Public Decisions | The Appeal Commission

Decision #21/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 13, 1999, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a number of decisions made by the Review Office of the Workers Compensation Board (WCB). The Panel discussed the appeal on April 13, 1999, and January 19, 2000.

Issue

Whether the claimant has recovered from the effects of her November 20, 1992, workplace injury;

Whether the WCB provided the claimant with adequate accommodations to assist her in maintaining her employment;

Whether the claimant's time loss from work in March 1995 is a recurrence of either the 1985 or 1992 injuries;

Whether responsibility for the surgical procedures carried out on October 12, 1995 and November 26, 1997 should be accepted;

Whether the claimant has recovered from the effects of the February 6, 1985 compensable injury;

Whether the claimant is entitled to payment of compensation beyond February 7, 1986 due to the 1985 injury; and

Whether a Medical Review Panel should be convened.

Decision

The claimant has recovered from the effects of her November 20, 1992, workplace injury;

The WCB provided the claimant with adequate accommodations to assist her in maintaining her employment;

The claimant's time loss from work in March 1995 is not a recurrence of either the 1985 or 1992 injuries;

Responsibility for the surgical procedures carried out on October 12, 1995 and November 26, 1997 should not be accepted;

The claimant has recovered from the effects of the February 6, 1985 compensable injury;

The claimant is not entitled to payment of compensation beyond February 7, 1986 due to the 1985 injury; and

A Medical Review Panel was convened under Section 67(3) of The Workers Compensation Act.

Background

Claim No. 8506 0502/1L:

On February 8, 1985, the claimant developed a throbbing sensation in the right wrist followed by swelling of her fingers and the back of her hand. The claimant attributed her discomfort to using an electric sander. The diagnosis reported by an orthopaedic specialist was either a tendonitis of the flexor tendons or possibly a median neuritis. The claim was accepted by the WCB and benefits commenced. Subsequent medical information revealed the following:

in April 1985, a neurologist reported that EMG testing and CTV tests were reported to be normal. There was no neurological abnormality. The claimant was prescribed physiotherapy treatments.
in June 1985 another orthopaedic specialist found no clinical abnormalities and a x-ray of the wrist was normal.
on August 7, 1985, a physical medicine and rehabilitation specialist noted that the claimant had paraesthesia in the 4th and 5th fingers and that the pain extended from the wrist to the medial epicondyle. Her impression was tenosynovitis of the right wrist and probable compression of the median ulnar nerves.
a WCB neurologist, following examination on December 2, 1985, was of the view that the claimant's residual swelling was due to the continuous wearing of a tight wrist splint and the relative immobility of the whole limb. The alleged muscular weakness was spurious. There were no objective signs of joint or tendon synovitis, with no signs of any peripheral neuropathy or of any circulatory disturbance. The neurologist concluded that he could find no physical cause for the claimant's continuing disability. He said that he could only conclude that the continuing complaints were psychological in origin or were the result of simulation. He determined that the claimant was physically fit to return to work without any form of restriction.
on December 18, 1985, the rehabilitation medicine specialist reported that EMG and nerve conduction studies showed no abnormality and it was felt the claimant could return to work to whatever job was available.
on January 30, 1986, a right wrist x-ray reported no significant abnormality. There was no evidence of abnormal motion or widening of the carpal joints.
on January 30, 1986, a specialist reported minimal tenderness over the lunator triquetral joint area. He stated, "I really cannot account for this girl's symptoms." The specialist indicated the claimant could gradually return to light work.

In January 1986, the WCB determined that the claimant had recovered from the effects of the compensable injury and was not entitled to further benefits beyond February 7, 1986. This decision was confirmed by the Review Office in a decision dated August 16, 1991.

Claim No. 9206 4803/30:

On November 20, 1992, the claimant indicated that she developed pain in her right hand and arm from her work, which required lifting, polishing cleaning, mopping and vacuuming on a repetitive basis. The initial diagnosis was reported as a right shoulder tendonitis. The claim was accepted by the WCB and benefits were paid accordingly. Subsequent medical information revealed the following:

on December 7, 1992, a second practitioner diagnosed the claimant with acute tendonitis of the right hand and possible ulnar nerve compression. EMG and nerve conduction studies were later arranged and were considered normal.
on December 30, 1992, a neurologist stated that examination findings suggested a mild right ulnar neuropathy with a lesion probably at the elbow. This was probably a compressive or traumatic neuropathy. Conservative management was recommended.
a WCB medical advisor, on January 5, 1993, concluded that the claimant was likely suffering from a soft tissue injury to her right wrist and shoulder with possible nerve impingement.
following assessment on February 12, 1993, a rehabilitation medicine specialist's impression was that the claimant exhibited myofascial pain in the neck and shoulder muscles secondary to the fact that she was trying to protect her upper arm. The specialist thought that this was related to disuse rather than to any ulnar nerve compression.
in a memo dated March 18, 1993, a WCB medical advisor expressed his view that there were neither hard objective findings to support continued total disability nor any major neurological impairment.

Based on the above, the claimant was informed that wage loss compensation would be paid to April 12, 1993, inclusive. It was felt that the claimant had recovered from the compensable injury and that there was insufficient evidence to account for a relationship between her current complaints and the compensable injury. The case was then referred to vocational rehabilitation to determine whether the claimant was eligible for preventative rehabilitation services and benefits.

on April 5, 1993, a rehabilitation medicine specialist stated that the claimant was being overly protective of her right upper limb and that she should try and use her right upper limb as much as possible to improve the mobility in her neck and shoulders. She stated that the claimant should try to find an alternative job where she did not have to do repetitive lifting of more than 20 pounds or repetitive bending activities.

Following consultation with a WCB medical advisor on May 25, 1993, primary adjudication wrote to the claimant indicating there were no significant objective findings to support her ongoing contention of total disability.

Subsequent information revealed that the claimant qualified for rehabilitation benefits and was sponsored in the Financial Assistant Diploma program offered by Academy of Learning for the period of August 1993 to January 1994 and also participated in a work experience program.

In May 1994, the claimant commenced employment as a receptionist working at a help centre. Work site modifications including an ergonomic workstation were arranged in consultation with an occupational therapist.

On November 21, 1994, an Employment Specialist wrote to the claimant indicating that further benefits and/or services were no longer warranted as the claimant had developed a transferable skill base and work experience that enabled her to secure employment, at or above her pre-accident earnings.

In March 1995, the claimant contacted the WCB indicating that she ceased working as a receptionist on March 1, 1995, due to progressive symptoms noted in her right wrist, fingers, arm to shoulder and neck, which were present before she started the job at the help centre. The claimant noted that compensation had provided her with a footrest, headphone and a special chair to try and accommodate her injuries. There was no new accident to cause her to go off work in March 1995.

On March 17, 1995, the claimant was advised that a new claim would be established (Claim No. 9506 0943/8M) in regard to her current time loss. On May 8, 1995, the claimant was advised that that her claim had not been accepted by the WCB as she was working with an organization who did not have voluntary coverage with the WCB. The claimant submitted an appeal to Review Office in this regard.

Subsequent medical information was received as follows:

on March 1, 1995, an occupational health physician confirmed that the claimant had considerable swelling of all the fingers of the right hand and the right upper extremity was restricted by pain. There was also tenderness in the forearm from the fingers to the elbow making examination difficult. The claimant was advised to discontinue work and was referred to physiotherapy.
on May 19, 1995, the rehabilitation medicine specialist outlined medical treatment the claimant received between December 7, 1993 through to July 5, 1994.
on June 15, 1995, an orthopaedic consultant assigned to Review Office, reviewed the case. His view was that a current diagnosis regarding the claimant's current symptoms had not been made and suggested an examination by a WCB consultant.
at examination on July 4, 1995, a WCB physical medicine and rehabilitation consultant summarized that other than an area of myofascial pain syndrome activity, he was unable to fit a diagnosis for the remaining symptomatology. With respect to the question of whether the complaints of March 1995 were a consequence of the 1992 injury, the consultant stated that the first diagnosis noted on the 1992 claim was tendonitis in the right shoulder. In summary, the most recent medical assessment, the majority of the symptoms were felt to be related to myofascial pain syndrome activity involving the right upper extremity, arm, shoulder girdle and neck. The current exam suggested there was no evidence of tendonitis in the right shoulder and minimal, if any, current myofascial pain present.

In a decision dated August 4, 1995, Review Office noted that during a recent telephone conversation with the claimant, the claimant was of the view that the WCB could have saved her recent job, which she had now lost, by providing her with aides to keep her working. Review Office noted that the WCB purchased several aides for the claimant, which included an ergonomic footstool, a telephone head set, a keyboard tray and an ergonomic chair. It was Review Office's opinion that the WCB extended reasonable accommodation to the claimant to try and keep her employed in the position.

With respect to medical developments, Review Office noted that there were far more subjective complaints than actual objective clinical findings. It was noted that at examination on July 4, 1995, there was limited myofascial pain involvement in two muscles that would not account for the worker's claimed degree of disability. Review Office concurred with the specialist that the worker's complaints, on a balance of probabilities, were not related to the work performed in November of 1992 and originally diagnosed as tendonitis of the right shoulder. Review Office was unable to accept responsibility for the claimant's current physical complaints and her time loss from employment in March of 1995, as these were not considered to be related to her 1992 claim.

On November 9, 1995, a worker advisor, acting on behalf of the claimant, requested Review Office to reconsider its decision of August 9, 1995. The issues to be considered was whether or not there was basis for acceptance of the claimant's current loss of earning capacity as a "recurrence" of the November 20, 1992, workplace injury and whether or not workplace restrictions were directly related to the November 20, 1992, injury. With respect to these issues, the worker advisor provided medical information as follows:

a report from the attending physician dated October 10, 1995, indicated that the claimant had not recovered from the effects of her 1992 workplace injury as concluded by the WCB in March 1993.
an operative report dated October 12, 1995, indicated that the claimant underwent surgery, i.e. a right anterior transposition of the ulnar nerve (subcutaneous method).
the results of EMG studies taken August 23, 1995, confirmed a mild chronic focal ulnar neuropathy at the right elbow.

At the request of Review Office, a WCB orthopaedic consultant again reviewed the case, on December 21, 1995. He stated that the claimant developed an insidious onset of right ulnar nerve entrapment necessitating anterior transposition of the ulnar nerve on October 12, 1995. In his opinion, it had not been proven that it was necessarily work-related. He noted that in 1986, a WCB neurologist reported, "no peripheral nerve compression". On December 3, 1992, the attending physician questioned a possible right ulnar nerve compression, but electrical testing at that time was normal and the claimant never returned to her previous work activity after November 1992. The specialist stated that despite this, the claimant's condition progressed with the development of positive clinical signs and positive electrical testing in August 1995, suggesting that factors other than the previous work activity, which she ceased to be engaged in November 1992, were the cause.

In a decision by Review Office dated January 12, 1996, it was determined that the claimant had recovered from her 1992 injuries and that her medical condition in 1995 which eventually resulted in a surgical procedure was caused by factors other than the 1985 or 1992 injuries. It was also determined that the worker did not have any physical restrictions resulting from the compensable claim.

On March 3, 1998, the worker advisor presented new medical information to Review Office dated January 27, 1998 from an orthopaedic specialist. The specialist's report showed that the claimant underwent exploration of the right ulnar nerve in the region of the elbow as well as excision of the mass on the dorsum of the hand on November 26, 1997. At surgery, the claimant was found to have a significant amount of scar tissue around the ulnar nerve causing a cicatricial compressive neuropathy of the nerve. This was treated by a neurolysis procedure. The worker advisor quoted from the specialist's letter that the claimant's "right upper extremity pain is multifactorial in origin with myofascial pain, tendinitis and perhaps intermittent compression neuropathy all contributing to her condition." The specialist stated that it was very difficult to exclude the claimant's workplace injuries as a contributing factor. The worker advisor contended that the specialist's report supported a cause and effect relationship between the claimant's symptomatology, her time loss from work beginning in March 1995 and her 1992 workplace injury. It was the worker advisor's position that the 1995 claim as well as the claimant's ongoing symptomatology ought to be accepted by the WCB as a recurrence of her November 20, 1992 workplace injury.

At the request of Review Office, the WCB orthopaedic consultant reviewed the case on March 24, 1998. The consultant stated that the November 26, 1997, right elbow surgery was to correct complications that arose out of the previous surgery performed on the elbow in October 1995. He felt the reported synovitis of the extensor carpi ulnaris tendon was an unrelated condition. The specialist stated it was never established that the claimant had an ulnar nerve entrapment for which surgery was performed in October 1995 or even that it was a result of work related activities. He concluded that the report of January 27, 1998, did not establish that the claimant's problems involving the right upper extremity and in particular the ulnar nerve arose as a result of any of the prior reported claims.

In a decision dated April 3, 1998, Review Office determined that no responsibility could be accepted for the worker's difficulties experienced in 1995 including the surgical procedure and that no responsibility can be accepted for the surgical procedure carried out on November 26, 1997. Review Office found that "the conclusions reached in the specialist's report are primarily speculative in nature and acknowledged as such by the specialist as he did not see this worker prior to the surgery of 1995 and in fact did not become involved with the worker's case until April 1997." Review Office accepted the conclusions made by the WCB orthopaedic consultant that the worker's difficulties in 1995 and beyond were not a consequence of the 1992 claim, nor were they a consequence of any of the worker's prior claims.

On April 23, 1998, the worker advisor requested a Medical Review Panel (MRP) to address the medical matters/issues related to her claim. On May 8, 1998, Review Office denied the request, as it was determined that the requirements of Section 67(4) had not been met.

The worker advisor appealed Review Office's decision which were rendered in August 1991 with respect to the 1985 claim and with decisions rendered in April and May 1998 in the 1992 and 1995 claims. On April 13, 1999, an Appeal Panel hearing was held at the Appeal Commission.

After the hearing, the Panel requested a MRP to assist with its deliberations in deciding the issues under appeal. Subsequently, a MRP was convened on August 23, 1999, under section 67(3) of the Act and a copy of the results were forwarded to the interested parties for comment.

On October 12, 1999, the Worker Advisor Office notified the Appeal Commission that the claimant had undergone surgery on September 23, 1999, and requested that the Appeal Panel wait for the report before meeting to decide the case. The Appeal Panel granted the request.

An operative report was received dated September 23, 1999 along with clinical notes from the attending surgeon. The procedure, which was performed, was an "Exploration, ulnar aspect right wrist with synovectomy of extensor tendons and arthrotomy and excision of scar tissue". On November 8, 1999, all parties were asked to provide comment with respect to the additional information.

On November 17, 1999, the claimant contacted the Appeal Commission requesting a postponement of the upcoming Appeal Panel meeting. The reason for this request was that the worker advisor assisting her with the appeal had left the Worker Advisor Office. The claimant therefore wanted to find another representative to help her with her final submission. The Appeal Panel granted the request for a postponement.

On January 19, 2000, the Panel met to render its final decisions with regard to the issues under appeal and took into consideration the claimant's final submission dated January 9, 2000.

Reasons

The Appeal Panel has arrived at unanimous decisions with respect to the seven issues appealed by the claimant. These decisions have been arrived at after careful consideration of all of the evidence on the claimant's files including the most recent report of the MRP, the recent operative report on the claimant as well as the very able submissions of the claimant and her representatives. While this Panel is not disputing the argument of the claimant that over the years she has been experiencing some very real pain symptomology in different areas of the body, we are unable, on a balance of probabilities, to relate these difficulties to any of her compensable injuries.

Decision 1: The claimant has recovered from the effects of her November 20, 1992, workplace injury;

With respect to the compensable injury suffered by the accident on November 20, 1992, it is the opinion of the Appeal Panel that the claimant had recovered from the effects of her workplace accident by April 12, 1993. The MRP confirmed that the diagnosis with respect to this injury was:

Right medial epicondylitis; and
Right tenosynovitis involving the hand and the wrist (MRP August 23, 1999, p. 13)

The claimant's current difficulties described by the MRP were as follows:

Mild impingement syndrome, right shoulder;
Tenosynovitis, dorsal ulnar aspect, right hand and wrist to distal forearm;
Hypoaesthesia ulnar aspect of right hand and forearm;
Right bicipital tendonitis (MRP August 23, 1999, p. 14)

While some of the current symptomology being experienced by the claimant appears to be similar to her diagnosis from 1992, the MRP was "unable to assign a specific start date to any of the [current] complaints" and furthermore they were quite clear and unanimous in their view that they were "unable to relate any of [the current] conditions to the 1992 compensable injury."

When the Panel reads these findings from the MRP in conjunction with the medical evidence on the claimant's file, the evidence is weighed in favor of the suggestion that the claimant had indeed recovered from her 1992 compensable injury. This evidence would include the WCB medical advisor's opinions expressed in a memo dated March 18, 1993, that there were no objective findings to support continued total disability nor was there any major neurological impairment. Later on, a physical medicine and rehabilitation specialist at the WCB further concluded that while the claimant did have an area of myofascial pain syndrome activity, he was unable to find a diagnosis for her remaining symptomology and consequentially it could not be related to the claimant's compensable injury.

Based on all of the above evidence, this Panel has, therefore, concluded that the claimant has recovered from her compensable injury.

Decision 2: The WCB provided the claimant with adequate accommodations to assist her in maintaining her employment;

After the 1992 compensable injury, the WCB provided the claimant with vocational rehabilitation services and the claimant subsequently received rehabilitation benefits. In May of 1994, the claimant began working as a receptionist at a community help centre. The WCB provided worksite modifications including an ergonomic workstation involving a footrest, headphone and a special chair to try and accommodate her injuries. The advocates for whom the claimant worked were also given voice mail to lessen the workload of the claimant.

These modifications were made to the claimant's worksite only after an ergonomic assessment of the worksite had been made in conjunction with an occupational therapist and appeared to be correct at the time and were made with the agreement of the claimant.

The MRP was of the unanimous view that the claimant had not suffered a change of medical status in 1995 while employed at the community help centre (MRP August 23, 1999, p. 15). Therefore, the Appeal Panel is of the opinion that the accommodations that were made to assist the claimant in maintaining her employment were the correct and reasonable ones at the time, on the basis of the current medical condition of the claimant.

Decision 3: The claimant's time loss form work in March 1995 is not a recurrence of either the 1985 or 1992 injuries;

The Panel is of the view that the claimant's time loss from work in March 1995 is not a recurrence of either the 1985 or the 1992 injuries suffered by the claimant.

The Medical Review Panelists agreed that the 1985 compensable injuries were:

Medial epicondylitis; and
Tenosynovitis (MRP August 23, 1999, p. 13).

The 1992 compensable injuries have already been referred to under issue #1. At the time that the claimant left her employment at the community help centre she said she did so due to progressive symptoms noted in her right wrist, fingers, arm to shoulder and neck, which she says were present before she started her job. The MRP was of the very clear opinion that the conditions currently being experienced by the claimant (and outlined in issue #1) were not related to either the 1985 or the 1992 compensable injuries. The injuries experienced by the claimant and described in 1995 are essentially the same as the current conditions described in the MRP (MRP August 23, 1999, p. 14). Accordingly, this Panel is in agreement with the MRP that because the injuries are unrelated there was no recurrence.

In addition to the opinion of the MRP on this issue, we also note the view of the WCB physical medicine and rehabilitation consultant at an examination of the claimant on July 4, 1995, wherein he stated the following:

Regarding the questions whether the complaints of March 1995 are a consequence of the injury of 1992, on review of the 1992 claim file, the first diagnosis on the chart was tendonitis in the right shoulder. In summary of the most recent medical assessments, the majority of the symptomatology was felt to be related to myofascial pain syndrome activity involving the right upper extremity, arm, shoulder girdle, and neck.

The current examination suggests that there is no evidence of tendonitis in the right shoulder and minimal, if any, current myofascial pain present."

Decision 4: Responsibility for the surgical procedures carried out on October 12, 1995 and November 26, 1997, should not be accepted;

This Panel is of the view that responsibility for the surgical procedures carried out on October 12, 1995, and November 26, 1997, should not be accepted. The surgeries performed were not causally related to the 1985 or 1992 compensable injuries. In the opinion of the MRP, "the surgeries were related to a long history of symptomatic complaint and to the interpretation of nerve study reports" (MRP August 23, 1999, p. 15).

Decisions 5 & 6: The claimant has recovered from the effects of the February 6, 1985, compensable injury;

The claimant is not entitled to payment of compensation beyond February 7, 1986, due to the 1985;

The current symptoms being experienced by the claimant were outlined in issue #1. The symptoms experienced by the claimant in 1985 were outlined in issue #3. The Appeal Panel is of the opinion that the claimant had recovered from her 1985 accident and is not entitled to compensation benefits beyond February 7, 1986.

When reviewing the current symptoms of the claimant, the MRP was "unable to assign a specific start date to any of the symptoms" (MRP August 23, 1999, p. 14). When the medical information on the claimant's file is reviewed, we note that there is no evidence to suggest that the claimant had not recovered from her February 6, 1985, accident by February 7, 1986.

Medical treatment at that time included consultation with a neurologist who after a visit with the claimant on April 17, 1985, stated that he could not "find any neurologic defect in this patient at the present time."

In June of 1985, an orthopedic surgeon reported that he could find no clinical abnormalities and that an x-ray of the wrist was normal. A full history and examination of the claimant was performed by a WCB neurologist on December 2, 1985. He stated that he could find no cause for the claimant's continuing disability. He determined that the claimant was physically fit to return to work without any form of restriction.

On December 18, 1985, the rehabilitation medicine specialist reported that there were no abnormalities of consequence and that the claimant could return to work. On January 30, 1986, a right wrist x-ray reported no significant abnormality with no evidence of abnormal motion or widening of the carpal joints. Finally, a report form a specialist on January 30, 1986, stated that he "really cannot account for this girl's symptoms."

Accordingly, on a balance of probabilities based upon all of the evidence, this Panel agrees that the claimant had recovered from the effects of her February 6, 1985, injury by February 7, 1986, and that she is not entitled to benefits after that period of time.

Decision 7: A Medical Review Panel was convened under Section 67(3) of the Workers Compensation Act..

As this Panel had previously made the decision pursuant to Section 67(3) of the Workers Compensation Act to convene a MRP, this issue has already been dealt with.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of March, 2000

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