The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 8, 2001, at the request of an advocate, acting on behalf of the claimant. The claimant was appealing the following decisions that were rendered by the Review Office of the Workers Compensation Board (WCB) of Manitoba:

1. that he was not entitled to wage loss benefits after February 2, 1996 as a consequence of symptoms involving his right upper extremity; and
2. that he was not entitled to medical aid assistance beyond May 1, 1996 as a consequence of symptoms involving his right upper extremity.

The Panel discussed the appeal on a number of occasions, the last one being April 23, 2002.

Issue

Whether or not the claimant has entitlement to wage loss benefits after February 2, 1996 as a consequence of symptoms involving his right upper extremity; and

Whether or not the claimant is entitled to medical aid assistance beyond May 1, 1996 as a consequence of symptoms involving his right upper extremity.

Decision

The claimant is not entitled to wage loss benefits after February 2, 1996 as a consequence of symptoms involving his right upper extremity; and

The claimant is not entitled to medical aid assistance beyond May 1, 1996 as a consequence of symptoms involving his right upper extremity.

Decision: Unanimous

Background

A complete background concerning the details of this case can be found in Appeal Panel Decision No. 172/97 dated July 31, 1997 and will not be repeated in its entirety at this time.

In October 1995, the claimant began to notice soreness in his shoulders, arms and wrists during the course of his employment as a construction laborer. The claimant was diagnosed with tendonitis of his shoulders, elbows and wrists and a repetitive strain injury. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid between November 10, 1995 and February 2, 1996, when it was determined that the claimant had recovered from the effects of his compensable accident.

On September 24, 1996, a worker advisor asked Review Office to award retroactive benefits and medical aid assistance to the claimant based on a report from a sports medicine specialist dated September 3, 1996. The sports medicine specialist diagnosed the claimant with distal biceps tendinitis on the right side, lateral epicondylitis and possibly a degree of rotator cuff tendinitis. The specialist opined that the claimant was unfit to return to his pre-accident job duties and that his injuries were work-related.

On November 1, 1996, Review Office ruled that the claimant's right sided symptoms in September 1996 and the comments expressed by his physician regarding causation, were predominantly based on historical information provided by the claimant. Review Office was unable to place much weight on this particular evidence as the historical information had been inaccurately represented. On a balance of probabilities, Review Office found insufficient evidence to establish that the claimant suffered a personal injury to his right shoulder, arm, elbow or wrist or that a cause and effect connection was established between the injury and a work related hazard or accident.

In a decision dated July 31, 1997, the Appeal Panel found minimal evidence of injury to the claimant's right upper extremity following his stoppage from work on November 9, 1995. In the Panel's view, there was evidence to support that any condition the claimant had to his right upper limb had resolved by December 11, 1995. The Panel concluded that the claimant was not entitled to wage loss benefits after February 2, 1996 or to medical aid assistance beyond May 1, 1996.

On January 15, 1998, a worker advisor wrote to the Chief Appeal Commissioner requesting that a new Appeal Panel hearing be convened under section 60.91(1) of the Workers Compensation Act (the Act). The worker advisor made reference to three medical reports which the claimant considered were new and substantial evidence to support his claim for compensation. The request for reconsideration was denied on February 16, 1998, as the reports did not disclose anything "new" that was not previously considered by the Appeal Panel.

In a second letter dated September 3, 1998, the worker advisor asked the Chief Appeal Commissioner to consider the results of a July 1998 Functional Capacity Evaluation along with a medical certificate dated August 7, 1998. The worker advisor believed that this information was new and substantial evidence that was not considered at the time of the 1997 Appeal Panel hearing. On September 24, 1998, the request for reconsideration was denied by the Chief Appeal Commissioner as it was determined that the evidence did not disclose anything "new" that was not previously considered by the Appeal Panel.

On June 13, 2001, an advocate for the claimant wrote to the Chief Appeal Commissioner noting that the claimant filed a 1999 claim for a repetitive strain injury. In the course of the new claim a Medical Review Panel (MRP) took place whereby the MRP stated that the claimant's current condition was a repetitive overuse syndrome related to his 1995 compensable injury which "permanently enhanced a pre-existing condition, which was related to overuse in the heavy construction industry." The advocate believed that the MRP's report was significant new medical information that was not available at the time of the first Appeal Panel hearing. The advocate therefore requested reconsideration of Appeal Panel Decision No. 172/97 under Section 60.91(1) of the Act. On August 22, 2001, the request for reconsideration was granted by the Chief Appeal Commissioner and a new hearing took place on November 8, 2001.

Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's treating rheumatologist. On December 12, 2001, all interested parties were provided with the information that was received from the rheumatologist and were asked to provide comment.

On January 23rd and February 4, 2002, the Panel met further to discuss the case. The Panel requested that clarification be obtained from the March 14, 2001 MRP with respect to its responses to questions one and two that were posed by a supervisor of Rehabilitation & Compensation Services. On March 19, 2002, the MRP responded to the Appeal Panel's request and the MRP's report was forwarded to the interested parties for comment. On April 23, 2002, the Panel met to render its final decision on the issues under appeal.

Reasons

After a great deal of discussion and investigation into the claimant’s file, the Appeal Panel is unanimously of the opinion that the claimant is not entitled to wage loss benefits after February 2, 1996 nor is he entitled to medical aid assistance beyond May 1, 1996 in relation to symptoms involving his right upper extremity. We have arrived at this conclusion on the basis that we have been unable to relate the claimant’s right upper body complaints (referred to as carpal tunnel syndrome in his 1999 accident file) to this particular claim filed as a result of a claim made in 1995 where benefits were paid between November 10, 1995 and February 2, 1996. No causal relationship has been established between the 1995 accident and the ongoing right upper body complaints that arose in 1999 and were referred to in the MRP as being caused by “repetitive overuse syndrome.”

We are in agreement with the previous Appeal Panel Decision No. 172/97 wherein the Panel dealt with the exact same issues that are before us. On a balance of probabilities, we find that the MRP dated March 14, 2001 is not helpful to us in resolving these issues surrounding the claimant’s 1995 issues. It may be helpful in determining whether the claimant has outstanding medical problems in relation to his 1999 claim, however that is not the issue that is before us. We are of the specific opinion that the MRP’s referral to the claimant as suffering from “repetitive overuse syndrome” is not a specific diagnosis and is not supportable in relation to the balance of the evidence on the claimant’s 1995 accident file as we were unable to find any other pathology referred to in the MRP that was produced to connect the claimant’s right upper body problems to his 1995 claim. The MRP in the long run was not helpful in determining the issues before us.

In response to the issues that are before us, Appeal Panel Decision No. 172/97 found that there was “minimal evidence of injury to the claimant’s right upper extremity following his stoppage from work on November 9, 1995.” They found specific evidence to conclude affirmatively that any condition that the claimant had to his right upper limb had resolved by November 11, 1995. We are in agreement with all of the facts found by that Appeal Panel (including sixteen specific points of evidence which will not be delineated here) and would add and/or emphasize the following:

We are impressed by the thoroughness of this examination and its relative proximity to the accident date.

• another physical examination of the claimant took place in fairly close proximity to the accident date. This was performed on July 10, 1997 by the WCB orthopaedic consultant. He found that the history given by the claimant and his own findings on examination of the claimant did not “really suggest a definite diagnosis.” The history reported by the claimant of “numbness” was not found to be compatible with a musculoligamentous overuse type of syndrome. He specifically found that there was “no definite injury as such” and that the findings were not compatible with lateral epicondylitis. There was a good range of movement in the shoulders at the time without any signs of impingement, tendonitis or tendon ruptures.
• in a report dated August 1, 1997, a specialist found that there was no obvious neurologic cause for the claimant’s pain (a fact confirmed earlier in tests conducted by a neurologist). This specialist was unable to find the exact etiology and reason for the persistence of the claimant’s complaints.
• a further orthopaedic opinion offered to the claimant in a report dated September 2, 1997 found good range of motion in the neck without pain. There was no obvious deformity in the shoulders which were moving with minimal tenderness. Both shoulders had a good range of motion without any significant pain. An impingement test was negative in both shoulders and both shoulders were stable. There was no obvious deformity in the elbows which were stable with a good range of motion. The lateral epicondyles were not tender in both forearms and the wrist examination was essentially negative. Essentially, the claimant’s examination at that time was normal.
• a further examination done by the claimant’s doctor on October 21, 1997 also resulted in a normal examination with no evidence of any muscle wasting and full range of movement in the neck, shoulders, elbows and wrists. Grip strength was fairly good.
• The claimant’s doctor at the time was of the impression that the claimant had “largely recovered from the effects of the compensable injury.”

For all of the above reasons and the reasons set out in Appeal Panel Decision No. 172/97, we are of the opinion that the claimant had recovered from the effects of the 1995 injury by February 2, 1996 and May 1, 1996 with respect to any further need for medical aid assistance. We note that the claimant continued to work after this point although his recollection of his entire work history is less than helpful and “spotty” at best. Nevertheless it appears that he worked for a security company in 1998-1999, a construction company in 1999 and most recently in another security job. By his own admission he discontinued this latter work because the job finished (transcript of proceedings p. 26).

We have also taken into account the lack of medical complaints and interventions between 1996-1997 and 1999. This has led us to conclude along with other conclusions above referred to, that the claimant’s condition had long resolved by this period of time. In fact, the first real indication on the claimant’s file that he was again suffering from problems in relation to his right upper body extremity, is in the context of the claimant’s 1999 accident file. This information relates to a report by a neurologist dated June 16, 1999 wherein the doctor notes the following:

He still complains that if he is screwing something with his right hand, the entire hand goes numb and cramps….

I am not sure if these symptoms are related to so-called medial nerve entrapment at the wrist but nerve conduction study did demonstrate moderate focal median neuropathy at the wrist, with both motor and sensory criteria and that was on the left side, on the right side, it shows the same with motor but not sensory evidence.

Accordingly, we find that the claimant’s right upper body symptoms had resolved by February 2, 1996 and that the weight of the evidence is in support of this. If there are further difficulties with the claimant’s right upper extremity they did not arise again until the 1999 accident claim and ought to be adjudicated in that context.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of June, 2002