The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 16, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 16, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond February 11, 1997.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond February 11, 1997.

Background

On March 4, 1990, the claimant was tightening the straps on a load of lumber when he felt pain in his right arm and elbow when he pulled down on a winch bar. The claimant was diagnosed with a compensable right tennis elbow condition.

The claimant was seen by a neurologist in November 1990 who reported an early right ulnar neuropathy. EMG and nerve conduction studies later proved to be normal. On July 29, 1991, a medical advisor at the Workers Compensation Board (WCB) examined the claimant and felt the claimant had a medial humeral epicondylitis and possibly a right ulnar nerve or cubital tunnel compression syndrome. The claimant was referred to a hand surgeon for treatment.

On December 13, 1991, the hand surgeon reported the following examination findings: "..there is no ulnar nerve tenderness. There is pain in the medial epicondyle. There is full range motion in the wrist and elbow and no tendinitis in the extensor tendons of the thumb. Sensation in the hand is completely normal and motor power is normal." The surgeon concluded that he had no diagnosis on the patient and could not find any reason for operating.

In a report dated January 2, 1991, a general surgeon noted that the claimant had tenderness over the medial epicondyle suggesting a medial epicondylitis. The surgeon felt that the condition should be left for a few months and then reassessed. On March 5, 1992, the general surgeon stated that the claimant still had tenderness over the medial epicondyle and had concerns about shifting gears in his truck while driving. The surgeon wondered whether the claimant could be retrained for an alternate job which did not involve heavy shifting of gears.

On March 9, 1992, the WCB determined the claimant had recovered from the effects of the original compensable accident and any medical treatment beyond March 11, 1992, would not be authorized by the WCB.

The next medical report received was from the general surgeon dated February 12, 1993. It noted the claimant had significant pain in his forearm. The surgeon concluded that the claimant had myofascial pain due to trigger points in the extensors carpi radialis longus and brevis. The trigger points were injected with xylocaine following which the claimant's pain completely disappeared. The surgeon suggested the claimant may need further trigger point injections followed by muscle stretching.

On December 2, 1994, the claimant underwent surgery and the post-operative diagnosis was cubital tunnel syndrome right elbow. On April 20, 1995, the hand surgeon noted the claimant was doing well, full strength had been restored to his hand, and the small intrinsic muscles which had been partially paralyzed due to the nerve pressure had fully recovered. The surgeon recommended the claimant undergo one more month of a work hardening program and occupational therapy and then try a return to work.

File records show that the claimant's benefits were reinstated effective December 2, 1994, and that the WCB accepted financial responsibility for the costs associated with the December 2, 1994 surgery.

Between May 31st and July 13, 1995, the claimant attended a work hardening program. In the discharge report dated August 1, 1995, the physiotherapist stated that the claimant appeared ready to attempt a return to work as a transport driver. The therapist further stated, "Due to the nature of the work, a gradual return to work is not feasible. However, it is recommended that he attempt to limit the heavily resistive activities such as tightening straps and tarps, as much as possible. When he is required to perform such activities, it is recommended that he use a long lever to increase the torque he is able to apply, and that he use his left arm whenever possible."

On March 4, 1996, a rehabilitation medicine specialist (physiatrist) reported that the claimant attended his clinic on February 21st and who presented himself as a 52-year old truck driver who had been unemployed for one year. Following his assessment the specialist's clinical impression was that the right ulnar nerve no longer constituted a problem. He stated, however, that the claimant had been left with chronic inflammation of the medial forearm muscles and a minor degree of underlying degenerative changes in the elbow.

The case was reviewed by a WCB medical advisor on April 9, 1996 who commented that the chronic inflammation of the medial forearm muscles noted by the physiatrist may be related to the December 2, 1994 surgery. The medical advisor also stated the claimant should have modified duties for the purposes of reconditioning and suggested lifting restrictions. The medical advisor stated there was no medical reason why the claimant would be unable to return to full duties without restrictions.

On June 12, 1996, the claimant's shoulder, neck, elbows, wrist and hands were examined by a WCB medical advisor. It was concluded that the examination was consistent with a mild sensory impairment in the distribution of the ulnar nerve distal to the elbow on the right side. Based on the claimant's history, it was felt that the sensory changes were related to the 1994 surgery and that functional impairment would not occur as a result of this condition. The medical advisor stated that the examination was consistent with deconditioning of the right upper limb as the tonicity of the muscles was poor. There was little evidence to support a diagnosis of epicondylitis, either medial or lateral of the right elbow and the examination was consistent with abnormal illness behavior.

X-rays were taken of the right shoulder and right elbow on July 30, 1996. No abnormality was noted in the shoulder whereas the right elbow revealed early degenerative changes.

The claimant was interviewed at the WCB's Pain Management Unit on August 22, 1996. The medical advisor felt that the claimant was not suffering from chronic pain syndrome and that he was not depressed. It was also indicated that the claimant required mobilization to allow him to return to work.

The claimant was enrolled in a conditioning program between October 21, 1996 and December 6, 1996. On January 6, 1997 a WCB medical advisor reviewed the physiotherapy reports and felt the claimant was fit to return to work without restrictions. The medical advisor also believed that active participation in a daily strengthening program would improve the claimant's strength and endurance. On February 4, 1997, primary adjudication determined the claimant was fit to return to his pre-accident employment duties and as a result workers compensation benefits would end on February 11, 1997.

On February 16, 1998, a worker advisor submitted two reports from the treating physiatrist dated February 5, 1998, and December 17, 1997. The worker advisor noted the specialist's opinion that the claimant was demonstrating post traumatic myofascial pain syndrome and that this was related to the compensable accident. The worker advisor also referred to the specialist's comments that the claimant was not capable of returning to his pre-accident employment. Based on these reports, the worker advisor requested reinstatement of benefits and/or a Medical Review Panel (MRP).

The additional medical reports were reviewed by a WCB medical advisor on March 15, 1998. The medical advisor concluded that the current diagnosis was not related to the compensable injury and that the current clinical presentation was most likely related to non work related activities since the worker had been provided with adequate treatment and time for recovery. On April 6, 1998, and April 17, 1998, primary adjudication confirmed the claimant was not entitled to benefits beyond February 11, 1997, and that there was no basis to convene a MRP. The worker advisor's appeal was then forwarded to Review Office for further consideration.

Following consultation with a WCB orthopaedic specialist on April 28, 1998, the Review Office confirmed that the claimant was not entitled to benefits after February 11, 1997 and that a MRP would not be convened. Review Office stated that it appeared that the claimant's primary disabling condition was in his upper back and shoulder area, diagnosed as myofascial pain, and that the original report from the physiatrist in February 1996 and by a WCB medical advisor did not detect any of the signs and symptoms compatible with a diagnosis of myofascial pain. Review Office accepted the comments made by the WCB medical advisor and the orthopaedic specialist that the worker's current symptomatology was not related to the ulnar nerve problem that was accepted as the compensable injury.

On December 17, 1998, a different worker advisor provided new medical evidence to Review Office dated November 16, 1998. The worker advisor contended that this report along with the other medical evidence on file confirmed that the claimant's current symptomatology was related to his compensable condition. On January 15, 1999, Review Office decided to convene a MRP under section 67(4) of the Workers Compensation Act (the Act). On June 1, 1999, an MRP was held.

On July 23, 1999, Review Office confirmed the claimant was not entitled to benefits beyond February 11, 1997. Review Office indicated that the conditions noted by the attending physiatrist, i.e. chronic muscle inflammation of the forearm and regional myofascial pain of the right shoulder girdle, had not been confirmed by the MRP members. The primary compensable condition had almost completely recovered and according to the MRP did not constitute either a total or partial disability at this time. Review Office indicated that the primary problem was the frozen shoulder and it was noted the shoulder was never injured in the course of the accident. The MRP considered that the claimant's painful right shoulder had most probably come about through lack of activity on the worker's part in order to avoid pain. As the compensable elbow condition had achieved recovery, Review Office indicated that it could not accept the shoulder condition as being a consequence of the accident particularly as the worker had voluntarily restricted the use of the shoulder with the speculation being that this was to avoid pain. Review Office found that although the worker may not be able to drive a truck because of the shoulder, it did not believe that responsibility should be accepted for the right shoulder condition by WCB. On July 30, 1999, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The issue in this appeal is whether or not the claimant is entitled to the payment of wage loss benefits beyond February 11, 1997. The relevant subsection of the Workers Compensation Act (the Act) is subsection 43(1) and the claimant's Worker Advisor has argued that WCB policy, Section 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, is also relevant to this appeal.

The background outlines the chronology of events in this claim and will not be repeated in its entirety. The claimant injured his right arm in the course of his duties March 4, 1990 and the WCB accepted full responsibility for wage loss and treatments. On March 4, 1995 WCB accepted responsibility for the claimant's ulnar nerve transposition surgery of his right elbow. The claimant indicated that he developed right shoulder problems approximately six months after the right elbow surgery and, through his advocate, alleges that his shoulder problems are related to the compensable event and has classified his shoulder condition as compensable under WCB policy 44.10.80.40 as related as a sequelae to the compensable event, arising out of the treatment of the compensable injury, or as a complication of the claimant's WCB authorized surgery.

On June 1, 1999 an MRP was convened at the request of Review Office to resolve a difference of medical opinion. An attending physiatrist had submitted medical reports which indicated he considered the claimant to have chronic muscle inflammation of the forearm and regional myofascial pain of the right shoulder girdle. The MRP panellists did not confirm either of the diagnoses put forward by the physiatrist. We note that the panellists, with respect to the elbow, found the current condition at that time to be medial epicondylitis of the right elbow which they unanimously found to be minor, only mildly disabling, and would not preclude the claimant returning to his regular occupation of truck driving.

We concur with the Review Office and the MRP panellists with respect to the elbow condition that the claimant was almost totally recovered at the time benefits were discontinued on February 11, 1997 and that the claimant was capable of returning to his pre-accident occupation of truck driving.

With respect to the claimant's shoulder condition which developed several months after the right elbow surgery, the MRP panellists noted the claimant had a painful right shoulder and that the claimant insisted his shoulder problems were due to the work hardening program. However the panellists found that, " it was probably due to a lack of activity in order to avoid pain." They further found, " with regard to the frozen shoulder this is probably secondary to restricted activity, perhaps related to pain avoidance." (emphasis ours).

The panellists further agreed that there was no shoulder injury at the time of the compensable event; there was an indirect relationship to the compensable accident in the form of pain avoidance, and that the impairment of the shoulder was related to avoidance behaviour with resulting lack of use.

Considering the claimant's shoulder condition and its relationship to the compensable event, we note that WCB policy 44.10.80.40. regarding secondary injury appears to contemplate a direct relationship between the secondary injury and the compensable injury or its treatment. In this regard we note the policy includes references to a separate injury with a causal relationship to the compensable injury; situations over which WCB exercises direct control; or where the further injury arises out of the delivery of treatment for the original compensable injury. We also note from this policy that a further injury is compensable " where the cause of the further injury is predominantly attributable to the compensable injury." (emphasis ours).

On the facts of this case we do not find that a direct relationship has been established, on a balance of probabilities, between the claimant's shoulder problems and the compensable event of March 4, 1990. We note and place weight on the evidence on file which indicates that the claimant was avoiding the use of his right arm and we also note the steps taken by the WCB to assist the claimant in this regard.

Specifically, from May 31 to July 13, 1995, the claimant was provided with a work hardening program designed to improve his post surgical physical abilities and from the discharge notes, we note and place weight on the occupational therapist's comments where she states, " Mr. [the claimant] is capable of working at approximately a MEDIUM level, according to the Canadian Classification and Dictionary of Occupations strength factors. The client's work capabilities would appear to match the physical demands of the identified vocational goal, to return to work as a transport driver." We further note from this report dated August 1, 1995 that there are no indications of the claimant experiencing any difficulties associated with his right shoulder at this time.

File documentation demonstrates the claimant exhibited traits associated with abnormal pain behaviour as noted by the treating psychologist and a WCB medical advisor and the claimant voluntarily restricted the use of his right arm. The evidence shows that the WCB recognized this feature and initiated an appropriate program of psychotherapy and subsequent physiotherapy to assist in this regard.

We note the claimant was referred to a psychologist to address issues of pain behaviour and as well, for a conditioning program with an independent physiotherapy provider. We note from the physiotherapy discharge report that the claimant demonstrated improvement with physiotherapy treatment yet remained apprehensive with respect to increasing his level of exercise, despite indications from his therapist that he could do more.

From the treating psychologist’s report dated June 23, 1996 we note the following:

“He also exhibited some signs of pain behaviour (e.g., guarding his right arm). Although he did not appear to have chronic pain syndrome, it was felt he would benefit from psychological input regarding his pain behaviour and education around symptom management.”

We further note from this report upon completion of the psychotherapy sessions the psychologist reported the following:

“In my professional opinion, Mr.[the claimant] made significant gains in therapy. He reported being less tense, described his pain as more bearable, indicated improvement in sleep, and reported that he lost some weight. He is using pacing and breathing exercises frequently. Mr. [the claimant] nevertheless feels unable to return to his pre-injury employment as a truck driver.”

We find based on the evidence, on a balance of probabilities, that the development of the claimant’s shoulder complaints occurred as a result of a non-compensable voluntary action and not as a direct result of the compensable injury. In our view any ongoing level of disability would no longer be related to the compensable event. The claimant’s appeal is therefore denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of October, 1999