NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

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1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: [X] Form of Appeal: Oral Hearing, held at Truro, NS, August 26, 2009 WCB Claim No.(s): [X] Date of Decision: September 11, 2009 Decision: The appeal of the February 17, 2009 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Alison Hickey.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal of a decision of a Hearing Officer of the Board dated February 17, 2009, in which the Hearing Officer determined that the Worker was not entitled to a Pain-Related Impairment [PRI] rating for chronic pain. The Worker appealed this decision to the Workers Compensation Appeals Tribunal on March 18, This appeal proceeded by way of oral hearing at which the Worker testified. ISSUE AND OUTCOME: Is the Worker entitled to a PRI? Yes. The Worker is entitled to a PRI assessment conducted pursuant to s. 7 of the Chronic Pain Regulations. ANALYSIS: The legislation applicable to this appeal is the Workers Compensation Act, S.N.S , c.10, as amended [the Act ]. Section 187 of the Act requires me to give the worker the benefit of the doubt, which means if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. The Worker suffered injuries to his back in 1980, 1981, 1983 and The Worker is in receipt of a 10.5% Permanent Medical Impairment [PMI] rating, as a result of his 1983 injury. It is clear from the medical evidence on file, as well as the Worker s testimony, that he has experienced significant pain and discomfort as a result of his back injury. By way of decision dated August 8, 2008, the Board found that the Worker s pain was consistent with the definition of chronic pain as set out in the Chronic Pain Regulations. Chronic pain is defined in the Regulations as follows: "chronic pain" means pain: (a) (b) continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered or otherwise predated the pain; or disproportionate to the type of personal injury that precipitated, triggered or otherwise predated the pain, This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome, and all other like or related conditions, but does not include pain supported by significant, objective, physical findings at the site of the injury which indicate that the injury has not healed. The Chronic Pain Regulations provide that a worker is entitled to an assessment to determine eligibility for benefits and services under the Regulations if the medical evidence establishes that the worker has chronic pain causally connected to a compensable injury. They go on to prescribe the method to be employed in determining whether a worker has a PRI. The Worker s file was remitted to the Case Worker for a determination as to whether he was entitled to a PRI. The Case Worker found that the 10.5% PMI rating awarded by the Workers Compensation Appeal Board, [the Appeal Board ] in its decision dated June 13, 1986, included a component for chronic pain, and on that basis, denied the Worker a PRI. The Hearing Officer agreed with the Case Worker s finding. The Hearing Officer found that the 10.5% PMI rating awarded by the Appeal Board in 1986 was awarded for pain in the absence of significant objective physical findings. She found that the Worker s 10.5% was based on the reports of Dr. Reardon, Orthopaedic Surgeon, dated September 17, 1985 and March 5, 1985, which provided evidence that the Worker s pain met the definition of chronic pain in the Regulations, in the sense that the reports revealed subjective complaints in the absence of significant objective physical findings. In his March 5, 1985 report, Dr. Reardon stated that the Worker s x-rays, showed that the disc spaces were well maintained and there was no evidence of degenerative change. Dr. Reardon anticipated that the Worker was going to have a great deal of difficulty sitting in one position for prolonged periods of time. He did not feel that the Worker would be able to return to his previous employment. He suggested that those factors be taken into consideration when establishing a percentage of disability for the Worker. In his September 17, 1985 report, Dr. Reardon stated that the Worker had no significant degenerative changes. He had a bit of narrowing at L5-S1 but it was not severe. There was no radiographic evidence of lumbar instability. Dr. Reardon stated that he did not doubt that the Worker had significant back pain. According to the report of the Board Medical Advisor dated October 21, 1985, the Worker had a myelogram which was negative and there was no deformity of the lumbar spine. The Board Medical Advisor stated there was no limitation of straight leg raising, no evidence of muscle weakness or wasting, and that deep tendon reflexes were present and equal. The Board Medical Advisor concluded that no permanent partial disability existed in relation to the Worker s November 15, 1983 claim. The Appeal Board s decision of June 13, 1986, referred to Dr. Reardon s September 17,

4 report where it was stated that the Worker would not be able to perform his previous type of employment or be able to sit for prolonged periods of time. The Appeal Board stated that based on the opinion of Dr. Reardon, the Worker would be awarded a Permanent Partial Disability of 10.5% effective March 24, There is a line of authority at the Tribunal to the effect that to award PRI s in cases where an Appeal Board award has been made on the basis of chronic pain, is to put the Worker in a position of double recovery. Subsequent to this line of authority being established by the Tribunal, the Court of Appeal released its decision in Martell v. Nova Scotia (Workers Compensation Appeals Tribunal), 2007 NSCA 107. That case dealt with the extent of benefits for chronic pain under the Regulations but contained this general statement at p. 7, about the scheme of compensation for chronic pain as set out in the Regulations: The Chronic Pain Regulations set out eligibility for benefits and services if a Worker has chronic pain as defined, that was causally connected to a compensable injury. This separate scheme for chronic pain, including compensation, is expressly authorized by s-s. 10(7) of the Act. Accordingly, there is no conflict between the Chronic Pain Regulations and the Act. Section 8 of the Chronic Pain Regulations, which sets out how compensation is to be calculated, applies where compensation is sought by a Worker for chronic pain. The Court of Appeal has acknowledged that the Chronic Pain Regulations set out a separate scheme of benefits for chronic pain. I find that there is no authority given either by the Act or the Regulations to deny a Worker an assessment for a PRI where the Worker has been found to have chronic pain as the term is defined. The Board has no jurisdiction to go behind a finding of chronic pain to inquire as to whether a past award was capable of being considered an award for chronic pain, and refuse a worker a PRI on that basis. CONCLUSION: This appeal is allowed. The Worker is entitled to a PRI assessment conducted pursuant to s. 7 of the Chronic Pain Regulations. th DATED AT HALIFAX, NOVA SCOTIA, THIS 11 DAY OF SEPTEMBER, Alison Hickey Appeal Commissioner

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