Worker had degenerative disc disease but pain started with workplace injury
An Ontario worker who was initially denied workers’ compensation benefits for chronic pain disability because of a pre-existing back condition has won an appeal for entitlement before the Ontario Workplace Safety and Insurance Appeals Tribunal.
The 61-year-old worker was a salesman at a furniture store, where his duties included packing and unpacking furniture onto the sales floor along with selling the furniture. On Jan. 24, 1994, the worker — then 47 — injured his lower back while moving a recliner sofa up some stairs with a co-worker in the store. The worker reported the injury to the store owner and sought treatment at the hospital. He was able to continue working on modified duties for a short while, but had to stop working on March 1, 1994, due to an increase in his back pain. He was off work for one month, returning on April 2.
The worker had previously injured his right knee at work in 1981 — before he worked at the furniture store — for which he had received workers’ compensation benefits and underwent surgery and physiotherapy. He periodically experienced pain in the knee while working at another furniture store, but it didn’t prevent him from performing his regular duties and he never took time off because of it. He joined the accident employer in March 1992 and continued to perform similar duties as a furniture salesman and later manager.
Pain became too much during retraining program
In August 1994, the furniture store laid the worker off permanently. The Ontario Workplace Safety and Insurance Board (WSIB) sponsored the worker’s enrolment in a vocational rehabilitation program for a position as an administrative services manager. The worker took the one-year program, completing it in August 1996, after which he was accepted into a two-year business administration management program beginning the following month. However, the worker was restricted by pain in his back, neck, legs, shoulders, and hands and had to withdraw from the program. His pain and related medication contributed to a foggy memory and trouble functioning. He remained off work, eventually receiving Canada Disability pension benefits. Both his family doctor and a specialist diagnosed him with fibromyalgia in late 1996.
A rheumatologist diagnosed the worker with chronic pain and fibromyalgia in 1997 and the worker attended a chronic pain management program that year, where a medical professional confirmed the diagnosis and that the “longstanding pain which started with an incident at work.” An orthopaedic surgeon also assessed the worker, determining that his pain was caused by discs in his back wearing down and osteoarthritis in his lower back.
The WSIB awarded the worker a 22-per-cent non-economic loss award for his lower back in jury in October 1995. A reassessment of his injury in June 2010 increased the award to 24 per cent and the worker applied for entitlement for a chronic pain disability, but the WSIB denied it based on a report from its medical consultant that pointed to pre-existing lumbar disc disease and degeneration in the worker’s back that contributed to his injury and pain. An appeals resolution officer upheld this decision.
Personal and professional life disrupted by chronic pain
The worker appealed the decision, arguing the widespread pain in his body kept him from working and left him unable to participate in activities outside the house with his family. The pain had been constant since his work injury and his quality of life suffered, said the worker.
The tribunal noted that the WSIB operational policy manual document on chronic pain disability compensation required the chronic pain to be caused by the injury, persisting for six or more months beyond the “usual healing time” of the injury, the degree of pain is inconsistent with medical opinion of what it should be, and it impairs earning capacity. The document also defined chronic pain disability as “the condition of a person whose chronic pain has resulted in marked life disruption” — including “social, occupational, and home life.”
The tribunal found that “there is no question” that the worker suffered from “an organic lower back condition” based on the medical assessment the worker underwent that found fibromyalgia and osteoarthritis. There was no break in the worker’s pain after his work injury and the diagnoses of his conditions came reasonably soon afterwards. In addition, the medical documentation indicated the worker’s chronic pain arose out of his work injury.
The tribunal also found that the worker met all the criteria for chronic pain disability based on the board’s policy. Though the WSIB’s medical consultant did find lumbar disc disease as a contributor to the worker’s condition, “the diffuse widespread overall body pain” the worker experienced wasn’t consistent with just the disc disease and degeneration. The extent of the worker’s pain pointed to much more than the pre-existing condition, the tribunal said.
The tribunal determined that the worker was entitled to benefits for his chronic pain disability as arising from his workplace accident on Jan. 24, 1994, and ordered the WSIB to determine the extent of his entitlement based on its operational policy for the condition.
“The physicians who have assessed the worker for his work-related lower back complaints have generally emphasized a chronic pain aspect to the case as early as 1996…,” said the tribunal. “On a balance of probabilities, I find that the worker has met the criteria for (chronic pain disability) under the board’s chronic pain disability policy.”
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