The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on May 3, 2006, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal on May 3, 2006 and again on July 17, 2006.

Issue

Whether or not the worker is entitled to wage loss benefits and services beyond April 26, 2002.

Decision

That the worker is entitled to wage loss benefits and services beyond April 26, 2002.

Decision: Unanimous

Background

In March 1993, the worker injured her left shoulder while performing her regular work activities at a meat packaging plant. The initial diagnosis rendered by the treating physician was left shoulder anterior tendonitis and bursitis secondary to a repetitive strain injury.

On September 30, 1993, an orthopaedic specialist examined the worker's left shoulder and advised her family physician that the pain was around the greater tuberosity consistent with subacromial bursitis and rotator cuff tendonitis. On January 20, 1994, the worker underwent an acromioplasty and partial bursectomy of the left shoulder.

In a follow-up report dated October 17, 1994, the orthopaedic surgeon noted that the worker had returned to work on a modified duty basis and gradually developed more posterior shoulder myofascial pain and anterior chest wall costochondral pain. He indicated that the shoulder itself was stronger with good range of motion and intermittent sharp anterior pain. He recommended that the worker continue working as a sausage packer and a referral was made for the worker to attend a rehabilitation medicine specialist for her myofascial pain symptoms.

At a call-in examination at the WCB's offices on November 14, 1994, it was determined that the worker had no significant ongoing symptomotology with regard to her left shoulder and there was no evidence to indicate that she was suffering from a myofascial condition. Long term preventive restrictions were outlined. Based on this examination, the worker's wage loss benefits ended on November 14, 1994 and she returned to work.

On May 2, 2000, the worker informed the WCB that she developed pain in both shoulders from driving power jacks.

X-rays were taken on May 5, 2000 and they revealed no bone or joint abnormality in the right shoulder, left shoulder or left scapula.

The treating physician, in his report dated May 9, 2000, indicated that the worker complained of bilateral shoulder pain with lifting or any repetitive movement. The diagnosis rendered was "right rotator cuff tendonitis".

The worker was re-assessed by the orthopaedic surgeon who performed surgery to her left shoulder in January 1994. In his report dated July 12, 2000, he indicated that the worker was once again experiencing recurrent left shoulder pain and disability as she was using her shoulder less and less and the right was becoming equally symptomatic. Both shoulders showed impingement signs with some tenderness around the AC joint. The worker had posterior shoulder and interscapular pain and pain at the base of her neck. The surgeon outlined his views that the worker would be unable to return to her previous work on a sustained basis no matter what further treatments she may receive. He indicated that the worker's current shoulder problem was just part of a long continuum going back to her earlier work related injuries in 1992. He recommended that the worker be retrained into a sedentary position.

At a WCB call-in examination on September 8, 2000, the WCB medical advisor reported the following findings:

Left shoulder:

• current symptoms and examination was not indicative of a left shoulder impingement syndrome;
• the findings referred to on the file of positive impingement at the left shoulder and tenderness around the left AC joint were not confirmed at this examination. The dominant symptom limiting the worker's left shoulder function was pain at and underneath the scapula;
• differential diagnoses for the left shoulder were soft tissue strain with consequent muscular or fascial based pain and a neurogenic lesion emanating from a cervical lesion.
• it was anticipated that the worker's left shoulder symptomotology and function should improve over time rather than respond to any specific treatment.

Right shoulder:

• the worker presented with a suggestion of right subacromial impingement process but her degree of pain and reported impairment of right shoulder function are greater than what would be anticipated. An MRI was suggested to clarify the structural pain generator.
• There was a temporal relationship between the worker's current shoulder symptoms and what was described as heavy work since April 1999. In light of the uncertainty regarding diagnosis at the shoulders and the presence of what may be delayed recovery, causation of the worker's current pain and reported impairment of function remained unclear.

Regarding treatment recommendations, the medical advisor referred the worker to the WCB's pain management unit with respect to her sleep disturbance and depressed mood.

The medical advisor's interview notes also indicates that "although the file indicates that she developed symptoms in her left and right shoulders in approximately February 2000, [the worker] stated that symptomatology developed well before that, although she did not report it."

On October 11, 2000, the treating orthopaedic surgeon responded to questions posed by the worker's case manager. He stated,

• In May 1997, the worker reported right shoulder symptoms which were associated with crepitus. The clinical impression was pain arising from the AC joint and subacromial bursitis.
• On July 5, 2000, the worker complained of bilateral shoulder pain, more severe on the left than the right side. She did not improve while off work.
• The source of the worker's pain was around the AC joint and subacromial region, in association with the rotator cuff through 1994, 1997 and 2000 claims.
• He was unaware of any other pre-existing conditions. The neck may be a source of pain but was not investigated.

The worker was assessed by a clinical psychologist/neuropsychologist on November 13, 2000. It was determined from the assessment that the worker suffered from a mild to moderate depressive disorder without psychotic features along with a pain condition.

An MRI examination of the right shoulder taken November 24, 2000 was considered normal. The MRI of the left shoulder revealed post-surgical changes related to acromioplasty and signal changes within the cuff consistent with tendinosis. A definitive tear was not identified.

Following an assessment at the WCB's PMU in January 2001, it was determined that the worker did not meet the diagnostic criteria for chronic pain syndrome (CPS) as her disability was not proportionate in all areas of functioning. It was determined, however, that the worker presented with symptomotology consistent with "depression" and "pain disorder".

On February 1, 2001, the WCB determined that the worker's ongoing complaints were related to her original injury of March 18, 1993 and wage loss benefits were recalculated to reflect a recurrence as opposed to a new claim.

The worker was seen by a sports medicine specialist on March 19, 2001. It was determined following the assessment that the worker had "parascapular muscle dysfunction and spasm and overall a nonrehabed shoulder upper extremity muscular unit." Treatment suggestions included exercise and anti-inflammatory medication.

A report from a physiotherapist dated April 17, 2001 noted "moderate tightness was present in the left upper trapezius and levator scapulae musculature. Mild tightness present in the left posterior cervical and rhomboid regions. There were taut bands present in the rhomboid muscle."

On May 30, 2001, a pain management physician indicated "on palpitation, there were active trigger points in the left upper trapezius, the right pectoralis major, and the posterior cervicals on the left and the scalenes on the left. Pressure on the scalenes on the left side caused some numbness in sensations down the left arm." He indicated that "once she is sleeping the whole night through, and her depressive symptoms are controlled, I will revisit the issue of treatment of her soft tissue pains."

In a memo dated July 30, 2001, the WCB advisor noted that the EMG and nerve conduction studies requested almost 11 months previously had not been performed. Reference was made to "poor communication" amongst the worker's doctors.

On August 15, 2001, a psychiatrist reported that the worker was suffering from an adjustment disorder with depression. In his view, her depression was going to be relieved by whatever impacts on her intractable pain.

On September 26, 2001, nerve conduction studies revealed no evidence of left C6, 7, 8 or a T1 lesion.

On November 7, 2001, the treating physician indicated that the worker continued to complain of bilateral shoulder problems and had not made significant gains to overcome her muscular pain about the left shoulder and her right side continued to give her anterior pain.

The worker was reassessed at the WCB's PMU on January 10, 2002. It was determined following the assessment that the worker did not meet the diagnostic criteria for CPS.

On February 5, 2002, the treating psychiatrist reported that the worker "persists with the same depressive symptomology. She continues to have little energy, poor concentration . . . most importantly, her chronic pain persists and when she does anything more than the bare minimum, her pain is unbearable".

Surveillance was taken of the worker's activities on January 28, 29 and 30, 2002. Further surveillance was undertaken on March 4 and 5, 2002.

On March 4, 2002, the worker was assessed by a WCB medical advisor. He suggested that "trigger points in the left upper trapezius, right pectoralis major and left posterior cervicals and scalenes as cited by a pain management physician in a May 30, 2001 report were not present today." He concluded:

"This review and today's examination has not indicated a probable musculoskeletal process at either the right or left shoulder, including one emanating from workplace influences to which Ms. [the worker] was last exposed to in May 2000, that would account for her reported symptomotology. Along with this, there is currently little in the way of measurable impairment of function at either shoulder."

Based on these findings, the medical advisor indicated that workplace restrictions would not be imposed on the worker's upper extremities in relationship to previous workplace exposure. It was recommended that the proposed right shoulder arthroscopy and subacromial decompression not be accepted by the WCB.

In a letter dated April 19, 2002, a WCB case manager determined that the worker had recovered from the effects of her compensable injury and as a result, wage loss benefits would end effective April 27, 2002. This decision was based on the March 4, 2002 call in examination findings, the January 10, 2002 PMU assessment, the negative EMG and MRI findings, a report from the worker's pain specialist which indicated that her condition had improved, and the surveillance videotape findings.

On May 5, 2002, her treating physician indicated "her treatment to date has not yielded much improvement with regard to her bilateral shoulder pain. Her pain is made worse with any use of her upper extremities especially with lifting, pushing or pulling. Her range of motion of her upper extremities remains limited due to her shoulder pain."

On May 8, 2002, an orthopaedic specialist identified "a lot of parascapular and paracervical muscular pain." In regard to her return to work without restriction he indicated that it was possible she could return to work and function well. He also noted that "they could be very wrong and she won't be able to function."

On October 31, 2002, the worker was assessed by an occupational health physician at the request of the worker's union representative. In his report dated November 20, 2002, the occupational health physician stated,

"In summary, the left sided shoulder pains are largely related to posterior shoulder musculature. The pain referral into the arm and neck with headache are typical of myofascial pain syndrome, and I can detect several discrete active trigger points. In the past four to five months, there is new developments of left sided buttock and hip pain that is also myofascial in nature."

In his view "there is continuity of her current pain complaints and functional impairments due to her work injury and condition developed since 1997." He noted that since 2000 much of her treatment was directed toward the myofascial pain, but she did not respond well due to a coexistent depression . . . "

In terms of the medical advisor's findings of March 4, 2002, he indicated that "at the time of my assessment her left shoulder symptoms are unchanged from six months ago when he saw her, so I would surmise my findings would have been present at the earlier time."

In a submission to the case manager dated December 18, 2002, the union representative indicated "While her original diagnosis in 1993 was impingement syndrome, relieved by surgery, she eventually developed a myofascial pattern of muscle overuse with objective symptoms in and around 1997. She then sustained a significant strain injury associated with muscle strain or tear in 1999 and this worsened her condition even more. When you review the medical reports on this file, you will see the symptoms continue from 1997 to her current status today. It is our position these are all related to her work and to her compensable injury(s). She has not recovered from the effects of her compensable injury."

In a report to the union representative dated March 27, 2003, a psychiatrist indicated that the worker "…continues to suffer from an Adjustment Disorder with depression that has been occasioned by her initial injury and the chronic course her recovery has taken." In his view, the worker was "as much disabled by her intractable depression as she is by her myofascial symptoms." He suggested that she was "completely disabled."

On May 7, 2003, a WCB medical advisor reviewed the new medical reports and concluded that no change would be made to his opinion outlined on March 4, 2002. He indicated that the worker's degree of impairment of function was not accounted for on the basis of myofascial pain syndrome. In his concluding comments, he did not offer a comment on the impact, if any, of the worker's mental health.

On May 27, 2003, the psychiatrist wrote to an insurance company and offered his view that the worker was completely disabled. His letter indicates that her refractoriness to treatment has been contributed to by her "ongoing chronic pain secondary to her diagnosis of fibromyalgia." While this letter refers to fibromyalgia, it should be noted that in his letter of March 27, 2003, he refers to "her myofascial symptoms." In a letter dated December 3, 2004, he also refers to myofascial pain.

A letter from an occupational and health physician dated June 23, 2003 reported "significant findings of active trigger point in the left infraspinatus."

The worker was assessed by a WCB psychiatrist on June 24, 2003. He concluded that the worker was suffering from adjustment disorder but not "major depression". He suggested that "as long as her pain and limitations continue as they are, her symptoms will likely remain." In his view at the time, there was a relationship between her psychiatric diagnosis and the CI. He suggested that the worker's psychiatric problems were not sufficient to prevent her from returning to work.

On July 22, 2003, the worker's WCB case manager advised the worker and her union representative that the claim had been reviewed by WCB medical advisors and that she was unable to rescind her previous decision of April 2002.

The worker provided her case manager with reports from the occupational health physician dated June 23, 2003 and from her psychiatrist dated May 27, 2003. In a response to the worker dated July 28, 2003, the case manager indicated that these reports did not provide new medical information to warrant a further file review by the WCB medical advisor.

On September 3, 2003, the union representative appealed the case manager's decision to Review Office. In turn, Review Office referred the case back to primary adjudication to obtain additional information prior to its review.

In a chiropractic report dated September 30, 2003, the chiropractor reported that the worker was seen on September 3, 2003 with left neck and upper thoracic spine irritation along with left hip irritation. Cervical ROM was restricted in flexion and right lateral flexion with stiffness and pain in the left trapezius and levator area.

In a letter dated September 29, 2003, the WCB psychiatrist noted that he did not interview the worker prior to June 2003 so that "any assessment of her impairment prior to that that (sic) time is based on my file review." He noted that there was a "difference of opinion as to whether she was impaired from 4/02 to 6/03."

On December 1, 2003, the worker was assessed by a physical medicine and rehabilitation consultant. He reported that the worker had somatic dysfunction affecting the muscles and ligaments over the posterior elements of her spine. He felt she had regional myofascial pain at the left shoulder and hip. He noted that the worker found that increased activity and/or stretching increased her pain considerably. Needling treatment was recommended.

In a WCB memorandum dated January 30, 2004, it was suggested that "given the complexity and duration of this case" a collective meeting involving the case manager and various physicians might be in order. In a WCB e-mail dated 04/05/2004, reference was made to arranging a case conference "to get everyone on the same page."

On May 7, 2004, the case was reviewed by a WCB medical advisor at the request of primary adjudication. He indicated "There is no change in the March 4, 2002 opinion that Ms. [the worker's] clinical presentation is not accounted for on the basis of a probable musculoskeletal process at either shoulder, including in relation to workplace influences to which she was last exposed to in May 2000."

On June 15, 2004, the case was reviewed by the WCB psychiatric advisor. In response to the question "Is there a cause & effect relationship between the compensable injury and the current the (sic) psychiatric symptoms and diagnosis?" he responded:

"Her dx [diagnosis] is Adjustment Disorder. Chronic vs. Major Depression. If, and only if, she has significant physical pathology related to the CI [compensable injury], then her ongoing emotional symptoms are, at least in part, related to the CI. If she has no significant physical pathology related to the CI, then her mental health issues are also not related to the CI. Therefore, as I understand Dr. [WCB medical advisor's] opinion to be that she does not have pathology related to the CI, she likewise does not have mental health problems due to the CI. My previous opinion that her 4 diagnosis was (sic) related to CI was based, in part, on the opinion at that time supported the presence of a physical disorder caused by the CI." He further opined, "There is no evidence of any pre-existing psychiatric condition."

In a decision letter to the worker dated July 20, 2004, the WCB case manager advised that the medical evidence continued to support that she no longer had significant physical or psychiatric pathology related to her compensable injury. Hence, the decision remained that the worker was not disabled from employment by reason of her March 18, 1993 compensable injury.

On November 4, 2004, the treating physical medicine and rehabilitation consultant provided the worker's family physician with treatment outline commencing September 27, 2004. As of November 4, 2004, the specialist indicated that the worker's ongoing problems with pain largely affected her left side. The regions affected were compatible with her history of repetitive physical activity. The worker had tenderness in the trapezius and in the posterior occipital region and in the scapular stabilizers on the left. She had significant involvement of the left quadratus lumborum and gluteal muscles. The worker also had marked generalized sensitivity and sleep disorder. He further stated, "The prognosis that her condition will improve significantly is guarded. The probability that her present situation arose out of repetitive work activity is high. She had difficulty with sedentary as well as physical activity. She will not be able to return to the job she was doing at the time of symptom onset. She will definitely need retraining."

On December 3, 2004, the treating psychiatrist advised Review Office that the worker continued to see him on a monthly basis and received treatment for her depressive disorder. He believed that the worker's physical condition (myofascial pain) was secondary to the injury she suffered at the work site.

In a March 3, 2005 decision, Review Office determined that the worker had recovered from her bilateral shoulder injuries. As a basis for its decision, Review Office referred to the opinions expressed by the WCB medical advisor on March 4, 2002 and May 7, 2004. It discounted the opinion expressed by the occupational health physician dated November 20, 2002 as it felt that his opinion was not based on the facts of the case. Review Office considered the report by the psychiatrist dated May 27, 2003 and indicated that the condition of fibromyalgia was well known to be subject to flare-ups from time to time with unknown factors causing this. It stated that the worker had a multitude of physical complaints in many areas of her body, both upper and lower quadrant, which were not part of this claim.

Review Office determined that no responsibility would be accepted for the worker's mental health problems after April 26, 2002. It felt that the worker's stress arising out of the claim was not a direct causal result of having repetitive strain injuries to her shoulders but rather to the ensuing events and her reaction to dealing with external stressors.

Review Office further determined that the worker was not entitled to wage loss benefits after April 26, 2002 based on its determination that the worker had recovered from her bilateral shoulder injuries and because no responsibility was being accepted for her mental health problems after April 26, 2002. On June 13, 2005, the union representative appealed Review Office's decision that the worker was not entitled to wage loss benefits after April 26, 2002 and an oral hearing was requested.

On November 28, 2005, the treating psychiatrist wrote that "without question, her depression is very much related to her underlying physical illness and its chronicity."

On May 3, 2006, an oral hearing was held at the Appeal Commission. During the course of the hearing, the worker provided information about the strenuous and repetitive nature of her workplace duties in the period preceding her injury.

Following the hearing, the appeal panel requested additional medical information from the worker's treating physical medicine and rehabilitation specialist along with a copy of the worker's application for Canada Pension Plan benefits. On July 5, 2006, all interested parties were provided with copies of the information received by the panel and were asked to provide comment. On July 17, 2006, the panel met to further discuss the appeal and to consider a final submission from the worker's union representative dated July 6, 2006.

Reasons

Overview

As the internal memorandum and e-mails of the WCB from early 2004 confirm, this is a case of "complexity and duration" in which it has been difficult to get "everyone on the same page." The panel has been offered competing views on whether there is a loss of earning capacity after April 26, 2002 and if so, whether that loss of earning capacity is as a result of an accident arising out of and in the course of employment.

In making its determination, the panel has considered the evidence in its entirety including the written and oral record as well as all medical reports. The panel finds, based upon a balance of probabilities, that the worker continued to suffer a loss of earning capacity beyond April 26, 2002 as a result of an accident arising out of and in the course of employment. In particular, the panel finds on a balance of probabilities that:

• the worker suffered a loss of earning capacity beyond April 26, 2002 due to the combined effect of her physical and psychiatric conditions;
  
  
• the worker's pain complaint and functional impairments (her physical condition) are predominantly related to her heavy work duties and prior workplace injuries;
  
  
• the worker's pain and functional impairments contributed to a significant degree to her depressive disorder (her psychiatric condition)

Legislative and Policy

Section 4(1) of The Workers Compensation Act provides for the payment of compensation to insured workers for "personal injury by accident arising out of and in the course of the employment."

Under s. 4(2)

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Board Policy 44.10.80.40 provides that "a further injury occurring subsequent to a compensable injury is compensable: (i) where the cause of the further injury is predominantly attributable to the compensable injury." The administrative guidelines suggest that a further injury is compensable when the original injury causes or significantly contributes to the subsequent injury. (emphasis in original).

A loss of earning capacity beyond April 26, 2002

Based upon a balance of probabilities, the panel finds that the worker suffered a loss of earning capacity beyond April 26, 2002. The panel makes this finding based upon its review of the evidence as a whole with particular reference to the evidence of the worker regarding her ability to work at that time. It finds the worker to be credible in her oral evidence as to the extent of her loss of earning beyond April 26, 2002.

The panel also places heavy reliance on the consistent opinion of the treating psychiatrist who essentially found that the worker continued to suffer a loss of earning capacity as a result of a vicious circle of pain and depression. In particular, the panel relies upon the following observations by the treating psychiatrist:

• August 15, 2001 - the worker was "genuinely compromised";
  
  
• February 5, 2002 the worker "persists with the same depressive symptomology. She continues to have little energy, poor concentration . . . most importantly, her chronic pain persists and when she does anything more than the bare minimum, her pain is unbearable",
  
  
• March 27, 2003 - the worker "…continues to suffer from an Adjustment Disorder with depression that has been occasioned by her initial injury and the chronic course her recovery has taken." The worker was "as much disabled by her intractable depression as she is by her myofascial symptoms." She was "completely disabled."

In placing heavy reliance upon the opinion of the treating psychiatrist, the panel notes that he had the benefit of seeing the patient on a much more regular basis than either the WCB medical advisor or the WCB psychiatrist. It notes that by his own admission, the WCB psychiatrist was not in a position to offer an opinion on the worker's loss of earning capacity as of April 26, 2002 except by means of a file review of the work of other experts.

Just as significantly, the panel observes that the treating psychiatrist did not limit himself to an exclusive consideration of just the patient's psychiatric or just her physical conditions. Instead, he took into account the mutual reinforcing and negative effect of these conditions on the worker's earning capacity.

The treating psychiatrist's evidence stands in contrast to the WCB medical advisor whose primary focus in his March 2002 opinion (as well as in his subsequent opinions) was the patient's physical condition. In the panel's view, the primary preoccupation of the WCB medical advisor with the worker's physical condition limited the analytical value of his report because he failed to duly consider the negative effect of the worker's psychiatric condition on her recovery.

The panel notes that the treating psychiatrist's views receive additional support in terms of the patient's physical condition from the May 5, 2002 opinion of her treating physician who found "her treatment to date has not yielded much improvement with regard to her bilateral shoulder pain. Her pain is made worse with any use of her upper extremities especially with lifting, pushing or pulling. Her range of motion of her upper extremities remains limited due to her shoulder pain."

The worker's physical condition is a result of her workplace injury

Based upon a balance of probabilities, the panel finds the worker's physical condition as of April 26, 2002 can be related to her workplace injury. In making this finding, the panel notes that the worker had a long history of work related injuries to her left shoulder. They accept the worker's description of her duties for the time period between 1997 and 2000 which suggests that much of her work was strenuous and repetitive and put her left and right shoulders at risk.

The panel adopts, based upon a balance of probabilities, the evidence of the orthopaedic surgeon in 2000 that "the worker's current shoulder problem was just part of a long continuum going back to her earlier work related injuries in 1992." They note that the MRI of the worker's left shoulder in November 2000 identified "post-surgical changes related to acromioplasty and signal changes within the cuff consistent with tendinosis."

While the WCB medical advisor was of the opinion that the worker's workplace injury had resolved by March 2002, the panel notes that his evidence is contradicted by the view of the occupational health physician who expressed the view that "there is continuity of her current pain complaint and functional impairments due to her work injury and condition developed since 1997." Based upon a balance of probabilities, the panel prefers the evidence of the occupational health physician to that of the WCB medical advisor.

In preferring the opinion of the occupational health physician, the panel would observe that his myofascial findings receive some support from the findings in 2001 of the pain management physician and the physiotherapist. They also note the orthopaedic specialist's May 8, 2002 identification of "a lot of parascapular and paracervical muscular pain" appears to be somewhat inconsistent with the findings of the WCB medical advisor in March 2002.

While the panel has considered the view of the WCB medical advisor that any myofascial condition should have resolved given the absence from work for approximately two years, the panel again notes that the WCB medical advisor appeared to place little if any weight on the worker's psychiatric condition. In this regard, the panel again prefers the view of the occupational health physician who noted that the worker did not respond well to the treatment of her myofascial pain "due to a co-existent depression." In preferring the occupational health physician's opinion, the panel again places heavy weight on his more nuanced opinion which considered both the worker's physical and psychiatric condition.

The panel would note that the occupational health physician's opinion on the vicious circle of pain and depression is supported by the views found in the May 30, 2001 report of the pain management physician. He indicated that "once [the worker] is sleeping the whole night through, and her depressive symptoms are controlled, I will revisit the issue of treatment of her soft tissue pains."

The panel observes that the WCB medical advisor and the WCB itself took issue with the factual basis of the occupational health physician's opinion. However, in reviewing his evidence, the panel is of the view that the occupational health physician was considering the entirety of the worker's experience since 1997 not just the events of November 1999. Moreover, it notes that in the WCB medical advisor's initial interview of September 8, 2000, he also notes a suggestion by the worker that her symptoms were developing well before February 2000 "although she did not report it."

The panel would also observe that the chiropractic report dated September 30, 2003, provides additional evidence of enduring stiffness and pain in the left trapezius and levator area.

Based upon a balance of probabilities and the evidence as a whole, the panel finds that the worker's physical injuries were as a consequence of her workplace injury.

The worker's injury contributed to her depressive disorder

There is ample evidence on the record to suggest that there was a significant connection between the pain suffered by the worker as a result of her workplace injury and her depressive disorder.

In particular, the panel places considerable weight upon the following opinions:

• The August 15, 2001, February 5, 2002 and March 27, 2003 letters of the treating psychiatrist which clearly draw a relationship between the pain suffered by the worker and her depression.
  
  
• The June 2003 report of the WCB psychiatrist report who suggested that "as long as her pain and limitations continue as they are, her symptoms will likely remain." In his view at the time, there was a relationship between her psychiatric diagnosis and the CI.

The issue of fibromyalgia

The panel places little weight on the suggestion that the worker is suffering from fibromyalgia. The word does appear in the May 27, 2003, letter of the treating psychiatrist to the insurance company. However, it should be observed that in his letter of March 27, 2003, the treating physician refers to "her myofascial symptoms." Similarly, in a letter dated December 3, 2004, he also refers to myofascial pain.

A review of the medical evidence as a whole and in particular the evidence of the pain management specialist and the physiotherapist in 2001 and the occupational health physician in 2002 confirms the panel's view that the injury suffered by the worker is not related to fibromyalgia.

Chronic Pain Syndrome

While the panel is of the view, based upon a balance of probabilities, that the worker was suffering a loss of earning capacity as a result of a combination of her physical and psychiatric injuries from her workplace injury, it hastens to add that it does not accept a finding of chronic pain syndrome. This diagnosis was rejected in the PMU report of 2001 and 2002 and the panel accepts these findings.

Conclusion

After considering the entire record, the panel finds, based on a balance of probabilities that the worker suffered a loss of earning capacity beyond April 26, 2002 as a result of her workplace injury. Accordingly, she is entitled to wage loss benefits and services beyond April 26, 2002 and her appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 7th day of September, 2006