Decision #30/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 20, 2004, at the claimant's request. The Panel discussed this appeal on the same day.Issue
Without considering the right shoulder, whether or not the worker is entitled to a Permanent Partial Disability award in relation to any other part of his anatomy stemming from the compensable accident of March 14, 1991.Decision
That the worker is not entitled to a Permanent Partial Disability award in relation to any other part of his anatomy stemming from the compensable accident of March 14, 1991.Decision: Unanimous
Background
In March 1991, the claimant filed a claim with the Workers Compensation Board (WCB) for a right shoulder injury that occurred at his place of employment. The claim for compensation was accepted by the WCB and benefits were paid to the claimant between March 14, 1991 and February 21, 1992 when it was determined that he had recovered from the effects of his compensable injuries.On October 17, 2002, primary adjudication advised the claimant that he was not entitled to a Permanent Partial Disability (PPD) award in relation to his right arm/shoulder injury as it had been determined that he had sufficiently recovered from the effects of his compensable injuries. As the claimant disagreed with this decision, the case was forwarded to Review Office for consideration.
In a decision dated November 22, 2002, Review Office made reference to a number of medical opinions on file by various specialists and on whom the claimant had attended for treatment. These included an orthopaedic specialist, a neurologist, a physiatrist and a neurosurgeon. In addition, Review Office considered the results of a number of laboratory investigations that the claimant underwent (i.e. CT arthrogram, bone scans and MRI results) as well as the opinion expressed by medical personnel from the WCB's healthcare branch.
The Review Office confirmed that the claimant did not have a permanent ratable disability resulting from his 1991 accident. Review Office noted the opinion put forth by the WCB's Healthcare branch that the claimant had not suffered a permanent impairment by reason of his accident. Review Office further commented, "…many doctors and specialists who have reviewed this worker have commented on the difficulty in examining the worker, the degree of non-anatomical findings and the fact that with passive movement the worker has a full range of shoulder movement whereas actively he demonstrates a considerable loss in range of movement. The schedule states the range of motion will be calculated on the passive rather then (sic) the active range. In summation, Review Office is of the opinion the worker does not have a rateable loss in range of shoulder movement resulting from this accident and he is therefore not entitled to a permanent partial disability award."
On January 23, 2003, an oral hearing took place at the Appeal Commission as the claimant disagreed with Review Office's decision. The hearing was adjourned sine die at the request of the claimant's solicitor, who wanted to obtain further medical information with respect to the claimant's alleged loss of range of motion in the right shoulder region. The hearing reconvened on June 17, 2003.
In a decision dated July 23, 2003, the Appeal Panel stated the overwhelming evidence did not support the claimant's contention of his having sustained a permanent partial disability/impairment of the right shoulder. The Panel noted there was no apparent diagnosis in play which was either causally related to the claimant's compensable injury or to his current right shoulder difficulties. For complete details surrounding this decision, please refer to Appeal Panel Decision No. 83/03.
On September 15, 2003, the claimant forwarded a submission to Review Office in which he requested consideration for a permanent partial disability award (PPD) in relation to the "multiple injuries" that he sustained in his March 14, 1991 compensable incident.
In a memo to the Appeal Commission's Registrar dated September 24, 2003, Review Office noted that its decision of November 22, 2002 encompassed not only the claimant's shoulder but all parts of his anatomy. Based on Review Office's clarification, the Appeal Commission's Registrar advised the claimant on September 26, 2003, that if he wished to proceed with his appeal, the matter could now be considered by an Appeal Panel. On October 3, 2003, the claimant filled out a "Application to Appeal" and an oral hearing took place on January 20, 2004.
Reasons
The claimant is contending loss of function of his right arm and hand. Legal counsel acting on behalf of the claimant asserts that these permanent difficulties were caused by a brachial plexus injury. In particular, counsel relies heavily on a treating physician's opinion, which is contained in a letter to him dated January 19, 2004:"Mr. [the claimant] had work related injury on March 14, 1991. He has permanent injury of his right arm and hand due to brachial plexus injury/strain and chronic mechanical lumbar strain. The above injuries are caused by work related accident."
However, after thoroughly reviewing the medical evidence on file, it became readily apparent that this neurological problem (brachial plexus) had been specifically tested for and ruled out by two treating neurologists. In March 1992, the neurologist found no evidence of any nerve problem in this gentleman's right upper extremity. He did note, however, that there was a large functional overlay with regards to this gentleman's symptoms. On June 28, 2000 a second consulting neurologist provided in part the following report to the attending physician:
"This patient came for review on 26 June 2000. I understand you are looking after him currently. I had seen him last in 1997. However, I had seen him in 1992 when an EMG was performed of the right deltoid and trapezius which was normal. Also, in 1993 he had a test for right carpal tunnel syndrome and further EMG around the right shoulder joint which was normal. In conclusion, as before, I do not find evidence of neurological dysfunction."
We find based on the preponderance of medical evidence that the diagnosis of brachial plexus injury is clearly not supported. After having dismissed the recently suggested cause of the claimant's right arm and hand difficulties, we are left with only the claimant's functional overlay, which has been the topic of virtually all medical reports. In this regard, we further find that this functional overlay is not a compensable sequela of his original injury and accordingly cannot be rated for a permanent partial disability award.
We carefully reviewed with and questioned the claimant as to the mechanism of his alleged back injury in 1991. This exercise was conducted for the purpose of assessing which, if any, of the claimant's current back complaints were related to his original compensable injury. We note that the original findings with respect to the claimant's back were very minor in nature and medical focus was directed more to his right shoulder problems.
In determining the compensability/non-compensability of the claimant's lower back difficulties, we attached considerable weight to the following evidence:
- July 17, 1992 - Treating Orthopaedic Surgeon's notes - "Pt. again comes in complaining of neck pain, shoulder pain, back pain. On examination he moves in a peculiar way. As far as I can tell there is full range of neck, shoulder and low back movement. He complains of severe pain, but there is very little in the way of actually localized tenderness. I do not think there is any mechanical injury that I can detect. I think there is a huge psychogenic overlay."
- October 5, 1993 letter from a rehabilitation medicine specialist to the treating physician - "In his back he complained of tenderness at the L4-5 area. When I asked him to bend his back he went into all kinds of contortions again and if at all he did have organic cause this would have hurt his back in the movements that he does. On assessing his reflexes, they were equal; bilaterally. In straight leg raise, when assessed in sitting he could raise up to 90 but the minute he lay down he says he could only raise it to 30, showing there is some other motive in him not being able to raise his leg. He had good mobility of his hips, knees and ankles. I find no evidence of any pathology, there is no laxity of ligaments, there is no crepitus and there is no heat or swelling. I told him that there was nothing that I could treat him for because I could not find any organic cause for his pain."
- June 22, 2000 Bone Scan - "Increased uptake is also seen within the patellae bilaterally and mildly increased uptake in the right S.I. joint superiorly. These are all sites commonly associated with degenerative disease."
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of March, 2004