WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190114
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: D. LaSalle, Appeals Resolution Officer
ISSUE
The worker objects to the denial of entitlement for Chronic Pain Disability (CPD) which was outlined in the case manager’s letter dated September 27, 2018.
BACKGROUND
This claim was established on April 13, 2017, when the worker, a cashier for a produce and meat retailer/wholesaler, rolled a turkey into a bag and felt a pop in her right wrist. The worker did not initially lose time from work and was provided with modified duties. Those duties were later determined to be unsuitable for the worker’s physical abilities and the worker stopped working and received Loss of Earnings (LOE) benefits from June 1, 2017 to June 19, 2017. Subsequent to a return-to-work meeting on June 21, 2017, the worker returned to new modified duties on June 22, 2017, but stopped again after June 28, 2017 and claimed further injuries to her neck and low back.
The decision letter dated July 19, 2017 clarified that initial entitlement was allowed for strain injuries to the worker’s right hand, fingers and forearm.
Medical reporting on file beginning around March 2018 contained references to “chronic pain”, therefore the case manager referred the worker’s claim to the specialty team for consideration under the WSIB Chronic Pain Disability (CPD) policy. The specialty team case manager found that the worker did not meet all of the criteria of the WSIB policy for CPD and denied entitlement in the letter dated September 27, 2018. The worker’s representative submitted an Intent to Object Form (ITO) dated December 14, 2018 in response to the decision. The Appeal Readiness Form (ARF) was submitted by the worker’s representative dated January 18, 2019.
The Appeals Decision of March 6, 2019:
Denied entitlement for the new conditions to the neck and low back on the basis that they were not related to the modified work performed by the worker.
Denied LOE benefits beyond June 28, 2017.
The issue of the worker’s entitlement to CPD is now before me.
AUTHORITY
WSIB Operational Policy 15-04-03 Chronic Pain Disability
ANALYSIS
I find that the worker does not have entitlement for chronic pain disability. My reasons are set out below.
Policy 15-04-03 Chronic Pain Disability outlines five conditions for qualification for compensation for CPD:
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.
In the decision dated September 27, 2018, the case manager found that the worker did meet criteria one, three and four. I agree with this; there is no dispute that a work-related injury occurred and was allowed under this claim (criterion one). The worker clearly had pain that persisted beyond six months of the expected healing time (criterion three). The worker’s pain was inconsistent with the organic findings (criterion four).
The case manager, in the same decision, found that the worker did not meet the conditions for qualification for compensation for CPD because the worker did not meet the second criterion (that the chronic pain was caused by the injury); and the fifth criterion (that the chronic pain negatively affects earning capacity).
The case manager found that the chronic pain was not necessarily caused by the injury because the worker had complaints of pain beyond the area that was injured in the original accident. The worker’s chronic pain included areas such as her right shoulder, trapezius, neck and low back.
The case manager found that the chronic pain did not impair the worker’s earnings capacity because her pain had had little impact on her social life, and her inability to return to work was related to non-compensable factors.
Subsequent to the denial of CPD by the operating area, the worker sought psychological counselling, and the worker’s representative argued in their submissions that the decision to deny CPD should be reconsidered on the basis of these more recent reports. The worker’s representative submission with the ARF dated January 18, 2019 intertwined arguments for the objections that were resolved by the March 8, 2019 ARO Decision, with this appeal. The worker representative pointed to medical documents on file where the worker’s treating practitioners made reference to her experience of chronic or ongoing pain. The worker’s representative also felt that the marked-life-disruption inquiries conducted by WSIB staff should be disregarded in light of the post-decision psychiatric reports, the worker’s prescription for anti-depressants, and a December 18, 2018 letter written by the worker outlining her “mental degradation”.
I do not accept the worker’s representative’s arguments for the following reasons.
It is important to note, firstly, that what a medical professional refers to as “chronic pain” is not necessarily the same as fulfilling the criteria outlined in the WSIB CPD policy for entitlement to benefits.
It is possible for a worker to have been told by their doctor that they have chronic pain, but not meet the specific provisions under the CPD policy for benefit entitlement. The denial of entitlement under the CPD policy does not imply denial or dismissal of the worker’s pain, or the medical reporting of their treating practitioner.
I agree with the specialty team case manager’s decision that the worker’s chronic pain was not clearly caused by the workplace injury, as required by the second policy criterion. The worker’s complaints of pain included areas of her body not injured in the original workplace accident, such as her right shoulder, trapezius, neck and low back. Initial entitlement was allowed for strain injuries to the worker’s right hand, fingers and forearm. Entitlement was never extended to any areas beyond the worker’s right hand, fingers and forearm. The ARO decision of March 6, 2019 denied entitlement for conditions of the worker’s neck and low back. It is documented in numerous memos in July 2017 that the worker would not return to work due to pain in her neck and sciatica (low back).
It is outlined in the CPD policy that in order to determine that the chronic pain impairs earnings capacity, as per the fifth criterion, the evidence must include
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.
The policy goes on to define “marked life disruption” in the following way:
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.
Marked life disruption inquiries are on file dated July 4, 2018. The case manager asked a variety of questions about the worker’s activities pre-accident and post-accident, and about the worker’s pain. The worker identified very little change in her day-to-day activities following the accident apart from no longer working for the employer. The worker continued to undertake most of the household duties she had done before the accident, except that she no longer gardened. She reported continuing to be responsible for all cooking and cleaning in the household. She reported that she continued to do the laundry, carrying baskets out to the car, and from the car to the laundromat, and in reverse once the laundry was done. The worker continued to do snow removal in the winter.
The worker identified that her hand throbbed which made lifting difficult. In describing her pain, the worker mentioned that she feels pain from her neck to her fingers in her entire right arm, and shoulder and upper back. The worker stated she does not take any medication for pain and had not been receiving active treatment for several months. She described that she did not have a family doctor and so was seen in the past at a walk-in clinic. She also described that she had some upcoming appointments for medical investigations that had been arranged by her paralegal.
The worker also described that shoulder pain disturbed her sleep, prevented her from colouring her hair, and changed how she put on some of her clothing.
The worker confirmed having ongoing social anxieties that pre-dated her accident. She does not enjoy being among large groups of people and avoids these situations. She also denied ever having psychological issues prior to the injury and denied any prior depression.
The worker also described not working anymore. She did not return to the accident employer and did not look for any other work, although she stated that she wanted to be employed again.
The worker advised that she continued to enjoy her photography hobby, and that she still enjoyed camping, although she stays in a trailer now more often than staying in a tent. She also advised that she continues to enjoy visits with family and friends, and volunteering at a local school.
The worker also advised that she passes her time by reading, watching tv, exercising, walking in her neighbourhood, socializing with friends and family, but no longer goes for bike rides. She expressed an interest in travelling but noted her financial situation limited her ability to do this. She advised that she has taken a larger role in taking care of her boyfriend’s children since she is not at work. She described some friction with her boyfriend over financial issues and felt she was more dependent on him for money.
The specialty team case manager noted the results of the marked life disruption inquiries and concluded that non-compensable areas of pain, and most notably the worker’s neck pain, accounted for the worker’s inability to return to work, and that despite her pain, the worker was successful in maintaining an active social life and has not had a direct, negative impact on her relationships with family and friends. I agree with the specialty team case manager’s conclusion that there was a lack of evidence of marked life disruption in all aspects of the worker’s life including home, social and vocational.
The specialty team case manager advised the worker verbally on September 27, 2018, and sent a letter of the same date, denying entitlement to CPD.
On October 2, 2018, the worker attended the emergency department with a friend with a complaint of anxiety. She advised she had had a workplace injury in 2017 and had been off work for over a year with no income. She described having panic attacks for two months and that she had a history of “stress seizures” since the age of 2 years. She also advised that she was “fighting WSIB”. The worker described pain on the right side of her body “sciatica to foot and hand to shoulder”. The worker also described a history of ADHD and that she had been on antidepressants at the age of 12 years. The worker was referred to the Centralized Access to Psychiatric Services (CAPS) and the Wellness Recovery program.
The worker attended the emergency department again on October 9, 2018 as she had not been contacted for the follow-up by a nurse practitioner that the hospital had promised at her last visit. The worker outlined the stress she was feeling due to her problems with WSIB and that she had had two “stress-induced seizures” in the last month. Notes from this visit indicate the worker was “expressing desire to have med script to support current feelings of depression, anxiety, panic attacks, poor sleep”. The worker was seen for a psychological consultation on October 10, 2018 where the chief complaint was listed as “situational crisis with pseudoseizures”. The worker outlined her difficulties with her WSIB claim and described that she had pain in her right hand and the right side of her body. She outlined that she had stress from her financial situation and that she and her boyfriend have to regularly travel large distances to pick up his children for visitations. She was diagnosed with “major depressive disorder”. The consultant offered for her to stay in hospital as a voluntary psychiatric admission but she preferred to go home with her boyfriend. Her alternative plan, if he was unable to stay with her, was to go to her mother’s place.
There is an October 16, 2018 consultation report from Dr. Unoh. The report begins “thank you for referring this 38-year-old female living in xxx who is currently unemployed and currently a WSIB decision”. It also states that the worker
said that her mental health concerns started after a work accident in April 2017 and resultant pain in right arm and right leg
she has difficulty cooking, keeping up her house or doing other household chores. She said that she has difficulty with mobility as well.
she has a claim that was rejected by WSIB and she in on an appeal situation
she described anxiety attacks (difficulty with breathing, sweaty, shaky, heart racing). This lasts for about 30 minutes occurring daily when she is frustrated. She has difficulty keeping up with financial and household obligations. She feels guilty because her partner works in xxx Sunday to Friday and drives here for the weekend to see her. Every other weekend they drive to xxx to pick up his kids and bring them to xxx Saturday then take them back on Sunday. They feel financially stuck because if she moves to xxx they lose a significant amount of income which they can’t afford.
The worker also described having minimal contact with her mother (despite earlier reporting that she was close with her mother) and having had major difficulties in childhood due to abuse. The report concluded with recommendations for focusing on “sleep, hygiene, exercise, meditation, yoga, dietary modification, structured vocational activity and medication compliance”. The worker was prescribed Cymbalta, referred to group based psychological therapy, and to follow up with her family doctor.
The worker representative submitted an ITO, objecting to the denial of CPD dated December 14, 2018. The worker submitted a letter to WSIB dated December 18, 2018 to outline her “mental degradation in the last 3-6 months”. The worker described having a “complete mental breakdown” at the end of September, and referred to her visits to the hospital emergency department in October.
The specialty team case manager reconsidered her decision to deny CPD in response to the submission of the psychological reporting of October and November 2018. She upheld the denial of CPD in the letter dated February 4, 2019 on the basis that criterion 2 of the CPD policy remained unmet as the worker’s pain was predominantly outside of the area of injury for the accident under this claim. She found that criterion 5 also continued to be unmet because during the original marked life disruption inquiries, the worker presented a much different scenario than what was described in the reporting of October and November 2018. The case manager acknowledged that there was some evidence of minor disruption, there was no evidence of marked life disruption during the original inquiries.
On February 4, 2019, the worker’s representative called the specialty team case manager and sent a letter outlining that the worker’s relationship with her boyfriend had broken down and they were no longer planning to marry and that the decision-maker should consider this evidence of marked life disruption.
The worker representative submitted a further ITO dated February 22, 2019 in response to the February 4, 2019 reconsideration letter from the specialty team case manager. With regard to criterion 2, the worker representative argued that the worker’s neck, trapezius and right shoulder should be accepted as part of the entitlement in the claim. Entitlement for the worker’s neck condition was denied in the ARO decision of March 6, 2019. The issue of entitlement for other areas of injury (the trapezius and right shoulder) are not before me.
The worker representative argued that with regard to criterion 5, that during the marked life disruption inquiries, the worker was trying to be “as positive as possible” and had “no prior experience in dealing with the WSIB”.
I do not find that the worker’s visits to the emergency department and psychological assessment/counselling subsequent to the denial of CPD entitlement to be compelling evidence that the earlier marked life disruption inquiries yielded results that were wrong or misleading. I find that the worker clearly expressed that she was at the hospital and had psychiatric assessment due to her reaction to the WSIB decisions made in her claim. This is not evidence of marked life disruption due to chronic pain. The worker characterized her relationship to WSIB as a “fight” and brought up her dispute with WSIB decisions at the outset of her interactions with hospital staff and physicians. On October 2, 2018 the worker attended the emergency department accompanied by a friend. On October 10, 2018, the worker declined voluntary admission to the hospital because she preferred to go home with her boyfriend or stay with her mother. These facts support the case manager’s conclusions that the worker maintained a good social support system and continued to interact socially as before the workplace accident in this claim.
The worker’s letter of December 18, 2018 outlined that she had had a complete mental breakdown at the end of September. The decision denying CPD entitlement was discussed with her verbally on September 27, 2018 and a letter of the same date was sent. The worker’s first documented visit for psychiatric intervention on file is October 2, 2018.
I do not accept the worker representative’s argument that the worker’s answers to the marked life disruption inquiries of July 4, 2018 were not valid because she was somehow not adequately put on notice that her answers would be significant to the determination of her entitlement to CPD. It is documented in Memo A0066 dated June 22, 2018 that the worker was told her file was being considered for CPD entitlement and that the case manager would contact her the following week to gather more information from her for this purpose. The worker was duly advised that the questioning would take place, and the purpose of the questioning. It was expected that the worker would provide truthful answers. It would not have been appropriate for WSIB staff to coach the worker about what answers would support allowance of CPD and/or what answers would not support CPD entitlement.
I also do not find the worker representative’s assertion that the worker and her boyfriend have cancelled their wedding plans to be adequate proof of marked life disruption due to chronic pain caused by the worker’s right wrist injury which occurred under this claim. The information was provided from the worker representative and not the worker herself and does not explain the link between the worker’s pain and the dissolution of the proposed marriage. There is documentation on file that the worker and her boyfriend were experiencing financial stress, stress related to the worker’s fiancé’s job far from their home, and the stress associated with travel for visitations with his children. Couples reconsider the decision to get married for a wide variety of reasons. I cannot conclude, based on the information that is before me, that the worker is not marrying her boyfriend because of her right wrist injury or its sequelae.
Criterion 2 and criterion 5 have not been met. I do not find the worker’s chronic pain was caused by the injury under this claim. I also do not find that there is evidence of marked life disruption that demonstrates the worker’s earning capacity has been impaired by the chronic pain.
Based on my review of the evidence, with attention to medical documentation on file, the worker does not meet the entitlement criteria for chronic pain disability as outlined in the policy.
I find the worker does not have entitlement to Chronic Pain Disability.
CONCLUSION
The worker does not have entitlement to Chronic Pain Disability.
The objection is denied.
DATED: August 2, 2019
D. LaSalle
Appeals Resolution Officer
Appeals Services Division