DECISION NUMBER:
20220076
OBJECTING PARTY:
WORKER
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
HEARING:
VIDEOCONFERENCE
HEARD by:
HELEN SHAW, APPEALS RESOLUTION OFFICER
DATED:
MAY 26, 2022
ISSUE
The worker is seeking entitlement for a recurrence of bilateral carpal tunnel syndrome (CTS) and C7 nerve root compression in October 2019, including loss of earnings (LOE) benefits from October 17, 2019, and recognition of a permanent impairment, denied in the Case Manager decisions of April 22, 2020 and October 27, 2020.
BACKGROUND
The worker was employed as legal counsel and developed heaviness and tingling in the left arm, wrist, hand and fingers on October 12, 2011. By November 2011, similar symptoms had developed in the dominant right arm, wrist, hand and fingers. The worker attributed the symptoms to prolonged computer use and poor office ergonomics. The worker was in their early thirties when the injury developed.
A decision dated November 14, 2012 denied entitlement for bilateral CTS. The worker objected to the decision and a decision by an Appeals Resolution Officer (ARO) dated May 28, 2014 allowed initial entitlement for bilateral CTS and C7 nerve root compression.
Following the allowance of initial entitlement, the worker was paid periods of full and partial LOE benefits from October 13, 2011 to March 19, 2012. Although the worker reported returning to regular hours and duties by the end of March 2012, LOE benefits were paid for occasional days of lost time for medical treatment up to August 7, 2014. No permanent or ongoing impairment was recognized in the claim.
On October 8, 2019, the worker submitted a Worker’s Continuity Report (Form REO6), indicating they had been having treatment with a chiropractor and physiotherapist since September 4, 2019 for recurring symptoms in the neck and arms. The worker had changed jobs at the end of March 2017, but was still doing a similar type of legal work. The Employer’s Continuity Report (Form WREO7) dated November 27, 2019 reported the worker had been off work since October 17, 2019.
The Case Manager decision of April 22, 2020 denied entitlement for a recurrence of CTS and C7 nerve root compression, noting a gap in medical continuity between June 2014 and July 2016. The denial was confirmed in a reconsideration decision dated October 27, 2020.
AUTHORITY
Operational Policy Manual Published
15-02-05 Recurrences February 1, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is no entitlement in this claim for a recurrence of bilateral CTS and C7 nerve root compression in October 2019. My reasons are explained below
According to operational policy 15-02-05, a worker may be entitled to benefits for a recurrence of a work- related injury/disease if the worker experiences a significant deterioration that:
does not result from a significant new incident/exposure, and
is clinically compatible with the original injury/disease.
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. Indicators of a significant deterioration may include:
the need for active (non-maintenance) clinical treatment
a change in functional abilities, or
a change in the ability to perform a job or suitable occupation.
The worker submitted an Appeal Readiness Form dated February 5, 2022, relying on a previous submission dated October 8, 2020 and a submission dated February 5, 2022. The worker also provided testimony and oral arguments at the hearing.
The employer is not participating and did not provide a Respondent Form.
In the decisions of April 22, 2020 and October 27, 2020, entitlement was denied for a recurrence in October 2019 because the Case Manager determined there was a two year gap in medical continuity, from June 2014 to July 2016 and they were unable to relate the problems in October 2019 to the injury in this claim.
The worker argued that the Case Manager decisions erred in their reliance on continuity as a determining factor, noting continuity is not required by the operational policy. I agree with the worker’s position on that point. Operational policy 15-02-05 states in part that the decision-maker may consider whether a worker has experienced continuing symptoms since the original injury/disease. Generally, continuing symptoms are an indicator of a causal link, but they are not required to establish a causal link. In my view, entitlement for the recurrence will depend on an analysis of compatibility.
In considering the matter of compatibility, I have been guided by the ARO decision of May 28, 2014 to determine exactly what was allowed in the claim. That ARO decision allowed entitlement for a repetitive strain injury, specifically diagnosed as bilateral CTS and C7 nerve root compression.
The worker testified that the problems from bilateral CTS and C7 nerve root compression did not resolve in 2014. It is the worker’s position that they have experienced 10 years of continuous flare-ups, except for a one year period when the worker took a leave of absence and went to Europe. The worker testified that there was a worsening of symptoms in October 2019, resulting in lost time from October 17, 2019 to December 31, 2019, followed by a return to work on reduced hours from January 1, 2020 to February 2, 2020. The worker is seeking LOE benefits for the lost time from October 17, 2019 and recognition of a permanent impairment. In written submissions, the worker had asked for reimbursement for out-of-pocket medical expenses, but indicated at the hearing that they were no longer seeking coverage for those expenses.
On the matter of ongoing complaints of neck and bilateral arm symptoms, the worker argued that the Case Manager decisions did not give sufficient weight to the chiropractor’s letter of April 29, 2020 or to the ergonomic assessment from the employer dated January 16, 2016 and failed to consider the arm and elbow pain reported in October 2015.
When asked why there was no report of ongoing problems to the WSIB between August 2014 and October 2019, the worker testified that they had hoped to manage the symptom on their own and did not realize the importance of reporting the continuing symptoms to the WSIB.
I have considered the worker’s position and find the weight of the evidence suggests that by August 2014, the worker’s original bilateral arm symptoms that were attributed to the work related bilateral CTS and C7 nerve root compression had largely resolved. In reaching that conclusion, I specifically note the following:
When the worker first became aware of symptoms on October 12, 2011, it involved a tingling sensation in the left wrist and a limp, heavy feeling in the left arm. The worker sought medical treatment on October 17, 2011 and was diagnosed with left CTS, based on positive Tinel’s and Phalen’s signs.
A physiotherapy report dated October 28, 2011 noted the worker was presenting with CTS and a C7 nerve root compression.
By November 2011, the worker was developing similar but less severe symptoms in the right wrist and arm. A physiotherapy report dated November 9, 2011 stated the worker was presenting with significant pain and numbness in the neck and both arms.
The worker returned to work on November 28, 2011, after a month off work. Ergonomic changes were recommended for their workstation, as well as voice recognition software to reduce the amount of keyboard use.
A physiotherapy report dated January 18, 2012 indicated the worker had shown remarkable improvement in cervical range of motion and neural tension and presented that day with restriction of the second rib at T2/3 and tightness in the pectoralis and upper traps.
A medical chart note from the family doctor dated February 23, 2012 indicated the worker was experiencing less frequent episodes of numbness and had started using voice recognition software to minimize typing.
An EMG on February 29, 2012 was normal. In a letter dated April 9, 2013, the worker’s doctor theorized that the negative results on the EMG were because the worker’s symptoms had already improved with physiotherapy, splinting, improved ergonomics and reduced work hours.
A chart note from the worker’s doctor dated June 14, 2012 indicated the worker’s symptoms had resolved in April 2012, with physiotherapy, splinting and ergonomic changes, but worsened in May 2012 when the worker returned to full time work with more typing.
On the Worker’s Report of Injury/Disease (Form 6) dated September 12, 2012, the worker reported pain in both arms, wrists, hands and fingers.
A physiotherapy report dated September 19, 2012 indicated the worker had been attending regular physiotherapy treatment in the previous year for thoracic outlet/carpal tunnel syndrome, attributed to poor office ergonomics, increased workload stress and repetitive strain.
In a letter dated May 16, 2013, the worker confirmed they had recovered from the injury, stating, “I am extremely grateful that I have recovered”.
In the final paragraph on page 7 of the ARO decision of May 28, 2014, it was noted that “the worker continues to be virtually symptom-free following their treatment and the implementation of the ergonomist’s recommendations”.
Chart notes from Physiotherapy showed the worker was last seen on July 24, 2014.
LOE benefits for medical appointments were last paid on August 7, 2014.
The worker has provided evidence of intermittent treatment since July 2014, but I find it does not establish ongoing symptoms that are compatible with the work related bilateral CTS and C7 nerve root compression allowed in this claim. I note the following specific evidence that led me to this conclusion:
The worker reported seeing a chiropractor from August 2014 until March 30, 2017 when the worker moved to Toronto. The chiropractor sent a letter dated April 29, 2020, noting the worker was seen for treatment from July 30, 2014 to September 19, 2014, October 13 and 16, 2015, March 16, 2016, April 13, 2016 and March 30, 2017. The letter from the chiropractor suggests the worker was seen for multiple areas of concern, including neck and shoulder tension, tension headaches, right elbow pain with resulting tingling in the first and second digits of the right hand, tingling in the first and second digits of the left hand, anterior head posture, elevation of both shoulders, hypertonicity and tenderness in the thoracic spine, hypertonicity of the cervical spine and low back tenderness. The letter indicated the worker received chiropractic treatment for these various postural issues but there was no reference to specific treatment for bilateral CTS or C7 nerve root compression.
There is an ergonomic report dated January 21, 2016. The worker reported acute low back pain and pain above the right elbow when the worker was still an employee with the first employer. There was no indication the ergonomic assessment addressed neck or bilateral CTS symptoms.
On July 19, 2016 there was a prescription for physiotherapy for left wrist pain. The diagnosis and origin of the left wrist pain was not identified.
On January 9, 2017 there was a prescription for physiotherapy and massage therapy for neck pain but the diagnosis and origin of the neck pain was not identified. Receipts showed massage therapy treatment on February 1, 2017 and February 14, 2017.
On June 21, 2017, the worker sent an email to their new employer regarding a two week history of tingling in the arm and hand, but this was attributed to a new workplace exposure. The worker reported that the symptoms started within two to three months after starting the new job on April 1, 2017. The worker noted that not all of their ergonomic equipment had moved from the previous employer. An ergonomic assessment was done that day as well. The email noted the worker would start training on new voice recognition software. No claim was made for a recurrence or a new claim. There are receipts for chiropractic visits from June 21, 2017 to June 28, 2017.
On February 2, 2018 there was a prescription for massage therapy for neck and shoulder pain. No diagnosis was provided and there was no information to establish that it was related to C7 nerve root compression.
Chart notes from Rehab Centre showed visits from April 12, 2018 to September 28, 2018 for the shoulders, mid-back and cervical area. There was no specific reference to treatment for bilateral CTS or C7 nerve root compression.
Chiropractic chart notes from September 2018 to November 2019 showed similar areas of complaint in the shoulders, upper back, neck tension and headaches/head tension, with treatment of the cervical, thoracic and lumbar spine, but there was no reference to a diagnosis of bilateral CTS or C7 nerve root compression.
In an attachment to the Form REO6, the worker reported that in the first week of September 2019, while typing on the computer at work, they noticed a strong feeling of tingling in the left thumb and a slight feeling of limpness in the left arm, from the shoulder to the wrist. The worker reported that in the days and weeks that followed, there was pain in the neck and shoulders, tension and heaviness in the left arm and a slight tingling in both wrists and fingers. The worker claimed the symptoms were exactly the same as in 2011. The worker confirmed that there had been a recovery from the 2011 injury over the course of several months. The worker noted that the new job consisted of working at a computer, providing legal advice in writing, conducting legal research and engaging in email correspondence for three or four hours per day, which was essentially the same type of work as with the previous injury.
A Health Professional’s Report (Form 8) was submitted on October 11, 2019. The report identified a prior similar episode in 2011 but did not provide information about continuity. The diagnosis was CTS and muscle strain of the neck and upper back. Tinel’s and Phalen’s signs were identified as positive. The chart note on that date recommended EMG/nerve conduction studies and noted that a requisition was given to the worker. The worker confirmed in testimony that there had been no EMG studies done since February 2012 and no specialist referrals to confirm the diagnosis. The worker testified that it was difficult to get testing done because of COVID 19, but if the requisition was given to the worker in October 2019, it was prior to the first COVID 19 restrictions.
The worker attended chiropractic treatments from October 31, 2019 to April 21, 2020, reporting tingling in both hands/wrists and neck/back tension. The chart notes indicated the worker had the same issue in 2011 with a few flare ups, but they calmed down. Cervical radiculopathy was a possible diagnosis, but the neuro evaluation was within normal limits, which does not support a C7 nerve root compression. Myofascial thoracic outlet syndrome was also suspected, which is not part of the entitlement in this claim. The worker was treated for hypomobile joints and hypertonic musculature.
The worker was also seen by the family doctor on November 4, 2019, December 2, 2019 and January 6, 2020 for bilateral hand pain.
On December 10, 2019 a cervical spine x-ray was normal and did not show findings compatible with C7 nerve root compression.
Chart notes from Sports Medicine Centre from August 5, 2020 to September 23, 2020 indicated the worker was having some pain in the left arm with some tingling into the thumb, likely due to the home office set up.
In the worker’s letter of October 11, 2020, and confirmed in testimony, the worker reported taking a one year leave of absence from work from October 2014 to September 2015 for personal reasons. During that year the worker was not in Canada, was not working at a desk job and was not exposed to the usual job demands. That would explain the gap in treatment from September 2014 to October 2015, but it does not address the compatibility issue presented by the evidence of treatment for multiple areas of physical complaints.
In November 2020 the worker went on parental leave.
A January 26, 2022 report from Physio noted treatment started on May 5, 2021, with treatment in May, July, September, October, November and December 2021 and in January 2022. The worker initially presented in May 2021 with neck and shoulder tension and episodes of tingling in the first and second digits of both hands over the two previous weeks after a few hours of repetitive typing. The worker had done very little typing while on parental leave. Tingling of the first and second digits continued, as well as neck and shoulder tension. The history of diagnoses was identified as double crush syndrome, thoracic outlet syndrome, neck compression and CTS. The worker presented with significant anterior head posture and increased thoracic kyphosis, hypertonicity and tenderness in the cervical, thoracic and lumbar spine and facet joint restrictions in the cervical, thoracic and lumbar spine.
The worker noted that the physiotherapist also diagnosed thoracic outlet syndrome and argued that CTS should be understood as part of a broader repetitive strain injury, with multiple symptoms occurring at once. The worker argued that it can be tricky to determine the exact location of a nerve impairment.
I have considered the argument, but I am not persuaded it supports ongoing entitlement or entitlement for a recurrence in October 2019. Entitlement is established in a claim for specific areas of injury and diagnoses. The ARO decision of May 28, 2014 allowed initial entitlement only for bilateral CTS and C7 nerve root compression and not for thoracic outlet syndrome or other repetitive strain injuries. Having entitlement for one type of repetitive strain injury does not automatically establish entitlement for other types of repetitive strains involving other areas of the body. I find it is not appropriate to conflate different types of repetitive strain injuries, as they are not all compatible with the same occupational risk factors. The worker has initial entitlement in this claim for bilateral CTS and C7 nerve root compression and not for other types of repetitive strains and areas of injury.
Contrary to the worker’s argument, it is possible to obtain medical evidence, such as EMG/nerve conduction studies or an MRI, that can establish the likely source of a nerve impingement. No reasonable explanation has been provided as to why the worker’s physicians have not arranged for further diagnostic testing or specialist referrals in order to clarify the origin of the current symptoms.
Noting the evidence supports that the worker’s symptoms of bilateral CTS and C7 nerve root compression in this claim had resolved by August 2014 and the medical evidence between 2014 and 2019 showed treatment for various other physical complaints including the cervical, thoracic and lumbar spine, right elbow, shoulders and head pain, I am unable to establish that the diagnosis of CTS in October 2019 is clinically compatible with the injury in October 2011. I note the worker started a new job with a new employer on April 1, 2017, which also makes it difficult to establish a causal link between the symptoms reported in October 2019 and the injury in October 2011.
At the hearing I questioned the worker about whether or not they had considered submitting a new claim for the symptoms reported in October 2019, noting the worker had started a new job with a different employer and reported a change in the ergonomic set-up of their workstation. The worker testified that they had contacted the WSIB about the worsening symptoms in October 2019 and were told it should be submitted as a recurrence of this claim. The worker believes entitlement should be allowed as a recurrence but would like entitlement considered under a new claim, if entitlement for a recurrence cannot be established.
CONCLUSION
I conclude there is no entitlement for a recurrence in this claim for bilateral carpal tunnel syndrome and C7 nerve root compression in October 2019. There is no entitlement for LOE benefits from October 17, 2019 and no entitlement for an ongoing impairment beyond August 7, 2014. There is no entitlement for a permanent impairment.
The operating area is directed to establish a new claim and determine if there is entitlement for a new injury arising in September/October 2019.
The worker’s objection is denied.
DATED May 26, 2022
Helen Shaw
Appeals Resolution Officer Appeals Services Division