The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 13, 2002, at the request of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she was not entitled to benefits after October 10, 1995. The Panel discussed the appeal on March 13, 2002.

Issue

Whether or not the claimant is entitled to benefits beyond October 10, 1995.

Decision

The claimant is entitled to benefits beyond October 10, 1995.

Decision: Unanimous

Background

This case was previously the subject of an Appeal Panel hearing held on February 18, 1999. For complete details surrounding the background of this case leading up to this hearing, please refer to Appeal Panel Decision No. 56/99 dated April 9, 1999.

Briefly, the claimant developed back, neck, shoulder and arm pain after repeatedly lifting boxes down from a stack on July 11, 1995. On July 12, 1995, hospital records showed that the claimant was diagnosed with a viral illness and leukopenia. When seen again on July 13, 1995, the claimant was diagnosed with headache and on July 20, 1995 the diagnosis was tendonitis/bursitis shoulder. On July 26, 1995 a chiropractor diagnosed cervicodorsal strain. The Workers Compensation Board (WCB) approved the claim as "non-specific" and the claimant commenced receiving wage loss benefits as of July 12, 1995.

On October 2, 1995, the claimant was advised that wage loss benefits would discontinue on October 10, 1995. Following consultation with a WCB chiropractor, it was determined by the WCB that the claimant had recovered from the effects of her compensable injury and that her ongoing symptoms were entirely related to her pre-existing condition, i.e. advanced cervical degenerative changes and disc disease.

Subsequent to the above decision, an orthopedic specialist noted that the claimant was treated for left shoulder pain. The diagnosis rendered was subacromial bursitis which the claimant related to her July 1995 injury.

In December 1995, a union representative appealed the WCB's decision to discontinue benefits as it was contended that the claimant's difficulties were related to her work injury and that there was no evidence of a pre-existing condition. The claimant was later assessed by a WCB medical advisor on February 9, 1996, to determine her current status and functional capabilities. Following the examination, the medical advisor concluded that due to the claimant's abnormal illness behavior and inconsistent findings, he was unable to support a diagnosis of left subacromial impingement syndrome. Also, the medical advisor did not believe that the WCB was responsible for the claimant's present and varied complaints.

On March 8, 1996, Review Office accepted that the claimant had tendonitis/bursitis of her left shoulder and possibly a cervical dorsal strain resulting from her employment activities. On a balance of probabilities, Review Office ruled that these conditions did not continue to disable the claimant from work beyond October 10, 1995. Review Office pointed out that the claimant was discharged from chiropractic treatment and was found fit for suitable employment by August 25, 1995.

In 1997 a worker advisor requested Review Office to reconsider its position of March 8, 1996, based on a report from a physiatrist dated March 8, 1996 and/or convene a Medical Review Panel under Section 67(4) of the Workers Compensation Act (the Act). The convening of an MRP was granted by Review Office and was later held on October 3, 1997.

On November 14, 1997, Review Office ruled that the claimant was not entitled to benefits beyond October 10, 1995 due to the following factors:

• the claimant had no ongoing physical findings resulting from the accident that would have accounted for her claim of total disability. This conclusion was based on the comments expressed by the MRP panelists which indicated that the claimant had sustained a soft tissue strain following the 1995 accident.
  
  
• the claimant's abnormal behavior and any psychological conditions were not considered to be compensable since they did not arise directly out of an injury, but rather they arose from interactions within the workplace. This conclusion was reached based on the comments made by the MRP panelists in its report of October 3, 1997.

Following an Appeal Panel hearing held on February 18, 1999, the Panel found that the weight of evidence did not support the claimant's contention of a total loss of earning capacity as a consequence of the 1995 accident. The following is an excerpt from the Panel's decision of April 9, 1999:

"Following its examination, the MRP concluded that the claimant's diagnosis as a result of the 1995 accident would most probably have been a soft tissue strain. The present diagnosis being: 'There is evidence of Mechanical Low Back Pain with x-ray evidence of lumbar spondylosis. There is also spondylosis of the cervical spine with x-ray evidence. These changes are probably responsible for her shoulder pain.' The MRP panelists further agreed that the claimant was disabled mainly from the effects of the 1990 injury due to the development of psychological problems related to dysfunction in her workplace. The claimant has not yet recovered and her abnormal behaviour continues."

On a balance of probabilities, the Panel concluded that the claimant had recovered from the effects of her accident by the time the WCB discontinued paying benefits and was therefore not entitled to benefits beyond October 10, 1995.

In August 2001, reconsideration of Appeal Panel Decision No. 56/99 was requested based on additional medical information. On October 2001, the Chief Appeal Commissioner granted reconsideration and the claimant's case was heard by a new Appeal Panel on March 13, 2002.

Reasons

The claimant has requested that this panel find that she is entitled to benefits beyond October 10, 1995. This request relates to an injury suffered by the claimant on July 11, 1995. At that time the claimant sustained a compensable injury to her neck and upper back related to the repetitive motions of her work duties. She was diagnosed with tendonitis and bursitis of her left shoulder. It was noted in the numerous medical reports obtained and filed on behalf of the claimant that she not only had pre-existing conditions of her cervical spondylosis and advanced cervical degenerative joint and disc disease but also that she had suffered a total of twenty-seven compensable injuries in the past. Although the majority of these injuries were cuts and bruises with no time loss, three of those compensable injuries related to serious bodily injuries.

One of these injuries in 1985 and a recurrence in 1991 related to an injury to the claimant's right knee. Although a permanent partial disability "PPD" was awarded in relation to this claim, the right knee continued to affect the claimant up until recently when she underwent knee replacement surgery.

Another injury suffered in 1990 involved the claimant's right arm. This injury resulted in surgery to her right wrist to repair carpal instability and associated weakness in the luno-triquetial and scapholunate ligaments. The claimant was awarded a PPD in relation to this claim.

With respect to the 1995 injury which this claim involves, benefits were terminated on October 10, 1995 as it was believed that the claimant had recovered from the effects of her injury and that the underlying symptoms and discomfort were attributable to her pre-existing conditions. A subsequent Medical Review Panel did not lend support to a continuation of benefits beyond October 10, 1995 as they found that the claimant's primary problem was a psychological response to problems the worker experienced in the workplace, and that these problems were related to workplace conditions and not the result of workplace injuries.

The Appeal Commission agreed that benefits should not be extended beyond October 10, 1995 in a decision granted on February 18, 1999. This decision was made after an analysis of the evidence that was in existence at that time.

Since 1999 the evidence has been quite clear that the claimant began to experience anxiety around October 1995 as her WCB benefits were terminated. This anxiety had become so severe that the claimant, at the time of the hearing of this matter, was quite incapacitated and unable to perform any regular duties including both workplace and household duties. Her days consisted mostly of sleeping, with her husband having to maintain the household.

New medical evidence that has been obtained since the last Appeal Hearing on a balance of probabilities, supports the position that there is indeed a connection between the claimant's psychiatric and medical conditions that she has experienced since 1995 and the compensable accident.

The claimant's treating psychiatrist who has been treating her since March 27, 1998 suggests that there is a relationship between her problems and this claim as well as the accumulated impact of previous work-related claims. In his October 16, 2000 report, the treating psychiatrist made the following observations:

It is doubtless true that her many physical injuries reported and the concomitant pain have predisposed the patient to panic disorder and a major depression. This, along with the financial hardship she suffered when her Workers Compensation funding was stopped, may well have led to her problems. There also is an issue of chronic pain and the patient was placed on Vioxx by me with good results.

I do believe that at least in whole or in part, the chronic pain and the long medical history of this patient due to injuries and subsequent surgeries, did contribute to her depression and her panic disorder. While the most severe part of her illness did occur as a result of her Workers Compensation cheques being stopped, according to the history that I have recorded in my chart, the fact is that she was predisposed to that reaction by her long past medical history.

On November 1, 2000, the WCB medical consultant was asked to and offered an opinion on whether or not there was any evidence that the claimant's psychological conditions arose as a direct result of the previous compensable injuries suffered by the claimant. His opinion was:

Yes. Evidence supports that psych problems related to C/I's (compensable injuries). No objective evidence. Evidence is from the history + objective findings of her physical injuries. Developing a formulation (or understanding) of how and why she developed a psychiatric problem is not really objective process, but rather is a process based on objective information/evidence. In doing this formulation, it seems reasonably clear that the onset of her psych problems were in large part (although likely not totally) based on her physical complaints and pain. Her history and Dr.'s [name] history corroborate each other in that no past psych history is present.

In her case, if she had not had these physical injuries (which largely resulted in her depression), would she have depression at the time? I cannot argue this with any precision. However, the main factor causing ongoing problems with depression at this time is that she had a significant problem with depression in 1997/98, and that main causative factor is related to her injuries and pain.

Finally, the evidence reveals that the WCB arranged for the claimant to meet and be examined by a Board Psychiatric Consultant. In his report dated April 9, 2001, this consultant relied on the following information to come to his conclusion:

1. the claimant had a history of many work related injuries for which she received WCB benefits;
2. there is some support in the evidence to indicate that the 1995 injury to the claimant's neck and upper back caused an ongoing problem for the claimant (this support consisted of an orthopaedic surgeon note of December 24, 1995 at which he injected the claimant's left shoulder with Depo-Medrol);
3. the Rehabilitation Medicine physician, in his report dated February 17, 1997, indicated that the claimant had "chronic work related traumatic regional myofascial pain and dysfunction in neck and shoulder girdle";
4. the claimant indicated herself that she had "failure in coping and depression in response to chronic pain";
5. the neck and shoulder problem was listed as a first diagnosis in the report of the Rehabilitation Medicine physician;
6. also listed in the above noted report was the claimant's degenerative joint disease in the left thumb, left piriformis syndrome, chronic sleep dysfunction and finally, the "failure in coping and depression in response to chronic pain."

As a result of all of the above and after reviewing the opinion of the claimant's treating psychiatrist referred to earlier herein, the Board's Psychiatric Consultant was of the opinion that both the neck and shoulder pain were work related and that this was at least partly the reason for the claimant's failure to cope with depression.

Accordingly, the opinion of the Board's Psychiatric Consultant was summarized as follows:

1. On the balance of probabilities, her compensable injury of 1995 is part of the reason for her chronic pain which ultimately contributed significantly to the development of her major depressive episode in 1997.
   
   
2. There are certainly other factors that would have contributed both to her ongoing pain conditions as well as to the development of her depression. These factors would include prior work related injuries and stressful interpersonal relationships and events at her worksite.

After having reviewed and analyzed all of the above noted new information, this Panel is of the unanimous opinion that the claimant is entitled to benefits beyond October 10, 1995.

Panel Members

K. Dunlop, Q.C., Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of May, 2002