The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 7, 2004, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this case on several occasions, the last one being September 29, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits beyond March 16, 2001.

Decision

That the worker is not entitled to wage loss benefits beyond March 16, 2001.

Decision: Unanimous

Background

On November 8, 2000, the worker filed a claim with the Workers Compensation Board (WCB) for an incident that occurred at work on October 27, 2000. The worker described the incident as follows:

"I was stepping off my machine…when I was struck by a vehicle, truck, while trying to cross to see my foreman. The force threw me approx. 20 ft. to 30 ft. where I was removed by ambulance."

Initial medical information consisted of a hospital emergency report dated October 27, 2000. The diagnoses rendered were abrasions to the left temple, nose and upper lip along with contusions to the left forearm and thigh. A Doctor's First Report dated October 30, 2000 diagnosed the worker with multiple bruises and abrasions. The claim for compensation was accepted by the WCB and benefits were paid accordingly.

In a memo dated March 6, 2001, a WCB medical advisor indicated that he discussed the case with the treating physician and there was no objective medical evidence to support time loss from work. On March 12, 2001, the worker was advised that the WCB determined he had recovered from the effects of his compensable injury and that wage loss benefits would be paid to March 16, 2001 inclusive and final.

In January 2002, the worker advised the WCB that he was experiencing further problems with his neck, middle/lower back and right knee that he related to his original compensable injury.

On February 13, 2002, the treating physician assessed the worker with myofascial pain secondary to the trauma that he suffered during his accident of October 2000. He stated that the worker's right knee was currently normal and that he suspected a previously dislocated patella.

On April 1, 2002, a WCB medical advisor reviewed the file information and was of the view that there were no new objective findings to show a cause and effect relationship between the worker's current symptoms and his compensable injury. On April 3, 2002, the WCB determined that the worker's current back symptoms were unrelated to his compensable injury and that no responsibility would be accepted for his ongoing medical treatment or wage loss.

In a report dated August 27, 2002, a rehabilitation and medicine specialist (physiatrist) outlined his examination findings and concluded that the worker suffered a flexion extension and possibly a rotational injury to his neck and lumbar spine as a result of his fall from the ladder which was complicated by significant soft tissue injuries including disc tear. He noted that a CT scan had not shown any major disc herniation or spinal fractures. He suggested that the worker required 3 to 4 further appointments for trigger point injections and possibly paravertebral blocks followed by specific stretching exercises.

In a letter to the worker dated October 31, 2002, a WCB adjudicator indicated the following:

"The WCB's Physical Medicine Consultant reviewed the file October 30, 2002. It was the Consultant's opinion; there was not a relationship between the recently reported symptomatology and the October 27, 2000 injury. Specifically it was noted there was no mention of neck pain in any of the original medical reports submitted immediately following the original injury. Medical comments on file noted 'no neck pain' on medical reports submitted after the accident. The symptoms recently noted by the attending physicians, are not consistent with the symptoms originally reported."

Based on the above opinion, primary adjudication remained of the view that the worker had recovered from the effects of his October 2000 compensable injury.

On November 19, 2003, legal counsel acting on behalf of the worker provided Review Office with a number of medical reports for its consideration. It was the opinion of legal counsel and the worker that the worker's health problems, whether physical, psychological or both, arose from an injury that occurred in the course of his employment.

In a decision dated January 23, 2004, Review Office determined that the worker was not entitled to wage loss benefits beyond March 16, 2001. Based on the medical evidence on file and the wide ranging symptoms now being experienced by the worker, Review Office stated it was unable to find that his ongoing complaints were, on a balance of probabilities, related to his compensable accident. Review Office noted the lack of any visits to a doctor for almost one year between January 2001 and January 2002, and the differing history of injury and areas of complaint when the worker resumed medical treatment in January 2002.

In April 2004, legal counsel appealed Review Office's decision of January 23, 2004. On July 28, 2004, legal counsel provided the Appeal Commission with additional medical evidence for its consideration.

On September 7, 2004, an oral hearing was held at the Appeal Commission. Following the hearing and after discussing the case, the Panel requested the convening of a Medical Review Panel (MRP) in accordance with subsection 67(3) of The Workers Compensation Act (the Act).

The Appeal Panel met further on October 21, 2004 to discuss the case given the length of time required to schedule an MRP (approximately six months). At this meeting, the Panel decided to cancel the scheduling of an MRP and arranged instead for the worker to be examined by an independent third party medical examiner.

On February 3, 2005, all interested parties were provided with a copy of the sports medicine specialist's report dated January 10, 2005 and were asked to provide comment.

On March 7, 2005, the Panel met again to discuss the case and decided to arrange for the worker to be interviewed by a WCB psychiatric medical advisor prior to determining the issue under appeal. This examination took place on March 18, 2005. On August 5, 2005, all interested parties were provided with the following documents/material that had been received by the Panel and were asked to provide comment:

• surveillance DVD and corresponding report for the dates July 2, 3, 9 & 10, 2005;
• Memo by a WCB psychiatric consultant dated July 19, 2005;
• Call-in examination report by WCB psychiatric consultant dated March 18, 2005;
• Memos by a WCB staff person dated May 13, 2005, April 29, 2005 & April 14, 2005; and
• Memo by the recording secretary dated March 8, 2005.

On September 29, 2005, the Panel met further to discuss the case as well as consider a final submission received from legal counsel dated September 22, 2005.

Reasons

As the background notes indicate, a formal hearing with respect to the issue under appeal was conducted on September 7, 2004. The Appeal Commission in addition to its role as an adjudicative body also has the capacity to function as an inquiry model. Section 60.8(1) of the Act provides in part as follows: “The appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of (a) appeals under subsection 60.1(5),” etc. After having considered all of the evidence that was available at the time of the hearing, the Panel deferred in making a final decision as it wanted to have the worker examined by an independent third party medical examiner and later by a WCB psychiatric consultant.

Arrangements were subsequently made for the worker to be examined by a sports medicine specialist on November 10, 2004. The independent medical examiner provided the Appeal Commission with a lengthy and detailed 14 page report, copies of which were provided to all parties with a direct interest for comment.

According to the specialist, the worker described a constellation of symptoms when he was interviewed:

“In general, Mr. [the worker] indicated that he was in constant debilitating pain from the regions described above. This pain affected his activities of daily living to the point where he required help from his partner to perform simple activities of daily living. He also described an easy fatigability which affected his ability to maintain concentration throughout the day.”

We note with interest particular comments recorded by the specialist following his examination of the worker regarding actual physical findings. These comments included:

“In assessing the upper extremities, there were no obvious reflex or sensory abnormalities found.”

“There were no obvious abnormalities of the shoulder, elbow or wrist joints on assessing range of motion both actively and passively.”

“In assessing the left knee, Mr. [the worker] was found to have no evidence of an effusion. Range of motion was full in flexion and extension. Ligamentous examination did not reveal any instability of the four cardinal ligaments of the knee. Meniscal irritation through McMurray testing and joint line palpation did not reveal any positive findings. There was no obvious atrophy of the quadriceps or other muscles in the lower extremities.”

“Some of the demonstrated spinal motions observed with providing the history portion of the examination were significantly greater than that seen when same motions were formally tested. Also, it was noted that Mr. [the worker] was able to disrobe and dress himself following the examination without help, yet was unable to perform any of the motions that he would require in dressing himself during the physical examination specifically with respect to spinal motions.”

Also of significance were the specialist’s impressions:

“Again, the initial compensable injury documented consisted of contusions and abrasions with low back pain. It was interesting for this reviewer to note that neck pain was not an initial presentation. Neck and mid back pain appeared to develop a significant time after the traumatic event. This would not be in keeping with the general effects of trauma in which symptoms should appear immediately following the traumatic event and generally improve over time. In this case, the neck and mid back pain would not likely be directly related both to a traumatic event but may have developed secondarily as a compensation for other mechanical factors.”

“Although Mr. [the worker] had been diagnosed with myofascial pain syndrome, I could not specifically identify any classic trigger points during my examination.”

“The compensible (sic) injuries listed by the (sic) Mr. [the worker’s] treating physicians immediately following the collision were a low back pain syndrome, contusions and abrasions. In my review of the information a concussion also may have occurred. The later presentation of neck pain, upper back pain and tremors cannot be directly related to the pedestrian-motor vehicle collision in my opinion. These conditions developed subsequent to the injury and cannot be probably related to the collision in my opinion because of a lack of a probable temporal association and a biologically plausible explanation for how these conditions could have stemmed directly from the compensible (sic) injuries.”

“The diagnosis of a conversion disorder was made by another physician as indicated in the submitted medical information portion. In my opinion, this condition might be present and could explain some of the inconsistencies and finding (sic) of the examination. Further psychological assessment may be warranted to see if this condition were present.”

Following receipt of the independent medical examiner’s report, the Panel met to discuss the case further. The Panel decided that before making a decision the file should be sent back to the WCB for its opinion and comment regarding the worker’s psychiatric/psychological condition inasmuch as the independent medical examiner alluded to the possibility of the worker’s being diagnosed with a ‘conversion disorder’.

As outlined in the background notes, the worker was examined by a WCB psychiatric consultant on March 18, 2005. In his 12 page report, the consultant proposed that in accordance with the American Psychiatric Association DSM-IV the worker presented with a diagnosis of “Axis I: (1) Possible Pain Disorder Associated With Both Psychological Factors And A General Medical Condition, versus Pain disorder Associated With Psychological Factors. (2) Possible malingering.”

The consultant’s report contained a discussion of the possible diagnosis, which included in part as follows:

“In the case of Pain Disorder, ‘Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.’ The diagnosis of Pain Disorder, by itself, does not imply any particular level of psychosocial or occupational impairment. Impairments vary as does severity.

The psychological factors that contribute to the Pain Disorder are not intentionally produced or feigned, as would be the case in malingering. Malingering is ‘the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives.’ The diagnosis of malingering most often cannot be made by psychiatric assessment alone. To substantiate malingering, it must be established that the patient’s level of functioning is markedly different from that which they described to care providers or other administrative personnel, and that there has been an intention to mislead.”

The consultant stated that he could not confirm an accurate assessment of the worker’s reported functional abilities based on the recent interview. With respect to a working diagnosis, he concluded by saying, “The diagnosis of Pain Disorder needs to be confirmed. If this is the diagnosis, and there is no significant component of malingering present, then his psychiatric condition would be related to the CI [compensable injury] of Oct. 2000.” (Emphasis ours)

The consultant offered for consideration several factors, which in his view gave rise to the uncertainty about the diagnosis. These included:

• Examples of inconsistency between Mr. [the worker’s] self reported impairments and those observed by health care providers, such as those recorded in the nurse’s notes at the St. Boniface Hospital.
• The medical/legal context both of the injury itself and the circumstances under which not only Mr. [the worker] but also his father and two brothers left work. If there are any outstanding legal/administrative issues, these need to be clarified as they impact significantly on the psychological factors effecting Mr. [the worker’s] situation.
• The report of Mr. [the worker’s] impairment and functioning was quite vague. I could not clarify these any further, and therefore a GAF [Global Assessment of Functioning] was not assigned.
• The extent to which a general medical condition contributes to his problems would need to be clarified in order to determine the extent to which psychological factors and the pain disorder are contributing to his symptoms.
• Discrepancies as noted in Oct, 2002 WCB report, presumably by Dr. [name of medical advisor].

Inasmuch as the worker’s report of his functioning was very vague and that the psychiatric consultant advised that it would be very helpful to clarify the worker’s functioning on a day to day basis, the WCB initiated videotape surveillance of the worker. The surveillance was conducted on July 2, 3, 9 and 10, 2005 by the WCB’s Special Investigations Unit.

On or about July 19, 2005, the WCB psychiatric consultant was requested to review the surveillance video. After his review, the consultant recorded the following comments in a memorandum to file:

• In my opinion, there continued to be significant inconsistencies between Mr. [the worker’s] presentation when being medically assessed as opposed to times where he may not necessarily be aware that he is being observed.
• The main inconsistency is Mr. [the worker’s] physical presentation. When assessed by me on March 18, 2005, he moved very slowly down the hallway to the appointment room with great reliance on his cane. This presentation was very different from that demonstrated on video surveillance, during which he carried his cane with him and would put it on the ground but did not appear to use it for weight-bearing purposes.
• It also appears to me that he was walking at normal or close to normal speed during virtually all of the time for which there is video surveillance. His body movements seemed fluid and smooth, and he adopted a number of physical positions throughout the course of the video that did not seem to support the presence of significant physical limitations in his movement.
• Given this presentation, in my opinion, Mr. [the worker’s] activities on video are significantly inconsistent from those reported to me during the March 2005 interview.
• These inconsistencies as noted above are not the only ones on Mr. [the worker’s] file. There are also significant inconsistencies as documented in my previous report during the time Mr. [the worker] was observed in hospital. These inconsistencies were significant enough to attract attention and be documented on the hospital notes.
• The diagnosis that I previously considered Mr. [the worker] may have, that being Pain Disorder Associated with Both Psychological Factors and a General Medical Condition versus Pain Disorder Associated with Psychological Factors, is based largely on the patient’s description and self-report of their activities. In other words, the main finding in Pain Disorder is the presence of a condition in which there are significant limitations in the person’s functioning and to which psychological factors seem to contribute. If the significant physical limitations described are, in fact, not present, then there would not be a psychiatric disorder present. To say this another way, the diagnosis of Pain Disorder may be based on very subjective information, in that the patient’s description of the impairments is a very significant factor in making the diagnosis.
• Given the above and given the numerous described inconsistencies, there remains very little support for the diagnosis of Pain Disorder in Mr. [the worker’s] case.
• I am unable to comment on Mr. [the worker’s] physical limitations and his own description of his psychological limitations is, as indicated above, questionable. Therefore, it is not clear to me that Mr. [the worker] has any psychological or psychiatric limitations present.

After having considered all of the evidence including the videotape surveillance, we find on a balance of probabilities, that the worker does not have any physical limitations and/or any psychiatric/psychological condition as a consequence of his compensable accident. In coming to these conclusions, we attached significant weight to the evidence proffered by the independent third party medical examiner and the WCB’s psychiatric consultant. Therefore, we further find that the worker is not entitled to wage loss benefits beyond March 16, 2001. Accordingly, 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 2nd day of November, 2005