The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 9, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on February 9, 2005 and again on June 9, 2005.

Issue

Whether or not the worker has recovered from the compensable myofascial pain syndrome; and

Whether or not responsibility should be accepted for the costs of pain medication beyond March 14, 2004.

Decision

That the worker has recovered from the compensable myofascial pain syndrome; and

That responsibility should not be accepted for the costs of pain medication beyond March 14, 2004.

Decision: Unanimous

Background

In January 2000, the worker experienced left hip pain radiating down her right leg during the course of her employment as a registered nurse. The worker was initially diagnosed with a back strain and later with myofascial pain syndrome which was accepted as a Workers Compensation Board (WCB) responsibility.

On September 30, 2003, a non-oral file review took place to determine whether or not responsibility should be accepted for the reimbursement of the costs associated with the worker's medication for myofascial pain beyond May 30, 2003. In a decision dated November 25, 2003, the Appeal Panel determined that there was neither medical information nor an adjudicative decision on file stating that the worker had recovered from her compensable myofascial pain syndrome. Based on this conclusion, the Appeal Panel determined that "…the WCB should be responsible after May 30, 2003 for the costs of medications, but limited only to those associated with the treatment of her myofascial pain syndrome." A complete background leading up to the Appeal Panel's decision can be found under Decision No. 137/03 and will not be repeated at this time.

Following the Appeal Panel's decision, information was received from the worker's physical medicine and rehabilitation specialist (physiatrist) dated January 29, 2004. In this report, the specialist commented that the worker's primary diagnosis was myofascial low back pain syndrome, depression and sleep disturbance.

On March 12, 2004, a WCB physiatrist was asked to comment on the file evidence and he stated,

"File reviewed - there is no evidence of any physical diagnosis related to the past back strain present currently (injury four years ago). Any postulated myofascial pain would have resolved with the course of treatment received for this. Resolution with appropriate treatment would suggest these postulations. Lack of resolution suggests that this condition was not present."

Based on the foregoing opinion, Rehabilitation and Compensation Services wrote to the worker on March 15, 2004 indicating that the WCB considered she had recovered from the effects of her compensable injury and that the WCB would no longer assume responsibility for her medications.

On May 5, 2004, a worker advisor appealed the WCB's decision of March 15, 2004 on behalf of the worker. The worker advisor contended that the worker continued to suffer from myofascial pain syndrome and that this condition was related to the compensable workplace injury based on the report by the treating physiatrist dated January 29, 2004.

On July 6, 2004, Review Office provided the treating physiatrist with the WCB's physiatrist's opinion dated March 12, 2003. Review Office asked the treating physiatrist to comment on whether or not the worker had myofascial pain syndrome considering that it was now four years post-accident and if so, whether or not it was related to the January 2000 accident. In his response dated November 2, 2004, the treating physiatrist stated,

"In summary, I would agree with Dr. [WCB physiatrist] in terms of the natural resolution of myofascial pain syndrome, from her injury in January 2000. On the other hand we have the difficult clinical situation in which she is managing to control her discomforts with the ongoing consumption of the Codeine Contin, such that she is able to work to an extent that appears to approach almost fulltime hours. As such, it would be difficult to say that this lady suffers from myofascial pain syndrome arising from the January 2000 incident, or whether or not it is arising from the ongoing physical demands of her job and the day-to-day aches and pains that this might generate."

In a November 15, 2004 decision, Review Office determined that no responsibility would be accepted for pain medication beyond March 14, 2004. Review Office stated that it was clear from the Appeal Commission's decision that it had allowed the payment of further pain medications primarily because there was no adjudicative position on file with respect to the worker's state of recovery from her compensable myofascial pain syndrome. Review Office agreed with the WCB physiatrist that the worker had in fact recovered from the myofascial pain syndrome. As such, the WCB would not be financially responsible for providing the worker with ongoing pain medications as these medications were not seen to be related to her compensable myofascial pain syndrome arising from the 2000 accident. Review Office believed that the worker had recovered from the compensable myofascial pain syndrome and that her ongoing requirement for these medications was no longer related to the accident. On December 13, 2004, the worker advisor appealed Review Office's decision and an oral hearing was convened on February 9, 2005.

Following the hearing and after discussion of the case, the Appeal Panel arranged for the worker to be seen by an independent medical examiner with respect to her current medical condition and its relationship to the compensable accident. A report was later received from the independent medical examiner dated May 16, 2005 and it was provided to the interested parties for comment. On June 9, 2005, the Panel met further to discuss the case and considered a final submission from the worker dated June 1, 2005.

Reasons

As the background notes indicate, Review Office concluded on appeal that “the worker has in fact recovered from the compensable myofascial pain syndrome and her ongoing requirement for these medications is no longer related to the accident”. After entertaining the worker advisor’s appeal submission on behalf of the worker as well as considering the evidence, we decided that prior to making a final decision we would have the worker undergo a third party medical examination. The requested examination took place on May 2, 2005.

With respect to possible diagnoses of the worker’s condition, the independent specialist concluded, in part, as follows:

“An anatomic diagnosis cannot be rendered on the basis of the file review and examination. On the balance of probabilities, the claimant likely sustained an acute disc herniation in the setting of pre-existing spinal stenosis. This likely accounted for her low back and lower limb pain even in the absence of neurologic signs or symptoms of neurogenic claudication.

Both myofascial pain and fibromyalgia have been advanced as explanations for the claimant’s chronic ongoing low back and lower limb pain. These diagnoses appear to have been made in the absence of signs and symptoms that satisfy the diagnostic criteria for these syndromal diagnoses. Moreover, neither diagnosis can be validated medically.”

As to the matter of causation, the independent specialist had this to say:

“Causation is established on the basis of a medically probable cause, medically probable effect, and an appropriate temporal relationship.

Given the above parameters, the workplace incident of January 30, 2000 represents a probable cause for bodily injury. As described, the claimant sustained at least three incidents of lifting in an awkward position that could have been sufficient to cause a back injury including disc herniation.

The effect is somewhat in doubt, but on the balance of probabilities was likely an acute disc herniation at L4-5 without neural impingement. In the setting of a pre-existing narrowed spinal canal, this was likely sufficient to cause low back and lower limb pain in the absence of neurogenic signs.

Therefore in summary, it is probable that the claimant’s medical condition, that being a probable disc herniation at L4-5, is causally linked to the workplace injury of January 30, 2000.

Notwithstanding the above comments, there is currently no evidence of neurogenic loss, dural tension or range of motion blockage consistent with disc herniation. Accordingly it appears that this condition, at some point in time, resolved. This would be consistent with the claimant’s history that she improved with treatment sufficiently to allow her to return to work.”

We accept the independent medical examiner’s opinion that the worker’s probable medical condition, being a disc herniation at L4-5 has resolved. In addition after having considered all of the evidence, we further find that the worker has, on a balance of probabilities, recovered from the compensable myofascial pain syndrome and that any ongoing condition is non-compensable. We note that the independent medical examiner doubted that the myofascial pain syndrome condition ever existed in the first place. However, regardless of what the working diagnosis is and/or was, we find based on the weight of evidence that the worker was capable of returning to work full time for quite some time.

From the following evidence at the hearing, we note that the worker has returned to work,

Q. Ms. [name of worker], you indicated at the beginning in your response to Ms. [name of worker advisor], that you’re an RN working on a casual basis and you work a lot, so what does a lot mean, 40 hours a week?

A. I work 12-hour shifts except in the care home, but I would say I work on an average of five to six 12-hour shifts in a pay period, sometimes more, sometimes less.

Q. Has that been pretty consistent over the last year, since 2004 when you last saw Dr. [treating physical medicine and rehabilitation specialist]?

A. Yes, because I work casual and it’s a hospital that’s extremely understaffed right now, I could work every day, but I don’t, of course but, yes, it’s pretty - - except, you know, in the summer I take a couple of weeks off or something like that, but, yes, it is fairly consistent.

With regard to the second issue, we find that responsibility should not be accepted for the costs of pain medication beyond March 14, 2004. This finding necessarily follows given our conclusion that there are no current conditions in play that are causally related to the original compensable injury. We agree with the independent medical examiner’s opinion that the worker’s current use of prescribed medications is not related her compensable injury.

The worker’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 5th day of July, 2005