WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2107/13 BEFORE: A. T. Patterson: Vice-Chair HEARING: November 7, 2013 at Toronto Oral DATE OF DECISION: March 28, 2014 NEUTRAL CITATION: 2014 ONWSIAT 667 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) M. De Marco dated November 15, 2011 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, Paralegal Did not participate A. Ventura, Portuguese 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
Decision No. 2107/13 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that the worker does not have entitlement to benefits for chronic pain disability (CPD). [2] Ms. A. Ventura provided interpretation services in the English and Portuguese languages. [3] As a preliminary issue, Ms. Oliverio submitted Canada Revenue Agency documents related to the worker s earnings between 1990 and 2012. The document was accepted into evidence and identified as Exhibit No. 8. (ii) Issues [4] The issue under appeal is whether the worker is entitled to benefits for CPD. [5] The appeal is denied for the reasons set out below. (iii) Background [6] The following are the basic facts. [7] The now 53-year-old worker was employed as a bricklayer when he fell at work on June 15, 1993. He injured his right leg, hip and back. Entitlement for a lumbosacral sprain and right knee contusion was granted but ongoing entitlement was denied by ARO decision. Tribunal Decision No. 1554/00E (June 28, 2000) denied an extension of time to appeal the ARO decision. [8] Under a separate claim relating to a July 6, 2001 accident, the worker sought entitlement for CPD but it was denied. The worker was granted a 17% organic low back non-economic loss (NEL) award and a 20% award for psychotraumatic disability. [9] In May 2011, the worker requested entitlement for CPD under the 1993 accident claim. The request was denied by the Board s operating level. The denial was upheld. The ARO s decision is the subject of the present appeal. (iv) Law and policy [10] Since the worker was injured in 1993, the pre-1997 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. [11] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Package #10 Chronic Pain Disability; and Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [12] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No. 15-04-03, Chronic Pain Disability.
Page: 2 Decision No. 2107/13 (v) Analysis [13] OPM Document No. 15-04-03, Chronic Pain Disability requires that five conditions be met for entitlement to benefits for chronic pain disability: A work-related injury occurred; Chronic pain is caused by the injury; The pain persists for 6 or more months beyond the usual healing time of the injury; The degree of pain is inconsistent with organic findings; and The chronic pain impairs earning capacity. [14] In the present case, I conclude that there is insufficient evidence to conclude that the fourth condition, that the degree of pain is inconsistent with organic findings, is extant. The applicable policy requires a medical opinion indicating the inconsistency. [15] I have carefully reviewed the extensive medical information on file in both claim files. The following is a summary of that information. [16] Following the accident of June 15, 1993, the worker was referred to physiotherapy. The physiotherapist s discharge report indicates that he presented with discogenic low back pain. [17] The worker was referred to the Regional Evaluation Centre (REC). The Final Report prepared by Physiatrist Dr. M. Devlin and Physiotherapist M. Afheldt indicates: He has had a lumbar strain and now has an ongoing activity-related back pain. At this time we feel he has been appropriately investigated and appropriately treated and we would not recommend any further treatment. We would not place any restrictions on him. Our prognosis is for a complete recovery. [18] On January 4, 1994, Orthopaedic Surgeon Dr. G. M. Vincent wrote: This gentleman has likely sustained a myofascial injury to his back. He has no evidence of nerve root tension or compression signs. I would recommend that he be considered for a graduated return to work program. [19] The term myofascial injury refers to an injury of the muscle tissue and should not be confused with the non-organic condition of fibromyalgia. On September 26, 1994, Dr. Vincent re-iterated his opinion. [20] The worker had a CT-scan of his lumbar spine on May 21, 1995. The report prepared by Radiologist Dr. M. Prieditis indicated notably: At the L5-S1 level, there is a focal central disc protrusion with calcification indicating chronicity. The right intervertebral foramina is narrowed and there is conjoined right L5-S1 nerve root on that side. INTERPRETATION: Multilevel disease most prominent at L5-S1 with chronic central disc protrusion narrowing of the right intervertebral foramina.
Page: 3 Decision No. 2107/13 [21] A report by Dr. F. Markus, a specialist in physical medicine, dated February 6, 1996, provided the following impression based on an examination of the worker: IMPRESSION: 1) Mechanical low back pain 2) Chronic central disc protrusion 3) Narrowing of the right intervertebral foramina at L5-S1. [22] On October 17, 1996, Orthopaedic Surgeon Dr. M. Roscoe opined that the worker had chronic low back pain related to a distant back injury. [23] On March 26, 1998, Neurosurgeon Dr. P. Leung wrote: He certainly has a significant amount of myofascial pain. I will make arrangements to infiltrate these areas including infiltrating the sacroiliac joint. Stretching of his sacroiliac joints certainly reproduces some of the discomfort, however, because of the myofascial and muscle spasm the maneuver becomes modified because of those other painful areas. [24] Dr. Leung performed infiltration on June 1 and July 23, 1998, and the worker experienced some relief as a result of the treatment. [25] In short, none of the medical information on file under the 1993 accident claim constitutes a medical opinion indicating the inconsistency. On the contrary, all the medical information supports a finding that the worker s ongoing complaints of pain were consistent with his diagnosed organic conditions. [26] As noted above, the worker had a compensable accident on July 6, 2001. Pursuant to an ARO decision dated June 23, 2003, a permanent impairment of the low back was recognized under that claim. Entitlement to benefits for CPD was not granted and a request for a time extension to appeal the decision to the Tribunal was not allowed. [27] For all of the above-noted reasons, I find that there is insufficient evidence that the worker s pain symptoms as a result of the 1993 accident are inconsistent with his low back condition. [28] Given that OPM Document No. 15-04-03, Chronic Pain Disability, requires that all five conditions be met, I conclude that entitlement to benefits for CPD are not in order.
Page: 4 Decision No. 2107/13 DISPOSITION [29] The appeal is denied. DATED: March 28, 2014 SIGNED: A. T. Patterson