The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 1998, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 4, 1998, and March 12, 1999.

Issue

Whether the claimant is entitled to payment of benefits beyond May 2, 1994.

Decision

That the claimant is entitled to benefits and services on a time limited job search only. No retroactive benefits are warranted.

Background

In August 1989, the claimant injured his right arm at work when it was caught in a candy puller machine. The claimant remained off work for six months and returned to his regular job in August 1990. On October 22, 1990, the claimant incurred a second injury to his right forearm region when lifting a bag of sugar weighing 100 pounds. The initial diagnosis was reported as being a soft tissue injury to the right forearm. The claimant eventually underwent a release of the right radial tunnel on October 16, 1991. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On March 27, 1992, the treating hand specialist referred the claimant to a rehabilitation medicine specialist because of severe muscular and soft tissue problems relating to the entire right upper limb and shoulder girdle. On May 27, 1992, the rehabilitation specialist reported that the claimant exhibited significant objective findings of myofascial taut bands with twitch responses in the right trapezius, subscapularis, pectoralis major and forearm extensor muscles. It was suggested that the claimant continue with physiotherapy and that trigger point blocks would be tried to bring the chronic muscle pain under better control. Also the claimant would be referred to a clinical psychologist for evaluation and recommendations with respect to enhancing his capacities to cope with discomfort.

Continuing medical reports were received from both the rehabilitation medicine specialist and the clinical psychologist. The claimant was also assessed by a psychiatrist on February 16, 1993. The psychiatrist concluded that the claimant was not suffering from a major depressive episode, but rather was demonstrating a dysphoric response to his chronic pain.

In May 1993, the WCB considered the claimant to be physically capable of restricted work and that his psychiatric problems, on a balance of probabilities, were not related to the compensable injury. Restrictions were outlined to avoid lifting over 5 pounds, to avoid excessive use of the right neck, shoulder and arm, no repetitive use of the right neck, shoulder and forearm and no assisted lifts over 10 pounds. Effective October 19, 1993, the claimant was paid benefits based upon his participation in a return to work plan.

On January 21, 1994, the claimant was assessed by a neurologist who felt the claimant may have Tourette's syndrome. He noted the claimant displayed no features to suggest a choreiform disorder.

The case was reviewed by a WCB medical advisor on March 22, 1994, following receipt of a neurologist's report of January 21, 1994. The medical advisor concluded there was no indication from this report that the claimant had organic disease referable to the compensable injury. He felt that restrictions would be inappropriate.

On April 25, 1994, Claims Services determined the following:

• that the claimant had recovered from the effects of the compensable accident;
• that vocational rehabilitation benefits would be extended to May 2, 1994; and
• that restrictions were not warranted on the claimant's work capabilities in relation to the compensable injury.

As a basis for the above findings, Claims Services took into consideration all file documentation including the neurologist's report of January 21, 1994 as well as the comments expressed by the WCB medical advisor on March 22, 1994. On July 18, 1994, the claimant appealed this decision to the Review Office.

The Review Office acknowledged that the initial injury was a strain to the right forearm and that the surgical procedure carried out in October 1991 had been accepted by the WCB. However, it was apparent from its review of recent medical reports that the claimant's current symptoms were not considered to be a consequence of either the 1989 or the 1990 claims. Therefore the Review Office determined the claimant was not entitled to further benefits beyond May 2, 1994.

On January 5, 1998, the claimant's legal counsel appealed the Review Office's decision of August 5, 1994, and requested an oral hearing. Up-to-date medical reports were submitted by the treating physician on June 3, 1998, which included the following: the results of a brain CT scan dated May 10, 1994, a neurologist's report dated March 16, 1995, a medical report dated June 16, 1995, and nerve conduction studies dated April 16, 1996.

An oral hearing was held at the Appeal Commission on November 4, 1998. Following the hearing, the Appeal Panel discussed the case and requested that the claimant be examined at the WCB offices to assess both his physical and psychological states. The claimant was subsequently examined by a WCB Physical Medicine and Rehabilitation Consultant to the Board on January 12, 1999, and by a Psychological Advisor on January 15, 1999. On February 25, 1999, the examinations results were forwarded to the parties with a direct interest and on March 12, 1999, the Panel rendered its final decision.

Reasons

The claimant was examined by a neurologist on January 24th, 1994, at the request of the WCB's Healthcare Management Services. There were several clinical observations and findings recorded by this specialist that we considered to be rather significant:

"There are no objective neurologic abnormalities and the complaints of sensory distribution loss do not fit any anatomical distribution or pattern that I am aware of. Given the degree of functional overlay here, to be able to assess his localized right arm complaints and come up with a diagnosis or a recommendation for treatment or further investigation become almost impossible. I have no idea why he continues to wear the splint or who is recommending that he continue to wear the splint but I see no indication for it. I think that the sooner he gets rid of it and the sooner he uses his arm on a more regular basis, the sooner some degree of recovery might occur. All I indicated to the patient at the end of my visit was that I could not find evidence of a nerve, nerve root, spinal cord, or brain disorder to explain his right arm symptoms."

It was a short time after the WCB received this report that the claimant's benefits were terminated effective May 2nd, 1994.

The claimant appealed this decision to the Review Office. The Review Office concluded on August 5th, 1994 that the claimant's current symptoms were not as a result of his compensable injury and subsequent recurrence. Consequently, he was not entitled to any further benefits. A considerable period of time (3 years) then elapsed before the claimant decided to file a notice of appeal with the Appeal Commission. A hearing date was set for March 23rd, 1998, however, at the request of the claimant's legal counsel, it was postponed indefinitely.

Eventually, the appeal was heard on November 4th, 1998. The claimant contended that he was unable to work because of his continuing right arm pain. There was very little in the way of new medical information on file to support such a contention. A June 16th, 1995, specialist's report to the attending physician suggested the claimant's most likely diagnosis was post-traumatic stress disorder. The attending physician submitted a report on April 29th, 1998, which outlined the claimant's current complaints of numbness of the hand, arm and shoulder into the neck. He suggested that the claimant's recovery from the present symptomatology was rather doubtful. With regards to a return to work, he considered the claimant was basically unemployable.

In light of this commentary, we decided to have the claimant examined by the WCB's Healthcare Management Services to determine his exact current state both physically and psychologically. At the time of assessment by the psychological advisor, the claimant reported experiencing pain and numbness in his right hand, arm and shoulder that extended to the right side of his head and all the way down to his hip. The claimant was administered the Millon Clinical Multiaxial Inventory-3 and the Minnesota Multiphasic Personality-2 tests. The scores on these tests characterized the claimant as having a certain profile. The psychologist interpreted the test results as follows:

"Individuals with this profile report much physiological distress and difficulty in adjusting psychologically. They seem to lack stamina, may feel weak, fatigued, tense and nervous much of the time. They tend to react to stress by developing physical symptoms. They often over react to minor or even normal physical changes with extreme concern and complaints. Although physical symptoms may be the primary problems reported, the individual also feels dysphoric and worried."

The WCB psychologist summarized his assessment of the claimant in the following manner. "Since his injury he has apparently gone on to develop ongoing pain and disability, and symptoms suggestive of some form of movement disorder. His psychological testing on the MMPI fits a classic pattern known as the conversion V, which is typically found in chronic pain patients and claimants within Workers Compensation systems. This pattern is characterized by a tendency to convert psychological distress/anxiety into physical symptoms, and a lack of insight with regards to a possible psychological origin to physical symptoms. His scores on the MCMI-3 are evidencing high levels of anxiety and distress overlying a fairly dependent personality style.
This pattern seems to be illustrated by Mr. [the claimant's] ongoing high level of disability, continued seeking of medical intervention with apparent minimal findings of underlying organic pathology.
At this time he is not displaying symptoms characteristic of a post-traumatic distress disorder or other affective disorder." (Emphasis ours)

According to the WCB medical advisor's examination notes, the claimant's current symptoms were:

1. A continuously present, sharp pain extending from the tips of the third and fourth fingers, primarily on the right, across the top of the shoulder, involving all areas of the upper extremity. This pain is also felt somewhat on the right side of his neck.

2. The top portion of his right hand feels continuously numb, with a pins and needles to be present.

3. There is also a burning pain present to the right side of his neck and a pressure sensation on the right side of his head.

On neurologic examination, "...there was no evidence of any muscle wasting in the hands, forearms, scapular girdle, or neck. There was good muscle bulk present, with an impression of muscle hypertrophy present. ...When movements were isolated and done slowly, intermittently there appeared to be full power produced in all movements of the right upper extremity."

"The present clinical examination was difficult to interpret as a result of the degree of pain and pain-limiting behaviours present. There was some inconsistency on examination as well. He had essentially normal ROM of the neck when casually observed than when formally tested; he had better ROM of the joints when done passively, than when done actively.
On the current clinical examination, there were no objective findings present. There was no evidence of a significant physical impairment based on the examination. There was no evidence of significant disuse of the right upper extremity, with the right upper extremity muscle bulk similar to the left, and well developed bilaterally. Measured maximal arm circumferences were greater on the right than on the left. As his previous employer is no longer present locally, and his past employment not available, consideration should be made for placement in alternate employment. There does not currently appear to be total disability present. The claimant should be capable of modified or light duties currently. Progress to full regular duties would be the expectation... ." (Emphasis ours)

We note that the physical examination findings of the WCB's medical advisor were consistent with or similar to those findings recorded in the various medical reports received in 1994. We agree with the conclusion that the claimant is not totally disabled and we attach little weight to the attending physician's opinion that the claimant is unemployable. We endorse the recommendation of the WCB's medical advisor that consideration should be made to place the claimant in alternate employment. In this regard, we find the claimant is entitled to job search assistance and benefits on a time limited basis. The provision of such assistance is, of course, dependent upon the full and complete co-operation on the part of the claimant. Inasmuch as the claimant has done very little, if anything, in the last five years to become re-employed, we are not predisposed to recommend anything in the way of benefits and/or services other than what has been suggested above.

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 15th day of April, 1999