1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2904/16 BEFORE: A. G. Baker: Vice-Chair HEARING: November 7, 2016 at Thunder Bay Oral DATE OF DECISION: November 10, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3063 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 30, 2014 APPEARANCES: For the worker: For the employer: Interpreter: R. Hamilton, Office of the Worker Adviser Not participating n/a 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. 2904/16 REASONS (i) Introduction and issues  The worker appealed the Appeals Resolution Officer (ARO) decision dated April 30, From that decision, the worker appeals the denial of Chronic Pain Disability (CPD) benefits, as well as entitlement for recurring neck and low back symptoms, claimed to be related to the compensable motor vehicle accident (MVA) of February 4, (ii) Background  The ARO provided the background to this matter as follows: The worker, then 29 years old, with the employer since July 28, 2008 was working as a Data Entry Clerk at the time of her injury. On February 4, 2009 the worker, while in the course of employment was involved in a motor vehicle accident. The worker was treated at the local hospital emergency department and admitted for observation for a diagnosed multiple contusions, contused abdominal wall and multiple rib fractures on the right side. The worker was treated conservatively and returned to work on April 27, The worker subsequently sought medical attention for cervical and lumbar pain which she related to the MVA. The Case Manager, in her decision dated April 1, 2011, denied recurrent entitlement concluding there was insufficient evidence to demonstrate the recent cervical and lumbar conditions were related to the February 4, 2009 work accident. The worker objected to this decision. The worker representative, on behalf of the worker, requested reconsideration of the April 1, 2011 decision and requested entitlement under the CPD policy. The Case Manager, in her decision dated October 3, 2013, confirmed the April 1, 2011 decision and denied entitlement for CPD. The worker objected to this decision.  The ARO denied the worker s objections in the above noted decision under appeal. The worker has appealed those findings to the Tribunal. (iii) Law and policy  The Workplace Safety and Insurance Act, 1997 (WSIA) is applicable to the appeal. I also note section 126 of the WSIA requiring that I apply Board policy. In that regard, the following policy packages, Revision #9, have been stated by the Board to be applicable to this appeal: 1 Initial Entitlement 10 Chronic Pain Disability 38 Recurrence 300 Decision Making/Benefit of Doubt/Merits and Justice  I have considered the above noted policies as necessary in reaching the below decision. I also note that this decision focuses largely on the worker s entitlement to CPD benefits for her claimed chronic pain and fibromyalgia condition. Board Operational Policy Manual (OPM) Document No , deals with CPD entitlement and provides in part as follows:
3 Page: 2 Decision No. 2904/16 The WSIB will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability. Guidelines Exception Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of posttraumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder, see , Psychotraumatic Disability) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy. Eligibility criteria For a worker to qualify for compensation for CPD the following conditions must exist, and must be supported by all of the indicated evidence: Condition A work-related injury occurred. Chronic pain is caused by the injury. The pain persists 6 or more months beyond the usual healing time of the injury. The degree of pain is inconsistent with organic findings. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical or nonmedical evidence of the worker s continuous, consistent and genuine pain since the time of the injury, AND a medical opinion that the characteristics of the worker s pain (except for its persistence and/or its severity) are compatible with the worker s injury, and are such that the physician concludes that the pain resulted from the injury. Medical opinion of the usual healing time of the injury, the worker s pre-accident health status, and the treatments received, AND subjective or objective medical or nonmedical evidence of the worker s continuous, consistent and genuine pain for 6 or more months beyond the usual healing time for the injury. Medical opinion which indicates the inconsistency.
4 Page: 3 Decision No. 2904/16 Condition The chronic pain impairs earning capacity. Evidence Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption. Fibromyalgia syndrome Worker s diagnosed with fibromyalgia syndrome will be considered for compensation benefits under the CPD policy. Characteristics include - chronic diffuse pain of unknown aetiology attributable to either undetected organic condition or psychogenic sources - the presence of "tender points" in predictable, and usually symmetrical, locations - fatigue and sleep disorders. With the exception of the "tender points", these characteristics are those usually seen in individuals with CPD, and the recommended treatment is identical to that recommended for individuals with CPD. Because of this, fibromyalgia syndrome is recognized as a variant of CPD and workers who are disabled/impaired by fibromyalgia may be eligible for benefits under the CPD policy or the psychotraumatic disability policy, see , Psychotraumatic Disability as follows. (iv) Decision  In this case, I noted the findings of the ARO that included noting the worker s MVA in February The worker attended for treatment at the emergency room and it was determined that she had broken ribs, a chest injury and lower back pain. The worker s neck pain was not immediately noted, but the worker suffered multiple contusions and soft tissue injuries.  The ARO noted the worker s x-rays after the MVA that did not show thoracic or cervical spine fracture or dislocation. Similar results were noted from the family doctor, although the worker s low back was also sore, with multiple contusions involving the shoulders, wrists, hand and right chest wall. Those injuries were also noted by the worker in February and into March of 2009, with pain in the ribs, low back, and swelling in the stomach.  The worker also reported in April 2009 that she could move better but continued to have low back pain, with numbness into her right leg. The worker made an attempted return to work in late April 2009, which was authorized by the family doctor. She complained of vertigo in October 2009, but CT scan results were normal. The ARO noted that the worker continued to work and underwent an MRI scan of the cervical spine in May of 2010 that found a C5-C6 small focal disc herniation. The worker continued to complain about her right arm and neck, and further testing was done for the lumbar spine. The worker was also referred to specialists.  Further reporting in May of 2010 was cited by the ARO, regarding pain in the neck and a mild disc herniation. The ARO also noted that the doctor was having difficulty sorting out what the worker was complaining about. The worker underwent further MRI testing of the lumbar
5 Page: 4 Decision No. 2904/16 spine that demonstrated degenerative disc disease. She was also assessed by a neurologist for her ongoing pain, with findings of a soft tissue injury secondary to the MVA.  The ARO noted the worker s assessment for chronic pain syndrome and soft tissue injuries in December The worker was also assessed by a rheumatologist in 2012 for ongoing neck and low back complaints, and she was diagnosed with fibromyalgia. It was further noted that the worker did not have a pre-existing neck or low back condition, and that the disc herniation would be medically compatible with the 2009 MVA. The ARO noted the medical opinion that it was plausible the worker s ongoing neck and low back pain was caused by the work accident.  The ARO however found there was a time delay between the date of accident and diagnosis, which weighed against compatibility with the mechanism of injury. It was further noted that the worker was treated for rib fractures, without significant initial evidence of injury to the neck and low back. It was noted by the ARO that the worker also returned to work in April of 2009 until December of It was found by the ARO that there was no evidence during that time of ongoing problems. It was also found that there was a lack of evidence to demonstrate the worker continued to suffer neck and low back symptoms since 2010, in relation to the compensable MVA. The ARO further found that, given there was no ongoing causal relationship between the neck and low back conditions, and the MVA, that entitlement to benefits for CPD/fibromyalgia was not supported.  I have considered the findings of the ARO and the CPD policy criteria noted above. In this case, there were a number of criteria that were not at issue. It was clear there was a work accident and initial organic injuries that were a direct result of the accident. It is also evident that the worker has a long-standing chronic pain condition that has been diagnosed as fibromyalgia. From the medical evidence on file, that condition has caused widespread pain symptoms and marked life disruption well beyond the six month window contemplated under the policy.  However, the worker was denied benefits particularly for the lack of evidence of an ongoing causal relationship between the worker s injuries from the MVA, and her fibromyalgia condition. In my view, the balance of the evidence in this case supports such a relationship. In coming to that finding, I noted the following information.  The worker testified and I also noted that the accident was serious, causing the worker multiple injuries. She also stated that her neck and back symptoms became more prevalent once her rib fractures began to heal. She also testified that, while she attempted to return to work, she encountered a number of difficulties with performing even sedentary desk duties. She stated that her neck, low back, and more widespread pain in her legs and in her upper extremities never ceased, and that she continues to deal with that pain currently. She stated she had to stop work and has not returned to any form of gainful employment since December  The worker also described a range of limitations on her physical abilities. She stated she was previously an active person, performing many household and recreational activities. She stated she now lives a largely sedentary day, and is only able to do light chores, and has problems with completing personal care. She noted attending her family doctor for regular treatment, and being sent to specialists, which took time due to her location in Northern Ontario. She also described taking a range of daily medications over several years for pain, anxiety, and sleeping. She stated for example that she currently takes morphine based pain medication twice
6 Page: 5 Decision No. 2904/16 daily. She also noted attending pain and functional programs, but that her condition has never fully resolved.  In support of the worker s appeal, her representative also cited a number of medical reports from the accident date onward. I also reviewed those reports and found them supportive of a causal relationship between the MVA, the worker s injuries, and her ongoing CPD condition.  It was noted for example, that there were no reports of any significant pre-existing conditions or treatment that would have contributed to the worker s condition. Rather, after what was evidently a serious MVA, the worker was treated at the hospital for multiple fractures and soft tissue injuries. The hospital reporting noted for example the injuries to the worker s right side and that she was wearing a cervical collar that was removed.  The worker s long time family doctor, Dr. Jackson-Hughes, also reported just following the accident that the worker had pain and discomfort in the chest. She was also uncomfortable in several areas, including the wrists, hands and elbows. Her low back was also noted to be sore.  Hospital reporting approximately three weeks post-accident continued to cite multiple contusions, fractures, and abrasions secondary to the MVA.  The family doctor also reported in early March 2009 that the worker had sore ribs, lower back pain, and a swollen stomach. It was reported that the worker s ribs had not healed. There were also problems reported with sitting, standing, or lying down for long time periods. She was also on a regimen of medications. Similar reporting continued into April 2009, with the worker also indicating ongoing limitations, as well as pain in the low back and numbness in the legs. She also testified that those problems have spread to her left side as well.  I also noted that the worker continued to attend her family doctor in 2009, 2010 and beyond. For example, the worker experienced recurring problems in May of 2010 that included complaints involving her right upper extremities, neck, bilateral hips and low back. Dr. Jackson-Hughes also provided a report in May of 2010 that the worker continued to have difficulties with chronic pain and discomfort involving the lumbar spine. She was also referred for specialist examination.  In November of 2010, Dr. Sweet, neurology, reported that the worker continued to have soft tissue injury secondary to the compensable MVA. That included pain and discomfort across her shoulders and in her low back, and investigations for the cervical spine. The doctor noted well the nature of the worker s accident, treatment, therapy, and medication use. Further medication recommendations were made based on the worker s level of recovery. The doctor also noted that the drugs recommended were commonly used for patients with fibromyalgia pain syndromes.  It was also notable that Dr. Sweet reviewed the worker s condition over the approximate year and a half since her accident. The doctor was able to reach a diagnosis and recommend treatment for the worker s chronic pain/fibromyalgia condition. It was also evident from further reporting that the worker s treating doctors agreed that she had a chronic pain/fibromyalgia condition.  Dr. Jackson-Hughes reported in December 2010 that the worker was having ongoing problems, and further prescription medication was recommended. The doctor also saw the worker for follow-up regarding chronic pain syndrome. It was also noted that Dr. Sweet
7 Page: 6 Decision No. 2904/16 deemed the worker to have a chronic soft tissue injury that involved the lumbar spine. As such, both the family doctor and neurological specialist agreed on the diagnosis by the end of  In January of 2011, the family doctor provided a further report regarding the worker s chronic soft tissue injury involving her lumbar spine. It was noted again that Dr. Sweet had diagnosed chronic pain syndrome and further therapy was recommended.  In the March 2011 clinical notes, the family doctor again cited the 2009 compensable MVA, fractures, soft tissue injuries, low back strain, and chronic pain. It was noted that the worker was not doing well, but was attending for therapy. She was noted to have headaches, a sore back and other problems. She was also prescribed several medications, including Lyrica, Tramacet, and Celebrex.  Dr. Jackson-Hughes also provided a report dated March 31, 2011 that continued to track the worker s CPD condition. The 2009 MVA was cited, as well as the resulting soft tissue injuries and fractures. The various visits, tests, therapies, and specialist reports were also noted since the accident. It was noted that the worker continued to have upper and lower back problems, which the doctor related to her layoff from work in late A further report from the doctor in June of 2011 also noted the work accident, and that it affected the worker s independent living abilities and employability.  The worker also attended a chronic pain management program in May and June 2012 for several weeks. She went through a multi-disciplinary assessment that reviewed her physical and psychological problems, as well as therapeutic and various other assessments. The scope of the assessment was wide, and it captured well her ongoing chronic soft tissue injury secondary to her MVA. The report reviewed the nature of her more widespread pain symptoms, the impact on her psychologically from the accident and its sequelae, and her reduced functional capacity.  A further specialist report was also provided by Dr. Vasiliu, rheumatology, in November of The doctor noted the worker s history, including the MVA and problems in the upper and lower back, medication use, and attendance at the pain management program. The doctor s impression and plan included a finding of diffuse back and body pain after her MVA, with further treatment recommendations. Importantly, the doctor agreed with the diagnosis of fibromyalgia.  I also finally noted a comprehensive report from Dr. Jackson-Hughes in April of The report was thorough in noting how the worker s condition developed following the 2009 MVA. The doctor cited the clinical findings and treatment, along with the specialist reporting from Dr. Sweet and Dr. Vasiliu, and the pain management program. The medical consensus was also noted, that the worker developed fibromyalgia/chronic pain syndrome subsequent to the compensable MVA. It was also stated that there were no other known causes for the development of a chronic pain syndrome in the worker, and that all the worker s complaints related specifically from the MVA.  In summary, it was evident that the worker s condition developed over time following the work accident. She initially suffered from multiple fractures and soft tissue injuries. However, it was evident from the medical reporting that further neck, back, leg and more widespread pain and discomfort was present from following the accident and ongoing since that time. Certainly the reporting from the worker s treating and assessing doctors have confirmed her ongoing fibromyalgia condition, and related it specifically to the February 2009 MVA. In my view, that
8 Page: 7 Decision No. 2904/16 reporting supports a finding that the work accident was a significant contributing factor to the worker s ongoing chronic pain/fibromyalgia condition.  In conclusion, I find that the criteria under the CPD policy have been satisfied, and the worker is entitled to benefits for her ongoing fibromyalgia condition. She is therefore entitled to a Non-Economic Loss (NEL) assessment for Chronic Pain Disability. Given that finding, I did not find it necessary to address the alternative claim for organic impairment to the neck and back on a recurrence basis, which is denied.
9 Page: 8 Decision No. 2904/16 DISPOSITION  The appeal is allowed in part.  The worker is not entitled to benefits for recurring organic neck and low back injuries.  The worker is entitled to CPD benefits, and a NEL assessment in that regard. DATED: November 10, 2016 SIGNED: A.G. Baker