The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 4, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being February 28, 2000.

Issue

Whether or not the claimant has recovered from the effects of the compensable injury;

Whether or not the claimant is entitled to payment of wage loss benefits beyond October 12, 1998; and

Whether or not a Medical Review Panel should be convened.

Decision

That the claimant has not recovered from the effects of the compensable injury;

That the claimant is entitled to payment of wage loss benefits beyond October 12, 1998; and

That the issue with respect to convening a Medical Review Panel not be addressed.

Background

In July 1997, the claimant filed an application for compensation benefits indicating that he had injured both arms due to the repetitive nature of his employment as a miner which included drilling, blasting and hand mucking. In a letter attached to his application for benefits, the claimant indicated that he started having trouble with his arms in 1993 and 1994. Following an investigation into the case which included employment history and a statement from the claimant, the Workers Compensation Board (WCB) accepted the claim on the basis of a bilateral ulnar neuropathy.

Medical information revealed that the claimant attended a hospital on May 13, 1995 complaining of painful arms for 8 to 9 years and that the pain was getting worse. The diagnosis reported was fibromyalgia of the arms.

A report from an orthopaedic specialist dated April 21, 1997 indicated that the claimant was seen regarding complaints of pain in his left elbow on the medial side with activities involving heavy lifting. He apparently had an infection on the posterior aspect of his elbow followed by pain and swelling in July 1996 at the back side of the elbow, suggesting an infected olecranon bursitis. Examination revealed tenderness in the medial epicondylar region. The claimant had full motion of both elbows. Muscle power, sensation and reflexes were noted to be normal. Left elbow x-rays showed early osteoarthritis and there were similar findings in the right elbow.

On August 12, 1997, an orthopaedic surgeon reported that the claimant had pain on movement of both elbows and had been feeling numbness in both hands off and on for about 5 or 6 years. He also had been aware of white hands when exposed to cold. Examination of the elbows revealed good motion with generalized tenderness on both medial and lateral epicondylar regions. The claimant had wasting of the abductor pollicis brevis in the left hand. There was no sign of thoracic outlet syndrome. Sensation, muscle power and reflexes were noted to be normal in both hands. A small lump on the volar aspect of the left little finger was also noted. It was suggested that the claimant undergo EMG studies to rule out the possibility of carpal tunnel. The claimant also indicated that his doctor was referring him to a neurologist for his "white hand syndrome".

X-rays of the left elbow dated August 4, 1996, showed minimal degenerative bone lipping involving the coronoid process. No fracture or dislocation was seen. In August 1996, the claimant was admitted to hospital for cellulitis of the left elbow. He was given a course of antibiotics for this condition. The cellulitis and bursitis resolved after therapy.

In October 1997, the claimant underwent EMG tests, which showed evidence of a moderate ulnar nerve compression at the elbow bilaterally. There was no definite evidence of carpal tunnel syndrome. According to the report, the pain in the claimant's elbows may in part be related to tendonitis and historically the claimant also had Raynaud's phenomena.

On December 22, 1997, a WCB medical advisor examined the claimant to determine a diagnosis and its relationship to the injury. The medical advisor indicated that the claimant had some irritation of both ulnar nerves bilaterally. There was no altered sensation and the claimant did not show any reduction in muscle power or strength of either forearms or hands. Evidence of arthritis was noted at the second right MCP joint and also at the left elbow. The medical advisor thought that these were possibly traumatic in nature but felt neither condition interfered with function.

The claimant underwent further nerve conduction studies on March 13, 1998. The report concluded that evidence of a bilateral ulnar neuropathy still remained. "The only change from the previous exam is that the slowing across the elbow is not as marked. There is no evidence of a carpal tunnel syndrome."

On August 12, 1998, the claimant underwent a Functional Capacity Evaluation (FCE) which revealed that he was deconditioned. There was decreased range of movement found in the right elbow in extension and there was also a difference in the range of movement of right supination and left elbow flexion.

In a memo dated August 26, 1998, a WCB adjudicator documented that the examining medical advisor was of the opinion that the claimant had recovered from the effects of the September 1996, compensable injury. It was felt the claimant needed a 4-6 week physical reconditioning program prior to returning to work. The physician noted that the recent nerve conduction studies indicated further improvement and the FCE indicated that the claimant had sufficiently recovered.

On August 28, 1998, the claimant was notified by primary adjudication that wage loss benefits would not be extended beyond October 12, 1998, as it was considered he had recovered from the effects of the compensable injury. The claimant was further advised that a physical reconditioning program had been arranged to begin on September 1, 1998 and that the program would run for six weeks.

The claimant underwent a third nerve conduction study on September 9, 1998. The results showed "...evidence of a mild to moderate left ulnar nerve compression at the elbow. Compared to October 1997 this has improved. It is largely unchanged from March of this year. There is no definite evidence anymore of a right ulnar nerve lesion with the exception of the diminished sensory action potential. His improvement is to be expected with the conservative treatment that he has received, that is avoidance of repetitive flexion at the elbow." On September 30, 1998, the neurologist who arranged for the nerve conduction studies stated, "although it cannot be absolutely proven, I expect that his improvement is related to avoidance of repetitive flexion at the elbow as involved in underground mining. Similarly, I believe that his symptoms would very likely worsen if he was to return to the same type of work".

On October 15, 1998, a physiotherapist indicated that the claimant was given the option to continue the last 2 weeks of his program or to discontinue it as of October 12, 1998, the date that his WCB benefits were discontinued. The claimant opted to discontinue the last 2 weeks of his 6 week reconditioning program. The therapist noted that the claimant continued to experience left elbow pain and reported some right elbow pain with sustained flexion at the last date of attendance.

On October 7, 1998, the claimant requested Review Office to reconsider the decision of August 28, 1998. Prior to considering the appeal, Review Office obtained a medical opinion from a WCB orthopaedic consultant on November 10, 1998. The orthopaedic consultant stated the following:

"There is no history of any acute injury to elbows. They were painful for 8-9 years. There are indications of early minor OA (osteoarthritis) involving the left elbow on x-rays. The ulnar nerve compression reported on nerve conduction with subsequent improvement on repeat testing does not explain the elbow symptoms. Information on file suggests recovery with no necessity to impose restrictions."

In a decision dated November 13, 1998, Review Office determined that the worker was not entitled to payment of wage loss benefits beyond October 12, 1998. Review Office noted that the claimant appealed the discontinuation of benefits based on the neurologist's statement that he should avoid repetitive flexion at the elbow. The orthopaedic consultant to Review Office did not believe there was any necessity to impose restrictions on this worker with respect to his bilateral elbow condition. Review Office said it accepted the orthopaedic consultant's opinion that the claimant had in fact recovered from the work related aspect of his elbow difficulties and that any possible restrictions were of a preventative nature and were not directly related to the condition accepted as the compensable injury.

On January 8, 1999, a worker advisor requested Review Office to reconsider its previous decision based on various medical opinions noted throughout the file. The worker advisor asked whether the claimant's condition came about as a result of repetitive work or from an acute injury.

On February 3, 1999, Review Office replied to the worker advisor's letter after consulting with the WCB orthopaedic consultant. Review Office commented that the orthopaedic consultant stated that in his view, there was no history of acute, direct trauma to the elbows. Review Office stated that it would appear that the accepted cause of the claimant's difficulties with his elbows would be from the repetitive nature of his employment. This is not to say that the claimant may from time to time have struck his elbows during the course of his employment. Dr. [orthopedic consultant], however, has indicated that the ongoing difficulties with Mr. [claimant's] elbows continues to be osteoarthritis which would not have been caused from repetitive work. Review Office concluded by stating that the previous decision would stand.

In a further submission dated May 7, 1999, the worker advisor presented additional medical information from an occupational health physician dated April 26, 1999. The worker advisor noted the WCB's position that the claimant had recovered from the effects of the compensable bilateral elbow difficulties and the occupational health physician's opinion was that the claimant "...continues to suffer from pain and tenderness in both cubital tunnels. It wood (sic) appear from this that he continues to have ulna neuropathy in both elbows." The worker advisor felt that this difference in opinion set the stage for the convening of a Medical Review Panel (MRP) under section 67(4) of the Act.

In addition, the worker advisor noted that a WCB medical advisor commented that the ongoing difficulties with the claimant's elbows continue to be osteoarthritis, which would not have been caused from repetitive work. In this regard, the occupational health physician stated, "..x-ray of the elbow demonstrated a minor degree of osteoarthritis. Mr. [the claimant] is now 43 years old and it should not be surprising that he has got some osteoarthritis. This is a wear and tear problem and in the case of Mr. [the claimant], doing the kind of work he has done could very well have accelerated the process."

On June 25, 1999, a supervisor with Rehabilitation & Compensation Services wrote to the worker advisor indicating that a MRP would not be granted. The supervisor stated that both the WCB physicians and the occupational health physician indicated that the claimant sustained bilateral ulnar neuropathy as a result of the repetitive nature of his work activities. There was therefore no difference of medical opinion regarding the diagnosis of the injury. The occupational health physician indicated that the claimant continued to have bilateral ulnar neuropathy and also indicated that "...it is likely that if he returns to the kind of activity which triggered his problems he will suffer a relapse." The supervisor indicated that the WCB physicians have indicated that while the claimant may have ongoing symptoms of this diagnosis, these do not prevent him from returning to work and that any need for restrictions would be on a preventive basis.

In August 1999, Review Office considered the case with respect to two issues, i.e. whether or not to convene a MRP and whether the claimant is entitled to vocational rehabilitation assistance. Review Office indicated to the claimant that given the short length of time that he had been employed in Manitoba in the past few years, that his current elbow condition could not reasonably be attributed solely to his Manitoba employment. The Review Officer believed that the claimant had recovered from whatever injuries he incurred while working in Manitoba.

With respect to convening a MRP, Review Office noted the occupational health physician stated that the claimant's condition was attributable to his overall employment since 1980, most of which was not in the province of Manitoba. The Review Officer did not believe that a full opinion as required under section 67 of the Act existed. As a result, the request for a MRP was denied. It was also determined that the claimant was not entitled to rehabilitation services based on the finding that he had recovered from the medical condition caused to his arm/elbows from his Manitoba employment.

On October 4, 1999, an Appeal Panel hearing was held to consider three issues brought forward by the worker advisor. Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be examined by an independent neurologist concerning his physical status.

Subsequent file documentation showed that the claimant's family physician had also arranged for the claimant to see a neurologist on November 2, 1999, and that arrangements were being made for electrophysiological testing for January 18, 2000. On November 9, 1999, the Appeal Panel advised the claimant that a letter would be sent to the treating neurologist to obtain his November 2, 1999, examination findings and the electrophysiological test results when they became available. The claimant was also advised that the Panel's previous request to have him examined by an independent neurologist would still proceed as the Panel had specific questions to ask the independent neurologist.

On January 6, 2000, the claimant was assessed by the independent neurologist and his examination report dated January 12, 2000, was forwarded to the interested parties for comment. All parties were also provided with a copy of the second neurologist's report (who had examined the claimant on behalf of the family physician on November 2, 1999), along with EMG results dated January 18, 2000.

On February 28, 2000, the Panel met to discuss the case and requested additional comments from the independent neurologist. Specifically, the Panel requested that the second neurologist's report dated February 3, 2000 and the electrophysiological testing dated January 18, 2000 be forwarded to the independent neurologist to determine whether the new and additional information changed any of his opinions outlined on January 12, 2000. A response from the independent neurologist was later received dated March 6, 2000, and was forwarded to the interested parties for comment. On March 28, 2000, the Panel met to consider the case and took into consideration argument from the claimant's worker advisor dated March 22, 2000.

Reasons

The issues in this appeal are whether or not the claimant has recovered from the effects of the compensable injury; whether or not the claimant is entitled to payment of wage loss benefits beyond October 12, 1998 and whether or not a Medical Review Panel (MRP) should be convened.

The relevant subsections of The Workers Compensation Act (the Act) in this appeal are subsection 39(2) which provides for the duration of wage loss benefits and 67(4) which provides for the convening of a Medical Review Panel (MRP) where there is a difference of medical opinion between a WCB medical advisor and a physician of the worker with respect to a medical matter affecting entitlement to compensation.

The evidence reveals that the claimant filed an application for compensation benefits on July 18, 1997 claiming injury to both elbows which he related to his employment duties as a raise miner such as blasting and using vibrating tools in the course of his occupation. The WCB accepted financial responsibility for the development of the claimant's bilateral elbow complaints diagnosed as bilateral ulnar neuropathies. Benefits were later discontinued as medical evidence suggested that the claimant had recovered and this decision appeared to be based predominantly on the apparent normalization of the electromyogram/nerve conduction studies ( EMG/NCS) diagnostic testing results.

Following the hearing we requested an assessment of the claimant with respect to the bilateral ulnar neuropathies by an independent neurology consultant. The claimant's attending physician also referred the claimant to a different neurologist [the first consulting neurologist] who examined the claimant and arranged for repeat NCS tests to be performed.

Following the initial assessment of the claimant by the independent neurologist on January 12, 2000 we provided the independent neurologist with copies of the repeat EMG/NCS testing performed on January 18, 2000 for further comment.

We note in his report of January 12, 2000 the independent neurologist indicated when reviewing the NCS results of October 15, 1997:

"When looking at the motor conduction of the ulnar nerve around the elbow, there is a 10m/sec conduction slowing when conducting the ulnar nerve from above to below the elbow suggesting a significant conduction delay at that site. There is no significant loss of amplitude of the ulnar motor response at this level suggesting that a significant axonal lesion has not occurred. I would agree with Dr. [ first consulting neurologist's] conclusion that this finding is consistent with bilateral ulnar nerve compression at the elbow."

The independent neurologist also indicated on clinical grounds that:

"...it is my impression that this gentleman has mild bilateral (left greater than right ulnar neuropathy at the elbow. It is not surprising that conductions have improved over time, as he has been off work for two years. One would expect ulnar nerve irritation from repetitive injury that results in a demyelinating process, but not an axonal injury to demonstrate recovery, if the triggering mechanism is avoided."

Repeat NCS tests were carried out on January 18, 2000 and were interpreted as follows:

" The screening electrodiagnostic examination documents bilateral focal ulnar neuropathy at the elbow that is of bilaterally moderate degree, and is of modestly greater degree on the left than the right."

In a report dated February 3, 2000, the claimant's consulting neurologist on reviewing the NCS tests of January 18, 2000 indicated that they confirmed ongoing ulnar nerve compression at the elbows, worse on the left, and he indicated there may be a degree of chronic nerve entrapment.

In weighing all the evidence on file and given during the hearing process, in particular the most recent EMG/NCS test results performed on January 18, 2000 and the neurological medical evidence provided which reveals both clinical and diagnostic evidence of bilateral moderate focal ulnar neuropathy and, on a balance of probabilities, we are of the view that the claimant continues to experience the effects of the condition which was accepted as compensable by the WCB.

The claimant has had a continuity of signs and symptoms and electrophysiological evidence of bilateral ulnar nerve entrapment and we find that the claimant's work as a miner in Manitoba has played a role in the development of this condition. We also note, however, that the claimant has been employed in similar occupations outside of Manitoba which in our view have also contributed to the development of the claimant's medical condition.

It is our view that the claimant has not recovered from the effects of his compensable injury and is entitled to further benefits. Therefore the claimant's appeal on issues 1 and 2 is allowed.

In light of our findings with respect to issues 1 and 2, that the claimant has not recovered from his compensable injury and is entitled to further benefits, issue 3 relating to the convening of a Medical Review Panel need not be addressed.

We further find that the claimant is not totally disabled and is capable of resuming some form of gainful employment. We strongly recommend that the claimant be referred for a vocational rehabilitation assessment with a view to assisting the claimant in returning to gainful employment as the accepted condition has been ongoing for several years. In this regard the claimant's symptom complex of bilateral ulnar neuropathy, Reynaud's phenomena and other conditions of the upper extremities should be kept in mind. Any vocational rehabilitation services would, of course, be contingent upon the claimant's full co-operation with the rehabilitation program.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of March, 2000