The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 4, 2005, 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 responsibility should be accepted for the worker's ongoing difficulties commencing in January 2004 as being related to the March 11, 2003 compensable accident; and

Whether or not responsibility should be accepted for the worker's depressive condition.

Decision

That responsibility should not be accepted for the worker's ongoing difficulties commencing in January 2004 as being related to the March 11, 2003 compensable accident; and

That responsibility should not be accepted for the worker's depressive condition.

Decision: Unanimous

Background

The worker has a compensable, right shoulder claim with the Workers Compensation Board (WCB) for an injury that occurred in the workplace in 1987. The worker is presently in receipt of vocational rehabilitation benefits in relation to this claim.

In April 2004, the worker contacted the WCB's call centre to report a right hand injury that occurred in the workplace on March 11, 2003. At the time of injury, the worker was pushing hot rods up to the front of a multi vac machine when her gloved fingers became caught in the chain. The worker waited for the throbbing pain to go away and then went back to work. She would then use her holidays when her hand and arm became really sore. Her last day at work was January 27, 2004.

The Employer's Accident Report noted that the worker caught her first and second finger of her right hand in a cutter chain on March 11, 2003. The report further stated, "Employer had a green card for March 11/2003 for a specific accident to this worker's fingers. He was not aware of any non specific problems to her hand. He was aware of her claim for non specific arm/shoulder problems".

A report was received from a physician dated January 27, 2004 which showed that the worker was treated on June 26, 2003 for her right arm difficulties. The worker indicated that she had fallen in the workplace in 1987 and hurt the right arm and shoulder. The physician noted that the worker developed carpal tunnel syndrome (CTS) and was previously diagnosed with fibromyalgia. The physician noted that the worker attended physiotherapy and had recovered to the point where she was sufficiently able to return to work although she still complained of pain.

The physician commented that the worker had injured her right hand in March 2003 and had never recovered. Pain was reported in the right index finger and thumb and metacarpal region of the thumb. The index finger had decreased range of movement and was painful on passive flexion. There was pain on stressing the collateral ligaments of the metacarpophalangeal joint. X-rays showed some degenerative change. There was swelling in the fingers and decreased range of motion in the shoulders. There were positive impingement signs and anterior cuff pain. The worker was advised to stay off work and to avoid repetitive overhead use of the hand.

X-rays taken of the right hand on January 28, 2004 revealed minor degenerative changes in the carpal and interphalangeal joints.

On April 14, 2004, the worker was examined by a WCB orthopaedic consultant. The consultant could not detect any striking evidence of pathology or injury in the right hand. In the right shoulder, the worker had tenderness of the rotator cuff and symptoms of rotator cuff tendonopathy. There was slight loss in range of movement of the right shoulder. He felt the worker should not return to strenuous work, especially above shoulder height. He felt that this was a permanent restriction.

In April, 2004, a second physician noted that the worker continued to have difficulty with her right shoulder and that it was now into her hand and forearm. The worker's forearm had been bothering her since February or March 2003 but never specifically mentioned it because she felt it was all related to her upper arm problems. When seen in February 2003, the worker presented with a history of chronic right shoulder pain after a rotator cuff tear due to a workplace injury. The examination showed decreased range of motion in the shoulder and tenderness in the forearm.

On May 5, 2004, the treating physician provided the WCB with a follow-up report concerning his examination findings of February 11, 2004. He stated, in part, "She was seen again on February 11, 2004 regarding the first carpal metacarpal joint of the thumb on the right side which was still tender with loss in range of movement. She was felt to be suffering from traumatic arthritis involving the right thumb. She does have evidence of degenerative change involving other smaller joints of her hand, however it would appear that this traumatic injury is compounding those other problems."

On May 11, 2004, bone scan results revealed no evidence of metastatic disease. Focal uptake was identified in the right first carpal metacarpal joint. In view of the history of trauma, it was felt that this could represent post traumatic arthropathy.

In a memo dated May 17, 2004, the WCB orthopaedic consultant provided his opinion that based on the bone scan and x-rays, the findings were consistent with degenerative arthritis.

On May 19, 2004, primary adjudication accepted the worker's claim for a right hand injury sustained at work on March 11, 2003. Primary adjudication further stated, "It is noted that you continued to work without confirmed complaint and did not seek medical treatment for this injury until January 28, 2004. In addition, it is noted that the medical diagnosis of your right hand condition is degenerative arthritis. Given this information, I am unable to establish that your ongoing difficulties are related to your March 11, 2003, accident. It is felt that your symptoms would be solely attributable to your pre-existing arthritic condition." Based on this decision, the worker was advised that the WCB was not responsible for wage loss benefits or medical treatment effective January 28, 2004.

In a submission to Review Office dated October 21, 2004, a worker advisor requested reconsideration of the May 19, 2004 adjudicative decision. The worker advisor contended that based on the medical reports of January 27, 2004 and May 5, 2004, there continued to be a cause/effect relationship between the worker's right hand condition and the March 2003 injury.

The worker called Review Office to point out some errors recorded on her claim. A memo concerning this conversation is dated November 1, 2004.

In a further submission to Review Office dated November 17, 2004, the worker advisor appealed the WCB's decision of October 18, 2004 which related to the worker's 1987 right shoulder claim. The decision stated that the medical evidence did not support that the worker's depression was as a result of her compensable injury but was related to her pre-existing personality factors and life stressors. The worker advisor contended that the worker's case met the criteria in WCB policy 44.20.60, Psychological Conditions, and that the WCB should accept responsibility for the worker's current depressive episode and should provide coverage for medical treatment.

On November 23, 2004, Review Office determined that responsibility should not be accepted for the worker's ongoing difficulties commencing in January 2004 in relation to the 2003 accident. Review Office felt there was no medical evidence to show that the worker had any residual problems stemming from this accident such that she required additional treatment and time off work commencing January 2004.

With respect to the issue concerning the worker's depressive condition, Review Office stated there must be evidence that this condition was directly tied to the compensable injury. It did not find that this was so in the worker's case. Therefore, responsibility for the worker's depressive condition and related treatment was denied by Review Office. In February 2005, the worker advisor appealed Review Office's decisions and an oral hearing was convened.

Reasons

As the background notes indicate, the worker injured the terminal phalanges of her index, middle fingers and thumb when her gloved right hand got caught in a machine. According to the worker's history, she has had persisting pain in this area ever since. However, we note that no further investigations or treatments of this difficulty were being carried out by her treating physician. The progress medical reports received by the WCB are not describing any history or subjective and objective complaints of right hand difficulties resulting from the March 2003 incident. What in fact is being reported involves the worker's upper right arm, which is not the subject of this particular claim.

We agree with the WCB's orthopaedic consultant's opinion as to the source of the worker's right hand/finger difficulties. In a memorandum to file, he recorded the following comments:

"I think the worker has some arthritis of the 1st C-MC joint of the right thumb. She has some pain & tenderness here. The x-rays & bone scan are consistent with degenerative arthritis. (Emphasis added)

We find based on the weight of evidence that responsibility should not be accepted for the worker's ongoing difficulties commencing in January 2004 as being related to the March 11, 2003 compensable accident.

With respect to the second issue, the evidence confirms that the worker's depressive state began in July 2004 (some 15 months post accident) when she met with WCB staff and learned that she would not be getting her pre-accident job back. There was no medical evidence either on file or presented at the hearing that associated the worker's depressive state to any of her several compensable injuries. Her treating physician provided a WCB progress report dated July 27, 2004 and recorded the following comments: "Comes in today quite upset and crying throughout the interview. She is quite upset that she is going to be losing her job and all her benefits and things that go along with it. We had a long, supportive discussion today. It is quite obvious that she is suffering from depression with no suicidal ideation. I think that this is related to all the recent stressors with her losing her job related to her work place injury."

The worker presents with a history of recent psychological and pre-existing physical ailments, which are on a balance of probabilities responsible for her depressive condition. We accept the treating physician's remarks that the worker's depression is due to economic considerations as opposed to the direct effects of the compensable injury itself.

After having considered all of the evidence, we find that responsibility should not be accepted for the worker's depressive condition. Accordingly, the worker's appeal is hereby dismissed.

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 17th day of May, 2005