The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 16, 2001, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being November 8, 2002.

Issue

Whether or not the worker is entitled to benefits beyond December 15, 2000.

Decision

That the worker is not entitled to benefits beyond December 15, 2000.

Decision: Unanimous

Background

While working on a press during the course of her employment in a garment factory on October 12, 1999, the claimant developed neck and back pain.

The claim for compensation was initially denied by the Workers Compensation Board (WCB) as it was determined that there was insufficient evidence to establish a relationship between the claimant's neck and back difficulties and an accident arising out of and in the course of employment. The decision, however, was overturned by Review Office and the claimant commenced receiving wage loss benefits effective October 13, 1999.

The following is a brief summary of medical documentation noted throughout the claim:

• on October 18, 1999, the attending physician diagnosed the claimant with possible influenza and a back strain.
  
  
• on October 19, 1999, a second physician noted that the claimant exhibited pain in her lower back and right side of her neck. The diagnosis rendered was a back strain.
  
  
• on November 2, 1999, the claimant attended a chiropractor for treatment. The claimant complained of low back pain going into her right leg up to the knee, mid back pain as well as neck pain and stiffness. The diagnosis rendered was an L5, C5 subluxation and kyphotic cervical curves. The claimant was treated with spinal adjustments.
  
  
• in a further progress report dated November 24, 1999, the chiropractor indicated that the claimant's symptoms and examination findings may relate to inorganic causes. On December 10, 1999 the chiropractor indicated that the claimant's examination findings were inconsistent with her subjective symptoms.
  
  
• the next reports on file consisted of an x-ray report of the thoracic and lumbar spines taken on August 24, 2000 and a bone scan report of September 7, 2000. Reports were also received from an orthopaedic surgeon dated September 6, 2000 and October 2, 2000. On October 2, 2000, the orthopaedic surgeon concluded that the claimant's symptoms were due to early degenerative disease of the thoracic spine. The specialist recommended treatment in the form of physiotherapy to strengthen the claimant's back muscles along with non-steroidal, anti-inflammatory drugs if she developed any flare-ups. Surgical intervention or other investigations were not indicated at this stage.
  
  
• in response to questions posed by primary adjudication, a WCB medical advisor reviewed the medical information on file and stated in a memo dated October 17, 2000, that the diagnosis of the claimant's condition was mechanical low back pain, secondary to early osteoarthritis. He felt that on a balance of probabilities, there was a cause and effect relationship between the diagnosis and the compensable injury. The medical advisor felt that physiotherapy treatment was appropriate and that the claimant should be able to return to work once physiotherapy treatment was completed.

On November 2, 2000, the claimant's physiotherapist was contacted by a WCB adjudicator. The physiotherapist indicated that the claimant was deconditioned and that range of motion was 75% with pain. It was felt that the claimant would require at least 6-8 weeks of physiotherapy.

On November 16, 2000, the claimant was advised by a WCB case manager that it was the opinion of Rehabilitation and Compensation Services that she likely sustained an aggravation of a pre-existing condition in her back. The claimant was advised that upon completion of the physiotherapy program, she would be sufficiently recovered from her October 12, 1999 work injury. Any ongoing difficulties would be the result of her pre-existing back condition.

On November 24, 2000, the treating physiotherapist advised a WCB adjudicator that objectively, the claimant had improved a lot, however, subjectively there was still a lot of pain complaints. It was anticipated that physiotherapy treatments would be finished in 3 week's time.

In a further letter dated December 4, 2000, the WCB case manager advised the claimant that the WCB would be ending responsibility on her claim as of December 15, 2000 (the completion date of her physiotherapy program) and that no further medical treatment would be accepted. In January 2001, an advocate appealed this decision to Review Office on behalf of the claimant.

In a telephone conversation with the physiotherapist on December 18, 2000, the WCB case manager documented that the claimant continued with pain despite treatment and a call-in examination was suggested. The physiotherapist questioned whether the claimant had rheumatoid arthritis or some other inflammatory disease causing ongoing complaints. She also did not feel that she could accomplish any more because the claimant was limited by pain.

On February 16, 2001, Review Office determined that no further responsibility would be accepted for the claim beyond December 15, 2000. Review Office indicated that the medical evidence did not support that the claimant's present problems of 14 months post-injury was a direct result of the compensable injury. It was noted that the claimant was provided with extensive physiotherapy treatment and that she complained of severe pain. As the claimant had been away from work activities for 14 months and there were minimal clinical findings, Review Office did not believe that the claimant's loss of earning capacity or physical complaints were related to the workplace injury. On April 16, 2001 the claimant's advocate appealed the decision to the Appeal Commission.

On August 16, 2001 an Appeal Panel hearing took place. Following the hearing and discussion of the case, the Panel requested that an independent orthopaedic specialist examine the claimant. This examination took place on October 4, 2001 and the examination report of October 9, 2001 was distributed to parties with a direct interest for comment.

On November 13, 2001 and November 28, 2001, the Panel met further to discuss the case. It decided to refer the claimant to the WCB's Pain Management Unit (PMU) for an assessment. On February 28, 2002, the claimant was interviewed by a WCB medical advisor and a WCB psychological advisor at the WCB's PMU. Following the assessment it was determined that further clarification was required concerning the claimant's functional status prior to determining whether or not she met the diagnostic criteria for chronic pain syndrome.

On July 2, 2002, all interested parties were asked to provide comments with respect to the following information/documents that were received by the Appeal Commission:

• CT scan of the lumbosacral spine dated March 19, 2002.
• Functional Capacity Evaluation dated May 8, 2002.
• Surveillance video tapes dated May 4, 8 and 10, 2002 and May 21 and June 1, 2002 along with investigation reports dated May 16, 2002 and June 4, 2002.
• memo dated June 18, 2002 by a WCB medical advisor and psychological advisor from the PMU.

In a letter dated July 16, 2002, legal counsel, acting on behalf of the claimant, requested that the Appeal Panel meeting scheduled for July 23, 2002 be post-poned until a later date to allow sufficient time to prepare a submission on the claimant's behalf. This request for additional time was granted by the Panel. On November 8, 2002, the Panel met further to discuss the case and took into consideration a submission from legal counsel dated October 31, 2002 and a medical report dated October 25, 2002, by an occupational health physician.

Reasons

This case involves a worker, employed as a presser in a garment factory, who sustained an injury to her neck and back in October 1999. Her claim for compensation was accepted and benefits paid accordingly.

Fourteen months later, in December 2000, the board determined that her ongoing problems were not causally related to her workplace injury and terminated her benefits. On reconsideration, that decision was upheld by Review Office. She subsequently appealed to this Commission.

For her appeal to succeed, the Panel would have to determine that she continued to suffer medical problems, beyond December 15, 2000, as a result of her compensable injury. We were not able to make that determination.

In coming to our conclusion, we conducted a thorough review of the claim file, as well as holding an oral hearing at which we heard testimony from the claimant and her representative. Subsequent to the hearing, we referred the claimant to an orthopaedic specialist for an independent medical examination. We later referred her for examination by the Pain Management Unit of the board. We also reviewed other medical evidence submitted in this period. And, we reviewed surveillance tapes of the claimant going about day-to-day tasks, made by the board's investigation unit.

Subsequent to the hearing, the claimant engaged legal counsel, who made a submission after reviewing all of the above-noted information.

In his report, the orthopaedic specialist, who conducted the independent medical examination, wrote the following:

• "…. it is my opinion that the patient on December 15, 2000 had recovered from the effects of the accident of October 1999. The patient has remained symptomatic, but on objective assessment …. it is my opinion that the patient on December 15, 2000 had recovered from the injury sustained in the workplace accident of October 1999."
  
  
• "The most probable diagnosis of the patient's current condition is chronic pain."
  
  
• "There is a relationship between the patient's present chronic pain syndrome and the workplace accident …"
  
  
• "Based on the muskuloskeletal assessment of the patient, it is my opinion that the patient would be capable of returning to her regular work as a garment press operator. However, it is my opinion that the chronic pain syndrome would interfere with the patient's return to her regular job."

Based on this report, the Panel referred the claimant to the board's Pain Management Unit (PMU) for an assessment and determination as to whether or not she met the diagnostic criteria of chronic pain syndrome.

As part of its assessment, the PMU referred her for a Functional Capacity Evaluation (FCE). The FCE report noted:

• "The claimant did not complete the FCE protocol."
  
  
• "The claimant's participation during the FCE was identified not to be a full voluntary effort passing 0 of 3 validity checks."
  
  
• "There are several inconsistencies in performance of the functional testing. There appears to be a pain focus behaviour and some pain magnification behaviour …"

On a number of days in May and June of 2002, the claimant was the subject of video surveillance initiated by the board's investigation unit. This evidence was viewed by the Panelists. In addition, it was reviewed by the Pain Management Unit, which wrote in its final report:

• "Based on the claimant's observed level of activity in the videos as well as the absence of pain behaviour in those same videos, which is in contrast to the claimant's presentation and report of February 20, 2002, as well as the pain behaviour noted at the Functional Capacity Evaluation dated May 8, 2002, it is the opinion of the Pain Management Unit that the claimant does not meet the diagnostic criteria for chronic pain syndrome as the disability is not proportionate in all areas of functioning."

In his submission to the Panel, the claimant's legal counsel submitted a report of an examination conducted by an occupation health specialist. This physician noted that the "video evidence demonstrates her thoracic kyphosis slow movements."

Counsel submitted that, as this opinion differs from that of the board's medical advisors, a Medical Review Panel should be convened, pursuant to section 67(4) of The Workers Compensation Act. We would note, however, that this opinion does not meet the criteria of section 67(1), which requires that the opinion be a "full statement of the facts and reasons supporting a medical conclusion."

In coming to our decision we placed considerable weight on the report of the independent medical examiner, who concluded that she had physically recovered from the effects of her injury, and the report of the Pain Management Unit, which concluded that she did not meet the diagnostic criteria for chronic pain syndrome.

Therefore, we have concluded that - on a balance of probabilities - her medical problems after December 15, 2000 were not causally-related to her workplace injury.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of December, 2002