WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2132/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2132/13 BEFORE: G. Dee : Vice-Chair V. Phillips : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: November 5, 2013 at Oshawa Oral DATE OF DECISION: November 28, 2013 NEUTRAL CITATION: 2013 ONWSIAT 2536 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 31, 2011 and the decision of the Executive Director of the WSIB Appeals Branch dated September 24, 2012 APPEARANCES: For the worker: For the employer: Interpreter: G. Hoag, Office of the Worker Adviser Not participating 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. 2132/13 REASONS (i) Issues [1] The worker seeks an increase in her 10% non-economic loss (NEL) award she receives for a chronic pain disability (CPD) and, if she is successful in this aspect of her appeal, a further backdating of the date she has been found to have achieved maximum medical recovery (MMR). [2] The worker also seeks entitlement to full loss of earnings (LOE) benefits beyond March 14, 2008, or alternatively, entitlement to further Labour Market Re-entry (LMR) services. (ii) Background [3] The worker was working as a laundry room attendant at a hotel when she was injured on September 9, 2005 while pulling towels from a washing machine. The worker was 44 years old at the time and had been working for the accident employer for a little over 5 years. [4] The Worker s Report of Injury/Disease that was completed by the worker on September 27, 2005 indicated that while pulling tangled towels from the washing machine I felt a really sharp pain, and hot burning in my left shoulder. [5] The Health Professional s Report (Form 8) that was completed by the worker s family doctor, Dr. Lunn, on September 16, 2005, noted that the worker was reporting pain in her left shoulder and scapula and diagnosed the worker with an acute left shoulder strain. [6] A return to modified work with the accident employer was attempted but it was determined that the accident employer could not provide suitable employment for the worker and the worker was referred for LMR services. [7] The worker underwent psycho-vocational testing and an LMR plan was developed to target employment for the worker as a Customer Service Representative within National Occupational Classification (NOC) Code 1453 with estimated potential earnings of $9.60 per hour. [8] The worker was awarded a 12% NEL award for a left shoulder and upper thoracic injury on February 13, [9] The worker completed her LMR program on March 14, The worker s LOE benefits were reduced as of that time to reflect the worker s potential earnings as a Customer Service Representative. (The reduction was actually delayed due to an administrative oversight and a non-recoverable overpayment was created). [10] The worker has not returned to work and has testified that she has not looked for work since the closure of her LMR program. [11] The worker sought entitlement for CPD. The worker s request was denied and the worker appealed that decision to an ARO within the WSIB. [12] The worker also appealed the reduction of her LOE benefits as of March 14, 2008 and, alternatively, the denial of further LMR services. It was argued on behalf of the worker that she was competitively unemployable. Alternatively it was argued that her LMR training did not provide her with sufficient typing skills to become employed as a Customer Service Representative.

3 Page: 2 Decision No. 2132/13 [13] The ARO decision of October 31, 2011 allowed the worker entitlement for CPD but denied the worker s appeal of the reduction of LOE benefits as well as her request for additional LMR services. [14] The ARO decision was appealed by the worker to the Appeals Tribunal. [15] The worker was assessed for a NEL award for her CPD. The NEL award was set at 10%. As awards for CPD cannot be added on top of awards for organic conditions, the 10% award effectively replaced the prior 12% award. [16] The July 31, 2012 decision that communicated the NEL decision to the worker was deemed to be a final decision of the WSIB by the Executive Director of the WSIB s Appeals Services Division in a letter dated September 24, [17] That decision has also been appealed to the Appeals Tribunal. [18] The accident employer did not participate in the worker s appeal to the Tribunal. [19] At some point following the initial reporting concerning the worker s accident of September 9, 2005, medical reports concerning the worker have included indications of the worker experiencing pains and limitations in her low back and legs. [20] The worker s representative argued that these pains and limitations in the worker s low back and legs are part of the worker s chronic pain condition which has been diagnosed as a myofascial pain syndrome. [21] The representative argued further that these pains and limitations should be recognized in the worker s NEL award and should also be regarded as compensable limitations for the purpose of determining the worker s LOE entitlement. (iii) Analysis (a) Overview of the decision [22] The worker s appeal is denied. [23] The Panel does not accept that the pain and limitations in the worker s low back and legs were caused by her workplace accident of September 9, As a result these pains and limitations should not be reflected in the NEL award or taken into consideration as compensable conditions for the purpose of determining the worker s LOE entitlement. [24] The NEL award of 10% appropriately reflects the findings reached in the worker s NEL medical assessment. [25] The limitations created by the worker s compensable injuries do not prevent the worker from being employed. The Panel finds that the worker is not competitively unemployable as a result of her workplace injuries. [26] The worker s request for further LMR services is also denied. Although the worker testified about a desire to return to work, since the termination of LMR services the worker has not looked for employment and has not taken any significant steps on her own to attempt to improve her typing skills. The Panel does not accept that the provision of WSIB sponsored classes aimed at improving the worker s typing skills would make a significant difference to the likelihood of the worker becoming employed.

4 Page: 3 Decision No. 2132/13 [27] The evidence and analysis that the Panel has relied upon to reach the above conclusions is discussed in greater detail below. (b) The low back and leg limitations [28] The WSIB has granted the worker entitlement for a chronic pain disability. [29] The worker s representative submits that the worker is experiencing a chronic pain disability in the form of a myofascial pain disorder that was caused by the work accident to her shoulder and thoracic region but that also affects her low back and legs. The representative relies primarily on a number of reports by Dr. T. John, Physiatrist, for support of this proposition. These reports are dated June 18, 2009, February 9, 2010, April 19, 2010, September 10, 2010, and March 2, [30] There is little information on what a myofascial pain syndrome is in the appeal record. [31] On the date of hearing the Panel accepted into evidence an internet article on myofascial pain syndrome that the worker s representative printed from the web site of the Mayo Clinic. The Panel accepts that the Mayo Clinic web site is a reputable source of patient focused information on medical conditions and accepted the document as a means of obtaining some background information on myofascial pain syndrome. The Panel notes however that given the patient focused nature of the article, the article does not contain much in the way of detailed research or analysis. The Panel also notes that there is no specific author of the article identified and there is no indication that the article has been peer reviewed. The article of course does not deal with the specific situation of the worker but only deals with myofascial pain syndrome more generally. [32] The Panel did not accept into evidence a Wikipedia article on myofascial pain syndrome given the lack of an identifiable author or organization claiming responsibility for the contents of the article. [33] The Mayo Clinic article includes the following information on myofascial pain syndrome: Definition Myofascial pain syndrome is a chronic pain disorder. In myofascial pain syndrome, pressure on sensitive points in your muscles (trigger points) causes pain in seemingly unrelated parts of your body. This is called referred pain. Myofascial pain syndrome typically occurs after a muscle has been contracted repetitively. This can be caused by repetitive motions used in jobs or hobbies or by stress-related muscle tension. Causes Sensitive areas of tight muscle fibers can form in your muscles after injuries or overuse. These sensitive areas are called trigger points. A trigger point in a muscle can cause strain and pain throughout the muscle. When this pain persists and worsens, doctors call it myofascial pain syndrome. Complications Complications associated with myofascial pain syndrome may include:

5 Page: 4 Decision No. 2132/13 Fibromyalgia. Some research suggests that myofascial pain syndrome may develop into fibromyalgia in some people. Fibromyalgia is a chronic condition that features widespread pain. It s believed that the brains of people with fibromyalgia become more sensitive to pain signals over time. Some doctors believe myofascial pain syndrome may play a role in this process. [34] In determining benefit appeals the Appeals Tribunal must apply WSIB policy in accordance with the provisions of section 126 of the Workplace Safety and Insurance Act. [35] WSIB policy on the recognition of chronic pain disability is found in the WSIB s Operational Policy Manual (OPM) Document No That policy document defines chronic pain as pain with characteristics compatible with a work-related injury, except that it persists for 6 or more months beyond the usual healing time for the injury. This policy document provides for five conditions that must be established for entitlement to chronic pain to exist. These conditions are: A work-related accident 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. [36] The document states the following with respect to the evidence required to establish that chronic pain is caused by the injury: 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. [37] Despite the requirement that the worker s pain, except its persistence and/or its severity be compatible with the worker s injury, the same policy provides that a medical condition of fibromyalgia may be considered for entitlement under the policy: Fibromyalgia syndrome Workers diagnosed with fibromyalgia syndrome will be considered for compensation benefits under the CPD policy. Characteristics include chronic diffuse pain of unknown aetiology attributable to either undetected organic condition or psychogenic sources the presence of "tender points" in predictable, and usually symmetrical, locations fatigue and sleep disorders. With the exception of the "tender points", these characteristics are those usually seen in individuals with CPD, and the recommended treatment is identical to that recommended for individuals with CPD. Because of this, fibromyalgia syndrome is recognized as a

6 Page: 5 Decision No. 2132/13 variant of CPD and workers who are disabled/impaired by fibromyalgia may be eligible for benefits under the CPD policy or the psychotraumatic disability policy, see , Psychotraumatic Disability. [38] The Panel notes that in the present appeal the worker s complaints of low back and leg pain are not compatible with the worker s injury which was to her shoulder and thoracic area and that the worker has also not been diagnosed with fibromyalgia which is the one exception found in the WSIB s policy on chronic pain where the characteristics of the worker s pain are not required to be compatible with the worker s injury. [39] The Panel also notes that while the worker s representative relied upon the following excerpt found in the Mayo Clinic article: In myofascial pain syndrome, pressure on sensitive points in your muscles (trigger points) causes pain in seemingly unrelated parts of your body. This is called referred pain. that the same article also states: Sensitive areas of tight muscle fibers can form in your muscles after injuries or overuse. These sensitive areas are called trigger points. A trigger point in a muscle can cause strain and pain throughout the muscle. [40] While one part of the Mayo clinic article, the part relied upon by the worker s representative, suggests that referred pain may be experience in other unrelated parts of the body, the second quote would appear to indicate that the pain would be experienced only throughout the affected muscle. [41] It is within this context that the opinions provided by Dr. T. John are to be considered. [42] Portions of those opinions include the following: [The worker] suffered a strain injury to her left shoulder and neck as a result of it (sic) work related injury in She has ongoing mild rotator cuff tendinitis and adhesive capsulitis of the left shoulder. She also has myofascial pain affecting the paracervical, shoulder girdle, low back and hip girdle regions. She also has costochondritis. There was no neurological deficit. (June 18, 2009). [The worker] suffered a strain injury to her left shoulder and neck as a result of work related injury in She has ongoing mild rotator cuff tendinitis and adhesive capsulitis of the left shoulder. She also has myofascial pain affecting the paracervical, shoulder girdle, low back and hip girdle regions. She also has costochondritis. She has residual weakness in the right APB and carpal tunnel symptoms. She had CTS release previously. (February 9, 2010). [The worker] suffered a strain injury to her left shoulder and neck as a result of work related injury in She has ongoing mild rotator cuff tendinitis and adhesive capsulitis of the left shoulder. She progressed to chronic myofascial pain affecting the paracervical, shoulder girdle, low back and hip girdle regions. She also has costochondritis. She has residual weakness in the right APB and carpal tunnel symptoms. She had CTS release previously. The characteristics of her pain are compatible with her injuries and subsequent course. In spite of treatments she is continuing to suffer from chronic pain. Usually with chronic pain the degree of pain is inconsistent with the organic findings. As in this case, therefore, it is my opinion that [the worker] meets the Board s CPD requirements. (April 19, 2010)

7 Page: 6 Decision No. 2132/13 [The worker] suffered a strain injury to her left shoulder and neck as a result of work-related injury in She has ongoing mild rotator cuff tendinitis and adhesive capsulitis of the left shoulder. She also has myofascial pain affecting the paracervical, shoulder girdle, low back and hip girdle regions. She also has costochondritis. She has residual weakness in the right APB and carpal tunnel symptoms. She had CTS release previously. She is starting to develop carpal tunnel symptoms on the left side. She has neuropathic pain also. She can be considered as suffering from a chronic pain disability, under WSIB policy (OPM # ). This has been as a result of the original work related injury. Have (sic) degree of pain is consistent with the organic findings. (September 10, 2010 and repeated March 2, 2011). [43] In considering these opinions the Panel notes first that while the doctor makes findings that the worker has an injury related chronic pain condition and also diagnoses the worker with ongoing chronic pain in both her shoulder/thoracic area and her low back and legs, there is no clear direct statement made by the doctor that the worker s low back and leg pain were caused by her workplace accident. [44] For example, while there are references to the worker s low back and leg pain in the same paragraphs where the worker s work related shoulder condition is being discussed, the same paragraphs also contain references to the worker s carpal tunnel syndrome and surgery which are clearly not related to the workplace accident of September [45] Second, the Panel notes that the following statements from the doctor concerning her eligibility under the WSIB s chronic pain policy are inconsistent in their medical findings and appear to indicate that the doctor has an incorrect impression of what is required under the WSIB s policy: The characteristics of her pain are compatible with her injuries and subsequent course. In spite of treatments she is continuing to suffer from chronic pain. Usually with chronic pain the degree of pain is inconsistent with the organic findings. As in this case, therefore, it is my opinion that [the worker] meets the Board s CPD requirements. (April 19, 2010) She can be considered as suffering from a chronic pain disability, under WSIB policy (OPM # ). This has been as a result of the original work related injury. Have (sic) degree of pain is consistent with the organic findings. (September 10, 2010 and again March 2, 2011) [46] From the above it is not clear whether the doctor is stating that the worker s degree of pain is consistent or inconsistent with the organic findings. [47] Also, if the doctor is stating that the characteristics of the worker s pain in her shoulder/thoracic area is compatible with her initial injuries, the Panel has no difficulty accepting this. [48] However, if the doctor is referring to the pain that the worker experiences in her back and legs, the Panel does not accept that pain in the worker s low back and legs is compatible with her initial accident as is required by WSIB policy on chronic pain which states 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.

8 Page: 7 Decision No. 2132/13 [49] The doctor may (or may not) be indicating an opinion that the worker s back and leg symptoms are related to the initial injury. However, the WSIB policy requirement for compatibility is one that requires the pain symptoms to be compatible with the physical injury that was experienced. [50] In this case the worker s injury was to her shoulder and thoracic region. Pain in the worker s lower back and legs is not compatible to the original injury in the sense that is required by WSIB policy on chronic pain. [51] Third, the Panel notes that the onset of low back and leg pain due to an injury to the shoulder/thoracic area causing a myofascial pain disorder would appear to be inconsistent with the statement in the Mayo clinic paper that: Sensitive areas of tight muscle fibers can form in your muscles after injuries or overuse. These sensitive areas are called trigger points. A trigger point in a muscle can cause strain and pain throughout the muscle. [52] Fourth, and perhaps most importantly, Dr. John would appear to be unaware of the history of the worker s onset of back pain. [53] In her testimony the worker first stated that at the time of her injury she would have only rated her general health as being a four out of ten as she had previously experienced an injury ( a work-related low back injury in 2001). However, later in her testimony the worker stated that she has had pain in her low back since about five days after the accident. She then elaborated on this testimony indicating that the pain went down the leg and she went to see the chiropractor about it and that in the five days shortly after the accident things started to act weird in her back. [54] When the worker was asked about why there were no references in the medical reports from the period following her workplace accident that document her complaints of pain in her low back and legs, the worker could not explain the absence of references as in her view she had mentioned these concerns lots of times to her doctor. [55] The worker could also not explain the observation in the medical report of April 13, 2006 that she had pain in her low back from a major fall on ice while walking home from work 1 month ago. [56] In summary, the worker was inconsistent about whether her back pain pre-existed her workplace fall or came on shortly following the fall. In addition, there is a lack of medical evidence substantiating that the worker had a low back problem in the period immediately following the accident as she has testified to and there is also evidence that the worker injured her back in a non-work related accident in March [57] In reviewing all of the above, the Panel finds that it has not been established on the balance of probabilities that the worker s low back and leg difficulties were significantly contributed to by the injury that she sustained on March 14, [58] The strongest medical evidence provided are the reports of Dr. John but even these reports fall short of containing a definite statement that the worker s low back and leg pain were caused by her shoulder thoracic injury.

9 Page: 8 Decision No. 2132/13 [59] Dr. John has also been inconsistent in describing whether the worker s degree of pain is consistent or inconsistent with medical findings and his statement that the worker s pain is compatible with her injuries is not accepted by the Panel insofar as the doctor is referring to the pain experienced by the worker in her low back and legs. [60] Dr. John also does not explain how a trigger point in the worker s shoulder/thoracic area would cause diffuse low back and leg pain. Given the content of the Mayo Clinic paper, the Panel would have expected pain associated with a myofascial pain syndrome to be contained to within the same general muscle group. The worker has not been diagnosed with fibromyalgia which might explain a broader, more diffuse pain syndrome. [61] Finally, the worker s testimony about the onset of her low back condition has been inconsistent within itself. It is also inconsistent with the medical reporting that is available following her workplace accident that does not document low back problems at that time. And lastly, the worker s testimony did not explain away the contents of a medical report concerning a possible non-compensable cause for the low back complaints when she slipped and fell on ice. (c) The NEL award [62] NEL ratings for chronic pain conditions are performed using the WSIB s Mental and Behavioural Disorders Rating Schedule as found in OPM Document No Under this rating schedule a mild impairment is a Class 2 disorder and is rated between 5 and 15% and a moderate impairment is a Class 3 disorder and is rated between 20 to 45%. [63] The worker was examined by Dr. B. Hoffman on May 4, 2012 for the purpose of rating her chronic pain condition. At the conclusion of that report the doctor writes as follows: If I limit my assessment to the effect of the Chronic Pain in the patient s shoulders and upper back, I estimate her psychological impairment to be in the mild range; however, [the worker] reports that her upper back and shoulder pains have now spread over time and radiate to her lower back and both legs. Therefore, if I include all of the patient s pains including the pains in her lower back and both legs which interferes with her mobility, I estimate the psychological impairment to be in the moderate range. [64] As indicated above, the Panel has not found the worker s low back and leg pain to be caused by her workplace accident. The recommendation of Dr. Hoffman if the back and leg pain are not to be included is for a rating in the mild range which is where the worker s current 10% rating already is. [65] No substantial concerns were raised with the report of Dr. Hoffman or with respect to the accuracy of the recommendation for a rating in the mild range if the worker s low back and leg conditions were not recognized as being compensable. The submissions made on behalf of the worker instead were all aimed at placing the worker within the rating schedule based upon the inclusion of her lower back and leg pain as part of her compensable condition. [66] No submissions were made either about whether a 10% rating was the appropriate rating within the mild range if the worker s low back and leg condition was not recognized. [67] Given that the Panel has not accepted that the worker has entitlement for her low back and leg pain, the Panel finds that no grounds have been established to vary the 10% NEL rating that has been awarded by the WSIB.

10 Page: 9 Decision No. 2132/13 (d) LOE and LMR entitlement [68] The worker s family doctor has provided a list of restrictions based upon the worker s ongoing difficulties in her left shoulder and upper back. These restrictions are included on a Health professional s Report in Form 8 on February 3, The restrictions are for no repetitive use of the left arm and shoulder, no above the head work and no lifting with the left arm. [69] These physical restrictions would not appear to be inconsistent with the ability of the worker to perform work as a Customer Service Representative. [70] Even if the restrictions were expanded somewhat to take into account a myofascial pain disorder affecting the worker s left shoulder and upper back, the worker s impairment would not preclude all workplace activity and would still allow the worker to perform work as a customer service representative. [71] The report of August 1, 2008 by Dr. Lunn that is relied upon by the worker s representative to establish the worker s inability to work is in the Panel s opinion extremely brief and lacking in any substantial content that would explain the doctor s conclusion that the worker would be unable to work with left shoulder and, what the doctor describes as, a neck injury. This is particularly the case given Dr. Lunn s listing of restrictions on the Form 8 dated February 3, [72] The Panel similarly finds the reporting on the Form 8 on June 6, 2007, by the worker s chiropractor, Dr. Humphrey, that the worker is unable to return to work given the severity of her condition, to be unpersuasive in establishing the worker s inability to work following the completion of her LMR program. The report pre-dates the conclusion of LMR services by approximately 9 months. It is furthermore not clear whether the chiropractor is indicating that the worker cannot return to her pre-injury job, which is not disputed, or could not return to any work. And finally, the chiropractor is also clearly including consideration of the worker s low back impairment in this report. [73] When the worker was seen at the Wellness Works program to assess her ability to return to work in February 2007 the recommendation made was that the worker now demonstrates the functional abilities to seek out employment in a light physical demands level. Although there are some qualifications made to this statement the Panel finds that the assessment report as a whole did not support the worker s ongoing inability to work. [74] In addition to arguing that the worker was incapable of employment, the worker s representative also argued that the worker lacked the skills to become employed in alternative employment as she was not provided with what he submitted were required typing skills. [75] The Panel does not accept that the worker s limited typing skills prevented her becoming employed. In order for the Panel to have accepted this argument we would have required some evidence that the worker had at least attempted to return to work following the completion of the LMR program and experienced difficulty in finding employment due to her lack of typing ability. The worker has however not attempted to find employment since the completion of the LMR.

11 Page: 10 Decision No. 2132/13 [76] The Panel also finds that if the worker was genuinely seeking to return to work and her lack of typing skills was preventing her finding work, then some level of self-directed effort to improve her own typing skills might have been expected. However, the worker has, based on her own testimony, made no substantial effort to improve her typing skills since the completion of her LMR plan. [77] For the reasons contained in the preceding two paragraphs the Panel also finds that the worker is not entitled to further LMR services to assist her in enhancing her typing skills. The Panel does not accept that the provision of a course to develop the worker s typing skills would make any significant difference to the likelihood of the worker s actual re-employment.

12 Page: 11 Decision No. 2132/13 DISPOSITION [78] The worker s appeal is denied. DATED: November 28, 2013 SIGNED: G. Dee, V. Phillips, D. Broadbent