WORKERS COMPENSATION APPEAL TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER CASE ID # [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #178 Appellant Maureen Peters, Worker Advisor representing the Worker Respondent Brian L. Waddell, Q.C., Solicitor representing the Workers Compensation Board Place and Date of Hearing March 21, 2013 Loyalist Lakeview Resort 195 Harbour Drive Summerside, Prince Edward Island Date of Decision April 29, 2013

2 WCAT Decision #178 Page 1 of This is an appeal by the Worker of a decision of the Internal Reconsideration Officer (the IRO ), # [personal information], dated October 10, 2012, which upheld a decision of the Workers Compensation Board (the Board ) to close the Worker s claim effective August 12, FACTS, EVIDENCE AND BACKGROUND 2. On June 8, 2011 the Appellant, a laborer, while at work, slipped on wet grass and fell with outstretched hands on pavement (road), injuring both elbows. 3. Following the incident, the Appellant was seen by Dr. Steven Macneill at the Prince County Hospital Emergency Department and following assessment and x-rays was diagnosed with bilateral elbow injury. [Appellant s Appeal Record Tabs 3 and 4] 4. In the Emergency Department s notes, Dr. Macneill noted: General: Alert. No acute distress. Anxious. Sitting holding arms in a neutral position on his lap. Skin: Warm. Intact. No bruise or abrasion. Musculoskeletal: Refuses to do active ROM secondary to pain but observed to spontaneously move elbows during conversation as he animated his discussion. Passive ROM was limited at extremes by pain, especially with internal rotation bilaterally, no bony tenderness over the epicondyles or olecrenon bilaterally. Clinically appears to be a joint effusion bilaterally. Re-examination/Re-evaluation: Time 2011-June-08, Assessment x-rays of both elbows don t show any obvious fracture but looks like bilateral effusions. Could be soft tissue but statistically possible to be occult radial head fracture. Treatment is conservative. Patient just filled a prescription for Advil 600 mg tabs that he uses prn for gout. Also has a refill on his codeine 30mg tabs that he uses for arthritis prn. Will

3 WCAT Decision #178 Page 2 of 21 suggest he use these, modify activities and follow up with FD and here prn. X-ray report stated: RIGHT ELBOW: On the right there is joint effusion and there is an undisplaced fracture involving the radial head. The proximal ulna and distal humerus are intact. LEFT ELBOW: There is no significant joint effusion but there is ossification or calcification within the anterior joint capsule. There is no definite fracture or dislocation. 5. Dr. MacNeill provided the Appellant with a note stating Off work for three days then modified activities for two weeks- no heavy or repetitive use of the arms including shovelling, pushing, pulling, lifting greater than 15 lbs. 6. On June 16, 2011, the Board received a Worker s Report Form 6 and an Employer s Report Form 7 reporting the accident and indicating the Worker had returned to work on June 13, 2011, to modified duties. [Appellant s Appeal Record Tabs 5 and 6] 7. The Board advised the Appellant by letter dated June 21, 2011, that the claim was approved for bilateral elbow strain, subsequently updated to traumatic tendonitis, and that he would be entitled to temporary wage loss (TWL) benefits and medical aid. [Appellant s Appeal Record Tab 9] 8. On June 22, 28, and July 13, 2011 the Appellant was assessed by his family physician, Dr. Paul Kelly, and diagnosed with forearm tendonitis. 9. On June 29, 2011, the Board approved 12 physiotherapy treatments commencing on July 5, This approval was extended on numerous occasions until the Appellant was discharged from physiotherapy on

4 WCAT Decision #178 Page 3 of 21 December 19, [Appellant s Appeal Record Tabs 13, 22, 39, 45, 52 and 57] 10. On August 17, 2011, Dr. Kelly referred the Appellant to Dr. Allen Profitt, an orthopedic surgeon. 11. Dr. Kelly s letter to Dr. Profitt dated August 17, 2011, says in part: This gentleman had a fall at work in June and had a significant amount of pain in the tendons of his hands and forearm. He was not significantly tender over his radial head but was tender over his medial epicondyle at that time. X-rays of his forearms failed to reveal any abnormality to me but the report did come back showing suggestion of a radial head fracture on the right side. Unfortunately, I did not see this report and treated him mainly as tendinitis. He has had extensive physiotherapy which had made some improvement only. He suffers from underlying gout as well. I have asked for repeat x-rays of both forearms and do note on examination today he is tender over his radial head bilaterally, worse on the right than left. He is also tender over his medial epicondyle, more on the right than left. I suspect the main injury here is a radial head fracture with secondary tendinitis on the right side and probably simply tendinitis on the left side. Certainly this is an unusual case in the amount of pain that he is having but I am unclear as to why he is still having pain in his radial head this degree of time after his injury and why he is still having tendinitis pain. [Appellant s Appeal Record Tab 24] 12. On August 24, 2011, Dr. Kelly wrote to Dr. Steven O Brien, the Board s Medical Advisor. The letter says in part:

5 WCAT Decision #178 Page 4 of 21 Appellant is a gentleman who was first seen by me around 8 June 2011 following a fall at work in which he slipped and took all of his weigh on both wrists. He seemed to have a tendinitis when first seen and was not particularly tender over his radial heads. X-rays taken by Dr. Steven MacNeill in emergency failed to reveal any abnormality to me or him at the time but the report came across the desk a few weeks later that he had a fractured radial head. I somehow missed this report and explained both these situations to the patient today. The concerns at the present time are ongoing pain out of keeping with injury to tendons and how the pain has spread from his fingers and forearms into his elbow and shoulder areas. He is markedly tender over his AC joint on the right and left side and markedly tender over his biceps tendon. He has a past history of gout and some fatty liver giving him mild liver abnormalities. From a social point of view, [personal information]. Appellant is a seasonal employee and has been on compensation since early June but his symptoms are getting worse. I have offered him counseling service but he is saying no thanks to same. He is continuing with physiotherapy. I have started some investigation to rule out connective tissue conditions and myeloma and a few other unusual problems and I think he would benefit from the services of Dr. Pang from the point of view of helping him control his pain. I plan to see him on a regular basis every two weeks or so and we will pursue the option of counseling at each visit. I have added Trazodone to his Meloxicam and a PPI. I am hoping it will alleviate some of his discomfort and give him better sleep. I will keep you informed of the course of his condition and I appreciate you getting Dr. Profitt involved but, again, I think he would benefit from Dr. Pang s services. [Appellant s Appeal Record Tab 33] 13. The Appellant was seen by Dr. Allen Profitt on September 6, October 3, and November 9, Each visit Dr. Profitt reports the Appellant is improving and on November 9, 2011 writes, I feel at this point he should start an ease

6 WCAT Decision #178 Page 5 of 21 back program to work on the first of December. [Appellant s Appeal Record Tab 35, 43 and 47] 14. However, on November 16, 2011, Dr. Profitt wrote the Board to advise them the Appellant called his office stating he was having too much pain to be able to return to work and suggested the Board meet with the Appellant to discuss his options. [Appellant s Appeal Record Tab 51] 15. On December 16, 2011, Dr. Kelly spoke with the Board s Medical Advisor, Dr. O Brien, to discuss the Appellant s difficulty in obtaining increased functionality and what other avenues might be available. [Appellant s Appeal Record Tab 56] 16. On January 12, 2012, in response to a request from the Case Coordinator for a medical opinion, Dr. O Brien opined that because the Appellant s undisplaced fracture of the right radial head has long since healed and because, his main ongoing problem is persistent pain, then a referral to the Atlantic Pain Clinic in Moncton, NB, would be appropriate. [Appellant s Appeal Record Tab 58] 17. On January 14, 2012, Dr. Kelly wrote to Dr. O Brien saying This gentleman was seen once again with chronic pain in both arms. I think he merits an assessment by a pain clinic. I think he needs a complete assessment by a pain clinic as I suspect that there are underlying factors leading to his pain syndrome. [Appellant s Appeal Record Tab 60] 18. On March 26, 2012, the Appellant was admitted to the Multidisciplinary Active Function Rehabilitation Program (MAFRP) at the Atlantic Pain Clinic for a seven week program, during which he participated in a Functional Capacity Evaluation (FCE) on May 15 and 16, [Appellant s Appeal Record Tab 68, 69, 70 and 73]

7 WCAT Decision #178 Page 6 of The Appellant was discharged from the MAFRP on May 18, By letter dated July 17, 2012, the Appellant was advised his claim would close effective August 12, The Case Worker indicated that he could find no objective medical evidence linking the Appellant s ongoing symptoms to the workplace injury which initiated the claim. The Appellant was provided four weeks of temporary wage loss benefits in lieu of having no employment to return to. [Appeal Record Tab 79] 21. The Case Worker stated in part: Your Functional Capacity Evaluation completed on May th th 15 and 16, 2012, revealed a lack of effort and number of inconsistencies. Therefore, minimal value could be placed on its results when determining actual functional ability. The Atlantic Pain Clinic did a complete history, a physical review and monitored your treatment throughout a very comprehensive eight week pain management program. The May 17, 2012, report from Dr. Evans, Anesthesiologist with a sub-specialty in pain management concluded, I can find no physiological substrates for this man s pain. In his closing remarks Dr. Evans wrote, Once again, I am left with no explanation as to this man s symptoms. As previously, again today, I cannot find a physiological basis for them. Dr. Evans reviewed his findings with your family doctor, Dr. Kelly, who did agree with Dr. Evans s overall assessment. The Disability Duration Guidelines indicates that three months is the suggested expected healing time for a soft tissue injury. In reviewing and weighing your subjective medical complaints with the objective medical evidence on your file, I am placing more weight on the objective medical evidence of the reports of various specialists that examined you and can find no physiological explanation for your pain. There is no objective medical evidence linking your ongoing self-reporting of symptoms to the workplace injury for your elbows. Therefore, it is my determination that your ongoing symptoms can not be

8 WCAT Decision #178 Page 7 of 21 reasonably related to the workplace incident of June 8, The Appellant filed a Request for Reconsideration on August 6, 2012, which reads in part: Although the obvious injury has since healed... the after affects from this such injury has yet to be found nor diagnosed. I, to this date, still remain in considerable pain, which is forcing me from returning or applying for any type of occupation at this time, let alone, the one I was employed with, prior to injury. 23. The IRO issued her decision on October 10, 2012, upholding the July 17, 2012, decision to close the Appellant s file. She found the objective evidence of the various treating physicians and health care providers had more weight than the subjective reports of pain from the Appellant. She concluded that there was insufficient evidence to support that the Appellant s ongoing symptoms were related to the workplace injury. [Appeal Record Tab 1] 24. The Appellant subsequently filed a Notice of Appeal with the Workers Compensation Appeal Tribunal dated November 8, ISSUE 25. Was the decision to close the Appellant s claim effective August 12, 2012, appropriate? ANAYLSIS/DECISION 26. The Workers Compensation Appeal Tribunal is created pursuant to provisions of the Workers Compensation Act, R.S. P.E.I. 1988, Cap. W-7.1 as amended (the Act ). Section 56(17) of the Act states that this Tribunal is bound by the Act and its regulations as well as the policies of the Board.

9 WCAT Decision #178 Page 8 of The Appellant argued that pursuant to section 6(1) of the Act compensation shall be paid to a worker who suffers personal injury from an accident arising out of and in the course of employment. Section 6(2) refers more specifically to wage loss benefits where it states: (2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident in respect of any working day after the day of accident. 28. Section 40 of the Act states that wage loss benefits are payable where injury to a worker results in the loss of earning capacity. There is no dispute the Appellant suffered a workplace accident and entitled to wage loss benefits. However, the issue is whether the Appellant s loss of earning capacity has ended. Section 40(2) outlines when wage loss benefits are payable. It reads: (2) Subject to subsection (3), wage loss benefits are payable until the earlier of (a) the date the Board determines that the loss of earning capacity has ended or no longer results from the injury; and (b) the date the worker reaches the age of 65 years. 29. The Appellant argued that contrary to the IRO s comments, the evidence does support he is unable to return to work due to the continued effects of the workplace injury. 30. The Appellant points to the Function Capacity Evaluation conducted on May 15 and 16, 2012, at the Atlantic Pain Clinic. The Summary of Findings indicates: the Appellant did not demonstrate the ability to meet the physical demands of lifting, carrying, pushing, pulling, constant standing, constant reaching, raking and constant grasping.

10 WCAT Decision #178 Page 9 of 21 The Appellant further argued that while the FCE findings indicated the Appellant can perform full days of work activities at the sedentary level of physical demands, it is clear his job duties are not of a sedentary level. 31. Furthermore, neither Dr. Kelly, his family physician, nor Dr. Profitt, Orthopaedic Surgeon, cleared him to return to work. In fact, the Appellant argued, Dr. Profitt was hesitant regarding returning to work as pointed out in his reports. a) On October 3, 2011, he writes, He is doing considerably better. He is out of his splints. Physiotherapy is helping him. I am hopeful that in another 4-6 weeks he will be able to return to work although his job is physical. b) On November 9, 2011, he writes, He seems to be improving but he still has ongoing symptoms. I feel at this point he should start an ease back program to work on the first of December. He should continue with physiotherapy for the remainder of November. Hopefully he is successful. c) On November 16, 2011, Dr. Profitt writes, stating he was having too much pain to be able to return to work. It would not appear that there are any surgical lesions here. I just therefore would suggest the board sits down with him and discuss his options as it appears that he will not be able to return to work. 32. The Appellant further argued that at the conclusion of a eight week program at the MAFRP, Dr. R.T. Evans, was unable to identify a physiological basis for the Appellant s ongoing symptoms. It was argued that the Appellant should not be disqualified simply because a basis for his ongoing pain could not be

11 WCAT Decision #178 Page 10 of 21 found. Rather, the Tribunal was directed to Board Policy POL-35 Chronic Pain for guidance. 33. At paragraph 2, the Policy defines chronic pain as: Chronic pain means pain that:. continues beyond the normal healing time for the type of personal injury that precipitated, triggered or otherwise predated the pain; and. does not apply to cases of persistent lingering pain due to discernable organic diagnosis or a psychiatric condition. 34. The Appellant argued that because the Pain Clinic could not identify a physiological basis for the Appellant s ongoing symptoms and decreased functional abilities, it should not automatically disqualify him for further compensation. Rather, the very definition of chronic pain is that which has no discernable organic diagnosis. In this case, it was argued, the Appellant is suffering from chronic pain which is a complication of his compensable injury, and which resulted in a continued loss of earning capacity. 35. Finally, the Appellant argued when the totality of the evidence is considered and weighed, it supports the conclusion that his loss of earning capacity continued beyond August 12, 2012, and pursuant to Board Policy POL-68 Weighing of Evidence, the claim should be reopened. 36. The Respondent on the other hand, argued there is insufficient evidence to find that the Appellant s alleged ongoing pain is related to the workplace injury which initiated the claim. 37. In fact, the Respondent argued the reports from treating professionals would suggest the Appellant was less than truthful about his injury and associated pain.

12 WCAT Decision #178 Page 11 of The Respondent points to the ER report of June 8, 2011, which reads, Refuses to do active ROM secondary to pain but observed to spontaneously move elbows during conversation as he animated his discussion. 39. Also, Dr. Evans initial report dated March 26, 2012, reads in part: I assessed [Appellant] in interdisciplinary pain clinic today on referral from Mr. [sic] Kelly. Prior to assessing [Appellant] clinically, I had the opportunity to carefully review what appears to be a complete medical and paramedical file on this gentleman dating back over the past 36 weeks since original injury on June 8, Upon careful review of the file and upon review of [Appellant] clinically, it is apparent that this man presents with complex chronic pain in the full biopsychosocial definition of that term. As such, I will present his chronic pain assessment today along the lines of the four principle axes of the biopsychosocial model of chronic pain-namely, nociceptive features, psychoaffective features, coping features, and psychosocial features. Nociceptive/Medical Features: [Appellant s] pain presentation is perplexing to say the least.... this man sustained, as documented in the medical file, a simple slip and fall onto his outstretched arms 36 weeks ago. He did sustain a non-displaced fracture at the base of the right radial head that was initially missed but, being non-displaced really didn t require definitive treatment. On clinical evaluation, today, [Appellant] was very difficult to assess. He was a rambling and tangential historian. So much so that I did actually wonder about his thought process, though not his thought content. We had considerable difficulty today getting a clear description from [Appellant] as to the distribution and intensity of his pain.

13 WCAT Decision #178 Page 12 of 21 [Appellant s] candor with respect to his past health is most concerning. As part of the file made available for review, we were privy to [Appellant s] family physician and medical record dating to Therein it is clearly documented that this man had significant problems with chronic bilateral foot pain and atypical gout. With that, the file is clear that [Appellant] was seeking Tylenol 3 for pain both from Dr. Kelly and from Dr. Al-Salih. This on a number of occasions. I also note that on the date of injury, this man was taking Codeine 30mg from Dr. Kelly at the time he was seen in the emergency room. On direct questioning, [Appellant] would have had us believe today that he never had a narcotic analgesic, either Tylenol 3 or Codeine which were named specifically by me in advance of the current injury. To quote [Appellant] he told me, he never touched them. This either Tylenol 3 or Codeine. He then backtracked a little later to say that he might have had the odd one for headache. [Appellant] certainly did not give a history in this regard that was anywhere near concordant with the medical record documentation. Further, [Appellant] would have had us believe that apart from chronic foot pain and gout, which did not require narcotic analgesics according to him, he had no problems with long-term pain prior to the accident in question. Again the medical record belies this. This man was x-rayed for right shoulder pain in 2010 and again specifically denied any problems with his shoulder, arms or hands previously. I really did have the sense in taking this man s past history that he was not forthcoming with respect to the magnitude and nature of his pain difficulties previously. Indeed he told us that over his whole lifetime he never got hurt or injured. With respect to his Tylenol 3 usage in the past, I thought he was in fact rather misleading with respect to his observation that he was trying to give us as much information as possible. The foregoing is worthy of mention only in the sense that in a chronic pain evaluation in the setting of atypical and rather diffuse pain of this type, we are left to rely largely on an accurate history of pain and previous symptoms from the patient. As just outlined, I really have reason to be concerned about the accuracy of this man s history as

14 WCAT Decision #178 Page 13 of 21 given to us today. Quite clearly he had right shoulder difficulties in advance of the accident in question. Quite clearly he had had sufficient difficulties with his feet to at least request and at times receive Tylenol 3 and/or Codeine from his family physician. Indeed, there seems to be a pattern of Tylenol 3 seeking across physicians well in advance of the current claim. As such, I really do feel that emphasis be placed more on this man s objective clinical findings than on his history, though his history will not be discounted completely. During history taking, this man s gesturing with his upper extremities was entirely normal. There was absolutely no pain behavior associated with gesturing with either the right or left hand. There was no paucity of movement at either the right or left upper extremity. This man was able to gesture freely with good velocity. He was able to stretch in his chair, arch his back and place his hands alternately behind his head without any difficulty or pain behavior. However, when we proceeded to directed examination, pain behaviors increased rather notably and I would say in a non-physiological fashion. Nociceptive Summary Impression: I cannot posit a physiological explanation for this man s diffuse shoulder, arm and hand symptoms. The presence of distractibility and my concerns about the possible absence of candor with respect to this man s history giving leads me to be very concerned that in fact this may not be a physiological presentation. Based on what I saw today, there is absolutely no medical contraindication in my view, nor the need for any restriction, with respect to [Appellant] returning to work in his usual fashion.

15 WCAT Decision #178 Page 14 of 21 Psychoaffective Features: [Appellant] gave an unremarkable developmental history. Having said that, I note fairly early onset problems with alcohol. As you know, there is often psychoaffective comorbidity in substance abusers. Nevertheless, it was [Appellant s] history today that he has had no problems with his emotions over his lifetime up until June of 2011 I also wondered about this man s thought process given his rambling and tangential history giving. The file is quite clear that [Appellant] has been under stress following from the failure of his marriage [personal information]. Again in the face of a history of absolutely no interpersonal difficulties nor of any psychoaffective difficulties over his lifetime, [Appellant] was, rather unusually, charged with [personal information]. All of the foregoing would suggest to me that there may have been problems prior to July but this is not [Appellant s] history... The foregoing seems to me to be ripe for the potential for more going on here on a personality and psychoaffective basis that [Appellant] is giving us history to. I am concerned in this regard given the absence of candor described above with respect to previous pain difficulties and narcotic seeking. Coping Features: I note from the file that on the date of injury, in the emergency room, there was an observation of rather marked anxiety. The emergency physician noted that this man was very anxious and unable to bend his arms. However, I also note that there was evidence of the distractibility that we saw today even on the day of injury, in the emergency room. I note that this man refused to do active range of motion due to pain. However, the emergency room then observed him to be moving his elbows during conversation. This is precisely the sort of thing that we saw today with respect to the discordance between arm and shoulder functionality during history taking versus the directed exam.

16 WCAT Decision #178 Page 15 of 21 Thereafter in the file, it is clear that this man s range of motion was very slow to recover. He seemed to rely on prescribed carpal tunnel splints for an unreasonably long period of time until discontinued by Dr. Profitt. Further, despite full active range of motion even on directed examination today, [Appellant] has not returned to work in any fashion whatsoever since the date of injury. Indeed even after Dr. Profitt felt there was sufficient improvement to warrant an ease back to work, [Appellant][ called Dr. Profitt s office to advise him that he had too much pain to make a return to work. Thus this is either poor coping or gamesmanship. Thus, this man s coping style is very difficult to gauge. My sense of him today is that his difficulties are more volitional than they are maladaptive coping. Psychosocial Features: [Appellant] has a Grade 10 education. He has been out in the laboring workforce since leaving school. It was difficult to gauge his work history. However, I clearly note that his work history for the last ten years has been 14 weeks of seasonal work with [Employer]. [Appellant s] conception of this was interesting to say the least. He felt that it was sufficient for him to work 14 weeks then go two months without money so as to receive employment insurance for the rest of the year. He observed that this was no different than any of the hockey players. I think this is a clear statement of entitlement and I did wonder given all of the foregoing today how much of this man s current rather amorphous symptom reporting was in fact volitional and entitlement related. The foregoing is certainly a strong statement but, as above, I could find no physiological reason on close examination for this man s pain distribution nor his pain reporting nor for his reporting of disability due to his symptoms. I also note that, as above, this man was less than candid with us with respect to elements of his history. To be sure, this man has been under marked psychosocial stress from about July of He told us today that he

17 WCAT Decision #178 Page 16 of 21 had no problems [personal information]. As such, and again given the atypical and rather non-physiological presentation here, one wonders whether this man s symptom reporting is either an issue of primary gain in terms of face-saving and sick role behavior or if it is in fact a secondary gain issue to maintain some form of yearround benefit in the absence of shared income with his spouse. The foregoing is obviously supposition but I do think it has to be considered given that the pain presentation and candor of the description of the pain presentation was really quite non-physiologic and not at all forthcoming today. As such, it should be considered that this may be entirely a psychosocial as opposed to a physiological pain presentation. Given the quite atypical presentation we were faced with today, and given the unusual pain assessment conclusions that have resulted, I did contact Dr. Kelly directly today to review all of this with him. Dr. Kelly s sense was that there may have been less narcotic seeking than the file suggests. Otherwise, he expressed to me that he was largely in concurrence with the evaluation as dictated above. As such, we will attempt to help [Appellant] on the significant residual physical capacity that he retains. We will try to help him cope with whatever residual symptoms he perceives and we will definitely try to encourage him back to at least the seasonal employment he was capable of before all of this started. 40. Dr. Evans continued with similar observations in his Midway Assessment dated April 20, 2012, where he writes: While this man s attendance has been entirely satisfactory and he professes to be doing everything on his behalf to learn about chronic pain and recovery, his objective performance seems to belie that. By that I mean to say, [Appellant] once again presented in my office today in quite a non-physiological fashion. Despite a report

18 WCAT Decision #178 Page 17 of 21 of ongoing very poor sleep, he looked very well, looked refreshed, and was quite upbeat and animated. He did not look at all drawn or tired nor did he complain at all of sleep difficulties without prompting. Further, despite three weeks of observation by the treatment team wherein multi-location and quite variable pain reporting has been noted day to day [Appellant] was able to stand for physical examination without any difficulties. Further he was again today able to sit and lounge in a soft chair here in my office without any difficulties. Again while distracted giving history, his gesturing and positioning of his arms, shoulders, hands and neck was entirely pain-free in my opinion. Thus, again today, I have no physiological basis by which to explain [Appellant s] pain reporting. He certainly does not have complex regional pain or any other occult medical illness that I can objectify. With the inconsistencies and distractibility described above, I am very concerned that this presentation may be entirely psychosocially based. Further, with the discrepancies in physical performance described above, I am not convinced that, through he would profess otherwise, [Appellant] is putting forth best effort on his own behalf. With respect to disability, I really cannot find any objective whole-person physical impairments here. As above, I am very concerned in fact that this presentation is not physiological. I remain very concerned by this man s apparent lack of candor on initial assessment and I have now had further concerning information come across my desk in that regard. Thus, with the potential for secondary gain fairly transparent, I think the bulk of our attention should be focused on objective physical findings as opposed to this man s reporting of symptoms or reporting of functioning. In my opinion [Appellant] retains essentially normal level of physical function. His pain and symptom reporting, apart from his gout, is simply that, symptom reporting. I find nothing that requires a medical restriction or permanent impairment rating here. I think the best and fairest thing that we can offer [Appellant] is to proceed to a functional capacities evaluation at the end of our involvement. If that is valid and well done, [Appellant]

19 WCAT Decision #178 Page 18 of 21 would then be, in my opinion, expected to return to the laboring workforce at the level identified through the FCE process. If [Appellant s] FCE is invalid and inconsistent, my opinion would be that that was probably volitional and deliberate. 41. In the Discharge Assessment dated May 17, 2012, Dr. Evans outlined many of the same concerns stated previously. He writes, As at first follow-up this man s second half of care with us has been characterized by ongoing reporting of multilocation pain that varies from day to day and does seem to lack clinical consistency. Again on examination today, I can find no physiological substrates for this man s pain. [Appellant] certainly has functional range of motion at the shoulders, neck and lumbar spine. Once again, I am left with no explanation as to this man s symptoms. As previously, again today, I cannot find a physiological basis for them. I can find no evidence for systemic gout nor is there any evidence of significant renal failure here sufficient to cause somatic symptoms. There does not appear to be comorbid depression or anxiety. Thus we are again left with symptom reporting and significant residual physical functionality. 42. The Respondent argued further that Dr. Evans reports leaves little doubt as to his opinion on the Appellant s claim of ongoing pain and disability due to his symptoms. 43. The Respondent also points to the report of the Occupational Therapy Discharge Assessment as similar to those expressed by Dr. Evans. It reads at page 22: Overall, pain reports were present during the assessment and were noted to slightly increase from beginning to end of the evaluation (8/10 beginning the evaluation and 9/10

20 WCAT Decision #178 Page 19 of 21 ending the evaluation). Please note no objective findings were noted to support these high levels of pain reports. 44. And, the Respondent continued, the same theme can be found in the FCE Summary Report where the Certified Kinesiologist writes: Overall test findings, in combination with clinical observations, suggest the presence of variable levels of physical effort on [Appellant s] behalf. Variable physical effort indicates that high effort was provided on some tests while low effort was demonstrated on others. In describing variable effort, this evaluator is by no means implying intent. Rather, it is simply stated that [Appellant] can do more physically at times than was demonstrated during these testing days. Any final vocational or rehabilitation decisions for [Appellant] should be made with this in mind. [Appellant] did not demonstrate (my emphasis) the ability to meet the physical demands of lifting, carrying, pushing, pulling, constant standing, constant reaching, raking and constant grasping. [Appellant] participated in a 2-day functional capacity evaluation and an 8 week multi disciplinary active functional rehabilitation program during which time he demonstrated the ability to at least perform full days of work activities at the Sedentary level of physical demands. [Appellant] also demonstrated the ability to perform weighted activities (lifting/carrying/pushing/pulling) into the Light level up to 25 lbs, but does not meet the full requirement of this level. During the functional capacity evaluation the client spent a significant amount of time completing the intake questionnaires and discussing his history, which resulted in sedentary level activities the morning of day 1. During the afternoon of day 2, due to increasing blood pressure and reports of headaches, the client was offered a 30 minute relaxation period. Regardless of these two events, the client still demonstrated the ability to complete full days of activities as stated in the OT discharge report.

21 WCAT Decision #178 Page 20 of The Respondent points to all of these findings as objective evidence versus the Appellant s subjective view concerning his inability to return to work. 46. This Panel must look to POL-68 Weighing of Evidence as guidance when adjudicating a claim. It defines medical information as either objective or subjective: 2. Objective medical information means information that can be quantified or measured and is usually presented through documentation including clinical notes, physical examinations, admission and discharge summaries, notes on operations, pathologies and lab test reports, and reports on special tests and diagnostic procedures. 3. Subjective medical information means opinions that are not based on information that can be quantified or measured. These opinions are based on intuitions or impressions of a health care provider(s) and are usually presented through symptoms described by the worker that are not supported by objective medical information. 47. Pol-68 also states that the Board, as does WCAT, must assess and weigh all relevant evidence and make decisions based on a balance of probabilities a degree of proof which is more probable than not. 48. After considering the evidence presented and the submissions of both counsels, this Panel finds, on the balance of probabilities that the Worker s loss of earning capacity has ended and that he is not entitled to benefits beyond August 12, This Panel finds the medical opinion and findings of Dr. Evans to be persuasive. He has specialized training in pain management and has come to the conclusion that no objective findings to support the Appellant s reports of pain could be found.

22 WCAT Decision #178 Page 21 of Although the Appellant argued that he had not been cleared to return to work by his physician, it is clear from the addendum in Dr. Evans final report where he writes, I should note also that I was able to reach Dr. Kelly by phone earlier this week. I reviewed my initial assessment and follow-up findings with him. Dr. Kelly has reviewed both of those letters and agreed with my overall assessment and treatment recommendations, that Dr. Kelly was in agreement. 51. Furthermore, in the Physician s Report from the visit of May 23, 2012, Dr. Kelly writes, Suggest see counsellor re RTW (Return To Work). 52. Thus, on the balance of probabilities, this Panel finds that the Board was correct in its decision that the Appellant s ongoing symptoms could not be reasonably related to the workplace incident of June 8, 2011, and that the decision to close the Appellant s claim effective August 12, 2012, was appropriate. 53. Accordingly, the Appellant s appeal is dismissed. th Dated this 29 day of April John L. Ramsay, Q.C., Vice-Chair Workers Compensation Appeal Tribunal Concurred: Gordon Huestis, Worker Representative Fairley Yeo, Employer Representative