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Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelleAppeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étageToronto ON M5G 2P2 Toronto ON M5G 2P2

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

DECISION NO. 1368/09

BEFORE: C. L. Dempsey: Vice-Chair

HEARING: June 11, 2009 at St. Catharines OralPost-hearing activity completed on December 7, 2009

DATE OF DECISION: May 3, 2011

NEUTRAL CITATION: 2011 ONWSIAT 1009

DECISION(S) UNDER APPEAL: ARO Decision dated March 25, 2008

APPEARANCES:

For the worker: Mr. Donald Porter, Paralegal

For the employer: Not participating

Interpreter: N/A

- IIT

Decision No. 1368/09

REASONS

(i) Introduction to the proceedings

[1] The worker appeals the March 25, 2008 decision of ARO G. Ciccocelli which denied the worker’s claims for Chronic Pain Disability (“CPD”) entitlement, a re-determination for her organic Non-Economic Loss (“NEL”) award, and a May 13, 2003 recurrence. The ARO also found the modified work offered by the accident employer to be suitable for the worker.

[2] The worker appeared and gave oral testimony. The worker was represented by Mr. Donald Porter, a paralegal. Mr. Porter made oral submissions on behalf of his client, as well as providing written submissions in respect of post-hearing materials requested by the Vice-Chair. The accident employer did not participate.

[3] The Vice-Chair had before her the Hearing Ready Letter dated February 7, 2007, the Case Record, four addenda and one post-hearing addendum.

[4] For the reasons set out below, the worker’s appeal is allowed in part.

(ii) Issues

[5] The worker appeals to the Tribunal claiming that she is entitled to the following:

1. Entitlement for CPD benefits;

2. A recurrence of May 13, 2003;

3. Entitlement for a NEL redetermination (on an organic basis); and

4. A finding that the modified work offered by the accident employer was unsuitable.

(iii) Background

[6] The worker, now 59, commenced work as a part-time laboratory assistant with the accident employer, a hospital, on May 6, 1986. After being trained as a phlebotomist, the worker became a full-time employee. Generally speaking, a phlebotomist is a technician trained to collect blood from a vein, transport blood samples and, sometimes, perform diagnostic testing.

[7] On July 15, 1999, the worker injured her lower back after turning off a patient’s air conditioner and then bending over to draw the patient’s blood. The worker described extreme pain in her lower back which radiated to both the left and right side with further radiation down the inside of her left leg to her foot. The worker attended at the accident employer’s emergency department and was diagnosed with acute mechanical back pain.

[8] The worker was treated conservatively with analgesics, physiotherapy and work absences. Entitlement was granted on a disablement basis. Despite ongoing treatment and, eventually, modified work, the worker continued to complain of low back pain. Additionally, the worker experienced periodic absences from work. However, it was determined by the Board that much of this lost time occurred without appropriate

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authorisation or did not correspond with medical treatment. For those periods with evidence of appropriate medical attention that related to the worker’s compensable low back condition, the worker received LOE benefits.

[9] The worker’s low back pain complaints continued, but gradually expanded to encompass other areas of her body. Additional medical investigations were undertaken in order to assist in the worker’s care. The additional testing revealed minor, pre-existing, degenerative changes in the worker’s spine, but also indicated the likelihood of a permanent impairment. The degenerative changes in the worker’s spine were not considered to be significantly disabling or to be delaying her recovery.

[10] The worker’s pain complaints included sensations of radiating heat and cold, as well as a “numby, pinchy, tingly” sensation present throughout the day. The worker also reported “burning pain” in her back, sacrum, buttocks, posterior thighs, posterior calves, interior thighs, groin, hips, knees and toes. She also complained of a sense of tightness and the intermittent loss of feeling in parts of her toes.

[11] In June of 2002, the worker and the accident employer met to discuss various ways in which the accident employer could accommodate the worker’s concerns. In particular, the worker had expressed concern that the walking required by her job significantly contributed to her pain. The accident employer offered to provide the worker with a motorised scooter so that she would not have to walk. The worker refused the assistive device on the basis, according to both the worker’s testimony and a letter dated November 14, 2002, that she found it to be psychologically demoralising.

[12] Based on an August 28, 2002 NEL assessment the worker, as of November 27, 2002, was granted an 18% NEL award for chronic mechanical back pain –an organic impairment.

[13] The worker disputed the suitability of the modified work offered by the accident employer and took issue with the Board’s evaluation of her level of impairment. A September 27, 2002 Work Capacity Assessment Report concluded that the full-time modified work was suitable for the worker, as all the physical demands were well within her physical limitations.

[14] According to her letter dated November 14, 2002, the worker advised the WSIB that, among other things, she could not accept her employer’s offer of an assistive device (a scooter) because the scooter was “…out of place in [her] mind, in [her] heart and in [her] soul.” The worker’s letter further noted that “the walking was the biggest issue” for her in doing her job and questioned whether it was wrong to want to do a job in a manner that she could “be happy.”

[15] Further, a November 20, 2003 ergonomic assessment concluded that the job demands in the modified job did not exceed the worker’s medical precautions and that the job demands were unlikely to contribute to an aggravation of the worker’s compensable injury. The worker was also referred to a pain clinic for assessment. In sum, the worker’s efforts to return to work were of limited success.

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[16] On May 13, 2003, while participating in return to work activities, on a modified basis, the worker experienced an adverse reaction to pain medication. The worker reported difficulty breathing, chest tightness, nausea and dizziness.

[17] The worker concluded that she was incapable of returning to any form of employment and took steps to obtain Canada Pension Plan Disability Benefits, as well as the pension related to her work with the accident employer. Subsequent medical assessments did not reveal any additional, objective findings related to the worker’s compensable, organic impairment. At this point, given the lack of objective, additional, organic findings related to the worker’s compensable injury and in light of her claim of total disability, the worker’s physicians queried the possibility of chronic pain disorder.The worker underwent a variety of medical evaluations, as well as trials of different medication and alternative types of therapy. The worker advised the Board that she did not receive ongoing relief from any of these treatments. During this period the worker’s physicians identified a number of non-compensable conditions for which she received treatment, including arthritis of the right hip, mild cervical disc bulging, borderline changes of central canal stenosis, and sleep apnea.

[18] The Claims Adjudicator denied the worker’s claim for totally disability and determined that she continued to be partially disabled due to the compensable condition. The Claims Adjudicator also determined that the modified work offered by the accident employer continued to be suitable for the worker and that the objective medical evidence did not demonstrate a deterioration from the worker’s NEL levels.

(iv) Law and policy

[19] Since the worker was injured on July 15, 1999, the Workplace Safety and Insurance Act, 1997 is applicable to this appeal.

[20] Further, the Board has advised that the following policy packages, 9, 28, 36, 62, 88, and 300, would apply to the subject matter of this appeal.

[21] The Panel has considered these policies as necessary in deciding the issues in this appeal, in particular:

• Operational Policy Manual (“OPM”) Document No. 15-04-03 “Chronic Pain Disability”;

• Operational Policy Manual (“OPM”) Document No. 15-03-01 “Recurrences”;

• Operational Policy Manual (“OPM”) Document No. 18-05-09 “Redetermination and Recalculations”; and

• Operational Policy Manual (“OPM”) Document No. 19-04-06 “Suitable Employment”.

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(v) Relevant medical evidence

[22] In a physician’s progress report dated September 29, 1999, Dr. W. West, the worker’s family physician, diagnosed the worker with myofascial strain of the lumbar spine.

[23] The worker was seen by Dr. R. Klimek, a neurologist, for “bilateral leg discomfort”. In a report dated October 15, 1999, Dr. Klimek provided the following:

Chief Complaint: She developed on or about the 15th of July an acute lower back strain. She was bending as a phlebotomist at the hospital. This waxed and waned. She was off work for a week and then returned to work. The original discomfort was lower back going into the left leg and the ankle. About a week later she developed numbness of the whole right leg in addition. The crotch also felt tingly. She did not lose control of her bladder or bowel. She still continues to work.

She thinks the leg is a bit weak on the right or at least cannot walk quite as far as she used to. It does not drag.

…

Impression and Recommendations: The history is so striking that I am puzzled with the paucity of clinical findings. Given a normal CT and a credible but striking history such as this an MRI of the lumbar spine is appropriate. The possibility of a central disc herniation sparing the bladder is uncommon but needs to be excluded….

[24] In an MRI dated November 11, 1999, Dr. A. Menta, a radiologist, found very mild disc bulges at L3-4, L4-5 and L5-S1 with no evidence of significant central spinal stenosis, as well as mild narrowing of the L4-5 neural foramina on the left side.

[25] The worker was seen by Dr. P. Ansari, an orthopaedic surgeon on December 15, 1999. In a report dated December 30, 1999, Dr. Ansari noted, among other things, that the worker continued to have “…problems with [her] lower back with tingling sensation going down the right leg to the top of the foot to the big toe, sometimes the left leg also.” Dr. Ansari recommended that the worker continue with physio traction, which was assisting her, and an exercise programme “which she will have to do for the rest of her life”, as well as wearing a lumbo-sacral corset.

[26] The worker was seen again by Dr. P. Ansari on April 19, 2000. In a report dated April 24, 2000, Dr. Ansari noted that on “certain days” the worker experiences lower back pain along with “some discomfort in the leg.” The report noted that lifting and repetitive movement, such as bending, aggravated the worker’s back and made it quite uncomfortable. In Dr. Ansari’s opinion, the worker had a low back pain syndrome that would continue to cause her problems “off and on.”

[27] The worker was seen by Dr. R. McMillan, a physical medicine and rehabilitation specialist, who, after examining the worker and reviewing her “extensive investigations” (including the September 29, 1999 MRI), provided the following opinion in a report dated September 30, 2000:

[i]n summary, this 49 year old female presents with mechanical low back and lower extremity pains. Physical examination and previous radiological

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investigations have not revealed any neurological abnormalities. She did have bilateral tight hamstrings which can produce the low back and lower extremity symptoms.

I have encouraged [the worker] to persist with her daily activities. It is very important that she does the daily stretching exercises including hamstring stretches....There is no medical indication to continue on modified duties....

[28] In a report dated December 1, 2000, Dr. D. Salanki, the worker’s chiropractor, advised that he was treating the worker for low back pain with sciatic nerve radiation. Dr. Salanki further advised that the worker had been making good progress, had significant reduction in pain and accompanying increases in functional mobility. He noted that the worker suffered “significant flare-ups” in low back pain as a result of returning to full duties prior to being functionally able to handle such duties.

[29] In a report dated March 26, 2001, Dr. J. Tokar, a specialist in nervous system disorders, provided the following:

I reassessed [the worker] at your request on March 13th, 2001 and she was seen again in the office on March 21st, 2001 for EMG studies to determine a possible neurogenic basis for her back and bilateral leg pain.

Looking back in my notes, it seems that I saw her in late May of 1996 when she complained of similar symptoms. She stated at that time that her hands had been symptomatic since October of 1995 and wondered whether she might have carpal tunnel syndrome. This initially affected the left hand and then subsequently began to involve both hands, just the fingers. Following this, she began to experience a tingling warm sensation in both legs, which would spread from the knees to the toes. These episodes were brief in duration, occurring once or twice a day, but not every day. She denied any history of neck injury or neck pain. She had been experiencing stress incontinence on and off since her [surgery]. This had not changed. She also complained of stammering speech and word finding difficulties over a period of about five years on and off. She also complained of fatigue.

...

IMPRESSION AND RECOMMENDATIONS

[The worker] appears to have mechanical back pain. I can find no neurological correlate for her pain at this time and nothing to suggest sufficient structural disease to warrant any surgical intervention. Her present job, in any case, because it requires her to bend on a regular basis would be inappropriate for her at this time. I would recommend vocational rehabilitation and continued involvement in her present exercise pain. I suspect that she will gradually experience some recovery, but after two years of disability and deconditioning. I would expect that she would not be able to participate in any job that would require repetitive or sustained bending or lifting.

[30] In a physician’s report re-opened claim dated January 3, 2002, Dr. West provided a current diagnosis of low back myofascial pain, plus disc bulges and bilateral leg pain. In the report Dr. West stated that the worker had really not experienced a recurrence as much as she was having ongoing problems because she had “never really gotten any better....”Dr. West further noted that the accident employer put her on a more strenuous work schedule which made the worker’s back worse.

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[31] The worker was seen by Dr. R. Safranyos, an internist and geriatric specialist. In a report dated March 4, 2002, Dr. Safranyos advised that he had reviewed the worker’s situation, including her medical records and opined that her “...problems seem to be sacral nerves.” As he was unsure whether the worker’s sacral nerves had been tested, he was referring her for a second opinion.

[32] Dr. West submitted another physician’s report re-opened claim dated March 4, 2002 in which he provided a diagnosis of mechanical low back pain of a persistent nature. Dr. West described the worker’s condition as follows: “[t]his woman has ongoing low back pain in the lumbar paraspinals. She gets radiating pain into the buttocks and the thighs, worse with any kind of walking, even walking more than 20 mins. at a time.”

[33] At the behest of the Board, the worker was referred for a multidisciplinary health care assessment. In the recommendation section of a report dated March 6, 2002, the assessment team provided the following:

[The worker] has complained of pain in her lower extremities, which is atypical of either mechanical or discogenic back pain. Her symptoms appear to be migratory in nature and not consistent. This includes her pain as well as her paresthesias in the right lower extremity. Her clinical examination reveals absent ankle jerks bilaterally with no other stigmata of mechanical or discogenic pain. [The worker] also complained of discomfort with compression of her coccyx with pain radiating towards the anterior aspect of the pubis.

[The worker’s] diagnosis has yet to be determined. We were unable to identify specific orthopaedic or neurological entity that may be causing this pain. We would suggest [the worker] be assessed by a neurologist to consider other than mechanical or discogenic back pain....

[34] The worker underwent a NEL assessment on August 28, 2002 which was conducted by Dr. J. Ostronski. According to Dr. Ostronski’s NEL Summary Report, the worker reported leg pain more so than back pain, persistent sensitivity and burning pain in the legs and groin region, numbness, tight feeling at the thighs and knees, and hypersensitivity in certain regions. The Soft Tissue Pain Diagram completed at the NEL assessment indicated that the worker’s pain radiation included her buttocks, legs, feet and groin. The worker described this pain as daily, strong and persistent. According to the worker her pain averaged 6-7 out of 10, with severe pain being 9 out of 10.

[35] According to Dr. West’s clinical notes, the worker was seen on September 9, 2002 as a follow-up to an Emergency Room visit the previous week. The notes state that the worker sought emergency medical attention for shortness of breath and a cough. The notes also state the following:

She is still getting some back aches on and off. The numbness she was getting around her waistline, she occasionally gets in her scalp and kind of shoulder area, kind of a soreness or numbness, she can’t really describe it. Occasionally her wrists and the 1st MCP joint and metacarpal-carpal joints get it. So actually it may be some arthritis there in those joints of the thumb….She has been through all kinds of test for her back and there is nothing more we can do for her except her exercises and put up with it….

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[36] The worker was seen by Dr. R. Roman on September 11, 2002 for a Work Capacity Assessment. In a report date September 27, 2002, Dr. Roman noted that the worker’s then current diagnosis, recurrent lower back pain, was “…mainly based on subjective symptoms with little or no objective evidence.” Dr. Roman’s report described the worker’s complaints of “…back pain as centred on the right paralumbar area with a pattern of radiation into the right anterior thing and groin, and occasionally the medial aspect of the left leg. The worker’s complaints also included periodic “…sensory changes in her legs described as temperature changes and numbness.” The worker also noted intermittent muscle twitching of her legs and a sense of heaviness in both legs. Upon examination,Dr. Roman did not find “…any objective functional impairment.” Commenting on the worker’s past medical history, Dr. Roman observed that “[i]nterestingly, Dr. Tokar’s consultation notes indicates that [the worker] was developing similar problems in May of1995, when she was complaining of sensory disturbances involving both legs and hands. All investigations performed at that time were negative.” In Dr. Roman’s opinion, the worker’s major limiting factor was her chronic pain. Finally, with respect to the worker’s functional capabilities, Dr. Roman noted that the worker had deficits in lifting, but stated that:

…the amounts that she requires to lift in her present job are well with her PDA limits. Sustained overhead work is rare. Positional activities such as squatting, kneeling or crouching occur occasionally and are within her functional limits. She requires a lumbar support for prolong sitting. She does not need to climb steps. Her walking tolerance is decreased. Since she travels frequently at intervals of up to 5 minutes continuously for up to 66% of her shift, [the worker] could be provided with an assisted mobility device.

[37] In Dr. West’s clinical notes for an October 3, 2002 visit, he noted, among other things, that the worker:

[i]nterestingly, [had] been using some of her husband’s Fiorinal C¼ for the back pain and that seems to be tolerated quite well to do her job. We have tried several other medications, narcotic wise, and she wasn’t able to tolerate them. Interestingly, even the Atasol 15 wasn’t tolerated, which has the same amount of Codeine but has Tylenol instead of Aspirin. But if it works for her that’s fine….

[38] The worker was seen by Dr. West regarding a facial rash, coughing spasms, hoarseness, mild eczema, and heart palpitations (related to a “leaky” heart valves), all matters unrelated to her compensable injury, on October 21, 2002 and November 18, 2002.

[39] As of November 27, 2002, the worker was granted a NEL award with the quantum set at 18%.

[40] On February 20, 2003, the worker was again seen by Dr. West whose clinical notes state the worker had been prescribed Mobicox which “…seem[ed] to take the edge off her low back pain. She still gets some down the legs but not quite as bad.” The worker also complained of occasional sharp pains from her waist up to her mid back. In Dr. West’s view this pain was related to her chronic low back pain and was “…something [the worker] is going to have to live with.” In addition to complaints of back pain, the worker also complained of tightness of the fingers, an inability to feel hot or cold, and cold feet.

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[41] In a clinical note dated March 19, 2003, Dr. West recorded that the worker’s intake of Fiorinal was helping her back pain “a bit”, but that it was causing nausea and the worker queried alternatives. The note also stated the Mobicox was helping her back pain, but not the pain down her legs. Dr. West stated that the worker had “…seen just about everybody you can see about her back and other troubles…” and noted that all treatment avenues hadbeen exhausted.

[42] Dr. West’s April 1, 2003 clinical note states that the worker had undergone TENS therapy at a physiotherapist and found that the machine helped her back, but only when it was in operation. Dr. West noted that the worker continued to have “…alot [sic] of discomfort in her lower lumbar paraspinals and into the buttocks with somewhat decreased ROM.”

[43] According to Dr. West’s chart notes, on April 15, 2003, the worker could only “walk so far” and “gets lots of pain”. The worker was seen again by Dr. West on May 2, 2003 with complaints of a sinus headache, dry nose and post nasal drip. The worker also reported that she was “still having trouble with back pain.” The notes also state that the worker was having difficulty walking “any distance” because of her back pain and thus wanted a disabled parking permit.

[44] The worker was next seen by Dr. West on June 6, 2003. According to the clinical note for that visit, the worker reported that on the advice of the WSIB nurse or case manager she had taken her medication (Dilaudid) every four to six hours which caused her to feel “pretty unwell” the previous week (e.g. tightness in the chest, shakiness and difficulty breathing). As Dr. West noted, this reaction was foreseeable: “[w]e haev [sic] been through this all before. She is very sensitive to all narcotics…I explained to her again, it is not that it is an allergic reaction, it is just that she is sensitive to higher doses of the Dilaudid.” The clinical note further stated that Dr. West was trying to assist the worker with a new TENS machine, which seemed to ease the worker’s discomfort. When the worker was seen on June 13, 2003, Dr. West noted that “[s]he may be a little bit better regarding her back…” and that the TENS machine seemed to provide some relief and that a portable TENS machine was being sought so that the worker would have greater relief from back pain and the ability to increase her level of activity. The worker was next seen by Dr. West on July 3, 2003 for complaints of burning stomach pains (“mild epigastric discomfort”) that sometimes went into her back and were worse at night. As stated in the clinical note, the worker requested that Dr. West provide “…some kind of note saying she is unable to do her job because of her condition. Her pain is no better and even worse at times and she tried doing some part-time at the hospital working in the lab there and just could not handle it.”

[45] The worker was seen by Dr. West on July 8, 2003 and July 25, 2003. The July 25, 2003 clinical note indicated that the worker was “still havign [sic] trouble with her back.” Which Dr. West described the back pain as chronic and long standing.

[46] Dr. West completed a Medical Report, dated September 16, 2003, in support of the worker’s claim for a Canada Pension Plan Disability award. Dr. West listed the worker’s diagnoses as follows: chronic pain syndrome involving the lower back and pelvic area

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(initially related to mechanical low back pain and associated minor disc bulges at the lower three lumbar levels), asthma and recurrent chest pains (as of yet undiagnosed). Dr. West advised that in his opinion the worker was unemployable.

[47] Dr. West’s September 22, 2003 clinical note stated that the worker was complaining of excessive sweating, as well as heat starting in her back and then travelling into her scalp and chest (which another physician diagnosed as hot flashes). The worker was next seen by Dr. West on September 30, 2003. The clinical note states: “This lady has ongoing trouble with low back pain. She seems to be reasonably well controlled with the Fiorinal she is using of late…she can only walk a short distance without alot [sic] of back discomfort.”

[48] A Functional Abilities Form for Timely Return to Work, dated October 16, 2003, was completed by Dr. West. Providing the area of injury as low back and left upper leg, Dr. West opined that in the worker’s then present condition she would be unable to work in any capacity in the near or distant future.

[49] During a November 17, 2003 visit, the worker reported that the Mobicox medication was helping her back (although there was still pain), but that it was not helping with her legs and, in her view, impacted her breathing. The worker, who has asthma, also complained of tiredness in her left arm and ringing in her left ear. The worker was next seen on December 1, 2003 and she advised Dr. West that she was feeling better with Bextra (a non-steriodal anti-inflammatory) and was not having problems breathing as she had before. The worker reported that she still had the same pain in her chest and legs, but after taking an extra oral diuretic she felt better.

[50] The worker was seen again by Dr. J. Tokar on December 2, 2003 for reassessment of bilateral leg pain. In a report of the same date, Dr. Tokar provided the following:

[The worker] reports that, if anything, she is worse now than at the time of my previous assessment. She has pain mostly in her legs, more so the left than the right. This seems to involve the posterior aspect of her legs extending from the buttocks to the ankles. There is a constant sense of burning discomfort in this area. She gets some relief lying down on the floor, for example, with her legs elevated. As soon as she puts weight on her feet on first rising in the morning, she has asense of stiffness and tightness, not only in her lower extremities and buttocks, but extending from the neck downward. The burning at times can radiate all the way up to the top of her head. She never feels a burning sensation over the front of her body, except perhaps, in the “midriff” area, which by this she means the upper abdominal area bilaterally. She describes this as if a tight rope is wrapped around the middle of her body. Even her eyeballs burn at times. Her eyes often feel dry, but eye drops do not help. Lying down or sitting seems to be of some benefit. The worst position for her is standing. She can stand for one or two hours at most. This time interval till onset of pain is decreasing with pain….

The neurologic examination is again objectively normal, as are nerve conduction studies. There is some restriction of motion of the right hip, which seems to be related to local hip joint pathology and you may have information in this regard, such as a recent hip x-ray result or findings from Dr. Dickson’s assessment. The unusual pattern of burning dysesthasia affecting only the posterior aspect of the body extending from the head to the ankles is somewhat unusual and out-of-

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keeping with a recognized central or peripheral primary neurologic disorder. This would be more in keeping with perhaps a myofascial pain syndrome or even fibromyalgia, although I am uncertain of this possible diagnosis. Given that she has had numerous MRI studies in the past, which have been normal, I see no reason to pursue this with further imaging, nor do I feel that any more invasive studies are appropriate at this time. I can only suggest ongoing supportive therapy. You may wish to consider another referral to Dr. Dickson with respect to a possible diagnosis of fibromyalgia syndrome.

[51] Dr. Tokar provided an additional report, dated May 27, 2004, which set out again the worker’s various pain complaints and Dr. Tokar’s investigations thereof. Specifically, the report states that the worker had been seen:

…several times in the past for a variety of complaints which have included lower back and lateral leg pain, numbness and tingling in both hands, and a burning sensation affecting the posterior aspect of her body and head with a sense of tight bands wrapped around the middle of her body. She was last assessed in this regard on December 2nd, 2003. At that time she was complaining that even her eyeballs would burn at times. She complained of a feeling of dryness in her eyes. Any weight bearing on her legs would cause her to feels [sic] this burning sensation. She could only alleviate this by lying down or sitting. The worst position for her was standing. She attempted to take Percocet, but this caused the veins to “pop out” in her neck and she discontinued the medication. She had similar ill effects from gebapentin.

[52] Dr. Tokar listed the worker’s current medications as “Triazide, Pulmicon, Boxtrum, Fiorinal C ½ (which she takes on and off for back pain), a multivitamin…” and supplements. In Dr. Tokar’s opinion the worker’s neurologic examination was, again, normal.

[53] The worker was seen by Dr. J. Dickson, a rheumatologist, on February 11, 2004 with regard to “musculoskeletal discomfort”. In a report dated September 16, 2004, Dr. Dickson provided the following:

Her complaints relate most specifically to pain. She states that she finds that she hurts in many areas and the more she does the worse the pain becomes. She also describes her joints cracking. Examples would be her knees, hips, fingers, neck and also the wrist. She has the physical impression that the pain arises in the soft tissues and the muscles. She finds that she is sensitive to touch in the scalp, side of the jaws, hands and back. She describes it as similar to a bad sun burn. She seems very sensitive to becoming cold and when she feels that way the pain increases. She describes muscle twitching, this often involves the arm.

She has fatigue which she thinks is gradually getting worse. Her sleep is disturbed by pain, which she locates in the back of her legs, which seems to waken her. She feels unwell in the morning. I asked her about her sleeping posture and she states she often sleeps on her back with her knees flexed but she tends to turn a lot when she sleeps.

She complains of memory loss although she feels that she can eventually remember. She has word finding problems. She states that sometimes she cannot remember simplest things. On the other hand she has never become lost when she was away from home.

Some of the specific pains that she describes include pain in the base of the thumb, proximal into the arms, the web space between the thumb and the 2nd finger and

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she also has pain in the hips and groin with secondary shooting pain in the legs similar to her arms. Her legs can twitch while at rest. She has pain in the arches and heels aggravated by weight bearing. She has scalp pain, tenderness, burning that she feels is radiating up from her low back. She has jaw pain, eye discomfort. She feels as though the knees burn.

Although she feels cold in the outside, she feels the joints feel hot on the inside. i.e. they do not feel hot to touch. They are not red, angry or inflamed. She has complaints of numbness and tingling and for this she saw neurology and failed to find any abnormally. She has complaints of ringing in the ears and other times she fees unstable as if she is falling over. This onset in the late Fall 2003.

She has begun to decrease activity as a result of her pain. This would include not only work but also vacations. She states that she does not go on vacations as she is afraid that she would hold other people back….

…

This assessment was primarily centred around trying to determine whether or not [the worker] had the primary fibromyalgia syndrome. It is my opinion that is not what this represents. I did not believe that the fibromyalgia tender point examination was consistent with that diagnosis and this continues to appear to be a chronic pain syndrome.

…

[54] In Physician’s Progress Report dated October 13, 2005, Dr. West provided the following current symptoms: “[c]onstant pain in back that goes down into legs and up into neck area made worse by walking or being on her feet for any length of time.” The diagnosis provided was chronic myofascial mid to low back pain with radiation.

[55] On referral from Dr. West, the worker was seen by Dr. D. Buckley a Chronic Pain Specialist. In a report date November 11, 2005, Dr. Buckley provided the following:

[The worker] has very complex descriptions of her pain. She complains primarily of chronic low back pain which she has had for approximately the past six years, which radiates into her legs and feet bilaterally. She also describes some numbness of the back of her legs, as well as some weakness. In addition to the back and leg pain, she also describes some neck pain and weakness of her arms, as well as intermittent numbness of her arms. She also complains of point tenderness of her chest and pain in her neck which also causes pain of her scalp.

She has also been tried on multiple medications for this, but seems to have a sensitivity to many of the medications, and her list of allergies includes morphine, gebapentin, amitriptyline, sulfa, Topamax, salicylates and codeine.

…

On examination, she has a good range of motion of her lumbar spine as well as her C-spine. Her reflexes and strength were normal.

…

[56] The worker underwent an MRI of her cervical spine on February 26, 2006. Radiologist Dr. E. Reddy opined that the worker had a “[m]ild disc bulge at C5-6 level predominantly centrally with borderline changes of canal narrowing.”

[57] In a report dated April 24, 2006, Dr. Buckley, the Chronic Pain Specialist, advised that following a confirmed diagnosis of sleep apnea the worker underwent a trial of C-PAP

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and began to have greater restorative sleep. The report further noted a confirmed diagnosis for the worker’s ongoing chest pain (resulting from a narrowing) and the insertion of a stent. In Dr. Buckley’s view:

…The diagnosis of fibromyalgia, which she was offered really again I must reiterate is not a useful diagnosis accepting so far as it would lead us to encouraging her to engage in aerobic activity. It does not really explain the pain but simply describes that she has pain. The fact that she has a sleep abnormality is somewhat helpful since hopefully if this can be remedied perhaps overall she will improve her function. She continues to have a fairly generalized and not specific low back pain and pain across her shoulders. This is somewhat better with the Lyrica….

[58] The worker was seen again by Dr. Buckley for follow-up on August 21, 2005. In a report of the same date Dr. Buckley advised as follows:

…After her last visit she had started using CPAP, which she said eliminated her nighttime [sic] snoring. Since that time she has decided to stop using the CPAP since it did not have a material impact on her pain….

She tried increasing the Pregabalin dose as I had suggested and found that once again she had similar side effect of not being able to speak and feeling very unsteady. She said that she was stuttering to the point that she could not get a sentence out.

She saw a rheumatologist who told her that her symptoms were not rheumatoid arthritis and not fibromyalgia, but he felt that she had an abnormal rheumatoid factor lab test, which may have been an effective medication although she is not sure what medication he though it might have been. In any case it is somewhat comforting to have an official opinion that she does not have some underlying inflammatory or rheumatologic disorder.

Recently she has been taking some low intensity laser treatment, which she feels is helping her leg symptoms. She does not feel it is helping her back symptoms very much.

…

[59] In a discharge report dated June 11, 2007, Dr. Buckley provided the following:

…

The pain description remains the same. She has pain in her buttock radiating down her legs. This is typically described as a shooting pain. She also gets pain in both shoulders in the interscapular area. Recently, she has also had some sensitivity or hypersensitivity in her face and scalp on touching and she notes that this has happened in the past.

She feels that overall the pain in her legs is better than it has been. She attributes this in part to the laser therapy she has received from the chiropractor and also to the fact that she has been walking and working out on a treadmill more regularly.

…

She finds that she is better when she takes her medication on a regular schedule rather than PRN.

Overall, she seems to have made some significant improvement. I would associate much of this with her increased and more regular exercise. She has tried a number of other medications in the past that have not been terribly helpful.

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The crucial issue here I think is keeping her exercising with an aerobic target heart rate on a consistent basis. If this is done, I suspect she will continue to do well….

[60] In a report dated September 18, 2009, Dr. West, in response to the Vice-Chair’s questions (which were contained in a letter from Tribunal Counsel Office dated July 28, 2009) regarding the prescription of Morphine (which the worker and her representative suggested had been prescribed to the worker as part of the treatment for her condition), advised the following:

…Looking back through her notes, as best as I could seek, I had not prescribed Morphine for her at any point. It may be that there is some confusion between the drug Dilaudid, which is Hydromorphone, which sounds similar to Morphine and Morphine itself, and [the worker] was prescribed Dilaudid at a certain point, around 5 to 6 years ago, it is in the notes, but even small, [the worker] found to be too strong for her, i.e. sedating and having other side effects, so she has not taken it since….

(vi) Worker’s testimony

[61] The worker provided testimony regarding the nature of her work as a phlebotomist, the compensable July 15, 1999 incident, as well as the claimed May 13, 2003 recurrence. With respect to the original incident, the worker stated that she was drawing blood from a patient when she twisted to turn off the air conditioner (a window unit). The back pain occurred after she finished drawing the blood as she tried to unfurl herself from a bent posture. The worker stated that she was stuck in the bent position until the pain subsided (which took about five minutes). The worker testified that for a week or two following the incident the pain was “bearable” but then it started up again and was “unbearable”. The worker advised that in the face of her episodic pain (“flare ups”) the accident employer provided modified duties and/or permitted her to take a few days off to rest.

[62] The worker testified that she stopped working because she was in too much pain, that she was not getting any better and despite the accident employer’s modifications (i.e. the removal of the need to travel around the hospital) her pain was still present and she was forced to lie down in between treating patients. The worker stated that she “could not take it any more.” The worker described working in the pre-surgery clinic where she would, from a seated position, draw blood from patients coming for surgery. The worker testified that despite being able to sit, her pain was still present. The worker stated that she would lay down in between patients (sometimes five patients per hour, sometimes eight patients per hour and sometimes more) and that the accident employer was aware that she was doing this.

[63] With respect to the claimed recurrence on May 13, 2003, the worker was asked if anything in particular had happened on that day and she testified that she was in a lot of pain, took her pain medication and began to feel sick and dizzy. The worker did not identify a specific incident of pain onset. The worker stated that she was unable to reach a nurse, so her representative called her husband and he came to pick her up. The worker testified that she was unable to drive because she was “out of it.”

[64] When asked to describe her hobbies prior to July 1999, the worker stated that she liked to cook, bake, bike, walk, read, listen to music, travel and engage in social activities.

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Between July 1999 and May 2003, the worker testified that “for a while” and during “the good times” she was able to continue with her hobbies, including aerobic activities. Subsequent to May 2003, the worker stated that she continued to read and socialise, but it was not the same. She no longer travelled, had difficulty sewing and looking after her grandson. The worker stated that she does not sleep through the night and generally awakens approximately four or five times per night usually due to pain in her back and legs and sometimes due to anxiety.

[65] The worker testified that “the pain is not always in the same place or type.” Sometimes it is a shooting pain, other times burning and still other times tingling. She stated that increased activity brings on the pain quickly and that continuous activity (such as walking) also causes pain. The worker also stated that even while at rest she “gets pain” and experiences painful numbness in her private areas. The worker acknowledged that she does not walk every day, but when she does walk she does so very slowing and only for 20-25 minutes on a treadmill. The worker testified that she is able to drive, but not for long distances, is able to shop, do light housekeeping (a housekeeper comes once a month for the heavy cleaning), prepare dinner, engage in self-care, and visit with her father and daughter.

[66] In response to her representative, the worker testified that she did not have a clear recollection of May 13, 2003. She stated that the medication she was prescribed and took a hydromorphone, never totally took away her pain. The worker also clarified earlier testimony stating that her modified duties were not restricted to the one clinic, but could include different areas on the same floor (i.e. walking). With respect to medication, the worker testified that she was provided Lyrica for pain and that it was effective for her pain but that the side effects were intolerable (e.g. inability to speak, room spins and illness to the point of passing out).

[67] The worker testified that prior to 1999 she travelled a lot. She testified that the last time she had been to Europe was 2001, and that she now found travelling to be too difficult, particularly walking on slopes. The worker further testified that she had been to Cuba in 2007 and 2008 and Mexico in 2009. She stated that although her pain was still present while on vacation she could not “deny [herself] a life”. The worker stated that while on such vacations she would drive around in a golf cart, relax, sit on the beach and take in shows.

[68] In response to the Vice-Chair’s questions, the worker testified that the quality of her pain has remained unchanged since 2003 and that it is “still there” but has migrated to her upper back and other areas. The worker also stated that she used to experience a lot of bi-lateral knee pain (constricting and burning sensations), but no longer experiences that type of pain. When asked to compare her current pain to the pain she described during her August 28, 2002 NEL assessment, the worker testified that the pain is the same, but that it has migrated and has expanded to include tingling, other types of pain and sensations that while unpleasant are tolerable.

[69] The worker also advised the Vice-Chair that as of May 13, 2003 she realised that the job she was doing was “unsuitable” because it involved “continuous bending” although

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she “…wasn’t bending with [her] back, [she] was constantly moving back and forth, up and down, bending to retrieve supplies from the cart.” The worker stated that she now realises that it does not matter what type of job or activity, the pain is always present.

(vii) Submissions

[70] The worker’s representative submitted that the position provided to the worker was unsuitable and that she was either entitled to LMR assistance or a finding that she was unemployable and thus entitled to full LOE. Mr. Porter also took issue with the fact that the worker was prescribed, as he put it, “morphine” and suggested that the accident employer was aware that the worker was taking a narcotic and irresponsibly permitting the worker to continue working in a technical position. Mr. Porter submitted that, in his view, the taking of morphine was not consistent or appropriate with the position of phlebotomist.

[71] Mr. Porter also submitted that the Board’s decisions have been based on a flawed or incomplete understanding of the worker’s restrictions (i.e. avoidance of prolonged or frequent bending at the waist, lifting more than tolerated and walking as tolerated). Specifically, he submits that Dr. Roman’s September 27, 2002 report erred when it concluded the worker was able to perform her essential job duties because it omitted the forward bending required of the worker (who, Mr. Porter asserts, was required to constantly “tilt” forward to draw blood). Mr. Porter also submits that the November 20, 2003 ergonomist’s Report was similarly flawed because its reflection on the worker’s restrictions was incomplete due to a failure to use all of the worker’s accepted restrictions when assessing whether, from a functional point of view, the worker’s job duties exceeded her restrictions.

[72] The worker’s representative asked that when reviewing the evidence the Vice-Chair be mindful of the worker’s credibility and in support of this assertion of credibility Mr. Porter points to the various medical reports that indicate that the worker did not demonstrate overt or exaggerated pain behaviour. Mr. Porter also argues that the worker’suse of “morphine” ought to be considered a restriction and should be factored into any analysis of the suitability of the employment. Further, Mr. Porter asserts that as of May 13, 2003, the worker’s position was not suitable. Mr. Porter takes issue with the ARO’s decision on the basis that, in his view, the decision was based primarily on the worker’s failure to be seen by Dr. West until nearly a month after the claimed recurrence.

[73] In summary, Mr. Porter asserts that a review of Dr. West’s progress reports demonstrates that, typically, the worker’s condition was worsening and that over time she experience significant changes and deterioration in her condition. Mr. Porter argues that based on the totality of the medical evidence (which Mr. Porter characterises as all endorsing a diagnosis of chronic pain disorder), the worker’s testimony and the fact that the worker was prescribed morphine as a direct consequence of her injury, any decision ought to be in her favour. Mr. Porter suggests that the worker’s NEL ought to be increased, at a minimum, to a quantum of 20%; that a finding of CPD be made (given that, in Mr. Porter’s assessment the organic ratings do not take into account the worker’s level of pain), that the worker be provided with LMR assistance to find a light duty position and LOE benefits. Mr. Porter argues that the worker’s job was not suitable because of her pain and that her pain, in and of itself, ought to be accepted as an independent restriction.

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[74] In his written submissions, dated December 7, 2009, Mr. Porter put forth additional points. Specifically, Mr. Porter argued that the accident employer’s offer of a scooter was both humiliating to the worker and, ultimately, unhelpful because the scooter did not assist the worker in performing her duties because, according to Mr. Porter, the worker had to be on her feet and bent over at the waist in order to reach down to take blood from a patient’s outstretched arm. Mr. Porter also emphasised that in his view the provision of “narcotics and strong analgesics” to the worker created an unsafe work environment because such “…drugs leave a person with less than total awareness about there [sic] activities, loss of memory, loss of concentration etc.” It is Mr. Porter’s submission that the worker ought not to have been put in a position and that the situation offends Board policy on safe working conditions.

(viii) Analysis

(a) Entitlement for CPD benefits

[75] Pursuant to OPM Document No. 15-04-03 entitled “Chronic Pain Disability”, in order for a worker to qualify for compensation under this policy, all of the following conditions must exist and must be supported by objective evidence:

Condition Evidence

A work-related injury occurred. A claim for compensation for an injury has been submitted and accepted.

Chronic pain is caused by the injury. 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.

The pain persists 6 or more months beyond the usual healing time of 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.

The degree of pain is inconsistent with organic findings.

Medical opinion which indicates the inconsistency.

The chronic pain impairs earning capacity.

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.

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[76] Upon careful consideration of the medical evidence, the Case Record, the worker’s testimony, the applicable policy and Mr. Porter’s submissions, it is my finding that the worker’s claim for CPD is not supported by the preponderance of the evidence before me. For the worker to succeed in her claim for CPD, it is not enough for her to prove that she is suffering from a chronic pain condition. Instead the worker must establish that the chronic pain of which she complains resulted from her compensable back injury and that the levelpain arising from this injury is inconsistent with organic findings. Thus, while it is clear from the record that the worker’s July 15, 1999 compensable injury did result in a recognised permanent organic impairment to her lower back (chronic mechanical back pain) for which she sought and received an 18% NEL award, there is insufficient evidence to substantiate the claim that the worker’s post May 2003 escalating pain complaints and her cessation of employment were the result of this compensable injury. Further, there is also insufficient evidence to substantiate the claim that the worker’s reported levels of pain(in respect of her compensable injury) are, in fact, inconsistent with the organic findings.

[77] Indeed, a review of the worker’s medical records revealed that generally the worker’s pain complaints with respect to her compensable injury remained fairly static(including exertion related predictable flare-ups); whereas after the claimed May 2003 recurrence, the bulk of the worker’s escalating chronic pain complaints were migratory, varied and generally unrelated to the compensable injury. It is my finding that the worker’s escalating pain and indeed her chronic pain condition are unrelated to her compensable, organic impairment and are, more likely, related to a pre-existing chronic pain/fibromyalgic condition that predated her compensable injury.

[78] In a progress report dated September 29, 1999 (2.5 months after the July 15, 1999 incident) Dr. West provided a diagnosis of myofascial strain of the lumbar spine. In an October 15, 1999 report (three months after the compensable incident), Dr. Klimek, addressing the worker’s bilateral leg discomfort, lists the following symptoms: lower back discomfort with radiation into the left leg and ankle and, a week later, encompassed the right leg, along with a tingly sensation in the crotch. While Dr. Klimek’s found the “paucity of clinical findings” puzzling; in my view, what is more significant is that the tingling sensations described in Dr. Klimek’s report were, according to Dr. Tokar’s March 26, 2001 report, already present as early as October 1995.

[79] In a December 30, 1999 report, Dr. Ansari noted problems with the lower back with tingling radiating down the right leg to the big toe and sometimes including the left leg.Dr. Ansari noted that the worker would have to wear a lumbo-sacral corset and continue with an exercise programme for the rest of her life. In a report dated April 24, 2000 (ninemonths after the compensable incident), Dr. Ansari stated that the worker experienced lower back pain along with some discomfort in the leg and opined that the worker had a lower back pain syndrome that would continue to cause her episodic (“on and off”) problems. Nothing in either of Dr. Ansari’s reports suggest that the worker’s degree of pain was inconsistent with the organic findings.

[80] Further, when seen by Dr. McMillan in September of 2000 (now a year and two months after the July 15, 1999 incident), the doctor opined that the worker suffered from mechanical low back and lower extremity pain and queried whether the worker’s bilateral

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tight hamstrings were the source of her symptoms. While acknowledging that the worker’s physical examination and investigations did not indicate any neurological abnormalities, Dr. McMillan’s report does not suggest that the degree of the worker’s pain is inconsistent the organic findings. Indeed, Dr. McMillan suggests that the worker’s pain is related to tight hamstrings. Furthermore, from the standpoint of impairment of the worker’s earning capacity, Dr. McMillan noted that there was no medical indication for the worker to remain on modified duties.

[81] The worker’s chiropractor, Dr. Salanki, in a report dated December 1, 2000, advised that he was treating the worker for low back pain and sciatic nerve radiation and that the worker was making good progress, with significant reduction in pain and correspondingly increased functional mobility. Dr. Salanki also reported that the worker suffered from flare-ups in her low back pain related to increased activity. Dr. Salanki’s report does not suggest that the degree of the worker’s pain is inconsistent with the organic findings, and also suggests and additional organic source of pain – the sciatic nerve.

[82] The view that the worker’s pain levels were related to periods of increased activity was reiterated by Dr. West in a physician’s re-opened claim report dated March 4, 2002 in which he diagnosed the worker with persistent mechanical low back pain with radiation to the buttocks and thighs exacerbated by walking. Again, Dr. West’s report does not speak to an unusual level of pain. The March 6, 2002 multidisciplinary health care assessment report, while unable to provide a diagnosis or a source of the worker’s pain, found that the worker’s complaints were migratory in nature and inconsistent. Such a finding further undermines the worker’s claim for CPD in respect of her compensable back condition as the policy requires that there be consistent, continuous paint complaints related to the organic injury.

[83] During the August 28, 2002 NEL assessment, the worker complained of more of leg than back pain, as well as sensitivity and burning sensation in the legs and groin and tight feelings in the thighs and knees. Again, the worker’s primary complaints relate to areas of the body unrelated to the compensable injury (i.e. lower back) and speak to sensitivity, numbness and burning sensations that, according to Dr. Tokar’s March 26, 2001 report, were already present as early as October 1995.

[84] Dr. West, in a clinical note dated September 9, 2002, noted that the worker was “…still getting some back aches on and off. The numbness she was getting around her waistline, she occasionally gets in her scalp and kind of shoulder area.” Dr. West concluded that the worker had undergone numerous tests for her back pain and that the worker’s only option was follow her exercise regime and put up with the back problems (which had earlier described as a periodic ache).

[85] In my view, back “aches” of an “on and off” nature are not in keeping with the requirements of the CPD policy. It does not suggest, as the third prong of the CPD policy requires, continuous, consistent and genuine pain which persists six months beyond the standard healing time. Further, Dr. West’s clinical notes for October 3, 2002 stated that the worker found relief from back pain using a specific analgesic and that it permitted her to do her job. This view, that the medication was aiding the worker, was reiterated in Dr. West’s

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February 20, 2003 clinical note which stated that the worker’s medication was taking “the edge of her low back pain” and that she still experienced some radiation down her legs. Itwas not “quite as bad” as it had been previously. Dr. West also noted “occasional” sharp pains from the worker’s waist to mid back and in his view this pain was related the worker’s ongoing back pain (which he noted was something the worker was going to have to live with). Interestingly, Dr. West’s clinical notes suggest that the worker’s back pain was episodic, not unremitting or unusual in degree.

[86] Of note, when she was seen by Dr. West on March 19, 2003, the worker reported that one of the prescriptions medications diminished her back pain “a bit”, but that it caused nausea and that another medication was assisting with her back pain, but not her legs. As Dr. West stated the worker had been seen by “just about everyone you can see” regarding her back pain and “other troubles”.

[87] Following the May 13, 2003 lay off, the worker’s back pain again appears to be aided by medication, but her other pain complaints begin to expand and intensify: tiredness in left arm and ringing in left ear (November 17, 2003); chest and leg pain relieved by an oral diuretic (December 1, 2003); burning pain only in posterior aspect of legs, stiffness and tightness from her neck to her lower extremities, burning eyeballs and scalp (December 2, 2003); numbness, tightness, burning sensation affection posterior aspect of her entire body and head, along with dryness and burning of the eyes, as well as a sensation of tightness around her midriff (May 27, 2004); cracking joints (knees, hips, fingers, neck and wrists), sensitive/painful scalp, side of jaws, hands and back similar to a sun burn, sensitivity to cold, muscle twitching (particularly the arm and legs), memory loss, word finding problems, thumb pain shooting into the arm, pain in hips and groin with shooting pain in the legs, arch and heel pain, as well as eye discomfort (September 16, 2004); leg numbness, neck pain (which also causes pain in the scalp), weakness in her arms, some arm numbness, and chest tenderness (November 11, 2005); and buttock pain shooting down the legs, shoulder pain, hypersensitivity on the face and scalp.

[88] The worker claims that prior to July 15, 1999, she did not experience any of the difficulties that she now asserts have rendered her unable to work. This claim, however, is not consistent with Dr. Tokar’s March 26, 2001 report. Dr. Tokar’s report, written a year and eight months after the July 15, 1999 incident, speaks to “similar symptoms” the worker had in 1996 (nearly three year prior to the compensable incident). Dr. Tokar was asked to investigate a possible neurogenic basis for the worker’s back and bilateral leg pain. In a review of her notes, Dr. Tokar found that she had examined the worker in May of 1996 when the worker “…complained of similar symptoms.” The report went on to state that in 1996 the worker stated that:

…her hands had been symptomatic since October of 1995 and wondered whether she might have carpal tunnel syndrome. This initially affected the left hand and then subsequently began to involve both hands, just the fingers. Following this, she began to experience a tingling warm sensation in both legs, which would spread from the knees to the toes. These episodes were brief in duration, occurring once or twice a day, but not every day…She has been experiencing stress incontinence on and off since her hysterectomy. This has not changed. She also

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complained of stammering speech and word finding difficulties over a period of about five years on and off. She also complained of fatigue. [Emphasis added]

[89] It is of significance to me that Dr. Buckley, a Chronic Pain Specialist, reported that the worker’s condition was improved by taking her medication on a regular schedule versus on an as needs be basis (which is what Dr. West had noted as early as 2003). It is of greater significance that Dr. Buckley found, as noted in his June 11, 2007 report, that the worker had made “some significant improvement” which he associated with her increased and regular exercise (which is what Dr. Ansari and Dr. McMillan prescribed in December 1999and September 2000 respectively).

[90] While certainly there was a lack of consensus among the various medical professionals regarding the specific cause of the worker’s back pain (i.e. no specific orthopaedic or neurological explanation, possible involvement of the hamstrings), none of these reports describe the persistence and/or severity of worker’s pain as inconsistent with the organic findings. Further, several of them describe the worker making good progress on pain reduction and finding assistance from physiotherapy.

[91] In my view, based on the preponderance of the medical evidence, the worker’s claim for CPD does not satisfy the requirements of the Board policy. The pain condition described by the worker and detailed in the medical reports in 1995, prior to the 1999 compensable accident, have remained basically the same as it was after the 1999 accident. Furthermore, even if the worker did not have this pre-existing condition, the medical evidence related to the worker’s back does not suggest continuous, consistent pain symptoms that inconsistent with the organic injury.

(b) May 13, 2003 claimed recurrence

[92] Pursuant to OPM Document No. 15-03-01 entitled “Recurrences”, in order to succeed in this aspect of her claim the worker must establish clinical compatibility between the original work injury of July 1999 and her clinical condition as of her May 13, 2003 lay off, as well as demonstrating a combination of medical continuity and compatibility. Again, having reviewed the medical evidence, the worker’s testimony and the Case Record, it is my finding that the worker did not suffer a recurrence as of May 13, 2003.

[93] According to the worker’s June 3, 2003 letter to the WSIB, she did not stop working because of a recurrence of lower back pain. Instead, she stopped working because she experienced an adverse reaction to pain medication – in a dosage that was contrary to her doctor’s instructions. Specifically, the worker reported difficulty breathing, chest tightness, nausea and dizziness. These are the same symptoms the worker reported to Dr. West on June 6, 2003 as the result of taking too high a dose of medication. Further, the worker’s testimony also described the adverse reaction to pain medication and did not speak to a specific incident or pain onset. While I appreciate that the worker’s back pain is unpleasant and, at times, restricts her activities, I am not persuaded that the worker ceased working on May 13, 2003 due to her back condition. Certainly the medication she took was in respect of her back pain, but as Dr. West noted in the June 6, 2003 entry, the worker had been previously advised of her sensitivity to medication and that she did not, as she thought, suffer an allergic reaction to the medication itself, but a reaction to the dosage.

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[94] Furthermore, if, as Mr. Porter suggests, the worker May 13, 2003 lay off was attributable to increased back pain, then it is reasonable to assume that she would have immediately attended at Dr. West’s office for treatment of same. However, the worker did not seek Dr. West’s care for nearly a month following the incident. It is significant that Dr. West’s May 14, 2003 Progress Report (based on the worker’s April 15, 2003 and May 2, 2003 visits) Dr. West does not describe the worker as totally disabled, instead he reiterates that the worker was restricted to very light duty work within her known restrictions.

[95] When the worker next sought medical care (following May 13, 2003), she saw Dr. West, on June 6, 2003 (nearly a month after laying off) and advised that she had again taken her medication in greater amounts than prescribed which caused the foreseeable reaction of tightness in the chest, shakiness and difficulty breathing. As Dr. West noted in his chart notes, this was well covered ground and the worker was aware of her sensitivities to all narcotics. When seen on June 13, 2003, a month after laying off, Dr. West found that the worker might be a little better regarding her back and commented that the worker was finding relief with a portable TENS machine (so that the worker could have greater relief and increased activity). As of July 3, 2003, the worker was seen for mild stomach pains that went into her back. She requested that Dr. West provide a note establishing that she was unable to work due to her condition and that she had tried to doing part-time work but was unable to handle it.

[96] Interestingly, some six days later the worker return to Dr. West’s office and complained of excessive sweating and heat sensations in her back radiating into her scalp and chest which were, as Dr. West noted, related to hot flashes. Again the worker complained of an inability to walk any distance without back discomfort. While it is clear that the worker sought medical care, it is not clear that the medical care she sought was in relation to her compensable back condition.

[97] It is my finding that there is no evidence of a specific incident or a specific pain onset to support the worker’s claim for a recurrence. Further, the worker’s condition, as it relates to her compensable back injury, had not deteriorated below the level already reflected in the NEL award. The evidence supports the finding that the worker left work on May 13, 2003 because she took too much pain medication and had an adverse reaction. The evidence also demonstrates that when the worker finally sought medical care it was weeks after she had left work on May 13, 2003. According to Dr. West’s clinical notes, the worker was aware of the repercussions of taking too much medication and experienced similar reactions before.

[98] Based on the preponderance of the evidence, the worker has not satisfied the requirements of the Recurrence policy. The worker has not established clinical compatibility between her May 13, 2003 lay off and her compensable back condition. Instead the worker demonstrated that she had an adverse reaction to the dosage of her medication.

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(c) Entitlement for a NEL redetermination (on an organic basis)

[99] Pursuant to OPM Document No. 18-05-09 entitled “Redeterminations”, a NEL redetermination request may be considered if the following conditions are met:

1. The worker’s degree of permanent impairment was previously determined to be greater than zero;

2. If the worker’s condition has deteriorated significantly since the last NEL redetermination; and

3. 12 months have passed since the worker’s last NEL decision.

[100] It is my finding that worker’s claim for a NEL redetermination must fail because she has not established that her compensable condition has deteriorated significantly since her initial NEL assessment. As noted above, the worker underwent a NEL assessment on August 28, 2002 which was conducted by Dr. Ostronski. Dr. Ostronski’s NEL Summary Report listed leg pain greater than back pain, persistent sensitivity and burning pain in the legs and groin, numbness, tight feelings at the thighs and knees, along with hypersensitivity to touch in various regions of the body. The worker indentified the pain as daily, strong and persistent and estimated that her pain, on average, was 6-7 out of ten and occasional severe pain at 9 out of 10. The worker’s dorso-lumbar spine was found to be restricted, particularly on extension.

[101] By contrast, the medical reports provided by Dr. Buckley indicate that as of November 11, 2005, the worker had a good range of motion in her lumbar and cervical spine and that the worker’s strength and reflexes were normal. Furthermore, as Dr. Buckley also indicated (in a report dated June 11, 2007) once the worker began taking her medication on a regular schedule and engaged in an increased and regular exercise programme, she made some significant improvement.

[102] The comparison of these reports demonstrates that the worker’s compensable back condition has not significantly deteriorated and may have, in fact, improved. While it is true that the worker has experienced other complaints, as above it is my finding that these complaints are related to a pre-existing, non-compensable condition. To this end, the worker has not met the criteria for a NEL Re-assessment.

(d) Suitability modified work offered

[103] Mr. Porter suggests that the modified work offered by the accident employer was unsuitable because, despite the findings of the ergonomist, it did not take into account all of the worker’s restrictions (i.e. pain as a restriction in and of itself) and the fact that even seated the worker was in a permanent tilt position. Mr. Porter also suggests that the worker’s modified duties were unsuitable because she was taking “narcotics” which dulled her senses so much so that she was rendered her unfit to work and her presence at work created a safety hazard for others. I do not accept the Mr. Porter’s propositions in these regards.

[104] The ergonomist’s report, dated November 20, 2003, found that that the job demands of the modified position did not exceed the worker’s medical precautions (specifically,

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avoidance of prolonged or frequent forward bending at waist level, avoidance of heavy lifting and walking only within the worker’s tolerance). The ergonomist observed that the worker was able to draw blood while maintaining a neutral low back posture and reported that (based on the worker’s own reporting) she was permitted additional rest breaks as needed and had supportive and assistive co-workers who provided accommodation as needed. It was the ergonomist’s finding that the job demands would not contribute to an aggravation of the worker’s low back injury.

[105] Further, it is clear from the medical evidence and the worker’s own testimony, that her compensable low back pain was exacerbated by walking and bending. However, it is also clear from the Case Record that the worker was offered an assistive device by the accident employer that would have removed the need for her to walk and that, subsequent to her refusal to utilise the assistive device, the worker was permitted to work in the pre-surgery clinic which limited the amount of walking she needed to do and allowed her to fulfill her duties while seated, ambulate as need and change position as needed. While it is understandable that the worker would have like to worked ‘pain free’, the fact that she experienced back pain did not render her totally disabled nor did it render her modified duties unsuitable.

[106] However, it is also clear to me from the extensive medical record that the worker’swell documented diffuse and migratory body pain (described by the worker’s treating physicians as both a chronic pain condition and a fibromyalgic condition) which, as noted in Dr. Tokar’s March 26, 2001 report, pre-dates the worker’s compensable accident. It is also clear to me from the medical record that the worker has an acute sensitivity to medication. As such, for the purposes determining job suitability, the worker’s chronic pain/fibromyalgic condition and drug sensitivities, while unrelated to the compensable injury, are nonetheless factors that should have been considered in determining whether the modified work was suitable. Given that these characteristics, in combination with the worker’s compensable lower back condition, may impact the worker’s ability to fulfill her work duties as a phlebotomist it is my view that they ought to have been taken into account by the ergonomist when considering the suitability of the modified work offered to the worker. They were not. The November 20, 2003 report is silent in respect of these conditions. In particular I find that ergonomist ought to have considered the impact that the worker’s difficulties with her hands and speech (as discussed in Dr. Tokar’s March 26, 2001 report), as well as her drug sensitivities. As a phlebotomist the worker needed to be able to use her hands continuously and was required to communicate clearlywith her patients and colleagues. As these factors were not considered, the ergonomist’s was, in this case, incomplete and thus its findings incomplete. As such, I find that the modified work offered to the worker was not suitable. Accordingly, the worker is entitled to an LMR assessment pursuant to section 42(2) of the WSIA.

[107] As required by section 42(2) of the Act, the Board is required to provide a worker with a LMR assessment if, among other things, the accident employer has been unable to arrange worker for the worker that is consistent with the worker’s functional abilities and that restores the worker’s pre-injury earnings. In my view the ergonomist’s report did not consider the worker’s functional abilities in combination with the totality of her personal vocational characteristics when determining the suitability of the modified work offered.

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[108] To this end, I find that the worker is entitled to a LMR assessment and, if necessary, LMR services. With respect to the issue of LOE benefits, while I am mindful of the worker’s decision not to engage in any sort of self-directed LMR, her decision to seek early pensions and her testimony regarding her ability to travel, I do not feel there is sufficient evident to make a determination on the quantum of any LOE benefits to which the worker may be entitled as this issue may be determined by the results of the LMR assessment.

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DISPOSITION

[109] The worker’s appeal is allowed in part.

[110] The worker is not entitled to benefits for CPD.

[111] The worker is not entitled to benefits for the alleged recurrence on May 13, 2003.

[112] The worker is entitled to an LMR assessment.

[113] The issue of entitlement to any further LOE benefits is referred back to the Boardpending the results of the LMR assessment.

DATED: May 3, 2011

SIGNED: C. L. Dempsey