Medical evidence showed chronic pain disorder with psychological elements arose out of work-related injury: Tribunal
The Ontario Workplace Safety and Appeals Tribunal has granted a worker’s appeal for benefits for chronic pain stemming from a workplace injury, overturning an earlier rejection of the worker’s claim by the province’s Workplace Safety and Insurance Board.
The 51-year-old worker started a job as a food production worker at a fast food restaurant in June 2000. Part of her job involved lifting and filling 5 kg bags of food and fastening them with a clipper machine. She filled trays with the bags, with each tray containing 160 bags each. Over the course of the workday, she filled 40 trays, meaning she lifted and filled between 360 and 480 of these bags per hour. Over time, she developed shoulder pain from the constant moving of her arm and neck during the process. She also claimed the temperature of the bags — about four degrees Celsius — made her feel worse.
On Dec. 17, 2006, the worker filed a report of injury with the Ontario Workplace Safety and Insurance Board (WSIB) for a gradual onset injury to her shoulder and neck from the repetitive lifting and filling of the bags. The board accepted her claim and granted her benefits with an injury date of Sept. 14, 2007.
X-rays of the worker’s spine showed degenerative changes while the worker reported ongoing pain in her neck, head and face along with jaw locking. She also had trouble sleeping and experienced headaches, noise sensitivity, fatigue, dizziness and blurred vision. She had a previous diagnosis of migraines and tension headaches, but had been diagnosed in May 2008 with a repetitive strain injury to her neck, neck and shoulder pain, transmandibular joint dysfunction from chronic pain and stress, and depression secondary to chronic pain. Her doctor reported that these conditions “originate from an overuse injury at work.”
The worker’s doctor also stated that the worker may need a gradual return to work and may only be able to work part-time, but it was possible she could return to full-time work.
A neurologist found no abnormalities related to the worker’s pain and a rheumatologist determined the worker’s upper extremities were normal without “any objective or neurological complication.” However, a functional rehabilitation assessment in 2009 determined the worker had “permanent functional precautions” for her neck and shoulders and she should “avoid prolonged head forward positioning; avoid repetitive or prolonged at or above the shoulder level activity involving the upper extremities; avoid repetitive resistant pushing and pulling activities, bilateral load handling at the sedentary demands level.”
The restaurant couldn’t accommodate the worker’s restrictions from her injuries, so the WSIB referred her to labour market re-entry services in October 2009. A plan was developed that identified suitable employment or business (SEB) of retail salespersons and sales clerks.
An assessment for the labour market re-entry program determined the worker had pain with a psychological element to it, but it wasn’t a barrier to her returning to employment and participating in on-the-job training. Further reports during the program indicated the worker was “pain-focused” and had pain and numbness in her left arm and hand, along with neck pain, but this wasn’t seen as a barrier to her progress.
Worker couldn’t go back to work full-time
By October 2010, the worker completed the program and was considered employable in the SEB assigned to her. She recommended a part-time program so she could dedicate more time to pain management strategies but she was put in a work placement in a large department store. The WSIB granted her partial loss-of-earning benefits to make up the difference between estimated SEB wages and what she earned at the restaurant before her injury.
However, the worker didn’t find suitable employment and indicated a preference for part-time work, as she found full-time hours in her work placement were too much. A psychiatrist diagnosed her with “chronic pain syndrome with physical and psychological components” along with secondary depression from her injuries. The worker filed a claim for chronic pain disability that was interfering with her ability to perform work in retail positions. She said the chronic pain was a direct result of her work injury.
A WSIB case manager denied her claim in June 2011, finding there was insufficient information to show entitlement because of her work-related injury. The case manager found the worker suffered “from a variety of additional conditions that are major contributors to her pain.”
The worker appealed the decision and in April 2013 an appeals resolution officer upheld the decision, finding the worker was capable of full-time work as a retail salesperson or sales clerk. The worker continued to receive partial benefits based on the difference between projected SEB earnings and her pre-injury earnings, while she appealed again. Her second appeal was also rejected by the appeals resolution officer.
The worker appealed once again, this time to the appeals tribunal. A doctor’s report stated that the worker “insisted” she couldn’t do any of her old jobs or even household chores do to her pain and depression. The doctor found her “persistent severe symptoms, consistent abnormal physical examinations” and diagnosis of chronic pain disorder made her eligible for the Canada Pension Plan disability pension, which the worker was granted in April 2015. The doctor concluded that the worker wasn’t expected to be able to return to gainful employment and should be considered “totally and permanently disabled” from the workforce.
In October 2015, another psychiatrist reported that the worker’s pain developed because of repetitive work and her condition was “chronic and prolonged.” He determined that she had “chronic disabling illness” that was a “major psychiatric disorder.”
The tribunal noted that the WSIB operational policy manual set out five criteria for entitlement for chronic pain disability. They are:
• A work-related injury occurred.
• Chronic pain is caused by the injury.
• The pain persists for six or more months beyond the usual healing time of the injury.
• The degree of pain is inconsistent with organic findings.
• The pain impairs earning capacity.
The manual also defines chronic pain disability as when pain results in “marked life disruption.”
The appeals resolution officer had found the worker met all of the criteria in the policy manual except for that the degree of her pain was inconsistent with organic findings and therefore had other causes. However, the tribunal disagreed.
The tribunal found the worker had medical reports that indicated her work-related injury began the pain cycle and her chronic pain disorder sprung out of her diagnosed repetitive strain injury to her neck, jaw, shoulder, and arm. In addition, assessments ruled out any neurological basis for her chronic pain.
The tribunal also noted the worker’s 2009 functional rehabilitation assessment diagnosed her with permanent limitations from her chronic pain and all reports indicated the pain continued for much longer than six months — the normal healing time for a repetitive strain injury. In addition, it clearly limited her earning capacity, said the tribunal.
The tribunal also found that the SEB of retail salesperson or clerk was suitable for her only as long as the work conformed to her restrictions. However, based on the medical reports and labour market re-entry assessments, the worker wasn’t capable of performing SEB duties full-time.
The tribunal found the worker was entitled to partial loss-of-earnings benefits based on part-time hours at the minimum wage in her SEB.
For more information see:
