The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 17, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not wage loss benefits are payable beyond July 10, 2001.

Decision

That wage loss benefits are payable beyond July 10, 2001.

Decision: Unanimous

Background

The worker was employed in the garment industry for over twenty years.

During the course of her employment duties as a sewing machine operator, on June 1, 1995, the worker experienced back and shoulder pain when she picked up a bundle of jeans (between 20 and 30 pairs).

On June 2, 1995, x-rays were taken of the worker's cervical spine and left shoulder. The cervical spine x-rays revealed cervical spondylosis. The left shoulder x-rays revealed no fracture or dislocation. The treating physician diagnosed the worker with a left shoulder strain and treatment included medication and physiotherapy. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the worker beginning June 2, 1995.

Ongoing medical reports revealed that the worker was treated by an orthopaedic specialist and was examined by a medical advisor at the WCB on October 2, 1995.

On December 5, 1995, the WCB ended the worker's benefits as it was felt that she had recovered from the effects of her injury and was capable of returning to her pre-accident employment. The decision to end benefits was appealed by a worker advisor based on new medical information which led to the convening of a Medical Review Panel (MRP).

In its report of September 13, 1996, the MRP stated that the most probable diagnosis following the June 1, 1995 accident was acute radiculitis superimposed on pre-existing degenerative cervical spondylo-arthropathy. The MRP further indicated that there was no evidence that the worker had a pre-existing condition of her left shoulder or back. However, there was evidence that the pre-existing cervical condition was aggravated or possibly enhanced by the compensable incident. Recommendations for treatment included an assessment by an independent neurologist. Based on the MRP's findings, Review Office determined that the worker had not recovered from the compensable injury and benefits were reinstated.

In a report dated May 5, 1997, a neurologist reported that the worker's condition was consistent with a rotator cuff and myofascial pain syndrome and that it resulted from the June 1, 1995 incident. The neurologist commented that the worker remained symptomatic and was unable to perform repetitive movements with her shoulder or neck or heavy lifting. He felt that the worker would benefit from a referral to a physical medicine specialist.

In a report dated October 7, 1997, a physical medicine specialist (a physiatrist) outlined his examination findings and diagnosed the worker with chronic pain syndrome, possible carpal tunnel syndrome and possible left rotator cuff tendinopathy.

On January 13, 1998, the worker was interviewed by a medical advisor from the WCB's Pain Management Unit (PMU). The medical advisor concluded that the worker qualified for a diagnosis of chronic pain syndrome and arrangements were made for the worker to undergo treatment.

In November 1999, the worker commenced a graduated return to work program. In a memo dated February 21, 2000, the vocational rehabilitation consultant (VRC) stated that the worker was unable to increase her work hours and that her pain level increased.

On January 31, 2000, a clinical psychologist outlined his impression that the worker suffered from pain disorder and a major depressive episode.

In a PMU memo dated May 23, 2000, it was recorded that the worker continued to demonstrate significant pain and disability, passive pain management, lack of understanding of her medical condition, sleep disturbance, vocational uncertainty, an over-reliance on a medical cure and a tendency to be concrete in her perceptions. Treatment suggestions included a referral to a specialist for management of her depression. On May 25, 2000, the WCB arranged for the worker to be assessed and treated by a psychiatrist.

On December 15, 2000, a WCB medical advisor examined the worker and provided the family physician with a copy of his examination findings. The medical advisor found that the worker's current presentation was not suggestive of a cervical radiculitis/radiculopathy, a cervical/thoracic ligamentous sprain or a left rotator cuff lesion. He further stated that he was unable to concur with the diagnosis of acute radiculitis superimposed on pre-existing degenerative cervical spondylo-arthropathy as cited by the MRP of September 13, 1996.

On January 9, 2001, the worker was reassessed by two medical advisors from the WCB's PMU. In a case conference memo dated January 25, 2001, it was recorded that the worker was not presenting with symptoms of a major depression. The PMU also determined that further clarification of the worker's functional status was required before any further recommendations were made.

In a memo dated March 1, 2001, the medical advisor from the WCB's PMU indicated that the worker still qualified for a diagnosis of chronic pain syndrome.

In an interview with a WCB employee on July 5, 2001, the worker advised that one of the ways she maintained some activity was through gardening.

On July 10, 2001, a videotape surveillance was carried out with regard to the worker's activities.

In a memo dated July 22, 2001, the PMU medical advisor indicated that he reviewed the videotape and was of the view that the worker did not qualify for a diagnosis of chronic pain syndrome as her disability was not proportionate in all aspects of functioning.

In a memo dated July 26, 2001, a WCB medical advisor indicated that he reviewed the video surveillance and found no objective evidence of any pathology, pain behavior or pain syndrome. He felt that the worker was fully recovered from any compensable sequelae.

In a memo dated October 19, 2001, a WCB medical advisor made the following comment following his review of the videotape surveillance:

"Notwithstanding the diagnoses cited on file to account for Ms. [worker's] symptoms, the recent videotape has not indicated functional impairment at the cervical spine or left upper extremity on which to impose restrictions on Ms. [the worker's] pre-accident duties as a sewing machine operator."

In a decision dated October 23, 2001, the worker was advised that the WCB was ending responsibility for her claim effective July 10, 2001. Following review of the opinions expressed by the WCB's healthcare branch, the case manager determined that the worker had sufficiently recovered from the effects of her injury to return to her pre-accident duties. It was also noted that the worker was overpaid benefits retroactive to July 9, 2001 and was required to reimburse the WCB with the full amount of the overpayment.

On January 14, 2003, a worker advisor appealed the above decision to Review Office. The worker advisor argued that the worker had not recovered sufficiently from the effects of her 1995 injury and was unable to resume her pre-accident work. Included with the submission was a report by a physician dated June 10, 2002.

In a memo dated May 2, 2003, a WCB medical advisor indicated that he reviewed the file along with the June 10, 2002 report and there was no change to his opinion cited on page six of his October 19, 2001 memo.

On June 12, 2003, Review Office asked a WCB orthopaedic specialist to review the file and to comment on the worker's physical injury.

On June 13, 2003, Review Office determined that the worker was not entitled to benefits beyond July 10, 2001. Review Office found no evidence to show that the worker continued to suffer from chronic pain syndrome. Review Office concurred with the observations made by the WCB orthopaedic specialist on June 12, 2003. Review Office stated, "The diagnosis of this worker's condition was most probably a strain or sprain of the cervical area and the upper left extremity/shoulder area. There is no evidence to suggest that either condition continues to bother the worker at this time. Further, there is no evidence that this worker, by reason of this accident, is functionally impaired to the point she could not be a sewing machine operator, if she chose to do so."

In a letter to Review Office dated November 5, 2003, a worker advisor referred to the opinion expressed by a physiatrist who had been treating the worker since last June. The specialist's opinion was that the worker developed central sensitization recreated by the ongoing pain in her left shoulder and neck which was due to the strain/sprain the worker experienced in June 1995. In the event that Review Office decided against reversing its decision, the worker advisor requested the convening of an MRP.

On November 17, 2003, Review Office asked the WCB orthopaedic specialist to review the new medical information and to provide his thoughts on the theory of central sensitization postulated by the treating physiatrist. He was also asked to comment on whether the worker's current complaints were a consequence of lifting bundles of jeans on June 1, 1995.

In a decision dated November 24, 2003, Review Office confirmed its earlier opinion that the worker's ongoing complaints were not related to the incident that occurred in the workplace in 1995 and that she was not entitled to the payment of additional benefits.

On February 26, 2004, a WCB unit manager denied the request to convene an MRP as it was his opinion that the evidence did not establish a difference of medical opinion between the worker's physicians and the WCB's medical advisors.

On March 11, 2004, the treating physiatrist offered his interpretation of the worker's actions as seen on the videotape based upon his understanding of her pain. He noted that the pain in the worker's left shoulder appeared to manifest itself when her shoulder was raised above 110 to 120 degrees. He observed that it appeared to be most prevalent when she was engaged in repetitive and weighted actions.

In observing the videotape, the treating physiatrist observed that the worker's arms were not raised above 120 to 130 degrees and that the right arm, rather than the left, was primarily performing both the repetitive and reaching actions. In his view, "the activity seen on the video tape does not indicate that she would be able to do sustained repetitive activity with her upper left extremity."

On April 16, 2004, the worker advisor asked the unit manager to review further medical information from the treating physiatrist dated March 11, 2004. Following review of the new medical information, the unit manager decided to convene an MRP as he was satisfied that a difference in medical opinion existed.

An MRP was convened on December 1, 2004. The worker was interviewed by the Panel and a consulting psychiatrist. On January 20, 2005, the MRP reported its opinion of chronic pain syndrome to the WCB. The case was then forwarded to Review Office.

On March 29, 2005, the worker was interviewed by two medical advisors from the WCB's PMU at the request of Review Office. No express opinion as to the existence of chronic pain syndrome was offered by the PMU.

On June 27, 2005, the MRP reconvened to consider requests for clarification of its previous report dated January 20, 2005. The MRP response to the WCB is dated August 11, 2005. In its report, the MRP took the view that the worker still had "chronic pain in the left trapezius, cervical spine, shoulder and deltoid area." In reaching this unanimous opinion, the MRP specifically reviewed the chronic pain checklist. It noted that despite "appropriate intervention ... has failed to achieve significant and sustained improvement" and that "the pain initially demonstrated some progression and now is steady." In the MRP's view, there "have been no periods of remission despite the fact that there are sometimes better days."

The MRP specifically considered the possibility of contraindications and found that there were none. In assessing the credibility of the worker, the MRP noted the worker had relatively consistent presentation to medical professionals throughout the period dating from the time of the injury and that other medical professionals had reached a similar diagnosis.

The MRP noted that the videotape was reviewed but in its opinion the left arm "was not specifically and sufficiently stressed to give a good indication as to whether or not she was experiencing pain. By her history, the pain [was] only worsened by more heavy physical activity as mentioned above."

In a decision dated August 16, 2005, Review Office confirmed that wage loss benefits to the worker were not payable beyond July 10, 2001. Review Office indicated that it placed far more significance on the surveillance evidence than the MRP did. Review Office suggested that the video surveillance tapes showed the worker fully using her left upper limb while involved in gardening tasks, holding a huge saddlebag purse or carrying purchased products and that she showed zero pain behavior and absolutely no evidence of functional impairment. Review Office did not relate the worker's subjective complaints of pain between July 10, 2001 and the present to the incident of lifting jeans on June 1, 1995. On September 12, 2005, the worker advisor appealed Review Office's decision and an oral hearing took place on November 17, 2005.

Reasons

The Panel concludes, based upon a balance of probabilities, that the worker is suffering from chronic pain syndrome related to her workplace injury of June 1, 2005.

In reaching this conclusion, the Panel has considered the credibility of the worker as well as the written and oral evidence and videotape record in its entirety.

In considering the worker's credibility, the Panel specifically notes that her presentation to medical experts has been relatively consistent throughout the course of her injury and that there has been no material change in her condition since July 10, 2001. The Panel accepts, based upon a balance of probabilities, the conclusion of the MRP that the worker has failed to "achieve significant and sustained improvement", there "have been no periods of remission" and that the worker has been unable to return to work because of the pain. It bases this conclusion on its review of the medical evidence as well as on its assessment of the credibility of the worker.

While Review Office places greater emphasis on the surveillance evidence, it is the Panel's view that nothing in the video surveillance contradicts the medical evidence on file suggesting the existence of chronic pain syndrome. In observing the videotape evidence, the Panel concludes that the worker primarily uses her right hand and arm in reaching and repetitive actions. The Panel also notes that the worker made no effort to hide her gardening activities. Indeed, prior to the surveillance tape being created, she advised the WCB that gardening was one of the ways in which she stayed active.

The Panel accepts, based upon a balance of probabilities, the physiatrist's conclusion that "the activity seen on the video tape does not indicate that she would be able to do sustained repetitive activity with her upper left extremity." In drawing this conclusion, the Panel is sustained by its own observations as well as the conclusions both of the MRP and the worker's physiatrist which it considers to be more thorough and more carefully considered than the views expressed in 2001 by the WCB medical advisor and the PMU medical advisor.

In concluding, based upon a balance of probabilities, that the worker continues to suffer from chronic pain syndrome related to the workplace injury of June 1, 1995, the Panel places greater weight on the conclusions of the MRP dated December 1, 2004 and June 27, 2005. It notes that the MRP had two opportunities to interview the worker, to assess her activities as demonstrated on the videotape and to consider the medical record in its entirety against the WCB's chronic pain syndrome checklist.

The Panel notes that the conclusion of the MRP is also consistent with the views expressed by a number of medical professionals who had previously reviewed the worker including the physical medicine specialist in 1997 and the PMU in 1998. It observes that no express opinion as to the existence of chronic pain syndrome was offered by the PMU following its interview of the worker on March 29, 2005.

Based upon a balance of probabilities, the Panel concludes that the worker continued to suffer from chronic pain syndrome and was unable to return to work because of the pain beyond July 10, 2001 as a result of her workplace injury of June 1, 1995. Accordingly, the appeal is allowed.

Panel Members

B. Williams, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of January, 2006