WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20170032
OBJECTION PARTY: Worker
REPRESENTED BY: Worker Representative
RESPONDANT: Employer
REPRESENTED BY: Law Firm
HEARING: Oral Hearing
HEARING LOCATION: TORONTO
HEARD BY: MRS. A. RIVET, APPEALS RESOLUTION OFFICER
ADDITIONAL ATTENDEES: INTERPRETOR
OBSERVER
Decision Date: October 31, 2017
____________________________________________________________________________
ISSUE
The worker is objecting to the decision of February 24, 2015 that denied entitlement to Chronic Pain Disability (CPD).
BACKGROUND
On January 6, 2013 this worker was employed as an assembler when she slipped and fell on ice in the company parking lot. The worker hit her head and buttocks when she fell. The worker sought immediate medical attention at the local hospital and was initially diagnosed with
The worker returned to modified work on January 13, 2013. The worker did not work from March 3 – April 3, 2013 claiming a deterioration of her condition. The worker was denied Loss of Earnings (LOE) benefits for this time period as suitable modified work was available and the evidence did not support the worker’s claim of total disability. This decision was upheld by both the Appeals Resolution Officer’s decision of February 10, 2014 and the WSIAT decision of May 19, 2015.
The worker resumed modified duties on April 3, 2013. On February 18, 2014 the worker was involved in a non-work related motor vehicle accident (MVA) and stopped working due to her new injuries. The worker was granted disability benefits by her insurance company. The worker was denied LOE benefits from February 18 to May 5, 2014 as it was determined the worker was unable to work due to non-work related change in circumstance. The Appeals Resolution Officer’s decision of August 12, 2015 confirmed this decision.
The worker attended active treatment for her compensable injuries from May 5 – July 8, 2014 and was granted full LOE benefits for this time period. The worker and employer met with a Return to Work Specialist and a graduated return to work plan was developed on July 4, 2014. The worker attended work on the first day of the plan on July 6, 2014 for less than two hours. She stopped working complaining of pain. She has since returned to modified work.
It was determined the worker achieved maximum medical recovery on July 23, 2014 with no evidence of a work related residual impairment for her neck and right shoulder. It was also determined the worker was not entitled to LOE benefits from July 8, 2014 as the employer had offered suitable modified work. Both these determinations were also upheld by the Appeals Resolution Officer’s decision of August 12, 2015.
The worker’s representative requested the worker be granted entitlement to CPD. The decision of February 24, 2015 denied entitlement to CPD and the worker is objecting to this decision. This is the issue currently before me.
AUTHORITY
Operational Policy Documents:
15-04-03 Chronic Pain Disability
ANALYSIS
In my determination I considered the worker’s testimony, the record, evidence and policy and find the policy criteria for CPD entitlement has not been met. I have only included a synopsis of the relevant evidence in my decision.
The worker has testified that prior to her injury of January 6, 2013 she had no issues with her right shoulder, neck or lower back. Following her injury she states that she has had head, neck, upper and lower back, right shoulder and hand pain. She also testified having pain in her knee. The worker testified that she attended physiotherapy but “it did not help”.
The worker described having right shoulder pain across the top of the shoulder that feels like a pounding or pulling. In regards to her back she also described a pulling and pounding sensation that never goes away.
Several times during her testimony the worker stated that she had pain prior to her MVA of February 18, 2014 but that the car accident made her pain worse.
The worker’s representative submits that the MVA may have aggravated her work related injury; however, the cumulative effect of the work injury and the MVA caused the worker’s chronic pain disorder and therefore entitlement to CPD should be granted.
The WSIB will accept entitlement for 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. This requires 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 six or more months beyond the usual healing time of the injury.
The degree of pain is inconsistent with organic findings
Chronic pain impairs earnings capacity
In reviewing the criteria I find that though the worker had a work related injury, I find that she has non compensable conditions that contribute to her perception of pain. I find that the second, fourth and fifth criteria have not been met.
The second criterion requires that the characteristics of the worker’s pain (except its persistence and/or its severity) be compatible with the worker’s injury, and that the pain resulted from the injury. There clearly has been a non-work related condition and a non-work related injury that has significantly contributed to the worker’s pain. The worker has a pre-existing right shoulder condition.
The February 19, 2014 MRI of the right shoulder found diffuse rotator cuff tendinopathy, greatest in the supraspinatus, a large partial thickness tear supraspinatus, AC joint arthrosis with subacromial spur and moderate SA/SD bursitis. The AC joint arthrosis is not related to the worker’s injury of January 6, 2013 and the larger partial thickness tear of the supraspinatus is related to the worker’s MVA as noted in the Appeals Resolution Officer’s decision of August 12, 2015. In addition to the non-work related shoulder issues the worker has additional non work related conditions. Imaging of the thoracic spine dated September 28, 2015 indicates the presence of osteophytes anteriorly and bridging osteophytes on the right at D8-9 with minimal scoliosis and kyphosis. The January 21, 2015 report from the Rothbart Centre for Pain Care indicated the worker was being treated for cervical degenerative disc disease (DDD), lumbar DDD. Degenerative disc disease describes a condition of cumulative damage to the intervertebral discs that arises from long term wear and tear associated with the aging process. It is not a condition that is caused by a single incident or accident or normally recognized as being work related.
The worker has also been complaining of bilateral knee pain. The worker does not have claim entitlement to a knee condition. The April 19, 2016 specialist report noted the right knee pain started about 3-4 months ago spontaneously. Examination reveals diffuse nonspecific tenderness. An ultrasound of the knee indicated mildly heterogeneous menisci with no evidence of a tear. The November 3, 2016 specialist’s report noted the worker complains of bilateral knee pain, that x-rays were unremarkable and that it appears from the worker’s description and the exam that her knee pain is patellofemoral. She does have small suprapatellar knee effusion. The worker testified about having knee pain.
The Psychological Intervention Progress report of April 1, 2014 stated the worker sustained severe physical injuries, psychological problems and cognitive impairment from the MVA. The report indicates that it was after her MVA that she avoided going out and isolated herself. The worker was diagnosed with post-traumatic stress disorder and described episodes of depressed moods along with anxiety and flashbacks to the accident. The worker’s psychological issues are clearly related to her non work related MVA.
I find the above non work related issues are significantly contributing to the worker pain, most notably the non-compensable right shoulder issues. Furthermore, the worker testified that the MVA made her pain worse. Due to these combined factors I do not find the work related injury to be a significant contributor to the worker’s chronic pain. I also find the significant contributor to the worker’s pain to be her non work related conditions and therefore the second criterion of the CPD policy is not met.
Another reason the second criterion is not met are the worker’s inconsistent pain behaviours. Initial therapy reports refer to a right shoulder and lower back strain. There is no mention of the neck. The Back & Neck Specialty Clinic assessment of October 11, 2013 noted the worker complained a constant constellation of symptoms involving her lower cervical, thoracic, right periscapular superior shoulder, thoracic and right greater than left low back that is associated with diffuse symptoms into the right upper extremity. The report stated the worker reports ongoing mechanical symptoms in her neck, right shoulder and low back. The worker was diagnosed with a cervical strain, non-accident related cervical spondylosis, right scapular contusion and shoulder strain, thoracic and lumbar strain, thoracic and lumbar spondylosis. During examination straight leg raising was 80 degrees bilaterally. The straight leg testing that had been performed only 6 days earlier on October 6, 2013 stated that straight leg raising was 30 degrees on the right and produced low back pain. This is an inconsistency and significant difference in the worker’s presentation that is unexplained. The Back & Neck Specialty Clinic follow up report of December 9, 2013 also noted inconsistency in the worker’s presentation. On formal examination of the worker’s neck her cervical range of motion was in the half range whereas on casual observation the worker approached full range of motion. Other reports refer to significant functional overlay, guarding and self-limiting behaviour by the worker. The Function and Pain Program report of March 26, 2014 also noted inconsistencies between formal range of motion testing and observed range of motion of the cervical spine. These inconsistencies in the worker’s presentation do not support a consistent and genuine presentation of the worker’s function and pain as required by the second policy criterion. In summary, the second criterion of the CPD policy has not been met.
The fourth criterion requires that the worker pain be inconsistent with her organic findings. The February 19, 2014 MRI of the right shoulder found diffuse rotator cuff tendinopathy, greatest in the supraspinatus, a large partial thickness tear supraspinatus, AC joint arthrosis with subacromial spur and moderate SA/SD bursitis. These findings would significantly contribute to the worker’s right shoulder and arm pain. I therefore find the fourth criterion has not been met.
The fifth criterion requires 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. Marked life disruption indicates the effect of pain experienced by the worker and the effect on the worker's activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships. There must be a clear and distinct disruption to a worker's life, but there is no particular requirement for this disruption to be either major or minor. The disruption in the worker's personal, occupational, social, and home life must be consistent, though the degree of disruption in each need not be identical.
The worker testified that she is working full time performing modified work. She has therefore restored her pre-injury earnings. The worker testified that she continues to do her own banking, does do shopping but is assisted by one of her children for carrying of groceries. She continues to drive. She continues to have relations with her family. She stated that she does feel sad because of her pain and want to ignore company when they come; however, she does continue to meet with family. I noted medical records indicate the worker’s partner and church have been supportive and that she has a good emotional relationship with her partner. On a typical day the worker works a night shift from 11pm to 6am. When she returns home from work she will sit down or lay on the floor to stretch. She will eat a meal such as cereal and sometime other food. She will sleep for about 4 hours before being woken by pain. She can get up from bed, bathe and dress. She will go for a short walk. She is able to prepare her own lunch. She will supervise her children by telling them what to do when cooking meals. The worker stated that she continues to see a psychiatrist every 4-6 weeks. The worker states that she is always thinking about when the pain will go away and how she will manage when she is older.
In my review, though the worker has pain I do not find consistent marked life disruption. The worker does continue to socialize and maintain relations with partner, family and her church. She is working full time. She is able to perform activities of daily living. She continues to able to make independent decisions and perform functions such as banking, shopping and driving. It appears the worker has been able to modify her activities to accommodate her organic lifting limitations such as having assistance when lifting during shopping and with cooking activities. The worker has maintained work occupational, social and home life. This is especially true prior to her MVA as there is no reference in the medical/family physician’s notes of depression prior to her MVA. As noted above, the worker’s psychological problems and cognitive impairments developed as a result of her MVA. Any impact the worker’s depression has on her daily life post MVA is not the responsibility of this claim.
In summary, while there is indication the worker has ongoing pain I find the second, fourth and fifth criteria of the CPD policy has not been met. Furthermore, the evidence is not persuasive that the workplace injury was a significant contributor to her CPD. Entitlement to CPD is denied.
CONCLUSION
Entitlement to CPD is denied.
The objection is denied.
DATED
October 31, 2017.
Mrs. A. Rivet
Appeals Resolution Officer
Appeals Services Division