Worker v. Employer, 2010 CanLII 49219

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100089

OBJECTION BY: Worker

EMPLOYER: Participating

HEARING DATE: July 13, 2010

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

ISSUES:

At the pre-hearing discussion, the worker representative withdrew the following issues:

Entitlement for the additional areas of injury and psychological disability (to be pursued under chronic pain disability)
Entitlement to loss of earnings (LOE) benefits from August 22 to 29, 2008 and September 22, 2008 to October 20, 2008 (couple of weeks not paid for which pay stubs are required) to be pursued by the operating area.
The labour marker re-entry (LMR) plan (to be pursued later)
The Non-economic loss (NEL) for the organic impairment (to be pursued later)

The issues for this appeal are:

Entitlement to full instead of partial LOE benefits from April 26, 2009 to August 30, 2009
Chronic pain disability (CPD) entitlement

HOW THE ISSUES ARISE

On June 14, 2008, while employed as a general helper in the fine parts assembly, the worker injured her right hand/forearm due to her regular duties of wrapping wires. The initial diagnosis was carpal tunnel syndrome (CTS). She was able to continue working performing modified work.

The worker developed upper back, neck and right shoulder injuries, which she related to the modified job of filing and data entry that she did from June 2008 to August 22, 2008. She related her depression to her inability to work due to pain. It was unclear as to what exactly she was attributing her lower extremities and head injury to. She stopped working from April 21, 2009 due to her right shoulder, neck and upper back injuries.

In the decision dated June 11, 2009, entitlement for depression was denied on the grounds that there was no psychological assessment or diagnosis on file and there was no clear causality that it had resulted from the initial injury to the right hand/forearm. Entitlement for the lower extremities and head injuries was denied on the basis that there was no evidence of workplace injuries to these areas. The modified job was reviewed and it was noted that there was no reporting of an immediate accident and the job was not considered to be repetitive in nature. It was unclear how the worker could have injured her upper back, right shoulder and neck while performing non-repetitive duties with her left hand. Therefore, entitlement for the upper back, right shoulder and neck was denied as there was no compatibility between these injuries and the job duties performed, and there was no entitlement to full LOE benefits. The job was considered suitable and within the physical precautions for the right forearm injury.

In June 2009, the worker representative advised that the worker was let go because there was no suitable modified work available from August 22, 2008 to January 13, 2009 and from April 26, 2009. In the decision dated August 5, 2009, it was clarified that, the worker worked full time and was paid by the employer from August 22 to August 28, 2008, at which time she stopped working. Full LOE benefits were granted from August 29 to September 22, 2008, when she once again returned to modified work which she continued doing until October 20, 2008. The employer paid her for the hours worked and the Board paid her the balance. She received full LOE benefits from October 23, 2008 to January 13, 2009 as she was partially disabled and no modified work was available. She returned to modified work on January 13, 2009 (reduced hours).

Maximum medical recovery (MMR) was reached by February 20, 2009. In March 2009, it was agreed that a work hardening program would not be appropriate. The worker advised that her main problem was with her shoulder, neck and pain going into her head and depression. Her last day worked was April 24, 2009. She received partial and not full LOE benefits from April 26, 2009 on the basis that she had declined suitable temporary modified work that was in keeping with the restrictions for her compensable shoulder injury.

In April 2009, the worker was rated at 5% for the noneconomic loss (NEL) arising from the right CTS. The NEL quantum was confirmed in July 2009.

In June 2009, the worker was referred for labour market re-entry (LMR) program. The suitable employment or business (SEB) of NOC 144, clerical occupation personnel clerks, was identified. This was later changed to customer service in February 2010.

In the decision dated August 20, 2009, entitlement for CPD was denied on the grounds that the medical criteria had not been met. On October 6, 2009, the previous decisions were upheld.

In January 2010, it was noted that the worker was progressing in the functional restoration program (FRP). She had changed her perception and understood that her condition was chronic. She also realized that she needed to adjust her functioning to her limitations and she demonstrated to have a good insight and readiness to move to a phase of contemplating change. Therefore, it was expected that she should succeed in the LMR plan.

AUTHORITY

Operational policies: 15-04-03 Chronic Pain Disability 18-03-02 Reviewing LOE Benefits

ASSESSMENT OF THE EVIDENCE

The documentary evidence in the claim file record, the submissions made the representatives, the worker’s testimony and the relevant provisions of the legislation and Board policies were considered.

Submissions

The worker representative’s submissions included:

The modified work caused further problems that spread the pain to the other areas for which CPD is being claimed.
The medical evidence supported that the worker had CPD that was work related and the information in memo 66 supported marked life disruption. There were no co-existing or pre-existing factors and there was no dissenting opinion from the treating physicians regarding CPD.
The worker returned to work 3 times between June and December 2008. The modified work was not significantly different from the first one. There was no modified work available until September 22, 2008 (memo 12). The office work involved using both hands. The worker’s last day worked was October 22, 2008. In November 2008, there was no modified work (memo 19). The 3rd attempt to return to work was in March 2009 (memo 39). In April 2009, the employer confirmed that no permanent modified work was available.
The worker was totally disabled and needed a few more weeks to return to modified work. She was sent for LMR services on July 11, 2009 and no benefits were paid until August 2009.

The employer representative agreed with the case manager’s decisions. His submissions included:

Modified work continued to be available in April 2009 but the worker went off work on her own claiming total disability.
There was an organic explanation for the worker’s pain resulting from the permanent impairment and there are other areas that are not work related for which CPD is being sought.
The employer could not make a reasonable offer of employment because of the other non work related areas of injury.

The worker’s testimony (in part)

She returned for 4-5 hours on the same wire machine and did this until July 14, 2008, at which time, she switched to another machine. She did 2 to 2 ½ weeks of data entry using her left hand. She also did filing and photocopying. She stopped working on August 22, 2008.
Her neck pain began on July 14, 2008. It started at the base of her head, going up to her head and to her right eye and right side of her nose and chin. The pain gradually increased. It also went into her upper back. She had numbness in 3 fingers of her right hand going into her wrist, elbow and up to her shoulder and scapula. This probably happened in the 1st week of August 2008.
She returned to work on September 22, 2008 to the same filing job. She was also photocopying and making sets of documents (10-15 pages). She did this for a month. The employer told her not to come in as there was no work available for her.
She received chiropractic treatment and also saw her family physician from July to August 2008. The pain started going down her back around the end of February 2009. It was a stabbing pain going upwards on her right side. Later, the pain went into the back of her leg and into her toe. She got no relief from acupuncture treatment.
She went off work from October 22, 2008 to January 13, 2009. The employer had no modified work available for her. When she returned to work on January 13, 2009 to data entry, she also had to call associates regarding shift cancellation and she did filing. She was working 4 hours. On an increasing scale of 1 to 10, she rated her pain at the end of the day at 9. She would forget to get off the exit on the DVP. When making calls, she would forget why she was calling. She was referred to a psychiatrist. There was a 3 month waiting period. On April 26, 2009, her wrist pain was going up her entire arm, shoulder, base of her neck and up to her head and down the right side of her face (when flexing). She stopped taking the pain medication because it didn’t help her.
Treatment after April 2009 consisted of chiropractic care, 3 times a week, and 6 sessions in acupuncture while she was on modified work. She was taking Cymbalta up until last month when she stopped because she had no insurance coverage.
Her typical day consists of waking up between 8.30 and 9 am. She can take care of her personal hygiene on most days but she is unable to use the hair dryer. Her husband helps make breakfast (he was on evening shift and then on medical leave). She supervises her kids to get ready for school. On some days, she prepares breakfast and lunch for them. She has lunch at around 1.30 pm that her husband has prepared. She then rests for 2 hours. When the kids get home, she tells them what to do. She has dinner at about 7 pm that her husband has prepared. She tries to sleep between 9 or 10 pm. She can’t read or watch TV because of her pain. Her night sleep is disturbed.
Her husband does most of the household duties. She gets frustrated because she can’t do it and then gets angry with husband and kids.
She had pain from her elbows to her shoulders before but it was not continuous. While on modified work, particularly the filing job, her pain increased and started to go into other areas. The pain is at its worst at night. She can’t sleep on her right side. She wakes up 4 to 5 times. Cymbalta helps her sleep better. She can’t do homework if she is in school for more than 4 hours. She tries to do it early in the morning. She used to go to the temple on Sundays but now only attends when it is not crowded. She still gets headaches when she uses her hand. She sees the chiropractor monthly. She has gained weight and is trying to control it.
She walks for her therapy sessions as it is 1 block away. Her husband drives her for her medical appointments. She goes for walks 3 to 4 times a week. In 2009 and 2010 she was not able to help her children like before because she can’t concentrate.
Her doctor told her to use her right hand because she had pain in the left hand.
She started school in 2009. She was unable to increase her hours to 6 but managed 3 to 4 hours as there was too much writing and bending of her neck. She is still in school. The FRP was good but practically it was hard for her as she is a mother of 3.

Analysis and findings

CPD

The recognized entitlement in this claim is for a work related right hand/forearm injury. The worker maintains that, the modified work caused the pain from this area of injury to spread to other parts of her body. The worker representative has clarified that she is not seeking entitlement for these as separate areas but as CPD.

From June 14, 2008 to August 22, 2008, the worker performed modified duties of filing, data entry, and clerical work. The October 1, 2008 report from the WSIB hand and upper extremity speciality program stated that the worker reported that, during this period, she was provided with modified work of performing filing and data entry tasks with the use of her left hand only.

However, according to memo 7, the worker said she was looking up files and filing documents in individual files that were in cabinets and that she was using her right arm. She claimed that her upper back, right shoulder and neck were injured as a result.

The August 23, 2008 x-ray of the cervical spine showed no abnormality. The first mention of the right neck/shoulder was on the FAF dated August 22, 2008. The progress report of September 3, 2008 indicated subjective pain in the right shoulder, neck and upper back. The diagnosis was right cervical facet, right shoulder girdle dysfunction. The CT scan of the cervical spine taken on September 25, 2008 showed no findings. The MRI of the right shoulder done on November 25, 2008 indicated rotator cuff tendonitis. The MRI of the cervical spine done on November 25, 2008 showed C5/6 minimal right paracentral disc protrusion, C6/7 minimal right paracentral disc protrusion other minor degenerative changes, and a small Thornwaldt’s cyst.

The psychiatrist, Dr. Kakar, in his report of March 3, 2010, stated that he had treated her since November 24, 2009. In his opinion, she could only do 4 hours a day in the LMR program. He stated that the right shoulder was related to generalized chronic pain syndrome. The worker had pain localized in the neck, shoulders, lower back and arms and legs but in general was overwhelmed by her sensations and perceptions of pain. The Axis I diagnosis was severe major depression, chronic pain syndrome. She was to discontinue with Cipralex and start Cymbalta and would need ongoing cognitive and supportive psychotherapy. He opined that the worker has been suffering from severe major depression, severe panic disorder and chronic pain disorder as a result of her injury at work and she would definitely be left with a permanent mental psychiatric impairment as well as her physical injury.

Noting that the medical reporting on file provides physical findings and diagnoses for the neck and right shoulder, this implies physical injuries to these areas for which entitlement was denied under this claim and is not an issue in this appeal. The issue then is whether or not the injury to the right hand/forearm could have resulted in the CPD that the worker is experiencing.

The worker has a 5% NEL for the right hand/forearm. The Board medical consultant reviewed the file on August 17, 2009. He stated that, with respect to the only area of entitlement (right hand/forearm RSI and CTS), there was no evidence that the medical criteria for CPD had been met. In his view, there is an organic basis for the right CTS noting the results of the nerve conduction study.

While pain can spread to other areas, in this case, there is sufficient evidence of physical findings in the non-compensable areas of the neck and right shoulder that appear to be the factors contributing to the worker’s chronic pain. The MRI of the right shoulder done on November 25, 2008 indicated rotator cuff tendonitis. The MRI of the cervical spine done on November 25, 2008 showed C5/6 minimal right paracentral disc protusion, C6/7 minimal right paracentral disc protrusion other minor degenerative changes, and a small Thornwaldt’s cyst.

I have accepted the Board medical consultant’s opinion that the worker’s pain in the right had/forearm is in keeping with the 5% NEL findings. I also find that the worker has pain that more than likely is due to the non-work related areas of the neck and right shoulder. As all the 5 criteria for allowance of CPD have not been met, there is no basis to grant entitlement for CPD in this claim.

Entitlement to full instead of partial LOE benefits from April 26, 2009 to August 30, 2009

The worker representative argued that the worker should receive full benefits as modified work was not available for the above time period and that this was confirmed by the Board and employer.

From January 13, 2009 to April 21, 2009, the worker did modified work where she was part testing and conducting training tutorials. The worker claimed that she stopped working because of the shoulder, neck and upper back pain.

The employer maintained that modified work was in keeping with the medical precautions for the right hand/forearm was available and that the worker declined it stating she was totally disabled. The employer acknowledged that they were not able to provide modified work to suit the non-work related injuries.

The medical documentation on file supports that the worker reached MMR by February 20, 2009. The worker was rated at 5% for right CTS in April 2009 and the NEL quantum was confirmed in July 2009. In noting the duties of the modified job, I find them to be in keeping with the permanent medical precautions provided for the compensable right hand/forearm injury.

However, such modified work was available on a temporary basis. The file evidence is that, on March 2, 2009, the employer was contacted by phone with regard to permanent modified work and a possible referral to LMR was being considered. This was followed up on April 28, 2009 when the employer was advised in writing that the worker would require permanent suitable and sustainable duties within her compensable medical precautions. The employer was given extensions to review for permanent modified work on March 9 and 16, 2009. As there was no confirmation received from the employer, it was concluded that suitable permanent modified work was not available with the employer and the worker was referred for LMR services in June 2009.

Noting that suitable permanent modified work was not available, I am granting full LOE benefits from April 26, 2009 to the date the LMR program started less any benefits already paid to the worker.

CONCLUSION

The denial of entitlement for chronic pain disability is confirmed.
The LOE benefits are to be adjusted to full LOE benefits effective from April 26, 2009 to the date the LMR program started in August 2009 (less the benefits received).

The worker’s objection is granted in part.

DATED August 18, 2010

J. Pereira Appeals Resolution Officer Appeals Branch