Public Decisions | The Appeal Commission

Decision #117/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 26, 2000, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on October 26, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond April 30, 1999.

Decision

That the claimant was not entitled to wage loss benefits beyond April 30, 1999; and

That the claimant is entitled to rehabilitation benefits and services from the date on which she contacts the WCB and agrees to actively participate in a rehabilitation plan with the goal of getting her back to gainful employment.

Background

This case was previously the subject of an Appeal Panel hearing which took place on October 14, 1998. Complete details surrounding the events which led to the October 14th hearing can be found in Appeal Panel Decision No. 157/98 dated November 5, 1998 and will not be repeated at this time.

Ultimately, the October 14, 1998 Appeal Panel endorsed the recommendation of a WCB medical advisor specializing in pain management indicating that the claimant should undergo a pain management program followed by a graduated return to work (GRTW) program. As a result of these recommendations, primary adjudication made arrangements for the claimant to attend a pain management program in Langley, British Columbia commencing March 1, 1999 and ending April 2, 1999. Discussions also took place with the accident employer to locate suitable modified and alternate duties for the claimant following her return from the pain management program.

An "Interim Report" was received from the Columbia Rehabilitation Centre (B.C.) Inc. dated March 19, 1999. The report indicated that the claimant complained of pain in her right forearm radiating to her neck and upper back and that she continued to complain of diffuse pain in her right leg. It was noted in the report that the claimant continued to self limit her performance in work simulation activities and that she lacked the motivation to initiate functional activities independently. Under the "Plan" portion of the report, the following was noted:

Given Ms. [the claimant's name] lack of progress to date, and her belief that she will not benefit from further intervention, it is recommended that she be discharged for the pain program, and continue her rehabilitation via a graduated return to work."

In a written memorandum dated March 23, 1999, a WCB medical advisor specializing in pain management referred to the above report and stated, in part,

"...it is my opinion that the claimant has received all the benefit that she will from the program thus far and completing the last 2 weeks would be unnecessary and likely to yield no further gains. Langley has recommended discharge from the program and continuation of her rehabilitation program via a graduated return to work. I agree with this."

Subsequently, the claimant became involved in a graduated return to work program effective April 5, 1999. In a memorandum dated April 7, 1999, a Vocational Rehabilitation Consultant (VRC) documented that during the GRTW program, the claimant's duties would include working as a press operator, operating a "Suzi" press machine, tagging and unbagging garments, and other light duties that would be available.

In another memo dated April 21, 1999, the VRC documented that she met with the accident employer's foreman who indicated that the claimant participated daily in the GRTW program during the week of April 12, 1999. The claimant attempted to work as a press operator and performed some light sedentary duties. The employer stated that the claimant only managed to operate the press machine for a maximum of 45 minutes and that she complained of severe pain resulting from her work activities. Effective April 19, 1999, the claimant had not been back at work.

A progress report from the attending physician dated April 19, 1999 indicated subjective complaints of pain in right shoulder and right side of body. Objective findings were tenderness over right shoulder and anterior chest.

In a subsequent meeting on April 23, 1999, the claimant advised the VRC that she would not be returning to work as the light duties aggravated her pain. In a letter dated April 23, 1999, the VRC advised the claimant that her benefits would end as of April 30, 1999, as she was contending that she would no longer attend the work program.

On May 20, 1999, the claimant was assessed in ACF (Ambulatory Care Facility) Medicine at a local hospital. In a report dated May 24, 1999, the physiatrist stated that the claimant had chronic soft tissue pain syndrome of the neck and shoulder girdle muscles and that she unfortunately had not responded to the appropriate treatment. He stated that chances of compete recovery were very low and he recommended that the claimant should return to gainful employment in the form of light duty work, otherwise she would stay totally disabled for a long period.

On February 25, 2000, the case was considered by Review Office at the request of the claimant's advocate. In part, Review Office confirmed that the claimant was not entitled to wage loss benefits subsequent to April 30, 1999. Review Office was of the opinion that the claimant had recovered from the physical effects of her 1996 accident. Particular note was placed on the fact that some of the claimant's complaints were variable (recently including leg pain) and the lack of findings on examination as detailed by the physiatrist in the report of May 24, 1999.

Review Office accepted the fact that the claimant continued to suffer from chronic pain syndrome and that it was causally related, at least, in part to her 1996 accident. Review Office was further of the opinion that the claimant's chronic pain syndrome would not preclude her from working if she chose to utilize the coping strategies and skills that she had been taught. Review Office stated that the claimant was not mitigating the consequences of her accident and therefore she was not entitled to wage loss benefits. The advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was convened.

Reasons

We find that the claimant, as a consequence of her chronic pain syndrome, has not returned to her pre-accident status and also that this condition is related to her compensable injury. In reaching these conclusions, we relied heavily on the WCB Pain Management Unit psychological advisor's opinion of February 15th, 2000. It should be pointed out, however, that the evidence does not support the contention of total disability.

The WCB psychological advisor outlined in his opinion the manner in which the claimant's chronic pain syndrome (CPS) restricted her ability to work.

The treatment for CTS consists of a process of teaching the client to self-manage their pain, and activity levels while still functioning in their day to day tasks.

The goals of this process are to; 1) assist the client in altering their experience of pain so that they will not become overwhelmed by the intense physical sensation and the accompanying emotional response. 2) help the client to develop and maintain life management/problem solving skills that allow them to return to their previous level of functioning. 3) address the client's attitudes and beliefs regarding their pain, functional abilities and sense of entitlement with respect to medical treatment/cure and compensation. 4) resolution of some types of pain through a change in lifestyle characterized by a.) a return to work; b.) regular appropriate exercise; c.) use of stress management skills; d.) discontinue the use of habit forming medication/substances; e.) develop awareness and acceptance of the difference between hurt vs. harm; f.) discontinue the use of avoidance of activity and inactivity as pain management strategies; and g.) discontinue the use of counterproductive strategies e.g., canes, limping, braces etc.

This process requires a combination of medical education with regards to the benign nature of their injury (hurt vs. harm), gradual increases in activity and the management of pain flare-ups, relaxation training to aid in management of their pain and negative emotional reaction to their pain as well as stress management thus the interdisciplinary nature of these treatment programs. In any educational self-help process the motivation and willingness of the client to engage in treatment and make the difficult changes in thinking and behaviour required are the essential components to a successful outcome.

In Ms. [the claimant's] case the motivation and willingness to engage in the treatment process appears to have been limited. In addition it appears that Ms. [the claimant] lacks the motivation to initiate functional activities independently and requires encouragement from staff to ensure her participation in work simulation.

As indicated in the file a graduated return to work with alternate duties that were considered to be within her restrictions was provided. Unfortunately, as of April 19, 1999 Ms. [the claimant] elected to discontinue her return to work process due to complaints of pain and indicated her perception that she was unable to continue this process due to her pain levels.

Ms. [the claimant] has been provided the appropriate treatment for her diagnosed conditions along with the subsequent recommendations from the Columbia Center all of which she has chosen to discontinue. It was the recommendation of the Columbia Center that she was able to participate in a graduated return to work program. Based on the foregoing it is felt that Ms. [the claimant] should not have any restrictions resulting from her Chronic Pain Syndrome other than those that are self-imposed." (Emphasis ours)

Although we find the claimant not totally disabled, the evidence suggests that she has yet to return to her pre-accident status. We recommend that the WCB's Pain Management Unit conduct a complete assessment of both the claimant's physical and psychological states. It should be noted that the claimant is not conversant in the English language and therefore any meetings with the claimant should include an independent interpreter to ensure that the claimant understands the process being presented as well as what her obligations are. We further recommend that an appropriate vocational rehabilitation program be developed with the view to returning the claimant to gainful employment whether with the accident employer or otherwise. In this regard, the employer's representative indicated at the hearing the company's willingness "to help her facilitate a return to work".

The evidence clearly confirms that the claimant has not fully participated in past rehabilitation attempts. It should be made abundantly clear to the claimant that the evidence does not support her contention of total disability and that she has an obligation, pursuant to section 22 of the Act and WCB policy 44.10.30.60, to amongst other things, "demonstrate an ongoing effort towards successful completion of the rehabilitation plan and co-operate with the WCB in carrying out the rehabilitation plan". Again, we strongly urge that an independent interpreter be involved at all stages.

Finally, we recommend the reinstatement of benefits to the claimant. However, this will not be retroactive to the date of termination because of the claimant's less than complete prior participation and the fact that vocational and rehabilitative assistance is discretionary under the Act on the part of the WCB. The entitlement to further benefits will be the date on which the claimant contacts the WCB and agrees to participate and to co-operate fully in her rehabilitation. We note that the claimant indicated at the hearing a willingness to participate in her rehabilitation.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 30th day of November, 2000

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