Decision #75/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that her ongoing difficulties were unrelated to her compensable work-related accident that occurred on April 28, 2008. A hearing was held on September 13, 2011 to consider the matter.Issue
Whether or not the worker is entitled to benefits and services beyond May 21, 2008.Decision
That the worker is entitled to benefits and services beyond May 21, 2008.Decision: Unanimous
Background
On April 28, 2008, the worker suffered an electrical shock when she grabbed a wet cloth and touched two pieces of machinery to move them apart. The worker reported that the shock "went from my right hand/arm and through my chest and out of my left arm. It was 120V. I was not knocked out. I had mild discoloration but no severe burns on the skin."
The worker attended a hospital facility for treatment on April 28, 2008. The attending physician noted slight tenderness of the left volar wrist at watch strap, no burns, no erythema or discoloration to either palms, digits, wrists and no chest skin discoloration. The diagnosis outlined was a low voltage electrical shock.
The claim for compensation was accepted and benefits were paid to the worker from April 29, 2008 until her return to work on May 5, 2008.
On May 21, 2008, the worker advised the WCB that she was experiencing pains in her arms and hands which she related to the April 28 accident. The worker indicated that her doctor prescribed nerve conduction studies and wrist braces.
On June 16, 2008, the treating neurologist reported that the worker had ongoing pain in both arms, episodic numbness in both hands and prominent fatigue since the April 2008 electrical injury. Examination showed normal muscle bulk and strength in both arms and hands. There was a sensory disturbance in a median nerve distribution on the right side. Reflexes were symmetric. Nerve conduction studies revealed mild right carpal tunnel syndrome (CTS).
On August 1, 2008, a WCB medical advisor opined that the worker's right CTS could be related to the electrical shock injury if the worker had no prior diagnosis of CTS.
File records showed that the worker continued to complain of pain symptoms related to her hands, arms, shoulders and neck which she related to the effects of her April 2008 accident.
On September 9, 2008, the worker's medical condition was assessed by a WCB medical advisor at the request of primary adjudication. Following the assessment, the medical advisor outlined the opinion there were inconsistencies in the examination findings and the worker exhibited abnormal pain behaviors. The medical advisor was unable to relate the worker's current symptoms to the April 2008 accident.
Based on the medical advisor's assessment results, primary adjudication informed the worker on September 16, 2008 that no responsibility would be accepted for her time loss from work or medical treatment as it was felt that her pain complaints and symptoms to the upper body were not related to the April 28, 2008 workplace injury.
On December 12, 2008, the Worker Advisor Office submitted a report from the worker's family physician dated November 28, 2008 to support that the worker's pain and symptoms were related to her compensable accident. The family physician stated:
…She has recently been assessed by [a rheumatologist] and he has diagnosed the patient with mild, persistent carpal tunnel along with multiple regions of tendinitis. Specifically she has medial and lateral epicondylitis bilaterally along with bilateral FCR and de Quervain's tendinitis. The fact that the diagnosis involves both arms is related to the electrical current travelling from the right hand, across the chest and down the left arm and out the left hand.
To my knowledge the patient was not having any upper extremity symptoms prior to the injury of April 28/08 and was a productive employee. There is no other explanation for her upper extremity symptoms other than the electrical injury which we know can cause nerve and muscle injury. In spite of the normal findings in the ER my research indicates that although injury may be apparent immediately after the accident, it can also happen gradually and may not have been identified at the ER visit.
The electrical shock sustained by the patient caused injury to her arms and upper body. The bilateral nature of her diagnosis supports that the electrical current was the cause. The injury occurred at work and should be compensable.
In a memorandum to file dated February 4, 2009, a WCB medical advisor outlined the following opinion:
The constellation of symptoms and conditions reported by [the worker] and noted by [the family physician] cannot be accounted for on the basis of the brief low voltage exposure which occurred. [The family physician's] speculation regarding unrecognized effects of electrical injury would have more validity in the setting of more sustained and higher voltage exposure, but even then would not account for the reported prolonged and widespread nature of [the worker's] reported condition(s).
In summary the brief low voltage electrical exposure experienced by [the worker] would not be expected to cause any ongoing symptoms, and the widespread apparently disabling symptoms cannot be accounted for in any way in relation to the CI (compensable injury)."
On February 13, 2009, the worker was advised that no change would be made to the earlier decision as the WCB was of the opinion that her current difficulties were unrelated to the low voltage shock that occurred on April 28, 2008. On February 24, 2009, the Worker Advisor Office appealed the decision to Review Office.
A report was received from the treating rheumatologist dated November 4, 2008. In a memorandum to file dated March 26, 2009, the WCB medical advisor indicated that the November 4, 2008 report provided no new information to support the possible role of the electrical shock contributing to the development of the worker's current reported conditions.
On April 20, 2009, primary adjudication advised the worker that no change would be made to the decisions dated September 16, 2008 and February 13, 2009. The case manager stated: "Although [the rheumatologist] refers to multiple diagnoses (mild CTS, bilateral medial and lateral epicondylitis, bilateral FCR and deQuervain's tendonitis), none of these conditions are typically associated with electrical injuries."
On April 24, 2009, Review Office determined that the worker's current difficulties were not related to the April 28, 2008 workplace incident. In making its decision, Review Office placed weight on the March 26, 2009 WCB medical advisor's opinion and the hospital findings of April 28, 2008. It also placed weight on information provided by the accident employer that the worker had complaints of hand/wrist/arm problems prior to the incident of April 28, 2008.
On November 4, 2009, the Worker Advisor Office provided Review Office with a report from an occupational health physician dated October 14, 2009 to support that the worker's difficulties were related to the April 28 accident. As the report indicated that the worker was undergoing further medical investigations, Review Office held the appeal in abeyance until all the medical investigations were completed.
New medical information was received from the occupational health physician that consisted of NCS results dated April 28, 2008, a report by an internal medicine consultant dated March 8, 2010 and a report from vascular specialist dated March 23, 2010.
On March 25, 2010, the worker was advised by primary adjudication that the new information did not alter the WCB's previous decisions based on the following factors:
- the April 28, 2008 NCS results were normal;
- the internal medicine consultant had no clear explanation for the worker's symptoms; and
- the vascular specialist was unable to relate the worker's reported symptoms to the workplace event.
On August 25, 2010, the Worker Advisor Office submitted new evidence to primary adjudication in support of the worker's claim. On November 16, 2010, the WCB case manager advised the worker that the submitted reports were reviewed; however, a diagnosis to account for the worker's reported symptoms and associated functional limitations remained undetermined and that a probable relationship to the workplace incident of April 28, 2008 had not been demonstrated. On January 7, 2011, the Worker Advisor Office appealed the decision to Review Office.
In a decision dated February 1, 2011, Review Office determined that there was no entitlement to benefits and services beyond May 21, 2008. Review Office noted in its decision that on August 18, 2010, the occupational health consultant reported: "There is the support that she has significant impairments in her hands and upper extremities with features consistent with reflex sympathetic dystrophy, and with myofascial pain dysfunction."
Review Office stated that upon reviewing the specialist's reports, there was no specific diagnostic tests to verify these diagnoses or to conclude a causative relationship to the April 28, 2008 work incident. The opinions expressed by the treating physicians were not supported by medical facts or objective clinical evidence. Review Office indicated that there was insufficient evidence to conclude, on a balance or probabilities, that the worker's ongoing difficulties with her upper extremities were the result of the compensable incident. On February 22, 2011, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was held on September 13, 2011.
Following the hearing, the appeal panel requested information from the specialist who conducted a medical assessment of the worker on October 11, 2011. The report from the specialist was later received and forwarded to the interested parties for comment.
On January 30, 2012, the panel met further to discuss the case and a Medical Review Panel ("MRP") was requested under subsection 67(3) of The Workers Compensation Act (the "Act"). On April 27, 2012, the MRP was held and its report to the Appeal Commission dated May 10, 2012 was forwarded to the interested parties for comment. On June 13, 2012, the panel met again to discuss the case and a decision was reached.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The worker’s position:
The worker was assisted by a worker advisor at the hearing. It was submitted that there was a consensus of medical opinions from the family physician, an occupational health physician, a treating neurologist and the new treating physical medicine specialist that the worker's diagnosis was a form of reflex sympathetic dystrophy (complex regional pain syndrome) with its associated clinical findings of neuropathic pain indicators and that the diagnosis arose as a result of the workplace accident. Therefore, the requirements set out under the Act were met and benefits ought to be payable beyond May 21, 2008.
The employer’s position:
Representatives from the employer did not appear at the hearing but did provide written submissions to the panel. The employer questioned the accuracy of the information provided by the worker and noted that her reports of the accident were inconsistent. The employer indicated that she had started as a good worker, but then started complaining about her back, arm and hands even before the workplace accident, and this was thought to be due to work she was doing at a cottage. It was also noted that the reason why worker ended her employment was because she did not want to accept a scheduling change. The employer felt that they treated the worker fairly in their small business and had been a good employer.
Analysis:
The issue before the panel is whether the worker is entitled to benefits and services beyond May 21, 2008. The key question concerns whether the worker’s ongoing difficulties in her hands and upper extremities are related to the workplace accident of April 28, 2008. In order for the appeal to be successful, the panel must find that there is a causal relationship between the electrical shock experienced by the worker, and her current diagnosis of neuropathic pain.
The challenge the panel faced in considering this appeal was the unusual nature of the worker's accident and injuries. The electrical shock was described as "low voltage" and the hospital records from the date of the accident indicated that there were no burns, erythema, or discoloration to the hands, and her EKG was normal. All indications were that the effects of the shock were minor. The worker was able to return to work after four days off and she continued to work until June 23, 2008 when her employment ended. There is divergence as to why she stopped working: the worker claims that her employment ended because of the effects of her injuries; the employer alleges work scheduling and performance issues.
There are numerous medical opinions on the WCB file which both support and reject a causal relationship. The panel was provided with some medical literature on low-voltage electrocution. While the literature supported post-neurological conditions including neuropathy and complex regional pain syndrome, the literature was far from comprehensive and it was clear to the panel that this area of medicine is not well-understood.
Following the hearing and after considering new medical information from a physical medicine specialist who recently began treating the worker for neuropathic pain, the panel requested that a Medical Review Panel be convened to consider the etiology of the worker's ongoing difficulties. The Medical Review Panel, consisting of three neurologists, produced an 8 page report dated May 10, 2012 which included the following conclusions:
- The worker's initial diagnosis was low voltage electrical injury
- Although the literature does not give a full patho-physiological explanation of neuropathic symptoms that occur after low voltage electrical injury, there is enough documentation to indicate that it is indeed a legitimate condition with specific symptomatology … The expected progression from this type of injury is quite variable.
- The worker's current diagnosis is neuropathic pain, with some features of complex regional pain syndrome. This is supported by her symptoms and the clinical examination.
- The etiology relates to the initial electrical injury. Natural history is not fully known … It is quite variable.
- The panel is aware of the literature supplied and has conducted a literature review as well … What the worker describes is consistent with the description in the literature … There is no other known potential cause for the worker's current condition.
- In the panel's opinion, the worker's current diagnosis is a direct consequence of the workplace accident of April 28, 2008.
The panel is satisfied that the Medical Review Panel conducted a thorough analysis of the medical information and we see no reason to vary from its conclusions. The panel therefore accepts the opinion of the Medical Review Panel and we find that the worker's ongoing difficulties with her hands and upper extremities are related to the electrical shock the worker suffered in the workplace accident of April 28, 2008. As a result, the worker is entitled to benefits and services beyond May 21, 2008. The worker's appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 20th day of June, 2012