WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 284/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 284/15 BEFORE: M. Crystal: Vice-Chair HEARING: February 10, 2015 at Toronto Oral DATE OF DECISION: February 19, 2015 NEUTRAL CITATION: 2015 ONWSIAT 410 DECISIONS UNDER APPEAL: WSIB ARO decisions dated December 15, 2009 and October 18, 2011 APPEARANCES: For the worker: For the employer: Interpreter: Mr. R. Gosbee, Lawyer Did not participate Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 284/15 REASONS (i) Introduction [1] This appeal was heard in Toronto, on February 10, The worker appeals the decision of Appeals Resolution Officer (ARO) G. Ciccocelli, dated December 15, That decision determined that: i) The worker is not entitled to benefits for reflex sympathetic dystrophy Type II. ii) The worker is not entitled to benefits for chronic pain disability (CPD). [2] The worker also appeals the decision of ARO A. Clark, dated October 18, That decision determined that the worker is not entitled to benefits pursuant to section 147(4) or section 147(14) of the Pre-1997 Act. [3] The worker appeared and was represented by Mr. Roger Gosbee, lawyer. The employer did not participate in the appeal. The worker testified at the appeal hearing. Submissions were provided by Mr. Gosbee. (ii) A synopsis of the case under appeal [4] In this appeal, the worker sustained an injury to her right arm on a disablement or gradual onset basis, and February 6, 1987, was established as the date of accident. At the time of the accident, the worker was employed by the accident employer, a packer and processor of frozen foods. At the hearing, the worker testified that she began her employment with the accident employer about five or six months prior to the date of accident. [5] The worker testified that this employment required her to perform duties which involved packaging frozen food, handling the food products on an assembly line belt, or washing or cutting vegetables and meat. The case materials indicated that the work involved more than eight different identified sets of tasks or jobs. The worker indicated that, like all of her fellow employees, she rotated through a number of different jobs, spending two hours on any given job, before rotating to a different job. She stated that, in this manner, during an eight hour day, she would rotate through four jobs, working on each job for two hours before changing to a different task. The worker was 23 years old in February 1987, and was 51 years old as of the date of the hearing of this appeal. [6] The worker testified that her job duties involved the performance of repetitive movements, and also that the work required her to use her hands in a cold environment, or in cold water. She stated that by February 1987, she was experiencing pain, swelling, tingling and numbness in her right arm, from her neck to her right hand. She testified that her right hand became swollen and discoloured. The case materials included a set of clinical notes prepared by Dr. J. Leong, the worker s family physician, and the notes included an entry, dated February 6, 1987, which indicated that the worker was a packer of frozen food and that she was experiencing pain in her right forearm, shoulder and hand. [7] The worker was referred by Dr. Leong to Dr. A. Mewa, rheumatologist, who prepared a report, dated April 21, 1987, on her condition. The report noted that the worker had increasing paresthesia in the right hand and right arm, that she has colour changes when she works with cold meats and that clinically, she has right carpal tunnel syndrome The report

3 Page: 2 Decision No. 284/15 recommended that the worker use a wrist splint and that she try anti-inflammatory medication. The report also stated that the worker should avoid work until we have resolved the degree of involvement of the median nerve. A further report, dated May 27, 1987, prepared by Dr. Mewa, stated that the worker could not take one of the drugs that had been prescribed for her, because she had become pregnant. The worker testified that her first child was born in January [8] The worker testified that, notwithstanding advice from her physician to lay off work, she continued in the employment, and did not lose much time from work immediately following the onset of her right arm pain. She stated that, on advice from her physician, she was given modified work by the employer, but that the only modification that was made to her work following the onset of her right arm pain, was that she was to carry less weight. She stated that the boxes of frozen food typically weighed about 10 lb., and that the employer indicated that she was to carry only one box at a time, rather than the two boxes that she typically carried prior to her right arm injury. [9] The worker testified that she continued in the employment until Summer 1987, but that her employment duties were causing her to experience pain in her right arm, which she became unable to tolerate, and that she left the employment in August An entry, dated July 22, 1987, in Dr. Leong s clinical notes, stated that the worker had extensor tendinitis [right] elbow and 1 st trimester bleeding. The entry also stated that the worker was to quit working voluntarily. At the hearing, the worker testified that, according to her best recollection, she might have lost one day or so from work due to spotting associated with her first pregnancy, but that this did not affect her decision to stop working in Summer 1987, that this decision was completely related to the painful condition of her right arm, and that the decision was made with advice from Dr. Leong. [10] The worker testified that, following her decision to leave her employment with the accident employer, and the birth of her first child, she remained at home and carried on as a stay-at-home mom. She stated that she applied for Employment Insurance (EI) sickness benefits, and the case materials included a form, dated October 16, 1987, completed by Dr. Leong, in support of her application to EI. The form stated that the worker had been off work since August 7, 1987 due to illness and asked whether the worker was employable, and, if not, what are the medical reasons?. Dr. Leong indicated on the form that the worker continued to complain of pain and numbness in the right hand and that she was not able to work in her present job because she was not able to immerse her hands in cold water all day. The worker indicated that, after some delay, she received EI sickness benefits for 15 weeks, some of which may have been paid after the birth of her child in January [11] The worker testified she looked for work on a casual basis after the birth of her first child, but that she did not register with Canada Manpower, and she continued in this manner, browsing newspapers for employment ads, after the birth of her second and third children, who were born, respectively, in 1989 and She stated that while she remained at home caring for her children, she was limited in her domestic activities and other activities of daily living, by the ongoing pain and numbness in her right arm, but that, because she was able to perform activities at her own pace, she was able to manage her domestic responsibilities. She stated that during this period, her mother and sister frequently assisted her with caring for her children, and that she refrained from certain domestic activities such as vacuuming or heavy lifting with the right arm, which were performed by her husband or other family members. She also stated that as her

4 Page: 3 Decision No. 284/15 children became older, starting at a young age, they assisted her with her domestic activities, helping with tasks such as carrying and sorting laundry. [12] The worker testified that during the several years following the end of her employment in 1987 she continued to experience ongoing pain and numbness in her right arm, although with assistance from other family members, she was able to manage her activities of daily living and her domestic responsibilities. The clinical notes prepared by Dr. Leong include several references to the worker s ongoing condition of her right arm, although the materials do not indicate that the worker sought any specific medical treatment, or treatment from a specialist, for her right arm condition during the period from 1987 until about [13] The worker testified that in or about 1995, she was interested in finding out about training opportunities that might be available to her, to assist her in returning to the active workforce. She testified that she spoke to Dr. Leong about this subject, and he suggested that the worker contact her Member of Provincial Parliament (MPP) to determine whether any such training opportunities might be available to her. The worker testified that she spoke to one of her MPP s constituency office assistants, who advised her to contact the Board for assistance, and to make an accident claim, given that it appeared that her condition had arisen from her employment. The worker testified that, prior to the discussion with her MPP s office, particularly in light of the fact that she had not had a specific identifiable accident on a particular date, it had not occurred to her that she could make an accident claim to the Board. [14] The worker subsequently made a claim to the Board and Dr. Leong filed a Physician s First Report (Form 8), dated May 9, 1995, which indicated that, since 1987, the worker had an injury to her right hand, which appeared to be carpal tunnel syndrome, and which developed as a result of her employment. The report indicated that that the worker was unable to perform repetitive work with her right hand. The worker followed up with Dr. Mewa, who indicated in a report, dated June 13, 1995, that the worker was complaining of increasing right shoulder, scapular, myofascial arm pain with numbness and that the numbness and parasthesiae is in the whole hand. The report also stated that the worker was exquisitely painful in the right myofascial parascapular region in the mid scapular spine, which is a typical trigger point site. [15] The worker was also seen by Dr. R. S. Yufe, neurologist, who indicated in a report, dated July 6, 1995, that the worker was complaining of pain in her right arm, right shoulder and forearm, that she tends to drop things and complains of swelling and weakness in the hand and that she has had these symptoms for 7 to 8 years. The report indicated that the worker reported that she had been diagnosed with carpal tunnel syndrome (CTS) seven years previously, although Dr. Yufe stated that he did not see signs of CTS and her symptoms would not be compatible with this. [16] Following investigation by the Board, the Board allowed the worker s entitlement to benefits for her 1987 work injury, and referred her for an assessment to determine her level of entitlement to a permanent disability (PD) award for her right arm injury. The worker was seen on March 24, 1997, by Dr. W. Maehle, the Board s medical consultant, for a PD assessment. According to the memo prepared by Dr. Maehle, the worker was found to have regional pain syndrome involving her right arm and mild right carpal tunnel syndrome. He recommended that the worker be awarded a 3% PD award for the right shoulder as well as an additional 3% award for the right CTS. Dr. Maehle also indicated that:

5 Page: 4 Decision No. 284/15 The diagnosis in this case can only be described as regional pain syndrome involving the right arm, with reduced range of movements. Also present is a mild right CTS, with normal EMG studies but with a very strong history suggestive of median nerve neuropathy. [17] For reasons which do not appear to be explained in the case materials (and in relation to which the worker stated she was not aware), on May 26, 1997, the worker underwent a further PD examination that was conducted by Dr. D. Y. Sutherland, another Board medical consultant. Dr. Sutherland s examination note stated that the worker s diagnosis is probably regional pain syndrome. In a further memo, of the same date, Dr. Sutherland stated that the earlier 6% PD award appears appropriate and that it would appear that the patient has had the symptoms since the time of the accident in The memo also stated he would not place any medical restrictions on this file, but did not provide any further explanation for this view. Dr. Sutherland also indicated that the worker was entitled to full arrears back to the date of accident, which was a change from the award recommended by Dr. Maehle, who had recommended arrears only back to October 1995, when Dr. Leong filed a report in support of the worker s accident claim. [18] Between the time, in 1995, when the worker made a claim for her 1987 accident, and her PD assessments in 1997, referred to above, the worker sustained injuries to her neck and low back as a result of a motor vehicle accident (MVA) that occurred on July 30, At the hearing, both the worker and her counsel acknowledged that the 1996 MVA had a significant impact on her ongoing health and level of disability. She stated that following the MVA, as a result of insurance benefits, a housekeeper provided assistance with her domestic responsibilities. A number of medical reports were prepared after the MVA for the purpose of informing the issue of the worker s level of entitlement to damages arising from the worker s injuries which could be attributed to the MVA. A report, dated February 7, 1997, addressed to an insurance adjuster, was prepared by Dr. K. A. Massiah, orthopaedic surgeon, at a Designated Assessment Centre (DAC). The report referred to the worker s work accident in 1987, noting that, since her work injury, the worker required help from husband with respect to mopping and vacuuming, but indicated that prior to the MVA, the worker did everything except for cleaning her floors and vacuuming. The report noted that since the MVA, she was capable of very little activity, that even taking the children for a walk exceeded her abilities, and that her husband or babysitter looked after most of the worker s child care and domestic responsibilities. The report concluded, however, that the worker s injuries were soft tissue injuries which should have resolved after six to eight weeks, and that the worker was no longer disabled from performing her activities of daily living. [19] The case materials included a further report, dated March 19, 1997, from Dr. D. J. Ogilvie-Harris, orthopaedic surgeon, addressed to a law clerk, with a legal services organization. The report prepared by Dr. Ogilvie-Harris, referred to the worker s ongoing difficulties with her child care and domestic responsibilities since the MVA, and stated that the worker currently has more limitations than she did prior to the accident [i.e., the MVA]. The report also indicated that the worker tested positive at fourteen out of the eighteen points that are tested in assessing for fibromyalgia, and that this, together with emotional/psychological issues and sleep disturbance suggest she has the fibrositis or fibromyalgia on a post-traumatic basis. The report concluded by noting that, notwithstanding the fact that the worker had a preexisting regional pain syndrome on the right, it was Dr. Ogilvie-Harris view that the motor

6 Page: 5 Decision No. 284/15 vehicle accident caused soft tissue injuries to the cervical and lumbar spine plus the development of the post-traumatic fibrositis or fibromyalgia syndrome. [20] As noted above, in his decision dated December 15, 2009, the ARO determined that the worker was not entitled to benefits for CPD or reflex sympathetic dystrophy Type II. In relation to the question of whether the worker is entitled to benefits pursuant to section 147(4) and 147(14) of the Pre-1997 Act, the ARO directed the Board s operating area to carry out a new LMR assessment for reconsideration of section 147(2) or (4) eligibility and that the review should capture pre-february 6, 1987 workplace injury impacts. The ARO decision went on to state: Eligibility for section 147(2) entitlement should be reconsidered following the completion of the LMR [labour market re-entry] re-assessment. If the new SEB [suitable employment or business] option and associated LMR activities would have approximated the worker s pre-injury escalated earnings, the worker s declared TTD [temporary total disability]/ unavailability would bar her from section 147(2) entitlement. This would not allow for default to section 147(4) entitlement. If however the LMR re-assessment supports the worker would not have approximated her pre-injury escalated earnings, section 147 (4) and (14) eligibility would be appropriate. [21] The Board subsequently retained a private sector service provider to conduct the LMR assessment, as directed by the ARO, and an LMR Plan Proposal and Assessment, dated February 20, 2010 was prepared. This document stated that in keeping with the outcome of the initial meeting it did not appear that the worker would benefit from LMR participation and the service provider s primary recommendation was that the worker does not present as a suitable candidate for LMR activity. The report went on to state, however, that in regards to the appeals decision, given that the worker had had some limited experience working at her father s small shoe repair store, in the late 1980s [the worker] may have been able to earn minimum wage in a retail sales SEB option. The report went on to identify Retail Sales Clerk as the worker s SEB #2 alternative SEB for cost comparison purposes only. [22] The report went on to indicate that if the worker was to pursue this SEB, specific subject matter courses or training may be required, which included 39 weeks of academic upgrading, a six week Retail Associate Training Program, and a four week Job Search Training Program. The report indicated that the wage of $10.25/hour as per the anticipated minimum wage as of the date of LMR completion is regarded as the most reasonable entry level wage for this worker. The report also indicated that the worker would have barriers to achieving these earnings in that she suffered from chronic pain and fibromyalgia, which might make LMR or work activity difficult. [23] Upon the completion of the worker s LMR assessment in 2010, the LMR assessment document was reviewed by the Board s case manager. The case materials included a Board memo, dated April 8, 2010, addressed to a manager at the Board, prepared by the worker s case manager. The memo stated, at its conclusion: Conclusion Based on the LMR re-assessment Retail Sales Clerk, SEB earnings are $ Pre-injury escalated earnings are $12.29 per hour. As SEB outlined would not approximate pre-injury earnings, recommend allow 147(4) from July 26 [sic July 26, 1989?]

7 Page: 6 Decision No. 284/15 Your opinion [please]. [24] The case materials included a further memo, dated April 16, 2010, prepared by the manager to whom the previous memo had been addressed. That memo noted that the the forecasted wage at the end of the identified LMR activity would be $10.25 and that according to the case manager s memo, referred to immediately above, the worker s escalated pre-accident earnings for 40 hours per week are $12.29 / hour. The manager s memo concluded by stating: The worker has continued to indicate that she is not available or able to work, and has not returned to any form of work since August 7, Based on the Appeals decision, that the review should capture pre-february 6, 1987 (preaccident) conditions and accepted February 6, 1987 workplace impacts only, I feel that the worker with the assistance of LMR, would approximate her earnings, so this would bare [sic] us from paying benefits under Section 147(4). Please advise the worker and her representative regarding the above. [25] At the hearing, the worker indicated that she has been in receipt of Canada Pension Plan (CPP) disability benefits since about 2005, and that according to her best recollection, the 2005 award included arrears back to about (iii) The issues under appeal [26] The issues to be determined in this appeal are: i) Whether the worker is entitled to benefits for CPD; and ii) Whether the worker is entitled to benefits pursuant to section 147(4) and 147(14) of the Pre-1997 Act. [27] As noted above, the ARO decision, dated December 15, 2009, which is the subject of this appeal, also determined that the worker was not entitled to benefits for Reflex Sympathetic Dystrophy (RSD) type-ii. On this basis, the Tribunal sent a Hearing Ready Letter, dated September 19, 2013, to the worker s former representative, which indicated that one of the issues under appeal in this proceeding was Entitlement for Reflex Sympathetic Dystrophy (RSD) type- II. As a preliminary matter, at the hearing held on February 10, 2015, I discussed with the worker s current representative, whether worker wished to appeal the ARO determination that she was not entitled to benefits for RSD. [28] In discussing this preliminary matter, the worker s representative indicated that, in considering entitlement for RSD, previous Tribunal decisions had allowed entitlement to benefits for RSD pursuant to the Board s policy document on the subject of CPD, and that to the extent that the worker is seeking entitlement to benefits for RSD in this appeal, she was seeking entitlement to benefits for RSD pursuant to the CPD policy. The worker s representative indicated that he agreed that, to be successful in obtaining entitlement to benefits for RSD pursuant to the CPD policy, it would be necessary for the worker to demonstrate that she met the criteria for entitlement to benefits for CPD, as included in the Board s policy on CPD. [29] Since the issue of entitlement to benefits for CPD was already an issue on the issue agenda for this appeal, after discussing the matter with the worker, the worker s representative indicated that the worker wished to withdraw her appeal in relation to entitlement specifically for RSD. He noted that if the criteria for CPD were met in the worker s case, the worker would be

8 Page: 7 Decision No. 284/15 successful in obtaining benefits for CPD, and if the criteria were not met, the worker would not be successful, regardless of the presence of a diagnosis of RSD. Accordingly, the worker would not benefit from the adjudication of entitlement to benefits for RSD in addition to CPD, and the worker wished to withdraw her appeal in relation to RSD and to pursue her appeal in relation to CPD. The representative also indicated that the worker understood that if, in the future, she wished to restore the issue being withdrawn from the issue agenda, the worker would be subject to the provisions of the Workplace Safety and Insurance Act, 1997, which impose time limits for appeals. [30] In these circumstances, I agreed to permit the worker to withdraw the issue of entitlement to benefits for RSD from the issue agenda for this appeal. (iv) Applicable law and policy [31] The workplace accident which is the subject of this appeal occurred on a disablement basis and, February 6, 1987, was established as the date of accident. Accordingly, the worker s entitlement to benefits in this appeal is governed by the Pre-1989 Act. [32] As noted above, in this appeal, the worker is seeking entitlement to benefits for CPD. The Board s Operational Policy Manual Document No sets out the Board s criteria for entitlement to benefits for CPD. Those criteria require evidence of: a work-related injury chronic pain which is continuous, consistent and genuine pain being caused by the workplace accident pain persisting for six or more months beyond the usual healing time for the injury pain inconsistent with organic findings pain that impairs earning capacity, as evidenced by marked life disruption. [33] In this appeal, the worker is also seeking entitlement to benefits pursuant to section 147(4) and 147(14) of the Pre-1997 Act. [34] Section 147(4) of the Pre-1997 Act, provides: 147. (4) Subject to subsections (8), (9) and (10), the Board shall give a supplement to a worker, (a) who, in the opinion of the Board, is not likely to benefit from a vocational rehabilitation program in the manner described in subsection (2); or (b) whose earning capacity after a vocational rehabilitation program is not increased to the extent described in subsection (2) in the opinion of the Board. [35] Section 147(2), which is referred to in section 147(4), states: (2) Subject to subsections (9) and (10), the Board shall give a supplement to a worker who, in the opinion of the Board, is likely to benefit from a vocational rehabilitation program which could help to increase the worker's earning capacity to such an extent that the sum of the worker's earning capacity after vocational rehabilitation and the amount

9 Page: 8 Decision No. 284/15 awarded for permanent partial disability approximates the worker's average or net average earnings, as the case may be, before the worker's injury.. [36] Section 147(14) states: (14) The Board shall pay an additional $200 per month to a worker who is receiving an amount awarded for permanent partial disability or who received a lump sum commuted from such an amount if the worker is entitled to a supplement under subsection (4) or would be but for subsection (7). [37] The Board s policy on entitlement to Pre-1990 Pension Supplements pursuant to section 147(4) is included in Operational Policy Manual Document No , which states in part: Policy A worker with a pre-1990 injury is entitled to a full supplement under s.147(2) if that worker would benefit from a Labour Market Re-entry (LMR) plan, and co-operates in one. If a worker is unable to benefit from an LMR plan or following completion of an LMR plan, did not increase his/her earning capacity to the extent expected, that worker may be entitled to a supplement under s.147(4). The amount of either supplement is determined by a calculation formula. Guidelines. General eligibility for s.147 supplements Workers injured before January 2, 1990 who receive a permanent disability benefit after July 26, 1989 may be entitled to supplements under s.147 of the pre-1998 Act.. In many cases, both work-related and non-work-related impairments exist in a claim. To consider a worker for a s.147 supplement, the decision-maker must ensure that the worker's wage loss is at least partially related to the work injury. (v) Analysis (a) Entitlement to benefits for CPD [38] In the circumstances of this appeal, the worker has been diagnosed with RSD. I note that Dr. Maehle, the Board s medical consultant, carried out a PD examination of the worker on March 24, 1997, and the memo that he prepared following the examination stated that, The diagnosis in this case can only be described as regional pain syndrome, involving the right arm, with reduced range of movements. The worker underwent a further PD examination on May 28, 1997, conducted by Dr. D. Y. Sutherland, another of the Board s medical consultants, and that the memo prepared following the examination stated Diagnosis is probably regional pain syndrome. [39] I note that the Tribunal has published a Medical Discussion Paper, dated April 2010, prepared by Dr. Anthony Weinberg, entitled Complex Regional Pain Syndrome (RSD Reflex Sympathetic Dystrophy). The paper states, at page 1: Etiology The origins of the condition are at present unknown or at the very least disputed. Injury resulting in immobilization of the limb appears to be a common initiator but thereafter the mechanisms of injury are unclear.

10 Page: 9 Decision No. 284/15 A role for the autonomic nervous system is suggested by the thermal and sudomotor features of the disorder. This has led to its previous description as Reflex Sympathetic Dystrophy and the abnormality attributed to development of an abnormal reflex arc. [40] On the basis of this information, I conclude that, for the purposes of this appeal, the terms Reflex Sympathetic Dystrophy (RSD) and Complex Regional Pain Syndrome, describe the same medical condition, and that both Dr. Maehle and Dr. Sutherland accepted the worker s diagnosis of RSD. [41] I have also taken into account Tribunal jurisprudence which has indicated that a worker diagnosed with RSD may be provided with compensation awarded pursuant to the Board s policy on CPD. In this regard, Decision No. 52/09 states, beginning at paragraph 37: The Panel finds that it is in agreement with the more recent line of cases in the Tribunal s jurisprudence which consistently considers Reflex Sympathetic Dystrophy as a syndrome which is very similar to Chronic Pain Disability and which should be assessed under the Board s Chronic Pain Disability guidelines [42] This approach of providing workers who have been diagnosed with RSD, or complex regional pain syndrome, with compensation pursuant to the Board s policy on CPD has been followed in many Tribunal decisions (see Decision No. 1093/07, Decision No. 1026/04 and Decision No. 1542/11, among others), and is appropriate in the worker s case. Notwithstanding the presence of a diagnosis of RSD, or complex regional pain syndrome, however, in order to be entitled to benefits pursuant to the Board s policy on CPD, it is necessary to demonstrate that the worker s case meets the criteria set out for entitlement under that policy. The criteria are noted above. [43] In the worker s case, entitlement for the accident of February 6, 1987 has been accepted by the Board, and initial entitlement for the accident is not contentious. Accordingly, I find that there is evidence that the worker sustained a work related injury. [44] To be successful in obtaining entitlement to benefits for CPD, it must also be demonstrated that the worker has experienced pain associated with her work injury which has been continuous, consistent and genuine. A confounding factor in this appeal is the injury that the worker sustained as a result of the July 1996 MVA, which affected the worker s neck and low back. In the analysis set out below, I will address the question of whether the worker s pain was caused by her work injury, and consider whether this criterion has been met, in light of the fact that the MVA appears to have been a significant source of her pain, subsequent to its occurrence. In the context of the instant criterion, however, I will consider whether the worker s pain, which can be associated with her work injury, was continuous, consistent and genuine, within the meaning of the policy document. [45] A factor which simplifies the assessment of the worker s pain associated with her work injury, is the fact that the pain apparently caused by the work injury was confined to the worker s right arm, from her shoulder to her hand. From the medical information on file, it does not appear that the worker sustained any significant injury to her right arm as a result of the MVA. Accordingly, it is relatively straightforward to assess the nature of the pain that the worker experienced as a result of the work injury, as opposed to pain that resulted from the MVA, in that I find that the right arm pain is related to the work injury, and the worker s neck and low back pain, as well as the more diffuse body pain that was experienced by the worker, probably associated with the worker s fibromyalgia, are more likely related to the MVA. I note that a

11 Page: 10 Decision No. 284/15 diagnosis of fibromyalgia was not considered in the worker s case until after the occurrence of the MVA. [46] I find that the medical information on file supports a finding that the worker experienced pain associated with her work injury, which was continuous, consistent and genuine, within the meaning of the policy document. Dr. Leong s entry in clinical notes, dated February 6, 1987, the established date of accident, stated that the worker experienced pain in the right arm, that the right arm was falling asleep all the time, and that the worker was complaining of pain in the right shoulder, forearm and hand. Dr. Mewa, a rheumatologist to whom the worker was referred by Dr. Leong, also indicated in a report, dated April 21, 1987, that the worker presented with increasing paresthesia in the right hand and right arm and that the worker had colour changes when she works with cold meats. [47] A further entry in the notes, dated July 22, 1987, states that in addition to the fact the worker had some trimester bleeding associated with her pregnancy at the time, that the worker had right elbow pain, and that she was going to quit working voluntarily. Dr. Leong also completed a form, dated October 16, 1987, in support of the worker s application for EI sickness benefits, which indicated that the worker continued to complain of right hand pain, and that she was not able to work. [48] At the hearing, the worker testified that, after she quit work, she gave birth to her first child in January 1988, and that she carried on with her domestic responsibilities as best she could, giving birth to two more children, during the next few years. She testified, however, that during the period from 1987, when she left work, until 1996, when she had the MVA, she continued to experience pain in her right arm, and was limited in the manner in which she was able to function. The case materials include Dr. Leong s clinical notes during this period, and although the notes disclose that the worker was experiencing other difficulties during this period, in particular, problems with polyps in her sinuses, the notes also disclose that, from time to time, the worker complained to Dr. Leong about her right arm and shoulder pain. I note that the notes include entries made in 1987, 1989, 1995 and 1996 which refer to the worker s ongoing right arm pain. [49] Further, in 1995, after the worker made a claim to the Board for her right arm injury, but before the MVA, further medical information was produced, which supports a finding that the worker was experiencing right arm pain. Dr. Mewa s report, dated June 13, 1995, referred to the worker having increasing right shoulder, scapular, myofascial arm pain, with numbness. Perhaps more notably, Dr. Yufe, the worker s neurologist stated in his report, dated July 6, 1995, that the worker was complaining of pain in her right arm, right shoulder and forearm and that she has had these symptoms for 7 to 8 years. [50] I am satisfied that the worker experienced continuous and consistent right arm pain between 1987 and 1996, based on a combination of the medical information on file, and the worker s testimony. The worker testified that during this period, she had good days and bad days, but that during this period, she experienced right arm pain consistently, that she refrained from heavy household work, and that she required assistance from her mother and sister to care for her children. [51] As I have noted, the worker sustained significant injuries as a result of the MVA in July 1996, however, the medical information prepared after the MVA recognizes the worker s right arm pain as an entity which was distinct from the MVA injuries. The worker was seen by

12 Page: 11 Decision No. 284/15 Dr. Stewart Wright, orthopaedic surgeon and S. Lincoln-Poupore, physiotherapist, at the Regional Evaluation Centre (REC) at the Orthopaedic and Arthritic Hospital, and their report, dated October 24, 1996, although referring to and acknowledging the worker s recent MVA, focused on the worker s right arm symptoms. The report stated that the worker reported that right arm symptoms have remained relatively unchanged since 1987 and that the worker s condition would best be described as a regional pain syndrome in her right arm. [52] Following the MVA in 1996, the worker underwent an insurer s examination that was conducted by Dr. James Pfaff, for the purposes of determining the worker s injuries in relation to the MVA. The report stated that prior to the accident [i.e., the MVA] the client had a preexisting problems with her right shoulder, that limited her reaching and lifting activities with her right arm. The report also stated that, When questioned concerning any changes in her right shoulder symptoms she indicated the accident [i.e., the MVA] had not really affected her problem there in any significant way. [53] I also note that, significantly later in the claim history, Dr. Leong provided a report, dated January 17, 2006, which emphasized the fact that the worker continues to have significant pain and loss of function in her right shoulder and carpal tunnel syndrome of her right wrist due to the repetitive work injury in 1986 [sic -1987?]. The report stated that it is my opinion that ninety percent of her present condition is due to her WSIB injury. Although I do not fully accept Dr. Leong s statement that ninety percent of her present condition is due to her WSIB injury, I accept the report to support a finding that the worker s 1987 work injury, which affected the right arm, remained as a significant source of pain and disability both during and after the period of her recovery from the 1996 MVA. [54] At the hearing, the worker testified that, since 1987, her right arm pain has been consistently present, although she has good days and bad days in relation to the arm pain. There is no medical information which suggests that her right arm pain is not genuine, and the fact that her pain has been accompanied by colour changes in the arm, also supports the conclusion that the right arm pain is genuine. I am satisfied that the worker s pain associated with her 1987 work injury has been continuous, consistent and genuine since the date of accident. [55] The policy document also requires evidence that the worker s pain was caused by the accident. As I have noted above, the 1996 MVA is a confounding factor in this appeal, and a significant reason for the Board s denial of entitlement for CPD in this case, is the Board s conclusion that the worker s ongoing pain should be attributed to the MVA, and that in the context of the worker s post-mva status, the work injury did not contribute significantly to her pain condition. [56] After the MVA, the worker developed pain symptoms in her neck and low back, but perhaps most notably, in keeping with the report, dated March 19, 1997, prepared by Dr. Ogilvie-Harris, the worker developed fibrositis or fibromyalgia on a post-traumatic basis. I interpret the report to mean that the worker developed fibromyalgia after the MVA, and that the worker s diffuse body pain associated with the fibromyalgia should be related to the MVA, rather than to her 1987 work injury. Given that, prior to the MVA, the medical information does not disclose any symptoms associated with the worker s fibromyalgia, I agree that the fibromyalgia is not related to the worker s work injury. [57] Nevertheless, I am satisfied that the worker s work injury caused the worker to experience ongoing chronic pain from 1987 onward. This is supported by the medical evidence

13 Page: 12 Decision No. 284/15 which I have referred to above and which indicated that the worker consistently and continuously experienced right arm pain which can be attributed to her work injury. Although the diffuse body pain, associated with fibromyalgia, cannot be attributed to the work accident, the worker s regional right arm pain does not appear to have been significantly affected by the MVA, and it is the regional right arm pain that I have considered in the context of entitlement to benefits for CPD. As I have noted above, the medical information distinguishes the worker s right arm pain, from her more generalized pain associated with fibromyalgia. I am satisfied that the worker s regional right arm pain, which persisted notwithstanding the presence of fibromyalgia, was caused by the work injury. On this basis, I conclude that the criterion that the worker s pain must be caused by the work injury, has been satisfied. [58] It is apparent to me that that the worker s pain associated with her work injury has persisted for more than six months beyond the usual healing time for her injury. Apart from the complicating considerations associated with the development of RSD (or a regional pain syndrome), on its face, the injury was essentially a strain injury associated with repetitive overuse of the arm in the first part of Such an injury would be expected to heal in a few months. From the medical information set out above in relation to the criterion that the worker s pain be been continuous, consistent and genuine, it is apparent that the worker s right arm pain has persisted from 1987, until the time of the 1996 MVA, and on an ongoing basis since then. I am satisfied that the worker s pain associated with her work injury has persisted for more than six months beyond the usual healing time. [59] I am also satisfied that the worker s level of pain has been inconsistent with her organic findings. In relation to her right arm pain, the worker does not have significant organic findings. Dr. Mewa s report, dated April 21, 1987, noted that x-ray fails to show any significant abnormalities, that there did not appear to be any neck involvement, which would be expected if the worker s right arm condition was related to a neurological abnormality. The report indicated that the worker likely had CTS, however, in a subsequent report, dated May 27, 1987, Dr. Mewa indicated that EMG findings did not disclose median nerve abnormality. A later report, dated July 6, 1995, prepared by Dr. Yufe, neurologist, also indicated that EMG findings were normal, that examination of the upper limbs revealed normal power, and that both the EMG findings and the worker s clinical symptoms were not compatible with CTS. [60] On the basis of the medical information on file, I am satisfied that the worker did not have any significant organic findings which could explain her right sided regional pain syndrome, and that the criterion that the worker s pain must be inconsistent with her organic findings is satisfied. [61] I have also considered whether the worker has experienced pain as a result of her work injury, that impairs earning capacity, as evidenced by marked life disruption. On this point, I find that the most relevant period is the period from 1987 until the July 1996 MVA. After the MVA, it is clear that the worker experienced marked life disruption as a result of the injuries she sustained from the MVA, and after 1996, when the worker began experiencing neck and low back pain, as well as diffuse body pain related to fibromyalgia, all attributable to the MVA, it is difficult to separate the marked life disruption associated with the work accident from that associated with the MVA. I find, however, that the marked life disruption that was present before the MVA should be attributed to the work accident. I also find that the extent of the worker s pre-1996 marked life disruption, having persisted for almost ten years from 1987 to 1996, would likely have persisted in the same manner beyond 1996, had the MVA not occurred.

14 Page: 13 Decision No. 284/15 The worker testified, and the medical information indicated, that the MVA did not have a significant effect upon the ongoing regional pain syndrome. [62] As I have indicated in the portion of these reasons, above, which addressed whether the worker s pain was continuous, consistent and genuine, from 1987 until 1996, the worker experienced limitations related to her ability to maintain employment and related to her activities of daily living. In this regard, I find that: The worker s regional right arm pain was a significant factor which caused her to leave her employment in August 1987; From 1988 until the time of the MVA, the worker required assistance from her mother and her sister to care for her children; From 1988 until the time of the MVA, the worker was not able to perform heavy domestic duties, such as heavy cleaning or vacuuming her floors; and In 1995, before the MVA, the worker believed that she would need retraining in order to obtain suitable employment, and she discussed this with Dr. Leong. [63] Notwithstanding these factors, it is apparent that from 1987 to 1996, although the worker experienced some marked life disruption, the worker was able to carry on, albeit with some difficulty, looking after her children and being a stay-at-home mother. This is also apparent from some of the medical information that was prepared after the MVA, referred to above, which addressed the worker s pre-mva status. I do not interpret the policy document to require that, to be entitled to benefits for CPD, it must be demonstrated that worker s life was devastated, or that her pain completely prevented any regular activities. Based on the factors set out above in bullet points, I am satisfied that the worker experienced marked life disruption as a result of her 1987 accident, to an extent that satisfies the entitlement criteria. I also find, in keeping with Dr. Leong s report, dated January 17, 2006, that the worker continued to experience difficulties related to her right sided regional pain syndrome after the MVA, notwithstanding the fact that the MVA injuries also contributed to the worker s marked life disruption after I have also taken into account a report, dated January 28, 2009, prepared by Dr. Steve Blitzer, which stated that: The MVA she had 10 years later [after the work injury] injured different distinct areas. She still had ongoing disability related to her shoulder and upper extremity all along. [64] Further, as is note below, in the discussion of entitlement pursuant to section 147(4), the Board carried out an LMR assessment of the worker in February 2010, at the direction of the ARO, who requested the assessment to determine the worker s earning capacity and to capture pre-february 1987 conditions and accepted February 6, 1987 workplace injury impacts. The LMR Plan indicated that, given the worker s limitations in relation to the use of the right arm, and her limited transferable skills, with training and upgrading, the worker could obtain employment in the field of retail sales, with earnings of $10.25 per hour. The case manager s memo, dated April 8, 2010, indicated that the worker s pre-accident escalated earnings were $12.29 per hour. This supports a finding that the worker s earning capacity was impaired by her work injury. [65] On the basis of this evidence, I am satisfied that the worker s earning capacity has been impaired by the pain associated with her work injury, and that she has experienced marked life disruption, as a result of the work injury. Although it is apparent that the 1996 MVA also

15 Page: 14 Decision No. 284/15 contributed to worker s impaired earning capacity and her marked life disruption, I am satisfied that the 1987 work injury contributed significantly to the impairment of her earning capacity and to her marked life disruption. [66] Accordingly, I find that the worker meets all of the Board s criteria for entitlement to benefits for CPD, and that she is entitled to benefits for CPD. The chronic pain condition that the worker has experienced as a result of her work injury has persisted since 1987, and I am satisfied that it represents a permanent condition. The Board is directed to carry out an assessment of the worker to determine her level entitlement to a PD award for CPD. (b) Entitlement to benefits pursuant to section 147(4) and 147(14) [67] In keeping with the Board s policy document, referred to above, a worker who is in receipt of a PD award will be entitled to a supplementary benefit pursuant to section 147(4) if: The worker would not benefit from vocational rehabilitation (VR) services to the extent contemplated by section 147(2) (i.e., so that the worker s earning capacity after VR services, plus the quantum of her PD award, would approximate her preaccident earnings), and The worker s wage loss can be attributed, at least in part, to the work injury. [68] In this case, the ARO directed the Board s operating area to arrange an assessment of the worker, for the precise purpose of determining the worker s post-accident earning capacity after VR services had been provided. The direction also required the assessment to take into account the impacts of the 1987 work accident, notwithstanding the occurrence of the MVA in [69] As a result of the assessment, the LMR service provider determined that, after LMR services which would be appropriate in the worker s case were provided, the worker would be able to earn $10.25 in a retail sales position. The LMR assessment document noted that, in fact, a retail sales position would probably not be suitable for the worker, but that the information was being provided for cost comparison reasons only. [70] When this information was provided to the Board s case manager, the case manager indicated in a memo that the worker s pre-accident escalated earnings were $12.29 per hour, and that the post-vr/lmr earnings would not approximate the worker s escalated pre-accident earnings. On this basis, the case manager recommended that the 147(4) supplement should be awarded to the worker from July 26, 1989, the date when the supplement first became available as a benefit under the Act. [71] This information was reviewed by one of the Board s manager s, however, who stated in a memo, dated April 6, 2010: Based on the Appeals decision, that the review should capture pre-february 6, 1987 (preaccident) conditions and accepted February 6, 1987 workplace impacts only, I feel that the worker with the assistance of LMR, would approximate her earnings, so this would bare [sic] us from paying benefits under Section 147(4). [72] The manager did not provide reasons for her conclusion that, with the assistance of LMR services, the worker would be able to approximate her pre-accident earnings. If the manager concluded that the LMR assessment that was carried out at the direction of the ARO, came to an inappropriate conclusion about the worker s probable post-lmr earning capacity, the manager provided no reasons for this view, and I am not able to agree with it. In the absence of reasons to