The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 27, 2004, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on October 27, 2004 and again on January 18, 2005.

Issue

1. Whether or not there is evidence of a compensable chronic pain syndrome that requires treatment;

2. Whether or not the identified physical restrictions are appropriate;

3. Whether or not the worker's bladder difficulties are related to the March 4, 1986 compensable injury; and

4. Whether or not the worker's Permanent Partial Disability award should be reassessed at this time.

Decision

1. That there is no evidence of a compensable chronic pain syndrome that requires treatment;

2. The identified physical restrictions are appropriate;

3. This issue was withdrawn at the oral hearing at the worker's request;

4. The worker's Permanent Partial Disability award should not be reassessed at this time.

Decision: Unanimous

Background

In March of 1986, the worker was lifting a patient during the course of his employment as a healthcare assistant when he injured his back. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly which included vocational rehabilitation assistance. The WCB awarded the worker a permanent partial impairment award as a result of his back injury and he has permanent work restrictions. On November 29, 1994, the case was considered by an Appeal Panel and it was the majority opinion of the Panel that the worker's deemed earning capacity of $306.75 was appropriate.

On January 24, 2003, a worker advisor, acting on the worker's behalf, appealed a number of decisions that were rendered by the WCB between June of 1997 and June 2002. The worker advisor referred to various medical reports on file and presented argument with respect to the following positions:

• that the worker was not capable of sustaining full time employment at an earning capacity of $306.75 per week. The worker advisor argued that the worker's compensable chronic pain syndrome continued to prevent his obtaining and maintaining the earning capacity that was confirmed by the Appeal Panel in January 1995. It was submitted that the worker's chronic pain syndrome and depression had not been fully investigated nor given due consideration when case management adjudicated the worker's recurrences;
  
  
• that the worker's permanent partial impairment award should be reassessed given the recent diagnostic images which confirmed a progression of degeneration.
  
  
• That the worker's recurrences and subsequent loss of earning capacity were due to his ongoing unaddressed chronic pain syndrome which was responsible for his increased physical limitations and depressive condition.

On July 11, 2003, Review Office rendered the following decisions in conjunction with the worker advisor's submission:

• there was no evidence of chronic pain syndrome that required treatment.
  
  Review Office noted that the worker had a history of chronic pain stemming from organic pathology arising out of his March 4, 1986 low back injury leading to his two surgeries. His continuing symptoms, in part, could be explained on an organic basis and was not the same as chronic pain syndrome. Review Office noted that the WCB did not accept that the worker had a chronic pain syndrome and secondary depression as a result of his compensable back injury and would not consider any proposed treatment. Review Office did accept that the worker's pain was chronic and genuine in relation to his physical injury and that he had received ample treatment for this injury over the years. At this stage, no doctors have made any recommendations for any further treatments due to his physical injury that could be given due consideration.
  
  
• The identified physical restrictions were appropriate and the worker was capable of working within these restrictions. It was determined that the worker was not entitled to temporary total disability benefits.
  
  Review Office noted that many of the reports referred to by the worker advisor indicated that the worker has either worked, albeit with pain complaints, or was capable of performing some work, i.e. a caretaker. These reports and other reports on file did not support the worker as being totally disabled or that there should be a change in his physical restrictions, according to Review Office. Review Office saw no need to disturb the deemed earning capacity that had been established.
  
  
• The worker's permanent partial impairment award should not be re-assessed at this time.
  
  Review Office took into consideration a neurosurgeon's report which indicated that the worker's straight leg raising was full and he further commented that the worker no longer had any significant left sided sciatica. This suggested to Review Office an improvement. There was no other additional information on the file to suggest and/or support a significant deterioration in the claimant's physical status that would warrant re-assessment of his PPI rating at this time.

In June 2004, the worker advisor requested the case be considered at the Appeal Commission as she disagreed with Review Office's recent decisions. On October 18, 2004, the worker advisor submitted additional medical evidence in support of her position. On October 27, 2004, an oral hearing was held at the Appeal Commission.

Following the hearing and after discussion of the case, the Appeal Panel made a request for the worker to be examined by the WCB's Pain Management Unit (PMU) with respect to his present medical status. On December 20, 2004, the parties with a direct interest were provided with a copy of the PMU's exam results and were asked to provide comment. On January 18, 2005, the Panel met to render its final decision with respect to the issues under appeal.

Reasons

We were asked to address three issues at this appeal. Initially there were four issues, however the worker's representative withdrew the issue regarding bladder difficulties.

The first issue we were asked to determine was whether there is evidence of a compensable chronic pain syndrome that requires treatment. We found on a balance of probabilities, that there is not a compensable chronic pain syndrome.

The second issue was whether the worker's identified physical restrictions are appropriate. We found the restrictions to be appropriate.

The final issue was whether the worker's permanent partial disability award should be reassessed at this time. We found that that the award should not be reassessed at this time.

Evidence at the Hearing

The worker was represented at the hearing by a worker advisor who made a submission on behalf of the worker. The worker answered questions posed by his representative and by the Panel. The employer did not attend the hearing but provided a written submission.

The worker's representative stated that the worker is entitled to additional compensation benefits. "It is our position that his total unemployability developed some time after January 11, 1995 due to a progression of his compensable conditions, including his chronic pain syndrome." She asserted that the medical evidence confirms that the worker's chronic pain syndrome is a barrier to the worker's ability to sustain the deemed earning capacity that was confirmed by the Appeal Commission in 1995.

Although the representative disagreed with the WCB's criteria for a diagnosis of chronic pain syndrome and referred to reports from other physicians who diagnose the worker as having chronic pain syndrome, she offered the opinion that the worker's current condition meets the WCB criteria.

The worker advised that he is currently unemployed. He provided information on his recent employment history and advised that his last job was as a direct service worker in the family services field. He left work after having a "breakdown" at work. The worker is currently participating in a program designed to help him find employment.

The worker described his current social activity, prescription drug usage and medical treatments.

Analysis

Issue 1:

We were asked to find that there is evidence of a compensable chronic pain syndrome that requires treatment.

To assist in addressing this issue we asked that the worker be examined by the WCB's PMU. This unit includes a medical doctor and psychologist. The worker was examined on November 30, 2004. The PMU provided a report which was sent to both the worker and employer. Both provided comments on the report.

With respect to whether the worker has a compensable chronic pain syndrome, the PMU provided the following opinion:

"Based on today's assessment, the Pain Management Unit is of the opinion that Mr. [the worker] does not meet the criteria for a Chronic Pain Syndrome as per WCB Manitoba criteria (sic) pain syndrome given that his disability is not proportional in all domains of activity. He appears only to have reduced functioning in the occupational domain, but continues to be quite active in other aspects of his life. He may be somewhat limited by the ongoing presence of symptoms of depression and is currently receiving treatment.

With respect to whether or not Mr. [the worker] has any physical or psychological workplace restrictions, the Pain Management Unit is only in a position to respond with respect to psychological workplace restrictions. It does appear that Mr. [the worker] has a history of having had a number of psychological difficulties in the past. These appear to have had an impact on his ability to perform his work duties and, as he noted, he has lost a number of jobs during the past few years. Whereas the claimant may have difficulty handling stressful situations and interacting with co-workers under certain situations due to the aforementioned psychological difficulties, these appear to be characterological in origin and to have pre-dated the compensable injury. As such, even though they may constitute barriers to a successful return to work, there does not appear to be a need to place restrictions based on psychological issues as they do not appear to be causally related to nor do they appear to have arisen out of the compensable injury. Therefore the Pain Management Unit does not recommend any workplace restrictions be put in place based on psychological issues."

We have considered this opinion and weighed all the other evidence on the file, including the worker's testimony at the hearing and find on a balance of probabilities, the worker does not have a compensable chronic pain syndrome at this time. We place significant weight upon the above referenced PMU assessment.

Issue 2:

The second issue before us was whether the identified physical restrictions are appropriate. We note that the worker was examined by WCB medical advisors on July 25, 1994 and December 30, 2004.

In 1994 the worker's restrictions included avoiding lifting of heavy objects, frequent bending or squatting and walking long distances.

In 2004, the worker's restrictions included no lifting greater than 15 lbs, avoid repetitive bending or rotating at the waist level and avoid ladders and uneven ground.

The restrictions are very similar. It is noted that the WCB medical advisor has recommended that the restrictions be made permanent.

We find that the identified physical restrictions are appropriate. We note that the WCB PMU addressed the issue of psychological restrictions and have included this information under Issue 1 above.

Issue 3:

The third issue was whether the worker's PPD award should be reassessed.

The worker was examined by WCB medical advisors on July 25, 1994 and December 3, 2004. We have compared the results of the two examinations and find that the worker's permanent partial disability award should not be reassessed at this time.

The worker's 1994 examination results were:

• Straight leg raises to 45°, standing and sitting with both legs can be done to 80°. Flexion reached 70° and backward extension to 10°. Rotating to the left and right reached to 30° and flexion to left and right to 30° bilaterally.

The worker's 2004 examination results were:

• Distracted straight leg raise and Lasegue's test were negative at 80°, supine straight leg raise and Lasegue's test were negative at 60° bilaterally
  
  
• ROM of cervical spine was flexion 40°, extension 26°, side flexion 20° bilaterally, rotation 50° bilaterally
  
  
• ROM of the lumbosacral spine was flexion of fingertips to the mid shins, extension 10°, side flexion 35° bilaterally, and rotation 50° bilaterally

At both examinations, the worker was able to heel and toe walk and perform a full squat.

The worker was also seen by a neurosurgeon in June 2002. At that time the neurosurgeon reported "On exam today, straight leg raising is full bilaterally with no increase in pain or dorsiflexion of the feet." The neurosurgeon also noted that the worker no longer had any left-sided sciatica.

The above comparison does not demonstrate a significant change or deterioration in the worker's physical status. We find that there is no basis to reassess the worker's permanent partial disability award at the current time.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of February, 2005