WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1431/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1431/15 BEFORE: A.G. Baker: Vice-Chair HEARING: July 10, 2015 at Toronto Oral DATE OF DECISION: July 13, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1531 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 25, 2012 APPEARANCES: For the worker: For the employer: Interpreter: M. King, Union Representative Not Participating A. Zhang, Cantonese Language 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. 1431/15 REASONS (i) Introduction and issues [1] The worker appeals the decision of Appeals Resolution Officer (ARO) J. Cantwell, dated January 25, From that decision, the worker appeals the denial of entitlement to ongoing benefits for a strain type injury to the upper extremities, and alternatively entitlement to Chronic Pain Disability (CPD) benefits. (ii) Background [2] The ARO noted the background in brief in the decision under appeal, as follows: The form 7 dated October 16, 2007 identified that the worker, a 42 year old Receiver Sorter Operator reported an injury that day to the disability manager. The accident history is described as: On August 29, 2007, the worker was moved to Receiving and expressed immediate discontent about the move. The worker had worked in the Brake Caliper Assembly for 6 years prior to this move. The worker was off from Tue September 25 to Monday October 8, 2007 on STD; see attached forms. The worker returned to work on Tue October 9, She indicated she had restrictions but did not have a medical note. She was placed on light duties pending receipt of the note. On Wednesday October 10, 2007, the worker was advised she would have to return to her regular duties as she had no medical note. Employee refused and went to the hospital. The employer offered modified duties for the right shoulder and upper back as per its letter of October 16, The worker did not return to work. She was permanently laid off as of December 14, The form 6 was completed on November 1, This described right arm, shoulder and upper back pain. She related this to her duties which involved opening and lifting 10 pound boxes about two thousand times per day. She said she began to have problems, the second day on this job. Memo one documents a statement taken from the worker on October 29, The worker said she injured her shoulder at work on September 25, 2007, had two weeks off work and returned on October 9, She asked to change jobs when she returned because the job caused pain in her shoulder but the company would not move her to another job. She worked on October 9 and October 10 and then had to go to the emergency department on October 10, 2007 as her heart was beating too fast. Initial entitlement was accepted for a repetitive strain injury involving the upper back/neck and shoulders. In April 2008, the worker requested entitlement for a low back strain as she did not have a previous problem with her low back. She was advised by the nurse case manager that she did not have entitlement for the low back. The worker representative requested entitlement for Paxil as he indicated that the worker's anxiety was due to the workplace injury. He was advised in October 2008 that the worker did not have entitlement for psychotraumatic illness. In December 2008, it was determined that the worker would be entitled to full benefits from October 10, 2007 to April 7, 2008 less Employment Insurance Benefits received during this period. As of April 7, 2008, the case manager found that the medical reporting from Dr. Chow, physiatrist supported that the worker had fully recovered. The worker was advised of this in the decision dated December 11, 2008.

3 Page: 2 Decision No. 1431/15 (iii) Law and policy [3] The Workplace Safety and Insurance Act, 1997 (WSIA) is applicable to this appeal. I also note section 126 of the WSIA requiring that I apply Board policy. In that regard, the following policy packages, Revision #8, have been stated by the Board to be applicable to this appeal: 10 Chronic Pain Disability 33 LOE Benefits decisions as of July 1, Recurrences 73 Workers Cooperation Obligations 86 Early & Safe Return to Work with Accident Employer DOA as of January 1, Decision Making/Benefit of Doubt/Merits and Justice [4] I have considered the above noted policies as necessary in reaching the below decision. I also noted the follow policy criteria in regard to CPD entitlement: 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. 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 for 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. The pain persists 6 or more months beyond the usual healing time of the injury. The degree of pain is inconsistent with organic findings. 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.

4 Page: 3 Decision No. 1431/15 Condition The chronic pain impairs earning capacity. Evidence 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. (iv) Decision [5] In this case, I have decided that the worker has met the criteria for CPD entitlement. In coming to that finding, I noted first the findings of the ARO. It was evident from the ARO decision that the reporting from treating physicians did not persuade the ARO that the worker s ongoing chronic pain arose from her work injuries. Rather, after reviewing the medical information on file, the ARO concluded that the worker s pain was intermittent, fluctuating and exacerbated by her anxiety in May of It was ruled that the worker s biomechanics and non-occupational causes had led to the exacerbation of her pain beyond that time. Put succinctly, it was determined that the worker s work strain type work injuries had resolved. [6] I have noted the findings of the ARO, as well as a number of medical reports that were cited in the decision. The reports provided a helpful medical overview as follows: The form 8 was completed by Dr. Gauris, chiropractor on October 17, The worker had pain, stiffness and tenderness. Range of motion was normal but painful. The chiropractor recommended treatment. Restrictions were in place as per the worker's physician. The family doctor, Dr. Ling had completed a functional abilities form on October 13, 2007 with restrictions for the right shoulder and upper back. This identified that after working October 9 and 10, 2007, her right shoulder and upper back and arm pain recurred. She began anxious and panicky and had to be sent home. There is a note dated October 15, 2007 from the family doctor indicating that the worker could not work for 6 weeks. The hospital reports from October 10, 2007 show that the worker presented to the hospital with anxiety on October 10, 2007 related to interactions with her employer on that day following a work injury on September 21, The final diagnosis was anxiety attack. The evidence is that the worker responded with anxiety to being asked for medical documentation or told she would have to return to regular duties. The employer offered modified work in writing as of October 16, 2007 but the worker did not return to work. The January 17, 2008 chiropractic extension request expected full recovery by April 17, The diagnosis was cervical strain and bilateral shoulder tendonitis. In February 2007, Dr. Kong performed electrodiagnostic testing. He identified that the worker had neck pain and right shoulder pain for five years or more. The results of EMG and nerve conduction studies were normal. There was no evidence of peripheral nerve entrapment in either arm or of cervical radiculopathy. He related her pain to mechanical factors. Memo 9 documented that the worker identified that she always had aches in her neck and mostly right shoulder. She related this to fatigue from her work as an assembler and treated this with analgesic plaster but pain was not a problem until she moved to the sorter position.

5 Page: 4 Decision No. 1431/15 The examination findings outlined on page 2 of the Dr. Chow's April 7, 2008 report were normal for the cervical spine, thoraco-lumbar spine, shoulder, elbow, hand and wrist with respect to range of motion, strength testing, sensation and reflexes. Spurling's test was negative. Hawkin's test was negative. The worker complained of pain with shoulder movements and tenderness but there was no spasm. Dr. Chow noted that he saw the worker for neck, shoulder girdle and back pain. He identified a myofascial strain or repetitive strain syndrome of the upper limbs and arranged for a bone scan. He discussed proper body biomechanics and exercises. He noted she was in physiotherapy. He noted she was taking Paxil for anxiety and depression and Naprelan. Dr. Chow's note of May 5, 2008 identified that the bone scan showed very minor uptake in the knees where she was not symptomatic. He again counselled her on proper biomechanics, neck-back care hygiene and postural retraining. He discussed precipitating factors such as poor posture, lack of exercise, sleep disturbance and stress. He did not identify any work restrictions. In May 2008, Dr. Ling, family doctor identified that the worker had fluctuating symptoms on some days especially when anxious. The doctor identified that the worker had intermittent exacerbation of pain, tenderness on palpation of the neck, right shoulder and arm. She recommended restrictions. She identified moderate anxiety as complicating the worker's recovery. It was expected that the worker would improve but she was exhibiting a very slow recovery. The medical reporting from Dr. Chow shows that the worker had minimal physical findings to support that she had an ongoing strain injury after April She had not worked since October 2007 so she was not exposed to aggravating factors. Her pain was described in May 2007 by the family doctor as intermittent, fluctuating and exacerbated by anxiety. The December 29, 2011 letter from the family doctor indicates that the worker has had persisting pain since April [7] Along with the above noted medical information, I also noted the submissions from the worker s representative and the worker s testimony. It was not largely disputed at any point in the file that the worker has experienced upper extremity problems and pain, mainly in the neck girdle, upper back, and radiating into the shoulders and arms. In regard to the CPD policy criteria, those chronic conditions have persisted well beyond the six month window contemplated under the above noted policy. It is also evident that they have caused marked life disruption for the worker, given she had to leave her job and continues to suffer difficulties. [8] In that regard, the worker continues to have difficulty in a range of areas, such as performing household chores, relying on family members, and requiring pain medication on a regular basis. As will be noted further, it is also evident that the nature of the worker s pain is not consistent with the organic findings. That was noted from the EMG and CT test results on file that indicated relatively normal results. However, the worker has continued into April 2008 and beyond to suffer from chronic pain inconsistent with those results. In my view, that conclusion was well supported in the balance of the medical information on file. [9] The ARO however primarily denied the worker on the basis that there was a lack of a causal relationship between the work injuries and the ongoing chronic pain condition. With respect, I have reviewed the medical information and disagree with that conclusion. In coming to that finding, I noted the following information.

6 Page: 5 Decision No. 1431/15 [10] The worker attended and was treated extensively by her family doctor, Dr. Ling, as well as by her physiatrist, Dr. Chow, for her neck, shoulder girdle and upper back pain. While I may be repeating some of the reporting noted above, I noted that Dr. Chow reported at the relevant time in April of 2008, that the worker continued to be functionally restricted in repetitive upper extremity tasks. She was also taking Paxil for anxiety and depression, as well as Naprelan. [11] Dr. Chow continued to report in May of 2008 regarding the neck/shoulder girdle and back pain. While the worker s range of motion was not of primary concern, she was noted to be experiencing pain with activities. It was also evident that the doctor was attempting to advise the worker on biomechanics, neck-back care, exercise, sleep difficulties and stress, which were evidently related to the original work injuries. [12] Dr. Ling reported in August of 2008 that the worker had been taking Paxil for anxiety and depression related to her injury to her back in September It was noted that the worker continued to be anxious from recurring and worsening chronic pain, and that she would continue to require prescription medication. It was also evident that the worker continued to be treated by the doctor well beyond the original 2007 injury, noting acupuncture treatment in 2009 that was stated to be for her chronic pain. [13] In that regard, I was not persuaded that the worker fully recovered from her original strain type injuries. Rather, I found that her work injuries remained a significant contributing factor to her ongoing chronic pain condition. Further, I was persuaded that the worker also met the criteria under the CPD policy requiring that there be a causal relationship between the worker s injuries and her chronic pain. [14] In coming to that finding, I also noted the report from Dr. Ling in December of 2011, which stated that the worker continued to suffer chronic pain in the lower cervical and upper thoracic areas, and that the pain radiated to both shoulders. The doctor also noted an extensive treatment record, having seen the worker 32 times since her injury for her chronic pain, anxiety and depression. Again, those findings were not consistent for example with the CT scanning noted by Dr. Ling. [15] Dr. Ling also noted that the worker had been referred for chronic pain management under the care of Dr. Librach in November of She also continued to have acupuncture and be prescribed Paxil, which was later changed to Cymbalta. Subsequently the worker was also prescribed Amitriptyline and eventually began intermittent use of Naprosyn and Tylenol No. 2, which the worker stated she continues to date. The doctor also finally noted that the worker did have some improvement but continues to be limited due to her chronic pain condition, for example with prolonged postures and housework, which worsen her pain. [16] In this case, I have found that the worker s condition did not fully resolve by April of Rather, it was evident that the work injury and its sequelae continued, leading to a chronic pain condition. I was persuaded in that regard that the worker met the criteria under the CPD policy. Therefore, I find that the worker is entitled to CPD benefits as of April [17] It is also evident, given the time that has passed since the onset of the injury, that the worker s condition is permanent. Therefore, she is entitled to a Non-Economic Loss (NEL) award in that regard. Finally, the determination of the nature and duration of further benefits, including LOE benefits beyond April 7, 2008, is remitted to the Board for further adjudication, once the worker s NEL award has been determined, and subject to the usual right of appeal.

7 Page: 6 Decision No. 1431/15 DISPOSITION [18] The appeal is allowed. [19] The worker is entitled to CPD benefits, and a NEL assessment in that regard. The determination of the nature and duration of further benefits, including LOE benefits beyond April 7, 2008, is remitted to the Board for further adjudication, once the worker s NEL award has been determined, and subject to the usual right of appeal. DATED: July 13, 2015 SIGNED: A.G. Baker