WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150073
DECISION DATE:
June 29, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT: REPRESENTED by:
Employer Employer Representative
HEARING:
Hearing in Writing
HEARD by:
S. Bennett, Appeals Resolution Officer
ISSUE(S)
The worker is requesting entitlement for:
- Chronic Pain Disability (CPD) benefits.
BACKGROUND
The history and nature of this case are well documented in the decision of the Workplace Safety and Insurance Board (WSIB) Appeals Resolution Officer (ARO) dated June 14, 2007 as well as the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision of October 6, 2010, and will therefore not be repeated at this time.
This now 55 year old worker was awarded entitlement to bilateral carpal tunnel syndrome (CTS) as a result of the repetitive nature of her pre-injury employment. The date of accident used to establish this claim was July 31, 2003. The worker is in receipt of a 17% organic non-economic loss (NEL) award for the bilateral CTS.
Case Manager’s Decisions
On July 2, 2014, the Case Manager (CM) denied entitlement to CPD benefits. The CM determined that the worker did not meet all of the criteria for allowance under the CPD benefit policy, and hence CPD benefits were denied.
On May 12, 2015, the CM reconsidered the decision to allow entitlement to CPD benefits, based on a submission by the worker representative. The CM upheld the denial of entitlement to CPD indicating that the worker is suffering from multiple non-work related conditions which would explain her complaints of pain.
The Worker’s Position
The worker is objecting to the CM decisions dated July 2, 2014 and May 12, 2015. The worker representative (WR) argues that the worker’s fibromyalgia and chronic pain syndrome were caused directly by complications from her bilateral CTS surgeries, directly related to the workplace bilateral CTS injuries.
AUTHORITY
The following Operational Policies apply:
11-01-03 - Merits and Justice
15-04-03 - Chronic Pain Disability (CPD)
ANALYSIS
In arriving at a decision in this claim, I have had regard for the record, the applicable law and policy as well as the interested parties' view on the issue.
In considering a worker's entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
WSIB Policy 15-04-03 regarding CPD 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:
Condition
Evidence
A work-related injury occurred.
A claim for compensation for an injury has been submitted and accepted.
Chronic pain is caused by the injury.
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.
The pain persists 6 or more months beyond the usual healing time of the injury.
Medical opinion of the usual healing time of the injury, the worker's pre-accident health status, and the treatments received, AND subjective or objective medical or non-medical evidence of the worker's continuous, consistent and genuine pain for 6 or more months beyond the usual healing time for the injury.
The degree of pain is inconsistent with organic findings.
Medical opinion which indicates the inconsistency.
The chronic pain impairs earning capacity.
Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption.
Workers diagnosed with fibromyalgia syndrome will be considered for compensation benefits under the CPD policy.
When I assess all of the pertinent information in the claim file, I find that the worker is entitled to CPD benefits. In reaching this conclusion, I had regard for all of the available information; however, found the following details particularly relevant:
- The worker had surgery for right CTS in December 2003. She had surgery for left CTS in March 2004.
- Dr. G., in a consultation report dated November 29, 2004, confirmed that the worker had bilateral CTS with surgical releases performed but continues to complain of pain for quite some time
- The psychovocational assessment report dated December 15, 2004 noted (page 4), “when asked about her hobbies, [the worker] indicated that she used to play baseball when she was in school. She now has no hobbies, owing to her bi-lateral arm injuries. She reported that she has no computer skills.” It was indicated that the worker tried to return to modified duties on a few occasions and finally ended her job on November 11, 2004.
- On page 13 of the above referenced report it was recorded that the worker stated, “that pain interferes in a moderate to severe way on her day to day activities, including her social life, but to a significant degree on her ability to work…is barely managing her pain.”
- Dr. B. in this assessment report of December 15, 2004 (page 15) opined that, “she is barely managing her pain…at this time.”
- The Labour Market Reentry (LMR) progress report of August 10, 2005 documented (page 3) that the worker reports, “continued pain associated with her compensable condition.”
- The Academic report of September 6, 2005 stated, “due to stated arm soreness, all of [the worker’s] programs continue to be modified.”
- The LMR progress report of October 5, 2005 notes that the worker, “stated that her physician has prescribed her Percocet for pain.”
- The Academic report of November 2, 2005 affirms that, “due to stated arm soreness, all of [the worker’s] programs continue to be modified.”
- The LMR progress report of November 7, 2005 reports (page 2), “that her wrists have become more sore of late…”
- Many subsequent LMR reports confirm ongoing and continued complaints of pain to the hands
- In the LMR academic progress report of December 23, 2005 it is indicated that, “due to stated hand pain, [the worker’s] instructor recently began scribing writing assignments and sentence exercises to greatly reduce the amount of writing required.”
- The LMR progress report of January 12, 2006 stated that the worker, “is experiencing pain associated with her compensable condition.”
- On page 2 of the LMR progress report of February 13, 2006 it was noted that the worker reported continued pain and burning to both arms. The doctor is unable to determine the cause of her increased pain in recent months.
- Dr. S., rheumatologist, in a report dated March 23, 2006 confirmed that the issue of fibromyalgia goes back to about 2003, following her compensable injury and bilateral CTS release surgeries
- In the LMR report of April 27, 2006 it is opined that the worker is an extremely pain focused individual
- The previous ARO decision of June 14, 2007 accepted that, “The worker complained of bilateral hand pain…from 2003…She went on to have decompression surgery on both wrists.” It was referenced that the worker remained off school due to hand pain as per a physician’s note dated August 1, 2006. Furthermore it was noted that Dr. P. in a report dated August 8, 2006 indicated pain in the CTS area.
- The WSIAT decision of October 6, 2010 accepted that the worker was disabled and stopped attending LMR activities in July 2006 acting in concert with her compensable CTS as well as her depression, which may well have been triggered due to the ongoing bilateral CTS pain
- Dr. D., in a report dated November 15, 2013 confirmed that the worker was diagnosed with fibromyalgia by three specialists, Dr. S., Dr. Si. and Dr. Sc. All of these medical reports are on the claim file record.
- I acknowledge the CM’s decision of July 2, 2014 but disagree with the conclusion reached. In my opinion there are ample findings on file to support continuous and consistent pain to her bilateral wrists since the time of the injury. In my opinion the objective findings support that the bilateral wrist pain affected her activities of daily living.
- It is my opinion that the worker has evidence of marked life disruption which is out of keeping with the degree of organic impairment recognized for the bilateral wrists.
- Dr. D., in correspondence dated July 12, 2013 opined that the worker’s current restrictions are due to fibromyalgia and CTS.
Given all of the information available to me, the evidence suggests and I conclude that entitlement to CPD is in order. It is my finding that the worker’s predominant problem has been her pain which is not reflected by objective clinical findings.
In reviewing all of the pertinent evidence I find that although the worker had prior and unrelated issues, the onset of chronic pain was clearly related to the onset of this compensable injury and its sequelae.
For the reasons set out above, I find that the worker meets the WSIB’s criteria for entitlement to benefits for CPD. I find that the worker’s chronic pain condition is permanent. The operating area is directed to arrange for an assessment of the worker in order to determine her level of disability and entitlement to NEL benefits for CPD.
Entitlement for CPD supersedes and replaces entitlement for organic injury.
CONCLUSION
I conclude the following:
- The worker is entitled to benefits for CPD. The operating area is directed to arrange a NEL assessment of the worker to determine her level of entitlement for CPD.
The worker’s objection is allowed.
DATED June 29, 2015
S. Bennett
Appeals Resolution Officer
Appeals Services Division