The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable injury and that he was not entitled to benefits beyond November 2003.  A hearing was held by teleconference on March 4, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to further benefitsafter November 28, 2003.

Decision

That the worker is not entitled to further benefits afterNovember 28, 2003.

Decision: Unanimous

Background

On April 22, 1997, the worker was walking across a wet tiled floor when he slipped, resulting in a twisting of his low back and right leg and contusion to his right shoulder. Initial medical reports indicated that the worker sustained soft-tissue strain injuries which involved his low back and that he also suffered from previous chronic back problems for which he had a 1985 WCB claim in Alberta.

On September 30, 1997, the worker was advised by the WCB that he was not entitled to benefits after October 8, 1997 as it was felt that his ongoing back difficulties were more likely related to his pre-existing chronic back condition. This decision was appealed by the worker which led to the convening of a Medical Review Panel ("MRP") on September 3, 1999.

On December 3, 1999, Review Office determined that the worker was entitled to further benefits after October 8, 1997 based on the following MRP findings:

• the worker suffered a low back strain and a right shoulder contusion resulting from the accident of April 22, 1997;
• there was a history supporting the presence of pre-existing conditions, specifically continued low back complaints from 1985 and documented support for a pre-existing psychological condition in the form of Chronic Pain Behavior. There was no evidence of a pre-existing condition with respect to the groin, hip and shoulder.
• the Chronic Pain Behavioral Syndrome, considered pre-existing, was enhanced by the April 22, 1997 accident;
• there was no physiological etiology to explain the worker's chronic back pain;
• there was no evidence of a continuing injury resulting from the April 22, 1997 accident.

In February 2000, the worker was seen at the WCB's Pain Management Unit ("PMU") for a psychological assessment. On February 18, 2000, the PMU medical advisor stated:

...the claimant does not meet diagnostic criteria for a Chronic Pain Syndrome (CPS) based on the following: he has a pre-existing Pain Disorder (per DSM IV) which is a contraindication to the diagnosis of CPS per WCB Manitoba criteria. It is felt that the claimant's Pain Disorder was exacerbated by his physical injury and that his claim related injury did contribute to this exacerbation to a material degree. The claimant does not appear to be an appropriate candidate for a Multidisciplinary Pain Management treatment program. It is felt that he would benefit from a referral to a psychologist for treatment of his Pain Disorder...

On May 1, 2000, a WCB psychological advisor stated:

We reviewed the claimants diagnosis and it's relationship to the C/I. His diagnosis is that of a Pain Disorder that pre-existed the C/I. However it is felt that his Pain Disorder was relatively quiescent to the point where he was able to work on a full time basis, and that his C/I did exacerbate the Pain Disorder leading to a marked decrease in his functional ability. It is also felt that this exacerbation has been the primary barrier to his return-to-work. At the PMU team meeting on May 5, 2000 we will develop appropriate restrictions based on this exacerbation.

On April 20, 2000 the worker was referred to a psychologist for assistance with pain management and on September 22, 2000, the worker underwent a functional capacity evaluation ("FCE").

On June 18, 2001, a medical advisor from the WCB's PMU indicated that the worker: "continues to qualify for a diagnosis of Pain Disorder but he does not qualify for a diagnosis of Chronic Pain Syndrome as per WCB Manitoba criteria."

On May 9, 2002, a second MRP was convened and the MRP panelists determined that the worker did have Chronic Pain Syndrome in accordance with WCB guidelines. The MRP also stated "The physical injury appears to have contributed to the causation of the chronic pain syndrome to a material degree."

On June 23, 2003, the worker was again assessed at the WCB's PMU and was seen for a second FCE on June 24, 2003.

In a decision dated September 15, 2003, the worker was advised that no further responsibility would be accepted for this claim and that wage loss benefits would be paid to November 28, 2003. The case manager stated:

...The WCB recently arranged for you to be interviewed in our Pain Management Unit. During your most recent interview (June 23, 2003) the advisors in Pain Management Unit noted there was information on file which was not available to the Pain Management Unit at the time of its assessment in February of 2000. This information was particularly relevant to your work history, subsequent to your injury of 1985 in Alberta and prior to your injury of April 22, 1997, in Manitoba.

Based on the new information and the information obtained during the interview, it is the opinion of the Pain Management Unit that you do not qualify for a diagnosis of chronic pain syndrome as per WCB Manitoba criteria. Your pre-existing pain disorder was likely aggravated (not enhanced) by the injury of April 27, 1997, and given that you experienced protracted time loss from work in 1995 and 1996 it can be concluded that the injury of April 22, 1997 did not materially contribute to causation. The aggravation of the pre-existing condition is now resolved.

In the opinion of the WCB, current disability and loss of earning capacity is not due to the April 22, 1997, workplace injury. In the opinion of the WCB, you have recovered from the effects of this injury.

On September 24, 2003, a worker advisor, acting on the worker's behalf, appealed the case manager's decision to Review Office.

In a decision dated February 6, 2004, Review Office determined that the worker had recovered from his compensable injury and confirmed that he was not entitled to further benefits. Review Office indicated that it accepted the September 3, 1999 MRP finding that there was no evidence of a physical injury resulting from the April 22, 1997 accident and that there was no new information to support a reversal of this decision.

Review Office noted that the WCB accepted responsibility for an "aggravation" of a pre-existing Pain Disorder, not materially caused by the effects of the work injury.

Review Office noted that the MRP of May 9, 2002 was asked whether the worker currently suffered from a psychiatric/psychological condition and if so to provide the DSM IV diagnosis of the condition. They responded that there was no active DSM IV psychiatric or psychological condition. Review Office concluded that the file evidence supported that the worker aggravated a pre-existing Pain Disorder at the time of his work injury on April 22, 1997 and that the worker had now recovered from the effects of his compensable injury (aggravation).

On November 24, 2014, the worker filed an appeal with the Appeal Commission indicating that was entitled to benefits retroactive to December 2003 based on new medical information which showed that the WCB doctors neglected to diagnose "nerve impingement" in his neck.

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.

Under subsection 4(1) of 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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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. 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 participated in the hearing via teleconference. The worker reviewed the history of his back problems which dated back to a workplace accident in Alberta in 1985. The worker's evidence was that when he suffered the fall on April 22, 1997, he felt like he was set back to his 1985 injury and that he had to rebuild what he had lost. His psychological status played a very significant role in his rehabilitation, but he struggled to do the best that he could at the time. The worker felt that with the focus being on his Chronic Pain Syndrome and the pre-1997 back injury, the medical profession neglected to follow up on other areas of injury, specifically the neck and groin. He stated that he had problems with these areas since 1997. His neck was very stiff and he had problems turning it. Occasionally, he had episodes where his neck would lock while driving. For that reason, he avoided driving. He also had severe pain in his neck which extended down to his shoulder. Since early 2014, he had a neck brace to stabilize his neck to keep it in place. With respect to the groin, the worker indicated that he had pins and needles, pain, bladder control issues and weakness in his legs.

Overall, the worker submitted that he never recovered from the effects of his workplace injury. The second accident of 1997 took him back to 1985 and affected him psychologically. At the present time, he continued to suffer from his injury with problems in his neck, shoulder, groin and loss of use of his legs.

Analysis:

The issue before the panel is whether or not the worker is entitled to further benefits after November 28, 2003. In order for the appeal to succeed, the panel must find that the worker's compensable injury either required medical aid or caused him to suffer a loss of earning capacity after November 28, 2003. On a balance of probabilities, we are not able to make that finding.

Medically, there were three general areas where the worker experienced difficulties. The first was the low back, which was the area injured in the previous 1985 accident. The panel considered whether there was evidence of continuing problems in this area after November 28, 2003. We find that there was not. In the MRP of September 3, 1999, the worker was examined and the physicians concluded that the worker's current diagnosis at that time was Chronic Back Pain Syndrome and they stated that they could find no physiological etiology to explain the chronic back pain. They stated that there was no evidence at that time of injury resulting from the April 22, 1997 accident. In view of these findings, the panel finds that any injury to the low back suffered in the 1997 had resolved by September 1999.

The second area of difficulty was the neck/cervical spine and groin. At the hearing, the worker indicated that these were the areas where he was experiencing the most difficulties and he was scheduled to see a neurologist in May 2015. A medical report from the worker's attending physician indicated that the worker had recently undergone an MRI of the cervical spine which showed severe right neural foraminal narrowing and moderate left neural foraminal narrowing at C3-4, as well as moderate right neural foraminal narrowing at C5-6. The worker was reporting severe pain in the legs with neuralgia and radiation into the back and neck as well as down the legs. The worker had associated lower limb episodic giving away, as well as right arm neuralgia and right arm weakness.

The MRI performed January 26, 2015 reported the following impression: "Degenerative disc disease and uncovertebral/facet joint osteoarthritis in the mid cervical levels."

The panel has considered whether these findings could be related back to the effects of the April 22, 1997 workplace accident. On a balance of probabilities, we find that they cannot. On reviewing the WCB file, there was no indication that the worker identified his neck as being an area of injury in the weeks and months following the fall. The early history did not reflect any complaints in this regard. At the MRP on September 3, 1999, the worker was reported to have: "good range of flexion/extension of his cervical spine. He had a good range of lateral bend to the left and the right as well as rotation to the left and right of the cervical spine."

In the panel's opinion, the current difficulties being experienced by the worker are more likely to be age-related and did not result from an acute injury suffered in the 1997 fall. The MRI findings of degenerative disc disease and osteoarthritis in the mid-cervical levels are more commonly related to the natural process of aging.

Finally, with respect to the diagnosis of Chronic Pain Disorder, there was some question on the file as to whether the worker suffered an enhancement vs. a temporary aggravation of his pre-existing psychological condition. In a report dated April 30, 2001, the WCB psychological advisor considered this issue and concluded that it would be inappropriate to indicate that the worker's claim related injury caused a permanent worsening of his Pain Disorder. The report states:

Unfortunately the above was not consistent with the information he presented to us in our assessment of him at the Pain Management Unit. Based on the information we had available at the time it appeared to us that [the worker's] Pain Disorder had resolved to a greater degree prior to his c/i than was apparently the case. Based on this it is felt that [the worker's] claim related injury resulted in only a minor aggravation of his pre-existing Pain Disorder.

The information in question was the extent to which the worker had successfully returned to work following the 1985 injury. At the hearing, the worker confirmed that he did experience significant time loss from work in 1995 and 1996. The panel agrees with the facts relied upon by the WCB psychological advisor, and we therefore accept his conclusion that the psychological injury suffered by the worker as a result of the 1997 accident was limited to a minor aggravation of a pre-existing Pain Disorder. We further find that by November 28, 2003, the effects of this aggravation had resolved.

In view of the foregoing, the panel finds that any loss of earning capacity and/or need for medical aid beyond November 28, 2003 are not attributable to the effects of the April 22, 1997 workplace accident. The worker's appeal is therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2015