The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

In 2002 and 2006, the worker filed claims with the Workers Compensation Board (“WCB”) for shoulder and hand difficulties that he related to his activities in the workplace. Both compensation claims were accepted by the WCB and benefits were paid.

In October 2008, the worker filed an application to appeal with the Appeal Commission. The worker disagreed with the decision made by Review Office on his 2002 claim in which it determined that there was no supporting evidence to show that his right shoulder bursitis and bilateral interosseous nerve syndrome continued to disable him from working after September 30, 2005.

The worker also disagreed with Review Office’s decision that the injury he incurred on December 11, 2006, had resolved to the point that it was not limiting his capabilities to return to his pre-accident work and therefore he was not entitled to wage loss benefits beyond January 10, 2007.

On January 12, 2009, a hearing was held at the Appeal Commission to consider both matters.

Issue

Whether or not the worker is entitled to wage loss benefits after September 30, 2005 in relation to his compensable injury of October 18, 2002; and

Whether or not the worker is entitled to wage loss benefits after January 10, 2007 in relation to his compensable injury of October 18, 2002 and/or of December 11, 2006.

Decision

That the worker is not entitled to wage loss benefits after September 30, 2005 in relation to his compensable injury of October 18, 2002; and

That the worker is not entitled to wage loss benefits after January 10, 2007 in relation to his compensable injury of October 18, 2002 and/or of December 11, 2006.

Decision: Unanimous

Background

The workplace injury with the first employer

In 2002, the worker was working for his first employer. The work was repetitive; his duties included hanging wheels onto a conveyor belt approximately 800 to 1000 times per day.

The worker filed a claim with the WCB for pain in his right shoulder and both hands. The date of the accident was recorded as October 18, 2002. The worker related his pain to the repetitive nature of his job duties.

The treating physician diagnosed the worker’s condition as bursitis in the right shoulder. This diagnosis was confirmed by an orthopaedic specialist on November 1, 2002.

In a follow-up visit on November 8, 2002, the orthopaedic specialist reported that the worker had complained of weakness in the radial digits of both hands for several weeks. The worker was experiencing trouble grasping and pinching with the thumb to index finger bilaterally. The orthopaedic specialist suggested that the worker had features compatible with interosseous median nerve palsy of both hands or cervical disc syndrome. The orthopaedic surgeon indicated that he was arranging for a consultation with a neurologist.

In the medical reports which follow, issues related to the anterior interosseous nerve are variously termed anterior interosseous nerve syndrome or cubital tunnel syndrome. The syndrome can be described as a sequence of neurological disturbance seen in lesion of the anterior interosseous nerve (a motor branch of the median nerve). It is often characterized by issues with the long flexor muscle of the thumb and the deep flexor muscle of the index finger.

On November 28, 2002, a WCB adjudicator denied the worker’s claim for compensation as she was unable to establish a relationship between the worker’s right shoulder and hand difficulties and an accident arising out of and in the course of his employment.

The worker underwent surgery to his right forearm on May 25, 2004 and surgery to his left forearm on August 6, 2004. Both surgeries were for exploration and decompression of the anterior interosseus nerve.

The worker was assessed by another orthopaedic specialist on February 2, 2005. He noted that the worker had been off work with regard to anterior interosseous nerve compression for which he underwent bilateral decompressions. The worker suggested that he had not noticed any improvement in spite of being off work for the past two years. The worker’s pain was mostly over the lateral aspect of the shoulder and was exacerbated by any attempt at lifting or reaching overhead. The specialist’s impression of the worker’s condition was chronic impingement syndrome.

On June 2, 2005, a WCB medical advisor reviewed the file information along with the operative reports of May and August 2004. She concluded that there were no findings at the time of surgery which could be related to a compensable injury.

On September 13, 2005, the WCB medical advisor stated,

“Initial reports on file dx [diagnosis] (R) shoulder bursitis. With appropriate tx [treatment] normal recovery would be 4-6 weeks.

The dx of bilateral RC [rotator cuff] impingement is introduced in 2004, 2 yrs. after the initial claim & after he stopped working. It would be very difficult to relate that dx to his work duties given the timing involved.”

In a decision dated September 15, 2005, the worker was advised that the WCB was accepting responsibility for his right shoulder bursitis and that he was entitled to six weeks of benefits from October 18, 2002 to November 29, 2002 which was the normal recovery norm for such a condition. It was also held that “as the suggestion of bilateral impingement syndrome was not introduced until recently we are unable to attribute this condition to your past work activities. As a result, we are unable to accept responsibility for your ongoing shoulder difficulties.” On October 7, 2005, the worker appealed this decision to Review Office.

On January 5, 2006, Review Office determined that the worker’s ongoing problems with his shoulders and arms (which became much worse after he stopped working between October 2002 and September 2005) were not work related. It suggested that test results and medical investigations did not confirm any work related diagnosis other than bursitis of the right shoulder. Review Office confirmed that the worker was not entitled to further benefits beyond November 29, 2002. On February 28, 2006, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was held on May 24, 2006.

The first appeal panel hearing

At the May 2006 hearing, the worker indicated that he had been off work since 2002. He stated that he had recently completed training to become an independent living attendant. At the time of the hearing, he was completing the practicum portion of the training. Evidence also suggested that the worker was actively seeking work by October 2005.

During the course of the hearing, considerable discussion was devoted to the issue of whether the worker had suffered a compensable loss of earning capacity as a result of anterior interosseous nerve syndrome. The panel also heard evidence relating to the question of whether the worker had suffered a compensable loss of earning capacity relating to the chronic shoulder impingement. When asked whether he was able to lift his right arm above his shoulder in 2002, the worker indicated “yes, I do.” The worker went to some length to describe the pain in his shoulder as it was in 2006. The worker was asked “was that kind of pain there in 2002.” He answered “Not really, just like not really, really pain.”

Following the May 2006 hearing, the appeal panel requested and received additional information from the worker’s treating neurologist dated June 12, 2006 and from an orthopaedic specialist dated September 11, 2006.

In his report of June 12, 2006, the neurologist provided his opinion that the worker’s anterior interosseous nerve lesions were work-related. Similarly, the orthopaedic specialist in his letter of September 11, 2006 suggested that the worker's repetitive job duties may have caused compression of the nerve.

In Decision No. 183/06 dated November 22, 2006, the appeal panel (the 2006 appeal panel) referenced both the diagnosis of chronic impingement syndrome and the diagnosis of anterior interosseous nerve syndrome.

In detailing the argument that the worker's loss of earning capacity might be related to a chronic shoulder impingement related to a workplace accident, the panel presented the September 2005 opinion of the WCB medical advisor. Given the gap between the cessation of labour in 2002 and the initial diagnosis of a bilateral rotator cuff injury in 2004, the advisor concluded that “it would be very difficult to relate that [diagnosis] to his work duties . . .”

Ultimately, the panel concluded, on a balance of probabilities, that the worker's medical difficulties were causally related to his employment. It expressly found that “the worker suffered from anterosseus nerve syndrome” which it related to the repetitive nature of his job duties. Based on its determination that the anterior interosseus nerve syndrome was a compensable injury, the panel found that the worker was entitled to wage loss benefits and services beyond November 29, 2002.

The WCB later paid the worker full wage loss benefits from November 30, 2002 to September 30, 2005.

The workplace injury with the second employer

On February 2, 2007, the worker filed another claim with the WCB for injury to his arms and shoulders. He related his workplace injuries to a December 11, 2006 incident when he tried to prevent a patient from falling. The worker claimed that he had been totally disabled from working at his job as a companion since December 2006 as a consequence both of the pain in his shoulder and from taking pain medication.

In terms of the worker's injury status in December 2006 and January 2007, a report from his physician dated January 20, 2007 indicated that:

On December 15, 2006, the worker complained of pain in both shoulders and forearms. This was an old complaint dating back to October 2002 but the pain worsened on December 11, 2006 when he tried to prevent a patient from falling while working with his second employer.

When seen on December 29, 2006, the worker’s shoulders were still painful. His forearm seemed numb and his grip was not good. He has no work lately, waiting to be called.

On his Dec. 15 and 29 visits, he had tenderness on both shoulders, anterior and posterior aspects and forearms. His grip did not seem good at that time. Grip was good by Jan. 11/07.

When asked to outline any restrictions, temporary or permanent, the family physician chose not to mandate any restrictions. He indicated that:

He presently works as a companion care giver, on call and has no full time regular job. Hence, no restrictions were mandated as for Nove (sic). As of Jan. 11/07 visit his pains were improving and grips were good.

On May 3, 2007, primary adjudication denied the worker’s claim. It was unable to establish that the worker was injured as a result of the incident at work on December 11, 2006.

In a memo dated May 16, 2007, a medical advisor indicated that he had been asked whether any restrictions would be required by the worker with regard to his bilateral interosseous nerve syndrome. He indicated that he would request a Functional Capacity Evaluation (FCE) to quantify any restrictions.

On June 20, 2007, the worker underwent a FCE. The FCE report stated that its purpose was to determine the worker's need for work place restrictions and his present capabilities. In commenting upon the validity of the examination, the report observed that the worker's

Participation during the FCE was identified not to be a full voluntary effort; passing 1 of 5 validity checks. As such, the FCE results are considered to represent [the worker's] minimal physical abilities.

On June 21, 2007, the worker underwent an examination by a physiotherapy consultant with regard to a potential permanent partial impairment award. The physiotherapy consultant concluded:

There was no loss of passive joint range of movement in his elbows, wrists or hands. There was no consideration of an impairment rating for loss of range of movement.

On June 28, 2007, a medical consultant prepared a memo to file with regard to the permanent partial impairment examination. He stated:

It appears that this man developed a bilateral anterior interosseous nerve problem as a result of the repetitive tasks at work. In addition, he has had ongoing problems with both shoulders. He has had accepted diagnoses by the WCB of right shoulder bursitis and (by the Appeal Commission) bilateral interosseous compression syndrome. In addition, he has had non work related shoulder problems which developed after he stopped working. As a result, it appears that his bursitis in the shoulder was of a minor nature with regard to any impairment of his shoulders.

The bilateral interosseous syndrome, however, has apparently resulted in symptoms relating to hand grip and it is therefore considered that the impairment resulting from his workplace injury will include not only his cosmetic losses related to his surgeries for exploration and compression of the anterior interosseus nerve, both left and right forearms, but also related to any loss of dexterity resulting from these procedures.

. . . The claimant will be called in for examination at which time range of motion and dexterity of the hands will be assessed as well as any cosmetic impairment resulting from his surgeries.

In July 2007, the worker was assessed for an impairment award in relation to his right shoulder, both elbows, forearms, wrists, thumbs and fingers. Based on this assessment, it was suggested that the worker was entitled to a 1.5% impairment rating for his right shoulder relating to a loss of range of movement and 2% for a cosmetic impairment relating to prominent surgical scarring on the worker's forearms.

More specifically, the examination notes indicate that:

Sensation was intact throughout both upper extremities. Biceps, triceps and brachioradialis reflexes were normal and equal bilaterally. Grip strength was rated at 4/5 bilaterally . . . based on my examination today, the only ratable impairment related to the elbows and forearms would be for cosmetic.

No loss of dexterity was identified in the examination.

The worker was seen by a neurologist on January 29, 2008. The worker reported difficulty with picking up small objects and moving both upper limbs in general. Following examination and laboratory test results, the neurologist found no electrophysiological abnormalities in the worker’s upper limbs. More specifically, he concluded:

The right and left median distal motor latencies and proximal motor induction values between the wrist and elbow were normal. The median F-wave latencies were also well within normal limits.

Right and left ulnar motor conduction values including F-wave latencies were well within normal limits.

Right and left median superficial radial and ulnar antidromic sensory responses across the wrist were well within normal limits.

EMG examination of the right deltoid, triceps, EDC, APB, FDI and cervical paraspinal muscles was normal.

A series of decisions relating to whether the worker was entitled to wage loss benefits after January 10, 2007

On January 9, 2008, Review Office overturned the decision made by primary adjudication to deny the worker’s 2006 claim. Review Office concluded that the worker sustained a minor aggravation of his pre-existing condition as a result of the work accident on December 11, 2006.

On January 28, 2008, primary adjudication advised the worker that based on an opinion expressed by a WCB medical advisor, he would be paid wage loss benefits to January 11, 2007. It was the WCB’s position that by this date, the worker had recovered from the effects of the aggravation of his pre-existing condition. The worker disagreed with this decision and an appeal was filed with Review Office.

On July 24, 2008, Review Office confirmed that the worker was not entitled to wage loss benefits beyond January 10, 2007 in relation to his 2006 claim. Review Office found from the weight of evidence that as of January 11, 2007, whatever injuries the worker suffered on December 11, 2006 had resolved at least to the point where they were not limiting his capabilities to return to his pre-accident work. It found that the worker did not have a loss of earning capacity as determined under The Workers Compensation Act (the “Act”) and did not have an entitlement to wage loss benefits.

A series of decisions relating to whether the worker was entitled to wage loss benefits after September 30, 2005 in relation to his compensable injury of October 18, 2002

In a decision dated April 11, 2008, primary adjudication advised the worker that based on a review of the medical information, namely his impairment assessment, the FCE results and the findings by the neurologist, the WCB determined that he did not require restrictions in relation to his bilateral arm condition that would prevent him from returning to work. As such, wage loss benefits would be paid to September 30, 2005 inclusive and final.

In making its decision, primary adjudication noted the following:

• An FCE was undertaken on June 20, 2007 to determine if the worker required restrictions as a result of his injury. His participation during the FCE was identified not to be a full voluntary effort;

• While a partial impairment award of 3.5 percent was awarded for compensation purposes, impairment and disability are different. Impairment is a temporary or permanent loss of function or body part. Disability is the inability to meet work demands because of an injury or illness;

• The results of the worker’s nerve conduction studies on January 29, 2009 were normal. On examination, there was no focal wasting and no evidence of neuromuscular weakness. Reflexes were 2/2 bilaterally.

In a July 31, 2008 decision, Review Office confirmed that there was no entitlement to wage loss benefits after September 30, 2005. Review Office found no supporting evidence to show that the worker’s right shoulder bursitis and bilateral interosseous nerve syndrome continued to disable him from working after September 30, 2005 resulting in a related loss of earning capacity.

In early October 2008, the worker’s representative appealed the decisions made by Review Office dated July 24, 2008 and July 31, 2008 to the Appeal Commission. A hearing was arranged.

A written submission by the first employer was received on or about December 29, 2008.

The Oral Hearing

The oral hearing took place on January 12, 2009.

During the course of the hearing, the worker sought the panel’s permission to place on the record additional medical information from an August 2008 report by the worker's family doctor. After the employers were provided the opportunity to review this material, they indicated that they did not object to the admission of this material which was marked as Exhibit 1. With the consent of the employers' representative, a history of the patient's medications was entered as Exhibit 2.

Exhibit 1 included a substantial discussion of the current diagnosis of bilateral anterior interosseous nerve impingement syndrome. It suggested that “all lab work up and examinations done on this patient pertinent to his complaints did not yield any significant findings.” Although the family doctor was asked by the worker's advocate at the time to identify any restrictions related to the worker's work related injury, he did not do so. He did suggest that the worker was not able to return to the employment of his first employer after September 30, 2005. However, this suggestion was not related to any work related compensable injury.

During the course of the hearing, the panel had the opportunity to discuss both the worker's labour force experience since September 2005 and the duration of the worker's shifts with his second employer.

The worker confirmed that he started to look for full time work in October 2005. He suggested he was looking for light work and that he could not return to his previous job with his first employer because “I don't think they will hire me though.”

After discussions with his second employer, the worker conceded that in November 2006 and early December 2006, he was working what amounted to a full time job. He acknowledged that the report of his treating physician dated January 11, 2007 did not place any restrictions upon him which would have precluded his return to work.

When asked whether any doctor had told him that he could not work full time, the worker indicated that “nobody said that.” The worker noted that his current treatment regime consisted of a nightly sleeping pill and a recommendation that he take Tylenol extra strength if he had pain.

In response to the worker's submissions, the first employer made reference to the 2007 report from the Department of Electro Neurology which stated:

No electro physiological abnormalities are found in the upper limbs.

The second employer raised concerns about the worker's credibility, suggesting his evidence was at odds with the objective medical evidence. In his view,

We have all the objective medical evidence that's in the file that indicates, as the other employer indicated that items are within normal limits. There’s no abnormality.

In particular, the second employer noted the finding from the family physician which he characterized as suggesting that the worker “had recovered by January 11 and he was able to work from then on.”

In the second employer's submission, “any aggravation that [the worker] suffered while working at [the second employer] had resolved in . . . January of 2007, and that he has recovered to that pre-injury level as of that date and time.”

Following the conclusion of the hearing, the panel received additional information including, among other materials, an additional report from a pain specialist dated March 24, 2009 as well as an April 30, 2009 report from the worker's family physician. The pain specialist noted that that the worker had a cubital tunnel release bilaterally which “has returned a lot of function to his hands.” He noted that the worker has normal motor skills in the hands with encouragement. A decreased range of motion in the worker's shoulders was identified.

Reasons

The July 2007 report of the medical consultant which did not identify a loss of dexterity in the worker's hands;

The January 29, 2008 examination by a neurologist which found no abnormalities in the worker’s upper limbs.

In the panel's view, based on a balance of probabilities, the worker's compensable injuries had resolved by January 11, 2007 to the point that they were no longer contributing to a material degree to a loss of earning capacity. In addition, the panel finds based on a balance of probabilities that the pre-existing condition was not enhanced as a result of the December 11, 2006 accident. As noted by this panel earlier in its decision, to the extent that any loss of earning capacity existed, it cannot be related to a compensable injury.

Conclusion

The claim for wage loss benefits after September 30, 2005 is denied. The claim for wage loss benefits after January 10, 2007 is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 31st day of July, 2009