The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 10, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel reconvened on May 12, 1999. The Panel discussed this appeal on May 12, 1999.

Issue

Whether responsibility can be accepted for the claimant's current psychological problems including any claimed loss of memory;

Whether the worker is entitled to payment of wage loss benefits beyond December 17, 1993, and

Whether a Medical Review Panel should be convened.

Decision

That responsibility cannot be accepted for the claimant's current psychological problems including any claimed loss of memory;

That the worker is not entitled to payment of wage loss benefits beyond December 17, 1993, and

That a Medical Review Panel should not be convened.

Background

On January 17, 1993, the claimant slipped on ice while sanding ramps during the course of his employment as a maintenance worker for an apartment building. At the time of the accident the claimant fell backwards hitting his back and head on the ramp. The following day the claimant stated that it felt like his hip was out of joint and he had pain in his shoulder blades, chest and rib cage. The claimant also complained of a headache. On January 18, 1993, a chiropractor diagnosed the claimant's condition as a cervical and thoracolumbar sprain/strain. The claim was accepted as the responsibility of the Workers Compensation Board (WCB) and benefits were paid accordingly.

Chiropractic x-ray examination of the cervical spine carried out on January 21, 1993, revealed altered cervical lordosis with multiple discopathies and degenerative changes. X-rays of the lumbosacral spine showed a transitional segment with a rudimentary disc at L5.

On January 26, 1993, an eye specialist reported that the claimant had a subconjunctival hemorrhage of the right eye and he noted the mechanics of the compensable injury. The specialist concluded that the subconjunctival hemorrhage should reduce over the next week. X-rays taken of the skull were reported as being normal.

The claimant was examined by a general physician on March 26, 1993. The physician commented that except for degenerative changes and scoliosis the claimant had strained the muscles of his shoulders and back. A referral to the Pain Clinic was arranged.

A report was received from an optometrist dated April 14, 1993. The optometrist initially examined the claimant on April 2, 1993, for entrance complaints of seeing spots, red eyes and burning, itching and frontal headaches. On April 13, 1993, the redness had gone away and his headaches were less severe. Bifocal type glasses were recommended. It was the specialist's opinion that the claimant's headaches were not "occular visual related." The glasses were recommended mostly for driving.

A report was also received from the Pain Clinic dated April 29, 1993. The claimant had ongoing pain of the shoulders, back and neck and had exhibited increased shortness of breath with minimal exertion. The specialist was concerned about a possible intrathoracic lesion which might be compressing the airway when lying supine and also contributing to his shortness of breath with exertion.

On May 27, 1993, the WCB determined that the claimant had recovered from the effects of the compensable accident. The WCB stated that the claimant initially sustained a sprain/strain injury and while there was evidence of scoliosis and degenerative changes, these condition were neither caused by nor made worse by the January 17, 1993, compensable accident. There was minimal objective evidence to substantiate ongoing disability.

On February 25, 1994, a solicitor, acting on behalf of the claimant, wrote to the Review Office contending that the claimant was totally disabled since June 3, 1993. Additional medical reports were later obtained by the Review Office from the treating chiropractor, a general practitioner, an orthopaedic surgeon and a cardiologist. These documents were then reviewed by a WCB orthopaedic consultant on June 23, 1994.

In a decision dated June 24, 1994, the Review Office extended the claimant's wage loss benefits to December 17, 1993, inclusive and final. The Review Office referred to the findings of the orthopaedic specialist who examined the claimant on December 15, 1993. At that time, little objective clinical findings were identified. It was also noted that a bone scan performed on December 17, 1993, was reported as normal, which, in the opinion of the specialist, confirmed that the injuries of January 17, 1993, were strains to the lumbar spine and sacroiliac joints. The orthopaedic surgeon also noted, based on that assessment, that he considered the claimant capable of returning to work as a maintenance worker for an apartment building.

The case was considered again by Review Office on September 20, 1994 following receipt of additional medical information from the attending physician. The Review Office was of the view that the medical conditions outlined by the attending physician were not related to the effects of the injuries occurring on January 17, 1993. Review Office also arranged through a WCB medical advisor for the claimant to undergo a CT scan of his head because of reported comments of headaches and memory loss. The subsequent report indicated there were no evidence of any cerebral atrophy, subdural hematoma or any other abnormality. The Review Office confirmed that the claimant's wage loss benefits would not be extended beyond December 17, 1993.

On June 8, 1998, an advocate for the claimant submitted medical reports indicating that the claimant was suffering from fibromyalgia and chronic depressive symptoms with memory problems. The claimant was also referred to a psychiatrist and to a clinical psychologist specializing in head injuries. A copy of a decision rendered by an official for Canada Pension Plan was also provided. Based on these reports, the advocate requested that the claimant receive retroactive benefits from December 1993 onwards.

On July 24, 1998, the Review Office determined that no responsibility could be accepted for the worker's current psychological problems including any claimed loss of memory and that the claimant was not entitled to wage loss benefits beyond December 17, 1993. Prior to rendering its decision, the Review Office obtained an opinion from a WCB psychiatrist on June 30, 1998. The WCB psychiatrist stated the following:

• there was no evidence of a head injury at the time of the original injury. The mechanism of injury that occurred was not suggestive of significant forces to the head area.
• the worker did not suffer from any amnesia. The CT scan of the brain proved to be normal. The documented records mentioned memory problems many months after the accident and this was not the normal course of events that would follow a concussion. The neuro-psychological testing showed uniformly low cognitive skills on the part of the worker with evidence of inconsistent effort throughout the battery of tests that were administered.

The Review Office noted that the clinical psychologist stated that the worker's scores on the tests indicate that factors other than, or in addition to, cognitive impairment may be influencing the worker's performance in the tests. The clinical psychologist also stated that given the variable nature of the test results that the worker may not have been consistently expending the maximum effort to the extent of his capabilities in performing these tests which may explain the inconsistencies associated with the pattern of results.

On August 24, 1998, the advocate argued that a substantial difference of medical opinion existed between the claimant's doctors and the WCB medical consultant who had not seen or interviewed the claimant. The advocate commented that the diagnosis of fibromyalgia and chronic depressive symptoms with memory problems had been accepted by an independent medical specialist of the Canada Disability Board. The advocate was of the view that a Medical Review Panel (MRP) was warranted.

On September 8, 1998, the Review Office denied the request for a MRP. Review Office stated there was no dispute that the claimant had been diagnosed with fibromyalgia and chronic depressive symptoms. However, there was no support provided for the position that either of these conditions were directly related to the compensable incident of January 17, 1993. It was therefore determined that the requirements governing the convening of a MRP had not been satisfied.

The advocate appealed the Review Office decisions and an oral hearing commenced on March 10, 1999. At the hearing on March 10, 1999, it became apparent that the worker's advocate did not have a complete copy of the file although the claimant had been given copies of his file from WCB File Access. As the Panel felt that the lack of documentation was substantive and could be prejudicial to the claimant in pursuing his appeal, an adjournment was granted with the agreement of the employee to allow the advocate to be fully prepared to proceed. The hearing was reconvened on May 12, 1999.

Reasons

The issues in this appeal are whether or not responsibility can be accepted for the worker's current psychological problems including any claimed loss of memory; whether or not the claimant is entitled to payment of wage loss benefits beyond December 17, 1993; and whether or not a Medical Review Panel should be convened.

The relevant subsections of The Workers Compensation Act (the Act) are subsection 39(2) which provides for the duration of wage loss benefits. Subsection 67(1) which defines opinion and subsection 67(4) which provides for a Medical Review Panel (MRP) where there is a difference of medical opinion.

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

1. the loss of earning capacity ends, as determined by the board; or
2. the worker attains the age of 65 years.

Subsection 67(1) states:

Definitions

"opinion" means a full statement of the facts and reasons supporting a medical conclusion;

"panel" means a medical review panel.

Subsection 67(4) states:

Reference to panel on request

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

We reviewed all the evidence on file and given at the hearing and find that the weight of the evidence, on a balance of probabilities, supports a finding that no responsibility should be accepted for the claimant's current psychological problems including any claimed loss of memory; that the claimant is not entitled to payment of wage loss benefits beyond December 17, 1993 and that a Medical Review Panel should not be convened. In arriving at this conclusion we noted the following evidence:

• the worker slipped on ice while sanding a ramp at work and fell backwards on January 17, 1993. In a statement attached to the workers Report of Injury dated February18, 1993 the claimant reports that:

  " I was sanding up the ramp my feet went out from under me falling backwards hitting my back and head on the ramp, I saw stars, but I got up & I carried on with my job, I was doing until completed, I felt shook up but the following day when I woke up around 10.30 1100AM Jan18/93 I felt like my lower hips were both out, the pain between my shoulders, chest pains & a jabing in the right side of the rib cage. But the severe headaches was what alerted my wife to phone the doctor immediately because I had whiplash years ago and I had the same severe headaches."

• the claimant was seen by a chiropractor on January 18, 1993 who noted that the claimant was complaining of neck pain, headaches, midback pain and low back pain and diagnosed a cervical strain/sprain and a thoroco-lumbar strain/sprain;
• chiropractic x-rays dated January 21, 1993 record an impression that L5 is a transitional segment with a rudimentary disc. Facet trophism and a thoroco-lumbar scoliosis;
• the claimant was seen by an eye physician whose report dated January 26, 1993 recorded that the claimant's visual fields were full. Pupil reactions were normal and eye movements were full. Ocular pressures were within normal limits and fundoscopy showed healthy optic discs and retinal vessels. A subconjunctival hemorrhage was noted in the right eye which, in the practitioner's opinion, should reduce over the next week. X-rays of the skull were requested to exclude a fracture which were normal;
• the claimant was examined by an attending physician on March 26, 1993 who recorded pain of the shoulder and neck on movement since the accident which was relieved by the chiropractor at first but that his shoulder and neck seemed to get worse. The attending physician diagnosed:

  " except for degenerative chgs [changes] scoliosis - he has strained muscles of his shoulders & back."

• the claimant was seen by an attending optometrist who recorded, in a narrative report dated April 14, 1993, that he first saw the claimant on April 2, 1993 when the claimant was complaining of seeing spots, red eyes and burning, itching and frontal headaches. The optometrist observed a bilateral conjunctival hyperemia at the papilbra conjunctiva. The optometrist examined the claimant subsequently on April 13, 1993 when he reported:

  " when I saw him he felt much better, and the redness had gone away, and the headaches were less severe... . I told Mr. [the claimant] that in my opinion the headaches were not ocular visual related."

• the claimant was seen by a specialist from a hospital pain clinic who notes that there was apparently no loss of consciousness or fractures at the time of the accident. He states in part:

  " He has a past history of being involved in a motor vehicle accident and having sustained a whiplash injury and states that this never really completely resolved and he feels this accident has greatly exacerbated his pain."

• the claimant was examined by a second attending chiropractor on June 16, 1993 who, in report dated July 2, 1993, indicated that the claimant should be able to return to at least partial duties in the next two to three months;

  In a report dated February 10, 1994 an attending physician indicated that she had last seen the claimant once in August, and twice in September , 1993. She indicates:

  " all visits have similar complaints concerning his left shoulder pain and lower back discomfort which in each visit seemed to have decreased.

  Mr. [the claimant] has a long history of neck pain and lower back pain presumably started after a motor vehicle accident in 1971. The chronic cervical and lumbar spine could have been reactivated again because of this accident. Considering the present findings, to my opinion this minor chronic cervical and lumbar spine is progressing slowly and does not need any active treatment anymore.

  He should be able to return to work anytime starting March 1, 1994."

• the claimant was examined by a consulting orthopaedic specialist on December 15, 1993 who stated following his review of the claimant's status that:

  " The patient, in my opinion sustained a strain of his lumbar spine and sacroiliac joints in the accident of January 17, 1993.

  It is my opinion, based on my objective evaluation on December 15, 1993, as well as the normal results of the bone scan, that he should be fit to return to work at his former job as a maintenance worker for an apartment building."

• the file was reviewed by a WCB orthopaedic consultant on June 24, 1994 who indicated that the claimant had too many symptoms persisting for too long as the result of the backward fall. He notes that the claimant was able to finish work that day, that the medical did not support anything other than a strain/sprain of the neck and back superimposed on a cervical spine with radiological evidence of pre-existing degenerative changes, the lower back being normal. His opinion was that the maximum period of recovery should have been no more than three months and indicated that the claimant's orthopaedic consultant, attending physician and a chiropractor had all suggested that the claimant was no longer totally disabled.
• the file was reviewed by a WCB medical advisor on September 7, 1994 and September 14, 1994 who noted the reports of memory loss depression and felt a CT scan was warranted to exclude evidence of any intra cranial abnormality. Following receipt of a normal CT scan of the head, the medical advisor indicated;

  " This negative scan would indicate that no brain damage resulted from the C.I."

• the claimant was referred to a consulting psychiatrist who examined the claimant on June 23, 1997 who was of the opinion that further neuropsychological testing should be carried out;
• a report dated April 5, 1998 from two clinical psychologists indicated that factors other than cognitive impairment were evident in the performance of, and scores measured on, the testing procedures. The psychologists also indicated that given the variable nature of the test results the worker may not have been consistently expending the maximum effort to the extent of his capabilities in performing these tests which could account for the inconsistencies in the test results;
• the file was reviewed by a WCB consultant psychiatrist on June 30, 1998 who indicates that there was no evidence of a head injury at the time of the accident; that the mechanism of injury did not suggest significant forces to the head; that there was no loss of consciousness and no amnesia following the accident; that the memory problems appeared some months after the compensable accident which is not the course of a concussion or a head injury; and that neurophysiological tests showed uniformly low cognitive skills with evidence of inconsistent effort;
• in their report of April 5, 1998 the clinical psychologists with respect to the depressive symptoms state in part:

  " Mr. [the claimant] completed the Beck Depression Inventory II (BDI-2), a self-report measure of depressive symptoms, omitting 2 of the 21 items. Symptoms endorsed indicate a moderate level of depression stemming from feelings of self-dislike ("I am disappointed in myself."), worthlessness, indecisiveness, difficulty concentrating..."

We find that the medical evidence, on a balance of probabilities, supports a finding that the claimant had recovered from the effects of his compensable accident by December 17, 1993 and that he is not entitled to the payment of wage loss benefits beyond that date. We find that while the claimant did hit his head at the time of the accident there is no evidence to support that he suffered a concussion or any significant head injury as demonstrated by radiological testing, clinical findings and neuropsychological testing which would account for the claimed memory loss and other psychological problems. With respect to the claimant's psychological problems we place weight on the report of the clinical psychologists that indicate that the claimant's scores on the tests show that factors other than, or in addition to, cognitive impairment may be influencing performance. We also place weight on their interpretation of the Beck Depressive Inventory II. We also note that the claimant has been diagnosed with, or investigated for, numerous medical conditions unrelated to the compensable event which could account for the claimant's depressive behaviour and that the claimant's attending physician's relates the depression to the claimant's health.

With respect to the request for a Medical Review Panel we concur with the decision of the Review Office that there is no dispute respecting the claimant's diagnoses. As to the relationship of these diagnoses to the compensable event we find, pursuant to subsection 67(1) of the Act, that a full statement of the facts and reasons supporting a medical conclusion has not been provided and therefore the requirements of the legislation have not been met.

We note this to be the case with respect to information provided by both the claimant's general practitioner and attending psychiatrist. We note the attending psychiatrist is not definitive in his report of July 3, 1997 with respect to the etiology of the claimant's psychological difficulties and based on this arranges for a neuropsychological assessment previously referred to in these reasons. We also note that the opinion of the WCB psychiatrist is in part based on the findings of the independent clinical psychologists who were consulted by the claimant's attending psychiatrist.

The claimant's representative has argued that the claimant's disability has resulted from the compensable injury with this position supported by the Canada Pension Plan (CPP) disability insurer. As part of the claimant's evidence a copy of the CPP Tribunal's decision was available to the panel. This decision, in our view, does not support the representative's contention. In this regard we take special note of the following excerpt from the decision:

" The Review Tribunal allowed the appeal of the Appellant on the basis that he was disabled within the meaning of the Canada Pension Plan. The Review Tribunal found that the medical evidence submitted was not entirely supportive of the Appellant's position that he was disabled within the meaning of the Canada Pension Plan. However, the Review Tribunal found that the oral evidence of the Appellant and his wife, as to the deteriorated state of the Appellant's emotional, physical and mental condition, to be very compelling. Accordingly, the Review Tribunal determined that, based on the myriad of symptoms from which the Appellant was suffering, he was disabled within the meaning of the Canada Pension Plan." (emphasis added).

Therefore, for the reasons outlined above, the claimant's appeal on all issues is denied.

Panel Members

D. A. Vivian, Presiding Officer
P. Challoner, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of June, 1999