The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to charge them with a portion of the claims costs after October 3, 2014. A file review was held on March 27, 2017 to consider the employer's appeal.

Issue

Whether or not the employer should be charged a portion of claims costs after October 3, 2014.

Decision

That the employer should not be charged a portion of claims costs after October 3, 2014.

Background

In January 2014, the worker filed a claim with the WCB for difficulties he was experiencing with his right hand/elbow which occurred over a period of time.  The worker said he was welding a high pressure pipe for 8 to 10 hours per day for about one and a half months.  He used the welding gun in his right hand and used both hands when grinding.  The worker said he reported the injury to his employer on November 6, 2013.

The employer's accident report dated February 28, 2014 noted that no injury was reported on November 6, 2013.  The worker described pre-existing conditions that he had been experiencing for years on an ongoing basis and that he required surgery.  The worker had worked with the employer from October 4, 2013 to November 6, 2013.  The employer opposed any wage loss benefits paid on the claim as the worker had a known pre-existing condition that did not stem from his work with the company.

Medical information on file showed that the worker was diagnosed with right-sided carpal tunnel syndrome ("CTS").  On March 19, 2014, the worker's claim for compensation was accepted by the WCB. 

The WCB contacted the worker's previous employers from 2011 to 2013 and determined that 28.65% of the claim costs would be charged to the employer's firm experience based on the percentage of time he worked for the employer over 1.78 total years of exposure.  In May 2014, the employer's representative appealed the cost allocation of 28.65% to Review Office.

On May 22, 2014, the worker underwent nerve conduction studies and was found to have bilateral CTS, mild on the left and severe on the right.

On June 27, 2014, the worker was advised by the WCB that his claim was accepted for bilateral CTS.  On July 15, 2014, the worker underwent right carpal tunnel release surgery. 

On August 14, 2014, Review Office determined that the employer was not responsible for 28.65% of the claim costs.  Review Office stated, in part:

[Employer] should not be responsible for over a quarter of the worker's claim costs being that they have employed the worker for far less than that amount over his 25 year career.  Though the worker's symptoms became worse over the last two or so years, he has been experiencing symptoms for up to 6 years, on and off depending on his duties.  To attribute only the last 1.78 years of the worker's 25 year career to his injury, suggests the conditions in these workplaces were significantly different or diverse to be solely attributable to the worker's condition.  The evidence documented on file provides that this is not the case. 

Review Office directed that the claim be returned to Compensation Services to determine all active employers' responsibility to the worker's condition based on the whole of his working career as a welder.  Where exposure could not be confirmed or employers were no longer in business, cost relief was to be applied so that the percentage of responsibility held by each respective employer was reflective of the worker's time working with them over the last 25 years.

A physiotherapy report dated October 3, 2014 noted that the worker had full range of motion in all planes of his right hand and could return to his regular work duties on October 6, 2014.  The WCB issued wage loss benefits to the worker to October 3, 2014. 

On October 6, 2014, the WCB advised the employer that 9.38% of the claim costs would be charged to their firm experience.

The WCB wrote the worker on October 21, 2014, noting that as per information on file, medical treatment was concluded and he was able to perform his full regular duties.  The worker was advised that if he had any further difficulty related to his compensable injuries (bilateral hand/wrist and right elbow injuries of November 2013), he should contact the WCB. 

On January 29, 2016, the worker advised the WCB that his left wrist was causing him pain as he was using it more, and that he had an appointment to see a surgeon.  Subsequent file records show that the WCB accepted the worker's left wrist complaints and wage loss benefits were paid to the worker effective April 2, 2016.  On October 26, 2016, the worker underwent left carpal tunnel release surgery.

On October 7, 2016, the employer's representative wrote Review Office to advise that they were appealing the WCB's decision to treat the worker's recent left-sided CTS and subsequent surgery as a recurrence of this claim.  They were also appealing the WCB's decision to assess any degree of the claim costs of the worker's renewed problems against the employer.  The representative stated:

We believe that the claimant's renewed left CTS (and surgery) should be adjudicated as a new claim…[employer] has only been charged with a smaller degree of this claim's cost.  That is because WCB has acknowledged that the claimant's CTS issues evolved over the course of his career and that he just happened to be employed by [employer] when he experienced significant symptoms and required right sided CTS surgery.  As such, it is universally acknowledged that the claimant had been developing his CTS (both left and right) over the course of his career.

Using the same logic as WCB did in assigning this claim to [employer] for the claimant's right side CTS (that is, he was working with [employer] at that time), then it stands to reason that the "employer of record" for his renewed left sided CTS (and surgery) should be the employer he worked with post-[employer].  That is because (like [employer] before this, vis-a-vis the right sided CTS) his symptoms progressed to the point of causing disability and requirement of surgery while he was performing work for the new employer.

…We therefore believe that this recurrence should not have been accepted and that it is unfair for [employer] to be treated as the employer of record for the claimant's left sided CTS and left CTS surgery.

On October 27, 2016, Review Office determined that the employer should be charged a portion of the claim costs beyond October 3, 2014.  Review Office's decision was based on the following rationale:

• Compensation Services accepted that the worker's bilateral CTS was in part caused by the duties he performed for the employer.  Even though the worker did not initially have a loss of earning capacity due to his left-sided complaints, this did not prohibit the WCB from considering the impact of this injury at a later date.
• Based on Board policy 44.10.20.50.10 Recurring Effects of Injuries and Illness (Recurrences), Review Office determined that the worker had a recurrence of his left CTS which resulted in the need for further medical assessments and a loss of earning capacity in 2016.  The diagnosed compensable condition was one that resulted from the cumulative effects of anatomical movements against applied forces which were evident in multiple work environments, one of which was [employer].  From a clinical diagnosis, the worker's CTS remained relatively stable (rated as mild) throughout the years.  Review Office therefore did not find that there was a material change to his compensable injury.
• The circumstances did not warrant a new claim to be filed in relation to the worker's left CTS.

By letter dated December 14, 2016, Compensation Services provided the employer with the rationale which had supported acceptance of the worker's left-sided difficulties on June 27, 2014.

On December 14, 2016, the employer's representative appealed Review Office's decision of October 27, 2016 to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

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.

WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences), deals with injuries where there is a recurrence of the injury that results in a loss of earning capacity.

Employer's Position

The employer was represented by an advocate who provided a written submission for consideration by the panel.

The employer disagreed with the WCB's decision to treat the worker's recent left-sided CTS and subsequent surgery as a recurrence and with its decision to assess any degree of the claims costs of the worker's renewed problems against the employer.

In the employer's view, this new situation was no different than what occurred on the 2013 claim when it was assigned to the employer. The accepted 2013 claim was due to cumulative trauma that was deemed to be measurably worse because of the worker's need to be off work due to the symptoms that occurred while he was working with the employer. The worker's cumulative injury and symptoms then subsided to the point that he was physically capable of a full return to work for several months.

It was submitted that the worker's condition once again became worse after he worked for a new employer, in the same way as his symptoms and disability had worsened after he worked for the employer. The worker's left-sided CTS, which admittedly progressed over several years, became appreciably worse due to his job duties with the new employer. As such, the same test and logic should be applied with respect to his most recent period of disability. In other words, his new symptoms and disability should be adjudicated as a new claim rather than a recurrence of the 2013 claim.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the employer should be charged a portion of claims costs after October 3, 2014. For the employer's appeal to be successful, the panel must find that the worker's left-sided CTS and difficulties after October 3, 2014 were not causally related to his November 2013 workplace injury. The panel is able to make that finding, for the reasons that follow.

The panel has reviewed the file in its entirety. While the worker has an accepted claim for bilateral CTS, the panel finds that the worker's left-sided CTS was essentially asymptomatic subsequent to the November 6, 2013 date of accident. There was little or no manifestation of symptoms of left-handed CTS at that time. Nerve conduction studies conducted May 22, 2014 showed that the worker had mild left-sided CTS, but there is no indication that the worker was seeking or required medical treatment for that condition. It is noted in a memorandum to file dated August 29, 2014 that the worker's left wrist and hand were not bothering him at all.

The panel further finds that the worker's injury had resolved and his condition had clinically stabilized by October 3, 2014. In his discharge report dated October 3, 2014, the physiotherapist reported that the worker had "No issues. Feels good. Ready to go back to work", that recovery was satisfactory, and that the worker could return to regular duties on October 6, 2014. No restrictions were identified other than that the worker needed "to modify welding biomechanics." In its letter to the worker dated October 21, 2014, the WCB confirmed that "As per information on file, medical treatment has concluded and you are able to perform your full regular duties. As such, this claim is considered inactive."

The panel notes that there is an absence of clinical evidence to indicate that the worker was disabled from finding employment subsequent to October 3, 2014 due to his CTS condition. The worker returned to work as a welder for another employer in mid-2015, and continued working for that employer for a period of six months. There is no indication of any left-sided hand or wrist symptomology when the worker began this employment, or that medical treatment was sought or required for left hand or wrist difficulties from October 2014 to December 2015.

Information on file shows that the worker was off work starting December 4, 2015 due to an unrelated back injury. On January 29, 2016, the worker advised the WCB that in addition to his back injury, he had pain in his left wrist as he had been using it more, and that it was now getting progressively worse. He also indicated that he would be following up with the surgeon.

From our review of the information on file, the panel finds, on a balance of probabilities, that the worker's left-sided symptoms developed well after the worker commenced working for the new employer. In the panel's view, the worker had established a real and substantial attachment to a new employer at the time his left-sided CTS became symptomatic. The panel therefore finds, on a balance of probabilities, that the worker's left-sided CTS symptoms or difficulties after October 3, 2014 are not causally related to his November 6, 2013 injury and did not constitute a recurrence of that injury.

As a result, the panel finds that the employer should not be charged a portion of claims costs after October 3, 2014 on this claim.

The employer's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of May, 2017