The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to benefits after August 14, 2015. A hearing was held on March 20, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after August 14, 2015.

Decision

That the worker is not entitled to benefits after August 14, 2015.

Background

The worker reported an injury to his left wrist, head and right side of his neck on March 25, 2013 after his leg became caught in a bed sheet. The worker fell backwards, hit his head on a Hoyer lift and landed on his left wrist. The employer witnessed the workplace accident as described by the worker.

The worker saw a doctor that same day, who reported "pain and tenderness over distal radius, no motor sensory deficit, scaphoid ok, x-ray distal radial fracture non displaced intraarticular wrist cast."

On April 2, 2013, the WCB advised the worker that his claim was accepted and payment of wage loss benefits and other benefits started.

On August 14, 2013, the worker attended a call-in examination with a WCB medical advisor, who provided the following opinion:

The claimant's occupation and method of injury have been reviewed. The claimant fractured his styloid processes of the left wrist, which recovered and healed satisfactory.

The claimant's presentation today gives complaint and evidence of sympathomimetic effects of the left hand including, sweating, change of colour, no change in nails and no growth of hair, lack of strength, tingling discomfort, and no allodynia. Left hand grip strength is reduced in terms of strength in gripping and pinching. The sensation is altered in terms of innervation of the 4th and 5th fingers of the left hand. The presentation in fact is that of index of suspicion of early CRPS [Complex Regional Pain Syndrome] with symptomatic effects to the hand.

In terms of restrictions, this claimant has the following restrictions:

• No repeated gripping 

• No repeated pushing/pulling 

• No repeated pronation and supination 

• No weights greater than 3 lbs and 2 lbs on an occasional basis 

• No working with the arm and hand outside of the body envelope 

• These restrictions should be in place for six weeks.

On September 7, 2013, the employer advised the WCB that he would not be able to accommodate the worker, given the worker's current restrictions and the physical demands of the job.

On October 29, 2013, the worker saw a pain management specialist, who confirmed the diagnosis of CRPS involving the worker's left hand and wrist. A further review of the claim by the WCB medical advisor on November 27, 2013 noted that the worker's restrictions should continue for a further six months.

On December 13, 2013, the WCB notified the worker that his file was being referred for assessment for vocational rehabilitation intervention.

On March 10, 2015, the worker's family doctor referred the worker for nerve conduction testing on his left wrist. On March 16, 2015, a WCB medical advisor was asked to review the claim to determine the worker's current status in relation to the compensable injury, including confirmation of his restrictions, treatment plan and whether the referral for nerve conduction testing was appropriate in relation to the compensable injury. On March 30, 2015, the WCB medical advisor advised the WCB that a call-in examination would be arranged.

On June 4, 2015, following the call-in examination of the worker, the WCB medical advisor opined, in part, as follows:

…There is no medical evidence substantiating a new diagnosis. 

… 

A May 1, 2013, x-ray report documented solid union at the left wrist fracture site. This substantiates that [the worker's] left radial styloid fracture was healed as of that date.

With respect to the diagnosis of CRPS, the current medical evidence does not substantiate this diagnosis. There is no evidence of hyperthesia, hyperalgesia, and/or allodynia. There is no evidence of vasomotor symptoms or pseudomotor/edema symptoms. There is no evidence of motor or trophic changes. [The worker] displayed no obvious guarding or protective behaviors with respect to his left hand. The absence of all of the above findings is not concordant with a diagnosis of CRPS.

In conclusion, I am unable to account for [the worker's] current non-specific left hand/wrist complaints on a probable pathoanatomical basis in relation to the workplace incident. 

… 

A March 10, 2015, consultation note from the treating physician indicates a concern for possible median and/or radial nerve impingement for which a neurological evaluation and Nerve Conduction Studies have been requested. The medical information on file and the current presentation are not concordant with a median or radial nerve impingement type syndrome.

Sensory examination findings at the call-in exam demonstrated reported mildly reduced sensation in the left fingers compared with the right in a non-specific pattern. No muscle atrophy was appreciated which would be concordant with long-standing nerve dysfunction.

Additionally, on balance of probabilities, a median and/or radial nerve impingement would be unlikely to be accounted for in relation to a radial styloid fracture. 

… 

Based on the call-in examination and the medical evidence on file, there is no evidence of an ongoing pathoanatomical lesion which would be put at risk by [the worker's] use of his left hand in an unrestricted full-time capacity. Additionally, there are no findings at the time of the call-in examination concordant with impairment in left wrist function that would necessitate restrictions. Further to the above, I am unable to account for [the worker's] reported tolerance level for the use of his left hand on a pathoanatomical basis, in relation to any current tissue pathology, or diagnosis.

In consideration of the above, the need for ongoing workplace restrictions is not substantiated by the medical evidence. 

… 

The medical evidence substantiates that on balance the accepted diagnoses have materially resolved.

On June 23, 2015, Compensation Services advised the worker that they had determined that:

1. Your WCB claim was accepted based on a diagnosis of a left radial styloid fracture, which has healed. 

2. You were previously diagnosed with CRPS (Complex Regional Pain Syndrome), however, there were no clinical findings, on examination to support that you still have CRPS in relation to his claim. 

3. There is no requirement for any physical restrictions in relation to your compensable injury. 

4. There is no requirement for vocational rehabilitation (VR) services. Therefore, we are discontinuing VR activity on your claim. 

5. Entitlement to all WCB benefits and services will end effective August 14, 2015…

Compensation Services noted that as the worker's claim was over two years old and his pre-accident position with his employer was no longer available, they were providing him with eight weeks' notice that his benefits were ending.

By letter dated December 31, 2015, the worker submitted further medical information and asked that the WCB reconsider their June 23, 2015 decision. On March 18, 2016, following a review of the submission and file by Compensation Services and the WCB medical advisor, the worker was advised that there was no change to the earlier decision. On May 12, 2016, the worker submitted additional medical information in support of a further request for reconsideration, which was reviewed by the WCB medical advisor. On July 19, 2016, Compensation Services again advised the worker that there was no change to their June 23, 2015 decision.

On December 30, 2016, the worker requested reconsideration of the WCB's June 23, 2015 decision by Review Office. On February 24, 2017, Review Office determined that there was no entitlement to benefits beyond August 14, 2015. Review Office concluded that the criteria to establish a diagnosis of CRPS beyond June 4, 2015 had not been met, and the need for ongoing workplace restrictions was not substantiated by the medical evidence.

Review Office determined that the medical evidence substantiated that the accepted diagnoses had materially resolved. They found that the worker was able to perform the duties associated with those of his pre-accident position as a part-time healthcare aide, and accordingly did not have a loss of earning capacity. Based on the various medical opinions on file, Review Office further concluded that ongoing treatment or medical aid in relation to the compensable injury was not required.

On November 13, 2017, the worker appealed Review Office's February 24, 2017 decision to the Appeal Commission and an oral 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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as is considered necessary to cure and provide relief from an injury resulting from an accident.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented and provided a detailed written submission in advance of the hearing. The worker made a presentation at the hearing and responded to questions from the panel.

The worker's position was that the evidence supports that he continued to suffer from the effects of his workplace injury beyond August 14, 2015 and is entitled to further benefits after that date.

The worker noted that he suffered a traumatic injury to his left wrist on March 25, 2013 while performing his employment duties. A secondary injury of CRPS was subsequently diagnosed by the WCB medical advisor. Rehabilitation treatments which he underwent were focused on this diagnosis of CRPS. The worker stated that he was committed to his rehabilitation and to returning to work when he was capable and it was safe. The CRPS symptomatology and resulting impediments were evident, witnessed and communicated to the WCB.

The worker stated that he was referred to a pain management specialist, and the WCB medical advisor and the treating pain management specialist provided experience-based opinions expressing the need for ongoing physiotherapy with serious attention to rehabilitation and pain management. He submitted that these opinions are consistent with the medical literature relating to CRPS.

The worker referenced a number of reports from different medical professionals, and submitted that the clinical findings and observations as documented in those reports are evidence the CRPS symptomatology was reported in all examinations conducted by experienced professionals during a four-year period. The worker noted, among other things, that on November 17, 2015, the treating physiotherapist reported that he continued to have difficulties with his left wrist and hand function, and that due to his ongoing deficits, he "would be at risk of future injury to both himself and patients if he were to return to an occupation involving lifting or patient transfers." In a letter dated May 10, 2016, an occupational health physician set out his findings based on his examination of the worker and confirmed that he met the diagnostic criteria for CRPS.

The worker noted that he had provided more than eleven tests or reports which supported the medical diagnosis of CRPS. As justification for terminating his benefits, the WCB relied, however, on one opinion from the WCB medical advisor, which he submitted was based on incomplete test results, subjective interpretations, inexperience with CRPS and a 15 minute meeting.

The worker indicated at the hearing that the core symptoms, which have been constant throughout, including electric shocks and dropping thing, swelling and perspiration, have been dissipating. He said that as of November 8, 2017, he had gone through a full week without experiencing the shocks and constant pain. He said that while he still has some symptoms, he is a lot less restricted than he has been.

The worker submitted that it did not make sense for his benefits to be terminated. He had the support of the treating physicians, based on their objective testing and diagnosis. In his view, the WCB's conclusion had more to do with a bias towards him and was not supported by the evidence.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after August 14, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid after August 14, 2015 as a result of his March 25, 2013 workplace injury. The panel is unable to make that finding, for the reasons that follow.

The panel is satisfied that the medical evidence does not support that the worker sustained a further loss of earning capacity or required further medical aid after August 14, 2015 as a result of his March 25, 2013 workplace injury.

At the hearing, the worker stated that the last time he saw the physiotherapist was in late November 2015, and that the reason for his visit at that time was to obtain a report which he could present to the WCB. He saw the occupational health physician for three visits in 2016, and was not to be seeing him again. He said that he had not seen any other health care professionals in 2016 or 2017. He stated that he had no medical reason to see anybody again with respect to his injury, as he had been diagnosed and provided with treatment.

The panel was unable to identify any particular medical aid or services which the worker required or was seeking. In response to questions from the panel, the worker acknowledged that the treating physiotherapist was not recommending further medical aid in November 2015 and had done about as much as she could do for him, and that the occupational health physician had encouraged him to continue his exercise regime and stop smoking.

The worker went on to state, however, that all of the medical practitioners have strongly recommended physiotherapy, because that is the appropriate treatment for his condition, and in his mind that is medical aid. The worker acknowledged that he was able to do the exercises he had been given at home or at the gym, and was capable of finding what was needed for him to continue with his rehabilitation. However, he could not afford to pay for treatments himself. If someone was paying for the treatments, he would have gone and his condition might have improved more quickly, but he was left on his own. The panel notes, nevertheless, that the worker indicated at the hearing that his condition has improved in the absence of any further treatment.

Based on the foregoing, the panel is satisfied that the evidence does not support that any further medical aid was "necessary to cure and provide relief from an injury" resulting from the workplace accident.

With respect to wage loss benefits, the panel finds that the medical evidence does not support a need for workplace restrictions or that the worker sustained a loss of earning capacity as a result of his workplace accident beyond August 14, 2015.

The panel places significant weight on the June 4, 2015 report of the WCB medical advisor who concluded, following his call-in examination of the worker, that the current medical evidence did not substantiate the diagnosis of CRPS; that the need for ongoing workplace restrictions was not substantiated by the medical evidence; and that the medical evidence substantiated that on balance the accepted diagnoses had materially resolved.

Information on file shows that the WCB medical advisor subsequently confirmed the worker's status as outlined in his opinion with the treating physiotherapist and the occupational health physician. In a letter to the physiotherapist dated March 17, 2016 confirming their conversation, the medical advisor set out a detailed summary of their discussion, noting among other things, that the physiotherapist had opined that the worker did not have clinical findings concordant with CRPS when she last examined him on November 17, 2015, and that the physiotherapist was in agreement with the medical advisor's opinion with respect to the worker's risk and impairment. The medical advisor further asked that the physiotherapist contact him immediately if anything outlined in the letter did not accurately reflect their conversation. There is no indication that the physiotherapist subsequently contacted the medical advisor.

The WCB medical advisor also contacted the occupational health physician following receipt of his May 10, 2016 report. In a letter to the occupational health physician dated July 6, 2016, the medical advisor confirmed that the occupational health physician had advised that the worker did not require further treatment, that he should continue to increase the use of his left hand and to do his prescribed exercises and that workplace restrictions were not required in relation to ongoing pathology in the worker's left wrist/hand. The medical advisor asked that the occupational health physician contact him immediately if anything outlined in the letter did not accurately reflect their conversation. Again, there is no indication that the occupational health physician subsequently contacted the medical advisor.

As such, the panel finds that ongoing workplace restrictions were no longer required as of August 14, 2015, the date when benefits were terminated. The panel notes that the worker stated in his evidence at the hearing that he was very capable and not disabled. In response to questions from the panel, he indicated that the only reason he could not find work was that all the work he was offered was not work that he felt he could do. He indicated that he did not out seek out work and could perhaps have found work earning the same rate as he had earned in his previous employment. In the panel's view, the worker's ongoing employment issues are no longer related to his 2013 workplace accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid after August 14, 2015 as a result of his March 25, 2013 workplace accident. The panel therefore finds that the worker is not entitled to benefits after August 14, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of May, 2018