The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 26, 2004 and was reconvened on June 7, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on several occasions, the last one being August 23, 2005.

Issue

Whether or not the compensable injury of December 17, 2001, precluded the worker from participating in the graduated return-to-work program from February 25 to March 23, 2002; and

Whether or not the worker is entitled to further benefits and services beyond March 23, 2002.

Decision

That the compensable injury of December 17, 2001, precluded the worker from participating in the graduated return-to-work program from February 25 to March 23, 2002; and

That the worker is entitled to further benefits and services beyond March 23, 2002 up to and including January 28, 2003.

Decision: Unanimous

Background

In January 2002, the worker filed a claim with the Workers Compensation Board (WCB) for problems that he was experiencing with his fingers, hands, wrists and arms that he attributed to his work duties as a baker. December 17, 2001 was the last date that he worked following the accident. On January 18, 2002, the WCB accepted the claim based on the diagnosis of bilateral epicondylitis. The worker also has a prior 1998 WCB claim for bilateral carpal tunnel syndrome (CTS).

In a report to the family physician dated January 25, 2002, a sports medicine specialist concluded that the worker's clinical presentation was in keeping with a resolving overuse strain involving his upper extremities. The specialist stated that the worker was able to return to work in some capacity and that his actual return date would be based on how the worker felt since there was insufficient objective evidence of an impairment of function that would preclude him from performing his occupational duties.

Following review of the medical information on file, a WCB medical advisor determined on February 6, 2002, that the worker was capable of a graduated return to work program starting at 3 hours per day for 2 weeks, 6 hours per day for 2 weeks, and then back to full duties.

On February 7, 2002, the worker advised his case manager that he could not resume his pre-accident duties as his arms were okay only when he was not doing anything to aggravate them. He experienced increased pain and swelling when he went to play pool with some friends and that he tried to make bread at home and could not do it.

The case manager contacted the worker's physiotherapist on February 8, 2002. The physiotherapist confirmed that the worker had a significant flare up after playing a couple games of pool, and that he had a 50% decrease in his range of motion, with tenderness to palpation and increased sensitivity. She stated that the worker was not quite back to where he was prior to the aggravation. The physiotherapist was optimistic that with another week of treatment, the worker could return to work during the week of February 18, 2002.

On February 21, 2002, the case manager provided the worker with details of his graduated return to work program, which was to begin on February 25, 2002. It was anticipated that the worker would be capable of resuming his full pre-accident duties effective March 24, 2002. The worker was advised that his failure to participate fully in the program might have an impact on his entitlement to WCB benefits.

On March 1, 2002, the worker advised the WCB that he had returned to work on February 28, 2002, but noticed an increase in pain after performing 3 hours of his regular duties. He stated that he was going to see his doctor and would call back.

On March 4, 2002, a WCB chiropractic consultant spoke with the treating chiropractor. The chiropractor indicated that the worker had full strength and range of motion but experienced a lot of pain with minimal activity. He thought that the diagnosis may be a low-grade tendinitis. The worker was strongly encouraged to participate in the graduated return to work program. He stated that the worker was very apprehensive because he felt his symptoms would become acute again due to the heavy, repetitive nature of his work. The chiropractor recommended four weeks of chiropractic treatment in conjunction with acupuncture treatment. Both treatments were authorized by the WCB.

In a telephone conversation with the treating chiropractor on April 3, 2002, a WCB case manager recorded that the worker had responded well to chiropractic treatment and that his pain was better. The chiropractor stated that he encouraged the worker to return to work. He was aware that the worker's position was "if he was ok to go into work he wouldn't be after he worked a couple of hours. [The worker] has indicated that the pain does 'go away' but comes back."

On April 3, 2002, a WCB case manager advised the worker that a WCB chiropractic advisor had reviewed his case and in his opinion there had been no further medical information which would limit the worker's participation in the graduated return to work program. As such, wage loss benefits would be paid based upon the graduated return to work schedule, up to March 23, 2002, inclusive and final.

In a submission dated November 6, 2002, a union representative asked the case manager to reconsider her decision to terminate the worker's benefits effective March 23, 2002. The union representative contended that there "…were and are genuine compensable reasons for Mr. [the worker's] absence from the workplace." Included with the submission were a number of reports received from a physical medicine and rehabilitation specialist (a physiatrist) dated June 7, 2002 through to October 16, 2002 for consideration.

On December 12, 2002, the case manager advised the union representative that the WCB was arranging for the worker to be examined by the WCB's physiatrist consultant to assess his current medical condition.

A WCB physiatry consultant examined the worker on January 28, 2003. Under Impression/Recommendations, the consultant indicated that there was no evidence of any active myofascial pain involvement, no evidence of epicondylitis and no evidence of any tendon sensitivity as was previously present. There was diffuse sensitivity to pressure in the upper and lower body, all quadrants, with 18 of 18 tender points as described for fibromyalgia syndrome.

In a decision letter dated February 26, 2003, the case manager advised the worker that she remained of the opinion that he had, on a balance of probabilities, recovered from the effects of his compensable injury and that there would be no change to the previous decision. The case manager based her decision on the fact that the WCB's consultant found no evidence of bilateral epicondylitis, but only a fibromyalgia syndrome, which was not a compensable diagnosis. On March 26, 2003, the union representative appealed this decision to Review Office.

On May 30, 2003, Review Office determined that the claim should be limited to a diagnosis of bilateral epicondylitis, that the compensable injury of December 17, 2001 did not preclude the worker from participating in a graduated return to work between February 25 to March 23, 2002 and that there was no entitlement to further WCB benefits and services. Review Office stated, in part, that the condition of fibromyalgia was well known to flare-up from time to time, with unknown factors causing it. In order to qualify for benefits, Review Office indicated that it must be established that the worker had sustained a personal injury by reason of an accident that 'arose out of and in the course of employment'. Following its review of all file information, Review Office was of the opinion that the claim was correctly accepted for a working diagnosis of bilateral epicondylitis and found, on a balance of probabilities, that the ongoing diagnosis was fibromyalgia. Review Office was of the view that the compensable injury was no longer contributing to a loss of earning capacity and that wage loss benefits were correctly paid to March 23, 2002 inclusive and final, with no further entitlement to WCB benefits and services.

In a further submission dated September 2, 2003, the union representative provided Review Office with additional medical information for consideration. Based on this new information, the union representative contended that the worker "…does not have fibromyalgia. He has myofascial pain syndrome, which, because it is secondary to his compensable injury, is also compensable."

On November 28, 2003, Review Office determined that no change would be made to its previous decision. Review Office noted that the worker's claim was initially accepted based on lateral epicondylitis and that the recent reports indicated that he suffered from 'multiple myofascial pain syndromes (MPS) in the upper and lower extremities (upper greater than lower).' As the WCB had accepted only regional myofascial pain syndrome in direct relation to an injury, Review Office was unable to accept the worker's pain syndromes as being related to the initial injuries incurred on December 17, 2001. Review Office also referred to the following comment made by the WCB physiatrist on January 28, 2003, 'There is no evidence on the current examination of any active myofascial pain involvement and I expect that this has resolved with the needling treatment received to date.'

On January 27, 2004, the union representative requested an oral hearing as she disagreed with Review Office's decision. An oral hearing was held at the Appeal Commission on May 26, 2004 and it reconvened on June 7, 2004.

Prior to rendering decisions pertaining to the issues under appeal, the Appeal Panel requested that an independent physiatrist assess the worker. An examination of the worker took place on July 16, 2004. After several unsuccessful attempts to obtain the written examination report from the independent physiatrist, the Appeal Panel referred the worker to another independent physiatrist for an examination. A report from the second independent physiatrist dated July 14, 2005 was distributed to the interested parties for comment. On August 23, 2005, the Panel met to discuss the case further and to render its final decisions with respect to the issues under appeal.

Reasons

File information reveals that the treating physician referred the worker to a rheumatologist for a consultation on or about April 26, 2002. The specialist's examination disclosed the following findings: "Mr. [the worker's] symptoms seem soft tissue in nature. He does appear to have some degree of tendonitis with likely lateral epicondylitis as the primary problem."

On October 16, 2002, the treating physiatrist provided the worker's union representative with a lengthy report detailing the worker's condition. This report states in part as follows:

"Lateral epicondylitis is a term that means inflammation of the soft tissue over the lateral epicondyle. The lateral epicondyle serves as the attachment for the extensor muscles of the wrist and fingers as well as the supinator muscle. The extensor muscles allow the wrist and hand to be pulled back and they also control the speed at which the hand is taken into flexion or bent down.

Cyriax, a physician practicing Orthopedic Medicine has identified four varieties of 'tennis elbow' (lateral epicondylitis)…A common etiology is found for the many patients who are diagnosed with this 'condition' when the findings are related to myofascial trigger points. Myofascial trigger point syndromes can fit each of these four varieties of 'tennis elbow'.

It is my opinion that the problem arising in Mr. [the worker's] arms is related to the repetitive wrist and hand activity. This activity was required for him (sic) perform his job. The need to continually extend the wrist has created trigger points in the muscle over the forearms involved in extension of the wrist and hand. These include the brachioradialis, extensor carpi radialis longus and brevis and the extensor communis and indicus. These muscles attach directly to the lateral epicondyle. Supinator has been found to have significant trigger points as well. This muscle can attach directly to the lateral epicondyle and the radial nerve passes through it. He also has trigger points in the adductor pollicis and flexor pollicis brevis which controls the thumb as it moves toward the rest of the hand. All of the muscles mentioned are involved in the activity he participated in as a baker.

I am not completely sure of the terms for Mr. [the worker's] 'return to work program'. If he was to be returned to the work he was doing as a Production baker, then, by the balance of probabilities, he was not able to participate in this activity due to the pain in his elbow and forearms (lateral epicondylitis). If it was for other work, which did not require repetitive and forceful use of his forearms and wrists, then a trial could have been considered. The success of the trial would have had to be judged by the amount of problem Mr. [the worker] experienced with pain and potential swelling in his forearms and elbows."

The evidence is clear that the working diagnosis of the worker's compensable injury was lateral epicondylitis and myofascial pain syndrome of the forearms. We find based on the weight of evidence that the compensable injury of December 17, 2001 precluded the worker from participating in the graduated return to work program from February 25 to March 23, 2002.

As to the second issue under appeal, we further find that the worker is entitled to further benefits and services from March 23, 2002 up to and including January 28, 2003. It was on this latter date that the worker was examined by the WCB's physiatrist. In reaching our decision concerning further benefits, we attached considerable weight to the following findings recorded in his examination notes:

"There was tenderness of the biceps and triceps muscles. There was negative elbow stress testing. There was full elbow range of motion. There was no tenderness of the medial lateral epicondyle. Stress tests for medial and epicondylitis were negative. There were some tenderness forearm extensor flexor muscles primarily extensor muscle and some withdrawal to pressure over the forearm extensor muscles.

There is no evidence on the current examination of any active myofascial pain involvement and I expect that this has resolved with the needling treatment received to date. There is no evidence of any epicondylitis as suggested previously on the file. There is no evidence of any tendon sensitivity as was present previously at the wrist. This is consistent with improvement."

The foregoing evidence confirms that the worker has recovered from his compensable injury of lateral epicondylitis and myofascial syndrome of the forearms. Subsequent medical reports received on file including the recent Independent Medical Examination (IME) do not disclose findings at variance with the WCB's physiatrist's conclusions with respect to the compensable lateral epicondylitis and myofascial pain syndrome conditions. The worker's appeal is hereby allowed.

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 28th day of September, 2005