WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20180005
OBJECTING PARTY: Worker
REPRESENTED BY: Paralegal
RESPONDENT: Employer (not participating)
REPRESENTED BY: (not represented)
HEARING: Hearing in Writing
DATE: February 28, 2018
HEARD by: R. Calvert, Appeals Resolution Officer
ISSUE
The worker objects to the decision of the claims adjudicator (CA) dated June 3, 1998 and the case manager (CM) dated July 24, 2013 which denied entitlement for fibromyalgia under the WSIB’s Chronic Pain Disability (CPD) policy.
BACKGROUND
A summary of this claim is contained in a previous decision of the Appeals Resolution Officer (ARO) dated February 25, 2015. Therefore a full summary will not be repeated here. Briefly, on August 24, 1995, this then-33 year old security systems consultant slipped on some produce on the floor. She wrenched her mid and low back and her right knee but she did not fall to the ground. The worker incurred only occasional lost time from work up to December 13, 1995.
Although she had returned to work, the worker’s symptoms persisted. Ongoing entitlement was accepted for the thoracic and lumbar back and in August 1997 an 11 percent non-economic loss (NEL) award was granted for residual permanent impairment to these areas. A review by the future economic loss (FEL) adjudicator on December 18, 1996 concluded a zero percent FEL award as the worker had returned to her regular job duties on December 13, 1995. In December 2002, the worker’s NEL award was increased to 26 percent.
By October 1995, the worker began to endorse symptoms in various areas of the body including the neck, shoulders, hands, feet and tension headaches. The family physician noted a diagnosis of fibrositis. Although initial entitlement for the right knee and the neck had been accepted by the Operating Area, recognition of a permanent impairment to these areas was denied. The ARO’s decision dated February 25, 2015 upheld the decision to deny a permanent impairment for the neck but granted the worker’s request for a sustainable FEL award.
In April 1998, the worker’s physician requested that the worker be referred to a Chronic Pain program for treatment of her fibromyalgia. In June 1998, the CA concluded that as the worker did not meet the criteria for entitlement to CPD and/or fibromyalgia, referral to a pain program was not in order. The denial of entitlement for CPD was reconfirmed by the CM in a decision letter dated July 24, 2013.
The worker’s objection to the denial of entitlement for fibromyalgia under policy 15-04-03, “Chronic Pain Disability”, is before me.
AUTHORITY
Workplace Safety & Insurance Board Operational Policy Manual (OPM) documents:
15-04-03 – Chronic Pain Disability
ANALYSIS
In reviewing this objection, I have had regard for the claim file information, relevant policy and legislation and for the arguments presented. Based on the evidence which is before me, I find that the worker does not fulfil all of the required criteria for entitlement to CPD/fibromyalgia.
In his letter dated June 18, 2013, the worker’s representative noted that numerous medical reports have been submitted to the claim that confirm the presence of chronic myofascial pain and multiple trigger points. The worker’s representative highlighted a summary of the various medical opinions which corroborated a finding of fibromyalgia or chronic pain syndrome.
At the outset, I do not dispute that this worker suffers from fibromyalgia or some type of chronic pain syndrome. The issue which must be considered, however, is whether the fibromyalgia/CPD manifested as a result of the work injuries and whether the worker fulfils the required criteria for entitlement.
Policy 15-04-03, “Chronic Pain Disability”, states that workers diagnosed with fibromyalgia syndrome will be considered for compensation benefits under the CPD policy. The characteristics of fibromyalgia include:
chronic diffuse pain of unknown etiology attributable to either undetected organic condition or psychogenic sources
the presence of "tender points" in predictable, and usually symmetrical, locations
fatigue and sleep disorders.
In order to qualify for entitlement under the CPD policy, workers must meet all of the five criteria outlined in the policy:
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 earning capacity.
It should be noted that while a worker may experience chronic, unrelenting pain in response to an injury, this does not suggest that the worker meets the requirement for entitlement under the WSIB’s CPD policy.
I have considered the worker’s entitlement based on the five criteria:
A work-related injury occurred:
The worker meets this criterion.
Chronic pain is caused by the injury:
In order to meet the second criterion, there must be subjective or objective medical or non-medical evidence of the worker's continuous, consistent, and genuine pain since the time of the injury. Moreover, the characteristics of the worker's pain (except its persistence and/or its severity) must be compatible with the worker's injury.
I find that the chronic pain, in all probability, manifested prior to the work accident. The worker’s prior medical records were requested. The physician provided what limited records he had available (as many records had been damaged by a flood). The medical records confirm that the worker was seen at hospital emergency on September 23, 1994 for symptoms of fatigue, lack of energy, general malaise and vomiting. The worker described feeling tired and dragged out for the past five months. The worker had previously undergone multiple tests (including investigations of the chest and abdomen) but no abnormalities were found.
The worker noted a reduced food intake, a loss of 35 pounds over the past six months, nausea and vomiting over the past two days. She had a mild headache. The worker’s social and family history was reviewed and found to be extensive. She described her employment history as poor at best. Physical examination was normal. The physician queried whether the worker had some depressive disease which was causing her symptoms. He planned to contact the psychiatrist for an opinion. The physician provided a diagnosis of chronic fatigue.
This report would suggest that the worker was experiencing physical symptoms in response to emotional distress (in the absence of any objective medical findings) at least eleven months prior to the work accident. It is also noteworthy that in the July 24, 1996 Physician’s Report of Re-opened Claim (form REO8), the family physician noted a diagnosis of “fibrositis” rather than recurring back strain. He described symptoms related to pain in the neck, upper back, right shoulder and right arm. There is no mention of the thoracic or lumbar back in this report.
The worker has entitlement for the thoracic and lumbar back. As directed by policy, in order to grant entitlement, the characteristics of the worker's pain must be compatible with the work injury. The worker has been granted only limited entitlement for the neck. The physiotherapist’s report of November 25, 1996 described pain affecting the entire spine with associated headaches and numbness in the head almost daily and constant numbness in the fingers and thumb. With the exception of the lumbar and thoracic spine, all of these symptoms would be unrelated to the work injuries.
The Regional Evaluation Centre (REC) assessment of November 27, 1996 noted pain in the upper back and interscapular area, stiffness in the neck, shoulders and upper trapezius area and right knee pain (ongoing entitlement for the right knee was denied). Other than a passing mention of her low back pain increasing on the first day of her cycle, the worker voiced no complaints related to the low back. The REC examiner provided a diagnosis of myofascial pain.
Medical reports since then have described symptoms predominantly affecting the upper back, cervical spine, and shoulders. The worker was reassessed at the REC in August 2001. Symptoms included right arm pain with numbness in the hand, right shoulder pain radiating into the neck, low back pain which was relieved by rest, right leg pain and thoracic pain which radiated up and down her back. The worker denied any difficulties prior to the 1995 work accident.
In September 2003, the family physician requested authorization from the WSIB for the medication Fiorinal (used to treat tension headaches). Medical reports since 2005 note an exacerbation of the worker’s fibromyalgia and chronic pain symptoms. Several investigations have reported some minor degenerative changes but no other significant findings.
The worker’s pain has been continuous since the accident, although the worker has since endorsed periods of exacerbation in the absence of any specific triggers or other intervening events. If we consider the worker’s continuous complaints of pain in the thoracic and lumbar spine, her pain would be viewed as remaining consistent since the accident. However, there has been an increase in symptoms affecting the shoulders, arms, hands and headache which are not compatible with the work injury. I accept that the worker’s pain has been genuine and that it has persisted since the time of the injury.
Having assessed the information on file, I find that the second criterion is not met as there is evidence to suggest that a chronic pain disorder had manifested prior to the work accident. Moreover, several of the worker’s symptoms are not compatible with the work injuries.
The pain persists 6 or more months beyond the usual healing time of the injury:
This criterion is met.
The degree of pain is inconsistent with organic findings:
There are numerous medical reports on file which suggest that the worker’s pain complaints area out of keeping with the physical findings. I find that the fourth criterion is met.
The chronic pain impairs earning capacity:
In order to meet the fifth criterion, there must be 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. Policy 15-04-03 defines marked life disruption as follows:
Because pain is a subjective phenomenon, marked life disruption is the only useful measure of disability or impairment in chronic pain cases. 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 presence of "and" in the statement "social, occupational, and home life" suggests that all 3 must be present. However, there is no requirement that all 3 aspects of a person's life must be disrupted to the same degree.
- Disruption in personal life:
Based on the information gleaned from the various reports on file, I find insufficient evidence to support a disruption in the worker’s personal life. At the time of the REC assessment in November 1996 the worker was residing with her brother. The reasons for this are not known although the evidence does suggest that the worker was having a difficult time dealing with her marital separation in 1994.
By the time of the REC assessment in August 2001, the worker had become involved in a new relationship and was living common law. Her partner was described as being very supportive. The pair was married in February 2006. The worker has two children and there is no indication of any adverse effect on her relationship with them because of her chronic pain condition.
I find no evidence of any significant disruption in the worker’s personal life arising out of her chronic pain condition.
- Disruption in occupational life
The worker was able to return to her regular job duties by December 13, 1995. She reported a recurrence in 1996 and benefits were paid for only a couple of days lost time (July 22 - 24, 1996 and November 27 - 28, 1996). The worker eventually left her pre-accident employment voluntarily and pursued employment in other areas. The worker secured employment as a courier driver and subsequently a customer service representative working in an office setting full time.
Medical reports in 2001 confirmed that the worker had secured a part-time position with a new employer XXX in conjunction with her full time job. She discontinued this part time position on May 26, 2001 due to an increase in symptoms related to generalized musculoskeletal all-over body pain. Given the lifting demands often required in positions with employer XXX, I would argue that the work was not physically suitable for her permanent injuries.
According to Dr. Ballyk’s report dated December 17, 2001, the worker had secured multiple jobs since she left the accident employer. The worker reported that she had not been taking time off work and, in fact, often worked approximately 20 hours of overtime a week. In a subsequent report from November 2007, Dr. Ballyk noted that the worker stopped working in her customer service position in October 2006 as the company was downsizing. The worker perceived that she was let go unfairly. She identified no real interest in returning to work but rather wanted to focus on relieving her pain.
In a report dated January 24, 2011, Dr. Ballyk reported that the worker was spending approximately two hours per week doing some computer work for her husband’s business. Based on the file information, I find that the worker’s chronic pain symptoms have not contributed to a disruption in the worker’s occupational life. On the contrary, the worker voluntarily left her position with the accident employer to pursue other work. The worker was, at one time, working up to 60 hours per week. The worker eventually stopped working in October 2006; however, this was due to an employment situation (downsizing) rather than the work injuries or the chronic pain condition.
I conclude that the work injuries and the worker’s chronic pain condition did not contribute to a disruption in the worker’s occupational life.
- Disruption in social life
There is insufficient evidence to support that the CPD has produced a disruption in the worker’s social life. On the contrary, since the accident the worker started a new relationship and eventually remarried. The worker reported to Dr. Ballyk in November 2007 that, although she was enjoying her marriage, she no longer goes out and that her intimate relationship with her husband had been affected by her pain. In a subsequent report dated January 24, 2011, however, the worker was scheduled to travel on a cruise vacation with her husband. She was also providing assistance to her elderly father-in-law and an elderly neighbor.
The worker confirmed that she was unable to return to her hobby of scuba diving after the work accident. It was her intent to obtain her instructor’s certificate. However, the worker also acquiesced that she could not continue in the sport due to the heavy weight of the gear. Any disruption in the worker’s ability to pursue her interest in this hobby can be explained on the basis of her physical impairments rather than her chronic pain condition.
It is unclear what the extent of the worker’s social life was prior to the commencement of this new relationship. However, based on the limited information which is before me, I find no disruption in the worker’s social life arising out of her chronic pain condition.
- Disruption in home life
Finally, I find insufficient evidence to support a disruption in the worker’s home life as related to her chronic pain condition. The medical reports on file confirm the following:
The REC assessment of November 27, 1996 confirmed that the worker remained independent with her activities of daily living. She was not able to vacuum or lift heavy objects but this would be expected given the nature of her physical injuries;
During the REC assessment in August 2001, the worker reported that she was able to perform her housework and was able to drive a car regularly;
In December 2001, Dr. Ballyk reported that the worker received help from her common law spouse with vacuuming and they would grocery shop together. The worker remained capable of doing laundry;
Dr. Ballyk’s November 2007 report confirmed that the worker was able to bathe and toilet herself but with difficulty. She now required help with cooking, shopping and laundry. She had recently lost 40 pounds which she attributed to medications (Elavil and Flexeril) which had been discontinued. This would be the first report of any significant change in the worker’s ability to manage her activities of daily living. This report reflected changes in the worker’s perceived level of functioning now 12 years post-accident;
Despite what appeared to be a functional decline in November 2007, by January 24, 2011 Dr. Ballyk reported that the worker was able dress, bathe and toilet herself. She was able to cook and shop but did not like to lift or vacuum due to pain. She worked in the home and enjoyed baking, cooking, cleaning and checking her e-mails. She performed some computer work for her husband’s business a couple of hours per week. She walked her dog. She was scheduled to go on a cruise in a couple of weeks. She helped out her elderly father-in-law and an elderly neighbour on a daily basis.
The preponderance of evidence does not support a disruption to the worker’s home life as related to her chronic pain condition. As a disruption to all spheres of the worker’s personal, occupational, social, and home life cannot be established, I find that the circumstances surrounding the impact of the chronic pain condition do not support that the worker meets the fifth criterion.
As all five criteria are not met, the worker’s request for entitlement to fibromyalgia under the WSIB’s Chronic Pain Disability policy is denied.
CONCLUSION
The worker’s request for entitlement to fibromyalgia and/or chronic pain disability is denied.
The worker’s objection is therefore denied.
DATED February 28, 2018
R. Calvert
Appeals Resolution Officer
Appeals Services Division