Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. This review application hearing was held at the Review Division office in Mount Pearl, NL on March 9, The worker attended the hearing and was represented by Leslie McGrath. 2. Neither the accident employer nor WorkplaceNL participated in the review process. Introduction 3. The worker injured his low back in January of 2006 while working as a service technician. The claim was accepted and the diagnosis was mechanical low back pain. The worker s treatment modalities have included physiotherapy, chiropractic adjustments, massage, acupuncture, and steroid injections. 4. Following the injury the worker returned to work. A number of recurrences took place following his return to work, with the most recent being January Between August 20 and September 20, 2012, the worker s functional capacity was further investigated by WorkplaceNL. A report of the investigation was reviewed by an occupational therapist. The worker was then referred for a functional assessment. 6. In October of 2012, the functional assessment report concluded the worker was capable of an 8 hour workday at a sedentary level of strenuousness, but the worker could not return to his pre-injury job. The worker appealed that decision through to the Review Division, but WorkplaceNL s decision was upheld at that time. 7. In April 2013, WorkplaceNL s occupational therapy consultant reviewed the file again. Following this on May 29, 2013 the worker participated in a labour market re-entry assessment where a number of direct entry positions were identified as suitable for the worker. 8. In December of 2013, WorkplaceNL identified NOC 668, Other Elemental Service Occupations as the most suitable employment and earnings option for the worker. As a 1

2 result, the worker was entitled only to partial wage loss benefits. The worker appealed that decision to the Review Division, but WorkplaceNL s decision was upheld at that time. 9. In February 2014, the worker submitted written correspondence for review in relation to the August/September 2012 investigation which occurred prior to the two decisions noted above. He also sought reopening of his claim. WorkplaceNL denied the reopening and the worker appealed through to the Review Division. The Review Division upheld WorkplaceNL s decision. 10. On December 3, 2014, the worker again submitted information to WorkplaceNL for its review. This included correspondence from his treating physician, chiropractor, and physiotherapist. The medical consultant assisted in the review of this information, and following this review, WorkplaceNL decided to obtain a new functional assessment on the worker. 11. Another functional assessment of January 2015 found the worker was capable of a four-hour workday at a light degree of strenuousness, and an eight hour workday at a sedentary level of strenuousness. 12. In March of 2015 a WorkplaceNL physiotherapy consultant reviewed the file and concurred with the results of the functional assessment. 13. On April 30, 2015, the case manager found the functional information and other new evidence continued to support that the worker was capable of working and earning within the previously identified NOC option. The worker appealed that ruling to internal review. 14. On July 14, 2015, the internal review specialist upheld the case manager s decision. It is this decision the worker is appealing before the Review Division. Issue 15. The worker is requesting a review of a decision of WorkplaceNL dated July 14, The worker requests I find WorkplaceNL erred in determining he has an ability to work for an eight hour workday at the sedentary/limited level with restrictions. Outcome 16. WorkplaceNL has erred in the application of Section 60(1) and 74(3). The claim is referred to WorkplaceNL for the balanced analysis required by Section 60(1) which involves weighing all relevant evidence, according to its persuasiveness on the issue of earning capacity. A further determination on the worker s ability to work and earn with input from the occupational therapy and medical consultants will be required. Legislation and Policy 17. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28. 2

3 18. Also relevant and considered in this case are Sections 60(1), 73, and 74 of the Act, along with Policy RE-14: Labour Market Re-entry Assessments and RE-15: Determining Suitable Employment and Earnings. Relevant Submissions and Positions 19. Mr. McGrath submitted the error in the decision of the internal review specialist relates to the application of Policy EN-20: Weighing Evidence. He argued WorkplaceNL has preferred the evidence of the functional assessments to that of the worker s treating physician, physiotherapist, chiropractor and most recently, the pain specialists. 20. It is submitted a review of the documents provided by these treating health care providers will confirm each of them have the same opinion of the worker in relation to his ability to work. Each confirms, Mr. McGrath submitted, the worker is unable to work in any capacity. 21. Mr. McGrath stated the worker experiences significant flare ups of his condition and is in considerable pain on an ongoing basis. Given the frequency and unpredictability of the flare ups and the associated episodes of pain, it is argued the worker is not employable. 22. The position of WorkplaceNL which suggests the treating health care providers have not provided adequate objective evidence was countered by Mr. McGrath by the submission, at the hearing, of recent correspondence from some of the treating health care providers. Specifically submitted was a hand written report dated March 4, 2015 from the treating physician; a report from the worker s treating physiotherapist dated March ; and a report of the treating chiropractor also dated March 1, Also included in the submission was a list from the worker s dispensing pharmacy outlining a list of medications. It was noted WorkplaceNL pays for many of the medications listed with the exception of ones for cholesterol and hypertension. In addition, the worker confirmed, though his recent steroid injections are not being paid for by WorkplaceNL, the cream he was prescribed in relation to those injections is also paid for by WorkplaceNL. It is not contained on the list provided as the worker indicated it is mixed and dispensed by a different pharmacy rather than his usual pharmacy. 23. Mr. McGrath also provided a copy of a Treatment Report dated March 14, 2012 from the Behavioral Pain Management Centre. The worker was referred to the Centre by a WorkplaceNL medical consultant, however, Mr. McGrath indicated he did not know whether or not it was contained in the file for these proceedings. 24. For the most part, the thrust of Mr. McGrath s argument was focused on the reliability of the recent functional assessment results. Mr. McGrath reviewed the report and the tolerances noted. The worker testified the assessment began at 9 am and finished up around 11:15 am. Mr. McGrath indicated the tolerances noted to be observed during the assessment could not, in fact, be observed as the assessment did not last long enough. Noted were the functional tolerances of sitting and standing specifically. The report of a sitting tolerance of 115 minutes was observed and a 55 minute standing tolerance was observed. Within these two demonstrated functions, the timing surpasses the duration of the assessment. Also noted from the functional assessment is that the worker reported pain both during and after the assessment testing. 3

4 25. Mr. McGrath noted WorkplaceNL has denied this claim because of the lack of evidence. He argued that, in his experience as an injured worker, he is aware that often x-rays, MRI scans and other scans do not always present a full picture of the reason why someone is experiencing pain. Sometimes, he stated, there are nerve problems and the worker previously was also known to have a bulging disc. Mr. McGrath noted the worker s problems were recognized by WorkplaceNL at one point by the recording of a claim note dated July 27, The claim note states: Met with [medical consultant] and [OT consultant] as well as [team lead] to discuss this claim. from me outlining claim summary and questions to discuss has been imaged to file. Recommendations include the following: 1. Allow days for Tramacet to determine its benefits ([treating physician] prescribed on and [the worker] started taking Tramacet on ) sessions of acupuncture are supported to address the flare-up [the worker] sustained on Explore a permanent accommodation with the pre-injury employer given the OT s comments that [the worker s] current restrictions are likely permanent. If no accommodation is available, review for LMR referral. 4. [The worker] pushed himself during functional testing and the OT commented in the FA report that the sustainability of the tolerances he demonstrated are uncertain. The OT Consultant will make the recommendations about restrictions. 26. The worker testified he has tried everything he could to return to work. In the past, the accident employer, he stated, created a job for him for 10 hours per week. He stated his case manager, however, recommended against it and would not permit him to take the position. Following his employment readiness program in 2014, he identified a position of a school bus driver and he attempted to get a driver s license for driving a school bus. He required $400 to rent a bus to complete the driving test, however, he stated WorkplaceNL turned him down for the $ The worker has been assessed and treated by two pain specialists. He noted the first pain specialist actually referred him to the pain specialist he currently sees for his steroid injections. The injections, the worker stated, are very painful, however they seem to help him and therefore, he continues with them. He stated he consults with his family physician regularly in relation to his back condition particularly in relation to his flare ups. He described his flare ups as being similar to that of a kink occurring in his back. It can happen from the simple activity of bending to put on his socks. He treats his flare up by resting with a heating pad, using a TENS machine and a Back2Life machine he has. 28. The worker stated he would like to be able to work. He stated he believes he would still be useful to the employer, as he has completed several courses specific to the employer s business. He does not believe, however, he can sustain any employment given the recurring flare ups and unpredictability of his condition. He indicated he is currently in receipt of Canada Pension Plan disability benefits. 4

5 29. Mr. McGrath indicated returning the worker to any employer at this time will impose undue hardship on a prospective employer. The worker, he argued, is not capable of working for eight hours per day. He argued the labour market re-entry policies allow for exceptional circumstances and the worker should be considered under that provision of the Policies. 30. The position of WorkplaceNL is outlined in the internal review specialist s decision of July 14, The internal review specialist provides an overview of the history of the claim and notes the evidence from the worker s treating care providers as well as the functional assessment. He concludes with the following in his decision: The Case Manager provided an opportunity for you to participate in a FA. This was based on input from the Commission s Medical Consultant through a review of January 26, I will not reiterate that review here as the Case Manager has already done so. You participated in the assessment on January 29, I will note the occupational therapist indicated that your participation level was limited. She noted through her observations that there was limited participation during strength testing and this supports your testing results are considered reflective of minimal levels of function likely due to fear of causing increased pain or further injury. She noted you provided maximum effort through other portions of the testing. Overall, she noted you demonstrated a four hour workday tolerance at a light degree of strenuousness and an eight hour workday tolerance at the sedentary/limited level of strenuousness. Continuing to review the assessment, I see that all range of motion testing with respect to the lower back was within the functional range. It is noted you demonstrated lifting between LBS. This is decreased since the previous functional examination. Carrying was noted to be occasional to the 21 LBS level bilaterally which was also reduced from the previous functional assessment. Unilateral carrying on the right and left was also reduced to an occasional tolerance of 13 LBS. Push pull was also noted to be reduced to 61 LBS on an occasional basis. Reviewing your postural tolerances, we see no change being indicated. The same can be said for walking and climbing stairs however your balance was decreased to frequent. All upper extremity tolerances continue to be consistent with that which was documented previously. The same is also true for lower-level function. Overall, the occupational therapist noted that your workday tolerance was eight hours at the sedentary/limited level. It was acknowledged the decrease in your strenuousness level was the reason why you workday tolerance reduced from light to sedentary. I note the Commission s Physiotherapy Consultant provided input into your file on March 24, She was requested to comment on the reporting provided by your treating physiotherapist to assist her in determining what weight to place with the opinion. The consultant indicated that it would be her view that the information provided by your treating physiotherapist of November 2014 would not outweigh the results of functional testing completed on January 29, From my review, I agree with that rationale. 5

6 I took the opportunity to review options identified through LMR to determine if your function continues to be suitable to the NOC Minor Codes. The options identified through LMR all required a physical tolerance of limited. In reviewing the recent FA, it is indicated you have an eight hour tolerance with the limited level of strenuousness. I have reviewed your case and I have considered and weighed the evidence. When I review the evidence, I find the evidence for your position that you cannot return to work is your opinion along with the opinions of your GP, chiropractor and physiotherapist. Against your position, I find the results of the FA of 2012 and that of the assessment of Your treating GP provides no function for comparison to the findings outlined in the FA to support her opinion. All GP reports since the December 2013 decision report a worsening of your subjective reporting and objective findings however no change in your function is indicated. I find the chiropractor has provided no subjective reporting or objective findings to support his generalized statement regarding inability to work. However I would give more weight to your physiotherapist s opinion as they would be more trained to assess function. I consider you did not put forth maximum effort with respect to your strenuousness testing through the FA. Analysis 31. Mr. McGrath submitted the error by WorkplaceNL in this case is in the weighing of evidence under Section 60(1) of the Act. Mr. McGrath, however, did not provide an illustration of how this error occurred other than to state WorkplaceNL has placed too much weight on the evidence of the functional assessments and not enough weight on the evidence of the treating physician and the worker s other health care providers. When the evidence is weighed on the balance of probabilities, Mr. McGrath argued, it tips in favour of the worker s position that he is unable to work in any capacity. 32. I note the position of WorkplaceNL is that the weight of evidence confirms the worker has an ability to work for eight hours per day at sedentary work. The evidence, according to the internal review specialist, confirms the worker s condition has not deteriorated since the December 2013 finding that he was capable of working and earning. I wish to note WorkplaceNL did not participate in this hearing process. 33. Due to the volume of information, approximately 2500 pages, it is necessary at the outset of this analysis to briefly summarize the context of this claim as it will provide some clarity to my reasoning as I do not intend to explicitly reference every single piece of evidence I have considered. I have, however, studied this file extensively in relation to the issue under review and the decision of WorkplaceNL currently under scrutiny. To some extent, it was necessary for me to go beyond the decision under review to verify precisely what the relevant claim evidence was, and whether it was considered. The following is a summary, at a very high level, of the nature of the claim: a. The medical reporting on the claim beginning in 2006 and into 2015 is extensive. It contains hundreds of medical reports from health care professional including the treating physician, (8/10 Forms), reports from 6

7 varying specialties such as two neurosurgeons, two pain specialists, an orthopaedic specialist, two acupuncture physicians, naturopathy practitioner, chiropractor, physiotherapist, etc. It also contains diagnostic reports such as CT scans, x-rays and an MRI report. The objective medical evidence, with the exception of the reports of the treating physician, confirms the worker s injury is muscular in nature and pain appears to be the disabling factor. b. The reporting of the treating physician has not changed significantly since the date of the original injury: The 8/10 reporting in 2006 indicated muscle spasms, limited range of motion, tenderness, tight muscles, chronic back pain and back sore. This type of reporting is consistent as each year continues, and as the WorkplaceNL reporting form evolved into a coded form, it also indicated hypertonicity, hypomobility, abnormal gait and swelling. The most recent reporting by the treating physician in 2013, 2014 and 2015 all indicate the same objective findings and subjective reporting. The reporting also confirms the worker s condition appears to wax and wane with ongoing symptomatology from 2006 onward. Some reports indicate no change, worsening mild improvement. This reporting is also as it was in 2006, 2007, 2008, for example. The physician also indicates during this time the worker is not capable of working though at certain times she appears less definitive than other times and notes comments such as await OT for Recommended Hours of Work for example. c. There is no evidence on this claim of disc pathology, no evidence of degenerative disc disease or congenital defects, etc. In fact, at one point the treating pain specialist in a report of February 20, 2012 stated There is no disc bulge and there is no herniation, no neural foraminal stenosis, no spinal stenosis, and there is not a hitch on the CT scan picture. A subsequent MRI of the lumbar spine dated December 9, 2013 indicated findings which included Normal alignment no significant disc protrusion, central stenosis, or nerve root impingement. d. This conclusion is also supported by the findings of one of the initial treating neurosurgeons. His report of July 6, 2011 notes.really no significant disc pathology..fairly good range of movement he has no nerve signs and no neurological deficit the CT scan really does not show anything that would be helped by surgery. A second neurosurgery report is on the claim from a different neurosurgeon which is dated January 29, It notes There is no sciatica..his examination today really is essentially normal except flexion of the back produces back pain..he should go the way he is doing now with the pain clinic management. 34. In addition to this evidence of relatively normal objective findings, there is also the functional evidence and it is extensive. There are several full functional assessments, a targeted functional assessment and functional tolerances have also been confirmed through worksite occupational rehabilitation programs and clinic based occupational rehabilitation programs. All of which have confirmed the worker has the functional tolerances for employability at a sedentary level for eight hours per day. The more recent functional assessment, however, noted a four hour workday tolerance at a light level of strenuousness. 7

8 35. I also note numerous health care opinions provided by the physiotherapy, chiropractic, occupational therapy and medical consultants of WorkplaceNL contained in over 200 pages of claim notes. The claim notes reflect the very comprehensive manner in which the claim has been managed by WorkplaceNL and my observation is that the worker has been supported by WorkplaceNL through a thorough and exhaustive approach to case management. From the file it is clear multiple wide-ranging reviews of this claim have occurred as it relates to determining the worker s ability to work and earn and his entitlement to medical aid. 36. Notwithstanding all of the objective and functional evidence which supports the position of WorkplaceNL, the worker reports he is disabled by his severe and constant levels of pain and the unpredictable nature of his flare ups. This subjective reporting of the worker, however, appears not to have influenced the conclusion that the worker was capable of an eight hour workday. This is an error in my view. 37. Given the extent to which he has reported severe and disabling pain, WorkplaceNL appears to have extensively supported the worker in a number of pain interventions and management strategies. Overall the worker s pain treatments include 34 acupuncture sessions, 156 physiotherapy sessions, 131 chiropractic sessions, 13 massage therapy sessions, cognitive behavioral therapy for pain management, epidural steroid injections, IV Lidocaine injections and numerous medications. Many of these services have been supported by WorkplaceNL. I will note that for the most part, however, the worker reports none of these interventions have been successful in managing his pain. 38. The above provides the overall context of the evidence on this claim. It is against this outline of information as a backdrop I have reviewed the worker s objection to the decision of WorkplaceNL in relation to his ability to work and earn. 39. At the beginning of the hearing I advised the worker and his representative that I had observed the file did not contain the most recent decision of the Review Division. Review Commissioner Barry had recently reviewed decisions of WorkplaceNL dated March 4, 2014 on the extended earnings loss entitlement issue and also one from June 2, 2014 in relation to the submission of new information. Commissioner Barry s findings on those issues are contained in Decision dated September 23, The decisions of WorkplaceNL on those issues were upheld at that time, i.e. a capacity of 8 hours per day at a sedentary level of strenuousness in NOC Code 668, Other Elemental Service Occupations. 40. On April 30, 2015, however, the case manager re-engaged the merits on the issue of the worker s entitlement to extended earnings loss benefits in her review of the claim file. By that time, the worker had undergone another functional assessment on January 29, 2015 and that report was under review as were reports of the treating physician and physiotherapist. It is the April 30, 2015 decision which was subsequently appealed to internal review and ruled on by the internal review specialist on July 14, This is how the worker s objection to his entitlement to extended earnings loss benefits has come before me. 41. As I have already stated the functional evidence on this claim is extensive. I do not intend to reproduce all of the functional findings as I have reviewed them all and I have concluded the weight of evidence confirms the worker s functional tolerances as determined by 8

9 WorkplaceNL and the worker did not reference any evidence to refute these in the hearing. The relevant functional evidence includes but is not limited to the following findings: a. Functional Assessment of October 13, 2009: 8+ hours predicted workday tolerance; light to medium level of strenuousness. b. Functional Assessment of May 31, 2011: 8 hour workday with restrictions; light to medium level of strenuousness. c. Functional Assessment of October 29, 2012: 8 hour workday with restrictions; sedentary to light level of strenuousness; self-limiting determination. d. Functional Assessment of January 29, 2015: 4 hour workday at a light level of strenuousness; or an 8 hour sedentary to limited level of strenuousness; self-limiting determination. 42. All the above noted functional assessments, with the exception of the recent January, 2015 assessment, confirm the worker to have, at a minimum, an eight hour workday tolerance at a sedentary level of strenuousness. The worker s argument, however, is that the nature and severity of his pain affect his functional tolerances and result in his inability to work in any capacity. I will, therefore, reference the evidence only to the extent necessary to consider the pain component of the assessments and the findings and observations of the assessors. 43. The latest functional assessment on this claim was completed on January 29, It contains the results of testing and comments from the assessing occupational therapist in relation to the worker s demonstrated functional tolerances. The assessor began by noting some of the medical reporting on the claim and she also noted the diagnosis to be myofascial pain and muscular/mechanical back pain. The following comments were also noted in relation to the assessment: Client self-reports of ongoing pain and limited function. This was seen to be a factor impacting recovery. Also noted, Client describes pain as constant ; His back regularly goes out. I note the following from that report: Participation Level:... Limited indication of limited participation during strength testing which indicates that strength testing results are considered reflective of minimal levels of function likely due to fear of causing increased pain or further injury. It is the opinion of the assessing therapist that overall, [the worker] provided maximum effort throughout testing with the exception of testing of strength related tolerances. Based on the file review, length of time away from the workplace and findings throughout this assessment, [the worker] has a projected 4 hour workday tolerance at a light level of strenuousness and an 8 hour workday tolerance at a sedentary/limited level of strenuousness. 9

10 When comparing [the worker s] demonstrated tolerances during this functional assessment and the tolerances identified during the assessment completed on October 29, 2012 the following decreases in function have been noted: all strength related tolerances and balance. All other tolerances remained unchanged. Based on the findings of this assessment, [the worker s] declined strength related tolerances and in conjunction with long history of back injuries, ongoing self-reports of symptoms, time elapsed since initial compensable injury and time away from the workplace (currently 3 years), it is the opinion of the assessing therapist that [the worker] would not be able to sustain an 8 hour workday at a Light degree of strenuousness however, would be able to sustain a 4 hour work day at a Light level or an 8 hours workday at a Sedentary/Limited level. After careful analysis of the physical effort demonstrated, as well as the behavioral presentation of [the worker] throughout the course of the evaluation, [the worker] provided maximum effort throughout all testing components except for testing of strength related tolerances. It is the opinion of the assessing therapist that [the worker] did limit himself during testing of strength related tolerances due to a fear of re-injury and his back giving out. After a lengthy interview and demonstrated tolerances throughout functional testing, it is the opinion of the assessing therapist that there is a significant discrepancy in [the worker s] perceived functional abilities and the actual functional abilities demonstrated throughout this assessment; for example, [the worker]reported the following perceived tolerances: sitting 10 to 15 minutes; standing 10 to 15 minutes; walking 10 to 15 minutes; lifting 40 to 50 lbs at waist height if back is not bad. During functional testing, [the worker] demonstrated the ability to sit for a total of 115 minutes and stand for a total of 55 minutes. Although [the worker] only walked for a 5 minute duration during testing, he was observed to walk at a fast pace and no pain reports or pain behaviors were noted. Also, even though [the worker] reported being able to lift up to 40 to 50 lbs at waist height, he requested to terminate task after lifting 21 lbs. Throughout the interview and functional testing, [the worker] frequently referred to his back giving out, however, it should be noted that overall pain reports and pain behaviors were consistent throughout testing. As such, it is the opinion of the assessing therapist that [the worker s] subjective reports should be considered marginally reliable, particularly in relation to his level of overall function. 44. The previous functional assessment completed was performed on October 29, The findings from that assessment noted the worker s participation in that assessment was also self-limiting. The assessor noted [the worker] yielded a self-limiting determination based on the assessment protocol indicating that his demonstrated tolerances should not be interpreted as permanent functional impairments. The result of that assessment also confirmed the worker to have an eight hour workday tolerance at a light level of strenuousness. The assessor noted: 10

11 The degree of strenuousness was predicted based upon the fact that the amount of effort exerted at the termination of activities was limited, thereby indicating a Frequent rather than Occasional tolerance for weights documented Also noted on that assessment under Risk Factor Screening for Pain and Disability was the following: Risk Factor Screening for Pain and Disability: Fear of re-injury as per TSK scale: 98 th percentile, Very high range Perceived Disability as per PDI Index: 87 th percentile, Very high range Catastrophic Thought as per PCS Questionnaire: 99 th percentile, Very high range Please note that scores over the 50 th percentile are considered a moderate risk for chronicity of injury due to psychosocial factors while scores over the 75 th percentile are particularly significant. 45. Also within that assessment were the following list of possible barriers to functional recovery: Possible Barriers to Functional Recovery: Multiple occurrences of debilitating back pain over 2 decades in the absence of medical impairment. Subjectively reported flares of debilitating pain with no apparent trigger. Length of time on modified duties. Length of time away from the workplace. Very high range for all psychosocial scores. No improvements of symptoms despite extensive rehabilitation with subjectively reported worsening of symptoms. Feels he needs surgery. 46. The assessor, in the November 15, 2012 report of the October 29 th assessment concluded with the following: Please note that at the end of the assessment, [the worker] was informed that he would likely experience increased stiffness and discomfort for 2 to 3 days following the assessment as this is a normal response to this level of activity. 11

12 He was asked to call the therapist and / or his treating physician if the discomfort persisted for a period longer than 3 to 4 days. A call was received on October 20, 2012 indicating a significant increase in symptoms continual muscle spasms which continued all evening. (sic) The following morning [the worker] described difficulty walking due to stiffness and pain however this was gradually improving. He was requested to call again after two further days if symptoms had not settled no further call was received. Please note that these comments were considered in the overall analyses. Often the assessment itself is in fact more strenuous than the eventual recommended level of activity, resulting in increased discomfort for a period of time post assessment. Thank you for referring [the worker] for a Functional Assessment. His evaluation had a self-limiting determination which indicates the (sic) that the worker was cautious about their activity output for fear that further injury or flare up would occur with further effort. 47. Within the May 31, 2011 assessment, the worker s participation level was noted as consistent. A self-limiting determination was not noted. The worker, at that time, was noted to score very high on assessments for fear of re-injury and pain focus. The assessor concluded with the following: Please note that at the end of the assessment [the worker] was informed that he would likely experience increased stiffness and discomfort for 2 to 3 days following the assessment as this is a normal response to this level of activity. He was asked to call the therapist and / or his treating physician if the discomfort persisted for a period longer than 3 to 4 days. A call was received on Monday, June 6, 2011 where [the worker] reported that he had been quite stiff for two days following the assessment and had to take it easy however on Friday (June 3, 2011) he had woken early in the morning in excruciating pain and was unable to get out of bed due to severe low back pain tears in my eyes due to the pain which was brutal. He remained in bed Friday and Saturday but was able to get up on Saturday evening and to manage some stretching exercises on Sunday with reports of increased pain in my lower left side like a knuckle in my back. He reported today (June 6, 2011) that he is currently unable to bend down in case I can t stand up again and I can t even sit down properly. [The worker] was advised to contact his doctor but reported that he has a physiotherapy appointment scheduled following this phone conversation and that he would make a doctor s appointment depending on his physiotherapist s assessment. [The worker] stated that this is another major setback and that it (the symptoms) always happens sometime afterwards. Please note that these comments were considered in the overall analyses. Often the assessment itself is in fact more strenuous than the eventual recommended level of activity, resulting in the increased discomfort for a period of time post assessment. Such a response would not indicate that the assessment results need to be further modified. Thank you for referring [the worker] for a Functional Assessment. His evaluation had a consistent determination meaning that these results can be considered an accurate representation of his current safe abilities. 12

13 48. The October 13, 2009 assessment report also noted a consistent participation level with a very high score noted on the worker s perception of pain. The worker also reported difficulties following the assessment. The assessor noted the following: Please note that at the end of the assessment [the worker] was informed he would likely experience increased stiffness and discomfort for 2 to 3 days following the assessment as this is a normal response to this level of activity. He was asked to call the therapist and / or his treating physician if the discomfort persisted for a period longer than 3 to 4 days. A call was received on October 14, 2009 indicating that his back went out right after the assessment was finished. [The worker] reported that he required Massage Therapy that evening to dull the pain and he reported that he spent the rest of the evening in bed. He also reported that he saw [family physician], family physician, on October 14, 2009 who placed him off work until at least Monday (October 19, 2009). [The worker] reported to have also seen his Physiotherapist [the physiotherapist] who did ultrasound and gave me needles to ease the pain. The undersigned therapist contacted [the worker] on Friday, October 16, 2009 to get an update on his current status. He informed this therapist that he had just returned from Physiotherapy and had spoken with Case Manager [case manager] at WHSCC who approved Massage Therapy for him. He indicated that the pain is there but not as bad as Tuesday and Wednesday. [The worker] also stated that I can t move towards my left side. [The worker] contacted this therapist on Tuesday, October 20, 2009 to report that he remains off work at this time, due to recommendations by his family doctor [family physician]. He reported that he had an appointment with her on October 19, 2009 and that she found he was still significantly flared up so suggested he remain off work until October 25, He also reported that he received acupuncture this morning and that he was given a steroid injection and was instructed to do as little as possible for the next couple of days. The undersigned therapist contacted the Case Manager [case manager] at WHSCC to provide an update of same. Please note that these comments were considered in the overall analyses. Often the assessment itself is in fact more strenuous that the eventual recommended level of activity, resulting in increased discomfort for a period of time post assessment. Such a response would not indicate that the assessment results need to be further modified. 49. All of these functional assessments indicate, in one way or another, the worker s levels of pain were considered in the functional assessment outcomes. It is clear, therefore, the assessing therapists, as experts in the area of function, factored pain and symptoms into their conclusion the worker has an ability to work for eight hours per day. This is evidence which weighs heavily against the position of the worker that his pain is totally disabling. The worker s subjective view that his pain is disabling must be considered against the objective findings. The evidence confirms the worker reports ongoing flare ups or his back giving out. I am uncertain what this means precisely as objectively there is no disc pathology or other degeneration to suggest what is giving out. More likely than not the 13

14 giving out appears to be muscle spasms, however, without a medical opinion I cannot conclude this is so. 50. Other reports relating to the worker s pain level relate to the treatments the worker has engaged in for his pain. The reports, for the most part, reflect intensive pain modalities with no improvement. This, in my view, suggests it is the worker s subjective perception of his pain, which is most disabling. Having said this, however, I do recognize the perception of pain may still produce a subjective experience of pain on the part the worker, whether it is magnified or not. Notwithstanding this, however, many workers do engage in work activity on a regular basis while experiencing pain. The question is not whether pain exists, but does the pain reduce or eliminate the worker s ability to work with the pain. This worker s pain is known to occur without triggers and often upon random movement or activity. The medical professionals treating the worker for his pain have made the following comments in their reporting on the worker s diagnosis and pain management: a. EMPOWER September 5, 2006: The PCS score of 99 th percentile reflects a very high focus on pain. This looks at how much worry there is regarding pain, and what the pain means. The [worker s] Momentary Pain Rating at rest was 7/10. b. Neurosurgeon Report July 6, 2011: I reviewed a recent CT scan and there is really no significant disc pathology. no scoliosis today. He has fairly good range of movements but moves slowly and cautiously so as not to put his back in spasm. He has no nerve signs and no neurological deficit. so I am going to ask [the specialist] to see him for chronic pain I explained to [the worker] that the CT scan does not show anything that would be helped by surgery. c. Acupuncturist Report September 19, 2011: His chief complaint was muscle spasm felt deep in his back. d. Neurosurgeon Report October 26, 2011: As you know, he has had a few CTs in the past including one just before I saw him a couple of months ago and its shows no significant disc pathology, and I think his complaints were all muscular. e. Anesthesiology (Pain Specialist) Report - February 20, 2012: If you look at the CT scan, the CT scan is almost normal. There is no disc bulge and there is no herniation, no neural foraminal stenosis, and there is not a hitch on the CT scan picture. He still could have low back pain without any significant findings. Epidural steroid injections were subsequently recommended by the anesthesiologist. f. Behavioral Pain Management Centre March 14, 2012: As a result of the treatment program, [the worker] reported a 0% decrease in pain, 50% decrease in pain medication, 50% increase in function, and a 60% increase in coping ability. The assessing psychologist noted the worker to be a legitimate chronic pain sufferer. g. Anesthesiology (Pain Specialist) Report - May 7, 2012: He tells me the last epidural he was in acute pain for two days but yesterday and the day before yesterday they were good days for him and there was not much of the pain. 14

15 h. Anesthesiology (Pain Specialist) Report - May 14, 2012: Patient is not getting much relief.we ll discuss IV Lidocaine therapy with him. He says he only gets relief for 1-2 days after the epidural injection, which is very unusual either you get good relief or you don t get it. The IV Lidocaine treatment began on June 3, i. Report of the Chronic Pain Management Clinic (Physiatrist) February 27, 2013: [the worker s] longstanding lower pain is most likely myofascial pain in origin. His pain is most likely perpetrated by muscle imbalance, hip abductor weakness and depression. He had not clinical evidence of cervical lumbar sacral radiculopathy or myelopathy. [The worker] is quite depressed and is not on any anti-depressant medications. j. Report of the 2 nd Neurosurgeon January 29, 2014: His pain is primarily located to the lower back. He said that suddenly his back gives out and he is in bad shape for two to three days. The pain is located in the lower back. There is no sciatica associated with it. He numerous treatment and is now waiting for [the pain specialist] to do Lidocaine and IV injection and also to see [the rehabilitation specialist]. His examination today really is essentially normal except flexion of the back produces pain. Straight leg raising is moderately limited, no gross neurological deficit. He has diastasis of the recti muscle resulting in a ventral hernia with a protuberant abdomen which may be contributing to his pain. At this stage three is no need for any surgical intervention. I feel that he should go the way he is doing now with the pain clinic management. k. Anesthesiology (Pain Specialist) Report - March 3, 3014: he again had IV Lidocaine therapy in June, He does not know if it worked or not. l. Anesthesiology (Pain Specialist) Report - March 17, 2014: He didn t have any relief whatsoever from the IV Lidocaine therapy. He had eight full days of pain and he spent it in bed..so IV Lidocaine therapy and epidural have both failed to relieve any kind of pain for him. m. Report of the Chronic Pain Management Clinic April 25, 2014: On today s visit, [the worker] reports that he had not good results from the IV Lidocaine therapy or from the epidural steroid injections. He is still suffering from lower back pain. He describes his pain today as 7/10 VAS (visual analog scale). He continues to use Lyrica 150 mg twice a day, Tramadol/Acetaminophen as needed, Burtrans (sic) 5mcg/ as a patch that he changes once a week. He also uses Ibuprophen (sic) 600 mg ever four to six hours as needed. According to [the worker], he applies heat on the areas of maximum tenderness and pain and he performs range of motion stretching exercises that he finds a bit helpful. He also sees a chiropractor almost once a week to work on his lower back. He finds this a bit helpful for pain relief for a short period of time. At this point, we discussed with [the worker] that most of his longstanding lower back pain is related to myofascial pain syndrome. We offered him a trial segmental neuromyotherapy to eradicate his active points. [The worker] seems quite interested. We will book him for four to five treatments in a row with four to five weeks in between. It appears the 15

16 treatments continued up to June, 2015 (the last report on the claim file) with some moderate improvement in the worker s reported level of pain. 51. Even though there is a significant amount of evidence in relation to the worker s level of pain and his diagnosis, I note none of these specialists noted above have indicated the worker is not capable of working. Furthermore, from my review of the claim notes, I do not believe the medical consultants with WorkplaceNL have been asked to provide an opinion on the worker s ability to work and earn with the presence of pain as noted and the treatments/strategies for coping. Again, I do recognize, however, the occupational therapists assessing the worker s function have noted that pain has been considered in their outcome determinations. 52. The evidence that is on the file from the medical consultants is recorded in the claim notes. Many of the claim notes, particularly recently, note the worker s physician is reporting deterioration in the worker s condition. In addition, the claim notes record approvals from medical consultants for ongoing pain medications such as Butrans patch, tramacet and a topical compound which compliments the trigger point injections being administered by the pain specialist. 53. There is also the cumulative evidence from the worker s other treating health care professionals such as his physician, physiotherapist and chiropractor. The context of this evidence, in summary, is that the worker is unable to work and is experiencing considerable pain and reporting flare ups or his back giving out. 54. As I review the decision of WorkplaceNL I find the internal review specialist focused very heavily on the functional evidence. I cannot confirm whether the conclusion of an eight hour workday has been considered in light of the evidence documenting the pain. Evidence of pain, while it is subjective according to the definition in Policy EN-20: Weighing Evidence, is still subjective medical evidence once recorded and accepted by a physician. There has to be some assessment of how reliable that subjective evidence is, including consideration of the worker s presentation and the physicians evaluation of it, before it can be concluded that the evidence does not merit weight in the process. 55. I acknowledge that if there is credible subjective evidence of pain, but the objective evidence contradicts it, it is not necessarily an error to place more weight on the conflicting objective medical evidence. Objective evidence includes findings that can be independently verified, without reliance on the worker s confirmation of it. However, all the evidence, be it subjective or objective, has to be included in the process, and that involves consideration of how reliable the subjective evidence is, and whether the objective evidence necessarily contradicts it. There still has to the balanced analysis of any relevant evidence. The subjective evidence cannot be excluded from the suitable employment and earnings decision, or even minimized, without some reasoned basis which explains why the balancing exercise compelled it. 56. The difficulty, I find, is that there are opinions which specifically describe the worker s pain as legitimate and there are other reports which implicitly take it for granted the worker s pain symptoms are genuine. Also, the worker is being treated by pain specialists (and has been treated by pain specialists) and to some extent this is supported by WorkplaceNL. If the worker s pain reporting was inherently unreliable, I question why he would be receiving treatments from pain specialists over an extended period of time, or why the worker would have been referred to several categories of treating providers. 16

17 57. This is a lengthy claim, with a record of the worker having been referred for pain treatment and management, and there is medical evidence that directly or indirectly corroborates the credibility of the pain reporting, which indicates the need to weigh it against the functional evidence. 58. The functional evidence, I agree, suggests a workplace capacity in the sense the worker has the physical capacity. I already referenced a comment from an assessor about the perceived reliability of the symptom reporting, but there are other sources which comment on this as well. If the pain issue was irrelevant, I would tend to agree the functional evidence supports WorkplaceNL s conclusion. However, the pain issue is not irrelevant. 59. I would also add that there is some objective evidence offered in the description of the pain reporting. Most, if not all, of the diagnostic imaging reveals no injury, but I understand this is not always effective in detecting soft tissue injury. This, I believe is the point Mr. McGrath was making. There are multiple references to spasm and deep spasm, which are objective findings that can be verified independently. It suggests a muscular origin of the symptoms, so I cannot see how the worker s pain reporting completely lacks an objective basis. I can see why WorkplaceNL would be tempted to conclude the worker s pain reaction is out of proportion to the injury (the psychosocial scores for this worker are abnormally high) because it is atypical of what would be expected in most cases. However, that does not mean the pain levels cannot exist in this case. The claim-specific evidence has to determine this specific claim. 60. For all these reasons, I find WorkplaceNL had to weigh all the evidence, holistically and balance it, instead of concentrating heavily on the functional assessments and interpretations. Due to the duration of this claim, there is a large amount of information available, and the pain issue has been documented. Evidence is available on that point. Considering the extent of the evidence on the worker s reports of pain, the extent of treatments and consultations, I find WorkplaceNL to be in error for their failure to specifically consider the effects of the documented pain in the overall eight hour workday determination, especially without the input of a medical consultant and/or the occupational therapy consultant. 61. Again I note medical consultants have reviewed the file and provided opinions on the approval of medications, medical treatments, medical aid devices, proportionment and permanent functional impairment assessment and reassessment. From my review, I cannot find a medical opinion from a medical consultant which addresses the worker s pain and how it may or may not affect the eight hour workday determination. The medical consultant s input should then be considered in conjunction with the entire volume of medical evidence, including the functional evidence, for a balance of probabilities analysis in relation to the determination by WorkplaceNL on the worker s earning capacity. 62. In addition, it appears the last occupational therapy consultant opinion on the claim was recorded on August 12, It confirms the worker functional tolerances have remained the same and the reporting since the 2012 functional assessment did not suggest an ability to sustain a higher level of function. I note there has not been any further review by the occupational therapy consultant particularly in relation to the worker s ability to work in light of the recent functional assessment in January, 2015, the diagnosis of myofascial pain syndrome as recorded by the pain specialist, the worker s reported pain levels and associated treatments at the Chronic Pain Management Clinic. The input of the 17