WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 438/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 438/16 BEFORE: S. Netten : Vice-Chair B. M. Young : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: February 10, 2016 at Ottawa Oral DATE OF DECISION: March 10, 2016 NEUTRAL CITATION: 2016 ONWSIAT 635 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer decisions dated June 14, 2013, October 30, 2013 and March 31, 2015 APPEARANCES: For the worker: For the employer: Interpreter: J. Meleras, Lawyer Not participating None 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. 438/16 REASONS (i) Issues [1] The issues under appeal are as follows: 1. Recognition of a permanent impairment of the right shoulder; 2. Entitlement to fibromyalgia as a secondary condition; 3. Entitlement to loss of earnings (LOE) benefits beyond April 17, (ii) Overview [2] The worker, then a personal support worker (PSW), slipped and fell on ice after assisting a client onto a bus on November 29, Her physician reported a neck strain as well as soft tissue injuries to the right shoulder and hip. The worker returned to modified clerical duties in April Although she only worked 12 hours per week, her employer continued paying her for 35 hours of work, being her average weekly hours immediately prior to the accident. The worker has not received any LOE benefits in this claim. [3] In March and April 2009, a Case Manager reviewed the file and determined that the worker had a permanent neck impairment for which maximum medical recovery (MMR) had been reached on March 30, LOE benefits were denied at that time on the basis that the worker was continuing with modified work as arranged by the employer, with no loss in pay. However, with the intervention of a non-compensable motor vehicle accident (MVA) on April 17, 2009, the worker stopped working entirely and her employer discontinued her salary. The worker received a 21% non-economic loss (NEL) award for the neck in January She received income replacement benefits from the accident insurer from April 2009 to December She has not returned to work. [4] In July 2011, the Case Manager denied a request from the worker s representative, Mr. Meleras, for fibromyalgia. The denial of LOE benefits beyond April 2009 was reiterated in September A different Case Manager declined to recognize a permanent right shoulder impairment, in June The worker s objections to these decisions were denied by Appeals Resolutions Officers in June 2013, October 2013 and March [5] The worker now appeals these issues to the Tribunal. (iii) Legal framework [6] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. 1 This was subsequently reduced by 50% on the basis of a pre-existing condition, after the worker s entitlement had been adjusted to a permanent aggravation of pre-existing cervical spine dysfunction in September The Board did not recover the overpayment from the worker. The worker did not appeal the Appeal Resolution Officer s confirmation of such entitlement to the Tribunal, and it is of no significance to the matters presently under appeal.

3 Page: 2 Decision No. 438/16 [7] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Permanent impairment of the right shoulder [8] The Panel finds on a balance of probabilities that the worker s compensable fall did not result in a permanent right shoulder impairment, claimed to be an unresolved strain with tendinosis. [9] As defined in section 2(1), a permanent impairment includes a physical or functional abnormality or loss which continues to exist after MMR. While Mr. Meleras submitted that MMR had occurred in March 2009, the Panel notes that this finding related specifically to the neck. No determination has been made by the Board on maximum medical recovery for the right shoulder. [10] The Panel is persuaded that the worker, more likely than not, did not have an ongoing right shoulder impairment following the compensable accident. We rely upon the lack of objective findings or diagnosis of a continuing organic right shoulder strain or tendinitis in the medical reporting beyond early or mid [11] The worker s physiotherapist noted symptoms and abnormal signs in the right shoulder on initial assessment in December 2007; an MRI of February 26, 2008 identified slight tendinosis of the supraspinatus; subacromial bursitis was mentioned by a physiotherapist in July 2008; and continuing pain was described by family doctor Dr. B. Sabry in November The worker then declined a shoulder injection proposed in March 2009 to determine whether symptoms were from the shoulder or the neck. On April 18, 2009, the day after the MVA, Dr. Sabry s chart note outlined findings in the cervical spine and left trapezius. Physiotherapist E. Faltas reported the achievement of full range of shoulder motion in August 2009, and made no mention of shoulder problems thereafter. Similarly, assessing chiropractor Dr. E. Jackson diagnosed only neck, upper back and thoraco-lumbar conditions in September Dr. Sabry s chart notes include complaints of pain in the left shoulder in October 2009, and he diagnosed a left rotator cuff problem in November An insurer s report completed by Dr. Sabry in February 2010, as well as the corresponding chart note, again outlined problems with the left shoulder, not the right. By the time the worker saw rheumatologist Dr. A. Jovaisas in September 2010, she had chronic myofascial pain or fibromyalgia with diffuse tender points and pain throughout the neck, shoulders, upper and mid back. An independent assessment by orthopedic surgeon Dr. S. Sharma, in November 2010, diagnosed myofascial strain of the cervical and lumbar spine only; the worker had full range of motion of both shoulders, with mild pain to palpation of the anterior and lateral aspect of both shoulders, and no mention of the rotator cuff, subacromial bursitis or tendinopathy. The Panel places more weight upon the medical reporting than on the worker s testimony of continuing problems with the right shoulder, given the contemporaneity of the medical reporting as well as the need for objective findings to support permanent organic impairment. [12] In the result, therefore, the worker does not have a compensable permanent right shoulder impairment, and she is not entitled to a NEL evaluation for such impairment.

4 Page: 3 Decision No. 438/16 (v) Entitlement to fibromyalgia [13] Pursuant to Board policy, fibromyalgia is adjudicated within the Chronic Pain Disability policy (Operational Policy Manual ( OPM ) Document No ) which requires, among other things, that the chronic pain or fibromyalgia be caused by the injury. This is also a requirement of Board policy on Secondary Conditions (OPM Document No ), which allows benefits for secondary conditions that are causally linked to the work-related injury. [14] We note first that it is not entirely clear that the worker has fibromyalgia: rheumatologist Dr. Jovaisas did not provide a precise diagnosis, but opined on September 7, 2010 that the worker s history and findings were consistent with an ongoing chronic myofascial pain syndrome such as fibromyalgia. [15] In any case, assuming that the worker does have fibromyalgia as claimed, the Panel finds on a balance of probabilities that the workplace accident was not a significant contributing factor to that non-organic condition. The worker did not develop fibromyalgia until well after the MVA, and the MVA constituted an intervening event breaking the chain of causation. [16] Prior to the MVA, the worker s symptoms had been localized to the neck and one shoulder, and the worker had maintained part-time sedentary employment on a continuous basis for a year with no indication of non-organic impairment. She had undergone an MRI which showed marked degenerative disc disease and borderline foraminal encroachment at C5-6, though it was not medically confirmed whether she was experiencing symptoms of radiculopathy. It was only after the MVA, with additional injuries to the neck, left shoulder, left elbow, thoracic spine, low back and hip, that the worker stopped working. In testimony the worker explained that prior to the MVA she had still had hopes for her recovery and possible return to her PSW duties, but afterwards she lost hope and began to feel useless and depressed. Non-organic signs were first noted, along with increasingly heightened chronic pain, by Dr. Jackson in September In October 2009, Dr. Sabry referred the worker to a chronic pain clinic with multiple pains & aches, and he later referred the worker to a rheumatologist, in February There is no medical evidence to suggest that the worker s condition, as it was in early April 2009, would not have remained stable in the absence of the MVA. In these circumstances, the Panel finds that the significance of the MVA in aggravating and expanding the areas of injury, and leading to the development of a widespread non-organic condition, overwhelmed the impact of the work-related condition. [17] In the result, therefore, the worker does not have entitlement to fibromyalgia in this claim. (vi) LOE benefits [18] The Panel finds that the worker is entitled to partial LOE benefits from April 17, 2009 and ongoing (subject to future review as may be permitted by section 44 of the WSIA). [19] The Panel agrees with Mr. Meleras that the worker was, in effect, receiving compensation for her loss of earnings directly from the employer for an extended period of time, ending only upon the MVA of April 17, The employer s correspondence to the worker of February 4, 2008 confirmed that the worker would be paid for 35 hours per week while on modified duties and despite her reduced hours. The worker testified that she was not pressured to increase her work hours, she was allowed to take breaks as needed, and her employer was very good to me. She had difficulty driving to work as well as increased pain after the first

5 Page: 4 Decision No. 438/16 half of each four-hour shift, and she used her days off to recover. In the Panel s view, the available evidence suggests that there was agreement between the worker and the employer s occupational health nurse that it was reasonable for the worker to work only 12 hours per week: the occupational health nurse reported to the Case Manager in May and June 2008 that the worker was having difficulty with her modified duties, and the 12-hour schedule remained in effect for a full year with no apparent discussion of increased hours. Although the worker s physiotherapist recommended regular full-time hours on modified duties in August 2008, there is no indication that this recommendation was provided to the worker or the employer, nor noticed by the Case Manager at the time. Dr. Sabry noted that the worker was on modified duties and hours in his Progress Report of November 24, The Board file appears to have been dormant between July 2008 and February 2009, when a new Case Manager took over the file (leading to the review of entitlement in March 2009). The Panel accepts that there was tacit agreement between the parties to maintain the reduced hours, and we find that the worker was cooperating in early and safe return to work with the accident employer between April 2008 and April Had the employer not topped up her pay, the worker would have been entitled to LOE benefits based upon the difference between pre-accident earnings and actual earnings during this period, pursuant to section 43(3) of the WSIA. The Panel finds that such entitlement ought to have been maintained beyond the MVA of April 17, [20] However, we do not find that the worker is entitled to full LOE benefits following the MVA, as requested by Mr. Meleras: while the worker did not resume her previous part-time employment (despite an offer of same in October 2009), there was no change in her condition or ability to work which was attributable to this claim. The worker stated in testimony that she could have continued with her reduced work schedule had she not had the MVA. Moreover, the Panel does not agree with Mr. Meleras suggestion that the modified duties were make work and unsustainable. As set out in correspondence from the employer and confirmed in the worker s testimony, the modified duties included such clerical tasks as setting up client files by collating various forms and putting them in folders; sorting files; photocopying; putting pay cheques in envelopes; putting quantities of medical gloves into bags; and shredding materials. Such tasks do not appear to the Panel to be unproductive or without benefit to the employer. The worker worked with other administrative staff in the offices of the accident employer, a large home health care service provider. The employer s correspondence referenced both temporary and permanent modified work placements, and the worker noted that similar tasks were performed by one or two other injured workers as well as their administrative supervisor. Furthermore, the employer restated its offer of such modified duties following the MVA. The Panel is not persuaded that the modified duties were unsustainable or otherwise not available to the worker on an ongoing basis. [21] Accordingly, the Panel concludes that the level of benefits effectively in place at the time of the intervening MVA ought to have been continued beyond the MVA, on an ongoing basis. The worker is thus entitled to partial LOE benefits from April 17, 2009, onwards, based upon the difference between her pre-accident earnings and the ability to work 12 hours per week at $15.96 per hour. The pre-accident average earnings for the worker (who was described as a casual/irregular worker by the employer) will be determined by the Board.

6 Page: 5 Decision No. 438/16 DISPOSITION [22] The appeal is allowed in part as follows: 1. The worker does not have entitlement for a permanent right shoulder impairment or for fibromyalgia. 2. The worker is entitled to partial LOE benefits, from April 17, 2009 and ongoing, subject to further review by the Board pursuant to section 44 of the WSIA. The partial LOE benefits are to be based upon the difference between the worker s pre-accident average earnings (as determined by the Board) and the ability to work 12 hours per week at $15.96 per hour. DATED: March 10, 2016 SIGNED: S. Netten, B. M. Young, C. Salama