WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100109
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: July 28, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUES
The issues in dispute are the denial of full loss of earnings (LOE) benefits and the denial of chronic pain disability (CPD).
HOW THE ISSUES ARISE
This claim was established on the basis of an Employer’s Report of Injury/Disease (Form 7) advising that on April 11, 2005 the 29 year old Production Worker sustained a right thumb injury when it was hyper extended while assembling speaker units. The initial diagnosis for treatment administered on April 11, 2005 was right thumb and hand muscle strain.
The worker continued with suitable work in the subsequent months. As per memo 4 of October 7, 2005, she and the employer did not return Progress Reports requested and the operating unit assumed that the worker had attained recovery and no further action was pursued.
Subsequently however contact was made with the Workplace Safety and Insurance Board (WSIB) by the worker in May 2007. A claim for ongoing benefits was instituted and ultimately accepted.
The worker was referred to the University Health Network for a Hand Clinic assessment and subsequently for a functional restoration program (FRP).
Additionally, the employer laid the worker off for lack of work in July 2007.
It was determined that the worker had a permanent impairment with the development of carpal tunnel syndrome (CTS) despite clinical support for the diagnosis. She was referred for a non-economic loss (NEL) assessment and a 14 per cent award was posted.
As the worker continued with a permanent impairment and was unable to return to her pre-injury assembly line work, labour market re-entry (LMR) services were instituted. The SEB of Customer Service NOC 1453 was accepted and the LMR plan was pursued.
As per the decision letter of January 8, 2010, it was determined that as of the completion of the LMR plan on January 9, 2010, the worker had the skills and abilities to pursue the SEB of Customer Service with an entry level wage of $9.75 per hour. Accordingly, the worker’s LOE benefits were adjusted to conform with the anticipated wage though the worker had not returned to work.
In a submission from her representative of January 13, 2010, it was claimed that the worker continued to be totally disabled.
The worker's representative had also requested entitlement to CPD. In reviewing the claim, the operating unit issued a decision letter dated December 14, 2009 advising that there was insufficient evidence in the claim file to accept entitlement to CPD.
The worker has objected to these decisions and the issues are before the Appeals Branch.
AUTHORITY
Operational Policy Manual (OPM) documents:
15-04-03 - Chronic Pain Disability
18-03-02 – Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
At the hearing, the worker provided testimony under oath. She stated that prior to her injury on April 2005 she had no health issues and specifically no issues with her right hand or thumb. She experienced a sudden onset of pain when she hyper extended her thumb at work and has had consistent disabling pain ever since in her submission. She confirmed that she continued with suitable work following her injury and was treated with physiotherapy and a cast or splint. She denies ever returning to her pre-injury employment. She became pregnant with her second child and took a year of maternity leave following the birth of her child in 2006. When she returned to work from her maternity leave, she confirmed that she was provided with her regular employment but after a day of this, the pain in her thumb returned and suitable work was reinstituted.
During her pregnancy, and maternity leave the worker testified that the symptoms in her hand persisted. As she was pregnant she was unable to take strong pain medication and was restricted to Advil. However, once maternity leave began she started taking Tylenol 3 and is now as of the date of the hearing on Celebrex with Effexor for depression.
She testified that she continued with suitable work to the day the employer laid her off for work shortage though she could not recall if she ever worked full-time at this.
When she commenced her LMR plan, she confirmed that she was able to participate to the required function but endorsed being in constant pain. She would go to school for three hours per day but some days her pain in her arm and shoulder were too high for her to participate and she would not attend. She endorsed having sharp burning pain on a constant basis.
She confirmed working at a co-operative job placement in the LMR plan working four hours per day but only as a Greeter. She stated that when the placement was over she was offered a job stocking shelves but this was withdrawn once it was realized that it was not suitable for her injury. She claims that she has not worked since though she has sought work by looking
door-to-door at a local plaza and on the internet. She confirmed that she had an interview at a women’s clothing store with a group of other candidates but received no call back. The worker states that she cannot work more than four hours per day as her pain and stiffness as well as weakness prevent her from focusing on anything for too long.
The worker testified that prior to her injury she had an active lifestyle with her husband who also had a work related injury and their first child. She and her husband would share the duties of house maintenance both externally and internally and she would drive and pursue social functions with their group of friends. This was generally house parties and dinner engagements and some vacation and camping trips.
She states that since the injury she is unable to do anything independently and attributes the assistance of her mother and brothers and sisters-in-law for her being able to maintain her house. Her mother lives in the same neighbourhood as she and her husband and is readily available to assist with most activities in the house. She states that her family is a big help to her.
With respect to the onset of her pain, she states that activities such as gripping, pinching and repetitive work increase her arm pain. She is right hand dominant and notes improvement in her forearm pain when she is able to rest her arm, apply heat or resting generally.
The worker's representative’s submissions draw attention to the chart notes supplied by the worker’s family physician. I have examined these and note that the worker attended her doctor regularly throughout the years both prior to and subsequent to her work related injury. This is evident from the stamp dates on the chart. However, the content of the chart notes is entirely illegible and is of little value in assessing the worker’s ongoing work related impairment. The FRP and the University Health Network Hand Clinic reports have been cited as providing evidence that the worker has developed a CPD as a result of her work related injury.
The February 29, 2008 Discharge Report offers the DSM IV diagnosis on the first axis of pain disorder with both psychological factors and a general medical condition as well as major depressive disorder, mild. It also notes that the worker has a Global Assessment of Function of 61 to 70 which in the worker's representative’s submission constitutes a significant impairment.
With respect to the worker’s entitlement to CPD the policy requires the decision-maker to assess the entitlement criteria of there being a work related injury; chronic pain as the result of the injury; persistent pain of six months beyond the usual healing time; a pain that is inconsistent with the organic findings and that the chronic pain impairs earnings capacity.
A work related injury has occurred and the medical record establishes that this injury to the worker’s right thumb and hand has caused persistent pain to date. The worker has been assessed for a NEL award for CTS. Despite physiotherapy and other conservative measure the worker’s pain complaint has persisted. The condition diagnosed by Dr. Freiberg in the WSIB Hand Specialty Program Clinic follow-up report of November 13, 2007 is that she had developed symptoms “suggestive of carpal tunnel syndrome.” This has been the basis upon which the NEL benefit was considered. Though no surgery to release the carpal tunnel has been pursued, it is accepted that the worker’s persistent pain has extended beyond the six month guideline for the persistence of pain beyond the usual healing time for the injury.
The return to work specialist at the Hand Clinic also noted that currently the worker was due to be laid off by the company and that she was reporting difficulties with the modified duties that she had been provided and had been unable to work more than six hours per day.
It is accepted therefore that the worker has had consistent and genuine pain for more than six months beyond the usual healing time for the condition.
The third criteria is that the degree of pain is inconsistent with the organic findings associated with the work related injury which in this case is CTS. At the FRP, the worker underwent clinical examination. The team physician and physiotherapist contributed to the findings that the worker appeared to be in no distress at the time of the examination, that there was no colour change or muscle atrophy in the hands, sensation for both superficial and pin prick of the upper forearms was intact. Reflexes of biceps, triceps and brachioradialis were symmetrical bilaterally and brisk to plus. Hand grip strength on the left was five out five and on the right was three over five. The worker’s sitting and standing postures were found to be unremarkable and she was observed to sit for approximately 15 minutes during the group interview without shifting. She was not wearing either of her splints and there was minimal edema noted in the area of the right thenar eminence and in the fingers. Range of motion of the left wrist and hand was within normal limits while the right wrist both flexion and extension were of 50 per cent of normal.
With respect to the worker’s non-organic symptoms, “Myotomal power was examined in the upper extremities and was considered normal for all muscles tested. Pain related weakness was present for testing the C8 and T1 myotomes. Aside from this, no non-organic signs were present.” This finding documented in the report of December 31, 2007 is significant with respect to the consistency of the worker’s pain complaint. However in the final diagnosis also provided by the FRP Discharge Report of February 29, 2008, pain disorder with both psychological factors and a general medical condition are cited on axis one. This would indicate a degree of pain somewhat greater than would be anticipated from the worker’s CTS. On the balance of probabilities therefore I would accept that the worker’s pain complaint is inconsistent with the organic findings.
Both the worker’s testimony and the activities of daily living assessment done at the FRP, evidence of a marked life disruption due to the work related injury is evident thus the worker’s earnings capacity is determined to be impaired as the result of the chronic pain diagnosed condition.
On the basis of all entitlement criteria having been met in my view, I accept that there is sufficient evidence on file that the worker has developed a chronic pain syndrome as a result of her work related injury.
The worker's representative submits that the worker is unable to work more than four hours per week despite his earlier submission that she was totally disabled. A review of the medical record however fails to establish that the worker is unable to pursue the SEB of Customer Service which involves little physical activity in the performance of the essential duties of such employment. The evidence shows that the worker was able to pursue LMR services to a successful conclusion. Her activities of daily living report does not establish an inability to work an eight hour shift despite her submissions that she is unable to focus due to pain. I found that the worker was able to participate in a one hour hearing without break or accommodation and the medical record offers no evidence to support the need for part-time employment.
CONCLUSION
The worker has entitlement to chronic pain disability (CPD). The existing non-economic loss (NEL) entitlement for carpal tunnel syndrome (CTS) will be revoked and she will be referred for a non-organic award assessment.
The worker’s loss of earnings (LOE) entitlement has been appropriately calculated subsequent to the closure of her labour market re-entry (LMR) plan.
The worker’s objection is allowed in part.
DATED August 5, 2010
(Mr.) B. J. Martlin
Appeals Resolution Officer
Appeals Branch
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