The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the causal relationship between the worker’s ongoing upper limb complaints and his compensable injury.

On October 1, 2003 the worker filed a claim with the Workers Compensation Board (“WCB”) for pain he was experiencing in both hands, wrists and forearms which was diagnosed and accepted as an enhancement of pre-existing carpal tunnel syndrome (“CTS”). The worker had corrective surgery and underwent a work hardening program, after which the WCB determined he was fit to return to his regular duties effective November 25, 2005.

The worker appealed this decision to Review Office which upheld it in a decision dated April 13, 2006. It is this decision that the worker appealed to the Appeal Commission.

A hearing was held on September 5, 2006. The worker and his worker advisor participated via teleconference. An advocate for the employer appeared.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 25, 2005; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That the worker is not entitled to wage loss benefits beyond November 25, 2005; and

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

Reasons

Background

The worker had a pre-existing history of CTS which was first diagnosed in 2002. Surgery was not performed and over time the worker’s symptoms abated. Then, on September 18 and 19, 2003, after working approximately 6 months as a construction labourer for the accident employer, the worker’s hands began to bother him and eventually started to become numb. He was laid off on September 26, 2003 and then went to his family physician on September 29, 2003 who diagnosed him with bilateral tendonitis, CTS and lateral epicondylitis. The diagnosis of CTS was confirmed on a nerve conduction study (“NCS”) on October 7, 2003. It was also confirmed that the CTS had worsened since a previous NCS in 2002.

The worker then filed a claim with the WCB in October 2003. In reviewing the worker’s job duties and prior diagnosis of CTS, the claim was accepted by the WCB as an aggravation of pre-existing CTS.

A second NCS was done on February 26, 2003 which confirmed the existence of CTS but showed some improvement since the previous examination. This time, however, there was also evidence of mild cubital tunnel syndrome on the left.

The worker then saw a plastic surgeon on March 15, 2004. The plastic surgeon found signs consistent with lateral epicondylitis, bilateral CTS and cubital tunnel syndrome and suggested a left carpal and cubital tunnel decompression.

The worker’s file was reviewed by a WCB medical advisor on April 14, 2004. He thought there was some doubt whether the worker had epicondylitis or myofascial pain as he thought the evidence for cubital tunnel syndrome was soft. He also questioned an alternate cause for the worker’s multiple arm complaints.

It is in this context that the worker was called in for an examination by a WCB medical advisor on June 10, 2004. Upon examination, the WCB medical advisor found that the worker suffered from three conditions:

• CTS which was demonstrated by bilateral median nerve irritability;
• Cubital tunnel syndrome which commenced after the worker had ceased working; and
• Myofascial pain which was displayed by discomfort in the forearm extensor muscles bilaterally.
• There was no evidence of epicondylitis as the worker’s wrist and finger extension strength was excellent without epicondylar area pain.

On June 23, 2004, a WCB medical advisor wrote to the surgeon to advise that the WCB would only accept financial responsibility for the left carpal tunnel decompression. The WCB medical advisor later opined that given the decompression of the left carpal tunnel, the workplace accident had enhanced the worker’s pre-existing condition. He also maintained that the cubital tunnel syndrome was not related to the workplace accident. He thought that these symptoms were more likely related to myofascial involvement of the forearm muscles than any neurological involvement.

The worker remained off work and eventually returned to modified duties in 2004 which the worker complained he had difficulty completing. He underwent left carpal tunnel decompression on February 4, 2005 and right carpal tunnel decompression on May 6, 2005, as well as a course of physiotherapy.

Despite successful surgeries, the worker continued to complain of numbness in both hands as well as of tenderness and swelling at the scar sites. Reports from the plastic surgeon indicate that the worker should not return to construction work and that he would likely have ongoing problems with pain. A May 30, 2005 report notes that the surgical incisions were healing well though the left incision did have some tenderness on deep palpation and the right incision was still thick and firm and tender. There was good range of motion of the digits and wrist. The worker was told that he could return to work doing light duties 6 weeks postoperatively.

In a follow-up report dated August 24, 2005, the plastic surgeon noted that the worker had still not returned back to work. The worker reported that he had done reasonably well since his surgeries but complained of pain in both hands that limited his activities and numbness at night time. The plastic surgeon commented that the worker was very pain focused. He advised him to continue with his physiotherapy treatments until his condition plateaued.

On August 26, 2005, a WCB medical advisor examined the worker’s upper extremities to determine whether or not his recovery from surgery was satisfactory. Upon examination he found that there were no areas of tenderness around the elbows or forearm muscles or flexor tendons. There was however tenderness over the incisions bilaterally. On the left, gentle palpation caused pain that started in a small circle in his palm and radiated out across his hand into all fingers. Tinel’s testing over the median nerve at the wrist caused mild discomfort into the palm on the left and a sharp pain radiating to all his digits through to the dorsum of his hand and up the flexor surface of his forearm on the right. Phalen’s test caused mild equivocal symptoms. It was also noted that both of the worker’s hands were extensively calloused.

The medical advisor concluded that the worker had not had full recovery of his function though he could not find a reason for this:

“Objective sensory testing revealed no bias in sensory function between the median and ulnar innervated aspects of his hands. Objective grip strength testing revealed in excess of 30 pounds of grip strength in contrast to his self reported ability to grasp 5 pounds. His sensitivity to palpation over the right carpal tunnel region caused global hand and arm discomfort in contrast to the anatomical distribution of the median nerve. Insofar as [the worker] has had median nerve pathology found at his operations, some delay in his recovery to date could be attributed to this. His present symptoms having no clear patho-anatomical localization are less likely related to median nerve pathology.”

The medical advisor outlined restrictions for the worker upon his return to work. These restrictions were embraced by the plastic surgeon who suggested that the worker should try to return back to work.

As matters turned out, the accident employer did not have suitable modified duties available. The WCB therefore arranged for the worker to attend a work hardening program. An October 28, 2005 intake assessment of the rehabilitation consultants that were to assist with the work hardening program thought that the worker was experiencing myofascial pain at the forearms and hands bilaterally subsequent to his carpal tunnel syndrome decompression surgeries. It was also noted that the worker presented with self-limiting and pain focused behaviours. The worker then began the work hardening program.

It was at about this time that surveillance was taken of the worker. The surveillance was undertaken on October 14, 17 and 24, 2005. The worker was seen, in particular, lifting and carrying a child in his arms, pushing a stroller, lifting and loading garbage and carrying a box and bag without any noticeable signs of discomfort or impairment. On November 14, 2005, the videotape was reviewed by the WCB medical advisor who examined the worker in August 2005. Based on his observations from the videotape, the medical advisor concluded that the worker’s abilities did not match his self reported abilities nor his abilities documented on the work hardening assessment intake report. The medical advisor expressed his view that the worker should be able to return to his regular duties once his work hardening program ended on November 25, 2005.

A discharge report authored by the work hardening program dated November 23, 2005 indicated that the worker’s “demonstrated strength ability” at the start of the program was “Sedentary strength level” and at the end of the program was “Light strength level”. It also stated that the worker remained pain focused throughout the course of his rehabilitation. In conclusion, it stated:

It is also important to note that [the worker’s] presentation was not consistent with symptoms of [CTS]. [The worker] often reported pain in the palm of his hands when pressure was applied. Typically, with [CTS], one would experience tingling into the palmar aspect of the first, second and third digits. This would be associated with weakness and possible atrophy of the thenar eminence. He also indicated that he was unable to carry/lift the crate with the forearms in a supinated position due to pain in the palm of his hands and preferred to complete the carry or lift with the forearms in a neutral position. Typically, with [CTS], one would be strongest when lifting or carrying with the forearms supinated, thereby using the biceps to complete the lift or carry. [The worker] was observed grasping and holding various objects, such as small weights and pens, throughout the day with no apparent difficulties. He demonstrated the ability to complete fingering and handling tasks on a frequent basis during objective testing. Typically, with [CTS] one would have difficulty using the thumb to oppose and handle objects.” (emphasis in original)

In a report from the plastic surgeon dated November 28, 2005, he noted that the worker was doing reasonably well although his symptoms still persisted. The worker was advised to avoid any form of heavy or repetitive activity.

It was on this same day that the WCB case manager informed the worker that his benefits were terminated effective November 25, 2005 as he was determined fit to return to his regular duties.

The worker appealed this decision on March 3, 2006. In support of his appeal a new report from the plastic surgeon dated January 25, 2006 was provided. In this report, the plastic surgeon took the position that the worker’s ongoing complaints were related to the presence of his CTS and surgeries. He said the worker was pain focused and this was delaying his recovery as he was reluctant to use his hands. The worker also submitted that in the event that the WCB did not accept the appeal, a Medical Review Panel (“MRP”) should be convened under subsection 67(4) of The Workers Compensation Act (the “Act”) as there was a difference of medical opinion between the WCB’s medical officer and the worker’s plastic surgeon.

On March 14, 2006, the WCB case manager advised the worker that she was not altering her decision. The request to convene an MRP was also denied as it was felt that the requirements of subsections 67(4) and 67(1) of the Act had not been met.

The case was considered by Review Office. In the context of this review, several additional pieces of information were provided:

Panel Members

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of October, 2006