APPEALS RESOLUTION OFFICER DECISION
decision number:
20220088
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEO CONFERENCE
HEARD by:
ADDITIONAL ATTENDEES:
s. di carlo, appeals resolution officer
iNTERPRETER
WSIB EMPLOYEE OBSERVER
JUNE 30, 2022
ISSUES
The worker through her representative objects to the Case Manager’s (CM) decision dated November 29, 2021, which denied entitlement to Chronic Pain Disability (CPD).
BACKGROUND
On July 11, 2020, this dietary aide was exiting the building through the receiving door when they slipped and fell causing an injury to their right arm and elbow.
The claim was e-adjudicated and accepted for health care benefits for a right arm and right elbow sprain/strain injury. The employer offered modified work on July 16, 2020 and the worker initially accepted the offer; however, on July 29, 2020, the worker started losing time from work.
The Eligibility Adjudicator (EA) extended entitlement to reflect a right elbow fracture and overturned entitlement for a right arm injury. In the same decision, the EA denied entitlement to lost time as they determined the worker remains partially impaired. The worker returned to modified duties on August 18, 2020 and then began to lose time as of November 26, 2020, due to flare-up of right elbow symptoms. The worker continued to experience ongoing symptoms and was referred to a Specialty Clinic for an assessment.
The worker lost time from work on sporadic dates in April 2021.
The CM determined the worker achieved maximum medical recovery (MMR) on June 10, 2021, for the right elbow fracture. The worker was awarded a 4% Non-Economic Loss (NEL) award in June 2021 for the right elbow fracture injury.
In May 2021, the worker underwent diagnostic imaging of their neck and began to lose time from work as of May 13, 2021. The CM issued a decision on May 31, 2021, confirming that suitable modified work remained available for the worker and denied the lost time. In addition, the CM denied entitlement for a neck injury.
In August 2021, the worker’s representative submitted correspondence requesting entitlement to psychotraumatic disability or CPD.
In a decision dated November 29, 2021, the CM reviewed and denied entitlement to CPD benefits.
An Appeals Resolution Officer (ARO) reviewed the worker’s objections to lost time they experienced and the denial of a neck injury further to the decision of January 7, 2022. The ARO denied entitlement to LOE benefits for the period of April 19, 2021, April 22, 2021 and April 23, 2021, and from May 13, 2021, onward as suitable modified work was available. As well, entitlement to a neck injury was denied by the ARO.
The worker representative’s objection to the CM’s denial of CPD benefits now forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
Policy 15-04-03 – Chronic Pain Disability
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, the representative’s submissions, the worker’s testimony, legislation and relevant operational policies in reaching this decision. I do not find the worker has entitlement to CPD benefits and the following is my rationale.
The worker representative submits that the worker was inappropriately denied CPD benefits and that the worker meets all five (5) aspects of the criteria of the policy. The worker representative contended it is important to note that the worker attempted to return to work; however, due to an increase of pain they were unable to work and that their pain gradually progressed. Furthermore, the representative positioned that the worker’s depression was diagnosed as secondary to their chronic pain and that their psychological diagnosis is indicative of their chronic pain. The representative stipulated that the worker’s chronic pain is caused by the workplace injury as they did not have any issues prior to the injury and based on their testimony their pain radiates from the right elbow to the shoulder and neck which supports that the chronic pain is caused by the injury. The worker representative positons that the worker’s 4% NEL does not accurately represent their degree of pain and that marked life disruption is evident as the worker requires assistance by their spouse and daughter for all household duties. The worker representative seeks that entitlement to CPD be recognized and the decision of November 29, 2021, be overturned.
The employer is participating in this appeal through their representative. The employer representative seeks that the CM’s decision be upheld as they positioned there is no evidence that the chronic pain is caused by the compensable right elbow fracture. The employer representative positioned that a prior ARO confirmed the denial of entitlement to a neck injury, in this case, and that there are several references to pain complaints to where the worker has no entitlement in the medical reports. The employer representative submits that the medical evidence supports a neurological problem and that this remains non-compensable with no evidence this was caused by the elbow fracture.
The worker provided oral testimony with the assistance of an interpreter. The worker stated they came to Canada in 1989 and prior to working with the accident employer they worked at a restaurant as a cook assistant for six (6) years. The worker stated they worked for the accident employer as a dietary aide for nine (9) years and described their job duties. The worker described the workplace accident of July 11, 2020 and described the pain of their right elbow to include numbness, freezing and muscle pain. The worker indicated it is difficult to explain their pain aside from not being able to do anything with their right arm. The worker stated when the pain comes it lasts for about an hour and a half and then they take painkillers. They stated they feel pain everyday and it is continuous and has difficulty falling asleep.
The worker stated following the workplace accident their sleep has been impacted and their pain impacts their household activities. The worker indicated that their daughter and spouse have to complete household chores. The worker testified they try to exercise, do yoga and uses ointments for the pain as pain medications cause them side effects.
The worker testified to receiving treatment at a Pain Clinic for which they had three (3) injections; at their neck, back of the neck on the left side and the right side to assist with their pain. The worker stated they now suffer from psychological issues and has anxiety and argues with their family and loses their temper especially when their pain increases. The worker stated they do not like to socialize following the injury.
The worker confirmed that their employer has offered them modified duties and that they attempted to do the work but their pain is so bad that they could no longer continue working.
During questioning, the worker representative referred to the family doctor’s medical report of August 22, 2021, that outlined “localized left elbow pain” and the worker stated, they believe\s the doctor made a typographical error, as it should read the “right elbow.” The worker testified that their pain has spread all over to the left arm from their right elbow. The worker stated their current medications include:
Duloxetine
Metformin
Mirtazapine
Pregabalin
Rosuvastatin calcium
The worker described a typical day as they remain off work due to their pain. They find it difficult to get up from bed and when they get up; they brush their teeth and pray. Their spouse makes their breakfast and they take their medications and feels sleepy or nauseous so they go back to sleep. They spend the majority of their day on the sofa and feel complete aloneness. They stated they feel no happiness and argues with their kids and questions themselves why is they are living this way.
During cross questioning the worker was asked about a previous injury in September 2019 whereby they injured their left arm and the worker confirmed that at the time of the index event she was having pain in their body; however, then stated prior to 2019 they had no pain in their body. The worker was asked where they feel their pain, the worker stated the entire right arm, it travels all overhead to the left arm, and they feel pain throughout their whole body because of their elbow. The worker testified that when they walk the pain travels from the right elbow to the knees and ankles and they need to stop and massage themselves to continue.
During cross-questioning, the employer representative referred to a memo which details the worker’s conversation with the CM with the assistance of an interpreter. In this memo, the worker stated that the pain clinic advised them that their symptoms seem to be stemming from their head, and that both the worker and the doctor believe their symptoms are related to a neurological problem. During testimony, the worker indicated that since they hurt their right elbow then began to have head problems and it feels like “something is crawling on their head” and that they feel like they are being electrocuted with pain travelling all their body. The worker subsequently confirmed they were diagnosed with diabetes 10 to 15 years ago and this managed with a daily tablet.
The employer representative questioned the worker if they discussed the results of the MRI of her neck with their doctor and they recall going over the results and was told they have degeneration of the neck.
I asked the worker if they completed the Canada Pension Plan (CPP) Disability application completed on December 9, 2021, and the worker responded “yes.” I went through some sections of the applications of specifically page 4, 6 and 7 of 19 pages, which describes the worker’s severe chronic pain as “radiating from head to neck to arms to elbow to spine to shoulder and down to feet;” however, at the hearing the worker has testified that their pain originates from their right elbow. In addition, I asked for clarification as to how they listed physical abilities on the application speak to their “standing limitations and back pain” and how is that related to their right elbow fracture. The worker stated they believe they made a mistake on the CPP Disability application and that their main compliant is headaches and because of the headaches they make mistakes. They stated that they have pain everywhere and when a doctor is seeing them, they describe the pain at that moment that is most severe. During testimony, I asked the worker where on the body they felt the most pain at that specific moment during the hearing and they stated and motioned to “pain in my neck.”
The worker confirmed they have not returned to work since May 2021 and could not recall during testimony whether their CPP Disability application was accepted or denied.
The worker confirmed while their daughter and their spouse (who is retired) do the household activities they remain independent with their activities of daily living with the exception of their daughter helping to wash their hair.
During redirect questioning, the employer representative asked the worker when they were diagnosed with fibromyalgia as outlined on page 6 of 19 of the CPP Disability application. The worker could not recall and then altered their testimony that they completed the application with their daughter.
At the outset, I do not dispute that this worker suffers from some type of chronic pain syndrome; however, the issue, which must be considered is whether the CPD manifested as a result of the July 2020 workplace injury and whether the worker fulfils the required criteria for entitlement.
It should be noted that while a worker may experience chronic, unrelenting pain in response to an injury, this does not suggest that the worker meets the requirement for entitlement under the Workplace Safety and Insurance Board’s (WSIB) CPD policy, 15-04-03.
To qualify for entitlement under the CPD policy, workers must meet all of the five criteria outlined in the policy:
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.
I have considered the worker’s entitlement based on the five criteria:
- A work-related injury occurred:
The worker injured their right elbow on July 11, 2020, and entitlement was accepted for a right elbow fracture therefore the worker meets this criterion.
- Chronic pain is caused by the injury:
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.
The worker sustained a fracture to their right elbow. The injury required conservative treatment and remained non-surgical.
The worker was assessed on December 23, 2020, for an Upper Extremity Comprehensive Assessment and diagnosed with an occupational diagnosis of right elbow minimally displaced fracture and a right elbow medial collateral ligament injury was queried.
A Pain Management Physician at the Specialty Clinic saw the worker on March 29, 2021 and it was confirmed that the worker did not meet the criteria for complex regional pain syndrome and recommended a stellate ganglion block; however, the worker did not wish to proceed with this treatment.
The Specialty Clinic assessment of June 2, 2021, outlined no improvement was noted with enhanced functional treatment and no further functional recovery was expected.
Dr. Gladman saw the worker on June 4, 2021, for EMG and Neurology Consultation. No clinical or electrophysiological evidence of either radiculopathy or large fiber neuropathy was delineated to explain their pain was noted. Normal EMG. The worker was encouraged to do regular exercise, stretching and mobilization. It was noted that the pain seems mostly myofascial in nature, and it was queried if they may have rotator cuff pathology on the right side, and there may be an indication for ultrasound or MRI imaging of right shoulder to evaluate this. As well, it was noted the worker may benefit from ultrasound of the right elbow for evidence of epicondylitis
An XXXX medical form was completed by the worker’s health care professional on August 11, 2021, which outlined the worker’s absence from work, is chronic pain, degenerative disc disease of the cervical spine, bilateral median nerve neuropathy, cervical C5-6 radiculopathy, chronic epicondylitis and major depressive disorder. The current clinical symptoms in relation to the worker’s neck injury were noted as severe back neck pain radiates to right arm.
Dr. Ponrajah completed a medical report dated August 22, 2021, which details the worker sustained an injury to their right upper extremity at their workplace in July 11, 2020. The worker requested that a letter outlining their current status and details about their diagnosis include the following medical conditions:
Chronic pain primarily in the neck and right upper extremity with severe localized pain in the left elbow
Chronic right lateral epicondylitis
Degenerative disc disease of the cervical spine with cervical C5-6 radiculopathy
Bilateral median nerve neuropathy
Major depressive disorder secondary to chronic pain
Sleep disorder secondary to chronic pain
Diabetes mellitus 2
Dyslipidemia
Dr. Ponrajoah outlines that the worker continues to suffer significant pain and discomfort in their neck and right upper extremity and stiffness and numbness in both upper extremities and symptoms are exaggerated by trivial activities using their upper extremities. They are unable to perform their routine activities of daily living including household chores, meal preparation, laundry and cleaning. They are emotionally distraught and are unable to perform their pre-injury activities or attend any type of employment based on their skills as a dietary aid.
During testimony, the worker’s clarified that they believe Dr. Ponrajoah made a typographical error when it was identified as “severe localized pain in the left elbow” and it should be clarified as the “right elbow.” I agree with the worker that this notation in the August 22, 2021, report appears to be a typographical and I have regard that the worker continues to have localized right elbow pain.
The Pain Clinic report of September 7, 2021, indicates the worker’s main pain complaint is headache pain since July 2020 after a fall. The worker was diagnosed with chronic pain due to spondylosis and right C5/6 radiculopathy and bilateral occipital neuralgia and recommended therapeutic interventions included superficial cervical plexus block, accessory nerve block, greater and lesser occipital nerve block and trigger point injections at trapezius, rhomboid, supraspinatus and erector spinae muscles.
The worker was referred for an Adult Out-Patient Psychiatric Assessment by her family physician for an assessment of depression and anxiety. The worker was seen on January 4, 2022, and the report details the worker’s chief complaint is “pain all over their body and not able to function since they had a fall at work in 2020.” The report details the worker is unable to function due to “the pain all over their body, tightness in the head and neck.” The worker complained of feeling frustrated of pain and physical condition and that they are not able to do much at home and their spouse is doing most of the cooking and the children help with the cleaning. The worker stated they mostly sit on the couch or lies down in their bed. The worker stated initially they had pain in the right arm, and now “they have pain all over their body. They have developed pain in the back; this prevents them from walking or standing.”
The worker’s representative enclosed a copy of the worker’s CPP Disability Application that was completed on December 9, 2021. During testimony the worker was asked if they completed the application and they responded they did; however, during cross-questioning they indicated that their daughter assisted them; however, then stated that their daughter advised that they completed the application.
On this note, the CPP Disability notes under Section C of the application that the main medical condition that prevents them from working is “After workplace injury, severe chronic pain radiating from head to neck to arms to elbow to spine to shoulder , and down to feet.” In addition to degenerative disc disease of the cervical spine, cervical C5-6 radiculopathy, bilateral median nerve neuropathy, major depressive disorder and sleep disorder secondary to chronic pain. Functional Assessment regarding physical abilities the worker stated in her application that “it is very difficult for me to remain standing for more than 10 minutes at any given time because my back pain.” The worker stated that their depression has gotten worse and that “in the last year, my fibromyalgia has made it very hard to sleep at night.” The worker stated that they are unable to walk for more than 20 minutes or stand for long periods and that they cannot do any household jobs like cooking or cleaning and everything causes pain for them all over their body from head to toe.
The psychiatry progress note of February 18, 2022 outlined the worker was seen as they were feeling secondarily depression and anxious due to their chronic pain following a fall at work. The worker reported some improvement in the tightness in their head and they seem preoccupied about the pain.
Based on the totality of the available evidence before me I find the medical evidence and the worker’s self-reporting to the treating clinicians and at the oral hearing support “widespread” pain, which in my view does not support the chronic pain, in all probability, was caused by the right elbow fracture. I do not agree with the worker representative’s position that the worker’s chronic pain is caused by their right elbow fracture.
While I recognize the worker did not have pain issues prior to the index event, the worker has no entitlement to their neck as found in the prior ARO decision of January 7, 2022. Of significance, the worker has been diagnosed with cervical radiculopathy that affects both upper extremities and back pain that radiates down to the lower extremities. I acknowledge that the worker testified at one point at the hearing that they believe their pain begins in their right elbow and travels up the right arm to the neck, to the head and over to the left arm and back and then radiates to their knees and feet. While I find that the worker believes this to be true, it remains unsubstantiated with medical evidence. The worker began having subsequent issues with various parts of their body that caused pain and I find no causal link has been made that these conditions stem from the worker’s right elbow facture. The worker has other medical conditions that have required medical investigations and caused physical limitations, which in absence of medical confirmation of these conditions; I am unable to confirm the worker’s pain is caused by the worker’s right elbow fracture further to her July 2020, workplace injury. As such, the second criterion has not been met.
- The pain persists six or more months beyond the usual healing time of the injury.
The worker’s pain symptoms, which have been present since 2020 and have persisted for six (6) or more months beyond the usual healing time of the injury. The worker achieved MMR on June 3, 2021 and the clinical reports on file support the worker’s reporting of pain of her right upper extremity six (6) or more months beyond the MMR date. As the worker’s pain as it is related to the accepted work-related impairment has persisted for six (6) months or more beyond the usual healing time for the injury, I find this criterion has been met.
- The degree of pain is inconsistent with organic findings:
I find this criterion has not been met, as it requires the degree of pain to be inconsistent with the organic findings. The worker’s right elbow fracture has resulted in a 4 percent NEL rating in June 2021.
The worker was assessed by Dr. Basile at YYY and ZZZ on July 23, 2021, regarding their neck pain, query of cervical radiculopathy, electrodiagnostic studies and neurological consultation. The consultation details the worker’s slip and fall injury at work in July 2020 that resulted in an elbow fracture and required casting but no surgery. The worker reported to developing ongoing right arm, elbow, and neck and shoulder pain along with weakness and numbness of the right arm and hand. Dr. Basile reviewed the MRI of the cervical spine that was taken on May 12, 2021, which identified moderate broad-based posterior disc bulge C5-C6 with mild to moderate spinal canal stenosis. A sensory exam was abnormal with decreased pinprick sensation in the first three (3) digits on the right. Electrophysiological studies were performed that included bilateral upper extremities nerve conduction studies and right arm EMG. Nerve condition studies revealed evidence of bilateral mild median neuropathy at the wrist. There was no evidence of an ulnar neuropathy at the right elbow.
Dr. Basile concluded that worker complained of neck pain, right arm/elbow pain post a work-related injury with a slip and fall on July 11, 2020, and overall, their clinical history, physical examination and electrodiagnostic studies point towards a right-sided chronic C5-6 cervical radiculopathy superimposed on bilateral mild median neuropathy at the wrist. The worker reported they had no neck pain prior to the fall and that they have developed radicular symptoms from the neck down to the right arm after the fall. In addition, a referral to a pain management clinic was recommended.
The medical evidence supports the pain complaints are consistent with the organic findings; however, the organic conditions are non-compensable as outlined in The Pain Clinic report completed by Dr. Mehrabian’s, which included a clinical assessment of September 7, 2021. Dr. Mehrabian’s report noted previous investigations taken of the worker’s cervical spine on May 12, 2021 further to an examination of the worker’s reflexes, special tests, sensory and motor exams and concluded in his assessment that the worker has chronic pain due to spondylosis and right C5/6 radiculopathy and bilateral occipital neuralgia.
A neurosurgeon spine surgeon Dr. Jha saw the worker on October 21, 2021, for consultation for right chronic C5-C6 cervical radiculopathy. Dr. Jha reviewed the prior diagnostic investigations and conducted a physical examination and opined that the worker’s chief complain of neck and lower back pain as well as paresthesias throughout her head. The worker reported since their slip and fall injury that resulted in a right elbow fracture; they have developed a tingling and pain from their neck and occiput which they are currently receiving pain clinic injections. The worker also reports bilateral shoulder pain with radiating pain extending along their upper extremity from right to left, including bilateral shoulder pain. The worker also reported concerns regarding their ongoing intermittent lower back stiffness and pain that radiates into their lower extremities and includes numbness and tingling sensation diffusely throughout their feet bilaterally. The worker reported sustaining a head injury following a fall in December 2020. The worker was encouraged towards implementing and engaging in conservative measures for symptom management and relief.
In my review of the available information a part of the worker’s degree of pain is caused by the worker’s workplace injury as this remains reflected in the worker’s 4% NEL benefit for the right elbow fracture; however, the medical evidence corroborates the worker’s non-compensable conditions can be attributed to inconsistent organic non-compensable findings and that these impairments remain non-compensable and do not assist me in determining that this criterion has been met in accordance with policy.
- The chronic pain impairs earnings capacity:
In order to meet the fifth criterion, 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.
There is evidence of marked-life disruption related to multiple factors and complaints of pain in other areas not covered in this claim, not solely from the work injury, therefore this condition has not been met.
Further to the worker’s testimony, memo xx and the documentary file, in my review the preponderance of evidence does not support a disruption to all spheres of the worker’s personal, occupational, social, and home life as a result of the worker’s right elbow fracture. As I have already determined the worker’s chronic pain has not been caused by the workplace injury, I find that the circumstances surrounding the impact of the chronic pain condition does not support that the worker meets the fifth criterion.
While the worker representative submitted the worker’s chronic pain impairs their earning capability as their chronic pain is a prolonged and severe disability, I note that this may be the criteria for allowance under a different governing body; however, further to policy 15-04-03, the notion of prolonged and severe disability are not terms to be met for entitlement to be recognized. As not all five criteria are met, the worker’s request for entitlement to CPD under the WSIB’s Chronic Pain Disability policy is denied.
In summary, to allow entitlement to CPD, all criteria for the allowance of CPD have to be met. As noted above, I find not all criteria have been met, and as such, there is no basis to allow CPD in this claim.
As not all five criteria are met, the worker’s request for entitlement to CPD is denied.
CONCLUSION
The worker does not have entitlement to CPD benefits.
The worker’s objection is denied.
June 30, 2022
S. Di Carlo
Appeals Resolution Officer
Appeals Services Division ```mdx