Worker v. Participating Employer, 2010 CanLII 52789

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Without a Hearing – 60 Day Option

Decision Number: 20100107

Objection By: Worker

Employer: Participating

Representatives: Worker

Issues

The worker objected to the denial of entitlement to:

• Chronic pain disability (CPD);
• The neck;
• Full loss of earnings (LOE) benefits from June 11, 2009 on the basis he was unemployable.

How the Issues Arise

The worker was employed as a painter and by December 6, 2001 developed a gradual onset of pain in both elbows related to his job duties.

The claim was allowed for bilateral epicondylitis and 10 per cent non-economic loss (NEL) benefit was granted in November 2006.

With his permanent restrictions, he was unable to return to his pre-injury job. He was referred for labour market re-entry (LMR) services and the accepted suitable employment or business (SEB) was Customer Service Clerk.

He stopped participating in the LMR retraining program as of June 11, 2009 for medical reasons that the case manager determined were non-work-related.

As such, he was not entitled to further full LOE benefits from June 11, 2009. The LOE benefit was adjusted to partial LOE from June 11, 2009 based on the projected earnings in the accepted SEB.

The worker objected on the basis that he was competitively unemployable and requested entitlement to further full LOE benefits from June 11, 2009.

There was no entitlement for fibromyalgia under the CPD policy as there was a lack of subjective or objective medical or non-medical evidence of continuous, consistent and genuine pain since the time of the injury.

There was no entitlement for the neck as this was not considered to be related to the accepted injury in this case.

Authority References

Operational Policy Documents:

• 18-03-02 – Payment of LOE Benefits;
• 15-04-03 – CPD;
• 15-05-01 – Resulting from Work-Related Disability.

Review of Evidence

The initial medical report of August 28, 2001 from the chiropractor stated the history was of neck and elbow pain. The worker had right sided neck pain radiating to the right scapula and right elbow. There was right C4-5-6 vertebral dysfunction with nerve root irritation.

The diagnosis was cervicogenic elbow pain. It was noted the cervical spine x-rays showed degenerative disc disease (DDD) of the cervical spine.

X-ray of the cervical spine on November 26, 2001 showed very tiny anterior osteophytes through C4-5-6 reflecting a minor degree of disc degeneration. There was an osteophyte bar indenting the anterior spinal canal wall at C6-7.

The regional evaluation centre (REC) report of March 7, 2002 stated the worker complained of some neck pain with neck flexion, but not extension. The final diagnosis was bilateral elbow epicondylitis. There was no diagnosis for the neck.

The orthopaedic specialist’s report of July 26, 2002 stated physical examination of the shoulders and neck was satisfactory.

X-ray of the cervical spine on March 30, 2005 showed moderately severe changes of cervical spondylosis from C4 to C7 levels. Moderate arthritic changes were noted in the apophyseal joints.

The report of April 26, 2005 noted the worker claimed he had a neck problem on and off. The worker had a van accident in May 2003 and this seemed to aggravate the neck. With the physiotherapy, it improved in seven months but again was still a problem.

The report stated that in the past three to four months the worker experienced dizziness and light headedness. He was also seeing double. This seemed to be on and off. In the past couple of months, he had different symptoms, more pain deep in the eyes on both sides. The pain was referred to the neck and back area.

MR of the cervical spine on June 14, 2005 showed mild to moderate degenerative disc disease (DDD) mid and lower cervical spine.

The report of June 12, 2008 from the rheumatologist noted the worker had pain in the neck and low back. On examination cervical spine rotation was reduced to 45 degrees.

The opinion was that the worker presented with new onset fibromyalgia. There was associated depression, but no other chronic pain features.

The shoulder and elbow Specialty Clinic Report of August 26, 2008 stated clinical examination showed a number of pain behaviours. The worker demonstrated limited mobility in his cervical spine.

The Functional Restoration Program (FRP) initial assessment report of October 28, 2008 stated the diagnostic impression was pain disorder with associated Psychological Factors and General Medical Condition – Chronic.

In his activities of daily living he reported he lived with his wife and daughter and required assistance from his wife for all of his personal care tasks including feeding. His wife and daughter completed all home making tasks. His participation in social and leisure occupations was limited to visiting with friends with his wife on occasion.

During the functional portion of the examination, the worker reported having pain all over with both limitations in strength and motion. He was not able to demonstrate lifting or carrying capacities as he was not able to lift a cup from the table or open the door.

Active range of motion of the cervical spine was reported to be limited due to central neck pain. Flexion was minimal and extension to 50 per cent of normal range. Lateral flexion was to left then to 25 per cent bilaterally, causing contra lateral pain. Rotation was to minimal bilaterally.

Non-organic testing was also completed as part of the clinical examination. Non-organic signs (Waddell tests) are positive when an individual reports increased pain when none is mechanically produced. The worker tested positive on the following Waddell tests: regional sign of giving way, overreaction and tenderness signs.

The family physician’s note of June 6, 2009 stated the worker was affected with low back pain and dizziness. He was not able to attend school at that time.

The rheumatologist’s report of July 20, 2009 stated the worker was seen in follow up regarding fibromyalgia. His fibromyalgia was still active. The rheumatologist did not think that the fibromyalgia was related to his WSIB injury to the elbow.

Assessment of the Evidence

1. Neck:

The medical evidence on file showed that the worker had DDD of the cervical spine. It appears that this underlying condition was the cause of the worker’s neck pain, noting there was no specific diagnosis for the complaints of neck pain.

In addition, there was a non-work-related motor vehicle accident (MVA) that was noted to have aggravated the neck pain.

There was no evidence to establish that any neck complaints were compatible with the worker’s job duties as a painter.

Therefore there is no entitlement for the neck.

2. CPD:

The worker claimed entitlement for fibromyalgia. Workers diagnosed with fibromyalgia syndrome will be considered for compensation benefits under the CPD policy. The WSIB will accept entitlement for CPD when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability.

For a worker to qualify for compensation for CPD, the following conditions must exist, and must be supported by all of the indicated evidence:

1. A work-related injury occurred:

The evidence for this is that a claim for compensation for an injury has been submitted and accepted.

This condition was met as the claim was allowed.

2. Chronic pain is caused by the injury:

This requires subjective or objective medical or non-medical evidence of the worker’s continuous, consistent and genuine pain since the time of the injury, and a medical opinion that the characteristics of the worker’s pain (except its persistence and/or its severity) are compatible with the worker’s injury, and are such that the physician concludes that the pain resulted from the injury.

In this case, the medical evidence on file established that there were signs of giving way and over reaction on examination, casting doubt on the genuineness of the worker’s complaints of pain.

Therefore this condition was not met.

3. The pain persists six or more months beyond the usual healing time of the injury.

The evidence for this is a medical opinion of the usual healing time of the injury, the worker’s pre-accident health status, and the treatment received, and subjective or objective medical or non-medical evidence of the worker’s continuous, consistent and genuine pain for six or more months beyond the usual healing time for the injury.

The worker’s complaints of pain did persist for six or more months beyond the usual healing time of the injury and therefore this condition was met.

4. The degree of pain is inconsistent with organic findings:

The evidence is a medical opinion which indicates the inconsistency.

The worker had a NEL benefit for the organic impairment of the elbows. Therefore the pain was consistent with the organic findings.

The worker’s complaints of pain in other areas were not related to the work-related injury. This condition was not met.

5. The chronic pain impairs earnings capacity:

The evidence for this is subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent marked-life disruption.

There was evidence of marked-life disruption related to multiple factors and complaints of pain in many areas not covered in this claim, not solely from the work injury. Therefore this condition was not met.

In addition, the opinion of the rheumatologist was that the fibromyalgia was not related to the injury to the elbows.

Therefore, as not all the criteria were met, there is no entitlement for CPD.

3. LOE benefits from June 11, 2009:

The medical evidence on file regarding the accepted bilateral elbow injury indicated the worker could participate in the labour market re-entry (LMR) program. The medical note that authorized him to stop participating outlined non-work-related factors of low back pain and dizziness that kept him from continuing the program.

Therefore the worker is not entitled to full LOE benefits from June 11, 2009.

Conclusion

Based on the evidence on file and for the reasons outlined, there is no entitlement for CPD, the neck, or full LOE benefits from June 11, 2009.

The worker’s objection is denied.

Dated: August 26, 2010.

(Ms.) V. Escobar Appeals Resolution Officer Appeals Branch

/884510/ab

Enclosure