The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

On June 10, 1987, the worker was working as a roofer. As he began opening a valve on an asphalt tank, the tank blew up. The lid from the tank hit him on his right elbow and the hot gas and fluid spilled onto his face, chest and arms, causing him first and second degree burns. By June 30, 1987, the second degree burns had almost completely healed and the worker was authorized to return to work by his family physician as of July 6, 1987.

In 1988, the worker advised the WCB that he was having difficulties with his right elbow which he related to being struck by the tank lid on June 10, 1987. Reports from the treating physician indicate that he thought that the worker’s elbow complaints were related to a small fracture of the right olecranon, post-traumatic arthritis of the right elbow and tendonitis. The worker’s right elbow difficulties were at first denied by primary adjudication and Review Office as it was felt that there was no relationship between the worker’s right elbow difficulties and the accident. The decision was overturned by an appeal panel and responsibility for the worker’s right elbow complaints were accepted as a WCB responsibility. On November 30, 1993, the worker was awarded a 4% permanent partial disability award for scarring and decreased range of motion in the right elbow.

The worker continued to complain of right elbow pain after the accident. He was reviewed by several medical doctors regarding his elbow and arthritis condition.

The following medical reports, though not exhaustive, are pertinent to the worker’s appeal:

• On November 30, 1988 he was seen by an orthopaedic surgeon who, after diagnostic testing, noted that the worker had bilateral osteoarthritis of the elbow, which was more pronounced on the right. He thought that this more marked pronouncement on the right was due to his workplace injury. He thought that the right elbow might become more symptomatic or tend to become aggravated because of small bone chips located in the right elbow. No other possible side-effects were anticipated.

• The worker was assessed at a call-in examination at the WCB on January 23, 1992. The WCB medical advisor opined that the bone chips were not characteristic of a traumatic fracture.

• A September 7, 1993 x-ray showed degenerative changes involving both knees and elbows. The radiologist noted that the osteoarthritic changes in the knee joints were not severe.

• An undated report from the treating physician that was received at the WCB on December 13, 1993, thought that the prognosis for the worker’s right elbow was not good. He added that he thought it could develop into a “full blown arthritis, compromising other joints, and the muscles and tendons involved will never work at a normal level of function”. He also commented that the worker’s joints were already showing irreversible changes such as severe and maintained limitations of movements.

• On December 14, 1993 the worker was provided compensable restrictions of no lifting greater than 25 pounds. This was changed in July 1994 to a permanent restriction of not lifting more than 20 pounds with his right arm. At the hearing the worker confirmed that to his knowledge, these restrictions have not been changed since this date.

• In a September 28, 1994 report, the family physician noted that the worker had “…arthritis that at this date is almost generalized.” He added that he thought the worker would have problems in performing any job.

• A February 23, 1995 report from a rheumatologist opined that the worker had ongoing probable post-traumatic arthritis of the right elbow, as well as probable degenerative arthritis of his neck. An April 17, 1995 report notes however that an x-ray taken after the initial visit did not reveal any degenerative changes in the right elbow.

• An x-ray taken on September 21, 1995 noted minimal degenerative changes in the worker’s cervical spine as well as a minor deformity of the acromioclavicular and glenohumeral joints of the left shoulder, presumably related to an old healed fracture.

• In a report dated January 4, 1996, the rheumatologist reported that he saw the worker on September 21, 1995 and the diagnosis was post-traumatic osteoarthritis of the right elbow and left subacromial bursitis. He commented that the long-term prognosis for the left subacromial bursitis and the post-traumatic osteoarthritis at the right elbow was fairly good. He added that the worker was not disabled from working.

• A May 6, 1996 x-ray of the right elbow noted a tiny spur on the olecranon as well as a corticated ossification at the tip of the olecranon, unchanged from February 1995.

• A November 14, 1996 report from an orthopaedic specialist noted that he saw the worker for his right elbow osteoarthritis. He noted that the pain complaints on this examination differed from those of an earlier examination in May 1996. He recommended conservative treatment.

• A December 3, 1996 report from the family physician noted that since his compensable injury the worker’s general condition had deteriorated to the point that he had several joints with arthritis “as a direct result of the arthritic changes on the right elbow enhanced by the overuse of the left arm in order to be able to carry on with some activities”. As for the worker’s prognosis, he commented that the “chance of making this gentleman [sic] condition better is less…because the nature of the pain has changed”.

• A December 12, 1996 x-ray of the worker’s right elbow noted no interval change since the last x-ray taken in May 1996. The orthopaedic specialist noted that the worker’s right elbow and left shoulder complaints had changed in location since his last examination. He therefore recommended a second opinion.

• The second opinion was provided by a second orthopaedic specialist on February 6, 1997. He could not link the worker’s pain complaints with any diagnosis. He suggested an MR arthrogram and possibly a diagnostic arthroscopy, though he cautioned that this later option would have to be carefully considered because of the worker’s prolonged course and “really vague symptoms”.

• An April 8, 1997 report from the treating physician offers the opinion that the worker had not recovered from the effects of his compensable injury. He added that “…because of the natural behavior of osteoarthritic syndrome he is now suffering of a more generalized (palindromic) type of osteoarthritis, with degenerative changes in several other large joints like: knees, shoulder, the left elbow” which he felt was related to the worker’s compensable injury. He thought that the worker was however capable of some sedentary work.

• The WCB orthopaedic consultant to Review Office disagreed with the family physician’s opinion about the generalized osteoarthritis. On July 30, 1997 he wrote:

“…The file & reports suggest patient has a generalized [osteoarthritis] or enesopathy of which the right elbow may be a part & not necessarily occurring as a result of his trauma in June/87. A right elbow injury would not lead to generalized [osteoarthritis].”

• A CT air arthrogram dated August 11, 1997 ruled out any loose bodies in the right elbow. It noted however a few separate calcifications adjacent to the medial epicondyle likely in relation to the common flexor origin.

• On September 16, 1997, the orthopaedic specialist noted that the worker’s degenerative changes were minor and that he was discharging him from his care.

• On November 18, 1997, the WCB orthopaedic consultant to Review Office stated that as the worker had only mild osteoarthritis of the right and left elbows there was no need for restrictions.

• On March 23, 1998 the worker’s family physician offered his opinion that the worker suffered a fracture of the right elbow with a small comminute fracture of the olecranon that ended up being moved into the right elbow joint. As a result of this trauma the worker suffered traumatic arthritis and developed symptoms and signs of arthritis in other joints. He noted that the “causative relation between the Trauma (sic) and the more generalized Arthritis (sic) is difficult to deny or to agree with”. Some medical literature was provided on arthritis in a July 9, 1998 report.

• The WCB orthopaedic consultant to the WCB reviewed the literature. On November 19, 1998, he offered his opinion:

“…It is accepted that an injury to a specific joint can develop a post-traumatic arthritis of that specific joint. In the end multiple joint osteoarthritis still remains idiopathic [of unknown origin] unless it is occurring on an obvious post-traumatic or degenerative basis and any other theories that are advanced are just speculation. It is not reasonable to assume that multiple joint osteoarthrosis or osteoarthritis has arisen as a result of an isolated single event injury to one elbow.”

• A May 16, 2003 bone scan of the worker’s entire body only noted abnormal uptake in the hands and the right foot possibly on the basis of osteoarthritic changes.

• A September 28, 2005 CT scan of the worker’s cervical spine noted some minimal degenerative anterior spurring and perhaps some minimal apophyseal joint osteoarthritis at L3-L4 and degenerative disc narrowing and a very mild degree of annular bulging at L4-L5, as well as a minor apophyseal joint osteoarthritis at L5-S1.

• X-rays taken of the worker’s lumbar spine and sacro-iliac joints on February 19, 2007 revealed minor degenerative changes with small anterolateral osteophytes. There was no abnormality of the sacro-iliac joints.

• X-rays taken of the worker’s right elbow on March 16, 2007 noted minor degenerative change at the elbow joint as well as a small enthisophyte arising from the posterior portion of the olecranon.

The Vocational Rehabilitation Process

In February 1994, the worker was referred to the WCB’s vocational rehabilitation branch to help him find suitable employment as his employer had terminated his employment for reasons unrelated to the compensable injury.

A career assessment was done in the Spring of 1994. A work assessment was done in July 1994 to determine the worker’s functional abilities. A July 7, 1994 WCB internal memorandum noted that the worker was not very cooperative during this assessment; he generally showed no interest in the job though he did not complain about any right arm complaints. Following this work assessment, the worker was referred for a Functional Capacity Evaluation (“FCE”). The occupational therapist administering the FCE noted that the worker did not appear to provide his maximum effort. She noted that while he was compliant in completing test activities, he demonstrated self-limiting behaviour. As a result of the testing, she thought that he was capable of working full days with no restrictions other than lifting restrictions.

Given his lack of transferable skills, limited education, language problems and physical restrictions, the worker was referred to an individualized marketing program. A Vocational Rehabilitation Plan was then developed and was signed by the worker on September 1, 1994. The plan was to run between September 12, 1994 and January 31, 1995 whereby an Employment Specialist (“ES”) would assist the worker in conducting an active job search. If the worker was unsuccessful in finding work by the end of the plan, his benefits would be reduced based on an earning capacity of $200.00 per week.

On September 22, 1994, the worker began a work assessment program in landscaping which was considered to be light to medium work. September 27, and October 11, 1994 WCB memoranda to file outlines this work assessment. Briefly they note that the worker worked approximately two weeks without any evidence of problems but then stopped because of elbow and left hand complaints. The worker saw his family physician who recommended he return to light duty work but with restrictions for six weeks on the number of hours worked and physical restrictions of no repetitive use of the hand and no lifting or carrying more than 5 pounds.

The ES thought that the landscaping position was within the worker’s compensable restrictions and it was in an area that he had expressed an interest in, but commented that the worker did not appear to be prepared to commit to put in the time required to build up his endurance.

On October 21, 1994, the worker commenced a work assessment that involved assembling and disassembling alarms. The worker found the job duties to be light but nonetheless complained of a “big” pain in his elbow. He also stated that he wanted a real job, not a work assessment. He then decided to discontinue the work assessment program.

The ES’s memo dated February 6, 1995, summarized the worker’s job search efforts. The ES notes in particular that following the work assessments, the worker was referred for several real paying jobs ranging from assembling, filling and emptying vending machines, machine operator and laminating. On one occasion the worked did not attend the interview because he said he had no gas for his car. On another, he told the employer about all of the pain he was experiencing. On January 26, 2005 the ES determined that vocational rehabilitation services provided to the worker was sufficient and that the worker had the skills and capabilities to work at his pre-accident level. A WCB memorandum to file dated April 7, 1995 outlined the rationale and confirmation of the worker’s deemed earning capacity. Based on the average wage for a groundskeeper and an assembler, the ES determined that the worker’s earning capacity was $6.45 per hour or $258.00 per week, which when combined with his permanent partial disability award, exceeded his pre-accident earnings.

The worker was advised that effective February 1, 1995 he would no longer be receiving wage loss benefits from the WCB as it was felt that he had the skills and capabilities to work at his pre-accident level.

Analysis

As stated previously, three issues are before the panel as follows: 1) whether the worker’s generalized large joint arthritis is a sequela of his June 10, 1987 compensable injury; 2) whether a medical review panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act; and 3) whether the worker is entitled to further vocational rehabilitation services.

Issue 1: Whether the Worker’s Generalized Large Joint Arthritis is a Sequela of the June 10, 1987 Compensable Injury

To accept the worker’s appeal, the panel must find on a balance of probabilities that the worker’s generalized large joint arthritis is a sequela of his compensable injury. We are unable to make that finding.

The evidence before us is that in addition to the burns suffered by the worker, he was hit in the right elbow with the tank lid. Though the worker’s family physician has offered several opinions about the severity of the worker’s right elbow condition to support his contention that the right elbow injury could cause a more generalized condition, we find that these opinions are not supported by the diagnostic tests or the medical literature that he provided nor is this causal link supported by several orthopaedic surgeons more familiar with this type of medical issue. Indeed, there is no convincing evidence that the worker fractured his right elbow or that any bone fragments entered his elbow joint. Further, while the medical literature speaks about arthritis more generally, we do not find any convincing evidence that the worker’s injury could have caused a more generalized arthritic condition. We therefore agree with the opinion of the orthopaedic consultant to the Review Office who stated multiple joint osteoarthritis is generally of unknown origin unless it is occurring on an obvious post-traumatic or degenerative basis. It is not reasonable to assume that multiple joint osteoarthrosis or osteoarthritis has arisen as a result of an isolated single event injury to one elbow.

Issue 2: Whether a Medical Review Panel should be Convened pursuant to subsection 67(4) of the Act

To accept the worker’s appeal we must find on a balance of probabilities that the medical opinion of the medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 67(4) and 67(1) of the Act. We are unable to make that finding.

Subsection 67(1) of the Act provides that a difference of opinion requires that the treating physician provide a full statement of the facts and reasons supporting a medical conclusion. In the case before us, the worker’s treating physician offers a speculative opinion about the worker’s condition. The panel notes that in his March 23, 1998 report the treating physician states that the “causative relation between the Trauma (sic) and the more generalized Arthritis (sic) is difficult to deny or to agree with.” The panel also notes that the medical literature provided by the treating physician does not in fact support the specific causal relationship between the worker’s elbow injury and the large joint arthritis that he asserts.

As such, we find that the treating physician has not provided a full statement of facts and reasons in support of a medical conclusion. We therefore find that there is not a difference of opinion as required by the Act and that consequently, there is no basis upon which to convene a medical review panel.