WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150044
DECISION DATE: May 29, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Not Participating)
HEARING: Hearing in Writing
HEARD by: L. Mansueti, Appeals Resolution Officer
ISSUES
The worker objects to:
The decisions dated December 4, 2014 and February 20, 2015 denying entitlement for complex regional pain syndrome (CRPS)
The decision dated March 4, 2015 communicating the worker was non-cooperative in her Work Transition (WT) plan
The closure of WT services per the decision letter dated March 10, 2015, and the loss of earnings (LOE) benefit adjustment per the non-cooperation penalty implementation as communicated in the March 16, 2015 decision letter
BACKGROUND
On or about July 30, 2010 the worker developed discomfort in her right elbow which she attributed to using a new package drop machine at work. The worker was 48 years of age at the time of injury, working as a Reliability Laboratory Technician. She had worked with the employer for approximately 9 years. The worker is right hand dominant.
Entitlement was accepted for right lateral epicondylitis. The worker continued working post-accident; therefore, entitlement was approved for health care benefits only. The worker was permanently laid-off from work on August 2, 2011 due to company downsizing. The operating area determined the worker was not entitled to LOE benefits.
In May 2012 the worker received a 3% non-economic loss (NEL) award for her right elbow permanent impairment.
The worker requested entitlement to benefits for chronic pain disability (CPD) or psychotraumatic disability. In August 2013 the operating area determined entitlement was not in order for CPD or for a psychotraumatic disability.
An Appeals Resolution Officer (ARO) decision dated April 29, 2014 determined:
Entitlement to benefits for CPD and for psychotraumatic disability was denied
The NEL quantum was confirmed at 3%
The worker’s permanent restrictions were determined to have prevented her from performing her pre-injury regular job duties; therefore, the worker was entitled to a WT assessment to determine a suitable occupation (SO) for the worker to pursue as well as a SO she could have pursued without training
The worker’s entitlement to LOE benefits subsequent to August 2, 2011 were directed to be based on the projected earnings she would have received in the identified SO without training
The level and duration of benefits was left to the discretion of the operating area.
The operating area determined the worker was entitled to retroactive partial LOE benefits from November 23, 2011 based on the earnings for the identified SO of Cashier. Full LOE benefits were reinstated effective April 29, 2014, the date of the ARO decision.
The worker was referred for WT services. She commenced a WT plan for the SO of Cashier. By January 2015 it was noted the worker was experiencing difficulties with depression, which was noted to be barrier in the successful completion of the WT program. Psychological counselling was offered to the worker even though she did not have entitlement for a psychotraumatic disability.
The operating area determined the worker was not entitled to benefits for CRPS as communicated in the decision letter dated December 4, 2014. This decision was reconsidered and upheld per the February 20, 2015 reconsideration letter.
It was noted the worker was not attending school on a regular basis. A co-operation warning letter was issued on March 4, 2015. The worker withdrew from WT services on March 10, 2015. The decision letter dated March 16, 2015 communicated the worker’s reduction in LOE benefits per her non-cooperation in WT services.
The worker, through her representative, objected to the denial of benefits for CRPS, the WT non-cooperation decision, and the adjustment of LOE benefits, and these are now before the Appeals Services Division.
AUTHORITY
Section 13, 42 and 43 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policies:
15-05-01 Resulting From Work-Related Disability/Impairment
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
19-03-03 Determining Suitable Occupation
19-03-05 Work Transition Plans
22-01-03 Workers’ Co-operation Obligations
Support Documents:
Quisel, A. et al. (2005). Complex regional pain syndrome underdiagnosed. The Journal of Family Practice.
Weinberg, A. (2010). Complex Regional Pain Syndrome (RSD – Reflex Sympathetic Dystrophy). Workplace Safety and Insurance Appeals Tribunal (WSIAT) Medical Discussion Paper.
ANALYSIS
I have reviewed and considered the information contained in the record in accordance with the above noted legislation, operational policies, and support documents.
The worker representative submitted the following arguments as per the submission dated April 13, 2015:
Reflex Sympathetic Dystrophy (RSD) is considered Type 1 CRPS, and the evidence supports the worker developed RSD/CRPS
CRPS was initially denied as per a WSIB Medical Consultant (MC) opinion dated March 31, 2014 as it was determined it did not meet all the criteria for entitlement
New information was submitted in January 2015; however, entitlement remained denied following a review from another WSIB MC
Mention of article referenced by the MC titled ‘Complex regional pain syndrome under diagnosed’ by Dr. A. Quisel et al.
The worker was deemed uncooperative for behaviour that was directly related to her medical conditions
The medical evidence supports the worker was unable to participate in WT
The worker struggled with pain from the compensable condition (RSD/CRPS) and her emotional response of depression, inability to focus, and inability to cope with stressors was a direct outcome of RSD/CRPS
1. Complex Regional Pain Syndrome
In September 2010 the worker was diagnosed with right lateral epicondylitis, which was the accepted diagnosis in this case. The worker was recommended to continue working within restrictions for no bending, twisting, gripping, pinching, pushing, or pulling with the right arm. The worker participated in a course of physiotherapy.
A right elbow ultrasonography was completed on January 19, 2011. The findings were consistent with right common extensor tendinosis/epicondylitis.
Dr. G. assessed the worker on February 21, 2011. The worker was noted to be fitted with an epicondylar strap, which she reported was beneficial. She cited a 40-50% improvement overall. Upon examination Dr. G noted the worker had no pain focused behaviour, no atrophy, no synovitis, and no rashes. The worker demonstrated good range of motion (ROM) with no evidence of any shoulder, neck referred symptomology. She underwent electrophysiological studies which yielded normal results. There was no evidence of any radiculopathy or neuropathy.
Dr. R assessed the worker at the WSIB Upper Limb Specialty Clinic on February 23, 2011. The report indicated the worker demonstrated full ROM of her right elbow and right wrist. The worker tested positive per lateral epicondylitis load test, and negative for medial epicondylitis load test. Dr. R surmised the worker’s findings were consistent with lateral epicondylitis of her right elbow.
The worker was also assessed by a return to work (RTW) Co-ordinator at the WSIB Upper Limb Specialty Clinic. The report indicated the worker was performing modified computer-based duties. The RTW Co-ordinator indicated the modified work appeared to be appropriate as the worker had the ability to alternate tasks and stretch as needed. It was also noted the worker was provided with an ergonomic mouse, a wrist pad, and good arm supports.
The worker continued to follow-up with Dr. R. On May 27, 2011 Dr. R assessed the worker and noted her symptoms had not changed. The worker underwent a magnetic resonance imaging (MRI) scan on May 4, 2011 of her right elbow which showed a very small elbow joint effusion, but no other abnormality. The RTW Co-ordinator provided an update on May 27, 2011 which indicated the worker reported she was doing well with the modified duties at work.
Dr. R assessed the worker on August 3, 2011. The report indicated the worker’s symptoms had worsened since her May 2011 visit. She reported discomfort at rest and an increase in discomfort with any right hand use. Dr. R also indicated the worker was recently terminated.
Dr. K assessed the worker on August 9, 2011. The worker expressed frustration with her current disability as well as frustration with the termination of her employment, citing the employer was responsible for her injury. She expressed concerns about her future and about her ability to return to the workforce. In addition to right lateral epicondylitis, Dr. K surmised the worker also had tennis elbow. Dr. K advised against the worker proceeding with surgery given her low mood. The worker was advised to seek psychological counselling.
On August 31, 2011 the worker was reassessed by Dr. R who indicated her symptoms were worse than she was last seen a few weeks ago. Dr. R indicated the worker had a permanent partial disability and would not be able to return to repetitive-type work. The worker was determined to have reached maximum medical recovery (MMR) for her right lateral epicondylitis. She later received a 3% NEL award in recognition of her permanent impairment.
On November 24, 2011 the worker was assessed by Dr. D. B. R. It was noted the worker was tearful throughout the assessment, and she expressed anger toward the employer. The worker demonstrated full ROM of her right elbow and wrist with pain. The worker had a weak right grip and was over the right scalene muscle with elicited tingling into her fourth and fifth fingers. The findings were consistent with right elbow epicondylitis. The worker’s emotional response was noted to be affecting her injury.
Dr. G reassessed the worker on June 20, 2012. The worker reported an increase in pain from November 2011, referring into her right trapezius, periscapular region, shoulder, arm, and into the forearm and hand diffusely. Dr. G diagnosed the worker with CRPS of myofascial origin. It was also noted the worker had secondary mood dysfunction. The worker was recommended to continue to use the elbow sleeve.
Dr. E, Clinical Psychologist, submitted a report to the record dated September 20, 2012. The report indicated the worker began experiencing strong pain and discomfort in November 2011. She endorsed experiencing right elbow pain which spread from her elbow to her fingers and from her elbow to the shoulder, neck, and head. The worker explained she had difficulties with self-care activities, particularly with brushing her teeth and washing her hair. She reported poor sleep, lack of appetite and reduced attention/concentration. Dr. E surmised the worker was unable to return to any type of work at the time of assessment. She was diagnosed with major depressive disorder and a pain disorder.
Dr. D. B. R reassessed the worker on July 23, 2013. The worker went on to develop more intense pain which was of a burning nature, and cut in the entire right upper extremity, neck, and the left upper extremity to a lesser degree. The worker reported her right arm felt weak, tended to swell, and turned colour. She reported difficulty with raising her right arm and tended to hold it in the sling position. Dr. D. B. R noted the right upper extremity was darker and appeared swollen. The right shoulder was noted to be elevated. Dr. D. B. R indicated the worker developed a severe right cervicobrachial syndrome with associated depression. It was thought she may have CRPS. The worker was recommended to undergo further physiotherapy treatment and psychological counselling. Dr. D. B. R saw the worker on September 10, 2013 and stated the worker developed secondary cervical brachial pain as there was evidence of a myofascial disorder with trigger points at the right trapezius, scalene, and pectoral muscles. The cervical brachial syndrome was thought to be related to the CRPS.
The ARO decision dated April 29, 2014 confirmed the worker did not have entitlement for CPD or for a psychotraumatic disability. The decision indicated there was no determination with respect to CRPS/RSD as the operating area had not made a decision with respect to the specific diagnosis.
As per the WSIAT medical discussion paper prepared by Dr. A. Weinberg, CRPS – Type 1 is a chronic limb pain that is accompanied by distinct physical features including swelling, abnormal sweating, variations in temperature as well as structural changes to the skin and even the bones of the affected limb. CRPS (1) typically occurs as a consequence of limb trauma but also be seen “without obvious cause.” The origin of the condition is not known. “Injury resulting in immobilization of the limb appears to be a common initiator but thereafter the mechanisms of injury are unclear.” The clinical diagnostic criteria for CRPS were noted to be as follows:
Continuing pain, which is disproportionate to any inciting event
Must report at least one symptom in three of the four categories: sensory, vasomotor, sudomotor/edema, motor/trophic
Must display at least one sign at time of evaluation in two or more of the following categories: sensory, vasomotor, sudomotor/edema, motor/trophic
There are no other diagnosis that better explain the signs and symptoms
A WSIB MC reviewed the record with respect to CRPS on March 31, 2014. The MC surmised the worker did not meet the diagnostic criteria of CRPS citing the fourth criterion was not met as Dr. D. B. R’s report dated July 23, 2013 offered an alternative possible diagnosis of severe right cervicobrachial syndrome with associated depression. It appears the basis for the denial of entitlement for CRPS was in keeping with the fact the clinical diagnosis for CRPS was not confirmed per the diagnostic criteria. The MC further indicated the mechanism and etiology of CRPS is not well understood, citing it was conceivable that the condition could arise from a repetitive strain injury (RSI) diagnosed in this case, but it could also be conceivable that it arose as a new, secondary condition, related to the original condition and parallel to the mood disorder.
Dr. D. B. R provided a chart note dated January 16, 2015 providing additional information with respect to CRPS. Dr. D. B. R submitted the worker’s initial injury was tennis elbow, a fairly minor injury. Over time the pain spread to her entire right upper extremity and neck, as well as the left upper extremity. The right hand and forearm were observed to be reddened and more swollen than the left. Her left forearm was noted to have twice as much hair as the right. Her fingers on the right hand were noted to be much cooler than the left. ROM testing was very painful. Her right hand grip strength was very weak and slight weakness was observed of the wrist and elbow. “She meets the criteria for complex regional pain syndrome in the right upper extremity in my opinion.”
The medical evidence in the record appears to support the diagnosis for CRPS; however, the question to be determined is whether CRPS is causally linked to the work-related injury, for which benefits would be considered as a secondary condition.
A subsequent WSIB MC opinion was sought per Dr. D. B. R’s January 2015 clinical note. The MC reviewed the record on February 10, 2015. The MC agreed the worker met the criteria for CRPS citing the previous alternate diagnosis of cervicobrachial syndrome cannot account for the signs and symptoms noted. The MC referenced Dr. A. Quisel’s article whereby it was noted the onset of CRPS would had to have developed within 9 weeks of the original injury in order to establish a causal relationship. Dr. Quisel indicated:
Studies have shown that 9 weeks post-injury, persons with persistent pain, tenderness, swelling, joint stiffness (fingers and wrist), and sweating or temperature changes in the injured limb may have CRPS type 1…. In a prospective case series (n=109), no new cases of CRPS type 1 developed beyond 9 weeks.
The MC indicated the workplace injury occurred in July 2010 and the first mention of CRPS was not until 2012, and the criteria for diagnosis were not satisfied until January 2015. The MC opined the worker’s CRPS was not compatible with the mechanism of injury, nor was it thought to be compatible as a secondary diagnosis arising from the lateral epicondylitis. “Considering the onset of CRPS was not temporally related to the onset of lateral epicondylitis or the mechanism of injury, I cannot causally relate the CRPS to the claim in any way.”
There are two MC opinions on the record with slightly different perspectives on the matter. While one MC focused the review on the lack of eligibility criteria for CRPS, the other MC agreed the criteria for CRPS had been met following receipt of Dr. D. B. R’s January 2015 clinical note; however, the condition was thought to be non-compensable.
The worker representative disagreed with the second MC’s emphasis on a 9-week timeline, referencing the WSIAT medical discussion paper whereby it was noted “the development of RSD/CRPS is variable.” The worker representative also took issue with the case series referenced in Dr. Quisel’s article, citing the use of case series is suggestive of a weak study design. She further submitted the fact the worker’s CRPS developed following a gradual onset type of injury, the timeline and mechanism of injury would be different than that of the research participants with fractures and strokes per Dr. Quisel’s research article.
While I agree with the worker representative that there is no confirmation of a “9 week rule,” I accept the second MC raised an important issue with regard to establishing a temporal relationship between the work accident and her subsequent CRPS symptoms. On or about July 2010 the worker developed right lateral epicondylitis that was determined to be work-related as a gradual-onset type injury. Following the work accident the worker continued working, demonstrated good ROM and did not exhibit signs or symptoms of radiculopathy. The worker continued to function in this manner for over a year. It was not until June 2012 that CRPS was offered as a diagnosis, nearly two years post-accident.
In my view, had the work accident been the initiating event for the development of CRPS, it would be expected signs and symptoms of CRPS would have reasonably emerged within a few weeks or months of the work accident. Although there is no specific date of injury given the gradual onset of the compensable condition, as pointed out by the worker representative, the evidence supports the condition emerged on or about July 30, 2010. Given the significant delay between the work accident date and the subsequent CRPS symptoms, I am unable to determine the CRPS developed as a secondary condition arising from the compensable right lateral epicondylitis; therefore entitlement to benefits is not in order.
2. Co-operation in WT Services
Following the ARO decision dated April 29, 2014 the worker was referred for WT services. A WT Specialist met with the worker on June 3, 2014 for an initial interview. The worker was noted to be emotional and tearful during the interview. She indicated she was experiencing side effects from her pain medication, and reported she was suffering from insomnia and sleep deprivation. The worker indicated she would work if she could, but she had a hard time envisioning what that would look like.
The worker attended a psycho-vocational assessment on June 26, 2014. Several barriers to employment success were noted, including: chronic pain symptoms, significant psychiatric/psychological issues, literacy issues, potential medication side-effects and self-reported driving limitations and computer skills. It was noted the worker might benefit from psychiatric/psychological counselling to assess her current pharmacological and mental health treatment needs as well as a period of supportive counselling or cognitive behavioural therapy (CBT) to address her low mood, irritability, anxiety, stress, feelings of distress, adjustment, perception of disability, and pain management. The worker was recommended to participate in literacy training to improve her spelling and sentence comprehension skills.
The SO selected for the worker was Cashier. The WT plan consisted of English as a Second Language (ESL) training, academic upgrading, job search training, and employment placement services. The worker signed the WT plan on December 4, 2014.
The worker commenced an ESL training program at The Literacy Group. The progress reports indicated the worker was participating in conversations in class and she had learned some new vocabulary. It was noted the worker was unable to participate in any writing exercises as per her right hand limitations, which was noted to be a significant obstacle in developing her language proficiency. The progress report dated January 5, 2015 indicated the worker enjoyed the conversations and interactions with her classmates; however, she was of the opinion that it would be better for her to stay at home.
In January 2015 it was noted the worker was attending class approximately 2 hours per day instead of 4 hours per day, per the WT plan. The worker reported she missed time from class due to pain and difficulties with panic. The operating area approved supportive counselling sessions for the worker in an effort to assist her in the successful completion of the WT plan.
Dr. S, the worker’s treating psychiatrist, submitted a report dated January 26, 2015 indicating the worker was feeling stressed out and unable to attend school due to tiredness and pain.
Dr. S stated “I would expect her to continue the school attendance at least one to two hours for now.”
The progress report dated February 3, 2015 indicated the worker was not adhering to the graduated attendance plan. She was noted to be attending The Literacy Group for one hour per day, two to three days per week. The report indicated the worker was unable to complete homework due to pain and an inability to concentrate. The worker informed her poor attendance was due to lack of sleep, severe cold weather, anxiety, depression and pain symptoms. It was noted the worker had not yet commenced the approved psychological sessions approved by WSIB.
The worker’s graduated schedule was amended per Dr. S’s report. The worker was to attend class 2 hours per day for 4 weeks, and gradually increase to 3 hours per day for 2 weeks, and continue with a one-hour increase on a biweekly basis.
It was noted the worker did not make any progress with improving her attendance. It was also noted the worker reported a worsening of her mood and psychological symptoms. The worker had a negative experience with an instructor at The Literacy Group on February 17, 2015. The worker indicated she did not feel comfortable attending the program citing she felt betrayed, bullied and psychologically abused by school staff.
Dr. S submitted a report dated March 5, 2015 indicating the worker was not fit to attend school.
The worker commenced psychological treatment on March 9, 2015 with Dr. C, Clinical Psychologist. The worker presented as extremely depressed. Her depressive symptoms included difficulty concentrating, paying attending, and maintaining focus. She reported her sleep was significantly impaired and experienced irritability and fatigue. The worker reported she experienced a great deal of stress with attending ESL classes.
The operating area determined the worker was non-cooperative in her WT program, per the letter dated March 4, 2015. I accept the argument presented by the worker representative, whereby to be considered non-co-operative “one would need to wilfully refuse to behave or perform in a manner in which he/she truly could.” The evidence in the record supports the worker made efforts to participate in the WT program to the best of her ability; unfortunately she was unable to meet the expectations of the program due to non-compensable health factors. As such, a finding of non-co-operation is not applicable in this case.
3. Closure of WT Services & LOE Benefit Adjustment
The worker withdrew from participation in the WT plan on March 10, 2015.
Operational policy 15-06-08 states, in part:
Worker’s inability to work due to the work-related injury/disease and non-work-related change in circumstance
Where the worker is temporarily totally disabled/fully impaired because of both the work-related injury/disease and the non-work-related change in circumstance, the decision-maker pays full benefits until the level of the work-related impairment is clinically determined. At that time, ongoing benefits are paid commensurate with the degree of remaining work-related impairment. If the work-related impairment is clinically determined to be partial, but the worker is still not able to work, then a suitable occupation (SO) would be identified and LOE benefits paid based on the earnings of the SO.
I accept the worker’s work-related impairment rendered her partially impaired and capable of working in the determined SO. The evidence supports the worker’s inability to participate in WT services was largely due to pain due to RSD/CRPS, sleep difficulties, and emotional difficulties which are all outside the scope of this claim. Given her work-related impairment is considered to be partial, an LOE benefit adjustment is required based on SO earnings.
The record indicated entry-level SO wages were $11.00 per hour, 40 hours per week. I accept the worker’s LOE benefit adjustment post-WT closure remains in order.
CONCLUSION
I conclude:
There is no entitlement to benefits for complex regional pain syndrome (CRPS).
A finding of non-cooperation is not applicable with respect to the worker’s participation in the Work Transition (WT) program.
The worker’s loss of earnings (LOE) benefit adjustment following the closure of the WT plan remains in order.
The worker’s objection is allowed in part.
DATED May 29, 2015
L. Mansueti
Appeals Resolution Officer
Appeals Services Division