The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current complaints are not related to her compensable injury. A hearing was held on October 2, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after September 16, 2011; and

Whether or not the worker is entitled to medical aid benefits beyond October 27, 2011.

Decision

That the worker is not entitled to wage loss benefits after September 16, 2011; and

That the worker is not entitled to medical aid benefits beyond October 27, 2011.

Decision: Unanimous

Background

In October 2006, the worker filed a claim with the WCB for upper back, shoulders, neck and arm discomfort that she related to the nature of her job duties as a healthcare aide which included pushing stretchers and wheelchairs and "often pulling a pump with one hand while pushing the wheelchair with the other." The claim for compensation was accepted by the WCB and benefits were paid to the worker. The compensable diagnosis was a chronic cervical strain with a myofascial component. File records show that the worker eventually returned to her regular duties but did experience a flare-up of symptoms which were accepted by the WCB as being compensable.

In January 2011, the worker advised the WCB that she was again experiencing a flare-up of symptoms in her neck, back and shoulders.

On June 9, 2011, the family physician provided the WCB with a copy of her chart notes. In January, February, March, April and May 2011, the worker was assessed with neck and upper back pain.

On April 21, 2011, the worker underwent an MRI of her cervical spine and right shoulder. The cervical spine was reported as being normal. The right shoulder showed minimal degenerative changes in the acromioclavicular joint, mild subchondral edema in the superior aspect of the glenoid which is likely degenerative in nature. There was no significant focal cartilage loss identified.

On May 19, 2011, the worker was seen by a physical medicine and rehabilitation specialist ("physiatrist") who reported that he last saw the worker in 2009. He stated:

She had been referred to Dr…for trials of medial branch blocks. Right C4-C5 procedures were negative. C2-C3/3^rd occipital nerve procedure was positive. Symptoms had improved; at that point she was off work due to rib fractures…Since returning to work however, symptoms have worsened. She is now doing quite poorly and has been off for 4 months.

Symptoms are similar to before…VAS has worsened from 2/10 to about 7/10. Pain is much worse on the right. She is trialing acupuncture and physiotherapy two times per week without major benefits…There was no evidence of neurological issues with normal manual muscle testing, sensation, muscle bulk, and reflexes from C5-T1 and from L2-S1. Dural root tension testing was negative in upper and lower extremities. Soft tissue testing does not really demonstrate much in the way of soft tissue discomforts other than over trapezius. This was similar to before. Again, she was tender over the articular pillars to C3-C4. We elected to repeat with a paraspinous block…also tried a greater occipital nerve block to deal with things as best as possible as quickly as possible. We will see if this does also help some of her headache and neck pain issues.

On June 27, 2011, a physiotherapy progress report stated that the worker had pain in her neck and upper back causing headaches, weakness in her shoulders, nausea and fatigue. It was reported that the worker had slow positive reactions to treatment and progression was gradual.

A second physiatrist who saw the worker for an assessment on July 27, 2011 reported his examination findings as follows: full cervical flexion; limitation in extension and right rotation greater than left rotation; strength likely normal in the upper limbs; no definite weakness but the worker could not generate full contraction due to pain; sensation and tendon reflexes were normal in both upper limbs; Phalen's test was negative and shoulder impingement testing was negative. Treatment recommendations were to repeat the right C2-3 block (this procedure was accepted as a WCB responsibility). The physiatrist also noted that the worker was experiencing bilateral nocturnal hand paresthesia.

In a follow-up report dated September 13, 2011, the second physiatrist diagnosed the worker with chronic non-specific neck pain. He also reported "symptoms related to prescription opioid withdrawal - relatively mild and appears controlled."

In a follow-up report dated October 4, 2011, the second physiatrist noted that the worker appeared to have a good response to the C2-3 block last month and that her headaches had resolved temporarily. A repeat procedure was recommended.

On October 5, 2011, the worker was seen at the WCB for a call-in assessment. With respect to the current diagnosis, the medical advisor commented that the examination produced findings of widespread tenderness that could not be related to a specific anatomic structure or structures and findings of non-anatomic distributions of pain and altered sensation. Abnormal pain behavior was also demonstrated. The most accurate diagnosis to describe the worker's current presentation according to the medical advisor was non-specific pain of the head, neck, upper back, upper chest, shoulders and upper extremities.

The medical advisor referred to file information to support that the worker had functionally recovered from her 2006 workplace injury and 2009 flare-up. Since there was no new mechanism to suggest a subsequent workplace injury, the medical advisor opined that a causal relationship between the worker's current presentation and the October 4, 2006 workplace injury could not be substantiated. It was felt that total disability was not supported based on his examination findings and that current workplace restrictions were not recommended.

On October 11, 2011, the second physiatrist reported that the worker's response to right cervical medial branch blocks were positive with a significant reduction in her numeric pain score and report of increased mobility. Impression was "Non-specific cervical pain."

In a memo to file dated October 19, 2011, the WCB medical advisor who assessed the worker in October stated that he reviewed video surveillance of the worker's activities on September 17 and 24, 2011 and October 5, 2011. He commented that the worker's movements and activities during the entire video surveillance were fluid and unrestricted and all body parts appeared to be functioning normally. There was no evidence of impairment or pain. The medical advisor concluded that a functional impairment or likely pain generator was not currently present.

In a decision dated November 1, 2011, the worker was advised that based on the weight of medical evidence as well as the collateral surveillance evidence, it was felt that she had recovered from the October 4, 2006 compensable injury as well as the reported recurrence of January 2011. It was felt that the worker had grossly misrepresented her symptoms, level of function and need for medication. As such, the worker was advised that wage loss benefits would end on September 16, 2011 and medical aid benefits would end on October 27, 2011.

On March 16, 2012, the Worker Advisor Office asked the case manager to reconsider her decision of November 1, 2011 based on medical information from the worker's family physician and treating physiatrist.

In a decision dated May 3, 2012, the WCB case manager stated that she reviewed the new information and consulted with a WCB medical advisor. The medical advisor was of the view the evidence provided was not substantially different from that available at the call-in exam or from viewing the video surveillance evidence. Based on this opinion, it was determined that no change would be made to the November 1, 2011 decision. On June 13, 2012, the worker advisor appealed the decision to Review Office.

On September 14, 2012, Review Office determined that the worker was not entitled to wage loss benefits beyond September 16, 2011 or to medical aid benefits beyond October 27, 2011. Review Office noted that it reviewed the video surveillance and agreed with the WCB medical advisor's opinion that the observations were in contrast to the presentation seen at the October 5, 2011 call-in examination.

Review Office said it placed weight on the findings of the treating physiatrist that the worker's right arm girth was 0.5 cm greater than the left; there was no atrophy of the right arm noted even though the worker stated she did not use her right limb that much; and that the worker walked with a decreased swing of the right arm. Review Office felt that this was in contrast with what was observed on the video surveillance. Review Office concluded that the worker no longer had a loss of earning capacity related to her compensable injury and therefore was not entitled to further wage loss or medical aid benefits.

On February 27, 2013, the worker advisor asked Review Office to reconsider its decision based on a medical report dated January 17, 2013. The worker advisor felt that the specialist confirmed a compensable structural diagnosis to account for the worker's current symptoms.

On April 21, 2013, Review Office determined that the new medical information did not alter its decision of September 14, 2012 as it was felt that the specialist's opinions were speculative about a relationship between the worker's symptoms and the workplace injury. On May 9, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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.

The worker has an accepted claim. She is seeking wage loss benefits after September 16, 2011 and medical aid benefits beyond October 27, 2011.

Relevant provisions of the Act include:

ss. 4(1) provides that 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.

ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

ss. 39(2) 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.

ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

ss. 40(1) defines loss of earning capacity as the difference between the worker's net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

Worker's Position

The worker was represented by a worker advisor who made a submission on the worker's behalf.

The worker answered questions from her representative and the panel.

The worker's representative reviewed the claim history. She noted that the onset of neck pain began at work in 2006. She described the diagnosis as chronic strain with myofascial neck and shoulder pain. She noted that in 2009 the WCB (a WCB medical advisor) accepted the compensable injures to the worker's neck and right shoulder as chronic strain/myofascial pain of the shoulder girdle musculature.

In response to the opinion provided by the WCB medical advisor in October 2011, the worker's representative submitted that the treating physiatrist has pinpointed the worker's diagnosis which she described as a C2-C3 facet joint. She said the WCB accepted responsibility for the condition and remains responsible until the condition resolves.

She noted that the worker's claim is supported by a physiatrist who is a specialist and feels the appeal panel should prefer the physiatrist's opinion over that of the WCB medical advisor who is not a specialist.

Regarding a lack of existence of objective evidence the worker's representative noted WCB Policy 44.40.10, Evidence of Disability, which provides that "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition." She submitted that presence of pain is evidence.

The worker's representative advised that the worker never received an offer of a return to work prior to December 2011. She noted that the worker has returned to work.

Regarding the surveillance video, the worker's representative stated that the video shows the worker having difficulties in the neck and upper back. She also said that the video did not show that the worker was capable of performing her pre-accident work. She submitted that a physiatrist, a family physician and a physiotherapist find that the worker was not fit to return to work in September 2011 and that the worker has never fully recovered from the initial injury and continued to have relapses.

The worker advised the panel that she never fully recovered from the 2006 injury. She said that she attempted to return to work in December 2011. She was assigned companion duties which she described as sedentary. She said that her pain was variable, she could not raise her arm above her head, only a little over shoulder level. She also said she was sleep deprived and was on pain killers all the time.

In answer to a question regarding an injection she received in September 2011, the worker replied:

"I might add, too, while we’re on -- around that time, September 17th, the surveillance was done on me and, yes, I was moving a little better. I had company over for the first time in months because I felt a little better and because I was feeling the relief from having this temporary injection in my neck. And like I said, the surveillance -- really, I think it was unfair to put any bearing on that because it was done just three days after I’d had this wonderful procedure done that took away the majority of my pain."

The worker subsequently had a neurotomy (rhizotomy) as treatment for her headaches. She acknowledged that she still gets headaches. She said they shifted to the left side. The treating physician has not explained how the pain would move. She clarified that the pain is "Right and left. Yeah, I’ve got pain -- I get pain central; I’m getting it central."

At a later point in the hearing the worker said that she still gets pain, mostly down the right side. When asked to explain she said:

"The rhizotomy can -- my pain levels, compared to what they were, have reduced significantly but they do get aggravated and they still get -- they still -- I still get extreme pain. But like I did say, the pain before was there regardless of what I did and now it’s there because of a reason. If I get pain, it’s because I’ve overextended myself or, you know, I’ve done something to aggravate it, but I am -- the difference is now I’m able to function."

She said that before the neurotomy her pain was at 8/10 on a Visual Analogue Scale (VAS) and now was at 2 to 3/10 at best and when she exerts herself it rises to 5 to 6/10. She said the procedure allows her to function.

She returned to work in January 2013. She still had pain in the shoulder blade. Her headaches were not as frequent and were usually the result of activities such as lifts at work. Her new duties involve work as a health care aid working with persons with behavioral and dementia issues. This position is less physically demanding.

The worker acknowledged that her injury is a soft tissue injury.

Employer's Position

The employer was represented by an advocate and its Human Resource Consultant.

The employer representative advised that the employer agreed with the Review Office decision. The representative noted that numerous investigations had taken place including a CT scan of the cervical spine in 2008, an MRI of cervical spine in 2009, MRI of cervical spine and right shoulder in 2011 and nerve conduction tests. She noted that the tests were normal except for some minor degenerative findings.

The representative stated that the issue to be considered is the worker's status in September 2011. She noted that at the call-in exam on October 5, 2011 the worker described "crippling symptoms." She noted the WCB medical advisor's opinion, after completing the exam, was that the worker's current diagnosis was non-specific pain of the head, back and neck, that the worker had a full functional recovery from the workplace injury and that restrictions were not recommended.

She contrasted the worker's presentation in the surveillance video with her presentation at the WCB call-in examination and concluded that the worker grossly misrepresented her symptoms to the WCB.

She noted the worker's family physician opinion that the injections that the worker received in September 2011 explain why her movements were not restricted in the video. The representative noted that the injections were for the worker's headaches, not for her arm and shoulder pain.

In closing the employer's representative said that the file documentation shows widespread complaints, changing and resolving over time, and inconsistency which all touch on credibility.

Analysis

Issue 1: Whether the worker is entitled to wage loss benefits after September 16, 2011.

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after September 16, 2011 as a result of the workplace injury, or in other words, the worker was unable to work after this date due to her workplace injury. The panel was unable to make this finding. The panel finds that as of September 16, 2011, the worker was fit to return to work and that any loss of income after that date was not related to the workplace injury.

In arriving at this decision, the panel places significant weight on the October 5, 2011 examination by a WCB medical advisor, the October 19, 2011 memo from the WCB medical advisor and the surveillance video which was conducted on September 17, September 24 and October 5, 2011. The panel finds that the surveillance video is the most accurate representation of the worker's true abilities in October 2011. Based upon this information, the panel concludes that the worker underrepresented her functional capacity to the WCB, the WCB medical advisor and her healthcare practitioners.

The panel finds the worker's evidence to be unreliable, and this has been noted at other points in the history of this claim.

In the examination notes, the WCB medical examiner indicates that, in his opinion, the worker made a less than full effort in testing and her responses to some testing was out of keeping with the degree of stimulus being applied. He believed that she was actively resisting passive movement of the shoulders. He noted examples of abnormal pain behavior. He concluded that a causal relationship between the worker's current presentation and 2006 workplace injury cannot be substantiated.

As noted in the background, the WCB conducted video surveillance in September and October 2011. The panel finds that the worker's presentation at appointments with her physiotherapist and WCB medical advisor are not consistent with her presentation in the surveillance video.

• Presentation to physiotherapist on September 28, 2011: Findings noted cervical ROM restricted 20-25 % into all planes, unable to assess glides, unable to assess myotomes, pain level inhibits full assessment.

This contrasts with her presentation in the September 24, 2011 surveillance video where she demonstrated many unimpeded activities including: normal gait, unrestricted movement of her right arm and full flexion of her right shoulder.

• Presentation at October 5, 2011 examination by WCB medical advisor: The worker related that: she is currently unable to lift greater than 4 or 5 lbs with either arm as it causes severe pain in the neck and shoulder. She described spasms in her back and in her upper extremities as occurring with even light touch, she is unable to use a can opener or do any kind of fine movements with her right hand or any rotation movements with the right forearm due to pain, including great difficulty using a pen or pencil. She said she is unable to tolerate any form or exercise as this causes severe pain. She is unable to perform any duties above the level of the shoulder as she cannot raise her hands to this level, especially on the right. She walks twice a day which does not bother her too much; however, riding on a bus aggravates her pain due to jerking movement of the bus. She described having difficulty washing her hair due to pain.

This contrasts with the surveillance video which demonstrated that during the same time period, the worker had significantly more function than she reported or was noted at the examination by the WCB medical advisor.

The WCB medical advisor who examined the worker on October 5, 2011 made the following comments upon viewing the video:

"Many of the activities observed involved movements of the right upper extremity beyond the maximal attainable range of motion demonstrated at the call-in exam, especially movements involving right shoulder flexion, adduction and abduction. [The worker] also presented at the call-in holding her right arm across her abdomen with the elbow in 90 degree flexion and while walking the arm did not move from this position. These findings are in contrast with the movements demonstrated on the surveillance video, including immediately preceding and following the call-in exam, in which the right arm is seen to be moving freely, fluidly and normally at her side. During the entire video surveillance, movements and activities demonstrated were fluid and unrestricted, all body parts appeared to be functioning normally and no evidence of impairment or pain was seen at any time."

Given the panel's finding with respect to the worker's presentation of her symptoms to the physiotherapist and WCB medical examiner, the panel concludes that it cannot attach weight to the reports from her treating physicians as these reports are based upon the worker's presentation and complaints.

The panel notes that the worker's treating physician offered an explanation for the worker's mobility as noted in the surveillance video. She commented that the worker had an injection on September 13, 2011 and that at time of the surveillance video the worker's level of activity was "…most probably influenced by the injections." The panel notes that the injection referred to was for treatment of headaches and not muscular pain and does not explain the worker's mobility on the surveillance video.

The panel also notes that the worker told her case manager on September 19 that:

"The injection helped with my headaches but not with the pain down my arms. My arms are heavy, on my shoulder, and have a burning across my back."

The panel finds this evidence to be inconsistent with the physician's explanation. It is also inconsistent with the worker's evidence at the hearing that:

"And like I said, the surveillance -- really, I think it was unfair to put any bearing on that because it was done just three days after I’d had this wonderful procedure done that took away the majority of my pain."

The panel notes that an April 21, 2011 MRI of the worker's cervical spine and right shoulder were normal except for some degenerative changes. As well, the neurological exam and impingement tests conducted by a physiatrist on July 19, 2012 were negative.

It appears the worker may have a parallel condition which is not related to the workplace injury. A physiatrist noted in a report dated January 17, 2013 that "we have trialed multiple treatments here, many with improved outcomes. However, she has ongoing degenerative changes as well as some possible chronic hypersensitivity syndrome. Current symptoms are above and beyond the previous injury. Some are not compensable, specifically fibromyalgia. I think the muscular strain and facet syndrome may well be from the original time of workplace injuries, however described…" In an earlier report (July 19, 2012) this physiatrist noted that the worker had multiple complaints. He reported significant and varied symptoms including numbness and tingling in her hand and progression of pain into her legs and toes.

On a balance of probabilities, the panel finds that the worker had recovered from her workplace injury by September 16, 2011. The panel is unable to relate the worker's symptoms beyond this date to the workplace injury.

The worker's appeal of this issue is dismissed.

Issue 2: Whether the worker is entitled to medical aid benefits beyond October 27, 2011.

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker required medical treatment after October 27, 2011 as a result of the workplace injury. The panel was not able to make this finding. Given the panel's findings and the evidence noted in Issue 1, the panel concludes that the worker recovered from the 2006 workplace injury and is not entitled to further medical aid benefits under the Act.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of November, 2013