The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 19, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker has recovered from the effects of the November 18, 1999 compensable injury by February 26, 2002; and

Whether or not the worker is entitled to wage loss benefits from February 26, 2002 to March 3, 2002.

Decision

That the worker has recovered from the effects of the November 18, 1999 compensable injury by February 26, 2002; and

That the worker is entitled to wage loss benefits from February 26, 2002 to March 3, 2002.

Decision: Unanimous

Background

On November 18, 1999, the worker was assisting another co-worker to open a probe machine which was very problematic. She stated that she tried for 5 to 10 minutes and finally opened the machine. She then realized that she had somehow injured her right wrist.

On November 19, 1999, the worker sought medical attention and was diagnosed with a strain to the right wrist. On November 23, 1999, the treating physician noted pain on either side of the worker's forearm near the wrist and the diagnosis rendered was a strain of the right forearm.

Subsequent file records showed that the worker was treated by a sports medicine specialist on January 14, 2000. The specialist stated he was unsure of the exact etiology of the worker's right wrist and forearm pain but felt there may be a myofascial component to her pain complaints.

On March 2, 2000, a Workers Compensation Board (WCB) medical advisor specializing in physical medicine and rehabilitation consultant (physiatrist) examined the worker. He was unsure of the exact cause of the worker's current wrist and forearm symptoms and he suggested further investigations.

On April 5, 2000, a bone scan study revealed no bony injury within the ulnar aspect of the right wrist. An MRI of the right wrist revealed a triangular fibrocartilage complex (TFCC) tear.

In a May 17, 2000 report, an acupuncture specialist indicated that the worker had some tenderness and myofascial activity in the wrist and finger extensors. Treatment suggestions included 5 to 10 treatments of acupuncture type needling.

In a report dated September 15, 2000, an orthopaedic surgeon outlined his opinion that the worker's current symptom complaints were related to the TFCC tear in her right wrist. An arthroscopy of the right wrist and repair or debridement was recommended. On December 5, 2000, the worker underwent an arthroscopy of the right wrist and the TFCC was found to be intact throughout.

In a January 18, 2001 follow-up visit, the orthopaedic specialist stated that range of motion was recovered and there was no swelling. The worker was referred to the Pain Clinic and was to try to return to work at 4 hours a day starting on January 23, 2001.

In a May 29, 2001 report, the orthopaedic specialist was unable to further explain the patient's pain or give any other diagnosis other than a chronic pain syndrome. In his opinion, there were no structural contra-indications to remobilization of her right wrist with physiotherapy and a progressive return to work.

In a Pain Management Unit Intake Conference memo dated July 25, 2001, it was noted that the worker's therapy was progressing but the worker was pain focused. She was back at work but at very light duties. The worker had patterns of pain traveling up her arm and into her shoulders and neck.

In September 2001, the worker was interviewed at the WCB's Pain Management Unit (PMU). It was subsequently determined that she did not meet the diagnostic criteria for a chronic pain syndrome as the disability was not proportionate in all areas of functioning.

On December 13, 2001, the worker was reassessed by the WCB's physiatry consultant. At the conclusion of his report, he stated that the worker's persisting wrist symptomatology did not appear to be articular in nature but rather in the area of the ulnar styloid, of uncertain exact significance.

The worker underwent NCS/EMG studies on February 26, 2002. The studies did not demonstrate a radial nerve or median nerve abnormality in the forearm or the wrist.

On March 26, 2002, the worker was examined by an independent physiatrist. In his report dated April 11, 2002, the specialist stated, in part, that the worker's symptoms and signs were characteristic of ligamentous and myofascial trigger points and that there was no specific diagnosis related to the worker's wrist pain at the ulnar side of the wrist.

On April 23, 2002, primary adjudication asked the WCB physiatry medical advisor to review the report from the treating physiatrist dated April 11, 2002 and the NCS/EMG results. Based on his review, he stated he was not sure if there was any diagnosis for the worker's current symptoms and he could find no evidence to relate the worker's ongoing symptoms to the work injury. He was of the view that the worker's complaints were related to non-wrist injury problems.

In a decision dated April 26, 2002, a WCB case manager stated that although the worker may be having some ongoing symptoms, she was unable to relate these symptoms to the compensable injury of November 18, 1999. As a result, the WCB was unable to accept the worker's time loss from February 26, 2002 to March 3, 2002, or ongoing responsibility for her claim.

In a submission dated October 14, 2003, the worker's union representative requested that the WCB reconsider its decision of April 26, 2002 based on a September 15, 2003 report from the treating physiatrist. It was felt that the report supported the position that the worker had not recovered from her compensable injury, that the worker required workplace restrictions and that an occupational assessment of the worker's job should be performed. In the event that the WCB disagreed with the request, a Medical Review Panel (MRP) was requested under subsection 67(4) of The Workers Compensation Act (the Act).

In a decision dated February 2, 2004, a WCB case manager stated that no change would be made to the decision of April 26, 2002 as it was the opinion of the WCB's medical advisor that there was no objective medical evidence to support an ongoing cause/effect relationship based on all submitted medical information. The case manager further stated that the case would be referred to an MRP.

On August 20, 2004, an MRP took place. On September 27, 2004, the MRP reported its findings to the WCB.

On October 7, 2004, the union representative was advised by a WCB manager that the MRP report did not provide any new information that would change the decision of April 2002. The MRP commented on the ongoing relationship to the original injury and the need for restrictions but the conclusions reached were based solely on the worker's subjective complaints.

In a submission dated November 17, 2004, the union representative appealed the WCB's decision of October 7, 2004. The union representative argued that the MRP provided a unanimous decision that the worker had a chronic right arm condition that was directly related to her compensable injury and that based on a balance of probabilities, there was an ongoing relationship between the present diagnosis and her November 1999 injury. On March 24, 2005, an advocate, acting on behalf of the employer, provided rebuttal arguments to Review Office.

On April 18, 2005, Review Office determined that wage loss benefits were not payable from February 26, 2002 to March 3, 2002 and as of February 26, 2002, the worker was deemed recovered from the effects of her November 18, 1999 work injury. Review Office was of the opinion that the worker's subjective complaints of pain in the shoulder blades, neck, right shoulder, elbow, forearm and hand, and more specifically in her right upper quadrant, were not related to the November 18, 1999 wrist strain. On July 19, 2005, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Panel was asked to address two issues. The first issue was whether the worker has recovered from the effects of the November 18, 1999 compensable injury by February 26, 2002. For the appeal to succeed on this issue the Panel must find that the worker continued to suffer the effects of the workplace injury beyond February 25, 2002. The Panel was not able to reach this conclusion.

The second issue was whether the worker is entitled to wage loss benefits from February 26, 2002 to March 3, 2002. For the appeal to succeed on this issue, the Panel must find that the worker suffered a loss of earning capacity on the days in question which was related to the workplace injury. The Panel found that the worker had a loss of earning capacity which arose from a medical test administered in relation to the workplace injury and pursuant to Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, the worker is entitled to wage loss benefits for this period.

Applicable Legislation and Policy

In this case, the worker argued that she has not recovered from her workplace injury and as a result she is entitled to wage loss benefits. Subsections 4(2) and 39(2) of the Act are applicable to this case.

Subsection 4(2) provides for the payment of wage loss benefits to an injured worker where the worker's accident results in a loss of earning capacity. This section states

4(2) - Payment of wage loss benefits

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) provides that wage loss benefits are payable to the worker until the loss of earning capacity ends.

As the worker argued that she was unable to work during a specific period of time as a result of a medical test, Board Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, is also applicable. This policy provides, in part:

A further injury occurring subsequent to a compensable injury is compensable:

iii) where the further injury arises out of the delivery of treatment for the original compensable injury.

The relevant portions of the Administrative Guidelines to this Policy provide:

A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:

3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB). For example, the worker is injured while being examined or treated (e.g., falls off the examining table or suffers complications from surgery). The subsequent injury would not be compensable if the injury resulted from a hazard of the healthcare providers premises that is not connected to the actual treatment (e.g., the worker slips on ice on the healthcare providers steps or a chair collapses in the healthcare providers offices).

Evidence and Argument at Hearing

The worker attended the hearing and was represented by a union representative who made a presentation on her behalf. The worker answered questions posed by the Panel.

The employer was represented by an advocate and a staff member from its Health, Safety and Wellness office. The advocate made a presentation on behalf of the employer.

The worker described the workplace accident and subsequent symptoms. She answered questions about the treatments she has received. She described her current symptoms and the impact of the injury on her life.

The worker's representative submitted that there is clear evidence of the worker's disability. He noted the findings of the MRP and the opinion of the independent physiatrist who treated the worker. He suggested that the Review Office decision was in error.

The employer's representative noted that the employer agrees with the WCB's decisions on this claim. She noted there was a lack of objective medical evidence to support the worker's ongoing disability. She also noted the worker suffered several non-compensable aggravations.

Analysis

Issue 1:

The Panel concluded that the worker ceased to suffer from the effects of the November 18, 1999 compensable injury by February 26, 2002 with the exception of the dates referenced in Issue 2.

In making this decision the Panel has considered all the evidence and determined on a balance of probabilities that the worker recovered from the effects of the compensable injury. The Panel places significant weight on the following evidence:

• the original injury was described as a strain to the right wrist. The physician who saw the worker on November 23, 1999, approximately four days after the injury noted pain on either side of the worker's forearm near the wrist. The mechanics of the injury as described by the worker at the hearing suggest a minor injury to the right wrist.
  
  
• an independent physiatrist examined the worker one month after she was considered to have recovered from her compensable injury and reported normal findings with respect to the worker's right wrist and forearm. In a report dated April 11, 2002, he reported the following findings:

  "On exam on March 26, 2002 cervical spine range of motion was full flexion, extension and rotation right and left. Lateral bending to the right was full. Lateral bending to the left was restricted by two finger breadths with tightness of the upper trapezius muscle. Right shoulder, elbow and wrist had full range of motion. She could make a full fist with her hand……at present there is no specific diagnosis related to wrist pain at the ulnar side of the wrist. Arthroscopy was normal and there was no evidence of fibrocartilage or ligamentous tear on arthroscopy…."

• the independent physiatrist also noted in a report dated September 15, 2003 that

  "On October 29, 2002 she had no neck or right shoulder or arm pain complaints…"

• the neurologist who conducted the NCS/EMG studies on February 26, 2002 reported that "This electrophysiologic study does not demonstrate a radial nerve or median nerve abnormality in the forearm or the wrist. Ulnar, radial and median "F" responses were normal…"

The Panel notes that on August 20, 2004 the worker was examined by an MRP consisting of a chairperson and two physiatrists. The Panel notes that the MRP conducted a thorough physical examination and found the worker had normal results in almost every diagnostic or clinical test administered. While this examination took place more that two years after the WCB determined the worker had recovered, the Panel considers that the lack of abnormal diagnostic and clinical findings by the MRP is consistent with the WCB's decision. The Panel places little weight on the answers to the questions posed to the MRP, in light of the findings from its examination. The Panel also notes that the diagnosis and findings of the MRP differ markedly from the diagnosis and findings of the independent physiatrist whose opinion formed the basis of the request for the MRP.

Subject to the decision on Issue 2, the Panel is unable to relate the various symptoms experienced by the worker after February 25, 2002, to the compensable injury. The worker's appeal on this issue is declined.

Issue 2

Although the Panel has found that the worker had recovered from the compensable injury by February 26, 2002, the Panel finds that the worker did have pain caused by the electrophysiological study which was administered on February 26, 2002. The Panel finds that the worker was unable to work during the period from February 26, 2002 to March 3, 2002, as a result of her reaction to the study and as noted in medical certificates provided by her attending physician. Accordingly she is entitled to wage loss benefits for this period. The Panel finds that wage loss is payable for this period in accordance with Board Policy 44.10.80.40.

The worker's appeal is accepted on this issue.

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 24th day of November, 2005