WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1394/09

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1394/09 BEFORE: J. Goldman : Vice-Chair M. Christie : Member Representative of Employers F. Jackson : Member Representative of Workers HEARING: July 15, 2009 at Toronto Oral DATE OF DECISION: September 28, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2249 DECISION(S) UNDER APPEAL: WSIB ARO decision dated July 15, 2008 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. 1394/09 REASONS (i) Issues [1] In a decision dated July 15, 2000, the Appeals Resolution Officer (ARO) denied the worker entitlement for fibromyalgia and depression related to her work injury on August 7, [2] The issue agenda was discussed at the beginning of the hearing. The worker's representative agreed that depression, chronic fatigue syndrome, weight gain and sleep apnea are conditions associated with fibromyalgia and the worker would not be pursuing separate entitlement for these aspects of fibromyalgia. They were seeking loss of earnings benefits beyond February 5, 2001 related to the worker's fibromyalgia. Consequently, the only issues before this Panel are: entitlement for fibromyalgia and LOE benefits beyond Feb, [3] The Panel was unable to reach a unanimous decision in this case. The Vice Chair s dissent follows. (ii) Background [4] The now 48 year old worker was employed as a dietary aide by the accident employer in On August 7, 2000, the worker received a shock from the steam cart when she put her hand on it. She was seen that same day at Peterborough Regional Health Centre. In his Form 8 for the Board, the attending physician diagnosed the worker as having a low voltage electrical shock no injury. Under findings, the physician noted the worker had discomfort in her arms and no burn. There was no mention of any head injury or trauma. Finally, in the Functional Abilities Form (FAF), the doctor advised the worker could return to regular work. [5] The August 31 st clinical note from her family physician, Dr. Van Loon, indicates the worker told him that she had multiple symptoms from the electrical shock and that she felt the current go through her body and out her head, leaving a soft spot at the top of her head. There was no discussion of physical symptoms or of ongoing pain recorded. The physician also noted the worker was peri-menopausal and had depression with situational anxiety around work. The physician s note from September 27, 2000 noted the worker felt her depression and migraines were related to her electrical shock and not anxiety. He did note under personal problems that there were financial worries in the family and problematic behaviours with children. The clinical note from November 30 th also states that the worker attributes multiple symptoms to electrical injury. These symptoms are listed as headaches, bloating, sleepiness and weight gain. [6] There are also clinical notes from the worker's other family physician, Dr. Burwell. He treated her in the early 1990s with Paxil for migraines and stress (depression), and then saw her again on November 8, 2000, concerning her August 2000 injury. Dr. Burwell saw her again in December for pneumonia. [7] On January 2, 2001, the worker saw internist Dr. D. May. She described her August 7 th incident as follows: she had an electric shock go through her upper body. She was working at a steam table Apparently there were some bare wires which touched the table and a shock went up her arms as she went to move the steam table jolting her back a foot from the table

3 Page: 2 Decision No. 1394/09 although she did not fall down. She felt the buzz go up her arms and out the top of her head and had a sore spot there [8] Dr. May described the worker's past history as including a bout of pneumonia in 1999 and a recent one the past December for which she was briefly hospitalized. He also remarked that she smoked a pack of cigarettes a day. Concerning her emotional health Dr. May commented: [the worker] has a history of situational depression and has been on Paxil She had attended a family doctor in Whitby in the past whom she went to see again and his work up revealed a depressed level of serum estradol which he has treated with some estrogen replacement therapy. She thinks since being on that therapy she has been feeling better. [9] The worker told Dr. May she had not had headaches recently but complained of her abdomen swelling. She also complained of weight gain for no reason. [10] Dr. May reported his physical examination of the worker as being normal. He reviewed her blood work which was normal save for estradol which he described as below the lower level of normal for a menopausal woman. Dr. May s report concluded as follows: I cannot account for the occurrence of the weight gain and her multiple symptoms in relationship to the electrical accident she had last summer. Certainly her weight gain follows the pattern of one who tends to eat more in the last half of the day I have suggested making some alterations in her meal plan I think that blood work and x-rays have confirmed that there is not any evidence of other systemic abnormalities going on in the lady. She has responded somewhat to the estrogen replacement this may perhaps continue and things may improve. [11] On February 7, 2001, the worker then saw Dr. T. Pain at the Lockwood Clinic. The physician stated he was not sure why the worker had gained so much weight and whether it was related to the accident (August 2000) that she had. He could not find any definite clinical evidence of thyroid disease or diabetes mellitus. He suspected the worker might have some sleep disorders and planned to do some sleep studies. Dr. Nevin (from the Lockwood Clinic) authorized the worker off work as of February 8, 2001 for an indefinite period of time due to fibromyalgia and chronic fatigue syndrome. [12] The worker filed a compensation claim and the file was listed for investigation. A Board investigator interviewed the worker on March 30, 2001 and obtained the following information from her: She did have pre-existing migraines in her 20s but received no treatment. Her migraines have been under control for the last 9 years and she uses Paxil to treat them. Her family physician when she lived in Toronto was Dr. Gee. Her physician in Millbrook was Dr. Van Loon and in Whitby was Dr. Burwell. She moved to Peterborough six years ago and started treatment with Dr. Van Loon who has her on Paxil for anxiety and depression. Regarding the accident, she was turning at a weird angle and touched the steam table for support, at which point she got a shock. The worker fell back a foot, was

4 Page: 3 Decision No. 1394/09 crying, but continued to work. She was checked by the staff nurse and went to the hospital. She started to experience a deterioration in her health following that incident. She also mentioned a second shock occurring on October 26, 2000, also from a steam table. She stated she had reported this incident to the food supervisor. [13] Dr. Burwell provided a more detailed report to the Board dated April 10, He noted that he had treated the worker until 1994 and she had returned to his care in November Dr. Burwell saw the worker again on February 27, 2001 and a referral (for June) was made to a rheumatologist. He saw the worker again in March and April She told him a sleep study suggested she had sleep apnea. Dr. Burwell concluded that the worker s diagnosis was compatible with fibromyalgia with possible overlying depression and sleep apnea. He also noted that fibromyalgia was a difficult diagnosis to make objectively, and its (sic) connection with her electrical injury cannot be made with certainty. It should be noted that there is no report on file from a rheumatologist referencing a June visit. [14] The Board Claims Adjudicator referred the file to Senior Medical Consultant, Dr. Boga, for an opinion as to compatibility. Dr. Boga agreed with Dr. May that the worker's current symptoms did not seem to be related to or compatible with the August 2000 incident. [15] The Claims Adjudicator subsequently denied the worker s claim. [16] On February 25, 2002, the worker's family physician, Dr. Burwell, issued a report stating the worker s various conditions (headaches, fibromyalgia, depression, fatigue, poor sleep, etc.,) were a direct result of the injury sustained on August 7, Dr. Burwell then referred the worker to Dr. M. Wills of the Occupational Health Clinics for Ontario Workers Inc. (OHCOW). In his report from March 27, 2002, Dr. Wills noted the mechanics of her injury were not well defined. He did state that those who have been part of a current conduction injury can develop an autonomic dysfunction with Raynaud s phenomenon along the current path. [17] Prior to the worker s appeal being considered at the ARO level, her file was again referred for review. Board Senior Medical Consultant Dr. Kashani stated, in a memorandum dated August 7, 2007, that the new medical information did not change the previous opinion that the diagnosis of depression and fibromyalgia was not related to the compensable accident. [18] The ARO relied on the above in denying the claim. The worker now brings the matter to the Tribunal for a final decision. [19] The most recent medical report on file is from Dr. S. Blitzer. In his report dated December 16, 2008, he commented that the worker is on Venflaxine, Amitryptyline, Naprosen and Oxycontin. He noted that prior nerve conduction studies were normal. On examination, the worker was tender in 12/18 of the standard fibromyalgia points. Dr. Blitzer discussed several pain management techniques and physical therapy options with the worker. He confirmed the diagnosis of fibromyalgia.

5 Page: 4 Decision No. 1394/09 (iii) Testimony [20] The worker testified that following the August 7 th incident, she began to experience chest pain, difficulty breathing, fatigue and numbness in her arms, as well as sleep disruption, symptoms she did not have prior to the accident. She also recounted that her migraines became significantly worse after August 7, The worker explained that her symptoms became progressively worse until, finally, she had to leave her employment in February She has not worked since that time nor has she contacted her former employer. The worker indicated there was no modified work at her former place of work. [21] The worker indicated that she has sought employment but, because of her condition, she is unable to maintain any type of employment. At present she is receiving benefits from the Ontario Disability Support Plan. (iv) Relevant law and policy [22] The relevant section of the Workplace Safety and Insurance Act states in part: 13. (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. [23] Board Operational Policy Manual, Document No , entitled Chronic Pain Disability, states that the Board will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability. [24] Board Operational Policy Document No , entitled Chronic Pain Disability, states that the Board will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability. The policy goes on as follows in explaining the application of the policy: Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of posttraumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the Board's policy on that organic or psychiatric condition. if however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder to conversion disorder see ) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy.

6 Page: 5 Decision No. 1394/09 [25] The Board has compiled a chart to outline how the criteria for chronic pain disability are to be assessed: Condition A work-related injury 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. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective 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. Medical opinion of the usual healing time of the injury, based on the nature of the injury, the worker s preaccident 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 of the injury 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. [26] This policy also states that a worker's diagnosis of fibromyalgia syndrome will be considered for compensation benefits under the CPD policy. It goes on to state that characteristics of fibromyalgia 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 charcteristics 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 variant of CPD and workers who are disabled by fibromyalgia may be eligible for benefits under the CPD policy

7 Page: 6 Decision No. 1394/09 (v) Tribunal discussion paper on fibromyalgia [27] Among the various Tribunal discussion papers is one on fibromyalgia syndrome prepared for the Tribunal in February 2003 by Dr. D. Gordon, Professor of Medicine, University of Toronto (with a forward by Dr. A. Weinberg). The paper contains the following general comments on fibromyalgia, providing a useful context: Fibromyalgia (FM) is one form of chronic pain disorder affecting the musculoskeletal (MSK) soft tissues of the body. It is not a type of arthritis or joint disease and for that reason is termed a non-articular rheumatic condition. The chief symptom of FM is the presence of widespread pain associated with a lowered pain threshold resulting in painful tenderness affecting specific musculoskeletal sites detectable on pressure or palpation. These specific sites known as tender points are recorded by the examiner as present or absent. If present, they may be compared to standard control sites located at a distance from the tender points. It is characteristic that patients diagnosed with FM for the first time are usually unaware of the presence of these tender points SYMPTOMS Chronic widespread musculoskeletal pain and tender points are the diagnostic clinical features of FM, but there are many other symptoms associated with it such as dizziness, headache, fatigue, poor memory, non-restorative sleep, and irritable bowel or bladder symptoms, that are not part of the ACR criteria. However, in addition to the widespread chronic pain lasting more than three months, these other symptoms are generally present. As noted, a high proportion of those persons with chronic fatigue syndrome also show characteristic features of FM. DIAGNOSIS This is based on history (symptoms) and physical examination (signs). A patient with widespread pain, generalized achiness affecting 3 of 4 main regions lasting more than three months, with the presence of at least 11 of 18 tender points meets the 1990 American College of Rheumatology (ACR) criteria for the diagnosis of FM. The pain of FM is worse with sustained repetitive physical activity CAUSES The cause or causes of FM are unknown and patients with FM show no specific pathologic changes in the musuloskeletal tissues; and there is no laboratory test diagnostic of it. Moreover, FM is not life-threatening. For these reasons it is not considered a disease, but a syndrome, i.e., a combination of symptoms and signs that separates or distinguishes it from other forms of arthritis and rheumatism. Many patients with FM report that their condition started with physical or emotional trauma, infection, or surgery. Smythe suggests that, in keeping with the pioneering studies of Lewis and Kellgren, the location of the pain and tender points is determined by the deep referral patterns associated with a mechanical problem of the neck and back. Pain symptoms then become magnified by sleep disturbance, psychological factors, physical deconditioning and frequently by generalized joint hypermobility. [28] Dr. Gordon states that a retrospective study from Israel showed FM occurring 12 times more commonly after neck injuries than in workers with lower limb fractures. He describes that major depression is associated with FM but it is not clear if those problems are the cause or an effect. He identifies a number of factors as associated with, and/or as possible causal factors, in

8 Page: 7 Decision No. 1394/09 the development of fibromyalgia. These include physical trauma, as well as emotional trauma, headaches, and sleep disturbance. [29] Dr. Gordon concludes: There is limited science to conclude that Fibromyalgia may be caused as a result of an accident, nature of work, or exposure. On the other hand, just because there is no indisputable evidence does not mean that there may not be a relationship, only that prospective studies have not been done. (vi) Submissions [30] Mr. Topple submitted that the worker's debilitating symptoms flow from her diagnosis of fibromyalgia, which, in turn, is related to her work injury. He submitted that the worker sustained two injuries: one being the electrical shock, and the second being the injury to her head when she was jolted backwards. He argued the medical evidence was supportive of there being a causal connection between the electric shock injury and the development of the worker's fibromyalgia. (vii) The findings of the majority of the Panel [31] The Panel was not able to reach consensus in this appeal. We have carefully considered the dissenting Vice Chair s thinking on this appeal but find ourselves unable to agree. What follows then constitutes the reasoning of the Majority. [32] We turn first to the nature of the injury itself. The physician who provided first service and who would, therefore, have been in the best position to observe the effects of the worker's incident, reported that it was a low voltage electrical shock with no injury. The only symptom presented by the worker was discomfort in the arms. There is no mention of the current shooting out through the worker's head or any tenderness in that area. It seems unlikely to the Majority that the physician would have ignored major symptoms if such had been described to him. There was no mention of a head injury and we conclude there was none. The physician must have thought the worker was healthy because he cleared her for a prompt return to regular work. [33] Some three weeks later the worker saw Dr. Van Loon and his note indicates only that the worker complained of persistent tenderness on the top of her head. Dr. van Loon did not suggest this had been verified on examination. There was also no compliant of widespread body pain such as Dr. Gordon indicates in his Discussion Paper is to be expected with fibromyalgia following on trauma. Dr. Van Loon did observe that the worker had stable depression (and the file documentation suggests it was longstanding) and that the worker was peri-menopausal. He did not, on that, or in future visits, suggest that the worker was not fit to work. He also referenced various personal factors as contributing to her symptomatology. While Dr. Van Loon notes specifically that the worker continued to feel her symptoms were related to her August 7 th incident, there is no indication that he shared that view. Dr. Burwell s note from November 8 th mentions only weight gain and that the worker was tired. He prescribes Paxil (for depression) and Tylenol. There is no mention in his clinical note of body pain. Dr. Burwell s note from December 6 th mentions the worker has pneumonia and is off work; it also discusses estrogen levels. There is again no mention of diffuse body pain.

9 Page: 8 Decision No. 1394/09 [34] The worker's visit to Dr. May in January 2001 resulted in a detailed four-page report. The physician appears to have taken pains to record the worker's history as presented at the time. The worker conveyed to him that her depression seemed to have lessened since she started on estrogen replacement therapy and also commented that she had not had headaches recently. Dr. May did not relate the worker's symptoms to the electrical shock she received and suggested her weight gain followed the pattern of one who eats more in the last part of the day. He did note that the worker mentioned some low back pain which he attributed to her weight gain. There is no mention of the kind of aches and pains associated with fibromyalgia. [35] In the view of the Majority, none of the medical evidence concerning her symptoms for the six months following the accident implicates the work injury, save for the one clinical note by Dr. Burwell whom the worker had not seen since [36] In our view, the evidence establishes the worker had a minor, no lost time injury, with no ongoing physical impairment referable to that injury manifest. At this juncture, it is important to consider the development of fibromyalgia in relation to a physical trauma, and within the context of the Board policy on chronic pain disability. [37] Briefly, with respect to the chronic pain disability policy there must be a workplace accident (and, in this case there was). There must be pain from the injury that persists beyond the usual six month healing time and is not explicable on an organic basis. Now, in the case of fibromyalgia, the pain does not need to be restricted only to the area of injury, as diffuse body pain is the hallmark of fibromyalgia. On the other hand, pain must be present. In many cases before the Tribunal, one sees a physical injury, where the pain from the injury does not resolve and, instead, evolves into a fibromyalgia syndrome. In the case of a back injury for example, the worker would continue to experience back pain and this would later spread and include the tender points. With the development of fibromyalgia, depression and sleep disturbance often emerge as well. This is because, as explained in the Tribunal Discussion Paper, the pain disturbs sleep patterns and emotional well being. [38] The role, nature and extent of the work injury are crucial in determination of causality. We would refer to Tribunal case law on this point. In Tribunal Decision No. 2105/03, the case concerned a worker who had incurred a number of minor work injuries (a no lost time twisting of his ankle in August of 1991; a no lost time cutting of his right hand with a handsaw in March of 1994; being hit by a chain on the left thumb in October of 1994; being struck by a bar on the forearm in May of 10, 1995, with one week of benefits paid; a contusion to the left upper forearm in October of 1995 resulting in one day off work; and, two injuries to the mid-back, one in 1996 and the other in 1997, resulting in some lost time). The Vice Chair determined that the onset of fibromyalgia occurred in 1998 or 1999 so that compensable injuries after that time were not to be considered. In assessing the role of the compensable injuries Vice Chair E. Smith set out her thinking on the issue: It is also necessary to identify the role of the injuries for which entitlement has been granted. The injuries suffered in the accident of May 2000, are not related to how the fibromyalgia arose, because they are also injuries that occurred after the development of this condition. They are considered separately below.

10 Page: 9 Decision No. 1394/09 The worker suffered numerous compensable injuries prior to However I find that the compensable injuries suffered prior to 1996 are too minor to be of relevance for the development of the fibromyalgia. This is also the case with respect to the injury to the worker s little finger on October 3, 1997, and to his right middle finger on June 12, 1999, The Tribunal Medical Discussion Paper refers to an association of fibromyalgia with physical trauma. The Board s CPD policy requires evidence of continuous symptoms from the time of injury to the time that the fibromyalgia develops. In my view a no-losttime injury or a minor temporary injury does not meet these criteria. There is no evidence of specific continuous ongoing symptoms from these accidents, associated with the development of the fibromyalgia. The worker testified that all his injuries continued to hurt him. However the worker s history of his symptoms is not entirely reliable. I consider this testimony too vague to support an ongoing role for these accidents, in the absence of specific medical evidence. Therefore, in my view, only the accident to the thoracic spine in April 1996, in conjunction with the evidence of later brief recurrences of thoracic injury, are relevant in considering a possible relationship to the development of fibromyalgia. The worker did have significant thoracic symptoms after the 1996 injury, with further symptoms in 1997 and However, despite the worker s testimony, I find that the injury to the thoracic spine was substantially resolved by April The fact that it took some time for the strain injury to recover is consistent with the description of the injury given by Dr. Longmore, who expressed the opinion that a soft tissue injury of this kind would be slow to resolve, and might be subject to aggravation. However, the evidence is also consistent with the finding that the thoracic injury did substantially resolve. The medical reporting of the 1997 and 1998 flare ups is minimal. The findings in Dr. Ogundimu s report in June 1997 are with respect to the lumbar spine, not the thoracic spine. He describes no findings with respect to the thoracic spine. In November 1997 Dr. Kanji describes tenderness at T7 and T8, but the area affected is considerably less extensive than the area reported earlier. The hospital emergency report of December 1998 describes the 1996 injury as a prior injury, not as something that is then subject to ongoing symptoms. I consider it likely that by this time the ongoing thoracic symptoms were intermittent and minor. The strain was substantially resolved. [39] As a result of this assessment of the role of the work injuries (and also her discussion of non-compensable factors), Vice Chair Smith reached the following conclusion: I consider it unlikely that the 1996 thoracic injury, or the 1997 and 1998 minor flare ups, were a significant contributing factor in the development of the fibromyalgia. The symptoms from those injuries were not sufficiently continuous within the terms of the Board s CPD policy in the period leading up to the time that the fibromyalgia developed. The medical evidence, and especially the report of Dr. Ogundimu, suggests that by 1997 and 1998 the non-compensable low back symptoms had become the significant symptom with respect to the worker s spine. I note that all the Tribunal decisions referred to by Mr. Nitchie involve conditions of fibromyalgia that developed after the worker had suffered a permanent impairment, and had been awarded a NEL award. That was not the case here. I am not satisfied that there was a work-related injury that was impacting in any significant way on the worker s physical condition when the fibromyalgia arose. This is especially the case given that there were very significant non compensable stress factors and physical symptoms in this time period, of a type associated with the development of fibromyalgia.

11 Page: 10 Decision No. 1394/09 [40] As can be seen from the above analysis, in that case Vice Chair Smith was of the opinion that the minor nature of the worker's injuries made them an unlikely contribution to the development of fibromyalgia. [41] The Majority agrees with the analysis in Decision No. 2106/03 and finds it applicable to the instant case. In the case before us, the worker suffered a minor, no lost time injury that produced no ongoing, direct, physical symptoms resulting from the electrical shock. The Majority finds that the evidence does not support a finding that the worker's depression, weight gain, gastric issues and sleep apnea resulted from the physical results of a mild, electrical shock accident, or that they were aggravated by the work injury. Accordingly, the majority finds in this case, as did Vice Chair Smith in hers, that the work-related injury did not impact in any significant way on the worker's physical condition when the fibromyalgia arose. [42] The minor injury and the lack of ongoing physical symptoms related to that injury militate against entitlement for fibromyalgia. The dissenting Vice Chair is of the opinion that there would need to be evidence of factors other than the work-related injury that might be responsible for the worker's pain-related disability. In the view of the Majority, that is not the proper test. It is not the Panel's responsibility to demonstrate that another cause exists; the worker has to show and the Panel has to find, on the balance of probabilities, that the fibromyalgia was triggered by the workplace incident. Where the evidence is approximately equal in weight, the benefit of the doubt goes to the worker. [43] In this case, one has to bear in mind that a fibromyalgia syndrome is frequently described as idiopathic signifying that the cause is often unknown. The Majority takes this to signify that fibromyalgia often occurs without any discernible trigger. Given that, one would not necessarily expect there to be an identifiable cause. This is fact would qualify as an alternative reason for the fibromyalgia. [44] Notwithstanding the above, the Majority would observe that other factors may well have been at work. Dr. Gordon s paper suggests emotional distress, sleep disturbance and headaches (as well as physical trauma) have been implicated in the onset of fibromyalgia. The worker had longstanding, pre-existing migraines and depression for which she received treatment before and after the work injury. The worker had pneumonia in 1999 and 2000, both times sufficiently severe to necessitate hospitalization. According to Dr. Van Loon, there were personal stressors at play in the fall of 2000, unrelated to the workplace. The worker also began to suffer from sleep apnea in the fall of Lastly, the worker had menopausal symptoms and, by her own account, her depression was lessened when she commenced hormone replacement therapy. [45] Depression is linked to the onset of fibromyalgia as suggested by Dr. Weinberg in his introduction to Dr. Gordon s paper: Fibromyalgia is one of a series of symptom defined conditions which include such entities as the Chronic Fatigue Syndrome, Irritable Bowel Syndrome and Idiopathic Environmental Illness. They frequently co-exist in the same patient though they may not occur simultaneously. They have no defining pathology and differ only in their description. In a number of instances the definitions have been codified in order to provide a basis for further study as to etiology and management. These conditions are more common in subjects with prior history of depression though coincident depression

12 Page: 11 Decision No. 1394/09 is not necessarily found. Sleep disturbance is almost always present as a common thread especially in those with substantial overlap between the various syndromes. [46] In other words, fibromyalgia is more common in persons with prior depression (as well as being a co-existing condition after the diagnosis of fibromyalgia), this is in accord with the facts in this worker s situation. The medical documentation confirms that her depression was pre-existing and longstanding. The evidence does not suggest the depression was caused or aggravated by the work injury (and the majority would refer specifically to Dr. Van Loon s notes in this regard). Given the fact situation before us, the depression cannot be seen either as a consequence of the pain from the fibromyalgia, since it was present before the complaints of widespread body pain. The Majority finds, therefore, that the worker's pre-existing depression was non-compensable and while it may (and we consider this no more than a possibility) have contributed to the development of the fibromyalgia, it clearly existed prior to the diagnosis of fibromyalgia. The worker may well now have depression in addition to and co-existing with her fibromyalgia, but we cannot conclude that it is compensable based on the evidence before us. [47] With regards to sleep disturbance, Dr. Gordon s paper specifies that, when a person has fibromyalgia, the pain experienced often results in the person s sleep being disturbed. In other words, people with fibromyalgia often go on to develop sleep problems. There is no suggestion that sleep disturbance is seen a precursor to fibromyalgia or as an early sign of fibromyalgia. Therefore, while the Majority accepts that the worker did have sleep apnea in the fall of 2000, this cannot reliably be seen as indicative of the presence of fibromyalgia when the worker ha no complaints of whole body pain at that time. Nor does the Majority find the sleep apnea to be a reasonable consequence of the electrical shock. In fact, the Panel would note that sleep apnea has been associated with weight gain (as discussed in Tribunal Decision No. 173/07 1 ). [48] The Majority acknowledges that the medical literature confirms that sleep disturbances are not uncommon for people suffering from the diffuse body pain of fibromyalgia. If the worker were first diagnosed with fibromyalgia and then with sleep apnea this would fit the expected pattern. Sleep disturbances in advance of the pain cannot reasonably be associated with fibromyalgia. In this case, the chronology of the worker's symptoms, from a fibromyalgia perspective, does not establish that her sleep apnea was originally related to the fibromyalgia. This is so because, based on the documentation and the testimony, it appeared in advance of the widespread body pain. Further, no one has suggested that the sleep apnea was casually related to the electrical shock or what the mechanism for such a connection would be. Therefore, in the view of the Majority the sleep apnea as it manifested itself in the fall of is a separate and non-compensable condition, unrelated to either the work injury or the later development of fibromyalgia. [49] The Majority does not know what the consequences of the worker's pre-existing, noncompensable depression or menopausal symptoms were in the development of fibromyalgia. We do find that they were non-compensable conditions unrelated to the work injury. We also know that her problems with stress and depression had been present for a number of years prior to the 1 In that case, the medical evidence noted that obesity often causes sleep apnea. The Panel in the instant case acknowledges that this worker's weight gain was not as dramatic or extensive but, nevertheless, finds the association between the two conditions of interest.

13 Page: 12 Decision No. 1394/09 compensable accident. Further, in early 2001, Dr. May reported the worker as saying her depression was ameliorated by HRT treatment. [50] The Majority does not conclude that the above non-compensable conditions caused the worker's fibromyalgia. Some of them were clearly conditions that appeared prior to the fibromyalgia, notwithstanding that they now co-exist. Some of them were conditions that might possibly be associated with the onset of fibromyalgia. Certainly the pneumonia in December of 2000 was more proximate to the diagnosis of fibromyalgia than the work injury in August of the same year. [51] What does concern the Majority is that complaints of widespread body pain (key to a diagnosis of fibromyalgia) did not surface in the contemporaneous medical documentation until Dr. Pain s report of February 7, 2001 recording multiple aches and pains. The Majority has reviewed the clinical notes from Drs. Burwell and Van Loon; none mention diffuse body pain between August of 2000 and February of Again, referencing Dr. Gordon s paper, we note that chronic pain is central to a diagnosis of fibromyalgia. Further, Board policy demands that the pain from the injury persist beyond the expected healing time. This was not the situation in this case. Chronic pain was not present proximate to the worker's accident. Other conditions such as sleep apnea, depression, weight gain, gastric disturbances were present during this period, but not the complaints of pain. [52] What the Majority can logically infer is that, in the fall of 2000, these conditions were not co-existing symptoms of the worker's fibromyalgia because, at that point, she did not have fibromyalgia. She did not have fibromyalgia because there were, at that time, no complaints of diffuse body pain. Nor were there any complaints of physical pain resulting from the injury itself. This fact situation puts the worker outside the criteria for entitlement under the Board's chronic pain disability policy. [53] Accordingly, in the Majority s view, there is a lack of continuity between the worker's compensable injury and the development of fibromyalgia sometime in This confirms in our view the applicability of the analysis provided in Decision No. 2106/03. [54] Board policy is unequivocal in requirement of continuous complaints of pain following the accident that do not resolve within the expected time frame and are not explicable on an organic basis. The Majority finds the medical evidence clear that the worker did not experience ongoing physical pain subsequent to the accident that failed to resolve and later developed into the whole body pain associated with fibromyalgia. The Majority finds that the worker's no lost time injury did not produce ongoing physical pain; the symptoms of depression, weight gain, gastric problems, and sleep disturbances were either pre-existing or simply unrelated to the work injury and pre-dated the onset of fibromyalgia. There has been no logical or medical theory put forward to suggest that these conditions flowed from the mild electrical shock the worker experienced in August of Accordingly, the worker's case fails to satisfy Board policy. [55] The Majority also has some concerns regarding the accuracy of the worker's recollection. She attributed her weight gain (from approximately 123 pounds to 150 pounds) to the workplace incident. However, Dr. Burwell s clinical note from 1992 indicates the worker was 142 pounds, suggesting the worker's weight had been variable over the years. While the worker testified that

14 Page: 13 Decision No. 1394/09 her migraines grew worse after the August 7 th incident, Dr. May noted the worker stated she had not had any headaches recently. [56] The Majority does not question the worker s truthfulness per se. We accept that she is genuinely convinced that her symptomatology has resulted from her compensable accident. We do not, however, given the documentation on file, find that her recollection is necessarily accurate in all instances. For instance, the worker told the Board investigator of a second electrical shock occurring in October of that year; there is no confirming documentation of this on file, not in notes from the worker, not in the medical documentation or in the employment information (from the worker or the employer) contained in the file materials. [57] As another example, the worker testified that the employer had no modified work program but at page 169 of the Case Record, there is a letter from the employer advising that it has modified duties available. The case documentation also records a meeting on October 23, 2000, that outlines the worker had an ongoing attendance problem of several years standing relating to her health. This would stand in contradistinction to the worker s claim to have been in good health prior to August 7, Given the variances, the Majority prefers to rely on the contemporaneous medical reporting and documentary evidence as being more reliable. [58] This is important to note because the supportive medical evidence (from Dr. Willis and Dr. Blitzer) comes much later in time and is based on the worker's reporting of her history, not the actual chronology and evolution of the worker's symptoms. Dr. Wills notes that the worker told him she had a burn resulting from the shock (which would be indicative of a severe electrical shock) and this is not corroborated by the medical reports. Both Dr. Wills and Dr. Blitzer appear to have been given a history suggesting that the worker's complaints of pain appeared directly after the accident and that is not accurate either. This lessens the weight the Majority can give these reports and strengthens our reliance on the contemporaneous reporting. Looking at the medical evidence in totality, the Majority finds that only Dr. Burwell unequivocally relates the worker's fibromyalgia to the August 7 th incident. In this regard, we would point out that Dr. Burwell does not provide reasons for this conclusion, nor does he deal with her pre-existing conditions. Also, he did not see the worker until three months after the accident. [59] In conclusion, the Majority of the Panel finds the evidence compelling to the effect that the worker's weight problems, depression, anxiety, and migraines, all pre-dated the workplace incident. The worker had a number of personal stressors and non-compensable pneumonia that may be implicated in triggering the fibromyalgia. We would emphasize that it is not necessary to find the non-compensable conditions did contribute to the worker's fibromyalgia. We simply note their presence and possible contribution. The Majority also finds that the worker's conviction that there is a relationship does not signify, medically, that one exists. [60] The Majority concludes that a low voltage electrical shock, described as causing no injury, cannot reasonably be seen as the causal agent triggering an onset of fibromyalgia some six months later, when compatibility is absent in the intervening months. The Majority does not dispute that the worker now has the characteristics of CPD, as we do not dispute that the worker may well have fibromyalgia. That the worker has fibromyalgia is not sufficient to establish

15 Page: 14 Decision No. 1394/09 entitlement when causation itself is not established. The Majority finds that the clear preponderance of the evidence does not suggest a casual link between the worker's fibromyalgia and the incident on August 7. [61] Accordingly, the Majority finds there is no entitlement for fibromyalgia and, therefore, there can be no entitlement to LOE benefits.

16 Page: 15 Decision No. 1394/09 DISPOSITION [62] The appeal is denied. DATED: September 28, SIGNED: M. Christie, F. Jackson.

17 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1394/09 DISSENT REASONS (i) Introduction [63] For the reasons outlined below, I must respectfully disagree with the decision of the Majority Panel on the issue of entitlement to benefits for fibromyalgia and entitlement to loss of earnings (LOE) benefits. (ii) Majority Decision [64] In their decision, the Majority Panel found that the worker did not have entitlement to benefits for fibromyalgia or to LOE benefits beyond February 5, (iii) Dissenting Decision [65] After careful consideration of the evidence and submissions, as well as the majority decision, I find that the worker has established entitlement to benefits for fibromyalgia under the CPD policy. I further find that the worker is entitled to LOE benefits beyond February 5, a) Chronic Pain Disability [66] In this appeal, the worker is seeking entitlement to benefits for fibromyalgia under the CPD policy, as outlined in the majority decision. [67] As noted in the majority decision, the Board s Operational Policy Manual (OPM) Document # Chronic Pain Disability provides that a worker is entitled to benefits for fibromyalgia under the CPD policy, when it results from a work-related injury, and there is sufficient credible subjective and objective evidence establishing the disability. The policy document sets out the general criteria for entitlement to benefits for CPD. These criteria require evidence of: A work-related injury; Chronic pain which is continuous, consistent and genuine; Chronic pain is caused by the workplace accident; Pain persisting for six or more months beyond the usual healing time of the injury;

18 Page: 17 Decision No. 1394/09 The degree of pain is inconsistent with organic findings and Pain which impairs earning capacity, as evidenced by marked life disruption. [68] Since fibromyalgia by definition involves diffuse pain, the fact that a worker suffers from diffuse pain cannot be a basis for concluding that the condition does not result from the injury, as the Board Medical Consultants concluded in their medical opinions provided on May 9, 2001 and August 7, If that were the case, no worker would ever be entitled to benefits for fibromyalgia. Of more significance with respect to fibromyalgia is whether there is any evidence of any factor other than the work-related injury which may be responsible for the worker s pain-related disability. [69] Thus, in the present case, the evidence must establish first, that the worker suffers from fibromyalgia, and second, that the condition resulted from the work-related injury. b) Medical evidence [70] In the Physician s Report dated February 27, 2001, Dr. G.S. Burwell, the worker s family physician, provides the diagnosis of fibromyalgia/chronic fatigue syndrome. Dr. Burwell refers to extreme fatigue, depressed mood, multiple areas of muscular tenderness and relates the worker s gradual deterioration to the August 7, 2000 accident. In a report dated April 10, 2001, Dr. Burwell stated the following: Currently (the worker s) diagnosis is compatible with fibromyalgia with possible overlying depression and sleep apnea. Fibromyalgia is a difficult diagnosis to make objectively, and its connection with her electrical injury cannot be made with certainly. However I am convinced that (the worker) has suffered a significant disability7 as a result of her electrical burn. Prognosis is extremely hard to make because of the unpredictability of this illness [71] Dr. Burwell refers to the worker s past depression, but concludes that the worker s past depression is unrelated to her present problems. [72] In a report dated February 25, 2002, Dr. Burwell refers to the extensive medical treatment sought by the worker with little improvement and provides the opinion that the worker s current medical disabilities are a direct result of the injury she sustained on August 7, [73] The Majority Panel referred to the diagnosis provided on the day of the accident by the Hospital Emergency Room attending physician, who described the accident as low voltage electric shock no injury and who considered that the worker could return to work. The Majority Panel concluded, based on this diagnosis that no ongoing physical impairment had resulted from the workplace injury. However, in coming to my finding, I have noted that only three weeks later, on August 31, 2000, Dr. Van Loon noted complaints of multiple symptoms, including persistent tenderness at the top of the head. In my view, in light of the medical evidence subsequent to the accident, such a short delay in symptomatology cannot lead to the finding that the workplace accident was minor in nature and that it did not result in ongoing physical impairment

19 Page: 18 Decision No. 1394/09 [74] The Majority of the Panel has questioned the nature of the injury as described by the worker at the hearing, specifically with respect to the persistent tenderness on her head. However, I note that the worker complained about this tenderness to Dr. Van Loon some three weeks after her accident. I do not consider this short delay in the manifestation of this symptom to be significant, or as indicative that the tenderness is not the result of the workplace accident. [75] In a report dated August 26, 2008, addressed to the worker s representative, Dr. Burwell, provides a medical history and the worker s medical status. Dr. Burwell sees the worker regularly for chronic joint and muscle pain, as well as depression. Dr. Burwell indicates that the worker s medical status since her accident has essentially been the same over the last several years, and concludes that the worker suffers from Fibromyalgia. [76] The worker underwent extensive investigation at the Lockwood Clinic. In a note dated February 8, 2001, Dr. R. Nevin indicates that the worker is unable to work since February 8, 2001, due to medical reasons (Fibromyalgia and chronic fatigue syndrome). [77] In a report dated February 7, 2001, Dr. J. Haight, Sleep Diagnostic Centre, diagnoses sleep apnea and considers that the worker may have fibromyalgia or some such condition in addition : [78] The worker was examined by Dr. Michael Wills, Occupational Medicine, on January 22, In a report dated March 27, 2002, Dr. Willis provides the following summary: (the worker) has a diagnosis of post-electrical contact of:: 1. fibromyalgia 2. depression [79] Significantly, Dr. Wills wonders if a diagnosis of post-traumatic stress disorder could be made and observes that those that have been part of a current condition injury can develop a autonomic dysfunction with Raynaud s phenomenon along the current path. [80] In his report dated December 16, 2008, Dr. Steve Blitzer, Rehabilitation and Pain Management Specialist, who has been treating the worker for multiple sites of chronic pain, including fibromyalgia, since 2008, provides the following diagnosis: 1. Fibromyalgia 2. Myofascial pain 3. Some DDD 4. Mood disorder: depression, OCD 5. Sleep disorder 6. Chronic pain disorder