The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 22, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on January 22, 2001.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond May 19, 1999.

Decision

That the claimant is entitled to payment of wage loss benefits beyond May 19, 1999.

Background

On January 24, 1998, the claimant sustained a compensable lower back injury when he was straightening a mudflap on his truck with an 8-inch leverage bar. The diagnosis rendered by the family physician was a back injury, sciatica, and the possibility of a disc protrusion.

A CT scan of the lumbar spine dated March 6, 1998, showed annual disc bulging at L3-L4 and L4-L5. No focal disc protrusion, nerve root compression or spinal stenosis was identified. The L5-S1 level was unremarkable.

On May 5, 1998, x-rays were taken of the lumbosacral and thoracic spines along with the right elbow. There was no recent bone injury. There was slight impression of T12, previously noted. The other vertebral bodies were maintained. Mild degenerative lipping was present. The right elbow revealed no fracture or dislocation.

On May 13, 1998, a Workers Compensation Board (WCB) medical advisor examined the claimant and gave the following opinion concerning the claimant's medical condition:

• the current diagnosis in the thoracolumbar spine was mechanical pain;
• the claimant was not suffering from a radiculopathic condition;
• there continued to be a relationship between the mechanism of injury and acute symptomatology of January 24, 1998 and the claimant's current status;
• the claimant should undergo a short course of spinal manipulation therapy and a spinal stabilization program;
• the claimant was not totally disabled. Workplace restrictions were outlined;
• the claimant's right elbow symptoms and signs were indicative of a symptomatic epicondylitis/epicondylosis.

In a letter received from the family physician dated June 30, 1998, it was noted that laboratory investigations revealed an increased serum uric acid as well as increased liver function tests over the past months. The physician indicated that the significance of the elevated liver function test was not certain, however the increased serum uric acid may be a contributing factor with respect to the claimant's ongoing symptom complex.

On July 10, 1998, a WCB orthopaedic consultant assessed the claimant. The consultant's opinion regarding the claimant's medical condition was as follows:

• the diagnosis of the January 24, 1998, work related injury was a severe musculoligamentous strain of the lumbar spine;
• the presence of mild degenerative, diffuse changes in the lumbar spine and the posterior articulations might explain the initial severity based upon an acute mechanical back pain arising out of strain of the lower posterior articular facet joint.
• the abnormal liver function tests were a cause for extreme concern in case management.
• the consultant recommended that the claimant enter a reconditioning and work hardening program of short duration. He felt that the claimant would be in a position to return to regular employment in 6 to 8 weeks.

After examination on December 4, 1998, a neurologist concluded that the claimant's condition sounded like mechanical back pain. The neurologist stated that he did not have a good explanation for the tingling noted on the left side of the claimant's body and suggested further evaluation in the form of a CT scan.

On January 11, 1999, a WCB medical advisor assessed the claimant and determined the following:

• there appeared to be clear indication of myofascial pain areas, particularly over the right paraspinal area, however there was some discomfort on palpating the right sacroiliac joint;
• when palpating the lumbar spinous process of L4-5 and the facets created a reflex muscle pain in the right paraspinals. There were some muscle bands in the paraspinals but no distant zones of reference were identified.

In a February 16, 1999 report, a physical medicine and rehabilitation specialist (physiatrist) outlined his examination findings in relation to the claimant. His impression was abnormal illness behaviour and "myofascial pain syndrome - lumbar muscles - moderate".

In a letter dated April 9, 1999, the physiatrist noted that the claimant was reviewed on April 1, 1999, regarding his ongoing complaints. The claimant drew a pain diagram that displayed widespread pain over the lumbar region bilaterally, right leg, left trapeizus and the front and back was his left arm. The claimant said he was getting cramps in both legs from receiving acupuncture treatments. The claimant stated he had absolutely no relief from any treatments that he had received. The specialist indicated that he was at a loss to understand why the claimant had such unusual responses to treatment and why he did not benefit whatsoever from the multitude of treatment that he had been offered. "There appears to be a fairly significant non-organic component to these complaints, and there may be issues other than medical at play here." The specialist concluded that he could see no medical reason why the claimant could not return to his previous job and that no specific workplace restrictions were needed since there was no specific medical impairment that had been identified as a cause for the unusual and widespread complaints.

Following consultation with a WCB medical advisor on May 10, 1999, the claimant was advised by primary adjudication that he was considered to be recovered from the effects of the compensable accident and that benefits would be paid to May 19, 1999 inclusive and final. This decision was further confirmed by primary adjudication on August 12, 1999.

Medical reports were received from a rehabilitation and medicine specialist who was asked to assess the claimant by the attending physician. In a report dated September 12, 1999, the specialist stated, in part, the following: "Clinically, Mr. [the claimant] has mechanical spinal pain, manifested by interspinous ligamentous strain and regional myofascial trigger points. Keeping in mind his stiffness and restriction of the movements of the spine, I would like to rule out spondyloarthropathy."

On September 27, 1999, the claimant was advised that the new information had been reviewed with the assistance of the WCB healthcare department and that there would be no change to decision that was outlined on May 12, 1999.

On October 22, 1999, a worker advisor submitted a medical report from the family physician dated October 13, 1999 and requested that the claimant's wage loss and other benefits be reinstated retroactive to May 19, 1999. In the event that primary adjudication remained of the opinion that the claimant was fit for full duties, the worker advisor requested that a Medical Review Panel (MRP) be convened as per Section 67(4) of the Workers Compensation Act (the Act). The request for a MRP was later granted by Review Office on February 4, 2000, and on May 12, 2000, a MRP was convened.

In a decision dated July 21, 2000, Review Office determined that the claimant had recovered from the effects of the compensable injuries and was not entitled to payment of benefits beyond May 19, 1999. Review Office based its decision on the MRP's comments that the original diagnosis was an acute back strain with no objective findings being recorded. The MRP stated that the claimant had recovered from the effects of his accident. Review Office indicated that the claimant believed he had not recovered and stated that he had no tolerance for physical work and could only sit for 15 minutes at a time. The physical findings, however, did not support the claimant's contention in this regard. It was concluded by Review Office that since the claimant had recovered from the physical effects of the accident some time ago, any current pain disorder was not considered related to the ongoing effects of the accident.

On October 10, 2000, legal counsel for the claimant appealed Review Office's decision and an oral hearing was held on January 22, 2001.

Reasons

The panel met to consider an appeal, by the claimant, of a decision by the Review Office, dated July 21, 2000. That decision denied a request for reconsideration of an earlier adjudicative decision, that had terminated wage loss benefits beyond May 19, 1997. An earlier decision by the Review Office, dated February 4, 2000, had granted the claimant's request to be examined by a Medical Review Panel. The Review Office decision, which included consideration of the report of that examination, formed the basis of the decision under appeal.

One issue was to be determined in this appeal: whether or not the claimant was entitled to payment of wage loss benefits beyond May 19,1999. The key to determining this issue is whether or not the claimant has fully recovered from the effects of the compensable injury, which occurred on January 24, 1998.

At the hearing, the Panel heard testimony from the claimant, who was represented by legal counsel, from the claimant's family physician, as well as from the employer.

We concluded that the claimant should not have been cut off from wage loss benefits on May 19, 1999. In coming to this conclusion, we saw the medical management of this claim - and, more specifically, the claimant's medical condition - as running on two parallel tracks, one related to physical issues, the other to psychological issues. While objective physical evidence, which would have provided ongoing causal links between his symptoms and the compensable injury, was disappearing, psychological factors were on the increase. Throughout this file, doctors treating the physical symptoms made reference to these psychological factors. These signals should have been caught, examined and, possibly, addressed. They were not.

The decision in May 1999 to terminate benefits was based on only one of these tracks; the other slipped through the cracks. We note that the Review Office decision to terminate benefits was based largely on the comments made in one medical report, being that of a specialist in Physical Medicine and Rehabilitation.

The claimant first saw this specialist in January 1999, at which time the specialist noted a number of things:

• It was his impression that the claimant suffered from "abnormal illness behaviour" and "myofascial pain syndrome - lumbar muscles - moderate";
• He wanted to "refer him to a physiotherapist, perhaps for 8 - 12 weeks of intense therapy, concurrent with trigger point injection treatments"; and
• "due to the abnormal illness behaviours, and the other negative prognostic indicators related to his occupation, my overall prognosis would be fair with regards to full resolution of function and return to work for this man."

The claimant saw this same specialist on three more occasions, the last resulting in the report which led to the termination of his benefits. In an April 9th letter, the specialist wrote:

"I am at a loss to understand why he has had such unusual responses to treatments, and why he has had no benefits whatsoever from the multitude of treatments that he has been offered. There appears to be a fairly significant non-organic component to these complaints, and there may be issues other than medical at play here.

At this point, I can see no medical reason why [the claimant] could not return to his previous job if he wanted to. As such, I can give him no specific workplace restrictions .."

Based on this report, a WCB medical consultant deemed the claimant fit to return to work at full duties. It appears to the panel, from the letter written to the claimant by the WCB adjudicator and from the medical advisor's brief note, that the specialist's comments as to "a fairly significant non-organic component" and "issues other than medical" were ignored. We note that the specialist is at a loss to explain what appears to be fairly substantial limitations of function from a medical (physical) perspective and clearly flags non-physical issues which had been evident much earlier in time.

We note that a year prior, in May 1998, the claimant was examined by a WCB advisor in Sports Medicine. In a follow-up with the claimant's family physician, it was recommended, for the first time, that the claimant be referred to a consulting psychologist "for assistance with pain management and to help determine if non-structural factors are impacting on the claimant's presentation." It was further recommended that he see a physiotherapist for exercise therapy, at the end of which program, it was anticipated he would be able to return to work.

In September 1998, after an unsuccessful attempt to return to work, the claimant did see a psychologist, who noted that the claimant "is moving into a chronic pain scenario, or pain disorder with psychological and physical, perpetuating factors." The psychologist felt that an aggressive approach was necessary, beginning "with reconditioning and then with work hardening, in an integrated pain disability management setting. I would encourage there to be psychological input ."

In November 1998, he began a work hardening program, but there is no indication in the file that this was integrated with pain management and with psychological input.

In January 1999, the claimant was seen by another WCB medical advisor, who noted ". this claimant's obvious psychosocial barriers to recovery ."

As noted above, from January to April, the claimant was seen by a Physical Medicine specialist who made comments as to non-medical issues which were affecting recovery.

More than a year after his benefits were terminated, the claimant was examined by a Medical Review Panel, which made a number of observations in this regard:

• The claimant's "preoccupation with pain may intensify his pain experiences and make him vulnerable to pain avoidance behaviours. This, in turn, could interfere with the rehabilitation process ."
• His "presentation and documented history are most consistent with a Chronic Pain Disorder. The claimant is preoccupied with his pain and severely disabled by it in most areas of functioning can present a barrier to the recovery and rehabilitation process."
• The claimant "would probably benefit from a work reentry program with a psychological component ."

The panel notes that this last recommendation is virtually the same as that made by the consulting psychologist in September 1998 - twenty months earlier.

The foregoing shows that - over a two year period from May 1998 to May 2000, a number of medical advisors recommended that the claimant should receive treatment for pain management and/or other psychological factors which were affecting his recovery, with the very real possibility that a chronic pain syndrome may be present. With the exception of one examination by a psychologist in September 1998, nothing was done in this regard. The panel is of the view that this is an oversight which never should have occurred. This information was available at the time benefits were terminated, and certainly at the time of the MRP examination.

Therefore, we direct that the claimant be referred to the Pain Management Unit of the Board for a thorough examination to determine whether the claimant does suffer from a Chronic Pain Disorder or other psychological factors that may be affecting his recovery. If the finding is positive, the board should adjudicate whether or not this condition is a sequela of the compensable injury.

The panel also wishes to comment on the lack of a work reentry program. We note that, in spite of a number of references, by various medical practitioners, to the need for the claimant to engage in a work hardening/reconditioning program, there was only a brief, prematurely-terminated endeavour in this regard.

Subsequent to medical reports in May and September 1998, a work hardening program was commenced in November 1998, but terminated in December, before completion. (The claimant maintains, to this day, that the decision to terminate was not his. He wanted to continue, as he believed it to be helping.)

In February 1999, the Physical Medicine specialist - whose later report led to the termination of benefits - recommended an 8 - 12 week intensive therapy program, in conjunction with trigger point injections. This did not proceed.

In November 1999, the claimant's own consulting orthopaedic specialist gave the opinion that, after 6 - 8 weeks of conditioning, the claimant should be able to return to work, with no restrictions. This was echoed in an October 2000 report from the same specialist. There was no action on these, as they came after the claim had been terminated.

As noted above, the MRP also reported that a comprehensive rehabilitation program would likely be of benefit.

The panel is of the view that the claimant should have been enrolled in a comprehensive work reentry program which includes reconditioning, work hardening, pain management and psychological input as recommended. The future requirement for this type of program will depend on the outcomes of the PMU referral that we have recommended.

At a number of points in the file there are implications, albeit never directly stated, that the claimant is 'malingering' and does not really wish to return to work.

We wish to put this notion to rest - we found no evidence of this, at all. The claimant tried - on two separate occasions - to return to work, on his own initiative. In both cases, the attempts were not successful. Since the termination of his claim, he has pursued a number of routes, at his own cost, including having an MRI examination in the USA. We also note that the MRP, in its report, stated that his symptoms were "not the result of malingering."

Conclusion

In hearing this appeal, the panel has taken note of numerous references made by various physicians, including the MRP and WCB consultants, wherein suggestion is made that the claimant may have, or be developing, chronic pain or a chronic pain syndrome. In this regard, we find that the WCB prematurely discontinued the claimant's benefits without first taking appropriate and clearly indicated steps to determine the existence of a chronic pain condition and, more importantly, its relationship to the compensable event.

We also find that the Board was remiss in not pursuing a comprehensive rehabilitation program as recommended by various physicians.

The panel, therefore, finds that the claimant is entitled to payment of wage loss benefits retroactive to May 19, 1999. The matter is referred to the board to arrange for a full assessment of the claimant through the Pain Management Unit of the WCB and subsequent adjudication/management of the claim.

Accordingly, the appeal is allowed, as set out in these reasons.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of February, 2001