Worker v. Employer, 2019 CanLII 121592

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190109

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer

REPRESENTED by: Employer Representative (Not Participating)

HEARING: Oral Hearing

HEARD by: S. Johnson, Appeals Resolution Officer

DATED: August 6, 2019

ISSUE

The worker objects to the Case Manager’s (CM) decision letter dated March 5, 2019 that denied entitlement to Chronic Pain Disability (CPD).

BACKGROUND

On September 28, 2012 this production worker attempted to assist another co-worker to move full barrels into the cooler when one of the barrels unexpectedly moved. In the course of this event, the worker’s left calf was caught between the two barrels.

The worker received emergency medical treatment at the St. Mary’s Hospital on September 28, 2012. In the St. Mary’s Emergency report dated September 28, 2012 the attending emergency physician suspected the worker might have a compartment syndrome to his left lower limb region and transferred him to the Grand River Hospital. In the Grand River Hospital report dated September 28, 2012 the orthopaedic surgeon diagnosed the worker with a left leg compartment syndrome isolated to the gastrocnemius and posterior compartments. The worker underwent left lower limb fasciotomy surgery, followed by a second surgery on September 30, 2012 to address the delayed primary closure of both fasciotomy excisions and excision of the necrotic muscles in the left lower leg. On November 27, 2013 the worker underwent left ankle arthroscopy and gastrocnemius lengthening.

The Operating Area allowed initial entitlement to the worker’s left lower leg compartment syndrome injury.

In a case review dated March 4, 2014 (Memo 77) the CM concluded the worker achieved maximum medical recovery (MMR) for his work-related left leg compartment syndrome injury with evidence of a permanent impairment. Permanent functional restrictions included:

sedentary duties only
no sustained standing, walking or sitting with the left leg in the dependent position
no squatting, kneeling, crawling and ladder climbing
no work more than 4 hours per day (medically supported by the orthopaedic surgeon).

In the Non-Economic Loss (NEL) Evaluation Report dated April 28, 2014 the NEL Clinical Specialist granted entitlement to a 5 per cent NEL benefit for the permanent impairment in the worker’s left lower leg region. The accepted diagnosis for NEL rating purposes was a left leg compartment syndrome.

The worker participated in extensive return to work activities with the employer at a reduced work day (4 hours per day) until December 6, 2014 at which time the employer closed its operations.

The Operating Area referred the worker to Work Transition (WT) Services to assist with his successful return to the labour market. The suitable occupation (SO) of a Customer Service Clerk (NOC 1453) was approved. The worker completed the WT plan on September 8, 2016. The Operating Area adjusted the worker’s loss of earnings (LOE) benefits at the time of the official closure of WT Services to reflect his ability to earn $11.00 per hour in the SO of a Customer Service Clerk (NOC 1453) on a permanent part-time basis (20 hours per week).

The worker participated in further extensive medical treatment plans that included: left leg surgery on March 10, 2015 (re-do fasciotomy lateral anterior leg and decompression of the left peroneal nerve), physiotherapy, psychological counselling and Ketamine infusion injections in an attempt to alleviate his pain symptoms and experiences arising from his work-related left leg injury.

In a letter dated November 17, 2014, the worker representative requested entitlement to a lower back, left hip, left knee, left foot and right elbow injuries as secondary conditions arising from the worker’s altered gait (significant limp) due to his work-related left leg compartment syndrome injury. In a decision letter dated November 18, 2014 the Operating Area denied entitlement to these additional areas of injury. The worker representative pursued an objection to this decision at the Appeals Services Division (ASD). In the Appeals Resolution Officer’s (ARO) decision dated August 24, 2015 entitlement to the worker’s lower back, left hip, left knee, left foot and right elbow injuries was denied as a secondary condition arising from his work-related left lower leg injury. In this decision the ARO found the worker’s 5 per cent NEL benefit took into consideration his left ankle and left knee regions.

The worker went on to develop non-organic symptoms secondary to his organic work-related left lower leg compartment syndrome injury. The Operating Area allowed entitlement to a psychotraumatic disability on a temporary basis. In the Concurrent Mood and Anxiety Assessment Report dated June 15, 2016 the psychologist and psychiatrist provided the DSM-IV diagnoses of Pain Disorder associated with Psychological Factors and a General Medical Condition, Adjustment Disorder with Depressed Mood and Rule out Mild Depression.

In a decision letter dated February 16, 2016 the Operating Area determined the worker has no evidence of a permanent psychological impairment for his psychotraumatic disability. The worker representative pursued an objection to this decision at the ASD. In the ARO’s decision dated December 20, 2016 the ARO was unable to make a finding on the issue of a permanent psychotraumatic disability as it was concluded the worker did not achieve MMR. The Operating Area was directed to determine whether there is a permanent impairment for the worker’s psychotraumatic disability pending updated medical information regarding the worker’s psychological condition.

In a decision letter dated May 19, 2017 the CM concluded the worker reached MMR for his psychotraumatic disability as of March 15, 2017 with no psychological impairment. In this decision letter the CM relied upon the psychologist’s discharge report dated March 15, 2017 that documented the worker has not attended his six scheduled sessions, he reported sustained improved mood and he has engaged well in ongoing behavioural activation efforts. The worker was discharged from the psychologist’s care due to lack of attendance and non-contact with the psychologist who attempted to reach the worker without success.

In a letter dated September 25, 2018 the worker representative requested entitlement to CPD.

In a decision letter dated March 5, 2019 the CM denied entitlement to CPD as it was concluded the second and third criteria have not been met according to the CPD policy requirements.

This is the issue for determination.

AUTHORITY

WSIB Operational Policy Manual Document No.:

11-01-05 Determining Permanent Impairment

15-04-03 Chronic Pain Disability

ANALYSIS

I had regard for the claim file information, relevant policy, legislation, and testimony provided by the worker and his representative at the scheduled oral hearing on July 17, 2019 in reaching this decision.

Worker Representative Submission

The worker representative submits the CM’s decision letter dated March 5, 2019 is flawed based on the following:

This worker sustained a left leg crush injury at work on September 28, 2012 that resulted in a minor organic impairment rated at a 5 per cent NEL benefit.
The worker’s other complaints of pain in his lower back, left hip, left knee, left foot and right elbow regions are not a bar to entitlement to CPD as his pain symptoms and experiences have always stemmed from his work-related left leg injury.
The degree of the worker’s pain levels and experiences are inconsistent with the organic findings for which a minor NEL benefit was granted at a level of 5 per cent.
The worker’s inability to work beyond a permanent reduced work week (20 hours per week) is directly attributable to his pain symptoms and experiences arising from his work-related left leg injury.
The Operating Area accepted entitlement in this worker’s case to include a permanent reduced work week at 20 hours per week. This is, in and of itself, evidence to support the worker’s disruption in his personal, occupational and social spheres necessary to meet the fifth criterion in the Operational Policy Manual (OPM) Document No. 15-04-03 – Chronic Pain Disability.
The best benchmark to measure this worker’s pain levels and experiences is well-documented in the overwhelming medical evidence from the orthopaedic surgeon who was actually contemplating the worker’s request for a left leg amputation in order to alleviate his pain.
The orthopaedic surgeon declined to proceed with amputation of the worker’s left leg as it would essentially replace his current pain levels with phantom pain.
The worker’s viva voce evidence presented at this oral hearing is consistent with the medical evidence that documents a legacy of ongoing chronic pain symptoms and experiences arising from his work-related left leg injury.

Entitlement to CPD

I find the worker has entitlement to CPD.

The OPM Document No. 15-04-03 – Chronic Pain Disability – sets out the guidelines for a worker to qualify for CPD entitlement when it results from a work-related injury. This policy outlines the eligibility criteria for entitlement to benefits for CPD, which requires evidence of:

A work-related injury
Chronic pain is caused by the workplace accident
The pain persists for six months or more 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 first CPD policy criterion, it must be shown that a work-related injury occurred.

There is no dispute the worker’s left leg compartment syndrome injury occurred at work on September 28, 2012 and this meets the definition of a work-related injury.

Criterion 2: The chronic pain is caused by the injury

In the second CPD policy criterion, it must be shown that the chronic pain is caused by the injury.

I find there is evidence of the worker’s continuous, consistent and genuine pain since the time of his left leg compartment syndrome injury arising from the work incident of September 28, 2012. I accept the worker’s viva voce evidence at this oral hearing regarding his pain experience to be forthright and consistent with the voluminous medical evidence submitted to the case record. Immediately following the work incident of September 28, 2012 this worker participated in extensive medical treatment programs for a period of five years to address his chronic somatic, neuropathic and intractable pain symptoms arising from his work-related left leg injury. Despite these medical interventions, the worker’s intractable left leg symptoms did not improve to the extent he persistently requested amputation of his leg to achieve a better quality of life.

The worker’s evidence is consistent with the medical evidence. In all of the medical reports submitted to the worker’s case from September 28, 2012 to October 10, 2018 none of the health professionals who treated this worker for his left leg compartment syndrome injury expressed a medical opinion to suggest the worker’s left leg pain symptoms were not genuine and there are no medical reports that observed the worker’s left leg condition had resolved or significantly improved. This is not the case. In support of this finding I relied upon the following medical evidence:

In the WSIB Foot & Ankle Specialty Program reports dated October 10, 2013, December 20, 2013, March 27, 2014, February 3, 2015, April 14, 2015, and October 5, 2016 the pain consultant consistently and continuously concluded the worker has ongoing neuropathic and somatic pain symptoms arising from his work-related left leg injury. In the medical report dated October 5, 2016 the pain consultant concluded this worker has ongoing left intractable neuropathic and somatic pain and ongoing depression.
In the WSIB Foot & Ankle Specialty Program report dated September 11, 2013 the neurologist concluded the electrodiagnostic findings “would account for some of the worker’s pain.”
In the Functional Abilities Evaluation (FAE) report dated May 26, 2014 the registered physiotherapist and registered occupational therapist concluded that, based on a review of the medical documents, the subjective examination and the objective components of testing, the worker presents with signs and symptoms that are consistent with ongoing somatic and neuropathic pain of the left leg with reduced mobility and reduced myotomal and muscle strength of the left ankle and knee.
In the WSIB Foot & Ankle Specialty Program report dated January 19, 2015 the orthopaedic surgeon concluded the worker had a crush injury followed by a fasciotomy and a significant component of his pain is neuropathic in nature. The surgeon expressed concerns that, if the worker had a below-knee amputation, he will have significant phantom limb pain and he would not tolerate wearing a prosthesis.
In the WSIB Foot & Ankle Specialty Program report dated February 3, 2015 the neurologist concluded the worker had clinical and electrophysiological evidence of a chronic nerve injury to his deep peroneal nerve with no evidence of active denervation and no other focal nerve injury noted. The neurologist concluded that, overall, the worker’s main issue is severe and chronic pain secondary to a combination of nerve and soft tissue injury. The neurologist was not convinced the peroneal nerve injury could fully account for the worker’s symptoms yet it certainly may have a role.
In the WSIB Foot & Ankle Specialty Program report dated February 9, 2015 the orthopaedic surgeon documented the worker’s “number one complaint is pain” and suggested a decompression of the peroneal nerve where the chronic processes are identified might help with pain. In this report the orthopaedic surgeon documented the worker reported he is willing to try anything to alleviate his pain symptoms and he was prepared to consent for a below-knee amputation if given the opportunity to do so.
In the Altum Health Concurrent Mood and Anxiety Assessment Report dated February 13, 2015 the psychologist documented the worker continues to experience moderate to high levels of pain in his left lower extremity following a crush injury in 2012. He has undergone a number of surgical procedures and rehabilitation care with minimal improvement in his functional status or pain control. The psychologist documented there was no evidence of a formal mood disorder, the worker denied prominent anxiety symptoms and he expressed hope that a below-knee amputation procedure would allow him to move forward in life. The psychologist concluded the worker’s history is consistent with a pain disorder associated with both psychological factors and a general medical condition with “elements” of a mild adjustment disorder with depressed mood.
In the WSIB Surgical Specialty Program Follow-Up report dated October 27, 2015 the orthopaedic surgeon recommended a second surgical opinion prior to undertaking an operation for a neuropathic limb which has no revision possibilities and is a salvage operation. There is a risk of continued neuropathic pain post-amputation. The orthopaedic surgeon concluded we need to exhaust all other pain management strategies prior to exploring this surgical option.
In the WSIB Surgical Specialty Program Follow-Up report dated March 31, 2016 the orthopaedic surgeon documented he had a long discussion with the worker and that all pain management options should be exhausted prior to thinking about an amputation.
In the Altum Health Concurrent Mood and Anxiety Assessment Report dated June 15, 2016 the psychologist and psychiatrist concluded the worker’s mood and pain symptoms are of sufficient severity to affect his physical rehabilitation and return to work prognosis. He continues to meet the criteria for Pain Disorder with Psychological Factors and a General Medical Condition, Chronic as well as Adjustment Disorder with Depressed Mood, rule out Mild Depressive Episode. In this report the psychologist and psychiatrist concluded the ongoing perpetuating factors for his mental health condition include the chronicity of his injury, lack of relief from pain strategies to date, the breakdown of his marriage and poor coping strategies.

In my review of the evidence before me, nothing has changed regarding the worker’s left leg pain symptoms and experiences during the six year period of time from September 28, 2012 to October 10, 2018. His pain, his description of pain and symptoms and the location of his pain have remained consistent in all of the medical reports submitted to the case. There is no medical evidence to suggest this worker’s pain is disingenuous.

I then considered the worker’s ongoing pain experiences and symptoms in the context of his pre-accident profile. In his evidence the worker testified he has not had a prior similar history of left leg problems or psychological problems, he has never been treated for a similar pain experience, he has never received psychological or psychiatric treatments and he has not been prescribed medications for a psychological condition before the work incident of September 28, 2012. The worker’s evidence is consistent with the medical evidence. In the physician’s clinic chart notes dating back to 1997 I observe the worker has never been treated in the past for a prior similar left leg or pain-related symptoms due to a psychological or psychiatric condition.

I had the benefit of this worker’s viva voce evidence presented at this oral hearing that detailed with great particularity how his ongoing pain symptoms and experiences are caused by his work-related left leg compartment syndrome injury.

In my view, since pain is a subjective experience that cannot be objectively measured, I must be satisfied the worker is genuinely disabled by his pain experiences and symptoms arising from his work-related left leg compartment syndrome injury. I am satisfied by the weight of the medical evidence that this worker’s pain is consistent, continuous and genuine since the work incident of September 28, 2012.

I find the work incident of September 28, 2012 is the significant contributing factor for the development of the worker’s chronic pain condition for which the diagnostic label of somatic pain, neuropathic pain and pain disorder with psychological factors and a general medical condition. Chronic pain was first contemplated by the pain specialist on October 10, 2013 and continued to remain present in all of the subsequent contemporaneous unsolicited medical reports.

Criterion 3: The pain persists 6 or more months beyond the usual healing time of the injury

I find the worker’s left leg pain has persisted for six or more months beyond the usual healing time for the injury. This evidence is reflected in the overwhelming medical information submitted to the worker’s case and is not contentious.

Since I have already found the second criterion in the CPD policy has been met there is no need to revisit previously resolved matters regarding the worker’s continuous, consistent and genuine pain arising from his work-related left leg injury arising from the work incident of September 28, 2012.

Criterion 4: The degree of pain is inconsistent with organic findings

I find the degree of the worker’s reported pain symptoms are inconsistent with the organic findings.

I had regard for the nature and the extent of the worker’s work-related left leg injury to properly consider whether his pain condition is inconsistent with the organic findings. It is significant that the nature of the organic injury itself must be considered to properly assess whether the worker’s pain is inconsistent with that injury. If the pain is predominantly attributable to an organic cause, then the worker will be granted entitlement for the organic injury. Alternatively, if the pain is predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder), or other undetected sources, then the pain will be reviewed for consideration of entitlement under the CPD policy.

I had regard for the worker’s evidence. In his testimony the worker detailed with particularity the nature and the extent of his pain symptoms and experiences arising from his work-related left leg injury summarized below:

He has never been pain-free since the work incident of September 28, 2012.
On an average day, his pain levels are 7/10 (0 being no pain and 10 being the worst pain).
The pain is in the area from his left knee down into his toes and described like an electric current.
He experiences severe cramping (charley horse) anywhere from 45 minutes to 12 hours in duration to the extent he is rolling around in bed crying.
When he experiences leg cramps his toes will curl up and he has to massage his toes to try to release the pain and cramping.
He experiences non-stop cramping in the left leg every day (up to 100 per day).
The pain associated with cramping is 12/10 and will reduce to 7/10.
He has no feeling in his toes.
His only relief is to sit and elevate his left leg with the use of ice.
He is only able to sit or stand for 20 minutes as his left leg starts to cramp.
He uses a Lazy-Boy chair at home and he constantly adjusts his body positions while sitting.
He is unable to climb stairs or ladders.
He lives in a one level home.
His balance is not good and he gets wobbly if he is walking.
He stumbles quite a fair bit.
He will do groceries with his girlfriend. He will lean on the empty cart and when the cart begins to fill up his girlfriend will push the cart as it is too heavy for him.
He was taking up to 40 pills each day (Oxyneo, Percocet, Lyrica, Cymbalta and three Morphine medications). He stopped taking them as they were not helping his pain levels.
The Ketamine infusion therapy was his last treatment in an attempt to reduce his pain levels. He was scared, he started to hallucinate while in the treatment program and he did not experience any benefit after he finished the treatment.
He has not received any further treatment since the Ketamine infusion therapy as there is nothing more that can be done to help his pain levels.
He currently receives tele-health counselling to help him cope with his pain. He receives information on how to relax with breathing techniques and distracting himself from his left leg pain by doing crosswords etc.
He is unable to do any household chores with the exception of some light dusting or he uses a Dyson stick for light sweeping.
He lives in a 700 square foot apartment so it is really not that big.
He helps with cooking light meals like preparing hot dogs for the barbeque.
He sits down while he barbeques due to his left leg symptoms.
He is unable to wash dishes due to the standing.
He is unable to do any light repairs in the home.
He has not seen his family in two years and he does not take any holidays.
He usually spends his days on the front porch or he will walk to a park bench located approximately 50 feet from the front of his house to sit down.
He does not socialize with friends and he does not participate in any outside sports, hobbies, or activities as he gets too much pain so he would rather just avoid the situation and stay home.
He is unable to go to the movies as he is up and down several times to the point he is missing the movie so it is not worthwhile.
He lost his marriage of 22 years within two years after the work incident of September 28, 2012.
He only showers twice per week.
Since the work incident he has only been able to sleep for two hours at a time as the pain in his leg and cramping wakes him up.
He has been advised there is no further treatment options for his left leg condition and that he has run every course of possible medical treatment options available to him.

With permission from the worker, I requested to view the surgical site in his left leg region. I observe the worker has two incisions on each side of his left lower leg with the start of the incision just behind his left knee region down to his left ankle. There was another incision at the left ankle site where the arthroscopy was performed to release the nerve in an attempt to lengthen/stretch the muscle and provide relief from cramping. I note the area and description of the worker’s pain and symptoms well-documented in the case record is in the exact location of the surgical incisions with obvious muscle wasting in the left calf region. In addition, during the course of the hearing, the worker had to elevate his left leg on another chair and adjust his body positions. On direct questioning, the worker described he can only sit in this position to avoid cramping in the leg.

I then considered the worker’s pain experience and symptoms in the context of the medical evidence. I am persuaded by the weight of the medical evidence that supports the worker’s left leg pain symptoms and experiences are inconsistent with the organic findings. In support of this finding I relied upon the following medical evidence:

In the WSIB Foot & Ankle Specialty Program report dated September 11, 2013 the neurologist concluded the electrodiagnostic findings “would account for some of the worker’s pain.”
In the NEL Evaluation Report dated April 28, 2014 a 5 per cent NEL benefit was granted for the permanent impairment arising from the worker’s left leg compartment syndrome.
In the WSIB Foot & Ankle Specialty Program report dated February 3, 2015 the neurologist concluded the worker had clinical and electrophysiological evidence of a chronic nerve injury to his deep peroneal nerve with no evidence of active denervation and no other focal nerve injury noted. The neurologist concluded that, overall, the worker’s main issue is severe and chronic pain secondary to a combination of nerve and soft tissue injury. The neurologist was not convinced the peroneal nerve injury could fully account for the worker’s symptoms yet it certainly may have a role.
In the WSIB Surgical Specialty Program Follow-Up reports dated October 27, 2015 and March 31, 2016 the orthopaedic surgeon recommended a second surgical opinion prior to undertaking an operation for a neuropathic limb which has no revision possibilities and is a salvage operation. There is a risk of continued neuropathic pain post-amputation. The orthopaedic surgeon concluded we need to exhaust all other pain management strategies prior to exploring this surgical option.
In all of the medical reports prepared by the pain specialist during the continuity period from October 10, 2013 to October 5, 2016 the diagnosis remained unchanged and included intractable neuropathic and somatic pain arising from the worker’s work-related left leg compartment syndrome injury.

Given the lack of significant organic findings by way of a minor NEL benefit (5 per cent) coupled with the medical opinions expressed by the neurologist who concluded the electrodiagnostic findings could only account for some of the pain and by the pain specialist who provided the diagnostic label of neuropathic and somatic pain, I am satisfied the worker’s pain symptoms and experiences are not consistent with the organic findings in his work-related left leg injury.

I did not overlook the CM’s decision letters dated July 5, 2016 and May 19, 2017 that concluded entitlement to a psychotraumatic disability was allowed on a temporary basis for the diagnosis of an Adjustment Disorder with MMR achieved as of March 15, 2017 with no evidence of an ongoing impairment. I also had regard for the ARO’s decision dated December 20, 2016 that made no finding on the issue of MMR for the worker’s psychotraumatic disability (Adjustment Disorder) and returned this matter to the Operating Area to rule on the issue of MMR.

The worker representative submits the duality of the issue before me is not a bar to entitlement to CPD as the worker’s symptoms of anxiety and depression are general features of both CPD and a psychotraumatic disability. The essence of the worker representative’s position is this worker’s entitlement is best captured under the CPD policy versus the psychotraumatic disability policy.

In my view, while there was evidence of a psychological component to the worker’s left leg compartment syndrome injury for which entitlement to a psychotraumatic disability was appropriately granted for a limited period of time from July 5, 2016 to March 15, 2017, I find the worker’s pain symptoms continued to remain the predominant issue after he was discharged from the psychologist’s care on March 15, 2017. What we are dealing with is a worker whose pain symptoms and experiences arising from his work-related left leg compartment syndrome injury, diagnosed as neuropathic pain and somatic pain, evolved over the course of several years from 2012 through to 2016 to the extent it perpetuated the temporary psychotraumatic disability (Adjustment Disorder with Depressed Mood) during the period from July 5, 2016 to the date he was discharged from the psychologist’s care on March 15, 2017. In support of this finding I relied upon the psychologist’s medical reports dated January 27, 2017 and March 15, 2017 that concluded the worker no longer met the criteria for depression and an adjustment disorder.

It is instructive the pain specialist already provided the diagnoses of a neuropathic and somatic pain disorder during the three year period of time from October 10, 2013 to October 5, 2016 at the time the was diagnosed with both a Pain Disorder with Psychological Factors and a General Medical Condition, Chronic as well as Adjustment Disorder with Depressed Mood, rule out Mild Depressive Episode at the initial psychological assessment at Altum Health on June 15, 2016.

I find the worker’s temporary psychotraumatic disability was overwhelmed by the impact of his chronic pain symptoms and experiences arising from his work-related left leg compartment syndrome injury as of February 17, 2017. In support of this finding I relied upon the WSIB Surgical Specialty Program Operative Report dated February 17, 2017. In this report the surgeon documented the worker was admitted to the program for a five day Ketamine infusion therapy program for intractable neuropathic pain in the left leg. In this report the surgeon documented there was a discussion about possible amputation of the left leg due to the severity of the worker’s persistent four and-a-half years of neuropathic and somatic pain in the calf. The Ketamine infusion treatments were recommended to try to help decrease his neuropathic pain. The surgeon concluded it was hoped there are other modalities that may help the worker manage his chronic pain thus precluding the need for amputation.

Simply put, subsequent to the worker’s discharge from psychological treatment on March 15, 2017 with no evidence to support he met the criteria for depression and an adjustment disorder, his persistent intractable neuropathic and somatic pain continued to exist. There is no evidence to suggest the worker achieved full resolution of his neuropathic and somatic symptoms. Rather, this worker went on to participate in Ketamine infusion treatments as an alternative to manage his chronic pain and an attempt to avoid the need for amputation of the leg.

On direct questioning by the ARO regarding the Ketamine infusion treatments, the worker described he was in the hospital for one week and he achieved no benefit and no improvement in his symptoms. He has exhausted all recommended treatment plans and he has not experienced any significant improvement in his pain levels and experiences arising from his work-related left leg injury. On further questioning by the ARO regarding the several medical reports that discussed amputation of the left leg, the worker stated his pain was so bad he literally wanted the surgeon to just cut off his leg so that he could possibly have a better quality of life. The worker stated he would take the risk of having his leg amputated if it would provide him with a better quality of life. With respect to his current medical treatment, the worker testified he is taking some counselling on the tele-health program to help him cope with his pain levels. He is obtaining information on breathing, distraction from pain techniques and coping with his pain arising from his left leg injury.

I accord the greatest amount of weight to the pain specialist’s six medical reports submitted to the worker’s case during the period from October 10, 2013 to October 5, 2016 that provide the diagnosis of somatic pain and neuropathic pain. The pain specialist’s medical opinions support the diagnostic criteria for somatoform pain disorder in the CPD policy have been met. The CPD policy states that, as the clinical presentation of an individual diagnosed with somatic symptom or a related disorder in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM) is virtually identical to that of an individual having CPD, cases of somatic symptom or related disorders are considered under the CPD policy instead of 15-04-02 – Psychotraumatic Disability.

I find the fourth criterion in the CPD policy has been met.

Criterion 5: The chronic pain impairs earning capacity

I find the worker’s pain impairs his earning capacity.

The CPD policy requires that the worker’s genuine pain be demonstrated through evidence of marked life disruption. In order to establish the chronic pain impairs earning capacity, 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. The policy goes on to state that since pain is a subjective phenomenon, marked life disruption is the only useful measure of disability or impairment in chronic pain cases. To properly assess this criterion, there must be clear and distinct disruption to a worker’s life, but there is no particular requirement for the 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 representative does not dispute the CM’s decision dated March 5, 2019 that concluded the worker’s earnings capacity and ability to participate in activities of daily living are impaired by his work-related injury. I agree. There is no need to revisit previously resolved matters. The worker’s evidence presented at this oral hearing is consistent with the medical and other evidence that supports this worker’s pain symptoms and experiences arising from his work-related left leg injury have impaired his earning capacity.

I conclude all of the five criteria in the CPD policy have been met to allow initial entitlement to CPD.

According to the Appeals Services Division (ASD) Practice & Procedures document, in all cases the benefits that flow from a decision will be considered part of the issue agenda. The ARO will be responsible for ruling only to the extent that reliable information is either contained in the file or readily available to the ARO. Therefore, where the ARO accepts entitlement for an impairment or for a period of impairment/disability, the ARO will also resolve the nature, level and duration of benefits to the extent that available information permits.

Since I have allowed entitlement to CPD, the worker is entitled to a permanent impairment in accordance with the CPD policy. This policy states it is expected that workers who have reached the six month point beyond the usual healing time have been thoroughly investigated and conventional medical modalities have been attempted. Therefore, workers who meet the entitlement criteria of this policy are considered to have reached MMR and, as such, are eligible for either a PD assessment or a NEL determination. However, decision-makers must look to the general principles for determining MMR to ensure that individual differences are considered in each case in accordance with OPM Document No. 11-01-05 – Determining Permanent Impairment.

I have already found this worker’s CPD condition overwhelmed his temporary psychotraumatic disability as of the date he commenced Ketamine infusion treatments for his intractable neuropathic and somatic pain symptoms on February 13, 2017. I also find the worker achieved MMR for his CPD condition as of the date he was discharged from the Altum Health Surgical Specialty Program on February 17, 2017 with no further significant improvement achieved in his CPD impairment.

The Operating Area is directed to arrange for an assessment of the worker to determine the degree of permanent impairment for his CPD condition. The level, nature and extent of the worker’s entitlement to ongoing benefits and services under the insurance plan are remitted to the Operating Area preserving the workplace parties’ right of appeal.

CONCLUSION

I conclude:

(a) Entitlement to CPD is allowed.

(b) The worker reached MMR for his work-related CPD condition as of February 17, 2017 with evidence of a permanent impairment. Entitlement to a NEL determination to assess the degree of the worker’s CPD impairment is allowed. The level, nature and extent of the worker’s entitlement to ongoing benefits and services under the insurance plan are remitted to the Operating Area preserving the workplace parties’ right of appeal.

The worker’s objection is allowed.

DATED: August 6, 2019

S. Johnson

Appeals Resolution Officer

Appeals Services Division