WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 497/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 497/10 BEFORE: V. Marafioti: Vice-Chair HEARING: March 12, 2010 at Toronto Oral DATE OF DECISION: May 7, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1091 DECISION UNDER APPEAL: WSIB ARO decision dated December 18, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Mr. Leonard Morreale, Paralegal Did not participate None 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. 497/10 REASONS (i) Background [1] The claim was accepted for an October 11, 2002 injury when the worker was working as an order picker. The Workplace Safety and Insurance Board (the Board) accepted the claim on the basis that the worker fell backwards while at work, sustaining a back injury. The initial diagnosis was acute lumbago. The worker continued to have pain complaints and was assessed at the Regional Evaluation Centre on March 18, It was recommended that the worker returned to suitable work at half days within a week. She was to do no heavy lifting and was to obtain full-time employment within three to four weeks. It was noted that there was no functional impairment. [2] The Claims Adjudicator on March 26, 2003 concluded that based on the Regional Evaluation Centre recommendations, Loss of Earnings (LOE) benefits would be payable on a partial basis from March 24, 2003 to April 28, Based on that, no further LOE benefits were payable beyond April 28, 2003, according to the Claims Adjudicator. [3] On November 7, 2005, the Claims Adjudicator wrote the worker with respect to her ongoing pain complaints and claim for Chronic Pain Disability (CPD). It was noted that the pain appeared to be consistent with a non-compensable organic condition. Therefore, the medical criteria for CPD according to the Claims Adjudicator had not been established and entitlement to the condition was denied. The Appeals Resolution Officer B.J. Martlin concluded that there was no entitlement to CPD and no entitlement to LOE and denied the worker s objections. (ii) The issues [4] I must determine whether the worker is entitled to CPD and further LOE benefits. (iii) The law and Board policy [5] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. However, pursuant to section 102 of the WSIA, the Workers Compensation Act continues to apply to pre-1998 injuries. [6] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. The Legal Services Division of the Board confirmed that the following policy packages, Revision #7, would apply to the subject matter of this appeal: Policy Package #9 Psychotraumatic Disability/Chronic Pain Disability Policy Package #183 Early and Safe Return to Work and LOE Benefits Policy Package #300 Decision Making/Benefit of Doubt/Merits and Justice

3 Page: 2 Decision No. 497/10 [7] The policies will not be duplicated here for practical reasons. I have considered the policies in arriving at the decision. [8] As the accident occurred in October 2002, the Workplace Safety and Insurance Act applies. (iv) The worker s position [9] Mr. Morreale provided submissions on behalf of the worker. He noted and reviewed the worker s testimony and, in particular, the medical evidence on record. He submitted that the worker never recovered from her October 11, 2002 compensable injury. He also submitted that the worker cooperated in all areas of the early and safe return to work process and attempted to return to work but was unable to continue. He submitted that the medical evidence clearly supports the worker s claim and noted that the worker s testimony has been consistent since the time of the compensable accident, indicating ongoing pain and marked life disruption. [10] Mr. Morreale submitted that prior to the compensable accident in question, there was no other compensable accident. He submitted that the worker was able to work and continued to work and did not need any medical or psychiatric treatments, which is not the case subsequent to the compensable accident. [11] Mr. Morreale submitted that there is an organic component to the worker s injury, which also arises from the compensable accident, however he submitted that the medical evidence and the worker s testimony support entitlement under the Chronic Pain Disability policy. Furthermore, Mr. Morreale submitted that the worker has cooperated in her medical rehabilitation and in all aspects of early and safe return to work and is, therefore, entitled to Loss of Earnings benefits from 2003 as the worker was not able to continue in her employment as a result of the compensable accident. In support of his arguments, Mr. Morreale referenced Decision No. 3590/00 and Decision No. 638/99. In Decision No. 3590/00 the Board denied CPD entitlement for the reason that, since pain had developed in sites in addition to the compensable low back the chronic pain was not caused by the work injury. The ARO did not doubt that the worker had developed CPD but upheld the decision for the above reason. The Vice-Chair did not agree indicating that there is no requirement that all areas in a worker s body must qualify in order for CPD entitlement. (v) The Vice-Chair s analysis and conclusions (a) The medical evidence [12] The worker s first medical report comes from Dr. John Kitakufe, the worker s family physician, with a diagnosis of an acute lumbago. There is also a psychiatric report again indicating lumbar strain resulting from the compensable accident. The Chiropractor s Progress Report provides a diagnosis of thoracic lumbar sprain and strain. According to the Form 8, the worker was going down an aisle and slipped and twisted her back. Physical examination findings included severe pain in the mid and lower back with tenderness over the L2-L5 area. X-rays were ordered in the initial medical visit and physiotherapy was also ordered. The Chiropractor s First Report dated October 15, 2002 noted that there was pain to palpation of the paraspinal musculature overlying L2-5 with decreased range of motion of the lumbar and

4 Page: 3 Decision No. 497/10 thoracic spines. I note that ongoing lumbar pain was noted in the Progress Reports from both the chiropractor and the medical doctor in November [13] I note that the x-rays of the thoracic and lumbar spines revealed minor degenerative changes of the thoracic spine and lumbar spine area. Dr. D. Kitakufe referred the worker to Dr. S. Kreidstein, a rheumatologist, who reported on December 30, Dr. Kreidstein indicated that the worker had underlying malalignment of the spine and degenerative changes and her acute lumbago, which occurred in October 2002 was not getting better. According to Dr. Kreidstein, this was likely due to her underlying pre-disposition to back pain. The worker was encouraged to continue with the physiotherapy and abdominal strengthening exercises and back stretches for the worker s neck, which the doctor considered was giving the worker an element of referred pain into the upper back. The worker was prescribed a therapeutic pillow. The worker was also advised to stop sleeping on the floor and was advised to continue with ongoing physiotherapy, massage and chiropractic therapy. [14] I note that the worker continued to see her family physician Dr. Kitakufe with ongoing pain and complaints in the lumbar shoulder area. The doctor reported on January 2003 that the worker had chronic pain. The worker was referred to the Humber River Regional Hospital Regional Evaluation Centre for an assessment on March 18, On examination at the Regional Evaluation Centre, the worker s neck revealed a full range of movement and there was pain felt in the bra-strap area at the extremes of all neck movements. Stress in her shoulders caused some pain in the bra-strap area. Range of shoulder motion was full. Stress in the biceps also caused pain in the bra-strap area and the worker felt some neck area pain, stretching and pinch. [15] There was some tenderness felt in the T8-9 area and to the right of the mid-line and occasionally to the left. Range of low back movement was full and caused some pain in this T8-9 area. Heel and toe gait was performed somewhat hesitantly and with walking on her heels. She felt some pain in the low back. Straight leg raising was to 80 degrees bilaterally with negative sciatic stretch signs. Full hip flexion on the left produced pain in the bra-strap area. There was no neurologic asymmetry in the lower extremities relative to reflexes, sensation and motor strength. The diagnosis was as follows: Lower thoracic spine pain with underlying spondylosis. We had great difficulty appreciating the referral of her pain to the lower thoracic area with all neck movements and with almost all activities including hip flexion on the left. Recommendations We found this woman reasonably functional and advised that she obtain an electric heating pad to use to her back for five minutes every hour or so and have her antiinflammatory changed from the Celebrex to something such as arthrote 50 mg t.i.d. p.c. or naprosyn or vioxx. We advise the patient that she should return to work next week to light duties on a half day basis, avoiding heavy duty, heavy lifting, and gradually increasing her working time over three to four weeks by one hour per week. We advised the patient that although she may experience some discomfort, she should push her way through this. [16] The Regional Evaluation Centre report was prepared by Dr. N. Lithwick and Andrew Tarnowski, registered physiotherapist.

5 Page: 4 Decision No. 497/10 [17] Dr. J. Kitakufe provided a Functional Abilities Form for timely return to work dated March 25, The doctor indicated, by way of general comments, that the worker returned to work March 24, 2003 and it was apparent that she could not do the job and she was sent back for further medical assessment. The doctor recommended a referral to a Regional Evaluation Centre. The worker was also seen by Dr. J. Seligman for consultation, who reported on February 23, The doctor indicated that the worker had chronic low back pain since October 11, 2002 while lifting at work. The worker indicated the upper back pain was the worst area of the pain. The doctor indicated that upon physical examination, the maximal pain was in the lumbosacral spine, there were no sciatic symptoms and the worker was tender locally. The doctor indicated that the worker was doing assembly line work and she was unable to do it and discontinued to work. The doctor recommended that she undergo physiotherapy for the chronic lumbosacral strain. Symptomatic treatment was all that he could recommend. [18] The worker was also seen by Dr. J. Cooper, a psychiatrist, on August 5, Dr. Cooper indicated that the worker presented with a chronic pain syndrome and reactive depression. Dr. Cooper reported in April 28, 2006 that the worker was in quite a lot of pain. He reported that the worker was experiencing a chronic pain syndrome and reactive depression and that the pain in her back was more severe and she had developed severe sciatica. Dr. Cooper indicated that all he could do was provide pain management and monitor her situation. According to Dr. Cooper, there was no doubt that the worker was unable to be gainfully employed in any kind of competitive capacity and the prognosis for vocational rehabilitation was poor. The worker was also referred to Dr. Kirwin for a physiatry consultation. Dr. Kirwin reported on June 2, 2006, June 27, 2006, August 31, 2006, September 18, 2006, December 7, 2006, as well as March 22, On June 2006, Dr. Kirwin provided a very comprehensive report and indicated that the worker was suffering from chronic pain syndrome manifested as a chronic mechanical cervical thoracic and lumbar pain with a non-specific right rib cage pain and left knee and right leg pain plus right knee weakness. A total body bone scan plus an EMG of the right leg was ordered. The worker, as indicated, continued to be assessed and treated by Dr. Kirwin for the chronic pain. (b) Conclusions [19] The Board s policy on CPD is found in Operational Policy Manual Document No and it stipulates in part that CPD is compensable when it results from a workrelated injury and there is sufficient credible subjective and objective evidence establishing the disability. 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 Evidence A work-related injury occurred. Chronic pain is caused by the injury. 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

6 Page: 5 Decision No. 497/10 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. 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. The degree of pain is inconsistent with organic findings. The chronic pain impairs earning capacity. Medical opinion which indicates the inconsistency. Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption. [20] I note that the policy indicates that marked life disruption is the only useful measure of disability or impairment in chronic pain cases. Marked life disruption indicates the affect of pain experienced by the worker and the affect on the worker s activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships. There must be a clear and distinct disruption to a worker s life, but there is no particular requirement for this disruption to be either major or minor. The disruption in the worker s personal, occupational, social and home life must be consistent through the degree of disruption in each not be identical. I find that the worker is entitled to compensation for CPD as a result of the compensable accident because all the conditions required by the policy exist and are supported by the evidence. [21] The first condition that a work related injury occurred is not in question. The worker has had a compensable accident which has been accepted by the Board. The condition of the chronic pain being caused by the injury requires that medical evidence either subjective or objective show continuous, consistent and genuine pain since the time of the injury. I find that there is supporting evidence from the worker s family physician from Dr. Cooper and Dr. Kirwin that it can be reasonably concluded, on a balance of probabilities, that the characteristics of the pain other than its persistence and/or its severity is compatible with the injury and are such that the physicians conclude that the pain resulted from the injury. There is nothing in the evidence to indicate that any of the physicians doubted or had misgivings about the genuineness of the worker s pain. Dr. Cooper and Dr. Kirwin, in particular, clearly indicate that the worker suffers from CPD, and also reactive depression with symptoms of CPD as well. There is nothing in the medical evidence that any of the treating physicians had misgivings about the genuiness of the worker s pain. To deny entitlement as the Board did in part on the basis that there was an

7 Page: 6 Decision No. 497/10 organic component and the worker does not meet the CPD criteria cannot be supported by the evidence. [22] I do note the opinions of Dr. A. Kanalec, the Board s Medical Consultant. In his view the medical information provided by Dr. Seligman appeared to be supportive of an organic source for the ongoing pain and discomfort. Based on that information of the symptoms up to that point, which was February 23, 2004, he opined that the symptoms tended to support compatibility with an organic physical finding and imaging result. Therefore, in his opinion, the chronic pain appeared to be of an organic origin at this point and hence the criteria for CPD had not been met. [23] It is important to note that the Board has accepted entitlement in this case for a compensable claim. It is well established in Tribunal case law that in order to determine a causal relationship, the proper question is whether the work related injury was a significant contributing factor in the development of the CPD. I note that the worker has consistently complained of pain to the upper and lower back. Furthermore, in her testimony, the worker was straightforward in giving evidence that there was significant marked life disruption caused by her pain in all the required spheres to cause her impairment of earning capacity. [24] In summary, I am satisfied that the worker does meet the criteria for ongoing chronic pain disability and does meet the criteria under the CPD policy to warrant entitlement and further LOE benefits. Dr. Cooper was quite clear that the worker was unable to be gainfully employed in any kind of competitive capacity and the prognosis for vocational rehabilitation was poor. I note also that the worker was 58 years old at the time of the report from Dr. Cooper.

8 Page: 7 Decision No. 497/10 DISPOSITION [25] The worker s appeal is allowed. The worker is entitled to benefits under the CPD policy and further LOE benefits. DATED: May 7, SIGNED: V. Marafioti.