Decision #47/99 - Type: Workers Compensation

Preamble

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

Issue

Whether the claimant has recovered from the effects of her work related injury; and

Whether there is basis on which to extend compensation benefits beyond April 9, 1997.

Decision

That the claimant has recovered from the effects of her work related injury; and

That there is basis on which to extend compensation benefits from April 9, 1997, up to October 13, 1997, inclusive and final.

Decision: Unanimous

Background

In September and October, 1996, the claimant submitted applications for compensation benefits in relation to bilateral hand, wrist, elbow and shoulder problems which she related to her employment activities as a sewing service supervisor.

Initial medical information obtained from the treating physician concerned an examination of the claimant on September 5, 1996. The diagnosis was bilateral epicondylitis which the physician regarded as an overuse work injury. The claimant was considered partially disabled. However, she could return to work with minimal writing, no sewing and no cloth cutting. In addition, the claimant was referred for physiotherapy treatments.

In a subsequent letter, dated November 5, 1996, the treating physician indicated that when he saw the claimant on September 5, 1996, she presented with pain in the lateral epicondyles both sides. The physician further indicated that although there was no definite history of injury he thought it was reasonable to put the incident down as a work-related injury. When examined again on September 12, 1996, the claimant was still complaining of bilateral forearm problems. She had been avoiding sewing and cloth cutting and was only able to write in limited amounts. The treating physiotherapist identified the claimant's condition as chronic pain problems with a significant psychiatric/stress component. When examined again on October 23, 1996, the claimant was diagnosed by the treating physician with chronic pain syndrome, anxiety depression and bilateral epicondylitis.

The treating physician also mentioned that he had previously treated the claimant in June, 1994, for right forearm pain which the claimant related to sewing activities. The pain, however, was noted in the flexor tendons and not the lateral epicondyle. At the time, the claimant was given a prescription for anti-inflammatory drugs and was referred for physiotherapy. The physician stated August 10, 1994, was the last time that he saw the claimant until September 1996.

On January 9, 1997, the claimant was interviewed by a Workers Compensation Board (WCB) medical advisor specializing in pain management. The medical advisor reached the conclusion that the claimant did not qualify for a diagnosis of chronic pain syndrome. His recommendations were as follows:

  • further psychiatric treatment or antidepressants should be discontinued as he considered the claimant was not depressed.

  • the diagnosis of carpal tunnel syndrome should be ruled out by radio diagnostic studies.

  • the claimant should be provided with the book "Managing Pain Before It Manages You" in order to facilitate her self-education in pain management techniques.

  • an attempt should be made to obtain modified duties for the claimant in order that she might return to work as soon as possible at duties which would limit prolonged repetitive tasks such as cutting and sewing.
On January 9, 1997, a WCB orthopaedic consultant examined the claimant with regard to her bilateral upper extremity symptoms. Clinical examination showed no evidence of any ongoing tenosynovitis or active tendonitis. The claimant did exhibit symptoms and signs possibly indicative of bilateral carpal tunnel syndrome. He recommended the claimant undergo median nerve conduction studies. The orthopaedic specialist concluded the claimant's residual symptoms did not compromise total impairment. In his opinion, the claimant was capable of lighter work activities, such as were imposed in August 1994.

A WCB adjudicator spoke by phone with the attending physician on February 26, 1997. The physician agreed that the claimant could return to work and advised that the epicondylitis condition had resolved. He stated the claimant's present symptoms were more than likely carpal tunnel syndrome. The physician agreed to arrange for nerve conduction studies. Later file documentation revealed that the nerve conduction studies proved to be negative for carpal tunnel syndrome.

In a letter, dated April 2, 1997, the claimant was notified by primary adjudication that responsibility for her claim would end on April 9, 1997. Based on a review of all available file information, it was the opinion of case management that the weight of medical evidence no longer supported a causal relationship between her inability to perform pre-accident duties and the compensable injury. There was no evidence to suggest the claimant was still suffering from bilateral tendonitis.

On April 25, 1997, the employer submitted a letter to the WCB indicating that a meeting had been held with the claimant in an attempt to return her to her pre-accident duties effective April 10, 1997. At this time, the claimant informed management that she would not be returning to work as she was still suffering from muscular pain through both arms and shoulders and that her doctor still advised her to avoid cutting and sewing activities. The employer noted, however, that the claimant was "apparently capable of attending evening classes at the University of Manitoba in Winnipeg during the past two years up to and during her current absences." As there was currently no medical information acceptable to the employer supporting any absence on sick leave, the claimant was informed that she would be placed on leave of absence without pay effective April 10, 1997.

A submission, dated October 16, 1997, was received from a worker advisor acting on the claimant's behalf. The worker advisor enclosed a copy of a letter, dated August 26, 1997, from a consultant in physical medicine who had been treating the claimant since June of 1997. The diagnosis provided by the specialist was myofascial pain syndrome. The worker advisor contended that it was unreasonable to dismiss the claim because no one had come up with a definitive diagnosis for the claimant's initial condition. "All of the diagnoses that were offered are related to an overuse or repetitive use problem. It seems logical and reasonable to us that, given the nature of Ms. [the claimant's] duties and the nature of the problems that she had initially experienced, that her condition is related to her employment, no matter what the official diagnosis has been. Given that these problems have now developed into a myofascial pain syndrome, we think it is still reasonable to afford this claimant wage loss benefits retroactive to April 9, 1997 until such time as she is no longer at a loss of earning capacity as a result of her initial condition and now the sequella condition of myofascial pain syndrome."

Prior to considering the above appeal, primary adjudication obtained progress reports from the consultant in physical medicine, dated June 4, 1997 and December 11, 1997. These were then reviewed by a WCB medical advisor. The WCB medical advisor was of the opinion that the claimant's current difficulties were not related to a work injury. On January 12, 1998, primary adjudication determined there would be no change to its previous decision in light of this opinion.

The worker advisor appealed this decision to the Review Office. In a letter, dated March 10, 1998, the Review Office concluded that the claimant's ongoing symptoms were not, on a balance of probabilities, related to the compensable injury and that the claimant had recovered from the effects of any work place injury. The rationale for this decision was based on the following evidence, as outlined by Review Office:

"The weight of evidence - belief that your work triggered a tendonitis/epicondylitis type condition, excepted symptom duration, treatment provided, an absence of related abnormal clinical findings, the persistence of your generalized symptoms despite having been away from the apparent cause for what is now approaching 17 months - suggests that you have recovered from the effects of any work related injury."

On October 15, 1998, the worker advisor appealed the Review Office's decision to the Appeal Commission and requested an oral hearing.

On December 1, 1998, a hearing was held at the Appeal Commission. It came to light that an independent medical report from a physical medicine specialist, dated October 20, 1997, which had previously been submitted to the Appeal Commission by the employer, had inadvertently not been provided to the worker advisor and the claimant. The hearing was therefore adjourned sine die in order to allow the worker advisor additional time to prepare further argument. The hearing was later reconvened on February 16, 1999.

Reasons

At the time of her compensable injury, the claimant was diagnosed by her treating physician as having developed bilateral lateral epicondylitis. He concluded, based on the worker's history of injury, that this condition arose as a result of her repetitive sewing of fabric which caused inflammation. Following a second examination on October 23rd, 1996, the treating physician expanded his original diagnosis to include chronic pain syndrome and anxiety depression as well as the bilateral epicondylitis.

Two WCB medical consultants, specializing respectively in orthopaedics and pain management, individually examined the claimant on January 9th, 1997. Clinical findings led these physicians to conclude that the claimant did not qualify for a diagnosis of chronic pain syndrome and that there was no evidence of any ongoing tenosynovitis or active tendonitis. The orthopaedic consultant made the comment that "...if this was a tenosynovitis, it should have resolved or improved with discontinuance of work in September 1996." Nerve conduction studies conducted a couple of months later also ruled out the possibility of carpal tunnel syndrome.

On June 4th, 1997, the claimant was examined by a consultant in physical medicine. His assessment was as follows: "My working diagnosis at the moment would be overuse syndrome of the upper limbs with manifestation of myofascial pain in a number of sites." The treating consultant felt that it was highly probable the claimant's myofascial pain could have been precipitated by her employment inasmuch as the sewing industry can have many repetitive activities associated with it.

In accordance with the terms of her employment, the claimant was required to undergo a mandatory medical assessment as she had not been to work for at least nine months and she continued to experience pain. The employer requested that this independent medical assessment be carried out in order to determine the claimant's current medical condition and the prognosis for her recovery as such related to her job duties. The assessment took place on September 4th, 1997. The independent physician provided, in part, the following report to the employer:

"Although she complained of pain with even light touch or pressure on either arm or leg, she had no problem with any discomfort when the blood pressure cuff was pumped up to 200 mm of mercury. This is usually quite painful in patients who have no underlying problem and this was repeated twice and did not cause any reaction from her, I was left with the impression that she was possibly malingering. Because of this, I referred her to Dr. [name] a physical medicine specialist... ."

The physical medicine specialist examined the claimant on October 14th, 1997, and forwarded a six page report to the employer. We attached considerable weight to several of his conclusions:

"I am unable to determine an underlying cause for Ms. [the claimant's] symptoms. Based on inconsistencies in the examination I would conclude that there is 'abnormal illness behaviour'. These findings include discrepancies between the response to light palpation compared to the application of a blood pressure cuff; the inability to generate adequate force for strength testing without the similar appearance on casual observance. I am aware that a diagnosis of myofascial pain syndrome has been made. Based on my findings on examination today I am unable to come to the same conclusion. No localized trigger points were detected. The muscles examined were tender throughout the muscle belly and produced a significant localized discomfort. Ms. [the claimant] is presently unable to work at her previous position due to her reported symptoms. The findings on examination would not preclude her from returning to any work. Even considering her present symptoms, Ms. [the claimant] and I agree that she is certainly capable of returning to some form of employment. As a result of Ms. [the claimant's] self limiting symptoms, she would not be able to do as much handling of fabric as she did previously."

We find, based on the weight of evidence, that the claimant had, on a balance of probabilities, recovered from the effects of her compensable injury (bilateral lateral epicondylitis) by October 14, 1997. The preponderance of evidence has also led us to conclude that the claimant was, on a balance of probabilities, capable of performing her pre-accident duties by this date. At the very least, the modified duties offered to the claimant by the employer were certainly within her capabilities. We further find that the other suggested diagnoses with respect to the claimant's symptomatology such as carpal tunnel syndrome, chronic pain syndrome and myofascial pain syndrome were ruled out by various medical practitioners. Accordingly, there is basis on which to extend compensation benefits beyond April 9th, 1997, but only up to October 13, 1997, and not beyond.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of March, 1999

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