WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110003
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative, Employer
HEARING DATE: N/A
ISSUES
This worker is claiming a permanent impairment for a right elbow injury dating back to a work injury occurring on February 24, 2003
HOW THE ISSUE ARISES
This worker slipped and fell fracturing her elbow on February 24, 2003. The employer, a chemical company, was able to accommodate the worker in alternate work for an extended period of time but sought WSIB assistance in 2006 to clarify her restrictions and whether they were permanent in nature.
Following review the operating area concluded in a decision dated August 22, 2006 that the current problems were not related to the work accident.
AUTHORITY
11 01 01 Adjudicative Process
15 04 03 Chronic Pain Disability
11 01 05 Determining Maximum Medical Recovery (MMR)
RESOLUTION METHOD AND PROCESS
The file was initially referred to the Appeals Branch subsequent to the August 22, 2006 decision denying a permanent impairment in the elbow in mid 2009. The then assigned Appeals Resolution Officer following review requested a full field investigation to obtain additional information. This request was made in December 2009 and the investigation was subsequently arranged. This was completed in February 2010 and the operating once again undertook a review of whether the worker had a permanent impairment flowing from the work accident in February 2003. In a decision dated September 3, 2010 the operating area confirmed their view that a permanent impairment was not present in the right elbow largely due to a lack of a confirmed diagnosis.
The file was then assigned to me as the previous Appeals Resolution Officer was not available. The workplace parties were contacted in early December and the file discussed. The worker representative agreed to proceeding based on the information on file. The employer after reviewing the file and our discussions advised by way of a phone call on February 3, 2011 that they would not be participating in the appeal but requested a copy of the resulting decision.
ASSESSMENT OF THE EVIDENCE
Following a review of the file documentation I am satisfied that the worker has not fully recovered from the work accident of February 2003 and has been left with residual symptoms that are permanent in nature.
The happening of the accident is not in dispute. This worker at the age of 40 slipped and fell on ice fracturing her right elbow. At the time she had been employed for a large chemical refinery as an operations technician. Her job involved monitoring the refinery gages and when needed opening and closing various valves. She had been doing this job since 2001.
There is some evidence of the worker having prior right elbow problems diagnosed as epicondilitis. However, this problem appears to have resolved with treatment and was not symptomatic at the time of the February 2003 fall according to the family doctor in his report of April 2010.
There is clear evidence that after the work injury the worker had ongoing complaints regarding her right elbow and wrist area. She was unable to return to her regular job and was placed on series of alternate jobs by the employer. The investigator interviewed two former co workers and two supervisors. The two co workers and one supervisor all confirmed the worker had no problems performing the job duties prior to her work accident and could not perform them after the work accident. The other supervisor suggested the worker was a bad hire to start with and had difficulties doing the job both before and after the work accident. I have noted that this supervisor was not the worker’s direct supervisor at the time of the accident. The direct supervisor, who the worker reported to both before and after the accident from 2001 to 2005, indicated the worker was a good employee with no performance issues and was able to do the job with no complaint until she had the elbow fracture.
The investigation also revealed that in mid 2006 the employer indicated they could not longer accommodate the elbow problems and the worker was placed on short term disability. The worker advised the investigator that she remained on disability benefits for two years and has since been terminated from the company. She obtained alternate work with a new employer at a significant wage loss on 2010. Part of the investigation package contained substantial medical records including repeated Functional Ability Evaluations (FAE). All of the FAE’s reported ongoing symptoms and the need for ongoing restrictions.
The problem with this case was identified quite early when the worker was seen at the Hand and Upper Extremity Clinic at the St Josephs Hospital in London in December 2004. Here the worker was assessed by Dr. R. Richards. He felt that there had been adequate healing of the elbow fracture, EMG testing had revealed bilateral carpal tunnel syndrome but that was not felt to be the cause of her pain which was described as being diffuse and “rather vague. Dr. Richards in his December 15, 2004 report states the following:
Other than her carpal tunnel syndrome there is no other specific diagnosis other than soft tissue pain. Because of the duration of that the pain has been there I honestly don’t think it will change in the future. At this point in time I told [the worker] this is now her level of maximum recovery and she would have to stay on permanent modified duties.
Some 6 years later, Dr Richards’s comments, I think, remain valid. The worker has not been able to get back to her previous duties. She remains symptomatic and the exact cause of her problem remains elusive.
The WSIB case manager subsequent to the requested field investigation and the family doctors’ native note of April 2010 asked one of the WSIB medical consultants to review the file. The question asked was succinct and to the point.
Is the worker’s right elbow pain causally connected to the rapture on the right radial head on February 24, 2003? (Memo 21 August 3 2010)
The medical consultant’s response in memo 22 is thorough, thoughtful and informative:
This MC [Medical Consultant] questions the presence of an identifiable cause for ongoing pain. It would appear that the pain the worker reports is not likely due to the pre DOA lateral epicondilitis, and it would appear that the cause for the current pain situation is not readily understood, nor readily indentified
The fracture was quite minor and the worker recovered and healed from a bony point of view quite quickly. Nonetheless she reports pain, and since this pain in not likely attributable to the pre DOA [Date of Accident] situation, then it may be possible that it could be related to the DOA, although how, is not clear.
I am in full agreement with the Medical Consultant. The current symptoms are not related to those present prior to February 23 2003. The current symptoms appear to be ongoing from the work accident. Dr. Richards identified in 2004 that they would be longstanding and permanent in nature.
The adjudicator in reviewing the above comment from the MC was unable to accept the relationship between the current symptoms and the 2003 work accident. As stated in memo 23 of the file record “in the absence of a diagnosis or cause I am unable to allow continued entitlement to benefits under this claim.” In doing so I believe the case manager was relining on the five point check system as outlined in the policy document Adjudicative Process 11 01 01.
It states that for an accident to be accepted there must be the following
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history. (emphasis added)
In the absence of a diagnosis the case manager was unable to make a compatibility ruling or have a degree of certainty that the current symptoms are related to the work insult that occurred to the right elbow in February 2003. I have sympathy for the case manager’s position however, in this case I believe the history of continuity since the work accident is so strong that it is reasonable to conclude that the current symptoms are related to the work accident. The medical consultant was of this view but admitted the exact causal relationship is difficult to establish. Dr. Richards was of this view as well suggesting the worker’s ongoing soft tissue pain was residual from the work accident and was unlikely to resolve. The family doctor who has treated the worker throughout the entire period in a letter dated April 6, 2010 confirmed ongoing symptoms stating “her elbow and forearm problems are the result of the radial head fracture / soft tissue injury that occurred at work.” On the balance there is no evidence to refute this view.
The absence of a diagnosis is a bit problematic. It is not however fatal to extending entitlement. Policy 15 04 03 Chronic Pain Disability states the following:
If pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder, or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy. (emphasis added)
In my view this workers pain complaints are best looked at under the chronic pain disability policy. The policy allows for entitlement to flow in cases where there is no clear organic cause for the pain and may be attributable to psychological sources or undetected organic sources. In this case despite extensive investigations there is no pathology in the elbow that can be a reasonable explanation for the elbow and forearm pain. I am satisfied the worker meets the threshold to be considered under the chronic pain disability guidelines.
It should be noted that the issue of non organic entitlement was not previously adjudicated by the operating area. The Appeals Branch Practice and Procedures allows Appeals Resolution Officers to add additional issues not previously ruled on by the operating area, if it is necessary to give proper justice to the appeal and with the concurrence of the parties. In this case, the possibility of adding CPD to the issue agenda was discussed with both the worker’s representative and the employer. The worker’ representative agreed to the inclusion of this issue. The employer after reviewing the objection and being aware that CPD would likely be added decided not to participate in the appeal and raised no objection to including CPD as part of the appeal.
As stated above, I am satisfied that the worker’s long history of pain is best adjudicated under the CPD policy it being established that the pain is not predominately from an identifiable organic cause. However, for chronic pain disability to be granted policy also requires that five separate criteria be satisfied. The first is evidence that a work injury occurred. The second is that the chronic pain is caused by the injury. The third is that recovery has become prolonged. The fourth is a requirement that the pain exceed the organic findings and finally the fifth criteria is that the pain results in an impaired earnings capacity usually manifested in a marked life disruption. All five criteria must be present for entitlement to be extended. Failure to establish one of the five criteria results in the failure of the application.
In this case, on review I am of the view that all five categories have been met. There is evidence of a work related injury, the happening of the February 24, 2003 work accident is not disputed. The chronic pain is caused by the injury. While there has been some debate regarding this issue I accept the view that the prior elbow complaints are not contributable to the current symptoms. I am in agreement with Dr. Richards that the worker s complaints of soft tissue pain stem for the work injury. There can be no doubt that recovery in this case has become prolonged. The fourth criteria is that the pain exceeds the organic findings. Essentially there are few if any organic findings that explain the presence of the pain. This fact is well established in my view. The final criteria is an impaired earnings capacity. The worker post accident was unable to return to her regular job. She was placed in alternate jobs and had an impaired earnings capacity as a result. She was eventually released from the employer and after a prolonged period of disability has more recently secured alternate work at a reduced wage. The impaired earnings capacity has been established. This category is also utilized to determine if a marked life disruption has occurred due to the degree of pain. There has been an occupational disruption as noted above. The family doctor in his April 2010 narrative report also speaks to the development of depressive symptoms that have required pharmaceutical treatment. On the balance, I accept a marked life disruption has occurred.
In summary then it is my finding that the worker has not fully recovered from the February 24, 2003 work accident. She has been left with residual symptomology that is permanent in nature and the cause of a disability. I accept Dr. Richard’s view and set the maximum medial recovery date as December 15, 2004. The permanent impairment is best recognized under the WSIB’s chronic pain disability policy for the reason articulated above. A Non Economic Loss assessment for chronic pain disability is directed. With ongoing entitlement now established issues concerning the payment of loss of earnings benefits are deferred to the operating area for determination.
CONCLUSION
Chronic Pain disability entitlement is granted.
A permanent impairment is present and a Non Economic Loss assessment is directed.
The operating area is to consider the issue of loss of earnings benefits from mid 2006 forward.
The worker’s objection is granted.
DATED February 17, 2011
R. P. Horne
Appeals Resolution Officer
Appeals Branch