Worker v. Employer, 2009 CanLII 80010

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION number: 20090088

OBJECTION BY: The Worker

WORKER: Participated

EMPLOYER: Participated

REPRESENTATIVES : Worker, Employer

HEARING: November 10, 2009

ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Observer

ISSUES

1. The percentage of the worker’s non-economic loss award.

2. Entitlement under the WSIB’s chronic pain disability policy.

3. Full loss of earnings (LOE) benefits as of March 9, 2009 when she stopped working completely.

4. Full LOE benefits for the period August 6, 2008 up to but not including November 26, 2008 on the basis she was medically unable to work.

5. Full LOE benefits for the period November 26, 2008 up to but not including December 8, 2008 on the basis she was co-operating in ESRTW activities.

HOW THE ISSUES AROSE

On July 9, 2005 this then 49 year old Customer Service Representative for the Liquor Control Board of Ontario injured her lower back while stocking shelves. At the time she was considered a casual employee who averaged a 22.69 hour work week.

From a medical perspective a CT scan was interpreted to show an L4-5 disc herniation with spinal stenosis. She underwent a L4-5 left sided microscopic discotomy on July 4, 2006 and a second surgical procedure on February 7, 2007 in the form of a revision of a left sided-L4-5 discotomy. At the time of the surgery the physician recorded there was some scar and some disc recurrence which was removed with the nerve being freed. The worker noted no improvement after surgery and continued to have significant radicular symptoms. The surgeon opined the worker had chronic nerve damage which was not responding to either surgical procedure. The surgeon was of the opinion that further treatment should be focused on pain control so that the worker could achieve function in her life. The worker continued to experience back pain as well as leg pain.

Maximum medical recovery was deemed to have been achieved as of May 24, 2007. As of that date the WSIB accepted the worker had sustained a permanent impairment to her low back. Permanent medical precautions of no repetitive trunk movements such as bending, lifting, overhead work, no prolonged weight bearing such as standing, sitting, walking, no low level work, no heavy pushing, pulling, twisting and lifting limited to the light category were recognized.

As a permanent impairment was recognized the worker was entitled to a non-economic loss (NEL) assessment. The diagnosis for assessment purposes was L4-L5 disc herniation. The assessment occurred on April 21, 2008 after which the worker was granted a 33 percent NEL award in June 2008. The worker objected to the quantum of her NEL award in a June 19, 2008 letter.

The issue of the worker’s entitlement under the WSIB’s chronic pain disability (CPD) policy was dealt with in the Case Manager’s December 13, 2007 decision. Entitlement was denied on the basis the worker’s pain complaints were consistent with her organic impairment. In a June 26, 2009 decision the Case Manager confirmed the previous decision.

With respect to early and safe return to work activities, in December 2007 with medical guidance the Case Manager found the worker was capable of performing light sedentary work with accommodation being required. The employer met with the worker and her union representative on January 17, 2008 to discuss a modified work plan which recorded the work being offered. The work offered involved the worker working on cash, single bottle stacking at waist level, and customer service. In performing the work she was to be provided with the use of a stool and she would be able to, alternate between sitting/standing. Some concerns about the work were raised by the worker. In a March 19, 2008 decision the Case Manager took the concerns into consideration but still found the worker to be capable of modified work.

The employer re-offered the previous work to the worker and she returned to work on April 28, 2008. However, she only worked 7.25 hours for the week ending May 3, 2008. The Case Manager’s expectation was she could work more hours in accommodated employment. To assist in the return to work process a WSIB Mediator became involved. A work hardening program as well as an ergonomic assessment was considered to be in order. However, it was determined that the worker should remain off work while in the work hardening program so that one on one treatment over an eight week period could be undertaken. At the end of the program a one day functional abilities evaluation was to be undertaken prior to the worker returning to work with the assistance of a job coach.

The work hardening program was discontinued on July 4, 2008 on the basis the worker aggravated her symptoms. Although the worker’s doctor provided a note authorizing her off work, the Case Manager found the note to be insufficient as it did not provide information such as diagnosis, physical findings and rationale as to why the worker could no longer continue in the work hardening program. As the employer continued to have modified work available the Case Manager determined the worker was not entitled to loss of earnings (LOE) benefits beyond August 6, 2008. The decision was dated July 30, 2008.

Subsequent to the decision being made new medical information was received and reviewed by a WSIB Medical Consultant. The Medical Consultant opined the worker had an ongoing non-work related condition which was affecting her recovery. The Case Manager found that but for the non-work related condition the worker would be capable of performing the modified work offered by the employer which was at no wage loss. As such, the previous decision which discontinued LOE benefits as of August 6, 2008 was confirmed. The further decision was dated August 27, 2008.

On November 26, 2008 the worker contacted the employer indicating she was willing to return to work. She returned to work on December 8, 2008 on modified work. As there were some difficulties with the return to work a WSIB Mediator became involved in the case, a meeting was held on January 14, 2009 and a plan developed. With respect to payment of benefits between November 26, 2008 and December 8, 2008 the Case Manager denied entitlement as per the December 10, 2008 decision.

The worker also made a request for Aqua fit physiotherapy and a reduction in her work hours to two hours per day. As per his February 27, 2009 decision the Case Manager denied entitlement on the basis the worker’s condition was not worse than her 33 percent NEL level.

The issue of reduction in work hours came up again as did the issue of the worker being unable to work as of March 9, 2009. The family doctor provided medical reporting but entitlement was denied once again on the basis the worker was not worse than her 33 percent NEL level. The decision was dated March 17, 2009.

The most recent decision was dated June 26, 2009 and dealt with the worker’s entitlement to assistive devices in the form of a cane and walker. Entitlement was denied on the basis objective evidence did not support a need for such devices. The decision letter also confirmed the Case Manager’s position that in the absence of objective evidence of deterioration in her work related impairment the worker was capable of performing her pre-accident hours so long as the employer adhered to her identified medical precautions.

Benefits paid in this claim were as follows.

Full loss of earnings (LOE)

July 13, 2005 up to but not including April 28, 2008

May 19, 2008 up to but not including August 6, 2008

Partial LOE benefits based on hours worked

April 28, 2008 up to but not including May 19, 2008

December 8, 2008 up to but not including March 9, 2009

Periods benefits not paid

August 6, 2008 up to but not including December 8, 2008

March 9, 2009 and ongoing

The worker has objected to various decisions in this claim which are now before the Appeals Resolution Officer.

EXHIBITS

The following exhibits were accepted as late submissions.

From the worker representative

1. WSIAT decision number 1310/03R2

2. WSIAT decision number 3053/01

3. WSIAT decision number 2719/00

From the employer representative

4. WSIAT decision number 151/04

5. WSIAT decision number 1009/02

AUTHORITY

Occupational Policy Manual documents

• 15-04-03 – Chronic Pain Disability

• 18-05-03 titled Assessing Permanent Impairment

• 18-03-02 titled Payment of LOE Benefits

ASSESSMENT OF THE EVIDENCE

In rendering this decision I have considered the record, the worker’s testimony, the representatives' arguments and Workplace Safety and Insurance Board (WSIB) policy.

In addition, in preliminary discussions I was told the worker had contacted the Wasser Pain Clinic although I gathered a decision had not been made as to whether she would be accepted for treatment. Because there was the potential the worker might enter into a pain management program I suggested to the worker representative that entitlement under the WSIB’s chronic pain disability policy be removed from the hearing agenda. I indicated if the issue remained on the agenda I would not reconsider my decision should it not be favourable. His response was he did not wish to piecemeal the objections. He then spoke with the worker in private after which he asked that the issue remain on the hearing agenda.

Issue # 1: NEL percentage

Worker Representative Position

The worker representative made detailed arguments on this issue. I am aware of his concerns and although I have not documented the majority of them, I did consider them. I have mentioned a few of his concerns in this decision.

In essence he was agreeing the NEL award was correct based on the impairments the NEL Clinical Specialist took into account. However, his concern was that not all of the worker’s neurological impairment recorded in the NEL assessor’s report was taken into consideration. Firstly, he was of the opinion the medical evidence showed the worker had both left and right sided disc herniation with the right sided herniation not being included in the NEL award. Secondly, the NEL assessor recorded sensory loss in the left sided L3-L4 and S1 nerve root distributions which was not taken into consideration. Thirdly, sensory loss on the right side involving the S1 nerve root distribution and motor loss on the right and left side involving the S1 nerve root distribution was not considered. In his estimation if all of the relevant neurological impairments were considered the worker’s NEL award would be 40 percent.

Employer Representative’s Position

The employer representative also provided detailed arguments which included references to file documentation which in her opinion supported a position the NEL Clinical Specialist over compensated the worker. I am aware of her concerns and although I have not documented the majority of them, I did consider them. I have mentioned a few of her concerns in this decision.

One of her concerns related to what she described as troubling inconsistencies in range of motion findings. When comparing the range of motion findings found in the NEL assessment report and those in some of the other medical documentation she found them to be inconsistent. In addition, she took issue with the worker representative’s use of the term “failed back” as she noted that not only was this an outdated term, but also, the worker’s surgeon was pleased with the surgical outcome. With respect to right sided problems she was of the opinion radiographic evidence did not support a finding of neurological impairment on that side. She was also of the opinion the worker had some prior non compensable back problems including a home accident in July 2005 which in her opinion could be deducted from the NEL award as per policy.

She conceded that although these arguments were being made, the employer had not specifically objected to the percentage of the NEL award. As such, her main concern was that I decided the issue based on the legislative NEL process versus finding a creative way in which to increase the worker’s award.

Analysis

The employer representative rightly indicated, the employer did not object to the NEL quantum. As a result, I have not looked at reducing the quantum of the worker’s NEL award. The reason being, if I had thought after my preliminary review there was a downside risk to the worker that her percentage of NEL award could be reduced, I would have informed her representative and provided him the opportunity to withdraw this objection from the hearing agenda. This approach was consistent with the Appeals Branch practice and procedures document. I saw no downside risk. As such at, minimum the worker’s NEL award will remain at 33 percent.

With respect to the quantum of the NEL award, when dealing with an organic low back impairment the impairments in the following categories are considered.

1. Abnormal range of motion findings

2. Impairment due to specific disorders of the spine

3. Lower extremity neurologic deficits (motor and sensory).

When determining the percentage of the NEL award the rating schedule used is the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised.

Although the worker representative concentrated his arguments on the worker’s neurological impairment, I have looked at all of the impairments included in the NEL award to ensure the percentages granted were in keeping with those found in the AMA Guides.

With respect to the percentage of impairment calculated under the category of abnormal range of motion findings I compared the values recorded on the Dorso-Lumbar Spine reporting form by the NEL Roster Physician with those recorded by a WSIB NEL Clinical Specialist on page 2 of the NEL Evaluation Summary Form. The values are the same. I also reviewed the AMA Guides and found the 19 percent impairment to be correct.

With respect to the category of Impairment due to Specific Disorders of the Spine the AMA Guides showed that when multiple operations were involved, with or without residual symptoms, the percentage of impairment equalled 10 percent. In addition, to the 10 percent a further two percent was added when a second operation occurred. As the worker had two surgeries her degree of impairment in this category equalled 12 percent. This was the percentage of impairment the NEL Clinical Specialist used in this category when calculating the worker’s NEL award which was correct.

With respect to the category of lower extremity neurologic deficits it was known the worker’s disc herniation involved the L4-5 level. In reviewing the NEL Roster Physician’s information she provided information for nerve roots L3 to L5 inclusive along with the S1 nerve root.

Based on the grading scheme related to sensory deficit on the right side, there was no sensory deficit of the L3, L4 or L5 nerve roots. With respect to the S1 nerve root on the right side there was some minor sensory deficit noted.

On the left side, it was noted that in all of the nerve roots there was decreased sensation with or without pain, which might prevent activity (minor causalgia).

Based on the grading scheme related to motor deficit on the right side, there were no motor deficits found in the L3, L4 or L5 nerve roots. With respect to the S1 nerve root on the right side there was some minor motor deficit noted.

On the left side there was no motor deficit found in the L3 and L4 nerve roots with minor nerve root motor deficit relating to the L5- and S1 nerves.

In looking at the NEL Clinical Specialist’s summary sheet she took into consideration sensory and motor deficits of the L5 nerve root on the left side. It must be remembered that any findings relating to nerve root involvement must be confirmed by objective medical evidence. This was because each nerve root in the lower back serviced a particular area in the lower extremities and each nerve root had its own particular symptoms when impingement or injury to the nerve occurred. Assuming more than one nerve root was involved at the time of accident, then one would expect to see ongoing complaints from the worker to her various physicians corresponding with symptoms one would expect to see from the nerve roots involved. In this case, the only nerve root which had been confirmed as being affected by multiple sources was the L5 nerve root. This conclusion was supported by medical reporting which included but was not limited to the following.

1. July 13, 2005 emergency report from the London Health Sciences Centre

2. July 13, 2005 CT scan

3. July 13, 2005 note from Dr. Ouellette

4. August 23, 2005 report from Dr. Tu

5. December 12, 2005 report from Dr. Bailey.

6. July 5, 2007 Multidisciplinary Health Care Assessment Report

7. October 11, 2007 report from Dr. Mailis-Gagnon

8. February 14, 2008 MRI

9. August 1, 2008 Health Professional Continuity Report

I have not documented medical reporting subsequent to August 1, 2008 as the NEL assessment decision was dated in June 2008. As a NEL award was based on a snapshot in time the medical reporting required for decision making purposes was that of the NEL assessment and medical reporting prior to or close to the date of the NEL decision.

Findings

Based on my review of the record and the AMA Guides, the relevant impairments were taken into consideration when determining the worker’s NEL award. In addition, based on the available evidence I am satisfied the appropriate neurologic impairments were taken into consideration when determining the worker’s degree of permanent impairment. As such, I accept the 33 percent NEL award which was granted for the worker’s organic impairment as appropriately representing her degree of permanent impairment at the time of the NEL decision.

Issue # 2: Entitlement under the WSIB’s chronic pain disability policy

Worker Representative’s Position

My understanding of his position was that should I increase the worker’s organic NEL award as per his arguments on that issue, then entitlement under the WSIB’s CPD policy would be a moot point. The reason being, in his opinion a higher organic NEL award would support a finding the worker’s impairment was greater than that recognized by the WSIB and because of this she would be considered unable to perform any type of work.

If I did not increase her organic NEL award he argued the worker’s pain complaints were inconsistent with her organic impairment and thus she would have entitlement under the WSIB’s CPD policy. To support his position that an organic NEL award did not preclude a worker form entitlement under the WSIB’s CPD policy he entered Exhibit # 3 enter the record.

Employer Representative Position

She was also of the opinion the worker would not meet the CPD criterion relating to the pain being caused by the injury. This criterion called for complaints to be genuine and in this case the worker testified with increased activity her pain level increased. The representative was of the opinion such a response was not indicative of what one would find in a CPD case.

She noted that CPD was a behaviour illness where in this case the worker’s continuing problems were related to her life style which included medication dependency. She noted that based on the worker’s testimony her son unsuccessfully attempted to intervene with her medication intake. Also, although the worker indicated she did not have a medication intake issue some of the medical documents in the record showed otherwise. With respect to the drug dependency issue she provided a WSIAT decision number 1009/02 for consideration.

She noted that based on the worker’s testimony things went well when not participating in her work hardening program and she was getting paid by the WSIB. On the other hand when she was told she could work but had no money she was not happy.

She also noted there was neither a diagnosis of CPD nor evidence of medications one would normally see in a worker with CPD.

She summarized by saying that she agreed with the WSIB in its finding the worker was unable to work due to non-work related problems. In her mind these non work related problems consisted of drug addiction, lack of coping skills, relationship issues and various changes in her address. She was of the opinion if CPD entitlement were granted one would be accepting all of the worker’s problems rather than those specific to her back impairment.

Analysis

I reviewed the WSIAT decisions provided to me and I am providing a brief summary of each along with my comments as to the relevance of each to this case.

Exhibit # 3 - WSIAT decision number 2719/00 – provided by the worker representative

In this particular decision the worker had been granted entitlement to a cervical strain and a 20 percent non-economic loss award in recognition of her degree of permanent impairment. She claimed for fibromyalgia under the WSIB’s CPD policy. Entitlement was denied on the basis there was an organic reason for her pain complaints. In essence, the Tribunal Vice-Chair found the worker’s symptoms were well beyond what one would expect to find in an organic neck injury and as such found the worker’s pain complaints were inconsistent with her organic findings. The Vice-chair also found the other criteria set out in the CPD policy were met and as such, entitlement was granted along with a NEL assessment.

In this particular case I would agree with the Vice-Chair that having an organic NEL award does not automatically mean a worker’s pain complaints can be explained by the organic impairment alone. A decision maker has to take into consideration all of the evidence including observations made at an oral hearing when determining whether a worker’s degree of pain is inconsistent with an organic impairment. I will do so in my decision.

The employer representative briefly outlined why she was of the opinion this case was different from the one adjudicated in WSIAT decision number 2719/00. One of the points made by the representative was that in her opinion, the worker in the case before me had a pre-existing addictive personality which would preclude her from meeting the CPD criteria. In essence she was saying the facts of the case before me differed from those before the Tribunal.

Exhibit # 5 - WSIAT decision number 1009/02 – provided by employer representative

In this decision there were several issues adjudicated one of which related to drug dependency. The worker was arguing his drug dependency was a result of his compensable low back and neck injuries. The WSIB accepted the worker had sustained a permanent partial disability of 10 percent in his low back but no permanent partial disability was recognized for the neck.

The Tribunal Panel denied all the issues before it. In denying the issue relating to drug dependency the Tribunal Panel found that reasonable amounts of pain medication had been prescribed but the worker by his own choice augmented his medication intake with illegally obtained street drugs.

I reviewed the medical reporting on this issue and commented on it under the heading “Findings”.

Findings

The majority of medical reporting in the record showed the worker continually complained of pain which was being treated on the basis of her organic impairment which was that of a L4-L5 disc herniation with L5 nerve root involvement. From my interpretation of the medical reporting the worker had two problem areas, those being the low back and the left leg. Based on the distribution of the worker’s pain in her left leg, in my opinion it would be reasonable to conclude the pain was likely due to an organic cause that being chronic damage to the L5 nerve root.

Dr. Bailey the worker’s surgeon said as much in his report of April 30, 2007. He was of the opinion the worker had chronic nerve damage and recommended that she have adequate pain control so that she could achieve relative function in her life. He suggested Gabapentin or a Fentanyl patch. It was noted from the worker’s testimony and information in the medical reporting that she could not tolerate the side effects of Gabapentin. It appeared she tolerated Percocet and Oxycontin the best. Although chronic nerve damage might explain the worker’s left leg symptoms it would not explain her low back pain.

In October 2007 the WSIB attempted to assist the worker with pain management as she was seen by Dr. Mailis-Gagnon and a psychologist. Dr. Mailis-Gagnon provided a DSM IV Axis 1 diagnosis of Pain Disorder Associated with Medical (failed back surgery syndrome) and Psychological Factors. One of the medications she recommended was that of Gabapentin. Based on the record it was known the worker tried this medication but it was discontinued due to side effects.

The psychologist suspected there was a significant psychological component contributing to the worker’s presentation. The DSM-IV Axis 1 diagnosis was Pain Disorder associated with both psychological factors and a general medical condition. Under Axis IV which related to Psychosocial and Environmental Problems it was recorded there appeared to be no primary external psychosocial or environmental problems affecting her presentation. Axis V related to the Global Assessment of Functioning (GAF). The GAF scale took into consideration psychological, social and occupational factors only. In this particular case, at the time of the assessment the worker’s GAF was 41 to 50. At this GAF level the worker would be considered to have serious symptoms which could cause serious impairment in social, occupational or school functioning.

It was suggested the worker might benefit from some appropriate biopsychosocial or multidisciplinary intervention that might include such components as training in relaxation and stress management techniques, distraction, reinterpretation, or other pain management techniques and a better understanding of how psychological processes might be affecting presentation. It was also thought that a graduated return to work with appropriate supervision and support might be helpful.

Based on the record the worker did not receive the treatment recommended by the psychologist.

Other than these two reports it appeared the physicians who assessed and treated the worker over time were doing so on the basis of her organic impairment. Even when the worker saw Dr. Ower at a pain clinic in London in September 2009 treatment appeared to be geared towards her organic impairment as one of the treatments suggested was that of a steroid injections. The treatment was not carried out as the worker was moving from the London area. Rather Dr. Ower referred the worker to the Wasser Pain Clinic in Toronto as she had family close to Toronto. At the time of the oral hearing the worker indicated she had been contacted by the clinic and had filled out a questionnaire. However, treatment had not commenced. I am surmising that if the worker was treated at the Wasser Pain Clinic, treatment would be geared more to her organic impairment.

At the oral hearing I observed certain pain behaviours by the worker such as shifting her weight from side to side while sitting, standing on a frequent basis, grimacing, becoming emotional during her testimony and taking medication part way through the hearing. In contrast to these observations the employer representative argued the worker’s ongoing problems were related to medication abuse. The worker representative argued to the contrary. I would agree with the employer representative that although the worker denied a substance abuse problem there were several medical reports which appeared to record otherwise. In fact it appeared two family doctors discharged her from their practices over the medication issue.

However, in contrast to these reports, there were many other reports which did not raise medication intake as an issue. The worker’s most recent family doctor while she still resided in London, Ontario, Dr. Gracey, in a February 5, 2009 report commented on the worker’s medication intake. She recorded the worker had been accused in the past by another physician as drug seeking. The doctor also recorded she had not seen this but she advised the worker of her policy. It was known from the record that Dr. Gracey became the worker’s family doctor as of October 16, 2008. In addition, the worker testified she was using less than the prescribed amount of medication for fear of becoming addicted. Assuming this to the case this would be problematic as her pain would be poorly controlled.

After reviewing the medical reporting in its entirety it would appear the worker had some medication issues during the period she was seeing family doctors Tu and Patel. The worker confirmed through her testimony that while seeing Dr. Tu he stopped her Percocet and Oxycontin medication because of concerns raised by her son. She also testified her son did not understand she required the medication as she had just recently undergone her second surgery. During this period and after Dr. Tu discharged her as a patient she obtained medication from hospitals, walk-in clinics or bought Percocet off the street. This was the first time in her life she bought medication on the street.

She testified that she did not find another family doctor until November 2007 when she began seeing Dr. Patel. At the time she was living in a woman’s shelter. He wanted to treat her by way of a Fentanyl patch but as it contained a narcotic she did not wish to use it. In addition, she had a reaction to it. Dr. Patel gave her other medications and increased the dosage before prescribing Oxycontin. Dr. Patel discharged her from his care on two occasions. The first was when she questioned the role of one of the staff in his office. On the second occasion he allowed another doctor to take over her care and that doctor told her she was abusing her medication and she was prescribed a different medication.

She also testified that at the time of her first work trial the only medication she was taking was that of Ibuprofen. At the time she began her second return to work attempt she was not taking medication as she did not wish to become addicted. After returning to work she was given a different medication which she reacted to. As such she was again prescribed Percocet and Oxycontin. Although the doctor wanted to increase the dosage this did not occur as she was worried about becoming addicted to it.

Based on more recent information provided by Dr. Gracey who became her family doctor in October 2008 she did not raise the medication issue as a concern. Even if one agreed there continued to be a medication intake issue none of the medical reports recorded the worker was addicted to her pain medication. In addition, none of the reporting recommended she enter into a substance abuse program. As a result, I am satisfied that any medication intake issue the worker might have was not the sole reason for any ongoing pain complaints she had. Of equal or more significance was the worker’s ongoing pain complaints related to the consequences of her work injury.

At this point, based on the evidence, I make no finding as to whether the worker has entitlement under the WSIB’ CPD policy other than to say I accept the worker meets the policy criterion relating to the pain complaints being inconsistent with her organic findings. Before an entitlement decision can be made a referral to a WSIB Functional Restoration Program needs to be made. After the initial intake assessment is completed and should the worker be a suitable candidate for the program she should participate in it. The assessments should include a review of the worker’s medication, the intake of the same and the efficacy of the medications prescribed. In addition, a diagnosis, prognosis, and comments on the worker’s ability to work need to be provided.

Once the discharge summary is obtained the Operations Section can reconsider its decision to deny entitlement under the WSIBs CPD policy noting I have accepted the worker has met the criterion relating to her pain complaints being inconsistent with the organic findings. The Operations Section would need to look at the other CPD criteria to determine whether entitlement was in order. With respect to the criterion relating to marked life disruption, the worker provided testimony which was recorded in this decision and could be used by the Operations Section. The reason being, I found the worker to be a credible witness as she answered questions put to her by her representative, the employer representative and myself in a straight forward manner. In addition, she neither evaded questions asked nor provided vague and/or embellished responses.

If after the initial assessment the worker was determined not to be a suitable candidate for the program, then at minimum an assessment by a psychologist at the program would need to be undertaken so that diagnoses in the DSM IV protocol including Axis V which related to the worker’s Global Assessment of Functioning could be provided. In addition, treatment recommendations which need to be implemented would be required. Also a comment would be required as to whether the worker would be able to perform any type of work while concurrently undergoing treatment.

Issue # 3: Has the worker been unemployable since August 6, 2008 with the exception of periods she participated in early and safe return to work activities.

Under this issue there are three periods to deal with. They are as follows.

• August 6, 2008 up to but not including November 26, 2008.

• November 26, 2008 up to but not including December 8, 2008

• March 9, 2009 when she stopped working completely and ongoing.

For each period the worker is claiming full LOE benefits.

Testimony

General

The worker provided testimony which included some personal background along with the date she started with the employer, her job title and duties prior to her accident

She started with the employer on July 4, 1998 in Lakefield and later transferred to the London area. Her position was that of Customer Service Representative. Throughout her time with the employer she worked as a casual. Her job duties consisted of working as a cashier, unloading product which was delivered to the store, stocking shelves and providing customer service which included providing customers with information relating to products sold.

When she transferred to London the first store she worked in was at Grand and Wellington. She did not recall sustaining any injuries at this store although she did recall an incident where she fell and almost hit her head on a piece of steel. She worked at this store between 2002 and 2004 and then moved to Store # 27 where she worked approximately one and one half years prior to her workplace accident. At this store she continued to work as a casual which meant she was scheduled as needed or when called in. Although she averaged 24 hours per week she could work up to 30 or 40 hours per week. At Christmas she worked 40 hours per week. In addition, she always worked Friday and Saturday nights and Sunday if the hours were available. She always worked on the days product needed to be unloaded.

At the time of her accident she was living in a large trailer home. She could not recall injuring her lower back while vacuuming the trailer home and had no idea why Dr. Tu would have included this information in a report. She did recall injuring a back muscle in 1989 which caused her to lose time from work. However, she had no ongoing problems.

In August 2005 she was living in a woman’s shelter as there had been a break down in her relationship. She confirmed that in 2005 and 2006 her address changed. It changed because of relationship problems. The change in address was not because she was a drug addict as she was not, nor was she a crack cocaine abuser. She indicated that with respect to drugs, her partner gave her something and she became paranoid and delusional. She was taken to the hospital where blood work was done and she was told she had cocaine in her system. This was the only occasion she became delusional. She also indicated she did not use marijuana as she had a bad reaction and was allergic to it. When smoking it she found she would hyperventilate and could not breathe. She was also allergic to cigarettes, pollen, dust ragweed and the like, confirmed through testing years ago.

Prior to her accident she was not taking pain medication. Subsequent to her accident she could not move and prior to her first surgery she was taking Percocet and Oxycontin medication.

She had participated in physiotherapy which although helping her to understand her injury was not helpful.

She indicated that her first surgery did not help her. Prior to her second surgery her surgeon told her she had a further herniation from either a fall or because he had missed something the first time. She could not recall which side was operated on and when asked about a medical report which reported she had a right sided disc herniation she could not recall this as being the case.

After her second surgery she was prescribed medication. In addition, she received home care for a period of time through the hospital. She had a nurse who came to her place approximately two to three times per week to change her dressing. Also, an individual (I gather this was an Occupational Therapist or the like) came to her place to determine what in-home assistance she required. She also got help with her bedding and laundry but she made her own meals. Once she was up and on her feet the services including those of the nurse were stopped.

She was supposed to undergo physiotherapy. However the physiotherapist would not take her until she got her pain under control which she never did.

Dr. Tu was her family doctor prior to July 2005 and after until he discharged her from his practice. He stopped the Percocet and Oxycontin medication. From what I gather the medication was stopped as her son had expressed concern relating to her medication intake. She indicated she received a letter in the mail from Dr. Tu’s office discharging her as a patient. She indicated this action took place because she became assertive with the doctor’s staff as she required the medication at that time as it was a period right after her surgery.

She did not have another family doctor until she began seeing Dr. Patel in November 2007. At the time she was living in a woman’s shelter. He wanted to treat her by way of a Fentanyl patch but as it contained a narcotic she did not wish to use it. In addition, she had a reaction to it.

Dr. Patel gave her other medications and increased the dosage before prescribing Oxycontin.

Dr. Patel discharged her from his care on two occasions. The first was when she questioned the role of one of the staff in his office. On the second occasion he allowed another doctor to take over her care and that doctor told her she was abusing her medication and she was prescribed a different medication.

She was of the opinion she was not addicted to her prescription medication as a substance abuse program had never been recommended.

She also confirmed that during the time she did not have a doctor after her second surgery she would obtain medication from hospitals or walk-in clinics and then eventually she bought Percocet on the street as she was in dire straits as she had exhausted all of her medication trying to control her pain in order to become mobile. She felt at that time no one was helping her. This was the first time in her life she bought medication on the street.

After her second surgery she developed insomnia because of burning back pain with pain radiation down the leg. She indicated the pain took over her whole body. At the time of the oral hearing she was taking one sleeping pill although she can take up to two per day.

She recalled being seen by Dr. Mailis and indicated the assessment itself took about one hour. She thought the purpose of the assessment was to determine how impaired she was.

First Return to Work Attempt

She indicated the she was told by her Case Manager that she was capable of working and as such had to return or “that was it”. When she returned to work she was doing a bit of Customer Service work. She indicated that work took everything out of her so that when she went home she would have to take a hot bath. She received two pay cheques and then stopped working in May as she could not do it. At the time she stopped working the only medication she was taking was that of Ibuprofen.

Mediation

She recalled mediation occurring which included the WSIB, her union representative and the employer. The outcome of the mediation was that she was to participate in a work hardening program. Initially the program started slowly and she was okay with this. She received massage therapy which focused on her scar as she was having pain. Later she was asked to lift weights and she said she could not do so. She continued with the program but eventually went to see her family doctor, Dr. Patel. She told him what was happening in the program. He gave her a note indicating she should stop the program. She stopped the program and gave the note to the WSIB.

Period August 6, 2008 up to but not including December 8, 2008

Her benefits were cut off in August 2008 even though she complied with work and the WSIB. As a result, she was forced to apply for Ontario Works benefits. She lived off this benefit and her NEL award which she had received. Around Christmas time she went to the employer and asked what it wanted her to do. She was told to get a note from her doctor. At the time she noted she was able to talk on the phone and sit and as such thought she could work.

Second return to work attempt

When she returned to work she thought one of her medical precautions related to alternating between sitting and standing every 15 minutes. She was to work four hours per shift. When she returned to work her District Manager placed her on the floor performing customer service work. Part of her job was to sell good wines to the customers. She was unable to do this because of her pain which affected her concentration. The employer suggested she return to work on graduated hours which she tried. She was able to get up to three hours per shift. She had one day off in the middle of the week but still the work was too much for her.

At the time she was not taking medication as she did not wish to become addicted. After returning to work she was given a different medication which she reacted to. As such, she was again prescribed Percocet and Oxycontin. Although the doctor wanted to increase the dosage this did not occur as she was worried about becoming addicted to it.

March 2009

She confirmed she went off work and had not worked since or looked for work. Since stopping work she could not say she has a good day. When she did more activity her pain flares up and she dealt with it.

June/July 2009

She arranged for in-home assistance as she was in a bad way due to prolonged activity and repetitive duties which caused her condition to flare-up. As a result of the assessment she was provided with a nurse, a walker, a bath seat and other items. She also had a personal care individual assist her two times per week. This individual helped her with bathing and her laundry. The purpose of the assistance was to get her back on her feet and make her independent again.

September 2009

She moved to Peterborough at the end of September to live with her sister. She moved as she could not get the assistance she required in London. She has not approached the CCAC in Peterborough for assistance as she has her sister and friends to help her.

Recent typical day of activities

With respect to sleep she was up every two hours even though she took a nightly sleeping pill.

The time she got up in the morning depended on what time she went to bed. The range as to when she got up was between 8:30 a.m. and 9:30 a.m. When she did get up she did so slowly as she experienced a burning sensation down both legs. She then took her medication and waited for it to “kick in”. She then had her breakfast, made her bed, did some dishes and went to appointments if she had any scheduled.

She then had lunch and after lunch she might go on line on the Internet to amuse herself or watch a show on television. Sometimes she would go and see her mother who she had seen three or four times since she returned to Peterborough. When she received her cheque she might also do some shopping.

She then had a quick supper which she made for herself.

She could also do her laundry and if needed could drive her car.

Activities she did not perform related to indoor and outdoor chores.

With respect to personal hygiene she bathed once per week at a friend’s house with her assistance.

She indicated that she restricted her activities as the more she tried to do the more she paid for it later.

Areas of pain

Her leg is numb with a burning sensation. The toes on her left foot do not bend and the foot feels like it is broken. Sometimes the pain shoots down the left leg for no apparent reason.

Impacts of her pain on her ability to function

They were described as follows. She could not

• walk normally

• ride a bicycle

• lay down properly

• perform her work with the employer to her expectation particularly as it related to selling product to customers

• concentrate properly

She also indicated that she was angry all the time and but for the pain she thought she could work.

She also confirmed she had a car and had never lost her licence because of medication usage. She also indicated that she had attempted to take city buses but they jerked too much or she had to stand.

Effects of Pain Medication

With respect to her medication it gave her some relief and comfort and allowed her to be mobile in the morning. She did not take as many pills as prescribed. The medication worked for about two or three hours and reduced the pain in the left leg and made it less prominent. However, even with the medication she continued to have numbness in her toes. With respect to her concentration the medication helped to block the pain.

Current employment status

She explained that she continued to be a union member and an LCBO employee. She was on a transfer to Peterborough and had been assigned to a new store. Her family doctor who was currently Dr. Gracey thought she might be able to return to work in 2010 while other doctors say she was damaged goods. She was looking for someone to “fix” her so that she could return to work.

With respect to office work she indicated she had tried this but there was too much repetitive trunk movement involved. When asked about repetitive activities in her non working life she responded that she had to live. She asked a rhetorical question that being, if she went to work who was going to care for her after work noting working took everything out of her. She also indicated if she worked she could not do what she needed to do and would have to cease her lifestyle. When she was not working she could control things whereas at work she could not.

Orthotics

She confirmed she had received orthotics for both feet sometime prior to the oral hearing. She was aware that one leg was shorter than the other and assumed that it was the left leg. She confirmed she had high arches but never had problems with them prior to her accident as she participated in sports and was able to work. She indicated that in using the orthotics she could bend her toes sometime while other times she could not. It was her understanding the orthotics were stretching the L5 nerve which had shrunk. She was not aware the shoes were provided and paid for by the WSIB on the basis she would be returning to work.

Other

Since October 2007 she saw a psychiatrist in the London Hospital in May 2009. She provided the name of the doctor and I thought his/her last name was Gander but the spelling might be incorrect. She thought she was told she was having behavioural issues. Currently she is not taking amitriptyline or antidepressant medications. In addition, the day before the hearing she received a call from a Pain Clinic asking her to fill out a questionnaire. The purpose of the questionnaire was to determine which doctor she should see.

Worker Representative Position

The worker representative was essentially arguing the worker has been unable to work since the date of accident due to her pain experience. He noted the worker had attempted to return to work on two occasions but could not continue. He acknowledged the worker had testified that but for her pain she might be able to work.

He was also of the opinion this was not a chronic pain disability case but he wanted to use the chronic pain disability criteria in determining the worker’s employability. The reason being, he was aware with organic impairments there was no medical precaution relating to pain and no consideration given to the pain experience on a worker’s ability to function including at work. He was of the opinion the worker had a failed back and in his experience he had never seen a worker with a failed back return to work. He also referenced specific sections of WSIAT decisions he had submitted as Exhibits. The decisions and sections he referenced were as follows.

1310/03R2 – paragraph 32

3051/01 – paragraph 7

2719/00

Employer Representative Position

The representative responded to WSIAT decision number 1310/03R2 by opining that the medical evidence supported the worker’s inability to work whereas the medical reporting in the case before me did not.

In addition, the employer representative provided two WSIAT decisions for my consideration. They were decision numbers 151/04 and 1009/02.

She also noted that prior to the worker stopping work she had been able to increase her hours of work. However when pushed the worker opted out of the return to work plan. Had she continued with the plan the representative was of the opinion the worker would have been successfully returned to work. She also referenced the family doctor’s February 24, 2009 letter to the worker’s Case Manager. Based on the letter it was apparent in her opinion the worker was asking the doctor to find her capable of working two hours per day only. The employer was willing to consider having the worker reduce her work hours if there was objective evidence to support the worker’s position. The representative was of the opinion no such evidence was presented. In addition, she was of the opinion the family doctor was accepting the medical precautions identified by the WSIB. She also noted the family doctor hoped the worker could continue to work. In her opinion this information did not support a finding the worker had a failed back. Also it was her position the worker got the expected results from her surgery but then fell into her own behaviour. She further opined the worker’s emotional problems might be due to her thyroid problems. She indicated the worker’s other problems needed to be separated out from her back problems.

In summary her position was the family doctor was supporting a return to work and with the granting of orthotics, the worker should be able to perform 20 hours of work per week on a flexible basis. As such, she was asking that the decision to deny LOE benefits from March 2009 onward be upheld.

Analysis

Although WSIAT decisions did not set precedence for WSIB decision makers, I did review them.

The worker representative provided two WSIAT decisions relating to the issue of the worker’s ability to work. In both cases he had direct involvement as he advocated on behalf of the workers in question. A brief summary of each decision and my interpretation of the Vice-Chair’s findings in each decision were as follows.

Exhibit # 1: WSIAT decision number 1310/03R2 – provided by the worker representative

This was a case where the worker was requesting full loss of earnings (LOE) benefits subsequent to August 28, 2001. A WSIB Appeals Resolution Officer (ARO) allowed entitlement under the WSIB’s chronic pain disability policy but also found such entitlement did not preclude the worker from performing modified work offered by the employer. The reason being the work was found to be within her medical precautions.

I gather WSIAT initially agreed with the ARO that ongoing benefits were not payable but later granted a reconsideration of the decision. Based on the reconsideration as per decision number 1310/03R2 entitlement to full LOE benefits was granted.

In his closing arguments the worker representative referenced page 7 paragraph 32 as he was of the opinion this paragraph put forward the principle the Vice Chair relied on in making his/her decision. From my interpretation of this paragraph the Vice Chair was saying that as the WSIB had allowed entitlement under its chronic pain disability policy that the worker’s non-organic disability together with any pertinent organic factors needed to be taken into consideration.

In my opinion he/she was not saying that in cases where pain was the primary feature of a worker’s presentation but CPD entitlement had not been granted, that a decision maker should still use the CPD criterion related to the pain experience and its impacts on activities of daily living (mark life disruption) to determine employability.

In the current case, I have deferred a decision relating to CPD entitlement to the Operations Section. Although the worker does not currently have entitlement under the WSIB’s CPD policy I have considered the worker’s pain complaints on the basis that they have affected her ability to function at work until such time as she completed a pain management program.

Exhibit # 2 - WSIAT decision number 3053/01 – provided by the worker representative

This was an employer’s objection. The employer objected to the Appeals Resolution Officer’s decision which granted a full future economic loss (FEL) benefit for the R1 (first review) and R2 (final review) periods.

In this particular case the worker had a 30 percent non economic loss award on an organic basis for a low back impairment along with non work related conditions which were also affecting her ability to work. Even with the non work related impairments, the Vice-Chair agreed with the ARO in that the worker’s compensable injuries were severe enough to render her totally incapacitated from working even though the employer had offered modified work. However, I noted that in considering the worker to be unable to work, both the ARO and the Tribunal Vice- Chair had to make a finding that the work offered was not suitable.

In the case before me no arguments were made as to the suitability of the work offered. Rather the argument made was that on a medical basis the worker was unable to perform any type of work. In my opinion a distinction has to be drawn between the issues of job suitability and an inability to perform any type of work. In a job suitability case one would expect to see a worker agreeing with his/her level of impairment. The issue which then arises is the worker makes complaints about the work for reasons which might include it exceeded his/her medical precautions. In this type of case the workplace parties and if needed WSIB staff work together to make the work suitable. If appropriate accommodations could not be made then alternative modified work would be identified, if possible.

In a case where a worker indicated he/she could not perform any type of work because of the medical impairment, then it would not matter what modified work was offered as the worker would consistently say it was unsuitable when he/she really meant they could not perform any type of work.

In the case before me the worker was definitely indicating through her testimony that she was unable to perform any type of work.

Regardless, the WSIAT decision in question was made with the specific facts before one ARO and one Tribunal Vice Chair. In deciding the case before me I will also use the specific facts of this case.

Exhibit # 4 - WSIAT decision number 151/04 – provided by employer representative

This was a case in which the WSIB recognized the worker had a permanent impairment in his left shoulder with the degree of permanent impairment being assessed at 17 percent. The issue before the Tribunal panel related to benefits to be paid along with labour market re-entry assistance beyond December 1999. The Panel found the worker did not meet his legislative co-operation obligations with respect to early and safe return to work activities, labour market re-entry activities or health care. As such entitlement was denied.

My interpretation of this decision was the panel denied entitlement on the basis the worker perceived himself to be unable to perform any type of work whereas three of his physicians found to the contrary. Although not specifically stated in so many words, the Panel was of the opinion the worker was partially impaired and as such he had a duty to mitigate his circumstances by attempting to return to work but did not do so.

The case before me was different in that the worker did attempt to return to work on a graduated hours’ basis on two occasions but was unsuccessful. In all three cases when she stopped working it was with medical authorization. If I found the worker to be unable to work for the periods in question then her co-operation in ESRTW would be a moot point as she did participate in medical rehabilitation.

Review of the Record

After her accident the worker was considered to be unable to work as a result of a sequestered L4-5 disc herniation affecting the traversing L5 nerve root. Her first surgery occurred on July 4, 2006 in the form of a microscopic L4-5 discotomy. A second surgery occurred on February 7, 2007 in the form of a revision of left sided L4-5 discotomy. After her second surgery the worker was followed by her surgeon. Six week post surgery the worker indicated she was subjectively better although she was asking for pain medication. Symptoms at the time were those of pain intermittently with severe acute onset which seemed to resolve with positioning. She also had some numbness.

When seen by the surgeon on April 30, 2007 the worker continued to have symptoms. He thought the worker had chronic nerve damage and recommended that she have adequate pain control so that she could achieve relative function in her life. He suggested Gabapentin or a Fentanyl patch.

In a May 24, 2007 Health Professional’s Progress Report prepared by the worker’s surgeon he recorded the worker’s symptoms as radiculopathy left leg and back pain. The diagnosis was that of chronic left radiculopathy. Treatment was that of physiotherapy, Gabapentin and possibly narcotic medication. Medical precautions identified were those of no lifting greater than 15 pounds, no repetitive lifting/bending, no standing or sitting in excess of 30 minutes with working hours being no greater than 3 to 4 per day.

June 6, 2007 report from the family doctor at the time, Dr. Tu, recorded the worker required a referral to a pain clinic.

The worker was assessed at a Regional Evaluation Centre on June 28, 2007 with the report being dated July 5, 2007. The diagnosis at the time was chronic back pain and left radicular leg pain. For her chronic pain Gabapentin was recommended. Medical precautions given were those of no repetitive bending, no lifting more than 10 pounds with limitation in sitting and standing to a half hour. The medical precautions were considered to be permanent.

The WSIB attempted to assist the worker with pain control by referring her to a Pain Program at the Toronto Western Hospital. She was assessed by Dr. Mailis-Gagnon in October 2007. The report recorded in part the worker’s complaints were those of constant low back and left leg pain which were equally intrusive. She described her back pain as excruciating, miserable and tiring. She described the leg pain as burning, sharp, shooting, aching and like electrical shocks. She rated the pain in her left leg and back as 8 out of 10 with fluctuations between five out of ten and ten out of ten. It was also recorded the worker’s pain was aggravated by any activity, movements, cold and damp weather as well as stress. The worker also complained of fragmented sleep due to pain.

With respect to medication it was recorded the family doctor had stopped prescribing her Oxycontin and Percocet around May 2007. After that she had gone a few times to the emergency department in St. Thomas for injections and on a few occasions she was prescribed 50 tablets of Percocet. She had also gone to the London emergency department and had been given a few tablets of Percocet and injections. The last time she had been prescribed 50 tablets of Percocet was in September 2007. In addition, she had been buying Percocet on the street and whenever available could be taking up to five tablets per day. Otherwise, a friend of hers gave her some tablets that were similar to Tylenol # 3.

With respect to medication intake the worker denied use or abuse of street drugs. She indicated she had tried marijuana but never used it regularly because it gave her anxiety.

On clinical examination the worker was recorded to have displayed multiple pain behaviours and non organic signs during the interview and physical examination respectively.

The doctor was of the opinion the worker had minor evidence of an old L5-S1 radiculopathy. On the DSM IV she was classified with Pain Disorder associated with Medical (failed back surgery syndrome) and psychological factors.

With respect to ongoing treatment it was noted the worker was entitled to some analgesia around the clock. The type of medication, dosage and usage was identified.

As part of her assessment she was seen by a psychologist. The report was dated October 17, 2007. The psychologist suspected there was a significant psychological component contributing to the worker’s presentation. The DSM-IV Axis 1 diagnosis was Pain Disorder associated with both psychological factors and a general medical condition. Under Axis IV which related to Psychosocial and Environmental Problems it was recorded there appeared to be no primary external psychosocial or environmental problems affecting her presentation. Axis V related to the Global Assessment of Functioning (GAF). The GAF scale took into consideration psychological, social and occupational factors only. In this particular case, at the time of the assessment the worker’s GAF was 41 to 50. At this level the worker would be considered to have serious symptoms which could cause serious impairment in social, occupational or school functioning.

It was suggested the worker might benefit from some appropriate biopsychosocial or multidisciplinary intervention that might include such components as training in relaxation and stress management techniques, distraction, reinterpretation, or other pain management techniques and a better understanding of how psychological processes may be affecting presentation. It was also thought that a graduated return to work with appropriate supervision and support might be helpful.

Although the Pain Clinic suggested further treatment for the worker to assist her in pain management this did not occur. Rather a WSIB Medical Consultant in memorandum number 84A dated December 2007 opined the worker was fit for modified work. At the time the medical reporting was showing the worker’s main complaint was that of pain.

When the Case Manager informed the employer in December 2007 that the worker was capable of performing modified work and her medical precautions were provided, the employer developed a modified return to work plan. Duties were those of cash, single bottle stacking and customer service on a rotational basis. Hours of work were to be graduated starting at two hours per day working up to four hours per day.

In a December 31, 2008 progress report the doctor recorded the worker’s limitations relating to her organic impairment. It was also recorded there were psychogenic limitations evident. The report also recorded the worker had an adverse reaction to the duragesic patch.

In a January 3, 2008 script the family doctor prescribed a non wheeled cane due to musculoskeletal pain.

A January 7, 2008 physiotherapy report recorded the worker’s limitations relating to her organic impairment.

January 9, 2008 script from the family doctor prescribed the Fentanyl patch.

On January 17, 2008 the employer met with the worker and her union representative to discuss a return to work where the worker would be working cash and performing single bottle stocking. The worker did not accept the offer at the time. The reason being, she was beginning a new medication and did not know how she would react to it and her doctor wanted her to be off work pending test results. In addition, the employer observed the worker was using a cane and appeared to have problems sitting for a few minutes before having to change position.

It appeared the test result the worker was referring to was that of a MRI which occurred on February 14, 2008. The test results relating to the L4-5 disc area were interpreted to show a moderate degree of indentation upon the left traversing L5 nerve root either from a residual or recurrent moderate-sized left-sided posterolateral disc protrusion or scarring from the previous surgeries.

February 27, 2008 script from the family doctor. One of the medications which continued to be prescribed was Lyrica with the dosage being increased.

In a medical report of March 20, 2008 the family doctor at the time recorded the worker could return to work working modified hours of two hours per day with restrictions. Among other things the report recorded sitting tolerance as no more than 30 minutes on a consecutive basis with, standing tolerance being 60 minutes on a consecutive basis and walking tolerance being as tolerated. It was also recorded the worker required frequent breaks.

March 28, 2008 the employer again offered the worker modified work. The modified work plan called for the worker to rotate between cash and customer service with accommodation being provided. The plan was to have graduated hours starting at 2 hours per day with an increase in hours so that by week five she would be working four hours per day.

The worker returned to work on April 21, 2008. She questioned the suitability of the work and as such a WSIB Mediator became involved. An agreement was reached whereby a WSIB Ergonomist would analyze the cashier and customer service position for suitability. In addition, as the worker had been off of work for three years she was to participate in an eight week work hardening program and then a graduated return to work program.

There was the April 21, 2008 NEL assessment report. In this report the worker’s subjective complaints were those of constant pain and discomfort with numbness in the left leg and foot which was aggravated by sitting. The worker rated her pain as usually 6 out of 10 but when the pain was at its worst it was 10 out of 10. The worker also indicated pain was beginning in her right leg although the worker’s accepted entitlement is to her lower back with left sided nerve root involvement. With respect to her sensory deficit as it related to the L5 nerve root it was graded as a 2 which corresponded with decreased sensation with or without pain, which may prevent activity (minor causalgia). Her motor deficit was graded as a 4 which corresponded with complete range of motion against gravity and some resistance, or reduced fine movement and motor control.

There was a script from Dr. Patel dated April 24, 2008 prescribing Codeine Contin. This was the first time it appeared that Dr. Patel was prescribing this medication.

There was a May 8, 2008 physiotherapy report in which it was recorded the physiotherapist would support the employer’s return to work plan but not the progressive worsening of the worker’s symptoms. The worker’s symptoms at the time were back and left greater than right leg pain and paresthesia. As a result careful monitoring of her condition was required.

Employer’s subsequent return to work form dated May 9, 2008 recorded the worker returned to modified work on April 30, 2008. The forms also recorded the hours worked for the weeks ending May 4th, 11th, 18th and 25th, 2008. They were 7.24 hours, 4 hours, 2 ½ hours and 0 hours respectively.

There was a further report dated May 26, 2008 from the physiotherapist which recorded there was a change in direction as the worker had increased symptoms. The report indicated the worker would be starting an eight week physiotherapy program which was to start on May 26, 2008 for the purpose on increasing her work tolerances and walking to assist in a smooth transition to light duties. In a report to the family doctor dated July 2, 2008 it was recorded the worker had begun a work conditioning program the week of June 10, 2008. The program included lifting weights, stretching and the program had progressed well with the worker reaching 80 to 120 minutes per session. The report also recorded the worker had a flare up half way through her program and as such the intensity of the program was reduced to decrease the intensity of her symptoms. The worker complained of an increase in her symptoms and indicated she could not participate in the program. With respect to the return to work plan it was reported the worker had indicated “it’s too early and I don’t have enough time,” and I can’t do anything.

A July 4, 2008 note recorded the worker was to be off work July 4th to the 9th, 2008 inclusive.

In a July 7, 2008 report the physiotherapist recorded treatment was being stopped as the worker was experiencing an increase in her pain levels and required further medication.

The family doctor at the time completed an Opioid Maintenance Assessment Form dated July 4, 2008. In this report opioid medication was being prescribed for chronic pain associated with degenerative disc disease with L5 disc protrusion and moderate indentation of the L5 nerve root. The report recorded that since the worker was prescribed opioids her activities of daily living, walking and/or sitting, sleep and mood had improved. What had not improved was her work. The report also recorded the worker had co-morbidities of depression and anxiety. The doctor also indicated he noticed unsanctioned dose escalation and double doctoring.

In a July 11, 2008 note from the family doctor it recorded the worker was prescribed Clonidine on July 9, 2008 for the management of symptoms related to inappropriate use of her Oxycontin medication.

In an August 1, 2008 Health Professional Continuity Report the family doctor recorded the worker had an exacerbation of severe pain in the lumbar region with pain shooting down the left leg into the toes. It was recorded the symptoms flared up with increased activity such as walking, bending, pushing, pulling and sitting. With respect to whether other injuries had affected the worker’s work related condition he recorded there were psychological and drug addiction issues although he/she did not elaborate.

The worker provided a worker’s Continuity Report dated August 12, 2008. In this report there was no indication that a new accident occurred to cause her to go off work. Rather she appeared to relate her problem to increased work which in turn aggravated her back and caused her excruciating pain. She also indicated that she had insomnia.

The family doctor provided a final report dated August 28, 2008. In this report the doctor recorded that he/she had become increasingly concerned about the worker’s inappropriate use of her pain medication and her wavering commitment to addressing this issue. Because the worker became belligerent with the doctor’s staff and because she was resistant to participate in a safe and monitored pain management plan, he discharged her from his/her practice.

A WSIB Medical Consultant provided an opinion as per memorandum number 126A dated August 27, 2008. The Medical Consultant was relating the worker’s ongoing problems to non compensable substance abuse.

The worker found another family doctor that being Dr. Gracey. It appears the doctor first saw the worker on October 16, 2008. The doctor completed the employer’s functional abilities form on November 26, 2008. The form recorded the worker’s limitations and abilities. Based on the report there was no limitation in walking or standing. With respect to sitting she required a break every 30 minutes to stand. Lifting and carrying was restricted to more than 10 pounds. Pushing and trolley pulling was limited to no more than 36 pounds. There was no restriction in operating a motor vehicle.

There was a November 10, 2008 medical application form sent to Human Resources Development Canada by the family doctor. The application was completed on the basis of a work related injury resulting in a lumbar disc herniation at L4-L5. It was recorded the worker was on medication in the past but weaned herself off all narcotics and was currently only using Ibuprofen 600 mg every 6 hours as needed with good response.

The family doctor completed another employer functional abilities form on December 8, 2008. This form provided more limitations than the previous one. On this form it was recorded the worker could walk and stand with a cane and required a break every 30 minutes to stand. It also now recorded that she could not lift or carry or push a trolley.

December 13, 2008 physiotherapy report recorded the worker’s medical precautions.

December 29, 2008 Health Provider Report which recorded some of the worker’s abilities had improved and others decreased. With respect to Improvements, her consecutive sitting ability went from 30 minutes to two hours and her ability to push and pull a trolley went from not being able to do this to minimal, less than five pounds.

The abilities which decreased related to walking and standing. Where previously it was recorded the worker could walk with a cane in the most recent report it was recorded she could only walk short distances with a cane. With respect to standing consecutively it was previously recorded she could stand with a cane now it was recorded she could only stand 15 minutes but there was no mention of the need for a cane.

There was an Opioid Maintenance from which listed the worker’s medication two of which were Ibuprofen and Oxycontin. The report recorded in part the worker had been accused in the past by another physician of drug seeking yet she had not seen this. Even so, the doctor recorded the worker has been advised of her policy.

The family doctor provided a February 24, 2009 letter to the WSIB in response to one received from a Case Manager. At the time of the response the worker was working three hours per day, four days per week. The family doctor agreed with the medical precautions identified by the WSIB Case Manager. With respect to hours of work she noted the worker had been trying to increase her hours but had been unsuccessful. She noted the worker wanted to work two hours per day every other day. The doctor was aware a WSIB Medical Consultant had opined the worker could perform her pre-accident hours of 22.69 per week. The family doctor was uncertain as to whether the worker could fulfil this requirement as she did not know how the worker would go from two hours per day every other day to 22.69 hours per week. She was hoping that with the worker’s Oxycontin medication and a referral to pain management for steroid injections along with referrals to a neurologist, a podiatrist for some orthotic footwear and Aqua Fit physiotherapy the worker could return to work with increasing hours with the assistance of a WSIB work mediator.

The family doctor also provided a February 24, 2009 note requesting the worker’s hours of work be limited to two hours per day, every other day.

There was a March 6, 2009 report from a Chiropodist which recorded the worker was walking with a cane had had a severe leg length discrepancy left less than right and a left foot drop with muscle weakness in her left lower extremities. It was felt that custom orthotics would help prevent further injuries and accommodate her foot deformities.

The worker had EMG testing performed as a result of her left lumbosacral radiculopathy. At the time of the assessment the worker reported her symptoms of pain, numbness and tingling were worsening and she was having difficulty walking. Testing was conducted on May 13, 2009 and the results were interpreted to be suggestive of an old (inactive) left L4 and L5 polyradiculopathy. The results did not support the presence of an acute (active) lumbosacral radiculopathy or a tibial or peroneal entrapment neuropathy in the left lower extremity.

The results were compared with a previous EMG of June 5, 2007 which showed the presence of an old (inactive) left L5 radiculopathy.

Based on my interpretation of May 13, 2009 report there had been no change between the June 2007 and May 13, 2009 reports.

There was a June 23, 2009 brief note from an Occupational Therapist who performed an in-home functional, safety and mobility assessment. A rollator walker was suggested because of the worker’s significant pain and nerve symptoms she was experiencing in her back and legs.

On August 11, 2009 the worker was assessed by neurologist Dr. Duggal, at the request of Dr. Gracey. He saw the worker for a second opinion relating to her ongoing back and left leg pain following two lumbar decompressive procedures. The report recorded that after her first surgery she had improvement in her back pain for two weeks after which she developed a recurrent pain with new onset of left leg pain extending from the buttock down the lateral calf into the big toe. After her second surgery there was no change in her back or left leg pain and she reported a progression in her pain syndrome over time.

The report also recorded the worker reported a constant left lateral calf pain extending down to the dorsum of the foot described as “electrifying or like a spike”. This was described as a steady sharp pain as if there were “needles inside”. According to the report, although her leg pain could be aggravated by activity, it could also become worse spontaneously. She denied sensitivity to light touch.

When assessed the worker indicated her leg pain was more bothersome than her back pain at a ratio of 60 to 40. Her low back pain was aggravated by sitting, walking and lying down. On the other hand sitting in a hot bath was fairly comfortable.

At the time of the report the worker was taking Oxycontin and Percocet for her condition. It was recorded she had tried Gabapentin and Lyrica with adverse affects.

The report recorded the worker had undergone a MRI on August 29, 2008 (I am wondering if this should be 2009) after which the results were reviewed and interpreted to show the following.

• Postoperative changes with removal of the large left L4-5 disc herniation

• Predominant scar present on the left hand side with little disc material

• Distortion of the L5 and S1 nerve roots with root enhancement.

Based on the assessment and the worker’s clinical presentation and in the absence of a residual disc fragment it was determined the worker had left neuropathic leg pain. As such, she was referred to a Dr. Parrent to consider the option of dorsal column (spine) stimulator treatment.

If the worker was seen by Dr. Parrent a copy of the report was not in the record.

It then appeared the family doctor; Dr. Gracey referred the worker to Dr. Saunders at the Kingston Hospital for assessment. The referral date was August 17, 2009. I did not see a report from Dr. Saunders in the record.

There was a September 3, 2009 report from Dr. Ower of the St. Joseph’s Pain Management Clinic in London. She saw the worker on referral from Dr. Gracey. Based on the assessment the worker indicated her pain started in her lower back and radiated down both legs. The pain in her lower back was described as being “like being beaten with a baseball bat”. The pain in her leg was described as being sharp, burning or electrical in sensation. She also had a continual buzzing sensation in her left leg. She also noted some right leg pain particularly in the groin. The worker indicated that she had difficulty maintaining any one position for long and she particularly had difficulty sitting for prolong periods of time. She also indicated that because of her severe pain she was unable to work.

Medications included Oxycontin and Percocet twice per day. It was also recorded she had tried Hydromorph Contin, Gabapentin and Lyrica but she could not tolerate the side effects of these medications.

The physician was contemplating an epidural steroid injection and a trial of Topamx. However, as the worker was leaving the London area to return to Peterborough the doctor did not want to start treatment which she could not follow up. As the worker had family in Mississauga she could stay with, Dr. Ower made a referral to the Wasser Pain Clinic to see if the clinic could provide treatment to her.

Findings

Firstly, I will deal with the worker’s lost time commencing in March 2009. At the time the worker was in receipt of a 33% NEL award on an organic basis. The Operations Section consistently took the position the worker was not worse than her 33% NEL award and as such, continually found her to be partially impaired.

It was evident from information in the record the worker had concerns about returning to modified work on even a graduated basis. However, she did co-operate and returned to work on two occasions but was unable to increase her working hours to four hours per day which was the target number of hours due. She was unable to make the target number due to increased pain.

The worker was noted to be exhibiting pain behaviours by at least June 2007 which was approximately four months post her second surgery. Her family doctor at the time Dr. Tu was the first physician to recognize the behaviour. The WSIB had the worker seen by Dr. Mailis and a psychology for one assessment each because of the pain issue. The psychologist recommended various treatments none of which were followed through by the WSIB. Rather the WSIB took the position the worker was partially impaired and was capable of returning to modified work.

It was evident from the worker’s testimony along and the record that her main complaint was that of pain. Whether her pain is determined in the end to be from organic or non organic causes the WSIB has the ability to refer a worker to a speciality program such as a Functional Restoration Program for pain management purposes. The program is holistic in nature and provides among other things pain management strategies to assist a worker in functioning both at home and at work. As it currently stands the worker’s pain management has been directed towards her organic impairment.

Although the worker representative essentially wanted me to find the worker unemployable, I am unable to do so at this time based on the evidence in the record and the worker’s testimony. Based on the record the medical reporting waffled back and forth between the worker being able to work within certain medical precautions to not being able to work at all. In November 2008 the family doctor completed a medical application form for a Canada Disability Pension and yet later provided return to work information to the employer to assist in returning the worker to modified work on a graduated hour’s basis. Through the worker’s testimony it was learned her family doctor thought she might be able to return to work in 2010. However, it was also noted from her testimony she was questioning this prospect as other doctors had told her she could not work.

In addition, the worker provided some testimony which led me to believe that with a pain management program she might be able to return to work. Firstly, through her testimony it was learned she was able to function around her house and to get outside for appointments and errands if need be. She also had a car and drove. In addition, she did not describe herself as being couch or bed ridden. My interpretation of her testimony was she led more or less a sedentary life style avoiding activities which she found to increase her pain level. If she could lead a sedentary lifestyle at home then in my opinion there was the potential for the worker to perform sedentary work after she completed a pain management program.

Secondly, she testified that when she took her pain medication it gave her some relief and comfort and allowed her to be mobile in the morning. In addition, she indicated the medication worked for about two or three hours and reduced the pain in the left leg and made it less prominent. However, even with the medication she continued to have numbness in her toes. With respect to her concentration the medication helped to block the pain. This information told me her medication was having some positive effect. However, the worker also testified that she did not take as many pills as prescribed. Not taking the medication as prescribed would create a negative impact on her pain experience as periods where some pain relief was experienced would be short lived versus being longer term.

Thirdly, the worker returned to Peterborough from London in September 2009. She now has family and friends to draw support from where previously she did not

Fourthly, we are attempting to return the worker to work at approximately 22.69 hours per week with an employer willing to provide her with accommodated modified work.

Although I am not satisfied the worker is currently unemployable, I am satisfied that without participating in a pain management program any attempts to return her to modified work even on a graduated hours basis would be futile. The worker has already attempted this course of action on two occasions and although she did make some progress she did not attain the four hour per day work objective.

Therefore, before any more attempts are made to return the worker to work she is to be seen at a WSIB Functional Restoration Program. From a benefits perspective she is entitled to full LOE from the date of lost time in March 2009 to one of the following dates.

a. If considered a suitable candidate for the full treatment program then her LOE benefits are to be paid until the results of the discharge report are known. After that point ongoing LOE benefits are at the discretion of the Operations Section.

b. If not considered a suitable candidate for the program, at minimum, an assessment with a psychologist from the program needs to occur. Among other things reporting on the diagnosis and treatment recommendations would be required. In addition, an opinion as to whether the worker could perform modified work up to a maximum of 22.69 hours on a graduated hour’s basis without first undergoing the recommended treatment should be obtained.

In granting the worker full LOE benefits from March 2009 I took into consideration the worker’s co-operation in both her medical rehabilitation and return to work activities with the employer. In my opinion I am not dealing with an under motivated worker but rather one who had done what was asked of her to the best of her ability but who did not have the necessary pain management coping skills to attain optimum functioning. Perhaps had the worker had such treatment back in the latter part of 2007 or the early part 2008, the return to work outcome might have been different. Regardless, once the treatment program is completed all avenues of treatment will have been effectively exhausted and the issue of employability more clear.

With respect to full LOE benefits for the period August 6, 2008 up to but not including November 26, 2008.

The employer representative argued the employer co-operated in early and safe return to work activities when the worker initially returned to work. The worker entered into a work hardening program and was doing quite well until she was pushed at which time she opted out. The employer received a note which simply said the worker should be off work. The representative was of the opinion the worker had other problems which constituted and intervening event which in her opinion broke the chain of causation.

The WSIB accepted the worker had sustained a permanent impairment to her low back as a result of a L4-5 disc herniation for which surgery was required on two occasions. It appeared the surgery failed as the worker continued to have ongoing leg pain which was consistent with L5 nerve impingement. The nerve impingement was confirmed by way of February 14, 2008 MRI. The worker also complained of low back pain.

With respect to the worker’s permanent impairment in April 2008 she was granted a 33 percent award on an organic basis. The assessment confirmed she had L-5 nerve root problems as a percentage of her NEL award was for motor and sensory deficit.

What the award did not take into consideration was the impact of the worker’s pain on her ability to function noting the WSIB has only accepted entitlement on an organic basis. However one can not discount the extent of the worker’s pain on her ability to function noting the October 2007 report from the Psychologist from Toronto Western Hospital. The worker was diagnosed with a pain disorder and further treatment was suggested but not offered. In my opinion it was quite clear the worker’s primary complaint was pain. Until she was better able to manage her pain this would constitute a significant barrier to her performing even modified work.

Even so, the worker did attempt to return to modified work offered by the employer and co-operated in a work hardening program up to July 2008 at which time her symptoms increased.

I have noted there were comments made about medication dependency. Even so, the worker did have a relatively high organic NEL award of 33 percent for which medication was required. In addition, even with the medication her pain level was poorly controlled. As such, I am unable to conclude the worker’s inability to work for the period in question was due solely to medication dependency. Although one might argue it was one factor, most certainly the worker’s response to pain related to her organic impairment which affected her lower left extremity along with her low back pain would be significant contributing factors as well.

As such, I accept that for the period in question the worker was unable to work due to the nature and seriousness of her impairment. Hence she would be entitled to full LOE benefits for the period August 6, 2008 up to but not including November 26, 2008.

With respect to the issue of full LOE benefits for the period November 26, 2008 up to but not including December 8, 2008 I noted the following.

The employer informed the WSIB as per memorandum number 144 dated December 9, 2008 that it had been contacted by the worker as she was willing to return to work. However, before doing so the employer asked her to obtain an updated medical report. The worker did have the report completed and dropped it off with the employer. The worker then re-contacted the employer on December 2, 2008 and a conversation ensued. It appeared there was a discrepancy between the worker’s understanding of the number of hours she could work and those determined by the WSIB along with her medical precautions. The worker was of the opinion she could work pre-accident hours where as the WSIB had previously indicated the worker required graduated hours in returning to work. With respect to medical precautions the worker was of the opinion she could not do any lifting.

The employer wanted a clarification from the worker’s doctor as to her medical status prior to returning her to work. The worker did return to work on December 8, 2008. In memorandum number 144 the employer was of the opinion the reason for the delay in the worker returning to work was because clarification of her medical status was required.

By way of a December 9, 2008 letter the worker confirmed that she had given the employer a medical report dated November 26, 2008 allowing for an immediate return to work. A copy of the November 26, 2008 medical report was provided and recorded the worker could perform part time work. Limitations and abilities were provided and related to the following.

• no limitation in walking or standing

• sitting, 30 minutes and then small break required

• no bending or twisting

• no lifting or carrying in excess of 10 pounds

• no climbing of stairs

• pushing and pulling of a trolley was restricted to no more than 36 pounds

A further report dated December 8, 2008 was provided with amended limitations and abilities.

• walking and standing with a cane

• sitting 30 minutes and then a break to stand

• no bending or twisting

• no lifting or carrying

• no climbing of stairs or ladders

• no pushing or pulling trolley

It also recorded the worker could work 20 hours per week.

In memorandum number 147 dated December 18, 2008 the employer indicated that when the worker contacted it about returning to work it could not return her to work immediately. Firstly, there was a need for medical reporting. Secondly, the worker would have to be slotted into the rotation which could take a minimum of one week. The employer informed the worker the earliest she could be slotted in was December 8, 2008.

Findings

In my interpretation of the evidence, I found the worker co-operated in ESRTW activities commencing November 26, 2008. She initiated contact with the employer and medical reporting from her doctor was provided. The worker also followed up with the employer on December 2, 2008 and although she appeared to have a difference of opinion with respect to the number of hours she could work and her inability to lift, her concerns did not impact on her December 8, 2008 return to work date. The reason being, the employer indicated in memorandum 147 that the earliest the worker could be slotted into the work schedule was December 8, 2008. The worker did return to work on that date.

Having found no evidence of non-co-operation on the part of the worker I found she was entitled to full LOE benefits for the period November 26, 2008 up to but not including December 8, 2008.

CONCLUSIONS

The worker’s objection is allowed in part.

Entitlement

1. Full LOE benefits for the period August 6, 2008 up to but not including November 26, 2008 on the basis she was unable to perform any type of work during this period.

2. Full LOE benefits for the period November 26, 2008 up to but not including December 8, 2008 on the basis she co-operated in early and safe return to work activities.

3. Full LOE benefits from March 2009 when she stopped working completely. Before any more attempts are made to return the worker to work she is to be seen at a WSIB Functional Restoration Program. Full LOE benefits are to continue to one of the following dates.

a. If considered a suitable candidate for the full treatment program then her LOE benefits are to be paid until the results of the discharge report are known. After that point ongoing LOE benefits are at the discretion of the Operations Section.

b. If not considered a suitable candidate for the program, at minimum, an assessment with a psychologist from the program needs to occur. Among other things reporting on the diagnosis and treatment recommendations would be required. In addition, an opinion as to whether the worker could perform modified work up to a maximum of 22.69 hours on a graduated hour’s basis without first undergoing the recommended treatment should be obtained.

It needs to be noted that the worker has been collecting Ontario Disability benefits since the time her WSIB benefits were discontinued in August 2008. I leave it to the discretion of the Operations Section as to whether the agency is to be reimbursed.

Entitlement Confirmed

1. The worker’s 33% NEL award in recognition of her degree of permanent organic impairment is confirmed.

No finding Made

Worker’s entitlement under the WSIB’s chronic pain disability policy. Before an entitlement decision can be made a referral to a WSIB Functional Restoration Program needs to be made.

After the initial intake assessment is completed and should the worker be a suitable candidate for the program she should participate in it. The assessments should include a review of the worker’s medication, the intake of the same and the efficacy of the medications prescribed. In addition, a diagnosis, prognosis, and comments on the worker’s ability to work need to be provided.

Once the discharge summary is obtained the Operations Section can reconsider its decision to deny entitlement under the WSIBs CPD policy noting I have accepted the worker has met the criterion relating to her pain complaints being inconsistent with the organic findings. The Operations Section would need to look at the other CPD criteria to determine whether entitlement was in order. With respect to the criterion relating to marked life disruption, the worker provided testimony which was recorded in this decision and could be used by the Operations Section. The reason being, I found the worker to be a credible witness as she answered questions put to her by her representative, the employer representative and myself in a straight forward manner. In addition, she neither evaded questions asked nor provided vague and/or embellished responses.

If after the initial assessment the worker was determined not to be a suitable candidate for the program, then at minimum an assessment by a psychologist at the program would need to be undertaken so that diagnoses in the DSM IV protocol including Axis V which related to the worker’s Global Assessment of Functioning could be provided. In addition, treatment recommendations which need to be implemented would be required. Also a comment would be required as to whether the worker would be able to perform any type of work while concurrently undergoing treatment.

I also noted the worker was seen by a psychiatrist in London in May 2009. I would suggest the pertinent information be obtained from the worker or her representative and a copy of the report obtained for record.

DATED December 17, 2009

Bob Howarth

Appeals Resolution Officer

Appeals Branch