WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFER DECISION
DECISION number: 20150003
DECISION DATE: March 6, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer Estate
REPRESENTED by: Did not respond
HEARING: Hearing in Writing
HEARD by: M. St-Hilaire, Appeals Resolution Officer
ISSUE(S)
- The worker objects to the denial of entitlement to Chronic Pain Disability (CPD)
BACKGROUND
On July 2, 2007, this worker sustained an acute lumbar strain while lifting an 85 lb weight at work. Treatment consisted of chiropractic treatments approximately 3 times a week. Prognosis for recovery was positive and effective January 5, 2008 he was deemed recovered with no permanent impairment.
A recurrence was accepted on February 20, 2008 due to a gastro-intestinal bleed related to the nonsteroidal anti-inflammatory drug (NSAID). Following a Regional Evaluation Centre (REC) assessment in May 2009 and a Functional Restoration Program (FRP) it was determined the objective findings did not support an ongoing impairment. The loss of earnings (LOE) benefits were terminated as outlined in the letter dated December 3, 2009.
The worker’s representative requested entitlement to CPD in the letter dated January 7, 2014. As outlined in the case manager’s decision dated July 18, 2014 and reconsideration letter dated October 16, 2014, entitlement to CPD was denied.
AUTHORITY
Operational Policy #15-04-02, Chronic Pain Disability
ANALYSIS
Operational Policy# 15-04-02 states, in part,
“The WSIB will accept entitlement for chronic pain disability (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:
A work-related injury occurred.
Chronic pain is caused by the injury.
The pain persists 6 or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with organic findings.
The chronic pain impairs earnings capacity.”
When considering entitlement to chronic pain disability, it must be established that the chronic pain is directly related to the organic injury. There must be evidence of continuous, consistent and genuine complaints of pain since the time of the injury. The pain and complaints of pain must persist from the injury date to the present and the persistence in location of pain must remain constant.
In reviewing this claim, I do not find that chronic pain disability developed as a result of the compensable low back strain of July 2, 2007.
The worker suffers from an overall non-compensable degenerative condition to the lower back. The objective medical documentation in the MRI of September 27, 2011 showed he had a left paracentral disc protrusion at L4-L5 levels. The treating physician stated it was likely to be irritating, and could compress the traversing left L5 nerve root. The x-ray report dated
August 11, 2011 showed early right sacro-iliitis.
The worker also has symptomatic conditions of right shoulder tendinosis and a thoracic spine strain, as well as deep vein thrombosis. These are also considered non-compensable.
The worker’s low back strain resolved without a permanent impairment. The x-rays of February 26, 2008 and the CT scan of June 24, 2008 were normal. The REC report of November 2, 2007 had indicated the lower extremity neurology and straight leg raise were normal on examination. These findings support the lack of neurological findings in 2007 and would appear to confirm that the disc protrusion, evident in 2011, was related to the degenerative condition.
These conditions are organic in nature and are non-compensable. The worker has ongoing pain and chronic pain related to the above conditions.
I noted the worker’s representative’s argument that the WSIB had accepted a temporary aggravation of the worker’s degenerative condition in Memo #29, accepting Dr. Malcolm’s view outlined in the REC report. Therefore, the representative felt it was not necessary for the degenerative condition to be caused by the accident, only that the accident rendered the condition symptomatic for a period of time.
However, in reviewing memo #29, I did not infer that entitlement of a temporary aggravation of the degenerative condition had been accepted. The memo indicated:
“In review of the REC report submitted by Dr. B. Malcolm, it is my determination that the worker’s condition had not resolved as expected. His current low back symptomology and related pain is in keeping with his original injury of July 2, 2007. “
Dr. Malcolm’s REC report dated May 12, 2009 stated:
“(the worker) presents having had a lumbar strain with an ongoing mechanical back dominant pain pattern. Despite the passage of time, and conservative treatment, he continues to be disabled by his pain experience. A great deal of time was spent with him to date in reassuring him that in the presence of a normal MRI scan, there is no structural imperative to impose any specific medical restrictions on him. He was also told that in approximately 70% of patients, a specific pathoanatomic source for mechanical back symptoms is not identifiable.
Based on this evaluation and the functional/tolerance limitations associated with (the worker’s) pain, we recommend further treatment.”
The treatment recommended was a referral to the Functional Restoration program or an equivalent for assessment of his chronic pain and its management. The medical/work restrictions recommendation was that in the presence of a normal MRI scan, they did not impose any specific medical restrictions on the worker.
Therefore, I do not find that the evidence showed a temporary aggravation of the degenerative condition. I also do not find that Memo #29 accepted a temporary aggravation of the degenerative condition.
The worker had symptoms related to the lumbar strain. The compensable condition did resolve without a permanent impairment. The ongoing symptomology is related to the non-compensable conditions.
As such, I am not satisfied that the chronic pain is directly related to the compensable organic injury. The evidence does not support continuous, consistent and genuine complaints of pain since the time of the injury noting the non-compensable symptomatic conditions which cause the worker pain symptoms. The pain and the complaints of pain have not persisted in location of pain and have not remained constant.
CONCLUSION
Entitlement to Chronic Pain Disability is denied.
The worker’s objection is denied.
DATED March 6, 2015
M.St-Hilaire
M.St-Hilaire
Appeals Resolution Officer
Appeals Services Division