Decision #150/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for a work related injury to his left hand and arm which occurred on May 18, 2004. On October 13, 2005, it was determined by primary adjudication that the worker had recovered from the effects of his compensable injury and was fit to return to his pre-accident employment. This decision was confirmed by Review Office. The worker disagreed and filed an application to appeal with the Appeal Commission and a hearing was held on December 12, 2007 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after October 20, 2005.

Decision

That the worker is not entitled to wage loss benefits after October 20, 2005.

Decision: Unanimous

Background

On May 18, 2004, the worker reported that he injured his left hand and whole arm when he tripped on a cord and landed onto his outstretched left hand. Medical information confirmed that the worker suffered an undisplaced fracture through the neck of the proximal radius. The claim for compensation was accepted and the worker was paid benefits.

Subsequent file records showed that the worker returned to modified duties but sought medical attention for neck and back pain, pain in his left scapula and left shoulder as well as in the left wrist and elbow. On March 9, 2005, the worker was seen by a WCB medical advisor who found that the worker had a “periarticular injury around the left shoulder girdle associated with the biceps tendon, supra and infraspinatus and some degree of rhomboids and erector spinae. There are other scattered areas of muscle tenderness. The claimant also shows evidence of irritability of the extensor muscles of the forearm arising from the lateral epicondyle. The examination of the carpal bones gives some concern of at least some scaphoid irritability.” The medical advisor recommended that the worker see an acupuncturist and physiatrist and restrictions were outlined for a six week period.

The worker was assessed by a pain management specialist and received acupuncture type dry-needling treatment. In a report dated June 8, 2005, the specialist reported that the worker’s condition regarding his shoulder and arm pain was improving after 10 treatments.

An MRI of the left shoulder was performed on June 14, 2005 and the radiological report indicated no significant abnormalities.

On October 10, 2005, a WCB medical advisor indicated that he had spoken with the pain management specialist and it was agreed that the worker had recovered from his injury and was fit for full duties. On October 13, 2005, the worker was advised by his case manager that in the opinion of the WCB, he no longer had a loss of earning capacity and had recovered sufficiently to return to his pre-accident duties. The worker was advised that wage loss benefits would be paid to October 20, 2005 inclusive and final.

In a submission to the WCB dated December 13, 2005, the worker indicated that he continued to experience pain and limited use of his left arm.

Primary adjudication obtained additional medical information concerning the worker’s condition and the reports were reviewed by a WCB medical advisor on March 14, 2006. The medical advisor commented that there was no change to his previous decision that the worker was fit to return to work. He stated that the “possible thoracic aortic arch aneurysm” was not the dominant cause of the worker’s pain.

On May 12, 2006, the case was considered by Review Office and it was determined that the worker was capable of returning to his full pre-accident duties and there was no entitlement to wage loss benefits after October 20, 2005. In arriving at its decision, Review Office placed weight on the following findings:

  • Arising out of the workplace injury, the worker required treatment for his left shoulder (soft tissue) and arm (radial neck fracture);
  • January 3, 2006 CT scan showed “the previously suspected fracture through the neck of the radius appeared completely healed”;
  • EMG, neurological findings and MRI were normal;
  • The worker received physiotherapy, chiropractic, athletic therapy and acupuncture;
  • Further medical investigation beyond September 15, 2004 failed to provide a diagnosis or examination findings to support a continuing injury arising out of the May 2004 work event;
  • A pain management physician and WCB medical advisor both believed the worker was fit for full duties;
  • On November 17, 2005, a physiatrist reported a cause could not be found for the worker’s left shoulder pain;
  • On April 6, 2006, the physiatrist reported normal examination of the worker’s left shoulder and no muscular atrophy;
  • A WCB orthoapedic specialist advised Review Office there was no medical evidence to support a relationship between the worker’s current problems and the May 2004 work injury;
  • The absence of a diagnosis and clinical findings to account for the worker’s continuing problems in relation to the injuries sustained in May 2004.

In July 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was convened on December 12, 2007.

In order to assist with their deliberations after the hearing, the appeal panel requested and obtained the following:

  • additional information from the pain management specialist who saw the worker in 2005;
  • a report from an independent medical examiner dated June 25, 2008;
  • additional information concerning a claim filed by the worker in 2007 for a left shoulder and neck injury; and
  • examination report by the WCB’s pain management unit dated August 21, 2008.

On October 17, 2008, the appeal panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

This appeal deals with the provision of wage loss benefits on an existing claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

Worker’s Position

The worker attended the hearing with his wife. He described his injury, work duties, return to work and current employment status. He also provided information on the physicians he has seen and the treatments he has received. He advised that he cannot perform his pre-accident duties and asked that benefits be extended beyond October 20, 2005.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits after October 20, 2005. For the appeal to be successful, the panel must find that the worker suffered a loss of earning capacity as a result of the workplace injury. In other words, the panel must find that the worker was not able to work and suffered a wage loss due to the workplace injury. The panel was not able to make this finding.

The hearing on this appeal was held on December 12, 2007. After the hearing, the panel determined that additional information was required before it made a decision. It wrote to and received information from a treating physician. It then asked that the worker undergo a third party examination by an independent specialist. This examination took place on June 25, 2008 and a report was provided to the panel. Based on the specialist’s comments regarding a possible chronic pain issue, the panel also asked that the worker be assessed by the WCB Pain Management Unit. An interview took place on August 21, 2008 and a report was provided to the panel. The panel acknowledges that obtaining this information took a considerable time, but is of the view that the information was required by the panel, so that it could make a fully informed and fair decision regarding the worker’s entitlement.

The panel has determined that the worker is not entitled to wage loss benefits after October 20, 2005. In reaching this decision, the panel places significant weight on the report of the independent specialist who examined the worker on June 25, 2008. After an examination and review of the worker’s medical file, the specialist commented that the worker’s current clinical evaluation is unremarkable and that an anatomic cause for the claimant’s pain cannot be confirmed on the basis of the clinical examination, history or laboratory investigation. The specialist found restriction in the neck range of motion but noted that the restriction cannot be accounted for and does not appear to be consistent from examiner to examiner. He found there was no objective basis to restrict the patient in the workplace and specifically that the worker’s medical condition does not “interfere with the essential elements of his occupation.” He concluded that the prognosis for the worker’s physical condition, and return to normal function is excellent in light of the relatively normal physical examination and laboratory investigation. The panel notes that the minimal clinical findings and the conclusions of the specialist are consistent with the findings of the medical practitioners noted in the file from 2005 and forward, as noted in the background.

As the independent specialist noted a potential chronic pain disorder, the panel asked that the worker be seen by the WCB’s Pain Management Unit. The panel attaches significant weight to the report from this unit which interviewed the worker on August 21, 2008. The unit concluded that the worker does not meet the WCB chronic pain syndrome criteria. It noted that that the worker functions well in the social, recreational and avocational areas but that his occupational disruption appears to be out of proportion to any disruptions he experiences in these areas. The unit commented that “based upon the information on file and the information, observations, and opinions noted in the present report, it is our opinion that there do not appear to be any workplace restrictions due to the psychological issues that would be causally related to the compensable injury or the worker’s condition as of or after October 20, 2005. The claimant exercises good pain management strategies and functions well in all of his avocational, recreational and social activities, and is not suffering from any mood disorder.”

The worker’s appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of November, 2008

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