WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100130
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: July 28, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUE
Initial entitlement.
HOW THE ISSUE ARISES
The worker related a gradual onset and discomfort in his right hand to the work that he performed as a welder in January 2006.
Initial entitlement was denied as per the decision-maker’s letter of September 3, 2009. The decision-maker advised that there was a delay in reporting the injury and the worker had not met the six month time limit to claim for benefits and consequently entitlement was denied.
AUTHORITY
Operational Policy Manual Document - Worker’s Requirement to Claim and Consent Document 15‑01‑03.
EXHIBITS
Exhibit 1 - Copy of the Great West Life insurance Benefits received.
Exhibit 2 - Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision 523/09.
Exhibit 3 - WSIAT Decision 856/09.
Exhibit 4 - WSIAT Decision 530/09.
Exhibit 5 – Copies of an Electromyography (EMG) reports dated February 23, 2004; March 14, 2008; August 26, 2009 and July 26, 2009.
ASSESSMENT OF THE EVIDENCE
I reviewed all of the file information, including the following file documentation.
File Documentation
The worker visited the company medical services on July 9, 2009, and the worker noted his right carpal tunnel symptoms and felt that they were related to the work performed as a welder. The worker was advised to follow-up with Dr. Hynes.
The Employer’s Report of Injury/Disease was filed July 13, 2009; the worker reported a gradual onset of wrist discomfort to the work performed on July 10, 2009 to the company medical.
In memo 2 dated July 22, 2009; the decision-maker spoke to the worker who advised that he recently underwent surgery to his right hand for Dupuytren’s Contracture. The worker noted that he had been previously diagnosed with carpal tunnel syndrome (CTS) back in 2006, and as a result of the surgery to his hand he had a flare up of his CTS. The worker also noted that he had first complained about right CTS when he visited the company doctor for his right shoulder complaint for which he had a Workplace Safety and Insurance (the Board) claim established. The decision-maker advised that there was a concern with respect to the fact that the claim was not registered back in 2006.
In memo 4 dated September 28, 2009, the decision-maker noted that although there were numerous mentions of prior CTS and testing in the past a claim had not been established for the CTS. The worker’s current episodes/flare up of CTS was clearly a result of the Dupuytren’s Contracture. Noting that there was no claim file for the CTS in the prior years, and the worker was well aware of the six month filing deadline, entitlement was denied.
On August 18, 2009, the worker was seen by the company doctor who noted the worker had a history of CTS of the right wrist, numbness of the medial distribution, nocturnal pain and numbness. The treating physician noted the worker had CTS as far back as 2006 with an incidental finding on an EMG. The worker recently had surgery on the right hand for Dupuytren’s Contracture in May 2009, which seemed to worsen things.
The worker was assessed by Dr. Derby on August 26, 2009, who noted that the worker had trouble with intermittent tingling of the right hand since about 2003, and more recently some tingling in the left hand as well. The worker had a mild slowing of the distal latency of the median nerve at the right carpal tunnel on testing done in 2004. The worker noted that he did not feel things as well as he used to. The Tinel’s Sign was negative over the carpal tunnel. The worker’s neck movements were satisfactory however the worker has a history of slow progressive spasticity of the lower limbs, which he has been told may relate to myelopathy. The nerve conduction study completed that day showed a significant swelling of the distal latency of the medial nerve at the carpal tunnel bilaterally, worse on the right.
On September 1, 2009, the company doctor advised the decision-maker in a letter that the worker had been seen over the years primarily for his myelopathy, which is a generalized neurological condition for which he has a WSIB claim. The company doctor noted that the worker had a prior mention of CTS in the past, but that it had been all confused by the fact that he also has diffuse myelopathy. The company doctor noted that with the two neurologic diagnoses the CTS was left as an incidental finding. The worker was seen by the company doctor on November 24, 2003 and in the worker’s prior shoulder claim it was indicated that the worker had a three year history of numbness and tingling in the third, fourth and fifth fingers.
The company doctor further noted in the September 1, 2009 letter that he had questioned whether the worker had a neurological problem in the upper extremity, and the worker was referred for an EMG. The EMG showed subtle evidence of trivial CTS bilaterally. The company doctor opined that with the worker’s complicated clinical history there had been evidence of CTS as far back as 2004. The company doctor indicated that the condition preceded his Dupuytren’s surgery of May 2009. The worker had been seen fairly consistently for medical evaluation including numerous tests and specialists’ appointments for his complaints of right upper extremity numbness and pain including paresthesia of the right hand. These were all rolled together as myelopathy, but it was difficult to sort out every nuance in his neurological condition.
The worker was assessed by Dr. Hynes on August 6, 2009 and Dr. Hynes opined that the worker’s CTS might be work-related originally, and that the recent surgery had exacerbated this condition.
The worker was assessed again on September 17, 2009 by Dr. Hynes who noted that the worker’s EMG study confirmed significant compression and a surgical release was discussed.
Worker Testimony
The worker testified that he started working for his employer on June 20, 1979 as a welder.
The worker testified that he has worked as a maintenance welder working from either the shop or doing field work. The worker testified that he did stick welding, MIG and TIG welding and holds a ticket for the MIG process.
The worker testified that he uses electric and pneumatic hand grinders. The worker stated he would use the grinding tools about 10 per cent of the time. The worker stated that grinding is required in the preparation work.
The worker testified that he would have to hold his arm up over his head at arms length and the pneumatic tools are attached to a heavy cable. The worker testified that there are remote controls for overhead cranes.
The worker testified that some tools are vibratory in nature, and you must hold down on the handle to use them. The worker testified that when forming a piece of steel you would have to hold it into position and this could be quite strenuous.
The worker testified there is a lot of use of power tools, and the work is quite positional and he attributes his injury to wear and tear over the years.
The worker testified that he first experienced numbness in his fingers in 1995. The worker testified that he first sought medical treatment in approximately 1995, and he thought the numbness was from his right shoulder.
The worker testified that he has a prior right shoulder injury for pain in his neck, and right shoulder and he saw Dr. Duke in 1995 who diagnosed him with pinched nerve in his neck. The incidental diagnosis was trivial CTS in both the left and right hands. The worker testified that this has been ongoing since 1995. The worker testified that he has been diagnosed with myelopathy by a neurologist at McMaster and it has something to do with the slowing down of the nerves. The worker stated that he just has to live with the myelopathy. There is nothing essentially that he can do to help him. The myelopathy is related to his low back condition as well.
The worker testified that he has Dupuytren’s Contracture and was told by the Specialist, Dr. Hynes that it is caused by his Celtic background and it is not thought to be work-related.
The worker testified that he has also had a prior injury for burns on his feet, which were a result of a piece of metal falling down his clothing and landing in his boot and burning his foot. When this occurred a Form 7 was mailed out to him.
The worker stated that a back claim was established for him by the company doctor completing a Form 8.
The worker testified that he has had CTS and since the surgery his symptoms are about 75 per cent better.
The worker has sought treatment over the years from 1999 onward through the employer for his shoulder injury.
The worker testified that he discussed his CTS with the company doctor after he saw Dr. Duke.
The worker stated that the company doctor said not to muddy the waters and deal with one thing at a time. The worker stated that it was not particularly bothersome then.
The worker testified that he is an automotive hobbyist, and would work on motor bikes and in 2006 he stopped riding motor bikes. The worker testified that he does some welding on cars.
The worker testified that he currently is still working as a welder, and prides himself on not missing time from work.
The worker testified that he is essentially doing his job, and what is expected of him and he is somewhat ambidextrous and is able to use his left hand in the welding process. The worker testified that he still finds grinding and chipping with a pneumatic gun difficult.
The worker testified that he had no treatment for the CTS from 1995 until the surgery. The worker testified that he thought most of his symptoms were a result of his shoulder injury.
Worker Representative’s Submissions
The worker representative argued that there is an issue of the discovery principle in this case. If the worker is unaware of his injury then he is unable to make a claim. It is not until he had to have surgery that he realized that he had CTS which was related to his work duties. The Decision 523/09, Page 5 outlines the discovery principle.
The worker representative argued that the employer was aware of the injury due to the right shoulder claim. The worker representative noted that the company doctor did not report the injury either. The worker representative argued that there was a dereliction of duty on part of the operations as paperwork had come to the file, but no decision was made on the CTS.
The worker representative suggested that there was an additional problem of the employer directing the worker’s treatment, and not having reported the injury. It was in the employer’s best interest not to report the injury.
The worker representative argued that the time limit has been met within the time that the injury was deemed to be disabling.
The worker’s injury is compatible with the use of vibratory tools 20 per cent of the day, which is a risk factor in CTS. The worker is claiming entitlement to physiotherapy and chiropractic treatment. The worker has received some chiropractic treatment from a friend.
The worker requires continued treatment to prevent any further lost time.
Analysis
In my determination of entitlement to the extension of the six month time limit, and initial entitlement, I reviewed the record evidence, policy, submissions, and testimony.
In determining entitlement to an extension of the time limit to claim I note that the worker’s right CTS was not problematic until he required surgery for the Dupuytren’s Contracture. The worker’s condition was exacerbated by the Dupuytren’s Contracture problem. Although the worker does have knowledge of his condition he was not aware of the work-relatedness of the condition to the work performed until August 6, 2009 when he saw the specialist Dr. Hynes. The initial diagnosis was noted when he was receiving treatment under his shoulder claim; in essence the worker did not require any treatment for the CTS and the findings of CTS were incidental to other significant work related problems. There was no discussion with the company physician or the EMG specialist regarding the cause of the CTS or the work-relatedness of the type of injury until the worker saw Dr. Hynes in 2009 who noted that the likely cause was
work-related. In my view the worker became aware that of potential work-relatedness in 2009.
In the WSIAT Decision 523/09 the worker had CTS symptoms for several years prior to the realization that the condition was work-related. This case is similar to decision 523/09.
The balance of evidence supports that the worker reported the injury as work related within the required 6 months time frame, and therefore there is no need to extend the time limit to claim in this case.
There are many risk factors involved in the work of a welder including the use of pneumatic guns, the bending and forming of steel and the vibratory process of grinding that could contribute to CTS; therefore, the balance of evidence supports that the work performed was a significant contributing factor to the worker’s right CTS. Initial entitlement for the right hand injury is granted for a disablement gradual onset.
Entitlement to the right hand surgery is granted. The date of the worker’s CTS surgery was not available at the time of this decision, therefore operations is to determine the date of surgery. The worker is entitled to LOE benefits for the duration of lost time resulting from the surgery.
Entitlement to health care benefits is granted and the nature and duration of these benefits are to be determined by the operating area.
CONCLUSION
Initial entitlement the right hand injury for a disablement gradual onset is granted.
Entitlement to LOE benefits following the carpal tunnel surgery is granted.
Entitlement to health care benefits is granted.
The worker’s objection is allowed.
Dated: August 31, 2010.
P. Jones
Appeals Resolution Officer
Appeals Branch