DECISION NUMBER:

20220078

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

REPRESENTED by:

NONE

HEARING:

HEARING IN WRITING

HEARD by:

H. MOHAMED, APPEALS RESOLUTION OFFICER

DATED:

JUNE 3, 2022

ISSUES

The worker representative (WR), on behalf of the worker, objects to the following decisions:

1. The Case Manager’s (CM) decision dated December 7, 2016, which determined the worker fully recovered from their low back strain by November 21, 2016, and the worker’s lost time beyond November 24, 2016, was unrelated to the workplace injury.

2. The CM’s decision dated October 4, 2021, which denied entitlement to chronic pain disability (CPD) and psychotraumatic disability.

While the appeal was initially scheduled to be resolved through an oral hearing, I determined there was sufficient information in the claim file to make a decision without the requiring the worker’s testimony.

The WR agreed with this approach, and asked that I make my decision based on the information on file as they had no further submissions to provide.

BACKGROUND

On September 9, 2016, this machine operator for an automotive manufacturing company reported low back pain with numbness in both legs while bending over into a bin to place assembly parts that weighed approximately 12 pounds. Entitlement was accepted for a low back strain. The worker commenced physiotherapy treatment shortly after the injury.

The worker was examined by a Low Back Expert Physician (LBEP) on October 28, 2016, who confirmed the diagnosis as a sprain/strain. The physician recommended the worker returned to modified duties as of October 31, 2016 and a full recovery was expected within 21 days.

The worker stopped attending work on November 24, 2016 and provided a medical note authorizing time off work. The worker also began reporting radiating pain down both legs, upper back pain and neck pain. The worker has not returned to work since.

In a decision dated December 7, 2016, the CM determined that the worker’s deteriorating symptoms as of November 24, 2016, were not related to the workplace injury. Furthermore, the CM concluded the worker had recovered from their low back strain by November 21, 2016, with no ongoing impairment beyond this date. The worker has objected to this decision.

In February 2020, the WR submitted additional medical information and requested that entitlement be considered for CPD. In a decision dated October 4, 2021, the CM concluded that the worker did not have entitlement to CPD or psychotraumatic disability under this claim. The worker representative has objected to this decision.

Accordingly, the following questions will be addressed in this appeal:

• Did the worker fully recover from their low back injury by November 21, 2016?

• Does the worker have entitlement to CPD or psychotraumatic disability in this claim?

AUTHORITY

Operational Policy Manual

Published

15-04-03 Chronic Pain Disability

April 9, 2021

15-04-02 Psychotraumatic Disability

September 7, 2018

11-01-05 Determining Permanent Impairment

November 3, 2014

ANALYSIS

In reaching my decision, I have considered the information in the claim file and the relevant Operational Policies.

1. Did the worker fully recover from their work-related low back injury by November 21, 2016?

I find the worker has ongoing entitlement beyond November 21, 2016. My reasons follow.

Policy 11-01-05 (Determining Permanent Impairment) defines“Impairment” as a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. A “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery (MMR). The policy goes on to note that workers are considered to have reached MMR when they have reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment.

The medical evidence on file confirms the worker had no low back issues or injuries prior to the workplace accident. Following the workplace accident, the worker was diagnosed with mechanical low back pain and commenced physiotherapy treatment shortly after. I note the worker fully participated in physiotherapy treatment from September 22, 2016, until November 15, 2016, when further treatment was no longer authorized by the CM because it was felt the worker’s ongoing issues were primarily psychological. This was based on the LBEP report dated October 28, 2016, which documented that the worker had a “major phobia from having major injury and causing more harm.”

The physiotherapist completed a discharge report on November 15, 2016, noting that the worker still had significant limitations in lumbar range of motion along with increased pain, stiffness, and difficulty completing work activities and activities of daily living. The physiotherapist documented that further treatment was warranted, but the worker was being discharged because an extension had been denied.

The clinical notes from Dr. Thomas, family physician, notes that the worker continued to report severe back pain and had begun using a cane to ambulate. The worker reported difficulties with the modified work that the employer had offered and felt that the duties were making their symptoms worse. The clinical notes continue to mention ongoing low back symptoms from November 23, 2016, until

August 24, 2017, when the clinical records end. The medical records also contains a report from anaesthesiologist, Dr. Rajarathinam, dated October 26, 2017 which noted the worker had received two IV ketamine infusions for their chronic unremitting low back pain. Subsequent reports indicate the injections were not successful and there was nothing else they could offer the worker.

Based on the totality of the evidence before me, I find the worker did not reach MMR for the low back injury by November 21, 2016. Rather, there is compelling medical evidence to support an ongoing impairment beyond this date. While there is no dispute that the worker’s low back symptoms have been significantly compounded due to non-organic factors, which will be addressed below, the clinical notes confirm that the worker had ongoing symptoms associated with their work-related injury for which there is ongoing entitlement.

2. Does the worker have entitlement to CPD or psychotraumatic disability?

For the reasons that follow, I find the worker has entitlement to CPD. Since I have accepted entitlement to CPD, there would be no entitlement to psychotraumatic disability.

For the worker to be granted entitlement to CPD benefits, Policy 15-04-03 indicates that there are five (5) conditions that have to be met. The conditions are as follows:

• A work related injury occurred

• Chronic pain is caused by the injury

• The pain persists 6 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. This must be demonstrated in terms of a marked life disruption.

In essence, entitlement for CPD can be granted where there is evidence that pain is predominantly attributable to psychological sources, and where there is sufficient evidence of continuous, consistent and genuine pain since the time of the injury; medical evidence of CPD; and evidence of marked life disruption. It is important to stress that all five criteria have to be met in order to be granted entitlement to CPD.

Having considered the evidence in totality, I find the worker has met all five criteria stipulated in policy.

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.

Entitlement in this claim was accepted for a low back sprain/strain. However, in addition to low back pain, the worker also has a number of other medical issues. This includes pre-existing bilateral knee problems that had resulted in physical dysfunction, Post Traumatic Stress Disorder (PTSD) from their childhood experience of living in Cambodia, depression, fatigue, headaches and even sleep apnea. However, the fact that a worker has other medical conditions does not prevent the worker from receiving entitlement to CPD if the medical evidence supports that the worker has developed a chronic pain condition that is consistent, continuous and genuine as a result of the workplace injury. In my view, the medical reports confirm that the worker has reported consistent and continuous low back pain from the date of accident.

The clinical notes from the worker’s family physician confirm the worker was seen on a consistent basis reporting ongoing low back pain from the date of injury. The records show the worker had restricted range of motion throughout the lumbar spine and they presented with tenderness at nearly every visit. The worker was eventually referred to the St. Joseph’s Health Care Pain Clinic for an assessment and management of their chronic pain condition. Dr. Thomas’s letter dated May 30, 2017, indicated that the worker was only able to walk 5-10 minutes before needing to rest and could only sit for 10 minutes before needing to change positions. The worker was advised against any lifting from floor to waist and only two pounds from waist to shoulder.

The worker saw Dr. Rajarathinam on September 14, 2017, and described their pain in the centre of the low back involving the entire lumbar region on both sides. The worker denied any radiating pain going down both legs, but did complain of knee pain. The worker reported that the pain interfered with their activities of daily living. The report noted the worker had an MRI in March 2017 which showed some mild degenerative changes at the L4-L5 and L5-S1 level but no other significant pathology. An EMG study done in July 2017 was normal with no evidence to support any underlying lumbosacral radiculopathy. Dr. Rajarathinam remarked that the worker appeared to be distress and kept constantly changing their position while sitting and standing in order to make themselves comfortable. On examination, the worker was exquisitely tender throughout the lumbar spine even to superficial touch. Dr. Rajarathinam concluded by noting that the worker had been experiencing low back pain for the past year and that there was no pre-accident history of any back pain. Since the accident, the worker reported severe intensity back pain and had not been able to return to work. The worker had tried medications like amitriptyline, Lyrica, Cymbalta, as well is physiotherapy. Dr. Rajarathinam remarked that there appeared to be a possible emotional contribution to the back pain and recommended the worker be seen by a pain psychologist.

The worker was given an intravenous lidocaine infusion the same day. The worker underwent another infusion procedure on October 26, 2017.

The worker underwent a psychiatric assessment by Dr. Desjardins on September 7, 2017. Dr. Desjardins noted the worker was referred for counselling with respect to their “chronic pain.” The report indicated that the worker had been experiencing intractable pain since the back injury in September 2016. The worker reported difficulties with walking and activities of daily living due to the pain. Following a comprehensive examination, it was determined that the worker’s symptoms were consistent with a chronic PTSD (due to pre-existing traumatic experiences) but there was also a component of somatization present.

Dr. Desjardins November 20, 2017 report noted the worker continued to present with a depressed mood secondary to chronic low back pain and financial stressors. Dr. Desjardins remarked that the worker was strongly identifying with the sick role and presented as helpless and passive in their problem-solving approach. Additionally, she indicated that she could not rule out malingering given that there was some inconsistencies with the worker’s presentation and self-reporting. However, it is important to note that the malingering mentioned here was in reference to the worker’s psychological symptoms and not with respect to the nature of the back injury.

In her March 23, 2018 report, Dr. Desjardins documented that the worker reported worsening pain and impaired sleep. Based on her examination that day, Dr. Desjardins did not feel that the primary problem was depression. Rather she suspected a comorbid personality disorder and the most suitable diagnosis was likely a somatoform disorder (this is a variant of CPD and adjudicated under the same policy.)

The August 17, 2018 report confirmed the diagnosis as chronic pain syndrome with depressed mood; Adjustment disorder with depressed mood; and mixed personality disorder.

The worker was seen again the St. Joseph’s Pain Clinic on August 30, 2018 by Dr. Cook. The worker reported a mild improvement since the last visit in March 2018, but still reported being non-functional in their daily life. The report noted the worker was only able to walk less than a block. The worker said they had lost her house and car recently and moved in with their son. The worker reported they had been trialing cannabinoid oil and Tetrahydrocannabinol. The worker felt these had resulted in a marginal improvement in their mood. On examination, the worker continued to be diffusely tender to light palpations throughout the lumbar spine. Dr. Cook indicated there was nothing else they could offer the worker and suggested the worker increase their dosage of pregabalin to 150 mg to see if it helped with the pain.

There are also medical reports on file confirming the worker attended a Pain Management Group program for approximately 10 weeks.

The worker was assessed by Dr. Kotin on May 8, 2019 for chronic pain and depression. The worker reported they had been suffering from low back pain ever since the work injury in September 2016. The worker reported difficulty with tolerating the pain and said that they relied on other people for travelling, buying groceries, going for walks etc. The worker reported that sometimes they stay in bed the whole day due to pain. As a result, the worker said their sleep had been severely interrupted. In terms of a past psychiatric history, it was documented the worker did have a history of psychiatric issues but the worker did not wish to discuss it during the appointment. Dr. Kotin noted that a review of previous report indicated the worker had some traumatic experiences while in Cambodia prior to coming to Canada in 1984. Dr. Kotin noted the worker had been seeing Dr. Desjardins since September 2017, who felt the primary issue appeared to be chronic pain. Following a comprehensive examination, Dr. Kotin agreed with Dr. Desjardins that the main issue appeared to be chronic pain.

The worker was again seen at the St. Joseph’s Pain Clinic on August 2, 2019. The report indicated that since the last visit, the worker had not seen any significant improvement in their pain and in fact reported that it had been getting worse. The worker described a throbbing, aching pain over the lower aspect of the lumbar spine with radiation down the posterior aspect of both thighs. The worker described episodic leg weakness associated with severe flare-up of back pain. On physical examination, the worker displayed significant myofascial tenderness over the lumbar spine. Dr. Beaudoin concluded the worker was suffering from chronic mechanical low back pain with radiation patterns down both thighs which appeared to be myofascial in nature. Depression and PTSD were also contributing factors to the pain.

Given the significant nature of the myofascial tenderness, it was felt the worker would not tolerate any injections at the moment. Additionally, it was noted that interventional procedures were less effective in

patients who had depression and PTSD. The worker was told there was nothing else that the pain clinic could offer and the worker was agreeable to be discharged from the clinic.

Based on the totality of the medical evidence, I am satisfied that the worker’s chronic low back pain was caused by the injury.

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

Based on the medical information on file, I am satisfied that the worker’s pain has persisted for more than six months beyond the usual healing time.

The degree of pain is inconsistent with organic findings:

The worker was diagnosed with a lumbar sprain/strain which should have resolved within 8-12 weeks of the date of accident. However, the worker’s symptoms have continued without any significant improvement despite having received extensive treatment. The CT scan dated December 20, 2016, did not identify any evidence of significant focal disc disease, nerve root compression, disc protrusion or any obvious stenosis. Aside from some mild disc bulging at the L4-L5 and L5-S1 levels, there was no evidence of any acute pathology that might explain the significant nature of the worker’s ongoing back pain. Numerous medical reports have indicated that the worker’s pain has a psychological component. The St. Joseph’s Pain Clinic report dated August 2, 2019, also came to the conclusion that the worker’s depression and PTSD were significant factors that were contributing to the worker’s ongoing symptoms. As such, I am persuaded on a balance of probabilities that the worker’s pain is inconsistent with their organic findings, and therefore, the fourth criterion is met.

The chronic pain impairs earning capacity:

The fifth criterion requires 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. 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.

Based on detailed account provided by the worker, I am satisfied the worker has experienced a disruption in their personal, occupational, social and home life. The worker has not worked in any capacity since September 2016. The worker requires assistance with their activities of daily living and they require the assistance of a personal support worker to do laundry and house cleaning. The worker is no longer socially active with their friends and stated that they spend most of their time at home watching TV and going on the Internet. Accordingly, I find that the worker’s chronic pain has impaired their earning capacity and the fifth criterion has also been met.

For all of these reasons, I find that all five criteria required under Policy 15-04-03 have been met. As such, the worker has entitlement to CPD and should be referred for a Non-Economic Loss (NEL) assessment.

CONCLUSION

Based on the foregoing reasons, I conclude:

1. The worker did not fully recover from the low back injury by November 21, 2016.

2. The worker has entitlement to CPD and is entitled to a NEL assessment for this condition.

The nature and duration of any benefits flowing from this decision is remitted back to the Operating Area for further adjudication subject to the rights of appeal.

The worker’s objection is allowed.

DATED: June 3, 2022

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division