The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 15, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed the appeal on March 15, 2000 and on June 23, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond August 25, 1998.

Decision

The claimant is entitled to payment of wage loss benefits beyond August 25, 1998.

Background

On November 26, 1996, the claimant was applying chest compressions to resuscitate a cardiac arrest patient when he felt sharp pain in his lower back and left side of his upper pelvis. At the time of the incident, the claimant was recovering from a previous work related back injury. When examined on November 26, 1996, the claimant was diagnosed with mechanical low back. When seen by his family physician on December 16, 1996, the diagnosis was an acute low back strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on November 27, 1996.

In January 1997, an orthopaedic specialist reported that the claimant had a long history of lower back pain dating back to 1992. X-rays showed degenerative changes at L5-S1 disc space and at the facet joints. The specialist felt the claimant's mechanical low back pain was based on aggravation of an osteoarthritic condition. He felt the aggravation definitely occurred at the time of the November 1996 work injury and that it would take the claimant about 12 to 16 weeks to get better.

Subsequent progress reports revealed that the claimant's recovery was slow and that his back pain continued. Arrangements were made for the claimant to be assessed by a WCB medical advisor and a rehabilitation specialist.

On March 17, 1997, a WCB medical advisor expressed the view that the claimant aggravated his recurring mechanical low back pain, which appeared to emanate from his left lower facet joints. Treatment to date such as physiotherapy, anti-inflammatory medication and Tylenol No. 3 was unsuccessful. The claimant self-limited his pain complaints and stated that he had been feeling depressed. The medical advisor recommended a graduated return to work program starting at 2 hours a day for the first 2 weeks graduating up to 12 hour shifts. The claimant commenced the graduated return to program as scheduled but discontinued shortly thereafter due to pain. In a report dated April 9, 1997, the attending physician indicated that the claimant was completely dependent on his family for assistance because of the low back pain and that he remained totally disabled. The attending physician mentioned that the claimant had received a cortisone injection one week earlier but found no relief to his pain symptoms.

On May 29, 1997, the claimant was assessed at the WCB's Pain Management Unit. The medical advisor made the observation that the claimant was extremely pain focused and very concrete in his feelings that his current situation was entirely the result of his 1992 injury. Based on signs and symptoms, the medical advisor was of the opinion that the claimant suffered from chronic pain syndrome and that, on a balance of probabilities, it was the result of his compensable injury. It was recommended that the claimant start a physiotherapy program using the SAAL protocol for dynamic back stabilization education and to arrange attendance at a interdisciplinary pain management program such as Canmore.

On May 2, 1997, a CT scan of the lumbosacral spine showed a left paracentral L4-L5 disc herniation with moderate central spinal stenosis.

A report received from a physical medicine and rehabilitation consultant dated September 12, 1997, indicated that the claimant had a fluroscopic caudal epidural injection on July 14, 1997. The imaging studies, however, did not match his physical examination findings. The claimant also reported that the injection had no effect at all, not even temporary. The specialist indicated that he did not know the claimant's symptoms were related to his imaging findings which showed herniations at two levels. Prior to considering surgery, the specialist thought that a psychological assessment was appropriate in order to be certain that elements of pain behavior were not confounding the claimant's clinical presentation.

A bone scan performed on October 16, 1997, identified two left posterior rib fractures.

In a letter dated November 12, 1997, an orthopaedic surgeon offered the opinion that the claimant's main problem was disc degenerative disease with spinal stenosis and degenerative disease of the disc area at the level of the left L4-5. The claimant was advised to see a neurologist. On March 3, 1998, the neurologist reported that he could not find any neurological deficit.

In a memo dated May 28, 1998, a WCB orthopaedic specialist was of the view that the most probable diagnosis was chronic pain syndrome and degenerative disc disease. A graduated return to work program was recommended together with appropriate restrictions.

On June 9, 1998, a medical advisor from the Pain Management Unit reviewed all the medical reports. It was his view that there had been no improvement in the claimant's condition and that his CPS had become worse. The medical advisor further commented that the claimant's symptoms reflect pre-existing degenerative disc disease and that the claimant would benefit from being assessed at Canmore.

In a memo to the above medical advisor dated July 14, 1998, a WCB adjudicator stated that a referral to Canmore would not be considered as the accident employer was willing to offer a supernumerary graduated return to work program to the claimant. The medical advisor was asked to recommend restrictions for the claimant as well as duration. The medical advisor commented that the claimant's pre-existing problems have prolonged his recovery from the November 26, 1996, compensable injury.

File records show that the claimant's benefits were finalled as of August 25, 1998 because the claimant felt that he was incapable of participating in any return to work plan due to his condition. On January 7, 1999, a union representative appealed the decision terminating benefits stating that the claimant was totally disabled due to severe, relentless lower back pain. In support, a medical report from the attending physician dated September 25, 1998, was enclosed with the representative's submission.

On February 4, 1999, the claimant was advised by Claims Services that no change would be made to its previous decision. The claimant was advised that the medical evidence contained in the recent submissions did not support a direct relationship to his compensable injury. The medical evidence indicated the presence of degenerative disc disease, which pre-existed the compensable injury. "Furthermore, the primary etiology relates to the pre-existing degenerative changes, as it is the opinion of the healthcare advisor that the evidence of disc lesions is not significant, and has not enhanced the pre-existing, degenerative changes."

Following consultation with a WCB orthopaedic specialist on February 19, 1999, Review Office determined that the claimant was not entitled to payment of further wage loss benefits beyond August 25, 1998. Review Office concluded that the claimant did in fact have several pre-existing conditions in his lumbar spine and that the diagnosed condition following the November 1996 incident would have most probably been mechanical low back pain or a back strain. Although the CT scan demonstrated disc herniation, all physicians on file have remarked that the clinical presentation on examination did not correspond with the radiological findings. Review Office stated there was no evidence to support the worker's contention that he had not physically recovered from his accident to the point where he could not have resumed the graduated return to work program put in place for him.

Additional medical information was received from a staff psychiatrist and nurse therapist at the Moods Disorders Program dated November 4, 1998. The report was reviewed by a WCB medical advisor from the Pain Management Unit on March 10, 1999. Briefly, the medical advisor commented that the claimant currently did not have any psychiatric/psychological diagnosis and that the diagnosis of chronic pain syndrome would be inaccurate at this time and no further treatment was recommended. On March 24, 1999, Claims Services determined that no change would be made to its earlier decision based on these comments by the medical advisor.

On September 14, 1999, a union representative submitted additional information to Review Office, which consisted of reports from a clinical psychologist/neuropsychologist dated August 20, 1999 and from the attending physician dated August 5, 1999.

In a decision dated October 1, 1999, Review Office confirmed that the claimant did not have a diagnosis of chronic pain syndrome related to the November 26, 1996 accident and that the worker was not entitled to wage loss benefits beyond August 25, 1998. Review Office was of the opinion that the claimant had recovered from the effects of his November 26, 1996 accident. The preponderance of difficulties now being experienced was probably related to pre-existing factors. Review Office did not accept the conclusions of the physician from the Occupational Health Clinic that the claimant's current myofascial findings were related to the 1992 injury or to the current claim. Review Office noted that the worker was seen repeatedly by a specialist in physical medicine and rehabilitation who did not provide the diagnosis of myofascial pain syndrome. Review Office indicated that if the claimant was suffering from myofascial pain syndrome, it was not related to the compensable claims as the diagnosis only had been made in March of 1999.

Review Office took into consideration the November 1998 report received from the psychiatrist and nurse therapist. Their findings led them to conclude that the claimant did not have any psychological or psychiatric diagnosis and they did not view him as depressed. The most recent report by the psychologist/neuropsychologist indicated that the worker was experiencing pain behaviors and pain complaints. In the opinion of Review Office, these complaints were more probably related to pre-existing factors than to the actual compensable injury, which had resolved by August of 1998.

In December 1999, a union representative appealed Review Office's decision and requested an oral hearing. Enclosed with the appeal application were additional medical reports for consideration by the Appeal Panel. On March 15, 2000, an Appeal Panel hearing was held.

Following the hearing, the Panel discussed the case and requested that the claimant be re-assessed at the WCB's Pain Management Unit with respect to his physical and mental status. The claimant was then assessed by a WCB medical advisor on April 11, 2000, a WCB psychological advisor on April 18, 2000 and a medical advisor from the WCB's Pain Management Unit on April 25, 2000. Copies of the examination reports were forwarded to the interested parties for comment. On June 23, 2000, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The WCB's Pain Management Unit (P.M.U.) has developed a chronic pain syndrome (CPS) checklist for use when assessing injured workers. The following is a reproduction of that checklist:

Diagnostic criteria:

• Intense and unremitting pain is the predominant clinical symptom;
• The individual attributes the pain to the unresolved effects of their (sic) physical injury;
• Appropriate therapeutic intervention has failed to achieve significant and sustained improvement;
• Pain demonstrates continuity and progression, uninterrupted by periods of remission;
• Pain results in a marked disability that affects proportionally their occupation, social and recreational areas of functioning. Disability affecting solely or disproportionately their occupational area of function only is not an indication of CPS;
• The duration of the disability exceeds that expected from their injury and typically the degree of disability is also disproportionate to their injury. CPS is preclude when identified organic pathology could alone produce disability of the nature, degree and duration demonstrated;
• Marked disability is apparent to others and can be corroborated;
• Pain results in physical inactivity that leads to reduced strength and endurance, increased fatigue and potentially social isolation;
• Physical inactivity is apparent to others and can be corroborated.

Contraindications to Diagnosis:

• Sole or largely predominant impediment to recovery is workplace dissatisfaction;
• Sole or largely predominant impediment to recovery is job or financial insecurity;
• Presence of dependency or addiction to alcohol or other nonprescribed psychoactive substances;
• Presence of a pre-existing personality, hypochondriasis or somatization disorder per DSM-IV;
• Major Depression, Schizophrenia or other Psychotic disorder per DSM-IV or another major and relevant psychiatric disorder; pre-existing or not under adequate control at the time of the physical injury;
• It is felt that the physical injury did not materially contribute to causation.

CPS can reasonably be judged to be, in part but not solely, a consequence of a physical injury where:

• Diagnostic criteria are satisfied;
• CPS develops entirely subsequent to the physical injury;
• The physical injury contributes to the causation to a material degree.

Following the hearing, we decided, in light of the evidence that it would be most appropriate to have the claimant formally assessed by the WCB's P.M.U. and to have him physically examined by a WCB medical advisor as well. An assessment conference was subsequently held on May 8th, 2000. The P.M.U. reviewed the results of the claimant's assessment and concluded that he met the diagnostic criteria for a CPS as defined in the above referenced checklist. It is also important to note that the P.M.U. considered the claimant's physical injury materially contributed to the causation of his CPS.

We find based on the preponderance of evidence that the claimant is entitled to payment of wage loss benefits beyond August 25th, 1998. In addition, we totally endorse the P.M.U.'s recommendation with respect to the suggested course of treatment for the claimant. "The claimant does appear to be an appropriate candidate for a Multidisciplinary Pain Management treatment program depending on the development of an appropriate V/R plan and the Claimant's willingness to commit to same." (Emphasis ours)

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of July, 2000