Decision #21/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 8, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on December 8, 2004 and again on December 13, 2004.Issue
Whether or not the claimant is entitled to wage loss benefits beyond October 9, 2000.Decision
That the claimant is not entitled to wage loss benefits beyond October 9, 2000.Decision: Unanimous
Background
On January 14, 1998, the claimant slipped and fell onto her back and right side during the course of her employment as a kitchen cook. The diagnosis given by the attending physician was multiple contusions and strains especially of the spinal area from the coccyx to the neck. The claim was accepted by the Workers Compensation Board (WCB) and benefits began on January 15, 1998. A number of physiotherapy treatments were provided.On January 19, 1998, x-rays of the right shoulder and lumbosacral spine were obtained. No bone or joint abnormalities were seen at the right shoulder.
In May 1998, a WCB medical advisor reported that the claimant suffered from muscle irritation of the right shoulder. He noted that it was likely her condition was related to myofascial pain. The medical advisor suggested referral for a course of acupuncture which was unsuccessful.
An orthopaedic surgeon was consulted. In his first report dated July 30, 1998, he noted the possibility of a rotator cuff tear.
On January 5, 1999, the claimant underwent a right shoulder arthroscopy, a debrided labrum, a debrided rotator cuff, arthroscopic acromioplasty, and distal clavicle partial excision. The postoperative diagnosis was "partial thickness, rotator cuff tear, humeral side. Superior labral, inner margin tear."
On April 6, 1999, the operating surgeon remarked that "her motion has decreased and her pain has increased to some degree." He considered this to be indicative of "adhesive capsulitis." Additional physiotherapy treatments were given.
On January 5, 2000, the treating orthopedic surgeon noted that the claimant continued to have muscular pain in her neck and below her shoulder blade as well as some anterior shoulder pain. It was felt that the claimant needed to carry on with her life as tolerated. On January 20, 2000, a WCB orthopedic consultant stated that the claimant should continue with a limited work hardening program until the end of March 2000, at which time she would be considered capable of returning to work at regular full time duties.
The claimant was assessed by a WCB physical medicine and rehabilitation specialist (physiatrist) on July 20, 2000. The clinical examination suggested resolution of the adhesive capsulitis. The claimant was reported to have normal shoulder range of motion on the right. There was no evidence of any active myofascial pain involvement. The physiatrist expected that any residual symptomatology should resolve with continuing range of movement and stretching exercises. He did not feel there would be any permanent impairment related to the injury but that it was possible there could be some impairment related to the pre-existing degenerative changes of the acromioclavicular joint arthrosis.
A WCB memorandum dated September 12, 2000 indicated that the file was discussed with the WCB physiatrist who indicated that based on his exam the claimant had recovered. In particular, it was noted that "no evidence of myofascial pain, full ROM - the adhesive capsulitis has resolved".
On September 25, 2000, Rehabilitation & Compensation Services advised the claimant that her wage loss benefits would end effective October 9, 2000 as the weight of medical evidence did not support a continued cause and effect relationship between the compensable injury and her ongoing symptoms. It was felt that the claimant had recovered from the effects of her compensable injury and was fit to resume her pre-accident duties.
In a report dated November 16, 2000, the section head of physical medicine and rehabilitation stated that the claimant did not have full range of motion in the shoulder or full strength about her shoulder. It was noted the claimant would be undergoing trigger point injections. The specialist commented that the claimant may have had pre-existing problems but that her present lack of right shoulder function was a result of her compensable injury.
On December 13, 2000, a WCB physiatrist reviewed the November 16, 2000 letter. In his view, the findings of myofascial pain were not related to the compensable injury due to the nature of the injuries, the passage of time, the age of the claimant as well as the surgery and treatment received to date including "needling treatment."
Further reports were received from the claimant's treating physiatrist on January 9 and January 15, 2001. The physiatrist reported that the claimant had developed a myofascial syndrome affecting her right upper extremity and that she may have a complex regional pain syndrome. The specialist further commented that there was little chance that the claimant would have the function of her right upper extremity to return to her highly repetitive job. The specialist had no doubts that the claimant's present problems "have firm grounding in the injuries suffered with her fall on the stairs in 1998."
Following review of the new medical information by the WCB's healthcare branch, particularly an opinion expressed by a WCB orthopaedic consultant on January 26, 2001, the WCB advised the claimant on February 7, 2001 that no change would be made to the September 25, 2000 decision.
On March 28, 2001, a worker advisor referred to new medical evidence received from the claimant's treating physiatrist dated March 22, 2001. Within this report, the physiatrist fully supported the position that the claimant's present right shoulder condition was directly related to the compensable accident of January 14, 1998 and that the claimant had not recovered from her accident. In response to the question, "In your medical opinion, is [the claimant's] current diagnosis directly related to her compensable accident January 14, 1998" he indicated: "Yes. If she had as much limitation in the function of her right upper extremity and neck prior to the injury, she would not have been able to manage in her job."
A WCB physiatrist reviewed the case on April 10, 2001. The physiatrist agreed with the WCB's orthopaedic consultant's review of January 26, 2001. On a balance of probabilities, the WCB physiatrist felt that the numerous diagnoses noted by the treating physiatrist were not directly related to the workplace incident of January 14, 1998 and that there was no need for restrictions based on the injury of three years ago. On April 17, 2001, the WCB informed the worker advisor that no change would be made to the decision of September 25, 2000.
On May 7, 2001, a second worker advisor requested that a Medical Review Panel (MRP) be convened pursuant to subsection 67(4) of The Workers Compensation Act (the Act) based on a difference of medical opinion between the treating physiatrist and the opinion expressed by the WCB's physiatrist dated April 10, 2001. The request for an MRP was later granted by an Appeal Panel under Decision No. 117/01 and an MRP took place on January 25, 2002.
The MRP included the chairperson and two orthopaedic surgeons. They were assisted by a consulting physical medicine and rehabilitation specialist. The treating physical medicine and rehabilitation specialist was also present. There was no psychological advisor present. In the course of its review of the claimant's medical history, the MRP noted that the claimant was currently being treated for symptoms related to myofascial pain syndrome. The panel observed that "on palpation, local tenderness was noted in the right trapezium, the right infraspinatus region, and the anterior deltoid region, as well as in the right anticubal fossa. No lumps or masses were detected."
The MRP went on to review a number of x-rays of the claimant including the most recent one dated November 22, 2001. It noted that among the various proposed diagnoses for the claimant were "myofascial involvement of the right trapezius and infraspinatus" and "myofascial syndrome affecting the right upper extremity."
In terms of its diagnosis of the claimant's injury, the Panelists agreed that the claimant "sustained musculoligamentous strains of her neck, right shoulder, right arm, right scapular area and back." They observed "the adhesive capsulitis noted followed surgery for a time, but is not now present. The plain x-rays, the MRI and the Operative Report showed nothing in the way of objective findings. The history is one of pain. [The claimant] developed chronic pain syndrome."
The MRP went on to find that the claimant "should have recovered several months after the musculoligamentous strains occurred" and that "they were unable to find any structural changes" which would explain her ongoing problems. They noted that on examination "there is evidence only of sore muscles." They went on to observe "there are no demonstrable physical abnormalities, with the exception of reluctance to move the right shoulder and neck. The lack of movement of the neck is not explained by x-ray changes in the cervical spine. Severe restriction of movement of the right shoulder is present despite a lack of evidence of pathology." The MRP concluded that "there is no physical abnormality which would explain her present complaints of disability."
On February 19, 2002, the worker advisor contended that the MRP report provided the basis to reverse the WCB's previous decisions and that the claimant's benefits should be reinstated effective October 10, 2000. The worker advisor argued that the claimant's chronic pain resulted from her workplace injury and was the WCB's responsibility.
On March 7, 2002, the WCB determined that to properly diagnose the claimant with a chronic pain disorder, she needed to be evaluated at the WCB's Pain Management Unit (PMU). The PMU interview took place on March 21, 2002. The PMU team included a psychological advisor, a medical advisor and a rehabilitation nurse.
On March 22, 2002, it was determined that the claimant did not meet the diagnostic criteria for chronic pain syndrome (CPS) as her disability was not proportionate in all areas of functioning. The PMU observed that the claimant's mood was "notably positive relative to the nature of her reported pain and difficulties. Her thought processes appeared logical and there was no evidence of any thought disorder." It noted that "there was little indication of psychological distress related to her injury or her inability to participate fully in work activities."
The PMU report went on to note "the concept of "hurt without harm" was discussed with the claimant and her husband. There was also discussion regarding pain perception, the psychosocial aspects of pain, and how counseling and multidisciplinary treatment might help in coping with the pain. The claimant and her husband were advised that even if the pain did not go away completely, there were ways of learning to cope with the pain and therefore returning to function even in the presence of pain."
In a letter dated May 10, 2002, the WCB stated to the claimant that it was unable to confirm that she was presently suffering from any type of physical or psychological condition that could be related to her compensable injury or from completing her previous employment activities.
The letter also stated that the surveillance investigation reports (a surveillance of the claimant's activities took place on April 2, 6 and 21, 2002) had been reviewed by a member of the WCB's healthcare branch to confirm the physical capabilities that were shown in the surveillance investigation. "The investigation showed on numerous occasions that your passive range of motion was well beyond the degrees noted by the panelists of the Medical Review Panel. You were shown within the surveillance being able to lift your right arm above your head and also have internal rotation to what would be considered normal. Also, it was shown that your grip strength was well beyond the less than 1 pound noted by the Medical Review Panel. In fact, on two occasions, you were seen lifting a 2-litre jug of milk with no apparent discomfort. The surveillance report was taken into account to show that the findings of the panelists in the Medical Review Panel may not have been entirely correct in showing your present physical capabilities."
On June 17, 2003, legal counsel for the claimant asked the WCB to reconsider its decision that the claimant did not suffer from chronic pain syndrome and consequently was not entitled to receive compensation benefits. Legal counsel contended that the claimant did suffer from a chronic pain disorder which had been clearly supported by medical evidence from the claimant's physicians and by the expert MRP convened by the WCB. On June 27, 2003, legal counsel was advised that the WCB was unable to alter its decision of May 10, 2002 and that the case would be forwarded to Review Office for further consideration.
On July 25, 2003, Review Office confirmed that wage loss benefits were not payable beyond October 9, 2000. Review Office stated, in part, that the claimant had provided the MRP and the WCB's PMU with a presentation of a severely functionally impaired individual. Yet, Review Office noticed on the videotape that the claimant was not presenting any pain behaviour whatsoever and was showing a range of motion far beyond that which was provided in her presentation to the aforementioned physicians. Given this finding, Review Office agreed with the case manager's decision of May 10, 2002. On June 7, 2004, legal counsel appealed Review Office's decision and an oral hearing was arranged.
The Appeal Panel hearing was heard on December 8, 2004. Counsel for the claimant outlined her position that "the major issue for this Commission is whether or not [the claimant] suffers from chronic pain." During the course of the hearing, the claimant discussed her work activities prior to the injury. She also testified about the nature of her injury and the medical treatment she received. Finally, she responded to the concerns of the WCB with regard to the videotape evidence.
The treating physiatrist was then called as a witness. He discussed his credentials and went on to discuss the opinion letters he had written with regard to the claimant. On a number of occasions, (Transcript pages 62, 64, 66, 87/88, 103 and 112), he confirmed his opinion that the claimant suffered from myofascial pain or chronic myofascial pain. In the course of his treatment of the claimant, he observed that she "always had taut bands and she's always had evidence of findable lesions." (Transcript, page 64) With regard to the MRP diagnosis of chronic pain syndrome, the physiatrist confirmed that it was not within the expertise of a physiatrist. (Transcript, page 108).
Counsel for the claimant took issue with a number of the opinions expressed in terms of the claimant's diagnosis. For example, she noted that the orthopaedic consultant's report of January 26, 2001 was performed by a physician who never met the patient. It was also noted the PMU had only met with the claimant once. Counsel for the claimant also made reference to Decision 101/2002 (Exhibit 3) for the proposition that physiatrists were qualified to discuss issues relating to myofascial pain.
Reasons
The Panel finds, based upon a balance of probabilities, that the claimant had recovered from her compensable injury by October 9, 2000. In particular, it is the Panel's view, based upon a balance of probabilities, that the claimant's ongoing difficulties cannot be related to her compensable injury.In making its decision, the Panel has carefully considered the record in its entirety including the written documents, the video surveillance tapes, the oral evidence of the claimant and the oral evidence of the treating physiatrist. The Panel has also reviewed the able submissions of counsel for the claimant.
In making its findings, the Panel places particular emphasis on the following conclusions:
- There was some evidence to suggest that a rotator cuff tear may have resulted from the compensable injury. However, there is no dispute that this tear was repaired by the January 9, 1999 surgery. While a post operative examination in April 1999 suggested some evidence of "adhesive capsulitis", this condition was resolved as confirmed by the report of the WCB physiatrist dated July 20, 2000. The Panel notes the finding of the MRP of January 25, 2002 which found "there is no physical abnormality which would explain her present complaints of disability."
- There is also some information on the file as early as May 1998 which suggests that the claimant might be suffering from myofascial pain. However, the July 20, 2000 examination by the WCB physiatrist confirms that by this time, there was "no evidence of any active myofascial pain involvement."
- While the series of reports from the treating physiatrists dated November 16, 2000 through March 22, 2001 (see Exhibit 1) may suggest that myofascial pain was in existence during that period, there is no link that can be made, on a balance of probabilities, to the compensable injury.
- In his letter of March 21, 2001, the treating physiatrist attempts to relate the claimant's current circumstances to the compensable injury by stating "if she had as much limitation in the function of her right upper extremity and neck prior to the injury, she would not have been able to manage in her job." However, this reasoning does not consider other intervening factors. Nor does it explain why there was "no evidence of any active myofascial pain involvement" in the WCB physiatrist's report of July 20, 2000. The Panel notes the December 13, 2000 report of the WCB physiatrist who was unable to make the link between the myofascial findings of November 16, 2000 and the compensable injury due to the nature of the injury, the claimant's age and prior needling treatment.
- On a balance of probabilities, the panel concludes that no relationship can be made between the compensable injury and the diagnosis of myofascial pain made by the treating physiatrist. The treating physiatrist's diagnosis was well over two and one half years after the compensable injury and the more contemporaneous finding of the WCB physiatrist in July 2000 was that there was "no evidence of any active myofascial pain involvement."
- After finding the claimant "should have recovered several months after the musculoligamentous strains occurred" and that "they were unable to find any structural changes" which would explain her ongoing problems, the MRP went on to suggest that the claimant developed chronic pain syndrome. However, it should be noted that the MRP was convened as a result of the differing opinions regarding the existence of myofascial pain syndrome and its relationship to the claimant's injuries. The Panel was composed of orthopedists and physiatrist consultants but there was no psychological consultant.
- When the PMU, which had the benefit of a psychological advisor, was asked to consider the issue of chronic pain syndrome it found that the claimant did not meet diagnostic criteria. The Panel accepts this finding on a balance of probabilities. It notes that the PMU was specifically constituted to consider this question and that its expertise in terms of the diagnostic criteria is not in dispute. The Panel also notes that the PMU found "little indication of psychological distress related to her injury." For these reasons, the Panel prefers the findings of the PMU to those of the MRP on the issue of the existence of chronic pain syndrome.
- The Panel notes the reference to Decision 101/2002 by counsel for the claimant does not assist it in its deliberations. That decision confirms that physiatrists are well suited to discuss issues related to myofascial pain. However, that reality is not disputed in this proceeding. Both the treating physiatrist and the WCB physiatrist have offered their opinions on the existence of myofascial pain at a certain point in time and its relationship to the compensable injuries (see paragraphs 3 - 5 immediately above). However, as the treating physiatrist confirmed (Transcript, page 108) a diagnosis of chronic pain syndrome as opposed to myofascial pain syndrome lies outside the expert domain of physiatrists.
Panel Members
B. Williams, Presiding OfficerP. Challoner, Commissioner
L. Butler, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of February, 2005