The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A reconvened Appeal Panel hearing was held on September 25, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 25, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits or services beyond December 18, 1999.

Decision

That the claimant is not entitled to wage loss benefits or services beyond December 18, 1999.

Background

In 1997, the claimant filed an application for compensation benefits in which she related her right-sided carpal tunnel syndrome (CTS) to her work activities as a grocery cashier. The Workers Compensation Board (WCB) accepted the claim and on September 10, 1998, the claimant underwent right endoscopic decompression and neurolysis surgery. On November 29, 1998, the claimant returned to her regular duties as an express cashier following a course of physiotherapy.

On May 30, 1999, a progress report received from the attending physician noted longstanding pain/numbness, which had not resolved since the initial injury. Arrangements were made for the claimant to undergo repeat nerve conduction studies.

Repeat nerve conduction studies were performed on June 14, 1999. The neurologist reported that the studies were normal but clinically, he suspected that the claimant still had mild bilateral CTS. A number of treatment options were outlined, one which included repeat right wrist surgery.

Following a review of all medical information together with a review of sworn statements obtained from the claimant and employer, a WCB medical advisor stated on June 15, 1999 that there was a direct cause-effect relationship between the current diagnosis (possible CTS) and the work injury. On July 2, 1999, the claimant was advised that the WCB was accepting responsibility for her current wrist problems along with the costs associated with the purchase of wrist braces.

On June 17, 1999, a plastic surgeon reported that the claimant continued to have problems and that the claimant wished to proceed with surgical intervention. He noted that the claimant had previous endoscopic CTS, but still presented with a lot of paraesthesia and dysesthesia of the volar wrist. The specialist recommended that the claimant be assessed by a WCB physician with the intention that open surgical neurolysis including palmar cutaneous branch should be undertaken. The specialist noted that the claimant's concerns seemed to be somewhat disproportionate to her work abilities, but there may be no other option available to her other than open neurolysis.

A WCB medical advisor reviewed the case on August 10, 1999 and concluded that the claimant was totally disabled from performing her pre-accident duties as a cashier and specific restrictions were outlined.

On September 30, 1999, a WCB physical medicine and rehabilitation consultant examined the claimant, after which he provided the following observations and comments:

• there was limited evidence to support any median nerve involvement at the wrist, based on the current clinical examination. There was good power, no wasting evident in the hands and intrinsic muscles, and no definite sensory impairment detected;
• there was some pain behavior and pain limiting behaviour affecting the physical examination. There appeared to be symptomatology originating from the soft tissues primarily on the right upper extremity.
• there was no myofascial pain activity present;
• there appeared to have been expansion of various symptomatologies as compared to that recorded earlier in the file and subsequent to the surgery. There was a report of more recent progression of symptomatology of episodic numbness to the 4th and 5th fingers on the left. Speculation was that this was related to some ulnar nerve irritability, which did not appear to be related to the original work injury.
• that further surgery would not be beneficial for the claimant.

The next report received on file was from a pain and stress management specialist dated October 27, 1999. The specialist stated that the claimant was suffering from myofascial pain of both infraspinatous muscles, a shortening of the forearm flexors on both sides and neuropathic dysesthesias originating possibly from the right median nerve.

In a further memo dated November 2, 1999, the WCB physical medicine and rehabilitation specialist commented that there were no definite impairment conditions at present, which were currently related to the prior stated injury. There was no evidence of tendonitis, although there was some soft tissue tenderness, which would resolve with fitness activities. He did not suspect any permanent or longstanding restrictions were necessary and that any residuals should be reversible. He suggested that the claimant begin a graduated return to work program to her regular duties over a 4-week period.

On November 10, 1999, the claimant was apprised of the WCB's physical medicine and rehabilitation specialist's comments and opinions. The WCB considered the claimant capable of beginning a graduated return to work program. It was anticipated that by the end of the program the claimant would be able to resume her full work duties at full hours at which time wage loss benefits would be terminated.

Nerve conduction studies performed on December 11, 1999 noted that the median nerves were essentially normal. Clinically, the neurologist indicated that it looked like the claimant had some residual bilateral carpal tunnel syndrome, right worse than left.

File documentation showed that the WCB referred the claimant to a psychiatrist with respect to concerns that the claimant might possibly be suicidal. In a report prepared by the psychiatrist dated March 3, 2000, it was his opinion that the claimant had a diagnosis of depression, alcohol abuse disorder, and bilateral carpal tunnel syndrome with an associated chronic pain condition.

A report received from the pain and stress management specialist dated March 18, 2000 noted the claimant continued to have right wrist and hand pain, both of an aching variety in the forearm and a neuropathic type of pain at the wrist. The claimant's sleep pattern was disturbed and her mood was somewhat depressed.

On June 15, 2000, a union representative advanced the argument that the claimant's depression was directly related to her compensable injury and the resulting influences she had experienced. The claimant was considered by the union representative to be unable to resume full regular duties at the end of her graduated return to work program for a variety of compensable reasons.

Following a meeting with a WCB psychology consultant, the claimant was advised by letter dated July 25, 2000, that a cause and effect relationship did not exist between her depression and the compensable injury. "The rationale for this is there are several pre-existing factors, which would predispose you to the development of a depressive disorder and contribute to your depression."

In a decision dated September 29, 2000, Review Office determined that the claimant was not entitled to wage loss benefits or services after December 18, 1999. Review Office did not believe that the weight of evidence supported entitlement to benefits and services after December 18, 1999. There were insufficient physical findings. There was very little in the way of objective medical and other evidence to support disability after December 18, 1999 in relation to the effects of the worker's compensable bilateral CTS. With respect to the claimant's depression, Review Office did not find it had been established, on the balance of probabilities, that such problem was the result of the work injury. The claimant's depression appeared to be more likely due to her history of alcohol abuse and personal problems.

On December 1, 2000, the union representative disagreed with Review Office's decision and filed an appeal. An oral hearing was then arranged for March 29, 2001. As the claimant had taken ill and was unable to attend, the hearing was adjourned sine die. Later, arrangements were made for the hearing to be reconvened on September 25, 2001.

Reasons

A WCB medical advisor reviewed the claimant's file on November 2nd, 1999. Following the review, the medical advisor recommended a gradual return to work program to regular duties over a four-week period. Although it's not entirely clear when the claimant actually did return to work, the evidence does, however, confirm that as of December 18th, 1999 the claimant was no longer experiencing any further wage loss and as such the payment of benefits was terminated. The claimant indicated at the hearing that she has been continuously at work performing her regular pre-accident duties as a cashier since the termination of her benefits in December 1999.

The claimant's union representative advanced the argument that the claimant's psychological state and depression was a direct sequela of her compensable injury. "It's our position that [the claimant's] depression is directly related to her compensable injury and the resulting influences that she experienced. She would be unable to resume her full and regular duties at the end of her graduated return to work for a variety of reasons, all of which are compensable in our view."

A WCB medical advisor referred the claimant for psychiatric assessment on March 2nd, 2000. Other than this initial examination, there has been no psychiatric treatment provided to the claimant since.

Q. So Dr. [name] has been it. And you haven't been seeing anybody else since then for any psychological things?

A. No.

It should be noted, as pointed out by the employer's representative, that "[b]etween December 18, 1999 and February 17, 2000, when [the claimant's] psychological issues were brought to light, there was no medical information to support disability during this time."

We find the evidence does not support the contention that the claimant's depression and psychological difficulties are in any way related to her compensable injury. The evidence further confirms that the claimant has not experienced a loss of earning capacity following the termination of benefits in December 1999. Accordingly, the claimant is not entitled to wage loss benefits and services beyond December 18, 1999.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 1st day of November, 2001