Despite the lack of physical, organic causes behind his diagnosis of Chronic Pain Syndrome, the complex of psychological factors and attendant pain manifestations associated with the illness rendered a worker completely disabled and incapable of doing his job.
A career truck driver since leaving high school, 44-year-old L.T. underwent spinal fusion in 1994 to relieve back pain. The procedure did not resolve his problems and, following the surgery, he began psychiatric treatment for depression, anxiety disorder and panic attacks. Nevertheless, he began working for a large municipality as a heavy equipment operator in 1996 — a job that he described as “jarring” and akin to “riding on a park bench.”
He transferred to the least physically demanding operator jobs available to avoid straining his back. However, in 2006 while dislodging a metal pipe that had become stuck between his machine’s oversized tires, he overextended himself, causing an injury that resulted neck and shoulder pain that radiated into his fingertips. He left work and filed a claim with the provincial compensation board. He was then misdiagnosed at a walk-in clinic and prescribed physiotherapy and pain medication. The treatment aggravated his pain.
No neurological deficits
L.T. attempted a return to modified work but he found the pain unmanageable and went off work permanently in June 2007. Six months later L.T. applied for long-term disability (LTD). The municipality’s insurance carrier denied the application and L.T. appealed. Explorations about another return to work followed and L.T. was sent for a Functional Abilities Evaluation. While the evaluation found no neurological deficits it established “indicators associated with non-organic pain” and concluded that L.T. was not capable of performing the essential duties of a heavy equipment operator.
The insurer then required that L.T. undergo an Independent Medical Examination (IME) in order to determine the presence and severity of his impairment and whether or not there was clinical information to support the diagnosis.
The specialist engaged by the insurer noted the pain and limitations in movement reported by L.T. but could not establish any neurological impairment. He diagnosed L.T. with Chronic Pain Syndrome.
While the specialist did not dispute L.T.’s experience of pain, he said that neither restrictions nor limitations were applicable in L.T.’s case. A “limitation,” he said, describes something a person cannot do because of injury or illness and a “restriction” applies to something a person should not do because it may delay recovery. Without a musculoskeletal or neurological explanation for his pain, whether to work or not work was a matter of L.T.’s personal choice. Based on this assessment, L.T.’s LTD claim was denied. The union grieved.
The union arranged for another IME. The union’s specialist, a physiatrist and the director of a pain program, concurred with the Chronic Pain diagnosis and also explained some of the misunderstood elements associated with the syndrome/disorder.
Guarding behaviour
For example, chronic pain sufferers are sometimes thought to be faking because of apparently inconsistent responses to pain. One minute unable to bend as directed during an examination because of pain, the next minute they are capable of bending down to pick up a wallet that has fallen on the floor. This phenomenon is due, the union’s specialist said, to “guarding behaviour” that occurs when a Chronic Pain sufferer fears and seeks to avoid anticipated pain that is associated with a particular movement. Choice is not a factor, the experience of pain is a conditioned response that is associated with a particular movement.
In L.T.’s case significant psychological and psychiatric factors were at the root of his illness, including a long history of pre-existing pain and pain conditioning, serious anxiety disorder, panic attacks and maladaptive and rigid beliefs about the origin of his disability.
The union’s specialist concluded that L.T. was “seriously and permanently disabled from his job” and that his prognosis “for returning to any form of employment is absolutely dismal given the severity of his Chronic Pain Disorder …”
The arbitrator allowed the grievance, noting that by the end of the case no one disputed that L.T.’s experience of pain was anything but real and the employer dropped any suggestion that L.T. was feigning.
The employer’s argument, based on the first IME, that the lack of a musculoskeletal explanation for L.T.’s condition meant that work restrictions or limitations for him were not required and that he could work if he so chose was flawed, the arbitrator said.
“From this perspective, while there may be no limitations or restrictions warranted for L.T., it is incorrect to import the assumptions that inform the musculoskeletal perspective to a person whose Chronic Pain Disorder is primarily associated with psychological factors. The concept of ‘choice’ to work stems from [the doctor’s] incorrect application of these assumptions to circumstances in which they have no application.”
The arbitrator ruled that L.T. was totally disabled due to Chronic Pain Disorder and unfit physically and mentally to perform his normal occupation for the municipality.
