DECISION NO. 1708/10

Transcription

1 B. Kalvin WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1708/10 BEFORE: B. Kalvin : Vice-Chair HEARING: September 9, 2010 at Toronto Oral DATE OF DECISION: September 15, 2010 NEUTRAL CITATION: 2010 ONWSIAT 2084 DECISION(S) UNDER APPEAL: WSIB ARO decisions dated July 17, 1998 and April 2, 2009 APPEARANCES: For the worker: For the employer: Interpreter: D. J. Holland, lawyer The employer did not participate 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. 1708/10 REASONS [1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker from two decisions of the Workplace Safety and Insurance Board (the Board ) concerning the worker s entitlement to benefits following a workplace accident. (i) Background [2] The background to this appeal is as follows. The worker is 57 years old. On May 29, 1996, while working as an employer consultant, the worker was injured in a motor vehicle accident. Her car was hit from behind by a small truck. The worker sustained injuries which were diagnosed as whiplash and occipital headaches. [3] As a result of this accident the worker made a claim to the Board for compensation benefits. The Board determined that the worker had sustained personal injuries as a result of a work-related accident and, accordingly, approved her benefit claim. As the worker did not return to work after the accident, the Board paid the worker temporary total disability benefits. The worker s entitlement to these benefits is not at issue on this appeal. [4] The worker continued to complain of headaches and pain in her neck. On May 21, 1997, the worker was admitted to the Board s Downsview Rehabilitation Centre ( DRC ) for an assessment by a multidisciplinary team. The worker was discharged from the DRC on June 26, The DRC Discharge Memo stated that the worker did not sustain any permanent impairment and could return to work without restrictions. [5] After receipt of the DRC report, a Board Claims Adjudicator ruled that the worker was fit to return to work and that payment of temporary total disability benefits would cease on July 15, The worker did not return to work on July 15, 1997, however, she did return to work on modified duties at reduced hours on November 10, She continued this part-time modified work until June 25, 1998, when she stopped working. The worker claimed that ongoing symptoms from her motor vehicle accident prevented her from working. She claimed that the compensable accident had resulted in a permanent impairment which entitled her to a non-economic loss ( NEL ) award. [6] Because the worker s accident occurred in 1996, her entitlement to benefits is governed by the pre-1997 Workers Compensation Act (the pre-1997 Act ). Under the pre-1997 Act, a worker who sustains a permanent impairment as a result of a workplace accident is entitled to a NEL benefit as compensation for that permanent impairment. The worker is also entitled to benefits for any future economic loss ( FEL ) which results from that permanent impairment. In this case, as noted, the worker claimed entitlement to a NEL benefit for a permanent impairment resulting from her whiplash injury. She also claimed entitlement to FEL benefits for income loss which she sustained beyond July 15, The worker s claims were denied by the Claims Adjudicator. The worker objected to the Claims Adjudicator s decision and her objection was considered by an Appeals Resolution Officer ( ARO ) in the Board s internal Appeals Branch.

3 Page: 2 Decision No. 1708/10 [7] In a decision dated July 17, 1998, the ARO denied the worker s objection. The ARO ruled that the worker s compensable motor vehicle accident did not result in an identifiable organic permanent impairment and that the worker was not entitled to benefits beyond July15, The ARO stated: The preponderance of available medical evidence would establish that [the worker] had attained maximum medical recovery by July 15, 1997 with no evidence of a brain injury or neck injury remaining. Her chronic subjective complaints of headache and neck pain are not on the basis of an identifiable organic impairment.... [The worker] is not entitled to loss of earnings benefits, a FEL or a NEL award subsequent to July 15, 1997 on the basis that there was no evidence of a remaining organic head and neck injury to prevent her from returning to regular work with no restrictions. [8] After the ARO denied her claim for a NEL benefit for an organic permanent impairment, the worker claimed entitlement to benefits for a chronic pain disability ( CPD ). This claim was denied by a Claims Adjudicator in The worker again objected to the Claims Adjudicator s decision and again her objection was referred to an ARO. However, after the worker initiated her objection to the Claims Adjudicator s decision the resolution of her objection was stalled for many years for reasons which are unclear and which are not relevant to this appeal. The worker s objection to the Claims Adjudicator s denial of her claim for entitlement to benefits for CPD was eventually considered by an ARO in [9] In a decision dated April 2, 2009, the ARO denied the worker s CPD claim. In order to be entitled to benefits under the Board s CPD policy, a worker must show that she has chronic pain which is caused by a work-related injury. The worker must also show that her degree of chronic pain is inconsistent with the underlying organic injury. In this case, in coming to the conclusion that the worker was not entitled to benefits under the Board s CPD policy, the ARO ruled that the worker s chronic pain was consistent with the compensable whiplash injury which she sustained in The ARO stated: In this case, I am of the opinion that the degree of pain is actually consistent with the organic neck/whiplash injury. From my review of the claim file, the worker s subjective and objective complaints do not appear to be inconsistent with organic findings but rather consistent with this type of injury. The worker suffered a neck injury/whiplash and her complaints appear to be consistent with this. This is supported by numerous medical opinions on file therefore this criteria is also not met. [10] In January 2008, the worker returned to her pre-accident job with the employer, although her duties have been modified to some extent. The worker initially returned to work on reduced and variable hours, but at present she works close to full-time hours. [11] The worker appeals the ARO decisions of July 17, 1998 and April 2, 2009 to this Tribunal.

4 Page: 3 Decision No. 1708/10 (ii) Issues [12] It is important to note at the outset that a worker is not entitled a NEL benefit for an organic impairment and also for a CPD for the same injury. These are alternative grounds of entitlement. Thus, after the worker was denied entitlement for a permanent organic impairment she claimed entitlement to CPD. As noted, both grounds of entitlement were denied by the Board. Thus, the issues which arise for determination on this appeal are as follows: 1. Is the worker entitled to benefits for a permanent impairment? 2. Alternatively, is the worker entitled to benefits for CPD? 3. Is the worker entitled to temporary disability benefits or FEL benefits beyond July 15, 1997? (iii) Analysis [13] As noted above, the worker cannot be entitled to benefits for a permanent organic impairment and for CPD for the same injury. At the hearing of this appeal, the worker s representative indicated that the worker s primary claim pertains to entitlement to benefits for CPD. Accordingly, I turn to this issue first. Is the worker entitled to benefits for CPD? [14] I note one of the conclusions reached by the ARO in the April 2, 2009 decision which denied the worker s CPD claim is inherently at odds with the conclusion reached by the ARO in the July 17, 1998 decision which denied the worker s claim for benefits for a permanent impairment. In the 1998 decision, the ARO ruled that the worker was not entitled to benefits for an organic permanent impairment because there was no evidence of a remaining organic injury. In 2009, however, a different ARO ruled that one reason that the worker was not entitled to benefits for CPD was because her chronic pain was not inconsistent with organic findings but rather consistent with this type of injury. Thus, the worker s organic impairment claim was denied on the basis that there was no evidence of a residual organic impairment, and yet her CPD claim was denied in part because her chronic pain was consistent with the underlying organic findings. These conclusions are contradictory and irreconcilable. It seems to me that when the ARO found, in 2009, that the worker s pain was consistent with the organic findings occasioned by her whiplash injury, the question of her entitlement to benefits for a permanent organic impairment should have been revisited. It was not, however, and the matter is now before this Tribunal. I turn now to the question of the worker s entitlement to benefits for CPD. [15] Section 126 of the Workplace Safety and Insurance Act, 1997 (the WSIA ) requires this Tribunal to apply Board policy. The Board s policy on CPD is set out in Operational Policy Manual Document # The CPD policy indicates that not all instances of persistent pain are compensable under the policy. Various other criteria must be satisfied. Two of those criteria are that the pain must be caused by the work-related injury and the pain must be inconsistent with the underlying organic findings. The policy reads, in part, as follows: 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 post-

5 Page: 4 Decision No. 1708/10 traumatic 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. The chronic pain impairs earning capacity. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical or non-medical 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 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 non-medical 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. 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.... Post-traumatic head pain Cases of persistent disabling head pain following relatively minor head trauma where there are no objective findings should be considered under the terms and conditions of the CPD policy.

6 Page: 5 Decision No. 1708/10 [16] The genesis and progression of the worker s claim for CPD at the Board, and the opinions rendered by the Board s Medical Consultants are important. After the worker initiated her claim for CPD, the Claims Adjudicator sought the opinion of Dr. G. Cantlie, one of the Board s Medical Consultants. In a strongly worded opinion dated April 13, 1999, Dr. Cantlie was amazed that entitlement had not been accepted already and opined that the worker had met the criteria for entitlement to benefits for CPD. Dr. Cantlie stated: I am amazed that this claim could advance so far, without previous consideration of the specific entity of post traumatic head pain clearly defined under the [CPD policy]. This is a classic case, being essentially a prolonged case of non-resolving whiplash trauma. The neck is contiguous to the head, and pains in those two areas are not clearly distinguishable. Experts in whiplash trauma cases are now writing articles declaring that the prolonged pain cases may in fact have a true organic basis which is not detectable except with the use of very sophisticated tests. That aside, many of our WSIB cases have proceeded to NEL PI under the CPD umbrella. No-one has suggested that the pain is non-genuine, and the fact that the pain is not contiguous every hour of every day does not exclude the continuous criterion. It is inconsistent with the standard tests for organic disorder, has been present since the A/H, and has been present for well over 9 mo from A/H date. [17] The file was subsequently reviewed by another Board Medical Consultant, Dr. G. Shapiro, who agreed with Dr. Cantlie s assessment set out above. In an opinion dated December 13, 2000, Dr. Shapiro stated: 1. The comments regarding CPD, expressed [by Dr. Cantlie] would still apply despite the further information on file. 2. Based on the A.R.O. decision of 17 July 98, this worker was not left with an ongoing organic impairment related to the events of 29 May It appears that this worker reached a plateau in recovery on 26 June 97. [18] In accordance with the opinions of Drs. Cantlie and Shapiro, the Claims Adjudicator decided to grant the worker entitlement to benefits for CPD. However, the Claims Adjudicator felt that it was unclear how disabled the worker was by her condition, and accordingly, sought a medical opinion concerning the worker s level of disability resulting from her compensable CPD. In a memorandum dated March 3, 2001, the Claims Adjudicator stated: Entitlement for CPD will be accepted on the basis that the worker has met the medical criteria for CPD and there has been some marked life disruption. However, it does not appear that the worker is totally disabled. From a claims perspective, she appears to be partially impaired. Medical Questions: 1. What is the worker s level of impairment? 2. If partial, what are her restrictions? 3. Is a P.I. evident for CPD? If so, would you agree that the MMR date would be June 16/97 as previously noted [by Dr. Shapiro]. [19] The Claims Adjudicator s questions were reviewed by Dr. M. Ho, who is also a Board Medical Consultant. In an opinion dated March 8, 2001, Dr. Ho opined that the worker did not

7 Page: 6 Decision No. 1708/10 meet the criteria for entitlement to benefits for CPD. Dr. Ho stated that there was a two-month period during which the worker s pain was not continuous, which is a requirement of the policy, and Dr. Ho felt that the worker s neck problems related to a non-compensable slip and fall which she had at home in December Dr. Ho stated: Regarding the CPD issue, there seems to be medical discontinuity from October 1998 to the non-compensable incident of December 24, Therefore, medical criteria for CPD for the neck does not seem to be met. Subsequent neck problems seem to be more related to the non-compensable incident of December 24, [20] Dr. Ho s opinion was reviewed by Dr. Cantlie. Dr. Cantlie disagreed with Dr. Ho s conclusion that the absence of medical complaints for a two-month period meant that the worker s pain had not been continuous since the accident and thus disqualified her from entitlement under the CPD policy. Dr. Cantlie opined that an absence of documented complaints for two months was an acceptable period and did not disqualify the worker for meeting the requirements of the CPD policy. Dr. Cantlie stated: The difference in opinion between med consultant [Dr. Ho] and opinions [of Drs. Cantlie and Shapiro] essentially concerns the period of discontinuity between Oct98 and (noncompensable) reinjury in Dec98 a period of only 2 months. In my view that is acceptable in the total time course of this claim... Dr. Cantlie suggested that the Claims Adjudicator may wish to solicit the opinion of another of the Board s Medical Consultants, which is what the Claims Adjudicator did. [21] In an opinion dated November 2, 2001, Dr. J. Dudley opined that the worker had experienced continuous pain since her compensable accident, but stated that the CPD criteria were not met because the pain was consistent with the underlying organic whiplash injury. Dr. Dudley stated: There is ongoing organic impairment which could readily account for the pain. The pain has waxed and waned depending on treatment and other factors, however, this certainly could be in keeping with the original whiplash injury. Experts in whiplash certainly acknowledge that many cases can become chronic. These have a organic basis [sic] and can evolve into a course of pain coming and going. I do feel that the pain could be seen as continuous in terms of the problem as continuous despite not always being complained of every waking minute of every day. If there is pain in the neck and head it is not surprising given these are adjoining areas and are affected by the initial accident and subsequent information, reaction and responses to treatment. Given the chronic nature of these difficulties it would not be surprising that the worker may suffer a permanent impairment resulting from the initial organic injury. The pain is persistent that it occurs from time to time and is compatible with the organic condition as I outlined in point #1. It is not evident to me that the worker meets the criteria for chronic pain disability as outlined in that policy, based on my reasoning above. [22] It is clear that Dr. Dudley s opinion stands for the proposition that the worker does not meet the criteria for entitlement under the CPD policy because her consistent ongoing pain which

8 Page: 7 Decision No. 1708/10 was caused by her compensable whiplash injury was consistent with an underlying organic condition. As stated before, if that opinion is correct, then the worker should have granted entitlement to benefits for a permanent organic impairment. However, the worker s entitlement to a NEL for an organic impairment does not appear to have been revisited by the Board subsequent to the ARO s decision of July 17, [23] Assessing all of the evidence, I find that the worker is entitled to benefits for CPD. I note that three of the Board s medical consultants, that is, Drs. Cantlie, Shapiro and Dudley all agree that the worker has persistent pain which is caused by her compensable whiplash accident. The only disagreement between Drs. Cantlie and Shapiro, on the one hand, and Dr. Dudley on the other is whether or not the worker s pain is consistent with an identifiable underlying organic pathology. In either case, the worker should be entitled to a NEL award, either for CPD or for an organic permanent impairment. I accept the opinion of Drs. Cantlie and Shapiro that the worker s persistent pain is due to a whiplash injury, even though that injury has not resulted in an identification of any meaningful organic pathology. In my view, the opinions of Drs. Cantlie and Shapiro are supported by a letter written by the worker s family physician, Dr. K. E. Bridge on January 18, 2000, which stated that the worker had regularly been treated by her chiropractor for head and neck pain, but that despite numerous investigations no definitive diagnosis of an organic condition had been indentified. I accept Dr. Cantlie s opinion that while some experts now state that ongoing whiplash symptoms do stem from an underlying organic pathology, that pathology is generally not detectable and for this reason the Board often considers whiplash cases under the CPD umbrella. Accordingly, I find on a preponderance of the evidence that since the time of her whiplash injury, the worker has had persistent and genuine pain which was caused by that injury. I find also that her pain is not consistent with any identifiable underlying organic pathology. I am cognizant of the fact that the worker s chiropractor, Dr. D. L. Ryan opined on September 4, 2001, that the worker had a misalignment of her 1 st and 2 nd cervical vertebrae. However, I agree with the ARO in the July 17, 1998 decision that Dr. Ryan s opinion on this point should not be accepted:... given the fact that the worker underwent multiple investigations which have been reported by all of the treating physicians as demonstrating no abnormality in the cervical spine. [24] Two further points need to be addressed. Although the worker had a slip and fall injury at home in December 1998, I find that that accident is not the cause of the worker s chronic pain. At the hearing of this appeal, the worker testified that she slipped and fell on a patch of ice in her driveway. She stated that while her head did hit the ground it was not a significant blow. She stated that she had the hood of her parka on which minimized the degree of the blow to some extent. The worker testified that while this incident did aggravate her head and neck pain, the aggravation only lasted for a few weeks and certainly less than two months. I found the worker to be a forthright witness and I accept the testimony which she gave at the hearing of this appeal. Further, in my view, the medical evidence in this case does not support a finding that the worker s neck and head pain subsequent to December 1998 can be attributed to her slip and fall in December 1998 rather than her compensable whiplash injury. I find on a preponderance of the evidence that the primary cause of the worker s chronic pain, both before and after her slip and fall at home, was the whiplash injury which the worker sustained on May 29, 1996.

9 Page: 8 Decision No. 1708/10 [25] There is also evidence that the chronic pain from which the worker suffered after her compensable accident did result in a marked disruption of her life. The pain prevented the worker from returning to work for a significant period of time. The worker also testified that the pain has limited her ability to perform a number of daily tasks at home, for which she requires assistance from her adult children and mother who live with her. The worker also testified that in January 2005, she separated from her husband, and that her chronic pain condition was a factor which led to the breakdown of her marriage. [26] Accordingly, I find that the worker is entitled to benefits for CPD. I accept the opinion of Dr. Shapiro that this condition would have been fully manifest by June 26, Accordingly, the worker is entitled to FEL benefits as of July 15, 1997, that is, the date on which her temporary benefits were terminated. As noted earlier, the worker eventually returned to her preaccident job in January 2008, at reduced hours, which she gradually increased. She still has variations in her work schedule depending on the state of her chronic pain. I leave to the Board the determination of the quantum of the worker s FEL benefits.

10 Page: 9 Decision No. 1708/10 DISPOSITION [27] The appeal is allowed: The worker is entitled to benefits for CPD. The worker is entitled to FEL benefits from July 15, The quantum of FEL benefits is to be determined by the Board subject to the usual rights of appeal. DATED: September 15, 2010 SIGNED: B. Kalvin