The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 10, 2000, at the request of the claimant. The claimant appealed a decision of the Review Office of the Workers Compensation Board (WCB) which determined that she was not entitled to the payment of wage loss benefits beyond June 25, 1999. The Panel requested and received new medical information on the claimant including an evaluation by the Pain Management Unit of the WCB. Thereafter, several meetings were held to discuss and review information received on the claimant’s file, the last meeting being May 3, 2001.

Issue

Whether or not the claimant is entitled to the payment of wage loss benefits beyond June 25, 1999.

Decision

That the claimant is not entitled to the payment of wage loss benefits beyond June 25, 1999.

Background

This case was previously the subject of an Appeal Panel hearing that took place on October 22, 1998. A complete background concerning the history of the claim can be found in Appeal Panel Decision No. 31/99 and will not be repeated in its entirety at this time.

Briefly, the claimant injured her left thigh and knee on March 8, 1996, when she slipped on a wet laundry floor while employed as a homemaker. The claim was accepted by the WCB and benefits were paid to June 22, 1998, when it was determined that the claimant had recovered from the effects of her compensable injury. The claimant appealed this decision to Review Office and then to the Appeal Commission. On February 15, 1999, the Appeal Panel determined that the claimant had not fully recovered from the effects of her compensable injury and was entitled to benefits beyond June 22, 1998. The Panel suggested that an aggressive time limited return to work program be initiated as proposed by her treating physiatrist.

The claimant subsequently attended a functional restoration program for four weeks between May 3^rd to May 28, 1999 and a modified work hardening program between May 31 to June 24, 1999. On May 26, 1999, primary adjudication advised the claimant that once she completed these two programs she would be considered fit to return to her pre-accident job and benefits would cease effective June 25, 1999.

On July 18, 1999, the treating physiatrist reported that the claimant was assessed on June 25, 1999 and July 9, 1999. Clinically, he did not notice any significant musculoskeletal disorder except for low white blood cells. He noted that the claimant had received several months of rehabilitation therapy treatments, analgesics and non-steroid anti-inflammatory medications and that she had not responded well to these interventions. The physiatrist stated that the claimant had developed a chronic pain syndrome and should be encouraged to return to gainful employment as soon as possible.

In a letter of January 6, 2000, the claimant advised that she was diagnosed with an injured sciatic nerve. Following x-rays that were taken on December 22, 1999, the claimant indicated that she had a slipped disc that moved, often pressing on the sciatic nerve and thus causing great pain to her hip and causing her to limp when walking. The claimant stated that the heel of her right shoe was completely worn off at one side of the heel and new shoes had to be purchased every 3 to 4 months. The claimant was of the view that her injury was caused by the workplace and that she was entitled to further benefits.

A x-ray report of the lumbosacral spine dated December 22, 1999 was obtained by primary adjudication. The report stated there was a very minor scoliosis of the lumbar spine, convex left. The vertebral body and disc space sites were well preserved. No significant bony abnormality was demonstrated. There was early calcification of the distal aorta.

A progress report from the attending physician dated January 27, 2000, noted the following diagnoses for the claimant: low back pain, left trochanteric bursitis and left knee pain. The claimant was referred back to the physiatrist for further assessment.

On April 2, 2000, following consultation with a WCB medical advisor, primary adjudication advised the claimant that after review of the recent and prior medical findings, it was still the opinion that her ongoing problems were not related to the compensable injury.

The case was considered by Review Office on April 14, 2000 at the request of the claimant. Review Office confirmed that the claimant was not totally disabled by reason of the compensable injury of March 8, 1996 and that she was not entitled to wage loss benefits beyond June 25, 1999. Review Office stated there was no medical substantiation that the claimant remained disabled by reason of the compensable injury. On May 15, 2000, the claimant appealed Review Office’s decision to the Appeal Commission and an oral hearing took place on August 10, 2000.

Following the hearing and discussion of the case, the Appeal Panel requested that the claimant be evaluated at the WCB’s Pain Management Unit (PMU) concerning her current medical status. The claimant was later seen at PMU on October 10 and 17, 2000. At a case conference held on October 27, 2000, PMU determined that the claimant met the diagnostic criteria for a chronic pain syndrome (CPS).

On November 28, 30 and December 1, 2000, a surveillance of the claimant’s activities was undertaken by a private investigation firm at the request of the WCB. Following review of the surveillance videotapes, PMU indicated that the claimant did not qualify for a diagnosis of chronic pain syndrome, as she appeared to be functioning quite well, without any obvious disability or pain focus.

On January 15, 2001, the claimant was provided with a copy of the surveillance videotape along with the PMU’s assessment reports and was asked to provide rebuttal arguments. On January 29, 2001, the claimant telephoned the Appeal Commission and requested additional time to prepare final comments to the Panel with respect to her appeal. The request for an extension was granted and on February 2, 2001, the claimant provided rebuttal argument to the Panel. Due to the unavailability of one of the panel members, the Appeal Panel meeting scheduled for February 15, 2001 was postponed to March 7, 2001.

On March 7, 2001, the Panel met further to discuss the case and additional clarification was requested from PMU with respect to the claimant’s present condition/status. On April 6, 2001, the claimant was provided with the Panel’s response from the PMU dated March 26, 2001 and was asked to submit rebuttal arguments, which the claimant did on April 19, 2001. On May 3, 2001, the panel met to render its final decision on the issue under appeal.

Reasons

The majority Appeal Panel is in agreement with the WCB Review Office decision of April 14, 2000 in that we have found that the claimant was not totally disabled by reason of the compensable injury of March 8, 1996 and that she is not entitled to wage loss benefits beyond June 25, 1999. In particular we have noted the decision of the previous Appeal Panel on this matter dated February 15, 1999 (Decision No. 31/99) wherein the Panel concluded that the weight of the evidence confirmed on a balance of probabilities that the claimant had not fully recovered from the effects of the compensable injury when her benefits were discontinued June 28, 1998. At that time a great deal of weight was placed on the opinion of the claimant’s treating physiatrist. “The Panel was extremely interested” in his report of November 25, 1998 and they in fact quoted the following passage from that report:

In summary Miss [the claimant] suffered soft tissue injury resulting from her fall. She may have possibly suffered lumbosacral facette joint injury and strain. She did not suffer any disc herniation or radiculopathy or peripheral nerve injury. On her visit to my Clinic on June 23^rd, 1998, she presented with active trigger points of the left tensor fascia lata and had good pain relief for short periods after she received local injection with Xylocaine and Depo-Medrol of the trigger points. She further received trigger point injections of the left quadriceps and the tensor fascia lata on the 10^th of July which gave her good relief for one week. She has developed chronic soft tissue pain syndrome and there has been no evidence of any significant bony disc or nerve injuries. I will not recommend any further investigations and she should be seen by the occasional rehab counsellor and should be encouraged to return to gainful employment. The best approach in her case will be graduated return to work and as her endurance and functional level improves, gradually the working hours can be increased to 8 hours per day. (emphasis ours)

As a result of this opinion and taking into account the weight of the balance of the evidence, the Panel found that she had not fully recovered from the effects of her compensable injury by June 22, 1998. They suggested that “an aggressive time limited return to work program, as proposed by her treating physiatrist, be initiated.” Such a program was to begin as soon as possible.

Since the time of that Appeal Panel decision we have noted that the claimant did not commence an “aggressive return to work program” and in fact remained off work complaining of the same symptomology (with a few noted improvements due to her working with a new physiotherapist) at the time that she came before the present Appeal Panel.

The majority Panel has noted the following from the claimant’s file:

• she was being treated by her current physiotherapist since March 4, 2000 for “a sciatic nerve down the leg caused by scar tissue building around the nerve” (claimant’s words);

• on July 18, 1999 the physiatrist reported that there were “no indications for any further musculoskeletal investigations” and that the claimant “should be encouraged to return to gainful employment as soon as possible”;

• an x-ray taken on December 1999 showed no significant bone abnormality. There was some early calcification of the distal aorta;

• the prevention assessment rehabilitation unit had worked with the claimant as part of a return to work program engaged for her and their report dated July 5, 1999 showed that the claimant was capable of performing certain activity over certain time periods. They had instructed the claimant in appropriate lifting, carrying, and walking to assist her in overcoming any difficulty she was experiencing;

• a physical medicine consultant that the claimant was referred to by her treating physician for trigger point injections noted in his report dated July 18, 1999 that he could not find any major musculoskeletal disorder. He noted that the claimant had received several months of rehabilitation therapy treatments, analgesics and non-steroid anti-inflammatory medications and that she had not responded well to any of these interventions. He felt she had developed chronic pain syndrome;

• a previous CT scan and bone scan showed no abnormalities;

• her treating chiropractor was unable to state in his report dated April 19, 2001 with any “reasonable degree of medical certainty” that her current sacroiliac problem is related to her injury at work.

In light of the above which indicated to the majority Panel that there was little in the way of medical substantiation to suggest that the claimant remained disabled by reason of the compensable injury sustained, the Panel requested an investigation of the physiatrist’s view that the claimant was suffering from chronic pain syndrome. The claimant was referred by the Appeal Panel to the Pain Management Unit (PMU) of the WCB. At the PMU the claimant underwent a thorough interview, medical assessment and psychiatric assessment. She was also followed by video surveillance for several days, unbeknownst to her. The video surveillance tapes were reviewed by the Appeal Panel. The majority Panel has noted the following findings from the above material as being significant:

• the psychological advisor stated that the claimant did present “with pain as being her primary barrier to recovery.” However, it was also noted that the claimant used little or no pain medication, had a restorative sleep pattern and strongly denied the presence of any emotional distress secondary to her pain or to her protracted recovery;

• the videotape revealed that the claimant had a pronounced limp. However, it also revealed to the majority Panel that this did not prevent the claimant from engaging in her normal activities such as walking. It was also of note that the claimant was engaged in some fairly strenuous activity during the course of the surveillance including climbing up and down ladders, carrying what appeared to be heavy objects and either putting up or taking down Christmas lights and displays;

• the results of the PMU assessment are set forth in two documents, one dated December 21, 2000 and the other typed on October 18, 2000 entitled “Interview Notes”. The opinion expressed in the latter document was as follows:

The results of the Pain Management Unit Assessment Conference of October 27, 2000 were discussed with all present. It was noted that the claimant did meet the Diagnostic criteria for a Chronic Pain Syndrome as defined in the Checklist [see attached]. Prior to any recommendations regarding treatment the Athletic Therapist will be contacted by the Adjudicator for clarification of the treatment being provided by the Athletic Therapist as well as the treatment plan. Clarification of the claimant’s functional status will also be obtained and once these two issues have been dealt with a further case conference will likely be convened for further consideration of appropriate recommendations to address the chronic pain syndrome.

However, after the above noted information was received, the medical advisor and the psychological advisor for the PMU qualified their earlier summary in the following manner:

The writers reviewed the surveillance film of this claimant dated November 30, 2000 and December 1, 2000. As the claimant appeared to be functioning quite well, without any obvious disability or pain focus it is the opinion of the writers that the claimant does not qualify for a diagnosis of chronic pain syndrome.

Due to the fact that the Panel had noted that the claimant was walking with an obvious limp and walking on the ball of her foot during the course of the video surveillance, the Panel then queried the PMU about what if any diagnosis they might give to the claimant, if she was not suffering from chronic pain syndrome. The response from the PMU medical advisor dated March 26, 2001 was:

Based on the information on file [objective clinical findings, diagnostic imaging, and surgical procedures] the only diagnosis which currently exists is a small area of Grade III chondromalacia which was noted on the lateral aspect of the Tibial Plateau by Dr. [name] during arthroscopy which was performed November 25, 1996 [report on file]. There is not a causal relationship between the chondromalacia and the compensable event as the chondromalacia was present as a result of aging and the ravages of time. As the chondromalacia was present on November 11, 1996 and the compensable event took place March 8, 1996 it would not have been caused by the compensable event but does constitute a pre-existing condition. There is no anatomical or pathphysiological mechanism that would relate the chondromalacia to the claimant’s abnormal gait. The chondromalacia does not constitute a disability and does not prevent the claimant from returning to her pre accident duties as a VON.

Having reviewed the claimant’s file in its entirety, the majority Panel is prepared to accept the opinion of the PMU on both the issue of there being no chronic pain syndrome present and on the diagnosis of a pre-existing condition of chondromalacia that would not prevent the claimant from returning to her pre-accident employment. This decision has been arrived at on a review of the balance of the evidence and a determination that the lack of objective medical findings together with the very thorough and expert work and opinions of the PMU does not support the conclusion that the claimant is/was continuing to suffer from a compensable accident beyond June 25, 1997.

Panel Members

K. Dunlop, Q.C., Presiding Officer
E. Krosney, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2001

Commissioner's Dissent

Commissioner Leake’s Dissent:

It is the opinion of this commissioner that the claimant has not recovered from her compensable injury of March 1996.

The claimant has suffered a long time and the medical profession has not yet resolved this case. It is apparent from the video tape that she can perform some functions which begs the question why is this claimant not back to work.

To this commissioner the claimant’s current problems are related to her compensable injury. My decision is based on the video tape evidence and a letter dated April 16, 2001 from the claimant’s athletic therapist.

B. Leake, Commissioner