was no medical evidence that supported benefits should be reinstated back to January 21, 2009 or that permanent restrictions should have been in place after the 2008 carpal tunnel surgery.

On December 23, 2015, the worker's counsel wrote Review Office requesting reinstatement of full wage loss benefits retroactive to January 21, 2009, in relation to the workplace injuries to the worker's wrists and hands. When the worker's benefits were terminated in 2009, counsel noted that the worker was not able to return to his workplace duties and continued to have a loss of earning capacity and was eligible for full wage loss benefits under the Act.

On February 10, 2016, Review Office confirmed that the worker was not entitled to retroactive benefits from January 30, 2009 to February 4, 2015.

Review Office made reference to a WCB medical opinion outlined on October 22, 2008 with respect to the second CTS release surgery in May 2008): "…from a functional perspective about the R wrist, there appears to be a functional recovery."

Review Office also referred to MRI results dated June 18, 2009, which stated, in part, "Within the carpal tunnel, just dorsal to the flexor tendons, is a 1.4 x 1.4 x 0.5 structure. It demonstrates signal characteristics consistent with fat and therefore is most suggestive of lipoma. This finding is of questionable clinical significant [sic]. Note is made of increased signal within the lunate, capitate, and distal pisoscaphoid, consistent with subchondral cyst formation and osteoarthritis. Additionally, there are changes within the trapezium scaphoid joint that are also consistent with osteoarthritis."

Review Office accepted the opinions provided by the WCB sports medicine consultant that led to the decision to end benefits on January 30, 2009. Although the worker continued to complain of bilateral pain to both upper limbs, Review Office found no compelling evidence that the worker required functional restrictions in relation to the compensable right sided CTS condition that was addressed operatively in May of 2008.

Review Office also stated that the compensable secondary accident to the worker's left shoulder can be described as a strain in the environment of a longstanding pre-existing condition and that strains typically run their course in a few days or short weeks provided the aggravating movements are avoided. As the worker discontinued working in August of 2007, Review Office felt the worker had recovered from his shoulder condition well before benefits were ended in January of 2009. To support this finding, Review Office referenced a discussion between the worker and the medical advisor during an examination interview on March 13, 2008 in which the medical advisor asked the worker about any pain or discomfort or problems in the left shoulder and left upper arm and the worker said there was no pain or symptoms in that region.

On March 31, 2016, counsel appealed Review Office's decision to the Appeal Commission, noting that the worker was completely disabled from performing his workplace duties between January 30, 2009 and February 4, 2015 as a result of both his right and left hand/wrist injuries. The May 15, 2008 surgery (CTS release) was a complete failure. Permanent restrictions should have been implemented post surgery.

On September 21, 2016, a hearing was held to consider the worker's appeal.

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.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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.

The worker has an accepted claim for a 2007 workplace injury. He is seeking benefits for the period between January 30, 2009 and February 4, 2015.

Worker's Position

The worker was represented by legal counsel. The worker answered questions and provided comments throughout the hearing.

The worker's counsel advised that: We’re here primarily for [worker's] right wrist and CTS, but he also has his left arm, which was accepted by Review Office as related due to the overuse of the left arm when he was sent back to work.

The worker's counsel submitted that the worker was unable to return to work during the period of January 30, 2009 and February 4, 2015 and is entitled to benefits during that period. He said that during this period the worker was not able to work because of his injured right wrist and his injured left arm. The worker's counsel noted that the Review Office decision of December 6, 2007 indicated that:

The injury to his left arm, or any aggravation of a pre-existing left arm condition is most likely the result of compensating for his right arm.

The worker's representative submitted that the WCB had accepted responsibility for the left wrist condition in accepting the "left arm" injury as a consequence of the right wrist injury.

The worker's counsel noted that, notwithstanding the negative NCS studies and exam reports, on February 4, 2015 an orthopedic surgeon performed right wrist revision carpal tunnel release with extended proximal and distal approach and neurolysis of the medial nerve.

The worker's counsel questioned how the worker could have a right carpal tunnel release in 2008 only 8 months after a negative NCS in 2007. He also questioned how the worker could have a negative right wrist NCS in 2010 and 2011 and then positive NCS in 2012 and surgery in 2015. He submitted that NCS testing was not reliable.

While the worker's position is that his left arm problem, including left wrist, is compensable, counsel submitted that even if it is not compensable, the modified duties should recognize restrictions for the left arm problem. He stated that: And in this case our argument is, permanent restrictions, full wage loss from 2009, and the alternative, 2012, from the positive NCS study, because [worker] wasn't able to do modified duties with his left arm regardless of whether or not it was compensable.

The worker's counsel submitted that the worker never had functional recovery after the 2009 surgery and he would not have been able to return to his duties stacking lumber after the 2009 surgery. He submitted that on a balance of probabilities, the worker would not have been able to work. He asked the panel to rely upon the worker's constant visits to his family physician and the family physician's reports showing the pain and suffering the worker endured from 2009. He stated that:

And I think, having the use of hindsight, showing that, at three years of rest with his hands, and I'm talking between 2009 and 2012, he wasn’t working, and he had to have a revision done again, clearly shows [worker] would fall into the category of somebody that preventative restrictions would have been justified.

The worker's counsel submitted that while their position is that the worker is entitled to benefits from January 2009, their alternative position is that the worker is entitled to benefits from 2012 when the worker had a positive NCS for the right wrist.

Employer's Position

The employer did not participate in this hearing.

Analysis

The worker is seeking further benefits in relation to his 2007 workplace injury. As noted in the background, the worker has an accepted claim for a right wrist injury. The panel has been asked to find that the worker is entitled to benefits for the period between January 30, 2009 and February 4, 2015. For the worker's claim to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical attention for this injury between January 30, 2009 and February 4, 2015. Specifically, the panel considered whether there was medical or other support, on a balance of probabilities, to establish that the cause of the worker's inability to work during this period was his accepted 2007 wrist injury.

The worker's counsel submitted that the worker was not able to work during the period of January 30, 2009 and February 4, 2015. Alternatively, he submitted that the worker was not able to work during the period commencing in 2012 when a new NCS confirmed the worker had CTS.

After considering all the file evidence and the information and argument provided at the hearing, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits for the period from January 30, 2009 to February 4, 2015 as a result of his workplace accident, nor is the worker entitled to benefits commencing in 2012 when the worker had a positive NCS for CTS in his right wrist.

The worker's counsel referred to a variety of conditons which have been present over the years; however, the panel finds that it is restricted in considering the compensable diagnosis on the 2007 claim which was a right volar wrist tendinopathy and right wrist ganglion. The panel notes this includes consideration of the worker's left shoulder condition which was accepted as recurring due to overcompensating for his injured right wrist. Responsibility for issues in the scapholunate region of the right wrist was denied.

The worker's counsel noted that Review Office referred to the worker's severe pre-existing conditions with the left arm which he believes included the worker's left wrist. In his argument that the worker is entitled to wage loss benefits, the worker's counsel referred to the worker's left arm difficulties including his wrist difficulties as factors in preventing the worker from returning to work during the noted period.

The panel finds that in considering the worker's entitlement to benefits after June 30, 2009, it is not able to consider the impact of the worker's left wrist condition upon his ability to return to work. The panel finds that the worker's left wrist condition has not been adjudicated as being a consequence of the 2007 injury. The panel acknowledges that in 2002 the worker was treated for a left elbow neuropathy, but finds that this condition was not accepted as a further injury in respect of the 2007 injury. The panel finds that only the worker's left shoulder condition has been adjudicated as a further condition. It was accepted as rotator cuff tendinopathy/ impingement. The panel relies upon the following information in support of this conclusion:

* a July 2007 report the worker's family physician notes the worker reports pain in his right wrist and a left arm repetitive strain injury * on August 16, 2007 the worker commenced physiotherapy for his left shoulder and right wrist * on August 23, 2007, the worker was examined by a WCB sports medicine consultant. The consultant noted the left shoulder examination showed full strength, no obvious instability and full external rotation. Limited restrictions were recommended for the left shoulder. The worker's left wrist was not identified as a concern. * in January 2009, Review Office noted that no responsibility for a left wrist condition had ever been acknowledged by Review Office.

The panel finds that the focus of the WCB at the time the symptoms were reported and subsequent treatments was in relation to the worker's left shoulder. The panel finds that the worker's left wrist condition was not included in the claim in 2007 and that the WCB has not adjudicated the left wrist condition, as an accident or a further injury in relation to the 2007 injury.

Regarding the impact of the left shoulder condition on the worker's ability to work between January 30, 2009 and February 4, 2015, the panel finds that the worker's left shoulder condition had resolved by March 2008. The panel relies upon:

* March 13, 2008, in a call-in exam with a WCB sports medicine consultant which indicates that:

[worker] does not describe any left shoulder or any left upper arm pain. He does note pain from the elbow distal, which he describes as longstanding. The writer asked on three occasions concerning any pain or discomfort or problems in the left shoulder and left upper arm and all three times the claimant opined there was no pain or symptoms in that region.

* November 26, 2008 report from treating psychologist which notes: With respect to his left hand and arm, [worker] reports little concern about these.

The panel finds, on a balance of probabilities, the evidence does not establish that the worker was unable to work from January 2009 to February 2015 due to the worker's left shoulder injury alone or in conjunction with the worker's right wrist injury.

As well, the panel is not able to find that the worker's right wrist injury prevented the worker from working between January 2009 and February 2015. In support of this finding, the panel relies upon the following:

* October 22, 2008 opinion of WCB sports medicine consultant:

Given a review of the Sept 9, 2008 physiotherapy initial assessment, which showed full R wrist and hand ROM, full strength, no obvious median nerve dysfunction and no local tenderness, there appears to be no obvious physical impairment about the wrist. Though there (sic) area is still reported as symptomatic, from a functional perspective about the R wrist, there appears to be a functional recovery.

* nerve conduction studies in February 2010 and May 2011 showed no evidence of carpal tunnel syndrome from an electro diagnostic prospective

* June 2010 report from an orthopedic surgeon who examined the worker and noted there was no tenderness over the existing incision. He also found that the neurological status of both upper limbs was basically negative.

* November 6, 2012 report from physiatrist who found that the worker had mild to moderate median neuropathy at each wrist. He noted that the worker has predominantly sensory criteria for median neuropathy and therefore would not recommend carpal tunnel release surgery at this time. He recommended the worker use his arm functionally.

The panel also relies upon the August 7, 2015 opinion of the WCB medical advisor: The initial diagnosis of wrist tendinitis in 2007 has likely long resolved. This is substantiated by:

i.) the understanding that [worker] has not been exposed to the initial causative workplace activities since 2007, over which time any related tendinitis would more likely than not have resolved.

ii.) the results of both April 4, 2008 and June 18, 2009 right wrist MRI's, which did not describe any features of a right wrist tendinitis and

iii.) the results of May 2015 right wrist surgery, where the operative report did not refer to any tendon abnormality at wrist.

The panel finds, on a balance of probabilities, that the worker is not entitled to benefits for the period from January 30, 2009 to February 4, 2015.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of November, 2016