WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180037
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer (Not participating)
REPRESENTED by: N/A
HEARING: Hearing in writing
HEARD by: D. Giannobile, Appeals Resolution Officer
Dated:
ISSUE
The worker objects to the denial of Chronic Pain Disability (CPD) entitlement as indicated in the Case Manager’s (CM) decisions dated May 21, 2013 and July 27, 2017.
BACKGROUND
The worker is a former Personal Support Worker (PSW) who injured her left shoulder while assisting a resident out of a washroom. The accident date is September 1, 2009. She carried on working in modified duties until a further injury occurred to her right forearm on March 4, 2010 which created a new claim. A decision letter dated May 20, 2010 advised the worker that entitlement for her forearm injury ended on March 23, 2010 due to full recovery from that injury.
During this time arrangements were made for the worker to attend a Functional Restoration Program (FRP) but she stopped attending on April 5, 2010 due to hypertension and tachycardia and her Loss of Earnings (LOE) benefits were terminated on April 5, 2010.
The worker contacted the CM again in January 2011 asking to resume the FRP program. LOE benefits were restored concurrent with a referral to a Return to Work Specialist (RTWS) to oversee a gradual return to work and ended on May 9, 2011. The CM’s decision letter dated April 27, 2011 advised that there was no further entitlement in this claim beyond that date.
The worker then requested CPD entitlement through her representative however this was denied following two reviews of the claim. The decision letters are dated May 21, 2013 and July 27, 2017.
The worker objects to the denial of CPD and the matter is now with the Appeals Services Division for further consideration.
AUTHORITY
Relevant operational policies:
15-04-03 – Chronic Pain Disability (CPD)
ANALYSIS
I have fully considered the worker’s objection including her representative’s submissions dated July 11, 2017 and December 1, 2017 and accept that the worker has entitlement to CPD. My analysis follows. The employer did not participate in the appeal.
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.
In my view the work-related injury in this claim caused her chronic pain condition. I will address each criterion separately.
A Work Injury Occurred
This criterion is met. The worker has entitlement for a left shoulder soft-tissue injury caused when she went to assist a resident from a washroom.
The Chronic Pain is caused by the Work Injury
The initial medical reports indicate the extent of the injuries were soft-tissue in nature. They reported tenderness in the left trapezius and neck which is compatible with the recorded history of the worker feeling a “pop” in her left shoulder during her exertion. Her physiotherapist’s initial report of September 30, 2009 confirmed the usual treatment regimen for upper extremity soft-tissue injuries.
A hospital assessment on December 20, 2009 reported excellent and pain free range of motion (ROM) of the neck and near normal ROM of both shoulders. They reported minimal soft tissue discomfort to direct palpation in the left upper back where she stated she had maximal pain. An MRI on January 6, 2010 showed no rotator cuff tear.
She underwent a Shoulder and Elbow Specialty Clinic assessment on January 18, 2010 where her main complaints remained her left shoulder and cervical spine and some numbness in her left little finger. The report lists some long-standing unrelated ailments of anxiety (treated through medication) and obsessive compulsive disorder (OCD).
On examination they found tenderness over the left shoulder girdle, reduced range of motion and cervical spine. Their diagnosis was left shoulder strain and they recommended continued therapy and work hardening. They believed a gradual return to modified work would be tolerated.
By March 2010 her physician reported increased pain in the neck, upper back and both shoulder blades. Notably she started attending a pain clinic in February 2010. The Chronic Pain Clinic report dated February 26, 2010 noted her pain was mainly in the neck and paraspinal area going into both trapezius muscles and rhomboid areas into the shoulders. Her pain triggered migraines about once a week. Nerve blocks were tried in the past in the superscapular area but only gave temporary relief.
On examination her shoulders showed no anterior tenderness. ROM was very good in both shoulders. Some tenderness was noted over the anterior chest area. No spasm was noted in the neck but some mild tenderness was seen along the paraspinal muscles. Their impression was that she was suffering from a myofascial pain complex which required physiotherapy to the upper back and neck. Acupuncture and massage were also recommended. Recommendations were made for pain medication, nerve blocks and a neck CT scan.
The Workplace Safety and Insurance Board (WSIB) then referred her to an FRP based on her presentation and complaints of slow recovery from her injuries. The initial assessment on March 22, 2010 listed her complaints as shoulders and back related to this claim and her lower back, pelvis and right leg caused by her subsequent accident at work on March 4, 2010. They noted she participated in treatment without significant improvement and continued to report ongoing pain in her neck, shoulders, upper, middle and lower back, buttocks and right leg. Notable for this claim is that active range of motion for the neck was reduced.
She was capable of most of her self-care routine but with some difficulties including dropping heavy pots and pans, reaching for household items and minimal continued involvement in household cleaning tasks due to increased pain when lifting. Psychologically she reported interrupted sleep, weight gain, a decline in social involvement and stress related to her functional limitations since her injury. She reported previously learned relaxation and breathing techniques did not help her pain levels.
On physical examination she reported constant pain in her neck and shoulders radiating into her right arm into her fingers. She also reported pain down into her back, hips and back of the right leg. Active range of the cervical spine was ½ of normal, extension was ¾ of normal, right and left rotation was ½ of normal range as was right and left flexion. Active range of motion in both shoulders was within normal limits. She also tested positive for non-organic signs which they felt were clinically significant for a heightened awareness of symptoms.
Notable as well is that she experienced two transient ischemic attacks (TIA) in February 2010 secondary to elevated blood pressure but was able to recover and return to work prior to her subsequent work injury in March 2010. She also acknowledged a long-standing problem with OCD and emotional difficulties.
Her family physician wrote on May 3, 2010 that she continued with nerve blocks through the pain clinic and that she continued to suffer from chronic pain in the neck, upper back and lower back. Her presentation was complicated by her hypertension and tachycardia and was being reviewed by a stroke intervention team. He recommended she suspend her FRP treatment while being treated for her tachycardia.
It is evident that her tachycardia became the primary focus of her treatment during this time and her treatment at FRP was suspended in July 2010 but by February 2011 her blood pressure and heart rate was well controlled.
An update from the Chronic Pain Clinic in January 2011 reported persistent neck and lower back pain treated with weekly trigger point and nerve block injections and an optimization of her pain medication.
In my view the above evidence paints a clear picture of a chronic pain condition. The worker maintained throughout her assessments that her upper back, shoulder and neck pain all originated from the accident on September 1, 2009 despite few, if any, organic causes for it. It is not beyond the realm of reason that the initial accident and exertion caused pain to her entire upper back and neck region even if the initial focus was to her left shoulder. Therefore, I also find it reasonable that her complaints related to this area then spread to her right shoulder and transferred to her arms which are characteristic of a CPD condition.
She has also not benefitted from repeated nerve blocks or injections which also lead me to believe her condition is non-organic. This was also the opinion of the FRP.
Her pain presentation began after about five months from the accident which prompted her to receive treatment at a pain clinic. Their examination was essentially normal yet the worker’s main complaint was pain neck and paraspinal area and both shoulders. I also see this as evidence pointing to a chronic pain condition caused by the accident given its proximity to the accident date and lack of organic cause for her pain.
I do not believe her lower extremity and lumbar issues are related to this claim because they seem rooted in the accident occurring on March 4, 2010 and are not part of this claim.
Her representative included an assessment the worker had at the Occupational Health Clinics for Ontario Workers (OHCOW) on June 16, 2017 which they arranged. The information in the report is of some value despite it being almost eight years post-accident. The worker continued to report generalized pain in her spine despite a relatively normal physical examination. The physician’s opinion was that she had chronic myofascial pain, chronic pain disorder, pain disorder with psychological factors and a general medical condition and somatic symptom disorder. He believed her lack of objective findings were not unusual given those diagnoses.
I agree with the worker’s representative that her pre-existing blood pressure issues, hypertension, OCD or other conditions had any impact on the injuries suffered in this claim or the development to CPD. There is no evidence of this and the evidence supports they are co-existing conditions that required their own dedicated treatment irrespective or her work injuries.
In my view there is a clear relationship between the initial work injury and the subsequent development of a pain disorder as supported by the FRP, Chronic Pain Clinic and OHCOW reports. Therefore I rule this criterion is also met.
The Pain Lasts Six Months or More past the Usual Healing Time for Such an Injury
It is clear from my summary above that there was no resolution to her pain symptoms at least until the Chronic Pain Clinic report in January 2011. Their report included a summary of treatment dates and shows the worker regularly attending weekly or biweekly from her initial visit in February 2010 to January 2011. This is well beyond six months of pain beyond the usual healing time for initially diagnosed soft-tissue injuries.
This criterion is met.
The Degree of Pain is Inconsistent with Organic Findings
Medical testing and physical examinations failed to find an organic cause for her upper extremity or cervical pain. An MRI of the left shoulder in January 2010 was normal. Her physical examinations by and large were normal except that they were often impacted by pain. The FRP found she had positive non-organic symptoms despite minimal organic findings.
In my view the worker’s pain is inconsistent with organic findings. This criterion is also met.
The Chronic Pain Impairs Earning Capacity
The FRP described the impact her upper extremity injuries were having on her ability to perform her activities of daily living including dropping pots and pans and difficulty dressing. It is not surprising given her presentation that Dr. Whyne from the Chronic Pain Clinic wrote on January 27, 2011 that he did not believe she would ever be able to fully resume her pre-accident duties because lifting and transferring patients would be “impossible”.
The worker was unable to resume her regular duties after her accident and eventually abandoned the profession. The OHCOW report indicated she did some tattooing work on a casual basis but her earnings were sporadic due to pain. They reported she also receives Canada Pension Plan (CPP) benefits.
The CPD policy requires the evidence show the persistent effects of chronic pain in terms of consistent and marked life disruption. It goes on to clarify that 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 reported social withdrawal due to pain, an inability to resume her regular duties due to pain, pain inconsistent with organic findings and an inability to manage portions of her household due to pain. In my view the evidence is clear that her chronic pain impaired her earnings capacity. This criterion is also met.
I have shown through my analysis of the medical reports against the entitlement criteria for CPD that the worker has entitlement for this condition so I grant her appeal. The administration of my decision, however, will be left to the operational level to manage.
CONCLUSION
The worker has entitlement to CPD in this claim.
The objection is allowed.
DATED May 22, 2018
D. Giannobile
Appeals Resolution Officer
Appeals Services