The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on April 19, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal on April 19, 2006 and on June 19, 2006.

Issue

Whether or not responsibility should be accepted for a diagnosis of chronic pain syndrome in relation to the compensable injury of November 7, 2001;

Whether or not the worker is entitled to wage loss benefits and services beyond July 5, 2002; and

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act.

Decision

That responsibility should not be accepted for a diagnosis of chronic pain syndrome in relation to the compensable injury of November 7, 2001;

That the worker is not entitled to wage loss benefits and services beyond July 5, 2002; and

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Decision: Unanimous

Background

On November 7, 2001, the worker reported that he injured both shoulders when he lifted a 200 lb. aluminum louver. He stated that he called his doctor the following day but could not get an appointment until November 19, 2001 so he continued working. The worker indicated that he had pain in his right shoulder for approximately two months prior to the accident and thought the pain was due to his age. By November 19, 2001, he was unable to use his arm. The Workers Compensation Board (WCB) accepted the claim based on the diagnosis of a right rhomboid strain and left shoulder strain and benefits were paid to the worker while he attended physiotherapy treatments.

File documentation showed that the worker has a previous compensation claim for a right shoulder injury that occurred on February 3, 1998. The worker was diagnosed with a rhomboid muscle tear and myofascial pain. He was also found to have degenerative changes in his cervical spine and a history of pain behaviour.

On February 2, 2002, the treating physician reported that the worker was unable to abduct his left shoulder and there was tenderness about the anterior shoulder and right scapular area. Arrangements were made for the worker to be assessed by an orthopaedic specialist.

As the physiotherapy treatments revealed little improvement in the worker's shoulder condition, he was assessed by a WCB physical medicine and rehabilitation (physiatrist) consultant on February 7, 2002. Following the examination, the consultant diagnosed the worker with possible left shoulder rotator cuff tendonitis and impingement with possible subacromial bursitis. The right shoulder condition was diagnosed as a strain with aggravation of myofascial involvement.

On February 21, 2002, the WCB physiatrist described the worker's medical status as follows to the independent physiatrist, "He has difficulty moving the right arm, and has eye/ear symptoms again and headaches, and also some neurologic symptoms into the arm on the right. The current examination suggests some spinal segmental sensitization of the C3 to C5 segments on the right, plus the upper thoracic segments, and he has neck, upper scapular and medial scapular soft tissue myofascial involvement. He appears to be an appropriate candidate for some directed needling treatment and possibly treatment related to spinal segmental sensitization"

While attending a needling treatment session in March 2002, the worker experienced faintness and chest pain and was diagnosed with Bell's palsy. On March 28, 2002, the worker was advised that his Bell's palsy condition was not causally related to the needling treatment. The worker was also advised that it was the WCB's position that he was not totally disabled due to his compensable shoulder condition and that he was fit for alternate or modified duties with temporary restrictions for a period of six months.

The worker's left shoulder status was assessed by an orthopaedic specialist on May 8, 2002. The specialist opined that the worker had chronic pain and pain amplification and likely some AC joint or rotator cuff involvement. On May 13, 2002, the specialist reported that x-rays showed "a very wide AC joint without significant displacement, just some relative shortening of the distal clavicle". He indicated that his examination findings related more to the subacromial region in the posterior shoulder rather than the AC joint itself. The worker was injected with medication through the posterior access to the rotator cuff and subacromial bursa. An arthroscopy and MRI was suggested if the injection was not sufficient to alleviate the worker's pain.

The treating physiatrist reported that the worker had an acute flare-up of pain and muscle dysfunction after reaching 7 hours a day at work on May 30, 2002. The specialist stated that the worker's return to work should be limited to four hours per day until medical clearance was given. On June 11, 2002, the physiatrist advised the WCB that the worker was not yet medically fit to progress beyond four hours of work.

Based on surveillance information and after reviewing the medical evidence, the WCB physiatrist indicated on June 12, 2002, that the worker exhibited good range of both shoulder movement without evidence of discomfort and good functional abilities of both upper extremities. In his view, "there was no evidence of any medical impairment of the upper extremities." He indicated that the worker should gradually be able to return to full regular duties.

On June 12, 2002, the worker was advised by his case manager that he was considered capable of full regular duties by July 8, 2002 and that the WCB would not accept responsibility for medical appointments or treatment beyond July 5, 2002.

A progress report was received from the family physician dated July 25, 2002. He indicated that the worker complained of right scapular pain and that he continued to be treated for headaches, ear ringing and insomnia. The worker was reported to have developed abdominal pain and was hospitalized for gastritis. He suggested that the worker was only capable of working four hours.

A review of the worker's time sheets suggest that he worked full time hours on a number of occasions in July and August 2002. Based upon his time sheets, he continued to work a varying degree of hours between July 2002 and March 2003.

A worker advisor, on March 12, 2003, provided the WCB case manager with two medical reports from the family physician which diagnosed the worker with "chronic pain disorder with a DMS IV classification under 207.89 related to the compensable injury, associated with psychological and general medical condition." Based on this information, the worker advisor asked the WCB to accept responsibility for the worker's chronic pain syndrome as being related to the compensable accident and to pay for the related medical treatment, wage loss benefits, etc.

The worker's employment was terminated by his employer in March 2003. Documentation of the company's position regarding the reasons for the termination is on the file.

On March 31, 2003, it was determined by the case manager that the worker's current difficulties were not related to his November 2001 shoulder injury. She indicated that the issue of whether or not the worker truly had a diagnosis of chronic pain would not be explored as it was not WCB's usual practice to accept chronic pain as a compensable condition. On April 7, 2003, the worker was advised that any difficulties he may be experiencing was not related to the compensable condition of November 7, 2001 and that the previous WCB decision of June 12, 2002 would not be overturned.

On May 16, 2003, the worker advisor provided further medical information regarding a secondary diagnosis of chronic pain or chronic pain syndrome as being related to the compensable accident. On June 13, 2003, the case manager determined from the weight of evidence that the worker had recovered from the effects of his work related injury in June 2001 and that any difficulties or disability he was currently relating to chronic pain or chronic pain syndrome was not causally related to his November 7, 2001 accident.

In June 2004, the worker purchased a small cleaning franchise which he operated with his spouse. He continues to work in that business.

On October 18, 2005, the case was considered by Review Office which included submissions by the worker advisor and from the employer's representative. Review Office opined that the medical evidence on file did not warrant the rescinding of prior decisions and the re-implementation of wage loss benefits and services beyond July 5, 2002. It also confirmed that no responsibility would be accepted for the diagnosis of chronic pain syndrome.

The case was considered by a WCB sector manager regarding the worker advisor's request to convene a Medical Review Panel (MRP) under subsection 67(4) of The Workers Compensation Act (the Act) regarding the issue of chronic pain syndrome. In a decision dated October 25, 2005, the sector manager denied the request to convene an MRP as she did not find a difference of opinion in respect of a medical matter affecting entitlement to compensation. This decision was confirmed by Review Office on January 11, 2006. On January 19, 2006, the worker advisor appealed Review Office's decisions and an oral hearing was convened.

On April 3, 2006, the employer's representative provided the Appeal Commission with a letter and DVD concerning a surveillance which was taken of the worker's activities on February 2, 3, 4 and 16, 2006.

On April 6, 2006, the worker advisor provided the Appeal Commission with medical reports dated from June 11, 2003 to September 15, 2005 for the panel's consideration.

The oral hearing took place on April 19, 2006. In the course of the hearing, the Panel provided the worker's representative with an opportunity to identify the WCB medical opinion being relied upon for the purposes of the argument that a medical review panel should be convened. No WCB medical opinion was identified.

Following the oral hearing, the appeal panel requested additional information from the worker's treating physiotherapist. On May 26, 2006, a copy of the physiotherapist's report was forwarded to the interested parties for comment. On June 19, 2006, the appeal panel considered the file information including a submission from the employer's representative dated June 6, 2006 and a letter from the worker which was received on June 8, 2006.

Reasons

The parties agree that the worker suffered a work place injury resulting in a loss of earning capacity in November 2001. They disagree on whether a loss of earning capacity, related to the workplace accident, existed after July 5, 2002.

The worker suggests that the panel should accept a diagnosis of chronic pain syndrome in relation to his workplace injury. He also argues that, as a consequence of his workplace injuries, he was unable to work full time hours after July 5, 2002.

In the event his argument is unsuccessful, the worker suggests that a Medical Review Panel (MRP) should be convened under subsection 67(4) of the Act. He argues that there is a difference in medical opinion between a medical officer of the board and the worker's physician on the question of whether he suffers from chronic pain syndrome.

In reaching its decision, the panel has carefully considered the entire record including the oral evidence, written material and medical opinion. It finds, based upon a balance of probabilities that:

• responsibility should not be accepted for a diagnosis of chronic pain syndrome in relation to the compensable injury of November 7, 2001; and,
  
  
• the worker is not entitled to wage loss benefits and services beyond July 5, 2002.
  
  
• Given that the criteria under subsection 67(4) of the Act have not been met, the panel finds that an MRP should not be convened

(i) Responsibility should not be accepted for a diagnosis of chronic pain syndrome

In considering the merit of a diagnosis of chronic pain syndrome, the panel notes that the WCB has developed a consensus medical opinion regarding the criteria to be used in establishing this diagnosis. The panel accepts these criteria and accordingly, the panel must ask itself whether the worker's disability is proportional in all domains of activity. Consideration must be given to the occupational, social and recreational spheres.

In support of his argument for a diagnosis of chronic pain syndrome, the worker largely relies upon the opinion of his family physician which was provided to the WCB in March of 2003. As confirmed by both the worker's and the employer's representative, there is no opinion before the panel from a WCB medical advisor on the merits of this conclusion.

Instead, the employer argues that "evidence presented to the attending and consulting physicians, video surveillance in April 2002, and again in February 2006 fails to demonstrate that the disability is proportionate in all areas of functioning."

The employer questions the reliability of the family physician's conclusion particularly given that same physician's observation in April of 2002 that the worker had exhibited exaggerated pain behaviour and a history of chronic behaviour pattern. The worker's participation in his residential cleaning business was also seen by the employer as further evidence that a diagnosis of chronic pain syndrome should not be accepted.

Placing particular weight upon the worker's medical information, his work history and the video surveillance tapes, the panel finds, based upon a balance of probabilities, that the criteria for a diagnosis of chronic pain syndrome have not been met. In making its determination, the panel has considered the evidence before it relating to the worker's ability to participate and function in all domains of activity including the workforce as well as his social and recreational life.

In terms of his participation in the workforce prior to and after his family physician's diagnosis of chronic pain syndrome, the panel notes that in June of 2002 both the WCB physiatrist and the treating physiatrist considered the worker to be capable of meaningful participation in the workforce. While there was a disagreement between the two physiatrists in terms of the number of hours he could work, there was no dispute between these specialists that he could work at least four hours a day.

Indeed, while his daily hours varied, the worker demonstrated a meaningful attachment to the workforce up until March 2003.

The worker did not have a meaningful attachment to the labour force between March 2003 and June 2004. However, he has maintained a meaningful relationship with the workforce from June 2004, when he and his wife purchased a small cleaning franchise, until the present.

The thrust of the worker's argument in terms of chronic pain syndrome appears to relate to the period between his termination from his employment in March of 2003 and his resumption of a meaningful connection to the workforce in June 2004.

The worker suggests that he "couldn't work" after he left the employer in March of 2003. However, when asked what had changed in 2004 to enable him to set up his business, he indicated that "what changed in 2004 was that I had gotten married in 2003". The worker noted that his wife had come up with the idea of purchasing a cleaning franchise so that he "would only have to work as much as (he had) to work and still function." It is notable that the worker's initial response did not identify a reduction in chronic pain as the critical factor in enabling him to resume a connection with the labour force. In the panel's view, the worker's candid observation supports the view that he was capable of a meaningful attachment to the workforce between March 2003 and June 2004.

There is some suggestion by the worker that the passage of time and physiotherapy treatments in 2004 improved his situation so that he was once again capable of a meaningful connection to the workforce in June 2004. However, that panel finds, on a balance of probabilities, that the evidentiary record does not support his contention. In particular, the panel would note that worker's physiotherapy assessment reports between January 23, 2004 and June 14, 2004 do not support the worker's suggestion that his condition had improved or stabilized due to physiotherapy. For example in his final physiotherapy and treatment report of May 14, 2004, the observation was made that it was "difficult to progress" and that the worker "has become hypersensitive to touch again."

On a balance of probabilities, the panel does not accept the worker's suggestion that he was unable to participate in the workforce between March 2003 and June 2004.

In declining to accept the diagnosis of chronic pain syndrome, the panel also places some weight upon the video tape evidence of April 2002 and February 2006. Reviewed in its totality, this material suggests a relatively high degree of functioning in the occupational, social and recreational spheres both in April 2002 and February 2006. This reality is again inconsistent with the diagnosis of chronic pain syndrome.

Considering the record as a whole, the panel finds on a balance of probabilities, that responsibility should not be accepted for a diagnosis of chronic pain syndrome.

(ii) The worker is not entitled to wage loss benefits and services beyond July 5, 2002

The worker also sought partial wage loss from July 5, 2002 to the present based upon the contention that he was only able to work part-time hours.

In advancing this position, the worker pointed to a number of factors including pain in his upper extremities as well as headaches and nausea which in his view prevented him from working more than four hours a day in July of 2002. In his view, apart from his shoulder injuries, "I still suffer from headaches, ringing in my right ear. I have trouble swallowing at almost every meal, sometimes just having a cup of coffee."

The worker placed heavy reliance on the note from his treating physiatrist suggesting that he should be limited to four hours of work a day. In his view, "I had no choice but to follow [the physiatrist's] recommendation."

In response, the employer questioned both the suggestion that the worker could not work more than four hours a day as well as the suggestion that his ongoing difficulties could be related to his workplace injury of November 2001. In particular, the employer relied upon the opinion of the WCB physiatrist in which he concluded that "there is no evidence of any medical impairment of the upper extremities." Given the resolution of the difficulties with the worker's upper extremities, the employer was of the view that the other concerns identified by him "had nothing to do with the compensable injury."

The employer argued that it had a well established, credible return to work program that would have enabled the worker to perform full time, modified work. It suggested that he had demonstrated "that he was capable of performing these duties at [his employer] until March 2003."

In the panel's view, based upon a balance of probabilities, there was no loss of earning capacity related to the workplace accident beyond July 5, 2002.

In making its decision, the panel has placed particular emphasis on the relatively minor nature of the injury suffered, the passage of time since the injury took place and the worker's experience in the workplace after July 2002. The panel notes that the original diagnosis was a right rhomboid strain and left shoulder strain. Given the nature of the original injury, in the panel's view, the worker should have been largely recovered from this injury by June 2002 some seven months after the original injury.

The panel's conclusion on this point is buttressed by the finding of the WCB physiatrist based upon his assessment of February 2002 and his file review of June 2002 that the worker exhibited good range of both shoulder movement and good functional abilities in both upper extremities. In his view, the worker should gradually return to full time duties. On a balance of probabilities, the panel accepts the reasonableness of these findings.

While there are competing views between the treating and WCB physiatrist as to whether the worker was able to return to full time duties in July 2002, the panel believes that the views of the WCB physiatrist are supported by a review of the worker's actual time sheets for July and August 2002 which demonstrated that the worker was able to perform full time duties on a number of occasions.

Apart from the treating physiatrist, there is a report from the family physician dated July 25, 2002 which referenced right scapular pain and indicated that the worker continued to be treated for headaches, ear ringing, gastritis and insomnia. The family physician also recommended that the worker be restricted to only four hours a day. However, the panel would note that symptoms such as chronic pain, headaches, ear ringing, insomnia and gastritis cannot reasonably be related to the compensable injury. This is particularly the case given the panel's acceptance of the findings that by June of 2002, the worker exhibited a good range of shoulder movement and good functional abilities in both upper extremities.

(iii) A Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act.

Section 67(4) provides that

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 60.9(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. (emphasis added)

The section imposes a mandatory obligation upon the appeal panel to refer a matter to an MRP in circumstances where the opinion of the medical officer of the WCB differs from the opinion of the worker's physician and where the worker has requested the referral to the MRP.

In the facts of this case, there is one essential precondition missing. There is no difference in opinion between a board doctor and the worker's doctor. In fact, there is no opinion expressed by a board doctor on the question of whether a diagnosis of chronic pain syndrome can be justified. Accordingly, a medical review panel should not be convened.

Conclusion:

The panel finds that the worker's appeal should be denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of August, 2006