Decision #127/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board
("WCB") which determined that he was not entitled to wage loss benefits beyond May 22, 2008 in relation to his compensable injury of April 13, 2006. A hearing was held on July 28, 2011 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss benefits beyond May 22, 2008.Decision
That the worker is not entitled to wage loss benefits beyond May 22, 2008.Decision: Unanimous
Background
The worker reported to the WCB that he suffered an injury to his low back on April 13, 2006 while employed as an attendant with an independent living centre. The worker described the accident as follows:
"I had a client on his side and I was putting the sling underneath him and I rolled him back onto his back and I reached over to grab the strings and there was a sharp pain in my lower back. I was bent over the bed and reaching over with my right arm and I was reaching far and pulling on the strings and using some force when I felt the sharp pain."
On April 21, 2006, the worker underwent a CT scan of the lumbar spine and the results showed a moderate broad central disc bulge with no evidence of spinal stenosis or significant foraminal encroachment at the L5-S1 level.
The claim for compensation was accepted by the WCB and benefits were paid to the worker.
On July 25, 2006, the worker was seen by a WCB medical advisor for an assessment of his back condition. The medical advisor indicated that the diagnosis was a back strain. He stated, "… signs suggest some degree of non-organic symptomatology restricting his functional capacity."
On September 11, 2006, the worker underwent an MRI of his lumbar spine. The findings were reported as "moderate central L5-S1 disc protrusion."
A WCB medical advisor reviewed the MRI findings at the request of primary adjudication. He noted that the mechanism of injury sustained on April 13, 2006 was not consistent with a disc protrusion. He remained of the opinion that the worker had a back strain with a prolonged recovery due to abnormal pain behaviors.
The worker underwent a four week reconditioning program. On December 19, 2006, the WCB medical advisor indicated that the worker's treating physician and the treating physiotherapist reported abnormal pain behaviors which were also found at the WCB call-in of July 25, 2006. He indicated that this was the worker's main functional limitation.
The worker was subsequently assessed at the WCB's Pain Management Unit ("PMU") to determine whether his condition met the criteria for chronic pain syndrome. At a PMU case conference held on March 22, 2007, it was determined that the worker did not meet the criteria for chronic pain syndrome as there were pre-existing congenital/developmental personality factors present and their presence constituted a contraindication to chronic pain syndrome. It was determined that the worker's condition did not meet the criteria for a pain disorder associated with psychological factors and a general medical condition as there was no general medical condition that was causally related to the compensable injury.
In a report dated May 15, 2007, a treating neurosurgeon reported that he examined the worker's back and reviewed the September 2006 MRI findings. He indicated that most of the discomfort experienced by the worker seemed to be musculoskeletal, and he could not detect any obvious radicular pattern. Treatment recommended was a caudal epidural block and for the worker to continue with a mild physiotherapy program.
The WCB arranged for the worker to see a clinical psychologist. In a June 20, 2007 report, the clinical psychologist indicated that the worker's presentation was not consistent with a diagnosis of hypochondriasis but was consistent with abnormal pain behavior and a diagnosis of pain disorder associated with psychological factors and a general medical condition. He noted that the worker's unusual gait was consistent with psychogenic movement disorders which could include some conversion disorders.
The worker was assessed by a second clinical psychologist in September 2007 in regards to a work hardening program. The clinical psychologist noted that based on current information, the worker presented as an individual experiencing very high levels of depressive and anxiety based symptomatology.
On October 12, 2007, the treating sports medicine specialist advised the WCB that he had nothing further to offer the worker clinically. He suggested that the worker be seen by a neurologist, psychiatrist or psychologist to deal with his chronic pain problems.
In a work hardening program discharge note dated October 26, 2007, it was indicated that the worker made minimal physical improvements in the five week program. The main barriers were described as high pain focus and anxiety levels.
The worker was interviewed by a psychiatrist and in his report dated November 9, 2007, the psychiatrist diagnosed the worker with anxiety and mood disorder and that conversion disorder could not be ruled out.
On November 29, 2007, a WCB medical advisor with the PMU stated, "based on our PMU assessment, as well as on the assessment of [treating psychiatrist], that [the worker's] psychological condition (i.e., personality disorder) is pre-existing. Further, it remains my opinion that these pre-existing psychological features play a significant role in his functioning, in his delayed recovery, and in his quite dramatic, inconsistent, and variable pattern of symptoms."
In a memo to file dated January 16, 2008, the WCB case manager indicated that a meeting was held with medical advisors from the PMU, the treating psychiatrist and clinical psychologist and WCB staff members. The case manager stated that it was noted by all that there was no patho-anatomic reason for the worker's symptoms and that his current status was solely psychological in nature. It was also documented that in the opinion of the clinical psychologist, the only association that he could find between the compensable injury and the worker's psychological status was a temporal one. The WCB medical advisor from the PMU stated that in his opinion, even if the psychological status had originally been related to the compensable injury, it should have resolved by two years post-injury.
On January 22, 2008, a WCB psychological advisor answered questions posed by primary adjudication. The medical advisor indicated that the worker continued to experience pain disorder but based on medical opinions, the pain disorder was associated solely with psychological factors as no medical condition had been identified by physicians, including the treating psychiatrist. The medical advisor indicated the current pain disorder associated with psychological factors was not related to the compensable injury. She also indicated that the diagnosis of anxiety disorder and a mood disorder outlined by the treating psychiatrist was not related to the compensable injury.
On March 4, 2008, the worker was advised of the WCB's decision that he had recovered from the low back strain that occurred in April 2006 and that his ongoing medical condition was solely related to his pre-existing psychological condition which was not caused or worsened by the accident at work. Responsibility for his claim would end on May 22, 2008.
The worker subsequently provided the WCB with additional information to support that his pain and functional changes occurring since the April 2006 compensable injury had contributed to his subsequent mood and anxiety based symptoms.
On June 20, 2008, primary adjudication wrote to the worker to advise that there would be no change to the decision made on March 4, 2008. The worker was advised of the following:
- The recent MRI of 2008 was reviewed in consultation with the WCB's healthcare branch and the findings were unchanged from previous CT/MRI. "The shallow disc protrusion is a common nonspecific finding which is frequently seen on diagnostic imaging of the lumbar spine. As objective clinical findings do not correlate with the radiological findings, it remains our opinion that your ongoing difficulties and pain complaints are not related, and that you have recovered from the low back strain."
- Reports submitted from the treating psychologist dated July 5, 2008 and psychiatrist dated May 26, 2008 both noted "personality disorder" as a diagnosis. Primary adjudication agreed with the opinion but was of the view that it was related to the worker's pre-existing personality trait and not to the 2006 work injury.
On July 4, 2008, a worker advisor acting on the worker's behalf appealed the decisions made on March 4 and June 20, 2008.
On September 9, 2008, Review Office concluded that the worker's psychological condition was not related to his compensable work injury.
On November 3, 2008, the worker advisor provided the WCB with a report from the worker's treating psychiatrist dated October 23, 2008 to support that there was an ongoing relationship between the compensable injury and the worker's psychological difficulties. Following review of the submitted information, Review Office confirmed on December 17, 2008 that it was still of the opinion that the worker's psychological condition was not related to the compensable injury.
On January 8, 2009, the worker advisor requested a Medical Review Panel ("MRP") in accordance with subsection 67(4) of The Workers Compensation Act (the "Act"). The request for an MRP was denied by primary adjudication and Review Office but was granted by the Appeal Commission in a decision outlined on December 15, 2009. An MRP was arranged and held on November 16, 2010.
In a decision letter dated December 9, 2010, Review Office indicated that it accepted the findings of the MRP and determined that the compensable injury of April 13, 2006 enhanced the worker's pre-existing dependent personality traits. It also determined that the worker did not require restrictions in relation to his psychological condition. Review Office concluded:
"As was previously determined that the worker had recovered from the April 13, 2006 back strain and he does not require restrictions due to his psychological condition there is no entitlement to wage loss benefits beyond May 22, 2008."
Based upon an appeal from the worker, the case was considered again by Review Office on February 9, 2011. Review Office confirmed that the worker was not entitled to wage loss benefits beyond May 22, 2008. Review Office indicated in its decision that there was no evidence on file to support that the worker sustained anything other than a strain type injury in April 2006 and there was no evidence to support that the worker's ongoing subjective complaints of pain are related to a strain type injury sustained in April 2006.
Review Office noted the opinion of the worker that the MRP report confirmed that he had a psychological injury that prevented him from returning to work. Review Office indicated that it agreed that the MRP findings supported that the compensable injury enhanced the worker's pre-existing dependent personality traits. However, it noted the MRP report indicated that the worker did not require restrictions in relation to his psychological condition. The MRP did not include a physical examination and the MRP report did not comment on the worker's need for restrictions due to his compensable back injury.
Review Office concluded that the evidence on file including diagnosis, diagnostic test results, minimal clinical findings and the time that has passed did not support a causal relationship between the worker's current difficulties and the compensable injury of April 13, 2006. On April 3, 2011, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In deciding appeals, 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.
Worker's Position
The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker advisor told the panel that Review Office made the determination that the worker has physically recovered from the injury and does not require restrictions for the psychological injury, that it accepted occurred as a result of his workplace accident. She said that the evidence from the file as well as testimony from the worker supports that he is unable to return to work as a result of the ongoing effects of his 2006 injury.
The worker advisor noted that the worker indicated in his accident report that he felt a sharp pain in the lower back while reaching across a bed to adjust some straps on a Hoyer sling. She stated that the worker immediately reported the onset of pain in his back, with numbness in the left leg and pain into the right leg.
The worker advisor noted the worker complained of significant pain and was referred to the WCB's PMU which found that the worker had a "complex diagnostic picture." She also noted that the worker was seen by a psychologist and psychiatrist who provided reports that identified the compensable injury as the trigger for the worker's ongoing pain and disability.
She noted subsequently an MRP was convened that found that the worker suffered from pain disorder with psychological factors, major depressive disorder, panic disorder and schizotypal/dependent personality disorder traits. It concluded that the accident of April 13, 2006 was the precipitant that triggered a pre-existing psychological vulnerability and also found that the accident had enhanced his pre-existing dependent personality traits.
The worker advisor submitted that the information on the worker's claim confirms that he reported severe pain from the time of his accident and that the pain has remained constant in the years since. It also shows the development of anxiety and depressive symptoms over the course of the years. He has been off work for the past five years and in that time has made relatively little progress. The notion that he is now able to return to work without the need for restrictions contradicts the evidence on file and the history of his claim.
She asked the panel to recognize the effects of the workplace accident and that these resulted in the significant level of disability up to and beyond the point that the WCB ended benefits. She said the worker was not capable of returning to work in May 2008 and that he is accordingly entitled to further benefits.
The worker and worker advisor answered questions posed by the panel.
The worker described his current physical symptoms. He said that he has a problem in his spine, in one spot that's deep in his spine (L5-S1) and feels like it goes right across his back. He said it extends into his buttock and his left leg will go numb. He also advised that he has shooting pain in his right leg, lower back and front groin. He described the impact of the injury on his life.
The worker described his job duties, relationship with his clients and the accident.
In answer to a question, the worker advisor acknowledged that "...in terms of the physical side of things, the evidence does not show any disability."
Regarding the worker's psychological condition, the worker advisor stated that the worker "…it appears, may have had pre-existing psychological traits but that these were not a condition prior to the injury. That it was only when the injury acted on those traits that he developed the conditions that he has today. So, we feel that there is that causal link to the injury."
At the conclusion of the hearing the worker read a statement into the record and provided copies to the panel. He advised that prior to his injury he worked a regular life, with a great job, good health and independence. He described his condition since the injury and its impact on his life. He asked for assistance and benefits as required for his full recovery.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond May 22, 2008.
In addressing this issue we have considered whether there is a physical condition which has caused the worker's loss of earning capacity and whether there is a psychological condition which has caused the worker's loss of earning capacity.
Regarding the worker's physical condition, we find there are no physical restrictions or impairment arising from the injury which has caused a loss of earning capacity, therefore there is no general medical condition which limits the worker's ability to work.
We rely on the following information in support of our decision:
- January 24, 2008 opinion from a WCB medical advisor which states "…it is likely that he continues to experience Pain Disorder. However, based on medical opinions, the Pain Disorder is associated solely with psychological factors, as no medical condition has been identified by physicians…"
- January 16, 2008 file note by case manager summarizing a meeting between WCB medical advisors, WCB staff, treating psychiatrist and treating psychologist. The memo notes that "It was noted by all that there is no pathoanatomic reason for [the worker's] symptoms and that his current status was solely psychological in nature."
- October 12, 2007 report from the worker's treating physician indicating that "…through all of the investigations and processes that I have gone through with [the worker], that I do not have anything left to offer him clinically…" The physician suggested referral to a neurologist, psychiatrist or psychologist.
In considering the relationship between the worker's psychological condition and his loss of earning capacity, we have reviewed all the evidence on the worker's file regarding his condition, including the report of the MRP dated November 29, 2010. We accept the findings of the MRP. Specifically we accept the MRP findings that:
- The most probable diagnoses of the worker's psychological condition include pain disorder associated with psychological factors, major depressive disorder, panic disorder and shizotypal/dependent personality disorder traits.
- The schizotypal and dependant personality traits existed since early adulthood.
- The work injury of April 13, 2006 did not produce a psychological condition but it was the precipitant that triggered a pre-existing psychological vulnerability.
- The work injury did not produce a psychological condition but enhanced the worker's pre-existing personality traits.
- The worker does not require restrictions in relation to his psychological condition, which would limit his employability.
We note the MRP and treating physicians have identified a broad range of psychological conditions and understand that none of these conditions would in themselves create physical pain. We are unable to link the worker's pain complaints to the work injury.
We therefore find on a balance of probabilities, there are no restrictions, either physical or psychological, arising from the work injury which prevent the worker from working.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 8th day of September, 2011