The Appeal CommissionThe Workers Compensation Act of Manitoba

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.

As the accident occurred in August 2004, the claim is assessed under the Act as it existed at that time. Section 22 of the Act (as it was in 2004) provided as follows:

Practices delaying worker’s recovery

22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Worker's Position

The worker was assisted by a union representative at the hearing. It was acknowledged that the worker's claim had a long history and the main issues in adjudicating the claim were identified as follows:

• Differing medical opinions regarding the worker's diagnosis;
• Differing medical opinions regarding the appropriate therapies for treating the condition; and
• Whether or not the worker has mitigated the circumstances of her workplace injury.

The union representative's submission was extensive and well prepared. The thrust of his position was that CRPS is a complex condition which involves injury to the nervous system. It is not well understood and differences exist between medical practitioners who have experience in diagnosing and treating CRPS and those whose knowledge is limited to academic learning. In the present case, all of the physicians who have assessed the worker and who have hands-on experience with CRPS agree that the worker has CRPS. Their opinions are also consistent with the BC WorkSafe guidelines on CRPS which were developed through consultation with experienced practitioners. The WCB medical advisors who expressed opinions on this file do not have specialty in this area and gave views not consistent with the medical literature on CRPS. The worker did nothing, by omission or commission, which had any negative material impact on her recovery. It was submitted that the worker continued to suffer from the effects of her compensable accident in August 2004 and that she should be receiving WCB wage loss and medical aid benefits, retroactive to August 2007.

Analysis:

The issues in this case concern whether or not the worker’s entitlement to benefits should have been suspended pursuant to section 22 due to non-cooperation and lack of engagement on her part. In order for the worker’s appeal to be successful, we must find the worker did not unreasonably fail to co-operate with the WCB by refusing to participate in a rehabilitation program on account of subjective complaints of pain in her left arm and hand. On a balance of probabilities, we are able to make that finding. In the panel's opinion, the worker's failure to participate in the rehabilitation program was not unreasonable given a compensable diagnosis of CRPS and the lack of adequate pain control.

The worker's representative identified three main issues which needed to be addressed in order to determine this appeal. We will address each issue.

The Diagnosis

There is no doubt that the worker suffered an injury to her left middle finger in the workplace accident of August 24, 2004. The divergence in opinion on diagnosis concerns the worker's development of CRPS secondary to the initial finger injury and the extent to which the worker's ongoing complaints were related to this diagnosis.

Over the course of seven years, the WCB medical advisors have varied in their opinions about the extent to which the worker was affected by CRPS. In July 2005, it was acknowledged by a WCB medical advisor that reflex sympathetic dystrophy (a previous term for CRPS) was a possible diagnosis, but stated that this was not yet proven and required further evidence. After a call-in examination in January 2006, the opinion was that the clinical examination demonstrated signs and symptoms suggestive of CRPS of the left upper extremity with some overprotection by the worker and some abnormal pain behaviour.

In a healthcare service request memo dated August 23, 2006, the WCB medical advisor wrote that the current compensable diagnosis at that time was CRPS of the left hand and upper extremity and that there was a "quite probable" direct cause and effect relationship between the work injury and the diagnosis. The WCB medical advisor suggested that the file be referred to the WCB physiatry consultant for further discussion regarding the appropriate treatment plan. The worker was also referred to the WCB Pain Management Unit for assessment.

On February 22, 2007, the worker was examined by the WCB physiatry consultant. In a clarification memo dated April 25, 2008, he stated that there were minimal findings at the time of the examination to support a diagnosis of CRPS, only some subtle findings, with a non-work related injury to the area also present with more apparent trauma than the initial work incident. There were also symptoms present that extended into the upper and lower body bilaterally that were not explained by the diagnosis. While the WCB physiatry consultant acknowledged that CRPS remained a possible diagnosis, this would have been expected to resolve with reactivation.

Following a further call-in examination conducted on January 5, 2009, the WCB medical advisor reported that the examination findings did not fulfill the criteria for CRPS and the diagnosis would not explain the more diffuse nature of the worker's symptoms, which now included left lower extremity symptoms, symptoms in the left chest and back as well as lower extremity. The WCB medical advisor found some allodynia and hyperesthesia, but no objective evidence of temperature asymmetry, skin colour changes or asymmetry and no objective evidence of edema or sweating changes or asymmetry in the upper extremities.

Although it was submitted by the union representative that the WCB has "waffled back and forth with diagnoses varying from CRPS to possible CRPS to not CRPS and back again," the panel does not entirely agree with this characterization. In our view, in the early stages of the claim, the WCB accepted that the worker had CRPS. The divergence occurred only in the later years as the worker's condition evolved and her reported symptoms became more widespread and less consistent with CRPS. At that point, the WCB became of the opinion that the CRPS diagnosis was no longer present.

The worker has reports from several physicians who support the diagnosis of CRPS. In December 2004, a hand surgeon suspected signs of early sympathetic dystrophy. A rheumatologist also reported findings consistent with reflex sympathetic dystrophy. Her treating anesthesiologist subsequently confirmed the diagnosis of CRPS in June 2005. In early January 2008, the worker was seen at a pain clinic in Saskatoon. The final diagnosis from this consultation was "complex regional pain syndrome and frozen shoulder."

The union representative also relied heavily on a report dated March 4, 2011 authored by a Winnipeg anesthetist whose practice since 1992 has been restricted to management of chronic benign pain conditions. Over the past 19 years, he has assessed and treated numerous patients with CRPS in an outpatient setting.

In his report, the anesthetist provided general information regarding the history of CRPS, diagnostic criteria, and described recommended therapy, with reference to medical literature, most frequently, Textbook of Pain, fifth edition by Wall and Melzack. CRPS was described as a complex medical condition that can be difficult to diagnose and requires prompt multidisciplinary pain management for better prognosis.

With respect to the worker's specific case, the anesthetist conducted a review of the worker's medical file and concluded that the worker met both the International Association for Study of Pain (IASP) clinical criteria and the BC Work Safe diagnostic criteria for a CRPS diagnosis when she was assessed by the WCB on each of the three call-in examinations (January 2006,

February 2007 and January 2009). With respect to the specific concerns at the January 2009 call-in examination of the diffuse nature of the worker's symptoms, the anesthetist stated: "This statement has no validity as the signs and symptoms recorded by (WCB medical advisor) during both of his assessments do in fact fulfill the diagnostic criteria for CRPS using either of the above criteria and the more diffuse nature of [the worker's] symptoms can be attributed to this pain syndrome." Further, the overprotective behaviour towards her left upper extremity exhibited by the worker was described by the anesthetist as being: "appropriate for the circumstances and should not be deemed to be an exaggerated behaviour that is disproportionate to the clinical situation."

After reviewing the medical evidence as a whole, the panel finds that there is sufficient evidence to satisfy us on a balance of probabilities that as a result of her workplace injury, the worker developed CRPS and that as of August 7, 2007, the diagnosis of CRPS was still present. Both the WCB medical advisors and the worker's physicians identify CRPS as a diagnosis applicable to the worker and the panel is convinced by the March 4, 2011 opinion of the anesthetist that the worker's documented examination findings post August 2007 were consistent with an ongoing CRPS diagnosis.

Appropriate Therapy

There is differing medical opinion as to the appropriate therapy for CRPS.

The WCB's medical advisors generally recommended increasing mobilization and working through the pain. The call-in examination notes of the WCB physiatry consultant stated:

The file and physical examination did not identify any contraindication to the claimant progressing in reactivating and remobilizing the left upper extremity despite pain symptoms, as this is the accepted, primary treatment recommendation for a Complex Regional Pain Syndrome, if present. There is also no rationale as to why the claimant could not return to the employment as we previously set up, with the placed restrictions, even if there were limiting symptoms on the left side. Movement and activity would be expected to be therapeutic.

These views were repeated in his April 25, 2008 opinion:

The original examination notes in 2007 did suggest that complex regional pain was a possible diagnosis but even if present was expected to have been able to resolve with reactivation. The claimant was improving initially but then declined and there was not further evidence that the claimant had participated in the required reactivation and therapy provided…CRPS remains as a possible diagnosis which was supported by the recent exam in Saskatchewan. The primary problem is as discussed in the prior HSR, in that there does not appear to be any rationale for further trials of treatment in a claimant who has documented non compliance with the scientific literature evidence that reactivation and participation in therapy, is required for recovery from this condition.

The anesthetist's March 4, 2011 opinion disagrees with the WCB's approach to treatment. First, he acknowledges a quote by Wall and Melzack that: "A lack of understanding of the underlying pathophysiological abnormalities and the lack of objective diagnostic criteria result in inherent difficulties in conducting clinical trials with therapeutic modalities. Therefore, only few evidence-based treatment regimens for CRPS are available so far. In the absence of more specific information about pathophysiological mechanisms and treatment of CRPS one has to rely on outcomes from treatment studies for other neuropathic pain syndromes."

After reviewing various possible therapies for CRPS including pharmacological, interventional, stimulation, infusions, and surgical, he refers to a treatment algorithm diagram from Wall and Melzack and cites:

The severity of the disease determines the therapeutic regime. The reduction of pain is the precondition with which all other interventions have to comply. All therapeutic approaches must not hurt. At the acute stage of CRPS when the patient still suffers from severe pain at rest and during movements, it is mostly impossible to carry out intensive active therapy. Painful interventions and in particular aggressive physical therapy at this stage often lead to deterioration. Therefore, immobilization and careful contra lateral physical therapy should be the acute treatment of choice and intense pain treatment should be initiated immediately … If resting pain subsides, first passide (sic) physical therapy, then later active isometric followed by active isotonic training should be performed in combination with sensory desensitization programs until restitution of motor function. Psychological treatment has to flank the regime to strengthen coping strategies and discover contributing factors.

After the oral hearing of this appeal, the panel canvassed all other Canadian jurisdictions to ascertain the approach used by their workers compensation boards in adjudicating CRPS claims. It would appear that British Columbia is the only jurisdiction to have passed guidelines specifically addressing CRPS with the creation of WorkSafe BC Diagnostic Criteria for CRPS. With respect to treatment, the British Columbia material states: "Lack of understanding of the underlying pathophysiology and lack of objective diagnostic criteria hamper clinical trials of therapeutic modalities." It does, however, also state:

· Expert consensus stated that treatment should be developed around functional restoration

· Most patients will improve as long as sufficient analgesia and symptomatic control can be provided to support exercise therapy

· 2002 update - 3 basic treatment measures are required:

o Pain management

o Rehabilitation

o Psychological therapy

The Ontario Workplace Safety and Insurance Appeals Tribunal ("WSIAT") produced a discussion paper dated April 2010 entitled "Complex Regional Pain (RSD - Reflex Sympathetic Dystrophy)." With respect to treatment, the discussion paper states:

A variety of treatments have been proposed, none of certain value. Foremost among them have been attempts to block the putative, aberrant, reflex arc either peripherally with drugs such as Guanethidine or centrally with sympathetic ganglion blockade. In all instances the earlier treatments are applied the greater the apparent benefit, but in the absence of randomized studies it is difficult to exclude the effect of natural history i.e. spontaneous improvement or recovery.

Saskatchewan and Newfoundland have not created specific material regarding CRPS but do refer to the AMA Guides to the Evaluation of Permanent Impairment. The AMA Guides address the difficulty in accurately diagnosing and measuring CRPS, but do not include any discussion regarding treatment.

The other Canadian jurisdictions did not produce any materials which deal directly with CRPS.

After reviewing the evidence as a whole, the panel can see that CRPS is a complex condition which is not well understood. As a result, there is no proven or even generally accepted regimen of treatment. The panel cannot definitively state what the appropriate treatment for CRPS should be. At best, we can only state that a multidisciplinary approach which involves pain management, mobilization and psychological support should be pursued.

Did the worker fail to mitigate?

The task then falls on the panel to examine the particular circumstances of this worker's case of CRPS to determine whether or not the worker was reasonable in discontinuing her participation in reconditioning programs, first in June 2007 and then again in April and June 2010.

The March 4, 2011 anesthetist's report opines that the WCB recommended treatment was inappropriate. He states:

As can been seen in the [Wall and Melzack] treatment algorithim … patients such as [the worker] who suffer with severe intense pain at rest and during movements (7-10/10 on a visual analogues scale) require intense pain management, immobilization of the symptomatic limb, physiotherapy targeting the contralateral side, and sympathetic blocks for sympathetically maintained pain. [The WCB physiatry consultant's] recommendation for active therapy was clearly inappropriate.

He also opines:

It is my opinion at this time that the totality of the evidence indicates that the worker has an ongoing compensable condition (CRPS type 1 with sympathetically maintained pain) and that her behaviors and actions did not influence the course of her claim. The treatments did not result in any improvements because the worker's pain was not adequately controlled. [The worker] demonstrated a sincere willingness to pursue multiple attempts at pain control that were unsuccessful. The pursuit of active physical therapy in this setting was inappropriate and psychological therapy probably would not have had any impact in [the worker's] ability to pursue active therapy in the setting of constant severe uncontrolled pain.

The WCB physiatry consultant's memo of June 14, 2011 contains a comprehensive summary of the medical management of the worker's CRPS condition. Over the course of her seven year claim, the worker has received many of the treatment modalities reviewed in the anesthetist's March 4, 2011 opinion including five intravenous bretylium blocks, two left stellate ganglion blocks, a trial of infraclavicular continuous catheter infusion, and several trials of weekly brachial plexus anesthesia. She has also undergone multiple trials of pharmacological treatment including anti-inflammatory medications, antineurotics, antidepressants, and several narcotics and other pain killers. The WCB physiatry consultant states: "In all of the listed trials of treatment, there has been no report of any significant benefit to her symptomatology, and there has been no apparent improvement in function."

As outlined earlier, the panel is unable to definitively state what the general approach to appropriate treatment for CRPS should be. In the present case, it would appear that the worker willingly submitted to multiple types of treatment, some of which were quite invasive. She also attempted to participate in some reconditioning programs, but did not complete them.

The recommended treatment outlined by the anesthetist, and to some degree, outlined in the British Columbia material, focuses on pain control as being of utmost importance in any therapeutic regime. The Wall and Melzack literature goes so far as to characterize it as a precondition with which all other interventions must comply. As observed by both the anesthetist and the WCB physiatry consultant, none of the treatment modalities undergone by the worker provided any significant benefit to the worker's symptomatology. She continued to report unrelenting pain and as a result, did not complete any of her reconditioning programs. In the later stages of her claim, the worker presented with more diffuse areas of symptomatology and apparently less motivation to actively engage in rehabilitation.

Cases such as these are always difficult to decide but, on a balance of probabilities, the panel finds that the worker's failure to participate was not unreasonable and she was not in breach of her section 22 obligation to co-operate. In this particular case, the panel accepts that effective pain control was required to enable the worker to meaningfully participate in physical rehabilitation. In coming to this conclusion, the panel took the following into consideration:

• The multitude of medical procedures undergone by the worker, none of which provided adequate pain control.
• The lack of understanding in the scientific medical community of the underlying pathophysiology of CRPS and the absence of proven treatment methods.
• In the early stages of the worker's claim, she did attempt to return to work and engage in physiotherapy. As her CRPS condition progressed, however, it would appear that she became less able to participate due to increasing pain and loss of range of motion.
• The worker's increased areas of symptomatology and passive attitude in the later stages of the claim are understandable given her almost seven year diagnosis of CRPS which had not yet responded significantly to any treatment.
• Psychological reports on file do not identify any significant contributing psychological factors. The psychological assessment report of October 27, 2008 states:

At present, there is no clear evidence, based on her presentation, collateral information or psychological assessment results that would support the criteria for the diagnosis of a Somatitization Disorder, an Undifferentiated Somatoform Disorder, Conversion Disorder, a Factitious Disorder, or malingering. In addition, there is no evidence that she was experiencing undue stressors at the time of her injury to suggest that psychological factors may have played an important role in the onset, severity, exacerbation or maintenance of her pain disorder. Nevertheless, it is evident that her medical condition has resulted in psychological ramifications consistent with an adjustment disorder, which in turn may be a factor in the ongoing exacerbation and maintenance of her pain and passivity in regards to her pain syndrome.

• Prior to the workplace injury, the worker had been steadily employed for 14 years as a baker on a full time basis with no significant disciplinary or occupational issues. Her evidence was that she enjoyed her work and she was very good at it. If she could go back, she would as she loved doing it.