Decision #70/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 21, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 21, 2000.
Issue
Whether or not the claimant is entitled to payment of benefits or services beyond July 4, 1989.
Decision
The claimant is not entitled to payment of benefits or services beyond July 4, 1989.
Background
On July 11, 1988, the claimant experienced a jarring pain in her right upper arm and shoulder when the turnstile she was entering accidentally stopped. The claimant was diagnosed with a sprain superimposed upon cervical spondylosis and a soft tissue injury to her shoulder. The Workers Compensation Board (WCB) accepted the claim and benefits were issued to the claimant.
In September 1988 the claimant was involved in a non-compensable motor vehicle accident at which time she suffered a mild head injury with associated concussion and an exacerbation of her cervical spine strain injury.
On November 17, 1988, a physical medicine and rehabilitation specialist (physiatrist) stated that the claimant suffered from myofascial pain dysfunction syndrome involving the right posterior cervical muscle group, right trapezius, and right serratus posterior superior. He recommended that the claimant continue with physiotherapy treatments and that she would be capable of returning to work in 2 to 3 weeks time depending on her progress. On January 3, 1989, the claimant returned to work on a part-time basis.
By June 14, 1989, the physiatrist indicated that the claimant continued to suffer from myofascial pain with moderate improvement. He believed that the claimant needed more comprehensive home stretching exercises.
A WCB medical advisor assessed the claimant on June 23, 1989. The medical advisor commented that from the description of injury, the claimant sustained a minor strain of the muscle and ligaments of the cervical spine and an irritation of the nerve roots of the brachial plexus. The cause of the claimant's ongoing symptoms were unknown. There was no evidence of disc protrusion and/or nerve root entrapment. There was no evidence of ongoing strain. There was no muscle tenderness or trigger points demonstrated. The claimant had full range of motion of her shoulders and there was no evidence of rotator cuff injury and/or arthritic changes in the shoulder. X-rays of the cervical spine noted some pre-existing cervical spondylosis however this only occurred at C4-C5 level. The medical advisor concluded that there was no organic basis for the claimant's symptoms; that the claimant did not have work restrictions related to the compensable injury; and that ongoing physiotherapy and/or myofascial therapy was considered maintenance therapy.
Based on the foregoing assessment, primary adjudication determined that the claimant had recovered from the effects of her compensable injury and that benefits would be paid to July 14, 1989 inclusive and final. In addition, no responsibility would be accepted for physiotherapy treatments.
A worker advisor appealed the decision to deny responsibility for the costs associated with physiotherapy. The case was considered by the Review Office and then by an Appeal Panel who extended responsibility for physiotherapy treatments up to October 23, 1989, inclusive and final.
In June 1991, a worker advisor wrote to the WCB indicating that the claimant had been having ongoing neck and shoulder problems since the July 1988 compensable injury. Reports were submitted from the employer's physician who had placed medical restrictions on the claimant as a result of her July 1988 compensable injury. Several medical reports were also received from the physiatrist covering the period of November 1990 to November 1991. These reports indicated that the claimant had been treated for myofascial pain complaints during this period. In February 1992, a WCB medical advisor reviewed the reports and in his opinion, the claimant's chronic pain symptoms were considered to be non-compensable.
In 1994, a different worker advisor advanced the position that even though the claimant had resumed her pre-accident duties on a full time basis as of July 4, 1989, there was ample medical evidence to show that the claimant experienced further exacerbations at work and that she continued to be symptomatic and required uninterrupted ongoing treatment.
On June 3, 1994, a WCB medical advisor reviewed a number of medical reports that were submitted by the worker advisor. The medical advisor indicated that the claimant initially suffered an injury and then for a period had myofascial pain from which she recovered. The claimant then developed fibromyalgia and chronic pain behavior and that neither conditions were compensable. On June 8, 1994, primary adjudication confirmed that no change would be made to its earlier decision. On August 26, 1994, the Review Office determined that the claimant's current symptoms, on a balance of probabilities, were unrelated to the July 1988 compensable accident and that there was no basis to extend further compensation benefits.
In March 1998, a hearing was held at the Appeal Commission to determine whether or not there was basis to extend compensation benefits beyond July 4, 1989, as related to the injuries sustained by the claimant on July 11, 1988. Prior to rendering a decision in this matter, the Appeal Panel requested that a Medical Review Panel (MRP) be convened to assist in its deliberations. On August 10, 1998, an MRP was held and a copy of the report was forwarded to the claimant and her legal representative.
On September 9, 1998, legal counsel for the claimant was advised that a new Appeal Panel would have to be convened to address the issue under appeal due to the retirement of two Appeal Panel members. The claimant was given the option to request either a standard oral hearing or a file review.
In correspondence dated July 8, 1999, legal counsel for the claimant submitted medical reports dating from November 13, 1990 through to April 3, 1999. Based on these additional reports together with new medical evidence, legal counsel requested the WCB to reconsider its previous position. If there was no change made to its previous decision, then to set a date for a rehearing.
The case was referred to Review Office to consider the new medical evidence that was submitted by the claimant's legal counsel. In addition, Review Office considered written submissions from the employer's legal counsel dated October 26, 1999, and a further submission from the claimant's solicitor dated November 29, 1999.
On December 3, 1999, Review Office determined that the claimant was not entitled to payment of benefits or services beyond July 4, 1989. Review Office acknowledged that the claimant did suffer a soft tissue injury to her shoulder area in the July 11, 1988 accident and that she later developed a condition known as myofascial pain syndrome. However, Review Office concurred with the opinion expressed by the MRP that while the condition of myofascial pain syndrome continued beyond November 13, 1990, it was being perpetuated by factors other than the singular accident at work in July 1988 and that these factors were unrelated to her employment. Review Office believed that the majority of the claimant's ongoing difficulties, which prevented her from resuming employment since 1991, were more probably related to the diagnosed condition of fibromyalgia and a chronic pain disorder which the Review Office did not consider to be related to the myofascial pain syndrome or to the soft tissue injury sustained on July 11, 1998. These conditions were separate entities, the cause of which were unknown. Review Office concluded that "although it cannot be said that the worker did not have myofascial pain beyond November 13, 1990, we do not believe that the compensable conditions continued to functionally disable the worker as she has claimed."
On February 29, 2000, legal counsel for the claimant, appealed the Review Office's decision and an oral hearing was convened.
Reasons
Chairperson MacNeil and Commissioner Finkel:
At the time of the accident, the claimant bumped her forehead on one of the bars of a turnstile, which had suddenly come to an abrupt and unexpected halt. As well, her right arm was pushed back toward her body and she slightly bumped the back of her head on a turnstile bar behind her. According to the claimant's November 28th, 1988 statement, this incident resulted in "slight neck and shoulder pain". The claimant was subsequently diagnosed with a soft tissue strain of her shoulder and neck. The medical evidence suggested that the normal course of recovery for a soft tissue injury such as this would be for full recovery in about four to six weeks.
Unfortunately the claimant did not recover in this time period and was diagnosed four months later by a physician specializing in physical medicine and rehabilitation to be suffering from myofascial pain. Myofascial pain is primarily a muscle condition in which there is a formation of a tight band of muscle fibres that contract down. Shortly after having been diagnosed with myofascial pain, the claimant's condition began to improve. She was back to work on a part-time basis by January 1989 and back to work full-time without restriction by July 4th, 1989. Medical records indicate that by October of 1989 the claimant was working full eight-hour days with occasional overtime and that she was handling the workload quite well. We note that although the claimant may have continued to experience some pain and stiffness in her neck and shoulder as a result of her myofascial pain this condition did not prevent her from working full-time. In fact, the claimant continued to work full-time for over two years until November of 1991.
In late 1991 the claimant developed a new condition, which was diagnosed as fibromyalgia by her treating physical medicine and rehabilitation physician. This specialist was called as an expert witness at the hearing. A portion of his evidence included the following testimony under cross-examination:
- Q. Is it correct, Dr. [name of specialist], that fibromyalgia is a different condition than myofascial pain?
A. It is felt to be a different condition, yes.
Q. And that fibromyalgia is primarily a syndrome of sleep dysfunction and fatigue, associated with pain in the fibrous tissues in the body, such as the muscles, ligaments and tendons?
A. There remains controversy as to what generates the pain, whether it's purely a muscular type of problem or whether there's other soft tissue involvement there. But, yes, that's the presentation, pain, tenderness, sleep dysfunction.
Q. And one of the significant differences between myofascial pain syndrome and fibromyalgia is that myofascial pain is usually localized, whereas fibromyalgia is generally spread throughout the four quadrants of the body?
A. Well, certainly fibromyalgia must be diffuse. As I indicated before, myofascial pain syndromes should be regional in nature, but the question is can you have myofascial pain of the right arm, the left arm, the right leg and the left leg? Is that myofascial pain or is that fibromyalgia? I don't think we have the diagnostic, investigative capabilities of accurately distinguishing between those two possibilities. But generally, myofascial is regional and fibromyalgia is diffuse.
Q. All right. You indicated a moment ago or this morning rather, that in diagnosing fibromyalgia, the guideline requires physicians to look for tender points. You look at 18 tender points and if a patient has 11 of those 18, then a diagnosis of fibromyalgia is made?
A. Eleven or more, yes.
Q. Eleven or more. And that those tender points cover the four quadrants of the body, including the neck, the shoulder, the chest, the hip, the knee and the elbow, is that correct as well?
A. That is correct.
Q. And that is different from fibromyalgia, correct, or different from myofascial pain? It doesn't look at other parts of the body normally?
A. Well, if you have a regional myofascial pain syndrome of the neck, that's where the tenderness is.
Q. The tenderness would be in the neck in that circumstance?
A. We can quibble about whether or not you can have myofascial pain syndrome of the four quadrants of the body, but the bottom line is one area - - if you just have tenderness in one area, that can't be fibromyalgia.
Q. Okay. Now I understand that Ms. [the claimant] was first diagnosed with fibromyalgia by yourself in October of 1991, and you found her to have 16 of 18 of those tender points, is that correct?
A. I could just quickly check, but I believe that's accurate. Just let me see here. That is correct, yes.
Q. And that was over three years after the accident. And is it correct that you had seen her approximately six times by then, something around that range?
A. Yes, that seems about right.
Q. And this was a new diagnosis, fibromyalgia?
A. That is correct.
Q. And by that point, in October of 1991, three years after the accident, Ms [the claimant's] condition had changed significantly, correct?
A. Well, she had changed from having a regional pain and stiffness of her neck, which had persisted, and has now gone on to widespread tenderness and pain, associated with headaches and sleep disturbance, yes.
Q. When you talk about regional pain of the head and neck, you are talking about pain - -
A. The shoulder. I'm sorry if I said the head. I meant neck and shoulder.
Q. And it is, fibromyalgia is an area or, rather, a complaint or a diagnosis in which theories have evolved and continue to evolve as to the cause or triggering factor, correct?
A. That's correct. I think it's fair to say that the state of the art is that we do not know definitively what the cause of fibromyalgia is.
Q. You did indicate though that it can, from time to time, arise as a result of physical trauma?
A. Well, my feeling is that trauma cannot directly cause fibromyalgia. I don't think somebody gets struck or overdoes it and develops fibromyalgia just from that. I think it's got to occur - - one can have a physical trauma that in the context of ongoing muscular tension evolves into fibromyalgia. The physical trauma in that case may be paramount. That is it may be the single event that sets up a persisting pain cycle that goes on to become a widespread tension that eventually meets the criteria of fibromyalgia, or the trauma may be a minor element. In this particular case, I think the trauma was a significant element in the evolution from muscular strain to myofascial pain to fibromyalgia.
Q. You are aware, Dr. [name of specialist], of circumstances where patients develop fibromyalgia without any physical injury or apparent physical injury at all?
A. That is correct.
Q. And you are aware that there are theories, there are physicians who believe that emotional events or stressors, emotional or psychological stressors, can cause fibromyalgia as well?
A. I believe that's what I said previously and I certainly agree with that.
In addition to the above specialist's evidence, we also attached considerable weight to several findings of the Medical Review Panel (MRP), which conducted an independent examination of the claimant on August 10th, 1998 at the request of a previous Appeal Panel. The panel members of the MRP responded unanimously to the following questions:
- Q. What was the diagnosis of the worker's condition at the time of the July 11, 1988 accident?
A. The Panelists agree that the claimant suffered a soft tissue strain, right shoulder.
Q. The claimant has been diagnosed with both fibromyalgia and myofascial pain. Does the Panel concur with these diagnoses? If not, what is the current diagnosis? What evidence supports the current diagnosis?
A. The first mention of myofascial pain syndrome was made by a competent specialist in Physical Medicine & Rehabilitation after an examination of November 17, 1988 some four months after the accident. He decided on a treatment plan and expected her to return to work within two to four weeks. He thought "she suffered an acute soft tissue injury". The Panelists concur with this diagnosis. With regard to fibromyalgia, this diagnosis is first mentioned by her first treating Rehabilitation specialist in a letter dated July 9, 1992. He considered that the 1988 injury was a precipitating factor plus anxiety and depression. The Panelists agree that these diagnoses are still appropriate at this time. The present diagnoses are based on Workers Compensation Board documentation and the interview and examination done on this date by the Panel and the Consultants in Physical Medicine & Rehabilitation, Neurology and Psychiatry. The physical exam is consistent with the diagnosis of myofascial pain syndrome and fibromyalgia. Additionally, the Panelists would add diagnoses: 1) Cervical spondylosis, a pre-existing condition; 2) Chronic Pain Disorder, which did develop soon after the accident of July 11, 1988.
Q. Are the diagnoses of Fibromyalgia and Myofascial pain related to the injury of July 11, 1988? Please explain your conclusions.
A. Fibromyalgia was diagnosed in July 1992, four years after the accident. The Panelists do not believe that Fibromyalgia is directly related to the accident. The diagnosis of myofascial pain is related to the injury of July 11, 1988 but the original condition appears to the Panelists to have largely been relieved by November 13, 1990 as noted by her treating Rehabilitation specialist. He first mentions the presence of a Chronic Pain Syndrome in a letter dated October 4, 1991. Psychosocial stressors appear to be the perpetuating factors for the condition of prolonged myofascial pain syndrome and the later development of fibromyalgia.
Q. Is it possible to determine what the etiology of either or both of these conditions? Please explain your conclusions.
A. Myofascial pain is believed to be related to soft tissue injuries such as occurred to Ms. [the claimant] in the injury of July 11, 1988. Etiology of fibromyalgia is much less clear and it is difficult to relate this to the accident. The causes are more likely psychosocial and in this respect related to the problem of her Chronic Pain Disorder.
Q. Any other comments the panel would like to make in regard to the claimant's physical/psychological state.
A. In July 1988, Ms. [the claimant] received soft tissue injuries, which reasonably should have resolved in weeks. She developed Myofascial Pain Syndrome not diagnosed for four months and the treatment plan was frustrated for many more months and even then may not have been performed adequately. However, she did make good progress and was considered fit for work on November 13, 1990. It appears to the Panelists that other factors, not work related, intervened following this progress assessment.
The claimant's fibromyalgia brought with it a multitude of new difficulties and symptoms that did not arise until three years and three months after the July 11, 1988 accident. These complaints included hip pain, buttock pain, stomach pain, irritable bowel syndrome, bladder dysfunction and memory lapse.
We accept the evidence that the exact cause of fibromyalgia is not known. However, we note that emotional stressors can be a cause and also that it can arise idiopathically as well. The evidence confirms that the claimant did in fact experience several significant emotional stressors subsequent to her compensable injury in 1988, which included the death of her father, a marital separation, a motor vehicle accident and an impending lay off from work.
After having reviewed all of the evidence, we find on a balance of probabilities that the claimant's fibromyalgia is not causally related to her compensable injury of July 11th, 1988. We further find that the claimant's myofascial pain syndrome had resolved to the point where she was able to resume full time employment duties. Accordingly, the claimant is not entitled to payment of benefits or services beyond July 4th, 1989.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil, Presiding Officer
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of July, 2000
Commissioner's Dissent
Commissioner Malazdrewich’s dissent:
I disagree with the majority in this case. There is a preponderance of medical evidence on this file which indicates that the claimant is totally disabled, and that the disabling afflictions are Myofascial Pain Syndrome and Fibromyalgia.
These are also the unanimous findings of the Medical Review Panel convened to consider this claim.
The Medical Review Panel, in response to Question #5, stated that the claimant’s current Myofascial Pain Syndrome is related to the July 11, 1988 compensable injury.
In combination with its other findings, the Medical Review Panel concluded that the claimant remains disabled, that one of the causes of the disability is Myofascial Pain Syndrome, and that the Myofascial Pain Syndrome is related to the compensable injury.
In my view, that ought to be enough to find in favour of the claimant. However, there is ample additional medical evidence on the file supporting her appeal.
Two doctors acting on behalf of the accident employer have stated, in writing, on the letterhead of the employer, that the claimant’s symptoms result from her compensable injury.
A physician at the Occupational Health Centre stated…. “The medical evidence is overwhelming in support of the contention that your current problems are directly attributable to the compensable injury of July 1988.”
The claimant’s treating Physical Medicine Specialist at the time, gave evidence and confirmed her disability as being Myofascial Pain Syndrome and Fibromyalgia and that the cause of disability was the compensable injury.
In my opinion, the claimant satisfied the burden of proof that the compensable injury was a major factor contributing to her current disability. I further believe that she satisfied this burden not just on a balance of probability, but on the more onerous standard being beyond a reasonable doubt.
B. Malazdrewich, Appeal Commissioner