Decision #127/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 28, 2000, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she was not entitled to further benefits after July 14, 1998. The Panel discussed the appeal on September 28, 2000 and again on November 6, 2000.
Issue
Whether or not the claimant is entitled to further benefits after July 14, 1998.
Decision
That the claimant is not entitled to further benefits after July 14, 1998.
Background
While employed as a health care aid on February 2, 1995, the claimant was assisting a wheelchair bound patient when the chair toppled and the claimant was pinned under the chair with the weight of the patient on her. The diagnosis reported by the attending physician on February 3, 1995, was multiple contusions and a strained right shoulder and neck.
A Chiropractor’s First Report dated March 27, 1995, diagnosed the claimant’s condition as contusions to the right arm, chest, knee and right sided cervical intercostal and shoulder strain. The chiropractor noted that the claimant had suffered multiple work and motor vehicle accident injuries to the neck and shoulders in the past. The claim was accepted as WCB responsibility and benefits commenced on February 3, 1995.
On June 19, 1995, a WCB medical advisor assessed the claimant’s medical status. It was concluded that the claimant had a degree of rotator cuff syndrome, regional myofascial pain and epicondylitis of the right elbow. On June 27, 1995, the attending physician noted that in addition to these diagnoses, the claimant had cervical degenerative disc disease.
In a report from a physical medicine and rehabilitation specialist dated January 17, 1996, he indicates that the claimant showed some signs of dysfunction of the cervical spine that may be referring discomfort into the right upper limb. There were no classic signs of radiculopathy given the normal neuralgic exam with a non organic weakness detected. The specialist stated that some of these seemed to be pre-existing problems prior to her work injury and even prior to her two motor vehicle accidents. Further tests were recommended and it was felt that the claimant was fit for sedentary to light duties. The claimant later started a return to work program with light duties as a ward clerk with a 10 pound weight restriction.
Laboratory investigations included a CT of the cervical spine dated February 17, 1996. The impression read “No significant abnormalities are seen.” Nerve conduction studies were performed on November 15, 1995. The results indicated that there was no electrophysiological evidence of a carpal tunnel syndrome.
In a March 26, 1996, follow-up report, the rehabilitation and medicine specialist indicated that he again saw the claimant with respect to her neck and shoulder girdle pain on March 26, 1996. The specialist indicated that he advised the claimant that there was no contraindication for her pursuing a reconditioning program and that she was fit for sedentary to light duties with a gradual increase in her tolerance.
On May 29, 1996, the claimant injured her lower back while on a back to work program. This was accepted by the WCB as a new accident. On December 24, 1996, while at a work hardening program, the claimant injured her right foot while navigating a flight of stairs. This was also accepted by the WCB as a new accident.
In March 1998, the claimant commenced a reconditioning program. In a discharge report from the Wellness Institute dated April 22, 1998, it was indicated that objective increases were noted with respect to muscle strength and endurance greater in the lower limbs and trunk than the upper extremities, increase in right shoulder abduction and increased walking tolerance and speed. She did not feel the claimant had physically plateaued or reached maximal levels in her functioning. The therapist concluded that it was her clinical opinion that the claimant was currently not physically capable of performing the job demands of a health care aide.
Following consultation with the WCB’s healthcare branch, Claims Services determined on July 8, 1998, that the claimant had recovered from the effects of the February 2, 1995 injury as well as the subsequent injuries that occurred in May 1995 and December 1996. It was the opinion of Claims Services that any findings which would prevent the claimant from returning to work to her regular duties are not related to any to these incidents. It was determined therefore that workers compensation benefits would end July 14, 1998. On August 14, 1998, the claimant appealed this decision to Review Office.
On October 2, 1998, Review Office confirmed that the claimant was not entitled to further benefits after July 14, 1998, due to the effects of her work related accident in February 1995. Review Office outlined the following reasons for its decision:
- the claimant’s work related accident in February 1995 caused multiple soft-tissue injuries (mostly to the upper extremities) and some facet irritation of the cervical spine. Review Office believed there were no longer objective findings of residual impairment directly attributable to the injuries after March 1996.
- the claimant had a secondary injury of chronic pain syndrome that was a significant barrier to programs prescribed to improve the claimant’s general conditioning. Review Office did not consider there was evidence to show that the claimant was entitled to benefits for this secondary injury of chronic pain syndrome.
- the most probable or dominant cause of this secondary injury was the cumulative consequence of personal risk factors which pre-existed the accident at work and developed subsequent to February 1995 and were not considered caused by the effects of the workplace injury of February 2, 1995.
On November 24, 1999, a worker advisor submitted additional medical evidence for Review Office’s consideration. The worker advisor contended that these reports provided objective clinical findings to relate the claimant’s current inability to work to her workplace accident and that the secondary condition of chronic pain syndrome resulted directly from the compensable injury and not to any other condition.
In a January 14, 2000, decision, Review Office requested that a WCB medical advisor and the WCB’s Pain Management Unit assess the claimant. These assessments later took place in February and March 2000.
On March 31, 2000, Review Office determined that the claimant was not entitled to further benefits after July 14, 1998. Review Office believed that the evidence on file supported that the physical injuries sustained by the claimant in February 1995 were nothing more than soft tissue injuries and that the claimant had recovered from the effects of same.
Review Office noted further that in August 1996 a WCB medical advisor in the Pain Management Unit determined that the claimant had chronic pain syndrome and that the 1995 workplace injuries had not contributed materially to this. The chronic pain syndrome was attributable to psychosocial factors involved in the claimant’s life. When recently assessed, Review Office indicated that psychological testing and a further interview and assessment did not qualify for a diagnosis of chronic pain syndrome and that Review Office accepted this opinion.
On June 13, 2000 the worker advisor appealed Review Office’s decision and an oral hearing was arranged and held on September 28, 2000.
Following the hearing and discussion of the case, the Appeal Panel asked that the worker advisor provide a copy of a chiropractic report that she had in her possession and that was referred to at the September 28, 2000 hearing. A copy of the chiropractic report was later obtained from the worker advisor and was forwarded to the employer’s representative for comment.
On November 6, 2000, the Panel met to render its final decision with regards to the issue under appeal and took into consideration the submissions provided by the employer’s representative and the claimant’s worker advisor dated October 13, 2000 and October 18, 2000 respectively.
Reasons
The Appeal Panel has unanimously concluded that the claimant is not entitled to further benefits after July 14, 1998. In reaching this conclusion we have reviewed all of the medical evidence on the claimant’s file with the WCB and have obtained an updated and current report from her present chiropractor which details her current symptoms and the chiropractor’s opinion on her prognosis. We have also heard and reviewed the evidence of the claimant, related both in her WCB file and at the hearing of this matter and have paid particular attention to her descriptions of her daily living activities since 1998 and most recently. We have determined, after reviewing all of this information, that on a balance of probabilities the evidence does not support a continuing disability that can be causally related to her compensable accident of February 2, 1995.
It is clear that a compensable accident happened at the claimant’s workplace on February 2, 1995. It is also clear that the claimant was entitled to benefits for that accident continuing for sometime after February 2, 1995 when she was exhibiting both objective and subjective physical findings relating to the trauma that occurred at the time of the accident. However, it is equally clear to this Panel that these same physical findings began to disappear by 1996 and certainly by 1997. On March 26, 1996 it was suggested by the claimant’s physical medicine and rehabilitation specialist that she was fit to return to work in a sedentary to light duty position. All of her medical tests were negative at that time.
By April 19, 1997, the claimant’s physician at the Centre for Pain and Stress Management was reporting that she had full range of motion of the shoulders and good range of motion of the neck. Treatment was discontinued at that time. The majority of the medical reports on the claimant’s file appear to conclude that by the time she was cut off benefits by the WCB on July 14, 1998, all physical symptoms related to the compensable accident appear to have disappeared. Certainly, no major findings relating to a physical disability had been made at least for one to two years prior to benefits being terminated. There was an indication that the claimant had become deconditioned being off work for so long. Why the actual termination date of July 14, 1998 was chosen by the WCB is unclear although supportable on the balance of the evidence which does not reveal any anatomical abnormalities that may have explained the claimant’s prolonged symptoms.
Once most of the physical symptoms being experienced by the claimant seemed to disappear, the focus of the medical information appears to have shifted to suggest that the claimant’s ongoing physical complaints might have a psychological basis. A diagnosis of chronic pain was suggested in the Spring of 1996. All attempts at graduated returns to work had met with failure. Medical reports seemed to indicate that the claimant’s ongoing problems were more psychologically based rather than physical. A psychologist noted in July of 1996 that the claimant had a number of stressors in her personal and family life and that psychotherapy was required. Many non-work related factors that would cause stress existed and some continue to exist in the life of the claimant. These would include but are not limited to a history of neck and shoulder problems pre-existing from two non-compensable motor vehicle accidents in 1993 and 1994. The claimant’s son was severely disabled due to a back condition that was corrected by surgery for scoliosis. This son was living in the claimant’s home throughout his period of disability, much of the time in a full body cast. The claimant’s husband also suffered from seizures for which he had to travel to British Columbia for surgery. The claimant’s brother was diagnosed with cancer at age 38 and recently underwent a successful bone marrow transplant. Lastly, when the claimant first attempted to open a day care in her home, she took in a one year old who was still breast fed and not toilet trained. She was unable to handle the child due to the physical demands of a one year old and no doubt the situation would have been stressful.
The Pain Management Unit of the WCB had been involved with the claimant since 1996. Their medical specialists have repeatedly indicated that the evidence does not support a relationship between the claimant’s pain complaints and the work injury.
In February and March of 2000 this issue was once again revisited by the Pain Management Clinic. Their assessment findings were carefully applied against the WCB’s diagnostic criteria checklist for chronic pain syndrome. The WCB will accept a diagnosis of chronic pain syndrome as related to the effects of an injury where:
1. Diagnostic criteria are satisfied.
2. Chronic Pain Syndrome develops entirely subsequent to the physical injury.
3. The physical injury contributes to the causation to a material degree.
The Pain Management Unit summarized their findings in a memo dated March 21, 2000. They found that the claimant did not meet the diagnostic criteria for Chronic Pain Syndrome “as the disability was not proportionate in all areas of functioning.” This conclusion was reached after a complete psychological assessment was conducted, a thorough Pain Management Unit interview took place and a case conference was held involving medical doctors who were specialists in this area. We give great weight to the findings of the Pain Management Unit on the issue of Chronic Pain Syndrome given the thoroughness of their work and the fact that they are specialists in this area.
We also agree with the findings of the Pain Management Unit wherein they found the disability of the claimant not to be proportionate in all areas of functioning. We note the comments on page 7 of the Pain Management Unit’s interview notes where a description of the claimant’s day was provided. They stated:
“The claimant arises at approximately 6:00 in the morning. She drives her husband to work and then returns home. She may lie down for a short time thereafter. For the rest of the morning she may do light housekeeping. The claimant is also involved in preparation of meals. In the afternoon the claimant will go shopping and do errands. On Tuesday afternoons the claimant takes her grandson for swimming. In the evenings the claimant may have friends over or might go out to visit with a friend, but the claimant notes that they stick pretty much to home. The claimant will go to bed between 11:30 and 12:00 p.m. The claimant usually falls asleep in 10 to 15 minutes. She will be awakened two or three times per night and in the morning she wakes up, she does not feel refreshed from her sleep.”
As well, the claimant advised at the hearing of this matter that she is currently looking after four children during the day, a two year old, a three year old and two five year olds. She is fully responsible for at least two of these children all day and responsible for the other two for part of the day. We take from this that the claimant appears to be functioning well in her home setting but continues not to be able, for a variety of reasons to return to her pre-accident employment.
While we have great admiration for the strength that the claimant has displayed with all the difficulties in her life, we, like the Pain Management Unit, do not find the descriptions of her disability to be proportionate in all areas of her functioning. Accordingly, and with a great deal of personal admiration for the claimant, we cannot find that her current difficulties are related to the compensable accident. She is, therefore, not entitled to benefits beyond July 14, 1998.
Panel Members
K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of December, 2000