The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 6, 1999, following receipt of an appeal from a union representative, acting on behalf of the claimant. The Panel discussed this case on January 6, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits beyond May 21, 1996.

Decision

That the claimant is entitled to payment of wage loss benefits beyond May 21, 1996.

Decision: Unanimous

Background

While employed as a machinist on July 19, 1995, the claimant indicated that she was using snap ring pliers for approximately two weeks when she developed soreness and swelling in her right thumb. The next day the attending physician reported swelling and tenderness of the right thenar eminence and the claimant was diagnosed as having overuse syndrome of the right hand and tendosynovitis of the right thumb. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

Continuing progress reports were received from the attending physician regarding the claimant's condition. On October 2, 1995, nerve conduction studies revealed no electrophysiological evidence of a neuropathy in the right side. The symptoms were likely of soft tissue origin according to the report.

On December 4, 1995, the claimant was assessed by an orthopaedic specialist. Measurement of the claimant's right forearm was 1 cm. greater than the left and there was bluish discoloration in the distal volar forearm just above the wrist. Range of motion was maintained, power was grossly normal, upper extremity neurologic was intact. The specialist stated it was not clear why her symptoms have not settled since leaving her heavy work. The specialist suggested the claimant may have a simple forearm hypertrophy but there may be an underlying vascular or muscular forearm anomaly that may be contributing to her symptoms. An MRI and bone scan was arranged.

A report from the Director of the Hand Program dated December 18, 1995, indicated that the pain in the claimant's right forearm in July sounded suspiciously like a flexor carpi radialis tendonitis. This had since improved but the claimant had gone on to develop a significant secondary myofascial pain problem in her forearm flexors.

A bone scan related to the arms, shoulders, neck and spine was carried out on December 11, 1995. No bony abnormality was seen.

On January 18, 1996, an MRI of the right forearm and wrist was reported as being normal. There was no evidence of a vascular malformation, ganglion or chronic tendonitis.

In a report dated February 27, 1996, a physiatrist (rehabilitation medicine specialist) reported to the Director of the Hand Program that he agreed that the claimant had a chronic flexor tendonitis with secondary overload of the forearm muscle itself. A treatment plan was instituted and the specialist was of the view that the claimant was not capable of returning to work.

The claimant was examined by a WCB medical advisor on March 6, 1996. The medical advisor's impression was as follows:

• there was very little objective evidence to support a significant pathological process.
  
  
• there was non-anatomical pain, i.e. movement of the thumb produced pain in the volar aspect of the medial wrist. There were inconsistent findings, i.e. tenderness over the volar aspect of the medial wrist in one position but not in the other position.
  
  
• examination findings did not establish the following diagnoses according to the medical advisor: myofascial pain, de Quervain's tendonopathy of the right thumb; compartment syndrome; flexor tendonitis of the wrist; extensor tendonitis; flexor carpi radialis tendonitis, or flexor carpi ulnaris tendonitis.
  
  
• the claimant demonstrated inconsistent findings and pain exaggeration. She was therefore considered fit for normal duties with no restrictions.

On May 3, 1996, the physiatrist documented that he could find no continuing evidence of wrist tendonitis and no myofascial taut bands were detectable in the forearm. There was no neurological deficit and intrinsic power in the right hand was intact. He stated the claimant had been left with a right medial epicondylitis.

On May 14, 1996, the claimant was advised by Claims Services that responsibility would not be accepted past May 21, 1996. Based on all available file information, it was the opinion of Claims Services that there was no longer a cause and effect relationship between the compensable injury and current symptoms. It further considered that the claimant had recovered from the effects of her compensable injury and was capable of returning to her pre-accident duties without restrictions. This decision was appealed by the claimant on May 23, 1996, and the case was referred to the Review Office.

In a decision dated June 28, 1996, the Review Office noted that the initial diagnosis of the worker's condition was tendonitis of the right thumb, after which the claimant received physiotherapy treatments and had undergone various tests which proved to be normal. The Review Office therefore considered from the weight of evidence that the claimant had recovered from her diagnosed condition as a result of the compensable injury. Wage loss benefits beyond May 21, 1996, would not be reinstated.

Subsequent file documentation contained the following medical reports:

• nerve conduction studies dated August 30, 1996;
  
• a report from a neurologist dated September 16, 1996;
  
• reports from the Pain Clinic dated January 20, 1997, and October 7, 1996;

At the request of the claimant's union representative an Appeal Panel hearing was held on January 22, 1997. Following the hearing, the Appeal Panel decided that additional information was required before discussing the case further. Specifically, arrangements were made for the claimant to be examined by an independent hand specialist in relation to her right thumb condition.

The claimant was examined by an independent hand specialist on May 12, 1997, and the results of his examination findings are contained in a report dated June 29, 1997. On July 2, 1997, all interested parties were provided with the specialist's report and were asked to provide final comments to the Appeal Panel.

On July 16, 1997, the claimant requested that the Appeal Panel postpone meeting on her appeal as further examinations and tests were being arranged.

Subsequent file documentation contained the following reports:

• reports from an orthopaedic specialist dated June 24, 1997, September 15, 1997, February 23, 1998; June 16, 1998; and October 16, 1998;
  
• a CT report dated December 2, 1997, of both forearms and thenar muscles;
  
• an upper limb venogram dated January 7, 1998;
  
• a brachial angiogram dated June 8, 1998;
  
• a report from the claimant's family physician dated September 15, 1998;
  
• a report from the Director of the Pain Clinic dated August 31, 1998.

On August 7, 1998, the Appeal Administrator at the Appeal Commission wrote the claimant to advise that two of the three commissioners who heard her case on January 22, 1997, had since retired from the Appeal Commission. As a result, her appeal would be cancelled and another hearing or file review would be arranged in the future if the claimant wished to proceed with her appeal.

On October 16, 1998, the claimant's union representative requested an oral hearing. The hearing was subsequently arranged and held on January 6, 1999, by a panel of three new commissioners who had not been involved in the prior hearing.

Reasons

The issue in this case is whether the claimant is entitled to the payment of wage loss benefits beyond May 21, 1996. The relevant subsections of the Workers Compensation Act (the Act) are 39(1) and (2) which provide respectively for wage loss benefits for a loss of earning capacity as a result of a work-related injury and for the duration of those benefits.

Subsection 39(1) states:

Wage loss benefits for loss of earning capacity

39(1) Where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits shall be payable to the worker calculated in accordance with section 40 and equal to

a) 90% of the loss of earning capacity for a maximum of 24 months; and

b) 80% of the loss of earning capacity after the 24 months.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subsequent to subsection (3), wage loss benefits are payable until

a) the loss of earning capacity ends, as determined by the board; or

b) the worker attains the age of 65 years.

We reviewed all of the evidence on file and given during the hearing and in our opinion the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is entitled to the payment of wage loss benefits beyond May 21, 1996 as a result of her work related injury on July 19, 1995. In reaching this conclusion we placed weight on the following evidence.

• The Workers Compensation Board (WCB) accepted responsibility for this claim based on a diagnosis of tenosynovitis of the right thumb and wrist related to the claimant's work duties;
  
  
• The claimant was seen by her attending physicians frequently and regularly between the date of the injury and the present time as well as by numerous specialists from various disciplines. We note that there has been a continuity of reported symptoms during that time which have included pain and swelling in the right thumb with swelling over the thenar area. As well, there was increasing pain and swelling over the right forearm, tenderness on palpation and cold fingers with activity increasing the pain and muscle spasm in the claimant's arm;
  
  
• In a report dated May 3, 1996, a physiatrist could find no continuing evidence of wrist tendonitis, myofascial taut bands in the forearm or neurological deficit but finds that the claimant's transverse grip in the right hand is compromised by pain in the forearm flexor muscles with diffuse tenderness in this area and more acute tenderness in the vacinity of that insertion;
  
  
• By letter dated May 14, 1996 Claims Services advised the claimant that responsibility for the claim would not be accepted beyond May 21, 1996 as a WCB medical advisor had found no evidence to support an on-going diagnosis of tenosynovitis or tendonitis of the right thumb and wrist and therefore there was no longer a cause and effect relationship between the compensable injury and the claimant's current symptoms;
  
  
• Reports dated August 30, 1996 and September 16, 1996 an attending neurologist excludes any neuropathy and suggests a soft tissue lesion such as tendonitits and, while he cannot explain why this has lasted so long indicates that, in his opinion, the condition was brought on by work activities. He further indicates that the claimant would be precluded by too much discomfort from using her hands in heavy physical work;
  
  
• A report dated January 20, 1997, a specialist from the Pain Clinic indicates that he has treated the claimant with local anaesthetic and corticosteroid injections which were of transient rather than substantial benefit and recommends that the claimant be seen by a orthopaedic specialist who deals with sports related injuries and who would have experience of these types of injuries which occur at work. He also offers his opinion that the claimant remains disabled from work which would require heavy lifting or repetitive use of her arms.
  
  
• A brachial angiogram performed June 8, 1998, reveals zones of increased vascularity which correspond to the zones of swelling clinically identified in the patients hand and forearm;
  
  
• In a report dated June 16, 1998, an attending orthopaedic specialist indicates that the angiogram noted above revealed the claimant had areas of increased blood flow in the thenar eminence as well as in the flexor muscles of the forearm which might be based on vasomotor instability and therefore the claimant was referred to a second pain specialist at the Pain Clinic for ganglion block treatment. At that time the specialist's opinion was that the claimant continued to have severe activity related pain in the right forearm and hand and remains unfit for work;
  
  
• In a report dated September 15, 1998, the claimant's attending physician indicates that she has been seeing the claimant since the injury in 1995 when the claimant presented with pain and swelling over the right thenar eminence and forearm related to physical activity. She further expresses her opinion that the claimant is suffering from sympathetic dystrophy caused by the work related injury and that the claimant is unfit for any work.
  
  
• In a report dated October 16, 1998, the attending orthopaedic specialist indicates that the claimant continues to suffer pain in the right forearm and thenar area which had recently been determined to be from a vascular abnormality, possibly related to overactivity of the sympathetic supply to the blood vessels in the area. The orthopaedic specialist further indicates that " I do not believe that this represents reflex sympathetic dystrophy, but rather a bizarre abnormality of sympathetic dysfunction. By history, this was related to her time at work, doing very heavy work with her arm.

Following our review of all the evidence we find that the claimant, on a balance of probabilities, did not have tenosynovitis following the work injury which occurred July 19, 1995, and at the time of termination of benefits, a more definitive diagnosis had not been established, therefore we find that the WCB terminated their responsibility for this claimant prematurely.

We find there is subsequent medical evidence which indicates that the claimant probably developed a rare condition, difficult to diagnose, of sympathetic dysfunction which causes right forearm symptoms on activity. In our opinion this condition developed as a direct result of the claimant's work activities. We find on review of all the evidence that there is both a consistency of, and continuity of, signs and symptoms since the injury.

We also find from the evidence that a return to the claimant's heavy pre-accident employment duties is probably contraindicated and likely to be unsuccessful. However, the claimant testified at the hearing that her symptoms were improving as a result of her current treatment of sympathetic blocks to her forearm which is substantiated by the medical evidence. The claimant also expressed a desire to return to work or to be retrained for suitable work.

Although we find that the claimant is totally disabled from her pre-accident duties we find that she is not totally disabled or precluded from performing other employment for which she is suitable. We therefore recommend the expeditious involvement of the WCB vocational rehabilitation department to assist this claimant.

In summary, for the above reasons, we find that the claimant is entitled to benefits and WCB assistance beyond May 21, 1996, as a result of her work related injury of July 19, 1995. Therefore the claimant's appeal is allowed.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of January, 1999