WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090011
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker is objecting to the adjudicator’s decision of July 22, 2008 denying a non-economic loss (NEL) redetermination.
HOW THE ISSUE ARISES
Permanent impairment in this claim was accepted for bilateral carpal tunnel syndrome (CTS), left ulnar neuritis, left medial epicondylitis, and left trigger (third) finger. On June 29, 1994 the worker underwent a NEL assessment and his impairment of the whole person was rated at 23%. The worker was advised of this in the form letter dated November 28, 1994.
On May 13, 1998 the worker attended an assessment for the purpose of redetermining his NEL benefit for chondritis/cubital ulnar neuritis post-transposition, left elbow. His NEL benefit was increased to 29% and the worker was advised of this in the form letter dated August 18, 1998.
Secondary entitlement and permanent impairment was subsequently accepted for right lateral epicondylitis and on August 1, 2006 the worker underwent another NEL assessment to assess the degree of impairment post-release. The worker’s NEL benefit was increased to 33% and he was advised of this in a form letter dated October 26, 2006.
On December 12, 2007 the worker representative wrote to the Workplace Safety and Insurance Board (WSIB) requesting a NEL redetermination. Based on an opinion from a WSIB medical consultant the adjudicator concluded there was no evidence of a significant deterioration and denied a NEL redetermination. The worker objected and the issue was referred to the Appeals Branch for further consideration.
AUTHORITY REFERENCE
Policy Document 18-05-09, NEL Redeterminations and Recalculations
RESOLUTION METHOD AND PROCESS
The employer is not participating. The worker representative agreed to a non-hearing decision.
ASSESSMENT OF THE EVIDENCE
Policy document 18-05-09 states,
“The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that
the worker’s degree of permanent impairment was previously determined to be greater than zero
the worker’s condition has deteriorated significantly since the last NEL determination, and
12 months have passed since the worker’s last NEL decision…
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings…
For the purposes of determining significant deteriorations that occur after the final benefit review (FEL or LOE), the WSIB will also consider the recognition of new areas of entitlement to a permanent impairment (in addition to areas of impairment where a NEL benefit has already been determined) to establish a redetermination. A new area of entitlement to a permanent impairment is one in which a permanent impairment was not identified before the expiration of the final review period.”
The worker’s degree of permanent impairment was previously determined to be greater than zero and at the time the adjudicator denied a redetermination, 12 months had passed since the worker’s last NEL decision. Therefore, the issue is whether there is objective evidence of a significant deterioration.
I reviewed the reports that came to file subsequent to the last decision. On November 9, 2007 the physiotherapist provided a letter stating,
“This patient is being assessed for the range of motion in his upper extremities…
On examination, his bilateral hands were swollen of a significant nature. Active range of motion shows 58 degrees wrist extension, -4 degrees supination, -34 degrees elbow extension on the left and -23 degrees elbow extension on the right. With movement of hand behind the back, the right is only able to reach to the right hip however, the left is as far as the posterior iliac crest. He has 75 degrees flexion of the left wrist and 69 degrees right wrist flexion. Passively, his left shoulder has flexion of 140 degrees where tone begins and 160 degrees where he is limited. Internal rotation is 85 degrees and external rotation is 40 degrees. Flexion of the right shoulder is 107 degrees and limited by pain and tone. Internal rotation was 37 degrees and external rotation was 54 degrees. Wrist flexion is 90 degrees bilaterally with wrist extension at 45 degrees on the right and 80 degrees left when done passively.
In conclusion, this patient has a significant decrease in upper extremity range of motion both active and passive. The significant swelling could account for a portion of this decrease.”
On August 26, 2008 the worker consulted Dr. Annisette, Orthopaedic Surgeon, for a sharp shooting pain in the right third metacarpal he developed over the previous six months. He also complained of some numbness in both hands. Dr. Annisette reported that EMG studies done in November 2007 were negative. Dr. Annisette diagnosed clinical right CTS and early osteoarthritis metacarpophalangeal (MCP) joint of the right long finger. The report does not provide ranges of motion for the right long finger. Treatment consisted of a steroid injection in the right carpal tunnel and MCP joint.
The worker does not currently have entitlement for the MCP joint of the right long finger and as there is insufficient evidence available on file, entitlement for this has not been added to the issue agenda.
The worker followed up with Dr. Annisette October 28, 2008. This report states,
“Steroid injections did not help this man. The range of motion is better in the finger, but his pain persists.
Clinically, he has a right carpal tunnel syndrome and right Guyon’s canal syndrome.
Plan
Right carpal tunnel and Guyon’s canal release.
The potential gains and possible complications have been explained to the patient.”
The worker representative confirmed that the worker did not proceed with the surgery as the previous right carpal tunnel release did not improve his symptoms.
Prior to referring the file to the Appeals Branch the operating area did not rule on entitlement for the Guyon’s canal syndrome. Unlike the MCP joint right long finger, there is sufficient evidence available on file to rule on entitlement for this condition and this has been added to the issue agenda.
As I understand it, Guyon’s canal syndrome is an entrapment of the ulnar nerve as it passes through a tunnel in the wrist called Guyon’s canal. This problem is similar to carpal tunnel syndrome but involves a completely different nerve. Sometimes both conditions can cause a problem in the same hand. Risk factors include heavy gripping, twisting, repeated wrist and hand motions, and working with the hand bent down and outward. Symptoms can be produced by constant pressure on the palm of the hand, running a jackhammer. A traumatic wrist injury may cause swelling and extra pressure on the ulnar nerve within the canal. Arthritis in the wrist bones and joints may eventually irritate and compress the ulnar nerve.
I have considered the evidence and conclude, on a balance of probabilities, that the right Guyon’s canal syndrome developed secondary to the right CTS and right lateral epicondylitis/release. I further conclude that permanent impairment is evident for this condition. This in itself entitles the worker to a NEL redetermination. However, I also assessed whether there is evidence of significant deterioration in the other areas of permanent impairment. Comparisons were made between the NEL assessment reports and the physiotherapist’s letter of November 9, 2007. I will refer to this as the “current” findings.
At the time of the August 1, 2006 NEL assessment extension of the right elbow was 110 degrees and the impairment for this was zero. In the current findings extension of the right elbow was 23 degrees and the impairment for this is 2%. Ranges of motion for flexion, pronation and supination were not provided; however, the WSIB medical consultant did not find these necessary to offer an informed opinion. Based on the decreased extension, I find there is evidence of significant deterioration.
The current extension of the left elbow is 34 degrees. At the time of the May 13, 1998 NEL assessment extension was 25 degrees. This deterioration increases the extension impairment and is therefore considered significant.
The ranges provided for the wrists are inconsistent and I am unable to conclude there is evidence of deterioration in the left wrist.
CONCLUSION
I conclude that:
The right Guyon’s canal syndrome developed secondary to the right CTS and right lateral epicondylitis.
Permanent impairment is evident for the right Guyon’s canal syndrome and this qualifies the worker for a NEL redetermination.
There is evidence of significant deterioration in the right elbow and the worker is entitled to a NEL redetermination for this area of impairment.
There is evidence of significant deterioration in the left elbow and the worker is entitled to a NEL redetermination for this area of impairment.
The worker’s objection is allowed, in part.
DATED August 31, 2009
L. Lum
Appeals Resolution Officer
Appeals Branch