WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1399/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1399/16 BEFORE: G. Dee: Vice-Chair HEARING: May 19, 2016 at Oshawa Oral DATE OF DECISION: June 3, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1464 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) Decision dated November 29, 2013 APPEARANCES: For the worker: For the employer: Interpreter: C. Topple, Paralegal 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. 1399/16 REASONS (i) Issues [1] The worker seeks entitlement for a chronic pain disability. [2] In the alternative the worker seeks entitlement for impairments involving her bilateral shoulders, bilateral carpal tunnel syndrome (CTS) and left ulnar neuritis as well as recognition of permanent impairments involving her neck and right elbow. (ii) Background [3] The worker is currently 64 years old and has worked as a bookkeeper for the accident employer for approximately 30 years. [4] In 1998 the WSIB recognized that the worker had a gradual onset cervical strain and a right lateral epicondylitis. This entitlement was extended to include secondary headaches. It was found that the worker s workstation contributed to the onset of this condition and the worker s workstation was ergonomically assessed and changes were made. [5] The worker continued to be entitled to some benefits in relation to her accepted injury over the next five to six years with entitlement to some periods or recurrence and to some medical care including shoulder braces and replacement for shoulder braces. However, when the worker s file was reviewed for entitlement for a permanent impairment in 2006, entitlement was denied. [6] When the worker again contacted the WSIB in 2010 ongoing entitlement was again denied. [7] The worker s request for recognition of an ongoing impairment relates to her concern that she has been required to work a reduced work week as a result of her ongoing impairment. The worker also has had continuing health care needs that she believes are related to impairments caused by her workplace duties. This decision does not deal with the worker s request for specific health care costs or loss of earnings benefits but only deals with the question of whether she has entitlement to recognition of an ongoing impairment. [8] The worker objected to the lack of entitlement but the worker s appeal was rejected in an Appeals Resolution Officer s decision that is dated November 29, The decision found that the worker s cervical strain and right lateral epicondylitis were resolved with no residual impairment and that the worker did not meet the criteria required for entitlement to a chronic pain disability. Entitlement for carpal tunnel syndrome and left ulnar neuritis was denied as either being caused by the worker s workplace duties or as being secondary conditions that developed from her accepted areas of entitlement. Entitlement was also denied for the worker s shoulders as there was no diagnosis provided by treating physicians of an impairment affecting the worker s shoulders. [9] The worker now appeals to the Appeals Tribunal. [10] The accident employer did not participate in the appeal.

3 Page: 2 Decision No. 1399/16 (iii) (a) Analysis Decision overview [11] The medical evidence supports a conclusion that the worker has a chronic myofascial strain involving her neck that is causing referred pain. [12] The evidence also supports a conclusion that despite some fairly extensive gaps in the medical reporting, this condition is related to the worker s initial work injury in 1998 and her workplace duties since that time. [13] The referred pain from the myofascial strain includes her shoulders and her right arm and is also responsible for the worker s headaches. [14] The worker s medical conditions that have been diagnosed as either carpal tunnel syndrome or left ulnar neuritis have not been shown to have been caused by her workplace duties or by her chronic myofascial strain. [15] The evidence also supports a conclusion that the worker s right lateral epicondylitis has resolved. [16] The worker is a long-term continually employed individual who demonstrates almost no pain focused behaviours. There is however a lack of objective evidence of a specific neck impairment. Given the manner in which the worker s ongoing impairment affects all aspects of her life I find that the worker s entitlement for her myofascial strain is most appropriately compensated for under the WSIB s policy on chronic pain disability. (b) Chronic myofascial strain diagnosis [17] The worker has reported ongoing neck and headache concerns as being related to her work duties since [18] The WSIB accepted that these concerns were related to her workplace duties and paid wage loss and health care benefits for six years at different points in time from 1998 until 2004 including entitlement for a TENS, physiotherapy and shoulder braces. [19] The employer was as late as April 2003 reporting to the WSIB the hours that the worker was missing from work due to her work related injury. The WSIB approved physiotherapy in May 2003 and authorized the payment for a Figure 8 brace on February 26, [20] It was only in August of 2006 when the worker contacted the WSIB to request coverage for a replacement brace that the WSIB started to question the worker s ongoing entitlement. [21] The most consistent diagnosis that has been present in this claim since the year 2000 is a diagnosis of chronic myofascial strain with referred pain. [22] There are two medical opinions from WSIB physicians that have been largely responsible for the denial of entitlement since As will be seen from the following however neither of these opinions indicates either that the worker does not have a chronic myofascial strain or that it is not related to the accident and the worker s subsequent duties. [23] Dealing first with the diagnosis of a chronic myofascial strain. [24] The nature of the expressed concerns by the worker and the diagnosis of those concerns has varied over time. Concerns with a left elbow neuritis, right lateral epicondylitis, and carpal

4 Page: 3 Decision No. 1399/16 tunnel syndrome appear in the medical reporting but not consistently. I will deal with these reported impairments below. [25] The one diagnosis that has appeared quite consistently over time is of a chronic myofascial strain with pain referred from the worker s neck into her head. This diagnosis appeared first in an October 30, 2000 report from a Regional Evaluation Centre. It appears again in the report of Dr. S.W.J Wong, Physiatry Consultant, that is dated December 17, It also appears consistently in the medical reporting of Dr. T. John, Physical Medicine and Rehabilitation Specialist and as recently as August 6, Finally it appears in the most recent report from the worker s family doctor, Dr. D. Ibsen in his report of January 22, 2016 although this doctor also describes the worker s difficulties also as simply neck pain or cervicogenic pain in reports dated April 1, 2010 and July 29, [26] In a telephone call with the worker s family doctor on October 29, 2010 a Case Manager confirmed that Dr. Ibsen was of the opinion that the diagnosis concerning the worker was myofascial pain syndrome neck and shoulder going back to 2001 or so. The family doctor indicated that the physiatrist Dr. Wong and the CP specialists Dr. Bobella and Dr. Toma both diagnosed the condition and that another physiatrist, Dr. Mayer also diagnosed that condition. [27] In a report dated July 29, 2010 Dr. Ibsen states that the worker had a flare-up of pain from work in January 2003 and physiotherapy was restarted. While problems with pain were noted in visits in 2005, 2009 and 2010 the doctor states that he ordered no further investigations since 2003 as her symptomatic condition was regarded as chronic with treatment consisting of modified hours, work and a posture brace. [28] In a report dated January 22, 2016 the family doctor writes as follows and confirms the diagnosis of myofascial pain syndrome: I have been [the worker s] family MD since She developed cervicogenic headaches as well as right elbow and shoulder pains in She has been extensively evaluated and treated by various doctors over the years including Dr. Somchai, (neurologist) in 2002, Drs. Toma, Doran and Bubella at the Oshawa hospital s chronic pain clinic starting in She has been assessed and followed by Dr. John (physiatrist) since the early 2000 s. She has had multiple interventions with physiotherapy, ergonomic assessments of her work place, TENS units. She has had multiple trigger point injections at the chronic pain clinic. She has had extensive physiotherapy, she has used braces as well as had her work duties and hours have been modified. She uses regular advil for symptoms control. She cannot take a lot of meds for chronic pain as she has glaucoma which causes a lot of drug contraindications. She has persistant (sic) right arm, wrist and shoulder pain. She has cervicogenic headaches. She has developed a widesperead (sic) diffuse myofascial pain syndrome. He (sic) condition is considered chronic and permanent. [29] A report from Dr. T. John dated August 12, 2014 indicates that: [The worker] suffered repetitive strain injuries to her right upper extremity and developed myofascial tightness and pain affecting the paracervical and shoulder girdle musculature which is worse on the right side. She also suffered strain injury to her left shoulder and has been off work for 3 weeks. She also has myofascial tightness affecting the forearm

5 Page: 4 Decision No. 1399/16 muscles and has evidence to suggest carpal tunnel syndrome and ulnar neuropathy in the cubital tunnel. She also has occipital headaches. Her problems are due to the repetitive nature of her work for 27 years. Previous electrodiagnostic studies revealed sensory carpal tunnel syndrome on both sides. She also has ulnar neuropathy in the cubital tunnel on the left side. This is due to positioning of her left elbow on the table at work. [30] All of the above reports support that the worker has a myofascial pain syndrome as a result of her work duties that has not resolved. [31] Given the above, I do not accept the analysis of WSIB physician Dr. Grbac that is contained in a report dated August 21, 2006 and that states: At the time of the REC report from Oct00 a restriction in terms of neck ROM was noted. In a report from Jan01 a slight restriction of neck movements to the right when combined with extension was recorded. The IW underwent a series of nerve blocks and further physio. As per Dr. Wong in a report from Nov02 only mild stiffness was appreciated and the IW was improving. Further improvement was noted in Dec02. The most recent entry on file from Jan03 noted that the IW s symptoms were much improved. No objective clinical findings were noted. Further improvement and a complete recover (sic) was anticipated. The available medical information on file does not provide objective evidence to support a rateable (sic) PI in terms of the neck, as per the Guides to the evaluation of permanent impairment 3 rd edition. [32] Whether or not the doctor s predictions were accurate when made on the evidence that was available is not the relevant issue although it does not strike me as reasonable that a condition that had existed for over eight years since the date of accident was likely to resolve. What is relevant is that the subsequent medical information indicates that the worker s condition continued and that it continued to cause her restrictions on activities. [33] The subsequent report of WSIB consultant physician Dr. Hokim dated November 2, 2010 while indicating that the worker did not have a ratable neck condition on an organic basis leaves open the possibility that entitlement for myofascial pain might be accepted:..there is insufficient evidence to support rateable (sic) PI for the neck. If claims were to accept DX of myofascial pain to right shoulder/neck then there would not be rateable (sic) PI for neck based on absence of sufficient objective findings for neck. If you were to accept this dx for rt shoulder, this would still be subjective, PI on RSI basis. Again the rpts on file do not support the dx as stated in #47, so it is at your discretion to obtain these mrpt for the completeness of the file should you accept this dx and pi as you appear to suggest in your #48. [34] Again, I am not certain of precisely what medical reports were available to Dr. Hokim when this opinion was provided. However, by the time of the November 2010 report the worker had been seen by numerous physicians who have consistently diagnosed the existence of a myofascial pain syndrome. The worker continued for 12 years to experience the same type of pain that started in 1998 and which the WSIB itself recognized for six years as being related to the workplace duties that the worker was participating in in While the worker s workplace was modified starting in 1998 the medical evidence supports quite strongly that the workplace duties continued to contribute to the worker s symptoms after that point despite the modifications. [35] In accepting that the worker has a myofascial pain syndrome I find that the most reliable description of the extent of that condition is provided by the family doctor who states:

6 Page: 5 Decision No. 1399/16 She has persistant (sic) right arm, wrist and shoulder pain. She has cervicogenic headaches. She has developed a widesperead (sic) diffuse myofascial pain syndrome. [36] Although Dr. Johns describes more widespread difficulties as a result of the worker s diagnosis there is an evident lack of care for detail in the doctor s reports with much repetition between the reports. In this regard I note for example that the doctor s reports of August 12, 2014 and August 6, 2015 both have the worker having strained her left shoulder and having been off work for 3 weeks. [37] There is no support for the existence of a separate left shoulder injury in this claim. The worker s compensable condition appears to be focused in the right shoulder/neck area but it is described as diffuse and there is no reliable evidence upon which I could decide whether the worker might experience some referred pain into the left shoulder. [38] While there is medical evidence that supports the possibility that the worker has a bilateral carpal tunnel syndrome, despite the quoted opinion from Dr. Johns there is not in my view sufficient information in terms of specific job duties and dates of onset, etc. to be able to conclude that on the balance of probabilities the carpal tunnel syndrome was caused by those work duties. While carpal tunnel syndrome may be caused by work duties it may also be experienced for other reasons and without knowing exactly when the condition started and the exact working conditions that were being experienced at the time it would appear speculative to draw a connection between the carpal tunnel syndrome and the work duties. [39] Similarly the evidence in support of the worker experiencing a left ulnar neuritis as a result of work duties is also limited. It is not known when this condition started or whether it has resolved. The only description of the conditions in the workplace and how it might have contributed to the development of this condition is contained in the report of Dr. John s with no direct evidence available. [40] Finally, I agree with the portion of Dr. Grbac s opinion of August 21, 2006 that there is a lack of evidence of a continuing problem with right lateral epicondylitis that was present when the claim was first recognized in (c) Chronic pain disability entitlement [41] The worker does not demonstrate pain behaviours. This is noted in the medical reporting. I observed this on my own at the hearing. [42] The worker is a long-serving employee with the accident employer. She impressed me as likely being a valuable employee as well. She was pleasant but no nonsense. She described the pain that she experiences following work in a matter of fact manner without dramatics or obvious exaggeration. There is no indication of depressive symptomatology. [43] Nevertheless, the WSIB physicians are of the opinion that the worker does not have an assessable permanent impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, but the worker does appear to meet the criteria established under the WSIB s policies on chronic pain. [44] According to OPM Document No chronic pain is pain with characteristics compatible with a work-related injury, except that it persists for six or more months beyond the

7 Page: 6 Decision No. 1399/16 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 six 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. [45] There can be little doubt that the first four criteria have been met. There has been a recognized accident with long lasting pain resulting from that accident. The WSIB physicians have noted the lack of objective organic findings in support of the worker s symptoms. [46] With respect to whether or not there is an impairment of earning capacity, WSIB policy requires that there be 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. [47] I found the worker to be a credible witness. She has continued to work for many years though she continues to experience pain that has been well documented. The worker has reduced the number of hours that she works and has permanent modifications to her work site so that she does not have to bend her head down to read documents. She takes regular stretch breaks from her work. She wears a brace while working. In addition to the reduction of work hours that she asserts is required as a result of her compensable condition, the worker indicates that her husband now does all of the heavy housework and cooks. If the worker is preparing a large dinner with guests her husband will chop vegetables so that she does not have to bend. She uses her computer at home for banking purposes only. When playing card she holds her cards in front of her face or uses a telephone book to place the cards on. [48] Where the worker continues to be active she acknowledged her abilities. She continues to walk for exercise and she drives herself to work. She states that she has good attendance at work (on reduced hours) and tries not to be demonstrative on bad days. [49] I accept the worker s testimony as providing the required evidence of a consistent and marked life disruption.

8 Page: 7 Decision No. 1399/16 DISPOSITION [50] The worker s appeal is allowed. [51] The worker is entitled to recognition of her chronic myofascial pain under the WSIB s policy pertaining to chronic pain disability. [52] This recognition does not include limitations that are described in the body of this decision that are related to conditions that have been diagnosed as a left shoulder strain, bilateral carpal tunnel syndrome, left ulnar neuritis or a right lateral epicondylitis. [53] The determination of wage loss or health care benefits that the worker may be entitled to as a result of this decision is returned to the WSIB for a determination with the parties retaining their usual rights of appeal. DATED: June 3, 2016 SIGNED: G. Dee