WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20170011
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer (Not participating)
REPRESENTED by: N/A
HEARING: Hearing in writing
DATE: April 12, 2017
ISSUE
Entitlement to Chronic Pain Disability (CPD)
BACKGROUND
The history of this claim is summarized in prior Appeals Resolution Officer’s (ARO) decisions dated November 28, 2014 and June 23, 2015.
Briefly, the worker is a former assembly line worker who has a permanent right shoulder injury related to those duties. She went onto have surgery in 2006 and a 13% Non-Economic Loss (NEL) award followed in February 2007. Her injury prevented her from returning to her prior employment so she was retrained in Customer Service and located work in a diner. Her employment ended in 2008 when the diner closed.
The November 28, 2014 ARO decision denied a NEL redetermination for the right shoulder and ruled she was capable of working in Customer Service. The decision also confirmed the calculation of her final Loss of Earnings (LOE) benefits to age-65.
The June 23, 2015 ARO decision denied entitlement for the left shoulder supraspinatus tendon.
The current appeal flows from the operating area’s decision to deny CPD entitlement on the basis that the worker did not meet the qualifying criteria outlined in operational policy 15-04-03. The decision letter is dated December 8, 2016.
The worker objected to the denial of CPD and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Relevant operational policy:
15-04-03 - CPD
ANALYSIS
I have fully considered the worker’s objection and allow her appeal. I find there is sufficient evidence to satisfy the qualifying criteria in operational policy 15-04-03. My analysis follows.
The evidence is clear by virtue of her right shoulder rotator cuff surgery on February 17, 2006 that the worker had a legitimate organic issue that was the source of her pain. However, the degree of her pain became inconsistent with that injury as time progressed.
For example, the worker continued to see her surgeon for three years after her surgery with no evidence of improvement despite occasional cortisone injections. She saw a physiatrist in 2009 and 2010 for cortisone injections but with limited success. His report of May 3, 2010 indicated that she did not respond to the last injection in January 2010 and that the severity of her symptoms was worsening and spreading along the trapezius region as well.
Her family physician, Dr. G., reported on October 17, 2011 that her pain was in her neck, both shoulders and upper back. Her pain was constant and worse with activity and she was taking “strong” pain medication (Percocet) for temporary relief. She was referred to a rheumatologist, Dr. N. to investigate her pain and functional limitations.
Dr. W. reported on August 11, 2011 that her symptoms were the same but her range of motion was slightly worse. She was not interested in further injections and he had nothing further to offer her.
An opioid maintenance form dated January 20, 2012 indicated her conditions were chronic neck, back and bilateral shoulder pain and queried fibromyalgia. Her medications were Percocet and Oxazepam (generally used to treat anxiety).
Dr. N.’s first report dated May 9, 2012 suggested chronic pain as a possible diagnosis. He documented she complained of generalized pain and took up to 6 Percocet pills per day. She was positive in 14 out of 18 fibromyalgia trigger points. His impression was she had chronic pain ascribed to fibromyalgia. Blood work was ordered to rule out other causes for her pain. By November 2012, Dr. N. reported the worker had developed fibromyalgia from her “initial injury”. He reported diffuse pain in the neck, lower back and shoulders that referred down her left leg. She remained positive on 14 out of 18 trigger points. Her pain caused severe fatigue and non-restorative sleep.
Dr. N.’s March 7, 2013 and June 17, 2013 reports continued to diagnose chronic pain secondary to her accident. Her medications included Gabapentin (used for nerve pain), vitamin B12 and Cymbalta (used for fibromyalgia). No changes were noted in his brief report on August 6, 2013 other than an increase in the dose for Gabapentin. It appears she had an injection into the left rotator cuff as well.
MRIs of both shoulders were ordered by Dr. R. to address her ongoing shoulder pains. The right shoulder MRI dated February 13, 2014 showed severe tendinosis of the distal supraspinatus and infraspinatus tendons with small superimposed partial thickness bursal surface tear involving the posterior supraspinatus. No full thickness tear was identified.
The left shoulder MRI dated March 21, 2014 showed a full-thickness tear in the supraspinatus tendon. This was repaired in surgery done by Dr. R. on May 14, 2014. Notably, the operative report ends with him saying:
“I hope that (the worker) does well from this. She had some damage to her rotator cuff, however, I am not certain that this would amount for all the symptoms she exhibits. We will see how she does with this. No other pathology was noted.”
My impression of Dr. R.’s comment is that he did not expect the surgical correction of her left shoulder tear to resolve her pain behaviours which were well established by that time.
The CM’s decision to deny CPD was based on their opinion that she did not meet the criteria outlined in the policy. I take an opposing view of the evidence. I find the worker meets the criteria for each of the five points in the policy.
For reference, the policy for CPD entitlement stipulates that workers may get benefits for CPD if all these conditions apply:
a work injury occurred
the chronic pain is caused by the work injury
the pain lasts six months or more past the usual healing time for such an injury
the degree of pain is inconsistent with organic findings
the chronic pain impairs earning capacity.
I will address each condition separately.
This condition is met by the acceptance of this claim for right shoulder rotator cuff injury on May 18, 2005.
The CM analysis determined that that the worker was suffering from co-existing non-occupational conditions like hysterectomy, lumbar degenerative disc disease, cervical spine scoliosis, left shoulder tear, asthma, bilateral hand osteoarthritis and prior depression. While I agree that some may be causing symptoms, some are dormant conditions.
For example, the family physician’s chart note on November 30, 2015 listed her active problem list as, COPD, Asthma, fibromyalgia, kidney stones and an overactive bladder. None of those issues other than fibromyalgia would cause the degree of pain described by Dr. N. when he diagnosed her with fibromyalgia. Her COPD, asthma, kidney stones or bladder issues would not cause the type of widespread pain she complained of nor would they be treated with fibromyalgia or nerve medication as she was.
Later in that chart entry, fibromyalgia was listed as the first active issue she was dealing with. Others included degenerative disc disease in her lumbar spine and a left shoulder tear.
I acknowledge that the worker has an organic left shoulder issue by virtue of her surgery there but that finding should not detract from the other evidence that points to her right shoulder injury as the precipitator to her chronic pain or that it was a well-established condition prior to her left shoulder surgery.
In my view, the presence of other co-existing conditions in this case does not take away from the pain caused by her fibromyalgia and I find that the evidence supports, particularly through Dr. N.’s involvement, that her chronic upper extremity pain was caused by her initial right shoulder injury. I also refer to Dr. N.’s consistent reporting of 14 out of 18 positive trigger points as an indicator of fibromyalgia.
The CPD policy grants that fibromyalgia syndrome is recognized as a variant of CPD and workers who are disabled/impaired by fibromyalgia may be eligible for benefits under the CPD policy.
The evidence is clear that her pain has continued well beyond what would be expected from the nature of her injury. She had surgery in 2006 but her pain continued and did not benefit from medical interventions such as cortisone injections or pain medications.
The evidence is that her pain is inconsistent with organic findings. She had a rotator cuff repair in 2006 that did not resolve her pain. Dr. G., Dr. W. and Dr. N. reported widespread upper extremity pain (notwithstanding her organic left shoulder rotator cuff tear) that did not respond to normal medical treatment.
I also noted the marked life disruption enquiries done on June 16, 2016 indicated she rarely used her arms for chores or tasks because it caused pain. She described her pain as constant and made worse with any activity. This is inconsistent with the degree of organic injury accepted in this claim.
- It is clear from the marked life disruption enquiries her impression is that she cannot work with the degree of pain she is experiencing. She reported being unable to manage her household so questioned how she could manage employment.
It is evident from the rest of the marked life disruption enquiries that her pain has impacted her social, home, and diminished her functioning in many aspect of her daily life.
While I acknowledge that there may be co-existing medical conditions present, they do not eliminate the fact that the worker meets the criteria for CPD entitlement based on her original right shoulder injury in this claim as I have demonstrated. Therefore, I find that the preponderance of the evidence weighs in favour of the worker so I grant her CPD in this case.
I make no findings on the permanency of this condition or administration of any NEL that may arise from my decision. I note that the policy implies that workers who meet the CPD criteria are considered to have reached maximum medical recovery (MMR) and have a NEL determination but I leave those matters to the operating area to administer.
CONCLUSION
Entitlement to CPD is allowed.
The worker’s objection is allowed.
DATED April 12, 2017
D. Giannobile
Appeals Resolution Officer
Appeals Services Division