Worker continued to experience pain from shoulder and arm injury, but had already received benefits for that; ongoing pain from CTS, migraines not compensable
An Ontario worker’s chronic pain is from other organic ailments and not related to a partial disability stemming from a workplace injury, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The 40-year-old worker was employed as a public affairs associate with a large municipality in Ontario. The municipality hired her in June 1998 as a public affairs co-ordinator and moved to the associate position in 2003. Her job duties included typing more than half the time along with using the phone and writing notes.
Nine years later in April 2007, the worker — then 29 years old – reported a gradual onset injury to her neck, upper and lower back, abdomen, shoulders, arms, elbows, forearms, wrists, hands, and fingertips on both sides.
The worker sought medical attention for her ailments and underwent an MRI, which revealed a small central disc protrusion and a small lateral disc protrusion in her back, but there wasn’t any encroachment on her nerves or her spinal cord. The rest of her cervical spine appeared to be normal and a bone scan a couple of weeks later was also normal.
The worker reported her injury to the Ontario Workplace Safety and Insurance Board (WSIB), which conducted an ergonomic assessment of the worker’s workplace. The assessment determined that the public affairs associate position had several risk factors that could cause, contribute to, or aggravate neck, shoulder, and arm injuries.
The results of the assessment prompted the WSIB to allow entitlement to workers’ compensation benefits for a repetitive strain injury to the soft tissue of the worker’s neck, shoulders, and arms. The WSIB determined the disc protrusions in the worker’s back were minor and didn’t contribute to her injury.
The worker received loss-of-earnings benefits until June 31, 2007. She was able to return to work on modified duties with graduated hours one month later after the municipality implemented recommendations from the ergonomic assessment.
An orthopaedic surgeon and a physiotherapist assessed the worker in January 2008. They found the worker was “pain focused” but had diffuse pain with no objective pathology for it. The surgeon believed the worker would be able to fully recover with “no significant ongoing impairment.”
The WSIB noted that the worker’s work hours should be increased and she could follow the employer’s return-to-work plan, which would place her in full-time duties by March 17. The worker was able to return to her full-time duties by the expected date.
The worker appealed the denial of benefits for her cervical spine protrusions, but withdrew the appeal when she took a leave of absence to move to the U.S. with her husband. After her leave of absence expired in July 2009, she resigned from her job.
Worker diagnosed with multiple painful conditions
After she moved to the U.S., the worker consulted specialists and received massage therapy and physiotherapy, but her pain got progressively worse. In 2011, she was diagnosed with carpal tunnel syndrome in her right wrist and thoracic outlet syndrome in her hands and fingers.
In 2010, the worker reactivated her appeal, but an appeals resolution officer agreed with the original decision that the worker’s entitlement was limited to the soft-tissue injury to her neck, shoulders, and arms. The officer found the soft-issue injury had resolved without a permanent impairment and the cervical spine condition wasn’t work-related. In addition, there was no medical evidence that the worker experienced ongoing symptoms following her return to full-time duties.
The worker appealed for entitlement for a permanent impairment of her neck, shoulders, and back with evidence of treatment for her neck and shoulders up to 2012. The Ontario Workplace Safety and Insurance Appeals Tribunal found there was consistent evidence from the medical reports that the worker continued to suffer pain in her neck and shoulders, and the impairment was “compatible with the nature of the original repetitive strain injury.” The worker was granted permanent impairment benefits for her neck and shoulders — a non-economic loss award of eight per cent — but not her back.
The worker then filed a claim for chronic pain disability (CPD), arguing the pain she continued to suffer since the workplace injury in her neck, shoulders, hands, and related headaches limited her ability to work, caused her anxiety, and affected her social activities. She also said she was forced to find work that didn’t involve using her hands, arms, and fingers in a repetitive way because of her carpal tunnel syndrome, but it wasn’t easy to find such work — she found part-time work as a health care trainer through a vocational rehabilitation program, but could only work four to five hours per day for less pay. Her claim was denied, and the worker appealed the denial of entitlement for CPD to the tribunal.
The tribunal noted that there was no dispute that the worker was injured at work — the WSIB had recognized her entitlement for shoulder and arm injuries. However, at the time of her injury in 2007, she was diagnosed with repetitive strain to the neck, shoulders, hands and risks, but not carpal tunnel syndrome.
The tribunal found that from 2009 onward, the worker received diagnoses for various conditions while she lived in the U.S. — migraines, carpal tunnel syndrome, thoracic outlet syndrome, and jaw pain. All of these were legitimate diagnoses supported by medical documentation, but they had their own organic causes that were responsible for the pain she felt in each area. Only the pain in the worker’s shoulders and arms were related to her workplace injury, and the worker already received workers’ compensation benefits for that injury and returned to work after her recovery, said the tribunal in finding no compensable permanent impairment.
“I recognize that the worker may subjectively attribute the symptomology in other areas, beyond the neck and bilateral shoulders, to the compensable repetitive strain injury and an evolution in its symptoms,” the tribunal said. “However, the evidence before establishes that organic causes have explained the worker’s symptomology involving other areas, associated with conditions for which she does not have entitlement, and are not areas of entitlement before me to consider in this appeal.”
The tribunal noted that the level of the worker’s pain may be more than the eight-per-cent non-economic-loss award provided, but it couldn’t rule on that as the only issue in the appeal was the worker’s entitlement for CPD.
For more information see:• Decision No. 2176/18, 2018 CarswellOnt 14842 (Ont. Workplace Safety & Insurance Appeals Trib.).