Decision #133/12 - Type: Workers Compensation

Preamble

The worker has a claim with the Workers Compensation Board ("WCB") for a right shoulder injury that occurred in the workplace on March 14, 1991. His claim for compensation was accepted and benefits were paid to February 21, 1992 when it was determined that he had recovered from the effects of his compensable injury. It was also determined by the WCB that the worker did not have a permanent partial disability award in relation to the workplace injury. These decisions were confirmed by the Appeal Commission under Decision Nos. 258/92 and 83/03. The worker has since requested reconsideration of the two decisions made by the Appeal Commission and on June 20, 2012, it was determined by the Chief Appeal Commissioner that a new hearing was warranted in accordance with Section 60.10 of The Workers Compensation Act (the "Act"). A new hearing to reconsider the two decisions was held on October 18, 2012.

Issue

Whether or not the worker is entitled to temporary total disability benefits beyond February 21, 1992; and

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker is not entitled to temporary total disability benefits beyond February 21, 1992; and

That the worker is not entitled to a permanent partial disability award.

Decision: Unanimous

Background

On March 14, 1991, the worker filed a claim with the WCB for a pulled muscle in his right shoulder that occurred while moving a bin at work. The diagnosis rendered by the treating physician was an acute strain of the right shoulder and tendonitis of the right biceps. The worker's claim for compensation was accepted and the worker received temporary total disability ("TTD") benefits to February 21, 1992 when it was determined by the WCB that he had recovered from the effects of his compensable injury. Given the decision that the worker had recovered from his compensable injury, it was determined by the WCB that the worker was not eligible for a permanent partial disability ("PPD") award in relation to his right shoulder or wrist.

On August 18, 1992, the worker's claim was the subject of an Appeal Commission hearing as the worker disagreed with the decision made by primary adjudication and Review Office that he was not entitled to TTD benefits beyond February 21, 1992. For a complete background of the case, please refer to Appeal Commission Decision No. 258/92. In brief, the appeal panel confirmed that the worker was not entitled to TTD benefits as "the vast weight of evidence supports the conclusion that the claimant is not disabled as a result of his accident injuries." The panel placed weight on the following evidence in support of its decision:

  • WCB call-in examination on May 23, 1991 where it was determined that there was no cause in the worker's right shoulder, back and wrist to prevent a return to work.

  • an orthopaedic specialist in June 1991 reported that neurological assessment of upper and lower limbs were within normal limits. A wrist splint the worker was wearing was removed and there was no swelling and movements were within normal limits.

  • a neurologist in August 1991 found no evidence of ongoing neurological disease.

  • September 30, 1991 CT scan of the right shoulder - no labral or capsular abnormalities or loose bodies were seen - a normal shoulder.

  • September 30, 1991 arthrogram indicated no abnormality of the right glenohumeral joint.

  • October 10, 1991 orthopaedic specialist opinion that movements of the right shoulder were within normal limits.

  • November 14, 1991 orthopaedic specialist's findings that he was not certain if there was any organic basis for the worker's symptomatology (pain in the right shoulder and upper limb and numbness in the hand) and even if there was some organic basis like bursitis, there was a lot of conscious or unconscious exaggeration of the shoulder joint.

  • December 2, 1991orthopaedic specialist's findings that there was no obvious wasting of the shoulder and circumference of upper and forearms were the same.

  • December 12, 1991 rehabilitation medicine specialist's opinion that the worker's problem was post-traumatic regional myofascial pain syndrome of the right shoulder girdle and upper back and the distribution of muscles involved could explain the referral of symptoms into the right hand.

  • January 8, 1992 opinion by an orthopaedic specialist that the worker may have symptoms in his neck and shoulder but he was vastly overplaying them.

  • January 16, 1992 orthopaedic opinion that the right shoulder movements were within normal limits and pain free.

  • February 6, 1992 findings by a rehabilitation medicine specialist that the worker appeared to have markedly restricted active range of motion in all directions; however, there was passive mobility in the right shoulder in all directions.

  • April 10, 1992 opinion by an orthopaedic specialist that there was no specific pathology in the shoulder that would render the worker disabled.

  • July 25, 1992 report from a physical medicine and rehabilitation specialist wherein he indicated that the worker suffered right deltoid, latissimus dorsi and biceps muscle contusion complicated by persistent pain syndrome dysfunction and myofascial pain syndrome. He thought the worker had suffered hyperextension injury to his lumbosacral spine.

  • a pediatric specialist who saw the worker on June 1, 1992 reported that a neurologist who saw the worker felt the worker's pain was mainly mechanical and he could find no neurological problem.

  • July 17, 1992 examination by an orthopaedic specialist who thought there was no mechanical injury but a huge psychological overlay.

On January 23, 2003, a hearing was held at the Appeal Commission, as the worker disagreed with the decision made by primary adjudication and Review Office that he was not entitled to a PPD award with respect to his right shoulder. Under Appeal Panel Decision No. 83/03 dated July 23, 2003, it was confirmed by the appeal panel that the worker was not entitled to a PPD award as the panel concluded that the overwhelming evidence "does not support the claimant's contention of his having sustained a permanent partial disability/impairment of the right shoulder." In reaching its decision, the appeal panel referred to the following file evidence, which was also considered by the previous panel in Appeal Commission Decision No. 258/92:

  • the WCB medical advisor's examination findings on May 23, 1991;
  • the orthopaedic specialist's report of June 19, 1991;
  • the neurologist's examination in August 1991;
  • a CT arthrogram dated September 30, 1991;
  • the treating orthopaedic specialist's examination of October 10, 1991;
  • the treating orthopaedic specialist's report of November 14, 1991;
  • February 6, 1992 report of the rehabilitation medicine specialist.

In addition, the appeal panel noted the following medical evidence which arose subsequent to the 1992 Appeal Commission decision:

· January 11, 2001 MRI of the right shoulder which revealed no evidence of a rotator cuff tendon tear and no focal atrophy of the rotator cuff musculature.

· a WCB medical advisor's conclusion on September 18, 2002 that the claimant did not have a rateable permanent partial disability/impairment as a consequence of the compensable accident.

Subsequent to Appeal Commission Decision No. 83/03, the worker made numerous requests to the Chief Appeal Commissioner for reconsideration of Appeal Commission Decision Nos. 258/92 and 83/03. From 2004 to 2010, multiple submissions were made by the worker but each was denied on the grounds that there was no new evidence that would warrant the making of an order for reconsideration under the provisions of the Act.

Between 2010 and February 2012, the worker submitted further medical evidence to the Appeal Commission and requested reconsideration based on this new information. The following is a list of reports that were submitted by the worker between 2010 and 2012:

November 5, 2008 report by a dermatologist:

"Onychodystrophic changes of the fingernails noted, especially of the middle finger, with associated swelling and erythema of the proximal nail fold. The clinical impression is that of paronychia."

April 14, 2009 report by physician:

"He has poor movement of his right shoulder, loss of movement and sensation in his right hand. He suffers from chronic pain syndrome and shoulder hand syndrome since his work related accident in 1991."

March 5, 2010 right hand x-ray report:

"There is deformity of the midshaft of the fifth metacarpal relating to a healed fracture in this region. No acute bone or joint abnormalities are identified."

May 5, 2010 right hand x-ray report:

"There is an old healed fracture of the mid shift of the fifth metacarpal. No other bone or joint abnormality is seen."

June 16, 2010 report by a physician:

"…he suffered a work-related accident in 1991 and has been left with severe pain in the right shoulder and arm, poor movement of the right shoulder, loss of movement and sensation in his right hand. This has been diagnosed from a number of different physicians as chronic pain syndrome and shoulder-hand syndrome. I believe myself that it is a psychogenic pain syndrome which has been worsened by limited use of his right arm. As he has been suffering from this since 1991 it must have been caused by his accident."

July 23, 2010 report by an orthopaedic specialist:

"In my opinion on the balance of probabilities he suffered fracture of his right 5th metacarpal related to his critical work related injury…to development of complex regional pain syndrome."

August 25, 2010 right hand x-ray report:

"There is an old fracture of the shaft of the 5th metacarpal. There is slight irregularity of the base of the distal phalanx of the thumb likely due to an old injury. Minor degenerative changes are present in the PIP joint of the thumb. No further abnormality is demonstrated."

September 27, 2010 Nerve Conduction Studies:

"There is no evidence on this test of right median, ulnar or radial neuropathy on this test. There is questionable minor chronic denervation in right infraspinatus of uncertain significance. There is no additional evidence for a plexus or radicular lesion but this test alone does not exclude those possibilities."

September 21, 2010 a physical medicine and rehabilitation specialist stated:

"[The worker] does not have any evidence of structural damage to his right shoulder and in particular he does not have any frozen shoulder. He was advised of the same. I also advised him that his pain is muscular in nature and I did not really find any positive clinical findings to treat him. I did not advise him of any specific treatment for his right shoulder. As for the right hand, the fracture had very well healed and I do not know why he is symptomatic with his right hand. I am not certain however if he has any carpal tunnel syndrome because he complains of some numbness of the fingers. I am quite certain that he was investigated for this condition before…"

Undated report by a neurologist:

"I saw [the worker] on October 14, 2010. He was advised that the EMG and nerve conduction study showed no detectable abnormality which would explain the symptoms in his right hand. There was some equivocal evidence of chronic denervation in the right infraspinatus muscle. I have requested an MRI scan of the cervical spine for exclusion in this context."

November 25, 2010 MRI cervical spine:

"Multi-level cervical spine degenerative changes are present, as outlined above."

December 6, 2010 an orthopaedic surgeon stated:

"…I am afraid I am at a loss, trying to explain the basic neuromuscular pathology of [the worker's] right upper limb. As such, I feel that continuing with good course of physical therapy may be beneficial in this case."

Undated report by a neurologist:

"I saw [the worker] on December 17, 2010.

He was advised of findings on the MRI scan of the cervical spine. He had multilevel degenerative spinal arthropathy, there was no evidence of either spinal cord or nerve root involvement. He continues to complain of pain in the dorsal aspect, deep within the affected hand. I have requested an MRI scan of the hand for exclusion."

February 16, 2011 report from a physician:

"After reviewing his old medical info and recent MRI. He is still experiencing severe burning and pain right hand. Most likely "Complex Regional Pain Syndrome."

January 13, 2011 MRI right wrist:

"No previous examination is available for comparison. No joint, bony or soft tissue abnormality is noted. A cause for the patient's symptoms is not seen."

April 6, 2011 doctor's progress report:

"New diagnosis: chronic pain syndrome and shoulder hand syndrome."

April 14, 2011 doctor's progress report:

"Initial injury March 14, 1991. Ongoing chronic decreased range of motion of right shoulder."

May 10, 2011 report by an orthopaedic surgeon:

"His recent MRI failed to demonstrate any anatomic findings that may explain the source of his pain. At this point, there is no surgical indications. Apart from trying to manage his pain medically, I see no other solution for this gentleman's pain. He has been off work for the last ten years or so. I see it being quite difficult for him to return to work if the work requires any physical demands. Certainly he should be able to work at sedentary type of work. He will have difficulties lifting or elevating the arm above shoulder level. This gentleman has chronic pain syndrome that started after a work-related injury in 1991."

September 30, 2011 report by an orthopaedic surgeon:

"…he has also been seen by [name], an orthopaedic surgeon who told him there is no surgical solution for this problem. I am in agreement with this. I do not think the finding on the most recent MRI can explain why he has had a normal MRI a year ago and 20 years of pain. I do not think there is any surgery that would help him at this time."

September 22, 2011 MRI of right hand.

"Minor changes about the first interphalangeal joint are identified but these may simply be degenerative. No other finding is noted."

October 9, 2011 report by a neurologist:

"The MRI of the hand showed a small cyst but otherwise was unremarkable.

I would recommend that you refer him to an orthopaedic shoulder specialist to look specifically at the shoulder to determine if some type of therapy or surgery would be indicated. He has had consistent shoulder pain since the original injury and the findings on the shoulder MRI may well explain this pain."

September 27, 2011 report by an orthopaedic surgeon:

"Clinically, he seems to be well-muscled…I see no wasting on the shoulder girdle."

"The MRI of the right shoulder suggests the possibility of an intratendinous insertional tear of the supraspinatus with possible extension to the articular surface.

Given the chronicity of this gentleman's pain, I am assured that surgery with this insertional tear will be of benefit. At this point, I would suggest to Worker's Compensation that this gentleman be assessed on Worker's Compensation Review Panel to establish once and for all if injury is related to his trauma of 1991 and also if surgery would be appropriate."

August 29, 2011 report from neurologist:

"..All his neurological tests were normal. However, as you know his recent MRI of the right shoulder showed a small insertional intratendinous tear of the supraspinatus with possible extension to the articular surface. This likely is the cause of his pain which has been ever since the accident of March 14, 1991."

July 29, 2011 note from physical medicine and rehabilitation specialist:

"…MRI of right shoulder…shows intratendinous tear of supraspinatus with possible extension to the articular surface. In my opinion on the balance of probability this tear could be related to the work place injury."

July 14, 2011 MRI right shoulder:

"There is at most mild acromioclavicular osteoarthropathy.

A small insertional intratendinous tear of supraspinatus is demonstrated with possible extension to the articular surface."

On June 20, 2012, the Chief Appeal Commissioner directed that the Appeal Commission reconsider Appeal Commission Decisions Nos. 258/92 and 83/03. The Chief Appeal Commissioner stated:

The MRI identifies a tear in the worker's shoulder area which was not previously identified. In my opinion, the MRI is new evidence, in that it is different in substance from the information available at the hearing and was not available at the time of the hearing. In conjunction with the physicians' report which link the MRI findings to the workplace injury, I conclude that the legal test has been met…It should be noted that numerous other physician reports and diagnostic tests results have been received since the last reconsideration; but, given my opinion on the above materials I have not considered whether the other reports meet the legal test.

The Chief Appeal Commissioner further stated:

This decision does not mean that the existing decisions have been reversed or were incorrect. The Appeal Commission will conduct a new hearing, consider all the evidence on your file, and may arrive at the same or different decisions. The existing decisions will continue to apply until new decisions are made by the Appeal Commission.

On October 18, 2012 a hearing was held at the Appeal Commission.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. As the worker’s claim was made in 1991, his benefits are assessed under the Act as it existed at that time (the “1991 Act”).

Under subsection 4(1) of the 1991 Act, where personal injury by accident arising out of and in the course of employment is caused to a worker, compensation as provided by the Act shall be paid by the board out of the accident fund.

Compensation in the form of a PPD award was provided under subsection 40(1) of the 1991 Act as follows:

Permanent partial disability

40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.

Compensation in the form of TTD benefits was provided under subsection 43(1) of the 1991 Act as follows:

Temporary total disability compensation

43(1) Where a temporary total disability results from the injury, the compensation shall be a periodic payment during the continuance of the temporary total disability equal to 75% of the worker's average earnings; but the compensation shall not be less than $751. per month, except where the average earnings of the worker are less than $751. per month, in which case he shall receive, as monthly compensation, the total amount of his average monthly earnings.

Worker’s position

The worker was accompanied by legal counsel at the hearing. The position advanced on behalf of the worker was that the MRI report of July 14, 2011 which the Chief Appeal Commissioner considered to be substantial and new evidence was crucial to the case. Back in the nineties, when the decision to terminate benefits was made, there was no MRI. At the present time, there was now a MRI report which points out something which was not available to any decision-maker back then. Prior to the workplace accident, the worker had been a very hard working individual. Since the unfortunate event of March 14, 1991, everything had changed. The worker was in constant pain. He had hypersensitivity in his right hand and wrist which required him to wear a glove. His shoulder had difficulty with movement. Despite many attempts by the worker over the years to convince the system that something was not right with his shoulder, his pain had not been acknowledged. By a stroke of good fortune, the MRI had surfaced. It was submitted that this piece of new information should persuade the panel to re-think substantially any previous disposition. The worker was a man who had aspirations and was not pretending to be hurt. He did not want to put forward any fraudulent claim. He was just coming to the panel in good faith with a view to persuade the panel that he was entitled to some form of compensation. The new MRI pinpointed something that was missed in previous decisions. It explained the worker's constant pain and why he could not perform his previous work tasks. At the end of the day, it showed that the worker had a disability and that it was not going to go away.

Analysis

This is a reconsideration of two previous Appeal Commission decisions which were decided as follows:

  1. Appeal Commission Decision No.258/92 - As the vast weight of evidence supported the conclusion that the worker was not disabled as a result of his accident injuries, there was no entitlement to the payment of TTD benefits beyond February 21, 1992; and
  2. Appeal Commission Decision No. 83/03 - The overwhelming evidence did not support the worker's contention of his having sustained a permanent partial disability/impairment of the right shoulder. There was no apparent diagnosis in play which was causally related to the worker's compensable injury or to his current right shoulder difficulties. There was therefore no basis to designate a PPI award to the worker.

When an appeal is reconsidered by the Appeal Commission, the second panel is charged with the jurisdiction to review the matter in its entirety and make its own decision independent of the previous adjudication. The panel has therefore included all of the material on the worker's voluminous WCB file in its considerations on this appeal.

In order for the worker’s appeal to succeed, we must find on a balance of probabilities that the worker continued to suffer from the effects of his compensable injuries beyond February 21, 1992. We are not able to make that finding.

As noted earlier, on reconsideration, the new panel has the jurisdiction to examine all of the evidence relevant to the issue and to substitute its own decision. We have reviewed the medical evidence which was before the previous panels and we agree with their earlier assessments that the previously existing evidence did not support the finding that the worker had a continuing diagnosis which was causally related to his compensable injury. Specifically, we gave significant weight to the following evidence:

  • May 23, 1991call-in examination findings of the WCB medical advisor;
  • June 19, 1991, October 10, 1991 and November 14, 1991 reports of the treating orthopaedic specialist;
  • August 10, 1991 neurologist's report;
  • CT scan of September 30, 1991;
  • December 2, 1991, January 8, 1992, April 10, 1992 and June 5, 1992 reports from another orthopaedic specialist;
  • December 12, 1991, February 6, 1992 and February 20, 1992 reports from a rehabilitation medicine specialist;
  • MRI of January 11, 2001;
  • September 18, 2002 opinion of the WCB medical advisor.

At the reconsideration hearing, the submissions primarily addressed the new MRI evidence of an intratendinous tear of the supraspinatus. Both the worker and his legal counsel confirmed that the focus at the reconsideration hearing was on the evidence of a tear. The worker stated that everyone was saying that he had recovered but the truth was that the July 14, 2011 MRI exonerated him and confirmed what he had been saying for a very long time, that is, that he remained injured from the worker place accident of March 14, 1991.

The panel has given careful consideration to the new MRI findings. Unfortunately, on a balance of probabilities, we are unable to conclude that the tear identified in July 2011 is causally related to the workplace accident of March 14, 1991. Our decision is based on the following:

  • Although a small intratendinous tear of the supraspinatus was identified in the July 14, 2011 MRI, previous imaging from September 30, 1991 (CT/Arthrogram), January 11, 2001 (MRI) and March 16, 2011 (MRI) did not identify the tear. Notably, the radiologist's report from the July 14, 2011 MRI specifically states that correlation was made to the previous MRI of March 16, 2011. If the tear was actually sustained in March 1991, it is unlikely that all three previous scans would have failed to identify the tear at an earlier date.
  • It was submitted that the imaging technology has improved significantly since 1991. While the panel agrees with this statement, it does not explain why the March 16, 2011 MRI failed to identify the tear. This imaging was taken just four months earlier.
  • Although the treating neurologist suggested a possible causal connection ("He has had consistent shoulder pain since the original injury and the findings on the shoulder MRI may well explain this pain") the panel is of the view that the neurologist is not definitive in creating a causal link between the original workplace accident and the supraspinatus tear. Further, it is not evident as to whether or not the neurologist was aware of the previous negative scans.
  • The panel chooses to rely on the September 30, 2011 opinion of the treating orthopaedic surgeon who states: "I do not think the finding on the most recent MRI can explain why he has had a normal MRI a year ago and 20 years of pain." The orthopaedic surgeon was clearly aware of and referenced the prior MRI findings.

In view of the foregoing, the panel finds that the small intratendinous tear of the supraspinatus identified in the July 14, 2011 MRI is not related to the original compensable injury.

At the hearing, the worker also submitted that recent imaging of his hand identified a previously healed fracture and that he was convinced that he had suffered a fracture of his hand in the workplace accident of March 1991. The worker felt that this was the cause of the ongoing pain in his right hand, which was located at the base of his thumb, index and middle fingers. We are unable to accept this submission based on the following:

  • At the hearing, the worker identified the current pain as being located at the base of his thumb, index and middle fingers. The x-ray of August 25, 2010 identified an old fracture of the shaft of the 5th metacarpal. The 5th metacarpal is the "pinkie" finger and is not the identified location of the worker's pain.
  • In any event, the medical findings documented in the days and weeks following the accident do not document any significant problems or complaints regarding the right hand. On May 23, 1991 the worker was examined by a WCB medical advisor. The wrist was found to have full range of movement in flexion, extension, abduction and adduction. Pronation and supination were also full and painless.
  • Similarly, on June 19, 1991, the worker was examined by a treating orthopedic surgeon. Notes from that examination indicate that there was no swelling of the wrist and that movements were within normal limits. These findings are simply not consistent with having suffered a fracture of the right hand, which the panel expects would have caused significant pain and swelling in the time period immediately following the trauma.

Overall, the panel finds that the evidence as a whole does not support that the worker experienced any ongoing symptomatology related to his original workplace injury beyond February 21, 1992. We find that the more recently identified supraspinatus tear and a new proposed diagnosis of frozen shoulder (which the worker raised at the hearing) are not related to the workplace accident and are not compensable. It therefore follows that the worker is not entitled to TTD benefits beyond February 21, 1992.

With respect to the claim for a PPD award, the evidence does not support that the worker suffered any permanent disability as a result of the workplace injury. The evidence does not support that the worker suffers from any limitation of range of movement which would entitle him to a PPD award. Examination by a treating rehabilitation medicine specialist on December 12, 1991 indicated that the wrist joint had full range of motion and that the right hand was unremarkable. A further examination on February 20, 1992 reported that the worker had full motion in the right shoulder with good strength. In the absence of any measured limitation in range of movement and given the finding that the worker had recovered from his compensable injury, the panel finds that the worker is not entitled to a PPD award.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of December, 2012

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