The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 21, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to the payment of wage loss benefits beyond November 19, 2003; and

Whether or not responsibility should be accepted for the worker's psychological condition beyond the two post November 19, 2003 treatments.

Decision

That the worker is entitled to the payment of wage loss benefits beyond November 19, 2003; and

That responsibility should be accepted for the worker's psychological condition beyond the two post November 19, 2003 treatments.

Decision: Unanimous

Background

In October 2001, the worker filed a claim with the Workers Compensation Board (WCB) for a right wrist injury that occurred during the course of her employment as a customer service representative on October 8, 2001. The worker described her injury to the WCB's call centre as follows "…I was putting away timers and I grabbed one and as it came off the shelf -- it fell but I was still holding it and this caused my wrist to twist."

Initial medical reports by the treating physician diagnosed the worker with a sprain/tendonitis of the right wrist. The claim was accepted by the WCB and benefits commenced on October 10, 2001.

On February 4, 2002, the worker's right wrist was assessed by a hand specialist upon referral by the attending physician. The hand specialist's diagnosis was an acute tendonitis of the flexor carpi ulnaris tendon and the worker was treated with a Triamcinolone injection.

In a follow-up report dated March 18, 2002, the hand specialist noted that the worker's condition did not improve from her previous injection and that the majority of her pain came from the pisiform and the pisitriquetral joint.

On May 13, 2002, the hand specialist noted that the worker's tendonitis of the flexor carpi ulnaris was showing improvement but the pisiform bone was still tender but remained stable. Apart from the usual non-steroidal anti-inflammatory medications and the regular use of ice packs, the specialist felt there was very little to offer the worker.

The worker underwent a Functional Capacity Evaluation (FCE) at the WCB's offices on July 16, 2002. It was noted that the worker did not complete the FCE protocol and her participation during the FCE was a full voluntary effort passing 5 validity checks.

On August 28, 2002, the worker was examined by a WCB medical advisor and it was suggested that further investigations be carried out which included a bone scan and a right wrist MRI to clarify the structural basis of the worker's right wrist.

A bone scan was carried on September 25, 2002 and the results were considered to be normal. The MRI of the right wrist taken on October 21, 2002 revealed an intact TFCC and possible pisitriquetral arthrosis.

In a December 2, 2002 report, the hand specialist commented that recent MRI confirmed the presence of an arthrosis at the pisotriquetral joint and an excision of the pisiform bone was suggested.

On January 20, 2003, the worker returned to work but experienced pain and soreness in her wrist from typing and writing. On February 7, 2003, the worker was sent home from work as the employer felt the worker was not physically or emotionally fit to work.

In a memo to file dated February 10, 2003, a WCB case manager stated that the worker's hand was aching and swelling and that the worker felt that her medications were affecting her mood. The case manager said she was referring the worker to a psychologist given the length of her claim.

A WCB medical advisor reviewed the case on February 19, 2003 and stated, in part, the following:

"The October 21, 2002, MRI findings of minimal sclerosis of the pisiform at its articulation with the triquetrum is non-specific in nature. This MRI finding does not correlate with what has been reported to be disabling symptoms regarding use of the right hand for keyboarding and writing. This view is substantiated by the September 25, 2002, normal wrist bone scan indicating the absence of any inflammatory process at the pisitriquetrel articulation."

On March 28, 2003, a WCB case manager provided the worker with details regarding a proposed graduated return to work program. The worker was informed that the WCB was accepting responsibility for psychotherapy and a prescription for Paxil while she was participating in the return to work program. The case manager also stated that she had been unable to establish a relationship between the worker's psychological condition and her work injury but that additional information was being requested from the treating psychologist.

The worker was assessed by a clinical psychologist in March, April and May 2003. In a report to the WCB dated May 20, 2003, the clinical psychologist stated, in part, that the worker "continued to suffer from ongoing depressive symptomatology secondary to a work based injury."

The worker was assessed by a second orthopaedic surgeon on June 9, 2003. The surgeon outlined his examination findings and commented that the worker may have piso-triquetral arthritis and CT scans of both wrists were ordered.

A CT scan of both wrists was taken on September 17, 2003. The results revealed no significant degenerative change in the piso-triquetral joints.

On October 29, 2003, a WCB medical advisor reviewed the file information and he advised primary adjudication that "…the medical information had not established a probable diagnosis, confirmed by medical means, to account for the worker's right wrist symptoms and associated reported impairment of function."

On November 3, 2003, the second orthopaedic surgeon noted that the worker was extremely tender over the pisiform bone with pisotriquetral compression. He further stated, "Despite the equivocal changes on the CT scan, it would be my recommendation that she undergo pisoform (sic) excision."

In a letter to the orthopaedic surgeon dated November 12, 2003, a WCB medical advisor indicated that the WCB was unable to accept responsibility for the proposed surgery as all testing failed to demonstrate any specific pathology that could be considered causally related to the October 8, 2001 compensable injury.

On November 14, 2003, the WCB advised the worker that wage loss benefits would be paid to November 19, 2003 inclusive and final. It was the WCB's position that the medical information on file did not support disability and that the worker had recovered from the effects of her compensable injury. The worker was also informed that the WCB would accept responsibility for two additional sessions with the psychologist which would likely take place after November 19, 2003.

In a report to the WCB dated February 11, 2004, the clinical psychologist stated, in part, the following:

"…Ms. [the worker] has had a workplace injury that has caused her significant physical and psychological stress to date. Medical investigations have returned unremarkable however, Ms. [the worker] has held fast with her position of not returning to work until her pain has been addressed. Ms. [the worker's] defense mechanisms are noteworthy for suppression and denial, and it seems unlikely that her complaints are secondary to a histrionic presentation style as she leans towards characteristics consistent with minimization."

On February 16, 2004, a worker advisor, acting on behalf of the worker, wrote to Review Office and expressed the view that the worker had not recovered from the effects of her compensable injury and remained unable to return to work. The worker advisor asked that the WCB reinstate the worker's wage loss benefits retroactively and accept the worker's depression as being compensable.

In a decision dated April 29, 2004, Review Office determined that wage loss benefits were not payable to be the worker beyond November 19, 2003 as it was felt that the worker's time loss was not related to the October 8, 2001, injury. Review Office was of the opinion that all testing which included x-rays, bone scan, MRI or CT scan findings did not shed any light on a diagnosis for the worker's right wrist condition. Note was also made that a WCB senior medical advisor would not authorize surgery on what appeared to be a normal wrist. Review Office concluded that after two years of attempts at physical rehabilitation of the right wrist condition and having no explanation for the worker's complaints, it could not take a position that ongoing responsibility should be extended beyond November 19, 2003.

With respect to the worker's psychological condition, Review Office suspected that the worker had prior psychological investigations which pre-dated the 1988 scenario mentioned by her psychologist. With respect to the psychological reports which indicated that the worker had a sleep disorder, Review Office said the reports did not show an investigation into the worker's state of sleep contentment before October 8, 2001 and that there would be rather a slim chance that the worker did not have a sleep disorder before October 8, 2001 given the medical evidence on file. Review Office agreed with the WCB's case manager that ongoing responsibility for the worker's psychological condition beyond the two treatments that were authorized post-November 19, 2003 was not deemed compensable and related to the October 8, 2001 compensable injury.

In June 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

There were two issues before us. We were asked to determine whether the worker is entitled to wage loss benefits beyond November 19, 2003 and whether responsibility should be accepted for the worker's psychological condition beyond the two post November 19, 2003 treatments.

For the worker's appeal on the first issue to succeed we must find that the worker was not able to return to work after November 19, 2003 because of her workplace injury. We were able to find that the worker's workplace injury prevented her from returning to work and that she continues to be unable to perform her pre-accident duties. In other words, we find that her loss of earning capacity after November 19, 2003 is related to her workplace injury.

With respect to the worker's psychological condition, for the worker's appeal to succeed we must find that her psychological condition was related to her workplace injury. We were able to find that her psychological condition was related to her workplace injury and is therefore compensable.

The worker was represented at the hearing by the Worker Adviser Office. The worker's representative submitted that the weight of medical evidence confirms the worker has not recovered from her workplace injury. She noted that two specialists, one of whom was retained by the WCB, agreed upon the likely diagnosis and recommended surgery. She also noted that the psychologist whom the WCB referred the worker to, concluded that the worker's depression was directly related to her injury.

The worker provided evidence regarding the mechanics of the injury, her attempts to return to work, and her current symptoms both physical and psychological. She acknowledged receiving assistance for an anxiety disorder in 1988 but denied any subsequent or continuous symptoms or treatments. The worker indicated that she is willing to undergo the recommended surgery and would like to return to her pre-accident employment.

The employer was represented by the Senior Human Resource Manager who noted there has been a plethora of medical investigations and the claim has still not been resolved. The representative advised that the worker had been an excellent employee and that the employer would like to have the worker back at work. However, the representative confirmed there is currently no position for the worker, unless she is able to use both hands.

Wage loss benefits beyond November 19, 2003

We have reviewed the claim file and have considered all of the medical and other evidence. Although we appreciate this claim commenced with an apparent minor accident, the worker's condition has not resolved to the point that she can return to her pre-accident position. We find on a balance of probabilities, that the worker is entitled to wage loss benefits beyond November 19, 2003. In arriving at his determination we give significant weight to the opinion of the independent orthopedic surgeon to whom the WCB referred the worker.

This physician provided the following opinion in a report dated June 11, 2004:

"Since her symptoms have apparently not changed since the time of her injury until at least the 30th day of October 2003 when I last saw her, it would be my opinion that there is continuing cause and effect relationship between the right wrist condition and her workplace injury. I suggested surgical intervention based on the clinical findings of tenderness over the pisiform and pain on piso-triquetral compression. Examining this joint by diagnostic imaging tests is difficult since the articular surface itself is really never demonstrated. Changes in the articular cartilage can be present in the absence of possible diagnostic images and therefore to a large degree, the diagnosis must be based on clinical findings. This lady had undergone considerable attempts at rehabilitation without success. It was my opinion that excision of her pisoform (sic) based on the reported clinical findings represented a reasonable opportunity for pain relief. At no time was pain relief guaranteed to the patient but it was my feeling that excision of her pisoform (sic) bone represented a reasonable chance for resolution of her pain. This was obviously also the opinion of another consultant."

We also rely upon the opinion of the first treating surgeon. In December 2002, this physician made the same diagnosis and recommended the same surgery as the independent orthopedic surgeon. He advised the WCB that "A recent MRI confirms the presence of an arthrosis at the pisotriquetrial joint and I feel she would benefit from a simple excision of the pisiform bone." Based on these reports, we are satisfied that there continues to be a compensable medical condition that precludes the worker from returning to her pre-accident duties. In this regard, we also note the evidence from the employer that they do not have any one-handed duties. As such, the worker is not in a position to return to work in any capacity with the employer at this time.

We also agree with the opinions of these physicians, that it is reasonable to proceed with the recommended surgery.

Worker's Psychological Condition

In February 2003 the WCB case manager responsible for the worker's claim became concerned about the worker's emotional state and arranged for a consultation with a psychologist. The worker received treatments from this psychologist. In terminating the worker's benefits, the WCB authorized payment for two additional treatments from with the psychologist. At the hearing the worker advised that she continued to see the psychologist at her own expense following the two WCB authorized treatments.

In a report dated July 22, 2004 the psychologist states that the worker is suffering from depressive symptomatology. She advises that in her opinion the worker's etiological factors with respect to her depressive symptomatology are directly related to her workplace injury. She also opines that there is no rationale or evidence to suggest the worker's past episode of panic disorder in 1988 is connected to her current mental status. We also note the worker's evidence that she only received short term counseling services in 1988, and has not received any treatment for a mental health condition either before or after that time. We note as well that the worker and employer both agree that the worker's inability to return to work in 2003 was caused by a combination of her physical and psychological conditions.

We find, on a balance of probabilities, that the worker's psychological condition is related to her compensable condition.

The worker's appeal is allowed on both issues.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 29th day of September, 2004