Decision #06/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 19, 2000, at the request of the claimant. The Panel discussed this appeal on January 19, 2000.

Issue

Whether or not the claimant has recovered from the physical effects of her compensable accident;

Whether or not the WCB should continue to accept financial responsibility for the claimant's taxi fares beyond September 14, 1999;

Whether or not the WCB should continue to accept responsibility for the claimant's non-psychopharmacotherapy prescriptions; and

Whether or not the WCB should continue to accept responsibility for the claimant's treatment by an anesthesiologist.

Decision

The claimant has recovered from the physical effects of her compensable accident;

The WCB should not continue to accept financial responsibility for the claimant's taxi fares beyond September 14, 1999;

The WCB should not continue to accept responsibility for the claimant's non-psychopharmacotherapy prescriptions; and

The WCB should not continue to accept responsibility for the claimant's treatment by an anesthesiologist.

Background

In September 1993, the claimant, a warehouse clerk, developed lower back pain with lifting and bending. The initial diagnosis was a back strain. Subsequent reports from an orthopaedic specialist revealed mechanical back pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to April 6, 1994, when it was determined that the claimant had recovered from the effects of the compensable accident.

Ongoing reports showed that the claimant's lower back pain continued. On July 5, 1994, an infectious disease specialist diagnosed the claimant with chronic fatigue syndrome. This condition was not considered by the WCB to be related to the 1993 compensable injury.

On July 12, 1996, a Medical Review Panel (MRP) was convened at the request of primary adjudication. The MRP's opinion was that the claimant suffered an idiopathic musculoskeletal strain of the back in relation to the 1993 injury and that she had recovered from that condition. The MRP stated that the claimant's problem was purely symptomatic and could be best described as Chronic Pain Behavior Syndrome and that this rendered her unemployable.

The claimant was interviewed by a medical advisor from the WCB Pain Management Unit on November 28, 1996. The medical advisor concluded that the claimant did not suffer from chronic pain syndrome. He stated there was no significant organic basis for continued symptoms as it related to the compensable injury. He also said that the claimant's personality and agenda needs, in all probability, played a role in previously noted abnormal pain behavior commented on by the MRP.

In March 1997, the claimant was involved in a non compensable motor vehicle accident and was diagnosed with whiplash and right jaw pain.

In August 1997, the WCB arranged for the claimant to be assessed at a Pain Clinic in Alberta to determine whether she had chronic pain syndrome. In a report from the Pain Clinic dated September 23 & 24, 1997, it was determined that the claimant was suffering from a major depressive disorder and chronic pain syndrome. It was also determined that chronic pain syndrome and depression were currently barriers to the claimant's ability to return to work.

On January 16, 1998, the claimant was informed by the WCB that her claim had been accepted on the basis of Chronic Pain Syndrome and it was directly related to the 1993 injury. It was also noted that the claimant developed "Post Traumatic Stress Disorder" as a result of a non-compensable motor vehicle accident.

In April 1998, an anesthesiologist reported that he first treated the claimant on February 13, 1996 with regard to severe pain in the lumbosacral junction radiating down both legs and a disturbed sleep pattern, impaired memory and pain in her back. "Given this combination I made the diagnosis of atypical fibromyalgia with possible fibrosis in the lumbosacral area." The claimant was also referred to a psychologist for treatment.

During a telephone conversation on April 26, 1999, the claimant's husband told a WCB adjudicator that his wife used taxis to get to and from most places because of her chronic pain and that the WCB should be paying for all taxicabs. In a report dated May 15, 1998, the treating psychologist stated that the claimant reported fear and anxiety when riding in automobiles and were considered high stressors. Her fear and anxiety was assessed as post traumatic stress disorder as a result of her MVA.

On July 2, 1999, the claimant was informed by Rehabilitation & Compensation Services, that the WCB would only accept responsibility for taxi fares incurred in seeking treatment from the psychologist and anaesthesiologist. The claimant's husband appealed this decision on July 19, 1999, and the case was referred to Review Office for consideration.

In a decision, dated September 10, 1999, Review Office determined that the claimant had recovered from the physical effects of her August 1993 compensable injury and that her continuing low back complaints were a manifestation of developing a psychological condition, that being chronic pain syndrome.

Review Office stated that the WCB accepted chronic pain syndrome as causally related to the August 1993 accident and that any other complaints such as headaches or neck pain were not related to the accident. Review Office was of the position that chronic pain syndrome did not prevent someone from driving and that file documentation established that the claimant does drive on occasion. To provide the claimant with such aids as a taxi would reinforce her pain behavior and further lessen the chance of her condition improving.

Review Office further noted that the WCB paid for prescription costs not related to the claimant's psychological condition and for injections given by an anesthesiologist. As the WCB determined that the claimant had recovered from the physical effects of her compensable injury, Review Office determined there was no basis to cover the prescription or injection costs.

In September 1999, the claimant appealed Review Office's decision and requested a hearing. On January 19, 2000, an Appeal Panel hearing was held.

Reasons

The issues in this appeal are:

  1. Whether or not the claimant has recovered from the physical effects of her compensable accident;
  2. Whether or not the WCB should continue to accept financial responsibility for the claimant's taxi fares beyond September 14, 1999
  3. Whether or not the WCB should continue to accept responsibility for the claimant's non-psychopharmatherapy prescriptions; and
  4. Whether the WCB should continue to accept responsibility for the claimant's treatment by an anesthesiologist.

The relevant subsection of the Workers Compensation Act (the Act) is subsection 27(1) which provides for the provision of medical aid.

Issue 1: Whether or not the claimant has recovered from the physical effects of her injury:

We find that the evidence supports a finding, on a balance of probabilities, that the claimant has recovered from the physical effects of her compensable low back injury of August, 1993. We note a Medical Review Panel (MRP) was convened on July 12, 1996. With respect to the low back, the panel indicated that the claimant had suffered an idiopathic musculoligamentous strain of the back and offered their opinion:

    " With regard to the low back, the claimant describes pain in the low back but in the absence of any physical or x-ray abnormality the Panellists agree that her condition has evolved into Chronic Pain Behaviour Syndrome.

    With regard to the August, 1993 injury, the Panellists agree that the problem today is purely symptomatic and could best be described as Chronic Pain Behaviour Syndrome.

    With regard to the 1993 injury, the Panellists are unable to find any abnormal physical findings or any x-ray or CT abnormality.

    At the same time, the Panellists consider that the claimant is unemployable at this time by reason of her Chronic Pain Behaviour Syndrome."

We note that the claimant was subsequently examined and assessed at an out-of-province pain clinic by various health care practitioners in September 1997 and we note that their findings support the opinions given by the MRP specialists. In particular, the examining physician, the Medical Director of the pain clinic, concludes the following:

    "I will, very generally say that from my medical examination there is no clear structural reason that would limit her from returning to some form of work. Her inability to self manage her pain and to cope, however, would seriously limit her ability to function effectively in the work place."

In addition we note the findings of the psychologist at the pain clinic in his Summary of Interdisciplinary Findings dated September 23 and 24, 1997 which states:

    "The medical, occupational therapy, and physiotherapy assessment all indicate that Ms. [the claimant] is deconditioned. All of the assessments also indicate that if it were not for chronic pain she would be physically able to handle work at this point in time. It is clear that Ms. [the claimant] is not coping well with her pain as is evidenced by her depression, high degree of pain focus, pain behaviour, activity avoidance, and physical deconditioning. From this perspective, I would assess that the CPS and depression are currently barriers to Ms. [the claimant's] ability to return to work."

With respect to the claimant's current physical status we note the findings of her treating anesthesiologist. In his report of April 7, 1998 he provides a diagnosis of atypical fibromyalgia with possible fibrosis in the lumbosacral area. At the hearing the claimant confirmed that fibromyalgia continues to be the ongoing diagnosis provided by her attending healthcare practitioners.

In this regard we further note that the claimant's evidence at the hearing indicates that the fibromyalgia is widespread and generalized, affecting most parts of her body including, for example, all limbs and the top of her head. We find that this widespread manifestation does not appear to be referred specifically from the original injury site. We also find that the evidence does not support a causal relationship between the extensive fibromyalgia condition, as described, and the August, 1993 compensable idiopathic musculoligamentous low back strain.

We find from the evidence that the extent of the claimant's current condition is disproportionate to, and inconsistent with, the mechanism of injury sustained in 1993. In this regard we note the significant period of elapsed time since the compensable injury and a number of intervening and unrelated medical issues including significant injuries sustained in a subsequent motor vehicle accident in 1997 which has necessitated a series of ongoing surgical interventions.

In summary, we find that the evidence supports a finding, on a balance of probabilities, that the claimant has recovered from the physical effects of her compensable low back injury as noted by the medical review panel and the subsequent medical evidence as outlined. We find any disability related to the claimant's chronic pain syndrome which was accepted as compensable by the WCB as related to the August 1993 injury is not an issue before this panel.

As we have found that the claimant has recovered from the physical effects of her injury, the claimant's appeal on this issue is denied.

Issues 2, 3, and 4: Whether or not the WCB should continue to accept responsibility: (2) for taxi fares beyond September 14, 1999; (3) for the claimant's non-psychopharmacotherapy prescriptions; and (4) for the claimant's treatment by an anesthesiologist:

In light of the evidence outlined and the rationale for our finding on issue 1, that the claimant has recovered from the physical effects of her compensable injury sustained in August, 1993 we find that there is no basis for any entitlement to further benefits with respect to the above issues. In addition with respect to issue 2, although the claimant has contended an inability to drive due to her physical condition, the evidence indicates that the claimant has recovered from the physical effects of her compensable injury, and that the claimant does drive herself on occasion. We also note the following comments in a report dated May 15, 1998, from the claimant's clinical psychologist where he indicates:

    "She [the claimant] reported fear and anxiety when riding in automobiles as a high stressor for her at that time. Her fear and anxiety was assessed as Post Traumatic Stress Disorder as a result of her MVA." (emphasis ours)."

In summary, we find that the evidence supports a finding, on a balance of probabilities, that the claimant is not entitled to further benefits with respect to the issues outlined above. Therefore the claimant's appeal on issues 2, 3 and 4 is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of January, 2000

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