Decision #24/09 - Type: Workers Compensation

Preamble

A hearing was held on July 3, 2008 and was reconvened on December 15, 2008 at the Appeal Commission.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits.

Decision

That the worker is entitled to further wage loss and medical aid benefits.

Decision: Unanimous

Background

On October 5, 1993, the worker was injured in a work related accident when the boom of a drill tipped over and pinned him against the wall of a pit. The worker reported injuries to his left hand, abdomen, genitals, right wrist and ribs. When seen at a hospital emergency facility on October 5, 1993, the following injuries were reported:

“…there was a 10 cm laceration in the left inguinal area, which was rather deep, at least going down to the contents of the inguinal canal. However, I could not see any internal organs, bowel, serious vascular injury or serious neurological injury in this wound. Bowel sounds were present, and the abdomen was not distended or tender in other areas. There was a very large and wide laceration on the left side of his scrotum. However, the testicle and vascular structures in the scrotum were not swollen, badly bruised, or tender. The bony elements of his lower back, pelvis and lower extremities were non tender and normally mobile. It did not hurt him to stress, mobilize, or pull upon any of the hips or knees. An x-ray of his lower pelvis showed no evident fractures of the lower back, hip bones or femur…It is of note that the femoral pulses, the popliteal pulses, and the pedal pulses were normal and intact on both sides. At this point I do not suspect an internal vascular injury.”

Following abdominal surgery and a period of convalescence, the worker was discharged from hospital care on October 8, 1993 and he was cleared to return to work on January 10, 1994. In November 1997, the worker stopping working due to complaints of low back and pelvis pain that he related to the 1993 accident.

Medical information was received from a physician who assessed the worker at an emergency room on November 5, 1997. He reported that the worker was brought in by his wife and complained of excruciating pain in the low back, scrotum and testes. There was no injury to account for his symptoms. The worker was prescribed medication and was eventually allowed to go home. When seen at an office visit in January 1998, the worker still complained of quite severe low back pain and extreme fatigue with minimal activities. He was prescribed pain killers and an anti-depressant medication as the worker looked depressed. The physician noted that this was not uncommon with people having chronic pain following a major injury. Arrangements were made for the worker to see a pain management specialist. He also indicated that the symptomatology experienced by the worker was directly related to his compensable work injury.

A lumbar spine x-ray dated February 9, 1998, revealed spina bifida occulta at L5 and bilateral spondylolysis of the articulating pillar L5. This resulted in a grade I anterior listhesis of L5/S1. The lumbar spine and sacroiliac joints were unremarkable.

A report from the pain management specialist indicated that the worker was having problems with orchialgia and low back pain for the last couple of years. Over the past two years, the worker had chronic pain and a number of unusual symptoms such as numbness in both legs and low back discomfort. The worker indicated that he had difficulties with a decrease in sexual function, and chronic anxiety and episodes of depression. In summary, the pain management specialist thought that the worker had a well established chronic pain syndrome and features suggestive of post traumatic stress disorder. He was “preoccupied” with the accident and had a number of unusual sensations as a result. His sleep was disrupted and he showed evidence of mood disorder.

The medical information was reviewed by a WCB medical advisor on March 16, 1998. The medical advisor opined that the worker’s ongoing problems were not directly related to the compensable injury because the worker had recovered from the laceration, had only complained of some minor numbness, and had functioned quite well for four years after the compensable injury.

On March 27, 1998, the worker was advised of the WCB’s opinion that his current medical problems were not directly related to his compensable injury and that he had recovered from the workplace accident of October 5, 1993. The worker was advised that the WCB did not dispute the diagnosis provided by the pain management specialist but felt that it was not directly related to his compensable injury. This decision was appealed by the worker on April 16, 1998. On May 11, 1998, Review Office directed the claim back to primary adjudication to decide on issues related to the worker’s chronic pain syndrome, depression, back and groin problems.

The worker was assessed by a WCB medical advisor on September 28, 1998, a medical advisor at the WCB’s Pain Management Unit (PMU) on September 30, 1998 and was interviewed by a WCB psychological advisor on October 1, 1998.

In a decision letter dated April 16, 1999, the worker was advised that the WCB was accepting responsibility for chronic pain syndrome related to the compensable injury and that he would be provided with 10 to 12 sessions with a psychologist of his choice. The worker was also advised that the weight of medical evidence did not support an ongoing relationship between any of his physical complaints to the compensable injury given that the WCB medical advisor was unable to make a specific diagnosis that was directly related to his injury of October 5, 1993.

On April 6, 2001, legal counsel for the worker requested reconsideration of the above decision from Review Office. As legal counsel was requesting wage loss benefits and compensation for medical treatment that was not addressed by primary adjudication, Review Office referred the case back to primary adjudication to render decisions on these issues.

In a further submission dated April 23, 2003, legal counsel provided the WCB with time frames between January 6, 1994 and 2003 when the worker was unable to work by reason of his October 5, 1993 accident.

On May 6, 2003, the worker was re-interviewed at the WCB’s PMU and by a senior medical advisor at the WCB on May 7, 2003.

In his examination notes of May 7, 2003, the senior medical advisor outlined his impression of the worker’s condition. He stated:

“Non-specific tenderness about the left shoulder girdle does not appear to be associated with measurable impairment of neck or left shoulder girdle function.

A component of [the worker’s] low back symptoms, particularly associated with tasks that load the lower spine could be accounted for on the basis of a grade I spondylolisthesis at L5-S1, a condition that would not likely have been caused or materially influenced by the October 5, 1993 workplace incident. The latter is substantiated by i) the absence of reported low back pain in association with the earlier medical information on file and ii) an October 5, 1993 hospital admission report indicating that the bony elements of [the worker’s] lower back, pelvis…were non tender and normally mobile.

Diarrhea/some of [the worker’s] other abdominal symptoms are likely accounted for on the basis of what has been diagnosed as irritable bowel syndrome. This condition would not be causally related to physical injuries sustained in the October 5, 1993 workplace incident.

The submitted medical information and today’s examination findings have not indicated an anatomic lesion to account for the reported numbness involving the thighs/lower abdomen and the right testicular pain. The latter is substantiated by initial medical reports indicating that the workplace injury did not cause testicular damage, the understood absence of a diagnosed urologic lesion and today’s negative scrotal scar and testicular assessments.

…Today’s physical findings did not indicate structural pathology/measurable impairment of function emanating from the October 5, 1993 workplace incident on which to restrict [the worker] in the workplace.”

In a memorandum to file dated December 16, 2003, the senior WCB medical advisor noted that the worker underwent a bone scan density assessment of the spine from L2 to L4 (June 13, 2003). He stated that the findings of the bone density assessment of osteoporosis at L2 to L4 were not likely causally related to the October 5, 1993 workplace incident. He stated that a bone scan of July 16, 2003, did not indicate findings suggestive of an osteitis pubis. Therefore, the consideration of osteitis pubis to account for the worker’s groin/pelvic symptoms had been ruled out.

In response to questions posed by the WCB case manager, the medical advisor from the PMU stated the following in a memorandum to file dated December 16, 2004:

· After reviewing the video surveillance between September 2004 and October 2004, based on the level and duration of function as well as the absence of any obvious pain behavior or limitation of function, the worker did not meet the diagnostic criteria for chronic pain disorder as per WCB Manitoba Criteria as the disability was not proportional in all areas of functioning.

· Note was made of the diagnosis rendered by the treating physiatrist in 1998, i.e. “…chronic pain syndrome with affective disorder specifically depressed mood”. The medical advisor stated that the current WCB Manitoba Criteria for Chronic pain Syndrome stated that one of the contraindications to the diagnosis was the presence of Major Depression. He stated the worker would not have met the diagnosis of chronic pain syndrome as per current WCB Manitoba criteria because of the presence of Major Depression.

· Note was made of the opinion expressed by PMU on September 30, 1998 which stated, “this man does suffer from chronic pain syndrome”. The medical advisor indicated that this opinion was based on the worker’s report as well as other information on file but he did not have the video surveillance to compare to the worker’s report for the purposes of corroboration and validation.

· The fact that the worker had sought work on his own and was working 12 hour days for two weeks followed by one week off would have disqualified the worker from the diagnosis of CPS as per the current WCB Manitoba criteria, as the occupational area of functioning was not being markedly affected.

In a December 22, 2004 decision, a WCB case manager outlined the position that in her opinion, the worker had recovered from his 1993 compensable accident and that the diagnosis of CPS was not related to his compensable injury. The case manager noted that the WCB did accept the CPS diagnosis as being related to the 1993 accident and that psychological treatment sessions were offered to the worker to help him deal with this issue. The worker only attended for two sessions and then opted to attend for further treatment on an as-needed basis. Based on the video surveillance evidence, the worker’s work history and after reviewing the chronic pain criteria, the WCB now had information on the worker that was not available in 1999 which supported the WCB’s current position that the worker did not meet the criteria for CPS.

On March 14, 2006, it was determined by the WCB case manager that the prescription receipts submitted by the worker would not be covered by the WCB given the decision that was made on December 21, 2004 that he had recovered from the effects of his 1993 compensable injury.

In a report dated June 20, 2006, the treating physician stated, in part, “…he developed irritable bowel syndrome which can be linked at least to some extent to stress. The stress is in turn linked to (worker) not receiving compensation. In order words I have no hesitation in stating that the decision of not compensating (worker) had resulted in some much frustration, and stress that he ended up with new conditions which he did not have previously namely anxiety attacks, severe depression and irritable (bowel) syndrome.”

On August 28, 2006, legal counsel for the worker appealed the decisions that were made by the WCB case manager dated December 21, 2004 and March 14, 2006 to Review Office. The submission consisted of a background of the facts, grounds for review, relief being sought, argument and conclusion. As the submission included new information that was not considered by primary adjudication, the case was forwarded to primary adjudication by Review Office for further handling.

In a WCB letter dated September 15, 2006, legal counsel was advised that the new information she submitted (drill photos, statements and affidavit, the July 20, 2006 psychiatrist’s report) would not alter the decisions that were made on December 22, 2004 or March 14, 2006. It was still the WCB’s position that the worker’s situation did not meet the WCB’s criteria for CPS. On October 19, 2006, legal counsel appealed the decision to Review Office.

On November 24, 2006, Review Office rendered the following decisions:

· That no responsibility would be accepted for the worker’s ongoing physical complaints in relation to his compensable injury. Review Office pointed to file evidence to support its position that the worker’s back difficulties, anxiety attacks, severe depression and irritable bowel syndrome were not related to the workplace event of October 5, 1993. It also found no evidence of a physical injury stemming from the workplace event.

· That no responsibility should be accepted for a diagnosis of CPS in relation to the compensable injury. In making this decision, Review Office stated that it accepted the opinion of the PMU that the worker did not qualify for a diagnosis of CPS based on WCB of Manitoba criteria. It stated that the affidavit and letters from colleagues, friends and family were subjective in nature and not based on any objective physical evidence correlated with known pathophysiological processes. It considered the psychiatry consultant who saw the worker for the first time in 2002 and 2004 for a total of ten visits. These visits were in excess of some 8 years after the accident and the consultant did not have the advantage of the complete file.

· That there was no entitlement to further wage loss or medical aid benefits (treatment, prescriptions) in relation to the worker’s physical or psychological complaints. Review Office stated that since it did not accept responsibility for the worker’s ongoing physical and psychological complaints, it followed that there was no entitlement to further wage loss or medical aid benefits.

On January 31, 2008, legal counsel appealed Review Office’s decisions to the Appeal Commission and an oral hearing was requested. On June 25, 2008, legal counsel provided the Appeal Commission with further medical information, laboratory test results and tax information for the years 2004, 2005 and 2006.

A hearing was held at the Appeal Commission on July 3, 2008 and was reconvened on December 15, 2008. Prior to the reconvened hearing, the appeal panel requested and received the following information which was shared with the interested parties:

· A July 9, 2008 memo from the WCB concerning the diagnostic criteria for Chronic Pain Syndrome; when the criteria was first adopted by the WCB; and whether there has been any changes to the criteria since its implementation;

· A copy of an x-ray report dated September 20, 2004 of the worker’s chest and lumbar spine and a letter and consultant report dated November 3, 2008 and February 21, 2003 respectively.

Reasons

Applicable legislation:

The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits. Under subsection 4(1) of The Workers Compensation Act (the “Act”), where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s position:

The worker was represented by legal counsel at the hearing. The position argued on behalf of the worker was that the WCB’s previous diagnosis of chronic pain syndrome should be upheld. It was submitted that prior to the accident, the worker was a 30 year old man at the prime of his life. He was robust, strong, active and proud of his physical capabilities and ability to support his family. He had no known medical conditions or problems and no known psychological or emotional issues. The accident of October 1993 was a very serious incident and it was from that point onwards that the worker began to experience his physical pain complaints. It was acknowledged that there was a gap in the medical evidence from 1994 to 1999, but it was argued that the worker’s consistent and uncontroverted evidence was that he continued to have back and testicular pain. He thought that he would get better and he simply tried to deal with the pain as best he could and get on with his work activity. The pain gradually got worse, and in November, 1997, after what should have been a minor incident when his vehicle hit a pothole, the worker’s pain became so intense that he had to seek medical attention. Since then, the pain has been constant and intense. He was able to work intermittently for the next few years, and finally in September 2003, after an incident where he blacked out due to the pain, the worker ceased working. He has been disabled from working ever since.

With respect to the video surveillance, it was argued that the footage only showed the worker engaging in benign activity, not lifting heavy items, and taking breaks when required. Six days of surveillance was conducted, but the worker was only seen on three of the days. On the other three days he was not mobile and remained in the home. The worker’s evidence was that he had to drive into the city to purchase medications and groceries, and that he would stop at his friend/family’s home to relax and take a painkiller before continuing with his errands. It was submitted that he was not seen doing anything that would allow for any definitive or meaningful kind of assessment of his functional status.

Overall, legal counsel argued that on the preponderance of evidence, it was more likely than not that the worker’s continuing pain complaints are attributable to the 2003 accident. The WCB had accepted the worker’s claim on the basis of a diagnosis of chronic pain syndrome. Nothing had changed since that diagnosis, except for the video surveillance. The video surveillance in and of itself was not enough to suggest that the worker was not disabled in all areas of functioning. It was therefore submitted that the worker should be entitled to further compensation benefits.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the worker has continued to suffer from the effects of the injuries he sustained in the workplace accident of October 5, 1993. We are able to make that finding.

Over the past 15 years since the time of the accident, the worker has developed a number of symptoms. There are numerous physical complaints, including testicular groin pain, low back pain, mid back difficulties, shoulder pain and irritable bowel. There are also psychological issues related to rage, periodic depression and chronic pain syndrome. While we find that not all of his complaints are attributable to the 1993 accident, we do, however, accept that the worker continues to suffer from the effects of the workplace injury. The worker suffered a very serious crush injury and the panel finds that the worker is entitled to further wage loss benefits and medical aid related to the radiating pain he experiences from the injury to his lower abdomen, testicles and groin area.

At the hearing, the worker explained that the accident was a slow crush injury in which he was caught between an earth berm and a large piece of drilling equipment. As the machinery tipped, the centralizer drove itself into his groin area and lifted the worker two feet off the ground. The hospital case summary from the worker’s admission on October 5, 1993 describes: “a 10 cm laceration in the left inguinal area, which was rather deep, at least going down to the contents of the inguinal canal.” Also described is: “a very large and wide laceration on the left side of his scrotum.” The worker advised that there is a large “H” shaped scar on testicles, as both were cut in the accident.

It appears from the medical reports that the lacerations gradually healed and by January, 1994, there only remained hematoma at the wound site. Although the worker’s physician wrote a note indicating that he was capable of working January 10, 1994, the worker’s evidence was that he remained unable to work at that time. He was walking with a cane, had swelling in his abdomen and his back and groin were in pain. He in fact did not return to work until May, 1994. At that time, the worker still had pain in his groin area, with a lot of numbness. Over the next approximately three years, the worker continued to work, but he gradually began to experience sharp pains in his groin area. He described: “needle knife pain was going right up my scrotum through my testicles right up and through my back, into the back of my head.” His health generally began to deteriorate and every few months he would be forced to take off a week of work without pay, due to the pain in his back and groin.

A pivotal event occurred in November 1997 when the worker was traveling in a vehicle to a mine and they hit a big pothole. The worker was jarred and his pain became greatly amplified. He managed to get home and his wife took him to an emergency department where he was treated by a physician (who has now become the worker’s family physician). The November 5, 1997 emergency record indicates: “Presents to the ER (complaining of) extremely severe pain – (right) testicle, (abdomen)/ radiating to the back.”

After the November 1997 event, the worker contacted the WCB and requested that his claim be re-opened. After a review of his condition, the WCB determined that his current medical conditions were not directly related to the compensable injury as the file from 1993 indicated that the worker had recovered from the laceration and had only complained of some minor numbness. It was also noted that he had functioned quite well for a few years after the compensable injury.

Following the hearing, the panel requested medical reports from a urologist who treated the worker in 2002. A consultation report dated October 1, 2002 states:

(Worker) is aged 39 years and in 1993 suffered a very severe crushing accident in a mine in Manitoba. The machine that crushed him drove a piston through his right scrotum through into the left side of his abdomen causing considerable amount of injury requiring a fairly massive repair. He has made a remarkable recovery from that injury but essentially ever since then he has had a numbness and pain in his right meiscrotum/right testicle. For the first 2 years he had complete anesthesia to his right testicle and hemiscrotum and then gradually he developed parasthesia as the nerve fibres re-grew. This has resulted in an almost constant aching discomfort in his right scrotum and particularly testicle along with stabling and shooting pains…

I have no doubt that (worker) has got parasthesia which are complicating a post traumatic nerve entrapment syndrome on the right side. The only thing that I can do to try and make a diagnosis of a nerve entrapment syndrome, presumably involving either the genital femoral or the ilioinguinal nerve is to undertake a cord block and an ilioinguinal nerve block when he has the pain.

A subsequent report dated February 21, 2003 noted that the worker had right-sided orchalgia and made an appointment to see the urologist. By the time he attended the next day, the pain had settled almost completely. The urologist noted that at that time, the worker was complaining of all sorts of nonspecific pains in his chest, abdomen, testicles, back and legs and that it was difficult to know where to start to put an organic explanatory basis for these pains. The urologist suspected that there was some degree of emotional overlay to much of what the worker was complaining of, but given the severity of the worker’s injuries, he hesitated to make such a suggestion.

After reviewing the medical evidence and considering the testimony of the worker, the panel is satisfied that the worker has not fully recovered from the crush injury sustained on October 5, 1993. The worker’s evidence was that for the first two years, he had pain, but there was mostly numbness in the area. Gradually, he began to experience knifelike sharp pain in his groin. The urologist’s report dated October 1, 2002 describes a nerve entrapment syndrome which may have developed when the nerve fibers regrew. Although the worker has been capable of periods of employment since the time of the accident, his evidence was that he still consistently experienced pain and numbness of varying degree in his groin area. The panel accepts this evidence and finds that the symptoms of radiating groin pain have been continuous since the time of the accident.

The examination notes dated May 7, 2003 by the WCB senior medical advisor contain a good detailed summary of the pain complaints currently reported by the worker. He listed:

  • Constant right testicular pain and that these symptoms are one of the main reasons why the worker was unfit to work;
  • The left testicle is symptomatic to some extent as feeling sometimes numb, but these symptoms have not and are not preventing him from working;
  • Bilateral groin “pain” is one of the reasons he is currently unfit to work. This would include numbness in the thighs, buttocks, groins and lower abdomen;
  • Constantly present charley horse;
  • Stabbing pain in left lower abdomen;
  • “Huge lump” in his intestine;
  • Upset stomach all the time;
  • Two types of low back pain. The first is part of the continuum of pain from left groin into left lower abdomen and around into his low back. This was described as constantly feeling cold and aching. The second related to intermittent pain from left groin proceeding posteriorly through to the pelvis;
  • Left anterior chest symptoms;
  • Neck symptoms;
  • Diffuse discomfort about the left shoulder girdle as well as discomfort into the left arm to the medial elbow;
  • Symptoms of rage.

The panel accepts that the primary source of the pain which disables the worker from being employed is the radiating pain from his groin area. We accept that the medications for pain control and to aid in sleep are legitimately related to the compensable injury.

There was much argument directed to the issue of whether or not the worker met the WCB criteria to qualify for a diagnosis of chronic pain syndrome. The panel agrees with the WCB that the surveillance video would suggest that the worker’s disability is not proportional in all areas of functioning and therefore the WCB’s diagnostic criteria are not met. The panel notes, however, that the diagnosis of chronic pain syndrome was important to the earlier adjudication of the file as the WCB found that there were no ongoing physical symptoms related to the compensable injury. In view of our findings that the worker still suffers from his physical injury with continuing pain symptoms, a diagnosis of chronic pain syndrome is not required in order for the worker to be entitled to benefits.

To be clear, we are accepting the worker’s symptoms related to the pain radiating from the groin area, including sleep disruption, and the associated periods of depression related to the groin injury. We do not accept the other conditions complained of by the worker, specifically:

  • Low back pain, including injury to L5-S1 area
  • Mid back pain, including T8 compression fracture
  • Left anterior chest symptoms, including issues with 7th rib
  • Left shoulder and arm discomfort
  • Gastrointestinal issues, including irritable bowel syndrome
  • Neck symptoms
  • Chronic pain syndrome and rage issues

There was minimal treatment sought by the worker for his mid and low back complaints and after the acute injury in 1993, there was no diagnosis relating to T8 or L5-S1 areas. X-rays taken in 1998 and a CT scan from 2003 reflect the presence of spina bifida and spondylolisthesis, which are conditions not likely to have been caused by the accident. We are therefore not prepared to relate any of his current symptoms in these areas to the original compensable injury.

There was also reference to medical issues related to diverticular disease/sigmoid colon and a cystic lesion on the adrenal gland. These were more recently identified by the worker’s general practitioner and have not been previously adjudicated by the WCB. We therefore make no comment on whether they are compensable conditions.

For the reasons stated above, we therefore find that the worker is entitled to further wage loss and medical aid benefits. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of February, 2009

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