Decision #101/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 1, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being August 13, 2002.

Issue

Whether or not the worker's current symptomatology is causally related to the compensable injury; and

Whether or not the worker is entitled to wage loss benefits beyond June 5, 1995.

Decision

That the worker's current symptomatology is causally related to the compensable injury; and

That the worker is entitled to wage loss benefits beyond June 5, 1995.

Decision: Unanimous

Background

In November 1992, the claimant submitted an application for compensation benefits indicating that she had been having trouble with both shoulders, arms and wrists for two years. During the last year, the claimant said she took anti-inflammatory medications as her pain was intensifying with constant numbness and tingling in her fingers. Further file information revealed that the claimant experienced pain in her elbows, fingers and neck.

Following review of the claimant's job description as well as initial medical information, the Workers Compensation Board (WCB) denied the claim for compensation in May of 1993 as it could not establish a relationship between the claimant's job duties and her medical condition. This decision was overturned on June 2, 1994, when primary adjudication accepted the claim on the basis of a medial epicondylitis and right sternomastoid muscle strain which was attributed to the claimant's repetitive work duties.

On July 4, 1994, a WCB medical advisor assessed the claimant. The claimant suffered from fibromyalgia and possibly some myofascial pain involving the supraspinatus and infraspinatus bilaterally. The medical advisor did not believe that the claimant's current condition was work related as the claimant laid off work in April of 1993. The medical advisor was of the opinion that any work related musculoskeletal pathology should have resolved in a few months' time when the claimant stopped working.

In a letter dated July 18, 1994, an Occupational Disease Unit supervisor advised the claimant that disability benefits would be paid from February 9, 1994 to July 25, 1994 inclusive. The supervisor referred to the opinion expressed by the WCB medical advisor on July 4, 1994. The supervisor pointed out that it was initially the WCB's position that the claimant may have suffered from epicondylitis and a right sternomastoid strain. It was now believed that the claimant's current problems were not related to these diagnoses. There was no evidence to suggest that the claimant's fibromyalgia was work related.

Additional medical information was received from a physical medicine and rehabilitation specialist (physiatrist) who had assessed the claimant in October 1994. The physiatrist's impression was that the claimant suffered from myofascial pain that was work related. On December 28, 1994, the WCB's Occupational Disease Unit accepted the diagnosis of myofascial pain and wage loss benefits were reinstated to the claimant effective July 26, 1994.

On May 29, 1995, primary adjudication determined that the claimant was not suffering from myofascial pain but rather from fibromyalgia. Since there was no longer a cause and effect relationship between the claimant's complaints and her compensable accident, wage loss benefits were paid to June 5, 1995 inclusive and final.

In a July 6, 1995 letter to a worker advisor, the treating physiatrist expressed disagreement with the WCB's position concerning the claimant's medical status. On August 23, 1995, primary adjudication determined that the physiatrist offered no new evidence that would warrant a change to the May 29, 1995 decision.

In 1997, a worker advisor referred to a second physiatrist's report dated March 25, 1997, which stated that the claimant's signs and symptoms were consistent with myofascial pain syndrome and that her presentation did not fit the diagnosis of fibromyalgia. The physiatrist felt that the claimant's work activities caused continuous strain in her muscles as her symptoms improved since being laid off work. Based on this opinion and that expressed by the physiatrist on July 6, 1995, the worker advisor contended that the claimant was entitled to retroactive benefits. If the WCB was unable to reverse its decision, a Medical Review Panel (MRP) pursuant to Section 67(4) of the Act was suggested. On July 2, 1997, the request for a MRP was granted and a MRP took place on September 12, 1997.

Following a review of the MRP's September 12th findings and opinion, primary adjudication determined that no change would be made to its previous decision and that the claimant was not entitled to further benefits or services. In a letter to the claimant dated September 29, 1997, primary adjudication stated, "It is noted the Medical Review Panel offered the opinion you do not continue to suffer the direct effects of the work injury. They also commented that your present diagnosis has no direct relationship to the work related injury." On February 18, 2000, the claimant's solicitor appealed the decision to Review Office and the following issues were raised:
  • whether or not the claimant's continuing diagnosis of chronic myofascial pain syndrome was a work related injury;
  • whether or not the MRP failed to review the claimant's primary diagnosis of chronic myofascial pain syndrome and so the findings of the Panel could not be relied upon by the WCB to deny that the claimant suffered from a compensable injury; and
  • whether or not the claimant was entitled to further wage loss benefits.
In a decision of March 17, 2000, Review Office determined that there was no indication that the findings of the MRP should not be allowed to stand as suggested by the claimant's solicitor. It was recognized that the panel was made up of orthopaedic specialists that were selected by the claimant and accident employer. The panel was an independent body over which the WCB did not have influence or standing. As Review Office accepted the MRP's findings and found no indication that a new MRP should be convened, it found that the question of the continuing diagnosis of chronic myofascial pain syndrome as related to work became a non-issue. There was no reason to conclude that the claimant's continuing difficulties were related to the original condition in light of the fact that she had not worked since 1993.

With respect to payment of benefits, Review Office found no indication that the claimant should be compensated beyond June 5, 1995. On March 30, 2001, the claimant's solicitor appealed the decision and a non-oral file review was held on June 8, 2001.

At the June 8, 2001 review, the Panel determined that an oral hearing should be convened to give the Panel members the opportunity to speak with the claimant about her compensable injury and her entitlement to wage loss benefits.

On October 1, 2001, an Appeal Panel hearing was convened. Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be assessed by an independent physiatrist. The claimant was assessed by an independent physiatrist on November 19, 2001 and a copy of his examination report dated November 26, 2001, was distributed to the interested parties for comment.

On January 18, 2002, the Panel met further to discuss the case. It decided to convene a MRP pursuant to section 67(3) of the Workers Compensation Act (the Act) to assist in its deliberations with the issues under appeal. An MRP took place on June 14, 2002 and the MRP's findings and opinions were forwarded to the interested parties for comment. On August 13, 2002, the Panel met to render its final decision on the issues under appeal.

Reasons

This case involves a worker who originally complained of problems with her shoulders, arms and wrists. Although originally denied, her claim was eventually accepted as compensable, specifically for medial epicondylitis and sternomastoid muscle strain.

Benefits were paid until July 1994, when a board medical advisor diagnosed her condition as fibromyalgia, which was not related to her work.

Eventually, she was diagnosed as suffering from myofascial pain syndrome and benefits were re-instated. In May 1995, the board, once again, determined that her diagnosis should be fibromyalgia, not myofascial pain. As the cause of the fibromyalgia was not work-related, her benefits were cut off in June 1995.

Following an examination by a Medical Review Panel, in 1997, the board upheld the earlier decision to terminate her benefits, as her ongoing condition was not work-related. In early 2000, she requested that Review Office reconsider her case. Review Office upheld the earlier adjudication decisions. She appealed that decision to this Commission.

For her appeal to be successful, the Panel would have to determine that her current medical condition is causally related to her employment. Based on a thorough and extensive review of this case, we have determined that there is a link between her work and her current diagnosis of soft tissue pain.

In coming to our decision, we had the benefit of an oral hearing, at which we heard testimony from the claimant and from her family doctor, as well as argument from her legal counsel.

Subsequent to the hearing, the Panel decided that it needed further medical evidence and referred the claimant for an independent medical examination by a specialist in physical medicine and rehabilitation, who provided us with his opinion. Her treating specialist strongly disagreed with the opinion of the independent examiner. To help us clear up this contradiction, we referred the claimant to a Medical Review Panel, pursuant to subsection 67(3) of The Workers Compensation Act.

Issue #1 -- Is her current symptomatology causally related to her compensable injury?

Throughout the history of this claim, there have been differences of opinion as to the exact nature of her diagnosis, which continue to this day. It is incumbent on the panel to determine a likely diagnosis - on a balance of probabilities - and to determine if it is related to her workplace activities.

In June 2000, the claimant was examined by a specialist in physical medicine and rehabilitation, to whom she was referred by her legal counsel. He concluded that the correct diagnosis is myofascial pain syndrome (MPS). In his first report, he traced the history of the consideration of this as a diagnosis.

We note from his and other medical reports on file:
  • The possibility of MPS was first raised in an internal memo by a board doctor in November 1993 and repeated by this same doctor in another memo in June 1994.

  • The report of a "call-in" examination, in July 1994, raised the possibility of MPS or fibromyalgia and recommended further examination by a specialist.

  • The first specialist in physical medicine and rehabilitation to examine her, in October 1994, concluded that she "has myofascial pain in the above muscles and that this is definitely related to the repetitive type of work that she was doing ."

  • This specialist also concluded that the claimant did not have generalized fibromyalgia.

  • On the basis of this report, the board accepted the diagnosis of MPS and reinstated her benefits.

  • On May 29, 1995, the board wrote to the claimant informing her that her benefits were to cease on June 5, 1995. The letter stated that it was the board's opinion "that you are not suffering from myofascial pain but rather from fibromyalgia (general muscle pain of unknown cause.)

  • This conclusion was based, not on a specific examination for fibromyalgia, but on the written opinion of a board doctor that she likely had fibromyalgia. (Our emphasis.)

  • In March 1997, she was seen by another physical medicine and rehabilitation doctor, who concluded that her "signs and symptoms are most consistent with myofascial pain syndrome. Her presentation does not fit a diagnosis of fibromyalgia, according to the criteria set by the American College of Rheumatology."

  • He noted that she was tender at 6/18 points, whereas the criteria for diagnosis require more than 10/18.

  • In a June 1997 memo, the board doctor who had examined her and commented on her file accepted this diagnosis. Curiously though, he expressly did not change his May 1995 opinion, which had led to the cut-off of her benefits.

  • In September 1997, she was examined by a Medical Review Panel (MRP). For some reason, she was examined by orthopaedic specialists. Although the decision to reinstate and, subsequently, terminate her benefits had hinged on the diagnosis of myofascial pain or fibromyalgia, neither condition was examined by the MRP.

  • The conclusions of the MRP formed the basis of the decision, by Review Office in March 2000, to uphold the adjudicator's 1995 decision to terminate benefits.

  • In June 2000, she was seen by a third physical medicine and rehabilitation specialist. He concluded that she should never have been diagnosed as having fibromyalgia and "that the diagnosis of myofascial pain syndrome continued to be the diagnosis related to her compensable accident ."
The independent medical examiner, to whom we referred the claimant, in November 2001, concluded that she did not meet the diagnostic criteria of myofascial pain. In his report, he made the following comments:
  • ". she does not meet the diagnostic criteria for a particular anatomic pain generator syndrome, and her condition may be best described qualitatively as a chronic one of unknown etiology."

  • ". the claimant's non-responsive to trigger point injections demands explanation if the diagnosis [Myofascial Pain Syndrome] is still to be considered. many of the features of the claimant's condition . are features not associated with Myofascial Pain Syndrome."

  • ". on the balance of probabilities, a medically probable cause and effect relationship between the claimant's current condition and her former work as an electronics assembler does not exist."
In December 2001, subsequent to the commission-requested independent medical examination, the claimant was again examined by the above-noted "third" physiatrist, who again concluded that the proper diagnosis was myofascial pain syndrome. He strongly disagreed with the findings of the independent medical examiner. He wrote:
    "The findings described above are objective and fit the international criteria for a clinical diagnosis of myofascial pain syndrome due to trigger points."
With respect to the causal relationship, he wrote:
    ". based on the evidence I reviewed and my own current history and physical examination, on the balance of probabilities there is a definite diagnosis and probable cause and effect relationship between the claimant's current medical condition and her former work as an electronics assembler."
The second Medical Review Panel, conducted in the discipline of physical medicine and rehabilitation, came to the following conclusions:
  • "The Panel feels that [the claimant's] pain is of soft tissue origin, but we are unable to be more specific or fit it into a more specific syndrome."

  • ". the Panel does not feel she has myofascial pain syndrome."

  • "It would appear that her symptoms began in the late 1980's and early 1990's as a result of her repetitive work related activity. This continues to be a problem to the present, especially if she once again overuses the arms. We do feel that her continuing symptoms still relate to her prior workplace activities."

  • ". it would appear that her symptoms in 1995 were consistent with her current symptoms, and the symptoms that she had at the time of her stopping work. . the Panel does not have a specific pathologic diagnosis, but do feel she has ongoing soft tissue pain related to repetitive work."
The claimant's attending physical medicine specialist made the following comments in response to the report of the MRP:
  • "It is my opinion that the findings on physical examination as documented by the panel members is characteristic of findings that would be expected with a diagnosis of myofascial and ligamentous trigger points."

  • "Whether it is called myofascial pain syndrome or soft tissue pain syndrome, the fact remains that she has symptoms and signs that have been persistent ever since her work related injury on a temporal basis. She clearly does not have fibromyalgia."
The preponderance of evidence, as outlined above, has led us to the following unanimous conclusions.

We conclude that the adjudicative decision, made in May 1995, was based on a speculative diagnosis. Given the serious repercussions of such a decision, it is our view that the diagnosis should have been confirmed. She should have been examined to determine whether or not her signs and symptoms met generally accepted criteria.

We conclude that the decision to have the first MRP convened in the discipline of Orthopaedics was incorrect. As her claim had originally been for carpal tunnel syndrome (which was not accepted), and then for medial epicondylitis and sternomastoid muscle strain, this would have been the correct discipline at a very early stage in the claim. However, by 1997, her claim had revolved around myofascial pain and/or fibromyalgia. The discipline should have been physical medicine and rehabilitation.

This led to the Review Office decision of March 2001. Based on the MRP report, the decision of the adjudicator was upheld. Had the MRP used the proper discipline, however, the Review Office may well have come to a different conclusion.

We accept the conclusions of the recently convened MRP that she continues to suffer from a soft tissue pain syndrome which is causally related to her workplace activities.

We also accept the position of her treating specialist that it matters not whether the diagnosis is 'soft tissue' or 'myofascial' pain syndrome. It is still an ongoing, disabling condition related to her employment.

Accordingly, the appeal on the first issue is allowed.

Issue #2 -- Is the claimant entitled to wage loss benefits beyond June 5, 1995?

In a word, yes.

But, the Panel is of the view that she may not have been totally disabled from all employment.

We note and accept the conclusion of the first MRP and the 2001 independent medical examination that she is deconditioned and that this led to her difficulties in performing everyday tasks, as well as performing any type of work, even work considerably less strenuous than her previous job as an electronics assembler.

At the same time, we note the following finding of the 2002 MRP in this regard:
    "The Panel feels that [the claimant] should be restricted from work which requires repetitive use of her arms. it would appear at the moment that these are permanent."
The Panel has neither the evidence before us, nor the expertise, to determine the extent to which the claimant may have been able to mitigate her loss of earning capacity. Thus, this matter is referred back to the appropriate division of the board to make this determination.

Accordingly, the appeal on this issue is allowed to the extent described above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 13th day of September, 2002

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