WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1421/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1421/15 BEFORE: B. Kalvin : Vice-Chair A.D.G. Purdy : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: July 7, 2015, at Kitchener Oral DATE OF DECISION: September 1, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1914 DECISION UNDER APPEAL: WSIB ARO decision dated June 24, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Zehr, Paralegal The employer did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1421/15 REASONS [1] These are the reasons for decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker from a decision of the Workplace Safety and Insurance Board (the Board ) concerning the worker s entitlement to benefits following a workplace accident. (i) Background [2] The background to this appeal is as follows. The worker is 46 years old. In 1998, she began working for the employer as a receptionist and in the accounting department. Following a maternity leave in 2004, the worker returned to work with the same employer but this time as a general labourer. Her job entailed sorting and gauging small parts, which the employer manufactured. [3] In March 2007, the worker initiated a claim for workers compensation benefits. She claimed that beginning in March 2006 she experienced an onset of pain in her upper extremities which she attributed to the repetitive nature of her duties at work. After reporting her pain to the employer, the worker was placed on modified duties. She performed the modified duties until October 17, 2007, when she laid off. She has not returned to work since. [4] The Board initially allowed the worker s claim, but subsequently reversed its decision. The worker objected to the denial of her claim and her objection was referred to an Appeals Resolution Officer ( ARO ) in the Board s internal Appeals Branch. In a decision dated October 17, 2011, the ARO allowed the worker s objection and ruled that the worker was entitled to benefits for a repetitive strain injury to her hands, wrists, and forearms, with pain radiating into her shoulders. [5] After the ARO s ruling, further determinations were made by the Board s Operations Branch with respect to her benefit claim. In January and February 2012, a Case Manager made several rulings with respect to the worker s benefit claim. In particular, the Case Manager ruled that the worker s repetitive strain injury did not result in a permanent impairment. The Case Manager ruled further that the worker was not entitled to benefits for a chronic pain disability or a psychotraumatic disability. Finally, the Case Manager ruled that the worker stopped working in October 2007 due to chronic pain and depression, and since these were non-compensable conditions, the worker was not entitled to loss-of-earnings ( LOE ) benefits. [6] The worker objected to the Case Manager s rulings and her objection was again referred to an ARO. In a decision dated June 24, 2013, the ARO denied the worker s objection. [7] The worker now appeals to this Tribunal. (ii) Issues [8] Section 126 of the Workplace Safety and Insurance Act (the WSIA ) requires this Tribunal to apply Board policy. Under the Board s policies, entitlement to benefits for a chronic pain disability encompasses the organic and non-organic components of an injury. Accordingly, a worker cannot be entitled to benefits for a chronic pain disability and a psychotraumatic disability as a result of the same injury. Similarly, a worker cannot be entitled to benefits for a chronic pain disability as well as a permanent organic impairment. Accordingly, the issues to be decided on this appeal are as follows: 1. Is the worker entitled to benefits for a chronic pain disability?

3 Page: 2 Decision No. 1421/15 2. If not, is the worker entitled to benefits for a psychotraumatic disability or for a permanent organic impairment? 3. Is the worker entitled to LOE benefits as of October 17, 2007? (iii) Analysis Is the worker entitled to benefits for a chronic pain disability? [9] As noted above, the WSIA requires this Tribunal to apply Board policy. The Board s policy on chronic pain disability is set out in Operational Policy Manual Document No The policy reads, in part, as follows: Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of posttraumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder, see , Psychotraumatic Disability) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy. Eligibility Criteria For a worker to qualify for compensation for CPD the following conditions must exist, and must be supported by all of the indicated evidence. Condition A work-related injury occurred. Chronic pain is caused by the injury. The pain persists 6 or more months beyond the usual healing time of the injury. The degree of pain is inconsistent with organic findings. The chronic pain impairs earning capacity. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical or non-medical evidence of the worker's continuous, consistent, and genuine pain since the time of the injury, AND a medical opinion that the characteristics of the worker's pain (except its persistence and/or its severity) are compatible with the worker's injury, and are such that the physician concludes that the pain resulted from the injury. Medical opinion of the usual healing time of the injury, the worker's pre-accident health status, and the treatments received, AND subjective or objective medical or non-medical evidence of the worker's continuous, consistent and genuine pain for 6 or more months beyond the usual healing time for the injury. Medical opinion which indicates the inconsistency. Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption.

4 Page: 3 Decision No. 1421/15 [10] Having considered the evidence and submissions put forward at the hearing of this appeal, we find that the worker is entitled to benefits for a chronic pain disability. Our reasons for this conclusion are as follows. [11] We agree with the worker s representative that the symptoms and problems pertaining to the worker s shoulders have confused the adjudication of the worker s claim. It is not clear from the ARO s decision of October 17, 2011 whether or not the worker was granted entitlement to benefits for a shoulder injury. In that decision, the ARO concluded entitlement was in order for injuries to the worker s hands, wrists, forearms into her shoulders. It appears to us that the ARO did not regard the worker as having sustained a compensable shoulder injury, but rather an injury to her forearm which caused pain to radiate up to the shoulder region. [12] There are several medical reports on file which diagnose the worker with a chronic pain condition and attribute its onset to the work-related injury to the worker s hands and arms. This condition is variously referred to in the medical reports as a pain disorder, a regional pain syndrome, reflex sympathetic dystrophy ( RSD ), and fibromyalgia. The Board s chronic pain disability policy specifically states that fibromyalgia is a condition that is compensable under the policy. Further, Tribunal case law has generally regarded RSD as a pain condition with a nonorganic component, and therefore one which falls within the scope of the chronic pain disability policy. This jurisprudence is discussed in Decision No. 2206/11 as follows: As Mr. Hosack noted, a number of Tribunal decisions have concluded that sympathetic dystrophy or sympathetic neuropathy fall within the parameters of CPD. For example, in Decision No. 52/09, a Tribunal Panel noted: [32] In more recent decisions, however, the Tribunal has viewed RSD within the parameters of the Board s Chronic Pain Disability policy. In Decision No. 1474/98 the Vice Chair found that the worker suffered RSD in his leg as a result of a workplace accident and that he was entitled to a Non-Economic Loss award. In this decision, the Vice-Chair reviewed in some detail, medical literature describing RSD. The Vice-Chair also acknowledged there may be a difficulty in assessing the Non-Economic Loss for RSD because there was no evidence that the worker had suffered a functional impairment. The Vice-Chair then made the following observation: In the absence of specific AMA Guides for the assessment of [Reflex Sympathetic Dystrophy], it may be that the Board will find it necessary to resort to the Chronic Pain Disability Rating Schedule in order to assess the level of the worker s impairment. The Vice-Chair left the matter to the discretion of the Board. The Vice-Chair also noted that this approach was taken by the panel in Decision No. 1998/98. [33] In Decision No. 1026/04, the Vice-Chair considered a worker s appeal of a 10% NEL award for a right arm impairment due to Reflex Sympathetic Dystrophy. In the absence of AMA Guides for assessing RSD, the Board had assessed the worker under the repetitive strain injury guidelines. The Vice-Chair found that the worker should be assessed under the Board s CPD guidelines. [34] In reaching her decision, the Vice-Chair reviewed Dr. Fleming s Discussion Paper and made the following comments: Dr. Fleming s discussion paper is particularly informative about the nature of reflex sympathetic dystrophy, or, more meaningful he states, complex regional pain syndrome. His description of complex regional pain syndrome bears a striking similarity, in my view, to Chronic Pain Disability as described by the board. Both are complex pain syndromes in which the individual s pain is disproportionate to the initiating cause in severity, duration and distribution.

5 Page: 4 Decision No. 1421/15 [35] On the evidence presented, the Vice-Chair also found that the worker s pain symptoms were similar to those described in the Board s Chronic Pain Disability policy. [36] This analysis was adopted by the Panel in Decision No. 2036/05. In that case, the worker had also been diagnosed with Reflex Sympathetic Dystrophy and had appealed the 15% NEL which she had been awarded. In considering the medical evidence and the worker s description of her symptoms, the Panel found that the worker s disability was predominantly non-organic in nature. Following the reasoning in Decision No. 1026/04, the Panel directed the Board to reassess the worker s disability using the Chronic Pain Disability guidelines. [37] The Panel finds that it is in agreement with the more recent line of cases in the Tribunal s jurisprudence which consistently considers Reflex Sympathetic Dystrophy as a syndrome which is very similar to Chronic Pain Disability and which should be assessed under the Board s Chronic Pain Disability guidelines. In our view, Reflex Sympathetic Dystrophy is an inorganic rather than an organic condition. [38] In our view, the Discussion Paper prepared for the Tribunal by Dr. Fleming also supports this conclusion. The fact that current medical literature recommends that the nomenclature Reflex Sympathetic Dystrophy be replaced with the term Complex Regional Pain Syndrome is, in the view of the Panel, itself indicative of the similarity of the syndromes. More importantly, Dr. Fleming describes the syndrome as a prolonged complex exaggerated painful response to limb injury in the absence of a nerve injury. Dr. Fleming also states that [i]n RSD, the pain is out of all proportion to that expected from the injury and he goes on to state that this factor is essential to the diagnosis. [39] The Panel is of the view that Dr. Fleming s description is similar to the description of Chronic Pain Disability in the Board s Operational Policy Manual Document In that Document, the Board requires evidence of the worker s continuous, consistent and genuine pain for six or more months beyond the usual healing time for the injury and that the degree of pain is inconsistent with organic findings. The Panel therefore finds that both the medical literature that is available to us and the preponderance of Tribunal case law support a conclusion that Reflex Sympathetic Dystrophy is an inorganic condition which should be assessed under the Board s Chronic Pain Disability policy. Similarly, in Decision No. 1542/11, a Tribunal Vice-Chair noted: [2] At the outset of the hearing, I brought Decision No. 52/09 (February 19, 2009) to the attention of the worker and his representative. That decision reviewed a number of Tribunal decisions addressing reflex sympathetic dystrophy (at times also called complex regional pain syndrome) as well as a Tribunal discussion paper on the subject. The decision agreed with a more recent line of cases in Tribunal jurisprudence that consistently considered reflex sympathetic dystrophy as a syndrome, similar to chronic pain disability, and which should be assessed under the Board s chronic pain disability guidelines. The decision further noted that Board policy makes clear that a worker is eligible for a permanent impairment award for either chronic pain disability or an organic impairment, but not for both. The worker in that case did not wish to make a claim for benefits under the chronic pain disability policy. As a result, her appeal for an increase in the quantum of her organic permanent disability award to recognize reflex sympathetic dystrophy was denied. [13] As noted, there are numerous medical reports on file which diagnose the worker with a chronic pain condition, the onset of which is attributed to her compensable workplace injuries. For instance, in a psychological assessment report dated October 10, 2007, Dr. A. Shapiro, a clinical psychologist, stated the following:

6 Page: 5 Decision No. 1421/15 [The worker] presents with certain pre-morbid personality characteristics that often render patients at risk for increased pain, disability and distress a consequence of an injury or pain condition. Patients who present with obsessive/perfectionist characteristics often become quite despondent when pain and associated limitations do not allow themselves to maintain pre-morbid levels of productivity and standards. Dr. Shapiro diagnosed the worker with a variety of conditions including a Pain disorder associated with psychological factors and a general medical condition. Dr. Shapiro recommended treatment which included medication for emotional distress and pain, as well as cognitive behaviour pain management therapy. [14] We understand Dr. Shapiro s report to mean that as a result of personality characteristics, the worker was predisposed to experience abnormal and excessive pain and emotional distress in relation to an organic injury. Dr. Shapiro clearly regards the worker s organic injury, that is, her general medical condition as a factor that, in combination with her personal characteristics, resulted in a chronic pain condition. [15] In November 2007, the worker was assessed by Dr. R. McMurtry at the Board s Upper Limb Specialty Clinic. In a report dated November 14, 1997, Dr. McMurtry diagnosed the worker with, among other things, Regional Pain Syndrome right. Dr. McMurtry clearly attributed the onset of the worker s pain syndrome to her work-related injury. He stated that it is quite clear that the mood disorder and the regional pain syndrome are secondary to the workrelated injury. [16] In December 2007, the worker was assessed by Dr. S. R. Menich, a clinical psychologist. In a report to the Board dated December 15, 2007, Dr. Menich diagnosed the worker with a major depressive episode and a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition. Dr. Menich agreed with Dr. Shapiro that the worker s premorbid personality characteristics were contributing to her condition. Dr. Menich stated further: In summary, I think [the worker] is anxious and depressed with chronic pain, and I think she could benefit from psychological treatment. [17] In February 2010, the worker was referred by her family physician to Dr. D. B. Richardson. In a report dated February 23, 2010, Dr. Richardson stated that while he was not able to produce all symptoms associated with RSD, he felt that the worker did have that condition earlier. While Dr. Richardson could not confirm the specific diagnosis of RSD, it is clear from his report that he regarded the worker as suffering from persistent pain. His recommendations read as follows: Meditation has been shown to be helpful for chronic pain and psychological help may be beneficial. She could go to the Breithaupt Centre for fibromyalgia exercises. [18] In July 2011, the worker was assessed by Dr. A. Z. Farooqi, a psychiatrist. In a report dated July 12, 2011, Dr. Farooqi diagnosed the worker with major depression and chronic pain. Dr. Farooqi recommended counselling and medication. [19] In a report dated February 6, 2012, Dr. S. Upadhye, who specializes in emergency and pain medicine stated that he was treating the worker for chronic pain problems resulting from a repetitive strain injury. Dr. Upadhye prescribed Percocet and Cesamet. More recently, in a report dated June 5, 2015, Dr. Upadhye stated the following: [The worker] suffers from ongoing pain exacerbations of her soft tissue pains and fibromyalgia. She does encounter colour changes and episodic swelling consistent with

7 Page: 6 Decision No. 1421/15 her prior CRPS diagnosis (complex regional pain syndrome; formerly known as reflex sympathetic dystrophy. She is limited in upper extremity strength and range of motion. There have been no changes in her CRPS (formerly RSD) and fibromyalgia (FM) since June Dr. Upadhye reported that the worker was taking Percocet 8 tablets/day for pain control. [20] The worker s family physician, Dr. R. J. Arnold, has also diagnosed the worker with RSD and chronic pain. [21] In our view, the criteria governing entitlement to benefits set out in the Board s chronic pain disability policy are satisfied in this case. The medical reports referred to above, all diagnose the worker with a chronic pain condition which is attributable to the work-related injury she sustained to her upper extremities. Thus, we find that the worker s chronic pain was caused by the work injury. [22] Further, the worker sustained a repetitive strain, soft-tissue injury to upper extremities. This injury has not been determined to have caused a permanent organic impairment. In our assessment, the pain resulting from a repetitive strain, soft-tissue injury would not be expected to result in pain, which lasts for many years as it has in the worker s case. As noted above, Drs. Shapiro and Menich were of the view that the worker s response to her injury was exacerbated by pre-morbid personality characteristics. In our view, this evidence supports the conclusion that the degree and duration of symptoms exceeded that which would normally be expected to result from such an injury. The worker s pain has persisted for several years, which, in our view, is substantially longer than six months beyond the usual healing time of the injury. Again, we note that the worker sustained a soft-tissue injury which has not been determined to have resulted in a permanent organic impairment. For the same reason, we find that the worker s persistent pain is inconsistent with, that is, cannot be explained by reference to an underlying organic pathology. [23] Finally, there is consistent evidence in the medical reports that the worker s chronic pain condition had a significant, negative effect on her activities of daily living thereby causing a marked life disruption. At the hearing of this appeal, the worker testified with respect to the manner in which her pain has interfered with her activities to do housework and take care of her children. The medical reports also indicate that the worker s chronic upper extremity pain caused her to stop working in October In our assessment, the evidence clearly shows that the worker s chronic pain condition did result in a marked disruption of her life and impaired her capacity to earn income. [24] For the reasons set out above, we find that the criteria set out in the Board s policy are satisfied and that the worker is therefore entitled to benefits for a chronic pain disability. In light of this finding, it is not necessary to deal with the issues concerning entitlement to benefits for a psychotraumatic disability or for a permanent organic impairment. Is the worker entitled to LOE benefits as of October 17, 2007? [25] For the reasons set out above, we find that when the worker stopped working in October 2007, she did so because of her compensable chronic pain condition. She is therefore entitled to LOE benefits as of October 17, 2010.

8 Page: 7 Decision No. 1421/15 DISPOSITION [26] The appeal is allowed: The worker is entitled to benefits for a chronic pain disability. The worker is entitled to LOE benefits as of October 17, The quantum and duration of benefits are to be determined by the Board, subject to the usual rights of appeal. DATED: September 1, 2015 SIGNED: B. Kalvin, A.D.G. Purdy, J. A. Crocker