Worker v. Employer, 2010 CanLII 50287

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Number: 20100099 Objection By: Worker Employer: Not Participating Representatives: Worker Representative

Issues

1As indicated in the case manager’s decision of February 10, 2010, the worker's representative has requested that the increase of the permanent disability award from 20 per cent have arrears dating back to August 19, 1993 and not September 2003.

2As indicated the case manager’s decision of February 10, 2010, the arrears up to 25 per cent are retroactive to 2007 and the worker representative believes the retroactive date should be August 16, 1994.

These arrears dates are before the appeals resolution officer (ARO) on the grounds that the Workplace Safety and Insurance Appeals Tribunal (WSIAT) indicated the worker was entitled to a reassessment of his residual disability in his low back that resulted from the compensable accident of November 6, 1985 in a decision dated April 12, 2001. That would mean that the arrears dates would also be appealable with respect to any increase in the permanent disability award. That decision by WSIAT was a result of the worker appealing an ARO decision of February 4, 1999 that confirmed the worker’s 15 per cent pension award granted to him January 6, 1993 adequately represented the residual degree of impairment in the low back.

3The worker has objected to the denial of chronic pain disability (CPD). A letter from the WSIB Case Manager dated March 9, 2010 indicates that a previous case manager rendered a decision December 3, 2008 indicating the worker met the time limit to appeal the issue of CPD. The letter of December 3, 2008 indicated that CPD was denied in a decision November 9, 1993.

4Entitlement to psychotraumatic disability was denied in a decision dated April 29, 2009 and this issue has been referred to the Appeals Branch as noted in the case manager decision of February 10, 2010.

How the Issues Arose

This claim was established November 5, 1985. At that time the worker was trying to stop a casting from slipping off the bench and sustained a lumbar strain. X-rays demonstrated degenerative changes at the L4-5 region. The worker had conservative treatment and several subsequent recurrences.

The worker was assessed for a permanent disability award November 21, 1989 and he was granted a 10 per cent award. He was reassessed on January 6, 1993 and the award was increased to 15 per cent. The worker was reassessed April 2, 1996 and the 15 per cent was confirmed.

The quantum of that award was confirmed in an ARO decision dated February 4, 1999 which the worker objected to. The case was subsequently heard at the WSIAT. The WSIAT decision indicated that the worker’s back condition had deteriorated and the worker was entitled to a reassessment of the permanent disability award level.

A reassessment took place July 19, 2001. As noted in memorandum 101 the 15 per cent award was upheld. The comment made by the medical consultant at the time was that the worker complained of aches and pains all over his body and there was a question as to whether or not the worker had a “modicum” of fibromyalgia.

This case was subsequently reviewed by a medical consultant June 5, 2008 as noted in memorandum 112. The medical consultant indicated the worker had been slowly worsening over many years and had been followed by Dr. Aubin since 1992. Surgery had taken place and it was determined the surgery was in order.

Another permanent disability award assessment took place in May 2009. As indicated in memorandum 123, arrears were increased to 20 per cent three months prior to the report from Dr. Aubin’s assessment of December 1, 2004. Arrears for an increase to 25 per cent were recommended three months prior to an MRI report of December 6, 2007. The worker's representative has suggested that the 20 per cent arrears should date back to August 19, 1993 and the 25 per cent arrears should date back to August 16, 1994.

Chronic pain disability (CPD) has been denied in this claim as it has been accepted that the worker’s symptomatology with respect to the back is compatible with the organic injury. Psychotraumatic disability has been denied as there has been no psychiatric diagnosis compatible with the criteria established by the WSIB after the accident or the surgical procedure.

Authority

Issue 1 and Issue 2

Permanent disability award arrears are assessed in accordance to Operational Policy Manual (OPM) document 18-07-05, which states the following in part:

If a permanent disability award is increased after reassessment, the increase dates from:

• three months prior to the date of the request, or
• an earlier date if supported by clinical evidence.

Issue 3

Chronic pain is assessed in accordance to Operational Policy Manual (OPM) document 15-04-03.

Issue 4

Psychotraumatic disability is assessed in accordance to Operational Policy Manual (OPM) document 15-04-02.

Resolution Method and Process

Several submissions have been provided to this claim and the ARO has been directed to proceed with a decision.

Assessment of the Evidence and Submissions

Issue 1 and Issue 2

The arrears dates for the worker’s pension increase are a significantly complicated issue and the pension level has been an issue in dispute for years. A WSIAT decision of April 12, 2001 indicated the worker was entitled to a reassessment of the residual disability in the low back that resulted from the compensable accident of November 6, 1985 as the decision-maker was satisfied the worker’s condition had deteriorated. At the time, the worker had a 15 per cent permanent disability award. The worker underwent an assessment July 19, 2001 and the 15 per cent award was upheld. The assessor found no objective evidence to warrant changing the 15 per cent level of the award.

Essentially, the permanent disability award was not increased until the assessment of May 20, 2009. That assessment accepted that a report from Dr. Aubin dated December 6, 2004 (from the office visit of December 1, 2004) demonstrated deterioration and the 20 per cent arrears were therefore taken back to three months prior to the report of December 1, 2004.

In assessing the evidence in this claim, it is clear that the typical tests used regarding range of motion for assessing level of impairment vary throughout different testing dates. When this worker was assessed for a permanent disability award July 19, 2001, straight leg raising in the sitting position was 60 degrees bilaterally. The report from Dr. Aubin dated December 6, 2004 (from the office visit of December 1, 2004) indicated that straight leg raising was limited to 45 degrees. That report did however state reflexes, power and sensation were normal in the lower limbs and the worker had a negative bowstring sign behind both knees. During the test December 1, 2004, flexing and extension were similar to what was noted at the time of the July 19, 2001 assessment.

The basis for taking arrears back to the report from Dr. Aubin in 2004 appears related to the limited straight leg raising tests. Interestingly enough, the straight leg raising test May 20, 2009 was 70 degrees bilaterally while seated and 60 degrees bilaterally in the supine positions.

This claim is one in which a worker sustained a lumbar strain superimposed on degenerative changes and as the worker aged the degenerative changes increased which decreased the worker’s level of functioning and capabilities. Once degenerative changes involve the components of a disc, continuation of back pain and quite often the instability resulting from the degenerative changes can be related to the degenerative changes themselves having no relationship to any particular trauma. As such, this ARO would have a great deal of difficulty in altering any arrears dates that have been established in this claim by the medical consultants who physically assessed the worker and established arrears dates based on medical conclusions. This ARO does not find objective evidence of increased impairment related to the basis for which the claim was established prior to the increases that have been granted as outlined by the pension medical consultant in memorandum 123.

Issue 3

Entitlement to chronic pain disability (CPD) is adjudicated according to specific criteria established by the WSIB. It is important to recognize the difference between a person’s perception of pain symptomatology which is subjective and presented as constant or chronic, and CPD syndrome. In many cases, “chronic pain” is used to describe a person’s objective perception of pain, however that does not mean the symptomatology fits into the criteria established by the WSIB.

The WSIB has five categories which must all be included in the worker’s circumstances to be entitled to CPD benefits. The criteria are as follows:

1. A work injury must have occurred.
2. The chronic pain must be caused by the injury.
3. The pain must persist for six or more months beyond the usual healing time.
4. The degree of pain must be inconsistent with organic findings. [5] The chronic pain must impair the earning capacity.

The WSIB accepts “chronic pain syndrome” as a term used to describe the condition of a person whose pain has resulted in marked life disruption. If a worker meets the first four criteria of evaluating the existence of the WSIB’s definition of chronic pain disability (CPD), marked life disruption inquiries including a psycho-social assessment can be conducted.

The evidence must, however, demonstrate the worker’s pain symptoms cannot be explained by organic findings and the pain must be documented by the medical evidence as constant, unremitting and continuous regardless of treatment.

In this particular case, this worker had a 15 per cent permanent disability award quantum through to 2003 when the award was increased to 20 per cent. The issue of chronic pain disorder was reviewed in memorandum 70 dated November 2, 1993. The medical advisor at the time indicated that the worker’s pain was explained by the organic findings and the 15 per cent permanent disability award. The quantum of that award did not change for another 10 years and when the award did change, it was changed based on an increase in organic impairment. As such, the worker does not meet the WSIB criteria for CPD.

Issue 4

The WSIB has very specific policy directives for psychotraumatic disability entitlement. Essentially, the WSIB looks for a severe traumatic accident from a psychological or physical standpoint. The WSIB also looks at whether or not a worker has undergone significant and invasive treatment which could result in a psychological response.

This worker does not meet the WSIB criteria for entitlement to psychotraumatic disability benefits. Although the worker has had a prolonged impairment, there are no diagnostic findings compatible with the criteria established by the WSIB for psychotraumatic disability.

Conclusion

Issue 1 and Issue 2

The arrears dates in this claim are upheld as described in memorandum 123. Arrears for an increase to 20 per cent are three months prior to Dr. Aubin’s assessment of December 1, 2004 and arrears for an increase to 25 per cent are accepted as three months prior to the MRI report of December 6, 2007.

Issue 3

There is no entitlement to chronic pain disability (CPD).

Issue 4

The worker does not meet the WSIB criteria for psychotraumatic disability benefits.

The worker’s objections are therefore denied.