The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with the relationship between the worker’s October 8, 2004 compensable injury and her ongoing back complaints and her depression. To place this issue in context, it is important to note that the worker has a pre-existing compensable history of chronic pain syndrome and depression.

Background

On October 8, 2004, the worker injured her back at work when she caught and lowered to the floor a 300 pound person who then fell on top of her. She saw a doctor at an emergency facility who diagnosed her with an acute low back strain. She then saw a chiropractor a week later who diagnosed an acute thoracolumbar and lumbosacral strain/sprain.

On October 20, 2004, the worker was examined by a WCB medical advisor (“the WCB medical advisor”). The WCB medical advisor’s examination did not reveal any muscle spasm or radicular symptoms indicative of nerve involvement. He did however note the worker’s complaints of discomfort during the examination as well as 5/5 Waddell signs which are indicative of a non-organic cause for the worker’s complaints. He confirmed a diagnosis of a soft tissue injury and recommended a short course of physiotherapy with the aim of returning the worker back to work within a short period of time. The WCB medical advisor also commented on the worker’s psychosocial status. He noted that the worker had been concerned about her pain and her progress though there were no clear vegetative symptoms on examination. The worker added that in the spring of 2004, she had had an episode that she thought might have been a recurrence of her pre-existing depression though she stated that this had been under “good control”.

The worker was then seen by a sports medicine physician on October 27, 2004. He had treated the worker for her prior injury. It was his opinion that the worker had an acute mechanical back problem with the most probable diagnosis being internal disc disruption. He did not however “see anything sinister”. He also recommended a course of physiotherapy for some spinal stabilization exercises but “refrained” from prescribing any medication at that time. When the sports medicine specialist saw her again on November 17, 2004, he thought she had improved and could return to work at modified duties with restrictions. At this time, he prescribed Celexa, an anti-depressant medication that the worker had been on in the past.

The WCB medical advisor agreed that the worker could return to work and a graduated return to work program was set up from January 31 to March 14, 2005. The worker however only worked the first week of the graduated return to work program due to reported increased pain complaints.

Medical reports at this time note that the worker’s clinical presentation had changed from earlier presentations - she was now showing overt signs of depression. A report from the sports medicine specialist dated February 8, 2005 noted that the worker was no longer able to work. On examination, he noted pain behaviour with decreased forward flexion of the lumbar spine and no neurological signs. He referred her to a psychiatrist, requested an examination by the pain management unit (“PMU”) at the WCB and commented that the worker needed re-conditioning.

A report was obtained from the psychiatrist dated April 5, 2005. The report comments on the worker’s prior depression. It notes that the worker had a depressive episode in 1993 that had been successfully treated with Celexa, which she had taken on and off up until 2001. She then suffered a post-partum depression in 2002. Much of this history has been disputed by the worker as detailed below. At the time of the examination in April 2005, the psychiatrist thought that she was suffering from Major Depression and Chronic Pain and that the two diagnoses were very much interdependent.

On June 2, 2005, the worker was assessed by the PMU at the WCB. Contrary to other medical practitioners, the PMU did not find any pain behaviour. It found the worker to be reasonable and forthright though she did become highly tearful when talking about her mental status and perceived limitations. In the end, it diagnosed her with a Major Depressive Disorder, recurrent, mild to moderate. It also commented on an apparent interaction between the worker’s perception of her pain, her functioning and her level of depression. Based on this, it recommended that the worker’s depression continue to be treated pharmacologically and through psychotherapy.

These recommendations were followed and by July 12, 2005, the treating psychiatrist noted improvement.

During this period of time when the worker had been undergoing psychiatric treatment, video surveillance was taken of her, the most significant of which was taken in late July 2005.

The video surveillance was provided to the WCB medical advisor for review and comment on August 25, 2005. The WCB medical advisor noted that the video showed the worker engaged in a variety of activities - she was walking with two little children and walked with good rhythm; she was sitting on the ground with her legs extended and lifting small cement blocks to place onto a pathway; she bent forward and rotated to the left; she used her left hand to lift the cement blocks out of a wheel barrow; she maintained the position for 15 or 20 minutes; she was lifting pots of soil with both hands in order to transport them to another part of her yard; she was active visiting neighbours and moving around; she was putting up a stepladder, carrying paint and painting some trim; she used a weed eater. Taking into consideration his earlier examination of her in October 2004, it was his opinion that she was fit to return to her regular duties without restrictions.

The PMU also reviewed the video surveillance. A September 13, 2005 memorandum outlines its opinion that the video surveillance is at odds with the worker’s presentation to it in June 2005. It found that the worker’s limitations – whether physical or psychological – are due only to those that she places on herself rather than her workplace accident. It also found that the worker did not meet the criteria for chronic pain syndrome and was able to return to work. It also commented specifically on whether the worker’s depression was related to the October 8, 2004 compensable injury. The PMU took the position that it was unlikely that any mood disturbance was causally related to the October 8, 2004 compensable injury. It thought however that the worker’s mood disturbance was more likely part of the affective component of her portrayal of pain when interacting with healthcare professionals or WCB personnel who were involved in any way with her claim. This affect was not displayed on the video surveillance.

It was on the basis of these medical reviews of the video surveillance that the worker’s case manager decided to terminate her benefits effective September 28, 2005.

The worker’s family physician disagreed with the WCB’s decision to terminate her benefits. He thought that the worker had not recovered sufficiently to return to her regular duties. He also noted that the worker had suffered a relapse of depressive symptoms in September 2005 and required further treatment. He also commented further in a September 2006 report that “there is no question that she suffers from a chronic pain syndrome involving her back” and that although she is capable of some physical activity, she was certainly not physically capable of doing her regular duties.

Positions of the Parties and Evidence at the Hearing

The worker says that her appeal should be accepted. Firstly, she says that her depression is related to her compensable injury. At the hearing, she explained that she was diagnosed with depression after her 1993/1994 workplace accident. Contrary to what the psychiatrist recorded, she says that she remained on anti-depressants from that time forward, stopping only during her pregnancy out of concern for the health of her unborn child. She nonetheless continued to have depressive symptoms during the pregnancy. Immediately after delivery, she resumed anti-depressants until sometime in 2003. She says that immediately prior to the workplace accident she was not on anti-depressants and three weeks after her accident she was on them. She has continued on them without interruption. When asked what she thought caused her depression this time, she said that it was quite simply the apprehension of being on claim once again. Though her depressive symptoms did improve with treatment by July 2005, they worsened in September 2005 after being advised of the termination of her benefits because of the financial impact to her.

The worker also says that she had not recovered from the physical effects of her compensable injury by September 28, 2005. She relies on the medical reports of her family physician, the sports medicine specialist and the first report of the PMU. With respect to the video surveillance she says that no weight should be placed on it as it records very little activity; the activity it does record is consistent with her report to the PMU. She says that she continues to live with pain and reduced physical stamina. She has nonetheless been successful in finding alternate employment at a reduced work week that complies with her physical restrictions.

The employer says that the worker’s appeal should not be accepted. It says that there is no medical evidence to indicate any disability, whether physical or psychological, related to her workplace injury that would entitle the worker to benefits beyond September 28, 2005. It relies on the lack of organic findings, the presence of 5/5 Waddell signs which are indicative of pain exaggeration, as well as the pre-existing longstanding history of depression.

Analysis

To accept the worker’s appeal, this panel must find on a balance of probabilities that her depression and ongoing pain complaints after September 28, 2005 are causally related to her October 2004 workplace accident. We are unable to make that finding.

There are two competing diagnoses for the worker’s October 2004 workplace injury - a soft tissue or muscular injury, and a mechanical back problem with a possible diagnosis of internal disc disruption. To our mind, given the mechanism of injury and her symptoms the worker’s injury is more consistent with a soft tissue injury. To be clear, there is no medical evidence on file that the worker’s injury was the cause of an internal disc disruption; at most it may have aggravated a pre-existing condition. In any event, the medical evidence on file, including from the sports medicine specialist is that the worker was able to return to work as early as November 2004. Though the worker returned to work in January 2005 for only a short period of time, there is no convincing medical evidence that this was due to a physical inability. Rather, the evidence on the file suggests that this was due to the worker’s self-imposed limitations and her depression. We find that neither of these is caused by the October 2004 workplace injury.

The file is replete with references to the worker’s pain behaviour and pain exaggeration. We therefore agree with the PMU’s assessment that the worker’s physical limitations are due to the worker’s personality style that keeps her pain focussed and self-limiting.

We also make this finding with respect to the worker’s depression. Indeed, although the medical evidence on file tends to link the worker’s depression to her workplace accident, the worker’s own testimony about the history of her depression and the cause of its onset in 2004 and worsening in 2005 dispel these medical opinions.