The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB") regarding her entitlement to medical aid and wage loss benefits. A hearing was held on November 30, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to medical aid benefits after December 8, 2015; and

Whether or not the worker is entitled to wage loss benefits after December 15, 2015.

Decision

That the worker is entitled to medical aid benefits after December 8, 2015; and

That the worker is entitled to wage loss benefits after December 15, 2015.

Background

On October 18, 2013, the worker was using a 7 inch grinder with a cutting disc when the disc jammed and the motion twisted her left wrist. The worker continued to work after the incident and started to lose time from work in February 2014 due to pain complaints and range of motion difficulties.

A doctor's first report dated March 5, 2014, diagnosed the worker with a left wrist possible scaphoid-lunate ligament tear, and extensor tendonitis.

On March 28, 2014, a left wrist MRI showed: "Small dorsal ganglion intimate with the scapholunate interosseous ligament."

On April 17, 2014, a WCB sports medicine consultant opined that the current diagnosis was non-specific left wrist pain and the ganglion noted on the MRI results was an "incidental" finding.

At the request of the treating physician, the worker was seen by a hand surgeon on August 14, 2014. The surgeon outlined his examination findings related to the left wrist and concluded that the worker would benefit from a left wrist arthroscopy with examination under direct visualization and debridement of the small dorsal wrist ganglion.

On September 4, 2014, a WCB medical advisor noted that the claim was accepted as a wrist sprain and not for a volar wrist ganglion. He noted that none of the treating physicians suggested that the ganglion was related to the effects of the initial injury. The criteria for a volar wrist ganglion was highly repetitive forceful wrist use or an established injury suggestive of a direct blow to the area where the ganglion was subsequently discovered.

On September 9, 2014, the WCB denied responsibility for the proposed surgical procedure on the basis that the dorsal ganglion was unrelated to the worker's initial workplace injury.

On December 18, 2014, Review Office provided rationale to support its position that the ganglion diagnosis was not acceptable under the claim and that no responsibility would be accepted for the suggested surgical procedure. Review Office also found no evidence to support that the worker suffered a scaphoid-lunate joint injury from the accident based on its review of the MRI results and the examination findings of the treating hand surgeon that was outlined on August 14, 2014.

On March 9, 2015, a WCB medical advisor reviewed the claim file as the worker contended that the repetitive work duties that she performed after the October 2013 accident led to the development of the ganglion. The medical advisor stated: "Search of medical literature regarding ganglion indicates that there is insufficient evidence to support highly repetitive work or in a combination with other factors as a risk factor in the development of a ganglion."

On March 11, 2015, the worker was advised that following consultation with the WCB medical advisor, it was determined that her current difficulties were unrelated to the performance of her job duties.

In April 2015, Review Office reviewed new medical information submitted by the worker which consisted of a report from an occupational health physician dated March 10, 2015 and a report from the family physician dated March 11, 2015.

On June 26, 2015, Review Office determined that the worker's left wrist ganglion was related to a cumulative injury from her work as a welder and that the costs associated with the arthroscopic surgery would be accepted in relation to the compensable injury.

Review Office stated, in part, that it was unable to determine whether the ganglion was caused by a further injury subsequent to the compensable injury, as the definitive injury was not known at this point. The arthroscopic surgery would provide clarification.

On October 21, 2015, the worker underwent the following procedure: Left wrist arthroscopy with left wrist synovectomy and debridement of left wrist TFCC.

On December 1, 2015, the operative results were reviewed by a WCB sports medicine advisor who opined that the arthroscopic findings and therefore the current presentation was not medically related to the workplace injury. The medical advisor noted that a ganglion was not identified on the arthroscopy and that a TFCC tear would present with ulnar-sided wrist pain. She said there was no medical documentation of ulnar-sided wrist pain noted on the file evidence. The scapholunate joint and the scapholunate ligament were considered to be normal on the October 21, 2015 wrist arthroscopy. The natural history of recovery post-left wrist arthroscopy was for pain and functional improvement by 4 to 6 weeks.

In a decision dated December 8, 2015, the worker was advised that the TFCC tear and repair of same was not related to the original workplace injury. It was the WCB's position that she had recovered from the effects of the October 18, 2013 workplace injury and that no further responsibility would be accepted for medical aid benefits effective December 8, 2015 and that wage loss benefits would be paid up to and including December 15, 2015.

On February 11, 2016, Review Office considered an appeal by the worker regarding the WCB's decision dated December 8, 2015. Review Office concluded that the worker was not entitled to further medical aid or wage loss benefits.

Upon review of its previous decision, Review Office noted that a ganglion was accepted as compensable and allowance was given for an arthroscopic procedure to see what, if anything further was wrong with the worker's left wrist in relation to the compensable accident. As no ganglion was found at surgery, Review Office rescinded acceptance of the diagnosis and confirmed that no further benefits can be provided for that condition.

Review Office also stated, in part, that all examinations prior to the arthroscopic procedure showed symptoms unrelated to the eventual findings of the arthroscopy. Without a clinical correlation, Review Office was unable to state that the worker's symptoms were related to what was repaired during the October 21, 2015 surgical procedure.

Review Office noted that the arthroscopy was approved expecting to find left wrist pathology at or about the scapolunate ligament. Findings of this nature would correlate to the worker's subjective and objective findings in examinations prior to the surgery. What was found and repaired cannot be correlated with the past findings and are considered incidental and asymptomatic.

Review Office concluded that the worker's continued left wrist pain, need for therapy and her loss of earning capacity beyond December 15, 2015 could not be accounted for in relation to the compensable accident. Review Office agreed that the worker was not entitled to medical aid benefits after December 8, 2015 or wage loss benefits beyond December 15, 2015.

On April 11, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was held on November 30, 2016.

Following the hearing, the appeal panel requested additional information from the worker's treating surgeon. A response was later received and was forwarded to the interested parties for comment. On February 8, 2017, the panel met further to discuss the case and to render a decision on the issue under 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 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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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 an injury arising from a 2013 workplace accident. She is seeking additional medical aid and wage loss benefits.

The issue before the panel is whether the worker is entitled to medical aid after December 8, 2015 and whether she is entitled to wage loss benefits after December 15, 2015.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from the panel.

The worker's representative noted that:

the issues to be addressed by the panel today arise out of the left wrist surgical procedures performed on October 21, 2015 and, more specifically, which of those procedures are compensable in relation to the worker’s accepted claim.

The worker's representative also noted that Review Office determined that the only compensable surgical procedure performed was a diagnostic arthroscopy for which recovery should have occurred by the benefit end dates. The Review Office found that other aspects of the surgery were not related to the worker's accident.

The worker's representative submitted that in addition to the diagnostic scope, the synovectomy performed, particularly as it relates to the areas of the lunate and triquetrum, is also a compensable procedure arising out of the original workplace accident, and out of the continuing performance of the physical duties by the worker while still injured. He advised that the worker takes no position on the compensability of the TFCC tear identified during the arthroscopy.

The worker's representative asked that further benefits be granted because the worker continued with medical treatment and did not have medical authorization from her treatment providers to return back to regular duties. He noted that there is no indication from the file that the employer was in a position to accommodate the worker at the relevant times.

In answer to questions, the worker described her job duties and the events surrounding her injury. She advised that she worked as a welder in the refurbishing area. Her duties involved cutting off all the rusted parts on vehicles, and putting in brand-new steel and getting the vehicles back on the road. She did not do the body work but performed "the heavy structural stuff."

Regarding the incident, she was cutting out a window bar. She was using a seven-and-half-inch grinder, which was one and 1/2 feet to two feet long and runs at near 50,000 RPM. She advised that:

And this particular day, when I was cutting the window bar, instead of the two pieces when you cut it they come apart, right? Instead of them coming apart abruptly, they caught the blade and they stopped the blade immediately.

She said her left hand was on top closest to the disc, and her right hand was on the bottom holding the control. She held on when it jammed.

The worker advised that after she was terminated from benefits, she used her sick leave benefits and some holiday time until she could return to work.

The worker told the panel that the surgery resolved the pain from the accident. She said that she continued to work, and continued to work at 100 percent of her duties until the surgery, using both hands.

Subsequent to the adjournment of the hearing and the receipt of the information from the surgeon who operated on the worker's hand, the worker's representative provided a further submission. The worker's representative reviewed the new medical information and advised that the worker agreed with the opinion of the physician as noted in her correspondence of January 6, 2017.

In closing the worker's representative stated:

I think that, of course, you start with the initial accident, but then you also have to look at what happened after that, which is that the worker continued working, which included a period of doing overtime, which did result in, I believe, a period of wage loss benefits. And her symptoms during that time waxed and waned, and she worked, to my understanding, right up until … the day before the surgery. And injured workers, while they’re injured, they take their injury with them wherever they go.

Employer's Position

The employer was represented by its Compensation Coordinator.

The employer's representative submitted that the real issue in this case is whether the findings on October 21, 2015 can be, on a balance of probabilities, related to the October 18, 2013 accident, or the performance of normal work duties. He noted that the relationship of the TFCC tear and synovitis is the key issue, not the post-surgery duration and disability.

Regarding the difference in medical opinions between the treating physicians and the WCB medical advisors, the employer representative questioned whether a medical opinion should be obtained from an independent expert.

The employer representative submitted that:

…the weight of evidence, on balance of probabilities, demonstrates that the findings from the arthroscopy and the associated repair are not related to the original compensable injury.

In answer to a question the employer representative submitted that:

So the [employer's] position is that the TFCC tear and the synovitis, addressed through the October 21, 2015 procedure, were inconsistent with the focus of all healthcare intervention prior to that date, and we’re agreeing with the WCB that those things were not produced by the injury.

Analysis

The issues before the panel are whether the worker is entitled to medical aid after December 8, 2015 and whether the worker is entitled to wage loss benefits after December 15, 2015.

For the worker's appeal of these issues to be approved, the panel must find that:

• the worker required medical aid in relation to her workplace injury after December 8, 2015, and;

• the worker sustained a loss of earning capacity after December 15, 2015 as a result of the workplace injury.

Both before the hearing and at the hearing there was significant consideration given to the issue of the relationship between the worker's pre-surgery complaints and diagnosis and the findings from the surgery.

To assist with understanding the apparent difference, the panel obtained additional information from the surgeon. The panel asked the surgeon the following questions:

1. Please describe specifically which area(s) the synovium was found in the left wrist structure.

2. The pre-operative diagnoses by you and other healthcare providers focused on the radial and not the ulnar side of the left wrist. What, if any, connection is there between your operative findings and the pre-operative radial side complaints or symptoms?

3. Can synovitis be diagnosed by clinical testing in a physician's office or can it only be identified during a surgical procedure? Please explain.

4. An opinion was placed on the file which stated "The note of synovium throughout the wrist is a relatively non-specific finding." Please provide your opinion regarding the relevance of the synovium issue in relation to the patient's wrist condition pre-surgery.

On January 6, 2017, the surgeon responded to the panel's correspondence as follows:

…The first question asks where specifically the area of synovium was found within the left wrist. There appeared to be synovium within the radiocarpal interval throughout the wrist, but specifically at the lunotriquetral ligament. The patient also had evidence of a central tear of the TFCC that was identified with surrounding hyperemia and synovium. The synovectomy that was performed was mainly on the ulnar aspect of the wrist in the region of the hyperemic synovium around the lunotriquetral ligament and the TFCC. Again in the mid carpal joint, there was evidence of synovium that mainly appeared to be around the lunate and the triquetrum.

Regarding your second question regarding the radial versus ulnar-sided wrist pain and findings intraoperatively, the majority of this patient's inflammation did seem to be around the lunotriquetral interval and the TFCC. Preoperatively, the patient was indicating pain at the radial aspect of the wrist overlying the scapholunate interval, this is only a cm away from the lunotriquetral interval. Sometimes patients are not accurate in identifying the exact source of their pain. Given that postoperatively the patient seems to improve significantly, likely the pain she was experiencing was coming from the lunotriquetral interval. When I last saw her on December 24, 2015, she had regained excellent range of motion and was just working on strengthening with her Occupational Therapist…On exam, patient stated that her pain was slowly settling and she still had a slight amount of tenderness in the region of lunotriquetral interval as well as in the region of the TFCC as well as slight tenderness in the region of the scapholunate ligament.

Regarding your third question, can synovitis be diagnosed by clinical testing in the physician's office or can only be identified during the surgical procedure. Often unless patients have synovitis secondary to rheumatoid arthritis, synovitis is not noted in the physician's office, but can only be seen arthroscopically. Synovitis is identified mainly by hyperemia of the synovium in the surrounding area.

Regarding your last question, synovium is a non-specific finding, however, hyperemia does indicate injury and acute inflammation. This patient's acute inflammation and hyperemia of the synovium was mainly in the region of the TFCC and the lunotriquetral interval. This does indicate an acute injury.

Upon receipt and consideration of this information, the panel finds that surgeon has provided information which is both reasonable and probable, and establishes that the left wrist synovectomy was related to the compensable injury.

The panel finds, on a balance of probabilities, that the worker is entitled to medical aid after December 8, 2015 and is entitled to wage loss benefits after December 15, 2015 in relation to the compensable workplace injury.

The worker's appeal is approved.

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 15th day of March, 2017