The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 5, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on a number of occasions, the last one being May 19, 2004.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond October 19, 2000.

Decision

That the claimant is not entitled to wage loss benefits beyond October 19, 2000.

Decision: Unanimous

Background

During the course of her employment as a nurse's aide on February 15, 1998, the claimant sustained a compensable injury to her back region when she and a co-worker were helping a resident to stand up. The claimant initially sought treatment from her attending physician and a chiropractor and she also received physiotherapy treatments. When seen by a physiatrist in October 1998, the claimant was diagnosed with symptoms and signs consistent with myofascial pain syndrome with multiple trigger points in the thoracic and lumbar paraspinal muscles. The claimant was treated with a series of trigger point injections.

In a report dated April 13, 1999, the treating physiatrist noted that the claimant had been involved in a Motor Vehicle Accident (MVA) on February 20, 1999 and that she sustained an acute soft tissue strain in the region of her posterior neck. He felt that the injuries sustained in the MVA were not responsible for the claimant's absence from work. He also noted that further trigger point injections to the thoracic and lumbar regions had been discontinued as the claimant had not responded well with treatment.

At the WCB's request, the claimant was assessed by a second physiatrist on May 4, 1999. The physiatrist could not identify any impairment that would prevent the claimant from working light to moderate duties. He stated that the claimant appeared to be significantly disabled from her painful symptoms along with her perception of pain. He felt that correcting the non-physical component of her pain complex, would likely be an extremely difficult task.

In June 1999, recommendations were made for the claimant to commence a graduated return to work program with restrictions respecting her back condition. In a memo to file dated July 13, 1999, a WCB adjudicator noted that the claimant had experienced three back spasms since she returned to work and on July 22, 1999, the claimant advised the WCB that she could not continue with the program because of the pain in her back.

On July 29, 1999, the claimant was advised that the WCB was ending her benefits effective July 22, 1999 as it was still the WCB's opinion that she was capable of working at reduced hours performing light duties.

In a memo to file dated August 12, 1999, a WCB psychological advisor noted that the claimant appeared to be demonstrating symptoms characteristic of a pain disorder associated with psychological factors and a general medical condition. It was felt that the claimant's pain disorder appeared to be her primary barrier to returning to work. In a further note dated August 16, 1999, the WCB's psychological advisor indicated that the claimant was extremely entrenched in her perception that she was totally disabled and must have a medical cure for her pain. Both the claimant and her husband were opposed to any further psychological intervention.

On March 16, 2000, a worker advisor, acting on behalf of the claimant, asked the WCB to consider new medical evidence which consisted of an MRI report of the thoracic and lumbar spine dated February 18, 2000. The MRI results revealed disc herniations involving the T7-8 and T8-T9 levels and mild degenerative changes in the L5-S1 region. The worker advisor contended that the disc herniations found in the thoracic spine was the compensable region of this claim. The worker advisor felt that this information disqualified an earlier Review Office decision dated March 3, 2000 which found no objective findings to substantiate the claimant's pain complaints and that the compensable injury was nothing more than a soft tissue injury.

In a decision dated June 9, 2000, Review Office determined that the claimant was entitled to wage loss benefits after July 22, 1999. After consulting with a WCB orthopaedic consultant, Review Office was of the opinion, based on a balance of probabilities, that the claimant's thoracic disc herniations identified in the MRI were the result of the February 15, 1998 work place injury. Review Office also commented that "while the claimant's current condition does not constitute a total impairment, the planning that took place with respect to her graduated return to work program in July, 1999, took place without benefit of knowledge about the true nature of her compensable condition. In hindsight, this raises questions about the suitability and timing of the return to work program."

In a letter dated October 11, 2000, a WCB case manager advised the claimant that based on videotape surveillance which took place on July 13, 2000, July 29, 2000 and September 9, 2000, she was observed walking, twisting and lifting heavy objects without any difficulty. Thus, it was the WCB's position that the claimant was capable of returning to the position of a nurse's aide. Benefits would be paid to October 19, 2000 inclusive and final.

On December 21, 2000, the worker advisor appealed the above decision to Review Office and submitted a report from the claimant's attending physician dated December 20, 2000. The worker advisor noted Review Office's prior decision that the compensable condition did not constitute a total impairment and therefore the activities shown on the surveillance film ought to be expected. The worker advisor contended that the surveillance evidence only provided limited activities for a short duration that did not compare to the claimant's physically demanding job as a health care aide.

Prior to considering the appeal, Review Office referred the case back to primary adjudication to consider the report by the attending physician dated December 20, 2000.

On January 15, 2001, primary adjudication determined that no change would be made to the previous decision to end benefits as of October 19, 2000. Primary adjudication stated, "On June 29, 2000, a WCB Orthopaedic Specialist reviewed the file in detail and recommended that "no restrictions arise out of the workplace injury." On August 25, 2000, a WCB Chiropractic Consultant reviewed the surveillance tapes in detail and noted the "claimant at no time shows signs of functional impairment in any of the actions observed." It was therefore concluded that the claimant had recovered from the effects of her workplace injury and that no restrictions currently arose from this injury. On January 22, 2001, the worker advisor appealed this decision to Review Office.

Prior to considering the appeal, Review Office obtained up-dated medical information from the claimant's treating physician, the Pain Clinic, the treating chiropractor and from an orthopaedic specialist.

In a decision dated February 8, 2002, Review Office requested the convening of a Medical Review Panel (MRP) under section 67(3) of The Workers Compensation Act (the Act) to sort through the conflicting medical opinions and information found on the file. A MRP later took place on August 26, 2002 and January 30, 2003 and its final report of April 11, 2003 was forwarded to the interested parties for review.

On June 20, 2003, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond October 19, 2000. Review Office commented that it could not place a great deal of weight on the MRP's report in determining the issue under review.

In its summation, Review Office stated that, given the initial diagnosis of a strain in 1998, it was unable to see how a soft tissue injury would effect a pre-existing condition. Note was made of an opinion expressed by an orthopaedic specialist that the pre-existing disc herniations were on the left side and were not causing any changes to the spinal cord and therefore they would not be clinically relevant. After interviews with the WCB's PMU, the claimant did not qualify for a diagnosis of chronic pain syndrome. Medical advisors said the claimant's presentation was suspect for secondary gain. Review Office therefore did not believe that the claimant continued to suffer a loss of earning capacity beyond October 19, 2000 and did not find in favor for the payment of additional benefits and services. On July 11, 2003, the worker advisor disagreed with Review Office's decision and an oral hearing was held on November 5, 2003.

On November 12, 2003, the Appeal Panel advised the claimant that prior to rendering a decision on the issue under appeal, that it would seek additional comments from the WCB's healthcare branch with respect to the WCB's practice regarding pain conditions. A report was later received from healthcare services dated December 11, 2003 and forwarded to the interested parties for comment.

Following its meeting of February 11, 2004, the Panel decided to have the claimant examined at the WCB's Pain Management Unit to determine her current physical and mental status and its relationship to the compensable injury. On April 21, 2004, all interested parties were provided with the information that was received from the WCB's healthcare branch along with a copy of a surveillance videotape that was taken on March 22, 23, and 25, 2004 and the associated report. On May 19, 2004, the Panel met further to decide the case and it considered a submission from the worker advisor dated May 17, 2004.

Reasons

The claimant in this case suffered a back injury in February 1998 while working as a nurse's aide. An attempted return to work program in 1999 to modified duties ultimately failed, and she received benefits until October 19, 2000. She is appealing the decision made by the Review Office that terminated her benefits, and is seeking to have her wage loss benefits restored after that date.

For the claimant to be successful, we would have to find that she has a compensable medical condition (a condition that is causally related to her workplace injury) that has left her with medical restrictions that prevent her from working in the modified duties that the employer had offered. We were unable to make those findings, and accordingly deny the claimant's appeal. In reaching these conclusions we have placed particular weight on the following evidence.

The claimant's advocate has argued that there are both physical and psychological conditions in play that are causally related to the accident and which render the claimant partially, if not totally, disabled. We note that this is a complex case that has seen a WCB Pain Management Unit assessment in 1999, a Medical Review Panel in 2003, and again, at our request, a second WCB Pain Management Unit assessment in 2004. There have also been two instances in which the claimant has been subject to video surveillance, in 2000 and 2004. All these materials have been shared with the claimant and her advocate, and the opportunity to comment on this evidence has been provided.

In our extensive review of the medical information on the file, it is evident that the medical practitioners examining the claimant have had difficulty in determining what, if any, physical impairment the claimant has, because of abnormal pain behaviours that have been observed during their examinations. This has made it difficult, throughout the file, to assess whether the claimant's assertions that she cannot work in modified duties are a result of a real and compensable physical medical condition, or from a compensable psychological condition, or from some combination of both. We will review each of these components - physical and psychological - separately.

Dealing with the physical component of this claim, we note that early in the claim, the claimant had been diagnosed as having myofascial pain syndrome with multiple trigger points. This was first identified by a treating physiatrist in October 1998, and a treatment plan was initiated. However, later medical reports note that treatment was unsuccessful and was terminated, as it was having no effect on the claimant. A later report dated May 4, 1999 from a second physiatrist confirms that this condition was not evident by that date. The physiatrist states,

"Based on today's examination and the available radiological investigations, I cannot provide a physical diagnosis accountable for her symptoms. She has minimal tenderness on palpation of her spine and muscles, thereby suggesting insignificant myofascial pain. Her excruciation (sic) symptoms with any type of movement is difficult to explain given that the CT scan has been performed on the thoracolumbar spine ruling out any significant pathology… From a purely physical point of view, I cannot identify any impairment that would prevent her from working at least light to moderate duties. However, she appears to be significantly disabled from her painful symptoms, along with her perception of pain. Correcting the non-physical component of her pain complex will be an extremely difficult task." [emphasis in original report]

A 2003 Medical Review Panel suggests that myofascial pain syndrome may still be present in the claimant. We do have concerns about this finding, as discussed later, particularly as the MRP was unable to directly examine the claimant for this condition because of her pain behaviours. However, we note that this condition was not found to be present by a qualified physiatrist in a report dated May 4, 1999, and that the claimant had not been working for several years prior to the MRP examination. Accordingly, we find that the current diagnosis of myofascial pain syndrome is speculative at best, and even if present now, it is not causally related to the workplace injury because of the lack of continuity in this condition from 1999 to the present.

The medical evidence on file also points to the presence of disc herniations at two levels of the thoracic spine (T7-8 and T8-9), as possibly being caused by the claimant's work injuries. These disc herniations were first discovered in a February 18, 2000 MRI. The worker advisor contended that the disc herniations in the thoracic spine are related to the claimant's workplace injury. This position was accepted by the WCB at that time, as a possible basis for the claimant's continuing pain complaints, and benefits were reinstated.

As to the significance of those disc herniations at the T7-8 and T8-9 levels, we find that they are not factors in the claimant’s ongoing and current pain complaints. In support of this finding, we note that the location of the disc herniations (left-sided) is not consistent with the claimant’s ongoing pain complaints on file (predominantly right-sided). Two treating specialists note, for example:

• An October 20, 1998 report by a treating physiatrist indicating predominantly right-sided symptoms and noting that the claimant does not have girdle or radiation of pain in the thoracic region or symptoms suggestive of thoracic nerve root compression due to disc herniation.
• A January 24, 2001 report by a treating orthopaedic surgeon reviews the MRI and CT scans performed and compares them with his clinical examination findings. He notes that the radiological tests suggest slight left-sided disc protrusions and the presence of disc herniations as well. He comments, however, that the claimant's reported symptoms and spasms occur on the right, and concludes that "Important to know is that these disc herniations are to the left and are not causing any change in the spinal cord that is significant. This lady's spasms seem to be more mechanical in nature. She does not seem to have any long track symptoms to suggest the cord is being compressed and MRI there is no change in the cord signal to suggest edema or compression…Any disability this lady has is secondary to pain…"

We agree with these findings, and conclude on a balance of probabilities that the disc herniations in the thoracic spine are incidental findings, in that they are not supported by clinical findings or reported pain complaints that would suggest a causal relationship to the claimant's workplace injury.

What appears to remain is the presence of slight degenerative changes in the claimant's back and back spasms consistently reported by the claimant to her examining physicians. As well as the reports noted above, other physicians have noted the reported spasms and pain behaviours, and have also ruled out physical pathologies:

• A November 3, 1999 report by a neurologist notes severe regional muscular spasms, but states he cannot identify any underlying neurological trauma that is contributing to this. He asked for an MRI to be performed of the thoracic and lumbar spine, and on May 25, 2000, he states, "Other than minor degenerative changes, which we would expect in a patient of her age, no other abnormality was detected which would explain her posttraumatic paraspinal muscle spasm."
• A memo by the WCB chiropractic consultant dated August 16, 2000 notes that original complaints were only to the lumbar spine area, and that continuing reports by a treating chiropractor (over 200 visits) reported pain from L1-L5, and not the thoracic spine area. He also notes that "thoracic disc herniations occur in 37% of the asymptomatic population who have no history of thoracic pain [literature attached]. This is almost a normal finding, and certainly not diagnostic in this case."

We note that the claimant was examined by a Medical Review Panel on August 26, 2002 and January 30, 2003. The three panelists conclude that the claimant probably sustained a musculoligamentous strain, indicating that there is no basis for a different diagnosis in the first 7.5 months after the reported accident, with no objective physical findings reported. Two of the panelists concluded that there was a sensitized spinal segment at T8-9 level which was an enhancement of a previous degenerative disc. They also believe that myofascial pain is likely present, although they could not examine for it because of the claimant's pain behaviours. The third panelist noted, however, that the underlying disc herniations had been reported as not relevant to the claimant's complaints, and did not accept the other diagnoses offered. All panelists agreed that the claimant demonstrated an abnormal pain disorder.

With due respect, we prefer to place considerably more weight on the findings of previously involved physicians than the findings of the MRP. We note that the MRP physicians report that they were unable to complete their physical examination of the claimant because of extreme pain behaviours. As to the conclusions stated by the majority of the panel, we note that their diagnosis of myofascial pain syndrome was inferred from the presence of a sensitized spinal segment but was not found directly by them, as they were unable to examine the claimant for this condition. As noted earlier, this diagnosis is countered by a May 1999 report by a physiatrist, stating that myofascial pain syndrome was not present at the time of his examination. Even if it was present now, we would have considerable difficulty in relating this condition to the compensable injury, given its absence in 1999, and its rediscovery in late 2002/2003. As to the conclusion that the pre-existing degenerative condition at T8-9 or a sensitized spinal segment is related to the claimant's reported symptoms, we find that this position is not consistent with the predominance of right-sided spasms and symptoms noted by other physicians and the absence of supporting clinical evidence of a thoracic spinal problem, as noted by the chairperson of the MRP in his dissenting opinion.

As to the spasms reported by the claimant, we have already noted concerns expressed by many physicians as to the apparent lack of a physical basis for these findings. As early as 2000, concerns were such that video surveillance was undertaken of the claimant, to determine the claimant's real functional levels. We agree with the summary comments of the WCB chiropractic consultant, in his memo of August 25, 2000, where he states, "The tape from 2000 shows good function in spinal mobility and in ability to lift and carry at least the weight of a 24 bottle case of beer held in front of her. Claimant at no time shows signs of functional impairment in any of the actions observed. It is difficult to reconcile her apparent function on this videotape with the function reported on file, including that demonstrated to examiners at the WCB."

We have already commented upon the spasms and pain behaviours demonstrated at the 2002/2003 MRP examinations, after the 2000 surveillance. There was additional video surveillance undertaken by the Pain Management Unit of the WCB, who had examined the claimant at our request. We note and agree with the April 5, 2004 comments of a WCB Medical Advisor to the Pain Management Unit, who stated,

"The most recent video surveillance showed the claimant involved in hours of shopping, and this shopping took place on more than one day. The claimant was noted to be ambulatory for prolonged periods of time and was also noted, on more than one occasion, to get down in a squatting position, maintain that position for a period of time and then arise in a completely fluid fashion in the absence of any apparent pain behaviour. This is important to note given that the Claimant reported to the Medical Review Panel [see report dated April 11, 2003 on file] "that the pain in the middle of her back is present all of the time and is aggravated by walking." The Report also went on to note that the Claimant "thought that the maximum that she could walk on her best days was one-half kilometer." The estimate of ambulatory capability as reported by the Claimant is not consistent with the level of the Claimant's activity observed in the video surveillance of March, 2004….

…The claimant was also observed to be entering and exiting vehicles, again exhibiting fluid motion and the absence of any apparent pain behaviour.

On numerous occasions, the claimant has displayed pain behaviour when being assessed by healthcare professionals in a healthcare and/or WCB setting. One such occasion was at the Medical Review Panel of August 2002…Whereas these pain behaviours have been observed in healthcare and/or WCB settings, no such behaviour was observed in the video surveillance of August 2000 or March 2004….

The activities and behaviours observed in the video surveillance of August 2000 and March 2004 should be considered to be valid and objective documentation of the claimant's true level of function as they were obtained in such a manner, in such a venue, and under such circumstances as to ensure that what was observed was the Claimant's level and duration of function in the absence of any requirement to present and portray herself in any manner other than what is genuine."

Based on this evidence, we find on a balance of probabilities that there are no compensable restrictions based on a compensable physical condition that would preclude the claimant from working in modified duties with her pre-accident employer.

As to the presence of a compensable psychological condition which might preclude the claimant from returning to work, we note that the issue of a potential pain disorder was first identified by a WCB psychiatrist in 1999. We have already noted the many concerns expressed by examining physicians as well as the Medical Review Panel about abnormal pain behaviours and/or a pain disorder.

Most recently, a pain disorder was noted by the MRP. This diagnosis was provided, however, by a panel specializing in the area of physiatry. We therefore decided to have the potential psychological component in this claim explored more carefully, by a referral to the WCB's Pain Management Unit. This group reviewed the extensive medical information on file, including earlier reports by psychologists and psychiatrists who had been involved with the claimant. They also interviewed the claimant at length, and as noted earlier, arranged for video surveillance. After our review of all these materials as well, we note and agree with the following comments made by the Medical Advisor on behalf of the Pain Management Unit:

"Following review of all the relevant information, and taking into consideration all of the above, it is the opinion of the Pain Management Unit that the claimant does not meet the diagnostic criteria for a Chronic Pain Syndrome as per WCB Manitoba criteria, as the disability is not proportional in all areas of function.

Further to the Pain Management Unit Interview Notes dated March 2, 2004, and on file, and now taking into account the video surveillance of March 2004, it is opinion of the Pain Management Unit that the claimant does not now meet the diagnostic criteria for Pain Disorder with Predominantly Psychological Factors as per DSM-IV criteria.

It appears that the only limitations on the claimant's function are those which she imposes herself, and these limitations appear only to manifest when the claimant is in a health-care and/or WCB environment."

Based on the evidence, we find on a balance of probabilities that the claimant does not have any compensable medical restrictions - physical or psychological - preventing her from returning to work in the position that was made available to her by her employer. Therefore, the claimant is not entitled to wage loss benefits beyond October 19, 2000, the date her benefits were terminated by the WCB. Therefore, the claimant's appeal is denied.

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 28th day of June, 2004