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: N/A (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim Nos.: [X] Written Submission [X] Date of Decision: May 27, 2010 Decision: The appeal of the January 12, 2010 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 January 12, 2010, in which the Hearing Officer determined that the Worker did not have chronic pain as that term is defined in the Workers Compensation Act, S.N.S , c.10, as amended [the Act ]. The Worker appealed that decision to the Workers Compensation Appeals Tribunal on February 11, This appeal proceeded by way of written submission. Written submissions were received from the Workers Adviser on April 1, Although the remedy sought is a finding of chronic pain, the Workers Adviser s submissions refer to problems the Worker has with his nose and his left ear, and raises the issue of hearing loss. She discusses treatments he has requested that have been turned down by the Board. For more clarity on the remedy sought, I carefully reviewed the Hearing Officer s decision. The Hearing Officer stated the sole issue before her to be the chronic pain issue. She does not determine any issue involving hearing loss or any other conditions for which a permanent medical impairment could be considered. Given my review of the Worker s files and all supporting material, I find that the Tribunal s jurisdiction on this appeal is strictly over the issue of whether or not the Worker suffers from chronic pain. ISSUES AND OUTCOMES: 1. Is the Worker entitled to a finding of chronic pain in relation to his back pain? Yes. There is sufficient evidence to establish that the Worker s back pain has been ongoing since his injury and meets the definition of chronic pain in the Act. 2. Does the pain in the Worker s hands and feet meet the definition of chronic pain in the Act? This determination is unnecessary given my finding on the first issue. The Worker is only entitled to one global award for chronic pain and not multiple awards for different sites of pain. This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 ANALYSIS: The legislation applicable to this appeal is 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 s Adviser requested a s. 251 reference to the Hearing Officer on the basis of a medical report from Dr. MacCormick, Oncologist, dated January 14, 2010, as well as an audiogram dated January 9, 2009 from the Nova Scotia Hearing and Speech Clinic. Subsection 251(1) of the Act permits this Tribunal to refer appeals back to Board Hearing Officers. The Tribunal may refer an appeal back when the quantity or nature of new or additional evidence, or the disposition of the appeal, merits the referral. No referral to the Hearing Officer is warranted on the basis of the Audiogram submitted, as any PMI in relation to hearing loss was not before the Hearing Officer and should be considered by the Board in the first instance. No issue regarding hearing loss is properly before me on this appeal. Dr. MacCormick s report addresses the pain the Worker experiences in his hands and feet but not his back. It could not have any effect on the Hearing Officer s finding on chronic pain as it relates to the Worker s back. It is more appropriate that the general issue of the Worker s entitlement to benefits for chronic pain be decided in one decision. The Worker sustained injuries to his lower back in 1983, 1984, The Hearing Officer determined that any back pain the Worker may have was explained on the basis of significant objective physical findings, and, therefore, did not meet the definition of chronic pain. Chronic pain is defined in the Act as follows: 10A (a) (b) In this Act, "chronic pain" means pain 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, 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 Worker was seen by Dr. Malik, Neurosurgeon, on October 31, In his report of

4 4 that date, he noted the Worker s diagnosis as being a left L5-S1 disc protrusion. He stated that the Worker s x-rays showed narrowing of the disc space at the L5-S1 level and also osteophytes at the L1-2, L2-3 levels, degenerative changes throughout the lumbar spine, and marked disc space narrowing at the T11-12 level. According to a myelogram dated November 27, 1983, the Worker had an L4-5 central disc bulge without any significant compression of the spinal, thecal or nerve roots. Dr. Malik, in a report of November 27, 1983, indicated that because of the results of the myelogram, it was determined that the L4-5 disc was not abnormal. The Worker was referred to Dr. Holness, neurosurgeon, for a second opinion. Dr. Holness in his report of February 2, 1984, agreed that the Worker did not satisfy any of the usual criteria for exploratory disc surgery. He questioned a functional response on the Worker s part to some of the testing, and thought that the myelogram had shown little in the way of objective findings. Dr. Houlton, of the Pain Clinic, in a report dated March 28, 1984, stated that the Worker had findings consistent with a mechanical form of back pain, and he proposed diagnostic blocks. In Dr. Houlton s May 31, 1984 report, he stated as follows:...the pain is genuine and maybe [sic] of two components. It is suggestive by this that some of the pain is of a sympathetically mediated pain while a significant amount also is of a somatic pain. I therefore plan to have him undergo further nerve blocks to pursue both angles of his pain and in addition I am having him assessed by a psychiologist [sic] at North Sydney for the depressive aspect of his problem. I ought to add that I am quite unclear as to whether the depression is the result of the pain or the pain is exaggerated by the depression, whichever is the case, it is a separate issue and he has genuine pain. In his report of March 28, 1984, Dr. Houlton noted that with the exception of quite significant pain overlying the L5-S1 vertebrae, the Worker s examination was entirely normal with no neurological symptoms or signs whatsoever. According to the progress report from the Worker s family doctor at the time, Dr. MacDonald, dated August 14, 1984, the Worker was continuing to complain subjectively of a great deal of pain in his left hip and radicular pain down his left leg. Dr. MacDonald stated that there seemed to be an element of depression in all this as well. A medical summary and assessment from the Board s Medical Advisor dated October 3, 1984, stated that he was in agreement with the findings of Dr. Holness. He set out his findings on physical examination which included no evidence of paravertebral muscle spasm, no tenderness over the thoracic or lumbar vertebrae and some tenderness possibly

5 5 over the left sacroiliac joint. The Worker was able to forward flex to the mid-shin level and recover without difficulty. The Worker s claims for his back injuries were reviewed by the Board Medical Advisor who rendered an opinion on the issue of chronic pain, on June 20, The Board Medical Advisor was of the view that the Worker s pain was supported by significant objective physical findings, namely lumbar disc degenerative disease and some instability of the lower lumbar region. The Board Medical Advisor stated that a permanent medical impairment [PMI] assessment may be indicated for the Worker s back injuries, on the basis of aggravation. The injuries the Worker sustained in 1983, 1984 and 1986, were all lumbosacral sprains, yet the Worker continued to suffer from pain requiring his family doctor to refer him to numerous specialists as well as the Pain Clinic. In reading the medical evidence as a whole, one is left with the distinct impression that the Worker s pain has continued well beyond the normal recovery period for the type of injury he sustained, and that although there may be some objective findings present, they are not responsible for the existence and degree of the Worker s pain. Dr. Holness was of the view that any objective findings the Worker had were minimal. The Board Medical Advisor back in 1984 was in agreement with Dr. Holness. There was certainly a suggestion from Dr. Houlton s reports, that there were pain behaviours present on examination of the Worker. He spoke pointedly about a somatic element to the Worker s symptoms. Further, there is evidence of a psychiatric component, specifically depression, which appeared to accompany the Worker s pain. The Worker was seen by Dr. Munshi, psychiatrist, who, in his report of July 13, 1984, stated that the Worker had depression secondary to chronic pain and marital discord. In this case, I am satisfied that the Worker s pain has been ongoing, commencing with his 1983 injury. According to the Form 8/10 from Dr. Azer, dated August 19, 2004, the Worker was tender in the lumbosacral spine with pain radiating into his left leg. Dr. Azer stated that he was suffering from low back pain and had a history of injury dating back to The Worker s complaints of back pain and pain into the left leg, documented in Dr. Azer s report, are the same complaints he had for years after his injuries. In chart notes dated February 13, 1987, Dr. Azer indicated the Worker was complaining of low back pain going into his legs. He described the Worker at that time as having chronic back pain. Dr. Rajamaran, radiation oncologist, made reference to the Worker s back problems in his report of February 1, There is a lack of evidence of continuing back pain throughout the 1990's. I am prepared to assume, however, that because the Worker had seen numerous specialists and had had various investigations on his back by that time, which had culminated in the opinion that

6 6 surgery was not an option, he didn t seek further medical attention on a regular basis. Following the Worker s diagnosis of cancer in 2000, the medical evidence deals primarily with his treatment for that condition and the symptoms he developed as result of his cancer treatment. Dr. Azer begins to document the Worker s back pain in Form 8/10's in A Form 8/10 for April 28, 2008, states, still LBP. I find it entirely possible that the Worker s back pain was not a top treatment priority for a significant amount of time following his diagnosis and I would not necessarily expect to find many references to it in the medical evidence once the Worker began cancer treatment, particularly where it was a condition that had been present for many years. In an opinion dated February 26, 2009, a Board Medical Advisor considered the Worker s claim for chronic pain benefits for his back injuries. He stated that to make a case for chronic pain the Worker would have to show that he,...had ongoing pain that required treatment with medication, that caused ongoing psychological difficulties that caused ongoing functional impairment and ongoing problems in activities of daily living. With respect, while evidence of that nature would be relevant to the determination, and certainly helpful in determining whether a pain-related impairment [PRI] would be slight or substantial, it is not essential to the finding of whether a worker s pain meets the definition of chronic pain in the Act. I have read the Worker s Client Information Questionnaire, filed in support of his claim for benefits. He stresses the problems he has with his hands and feet and does not mention his back. I have also noted a Contact Sheet for a conversation between the Worker and his Case Manager wherein he stressed that his chronic pain was in his hands and feet. I interpret that to mean that his predominant pain problem is with his hands and feet. This might suggest that the Worker s PRI with his back would be slight, but it does not rule out the finding of chronic pain I have made, which is dictated by the evidence and s. 187 of the Act. In viewing the medical evidence as a whole, I am satisfied that it is just as likely as not that the Worker s pain would meet the definition of chronic pain in the Act. Any objective findings present are not responsible for the degree of his pain, and his pain has gone on beyond a normal recovery time. I find that the Worker is entitled to chronic pain benefits effective April 17, Given my finding with respect to chronic pain in relation to the Worker s back, it is unnecessary for me to determine the issue in relation to any other compensable injuries the Worker may have sustained, including any pain he may be associating with his nasal pharyngeal carcinoma.

7 7 CONCLUSION: This appeal is allowed. The Worker suffers from chronic pain as the term is defined in the Act. He is entitled to chronic pain benefits as of April 17, DATED AT HALIFAX, NOVA SCOTIA, THIS 27TH DAY OF MAY, Alison Hickey Appeal Commissioner

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