BETWEEN:
[PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION]
APPELLANT AND:
WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND
RESPONDENT
DECISION #199
Appellant Patricia McPhail, Employer Advisor, representing
the Employer
Respondent Brian Waddell, Solicitor representing the Workers
Compensation Board
Place and Date of Hearing Wednesday, August 27, 2014 Quality Inn on the Hill 150 Euston Street
Charlottetown, Prince Edward Island
Facts and Background
1. This matter is an appeal of Internal Reconsideration Decision IR #[PERSONAL IFORMATION] dated May 27, 2014, which denied the Appellant Employer’s request for reconsideration. [Appeal Record – Tab 1]
2. On January 17, 2014, the Worker attended at the office of his doctor, Dr. Jason Chan, with a complaint of sudden shooting pain from his right wrist to his elbow stemming from work, which he attributed to [PERSONAL IFORMATION]. Dr. Chan diagnosed the Worker with carpal tunnel syndrome. Dr. Chan indicated in his report that the Worker had suspicions of carpal tunnel syndrome in the past. [Appeal Record – Tab 2]
3. The Worker was provided a note from Dr. Chan indicating that he should be placed on modified duties for two weeks, minimizing work that involved excessive flexion/extension of his wrist. The Worker was referred to physiotherapy and a wrist splint for Carpel Tunnel Syndrome (CTS) was recommended. [Appeal Record – Tab 3]
4. The Worker’s Report Form 6 dated January 20, 2014, was received by the Workers Compensation Board on January 21, 2014. An Employer’s Report Form 7 was filed with the Workers Compensation Board on January 21, 2014. [Appeal Record – Tab 4]
5. The Entitlement Officer spoke with the Worker regarding his injury on January 21, 2014; which is summarized in an Interoffice Memorandum of the same date. The Worker stated that he had to [PERSONAL IFORMATION] 6 times per shift and that he hadn’t been having any issues with his wrist prior to this day. Due to the [PERSONAL IFORMATION] and the awkward space they had to get into [PERSONAL IFORMATION], the Worker likened it to a dog house and commented that the way he pulled and moved his wrist to push the “male” end onto the “female” end, he felt a sharp pain up his right arm. He advised that he missed the evening shift on January 17th and then his next scheduled shift was January 22nd. [Appeal Record – Tab 5]
6. The Entitlement Officer issued a decision letter dated January 21, 2014, approving physiotherapy for the Worker for a right wrist injury. [Appeal Record – Tab 6]
7. A decision letter on January 22, 2014, was issued by the Entitlement Officer approving the claim for benefits for an injury which occurred on January 16, 2014. The diagnosis accepted under the claim was for “right wrist strain.” [Appeal Record – Tab 7]
8. The Worker attended his first physiotherapy session on January 20, 2014. [Appeal Record – Tab 8]
9. The Worker attended an appointment with Dr. Chan on January 31, 2014. He indicated to Dr. Chan that apparently no modified duties existed. Dr. Chan placed the Worker off work. Dr. Chan suggested that the Worker remain off work until February 15, 2014 when he was to be reassessed by Dr. Chan. The diagnosis at that time was tendinopathy. [Appeal Record – Tab 9]
10. On February 3, 2014, in a text message from his supervisor, the Worker was offered modified work [PERSONAL IFORMATION] for 12 hours per night for four nights. The hours were from 6:00 p.m. to 6:00 a.m. [Appeal Record – Tab 10]
11. On February 4, 2014, the Worker turned down the offer for modified work due to concerns about being able to stay awake during the daytime hours for his physiotherapy appointments and in using his vehicle for travel. [Appeal Record – Tab 10]
12. In another text message on February 4, 2014, the supervisor clarified that the Worker could be driven to New Brunswick by [PERSONAL IFORMATION] and they would try to work around the Worker’s physiotherapy appointments. [Appeal Record – Tab 10] 13. After it was suggested in the text message that Appellant could work around
“check with comp” (Workers Compensation) to see about the modified duties and that Workers Compensation would call [PERSONAL IFORMATION]. [Appeal Record – Tab 10]
14. The Worker attended physiotherapy sessions on January 23, 28, 31 and February 3 and 4, 2014. The physiotherapist requested an extension of treatments beginning February 18, 2014 for four visits over two weeks. The Report indicated that the Worker was ready to start back to work on modified duties. [Appeal Record – Tab 12]
15. On February 12, 2014, the Worker attended an appointment with Dr. Chan and the diagnosis was still tendinopathy. [Appeal Record – Tab 13]
16. On February 18, 2014, the Entitlement Officer approved the extension of physiotherapy for the Worker for four treatments over two weeks from February 18 to March 3, 2014. [Appeal Record – Tab 14]
17. On February 21, 2014, the Case Coordinator reviewed the Claim with the Worker and [PERSONAL IFORMATION], the employer’s contact. [PERSONAL IFORMATION] informed the Case Coordinator that the Worker’s manager and supervisor had both offered modified duties sitting in a truck with another driver. In the Case Coordinator’s conversation with the Worker, the Worker indicated to her that no one spoke to him about modified duties. [Appeal Record – Tab 16]
18. On February 21, 2014, the Case Coordinator made a referral to Occupational Therapy for the purpose of ease back. [Appeal Record – Tab 17]
19. The Worker returned to work on February 23, 2014, to modified duties.
20. Shortly after the Worker returned to work, he left his employment with the Appellant. The Appellant filed a Request for Internal Reconsideration on February 25, 2014, along
with a request for an extension to file additional arguments pending the release of the Worker’s case file to the Employer Advisor. Additional arguments were filed by the Employer Advisor on behalf of the Appellant in a letter dated April 9, 2014. [Appeal Record – Tab 20]
21. The IRO issued a decision letter on May 27, 2014, denying the Appellant’s request for internal reconsideration. The Appellant filed a Notice of Appeal with the Workers Compensation Appeal Tribunal on May 29, 2014. [Appeal Record – Tabs 1 and 23]
Issues
22. Did the Board err in approving the Worker for a condition for which he was not diagnosed?
23. Is there evidence that the Worker’s diagnosed condition arose out of and in the course of employment in accordance with POL-91, “Repetitive Strain Injuries”?
24. Was the Worker paid benefits during a period for which he was non-compliant in accordance with POL-93, “Return to Work”?
Appellant’s Argument
25. The Appellant took the position that the Worker’s condition was repetitive strain injury as opposed to a right wrist strain as found by the Respondent’s entitlement officer.
26. The Appellant stated that the Entitlement Officer failed to do a proper assessment to determine the personal injury to the Worker.
27. The Appellant gave much weight to the original Form 8 of Dr. Chan dated January 17, 2014 in which the diagnosis was carpal tunnel syndrome. The Report stated, “He has had
suspicions of carpel tunnel syndrome in the past but has never been a big problem until this morning.” [Appeal Record – Tab 2]
28. The Appellant also relied on the inter-office memo of January 21, 2014, in which after a discussion with the Worker, the Entitlement Officer wrote, “He stated that he has not been having any issues with his wrist pain to this day.” [Appeal Record – Tab 5]
29. The Appellant suggested Dr. Chan’s comments were more reliable than the Worker’s comments and, therefore, gave greater weight to the injury being a repetitive strain injury.
30. The Appellant further argued that Policy POL-91 should have been applied given the original diagnosis of carpal tunnel syndrome. The Applicant argued that the Board failed to do an evaluation to see if there was an association between medical condition and exposure to task risk factors.
31. The Appellant submitted that the Board failed to properly apply Policy POL-68 in adjudicating this claim, as it related to medical history, considering all relevant information – in particular, the Worker’s diagnosed condition and indication of prior issues to his wrist.
32. Finally, the Appellant argued that the Worker was paid benefits for a period for which he was non-compliant. The Appellant commented about the Worker’s discussions with his doctor and the Board regarding that there were no modified duties, the fact that he made reference to physiotherapy appointments when he had none scheduled and that he turned down reasonable work.
33. The Appellant was of the view that the Worker was not in keeping with his obligations under Policy POL-93 “Return to Work”. The Appellant submitted it was their view that the Worker was intentionally not cooperating with the Appellant.
Respondent’s Argument
34. The Respondent argued that it was clear that the Worker suffered an injury arising out of and in the course of his employment on January 17, 2014 when he was attaching a hose to a trailer and experienced shooting pain from his wrist to his elbow in his right arm. Those facts were not disputed. [Appeal Record – Tab 4]
35. The Worker’s Form 6 was received January 21, 2014 which stated that the Worker advised his supervisor on the morning of January 17 and when asked to describe fully what happened to cause the injury or accident he stated, “While [PERSONAL IFORMATION] experienced shooting pain from what felt like from wrist to elbow of Rt arm.” [Appeal Record – Tab 4]
36. In Form 6, the Worker indicated that this was not a condition developing over a period of time and it was not a relapse or recurrence of an earlier work-related condition. At question 12, he answered that he had not had a similar injury before.
37. The Appellant’s Form 7 at question 7 indicated that they did not know of any previous pain or injury in the area of the Worker’s present injury. They also indicated that the injury as described by the Employee claimed that, “…[PERSONAL IFORMATION] and felt pain in right wrist – made him feel sick. Saw doctor at 11:30 and needs physio and modified duties for 2 weeks. Missed night of 17/18 Jan. Then on days off.” [Appeal Record – Tab 4]
38. The Respondent also reiterated that in Dr. Chan’s initial report, although he made reference to the Worker’s suspicions of carpal tunnel syndrome in the past, he said that it had never been a big problem until that morning. [Appeal Record – Tab 2]
39. The Respondent argued that Dr. Chan’s report stated that the Appellant was hooking up a pipe and experienced sudden shooting pain from right wrist up to elbow and had to get a
friend to drive him home. In that report, Dr. Chan also indicated that there was no asymmetry or deformity; no fractures evident; negative Tinels and Phalens test; no weakness in hands.
40. The Respondent also argued that initial physiotherapy report dated January 30, 2014, made no reference to carpal tunnel syndrome or repetitive strain. The physiotherapist commented about the Worker’s description of the triggering event of putting a hose on the trailer and feeling a sharp pain go through right forearm. [Appeal Record – Tab 8]
41. The Respondent submitted that even if the Worker had a pre-existing physical condition, which was only mentioned in the first physician’s report of Dr. Chan, and was not mentioned after that time, the Worker would still be entitled to be compensated for the full injurious result until he had reached a plateau in medical recovery.
42. The Respondent agreed on the importance of Form 6 and its accuracy and reliance and reiterated that the Worker did not report a repetitive strain injury on that date.
43. The Respondent stated that the Worker was compliant in regard to modified duties. The Respondent stated that suitable work was determined by the Workers Compensation Board.
44. The Respondent argued that there was no evidence that modified duties were offered to the Worker on January 20, 2014 or any date other than February 4, 2014 and submitted that the Respondent’s log sheet showed that calls were not returned to the Respondent by the Appellant.
Analysis/Decision
45. A worker’s injury or condition is compensable only if the injury or condition arises out of an in the course of his employment, pursuant to Section 6(1) of the Workers
Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 and Board Policy POL-71 “Arising Out Of and In the Course of Employment.”
46. It is clear that the Worker suffered an injury on January 17, 2014.
47. The Worker’s Form 6 clearly described what occurred on January 17, 2014, [PERSONAL IFORMATION] experienced shooting pain form what felt like from wrist to elbow of Rt arm.”
48. In Form 6, the Worker indicated it was not a condition that developed over time. He also indicated he had not had a similar injury before.
49. The Appellant’s Form 7 at question 7 indicated that they did not know of any previous pain or injury in the area of the Worker’s present injury. They also indicated that the injury as described by the Employee claimed that, “…[PERSONAL IFORMATION] and felt pain in right wrist – made him feel sick. Saw doctor at 11:30 and needs physio and modified duties for 2 weeks. Missed night of 17/18 Jan. Then on days off.” [Appeal Record – Tab 4]
50. The Respondent, by virtue of Form 6, did not accept repetitive strain injury as that was not what the Worker was claiming. Granted, Dr. Chan did make note in his report a diagnoses of carpel tunnel, however, Dr. Chan amended that by January 31, 2014 to a diagnosis of tendinopathy. [Appeal Record – Tab 9]
51. In that Report, Dr. Chan also indicated that there was no asymmetry or deformity; no fractures evident; negative Tinels and Phalens test; no weakness in hands.
52. Also, with regard to the Tinel’s and Phalen’s test, apparently this test is used to assist with the diagnosis of carpal tunnel syndrome. Dr. Chan noted that the Worker had negative Tinel’s and Phalen’s test. [Appeal Record – Tab 1]
53. Dr. Chan’s second Report of January 31, 2014, made no mention of repetitive strain and provided a diagnosis of tendinopathy. [Appeal Record – Tab 9]
54. Also, the initial physiotherapy report made no reference to carpal tunnel syndrome or repetitive strain. [Appeal Record – Tab 8]
55. The Tribunal finds that the Worker’s claim should not have been adjudicated using POL-91 Repetitive Strain Injuries. As previously stated, Form 7 made no mention of any prior existing injuries. The first report from Dr. Chan made note of a prior issue and a diagnosis of carpal tunnel. Less than two weeks later, the diagnosis had changed to tendinopathy and there was no mention of a prior existing condition.
56. The Tribunal finds that a review of the Worker’s medical history would not have changed the accident that occurred on January 17, 2014 as it was apparent to all that this accident arose out of and in the course of employment. Even if it made worse a pre-existing condition, that exacerbation would also be compensable under the Act. Even if the Worker did have carpel tunnel syndrome and it was triggered by the incident of January 17, 2014, the Worker would still be entitled to compensation.
57. Section 6(9) of the Act states:
“Where an accident caused personal injury to a worker and that injury is aggravated by some pre-existing physical condition inherent in the worker at the time of the accident, the worker shall be compensated for the full injurious result until such time as the worker, in the opinion of the Board, has reached a plateau in medical recovery”.
58. Even if the Worker had a pre-existing physical condition, which was only mentioned in the first physician’s report of Dr. Chan, and was not mentioned after that time, the Worker would still be entitled to be compensated for the full injurious result until he had reached a plateau in medical recovery.
59. In terms of POL-68, “Weighing of Evidence”, the Tribunal finds that the relevant information relating to the case was considered. There was one indication that the Worker may have experienced symptoms before. All of the remaining medical evidence made no mention of any pre-existing condition or any carpal tunnel syndrome.
60. POL-68, specifically #2, states,
“…Workers Compensation Board will examine the evidence to determine whether it is sufficiently complete to allow a decision to be made. If the Workers Compensation Board determines more information is required to make a decision, the Workers Compensation Board will work with the worker, employer, and health care providers to obtain the necessary information.”
61. The Respondent obtained information. They had physiotherapy reports, physician’s reports, and none of them mentioned carpal tunnel syndrome or a pre-existing injury. The evidence of Dr. Chan and of the physiotherapist is factual and objective.
62. With regard to whether the Worker was paid benefits during a period for which he was not compliant in accordance with Policy POL-93 Return to Work, the Tribunal finds that the Worker was compliant in accordance with Policy POL-93.
63. Dr. Chan made notes from his January 31, 2014 visit with the Worker in which the Worker repeated that no modified duties existed. This is alleged to be inconsistent with the text messages from the employer; however, the doctor’s report was from the 31st
of January and the text messages were from the 3rd and 4th of February. On Monday, February 3rd, two texts were sent from the Worker regarding light duties. On Tuesday,
February 4th, the Worker commented that driving over to New Brunswick would be a bit much for his vehicle and he would have to stay awake for physio visits that are at random times. That same day, a text was sent from the employer stating that they may be able to work around the physio appointments and that he could hitch a ride with the first guy on nights. Later that day the Worker stated that he was checking with comp [Workers Comp].
64. Dr. Chan had originally indicated in his report that the Worker was able to return to work on modified or alternate duties for two weeks following his original date of injury with limitations placed on him for excessive flexion and extension of the wrist. There was no evidence of the employer making an effort to have modified duties for the Worker until February 3. [Appeal Record – Tabs 2 and 3]
65. The Respondent spoke with the employer on February 4th; the same date that the Worker said he would contact Workers Compensation. The Entitlement Officer stated that the employer had advised her of the modified work. The Entitlement Officer noted that she discussed it with her manager and they agreed it would not be appropriate or productive in his recovery. The Officer asked her to consider any other modified work and get back to her. [Appeal Record – Tab 11]
66. There is no evidence, in writing, that any representative of the Appellant had any contact with anyone at Workers Compensation. It was, in fact, the Entitlement Officer on February 20th who contacted the Appellant because she had not heard back from them regarding modified duties.
67. There was an email sent on the same day from the Appellant to the Entitlement Officer stating that they did try to return the call and left two messages, and indicated that they had been tied up with other issues the last few weeks. [Appeal Record – Tab 18]
69. The Tribunal notes that “suitable work” is defined in Policy POL-93 as:
“Suitable work” means work that a worker has the necessary skills to perform and is medically able to perform, and that does not pose health or safety hazards to the worker or co-workers, as determined by the Workers Compensation Board.
[Employer’s Record – Tab 7]
70. The last line of the suitable work definition reads “as determined by the Workers Compensation Board.” It is not up to the Appellant or the Worker to determine whether he or she has the skills to perform and is medically able to perform a specific job. It is not for the Worker to determine whether it poses a health or safety hazard to himself/herself worker or a co-worker.
71. The Worker cannot turn down offers of alternate work; it is for the Board to turn down offers of work, which, in fact, they did on February 4, 2014.
72. The Worker received benefits and the Worker was compliant. It is unfortunate that the Appellant does not seem to appreciate the fact that it was not the Worker’s decision whether to turn down duties. In the future, our suggestion to this Appellant would be to set out in writing what the modified duties are and to send this immediately to the Board. The Tribunal would also suggest that the Appellant not allow over two weeks to pass before there is written correspondence regarding modified duties.
73. The Tribunal finds that the Worker was paid the benefits for which he was entitled.
74. The Tribunal finds that all three issues brought forward by the Employer are denied in that the Board did not err in approving the worker for a condition for which he was not diagnosed; there was no evidence that the Worker’s diagnosed condition arose out of and in the course of employment in accordance with Policy POL-91 Repetitive Strain Injuries
and no evidence that the Worker was non-compliant and was paid benefits during that time.
75. The Appellant’s appeal is dismissed.
76. We thank counsel for their materials and submissions.
Dated this 14th day of January 2015.
__________________________________ P. Alanna Taylor, Chair
Workers Compensation Appeal Tribunal Concurred:
Stu Lavers, Employer Representative
Leo Cheverie, Worker Representative
