WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100057
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: May 19, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUES
The worker is currently in receipt of a 25 per cent chronic pain disability non-economic loss (NEL) award that the Workplace Safety and Insurance Board (WSIB) has stated includes entitlement for fibromyalgia. This award was granted after the worker had previously been given a 22 per cent organic award. It is the position of the worker’s representative that the 25 per cent quantum for chronic pain disability does not adequately reflect the worker’s impairment in terms of global assessment for residual physical impairment with the fibromyalgia. The 25 per cent chronic pain disability award has been upheld as outlined in decisions dated September 28, 2009 and December 16, 2009.
Loss of earnings benefits have been denied from November 14, 2006 onwards on the grounds that suitable work is available with the employer. This position has been documented in letters from the WSIB September 24, 2008 and October 6, 2009.
It is the position of the worker’s representative that suitable work was not available with the employer and it is the worker’s position that she is not able to continue working in any capacity.
HOW THE ISSUES ARISE
This worker was employed in the production area with the employer commencing April 1999. This claim was established in January 2004. Initially, the worker experienced pain in the left arm from the forearm to shoulder related to repetitive duties as a lead hand in the bending department. The worker did remain with the employer trying to perform her regular work and modified work. In April 2005, the worker claimed swelling in both hands and was off work from April 21, 2005 to May 5, 2005. The worker subsequently returned to work May 9, 2005. This work consisted of inspecting skids for two hours per day and this was supported by a physiotherapist. The worker was unable to continue and left work May 16, 2005.
The worker was seen at a shoulder/elbow clinic July 19, 2005. It was thought the worker would require permanent job restrictions with no repetitive usage of either arm, no heavy lifting and no above shoulder height level work with either arm. This is all documented in Memorandum 32.
A return to work advisor did recommend a functional abilities evaluation as well as a job site analysis for a return to work plan. One of the concerns by the worker’s representative is that the worker was never assessed by way of a functional abilities evaluation or a functional restoration program.
As mentioned in Memo 53, entitlement was extended in the claim to include bilateral shoulders as well as the bilateral elbows.
Correspondence in the claim from October 11, 2006 indicates the worker was granted a 22 percent NEL award for residual physical symptoms in the elbows and shoulders. Correspondence from September 28, 2009 indicates that the previous 22 per cent award for the organic condition was inactivated and replaced with a chronic pain disability award of 25 per cent.
The worker’s representative has argued that there were several attempts of this worker trying to return to work with the employer; however, none of these were successful in terms of her remaining at work full‑time and in fact, suitable work has not been offered. It is the position of the worker and her representative that the last job the worker tried to return to was still not suitable. The work is outlined in Memorandum 75 in a return to work mediation agreement. Basically, the worker’s program required her to wipe tables, count knives, change toilet paper in the women’s washrooms, wipe counters in the washrooms, train in sharpening knives and train in the operation of photocopying.
Correspondence from the employer dated January 10, 2007 indicated that following assessment of the job in December 2006, further recommendations were made to accommodate the worker in which there should be pumps for jugs of eyewash fluid and liquid soap as well as a step stool available. It is noted the worker was on vacation in 2006 and when she returned for part of one shift on November 14, 2006, she did not perform the duties that required the above-stated recommendations and the worker was subsequently signed off work by her physician.
The worker maintains that the jobs were not suitable as they would have required repetitive use of her arms including using the pumps.
The Appeals Resolution Officer notes that this case was reviewed by a WSIB medical consultant in Memorandum 98A. The medical consultant stated that although chronic pain disability had been allowed, there was no change to the permanent precautions for the shoulders and no evidence that the worker was totally impaired.
The worker’s representative has argued that there have been additional restrictions as outlined in correspondence from specialist Dr. Galvin dated April 16, 2007 in which Dr. Galvin provided the following restrictions:
- avoidance of any repetitive upper extremity use, including reaching, lifting, pushing, pulling, carrying, holding;
- avoid any overhead activities and work should limit lifting to less than 10 pounds.
Dr. Galvin had noted the worker had several ergonomic assessments but she was unsure if the worker ever had a functional abilities evaluation which could further facilitate the worker’s ability to function in her position as a factory worker at the employer.
The issues before the Appeals Resolution Officer remain those of the quantum of the chronic pain disability award and the suitability of employment offered by the employer in conjunction with the worker’s ability to be in the workforce.
AUTHORITY
Assessing permanent impairment due to mental and behavioural disorders is assessed in accordance to Operational Policy Document 18-05-11.
The goal of early and safe return to work and the roles of the parties is assessed in accordance to Operational Policy Document 19-02-02. This policy includes the definition of suitable work.
EXHIBITS
Exhibit 1:
The worker’s representative submitted three Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions for the appeals resolution officer to review.
ASSESSMENT OF THE EVIDENCE
Issue 1:
Originally this worker was granted a NEL award for residual physical impairment. During assessment on June 24, 2005 at the shoulder and elbow specialty clinic, the worker complained of bilateral shoulder pain and bilateral elbow pain. On examination, there did not appear to be any evidence of pain magnification. Examination of the shoulders indicated there was full painless range of movement of the right shoulder with a very slight positive impingement test at full flexion. Examination of the left shoulder revealed minor crepitus. There was only slight restriction in flexion and abduction in the left shoulder versus the right. Internal and external rotation were equal bilaterally and there was some evidence of positive impingement test on the left.
Examination of the elbows demonstrated the major symptomatology on left side with tenderness along the lateral epicondyle. Examination of the right elbow revealed less findings. Upper extremity neurological testing was normal. X-rays of the elbows were normal. X-rays of the shoulders demonstrated some evidence of rotator cuff changes. Job restrictions were based on findings and it was stated that the worker’s symptoms were compatible with the stated conditions as well as the worker’s age. It was not thought that the worker would get back to her repetitive type of work environment. It was suggested the worker have job restrictions for prolonged repetitive usage of either arm, heavy lifting or activities above shoulder height level with either arm.
Technically, these were not severe or significant findings and no surgical process has ever been warranted.
It is reasonable that the award was eventually changed to a chronic pain disability award as the worker’s description of pain symptoms exceeds physical findings.
The worker was assessed in an orthotic clinic by Dr. Galvin April 16, 2007. Once again, there were limited findings with respect to an actual physical impairment. The worker did however have 18 out of 18 tender points for fibromyalgia. The worker was limited by pain through the elbows, wrists and hands; however, the worker had normal tone, sensory testing as well as reflex and motor testing. The worker had good range of movement through the upper extremity.
Essentially, the worker was presenting with a history of diffuse myofascial pain and symptoms suggestive of fibromyalgia in addition to some chronic shoulder and upper extremity repetitive strain injuries. It is noted the claim was originally allowed for repetitive strain injuries; however, the physical examinations have revealed limited findings with respect to true physical residual symptoms including a lack of swelling.
This specialist recommended extensive restrictions and these appear related to the worker’s evidence of non-physiological behavior and the need to avoid pain symptomatology. That being said, the only real finding in this case under the chronic pain disability policy has been that of fibromyalgia and that particular condition is rated under the chronic pain disability schedule.
The worker was assessed for the chronic pain disability award April 30, 2009. The report indicated there was no depression but more frustration to general ache. Her sleep was disturbed, however her appetite was fine. The worker felt upset at the fact she had to depend on her husband for a lot of help. In activities of daily living, the worker indicated she needed some help with clothes and could not use her hair dryer. She indicated she was not able to lift and her memory was not as good as before. The worker felt that her reading was affected by poor concentration and she described her mood as frustrated and sad. There was some fear of the pain getting worse. In stress, the worker would withdraw and cry. The worker indicated she was not as social as before and did not participate in several of her hobbies. The worker’s speech and thought process was normal and assessment demonstrated appropriate emotional responses. The worker was free of psychotic symptoms and according to testing, her cognitive functions were within normal limits. The diagnosis was chronic pain disorder in the shoulders and elbows.
The worker has been granted a 25 per cent award which falls into the Class 3 moderate impairment.
This impairment is described in Operational Policy Document 18-05-11 and this classification describes symptoms as follows:
There is a degree of impairment of complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress.
In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.
This class 3 moderate impairment allows for awards from 20 to 45 per cent.
In reviewing this worker’s case, the Appeals Resolution Officer is satisfied that the 25 per cent award accurately reflects this worker’s residual impairment under the chronic pain disability policy. The physical findings for residual impairment in the elbows and shoulders is limited and it was more appropriate to rate this worker under the chronic pain disability policy. However, the worker clearly does not demonstrate the symptoms in any of the corresponding categories for a high end award. As such, the Appeals Resolution Officer is satisfied that this worker has been appropriately assessed for the residual impairment of a chronic pain disorder in the shoulders and elbows with fibromyalgia.
Issue 2:
While it is true there has not been a functional abilities evaluation in this case, several doctors have provided job restrictions. It is often difficult to perform a functional abilities evaluation in chronic pain cases as pain prohibits many of the functioning activities. That being said, the quantum of this worker’s award does not mandate restrictions that make the worker unemployable.
While it is reasonable to avoid repetitive upper extremity use, the term repetitive has to be defined. Obviously, the worker would not be functional in a labour-intensive position; however, jobs that allow the worker to change positions and take breaks while using the arms would not be unreasonable. There are simply not enough physical findings to suggest that this worker cannot use her arms in the workplace or that the use of her arms in rotating functions would cause further injury.
While it has been suggested the worker avoid overhead activities, it is not reasonable to suggest the worker cannot do any overhead activities at all based on the actual residual findings in this case.
The employer has made several attempts to accommodate this worker. Although the worker’s representative has indicated all attempts have failed, these have failed based on the worker’s participation and perception of ability to perform the jobs. Even in the worker’s testimony, she indicated that when she returned to work in 2006 to the job which was essentially described in Memorandum 75, she did very little work and took a number of breaks. Although the worker stated she couldn’t work due to pain, the employer obviously was accommodating the need for breaks and continued to agree to several accommodations as noted in the correspondence from the employer dated January 10, 2007.
At the hearing, the worker indicated that one of her jobs would be to change paper towel rolls and this would have required overhead work. Clearly, this would be an occasional task and the findings are simply not sufficient enough to indicate this would be detrimental to the worker.
In reviewing the actual quantum of this worker’s award in all the reports from the specialists, including the specialist that assessed the actual physical findings and the specialist that assessed the worker’s pain symptoms, the Appeals Resolution Officer is satisfied that this worker would have been able to maintain employment in a modified capacity with the accident employer. As such, loss of earnings benefits have been appropriately denied.
CONCLUSION
The Appeals Resolution Officer concludes that the 25 per cent chronic pain disability award is appropriate.
The Appeals Resolution Officer is satisfied that the employer has agreed to accommodate this worker with jobs that would not be detrimental to her. For this reason, the work with the accident employer in a modified capacity is considered suitable and further loss of earnings benefits are denied.
The worker’s objection is therefore denied.
Dated: May 28, 2010
M. Elliot
Appeals Resolution Officer
Appeals Branch