The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing difficulties were not related to his compensable accident and therefore he was no longer entitled to benefits. A hearing was held on December 17, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after January 28, 2013.

Decision

That the worker is not entitled to wage loss benefits after January 28, 2013.

Decision: Unanimous

Background

In May 2010, the worker filed a claim with the WCB for tingling and numbness in both arms that he related to wearing a full body harness at work to carry tools, etc. during the course of his employment as a carpenter. The claim for compensation was accepted based on the diagnosis of thoracic outlet syndrome.

In July 2010, the worker underwent Nerve Conduction Studies ("NCS") which revealed severe carpal tunnel syndrome ("CTS") on his left hand and moderate CTS on the right. The worker also underwent additional testing to determine the possibility of a condition other than bilateral CTS, however, no diagnosis was determined. On July 15, 2011, the worker underwent left carpal tunnel release which was accepted as a WCB responsibility.

In September 2011, the worker advised the WCB that he felt no improvement in his left hand following CTS release and therefore he did not want to proceed with right CTS release.

On January 24, 2013, a WCB case manager wrote the worker to advise that in the opinion of the WCB, his ongoing difficulties were not related to the April 20, 2010 workplace injury and he was not entitled to further compensation benefits. The case manager also stated:

In addition, in a recent medical report from your attending physician dated January 19, 2013, she noted you were experiencing back difficulties which you are attributing to your duties at work. On review of the file, I was not able to discern a particular mechanism of injury in relation to the described increase in pain which you reported to your physician. As such responsibility for your back difficulties and request for physiotherapy treatment is denied.

On June 7, 2013, the worker was advised that no change would be made to the January 24, 2013 decision as the case manager determined that his current difficulties were not related to the original workplace injury. The case manager's decision was based on medical reports from a neurologist dated February 28, 2013, NCS report of April 10, 2013 and the WCB medical opinion of May 25, 2013 which stated:

The presentation to the neurologist was not consistent with CTS. When the symptoms, clinical findings, and NCS are all consistent with CTS, it is fairly easy to make the diagnosis with a certain degree of accuracy. In this case, an experienced neurologist indicates that the diagnosis is unclear and he would certainly be able to confirm a diagnosis of CTS is present. The neurologist indicates that he is looking for an inflammatory neuropathy with further NCS and that would not be a diagnosis related to CTS or the claim otherwise.

It is noted that the worker's NCS has continued to show evidence of CTS. This is a neurophysiological finding alone. It must be reviewed in context of the clinical picture. If there is a positive NCS with evidence of median nerve symptoms and findings on exam, then the diagnosis of CTS can be confirmed. If the symptoms or findings are not consistent with median nerve dysfunction, the NCS findings would not be clinically significant. Furthermore, it is not unusual to have ongoing findings on NCS even after successful surgical release of the carpal tunnel.

In a submission to the case manager dated July 24, 2013, the Worker Advisor Office requested that the WCB reconsider its decision based on additional medical evidence which supported that the worker still suffered from bilateral CTS. The new reports were dated July 11, 2013 by the treating physician and NCS dated June 5, 2013. The worker advisor stated:

In summary, the new enclosed medical reports provide symptomatic, clinical, and diagnostic evidence of bilateral CTS. The NCS results following the WCB's decision to cease benefits are essentially unchanged compared to previous studies completed while [the worker] was in receipt of benefits...many of the non-compensable, upper extremity symptoms referenced by [WCB medical advisor] were present long before [the worker] was examined by [treating neurologist], and while [the worker] was still in receipt of benefits from the WCB. We submit this is likely because [the WCB orthopedic consultant] stated whatever the cause for these symptoms, it was not affecting [the worker's] bilateral CTS.

Following review of the new evidence, the WCB reinstated the worker's benefits effective January 28, 2013 as it was determined that the worker continued to feel the effects of the April 20, 2010 workplace injury.

On November 8, 2013, the employer's representative submitted to Review Office that the medical evidence did not support that the worker was still suffering from the effects of his 2010 injury, diagnosed and treated as CTS. It was felt that the worker had ample time to recover from his carpal tunnel release surgery. The employer indicated that their appeal was based largely upon two documents: The May 25, 2013 WCB medical opinion and the July 30, 2013 neurology report. On November 29, 2013, the Worker Advisor Office provided Review Office with their response to the employer's submission.

On January 28, 2014, Review Office confirmed that the worker was not entitled to wage loss benefits after January 28, 2013 as it was unable to find that there was an ongoing cause and effect relationship after January 28, 2013 between the worker's complaints and the accepted compensable injury that occurred in 2010.

Review Office noted that in 2013, the employer's request for cost transfer was denied as there was insufficient evidence to show that the worker's bilateral CTS was a result of cumulative employment prior to working for his employer. At the time of its ruling in 2013, Review Office noted that the worker continued to suffer from symptoms of an unknown origin for some time prior to the onset of the compensable episode of CTS. It stated that a number of medical experts concluded that the worker's presentation had elements of CTS along with a number of complaints that were unexplained by diagnostic testing and examination results.

Review Office stated, in part, that it accepted the opinions provided by the WCB orthopaedic consultant on August 17 and December 18, 2012 in which he stated "while some features of the worker's presentation can be explained as bilateral CTS, the overall picture could not be explained on a pathoanatomic basis."

Review Office indicated that there was insufficient evidence to support the diagnosis of bilateral CTS conclusively as a discrete condition after January 28, 2013. The worker's ongoing diffuse bilateral symptoms, originally described as thoracic outlet syndrome, had not been accepted as compensable. By January 28, 2013, Review Office felt that the worker no longer suffered from a loss of earning capacity in relation to his compensable injury. On September 4, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim for bilateral CTS. He is seeking benefits after January 28, 2013.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was accompanied by his wife and a worker advisor who provided a written and an oral submission. The worker answered questions from the panel.

The worker advisor submitted that the worker is entitled to wage loss benefits because there is sufficient evidence on file to establish that he continues to suffer from bilateral CTS which requires ongoing work restrictions that are incompatible with the demands of his regular duties. He noted that the worker's employer failed to accommodate him after the January 28, 2013 workplace injury.

The worker advisor said that the worker's first position is that his CTS has never gone away. Alternatively, if the CTS had resolved by January 28, 2013 the worker's appeal for further wage loss benefits should still be granted because the CTS has recurred. He noted that a WCB medical advisor found this to be consistent with the natural history of his condition.

The worker advisor noted that 3 physicians and a chiropractor have all diagnosed the worker with bilateral CTS after January 28, 2013 based on examinations and diagnostic testing. He said that despite this evidence the Review Office chose to rely on a December 18, 2012 report of a WCB orthopedic consultant.

With respect to a report from a WCB medical advisor who examined the worker in December 2013, the worker advisor noted that the medical advisor acknowledged the electrophysiological findings of mild to moderate bilateral median neuropathy, but concluded the worker is not symptomatic from the CTS. He noted the medical advisor appeared to have relied upon the symptoms and clinical findings as being inconsistent with CTS. He questioned the medical advisor's use of a "pseudo Phalen" test.

In support of the worker's position, the worker advisor provided literature which suggested that the gold standard for CTS diagnosis is electro-diagnostic testing, which in the worker's case supported the diagnosis of CTS.

In answer to questions the worker described his current symptoms. He said on a typical day he had lots of pain, numbness, tingling, twitching, cold and hot sensations. He advised that:

• the pain and symptoms are the same in both hands
• when he brushes his teeth he feels pain in wrist and tingling in the fingers
• the pain can cause him to fall to his knees
• while mornings are bad the pain progresses
• any activity worsens the pain
• he can no longer do things like pick up his child, go biking, shovel snow, help around the house.

The worker showed the panel the wrist braces that he has worn at night for the past year.

The worker advised that he has not seen the consulting neurologist since March 2014. He also advised that he has not been referred for further surgery. He advised that the first surgery was not helpful and noted that symptoms worsened after the surgery.

The worker advised that he applied for minimum wage positions but has not been able to find employment which complies with the restrictions recommended by his family physician.

The worker advisor submitted that the worker is only asking the panel to address the CTS and loss of function related to it. The worker is not asking for the panel to include a non-specified condition.

The worker advisor submitted that the worker is not totally disabled but is significantly limited in his abilities both in and out of work. He noted that the worker was able to perform modified duties but that he was terminated when the WCB terminated the worker's benefits. He asked the panel to rely on the opinion of the majority of the physicians, who found the worker to have CTS.

Employer's Position

The employer was represented by an advocate who provided a written and oral submission. He advised that the employer agrees with the Review Office decision.

The employer representative reviewed the medical information on the worker's file. He noted the May 25, 2013 opinion of a WCB medical advisor that the symptoms were not consistent with CTS, the diagnosis accepted as being related to the injury, and are not medically accounted for in relation to the compensable injury.

He commented that the worker's presentation at the hearing was that he was not able to do anything. He submitted that even if the worker has CTS, it does not explain the worker's position of total disability.

The employer representative submitted there is no objective medical evidence to support a cause and effect relationship between the worker's reported symptoms and the workplace accident and injury of 2010. He also submitted that the worker's subjective symptoms do not seem to be substantiated by diagnostic testing or objective medical findings.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits after January 28, 2013. For the worker's appeal to be successful, the panel must find that the worker continues to sustain a loss of earning capacity after January 28, 2013 as a result of his workplace injury. The panel was not able to make this finding.

In reaching its decision, the panel accepts that the worker has electro-diagnostic findings consistent with a diagnosis of CTS. However, the panel notes that clinical findings from examinations of the worker do not support a finding of CTS. In the panel's view, electro-diagnostic findings alone do not provide evidence of loss of function which caused the worker's wage loss. The panel is not able to find that the worker has suffered a loss of earning capacity after January 28, 2013 as a result of the workplace accident.

The worker's representative asked the panel to give weight to the opinion of the family physician, a neurologist and a WCB medical advisor. The representative noted that:

• In a July 11, 2013 report the family physician opined that the worker has CTS but acknowledged that he may have another overlying neuropathy.
• In a March 13, 2014 report the consulting neurologist opined that the worker is subject to CTS. She noted that he presents with a characteristic symptomatic syndrome, and his electro-diagnostic findings recorded repeatedly by more than one practitioner demonstrate that he is subject to a focal median neuropathy at the wrist. She added that "The fact the worker reports some idiosyncratic symptoms in no regard detracts from the propriety of the diagnosis of "carpal tunnel syndrome," nor does the fact that [a different neurologist] has apparently not been successful in identifying a basis for the some of the additional idiosyncratic symptoms...."
• A WCB medical advisor opined that "This worker's course would be consistent with the natural history of CTS. The new information supports that the current presentation can be medically accounted for in relation to the C/I."
• In contrast to the above evidence are reports from a different consulting neurologist and a WCB medical advisor. The panel notes that:
• In a report dated February 28, 2013 the other consulting neurologist opined that "...overall the etiology of his symptoms remain unclear."
• In a report of a call-in examination dated December 10, 2013 a WCB medical advisor opined that:

"The current accepted diagnosis on file is carpal tunnel syndrome (CTS). CTS refers to the constellation of symptoms and signs associated with median neuropathy in the carpal tunnel.

Following to the above, the criteria for diagnosing CTS include i) clinical features of median neuropathy and, ii) electrophysiological evidence of median neuropathy across the carpal tunnels on nerve conduction studies. The presence of electrophysiological findings alone, without correlating clinical features, does not meet the criteria for the diagnosis of CTS.

With regards to the above criteria, [the worker] has electrophysiological findings of bilateral mild to moderate median neuropathy as per April 5 and June 10, 2013 nerve conduction study reports. However, [the worker's] clinical presentation is not concordant with that of a median neuropathy at the wrists (i.e. CTS), a matter substantiated as follows:

• The symptoms and findings noted at today's call-in exam were not concordant with the clinical features of median neuropathy at the wrists, in that

  i) The symptoms reported at today's call-in exam included swelling at the fingers/hands, randomly occurring tingling in an inconsistent nerve distribution at times involving the whole hand and at times involving various fingers (including the small fingers), frequent involuntary flexion at the IP joints and involuntary muscle contracture at the thenar musculature, pain reported from the fingers up to the shoulder, and pain at the shoulders and neck reported to increase the symptoms at his hands, and

ii) The findings noted at today's call-in exam included:


• No atrophy at the hands or arms bilaterally, including in the median nerve distribution,
• Good static 2 point discrimination and monofilament testing at the fingertips bilaterally (including in the median nerve distribution),
• Decreased sensation to light touch reported at the left medial upper arm, radial forearm and thumb fingertip, and at the right small finger (findings not consistent with a specific peripheral nerve distribution),
• Report of tingling at the fingers bilaterally with Tinel's testing, assessed both at the mid-dorsal wrist (i.e. back of wrist, not at the carpal tunnel) and at the carpal tunnel,
• Report of tingling at all 5 fingers bilaterally associated with both Phalen's testing (performed with wrist in maximal flexion) and with Pseudo Phalen's testing (performed with wrist in neutral and MCP joints flexed, thereby not altering pressure at the carpal tunnel);
  
  

The report of tingling at the volar and dorsal fingers associated with a dorsal Tinel's test and tingling at the fingers associated with Pseudo Phalen's test bilaterally are findings not accounted for on a patho-anatomic basis; in light of same, the standard Phalen's and Tinel's tests are not valid;



• Carpal compression test negative on the right, and associated with tingling only at the ring and small fingers on the left, and
• Palpation at the region of the radial styloid and first dorsal extensor compartment associated with a tingling sensation at the entire hand bilaterally (a finding not likely accounted for on a patho-anatomic basis).

  
  The aforementioned opinion is further substantiated by the multiple reports on file from the treating neurologist indicating that the etiology of the symptoms remains unclear, and the second opinion neurologist's July 30, 2013 report noting i) muscularity within normal limits at the upper extremities including the hand intrinsic musculature, ii) no substantial degree of weakness of any muscle group, iii) involuntary flexion at D3-4 IP (interphalangeal) joints was briskly resisted when extended passively (not concordant with today's resisted finger flexion assessment in which minimal resistance was provided), iv) one solitary occasion of a contracture of the left thenar musculature and no other contraction observed in the course of the examination, v) no side to side differences in pinprick sensation reliably demonstrated, and vii) a "non-somatic response to the limited demonstrable peripheral neurologic pathologies that have been identified."

  In conclusion, [the worker's] bilateral upper extremity presentation is not likely medically accounted for in relation to the median neuropathy at the wrists." (emphasis in original)

  In conclusion, [the worker's] bilateral upper extremity presentation is not likely medically accounted for in relation to the median neuropathy at the wrists." (emphasis in original)

  The panel has considered the different medical opinions and attaches greater weight to the opinion of the WCB medical advisor who examined the worker on December 10, 2013. The panel notes that the examination was very thorough and the examiner performed various tests to confirm the diagnosis and noted symptoms which are inconsistent with the diagnosis of CTS.

  In addition to considering the medical opinions, the panel considered the symptoms which the worker said he currently experiences:

  • pain and symptoms same in both hands
  • pain in wrist and tingling in the fingers when brushes teeth
  • severe pain that causes him to fall to his knees
  • activity worsens pain
  • inability to use arms
    

  The panel notes the worker's description of the symptoms is vague and generally is limited to pain and tingling yet appear to be totally disabling. The worker's presentation at the hearing was of a severely disabled individual. The panel finds the worker's level of disability is not consistent with and not likely related to a diagnosis of CTS.

  The panel also noted that the work restrictions with respect to the diagnosis of CTS have varied:

  • July 29, 2010: no lifting over 25 pounds, no pulling over 60 pounds and no pushing over 90 pounds (treating physiotherapist)
  • August 25, 2010: light duties, no repetitive work with arms and shoulders (family physician).
  • June 24, 2013: unable to lift more than 5 lbs with a single hand., can use 2 hands to lift and manipulate weight over 5 lbs but restricted to lifting max 10 lbs with both hands, no repetitive movements with wrists and arms (family physician).

  The panel is not able to account for the current restrictions on the basis of a diagnosis of CTS.

  In conclusion, the panel finds, on a balance of probabilities that the worker's workplace injury is not the cause of the worker's current loss of earning capacity. The panel acknowledges that electro-diagnostic tests may be consistent with a diagnosis of CTS, but finds that clinical findings do not support this diagnosis. The panel is not able to relate the worker's symptoms and reported level of disability to the workplace injury. The panel finds that there are no restrictions related to the workplace injury which would prevent the worker from working full-time in the NOC (national occupational code) he was employed in at the time of the injury. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of January, 2015