Decision #154/03 - Type: Workers Compensation
Preamble
A non-oral file review was held on April 16, 2003, at the claimant's request. Following discussion of the case on several occasions, the Panel requested and received additional information which was forwarded to the interested parties for comment. On November 13, 2003, the Panel met to render its final decision with respect to the issue under appeal.Issue
Whether or not the worker is entitled to wage loss benefits beyond October 30, 2001.Decision
That the worker was not entitled to wage loss benefits beyond October 30, 2001.Decision: Unanimous
Background
While employed as a truck driver on November 17, 1999, the claimant was climbing up the side of his truck when he fell, landing on his left shoulder. Initial medical reports diagnosed the claimant with a soft tissue contusion and musculoskeletal pain in the left side of his upper back. X-rays of the left shoulder and scapula revealed no fracture or dislocation and there was no significant bone or joint abnormality demonstrated. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the claimant.In January 2000, the attending physician diagnosed the claimant with mild degenerative changes of the left shoulder and the possibility of a rotator cuff injury. Treatment consisted of physiotherapy and a referral to an orthopaedic specialist.
On September 23, 2000, the orthopaedic specialist reported that the claimant's CT arthrogram which was performed on August 31, 2000, did not demonstrate any abnormality. The claimant continued, however, to complain of severe shoulder pain. Examination of the shoulder revealed "diffuse and not particularly anatomic tenderness about the shoulder which appears somewhat exaggerated. Much of the tenderness is not present with distraction. Range of motion is still limited, with active forward elevation to 90 degrees and abduction to 60 degrees. There is no obvious wasting of the shoulder today." The specialist stated he did not have a good anatomic diagnosis for the claimant's ongoing shoulder pain. He thought "…we should continue to address the potential rotator cuff injury with range of motion and strengthening exercises…". The surgeon stated there was no indication for surgery and that the claimant could safely return to work.
On September 22, 2000, the claimant was advised by the WCB that based on the weight of evidence, he had recovered from his soft tissue left shoulder injury and that compensation benefits would terminate on September 29, 2000. This decision was later rescinded based on additional medical evidence and benefits were reinstated effective September 30, 2000.
On January 17, 2001, a WCB medical advisor assessed the claimant. The medical advisor could not clarify the musculoskeletal basis for the claimant's presentation, one that was markedly limited with respect to the left shoulder and to a lesser extent cervical function. He stated that the overall nature of the examination findings at the left upper extremity was not readily explainable on an anatomic basis. The examination findings and degree of symptomatology reported over the course of the left shoulder, upper extremity examination were significantly greater than what would typically be anticipated in view of the January 17, 2000 shoulder x-rays and the CT arthrogram findings of August 31, 2000. It was recommended that the claimant have repeat left shoulder x-rays and that he undergo an open MRI to clarify the status of the subacromial structures.
The claimant was assessed by an orthopaedic surgeon on March 21, 2001. He was of the opinion that the claimant had rotator cuff impingement and a possible rotator cuff tear, with C5-C6 disc degeneration and possible nerve root symptoms. The specialist felt that further left shoulder assessments were required and that the claimant would benefit from further physiotherapy and anti-inflammatory treatment of his neck.
On March 6, 2001, a CT scan of the cervical spine revealed a small posterior osteophyte at C3-4 and C4-5 with minimal encroachment on the spinal canal. The neural foramina was symmetric and there was no significant spinal stenosis or disc herniation identified.
On March 26, 2001, a left shoulder arthrogram was performed. The shoulder arthrogram was negative for a rotator cuff tear.
In a report dated April 18, 2001, the treating orthopaedic specialist noted shoulder impingement with severe tenderness in the shoulder itself. The claimant still had weakness with external rotation although he had a negative arthrogram when evaluated for a rotator cuff tear. The specialist was satisfied that non-surgical treatment would not work and that the claimant required arthroscopic decompression.
On May 15, 2001, x-rays of the left shoulder with outlet view revealed no bone or joint abnormality.
In a May 15, 2001 report, the initial orthopaedic specialist said he continued to be at a loss to ascribe a diagnosis to the claimant's problem aside from a chronic pain syndrome. While an arthroscopy of the shoulder for diagnostic purposes could possibly be beneficial, the specialist's impression was that the yield would be very low and he was not planning to proceed with any surgery at this point. He felt that the claimant may benefit from further non-operative measures such as an exercise program, physiotherapy or possibly a referral to a pain clinic.
On May 17, 2001, the treating surgeon reported that the claimant would be booked for arthroscopy with arthroscopic decompression. He noted that assessment of the shoulder still showed impingement of the shoulder with tenderness over the rotator cuff. On June 18, 2001, a WCB medical advisor informed the surgeon that the WCB would not accept financial responsibility for the proposed left shoulder arthroscopic decompression.
In April and July 2001, a surveillance videotape was taken of the claimant's activities. The surveillance videotape was then reviewed by a WCB orthopaedic consultant on October 11, 2001. The consultant was of the opinion that based on the video tape evidence, there was no continuing evidence of loss of function in the left shoulder and upper limb arising out of the workplace injury of November 17, 1999. He felt that the claimant's loss of earning capacity no longer existed.
On October 23, 2001, the claimant was informed by the WCB that he was no longer entitled to benefits or services beyond October 11, 2001 based on the surveillance videotapes which showed no evidence in loss of range of motion or pain. It was also confirmed that the WCB would not accept responsibility for the proposed left shoulder arthroscopic decompression surgery. This decision was appealed by the claimant on December 7, 2001. On November 13, 2001, the attending orthopaedic specialist stated that the claimant still had chronic left shoulder pain and decreased range of motion and believed that the claimant had rotator cuff impingement.
In a decision dated February 1, 2002, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond October 11, 2001. Review Office indicated that the claimant continued to complain of ongoing problems in his left shoulder, which had worsened over time. Repeated investigations failed to detect any pathology in the claimant's left shoulder to account for his ongoing complaints. Medical practitioners suggested a degree of exaggeration in the claimant's presentation, and have stated that much of his pain and tenderness was not present when he was distracted. Review Office believed, based upon all the evidence, that there was no satisfactory medical basis to suggest any ongoing correlation between the claimant's ongoing complaints and his November 17, 1999 compensable accident.
On April 19, 2002, Review Office wrote the claimant to advise that it had reviewed additional medical reports that were submitted by an occupational health physician dated March 25, 2002 and an operative report by the treating orthopaedic surgeon. Review Office said it was unable to accept the opinion expressed by the occupational health physician that the claimant was suffering from myofascial pain syndrome related to the November 17, 1999 accident. The operative report findings were reviewed by a WCB orthopaedic consultant who felt that there were no reported findings at surgery which could be attributed to the claimant's November 17, 1999 accident. Based on these factors, Review Office indicated that it was unable to alter its previous decision.
On July 4, 2002, Review Office responded to correspondence written by the claimant dated June 9, 2002. Concerning the issue of myofascial pain, Review Office noted that it had consulted with the WCB medical advisor who had examined the claimant on January 17, 2001 and he found no evidence of myofascial pain syndrome. Review Office did not accept that the subsequent development of myofascial pain syndrome could reasonable be associated with the claimant's work injury of November 17, 1999.
On January 9, 2003, Review Office extended benefits to October 30, 2001 as it was Review Office's opinion that the claimant should have been entitled to wage loss benefits for one week after the case manager's October 23, 2001 letter based on existing WCB practice with respect to termination of benefits. On January 29, 2003, the claimant appealed the Review Office's decision of February 1, 2002 and a non-oral file review was held on April 16, 2003.
Following discussion of the case, the Panel determined that additional information was required prior to discussing the appeal further. Specifically, the Panel referred the case back to the WCB's healthcare branch to arrange for the claimant to be re-examined by the WCB medical advisor who had previously examined him on January 17, 2001. The medical advisor was asked to review all the medical reports on file that were received subsequent to his January 17, 2001 examination and to provide the Appeal Panel with his opinion concerning whether or not a causal relationship existed between the his current symptoms and his compensable accident of November 17, 1999.
On June 16, 2003, the Panel met further to discuss the case in light of a submission by the claimant dated June 6, 2003. At the conclusion of the meeting, the Panel decided to have the claimant examined by an independent specialist instead of by the WCB medical advisor as noted above. On September 22, 2003, the claimant was assessed by the independent specialist and his report dated September 13, 2003 was distributed to the parties with a direct interest. On November 13, 2003, the Panel met to render its final decision with respect to the issue under appeal.
Reasons
This case involves a long-distance truck driver, who injured his shoulder as a result of a fall from the cab of his truck in November 1999. His claim for compensation was accepted and benefits were paid accordingly.His benefits were terminated in October 2001, as it was determined that he was no longer suffering any loss of function in his left shoulder and upper limb. This decision was upheld upon reconsideration by Review Office. He appealed that decision to the Appeal Commission.
For his appeal to be successful, the Appeal Panel would have to determine that he continued to have a loss of earning capacity, beyond October 30, 2001, as a result of his workplace injury. We did not come to that conclusion.
In reaching our decision, we conducted a thorough review of the claim file, as well as seeking further medical information subsequent to our initial consideration of the issue.
As is well-documented in the "Background" section, there was some difference of medical opinion in respect of the claimant's problems. There was some debate as to the exact nature of his shoulder problem, with physicians, in general, unable to find any anatomical reason - through clinical examination and diagnostic testing - to explain the pain he was experiencing. One physician recommended surgery, while others did not feel surgery would be of any benefit.
There were also differing views as to whether or not the claimant is suffering from myofascial pain syndrome (MFP) and, if so, whether or not this is attributable to his workplace injury. A board medical advisor, in January 2001, tested for, but found no evidence of MFP. A year later, a specialist in occupational medicine suspected MFP and referred the claimant to a specialist in rehabilitative and physical medicine, who diagnosed MFP, and expressed the opinion that it "is a direct result of his work-related injury."
To assist us in reaching conclusions on these issues, we ultimately chose to refer the claimant to a specialist in physical medicine and rehabilitation for an independent medical examination.
We placed considerable weight on the findings of this independent examiner. We took particular note of a number of his findings. In respect of his diagnosis of "probable left rotator cuff tendinopathy", he reported the following:
- "A rotator cuff tendinopathy implies a disorder that results in shoulder joint dysfunction such that the rotator cuff … is abnormally loaded or comes into contact with the bony or ligamentous structures that encompass it."
- "In the setting of a Diabetic at age 52 (in November 1999) with possible underlying peripheral vascular occlusive disease, there are several pre-existing intrinsic factors potentially contributing to and perpetuating a chronic tendinopathy."
- "Several months after the onset, the clinical picture appears to change as it evolves to include more widespread symptoms and apparently involves distal body parts."
- "Whereas in earlier correspondence his clinical impression was consistent with a rotator cuff disorder, the later reports indicate a clinical picture that didn't add up with negative imaging studies and clinical features that were inconsistent with a rotator cuff disorder."
- "It is probable that the claimant's mechanism of injury … was of sufficient magnitude to result in bodily injury. … The temporal relationship between the cause and the effect is appropriate. However, the temporal relationship between the fall and the onset of neck and distal upper body limb symptoms is not. Accordingly, a causal link between these latter symptoms and the work-related injury does not exist."
- "The magnitude and duration of the effect (e.g. the shoulder injury) is atypical. … The atypical features, therefore, challenge the notion that the current shoulder condition is as a result of incomplete anatomic healing from a post-traumatic event."
- "In summary, the claimant's pain complaint is associated with many precipitating and perpetuating factors. The current, more diffuse clinical presentation is not consistent with a focal anatomic lesion, or the result of a single traumatic event."
Having noted that the claimant "frequently displayed various pain behaviours", the independent medical examiner noted the following with respect to myofascial pain syndrome:
- "Given that soft tissue diagnoses such as Myofascial Pain Syndrome are highly reliant on the subjective interpretation of pain provocation, establishing the particular diagnosis is entirely unreliable in the setting of a patient who appears to have heightened reactivity to pain."
We do note that the independent medical advisor suggests that the claimant might be suffering from a chronic pain disorder. However, as this issue has not been considered and adjudicated by the board, it is beyond our jurisdiction to make any conclusions in that regard.
In conclusion, we find that the claimant did not have a loss of earning capacity, as a result of his workplace injury, beyond October 30, 2001 and, thus, is not entitled to benefits after that date.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of December, 2003