The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim. The issues deal with his entitlement to a permanent partial disability award, temporary total disability benefits and the need for bilateral wrist restrictions. A hearing was held on September 14, 2017 to consider the worker's appeals.

Issue

Whether or not the worker requires ongoing bilateral wrist restrictions;

Whether or not the worker is entitled to further temporary total disability benefits; and

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker does not require ongoing bilateral wrist restrictions;

That the worker is not entitled to further temporary total disability benefits; and

That the worker is not entitled to a permanent partial disability award.

Background

The worker filed a claim with the WCB in 1988 for bilateral carpal tunnel syndrome ("CTS") that he related to his employment as a miner. In 1981, the worker had decompression surgery to his left wrist and in 1982, decompression surgery to his right wrist. In April 1987, the worker underwent a left median nerve neurolysis and release of adhesions. In 1989, a neurologist opined based on EMG results, that the worker may still have a very minor CTS present on the left side. In 1989, a plastic surgeon assessed the worker regarding his wrist complaints but no further treatment was provided.

In January 1996, the worker advised the WCB that he was still having problems with his left wrist which included occasional numbness and throbbing. Based on this information, the WCB obtained further information from the worker's family physician and plastic surgeon which was reviewed by a WCB medical advisor.

By letter dated March 29, 1996, the worker was advised that the WCB was accepting that his bilateral CTS was due to his employment and that responsibility would be accepted for medical aid costs such as medication, etc. Regarding his current left wrist complaints, the worker was advised that based on WCB medical opinion, it was determined that the recent examination findings did not suggest any current pathology requiring treatment nor the need for restrictions and that his current left wrist complaints would not be a barrier to allowing a full time return to work within his chosen field.

In 2014, the worker's legal representative contended that the worker was entitled to a Permanent Partial Disability ("PPD") award review related to the worker's CTS condition, that work restrictions were warranted and that the worker was entitled to wage loss benefits.

The worker was examined by a WCB medical consultant on July 16, 2014 for the purposes of establishing a PPD award. Based on examination findings and range of motion testing, the worker's PPD rating was calculated at 10% whole body person. The effective date of the PPD award was the date of the PPD examination.

On October 20, 2014, the worker underwent nerve conduction studies ("NCS") as the worker complained of ongoing pain and numbness in his hands. The NCS findings were indicative of mild CTS on the left and severe CTS on the right with amplitude suggestive of axonal loss. A WCB medical advisor reviewed the file on December 16, 2014. The medical advisor noted that there was no new diagnosis on file in relation to the worker's current bilateral hand symptoms. He noted that the current diagnosis remained to be bilateral CTS, based on the clinical symptoms at the hands as described in the July 16, 2014 PPD examination notes in conjunction with the October 2014 electrophysiological findings indicative of mild CTS on the left and severe CTS on the right. The medical advisor indicated that the current diagnosis of bilateral CTS was likely related to the initially accepted diagnosis of bilateral CTS.

On January 19, 2015, the WCB medical advisor stated "Restrictions related to carpal tunnel syndrome are to limit repetitive firmly resisted grasping with the hands, to be reassessed upon receipt of updated medical information.

In February 2015, the worker's legal representative provided the WCB with medical information from the worker's treating physician dated February 2, 2015 to support that the effective date of the PPD award should be dated back to the year 2003.

On March 13, 2015, the treating plastic surgeon indicated that he saw the worker for management of his recurrent bilateral CTS and that the worker would benefit from repeat decompression and neuroloysis of both hands.

On March 24, 2015, a WCB medical advisor reviewed the proposed surgical procedure outlined by the plastic surgeon and stated it was difficult to determine when the impairment arose in regards to the CTS. He said a plastic surgeon, in 1996, noted that "the symptoms were not very great" in regards to the CTS and he noted surgery was not recommended. The worker's symptoms have been described over a long period of time but the degree of impairment had not been well documented. He was not able to comment on the onset of impairment that was described at the PPD examination.

On April 10, 2015, it was determined by the WCB that the effective date of the worker's PPD award would not change to 2003 as there was "insufficient documentation to substantiate a prior effective date to the extent of the impairment tested on July 16, 2014."

On June 2, 2015, a WCB medical advisor provided a summary of the medical information on file stating from February 5, 1981 through to March 13, 2015. The medical advisor stated:

In summary, the initial accepted diagnosis in 1981 was bilateral CTS.

The left side CTS was treated with two surgeries and was noted to have improved electrophysiologically in a March 15, 1989 left NSC report, and then resolved electrophysiologically in an August 12, 2003 NCS report. The next medical report on file is from February 2010, in which right sided symptoms were reported. As such, based on the new updated medical information on file, the initial left mild median neuropathy had likely resolved.

The right CTS was treated with one surgery, and it was noted in 1987 that there was mild right median neuropathy which was asymptomatic, and appeared to have remained asymptomatic in January 1996, based on the treating physician's report of unilateral left hand symptoms reported at that time, and the January 12, 1996 WCG correspondence letter to the treating physician noted that [worker] reported left hand symptoms to the WCB. The medical information appears concordant with a clinical recovery of the right CTS.

There was then no further medical information in relation to the wrists until August, 2003, at which time NCS noted severe right motor median neuropathy and mild right sensory median neuropathy. The next report of right thumb symptoms was approximately 6.5 years later, on February 3, 2010, at which time [worker] noted a 1 month history of symptoms "similar to when he previously developed carpal tunnel syndrome." [Worker] was later diagnosed with C6-7 disc herniation and a right accessory rib which was excised in 2012.

Based on the information on file [worker] has not performed his duties as a miner since 1983, and has not since performed work duties involving repetitive firmly resisted grasping or exposure to heavy vibration (activities typically associated with CTS).

The medical information on file indicates that [worker] experienced material recovery from the left and right CTS diagnosis in 1981.

The history of remote bilateral CTS and surgery for same may have increased the susceptibility to the lateral occurrence of bilateral CTS. However, in the absence of workplace exposure since 1983 to tasks that are known to be associated with CTS, a probable relationship between the current condition and the workplace duties has not been established.

On July 6, 2015, the worker's legal representative was advised by the WCB that the medical information supported that the worker had materially recovered from his work related bilateral CTS. As the worker had not been exposed to further employment related aggravating factors since 1983, the WCB was not able to relate his present condition to a further workplace activity.

In September 2016, the worker's legal representative wrote to Review Office stating that he was appealing the WCB decisions that the worker's current CTS was not related to his workplace injuries of 1981 and 1982, the decision that there was no need for work restrictions and the decision that the worker had recovered from his bilateral CTS condition. The worker also appealed the finding that there was insufficient documentation to substantiate a prior effective date for the PPD award.

The WCB Review Office expanded the appeal issues to include whether there was entitlement to a PPD rating/award.

In a decision dated December 1, 2016, Review Office determined there was no ongoing compensable bilateral wrist restrictions and that the worker was not entitled to further total temporary disability (TTD) benefits.

Review Office referred to the submission made by the worker's legal representative that "it was not realistic to conclude that after three Carpal Tunnel Syndrome releases and the ongoing pain and discomfort at that time, he could have returned to working as a rock bolter or any other employment that requires repetitive wrist movement and handling vibrating tools, or even drafting 8 hours per day…Due (sic) the worker's Bilateral CTS condition he was no longer able to participate in the mining industry…Given the worker's current condition regarding his Bilateral CTS, the worker is asking the Review Office to order full wage loss benefits from August 2014 until he reaches the age of 65 years old…

Review Office stated that it placed weight on the WCB medical consultant's opinion that the worker "experienced material recovery from the left and right CTS diagnosed in 1981." It stated that following the worker's initial surgeries, he eventually returned to work performing his pre-accident duties as a rock bolter operator and there were no concerns brought forward by the worker regarding any wrist difficulties associated with the duties to the employer or the WCB. There was no medical documentation at that time supporting the worker's position he was unable to perform his pre-accident work or required workplace restrictions.

In early 1994, the worker was laid off from the employer due to reasons unrelated to this claim. Review Office stated that it did not find that the worker's current bilateral wrist complaints are associated with any workplace activities. It found the worker's position that he was not able to work due to the compensable 1981 injury was not substantiated and that the evidence did not support "the existence of disability" nor is "the degree of diminution of earning capacity" by reason of the 1981 workplace injury. There was no ongoing compensable restrictions related to this claim nor was there any further entitlement to wage loss benefits.

Review Office said it was unable to account for the worker's bilateral wrist function referenced in the 2014 PPD examination due to the effects of the 1981 compensable injury.

As it found that the worker had materially recovered from his compensable injuries and that his current bilateral wrist complaints were not accounted for in relation to the 1981 workplace accident, a PPD award associated with his range of motion wrist deficits was not related to the claim. Therefore the worker was not entitled to a PPD award.

On January 16, 2017, the worker appealed Review Office's decisions to the Appeal Commission and a 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 Board of Directors.

The worker's accident occurred in 1981, accordingly this appeal is considered under the provisions of the Act as they existed at that time.

Subsection 4(1) of the Act provided:

Compensation payable out of accident fund.

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a workman, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. 

Subsection 4(10) of the Act provided:

Permanent disability.

4(10) The board may award compensation under this Part in respect of the permanent disability suffered by a workman but without temporary total disability.

Subsection 32(1) of the Act provided that where permanent partial disability (PPD) results from the injury, the board shall pay periodic payments over the lifetime of the worker to compensate for the physical loss occasioned by the disability.

Worker's Position

The worker was represented by legal counsel who made a submission on the appeal. The worker answered questions from his representative and the panel.

The worker's representative noted that the worker injured his wrists at work in 1981 and had surgery on his wrists in 1981, 1982 and 1987. He noted further that the claim for these injuries was accepted by the WCB in 1996 but that the worker was not provided wage loss benefits because he was being paid on a 1983 back injury claim. He noted that all benefits were terminated under the 1983 back injury claim. He submitted that the worker was entitled to wage loss benefits on the 1981 CTS claim commencing upon the date that his benefits were discontinued on his 1983 back claim. He stated that the worker never recovered from the 1981 injuries and continues, to the current date, to be unemployable as result of the injuries and should be compensated accordingly.

The worker's representative submitted, further, that the worker was deemed at the wrong salary level on the 1983 claim. He submitted that he should not have been deemed as a draftsman on the 1983 claim. He asked that the panel amend the amount of the deemed income to the minimum wage.

The worker's representative noted that:

• the worker was deemed at $24,000.00 per year on the 1983 back claim, which was the rate for a draftsperson working in the industry 

• the worker remained unemployed and never made an attachment back to the workforce

The worker's counsel said in 1996 the adjudicator found the worker's CTS was acceptable but at that time there was no reason for restrictions. He noted that from 1996 to 2003, the worker suffered from both a work-related lower back injury and his bilateral CTS. He remained unemployed and benefits continued under the 1983 back claim except for a few months when he worked as a delivery person.

The worker's representative submitted that:

So it was my opinion that, given the work from [the worker's] long history of bilateral CTS, his benefits should have continued under claim [1981 CTS claim]. In March 13, 2015 report from [specialist], stated the worker would benefit from repeat decompression on both hands. So now in 2015 we’ve got another reoccurrence.

The worker relied upon the opinion of a family physician who summarized the worker's medical history pertaining to his wrist between 2003 and 2015 to support a relationship between the worker's symptoms and his workplace accident.

The worker's representative noted that in a decision dated July 6, 2015, the WCB determined that the worker had materially recovered from his bilateral CTS condition. He noted that the case manager relied upon the opinion of a WCB medical advisor who opined that the worker had materially recovered from his work-related CTS, as he was not exposed to any further employment related to the aggravating factor since 1983.

Regarding WCB Policy 44.10.20.50.20, Recurrence, the worker's representative submitted that:

If the WCB determines that the current disability is not a result of a new and separate accident, which we argue it obviously isn’t, then the current disability will be considered a reoccurrence of the effects of the previous injury or illness.

The worker's representative submitted that there’s no other employment to relate the worker's current CTS condition to except his work in the mine. He noted that the policy doesn’t talk about cause and effect, rather it refers to the same area of the body. He said in the worker's case, it is the same area of the body which has been operated on three times in the 1980's. He submitted that the worker's hands since the first and second surgeries, have been susceptible to reoccurrence ever since the original injuries.

He said that

The cause and effect is clear. The cause and effect is he had carpal tunnel bilaterally in 1981, 1982, decompressing surgery again in 1987, and he’s continued on in pain, with problems with both his hands through until today. It’s a reoccurrence based on the original cause which was the cause of the injury in 1981.

The worker's representative noted that the worker was awarded a PPD on the 1981 CTS claim effective July 16, 2014, the date of the examination. He submitted that this date was not appropriate and suggested that an appropriate date might be "somewhere in the 1980s when the disability first started". He indicated that:

I’ll leave it up to the panel when the panel decides on whether or not his PPD will be reinstated, and moved possibly to the next step of finding an effective date, I’ll leave that to the panel to adjudicate.

The worker's representative also said that: 

I’ll leave it to this panel to say when full wage loss benefit; if and when full wage loss benefits should have kicked in at some point.

In response to a question, the worker's representative estimated that the worker has worked less than one year in the last 35 years.

In answer to questions, the worker advised that:

• he worked as a slusherman and a rockbolter for the accident employer. He would install about 70 bolts per shift 

• he was working as a rockbolter when he injured his back 

• he had severe pain after the second surgery on his dominant left hand in 1987 

• between 1987 and 1996, he had severe pain • the physician who treated his carpal tunnel syndrome in 1981 told him it was not related to his work

• this physician gave him personal restrictions of no lifting more than 20 pounds, no hammering and no vibrating tools and drills (hand drills) 

• he was afraid to advise the WCB because he was afraid he would be cut-off benefits 

• he worked from 1989 to 1992 as a draftsman but was laid off because of the recession • he tried working as a courier and delivery person and various other jobs 

• after his third CTS surgery his physician said:

And he says, because this is a disease, or an injury, that once you’ve been operated on, it’s going to continually recur. And the length of time between surgeries is going to depend on your activity, what you’ve been doing after the surgery.

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker appealed 3 issues arising from an injury to his wrists in 1981.

Worker's Evidence

As a starting point, the panel notes that the worker's appeal is based, in part, on evidence from the worker regarding his job duties, symptomology, and interactions with the accident employer and WCB. The panel finds the worker to be a poor historian and attaches little weight to his evidence at the hearing.

An example of his unreliable evidence is noted in the following exchange between the worker, his representative and a commissioner:

Commissioner: Well, I’m just wondering when the claim was initiated. Was it initiated in 1981?

Worker's Representative: It was initiated in 1981, yes? Not in 1982? And then not really recognized again until 1996 when an adjuster, adjudicator picked it up and looked at it and said, hmm?

Commissioner: So did you receive Workers Compensation benefits back in 1981 and 1982?

Worker: While I was off work, yes.

The panel finds that the above evidence is clearly wrong. The file was not established in 1981 and the WCB did not pay benefits to the worker in 1981. The evidence on the file is that the WCB did not know about the worker's CTS injury until 1987 and was not informed about its potential relationship to work until the claim was established in 1988.

The panel also finds there to be limited evidence in relation to:

• the actual duties performed by the worker that were causative of CTS 

• the worker's symptoms before and after the diagnosis and treatment

• any complaints by the worker of hand symptoms relating to his employment between 1981 and 1987

In assessing this appeal, the panel makes the following findings based upon our review of 1981 CTS claim file and evidence provided at the hearing: 

• the worker worked as a miner with the accident employer commencing approximately 1980 

• the worker sustained carpal tunnel injuries to both wrists in or around 1981 

• the worker stopped working in 1983 due to a compensable back injury 

• the first reference in the WCB files to wrist difficulties is a June 12, 1987 memo on the worker's 1983 back claim which indicated, in part:

During the early spring, [worker] was experiencing some difficulties due to Carpal Tunnel Syndrome and thus problems with his hands and his ability to perform drafting requirements. He had this checked by [doctor] who indicated he would require surgery for such.

• the second reference to wrist difficulties is an August 1987 "Attendance and Progress Report" on the 1983 back claim file which indicated that:

"He has been working under difficult circumstances due to an injury to his left wrist. He is using his right hand now for writing + tries to ignore the pain in his left hand..."

• the worker had surgery on his left wrist in 1981 and 1987, and on his right wrist in 1982 

• at the time of the surgeries, there is no reference to the surgeries being caused by his workplace duties and no information on the 1983 back claim identifying a work cause.

• the WCB received notice of a claim for work related CTS in 1988 

• the worker testified that the physician who treated his carpal tunnel syndrome in 1981 told him that his condition was not related to his work 

• the worker has not worked in a position with the employer that involved vibration and twisting activities since 1983. This in indicated in a note from the employer dated March 31, 1989 which indicated that:

Worker was an underground labourer and mine helper for about 6 months from 1980 April until 1980 October. He was then made a misc. Trammer until 1982 June when his title was changed to rock bolt operator. He held that position until July 1983 when he strained his back and leg. He has not worked at any vibration or wrist twisting activities with us since that time. We could find no supervisor or safety person in the Mine department who had known of any complaint by [worker] about any wrist problems or Carpal Tunnel Syndrome.

• the worker was enrolled in a drafting program, under the 1983 back claim, and graduated from the drafting program in 1989 

• the worker worked as a draftsman from 1989 to 1992 (late 1991) • the worker was laid-off in 1992 because of the economy. He advised that:

I worked from 1989 to 1992, and then I was laid off because of the recession and another employee was laid off at the same time.

• the worker has not been employed for more than six months since being laid off in 1992 

• the 1981 CTS claim was accepted on March 29, 1996 based on a review of the medical and job duties in or about 1981 

• at the time the 1981 CTS claim was accepted in 1996, there were no current findings of CTS pathology requiring treatment 

• the worker had variable symptoms relating to his hand, arm or upper body in 2003 and between 2010 and 2015

The panel also notes that the worker advised the panel that he is attending for surgery the day following the hearing.

Issues

The issues before the panel in this appeal are:

1. Whether or not the worker requires ongoing bilateral wrist restrictions

2. Whether or not the worker is entitled to further temporary total disability benefits

3. Whether or not the worker is entitled to a permanent partial disability award

1. Whether or not the worker requires ongoing bilateral wrist restrictions

For the worker's appeal of this issue to be approved, the panel must find, on a balance of probabilities, that the worker's current wrist conditions are related to the 1981 CTS claim. The panel was not able to make this finding.

The panel is not able to find, on a balance of probabilities, that the worker required ongoing restrictions for his wrists related to work with the accident employer. The panel is not able to relate the worker's ongoing complaints to his work in 1981 or to his work as a draftsman between 1989 to 1992.

In arriving at this decision, the panel has considered all the medical information on the file and attaches significant weight to the June 2, 2015 opinion of the plastic surgery consultant who reviewed the worker's medical history and opined that "in the absence of workplace exposure since 1983 to tasks that are known to be associated with CTS, a probable relationship between the current condition and the workplace duties has not been established." The panel notes that when the claim was accepted in 1996, the WCB noted there were no current findings of CTS pathology requiring treatment. The panel also notes the February 29, 1996 report from a treating plastic surgeon which indicated negative Tinel's sign at the wrist, no sensory abnormalities, no motor weakness, no wasting, reports of vague CTS symptoms, paresthesia noted not to be necessarily anatomic and recommendation of no surgical intervention.

The worker's representative submitted that in accepting the worker's CTS injuries and related surgeries from 1981, all CTS symptoms and surgeries thereafter are compensable. The panel respectfully disagrees. The panel finds that subsequent symptoms and injuries must be adjudicated on their merit. In deciding this appeal, the panel attaches significant weight to the fact that the worker has not performed the duties of a miner since 1983 and has not worked as a draftsperson since l992. The worker has not been subjected to any workplace causes of CTS for more than 20 years. The panel is not able to find, on a balance of probabilities, that the worker's current complaints of CTS are related to the worker's duties as a miner. Nor can the panel find that the worker's current complaints of CTS are related to his training or work as a draftsperson more than 20 years ago.

The worker's representative submitted that in accordance with WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences) if the panel does not find a new injury, the ongoing benefits are considered as related to the original claim. The panel notes that the Policy provides: 

A. POLICY

When a worker makes a claim with the WCB, it will determine whether the worker is entitled to benefits and services under the Act. If the WCB decides that the worker is entitled to compensation under the Act, the WCB must next decide whether the worker has suffered a new accident or a recurrence.

When a worker has returned to work following a compensable injury or illness, and subsequently suffers a further disability as a result of that same injury or illness, the WCB will award compensation benefits to the worker for the further disability.

The panel does not agree with the worker's representative's position on the effect of this policy. In the panel's opinion, this Policy does not create an entitlement to benefits, rather it provides a method for determining "whether a worker's WCB benefits should be recalculated". In this case, the worker did not return to work with the accident employer nor has he had any significant employment since 1992. The panel finds, on a balance of probabilities, that a factual basis does not exist to relate the worker's current CTS condition to his 1981 CTS claim. The panel finds that the worker's current condition is not related to the 1981 CTS claim and accordingly finds that the worker does not require ongoing bilateral wrist restrictions, arising from the 1981 CTS claim.

As noted above, the panel attaches significant weight to the opinion of the WCB plastic surgery consultant who opined that the worker's compensable CTS condition has resolved.

2. Whether or not the worker is entitled to further temporary total disability benefits 

The worker's representative submitted that the worker should be provided with total temporary disability benefits. Given the panel's reasons on Issue 1 above, the panel finds, on a balance of probabilities, that the worker is not entitled to temporary total disability benefits arising from his 1981 CTS claim. The panel finds that the evidence does not establish, on a balance of probabilities, that the worker is currently sustaining a loss of earning capacity due to the 1981 CTS claim, nor does the evidence establish that the worker has a temporary total disability as a result of the 1981 injury.

The worker's appeal of this issue is dismissed.

3. Whether or not the worker is entitled to a permanent partial disability award

Given the panel's findings and its decision on Issue 1, the panel finds, on a balance of probabilities, that the worker is not entitled to a permanent partial disability award on this claim.

The panel notes, however, that the worker was granted a 10% permanent partial disability award on this claim for his CTS condition and has received a lump sum settlement of this award. Notwithstanding that the decision to grant the permanent partial disability award has been reversed, the settlement was not recovered by the WCB.

The worker's appeal of this issue is dismissed.

In addition to the issues noted above, the worker's representative asked the Appeal Commission to deal with the WCB's decision to deem the worker as a draftsman for the purposes of benefit calculation. He submitted that the worker should have been deemed at minimum wage.

The panel has considered this request and finds that this issue which arises on the 1983 back claim is not before the panel. We are restricted to dealing with the 1981 CTS claim.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 20th day of October, 2017