The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

Legal counsel, representing the worker, is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s claim for compensation was not acceptable. An appeal panel hearing was held on June 16, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 21, 1998, the worker filed a claim with the WCB for pain and swelling she experienced in her right hand, arm and shoulder which she related to her work duties as a cashier. The worker reported that she had a previous 1995 WCB claim for a repetitive strain injury (while working with the same employer, performing the same type of work duties and experiencing the same type of symptoms.) A review of the worker’s 1995 claim discloses a note in which her physician diagnoses a repetitive strain injury and states “? CTS”. The claim was accepted on the basis of a muscle strain and medial epicondylitis. The worker missed 77 days of time loss as a result of these conditions.

On August 31, 1998, the worker sought medical attention and reported a long history of episodic paraesthesia in the right hand and shoulder. The subjective complaints were numbness and tingling of the little and middle finger of the right hand. The worker’s physician diagnosed a repetitive strain injury and referred her for an x-ray of the cervical spine and to a rheumatologist

to “…exclude nerve root pressure, cervical nerve root pressure, and pressure over the first rib or Salinas syndrome.” The x-ray dated August 31, 1998 showed “…little narrowing at the C5-6 disc. The intervertebral foramina are well shown and are normal bilateral.” A medical certificate dated August 31, 1998 indicated that the worker was unfit for work for seven days.

On November 19, 1998, the worker was assessed by a WCB medical advisor who noted the worker’s complaints of pain in the upper border of the right shoulder, numbness of all fingers including the thumb, and swelling on the dorsoradial aspect of her right hand. He concluded that:

“…there is no suggestion of any cervical radiculopathy. Although the claimant complained of worst pain located in the right hand, examination of the right hand was entirely normal. The findings of the present examination would suggest muscular irritation in the right shoulder girdle which is quite common in the normal population. Since the claimant’s activities at work do not involve any repetitive shoulder movement (in particular, overhead movement of the right shoulder), therefore I believe there is no cause-and-effect relationship between her current symptomatology and her work activities.”

On December 7, 1998, the worker was advised that her claim for compensation was not acceptable as the WCB was unable to establish a relationship between the development of her right hand and arm difficulties and an accident arising out of and in the course of her employment.

The worker was later assessed by a rheumatologist on December 18, 1998 who noted the worker was complaining of pain and discomfort in the thumb and first three fingers of her right hand. He found no evidence of an underlying arthritis or connective tissue disease and diagnosed the worker’s condition as right carpal tunnel syndrome (“CTS”). He indicated that the worker’s right hand difficulties may have lead to a secondary right lateral epicondylitis and right rotator cuff tendinitis which was considered mild in severity. He referred her to a neurologist for an opinion regarding neurologic involvement.

In a report dated March 8, 1999, the neurologist reported that the worker was experiencing pain in the dorsum of her hand, localized swelling and numbness in “at least digits 4 and 5 and probably other digits in the hand as well”. She also complained of sharp pain on the left and right involving thenar eminence, and soreness in the left arm and shoulder. He reported that nerve conduction studies showed mild but definite evidence of median nerve dysfunction in the right carpal tunnel affecting only sensory fibres. The neurologist was not confident from the worker’s history and electrophysiological findings that CTS was solely responsible for her symptoms.

The worker was seen by another physician on March 19, 1999, who reported that the worker had a swollen right hand, especially the thenar side.

On May 4, 1999, a WCB medical advisor provided a medical summary of the file and stated, in part, “As we do not have a clear-cut diagnosis of her ongoing problems other than the possibility of carpal tunnel, I discussed the case with [the March 19, 1999 physician] who noted that he was uncertain that he had an explanation for the neurological basis of her ongoing problems, particularly with arm and shoulder”. Given the uncertainties regarding the pain and ongoing diagnosis, the worker was brought in for an assessment.

The worker was examined on May 4, 1999, and reported ongoing swelling across the dorsum of the hand, and a tightness and heaviness involving the forearm and upper arm, present at all times. The medical advisor indicated that the worker had mild CTS on the right hand side; however, he noted that electrophysiological studies showed only sensory changes. There was no loss of thenar eminence bulk and no consistent loss to pin prick testing over the area of the median nerve. He noted there had been no evidence of CTS when the worker was examined at the WCB in November 1998.

The medical advisor reported that the worker appeared to be suffering from diffuse musculoskeletal problems of the upper limb. There were some elements of myofascial pain with the pain radiation from her trapezius muscle in her upper arm, but he could demonstrate no taut bands or trigger points which would help in making a diagnosis. There was no clear cut evidence of lateral or medial epicondylitis and no signs of impingement at the shoulder, although there was slight tenderness over the long head of the biceps on the right side. The medical advisor concluded that:

“I do not believe [her] ongoing shoulder and upper arm pain can be related in a cause and effect manner to her compensable injury . . . I do believe [she] has carpal tunnel on the right side which is mild. I’m not sure there is a cause and effect relationship to her work as there was a normal examination done here in November 1998 and diagnosis of carpal tunnel was made after she was off work.”

On May 20, 1999, the worker was advised by primary adjudication that there was insufficient evidence to establish a relationship between her right hand, arm and shoulder difficulties to an accident arising out of and in the course of her employment. As such, no change was made to the previous decision dated December 7, 1998.

On July 12, 1999, a plastic surgeon reported that the worker had presented with complaints of right greater than left carpal tunnel syndrome. The right hand problems had been present since 1998 and the left hand “has begun to bother her more recently”. He noted numbness in all of the fingers. He concluded that her primary problem was regional myofascial pain and referred her to a physical medicine specialist.

In a December 13, 1999 report to the plastic surgeon, the physical medicine and rehabilitation specialist reported that the worker was experiencing pain in her right shoulder from the hand, with numbness mainly in the right 5^th finger and medial forearm. He diagnosed the worker as having regional myofascial pain syndrome affecting her neck, shoulder girdle, forearm and thenar muscles, and also mild CTS.

In a follow up report dated April 3, 2000, the physical medicine and rehabilitation specialist indicated that when he assessed the worker on November 18, 1999, the worker had active trigger points of several muscles including the trapezius, infraspinatus, deltoid, extensor carpi radialis longus and brevis muscles. He noted this was a common occurrence in people who do repetitive activities, acute overloading, over-work, fatigue and [sustain] direct trauma. He expressed the opinion that the worker’s trigger points were related to her repetitive strain and overloading of muscles at work, and that the trigger points had resolved.

On August 1, 2000, the worker was advised that the recent medical information was reviewed by the WCB’s healthcare department and there would be no change to the previous decision of May 20, 1999.

On September 7, 2000, a worker advisor appealed the decisions made by the WCB on December 7, 1998, May 20, 1999 and August 1, 2000. The worker advisor contended that the worker’s claim should be accepted for benefits based on the opinion made by the treating physical medicine and rehabilitation specialist that the worker’s condition of myofascial pain syndrome was related to a repetitive strain and overloading of muscles at work. In the event that the decision was negative, a Medical Review Panel (“MRP”) was requested in accordance with subsection 67(4) of the Act.

On October 4, 2000, an occupational health physician commented as follows:

“[The worker] has marked findings of myofascial pain syndrome throughout the upper right limb that explains much of her symptomatology of pain, limb numbness and burning. . . . By my assessment her current problems are related to progressive development of myofascial pain syndrome that was originally related to her repetitive work duties as a cashier. There is reasonable agreement among her physicians that her main problem is of myofascial origin…There have been attempts at myofascial trigger point injections, but there was not much clinical response.”

In a March 30, 2001 decision, Review Office confirmed that the claim for compensation was not accepted. In doing so, Review Office noted that:

· There were multiple diagnoses involving multiple areas of the worker’s right limb and neck, including the hands, the right wrist, forearm, elbow and shoulder;

· There was early file evidence to suggest that the worker had multiple physical ailments with her right limb for years;

· There were underlying factors such as smoking, caffeine consumption and weight issues that might predispose the worker to problems with her hands.

· There was no mention of myofascial pain syndrome in early medical examinations, and it was not until one year later that it was first identified;

· More recently the worker was complaining with respect to the left hand.

Review Office concluded that it was difficult to identify a definite diagnosis in the claim given the multitude of different diagnoses involving so many different areas of the anatomy. It did not accept that all of these problems were related to work performed in 1998.

On May 31, 2001, a new physician reported to the WCB that:

“Upon review of this case it appears evident that [the worker] has sustained an injury in the work place. She appears to have sustained a right upper extremity injury, which has occurred in direct consequence of her work as a cashier. I note that this opinion is shared by the physicians who have cared for [the worker] over the past couple of years.”

On June 4, 2001, the physical medicine and rehabilitation specialist responded to questions posed by Review Office, and noted that on his clinical examination of November 18, 1999 the worker had specific trigger points of the right extensor carpi radialis longus, extensor carpi radialis brevis, right trapezius, right infraspinatus and thenar muscles. He commented that where trigger points are not treated appropriately, they can last for long periods, and suggested that the trigger points had not been identified by the WCB’s physicians in November 1998 and May 1999 as “it is not unusual for a physician who is not trained in diagnosing the myofascial pain syndrome to miss the trigger points.”

At the request of Review Office, a Medical Review Panel (“MRP”) was convened on December 21, 2001 to address whether a relationship existed between the worker’s work duties and her long standing upper torso physical ailments. The worker told the MRP that her present problem involved her right arm, shoulder, elbow and fingers, and that her symptoms were similar to those she had experienced in 1995. She reported that since leaving work, the pain in her hand has continued to increase “due to daily living”. Her hand has remained swollen, although the color which she indicated was purple in 1998 had returned to normal. She also confirmed that her left hand has been giving her problems since 1998 including numbness, sharp pains and weakness. Her left sided symptoms have not involved the shoulder “yet”.

The MRP was unanimous in its opinion that it was unable to provide a diagnosis for the worker’s subjective complaints of pain:

In summary, the physical examination revealed no definitive medical findings. There were subjective discomforts with a variety of physical movements of the upper extremities. There was diffuse soft tissue tenderness in the entire upper extremity from the neck down to the hands. The area of reported “swelling” that had occurred in 1998, was examined. There was a slight prominence of the right MCP joint of the middle finger. This was noted bilaterally, although it would appear to be slightly more prominent on the right side. There was no evidence of a “synovitis” or an inflammatory arthropathy to explain that appearance.

The MRP concluded that it was unable to draw a correlation between the subjective complaints and the worker’s duties.

On January 25, 2002, Review Office confirmed its previous decision that the claim for compensation was not acceptable. Review Office relied upon the findings of the MRP and also the rationale set forth in its April 3, 2001 decision denying the claim.

On October 6, 2008, a lawyer, acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

In all of the circumstances, we cannot find on a balance of probabilities that the worker’s ongoing symptoms are causally related to her work duties. The appeal is therefore denied.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 12th day of August, 2009