WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 64 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2342/03 [1] This appeal was heard in Toronto on December 12, 2003 by Tribunal Vice-Chair J. Josefo. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Mr. P. Puhl, Appeals Resolution Officer, dated October 21, That decision concluded that: the worker did not have entitlement for benefits pursuant to the Board s chronic pain disability ( CPD ) policy, her organic NEL award was correctly assessed for her neck and shoulder impairments, the worker was not entitled to initial healthcare expenses related to neck traction, she had no additional entitlement for epicondylitis or carpal tunnel syndrome, and, further LMR services were not in order. [3] The worker appeared and was represented by Mr. R. Williams, of the Victoria County Injured Workers Association. The accident employer chose not to attend or participate in this proceeding. THE RECORD [4] The following exhibits were marked: Case Record, prepared May 13, 2003, Exhibit #1 Addendum No. 1, prepared May 13, 2003, Exhibit #2 Addendum No. 2, prepared September 24, 2003, Exhibit #3 Correspondence to Mr. Williams from the Tribunal dated September 24, 2003, Exhibit #4 Correspondence to Mr. Williams from the Tribunal dated November 28, 2003, Exhibit #5 [5] At the hearing, Mr. Williams submitted a number of additional medical reports in this matter. These were identified in Exhibit #5 aforesaid, when Tribunal Counsel informed Mr. Williams that these were submitted contrary to the three week rule. In Exhibit #5, Mr. Williams was told to bring these documents to the Panel in order to seek leave for their admission. [6] Mr. Williams submitted that the various medical reports from the worker s treating physicians, including Dr. E. Dakin, her orthopaedic surgeon, and Dr. S. Jaikeran, her specialist for her other conditions, are all relevant. It was also explained by the worker under oath as well as by Mr. Williams, that there was some difficulty in gathering these reports.

2 Page: 2 Decision No. 2342/03 [7] I note that the latest date of the various reports is October 20, 2003 (by Dr. Dakin). The materials were only sent to the Tribunal on November 27, 2003, more than a month after the worker, by her testimony, confirmed that she would have obtained all these reports. There was no clear excuse to me as to why the reports were not provided by the worker to Mr. Williams sooner. It is clear that Mr. Williams, as soon as he received the reports, immediately sent them to the Tribunal. [8] Representatives should ensure, if they ask their clients to obtain medical or other new evidence, that their clients understand the time obligation involved. The representatives who appear frequently before the Tribunal, as does Mr. Williams, know of these obligations. I do not expect that individual workers, or employers for that matter, would be equally as aware of the Tribunal s various policies and practice directions. It is thus the responsibility of the representative to ensure that the materials are delivered in a timely fashion, and certainly within the three week rule. [9] Nevertheless, after some consideration of whether this matter should be adjourned so that the materials could be properly received into evidence, I elected to proceed with the hearing. I did so because it would be inconvenient for this worker, who is outside of the Metropolitan Toronto area, to have to return to Toronto to pursue her appeal. In future, I would expect that Mr. Williams will tender documents in a timely fashion, or have a very good explanation when, for reasons beyond his control, this does not occur, or realize that he may well face the adjournment of hearings when neither of those two alternatives are met. [10] Accordingly, the collection of new medical reports were admitted, collectively, as Exhibit #6. [11] I heard oral testimony from the worker. Submissions on her behalf were made by Mr. Williams. THE ISSUES AND BACKGROUND OF THE APPEAL [12] The worker seeks entitlement for CPD, or in the alternative, an organic NEL reassessment, which should include her arms and back. She also seeks a traction unit, or to have her back condition treated with traction professionally. While she was noted to be seeking entitlement for epicondylitis or for carpal tunnel syndrome, this was not seriously pursued based on her testimony. The worker was seeking further labour market re-entry ( LMR ) services. [13] The worker currently has a NEL award for her organic neck and right shoulder condition. That NEL award stands at 16%. The worker was thus appraised of the downside risk that could result if I conclude that she is entitled to benefits pursuant to CPD. In that case her organic NEL award would be superseded by a newly assessed NEL award for her CPD, which could end up being less or more than her current 16% award for her organic neck and right shoulder impairment.

3 Page: 3 Decision No. 2342/03 [14] The worker understood this and elected nevertheless to proceed to argue for entitlement pursuant to CPD. As Mr. Williams noted, the worker also sought the other entitlement, for her organic condition, on an alternative basis. [15] The background of the matter was described in part as follows by the Appeals Resolution Officer in his decision: ISSUES: 1. Entitlement to Chronic Pain Disability (CPD). 2. Non-Economic Loss (NEL) reassessment to include the arms and back. 3. Payment for either a traction unit or to have this treatment done professionally. 4. Entitlement to Epicondylitis and or Carpal Tunnel Syndrome (CTS). 5. Additional service concerning the Labour Market Re-entry (LMR) plan and the Suitable Employment or Business (SEB). HOW THE ISSUES AROSE: On December 16, 1997, this now 40-year-old Health Care Aide injured her neck, right shoulder and back. She was diagnosed with a rotator cuff and lumbar strain. She returned to modified duties by January 26, 1998 feeding patients, filing and answering phones. By April 2, 1998, the employer was no longer able to offer modified duties. Modified work was performed again from June 3 to August 28, A Regional Evaluation Centre (REC) assessment was done in September The results indicate that a return to regular duties could be anticipated in 3 months. However, this did not happen as it was learned that the worker would have a permanent impairment in the neck and shoulder. In 1999, she was granted a 16 per cent NEL in recognition of the neck and right shoulder impairment. The back strain had been treated and fully recovered by then. LMR services were provided. Vocational and aptitude testing were conducted. Based on the worker s personal and vocational characteristics, including physical and psychological abilities, a SEB was selected. The worker would be upgraded, attend formal retraining, and then be provided with job search assistance in the field of general office clerical work. The worker began experiencing physical difficulties that were not recognized by the Board. Nevertheless, ergonomic aides were provided to help alleviate symptoms. LMR services and Board supplementary benefits ended April 2001 when the worker was no longer able to cope with the program. Her doctor has suggested she remain off work with reduced activity. The worker remains unemployed. [16] After a hearing, the Appeals Resolution Officer concluded in part as follows: I have reviewed the medical information in the file. There has never been a medical diagnosis of CPD. Many people think that just because pain is long standing it qualifies as CPD. I agree that this worker s pain is chronic in nature. In other words, she has been experiencing pain for a long time. However, pain that is chronic is not the same as the medical diagnosis of an actual disability called CPD. The Board s CPD criteria have not been met.

4 Page: 4 Decision No. 2342/03 It is not unusual for someone with a 16 per cent NEL for a neck and shoulder impairment to have some difficulties with normal activities of daily living. The actions of water skiing, boating and vacuuming place incredible stress on the shoulder and neck region. The pain and life disruptions experienced by the worker are in keeping with the level of impairment recognized by the NEL. One aspect of the NEL assessment is based on Range of Motion. The worker s range of motions in the neck and shoulder are in the correct category for the NEL percentage awarded. Any initial strain to the back was treated at the time of the original accident. The worker has long recovered from that. There is no entitlement for the back. There was no indication that the arms, elbows, or wrists were injured in The computer work or any other school requirements are not a basis to grant additional entitlement for those body parts. It is unlikely that the repetitions, stress levels, weights, and physical demands of the school program brought on conditions in these areas. This contention is supported by the fact that the worker claimed these problems after only one keyboarding class. I cannot account for the reason why the worker may have these symptoms but there is no evidence to relate them to the LMR program or the December 16, 1997 compensable accident. There is no entitlement for impairments related to the back, CTS, epicondylitis, or the arms. The worker s testimony concerning her various symptoms and pain levels contradicts her statement regarding obtaining relief from the traction device. I see no evidence how that form of treatment has assisted the worker in pain relief, remaining in a LMR program, returning to work, increasing her sleep level, or improving her activities of daily living. This type of unsupervised, self-administered treatment is not in order. Additionally, I cannot see any benefit to warrant the provision of traction through a health care provider. Based on the worker s testimony, her problems are increasing and her condition is deteriorating. The ergonomic devices provided by the Board were not of enough assistance to help the worker remain in the school program. She is still not getting a full night of sleep and is on medication that makes her not swift in the morning. Yet in spite of all this, the worker wants the Board to change the SEB and sponsor her on another formal retraining program to be a Registered Practical Nurse (RPN). The worker has not researched the length of the program, is lacking Biology and Chemistry prerequisites, and has not taken any courses since the LMR program ended. The vocational and aptitude testing does not support science based programs or college-level study. The request for this new SEB is not appropriate. The LMR services provided would have lead [sic] to a job performing general clerical office duties. Jobs in this field offer the best opportunity to self regulate one s physical activities. Additionally, given the fact that the worker did not wish to relocate, this SEB would provide the most number of job options in the local labour market. The original SEB remains suitable. [17] The worker appeals from this decision. THE REASONS (i) Testimony of the worker [18] The worker testified in response to questions from Mr. Williams as well as questions of clarification from me. Relevant portions of her evidence are herein summarized.

5 Page: 5 Decision No. 2342/03 [19] The worker described the work accident on September 16, When lifting a new patient, along with a colleague, the new patient started to fall. Both the worker and her colleague grabbed either side of the patient, with the worker holding her on her left side. The worker then swung this heavyset older lady into a wheelchair, to prevent the patient from hitting the floor. [20] The worker described immediate pain and burning in her neck, which travelled down her right shoulder. She also had pain in her lower back. The worker described various attempts to return through the employer s modified work program. She was, however, never able to progress in the respect. She suffered from ongoing pain and difficulty. The worker ultimately was laid off, as she testified, because she was unable to successfully complete the modified work and progress back to her regular duties. [21] The worker believes that the Board provided her with LMR services starting in the summer of During this time, and before such services began, the worker continued to see Dr. Dakin as well as her other physicians. The worker believes her condition was not improving, but, in fact, was deteriorating. She also stated that her social life was very poor, and her children and husband had to take care of the chores at home. The worker no longer vacuumed, nor did she cook meals or clean up. She performed only very light housework, though she does go with her teenage son to the grocery store. The teenage son does all the lifting and carrying, while the worker drives to and from the grocery store. This state of affairs has continued, more or less, to the present time. The worker still believes she is very limited, though she is able to do a little bit more than in the summer of Her family does all of the heavy household chores, however, leaving the worker with only lighter aspects of housework to perform. [22] The worker described difficulties which she experienced when she attempted working on a computer as part of her upgrading program. This occurred in late summer The worker stated that the keyboarding activities, performed one afternoon per week at a normal computer keyboard, caused her much pain and discomfort in her right hand, back, upper arm, and involving her neck and shoulder. By the third week, the worker testified that the instructor told her she should not type, but simply observe. The worker stated she was having no problems in her other courses as she is left handed. She is thus able to write with her left hand. [23] In early 2001 the worker attempted further upgrading courses elsewhere under the auspices of the Board. The worker testified that she again had severe difficulties with working on a computer constantly in this new program. The worker stated that a Board ergonomist concluded that her situation was not suitable, and adjustments had to be made. Nevertheless, the worker concluded that the keyboarding and sitting at a desk aggravated her neck, shoulder and hand condition to a very serious degree. Despite attempts at ongoing chiropractic treatment and other efforts, the worker s situation deteriorated. In April 2001 the Board discontinued her LMR services.

6 Page: 6 Decision No. 2342/03 [24] The worker described her current medication, which includes Amitriptyline. She states that this is for her fibromyalgia. The worker described her current daily routines. She notes that she gets up at approximately 9:00 am. She states she is better physically in the afternoon. She has ongoing trouble sleeping, five out of seven nights. While she has no trouble with personal hygiene, she only is able to perform light housework. She is also engaged in some self-directed upgrading, in correspondence courses from Sir Sanford Fleming College. The worker s social activities, however, continued to be limited. [25] Prior to the 1997 work accident, the worker had suffered from depression. She described having suffered the death of a loved one, as well as some family tensions which led her to seek treatment. As was noted in the medical report from the worker s family doctor, Dr. N.G. Brown, addressed to the Claims Adjudicator but undated, the worker s pre-existing adjustment disorder with anxious and depressed mood was noted. Dr. Brown stated that the worker s difficulty in obtaining satisfaction with the WSIB has exacerbated this condition. [26] The worker believes that she could perform modified work, which is suitable for her. The worker, in fact, emphatically stated that she wants to work. She believes, however that the work program provided to her by the Board was wholly unsuitable, and unnecessarily aggravated her condition. [27] With respect to her right arm pain, the worker believes this was caused by her tendonitis, travelling from her right elbow area. The worker believes that this pain travels down from the right elbow to her hands and gives her the symptoms of carpal tunnel syndrome. The worker does not, however, believe that she actually has that condition. (ii) Submissions for the worker [28] Mr. Williams made detailed submissions for the worker. With respect to her entitlement to benefits for CPD, it was argued that the worker has suffered from marked life disruption. It was further argued that her condition has progressed and become more severe, involving fibromyalgia, all due to the original accident. It was submitted that the worker s pre-existing depressive and anxiety conditions were aggravated because of sequelae to the work accident and the treatment that she received from the Board. [29] It was also submitted that the December 1997 injury was very severe, and likely more severe than originally thought. It was submitted that the Board s ergonomist, along with the worker s treating physicians, clearly noted the worker s ongoing neck and shoulder difficulties. It was noted that the worker s LMR program, including the computer training, thus was discovered to be unsuitable for her, because of her neck symptomatology. [30] It was submitted that, pursuant to recommendations from Dr. Dakin, the worker should receive a home traction unit. It was submitted that this may well help the worker, though Mr. Williams acknowledged that there was no guarantee of this.

7 Page: 7 Decision No. 2342/03 [31] It was submitted that the worker should undergo a Functional Abilities Evaluation first. Once this has been completed, and it is determined what the worker s actual limits are, then the worker should be provided with further LMR services, including a new LMR plan that takes into account the results of the FAE and any other such assessment. It was submitted that this worker would then be assisted back into the workforce, and that she is eager to get back into the workforce. [32] With respect to her organic condition, it was submitted that the worker s condition has deteriorated. It was also submitted that the worker s back and arms should be included in the NEL assessment. (iii) Discussion and conclusions [33] I will first address the worker s claim for benefits pursuant to the Board s CPD policy. As was well explained by the Appeals Resolution Officer in his decision, not all chronic pain attracts benefits pursuant to that policy. CPD is awarded where the chronic pain is, as was stated in Tribunal Decision No. 915, enigmatic or unexplained by organic causes. [34] The worker s pain of a chronic nature is, I find, not at all enigmatic. Indeed, the worker herself understands full well, as she ably testified, where her pain is, and how it originated. Dr. E. Dakin has also not suggested that there is a non-organic cause for the worker s condition. Indeed, in Dr. Dakin s October 20, 2003 report (part of the bundle in Exhibit #6), he notes the worker has an ongoing muscle spasm to the right side of her neck. He also notes tightness in the thoracic spine. Dr. Dakin concludes that the worker s trouble with her neck is related to her previous injury. This thus is an organic explanation for the worker s problem, not a non-organic one. [35] I recognize that Dr. S. Jaikaran, a specialist in physical medicine and rehabilitation, has noted more than 14 tender fibrositic points. In his July 14, 2003 report, he diagnosed a fibromyalgia syndrome. That the worker may have fibromyalgia, however, notwithstanding the findings by Dr. Dakin which are not in my view congruent with the findings of Dr. Jaikaran, does not mean that her fibromyalgia condition arose because of the work accident or its sequelae. [36] Indeed, in Dr. Jaikaran s May 12, 2003 report he notes that the worker s complaints of neck stiffness, headache and pain in the right upper extremity have lasted since her work accident. These are all the worker s constant organic complaints. There is nothing non-organic about it, or for the explanation for the worker s problem. [37] Accordingly, on the balance of the medical evidence, I find that the worker does not have entitlement for benefits pursuant to the chronic pain disability policy. The worker s organic entitlement is maintained. [38] The worker does, however, have medical confirmation from Dr. N.G. Brown in the aforesaid undated letter that her pre-existing adjustment disorder with anxious and depressed mood has been exacerbated. The exacerbation stems from the sequelae to the worker s treatment and, what I find was the erroneous placement or continuation of the worker s LMR program, despite categoric medical advice from Dr. Dakin and others to the contrary. I will discuss those reports further ahead.

8 Page: 8 Decision No. 2342/03 [39] The worker fits within the thin skull principle with respect to the exacerbation, or aggravation, of her pre-existing anxiety disorder. The worker s pre-existing condition, which prior to the accident and its sequelae was manageable, in that the worker could work and also participate in social and other activities including the raising of her two children and ordinary family life, has been somewhat curtailed. The worker is thus entitled to an award for psychotraumatic disability, which has been exacerbated, possibly on a temporary basis, because of the sequelae to the work accident. [40] Given that the Tribunal is dealing with the whole person, on a pragmatic and robust view of this case, including the various periods of entitlement explored on appeal I find that it is within my jurisdiction to conclude that the worker does have entitlement to benefits for psychotraumatic disability. The level and duration of such benefits will be assessed by the Board, subject to the worker s usual appeal rights in that process. [41] In the aforesaid undated letter from Dr. Brown, the family doctor documents a telephone conversation with claims adjudicator Alexander at the Board. Dr. Brown states in part as follows: In November 2000 and again in February 2001 I requested that [the worker] be transferred from her secretarial training course to a course more appropriate for her functional limitations due to repetitive strain injury with neck and shoulder pain. Dr. Dakin, her orthopaedic surgeon, has repeatedly reiterated the inappropriateness of the keyboarding she is required to do as part of this course, however his requests have been ignored. I submitted letters from Dr. Dakin dated 05/04/99, 06/07/99, 27/09/99, 24/05/00, 06/11/00 [and further] I also submitted x-rays of the cervical spine dated 28/05/03 supporting a diagnosis of degenerative disc disease and facet joint arthritis at C5-6 and C6-7. A shoulder ultrasound at the same time supported a diagnosis of supraspinatus tendonosis.an independent review by Dr. Jaikaran confirmed diagnosis of right supraspinatus tendonitis, cervicogenic pain and regional pain sydrome. [42] I note, parenthetically, that Dr. Brown also does not believe that the worker has fibromyalgia, at least according to this report. In this undated report Dr. Brown also asks that the worker be reconsidered for: Retraining at a position more consistent with her functional limitations. She should ideally be in a position that allows her a variety of work related tasks in a variety of positions (sitting, standing). She should avoid excessive keyboarding longer than minutesa change or training program would also improve her psychological outlook and condition. [43] Indeed, I find this report corroborates the worker s testimony that she is very willing to return to work, providing that it is suitable. I also note the medical opinion that, if the worker is provided with appropriate training, this may well ameliorate, at least in part, her psychological condition that the Board had (inadvertently to be sure) exacerbated. [44] The reports of Dr. Dakin referenced by Dr. Brown are numerous indeed. Only a few of these will be referenced. In his report dated November 6, 2000 this orthopaedic surgeon stated to the claims adjudicator in part as follows:

9 Page: 9 Decision No. 2342/03 She is having a lot of problems with her right hand and forearm, which is her nondominant side, since she has started her computer course and having to use both hands on the keyboard; whereas previously she was able to use her left, her dominant side, and not appreciate the potential problems of the right side which was bothering her most since her injurythis lady has developed overuse symptomatology very quickly, after starting her computer course and having to use her right hand when her upper body, particularly her neck, is in a sustained position. This is a poor prognosis for her continuing in the computer type work. [45] In reports dated May 19, 1998, Dr. Dakin notes the worker s symptomatology of headaches, irritability in the ulnar nerve and elsewhere. He also confirms muscle spasm at the base of her neck. [46] Another report of Dr. Dakin s, dated April 5, 1999, discusses most presciently the difficulties with the computer course. Dr. Dakin states in part as follows: This lady is struggling to keep in the retraining program. She is having trouble with the sustained posture, particularly that of the computer operation component, having to move every so often to relieve the pain and pressure. Examination reveals tenderness related to the neck muscles, active muscle spasm from the neck down to the right shoulder, and trigger points related to the inner border of the scapula just below the upper margin. [47] The Board s ergonomic specialist, in a February 8, 2001 report, concluded that the worker s workstation was not suitable. The ergonomic specialist stated in part as follows after making a number of recommendations in his extensive report: The workstation that the worker is currently at is not considered suitable for her neck and shoulder injury. If the above recommendations are implemented, then the workstation could be considered suitable for these injuries. It is the opinion of this ergonomics specialist that the combination of workstation set-up and work practices, could have resulted in the current problems that the worker is experiencing with her wrist. It is also my opinion that, noting the various injuries to the upper extremity and neck, that any excessive keyboarding, even at an ideal workstation, would still result in risk factors for recurrences of existing injuries to these areas (specifically the neck). [48] What, after all, could be more clear than that? The Board s ergonomics specialist has reviewed the workstation, and also inherently the work, involved in the worker s LMR plan for which she is training. He has made it clear that it is highly doubtful that the work, even in an ideal perfect world situation, would ever be suitable. [49] Contrary to the conclusions of the Appeals Resolution Officer, therefore, it is my view that the work was not suitable. It is not that the efforts of the Board were inappropriate, rather that, when it became apparent that the worker was heading down the wrong path and Dr. Dakin in the plethora of medical reports provided, along with those of Dr. Brown, made that perfectly clear, the Board should at that time have revisited the matter, to prevent further difficulties.

10 Page: 10 Decision No. 2342/03 [50] Nevertheless, the worker is still a young woman, with many potentially productive years in the workforce. As her family doctor suggests, getting back into things and being active will allow her to focus on things other than being perhaps too focussed on her pain. The Functional Abilities Evaluation would be an excellent way to ensure that the next steps taken back on the right road are the right steps. [51] Accordingly, the worker is entitled to a Functional Abilities Evaluation and to further LMR services. Given that the worker was fully cooperating during the relevant time, her benefits should not have been closed. The worker s full benefits should be reinstated on an ongoing basis from when the Board terminated these benefits, and continuing so long as the worker cooperates with the upcoming FAE and then subsequent LMR processes. [52] With respect to additional areas of entitlement, it is my view that the worker s problems do all stem from the neck and shoulders area. The pain that she is experiencing elsewhere is likely referred from that area. Accordingly entitlement should not be extended beyond the already recognized organic areas of entitlement. [53] I am persuaded that the worker s condition has deteriorated, however. This deterioration is perhaps as a result of the attempts at keyboarding which triggered the overuse syndrome, as identified by Dr. Dakin. The worker is thus entitled to a NEL reassessment of her existing organic condition. [54] The home traction device was mentioned by Dr. Dakin in a report dated December 1, The report noted that a home traction unit would be appropriate at this time. But, that is now five years in the past. [55] I am not prepared to order that the worker be provided with a home traction unit, when it may no longer be of any real benefit to her. Rather, the worker may raise this issue afresh with the Board if her treating physicians still believe it would objectively be of benefit to her. From December 1998 through to the date this decision is released, moreover, there may yet be new and better alternatives for the worker that her physicians would prefer to recommend than a home traction unit. The worker should have the option of any such new or better therapies that would objectively assist her condition, if any exist. [56] Accordingly, the worker is entitled to the benefits as described above and those which flow from my decision.

11 Page: 11 Decision No. 2342/03 THE DECISION [57] The appeal is allowed as follows: 1. The worker does not have entitlement to benefits for CPD. 2. The worker is entitled to have a NEL reassessment, to assess deterioration in her neck and shoulder, the recognized areas of organic impairment. 3. The worker is not entitled to payment for a traction unit, but is entitled to return with new medical evidence to the Board for any recommended and generally accepted treatment or therapy, as suggested by her doctors. 4. The worker does not have entitlement to benefits for epicondylitis or for carpal tunnel syndrome. 5. The worker does have entitlement to be assessed for psychotraumatic disability benefits, and the worker retains her usual appeal rights in that respect. 6. The worker is entitled to a Functional Abilities Evaluation as well as further LMR services, all as provided herein. 7. The worker is entitled to full benefits from when these were closed, which benefits shall continue so long as she continues to cooperate with her medical and vocational rehabilitation. DATED: January 13, 2004 SIGNED: J. Josefo