The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 27, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on September 28, 2000

Issue

Whether or not the claimant is entitled to additional benefits with respect to his left thumb injury of May 2, 1974.

Decision

That the claimant is not entitled to additional benefits with respect to his left thumb injury of May 2, 1974.

Background

While employed as a foreman at a manufacturing plant on May 2, 1974, the claimant severed a portion of his thumb while using a bench saw. The claimant received total disability benefits as a result of the accident and was awarded a 5% Permanent Partial Disability award in January, 1975.

On March 20, 1975, a general practitioner noted that the claimant had been having stump pain (causalgia) in his left thumb for about one year. A cervical sympathectomy was recommended in order to relieve the causalgia and was performed on March 7, 1975. By March 13, 1975, the physician noted that the claimant's thumb was pain free and that after two more weeks of convalescence he would be able to return to work. Responsibility for the surgical procedure and for the claimant's time loss from work was accepted by the Workers Compensation Board (WCB) as being related to the 1974 accident.

On July 29, 1975, a second physician noted that the claimant was experiencing further pain in his thumb. He felt that the claimant's pain was due to the skin of the amputation stump being tightly stretched over the end of the bone. Further surgery was recommended to relieve the sensitivity in the thumb. On August 5, 1975, the claimant's left thumb was surgically revised and benefits were paid accordingly.

In December 1976, the claimant was examined by a WCB medical advisor. The claimant indicated that he had not worked since April 1975, except for a few short months, due to pressure on the thumb and because of his stomach. He indicated that his stomach trouble started about 3 weeks after the sympathectomy and that several doctors had told him his thumb and stomach problems were related. On December 20, 1976, the Chief Medical Officer indicated that the stomach complaints were of no great consequence and were not due to the sympathectomy.

On October 20, 1977, a treating physician stated that the claimant was complaining of a severe pain in the stump of his left thumb along with abdominal pains situated chiefly in the left flank and loin. All investigations proved to be negative. The physician further stated that the claimant related the left flank and loin pain to the operation of the cervical spine. He explained to the claimant that there was absolutely no relationship.

Subsequent file documentation showed that the claimant claimed to be unable to work because of his left thumb injury and abdominal problems. The claimant considered the seizures and blackouts that he was experiencing were related to something having gone wrong during the surgery of his thumb condition. The claimant indicated that he sought confirming medical opinion from various doctors in Canada and the United States but they refused to report to the WCB.

On October 20, 1989, an Appeal Panel determined that the claimant was not entitled to further compensation benefits. The weight of medical evidence and the claimant's activities clearly suggested that his thumb condition did not preclude him from obtaining employment in keeping with his pre-accident earnings. The Appeal Panel noted that medical investigations into the claimant's abdominal pain, seizures and blackouts had failed to find any abnormality or provide a diagnosis. The Panel did not consider the claimant's symptoms to be related to the compensable injury or to the subsequent surgeries. A different Appeal Panel confirmed this decision on September 10, 1990 (Appeal Decision 30/90).

On January 26, 2000, the WCB received a letter from the Provincial Ombudsman indicating that a breach of procedural fairness occurred following a review of the proceedings held on June 12, 1990. Following a meeting held on May 30, 2000, the Board of Directors exercised its authority under Section 60.9 of the Act and stayed Appeal Decision 30/90 and referred the matter back to the Appeal Commission for a new hearing.

Reasons

As the background notes indicate, the claimant sustained a compensable injury in 1974, which resulted in the amputation of the distal phalanx of his left thumb. The claimant experienced post-traumatic causalgia for approximately a year when it was decided that he should undergo a cervical sympathectomy. This surgical procedure was carried out on March 7th, 1975. The evidence discloses that the claimant was discharged 24 hours after the operation and that his thumb was pain free. The remission of pain was short-lived and the claimant underwent a revision of his left thumb amputation stump on August 5th, 1975.

According to the claimant, he continued to suffer persistent left thumb stump pain as well as develop stomach and sleeping disorders, which prevented his return to work. In light of these ongoing difficulties, the WCB's Director of Medical Services examined the claimant on May 12th, 1978. We paid particular attention to the following comments, which were contained in his examination notes:

"This man reported and I examined his left thumb and checked the range of movement at his shoulders. There is good skin coverage of the stump of the left thumb, the amputation is through the neck of the proximal phalanx. The skin is mobile and appears to be completely non tender. The patient has normal movement at the M.P. joint of the thumb and is able to appose the stump to all fingers of his left hand. The temperature and colour of the stump and the remainder of the hand are normal. This man has full range of movement in all directions at both shoulder joints. The patient states that he has agonizing pain in the stump of his left thumb twenty-four hours a day. He states he seldom if ever sleeps because of this. He states that the thumb stump feels as if it has been hit with a sledge hammer and then squeezed in a vise and this has been present since the time of the accident. He has multiple bizarre complaints regarding his condition generally and he attributes practically all of this to the thumb and the cervical sympathectomy that was carried out. I attempted to discuss the situation with him, but he became progressively more agitated as the interview went on and when I finally explained to him that I thought most of the symptoms relative to his hand were of a psychological nature, he flew into a violent rage, and stamped out of the office slamming my door behind him with such force that it attracted considerable attention from people within the area. For a man claiming to be so disabled that he is unable to lift a snow shovel or run a step, such an exhibition of physical power was somewhat remarkable. The man incidentally is obese, but otherwise appears to be the picture of health."

There is a letter on file addressed to the WCB from one of the claimant's many treating physicians dated January 7th, 1984. This particular physician first examined the claimant on October 12, 1983. He advised the WCB in part as follows:

"His left arm felt colder to touch than his right, and he had hypersensitivity of his left thumb to even light pressure. Peripheral pulses were good. I could not find any evidence of loss of function. In spite of his complaints of pain. The stumb (sic) in the left thumb appeared well healed, and no abnormal masses were palpable. I felt that this man has chronic pain of the left arm and neck primarily relating to a histrionic personality disorder."

Also of significance were the comments made by a treating physician contained in his letter of July 11th, 1988 to the claimant's lawyers.

"There is no question whatsoever that this patient has experienced a pain syndrome following a left thumb interphalangeal amputation unsuccessfully treated by a left cervical sympathectomy, however his other complaints have defied medical diagnosis and this indeed is the opinion of the specialist who saw him at the Mayo Clinic. The patient's suffering and disability is considerable but it is extremely difficult to qualify the degree of his disability as due to the primary injury, or due to the possible side effects of the sympathectomy, or more than likely due to the psychological response of the patient to his problems."

The claimant underwent a musculoskeletal evaluation at the Mayo Clinic on June 3rd, 1988. A comprehensive and detailed report was prepared and forwarded to the treating physician on July 14, 1988. This report chronicled not only the claimant's post-accident attempts at returning to work, but also outlined significant examination findings:

• In 1978 he briefly attempted to work as a guard but hurt his hand again.
• Subsequently he tried again a number of times to work, but only was able to work briefly due to recurrence of his left thumb pain and seizures.
• In 1980 his orthopedist recommended going to work where it was warm. Therefore the patient moved out West to British Columbia. He has attempted to return to work several times since then, but relates that he has been unsuccessful in these attempts.
• In June 1987 he went to the Vancouver General Pain Clinic where he received four stellate ganglion blocks resulting in 'great' relief of the throbbing pain in his thumb. This relief lasted approximately three months, but returned when he attempted to return to work in September 1987.
• He had started his own landscaping business and relates that he was able to 'do anything with it'; however, in September 1987 while digging, he hit a sharp stone with his thumb and 'broke it open', and has had 'pain ever since'.
• He relates that, since the onset of this pain, he has seen 423 doctors and that the Mayo Clinic is his last resort.
• The patient has also had two whiplash injuries in May 1986 and October 1987.
• The patient reports that, despite his limitations related to thumb pain, he continues to be very active. He reports that recently he single- handedly lifted a 160-pound safe into the back of a truck.
• Strength testing including all thumb muscle testing was within normal limits and symmetric.
• Deep tendon reflexes were physiologic and symmetric.
• Examination of his hands showed amputation at the level of the left first interphalangeal joint which was well healed. He had no swelling or warmth. As noted, the patient has thick, tough skin on both of his hands with callous formation.
• The patient was evaluated by Dr. [name] of Neurology on June 3, 1988. His findings were: 1) essentially normal neurologic examination, 2) pain behavior, and 3) psychogenic spells [of mental origin]. He recommended no further evaluation or treatment.
• Diagnosis:
  • Status post left thumb interphalangeal joint amputation.
  • Psychogenic spells.
  • Dyspnea on exertion, questionable left diaphragm paralysis.
  • Pain amplification.
• The patient further has psychogenic spells. These spells appear to have no organic basis; therefore, there is no impairment for this.

When questioned by the Panel, the claimant confirmed that he had applied for and/or attempted approximately 47 jobs between 1975 and 1991. These attempts were unsuccessful as he said that he would be subject to seizures, blackouts and stomach disorders. According to the claimant, he would be incapacitated for up to three and a half-hours at a time. "I've driven buses, drove transports, and I'm scared to get behind the wheel of a transport. I've tried it, but then I drive maybe a few miles and, all of a sudden, I've got to pull over because I'm going into a disoriented (sic)." We find it very difficult to understand how the claimant, despite these occurrences, has been able to maintain a valid drivers license. Although he did state that he almost had his "licence taken away three or four times because of this disoriented (sic)."

We find that the claimant was not totally disabled as a result of his compensable injury. The preponderance of evidence does not, in our view, support the claimant's contention that his seizures, stomach and sleep disorders, which developed subsequent to the compensable accident, are in fact causally related to this event. We further find that the claimant's alleged persistent left thumb stump pain or chronic pain was not, on a balance of probabilities, totally disabling. It was largely the claimant's evidence that his lack of employability was directly related to his sleep disorder, which we have found to be non-compensable. Accordingly, the claimant is not entitled to additional benefits with respect to his left thumb injury of May 3rd, 1974.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of October, 2000