The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 13, 1998 at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this case on October 13, 1998, and again on August 31, 1999.

Issue

Whether the claimant has recovered from the effects of the compensable injuries;

Whether responsibility can be assumed for the worker's current major affective disorder, for the fibromyalgia condition or for the temporomandibular joint condition; and

Whether the claimant is entitled to the payment of wage loss benefits beyond December 30, 1996.

Decision

That the claimant has recovered from the mechanical back strain but not from the major affective disorder, or from the fibromyalgia condition;

That responsibility cannot be assumed for the worker's temporomandibular joint condition; and

That the claimant is entitled to payment of wage loss benefits beyond December 30, 1996.

Background

On July 20, 1992, the claimant felt pain on the right lower side of her back while

transferring a patient from a bed to a commode. Following an examination by her attending physician, the claimant was diagnosed with low back pain with right sciatica. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced. On September 11, 1992, a CT scan reported no evidence of a disc herniation, spinal stenosis or nerve root compression at any level.

Subsequent medical information revealed that the claimant had been seen by a number of physicians with respect to the compensable injury. The following is a brief description of various medical reports noted on file:

• a WCB medical advisor reported his examination findings on December 10, 1992. The claimant’s symptomatology and physical findings supported a diagnosis of a herniated nucleus pulposus in the lumbosacral disc and was related to the compensable injury. The medical advisor also noted the potential for developing chronic pain syndrome.

• on January 11, 1993, a neurologist diagnosed the claimant’s condition as mechanical back pain. A bone scan later revealed no abnormalities.

• on January 26, 1993, an orthopaedic specialist was of the view that the claimant had a low back strain.

• the claimant was examined by a WCB medical advisor on September 7, 1993. The medical advisor indicated that the primary manifestations of the claimant’s compensable injury were now weakness and irritability of the left hip abductor and external rotator musculature with consequent radiation of pain down the left hip through the iliotibial band over the left greater trochanter. No significant evidence of chronic pain behavior syndrome was identified and further therapy was recommended.

• in March 1994, the claimant was again examined by the above WCB medical advisor and he noted that the claimant had an adjustment disorder with a depressed mood and “may in fact have a major affective disorder.” He also felt the claimant was still suffering from problems with her left hip. The claimant had hip abductor muscular weakness, irritability, the potential for myofascial pain as well as left hip trochanteric bursitis.

• in September 1994, the examining WCB medical advisor was of the opinion that the claimant was “now tending to fall back into a potential diagnosis of a major affective disorder.” Also noted, “at this time it is impossible to make a diagnosis of fibromyalgia”.

• on January 12, 1995, a physiatrist diagnosed myofascial pain syndrome involving multiple muscles. In later reports, the physiatrist indicated that the claimant’s condition was starting to improve. By May 9, 1995, the claimant was contending that she could not perform her job duties and was unable to weight bear.

• in August 1995, a psychologist reported that the claimant had no signs of a clinical depression, however, she was distressed about not being physically able to perform her job as a nurse.

• the physiatrist provided a report, dated November 21, 1995, outlining his examination findings between May 26, 1995, and October 12, 1995. By October 12, 1995, further treatment by trigger point injections was discontinued and the physiatrist noted that the claimant still had localized areas of pain. Mood alteration still occurred but overall the claimant improved in regard to depression. The physiatrist commented that the claimant would not succeed in returning to her previous job as a ward nurse, which required frequent and heavy lifting.

Following consultation with a WCB medical advisor on December 20, 1995, Claims Services determined that the claimant had recovered from the effects of her compensable injury and that wage loss benefits would end on April 19, 1996. This decision was later appealed by the claimant. Review Office later restored benefits effective April 20, 1996. Subsequent file documentation contained reports from the WCB physiatrist and psychiatric consultant, the claimant’s treating psychiatrist and physiatrist as well as a specialist in oral and maxillofacial surgery.

On November 29, 1996, Review Office determined that the claimant had recovered from the effects of her compensable injuries and that the worker was not entitled to payment of wage loss benefits beyond December 30, 1996. Responsibility was also denied for the worker’s current major affective disorder, the fibromyalgia condition and the temporomandibular joint (TMJ) condition. Review Office based its findings on the following:

• the etiology of fibromyalgia was considered to be unknown in the medical community. There was no proven relationship between this condition and the accident that occurred to the worker in 1992.

• the claimant was experiencing symptoms of depression to which she was apparently genetically pre-disposed. This condition was further exacerbated by sleep dysfunction and stress factors that were not considered to be related to the musculoligamentous strain sustained under the claim.

• the dental specialist offered the opinion that the TMJ problems actually pre-existed this accident but that the worker had some pre-existing vulnerability which would make her prone to developing more severe symptoms which can be associated with stress. As it was determined through consultation with WCB medical advisors, that the stress was not directly related to the accident, responsibility for the TMJ could not be accepted.

Arrangements were later made for an Appeal Panel hearing on October 13, 1998, at the request of legal counsel acting on behalf of the claimant. Following the hearing the Appeal Panel requested that a Medical Review Panel (MRP) be convened and that an up-to-date report be obtained from the claimant’s rehabilitation specialist. On July 16, 1999, all parties were provided with the Medical Review Panel reports (Discipline- Psychiatry and Orthopaedics) and reports from the rehabilitation specialist, dated December 8, 1998. On August 31, 1999, the Panel met to render its final decision.

Reasons

Chairperson MacNeil and Commissioner Frisken:

With respect to the first two issues, we find, based on the weight of evidence, that the claimant has recovered from her mechanical back strain but not from the other effects of her compensable injury. The claimant’s continuing difficulties are, on a balance of probabilities, a sequela of the original insult to the claimant’s lower back. The Orthopaedic Medical Review Panel, in its May 28^th, 1999, report, agreed that the claimant suffered a mechanical back strain and that she had recovered from this injury.

In arriving at our decision, we attached considerable weight to certain conclusions reached by both the Orthopaedic and the Psychiatric Medical Review Panels.

Q. Subsequent to the compensable injury the claimant was diagnosed as having developed a number of other medical conditions and without being restrictive the following have been referred to:

• myofascial pain syndrome
• fibromyalgia
• temporomandibular joint syndrome
• high perception of pain
• mood disorders
• major affective disorder
• left trochanteric bursitis

Is there a causal relationship (i.e. other than temporal) between any of these conditions and the work related injury?

A. This Psychiatric Panel does not feel competent to dispute this diagnosis.

This Orthopaedic Panel does not feel competent to dispute this diagnosis [Myofascial Pain syndrome].

This Panel, discipline Psychiatry, accepts that Mrs. [the claimant] does demonstrate the condition known as fibromyalgia.

This Panel, discipline orthopaedics, accepts that Mrs. [the claimant] does demonstrate the condition known as fibromyalgia.

The Panellists are unable to see an association between the back injury and Temporomandibular Joint Syndrome.

The Panellists agree that there is evidence of a major affective disorder.

There is no evidence that it [left trochanteric bursitis] is accident related.

The Panellists are of the opinion that the main problem affecting Mrs. [the claimant] at the present time is an affective mood disorder. After reviewing the records and an interview of Mrs. [the claimant] it appears that the mood disorder is secondary to her many losses. These losses would include her profession, her enjoyment of life, financial difficulties and her perception of pain.

Q. Is there a causal relationship between any of the conditions, listed in [the previous question] and a pre-existing condition?

A. No. All records suggest that [the claimant] was well and performed well prior to her accident.

Q. What is the present diagnosis of the worker’s condition and the etiology of the condition?

A. Major depression related to losses following her lay off from work.

Chronic Pain Disorder associated with Psychological factors and a general medical condition. This syndrome is probably related to the depression.

Fibromyalgia Syndrome. This diagnosis is based on the opinion of her treating physiatrist and probably is related to the depression.

The Panellists agree that Ms. [the claimant] has developed a Mood Disorder due to Chronic Pain with Major Depressive like Episodes 293 . 83.

The Panellists agree that this complication is directly related to the medical problems suffered from the work related accident.

Q. What relationship, if any, does the present diagnosis have to the original injury?

A. The Panellists agree that the present diagnoses are related to the original injury in that her present response is due to the numerous losses which she has suffered and also to an underlying psychological condition.

The Panellists agree that the present diagnoses are related to the original injury in that her present response is due to the numerous losses which she has suffered and to medical problems suffered from the work-related accident.

In light of our determinations with respect to the first two issues, we find that the claimant would accordingly be entitled to payment of wage loss benefits beyond December 30^th, 1996. We also endorse and recommend the implementation of the treatment options outlined by the Psychiatric Medical Review Panel:

“The Panellists agree that the prognosis is guarded. She has presented with the same problems for a long period of time. The Panellists do not believe that any physical modalities in the matter of treatment are likely to be effective since these have been attempted and failed. Psychiatric treatment should be considered. A graduated exercise program should also be beneficial.”

Panel Members

R. W. MacNeil, Presiding Officer  R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of September, 1999

Commissioner's Dissent

Commissioner Finkel’s dissent:

This has been a complex and difficult claim in which the claimant, who suffered an apparently minor musculoligamentous back strain in 1992, continues to suffer from debilitating conditions seven years later that have seriously impacted on her quality of life and her ability to work. The issue at hand, though, is whether the claimant’s current conditions are causally related to the original compensable incident. It is only on this basis that the WCB would have a ongoing responsibility for benefits beyond December 30, 1996, for wage loss benefits.

As well as the considerable medical documentation on file, this Panel has had the opportunity to seek greater clarification of the claimant’s medical conditions, through a referral to a Medical Review Panel under subsection 67(3) of the Workers Compensation Act, and as well from updated medical reports from a rehabilitation medicine specialist who had been examining and treating the claimant.

In reviewing the findings of these reports and of the evidence on the file, I concur with my colleagues who have accepted the following conclusions of the Medical Review Panel:

Where I differ from my colleagues is as to whether the conditions of fibromyalgia and the associated major affective disorders are causally related to the original compensable accident. After a review of all the evidence on the file and as presented at the hearing and subsequently made available through the medical review panels, I find that the evidence does not support, on a balance of probabilities, that any of the claimant’s current conditions are causally related to the original compensable injuries.

In support of these findings, I note the following evidence:

• The Medical Review Panel in its report of May 28, 1999 indicates that the claimant suffered a Mechanical Back Strain following her work-related accident in July 1992. In response to Question 3, the panel agree that the claimant has recovered from the effects of her compensable injury. In subsequent questions, the panel confirms that the claimant had no pre-existing injuries or conditions.
• Dealing with the temporomandibular joint syndrome diagnosed subsequent to the compensable injury, there is evidence on file that the claimant had been suffering from this condition for several years prior to the 1992 accident. The Medical Review Panel finds, in response to question 7, that there is no evidence to tie the temporomandibular joint syndrome to the compensable injury.
• Dealing with the medical condition of fibromyalgia, Question 7 of the Medical Review Panel’s report of May 28, 1999 lists a number of medical conditions which have appeared on the file, and asks “Is there a causal relationship (i.e. other than temporal) between any of these conditions and the work-related injury? If so, please explain.” In response to this question, the panel notes that the claimant’s physiatrist first mentions the diagnosis of fibromyalgia on October 8, 1998 and accepts that the claimant demonstrates the condition. The panel goes on to state, “Fibromyalgia Syndrome - A condition whose existence is a matter of controversy, is defined as generalized muscle aching, multiple tender points, fatigue, morning stiffness, and insomnia that may be associated with back pain.”
• These findings are consistent with earlier evidence on file of the presence of the fibromyalgia condition. In particular, I note the first references to this condition by a physiotherapist on September 1, 1994; in January 1995, the claimant’s treating physiatrist notes that the claimant has tender points at most of the classic points for a diagnosis of fibromyalgia but equally for a diagnosis of multiple muscular myofascial pain syndrome; in July 1996 considered the diagnosis of fibromyalgia with a superimposed depression but was unable to separate out the fibromyalgia condition and chose to treat the depression; the claimant’s family physician notes that in July 1997, the claimant’s symptoms fulfilled the criteria for diagnosis of fibromyalgia. Similarly the claimant’s physiatrist in his note of April 13,1996 changes his earlier diagnosis of multiple myofascial pain diagnoses a “multiple myofascial syndrome as well as fibromyalgia” with perpetuating factors such as depression, sleep disorder and emotional stress,” even though treatment for myofascial pain for an eight month period had been ineffective.
• As to the etiology of the fibromyalgia condition, the MRP indicates that it is related to the accident in that it related to the losses experienced by the claimant. The MRP comments that there are no real physical underpinnings to the current diagnosis of fibromyalgia or to the pain complaints that are part of the claimant’s current condition.
• Dealing with the claimant’s psychiatric condition, the psychiatric Medical Review Panel in its report of May 28, 1999 favor the diagnosis of “Mood Disorder due to chronic pain with Major Depressive like Episodes 293.83.” They further note,

“Her symptoms are that of severe insomnia with difficulties falling asleep, difficulties with waking up frequently during the night and very early awakening. She reports having very little sleep complains of lack of drive, decreased interest, cannot engage in sexual relations due to pain and lack of interest. She shows a depressed mood and cries a lot. She feels worthless and hopeless. She has had major losses, with loss of health, loss of a job, loss of income, cannot do the sports she used to enjoy, cannot do her housework, cannot engage in sex, cannot enjoy socializing, etc.” [emphasis mine]

I accept the evidence that there are no physical links connecting the original mechanical back strain to the claimant’s current diagnoses of fibromyalgia and mood disorder. What is apparent in reviewing the reports of the Medical Review Panel and the other medical evidence on the file, is that these two conditions, the fibromyalgia and the major affective disorders are inextricably tied to one another, and that their causal relationship with the original compensable injury should be examined together.

Evidence quoted above has already referred to losses experienced by the claimant as being a major source of the claimant’s current difficulties, and that there are no physical findings associated with the original injury. Indeed, in reviewing the early stages in the management of this claim, there are numerous comments as to the insufficiency of physical findings to support the claimant’s complaints during that period, which start to suggest that the losses experienced by the claimant were self-imposed. In this regard, I note the claimant’s reluctance to participate in early return to work initiatives, with the claimant insisting that she knew her back better than medical practitioners.

Dealing further with the etiology of the claimant’s major affective disorder, there are also further cues as to its sources:

• A WCB consultant in psychiatry, in a memo dated October 28, 1996, provides a diagnosis of a “major affective disorder – depression,” with onset in February 1994, some 18 months following the injury. She notes that the claimant has “situational stress due to her prolonged period of disability and the associated economic & career uncertainty.... As with all claims of prolonged duration the person has significant anxiety insecurity and discouragement regarding and arising from the process of the claim.”
• The treating physiatrist in his report of October 2, 1998 refers to the claimant having a reactive depression, and that this is an associated condition to the fibromyalgia. In his review of literature regarding chronic pain, he notes that,

“the most common forms of psychological illness associated with chronic pain is depression and anxiety. He also states that troublesome social events including unemployment, financial strain, loss of status and marital disturbances are likely to follow the disruption that a severe chronic painful illness produces. These in turn make the depression worse and hence increase the severity of pain.”

• The physiatrist’s comments are similar to those of the psychiatric Medical Review Panel, who find that the claimant’s mood disorders are related to the losses she has suffered.
• Regarding a possible interrelationship between the claimant’s fibromyalgia and related psychiatric conditions, claimant’s attending physiatrist provides a report dated October 2, 1998 that deals with scientific studies in this area. He states:

“There is a good deal of published research papers showing that people who develop chronic pain due to any etiology commonly end up having periods of reactive depression secondarily to the chronic pain and overall problems related to lifestyle disruption. This include patients with chronic pain due to multiple myfascial pain and/or fibromyalgia.”

• The physiatrist notes that the combination of physical and emotional impairment arising from these paired conditions of fibromyalgia and secondary mood disorders are more likely to lead to inability to become competitively employed. These comments are consistent with those of the psychiatric MRP report regarding the major losses suffered by the claimant.

As for the etiology of fibromyalgia, I note the following:

• The lack of any physical findings to suggest that the original compensable injury is still in any way present.
• Comments by the Worker Compensation Board’s consultant in physical medicine in his report of July 9, 1996 in which he indicates that medical science is uncertain of the exact cause of fibromyalgia and the pathophysiology of this condition.
• A review of medical literature provided by the claimant’s attending physiatrist in a letter of October 2, 1998 deals with the relationship of fibromyalgia to potential sources including family history, gender (female-to-male ratio of 7 or 8 to 1) and trauma. While the physiatrist notes growing evidence of a relationship between fibromyalgia and a preceding trauma, I note that he is far from definitive, as in the following quote:

“Thus, fibromyalgia was 13 times more frequent following neck injury than following lower extremity injury. This is an important research paper demonstrating the likelihood of neck trauma leading to fibromyalgia at least in some cases even thought he majority of patients have no preceding traumatic event. Therefore, one cannot categorically state that there is no evidence of causality between fibromyalgia and preceding trauma.” [emphasis mine]

• The physiatrist’s discussion of fibromyalgia does presume an ongoing relationship with the original injury, stating in his conclusion, that

“Unfortunately, when the underlying cause of pain cannot be eradicated or cured as in the case of fibromyalgia preceded by a traumatic event, the symptoms of depression and anxiety can continue on a chronic basis.” [emphasis mine] As noted earlier, the MRP does not find that there is a continuity of underlying cause of pain leading to or in any way connected to the fibromyalgia.

After a review of the evidence, I find that the claimant’s fibromyalgia condition is not causally related to the original compensable injuries suffered her. In this regard, I note the uncertainties in the medical literature regarding the etiology of this condition as noted by both the MRP and by the physiatrists involved with this claim, with the added findings by the medical review panel that the claimant does not have any underlying physical findings from the compensable injury that could in any way provide a causal basis for the claimant’s current diagnosis of fibromyalgia.

Dealing with the claimant’s major affective disorder, I note that there is considerable evidence on file that the claimant’s fibromyalgia and her secondary mood disorders are inextricably bound with one another, and that in tandem the conditions have been very debilitating with resulting major losses experienced by the claimant in her life. As the mood disorders are related to the fibromyalgia, and given my earlier findings that the fibromyalgia was not related to the original compensable injury, I must conclude that the claimant’s major affective disorders are similarly not related to the compensable injury.

In reviewing all the evidence, then, I find that the evidence supports the conclusion that while the claimant is currently suffering from very debilitating conditions, these conditions are not causally related to the original compensable injury. Accordingly, the claimant would not be entitled to ongoing wage loss benefits and the minority would deny the appeal.

A. Finkel, Commissioner