Decision #77/23 - Type: Workers Compensation
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that Complex Regional Pain Syndrome was not a compensable condition; there was no coverage for intravenous Ketamine/Lidocaine; and there was no entitlement to medical aid and wage loss benefits beyond March 17, 2022.
A teleconference hearing was held on November 2, 2022 to consider the worker's appeal.
1. Whether or not the diagnosis of Complex Regional Pain Syndrome should be accepted as being a consequence of the May 15, 2019 accident;
2. Whether or not responsibility should be accepted for intravenous Ketamine/Lidocaine treatment; and
3. Whether or not the worker is entitled to wage loss and medical aid benefits after March 17, 2022.
1. The diagnosis of Complex Regional Pain Syndrome should not be accepted as being a consequence of the May 15, 2019 accident.
2. Responsibility should not be accepted for intravenous Ketamine/Lidocaine treatment; and
3. The worker is not entitled to wage loss and medical aid benefits after March 17, 2022.
The employer submitted an Employer's Accident Report to the WCB on May 15, 2019, reporting an injury to the worker's right knee that same day. The employer described:
One of the splice plates became seized while trying to remove it…The carpenter tried to hit the splice plate with their hammer to try and free it, but missed and struck their knee with their hammer.
The worker attended for medical treatment with the local nurse practitioner on May 15, 2019, reporting he was "…swinging hammer – missed target and struck outside aspect of right knee," and had "pain to site of injury and radiating to entire lower leg; states some numbness/tingling present." The nurse practitioner examined the worker and found swelling, bruising at the site of trauma, noted to be the "lateral aspect popliteal region not including patella"; crepitus to the base of the knee; generalized swelling; and the worker was unable to flex his knee. The nurse practitioner provided a diagnosis of right knee contusion and recommended the worker be sent to a local hospital for further assessment and his functional capacities be evaluated.
The worker was seen at a local hospital on May 15, 2019. The attending physician recorded the worker's complaints of hitting himself in the right knee with a hammer, after which he experienced pain radiating to his foot, swelling and an inability to bend or weight-bear on that knee. The physician noted "significant effusion", edema, and increased tenderness on palpation, as well as decreased range of motion and inability to flex. The physician recommended the worker remain off work for two days, then return to modified duties on May 18, 2019 with no stairs or manual labour. An x-ray of the right knee/patella taken at that time showed no abnormalities and the worker was diagnosed with right knee effusion.
On May 16, 2019, the worker accepted the employer's offer of sedentary duties, but on May 21, 2019, the worker contacted the WCB to advise his knee pain was unbearable and he had returned to his home province to seek further medical treatment.
The worker submitted his Worker Incident Report to the WCB on May 22, 2019, describing the May 15, 2019 incident as follows:
At around 8am I was taking out splice plates. I was prying them up with a bar. I took out my hammer to free up the plates. I missed the splice plate and I hit my right knee with the hammer. I heard a big popping sound in my knee.
I felt an unbearable pain. I limped over to my foreman and I was brought to the nurse. I was then sent to the hospital in [location].
The pain is extreme and unbearable, I cannot even describe it. I am getting migraines the pain is so bad. My knee is swollen and bruised. The pain is traveling up and down my right leg and I can't put weight on my knee.
The worker was seen at an emergency room in his home province on May 20, 2019. The worker reported hitting his right knee while at work with a large hammer. The attending physician recommended the worker rest and remain off work, and referred him to an orthopedic surgeon. On May 27, 2019, the worker's claim was accepted and payment of benefits approved. On June 12, 2019, the employer advised the WCB that the worker was laid off effective June 14, 2019.
On June 25, 2019, the worker's file was reviewed by a WCB sports medicine consultant who opined, based on the worker's reported mechanism of injury and the initial medical reports, that an initial diagnosis beyond a mild knee contusion was not apparent in relation to the workplace injury. The sports medicine consultant noted, however, that the worker was scheduled to see an orthopedic surgeon on July 11, 2019, and recommended a further review take place after that. The consultant opined that they were unable to provide specific workplace restrictions, but it would be expected the worker would be able to perform sedentary duties.
On July 16, 2019, the WCB received a report from the worker's July 11, 2019 visit with the orthopedic surgeon. The surgeon noted that on examination, the worker had:
…some swelling to the anterior aspect of his knee. There is no bruising anymore. His extensor mechanism, clinically, is intact. He could do a straight leg raise. While he was getting up on the examining table he did bend his knee about 40 degrees. He was much more hesitant to bend it on the examining table.
His tenderness about his knee is very diffuse as it is even posteriorly. There is certainly no way without bending his knee a bit I could do any ligamentous stressing of his knee. The medial and lateral collateral ligaments seemed to be intact, but any testing of his anterior or posterior cruciate ligament was not really possible.
The surgeon went on to note they reviewed the x-rays taken of the worker's knee and found them to be normal. The surgeon opined that due to a non-compensable health issue, the worker would not be able to tolerate an MRI of his knee and recommended arthroscopic surgery. The surgeon also recommended the worker begin physiotherapy treatment to get his range of motion back, opining that "There is certainly no contraindication to them starting to move his knee."
The worker attended an initial physiotherapy assessment on July 17, 2019, where he reported a great deal of pain, stiffness and swelling of his right knee, along with pain and stiffness in his lower back. The treating physiotherapist noted the worker kept his right knee extended and had an antalgic gait, and indicated they were unable to perform testing due to pain. The physiotherapist provided a diagnosis of an ACL/PCL tear/rupture, and provided a home program of range of motion and strengthening/stretching exercises.
On July 25, 2019, the WCB provided the treating orthopedic surgeon with a letter denying financial responsibility for the proposed right knee arthroscopic surgery. The WCB advised that an examination of the worker's right knee, which might include an MRI, was being arranged by the WCB.
On July 31, 2019, the worker contacted the WCB to discuss the denial of funding for surgery. The WCB stated as there was no definitive diagnosis, they were requesting further medical information in the form of a call-in examination and an MRI. The worker advised the WCB that he was unable to have an MRI due to a non-compensable health issue. The worker also advised that he could not bend his knee and was unable to travel. The WCB advised the worker that they would gather further information from the worker's treating healthcare providers.
On August 7, 2019, the WCB received a report from a further physician, who noted findings of no active or passive range of motion tolerated for the worker's right knee, antalgic gait, and right knee effusion, and queried diagnoses of a tibial plateau break, ACL/PCL injury, and meniscal injury. A report from the worker's physiotherapist on the same date queried the same diagnoses and also found very reduced range of motion, an antalgic gait, and swelling in the worker's right knee joint.
On September 26, 2019, a WCB orthopedic consultant provided the worker's orthopedic surgeon with approval for diagnostic arthroscopic surgery.
On October 16, 2019, the worker underwent right knee arthroscopy, the operative report from which was received by the WCB on November 1, 2019. The post-operative diagnosis provided by the treating orthopedic surgeon was "Mild chondral damage medial side of lateral tibial plateau." The surgeon opined that "It appears that this mans' (sic) knee pain is all extra articular. Intraoperative examination did not reveal any obvious instability. Varus and valgus stress were normal. He had a negative Pivot shift test intraoperatively. There was no mechanical block, there was full range of motion."
On November 8, 2019, the WCB orthopedic consultant reviewed the operative report and the worker's file. The consultant opined that the findings of arthroscopic surgery did not indicate a new diagnosis related to the reported mechanism of injury of May 15, 2019, and the compensable diagnosis was best described as a contusion of the soft tissues on the outside (extra-articular aspect) of the worker's right knee. The WCB orthopedic consultant further noted the arthroscopy "…clarified that there has been no structural injury of the knee stemming from the May 15, 2019 workplace accident. Specifically, in the operative report, the treating orthopedic surgeon concluded that [the worker's] knee pain was 'all extra-articular' (i.e. arising outside of his knee joint)." The consultant noted that post arthroscopy, full weight bearing without crutches was the norm, though some people might prefer to use crutches for a few days, and the anticipated recovery time from the right knee arthroscopy as described was four to six weeks. The consultant further noted that a short course of physiotherapy of up to one month might or might not be necessary or desired.
On November 12, 2019, the WCB advised the worker that they had determined he no longer had a loss of earning capacity, and that wage loss benefits would be paid to November 27, 2019 or the date the worker returned to any type of employment, if sooner. The WCB advised that the medical information on file indicated the acceptable compensable diagnosis was a knee contusion of the soft tissues on the outside (extra-articular aspect) of his right knee and the medical evidence did not support he was disabled from work. The WCB therefore advised that wage loss benefits would be paid to November 27, 2019 or the date he returned to any type of employment, if sooner.
On November 15, 2019, the WCB received a letter of support from the worker's treating orthopedic surgeon. The surgeon reported the worker remained in "…significant discomfort and has very severe stiffness in his knee." The surgeon noted that "My assessment and investigations have not revealed a major ligamentous or boney injury" and recommended "aggressive rehabilitation". The surgeon went on to opine that the worker might have Complex Regional Pain Syndrome, which was noted to be "…a known complication of a soft tissue injury."
On November 18, 2019, the WCB advised the worker's representative that they had approved a further four weeks of physiotherapy treatment. By letter dated November 25, 2019, the WCB advised the worker his entitlement to wage loss would continue to December 23, 2019, based on a four-week time frame for recovery from a diagnostic scope procedure.
On December 5, 2019, the worker attended a follow-up appointment with his treating orthopedic surgeon. In a report to the worker's treating family physician, the surgeon noted that the worker's right knee was now causing him hip and back issues. The surgeon observed the worker had about a 0-30 degree range of motion of the knee and his "…right lower extremity is quite discolored and cool compared to his ipsilateral side." The surgeon provided a diagnosis of complex regional pain syndrome type 1, and noted he had referred the worker to a chronic pain specialist for further treatment. The surgeon also recommended continued aggressive physiotherapy.
On December 20, 2019, the WCB provided the worker with a revised decision letter indicating his recovery time had been adjusted from four to six weeks, and his entitlement to physiotherapy treatment and wage loss benefits would end on January 7, 2020. On January 10, 2020, the WCB orthopedic consultant reviewed the worker's file and recommended that in light of the discordance between the "…relatively innocuous nature of the May 15, 2019 workplace incident…" and the nature of the worker's presentation, including the development of what appeared to be new clinical findings, and the elusive nature of the etiology underlying the symptoms attributable to complex regional pain syndrome, the worker should attend a call-in examination to clarify his symptoms and diagnosis. On January 10, 2020, the WCB provided the worker with an updated decision letter indicating his entitlement to physiotherapy treatment and wage loss benefits was extended to January 24, 2020.
On January 29, 2020, the WCB received a January 16, 2020 report from the worker's treating orthopedic surgeon, who noted that clinically the worker was doing no better and was to be seen by a chronic pain specialist on February 24, 2020. The surgeon further noted the worker's reference to a request by the WCB to attend for a call-in examination, and indicated that due to the worker's reports of pain and his symptoms, he did not believe the worker could travel to attend the examination. In a discussion with the worker on January 30, 2020, the WCB advised they were continuing to request further medical information to determine the next steps for the worker. The worker advised he was experiencing panic attacks and the WCB provided the worker with a list of resources.
On February 3, 2020, the worker advised the WCB that his appointment with the pain management clinic had been changed to March 30, 2020. On February 21, 2020, the worker's treating physiotherapist provided the WCB with a discharge report, based on their January 31, 2020 examination of the worker. The physiotherapist noted the worker had a lot of pain, stiffness and difficulty walking and performing any activities of daily living. The physiotherapist noted decreased range of motion, walking, sitting and standing tolerance, along with partial weight bearing, knee extended when sitting, and wasting and skin color changes around the worker's knee. The physiotherapist noted the worker's recovery was not satisfactory due to the complex regional pain syndrome diagnosis.
On March 13, 2020, the WCB advised the worker that an Independent Medical Examination ("IME") had been arranged for May 9, 2020, and on April 2, 2020, the worker confirmed he would attend the examination. On April 16, 2020, the WCB was advised that the date for the IME needed to change due to the COVID-19 pandemic, and the IME was rescheduled for August 1, 2020. On June 15, 2020, the worker requested the WCB conduct a paper review of his file as opposed to the IME and the WCB cancelled the IME. In a letter to the worker's legal representative dated July 6, 2020, the WCB advised that the WCB physical medicine and rehabilitation consultant was proceeding with a paper review of file.
On August 31, 2020, the WCB received a copy of the consultation report from the worker's August 14, 2020 appointment at the pain medicine clinic. The treating chronic pain specialist noted the worker's reporting of pain in his trunk, abdomen, bilateral legs, and bilateral feet as areas of concern, with the right leg and migraine headaches being the most bothersome. The specialist reported the worker endorsed symptoms of pain to the touch, his right lower limb feeling colder, colour change and swelling. The specialist further reported that:
On exam, he looks quite uncomfortable. He is wearing a knee brace and ambulates with a cane. I watched him walk to the exam room and he exhibits an antalgic gait. I can appreciate hyperalgesia and allodynia. The affected limb does have a reddish discoloration. He would not tolerate passive range of motion, but demonstrated active range of motion was restricted because of pain.
The specialist provided a diagnosis of complex regional pain syndrome and prescribed pain medications, noting the next steps would be intravenous medications.
On September 17, 2020, the WCB physical medicine consultant who was conducting the paper review of the worker's file noted that completion of the review was initially delayed pending receipt of the report from the worker's pain medicine clinic appointment and would now be deferred pending consideration of a virtual assessment by WCB medical consultants. On November 4, 2020, the WCB advised the worker that the virtual call-in examination would take place on November 18, 2020 at a third party physiotherapy clinic in the worker's home province.
The virtual video conference call-in examination was conducted by the WCB physical medicine consultant and the WCB orthopedic consultant from the WCB's premises in Winnipeg. The worker attended at the physiotherapy clinic in his home province, where the examination was facilitated by a licensed physiotherapist and an assistant helped with the video aspect of the assessment.
The WCB medical consultants' notes from the November 18, 2020 virtual call-in examination were placed on the worker's file on December 30, 2020. In their notes, the consultants provided a detailed report of their examination and findings, and concluded:
In summary, [the worker's] current virtual examination presentation is better explainable by other non-specific conditions/situations; disuse, improper cane use in concert with a suboptimal gait pattern and overtight application of the right knee brace. There is no other physical condition or lesion that medically accounts for [the worker's] condition from the time of the May 15, 2019 accident to date.
The WCB medical consultants further opined that the worker currently presented "…in a physical manner that is incompatible with gainful employment. We are not able to patho-physiologically account for same, beyond disuse. As such, it is our opinion that he requires immediate medical assistance aimed at normalizing right lower extremity movement."
On January 12, 2021, the WCB received copies of reports from a second treating chronic pain specialist for the worker's attendances on September 21, October 30, and November 4 and 26, 2020. The September 21, 2020 report recorded the worker's reporting of the mechanism of injury and noted the worker was not working and had developed chronic headaches since the May 15, 2019 accident. The pain specialist provided a diagnosis of Chronic Central Neuropathic Pain/CRPS (complex regional pain syndrome), and recommended medications, along with physical activity and intense physical therapy. The reports following the initial examination indicated similar symptoms of ongoing pain and dysfunction in the worker's right knee.
On February 25, 2021, the WCB physical medicine consultant again reviewed the worker's file. The consultant opined that the prescribed medications "…do not represent evidence based treatment of a right knee contusion or disuse stemming from same." The consultant specifically opined that there was no documentation of a rationale for the use of the intravenous infusions of Ketamine/Lidocaine from the treating pain specialist. In addition, the WCB consultant noted the worker had reported the medications were not relieving his symptoms. On March 1, 2021, the WCB advised the worker that responsibility would not be accepted for IV Ketamine/Lidocaine injections as the medical information on file did not support the medication was having a meaningful impact on the worker's pain and/or function.
On March 11, 2021, the WCB physical medicine consultant and a WCB orthopedic consultant had a virtual conference call with the worker's treating chronic pain specialist. The treating specialist indicated that in their opinion, the worker had a "…focal complex regional pain syndrome" at his knee. Discussion took place regarding the criteria for that diagnosis, along with the treatment received so far by the worker. The treating chronic pain specialist agreed with the opinion of the WCB medical consultants that the worker's presentation of immediate onset of pain symptoms was not a typical presentation of complex regional pain syndrome. The specialist agreed that the worker had not responded or reported any decrease in his symptoms from any treatment modality offered since the May 15, 2019 workplace accident. It was noted that the parties were in agreement that a multi-disciplinary approach would be best for the worker and the chronic pain specialist agreed to formulate a plan to be reviewed by the WCB. On March 31, 2021, the WCB advised the worker that based on the medical information on file, they were unable to accept a diagnosis of complex regional pain syndrome, but had accepted his current compensable injury as a disuse syndrome following an initial diagnosis of a right knee contusion.
On May 11, 2021, the WCB received a copy of the inter-professional care plan developed by the worker's treating chronic pain specialist. The specialist recommended the worker attend sessions with a physiotherapist trained specifically to deal with symptoms of complex regional pain syndrome, along with pharmacologic trials to find a combination of medications for the worker and sessions with a clinical psychologist and/or a psychiatrist. The worker's file was reviewed by the WCB physical medicine consultant on June 15, 2021, and on June 17, 2021, the WCB advised the worker that a treatment plan had been developed involving physiotherapy, psychological and pharmacological treatments overseen by his treating chronic pain specialist. The WCB authorized a further course of physiotherapy over a nine-week period, along with four sessions with a psychiatrist and six additional counselling sessions with a social worker.
On July 13, 2021, a WCB psychiatric consultant reviewed the worker's file, including a March 16, 2021 report from the worker's treating psychiatrist. The consultant opined that the worker's psychological diagnosis was Major Depressive Disorder, as confirmed by the treating psychiatrist's reporting of the worker's reports of depressed mood, reduced interest, poor appetite, poor sleep and feelings of hopelessness, guilt and suicidal ideation. The WCB psychiatric consultant further opined that the diagnosis was likely medically accounted for in relation to the May 15, 2019 workplace accident as the worker related his depression to experiencing pain, which was a result of the disuse syndrome. On July 14, 2021, the WCB advised the worker that the diagnosis of Major Depressive Disorder secondary to disuse syndrome was accepted and treatment was approved.
On July 16, 2021, the worker began a disability/pain management program with a physiotherapy clinic which concluded on September 30, 2021. The treating occupational therapist noted on the discharge report that "At this time the client has made some slight gains from his time in the program but continues to experience an extremely high level of pain and related disfunction (sic). It is likely the client will have to continue to cope with these pain symptoms and address his mental health concerns."
After receiving reports from the worker's treating healthcare providers, the WCB requested the worker's file be reviewed by WCB medical consultants. On December 15, 2021, the worker's file was reviewed by the WCB physical medicine consultant, who opined that the worker reported no benefit from any of the treatments he had received to date, which was "…not consistent with a physical or structural diagnosis. This scenario suggests that further treatment directed at a physical or structural diagnosis, will not likely result in a material improvement." When asked about workplace restrictions related to the worker's compensable diagnosis, the specialist opined that "With no work incident physical or structural diagnosis identified there would be no medical indication for the placement of physical based related work place restrictions."
The worker's file was then reviewed by a WCB psychiatric consultant on January 12, 2022. The consultant agreed with the opinion of the WCB physical medicine consultant and opined that "As long as [the worker] continues to report pain, it is unlikely that any treatment modality would result in a sustained improvement in mental health symptoms or functioning." The consultant further opined that "No workplace restrictions are required in relation to the diagnosis of major depressive disorder at this time."
On January 19, 2022, the worker's WCB case manager noted that they were no longer able to establish loss of earning capacity as related to the workplace injury and received approval under the WCB's Policy 44.30.60 Notice of Change in Benefits or Services to extend the worker's full wage loss benefits for eight weeks, to March 16, 2022, to allow the worker to secure employment or transition to other benefit programs.
On January 20, 2022, the WCB advised the worker that his entitlement to wage loss and medical aid benefits would end as of March 17, 2022 as they were unable to establish his current presentation or symptomatology was causally related to the May 15, 2019 workplace injury. The WCB advised that four additional sessions with a mental health treatment provider would also be approved to assist in transitioning to self-care and community-based services.
On February 2, 2022, the worker's representative requested that Review Office reconsider the WCB's decisions of March 1 and 31, 2021 and January 20, 2022. The representative submitted a detailed chronology and summary of the worker's treatment since the May 15, 2019 workplace accident and disagreed with the WCB's decisions that responsibility would not be accepted for the intravenous Ketamine/Lidocaine injections the worker was receiving (March 1, 2021); that the diagnosis of Complex Regional Pain Syndrome was not accepted (March 31, 2021); and that the worker was not entitled to wage loss benefits after March 17, 2022 (January 20, 2022). The representative argued that all of the worker's treating healthcare providers supported the worker had Complex Regional Pain Syndrome and required further treatment and wage loss benefits for that diagnosis.
On February 8, 2022, Review Office returned the worker's file to the WCB's Compensation Services for further investigation. An additional undated letter of support was received from the worker's treating pain management specialist on February 8, 2022. The letter was reviewed by the WCB physical medicine consultant, who opined on March 25, 2022, that there was no change to the previous medical opinions provided by WCB Healthcare. On March 28, 2022, the WCB advised the worker and his representative that there was no change to the WCB's January 20, 2022 decision.
On March 28, 2022, the worker's representative again requested that Review Office reconsider the WCB's March 28, 2022 decision, along with the three previous WCB decisions referred to in their request for reconsideration received February 2, 2022.
On April 5, 2022, Review Office determined that the diagnosis of Complex Regional Pain Syndrome was not a compensable condition; there was no coverage for intravenous Ketamine/Lidocaine treatment; and there was no entitlement to medical aid and wage loss benefits beyond March 17, 2022. With respect to the diagnosis of Complex Regional Pain Syndrome, Review Office found that the medical evidence provided by the treating healthcare providers did not meet the consensus diagnostic and clinical criteria for that diagnosis, and the diagnosis was therefore not likely accounted for on the basis of the May 15, 2019 workplace accident.
Review Office noted that the accepted diagnoses for the worker were a right knee contusion and subsequent disuse syndrome, and agreed with the opinion of the WCB physical medicine consultant that intravenous Ketamine/Lidocaine treatment did not represent an evidence-based treatment for a right knee contusion or disuse syndrome. Review Office further noted that after a few intravenous treatments, there was no documented sustained improvement in the worker's pain and functional ability to support ongoing approval.
Lastly, Review Office placed weight on the opinions of the WCB's physical medicine and psychiatric consultants and determined that they were unable to account for the worker's current difficulties as being related to the May 15, 2019 workplace accident. Review Office found that there was no basis for any restrictions in relation to the workplace accident or injuries, and the worker no longer had a loss of earning capacity. Review Office also found that the worker had no further need for medical treatment in relation to the compensable injury and there was no entitlement to benefits beyond March 17, 2022.
By application dated April 13, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged for November 2, 2022.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment, following which the panel met further to discuss the case and render its final decision on the issues under appeal.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at the date of the worker's accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
The worker was represented by an advocate, who made an oral presentation at the hearing. The worker provided evidence in response to questions from his advocate, and the worker and his advocate responded to questions from the panel.
The advocate stated that their presentation would be focused on the first issue, being the diagnosis of Complex Regional Pain Syndrome, noting that if that diagnosis was accepted as a compensable injury, entitlement to benefits to treat that injury under the second and third issues would naturally follow.
The worker's position, as outlined by his advocate, was that the evidence supports the worker is suffering from Complex Regional Pain Syndrome as a consequence of the May 15, 2019 workplace injury, and his appeal should be granted.
By way of background, the advocate submitted that the worker suffered a very traumatic injury to his right knee, which has resulted in a pain induced disability and has totally altered and changed his life. In response to questions from the advocate, the worker provided a brief description of his injury on May 15, 2019 and what happened in the days that followed. The worker also provided evidence with respect to the virtual video conference call-in examination with the WCB medical consultants which he attended on November 18, 2020.
The advocate referred the panel to the extensive submission to Review Office dated January 21, 2022 which is on file. The advocate provided an overview of the history of the case, and referred to a summary of the medical reports as outlined in her submission to Review Office, highlighting some of what she considered to be the more significant medical reports on the file. The advocate also read into evidence an undated letter of support from the worker's treating chronic pain specialist which was received by the WCB on February 8, 2022.
The advocate placed significant weight to the report of the two chronic pain specialists, who she described as being "majorly experienced" chronic pain specialists and who have diagnosed that the worker has developed Complex Regional Pain Syndrome as a direct result of his May 2019 work injury.
The advocate submitted that in addition to the treating orthopedic surgeon and treating chronic pain specialist, the worker has been seen by eight other hands-on health care providers in his treatment program, who collectively have confirmed the diagnosis of Complex Regional Pain Syndrome and have provided documented hallmarks of symptoms that the worker has displayed over time and their reasons and rationale for doing so in their reports. It was submitted that there is nothing to suggest that there is any other condition which is reasonably responsible for the development of this condition post injury.
The advocate noted on the other hand that while the WCB medical consultants who conducted the virtual call-in examination of the worker had the benefit of the video conference, the evidence showed that this took place in a tiny room via a cell phone. The advocate noted that the results of that examination as reported by the medical consultants therefore reflected what they saw through a cell phone video camera and the comments by the physiotherapist. The advocate further noted that other details including the worker's demeanour and difficulties at that time were not part of the assessment.
The advocate submitted that none of the medical evidence provided on behalf of the worker was considered or assigned any weight when the WCB made their decisions to deny responsibility for this condition, and no credibility was given to the expertise of the treating healthcare providers. The advocate urged the panel to review all the medical evidence on file and assign a weight to each piece of evidence.
The advocate submitted that the WCB was not willing to entertain or look at the reports that had been submitted by the experts in their field. There had been no assigning of appropriate weight by the WCB in their decisions to the evidence provided on behalf of the worker, and no credibility given to the expertise of the treating healthcare providers. The advocate asked that the panel review all the medical evidence on file and assign a weight to each piece of evidence.
The advocate noted that the WCB accepted that the worker had a traumatic knee injury, described as a contusion, as well as its associated pain, disuse injury and a Major Depressive Disorder which was described as resulting from the pain, but has refused to accept the diagnosis of Complex Regional Pain Syndrome without any real foundation for such a decision.
In conclusion, the advocate submitted that the evidence is overwhelmingly in the worker's favour that the development of Complex Regional Pain Syndrome is a direct sequela of the work injury, and the appeal should be allowed.
The employer did not participate in the appeal.
Issue 1: Whether or not the diagnosis of Complex Regional Pain Syndrome should be accepted as being a consequence of the May 15, 2019 accident.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's diagnosis of Complex Regional Pain Syndrome is causally related to his May 15, 2019 workplace accident or injury. Based on the evidence and submissions that are before us, the panel is unable to make that finding.
The panel acknowledges the worker's reports of ongoing pain and difficulties, but is not satisfied, on a balance or probabilities that the diagnosis of Chronic Regional Pain Syndrome is supported by the available medical evidence in this case.
In arriving at our decision, the panel has reviewed and considered all of the medical evidence on file and as provided in response to requests from the panel following the hearing. While the worker has been seen by a significant number of healthcare providers, the panel notes that the worker did not see many of them for the purpose of identifying a diagnosis and the reports vary and contain limited details with respect to the basis for a diagnosis.
The panel acknowledges there is a fundamental difference in opinion between the WCB's medical advisors and the worker's treating chronic pain specialist, in particular, with respect to whether the worker had developed chronic regional pain syndrome.
The panel notes that at the November 18, 2020 virtual call-in examination, which was conducted by a WCB pain medicine and rehabilitation specialist and a WCB orthopedic consultant, many of the criteria which are considered for such a diagnosis were not satisfied. There was reference to swelling, but there was a question as to what was causing that swelling, given the presence of a brace which the worker was wearing.
It was further noted during the November 18, 2020 virtual call-in examination, that the worker was wearing a fully enclosed Velcro type patellar sleeve support on his right knee, and that "This brace appeared to be tightly synched, to the degree that when the brace was released, there was evidence of skin marking depressions related to where the upper and lower edges of the brace were located." The WCB medical consultants noted that leg swelling was a common finding that was explainable in the worker's case as being related to the brace and disuse.
Following the hearing, the panel wrote to the chronic pain specialist and asked about who prescribed the brace, its purpose and how it was related to the diagnosis of Chronic Regional Pain Syndrome. The specialist indicated in response that he did not know who prescribed this brace. The specialist did not indicate how the brace was related to the worker's diagnosis, only that "Patient (sic) also frequently brace the limb to protect it as to prevent evoked pain from a simple stimulus such as light touch."
The worker indicated at the hearing that the brace was recommended back in the early stages because his knee kept swelling and when he removed the brace his leg would swell up. When asked about this type of swelling, the specialist stated he had observed swelling in the right knee, noting the worker had experienced both intermittent and persistent swelling. He also indicated however that this can be spontaneous and could be due to other factors, including ambulation and weight bearing. Given the lack of any real response to that inquiry, the impact of the brace therefore remains unclear.
The panel notes that in the memorandum to file of the virtual conference call on March 11, 2021, the WCB physical medicine consultant noted that he had indicated to the specialist that from their review, the diagnosis of complex regional pain syndrome did not appear to fit with this condition. The consultant noted that he pointed out the worker reported immediate onset of severe pain that appeared to be beyond that expected for the inciting event, whereas the typical presentation in the literature is of delayed onset of increasing pain symptoms and that the specialist agreed that this was not typical.
The panel further notes that the evidence indicates the worker has not received sustained benefits from the treatments he has received, including treatments that have been described as being the hallmark treatments for Complex Regional Pain Syndrome. It is noted on file that the worker had consistently reported a lack of benefit from all treatments. In his undated letter received February 8, 2022, the treating chronic pain specialist again noted that the worker "had not responded favourably to treatment." The worker confirmed at the hearing that he had not found relief from anything.
Evidence on file further indicates that the worker was referred to the second treating pain clinic physician for an IV Ketamine/Lidocaine infusion for Chronic Regional Pain Syndrome, but the worker had consistently reported no benefit from the infusions. In the notes from the March 11, 2021 conference call between the WCB medical consultants and the treating chronic pain specialist, it was noted that the specialist had indicated that they told the worker that if there was no pain response with a last treatment, this form of treatment would not be pursued further.
After the hearing, the panel also asked the treating chronic pain specialist for his opinion as to why the various medications had not provided relief. The specialist's response was that "while the worker has failed to respond to several pharmoacotherapies, this does not imply failure to all pharmacotherapies" and that the worker had noted benefit using CBD oil which "must be taken at face value and respected as a therapeutic success." The panel notes, however, that the reference to the CBD oil was to try to help him sleep.
The panel accepts that treatment or therapy for Complex Regional Pain Syndrome can be challenging, and that results will vary among individuals. The panel would nevertheless have expected the worker to have experienced some relief from at least some of the large number and variety of treatments he received over the course of the claim.
Based on the foregoing, the panel finds, on a balance of probabilities, that the diagnosis of Chronic Regional Pain Syndrome is not causally related to the worker's May 15, 2019 workplace accident or injury. The panel therefore finds the diagnosis of Complex Regional Pain Syndrome should not be accepted as being a consequence of the May 15, 2019 accident.
The worker's appeal on this issue is dismissed.
Issue 2: Whether or not responsibility should be accepted for intravenous Ketamine/Lidocaine treatment.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the intravenous Ketamine/Lidocaine treatment is necessary to cure and provide relief from the injury resulting from the worker's May 15, 2019 accident. The panel is unable to make that finding for the reasons that follow.
Given our findings on Issue #1 above, that the diagnosis of Complex Regional Pain Syndrome is not a consequence of the May 15, 2019 accident, the panel is unable to find that such a treatment should be accepted for that condition. Ketamine/Lidocaine treatment is necessary to cure or provide relief from that condition.
The panel notes that there is no evidence that intravenous Ketamine/Lidocaine treatment would be required of appropriate treatment for any other ongoing symptoms.
The worker's appeal on this issue is dismissed.
Issue 3: Whether or not the worker is entitled to wage loss and medical aid benefits after March 17, 2022.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond March 17, 2022 as a result of his May 15, 2019 accident. The panel is unable to make that finding for the reasons that follow.
Given our findings on Issue #1 above, that the diagnosis of Complex Regional Pain Syndrome is not a consequence of the May 15, 2019 accident, the panel is similarly unable to find that the worker suffered a loss of earning capacity or required medical aid beyond March 17, 2022 as a result of his May 15, 2019 accident.
While the worker's advocate indicated at the beginning of her presentation that she was focusing her presentation on the issue of chronic regional pain syndrome, she further noted in closing that if the panel found that the evidence indicated the worker continued to suffer from the effects of his injury, such that he could not work or required further medical aid as a result of his compensable injury or diagnosis, then the worker would be entitled to further wage loss and medical aid benefits.
The panel is satisfied, however, based on the limited evidence that is available at this time and on a balance of probabilities, that the clinical evidence in its totality does not support that the worker suffered a loss of earning capacity or required further medical aid as a result of his May 15, 2019 accident after March 17, 2022.
The panel therefore finds that the worker is not entitled to wage loss and medical aid benefits after March 17, 2022.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2023