Decision #76/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility could not be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury. A videoconference hearing was held on April 15, 2021 to consider the worker's appeal.
Whether or not responsibility can be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury.
That responsibility cannot be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury.
This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 46/96 and 86/05, dated April 2, 1996 and May 31, 2005, respectively.
On May 25, 1990, the worker was involved in an accident with injuries to her head, shoulder and lower back. The worker described the accident as follows:
I was adjusting the ceiling fan, when it fell from the ceiling, landing on my right shoulder; then the conduit struck me on the head.
A Doctor's First Report dated May 25, 1990 indicated that the worker was treated for a small laceration to her left thumb, a large bruise on her right trapezius centrally, no bony injury to clavicle, shoulder joint or scapula. The worker had full range of motion of her right shoulder and paraesthesia in her right arm. There was mild limitation in range of motion of the neck and a small bruise on the top of her skull, and the worker was diagnosed with bruising and irritation of the cervical nerve roots.
On June 18, 1990 the treating physician reported that the worker was complaining of continuing headaches and had full range of motion in her neck and shoulder along with muscle stiffness. By July 5, 1990, the worker was still complaining of a painful neck and shoulder and was advised to remain off work for a further two weeks.
The claim was accepted by the WCB and benefits were paid up to July 13, 1990, as the worker terminated her employment with the employer and was only claiming benefits from the WCB up to July 13, 1990 inclusive. In addition, based on the report from the treating physician dated July 5, 1990, the WCB determined that the worker had recovered from the injuries and was capable of employment.
In June 1991, legal counsel acting on behalf of the worker requested that the WCB reinstate the worker's compensation benefits based on current medical information. On July 31, 1991, the WCB determined that the worker was not entitled to further benefits as there was no medical evidence to substantiate that the continuation of her symptoms was a direct result of the May 25, 1990 compensable injury. The case was then forwarded to Review Office, and on February 7, 1992, Review Office accepted responsibility for the worker's right shoulder and arm problems, but did not grant the worker benefits, as the evidence did not substantiate that the condition was of a disabling nature.
On December 9, 1994, Review Office considered the case again based on a submission from the worker's legal counsel. Review Office accepted responsibility for surgery that was carried out on June 11, 1993 to alleviate the worker's right shoulder impingement symptoms, and the worker was paid the appropriate benefits resulting from the surgery.
On November 1, 1995, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged. On April 2, 1996, the Appeal Commission determined that the worker was entitled to compensation benefits deemed at the provincial minimum wage for the period July 14, 1990 to June 10, 1993, less periods of time when she was receiving training.
In May 2001, the worker called the WCB to ascertain whether or not they would pay for physiotherapy treatment that she related to a chronic neck problem and attributed to the 1990 workplace accident. Based on this request, the WCB asked for and received medical information from the worker's treating physicians and sought the medical advice of a WCB medical advisor on March 2, 2002. The worker also provided the WCB with up-dated information concerning her current symptoms, medical treatment and work history.
In a decision dated June 20, 2002, the worker was advised by the WCB that no further responsibility could be accepted for her claim. The WCB referred to medical information on file dating from October 16, 1990 to October 21, 2001. Based on a review of this information, the WCB determined that the worker had essentially recovered from the May 25, 1990 compensable injury and that she had a pre-existing neck condition. The WCB felt that the worker's ongoing symptoms were likely due to her pre-existing condition(s) which were not caused or enhanced by the compensable injury.
On July 15, 2003, a worker advisor who was assisting the worker wrote to the WCB to request that the WCB reconsider their decision to deny responsibility for the worker's z-joint pain and associated treatment which was outlined in a report from a physical medicine and rehabilitation consultant dated October 22, 2002.
On January 2, 2004, a WCB case manager determined that no change would be made to the WCB's earlier decision. The case manager stated that they were unable to establish a cause and effect relationship between the worker's neck condition and the compensable injury of May 25, 1990.
On February 26, 2004, the worker advisor appealed this decision to Review Office. The worker advisor referred to various medical reports on file and asked the WCB to approve a "percutaneous radiofrequency neuropathy." The worker advisor argued that the treating physicians all agreed that the worker suffered neck symptoms since the date of the workplace accident.
On April 30, 2004, Review Office confirmed that no responsibility would be accepted for the worker's neck condition or for any related treatment, i.e. physiotherapy, neurotomy, etc. Review Office noted evidence that the worker had degenerative changes in the neck and had no evidence of neurological dysfunction. On February 15, 2005, a worker advisor filed an appeal with the Appeal Commission and an oral hearing was arranged.
On May 31, 2005, the Appeal Commission determined that responsibility should be accepted for the worker's z-joint condition affecting her neck and associated treatment as being related to the May 25, 1990 compensable accident, but responsibility should not be accepted for the degenerative condition affecting the worker's neck.
On November 4, 2005, the worker advisor contacted the WCB to advise that the worker had ongoing numbness in the fourth and fifth fingers of her right hand and weakness in that hand which she related to the workplace accident. A September 22, 2005 report from the worker's treating neurologist was provided, indicating the worker had intermittent ulnar neuropathy which was likely related to the workplace accident and would restrict her from doing anything that was repetitive with the right elbow. The neurologist indicated that it "sounds like" the ceiling fan struck the worker in the region of her ulnar nerve on her exposed arm. The neurologist noted that nerve conduction studies did not show evidence of right ulnar neuropathy, but clinically the worker had evidence of intermittent right ulnar neuropathy localized to the elbow. The neurologist further noted that an MRI of the cervical spine showed degenerative changes but no root compression.
On November 24, 2005, the WCB spoke with the worker, who advised that her right hand difficulties had been ongoing since the May 25, 1990 workplace accident and the problems with her right hand/arm had interfered with her ability to keep jobs. On May 4, 2006, following a review of the worker's file by a WCB medical advisor, the WCB advised the worker that they were unable to accept responsibility for her right hand difficulties.
On May 10, 2006, the worker advisor requested reconsideration of the WCB's decision. The worker advisor noted references from the treating physician's reports on June 17, 1991 and January 23, 1995 of right hand difficulties, and argued that the medical evidence supported that the worker sought medical attention for those difficulties approximately one year after the initial injury, that her right hand condition resulted from putting her right arm up for protection from the falling fan on May 25, 1990 and that she continued to experience the effects of her right hand condition. The worker advisor submitted that the WCB should therefore accept responsibility for her right hand difficulties.
At the request of the WCB, the worker attended a call-in examination with a WCB physical medicine and rehabilitation consultant on June 21, 2006. After examining the worker, the WCB consultant opined that "…there was no objective evidence or pathoanatomical diagnosis identified to explain the right hand symptomatology. The symptom description appears to be ulnar nerve related and would be consistent with a partial ulnar nerve injury. However, there was no evidence on examination of any ulnar nerve irritability. There also was no evidence of any other testing on the file as to a source for the symptoms." The WCB physical medicine and rehabilitation consultant further opined that it would not be possible to establish a causal relationship between the worker's right hand difficulties and the May 25, 1990 workplace accident. The consultant also opined that there was no evidence the worker's right hand difficulties were related to a pre-existing condition. On August 25, 2006, the WCB again advised the worker that responsibility would not be accepted for her right hand difficulties.
On November 14, 2006, the worker advisor submitted reports from the worker's treating orthopedic hand surgeon, who opined that the worker "…does have intermittent neuropathy of her ulnar nerve" which she believed was related to the workplace accident, and requested reconsideration of the August 25, 2006 decision. On February 21, 2007, the new medical information was reviewed by the WCB physical medicine and rehabilitation consultant, who noted the documentation from the treating orthopedic surgeon "…does not contain any objective or other clinical findings to support an ulnar neuropathy." On April 5, 2007, the WCB advised the worker advisor and the worker that the new medical information had been reviewed, but the May 4, 2006 decision remained the same.
On April 16, 2007, the worker advisor requested that Review Office reconsider the WCB's decision. The worker's position, as outlined by the worker advisor, was that there was a causal relationship between her current right hand and finger difficulties and the May 25, 1990 compensable injury, and that responsibility should therefore be accepted for those difficulties. On June 1, 2007, Review Office determined that responsibility could not be accepted for the worker's right hand and finger complaints as being related to the compensable accident on May 25, 1990. Review Office placed weight on a May 22, 2007 opinion from a WCB orthopedic consultant and concluded that the worker's ongoing right hand complaints were not related to the workplace accident.
On June 7, 2007, the worker advisor requested that a Medical Review Panel ("MRP") be convened under subsection 67(4) of The Workers Compensation Act (the "Act"), as there was a difference in medical opinion between the worker's treating healthcare providers and the WCB's medical advisors regarding the worker's diagnosis of intermittent ulnar neuropathy and causal relationship of her right hand difficulties to the 1990 compensable injury. On June 15, 2007, a WCB sector services manager denied the worker's request to convene an MRP. On June 25, 2007, the worker advisor requested that Review Office reconsider the sector services manager's decision, and on July 12, 2007, Review Office determined that the requirements of subsection 67(4) had been met and an MRP should be convened.
On November 16, 2007, the worker was examined by the MRP, and on December 14, 2007, the MRP provided their report to the WCB. With respect to the question of the worker's diagnosis of intermittent ulnar neuropathy, the MRP determined that the worker did not have an ulnar neuropathy. The worker was advised of the results of the MRP, and was also provided with a copy of the MRP report on December 14, 2007.
On January 3, 2008, the worker noted disagreement with the findings of the MRP and requested that Review Office reconsider the MRP decision. On January 8, 2008, Review Office advised the worker that based on the opinions expressed by the MRP in their December 14, 2007 report, there would be no change to the May 31, 2007 decision which confirmed that no responsibility could be accepted for her ongoing right hand and finger complaints.
On October 22, 2020, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
As the worker's claim arose from a 1990 workplace accident, the applicable provisions of the Act are those which existed at that time.
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.
The worker was represented by legal counsel, who submitted two binders of documents (most of which were copies of documents from the worker's file) in advance of the hearing and made an oral submission to the panel. The worker responded to questions from her legal counsel, and the worker and her counsel responded to questions from the panel.
The worker's position was that the WCB is responsible for her right hand and finger complaints as being related to her May 25, 1990 workplace accident, and the worker is entitled to benefits as a result.
The worker's legal counsel noted that subsection 4(5) of the Act identified two presumptions, the first being that where an accident arises out of the employment, unless the contrary is proven, it is presumed that it occurred in the course of the employment; and the second being that where the accident occurs in the course of the employment, unless the contrary is proven, it is presumed that it arose out of the employment. Counsel submitted that the presumptions were not applied in this case; rather, the reverse was applied, with it being presumed that the worker had this obligation.
The worker's legal counsel submitted that the issue on this appeal must be considered in the context of the multiple injuries the worker sustained in the workplace accident and the way they have been handled by the WCB. Counsel submitted that the panel needs to look at the whole person, not just body parts, when considering injuries and earning capacity, noting that all of the injuries contributed to unimaginable pain and suffering, and impacted the worker's earning capacity. Counsel submitted that if the panel were to isolate the issue on appeal, they would be playing into the very trap that the internal reviews fell into and the Appeal Commission had itself fallen into twice.
Legal counsel submitted that there was a pattern on this file, that whatever was reported by the worker or her doctors as pain and suffering, or as an impediment to getting a job or to getting better, was resisted and denied, all the way through to the present hearing. Counsel submitted that this pattern of consistent, negative resistance, including obstacles, delays and stonewalling, was comparable for every one of the injuries the worker suffered as a result of the workplace accident.
Counsel submitted that it was "critical" to deal with the issue of causation, the issue of the benefits lost including loss of wages including interest over many, many years, the failure to give any vocational rehabilitation, and the worker paying out of pocket for things that she should not have had to pay for, because they should have been paid for by the WCB in the vocational rehabilitation process and all the way through.
Counsel submitted that the ulnar nerve issue was identified on the day of the accident, and repeatedly reported on by doctors, and more importantly, by the worker herself. Counsel submitted that there was inadequate testing early on, and wrong interpretations, including by the treating neurologist, in light of what was subsequently found on surgery. Counsel made particular reference to the September 22, 2005 report of the treating neurologist, as the point where he "saw the light" and reported that the ulnar neuropathy was likely related to the May 25, 1990 workplace accident, noting that this was later confirmed by surgery.
Counsel submitted that all of the WCB doctors, who are so-called specialists, said there was no objective evidence, and denied that subjective evidence was worthy of anything. Counsel said the panel should look at this carefully, suggesting that there really is a problem if it has come to the point where science trumps truth. Counsel submitted that the judgment of treating specialists, who get subjective evidence from their patients, is sometimes better than objective evidence.
In the course of his submission, counsel indicated that there had been 17 doctors involved in the worker's case, and pointed to numerous reports from the various treating doctors which he urged the panel to review and consider. Counsel also urged the panel to compare these reports to the reports from the "doubters," the WCB medical advisors who gave no value to subjective evidence.
With respect to the MRP, counsel submitted that there were significant delays in determining whether there should be an MRP, and in setting up and convening the MRP. Counsel submitted that the ultimate decision by the MRP on the issue of ulnar neuropathy was not just unreasonable, it was absurd.
Counsel submitted that the best evidence with respect to the ulnar nerve issue was what the treating orthopedic surgeon found with surgery which was performed on December 5, 2017. Counsel noted that the surgery, consisting of a right in situ ulnar nerve decompression, was not completely successful. In response to questions from her counsel, the worker stated that it took two years to heal and was very painful, but that now "at least I have some feeling back in my fingers and I can feel my elbow."
The employer did not participate in the appeal.
The issue before the panel is whether or not responsibility can be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right hand and finger difficulties are causally related to the May 25, 1990 workplace accident or compensable injury. The panel is unable to make that finding, for the reasons that follow.
The panel notes that this is a complicated file, with a lengthy history and complex presentation.
The panel further notes that legal counsel for the worker has asked the panel to address the issue on appeal on a more global basis, in the context of the multiple injuries the worker sustained, the way such injuries were handled and/or their combined impact on the worker. While the panel acknowledges that context is important and accepts that issues do not exist in isolation, the panel also notes that the only issue which is before this panel is whether or not responsibility can be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury. The panel has no jurisdiction to make a ruling with respect to the "multitude" of other injuries counsel has referred to, their impact on the worker or other prior decisions, and it is not our job on this appeal to review how other individuals or bodies may have conducted themselves.
With respect to the presumption in subsection 4(5) of the Act, the panel is unable to accept counsel's argument in this regard. Based on our review of the evidence which is before us, the panel is not satisfied that the worker sustained an injury to her right hand or fingers as a result of the May 25, 1990 workplace accident. In other words, the panel is not satisfied that the worker's right hand and/or finger difficulties arose out of or in the course of her employment on May 25, 1990, and the presumption therefore does not apply.
In arriving at that conclusion, the panel finds that the evidence does not support that the fan hit the worker's elbow or forearm when it fell on May 25, 1990, or that the elbow was involved in the accident. While there is reference in early reports to the worker experiencing some paresthesia, there is an absence of indication that the worker's right elbow was injured in the course of the accident.
The panel further notes that when the worker was interviewed by the MRP on November 16, 2007, it was specifically noted that she "…was asked to clarify if she had been struck on the forearm by the falling fan" and had responded that "…she had not and that it was only her shoulder which had been injured."
The panel is of the view that the best medical evidence in support of the worker's position on this appeal is that of the treating orthopedic hand surgeon, who opined in her October 25, 2006 report to the worker advisor that "based upon her story and her clinical findings, I think that [the worker] does have intermittent ulnar neuropathy" and that "These symptoms seem to be related to the initial injury." The hand surgeon went on to opine that "I think that the crush injury may have injured her ulnar nerve so that now she is more susceptible to compression neuropathy of the ulnar nerve at the elbow."
The panel notes, nevertheless, that the hand surgeon's conclusion with respect to causation is speculative in nature. Moreover, the panel understands that the surgeon is looking at the worker's right shoulder and talking about a crush injury to the shoulder, which is consistent with the evidence as to the area where the worker was hit and different from the area that was operated on and addressed in the December 5, 2017 surgery.
The worker's legal counsel relied on the September 22, 2005 opinion of the treating neurologist that "the intermittent ulnar neuropathy likely is related to the accident of May 25, 1990." The panel notes that in providing that opinion, the neurologist stated that "It sounds like the ceiling fan struck her in the region of the ulnar nerve on the arm that was exposed." The panel has already found, however, as previously stated, that the fan did not strike the worker's elbow or forearm or her ulnar nerve.
The panel accepts that the evidence supports the December 5, 2017 surgery provided at least some relief from the worker's right hand and finger difficulties. The panel is unable, however, to connect the worker's right hand and finger difficulties to the May 25, 1990 workplace accident or to find that those difficulties are causally related to that accident.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's right hand and finger difficulties are not causally related to the May 25, 1990 workplace accident. Responsibility therefore cannot be accepted for the worker's right hand and finger complaints as being related to the May 25, 1990 compensable injury.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of June, 2021