SUMMARY. Carpal tunnel syndrome; Permanent impairment [NEL] (rating schedule) (AMA Guides) (functional impairment).

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1 SUMMARY DECISION NO. 1033/98 Carpal tunnel syndrome; Permanent impairment [NEL] (rating schedule) (AMA Guides) (functional impairment). The worker was a stope miner for four years beginning in In 1991, he was diagnosed with carpal tunnel syndrome. The Board allowed the worker's claim for carpal tunnel syndrome but denied a NEL award. The worker appealed. Although EMG and nerve conduction studies were reported to be normal, the worker's neurosurgeon and surgeon both diagnosed the worker with carpal tunnel syndrome. The absence of abnormal EMG studies did not mean that the worker did not have a permanent impairment. The evidence established that the worker had a functional loss as a result of his condition. He was entitled to be assessed for a NEL award. The appeal was allowed. [8 pages] DECIDED BY: Kenny; Beattie; Nipshagen DATE: 21/07/98 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 572/97 (1997), 43 W.S.I.A.T.R. 260 refd to

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1033/98 [1] This appeal was heard in Sault Ste. Marie on July 14, 1998, by a Tribunal Panel consisting of : M. Kenny : Vice-Chair, G. Nipshagen : Member representative of employers, D. Beattie : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the August 12, 1997, decision of Board Appeals Officer K. Wuori. The Appeals Officer decided that the worker was not entitled to a non-economic loss ( NEL ) assessment for a permanent impairment from carpal tunnel syndrome because she concluded that there was insufficient medical evidence to find that the worker had a permanent impairment. She also found that the worker was not entitled to health care costs, such as travel costs for visits to his surgeon, because she had concluded that he did not have a permanent impairment. [3] The worker attended the hearing and represented himself. THE EVIDENCE [4] The worker testified. The Panel also considered the Case Record and an Addendum. THE ISSUES [5] The worker worked as a stope miner for about four years (beginning in 1987). In that job, he drilled steadily, operating jackleg and stoper drills an average of five to six hours per shift. He also operated an electric slusher which was a source of vibration. [6] In 1991, the worker was diagnosed by neurosurgeon Dr. Adegbite as having carpal tunnel syndrome (even though his EMG and nerve conduction studies reported normal findings). That diagnosis was later confirmed by plastic surgeon Dr. Woolner - and Dr. Woolner subsequently performed surgery on both of the worker s wrists. The Board allowed the worker s claim for bilateral carpal tunnel syndrome. Although the Board allowed the claim, after the worker s surgery, the Board concluded that the worker was not entitled to NEL compensation because it decided that he did not have a permanent impairment from this condition. [7] The Panel had to decide: Does the worker have a permanent impairment from the wrist/hand condition which was diagnosed as carpal tunnel syndrome?

3 Page: 2 THE REASONS (i) The worker s evidence and the Appeals Officer s decision [8] The Appeals Officer s decision set out the following summary of the worker s arguments and evidence: he was granted entitlement in 1991 even though his EMG studies were normal, his doctor informed him he falls within a small percentage of people who have normal electrodiagnostic (EMG) studies, but show other positive signs of CTS his hands improved initially after surgery but then his symptoms recurred he has been unable to perform any of the recreational activities he performed prior to his injury, at any time subsequent, he failed the hand dexterity test [given by a potential employer], he continues to be awakened at night by symptoms he participates in a special needs program in his college, because his hands are not strong enough to do all the note taking on his own, his hands fall asleep on him regularly and his pain is like a toothache, his hand strength is reduced and he drops things all the time, his doctors have told him he has a permanent impairment, he wants reimbursement for travel expenses to be reassessed by his doctor, because reimbursement prior to 1995 had been paid in his claim [9] Having heard the worker s testimony at the Tribunal hearing, we are satisfied that the Appeals Officer accurately summarized the worker s position and his description of ongoing problems. [10] At the Tribunal hearing, the worker provided a more complete explanation of some of the above points. He described some of the activities which he cannot do now because of his wrist/hand condition. He testified that his condition has affected his manual dexterity and his hand strength. He said that, because of this, he failed the manual dexterity test given by an employer and this affected not only his ability to be hired for another job, but also the vocational rehabilitation choices he could realistically make. It was apparent from his description of his hand strength and his sensitivity to vibration that, had the accident employer remained in operation, he would not have felt able to continue with his pre-injury job. He testified that his condition has had an effect on his daily activities. He is no longer able to ride motorcycles (because of the decrease in his hand strength and his ability to hold on to the handlebars), he is no longer able to do the type of mechanical work on his car which he could do before his hand/wrist condition developed, and he has continued to need assistance with note-taking at university because the condition affects his ability to write all the notes required for a class. He also described how the cold sensitivity of his hands means that he restricts some of his activities. He testified that he continues to have sharp pains through his wrists. He also described how his hand(s) will periodically go to sleep. He said that this happens on an almost daily basis, as well as with certain activities such as driving longer distances.

4 Page: 3 [11] Although the Appeals Officer described these problems in her decision, she concluded that the worker did not have a permanent impairment because there were few, if any, objective clinical findings of impairment. She reviewed the medical reports, including the report from the worker s surgeon which supported the worker s claim of ongoing symptoms, and his opinion that normal EMG studies did not eliminate the possibility of carpal tunnel syndrome. She noted that the doctors had reported a mildly positive Tinel s sign, but she concluded that she could not make a finding of permanent impairment based on this one positive sign, when it is seen in combination with negative physical findings on all other clinical testing and negative diagnostic testing. She therefore found that the worker was not entitled to NEL compensation or to health care costs in relation to his bilateral carpal tunnel syndrome. [12] The worker asked to be compensated for the travel expenses he incurred driving to appointments with his surgeon after the surgery was performed. The surgeon practises in a city which is some distance from the community where the worker lives. (ii) The medical reports [13] The medical reports on file indicate that, although the EMG and nerve conduction tests which the worker had in 1991 were reported to be normal, both neurosurgeon Dr. Adegbite and surgeon Dr. Woolner diagnosed carpal tunnel syndrome. Dr. Woolner performed the worker s left wrist release surgery in April 1993 and he performed the worker s right wrist release surgery in November In both cases, his post-operative diagnosis was carpal tunnel syndrome. Following the surgery, he reported improvement in the worker s symptoms. However, he subsequently reported that the worker was having a recurrence of some symptoms, and he noted that recurrent carpal tunnel syndrome following surgical release can occur due to scar traction. He reassessed the worker s condition periodically in 1994, 1995, and His reports from those years record the worker s description of ongoing symptoms, as well as another normal EMG and nerve conduction study. In 1997, Dr. Woolner wrote the Board explaining that the worker had continuing interimittent difficulties with numbness and tingling in his hands and that activities such as driving brought on that numbness. He stated: [The worker] does have a mildly positive Tinel s sign. Otherwise there is no evidence of muscle wasting this gentleman would appear to have had carpal tunnel syndrome. He has had objective and subjective improvement of his symptoms but has not had complete relief. This certainly does occur with the surgery and I believe that he does have a legitimate claim that he does continue to have some symptoms of carpal tunnel syndrome. His electrophysiologic studies which were carried out previously were normal but this certainly does not eliminate the possibility of carpal syndrome I would support [the worker] that his current difficulties continue to be related to the original compensatable claim [14] The worker s family doctor also advised the Board that the worker was having ongoing symptoms to hands despite having had surgery to hands. [15] After reviewing some of the worker s doctors medical reports, Board doctor Dr. Dedomenico provided the following opinion as to whether the worker had a permanent impairment:

5 Page: 4 The medical reports from the plastic surgeon of December 5, 1994 would seem to indicate that the worker s findings is a mild positive Tinels sign. All other physical findings are negative. Nerve conduction studies were negative the latter being a normal study. The worker who sees his family physician in January specifies that he has tingling and numbness of his hands. There are no physical findings submitted by this physician and in the absence of any positive findings either on physical examination mild Tinel s sign being insufficient to confirm that this worker has a recurrent carpal tunnel syndrome. Absent both other physical or electromyographic findings one cannot establish evidence for a permanent impairment now. [16] We note that the above opinion from Dr. Dedomenico was given in February 1995 and he therefore did not have the benefit of reviewing reports from the worker s surgeon which were submitted later in 1995 as well as 1996 and Those later reports included a report in which the surgeon concluded that the worker s description of ongoing symptoms was legitimate, even in the absence of an abnormal EMG because a small percentage of people will have clinical findings of carpal tunnel syndrome in the absence of electrophysiological abnormalities. Another report submitted after Dr. Dedomenico gave his opinion is the August 1996 report in which the surgeon who did the worker s wrist surgery examined the worker (noting, among other things, that the worker had a positive Tinel s sign bilaterally as well as positive thumb pressure sign) and concluded that the worker clinically is manifesting carpal tunnel syndrome and discussed the possibility of further surgery with the worker. (iii) The law and policy [17] The worker s wrist/hand condition first became symptomatic in Thus, the pre-1997 Act applies in determining the issue of whether the worker s is entitled to non-economic loss ( NEL ) compensation 1. Section 42 of that Act states: 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. [18] Thus, a worker who suffers a permanent impairment is entitled to NEL compensation. The Act defines impairment as follows: 1(1) impairment, in relation to an injured worker, means any physical or functional abnormality or loss including disfigurement which results from an injury and any psychological damage arising from the abnormality or loss; 1 On January 1, 1998, the Workplace Safety and Insurance Act ( WSI Act) took effect. This legislation says that the pre-1997 Act continues to apply with respect to pre-1998 injuries (except to the extent that the pre-1997 Act is amended by the new legislation).

6 Page: 5 [19] And the Act defines permanent impairment as follows: 1(1) permanent impairment, in relation to an injured worker, means impairment that continues to exist after maximum medical rehabilitation of the worker has been achieved; [20] The Board advised the Tribunal of the policies which it considered applied to this appeal. These policies did not include any interpretation of the definition of impairment. The policies did, however, include the Board policy on Travel and Related Expenses (Operational Policy Document Number ) as well as the Board policy on Entitlement to Health Care (Operational Policy 8.1). The Board policy on travel expenses states that the Board pays all reasonable expenses incurred when, on the direction or approval of the Board, an injured worker must travel in relation to a claim. The Board policy on Entitlement to Health Care states that a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate and sufficient as a result of his or her injury. (iii) The Panel s findings [21] We find that the worker does have a permanent impairment from the hand/wrist condition which was diagnosed as bilateral carpal tunnel syndrome. [22] Although some question was initially raised about the diagnosis of carpal tunnel syndrome by Board doctor Dr. Erola, she felt that the worker s work history was compatible with that diagnosis. And, when the worker s doctors concluded that that was the diagnosis for the worker s condition and proceeded to surgery, the Board allowed the worker s claim for the hand/wrist condition which had been diagnosed as carpal tunnel syndrome. We are satisfied that the surgery did not completely relieve his symptoms. Neither the Board nor the worker s doctors have questioned the genuineness of the ongoing problems the worker described. To the contrary, the worker s surgeon and family doctor are of the opinion that the worker continues to have symptoms of carpal tunnel syndrome and these are related to his original (compensable) condition. [23] In our view, the absence of physical findings such as abnormal EMG studies does not mean the worker has no permanent impairment within the meaning of the Act. [24] The Act defines impairment as a physical or functional abnormality or loss. Thus, in deciding whether this worker has a permanent impairment, the Panel considered not only the evidence about physical loss which might be measurable on some physical testing of the worker (such as EMG testing or some anatomic evaluation), but also the evidence about how the worker s physical condition resulted in functional impairment 2. [25] It is not clear from the existing medical reports whether the physical loss described by the worker (of, for example, loss of hand strength and hand dexterity) is measurable on examination. But the 2 Tribunal Decision No. 572/97 discussed the importance of this definition of impairment even in situations where the AMA Guides to the Evaluation of Permanent Impairment might not provide for the assessment of functional impairment from certain types of injuries.

7 Page: 6 evidence does establish that the worker has suffered a functional loss as a result of his compensable hand/wrist condition. We accept his evidence about how his hand/wrist condition has interfered with his daily living activities. He has a continuing physical condition which restricts his activities and means that he is functionally unable to do, or to sustain, certain activities which he was able to do before his compensable condition developed. He therefore has a permanent impairment within the meaning of the Act, and the degree of that permanent impairment should be assessed in accordance with section 42 of the Act. [26] The worker is also entitled to the travel expenses he has claimed. The appointments were with the surgeon who did the worker s surgery. They followed up on that surgery and assessed ongoing problems the worker had following that surgery. The amounts were reasonable amounts incurred in relation to the worker s claim. [27] At the hearing, the worker indicated that, when the Board did not recognise that he had a permanent impairment from the hand/wrist condition which had been diagnosed as carpal tunnel syndrome, he made a claim for white finger disease. The question of whether the worker has such a condition and, if so, whether it is work-related, was not before this Panel. However, it may be that some of the symptoms the worker described at this hearing (such as the cold sensitivity he experiences in his fingers) result from a condition other than carpal tunnel syndrome. The Board may therefore wish to consider whether it would be appropriate for the worker s work-related hand/wrist condition to be considered as a whole when this NEL assessment is conducted.

8 Page: 7 THE DECISION [28] The worker s appeal is allowed. DATED: July 21, 1998 SIGNED: M. Kenny, G. Nipshagen, D. Beattie