The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that her ongoing medical conditions were no longer related to the July 16, 2013motor vehicle accident.  A hearing washeld on March 17, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after October 9, 2014.

Decision

That the worker is entitled to benefits after October 9,2014.

Background

On July 16, 2013, the worker was involved in a motor vehicle accident during the course of her employment and was thrown out of the vehicle. Based on hospital emergency information and laboratory test results, the worker was diagnosed with soft tissue injuries to her left shoulder, left hip and knee and a neck strain. By October 2013, medical reports showed that the worker had a low pain tolerance and was diagnosed with non-specific non-radicular neck and upper back pain.

Following a WCB call-in examination held on November 18, 2013, the WCB medical advisor reported that the worker presented with chronic muscle strain of the paracervical and para-thoracic musculature on the left more than the right. There was ongoing evidence of anxiety and possible elements of post-traumatic stress disorder. There were no abnormalities suggesting nerve impingement or other neurological diagnoses.

When seen for medical treatment on January 27, 2014, the treating physician noted that the worker still had a fair degree of neck pain and that she complained of occipital headaches since the trauma.

On March 15, 2014 the worker was seen at a pain management clinic and the report indicated that the worker's pain was mostly related to facet arthropathy.

File records showed that the worker received treatment from a mental health worker who had diagnosed the worker with "Generalized Anxiety Disorder" on September 25, 2012 (according to a report dated May 20, 2014). He also stated that with pharmacological intervention, the diagnosis had gone into remission. The health worker further reported that when seen on April 15, 2014, the worker reported many psychosocial stressors which were inhibiting her daily living which he related to her pain from the motor vehicle accident.

On June 27, 2014, the worker was again seen at the WCB offices for a call-in examination. The WCB medical advisor reported that it was unlikely that the worker's current complaints of neck and right shoulder pain were causally related to the effects of her workplace injury, substantiated by the following:

• the duration of symptoms. A strain would resolve over a period of four to six weeks and it was now almost 12 months since the initial injury.
• the absence of CT or MRI findings to suggest foraminal narrowing or nerve root impingement which if present, could explain the worker's ongoing symptomatology.

The medical advisor commented that based on the examination and review of imaging studies, compensable restrictions were no longer required and that the worker could safely resume driving as well as light lifting.

In a decision dated July 21, 2014, it was determined by the WCB that the worker required no restrictions in relation to the July 16, 2013 compensable injury and that she was capable of performing her pre-accident duties as a driver. It also determined that any ongoing appointments at the pain clinic and prescribed medication were no longer supported as being related to the July 16, 2013 accident. The worker was advised that the WCB would continue to pay wage loss benefits, as her file was being reviewed with respect to her diagnosis of generalized anxiety disorder.

On July 21, 2014, the WCB wrote to the treating psychiatrist for additional information concerning the worker's current psychiatric condition. The treating psychiatrist later provided the WCB with medical reports dated September 25, 2012 and April 15, 2014.

In a report from the pain management clinic dated September 13, 2014, it was stated the worker "...as a result of the accident, she developed fibromyalgia with axial injury relating to her facets on the right and also bilateral facets at approximately the T6-7 level. We have now got her generalized fibromyalgia pain under reasonable control..."

On September 29, 2014, a WCB psychiatric advisor indicated that the two reports from the treating psychiatrist did not fully answer the questions outlined on July 21, 2014. The WCB psychiatric advisor stated:

He noted specific psychosocial stressors that pre-injury had contributed to her developing Generalized Anxiety Disorder. In April 2014, he said that her psychiatric difficulties were also related to back pain, belief that WCB had not been helpful, and concerns about the future. A WCB medical advisor has determined that ongoing reports of pain cannot be accounted for by the workplace injury. In light of this finding, the writer finds that ongoing psychiatric issues are not accounted for by the workplace injury. They are related to non-compensable factors such as dissatisfaction regarding the process of her WCB claim, as well as chronic pain that is not related to her workplace injury.

In a decision dated October 1, 2014, the WCB determined that the diagnosis of generalized anxiety disorder was not related to the July 16, 2013 compensable injury and that the worker was entitled to wage loss benefits to October 9, 2014 inclusive and final. Based on the WCB medical advisor opinion and the reports from the treating psychiatrist and mental health worker, the WCB concluded that the generalized anxiety disorder was diagnosed prior to the July 16, 2013 compensable injury and that the worker's current difficulties were related to back pain and the belief that the WCB had not been helpful and concerns about the future.

The worker disagreed with the case manager's decision and the file was referred to Review Office for consideration.

On November 6, 2014, Review Office determined that the worker was not entitled to wage loss benefits beyond October 9, 2014. Review Office referred to the reports from the pain management clinic dated March 15, 2014 and September 13, 2014. It found that the worker's clinical findings were not in keeping with the level of her reported difficulties. When considering the diagnostic testing, the evidence did not support that a more significant injury occurred and Review Office could not find a causal relationship between the diagnosis offered by the pain clinic physician and the July 2013 accident. Review Office accepted the WCB medical opinions outlined on June 27 and September 29, 2014. On November 24, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on March 17, 2015.

Prior to rendering a decision on the issue under appeal, the appeal panel asked that the worker be seen by an independent medical examiner to determine the physical sequelae from the motor vehicle accident. The worker was later examined by a physiatrist and his report to the Appeal Commission was forwarded to the worker for comment. On November 26, 2015, the panel met further to discuss the case and rendered its decision.

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 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.

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.

Worker's Position

The worker was self-represented at the hearing. She described the motor vehicle rollover accident on July 16, 2013. She was a passenger in the vehicle, had fallen asleep, was awakened by the driver who had been screaming and then found herself out of the vehicle in a ditch. She indicated that she was hurt the worst on the left side of her back, "mostly the middle and the top by the shoulder bone." Currently, it aches all the time, and she feels better walking than sitting or laying down.

The worker also indicated that the accident has taken a toll on her life, as she sees the mental health effects it had on her brother (the driver of the vehicle). She sees a psychiatrist once a month as well as a counselor occasionally in her remote community.

The worker stated that she is not working now. She worked from November 15, 2013 to January 20, 2014 when she was laid off for what was claimed to be a shortage of work. She indicated that she had returned to a different full time position as a camp co-ordinator. She was asked to perform work duties such as shoveling that she could not do. She was also limited in how much computer work she could do because she would get sore on her left side.

During questions from the panel, the worker noted that she was now seeing a pain specialist and provided the following information:

Q: So in a general way, do you have a sense of whether the problem is with bones or whether it's with muscles or soft tissue? Has he described to you in any general way the kind of concerns he has?

A: He tells me that my muscles are tightened up and they're having a hard time to relax. And then he says that 'f' thing [facet arthropathy] is swelled up. That's why I always have a hard time breathing.

Q: How is your right side in general? Do you have any problems in the upper body of your right side or the middle side or the bottom side of the right?

A: No, just my back all the time.

Q: Just the left side or both sides?

A: Mostly my left side. I feel pain all the time.

Q: How about the right side, anything going on there?

A: No.

The worker indicated that the pain specialist was planning to do cortisone injections into her spine to loosen it. In response to a question regarding her current condition, the worker advised that her back had been starting to get better once she started physiotherapy soon after the accident, but her condition worsened after the physiotherapist's application for 11 more sessions was turned down by WCB. She started getting more sore and was stiffening up in the morning.

The worker indicated that her ability to return to work is affected by her pain as well as the anxiety disorder and depression that she is experiencing

Employer's Position:

The employer did not participate in the appeal.

Analysis:

In order for the worker’s appeal to be successful, the panel must find that the difficulties the worker experienced after October 9, 2014 were related to the injury she sustained in the workplace accident of July 16, 2013. We are able to make that finding for the reasons that follow.

The panel notes that this is a complex case to assess, as the medical history on the claim as well as the worker's evidence at the hearing identifies a number of psychological issues both before and after the July 2013 accident as well as a number of evolving physical diagnoses following the accident.

The panel will deal firstly with the worker's psychological conditions, and more specifically with the question of whether there is a compensable psychological condition as of October 9, 2014 that would lead to WCB benefits. We are not able to make this finding.

The panel notes that the worker was first diagnosed with a general anxiety disorder prior to her work accident in July 2013. There was considerable discussion during the hearing as to when the condition first arose, how long it lasted, and when the worker was on medications for the condition. It became apparent to the panel that while the worker had clear recollections of the family crisis that led to the onset of her anxiety disorder, the worker had difficulties in establishing a consistent timeline for what happened and when, and was sometimes off by a number of years. In fact, at the hearing, the worker acknowledged that she had a bad memory. The panel has therefore placed greater weight on information provided by external healthcare providers to establish an accurate history.

The worker's treating psychiatrist's report of September 25, 2012 (9 months before the work accident) indicates a diagnosis of two Axis 1 diagnoses: Generalized anxiety disorder and Adjustment disorder with anxious mood. In his narrative, he refers to a major psychosocial stressor (a family member in serious crisis) as contributing to the emergence of the worker's mood and anxiety symptoms. He also notes that "She described herself as being a chronic worrier who worries about family finances and health, even though there is nothing for her to worry about. She indicated that her mother tells her that she worries about everything without any reason." The report describes the psychiatric medications that the worker had been on for some time, and he recommended a continuation of certain medications as well as a recommendation for cognitive behavioural therapy from her therapist and that it would be helpful for the worker to read articles about generalized anxiety disorder. In the panel's view, the worker had a well-established general anxiety disorder prior to the workplace accident that, even with some remission of symptoms with the use of medications, was under active treatment at the time of the work injury.

The psychiatrist provided a subsequent report dated April 15, 2014, which identified three psychosocial stressors that may have contributed to the worker's mood symptoms: back pain since her MVA; she did not find the WCB as being cooperative and helpful; and she worried about her future. He noted a number of depressive symptoms, and provided two diagnoses: Generalized anxiety disorder, and Chronic Pain Disorder secondary to most likely being involved in an accident.

The panel notes that these reports were reviewed by a WCB psychiatrist consultant on June 30 and September 29, 2014 who concluded that the worker's ongoing psychiatric issues are not accounted for by the compensable injury but rather to non-compensable factors prior to the work accident, dissatisfaction with the WCB claim process and chronic pain not related to her compensable injury.

The panel accepts the comments of the WCB psychiatric consultant in regard to the ongoing pre-existing non-compensable psychiatric conditions and her dissatisfaction with the WCB adjudicative process which the panel finds is also non-compensable.

As to the potential connection between chronic pain or a chronic pain disorder as being a cause of or contributing factor to the worker's ongoing psychiatric condition, the panel notes (as detailed in our later analysis in this decision) that the worker has a myriad of physical ailments that are pain generators that are well beyond the scope of what we eventually found to be a relatively limited ongoing compensable medical condition. As will be noted later, the panel has accepted a finding by an independent medical examiner that "Her symptomatic presentation (acknowledging a mostly normal exam) is consistent with non-specific thoracolumbar junction regional pain." In the panel's view, the described chronic pain disorder identified by the worker's psychiatrist is not related to the compensable medical conditions that arose out of the work accident. We therefore find, on a balance of probabilities, that while the worker has ongoing psychological issues as of October 9, 2014 and beyond, they are not causally related to her work accident and are not compensable. Therefore, there is no entitlement to benefits for the worker's psychological conditions.

The panel then dealt with the worker's physical conditions, and more specifically with the question of whether there is a compensable medical condition as of October 9, 2014 that would lead to an entitlement to WCB benefits. We are able to make this finding.

As noted earlier, the panel has found this to be a challenging case to consider, because of:

• the many different diagnoses provided on the file, many of which were later discounted for reasons ranging from the unnatural length of symptoms to the lack of support from diagnostic imaging, or the timing as to when these conditions were first reported or identified. These include diagnoses of muscle strain/sprain, concussion, post-concussion syndrome, bilateral shoulder and hip pain, dental issues, and left knee pain.

• the reporting of new symptoms with the passage of time into new areas of the body (left side to right side, dental issues, knee issues, bilateral hip and shoulder issues).

• the later introduction of conditions such as fibromyalgia

• the identification and interaction of a number of non-compensable psychological issues (based on our earlier findings) with the worker's injuries. These include generalized anxiety disorder, depression, sleep difficulties and chronic pain disorder.

Having noted these issues, the panel nonetheless recognizes that the worker was involved in an extremely traumatic work accident, where she was thrown from a vehicle travelling at highway speed. The panel further notes that even with the migration of symptoms and conditions noted over time, there was one common theme to the worker's pain complaints that was, at face value, consistent right from the start of the claim and throughout the course of the file and up to the date of the hearing -- constant pain to the left side of the middle of the back.

Given the challenges so far in identifying or isolating an ongoing compensable physical injury(ies) in the presence of the psychological overlays identified in the claim, the panel arranged for an independent medical examination of the worker by a physical and rehabilitation specialist (the "medical examiner"), which took place on November 5, 2015. The medical examiner was provided with and reviewed the extensive file documentation, assessed the medical reports on file, and interviewed and examined the worker before providing his medical opinions as to the most probable injuries at the time of the accident, the worker's current physical diagnoses, and whether the current diagnoses are causally related to the original injuries suffered by the worker.

The panel places particular weight on a number of comments and findings made by the medical examiner, in coming to our own findings on this matter:

Reviewer's Comment

The diagnosis of muscle strain is not one that is operationally defined and cannot be validly deduced from the clinical examination. The term "strain" implies a tensile overload of a muscle or group of muscles. While this is possible, the objective clinical findings are nonspecific and are not necessarily indicative of a muscle injury. The findings of generalized tenderness with light palpation would be most consistent with heightened reactivity to pain, possibly associated with the claimant's anxiety.

As a result, the clinical examination is obscured and generally inconsistent with a muscle strain.

...

Reviewer’s Comment

The rationale for refuting a causal link between the claimant's physical symptoms and the motor vehicle collision is based on the claimant having a confirmed diagnosis of "muscle strain". Per the previous reviewer's comment above, this diagnosis is not valid.

Rather, the claimant has a history of various pain symptoms and presents with various clinical signs that have persisted for 12 months. Since there are several pain- associated conditions that have a natural history that exceed 4-6 weeks and can persist for 12 months (e.g. cervical facet medicated [sic] pain, intrinsic disc pain, and others), there are alternative possibilities to account for her duration of symptoms. In addition, there are possible mental health diagnoses that can also present with chronic pain of 12 months duration (e.g. pain disorder, somatic symptom disorder, illness anxiety disorder, and others).

Consequently, the absence of imaging findings or clinical signs of neurologic impingement does not exclude these physical or psychological diagnoses. While these possible diagnoses may be present and are more plausible explanations than a "muscle sprain", it remains to be seen whether a cause and effect relationship exists between the motor vehicle collision and these possible alternative diagnoses.

...

2. What are the worker's current physical diagnoses? What medical findings support these diagnoses?

The claimant presents with a mostly normal physical examination of the spine and limbs and has a normal neurological examination. There remains some areas of tenderness that are influenced by her difficulty relaxing and possible (sic) some persisting heightened reactivity to pain. This makes rendering an anatomic diagnosis quite difficult.

Her symptomatic presentation (acknowledging a mostly normal exam) is consistent with non-specific thoracolumbar junction regional pain. There is no evidence of any ominous or neurological features. The claimant's previously documented cervical spinal complaints and findings appear to have resolved. Also, there is currently no evidence of persisting symptoms or signs relating to her possibly sustained concussion.

The ongoing complaint of bilateral shoulder and hip pain is not associated with any objective loss of joint function at these levels. There is currently no evidence of an anatomic diagnosis to correlate with these symptoms.

The claimant is likely physically deconditioned, likely mostly due to her believe (sic) that she is incapable of reconditioning exercise. On the basis of the clinical examination, she has the requisite strength, coordination and range of motion to perform a variety of strength training exercises regularly and safely. Thus there appears to be some apprehension, consistent with her previously documented diagnosis of Generalized Anxiety Disorder (per [treating psychiatrist]) that is influencing her physical functioning.

3. Are the current diagnoses causally related to the injuries suffered by the worker on July 16, 2013? Please supply your rationale in support of your conclusions?

Given the mechanism of injury, a rollover collision with ejection, the appropriate temporal relationship between the collision and documentation of spinal complaints, and in the absence of a prior diagnosis of spinal complaints, there appears to be a medically probable cause and effect relationship between the presentation of non-specific spinal pain in the region of the thoracolumbar junction and the July 16, 2013 motor vehicle collision.

In the absence of a more definitive diagnosis, the relationship between the claimant's persisting bilateral shoulder and hip symptoms is unclear. However, given that the complaints at the time of the collision were limited to the left side of the body, it is currently less clear how the right sided symptoms can be causally linked to the motor vehicle collision of July 16, 2013.

The panel notes that the medical examiner's report, in other sections, indicated a series of normal findings on musculoskeletal testing of the worker's neck/cervical spine and lumbar spine, and normal neurological findings in the cervical, thoracic and lumbar spines. The medical examiner found that the worker does not meet the criteria for fibromyalgia, since the diagnosis requires widespread chronic pain while her pain complaints are focal and are restricted to the neck and interscapular region.

After considering all the evidence on file and at the hearing, the panel accepts the analysis, conclusions and recommendations of the independent medical examiner regarding the worker's ongoing physical injuries. While the worker has or complains of a number of physical issues, the panel finds that the worker has an ongoing compensable diagnosis that is limited to non-specific thoracolumbar junction regional pain. The panel finds this diagnosis is consistent with the mechanism of injury suffered by the worker and with the pain area and the type of loss of function reported by the worker since the date of the injury. While other diagnoses have been proposed, the panel finds that they have either not been established or are not causally related to the work accident. These include a muscle strain/sprain injury, concussion, post-concussion syndrome, neurological injury, knee injury, bilateral shoulder and hip pain, dental injury, and fibromyalgia.

The worker therefore has an ongoing and compensable physical condition that may entitle the worker to ongoing medical aid benefits. In accordance with subsection 27(1) of the Act, any future responsibility for medical aid benefits will be subject to the ongoing oversight of the WCB healthcare department. This will include consideration of a treatment regimen at a pain clinic that the worker described at the hearing.

Regarding entitlement to wage loss benefits, the panel notes that the worker has not worked since January 2014 and has essentially been sedentary from that point forward. This is reflected in the observation by the independent medical examiner that the worker is likely very physically deconditioned. In the panel's view, this is a factor that has affected her ability, to date, to return to work successfully. The panel notes, again, that while the worker does have an ongoing compensable injury, the worker should not considered to be totally disabled from her diagnosed non-specific thoracolumbar junction regional pain. In that vein, the panel notes the comments of the medical examiner that, "On the basis of the clinical examination, she has the requisite strength, coordination and range of motion to perform a variety of strength training exercises regularly and safely."

The panel finds that the worker is entitled to wage loss benefits retroactive to October 9, 2014. The panel further finds that the worker is not totally disabled from work, and that the WCB should develop a reconditioning program for the worker, with the length of the program to be determined by the WCB healthcare department with due regard to the worker's remote location, the nature of the compensable injury that we have accepted, and including appropriate supportive counseling in respect of the worker's noted fears of participation in a reconditioning program.

The panel therefore finds that the worker is entitled to benefits after October 9, 2014, in

the manner described above. The worker's appeal is approved.

Panel Members

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Presiding Officer

Signed at Winnipeg this 6th day of January, 2016