SUMMARY DECISION NO. 2182/99 Chronic pain. DECIDED BY: Marafioti DATE: 27/02/2001 NUMBER OF PAGES: 6 pages ACT: WCA
2001 ONWSIAT 549 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2182/99 [1] This appeal was heard on November 30, 2000, by Tribunal Vice-Chair V. Marafioti. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Acting Appeals Resolution Officer, P. Luck, dated January 22, 1998. That decision denied the worker entitlement under the Board s Chronic Pain Disability policy. [3] The worker attended and was represented by Eddy Grisolia, Office of the Worker Adviser. The employer did not participate. [4] Devinder Suri interpreted in the Punjabi language. THE RECORD [5] I heard oral testimony under oath from the worker and considered the following documents: Exhibit #1: Case Record; Exhibit #2: Addendum No. 1; Exhibit #3: Addendum No. 2; Exhibit #4: Addendum No. 3; Exhibit #5: Correspondence dated November 10, 1999, from Tribunal to the Worker; Exhibit #6: Post-hearing Addendum No. 1. [6] The representative made submissions. THE ISSUES [7] I must determine whether the worker is entitled to benefits under the Chronic Pain Disability policy. THE REASONS (i) Background [8] On October 26, 1992, this worker worked as a metal finisher and sustained an injury at work to his right hand and wrist which was diagnosed as de Quervain s tenosynovitis. The worker underwent surgery and was awarded a 5% Non-Economic Loss (NEL) award and a 54.93% Future Economic Loss (FEL) award with a vocational objective of sales clerk or car sales position.
Page: 2 Decision No. 2182/99 [9] Another claim was established for left de Quervain s tenosynovitis related to a work hardening program that the worker was participating in from February 7, 1994. The worker was awarded a 2% NEL under this claim. [10] On December 6, 1995, the Board s Claims Adjudicator denied entitlement under the Board s Chronic Pain Disability policy. The worker objected to this decision and the Acting Appeals Resolution Officer, on January 22, 1998, concluded that the worker had not satisfied the necessary criteria for entitlement under the Board s Chronic Pain Disability policy. (ii) The law and Board policy [11] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1, 1998. All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [12] An important change relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. [13] The Legal Services Division of the Board confirmed that policy packages (Revision #3) 10 and 64 would apply to this appeal (see Addendum No. 2). [14] I note in particular that under Board policy Document #03-03-05, 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. For a worker to qualify for compensation under the Chronic Pain Disability, the following condition must exist, and must be supported by all of the indicated evidence: (iii) - A work-related injury 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. The worker s position [15] Mr. Grisolia on behalf of the worker submitted that the Acting Appeals Resolution Officer decision is wrong in not recognizing the worker s Chronic Pain Disability issue. In his submissions, he reviewed the medical evidence and the worker s testimony and concluded that all categories of the Chronic Pain Disability criteria have been met. He noted that the worker s pain went beyond the worker s wrist and extended to the shoulder and neck area. In particular, Mr. Grisolia submitted that the worker s chronic pain has resulted in a marked disruption to the worker s life. Mr. Grisolia concluded that the worker is therefore entitled to benefits under the Chronic Pain Disability policy and should be awarded the appropriate benefits.
Page: 3 Decision No. 2182/99 (iv) The Vice-Chair s findings [16] I note that on May 22, 1998, Dr. F. Leung, a rheumatologist, reported to the Acting Appeals Resolution Officer as follows: [The worker] drew my attention to your recent decision on his appeal for chronic pain disability entitlement. As you know, I am the rheumatologist that had been following him for the past few years for chronic pain. I had made a diagnosis of regional myofascial pain in him. I do not understand the rationale of your decision to deny his benefits. You are well aware that his symptoms extends well beyond the wrist where he claimed his original injury From my stand point [the worker] sustained a work related injury which has resulted in chronic and intrusive pain persisting more than six months beyond his injury. He has pain involving areas well beyond the site of the original injury and the pain has resulted in marked life disruption in that he is unable to resume his previous activities and has been secondary changes in his personal relationship and his psychological well-being. Therefore, I believe that he really should be granted entitlement to chronic pain. I support his appeal and I ask you to review your decision. [17] The worker was provided a Functional Abilities Evaluation at the Regional Evaluation Centre of the Orthopaedic and Arthritic Hospital. I note the report dated July 15, 1993, states: This client was a very cooperative and pleasant gentleman. He did not appear to demonstrate any pain behaviours. He presents with signs and symptoms consistent with right de Quervain s syndrome [The worker] has been encouraged to resume his normal activities as much as possible with the right hand and arm. He has been reassured that although he may feel discomfort with an increased activity level, pain does not reflect a progression of his underlying problem. Prognosis is guarded at this time. [18] The worker continued to be treated by Dr. E.S. Wright, orthopaedic surgeon for his right wrist. On March 28, 1994, Dr. Wright reported as follows: This gentleman was seen March 28, 1994, 7½ months after his right wrist surgery. He is still tender at the level of the first extensor compartment but has no scar sensitivity. He is now developing similar symptoms on the left side. He has been advised to continue on range of motion and strengthening exercises. [19] The worker was assessed at the Downsview Rehabilitation Centre and Dr. V. Bowen reported on July 18, 1994, as follows: In August of 1993 he had excision of the first extensor compartment. He has subsequently continued to have problems with pain in the right arm. The pain is dull and aching in nature. It is not well localized and radiates in the thumb right the way up towards the shoulder This looks like a cumulative trauma disorder. He has tried physical and surgical modalities of treatment but has not had a great deal of relief. I think the best way to continue at the present time is to work out his final disability award and have him work with vocational rehabilitation to try to find an occupation that he is going to be able to do to return to work force. Usually these arm pains will gradually settle with time but no specific modalities of treatment are found to be all that useful.
Page: 4 Decision No. 2182/99 [20] Dr. C.S. Wright reported on March 27, 1995, as follows: He is getting pain in both wrists upper arms and into the shoulders. I have suggested that he come to see Dr. Frances Leung in our Fibrositis Clinic and I will review him once this is completed. [21] It would appear that Dr. Wright recognizes that at this point the worker s symptoms go beyond the simple organic process in the worker s wrists and refers the worker for an assessment of myofascial pain. [22] Dr. F. Leung, after assessing the worker, reported to Dr. Wright on June 26, 1995, as follows: I believe that [the worker] had a local soft tissue injury of the right forearm. It is conceivable that the impact has caused sudden stretching of the forearm muscles and triggers off chronic low grade spasm. I think involvement of the more proximal musculature may be secondary to chronic anxiety and depression. However, the possibility of mild degenerative spondylosis in the neck contributing to this cannot be ruled out and I have requested an x-ray of his neck. He might also have mild degenerative changes in his lower back which referred into his legs. [23] The worker was injected with Xylocaine and was prescribed Baclofen and Prozac for an anti-depressant to help him psychologically. [24] Dr. F. Leung reviewed the worker in September 1995 and states: Trigger point injection on his last visit did not help much He continues to comp lain of severe pain particularly between the elbows and the wrist bilaterally and there is some numbness and tingling in the forearm particularly in the morning. He has trouble lifting anything. He also complains of pain across the neck and back as well as the lower limbs although he is less troublesome than the forearm pain [The worker] continues to have problems with a fairly severe regional myofascial pain particularly affecting the upper limb. He is quite depressed as a result of the chronic pain and he is worried about his future. I have asked him to start on the Prozac to see if at least if it could help him cope better with his pain [25] Dr. F. Leung continues to treat the worker and reported on May 6, 1996, that the worker was seen on that date for his chronic myofascial pain of the worker s right upper limb which Dr. Leung believes was secondary to the worker s compensable injury at work in 1992. Dr. Leung noted that the worker was not able to do more than personal care and domestic activities as a result of his chronic pain. Furthermore, Dr. Leung did not feel that the worker could not participate in the job market. [26] On July 9, 1997, Dr. C.S. Wright examined the worker and indicated that the worker was continuing to work with Dr. Leung and was on medication including Baclofen, Ranitidine and Oxycet. The worker was diagnosed as having a regional myofascial pain syndrome in the upper four quarters.
Page: 5 Decision No. 2182/99 [27] Dr. F. Leung reported on September 17, 1997, stating that the worker had chronic pain with regional myofascial pain in addition to the degenerative disc disease in his neck which, according to Dr. Leung, contributed to the pain. These findings were essentially the same when Dr. Leung reported on December 10, 1997. [28] I am satisfied based on the credible testimony of the worker and the medical reporting from his treating physicians, that the worker is entitled to be assessed at the Chronic Pain Disability criteria. In my view, the worker meets all the criteria for entitlement. The worker s symptomatology goes beyond the worker s organic condition based on the medical reporting. The worker has, in fact, indicated that since October 1992, he has had significant worsening of his injury as his pain extended up his arms into the shoulder and neck area. [29] I also am persuaded by the medical reporting that the worker s pain is significant and has caused impairment of his ability to function. His complaints of pain are inconsistent with the organic findings and have impacted on the worker s psychological, vocational and social life as well. THE DECISION [30] The worker s appeal is allowed. The worker is to be assessed under the Chronic Pain Disability criteria. DATED: February 27, 2001. SIGNED: V. Marafioti.