APPEALS RESOLUTION OFFICER DECISION
claim:
20220040
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (Not participating)
HEARING:
VIDEOCONFERENCE – march 3, 2022
HEARD by:
helen shaw, appeals resolution officer
ADDITIONAL ATTENDEES:
interpreter
DATED
mARCH 23, 2022
ISSUE
The worker is seeking entitlement for chronic pain disability (CPD), denied in the Case Manager decision of April 27, 2021.
BACKGROUND
The worker was employed as a personal support worker (PSW). On June 14, 2016, the worker twisted their back while transferring a resident. Entitlement was allowed for a low back strain. The worker was in their early forties at the date of injury.
Full loss of earnings (LOE) benefits were paid from June 16, 2016 to July 26, 2016. The worker returned to work on August 8, 2016 on modified duties but then stopped again and sought additional LOE benefits from August 22, 2016. No further LOE benefits were paid because it was determined the worker could have returned to work on modified duties with the employer. Entitlement was denied for the diagnosis of facet syndrome and it was determined the worker fully recovered from the low back strain by
September 5, 2016 with no permanent impairment. A decision by an Appeals Resolution Officer (ARO) on August 22, 2017 confirmed the denial of LOE benefits beyond August 22, 2016, the denial of facet syndrome and the denial of a permanent impairment.
In February 2017, the worker representative requested entitlement for a psychotraumatic disability or CPD. Entitlement for a psychotraumatic disability was denied on June 5, 2020. The denial of a psychotraumatic disability was confirmed in an ARO decision dated January 25, 2021.
In a letter dated July 30, 2020, the worker representative confirmed their request for CPD entitlement. Entitlement for CPD was denied in the decision of April 27, 2021.
AUTHORITY
Operational Policy Manual
Published
15-04-03 Chronic Pain Disability
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement is in order for CPD. My reasons are explained below.
The worker representative submitted an Appeal Readiness Form dated May 27, 2021, appealing the denial of CPD. They also presented arguments at the hearing. The worker provided oral testimony, with the assistance of an interpreter. It is their position that the conditions for CPD entitlement have been met.
The employer representative submitted a Respondent Form dated September 17, 2021, but did not participate in the oral hearing. No arguments or submissions were presented on behalf of the employer.
According to operational policy 15-04-03, 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.
The pain persists six 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.
A Work-related Injury Occurred
There is no question that the worker sustained a work-related injury on June 14, 2016; therefore, I find the first of the five conditions has been met.
Chronic Pain Caused by the Injury
According to the operational policy, in order to determine that chronic pain is caused by the injury, 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. There must also be 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 Case Manager determined that condition two was not met because the worker had low back pain prior to the workplace injury, based on chart notes from the family doctor from May 26, 2015 to
August 25, 2015 that showed the worker was reporting lower back pain. The Case Manager also noted that an MRI report from July 29, 2016 identified pre-existing L5-S1 facet arthritic and degenerative changes.
The worker testified that the injury occurred on June 14, 2016 while transferring a resident from a bed to a chair. The worker noted the resident was heavy and aggressive, resulting in the worker having immediate pain in the low back. The worker testified that despite treatment, the pain did not go away. The
worker described the pain as constant and they continue to require pain medication to manage it. The worker testified that they had occasional back pain prior to the accident but it did not affect their ability to work or perform normal activities.
I accept the worker’s testimony that episodes of low back pain prior to the workplace accident happened occasionally and did not affect their ability to work. Pre-injury chart notes suggest the worker made some complaints of low back pain from May 2015 to August 2015, but those complaints seemed to have resolved before the workplace injury and the evidence does not establish a continuing pattern of disabling pre-injury low back pain.
The medical evidence supports that after the workplace injury, the worker’s low back symptoms were no longer occasional in nature and became chronic and unremitting. A letter from the worker’s family doctor dated September 26, 2017 reported that the worker had not been pain-free since the workplace accident. The continuation of low back pain was confirmed in subsequent letters from the family doctor dated August 6, 2019, May 10, 2021 and October 25, 2021.
Regarding the significance of the MRI findings, the MRI report of July 29, 2016 showed degenerative changes in the lumbar spine, but an orthopaedic specialist report dated September 1, 2016 noted the MRI findings did not explain the severity of the worker’s pain.
Regarding non-work-related medical conditions, a chart note dated March 28, 2018 indicated the worker had recently had a baby and noted the worker experienced some decrease in the pressure on the low back after giving birth, but the low back pain continued. This suggests that pregnancy may have temporarily contributed to some of the worker’s low back symptoms, but it does not change the evidence of ongoing complaints of low back pain from the time of the workplace injury.
Noting the evidence of continuous, consistent, and genuine pain since the time of the injury, I find the workplace injury was a significant cause of the worker’s chronic low back pain.
Pain Persists Six or More Months Beyond Usual Healing Time
In order to establish that the pain persists six or more months beyond the usual healing time of the injury, the operational policy requires a medical opinion of the usual healing time of the injury, the worker's pre- accident health status, and the treatments received, as well as subjective or objective medical or non- medical evidence of the worker's continuous, consistent and genuine pain for six or more months beyond the usual healing time for the injury.
The evidence supports the worker continued to have pain six or more months beyond the usual healing time. Entitlement in the claim was accepted for a low back strain. An addendum clarification report to the Low Back Expert Physician Examiner Report, provided on August 9, 2016, anticipated a recovery in 42 days. When the worker saw an orthopaedic specialist on September 1, 2016, there was no evidence of a significant pathology, but the worker continued to report ongoing low back pain. The worker’s constant back pain was confirmed in a chiropractic treatment extension request dated September 29, 2016 and by January 2017, the worker’s psychologist had diagnosed the worker with a Pain Disorder.
The September 26, 2017 letter from the family doctor also noted that at no point after the injury, had the worker ever been pain-free in the lower back. A letter from the family doctor dated August 6, 2019 indicated the doctor had continued to see the worker on a monthly basis and there had been no improvement in the low back symptoms. The ongoing diagnosis of a Pain Disorder was confirmed in the Community Mental Health Program (CMHP) report of December 13, 2019. Letters from the family doctor
dated May 10, 2021 and October 25, 2021 reported that the worker was still being seen every four to
eight weeks, with no improvement in the low back symptoms.
Based on the medical evidence, I find the worker’s low back pain persisted six or more months beyond
the usual healing time.
Degree of Pain Inconsistent with Organic Findings
To establish that the degree of pain is inconsistent with the organic findings, a medical opinion is
required, indicating the inconsistency.
The prior ARO decision of August 22, 2017 confirmed there was no ongoing organic impairment beyond September 5, 2016.
There were early indications that the worker was developing pain that was inconsistent with organic findings. The Low Back Expert Physician Examiner Report dated July 25, 2016 noted there were no hard neurological findings and suggested the worker would likely benefit from a referral to a Function and Pain Specialty Clinic. The MRI on July 29, 2016 showed degenerative changes, but the orthopaedic specialist report of September 1, 2016 noted the MRI findings could not account for the severity of the worker’s pain. A follow-up report from the orthopaedic specialist, dated September 20, 2016, noted that a bone scan showed some increased activity in the region of the L5-S1 facet joint, but there was no significant underlying neurological problem. I also note that the worker was diagnosed with a Pain Disorder Associated with Both Psychological Factors and General Medical Condition in a report from a psychologist dated January 24, 2017 and in the CMHP Assessment Form dated December 13, 2019.
I am satisfied the medical evidence and opinions establish that the degree of the worker’s pain is inconsistent with the organic findings.
Chronic Pain Impairs Earning Capacity
In order to determine that the chronic pain impairs earning capacity, the operational policy directs that the evidence must show 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 evidence of disruption to home, occupational, and social life.
On November 5, 2020, the worker representative provided a marked life disruption questionnaire completed by the worker. At the time the questionnaire was completed, the worker was living with two sons and a daughter. The worker reported constant pain that significantly limited tolerance for normal physical activities, including house cleaning. They reported needing help with self-care and had not returned to work. The worker reported being unable to do things they used to enjoy, like working out, swimming and spending time with friends. They tried to keep busy with reading or audiobooks. The worker reported poor sleep, waking up late, having breakfast and going for a short walk with their son. Their older son helped with preparing dinner. The worker reported feeling alone and depressed. The worker’s husband had left approximately a year and a half prior to the questionnaire being completed.
The worker testified to being born in country X. The worker could not read or write in English before coming to Canada, but learned some English after coming to Canada. Their work experience included working as a cashier, a kitchen helper and a PSW. The pre-injury job as a PSW involved assisting seniors with their personal care needs, including transferring them in and out of bed, helping them in the bathroom and changing diapers. The job involved lifting, pushing, bending and walking.
The worker testified that they can no longer perform the physical duties required by the PSW job. The worker stated that they cannot bend or do heavy lifting and they have a limited tolerance for standing, walking and sitting. The worker testified to being very limited in the ability to perform household chores and is unable to lift, do laundry, cook, stand in the kitchen or grocery shop. The worker stated that their daughter and son help with household chores.
The worker also testified that pain affects other activities of daily living, indicating that they sleep only three or four hours per night, instead of seven or eight hours as before the injury. The worker indicated that they get up in the night to take pain medication. The worker stated that pain and fatigue make them feel absent, with fears that they will never have their old life back. The worker testified that they are unable to maintain a daily routine, because they never know how they will feel due to the pain. Some days they can go for a short walk for 10 or 15 minutes or make a simple meal, but some days it is difficult to get out of bed. The worker does not walk in the winter because of a fear of falling and does not drive anymore.
The worker testified that they still live with their three children; two sons and a daughter. The worker relies on the older children to help take care of the youngest child, who is not yet in school. The older children also do the grocery shopping. The worker testified that they have little or no social contact and have not maintained contact with friends because the worker does not want to see anyone. The worker talks to their parents in country X but has no other family contact. The worker said before the accident, they were very social and had lots of friends.
The worker testified that they have not returned to work anywhere. The worker receives income from Ontario Works. An application was made for Canada Pension Plan (CPP) disability benefits but there has been no answer yet.
I find the evidence establishes that the worker’s chronic low back pain has resulted in consistent and marked life disruption in the worker’s activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships.
Because all five conditions of entitlement have been met, I find entitlement is in order for CPD.
CONCLUSION
I conclude the worker has entitlement for Chronic Pain Disability. The worker’s objection is allowed.
DATED March 23, 2022
Helen Shaw
Appeals Resolution Officer
Appeals Services Division