The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 19, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on August 19, 2003 and again on December 2, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 25, 1999.

Decision

That the worker is not entitled to wage loss benefits beyond May 25, 1999.

Background

During the course of her employment as a registered nurse on November 11, 1997, the claimant injured her back when she lost her balance on a soapy wet floor and grabbed a sink to prevent herself from falling. The diagnosis rendered by the attending chiropractor was a lumbosacral subluxation sprain. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid during the claimant’s periodic absences from work.

A CT of the lumbar spine was performed on March 25, 1998. The results revealed disc bulging from the L3 vertebral body to the sacrum with no evidence of a disc herniation.

In a report dated March 27, 1998, the attending physician provided the WCB with details concerning the dates that he treated the claimant between January 29, 1998 and March 23, 1998. He concluded that the claimant suffered from chronic recurrent low back pain and chronic disc degeneration.

During a telephone conversation with a WCB case manager on August 17, 1998, the claimant stated that prior to her November 1997 accident she had had upper back difficulties for the past 10 years. The ongoing upper back difficulties caused her to lose hours at work and she dropped to a .5 position.

The claimant was assessed by a WCB medical advisor on August 27, 1998. He felt that the claimant had myofascial irritability at her quadratus lumborum musculature bilaterally. The claimant had good range of motion in her lumbar spine and no signs to indicate neurological involvement. Further treatment was recommended which included acupuncture treatment and an assessment by the WCB’s Pain Management Unit. The medical advisor outlined restrictions for an eight week period and stated that a graduated return to work should be arranged with ongoing treatment being provided as needed. He stated that long term restrictions based on the November 1997 workplace incident were not required based on the diagnosis, good functional capabilities and negative imaging studies. The medical advisor indicated that due to the claimant’s long history of chronic low back pain it was anticipated that heavy lifting/bending of the spine in the future would increase the claimant’s pain complaints.

An assessment at the WCB’s Pain Management Unit took place on October 29, 1998. It was determined that the claimant had chronic musculoligamentous problems which include pain, but that she did not qualify for a diagnosis of chronic pain syndrome. The psychological evaluation found that the claimant was “rather uninsightful about her psychological functioning and is prone to somatize psychological distress rather than express it in emotional terms.”

On January 18, 1999, the claimant commenced a graduated return to work program, which was to be served as a work hardening program. Subsequent file records indicated that the claimant continued to experience pain in her back as well as pain into her shoulders, neck, chest, hips and knees.

In a memo dated March 29, 1999, a WCB medical advisor stated the following: “…it is felt that the claimant should be able to perform her light duties as a NICU nurse on a full-time basis. This is based on the original diagnosis of a lumbosacral strain, negative imaging studies, the period of time elapsed since the initial workplace accident, the maximal medical management that has been provided, the lack of objective medical findings noted on various reports subsequent to the workplace incident (call-in notes dated August 27, 1998, Dr. [acupuncturist’s] report of September 17, 1998, Dr. [attending physician’s] report dated November 5, 1998) and the fact that the claimant’s job duties are very light in nature. Therefore, it is unlikely that ongoing difficulties during her scheduled graduated return to work are, on balance, directly related to the 1997 workplace incident.”

On April 19, 1999, the claimant commenced another graduated return to work program for a six week duration, after which it was determined that the claimant would be capable of working full shifts. Subsequent file records showed that the claimant stopped working on May 6, 1999. On May 11, 1999, primary adjudication advised the claimant that since she was no longer participating in the graduated return to work program, wage loss benefits would end effective May 6, 1999.

Further medical information was received from a clinical psychologist dated May 31, 1999. She indicated that the claimant was no longer attending psychotherapy sessions. The claimant had left a message on voice mail stating that she was doing fine and no longer required psychotherapy treatment.

In a January 25, 2001 letter, the attending physician noted that the claimant was still having difficulty with low back pain despite doing all of the recommended therapy. He indicated that the claimant was unable to return to work as a nurse because of her disability. This opinion was again expressed by the attending physician in a letter dated April 17, 2001, addressed to a union representative.

In an appeal submission to Review Office dated September 24, 2001, a union representative opposed the WCB’s decision to terminate the claimant’s benefits effective May 6, 1999 because she was no longer participating in the return to work program. Prior to rendering a decision on this issue, Review Office arranged for the claimant to undergo a functional capacity evaluation on December 19, 2001. Review Office also contacted the claimant on January 5, 2002 to obtain an update on her circumstances and as well reviewed previous WCB claims filed by the claimant ranging in dates from 1985 to 1990.

On January 11, 2002, Review Office determined that the claimant was entitled to wage loss benefits to May 25, 1999 inclusive. Review Office felt that by May 26, 1999 the claimant had recovered from the effects of her accident at least to the point where she was capable of returning to her pre-injury work. Review Office recognized that the claimant had a back at risk and would likely have periodic upper and lower back complaints but this did not entitle her to wage loss benefits. Review Office did not consider the claimant had any compensable limitations that would preclude her from performing her pre-injury work. As the claimant was considered capable of returning to her pre-injury work, it followed that she no longer had a loss of earning capacity related to her injury. As the graduated return to work plan did not contemplate the claimant’s returning to her pre-injury work schedule until May 26, 1999, Review Office felt that wage loss benefits should be paid up to that date.

In a letter dated August 16, 2002, a solicitor now representing the claimant, noted that the claimant was unsatisfied with the WCB’s FCE results. He felt that this assessment did not adequately deal with the actual job demands of the claimant’s position as a neonatal nurse. In an attempt to address this issue, the solicitor submitted for consideration a job site analysis which was performed by an independent occupational therapist dated August 6, 2002. Review Office, in turn, referred the job site analysis to the WCB’s physiotherapy consultant for review and comment. The WCB physiotherapy consultant provided Review Office with a response dated January 9, 2003.

On January 20, 2003, Review Office advised the solicitor that it remained of the opinion that the claimant was not entitled to wage loss benefits subsequent to May 25, 1999, based on a review of all the evidence. The solicitor appealed Review Office’s decision and an oral hearing took place on August 19, 2003.

Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from the claimant’s treating physician and chiropractor along with income tax information. The requested information was later received and was forwarded to the interested parties for comment. On December 2, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

Chairperson MacNeil and Commissioner Challoner:

Following her compensable accident on November 11^th, 1997, the claimant was diagnosed by her treating chiropractor as having sustained a lumbo-sacral subluxation sprain. A CT scan taken of the lumbar spine on March 25^th, 1998 revealed no evidence of a disc herniation. Speculation by a WCB medical advisor suggested that the claimant’s condition appeared to be mechanical back pain. We note that the claimant did not receive any active chiropractic treatment from February 12^th, 1998 to May 13^th, 1999 when she returned complaining of moderate low back and left upper thoracic tension.

On August 27^th, 1998, the claimant was examined by a WCB medical advisor, who recorded the following comments in her examination notes:

“She complains of low back pain which radiates into both buttocks to her mid thighs and numbness to both lower extremities. Straight leg raising was assessed in both sitting and supine positions. While sitting this was to 90° bilaterally. The claimant complained of a pulling at her low back. Lasegue’s was negative bilaterally. While lying, straight leg raising was to 80° bilaterally. The claimant complained of a pulling of the muscles in her hamstring and popliteal fossa area. Lasegue’s was negative bilaterally. Functional testing was performed and the claimant was able to perform a crunch, pelvic tilt, bridge and bridge plus without difficulty.

She has had a CT scan which demonstrates no evidence of disc herniation with nerve root irritation. The claimant has good range of motion of her lumbar spine and no signs to indicate neurological involvement. Based on the claimant’s nine year history of chronic low back pain I feel an assessment by the Pain Management Unit is warranted. Long term restrictions based on the November 1997 workplace incident are not required in this claim based on the diagnosis, good functional capabilities and negative imaging studies. Normally I would expect full resolution of the claimant’s pain complaints based on the diagnosis and findings on today’s examination”

As per the recommendation by the medical advisor, the claimant was formally assessed by the WCB’s Pain Management Unit (PMU) in the latter part of October 1998. A psychological assessment was carried out and the psychologist summarized his findings in part as follows:

“Ms. [the claimant] does have a nearly 10-year history of back and leg pain, along with a history of hypothyroidism. This is her second WCB claim for back pain, and within the span of the current claim, has attempted three returns to work that have failed because of pain. She does appear to be becoming increasingly fearful and avoidant of her pain, as well as discouraged about her ability to rehabilitate herself. Barriers to recovery: significant pain and disability report; physical deconditioning; sleep disturbance; muscular tension; fear of re-injury; and lack of clear treatment goals/direction.”

In conjunction with the foregoing assessment, the claimant was also interviewed by a WCB medical advisor associated with the PMU. He outlined several general observations and conclusions in his October 29^th, 1998 report, which we considered to be significant.

“She did appear to be pain and disability focused but was not dramatic in her description of symptoms. She certainly appears to have had pre-existing back problems of a long standing nature beginning approximately in 1989. It appears, however, that most of her symptoms are the result of musculoligamentous problems rather than any significant radiculopathy. Based on Dr. [the psychologist’s] report and my interview with this claimant, I feel that while she does have some organic findings they are not sufficient to account for this lady’s level of pain or its duration. She has had two unsuccessful attempts at returning to work and I believe that she might have been able to continue working if she had had appropriate education in pain management techniques and cognitive behavioral therapy.

Based on Dr. [the psychologist’s] report and my interview this lady certainly has pain which is in excess of that which one would have expected based on the nature of her injury and investigative results. Base on the above findings, while this lady does have chronic musculoligamentous problems which include pain, she does not qualify for a diagnosis of chronic pain syndrome.”

A very thorough review of the file was conducted on March 29^th, 1999 by a WCB medical advisor, the case adjudicator and a WCB physiotherapist. In arriving at our decision, we attached considerable weight to their case analysis and synopsis.

“The claimant’s imaging studies have been normal. She has been treated extensively with medical management, including chiropractic care, dry needling of her irritable musculature by Dr. [name], physiotherapy and pharmacotherapy.

A referral to the pain management Unit in October 1998 indicated the claimant had a psychological profile whereby these types of individuals present with extreme somatic problems or chronic pain and complaints of being physically ill. They are overly concerned about health and bodily functions and may overreact to minor physical dysfunction. It was noted the claimant did not have a psychiatric illness and did not qualify for a diagnosis of Chronic Pain Syndrome.

After a review of all of the above, it was felt that the claimant should be able to perform her light duties as a NICU nurse on a full-time basis. This is based on the original diagnosis of a lumbosacral strain, negative imaging studies, the period of time elapsed since the initial workplace incident, the maximal medical management that has been provided, the lack of objective medical findings noted on various reports subsequent to the workplace incident (call-in notes dated August 27, 1998, Dr. [acupuncturist’s] report dated September 17,1998, Dr. [treating physician’s] report dated November 5, 1998) and the fact that the claimant’s job duties are very light in nature. Therefore, it is unlikely that ongoing difficulties during her scheduled graduated return to work are, on balance, directly related to the 1997 workplace incident.”

After having considered all of the evidence, we find that the claimant had, on a balance of probabilities, recovered from the effects of her compensable injury (lumbosacral strain) by the time her benefits were terminated and that she was capable of returning to her regular work duties. We further find based on the weight of evidence that the claimant’s continued pain difficulties are related to non-compensable factors. In this regard, we note that the claimant struggled with many personal issues, which undoubtedly impacted on her perception of pain.

In conclusion, the worker is not entitled to wage loss benefits beyond May 25^th, 1999. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of January, 2004

Commissioner's Dissent

Commissioner Malazdrewich’s dissent:

I disagree with the majority in this matter and would have found that the claimant is entitled to wage loss benefits beyond May 25, 1999.

OBJECTIVE FINDINGS

Much emphasis was placed by various WCB medical representatives and the accident employer on alleged lack of objective medical findings. However, the CT scan conducted March 25, 1998 revealed bulging discs from L3 to S1, which is certainly not a normal finding. The claimant’s description of the accident, which related a twisting of her lower back, would, in my view, be consistent with such a condition. Additionally, the claimant’s treating physician reported on March 9, 1999 that straight leg raising was limited to 45 degrees bilaterally.

FUNCTIONAL CAPACITY AND RETURN TO WORK PLANS

It had been suggested by the accident employer and the WCB that there was nothing preventing the claimant from participating in and completing the proposed Graduated Return To Work (GRTW) program in early 1999. In a memo to file dated November 13, 1998, a case manager states: “(employer’s occupational health representative) advised that an FCE is not required before clmt returning(sic) to work in the GRTW”.

In a letter dated January 15, 1999 to the employer’s Occupational Health Representative, the WCB’s Rehabilitation Specialist stated: “Although there are no restrictions placed on (the claimant) the graduated return to work program will serve as a work hardening program.”

We now know, with the benefit of hindsight, that the decision not to perform a Functional Capacity Evaluation (FCE) at this time was extremely ill-advised. The Panel heard lengthy presentations from the claimant’s and the accident employer’s representatives regarding the FCE conducted by the WCB in December 2001 and the subsequent analysis and critique of that report conducted in July of 2002 by an Occupational Therapist acting on behalf of the claimant.

Although I prefer the accuracy and completeness of the latter report given that it included a job demands analysis, whereby the former did not, I find that it is not necessary to distinguish the two reports to any great extent since they both determined that the claimant was restricted in many of her most repetitive workplace activities such as flexion and rotation of the spine.

Therefore, in my view, the GRTW program was doomed to failure from the outset, as it was constructed with a fatal major premise, that being that no restrictions were necessary. Had the FCE been conducted prior to the GRTW plan, one can well imagine a different outcome for both claimant and employer.

In my view, the claimant, in spite of not having restrictions imposed as part of the GRTW plan, and in spite of severe pain, made reasonable attempts to return to work and finally stopped these attempts in May 1999 upon advice from her physician.

LONG TIME LAPSE

There was a lengthy period of time from this date (May 1999) to the date of the initial appeal and subsequently to the date of the hearing before this panel. In my view, there is considerable evidence during this period that confirms the claimant’s continued inability to return to the workplace, not the least of which were the FCEs conducted in December 2001 and July 2002, which both confirm several ongoing restrictions.

Further, the reports received from the claimant’s physician include the following excerpts:

December 14, 2000 – “straight leg raising limited to about 20 degrees bilat(sic) due to discomfort.”
January 29, 2001 – “Intermittent chronic back pain still present”
March 18, 2002 – “L/S spine mov’t(sic) restricted.”

Further, the claimant continued during this entire period to receive treatments from her chiropractor, on eleven occasions from May 13 to December 20, 1999, 25 occasions in 2000, 27 in 2001, 28 in 2002, and continuing into 2003, the vast majority of which were for her lower back.

PAIN FOCUSED BEHAVIOUR

There are several references in the file that suggest the claimant was pain-focused and overly concerned about her health.

The claimant is a health care professional, trained and well equipped to know exactly what her health status was at given times. She was in a position to relate to many of her care providers a professional equal.

I believe she finally took responsibility for her own well-being when she saw the Board’s systems and processes beginning to fail her, followed the advice of her physician and chiropractor, worked hard at home to achieve a state of health that allowed her to return to the workplace, and has subsequently done so.

CREDIBILITY OF THE CLAIMANT

In many circumstances, the credibility of a claimant can be a useful barometer with which to help assess the outcome of an appeal. I found the claimant at the hearing to be forthcoming and sincere. She readily acknowledged that the duties at the Neonatal Intensive Care Unit were the lightest in her workplace. As previously stated, she made reasonable attempts to complete the GRTW plan. She continued to see her treating physician right up until the time she was able to ultimately return to work. She made repeated visits to her chiropractor, even after the WCB stopped paying for these, and again, until her return to work. She worked diligently at home at rehabilitation efforts which were ultimately successful.

With respect, I would have found in favour of the claimant in this appeal.

B. Malazdrewich, Commissioner