The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 9, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on December 9, 2004 and again on May 2, 2005.

Issue

Whether or not the worker's ongoing depressive symptoms are considered to be related to the compensable injury;

Whether or not the worker has physically recovered from the Carpal Tunnel Syndrome condition; and

Whether or not the worker's right elbow problems are related to the Carpal Tunnel Syndrome claim.

Decision

That the worker's ongoing depressive symptoms are not considered to be related to the compensable injury;

That the worker has not physically recovered from the Carpal Tunnel Syndrome condition; and

That the worker's right elbow problems are not related to the Carpal Tunnel Syndrome claim.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (WCB) for "…tendinitis in both arms, the right one worse than the left which is to do with carpal tunnel which I have in both hands. Surgery was done on the right hand for the carpal tunnel, which still gets the pins and needles on palm, thumb, finger." The areas of injury were right forearm, elbow, shoulder blade and neck.

Following review of all file information which included comments from the worker, her physicians and employers, the WCB accepted the claim on June 20, 2000 on the basis of bilateral carpal tunnel syndrome (CTS) which the WCB felt was consistent with the worker's job activities as a cashier.

On December 22, 2000, the worker underwent right sided carpal tunnel release surgery. In April 2001, the worker returned to modified duty work but experienced pain in her right arm. On May 1, 2001, the worker's attending physician diagnosed the worker with right lateral epicondylitis.

On May 9, 2001, a WCB medical advisor spoke with the treating physician who indicated that the worker's depression was under control. He noted that the worker returned to modified duties the previous week to become a greeter but was made to sweep the floor which caused a flare-up of her epicondylitis. A referral to an orthopaedic specialist was suggested.

The worker was examined by a WCB medical advisor on May 17, 2001. The medical advisor found no evidence of emotional distress but stated, "Although the worker might have had some extensor tendonitis of the right forearm, it was difficult to see any evidence of true lateral epicondylitis although this may have resolved with Dr. [treating physician's] injection or spontaneously. The worker has basically recovered." The medical advisor recommended that the worker reinstate her cashiering duties in a graduated fashion and to continue with workouts at the gym and prescribed physiotherapy exercises.

In September 2001, the worker advised the WCB that she had discontinued working due to right elbow pain.

On September 5, 2001, the treating physician reported that the worker was experiencing right elbow difficulties and that he had taken her off work from September 5 to 12, 2001. The physician noted that the worker underwent several laboratory tests and that the worker may have a possible nerve impingement of the ulnar nerve.

In a report dated September 27, 2001, a hand specialist stated that the worker's "left carpal tunnel is now quiescent, however she has had increased severity of her right, lateral epicondylitis despite bracing. I have asked her to try a different kind of brace and I would recommend that she go on to modified duties until this is brought under control."

On November 2, 2001, a WCB orthopaedic consultant reviewed the file information. He felt that the worker had recovered from surgery for right median nerve decompression and was capable of full time regular duties. He stated that the conditions of elbow tendonitis and depression were not the WCB's responsibility. On November 23, 2001, the WCB advised the worker that her right elbow condition was not the responsibility of the WCB and that any entitlement to wage loss would not be considered at this time.

The WCB subsequently received medical reports from an occupational health physician who saw the worker on January 2, 2002, a report from her family physician dated January 24, 2002 and nerve conduction studies dated July 24, 2001. This information was then reviewed by the WCB's healthcare branch and it determined that the worker's "right ulnar focal neuropathy" was related to her work place accident.

On May 27, 2002, the worker was advised that the WCB was accepting responsibility for her right elbow condition and that wage loss benefits were being reinstated effective September 6, 2001. It was also determined that the worker had sufficiently recovered enough to participate in a return to work program with restrictions to her right elbow and right upper limb. In June 2002, the worker commenced modified duties but discontinued working on or about June 19, 2002 because of an inflamed arm. On June 27, 2002, the worker returned to modified duties and was instructed "not to perform any duties that required the use of her right arm" (memo dated June 27, 2002).

On August 13, 2002 the worker underwent a Functional Capacity Evaluation (FCE). The worker's participation during the FCE was not a full voluntary effort passing only 2 of 5 validity checks.

On September 9, 2002, the WCB referred the worker for psychological assessment and counseling as the worker "…is reporting a sense of hopelessness and suicidal ideation…".

In a memo dated September 10, 2002, a WCB adjudicator documented a conversation that she had with the treating physician concerning the worker's psychological status. The physician indicated that the worker did not suffer from depression prior to her 2000 injury and that the problems she was now facing were related to her injury and issues in the workplace.

In a memo dated September 27, 2002, a WCB adjudicator documented that the worker was diagnosed with "adjustment disorder with underlining depression" by her treating clinical psychologist.

On September 30, 2002, a WCB medical advisor reviewed the file information and agreed that the worker could begin a graduated return to work program at modified duties.

On October 2, 2002, the clinical psychologist provided the WCB with a narrative report outlining her discussions with the worker on September 11 and 25, 2002. She recommended that the worker required 4 - 6 sessions of supportive counseling to assist with adjustments, decision making and longer term planning.

On October 21, 2002, a physical medicine and rehabilitation consultant (physiatrist) reported that she examined the worker on July 29, 2002 for complaints of right elbow pain over the last three years. The consultant's impression was that the worker probably had myofascial pain in the past but these symptoms had resolved and that she was only left with an ulnar neuropathy at the elbow which had been documented by the EMG and nerve conduction studies.

On October 24, 2002, the WCB provided the worker with details of her graduated return to work program commencing October 28, 2002, which consisted of both cashing and alternate duties.

In a November 22, 2002 report, the treating clinical psychologist noted that the worker was concerned that her depression was not lifting and that she was tired and sleeping a lot. Psychological therapy was recommended for another six sessions over the next two months.

In a December 5, 2002 report, an occupational health physician provided the treating physician with his examination findings of the worker when he first saw the worker in January 2002 and again in November 2002. The occupational health physician stated in part, "By my assessment, Ms. [the worker] has had substantial flare up and progression of myofascial dysfunction, particularly in the shoulder and neck, since her return to work and compared to where she was at in January when I first assessed her." A treatment plan was outlined for myofascial pain.

Following consultation with the WCB's healthcare branch, the worker was advised on December 16, 2002 that the change in diagnosis (as outlined by the occupational health physician) was not the WCB's responsibility and that the belief was that she still had resolving ulnar neuropathy of the elbow. The WCB felt that the worker was still able to continue working full duties at full hours.

In March 2003, primary adjudication referred the case to a WCB psychological advisor for an opinion regarding the worker's depression and its possible relationship to the compensable injury and whether it was affecting her ability to return to work. Before providing an opinion on these matters, the consultant requested additional information from the treating physician and clinical psychologist.

On April 22, 2003, the worker was assessed by a WCB physiatrist. The physiatrist stated, in part, that he could find no evidence of CTS and that he was uncertain as to the exact cause of the worker's elbow symptoms. Further tests were suggested.

On May 15, 2003, the treating psychologist reported that the worker had been seen twice in December 2002 and that she was clinically depressed and was coping with personal and work stressors. She noted that the worker was experiencing pain daily and that her brother had died by a misadventure. The psychologist felt that the worker did not fully participate in her pain management program.

X-rays were taken of the worker's left elbow on May 20, 2003. Degenerative spurring involving the lateral epicondyle was identified.

A bone scan was performed on May 23, 2003. The impression was documented as follows: "The appearance is consistent with the given history of chronic epicondylitis in the right elbow. No other significant abnormalities are demonstrated."

A report was received from a psychiatrist who had interviewed the worker on March 26, 2003. The worker was assessed as having "pain disorder with physical and psychological features. Major depressive episode mild to moderate."

Nerve conduction studies (NCS) were performed on July 11, 2003. The findings were consistent with bilateral mild to moderate CTS. There was borderline slowing of the left ulnar nerve across the elbow.

In a report to the WCB dated July 22, 2003, a physiatrist commented that the worker's electrophysiologic results indicated findings consistent with bilateral moderate CTS, left slightly worse than the right. There was no evidence of an ulnar neuropathy.

On November 26, 2003, a WCB case manager met with WCB's healthcare personnel and determined that the worker had recovered from the effects of her compensable injury and that no further responsibility would be accepted for treatment. Additional information was required, however, to determine whether the worker's depression pre-dated the compensable injury.

In a decision dated January 23, 2004, the WCB confirmed to the worker that it would no longer be accepting responsibility for her ongoing problems with both arms. Following a review of all the current diagnostic information on file, the case manager determined that the worker had, on a balance of probabilities, recovered from her compensable injury and that any ongoing problems currently experienced would not be related to her accident of March 2000.

Subsequent reports were obtained from the treating physician concerning the worker's present medical status along with information regarding her depression.

On October 3, 2003, the worker was interviewed by a WCB psychiatric consultant. The results of this assessment are contained on file in an examination report that was prepared on October 9, 2003 and February 19, 2004.

In a decision dated March 12, 2004, a WCB case manager confirmed to the worker the WCB's position that the diagnosis of depression was not significantly affecting her ability to work. The WCB acknowledged that the worker had remaining depressive symptoms but that this was no longer related to her compensable injury. The worker was also notified that reimbursement for associated medication would no longer be covered by the WCB.

On March 19, 2004, a union representative provided Review Office with an appeal submission on behalf of the worker respecting several issues. On April 30, 2004, Review Office determined that the worker's ongoing depressive symptoms were not related to her compensable injury, that the worker had physically recovered from her CTS condition and that the worker's right elbow problems were not related to the CTS claim.

Review Office noted that the worker's CTS condition had been 'quiescent' as reported by the treating surgeon on September 24, 2001. Therefore, the condition which initiated the worker's claim had not been a factor for over three years.

Review Office did not believe that the worker's current and ongoing elbow problem was a sequela of either the CTS condition or the worker's employment. With respect to her depressive symptomatology, Review Office did not believe it was related to the CTS as the weight of evidence suggested otherwise as denoted by the WCB's psychiatric consultant. Review Office concluded that the worker was not entitled to the payment of further benefits beyond November 2002.

On June 8, 2004, the union representative appealed Review Office's decision of April 30, 2004 and requested an oral hearing. Included with the appeal form was additional medical information submitted by the worker's treating physiatrist. On November 15 and December 2, 2004, the union representative provided the Appeal Commission with further medical information to consider.

On December 9, 2004, an oral hearing was held at the Appeal Commission. Following the hearing and after discussion of the case, the Appeal Panel arranged for an independent neurologist to see the worker and provide his medical opinion with respect to the worker's bilateral elbow and carpal tunnel conditions. On April 1, 2005, all interested parties were provided with copies of the medical reports that were received from the independent neurologist and were asked to provide comment. On May 2, 2005, the Panel met further to discuss the case and to render final decisions with respect to the issues under appeal.

Reasons

On October 3, 2003, the worker was examined by a WCB psychiatric consultant. In arriving at a decision with respect to this first issue, we attached considerable weight to the opinions expressed by the consultant in his examination notes of the same date.

“She began to develop some symptoms of depression around the time when she experienced the compensable injury of carpal tunnel syndrome. The depression does appear to have started and have taken hold at that time.

However, her symptoms of depression were not severe enough to prevent return to work during the time period in question. There are many medical assessments by her family physician, physiatrists, and a WCB physician during that time period, none of which mention the presence of symptoms of depression significant enough to prevent return to work. Therefore, my conclusion is that even though she had some symptoms of depression which may have been, in part, brought on by her carpal tunnel syndrome symptoms, it does not appear these symptoms were significant enough to prevent return to work.

The pain related to her carpal tunnel syndrome may have been one of the predisposing factors related to the development of some depressive symptoms. However, there appear to be other factors, which are much more significant, that would have been more likely to have contributed to the development of psychiatric symptoms. These include her ongoing problems with her employer, her supervisor, WCB, loss of structure, loss of self-esteem associated with unemployment and disability, financial problems, feeling stuck in her situation, loss of her brother, etc. In my opinion, and retrospectively, these factors would appear to be much more significant in the development and maintenance of her symptoms of Major Depression that (sic) were the symptoms of her carpal tunnel syndrome.

The symptoms of carpal tunnel syndrome have, for the most part, diminished. Her major ongoing physical problem for the last period of time has been her epicondylitis. However, the epicondylitis is not considered to be a compensable injury by the WCB.

In summary, her remaining symptoms of Major Depression are not related to the ci.”

After having thoroughly weighed all of the evidence, we find that the worker’s ongoing depressive symptoms are not considered to be related to the compensable injury.

Prior to our determining the second and third issues, we felt it necessary to have the worker examined and tested by an independent neurologist. His investigations led to the following comments contained his letter to the Appeal Commission dated March 30, 2005:

“The nerve conduction studies consistently demonstrate impairment of sensory conduction in the median nerves bilaterally across the carpal tunnel. Postoperatively the problem is worse on the left electrophysiologically. Examination today demonstrates very mild weakness of median nerve supplied muscles on the left consistent with mild persisting carpal tunnel syndrome. There was electrophysiologic evidence of right cubital tunnel syndrome in 2001 but this has subsequently resolved. The most recent nerve conduction studies demonstrate normal conduction across both elbows.”

Based on the independent neurologist’s test results, we find that the worker has not physically recovered from the carpal tunnel syndrome condition. In addition, we further find that the worker’s right elbow problems are not related to the carpal tunnel syndrome claim.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of May, 2005