Decision #93/08 - Type: Workers Compensation

Preamble

On May 22, 1992, the worker filed a claim with the Workers Compensation Board (“WCB”) for injuries suffered in a work related accident on February 11, 1992. The claim for compensation was accepted and the worker was paid wage loss benefits to June 29, 1994 when it was determined by primary adjudication that she had recovered from the effects of her compensable injury. The worker disagreed with the decision and filed numerous appeals with Review Office. In its last decision dated October 31, 2007, Review Office confirmed that the worker was not entitled to benefits beyond June 29, 1994. The worker disagreed and filed an application to appeal with the Appeal Commission and a hearing was held on May 1, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 29, 1994.

Decision

That the worker is not entitled to wage loss benefits beyond June 29, 1994.

Decision: Unanimous

Background

On February 11, 1992 the worker claimed injuries to her upper back, right arm, right shoulder and neck when lifting a heavy roll of fabric. On February 18, 1992, she attended her treating physician who prescribed anti-inflammatories, Tylenol #3 and heat. The worker continued to work full-time until May 18, 1992, when she felt that the pain in her upper back, right arm, right shoulder and neck prevented her from working any longer. On May 22, 1992, she filed an application for benefits with the WCB. Supporting her claim was a Doctor’s First Report dated May 20, 1992, from her treating physician. The report indicated that the worker was first seen on February 18, 1992, and was complaining of pain in the upper back, right shoulder and right anterior chest. His diagnosis was myofascial pain and right shoulder rotator cuff syndrome. The claim was accepted and wage loss benefits were paid to the worker commencing May 18, 1992.

Subsequent file records indicated that the worker continued to seek medical attention from her treating physician primarily regarding her neck and right shoulder complaints. In April 1993, the worker was seen by a physiatrist and was diagnosed with a likely tear of the rotator cuff, regional myofascial pain, fibromyalgia and sacroiliac irritation. On November 2, 1993, the treating physician felt that the worker may be suffering from chronic pain syndrome.

On May 17, 1994, the worker was assessed by a WCB medical advisor who provided the impression that there was an absence of any indication of rotator cuff tendonitis and the absence of any trigger points indicating myofascial pain. He stated that the worker’s condition was chronic and myofascial pain was not a chronic condition. Further, the medical advisor commented that he counted 14 tender spots in all and those plus her easy fatigue-ability and sleep disturbances would indicate a diagnosis of fibromyalgia.

On June 22, 1994, it was determined by primary adjudication that compensation benefits would only be paid to June 29, 1994 based on the rationale that the worker had recovered from the effects of her compensable accident and that she was currently suffering from fibromyalgia, a non-compensable condition.

On November 2, 1994, a worker advisor argued that fibromyalgia can be induced by trauma and that on a balance of probabilities, the worker’s current symptoms and restrictions were due to her compensable injury from which she had not recovered. He suggested that the worker’s file be referred to the WCB’s vocational rehabilitation department and to the WCB’s Pain Management Team for an evaluation.

In decision dated November 25, 1994, Review Office decided to arrange for a Medical Review Panel (“MRP”) to offer an opinion as to the worker’s diagnosis, its relationship to the accident, and the extent to which the worker was disabled as a result of her compensable injuries. An MRP later took place on March 3, 1995 and its findings were considered by Review Office on April 7, 1995.

In its decision dated April 7, 1995, Review Office confirmed that no benefits were payable to the worker beyond June 29, 1994. Review Office indicated that the worker presented with many inconsistencies during the interview and physical examination portion of the MRP. She moved about freely without restriction during the interview but limited her movements during the examination process. Review Office stated the MRP agreed that at the most, the worker had a chronic musculoligamentous strain to the neck and shoulder following the accident. The MRP was unable to elicit any specific rotator cuff pathology. It stated that the independent physiatrist did not conform to the diagnosis of fibromyalgia and he was unable to come up with a diagnosis to account for the worker’s current condition on an organic basis.

On March 4, 1996, the worker advisor provided Review Office with additional medical information and asked that it reconsider its previous decision. The medical information consisted of a January 24, 1996 report by a clinical psychologist in which he expressed the view that the worker had an adjustment disorder secondary to her physical condition and she had not recovered from the effects of her compensable injury and continued to be disabled.

Prior to considering the appeal, Review Office arranged for the worker to be assessed at the WCB’s Pain Management Unit (“PMU”) on April 18, 1996. In addition to this assessment, videotape surveillance was taken of the worker’s activities in May of 1994 and on two occasions in June 1996. The videotapes were reviewed and commented on by the PMU’s medical advisor on August 6, 1996.

In a decision dated August 16, 1996 Review Office confirmed that the worker was not entitled to wage loss benefits beyond June 29, 1994 and that no responsibility would be accepted for any psychological conditions as these were considered to be unrelated to the accident. In reaching its decision, Review Office noted that the independent psychologist found no signs of chronic pain behavior syndrome or post traumatic stress disorder but the worker had an adjustment disorder with depressed mood which related to her perception of her current physical condition and unemployment situation. It noted that the WCB PMU medical advisor initially diagnosed the worker with chronic pain syndrome but after reviewing the videotapes, he concluded that while the worker might still qualify for a diagnosis of chronic pain syndrome, it would be due to pre-existing factors and not predominantly to the accident. Review Office therefore was of the view that the weight of medical evidence suggested that the worker did not have chronic pain syndrome and that any other conditions she may be exhibiting such as mood disturbance or affective disorder could not be reasonably attributed to the effects of her accident.

On January 21, 1999, a solicitor acting on the worker’s behalf provided Review Office with a medical opinion from a physiatrist dated December 17, 1998. The physiatrist diagnosed the worker with lumbosacral mechanical pain with L5 and S1 radiculitis due to a disc herniation at L4-L5 and L5-S1, soft tissue pain syndrome of the neck and back and spondylosis of the cervical spine. The physiatrist indicated that the worker had no previous injury or illness which would account for her present physical condition and therefore the conditions were related to the 1992 compensable injury. Based on this opinion the solicitor requested Review Office to reconsider its previous decision. He also indicated that the PMU medical advisor’s opinion that the worker was suffering from chronic pain syndrome due to pre-existing factors was pure speculation on his part.

In a February 5, 1999 decision, Review Office determined that the worker did not suffer a loss of earning capacity due to the accident beyond June 29, 1994. Review Office indicated that it considered the physiatrist’s report and the findings of the MRP. It stated “Inasmuch as the physiatrist has reported significant low back difficulties and taking into account the fact the worker did not injure her lower back area, Review Office cannot account for the worker’s ongoing contention of disability as it relates to this accident. In our view, the soft tissue injuries sustained in 1992 have long since ceased to be a problem for this worker and certainly should not be keeping her from employment…”.

In a submission dated March 13, 2006, the worker’s solicitor asked Review Office to reconsider its decision of February 5, 1999 based on medical reports from a physiatrist dated December 17, 1998 and April 18, 2005, the worker’s general practitioner dated February 7, 2006 and radiological findings. The solicitor argued that the worker continued to suffer to the present date from her workplace injury and it prevented her from returning to work as a bundler/assistant spreader or otherwise due to its severe symptomatology.

On March 31, 2006, Review Office determined that the evidence before it did not support that the worker continued to suffer a loss of earning capacity due to the work accident of February 11, 1992 beyond June 29, 1994. Review Office outlined its opinion that the medical reports submitted by the solicitor did not contain new evidence to warrant a change to its February 5, 1999 decision.

The case was further considered by Review Office on October 31, 2007 at the request of the worker’s solicitor. The solicitor indicated that the worker qualified for Canada Pension Plan (“CPP”) disability benefits as it concluded that the worker was unable to obtain gainful employment because of her physical and mental restrictions and limitations caused by her workplace accident. He also referred to various medical reports to support his position that the worker was entitled to further benefits.

Review Office confirmed its previous decisions dated April 7, 1995, August 16, 1996, February 4, 1999 and March 31, 2006 that the worker was not entitled to benefits after June 29, 1994. It stated that the solicitor did not advance any new medical information that had not already been considered by Review Office. It also indicated that even though the worker was accepted by Human Resources Development Canada (“HRDC”), it was not substantial evidence for it to rescind their earlier decision and award the worker benefits. Review Office pointed out that the WCB did not accept responsibility for any psychological condition experienced by the worker. On December 19, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was held on May 1, 2008.

Following the hearing, the appeal panel requested additional information from the worker’s family physician. The information was later received and was forwarded to the interested parties for comment. On June 16, 2008 the panel met and rendered its final decision.

Reasons

Worker’s submission:

The worker appeared at the oral hearing accompanied by a friend who acted as her advocate. The services of a translator were provided for the worker. The position advanced on behalf of the worker was that she is a hard working person who came to Canada when she was 26 years old. She is not lazy, but since the accident, she can not do the physical work she used to do. There are few light jobs available for people who do not speak the language. Overall, the worker has a medical condition which disabled her from working and at the present time, she remains unable to maintain any employment. She continues to have the same type of symptoms that she has had since the accident and they have been progressively getting worse over time. No improvement in her symptoms has ever been experienced by her.

Employer’s submission:

A representative on behalf of the employer was present. Her submission was that although the employer was aware that there had been an incident concerning the worker, no one thought it was serious. The worker has already received 2 ½ years of benefits, and that is sufficient for the injuries she suffered at work. It was noted that surveillance shows that the worker can do work in her backyard and she should therefore be able to work. While many people have pain, they can still be employed. It was also noted that many years have passed and people’s health often deteriorates with age. It was argued that the worker no longer suffers from any injury resulting from work, and that her present condition is attributable to the normal aging process.

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Analysis:

To find that the worker is entitled to benefits after June 29, 1994, we must find on a balance of probabilities that the worker continues to suffer a loss of earning capacity as a result of her compensable injury. We are unable to make that finding. In the panel’s opinion, by June 29, 1994, the worker had recovered from the effects of her compensable injury and the present condition being complained of by her is not related to the injury she suffered at her former workplace.

In coming to our decision, the panel places particular reliance on the following evidence:

  • Following the hearing, the panel requested the clinical notes of the treating physician. The clinical notes indicate that in the initial period after the accident, on February 18, 1992, the worker was complaining of right shoulder pain with a tender subacromial region and painful arc. She attended on March 6, March 23, April 29 and May 20, and the area of complaint continued to be the shoulder. There is only one reference to upper back pain. The panel notes, however, that she was not incapacitated during this period and in fact, she continued to carry on full time employment. At the hearing, the worker indicated that after the accident, she no longer lifted the large bolts of material, but she did still perform bundling duties, which would involve lifting bundles of material and placing them in a cart. In the panel’s opinion, this would suggest that the mechanism of injury was not overly severe. The panel also notes that although the worker denied that she continued to work until May, 1992, a considerable amount of time has passed since the events in question and memories fade. The panel prefers to rely on the notes taken by a WCB employee on May 22, 1992 which indicate that on that day, the worker attended at the counter at the WCB and when providing the details of her claim, indicated that she continued to work until May 18, 1992.

  • The treating physician also provided the panel with the Canada Pension Plan (“CPP”) medical report which was completed by him October 25, 1994. The report lists two diagnoses to support disability: 1) myofascial pain to the right upper trapezius, right infraspinatus, right paravertebral muscles, sternocleidomastoid, scalene, and rhomboids; and 2) sacroiliac degenerative arthritis. The medical history states: “work related injury Feb 11, 1992 – pulled muscles of right shoulder when lifting a roll of cotton; low back pain since 1981” (emphasis added).

  • The MRP conducted March 3, 1995 noted that: “There were inconsistencies noted between activities during the interview and physical examination. There were inconsistencies in anatomical numbness in the right upper arm and weakness in the hand compared to isolated muscle testing. The inconsistencies made it extremely difficult to say there was a rateable anatomical physical impairment in the neck and right shoulder region. At most, she had chronic musculoligamentous strain to the neck and right shoulder. Once could not elicit specific rotator cuff pathology.” The impression was that the worker had progressive cervical spondylosis at C6-7 and normal appearing shoulders. Based on the history, the MRP’s diagnosis was injury to the right rotator cuff, which resulted in tendonitis, and probable injuries to soft tissue, right side of neck and shoulder. With respect to the worker’s present condition, the MRP was unable to make a specific diagnosis to explain the continued presence of her complaints. The panelists agreed there was a large functional overlay with some evidence of depression. They also agreed that they were unable to assess the degree of the worker’s impairment.

  • The physiatrist’s report of April 18, 2005 references treatment of regional myofascial pain syndrome with local needling of trigger points followed by stretching exercises. The trigger points were resolved following this treatment, but there was no improvement in the movements of the cervical spine and pain. The report also references deconditioning and worsening spondylosis of the cervical spine at the C6-7 level with spinal stenosis which has deteriorated since 1997. While the physiatrist’s report is generally supportive of the worker’s claim, we feel that these facts may also be interpreted to suggest that there are other non-compensable factors which are responsible for the worker’s symptoms.

  • We have considered the worker’s activities recorded on video surveillance. While the surveillance does not necessarily demonstrate that the worker is capable of full-time employment, the panel does note that the recorded activity is inconsistent with the evidence given by the worker as to the degree of her disability. The worker claimed that she does not do any yard work and that she does not even venture outside to see the yard. The surveillance indicates otherwise as the worker is seen washing the doorway to her house, cleaning off mats, and on two occasions, she is seen bending over to pick weeds in her front yard.

The panel’s overall impression is that the worker does exhibit symptomatology and we do not dispute that she suffers from some degree of disability caused by her pain symptoms and adjustment disorder/ depressed mood which has developed in relation to her perception of her current physical condition. We are unable, however, on a balance of probabilities to attribute these symptoms to the worker’s original soft tissue injury to the right shoulder and neck. As outlined in the CPP medical report, the work related injury was “pulled muscles of the right shoulder” and we find that any symptoms related to that injury have long since resolved.

For the reasons set out above, we find that the worker’s current symptoms are not related to the original compensable injury. We find that by June 29, 1994, the worker no longer suffered a loss

of earning capacity as a result of her compensable injury and therefore she is not entitled to wage loss benefits beyond that date. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 31st day of July, 2008

Back