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2004 ONWSIAT 707

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 694/03

[1] This appeal was heard in Toronto on April 8 and July 3, 2003 and November 28, 2003, by a Tribunal Panel consisting of:

R. McClellan: Vice-Chair, M. Bullivant : Member representative of employers, F. Jackson : Member representative of workers.

THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer,

Mr. D’Ambrosio, dated October 23, 2000. That decision concluded that the worker was not entitled to Loss of Earnings (LOE) benefits beyond November 16, 1999, that the worker did not have a compensable permanent impairment in the shoulder/neck and that the worker was not entitled to psychotraumatic disability or to chronic pain disability.

[3] The worker appeared and was represented by Mr. D. Ublansky, a lawyer. Mr. D. Fogel, a lawyer, represented the employer. Ms. Soo Gie An and Mr. Song Soo Kim translated in the Korean language.

THE RECORD

[4] The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1). In addition we considered:

Exhibit #2: Addendum 1; Exhibit #3: Addendum 2; Exhibit #4: Mr. Fogel’s letter dated March 17, 2003; Exhibit #5: The employer’s Document Book; Exhibit #6: The Hearing Ready Letter; Exhibit #7: Post-Hearing Addendum #1; Exhibit #8: Post-Hearing Addendum #2; Exhibit #9: Claims Adjudicator letter dated November 25,2003; Exhibit #10: Desjardins letter dated October 28, 2003; Exhibit #11: Case notes, Mr. Fogel; Exhibit #12: Post-Hearing Addendum #3.

[5] The Panel also heard oral evidence from the worker; Ms. DM, a supervisor for the employer; Ms. AH, a former human resources manager for the employer; and Ms. KN, the current human resources manager for the employer. Submissions were made by Mr. Ublansky and Mr. Fogel.

Page: 2 Decision No. 694/03

THE ISSUES

[6] The issues in this case are whether the worker is entitled to loss of earnings benefits after November 16, 1999; whether the worker is entitled to an award for permanent impairment in the right shoulder/neck; and whether the worker is entitled to a psychotraumatic or chronic pain disability award.

THE REASONS

(i) Background to the case

[7] The worker is a 43-year-old woman who worked as a book returns processor for a large book publisher. Beginning on December 12, 1998 she was accepted by the Board for entitlement to LOE benefits for a compensable repetitive strain injury involving her right shoulder and neck.

[8] The worker’s job involved opening cartons of books and processing returns.

[9] The initial diagnosis was myofascial, scapular, thoracic, humeral, bronchial pain caused by repetitive motion of the right hand. The first medical report is dated March 1, 1999.

[10] The accident employer did not file a WSIB claim, filing instead with their private insurance carrier, Imperial Life Insurance. Lost time was approved for four weeks.

[11] Modified work was provided by the accident employer and the worker returned to work on April 6, 1999. Her new duties involved opening and sorting mail. After six weeks the worker was cleared to return to her regular duties. She worked at her pre-accident job from May 10 to May 17, and then went off work, claiming total disability.

[12] The worker returned to work on November 16, 1999, and worked until March 8, 2000 when she left work. She did not return to work until August 27, 2001. She worked from that date until June 2002 when she left work once again. She returned to work on July 10, 2003.

[13] The diagnosis of myofascial pain/repetitive strain injury of the right shoulder and neck was accepted by the Board Medical Consultant in Board Memo No. 14, dated August 99.

[14] In Board Memo #11, dated July 29, 1999, the Claims Adjudicator wrote that the worker appeared to have an assessable right shoulder Permanent Impairment (PI) and that medical precautions should be observed:

no or very minimal right shoulder use and non-repetitive left arm/shoulder use. An ergonomics specialist was commissioned to determine the suitability of the accident employer’s modified work offer. Concern was expressed about the accident employer imposing a quota on the injured worker’s performance.


[15] In Board Memos #17 and #18, the Nurse Case Manager expressed concern that the worker’s PI was functional. The worker symptoms were now described as “whole body”.

[16] In September 1999, the accident employer advised the Board that they felt there was evidence “to overturn the original allowance.”

[17] In September 1999 and again in November 1999 the ergonomics consultant concluded that, “the pre-injury position evaluated can be considered suitable if accommodations are made.” Thirteen detailed instructions were issued by the ergonomics specialist for specific work accommodation to the worker’s pre-injury job.

[18] During this period, in the fall of 1999, the Board staff attempted to mediate between the accident employer and the injured worker to promote Early and Safe Return To Work. At the second of two ergonomics meetings, in November 1999, the worker presented a handwritten list of symptoms which included convulsions, “electricity”, vomiting, loss of hearing and memory loss.

[19] In October 1999, the worker injured herself in a fall at home.

[20] Board Memos #32 to #34 indicate that the worker’s functional problems were not considered to be compensable and that the organic shoulder problem was a strain which should resolve within four to six weeks.

[21] In November 1999, the Claims Adjudicator ruled that the worker had reached MMR with no PI for the compensable right shoulder and neck repetitive strain injury. No further LOE benefits were allowed. The return-to-work medical precautions were canceled November 17, 1999. On November 16, 1999, the worker returned to work and worked until March 2000. During this period, occasional lost time was covered by the worker’s vacation pay.

[22] The worker’s claim for compensation for stress and depression made in December 1999 was denied on December 13, 1999 and this was affirmed by Dr. Colaco, the Board Medical Consultant, on December 20, 1999. At this point in time there was a concern that multiple sclerosis might be a factor in the worker’s condition. After ruling that the worker had no organic permanent impairment and no functional entitlement, the Claims Adjudicator ruled that the worker’s regular pre-accident job with modifications was suitable (July 11, 2000).

[23] On October 23, 2000 the ARO ruled that the worker had no entitlement to LOE beyond November 16, 1999. The worker was considered to have returned to her pre-accident status with no residual permanent impairment in the right shoulder and neck and she had no entitlement to psychotraumatic or chronic pain disability.


(ii) The medical reports

[24] The first medical report on file is a hand-written note from the rheumatologist Dr. A. Mewa, on March 1, 1999, diagnosing myofascial pain in the right arm, shoulder and neck, and advising the worker to stay off work. Physiotherapy and exercise were prescribed for right-sided brachial and cervical myofascial pain.

[25] The Functional Abilities Form dated May 3, 1999 from the family physician Dr. Schin, restricted repetitive movement of the right shoulder and advised alternative work.

[26] After the worker returned to work in April 1999, Dr. Mewa reported on May14, 1999, that the worker had again developed “acute type of myofascial, scapular, thoracic, humeral, brachial pain due to repetitive motion of the right hand.” Muscle spasm was noted in the right trapezius with right cervical motion, and right shoulder range of movement was restricted. The worker’s condition was described as “severe”. Badofen and Ibuprofen were prescribed as well as physiotherapy. On June 7, 1999, Dr. Mewa reported that the worker was unable to work because of the shoulder/neck condition.

[27] On July 21, 1999, Dr. Mewa ordered an arthrogram which showed no abnormality in the right shoulder and no evidence of rotator cuff tear. Depomedrol was injected. Dr. Mewa reported on August 20, 1999, that the arthrogram was normal, the neurological examination was negative and he advised that the worker could return to work at modified work conditional upon no repetitive motion to the right shoulder girdle.

[28] On September 15, 1999, the worker was examined by the neurologist Dr. R. Wilson for symptoms of “electric-shock feelings in her whole body from neck to feet, pain in the shoulder and neck, bilateral facial numbness, chronic headaches, and fatigue”. Dr. Wilson felt that the multiple complaints were the result of chronic stress, and that an x-ray should be taken to search for possible cervical disc degeneration. He felt that the shoulder problem could be rotator cuff tendonitis. He also included the possibility of multiple sclerosis in his differential diagnosis.

[29] On October 6, 1999, the worker was given an assessment at the Regional Evaluation Centre, (Orthopaedic and Arthritic Hospital) by a team led by Dr. Stephen Reed. Dr. Reed found the worker had sustained a right shoulder and cervical strain with rotator cuff tendonitis, with no neurologic involvement. Complete recovery was predicted within four to six weeks. This report advised a psychological valuation for the multiple somatic symptoms and that testing should be done for multiple sclerosis.

[30] On April 24, 2000, Dr. Mewa diagnosed that the worker had a fibromyalgia condition. He reported continued myofascial pain, and wrote,“multiple tender points in the parascapular, mid-trapezius and anterior chest and low back regions


as well as medial fatpads of the knees with a disturbed sleep pattern, consistent with fibromyalgia type of syndrome.” He prescribed Amitryptyline, Voltaren and Norflex, with massage and exercise.

[31] The worker was seen for the first time by the Korean speaking psychiatrist, Dr. Lim, in October 1999. Dr. Lim attributed the worker’s multiple somatic symptoms and depression to stress caused by her relationship with the employer and work. He wrote:

Diagnostically, from a psychiatric point of view, I believe [the worker] has been experiencing depression since the spring of this year. I do not believe it is the work-related injury that is the precipitator of her depressed mood per se. Rather, the psychological pressure in dealing with her boss, and perhaps even having had difficulty returning to her pre-morbid function physically, have added to the increasing stressors which he believes she couldn’t no longer control and maintain. In any case, she has been depressed and has been experiencing neurovegetative symptoms which have worsened in August 1999. Subsequently, she has experienced other physical symptoms which require neurological assessments.

…

Axis 1: Provisional Diagnosis: Major Depressive Episode-moderate

Differential diagnosis: Adjustment Disorder with depressed mood Ruled out: Mood Disorder secondary to general medical condition (a neurological cause close)

Axis II; No personality disorder noted

Axis III: Rule out a neurological cause

Axis IV: See above

[32] Amitryptyline was prescribed.

[33] On February 3, 2001, Dr. Lim addressed the question of the work-relationship of the worker’s psychological condition in response to a direct question from the worker’s representative, as follows:

Your question as to whether her injury made a significant contribution to the development of her psychiatric condition has been somewhat answered in the original psychiatric consultation report. But to be more specific, I would say that there has been a significant psychological impact from the loss of her job which she feels has been an unfair treatment to her. I would consider the aftermath of her injury to have been a significant contributor to the development of her current depressive illness. I would consider that rather than seeing a substantial improvement, her depression is now severe enough to a point that is that it is affecting her ability to work and function normally after premorbid level … in any case, because her litigation process has been a significant contributor and a perpetuator of her present psychiatric condition, the resolution of the situation would be a significant aid to a good prognosis of her depression.


[34] Dr. Lim gave his final summary-update report on February 5, 2001. He reported that he had treated the worker for depression since October 1999, and that he felt that her depression began in the spring of 1999, and worsened in the summer but was moderate, not severe. She was discharged from care in March 2000, but her depression returned within a few months because she stopped taking her Paxil medication prematurely. Since March 2001, her depression was chronic.

[35] He said that he had treated the worker’s depression with Paxil, Effexor and Celexa and provided monthly and sometimes bi-weekly psychotherapy since October 1999. His diagnosis was Major Depressive Disorder-chronic. The worker’s psychosomatic symptoms, he said, were, “unexplainable” in regards to cause so far.

[36] Further tests were commissioned by the treating specialists to try to determine the cause of the worker’s symptoms. In June 19, 2001 ultrasound tests conducted by Dr. Charleboix, a pain specialist, found a 0.8 by .5 cm defect in the supraspinatous tendon consistent with a small tear.

[37] An MRI test of the cervical spine done January 7, 2000 found minimal disc bulging at C4-5, C5-6 and C6-7. The C4-5 bulge “abuts the cord” but no compression or focal lesion was indicated.

[38] Dr. Charleboix reported again on July 25, 2001 with respect to the ultrasound tests that, “This lady has a partial tear of the tendon in her right shoulder.” Dr. Charleboix stated that, “her right shoulder is frozen” from disuse, and that this condition would take about a year to develop.

[39] On February 26, 2001 Dr. Mewa repeated his diagnosis of chronic neck myofascial pain as part of fibromyalgia. “I do not think she can do any repetitive heavy type of work which requires repetitive use of arms, shoulder or constant turning of neck or unusual posture of the neck.” Dr. Mewa’s report of November 11, 2002 referred to a possible central demyelinating disorder. He repeated his diagnosis of chronic myofascial pain, but said that has been overtaken by concern for the central demyelinating disorder.

[40] In May 2001, the accident employer referred the worker to Dr. Norman Grosser, of the Medisys Health Group for an assessment. His examination of May 22, 2001 found tenderness in the cervical spine, along the right side of the neck into the right shoulder and paravertebral muscle spasm on the right side with decreased range of motion of the cervical spine due to pain and tenderness and decreased range of motion in both shoulders but most markedly in the right shoulder. After consulting with the worker's rheumatologist, Dr. Mewa, Dr. Grosser issued three additional medical restrictions, namely: no over the shoulder work; no lifting over 5 lbs.; no repetitive movement of her hands and wrists to involve the processing of any more than two books per minute at most.


[41] A previous concern about tuberculosis was determined to be related to previous exposure and inactive.

[42] Testing for multiple sclerosis continued by the neurologists Dr. Wilson, Dr. Marie Slegr and Dr. M. Hohol. Dr. Slegr ruled out multiple sclerosis in October 2002, indicating that she suspected the worker’s vision loss and auditory hallucinations were a result of migraine. Dr. Hohol agreed in January 2003 with Dr. Slegr that multiple sclerosis was not present. Further tests were suggested.

[43] In January 2003, Dr. Mewa advised that, while the worker’s myofascial pain continued, she may be able to return to work as a return clerk with restrictions against repetitive work especially above and beneath shoulder movements, excessive weight carrying, and repetitive bending with weight.

(iii) Law and policy

[44] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (“WSIA”) took effect.

[45] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal.

[46] The relevant section of the current Act relating to LOE benefits states as follows:

43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,

(a) the day on which the worker’s loss of earnings ceases;

(b) the day on which the worker reaches 65 years of age if the worker was less than 63 years of age on the date of the injury;

(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;

(d) the day on which the worker is no longer impaired as a result of the injury.

(2) Subject to subsections (3) and (4), the amount of payments is 85 per cent of the difference between,

(a) the worker’s net average earnings before the injury; and

(b) the net average earnings that he or she earns or is able to earn in suitable employment or business after the injury.

…

(3) The amount of the payment is 85 per cent of his or her pre-injury net average earnings less any earnings the worker earns after the injury if the worker is co-operating in health care measures and,

(a) his or her early and safe return to work; or


(b) all aspects of a labour market re-entry assessment or plan.

[47] Board Operational Policy Manual, Document #03-03-05, "Chronic Pain Disability", states that the Board will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability. The policy goes on to state that the following conditions must exist:

A work-related injury occurred and chronic pain was caused by that injury.

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

The degree of pain is inconsistent with organic findings.

The chronic pain impairs earning capacity.

[48] With all of the above, medical evidence is required to substantiate the conditions. In respect to the last criterion, medical or other evidence is required that demonstrates "the persistent effects of the chronic pain in terms of consistent and marked life disruption." Marked life disruption is described as follows:

Because pain is a subjective phenomenon, marked life disruption is the only useful measure of disability or impairment in chronic pain cases. Marked life disruption indicates the effect of pain experienced by the worker and the effect on the worker's activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships.

There must be a clear and distinct disruption to a worker's life, but there is no particular requirement for this disruption to be either major or minor. The disruption in the worker's personal, occupational, social and home life must be consistent, though the degree of disruption in each need not be identical.

The presence of “and” in the statement “social, occupational, and home life” suggests that all 3 must be present. However, there is no requirement that all 3 aspects of a person’s life must be disrupted to the same degree.

The Policy guideline reads:

The Board will accept entitlement for chronic pain disability (CPD) when it results from a work-related injury and there is sufficient credible subjective and objective evidence establishing the disability.

Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the Board's policy on that organic or psychiatric condition.

If however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder - see 03-03-03) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy.


(iv) The worker’s testimony

[49] The worker testified as follows. She stated that she came to Canada from Korea in May 1991, bringing with her a university degree and experience as a teacher. She joined a publishing company in January 1996, working as a book return clerk, sorting books in a warehouse.

[50] She stated that her shoulder pain began in July 1996, and gradually got worse. The pain has never gone away. She described her job duties, sorting and invoicing returned books while seated in her workstation.

[51] She stated that the pain got so bad that she could not move her arm, at which time she went to see a doctor, who prescribed Advil. When she reported her condition to her supervisor, she stated that the supervisor told to get a letter from her doctor otherwise they would “take me out.” She stated that a company official blew cigarette smoke in her face and that she was told several times to leave the company. Under questioning, she elaborated that she had been confined to an office, yelled at and threatened with dismissal by the manager, “AH.” She stated that AH told her that if she got treatment from the WSIB the company would sue the doctor, have the doctor’s license taken away and have him fined. The worker also stated that the manager reported to the Board that the worker was working in a store and did not need compensation benefits.

[52] The worker stated that she was given light work after April 1999 but had to stop working in May 1999 because of stabbing pain in her arm, back and neck.

[53] She testified that after the manager, AH, left the company, she was asked to come to the workplace to meet the new manager, KN. She stated that when she went, she was prevented from talking to a co-worker by the same person who had blown smoke in her face.

[54] he stated that she returned to work in November 1999 and her job was re-arranged and modified but that after two months the workload got heavy again, and she was required to work overtime. She testified that by March 2000 she could no longer work because of pain in both arms, both shoulders and the back of her neck. She stopped working and drew employment insurance benefits for three months, she said.

[55] She stated that from that point on (March 2000) she was no longer able to do housework at home, and all household chores were taken over by her family as is the case to this day. She stated that she stopped most social activities such as bowling, camping, everything, except attending church.

[56] She testified that she was contacted by letter in February 2001 by the new manager, KN, for the first time since March 2000, asking her to return to work. She stated that she was told to get a letter from her doctor in two or three days or she would be dismissed.


[57] She stated that she did return to work in August 2001 and that at first her work was easier but that her supervisor complained about the pace of her work and that she wasn’t processing enough books. The worker denied that anybody ever told her that she only should do two books per minute.

[58] In reply to cross-questioning from Mr. Fogel, the worker testified in detail about her workstation, how it was rearranged in the fall of 1999 with the help of an ergonomist. She denied every hearing that she did not have to process big books and she stated that she had to handle whatever was brought to her.

[59] The worker reviewed pictures of her workstation and described the operation. She agreed that as of April 2001, in accordance with medical advice, she did not process more than two books per minute. She stated that twice a month everybody, including herself, was required to do inventory and that involved moving books on the skids.

[60] She denied that DM, a supervisor, ever told her to rest whenever she needed to and or to go to the lounge to rest if necessary. She stated that she was ordered to do overtime and that she did not stop doing overtime until February 2003. Under questioning she said that she may not have done overtime after March 2000.

[61] She testified that she worked between November 1999 and March 2000 despite her pain, but she didn’t want to complain. She said that she required time off for the March break in 2000 and that her request was denied. She saw Dr. Shin in March and went off work until August 2001. She said that the reason was she had bloody sputum and thought that she had tuberculosis.

[62] She stated that she went to Korea for about three weeks around July 30, 2001 and that she returned to work approximately two days after returning from Korea in August. She continued working until October 2002. She then went on unpaid leave of absence again because of her extensive pain.

[63] She stated that her pain today is in her shoulder, neck, both forearms and right shoulder across the back. She stated that both she and her husband lost their jobs at the same time and they had to sell their house.

(v) First Witness: DM

[64] The witness testified that she has worked for the accident employer for 33 years and now supervises four departments, including the worker. She stated that the worker’s job has been modified for about three years. She stated that she personally reviewed the modifications to the worker’s job in detail in November 1999 with the ergonomics specialist. The worker’s station was modified. No overhead work, no lifting, and no over the shoulder work was permitted. Books were to be slid not lifted. The witness demonstrated how the invoices are handled physically: a book comes to the worker’s station on a roller with the invoice attached; the worker slides the book from the roller across the desk in front of her,


tears off the invoice, stamps the invoice and slots it in a rack in front of her. The worker checks the book for damage and then slides it across the desk to a conveyor belt were other workers collect the books for further processing. The witness stated that the rate for the worker of two books per minute was part of the November 1999 instruction. She testified that no workers are required to work overtime, that all overtime is voluntary and there are always plenty of volunteers. She stated that the regular quota for the worker’s position is 600 to 800 books per day. The worker has only been required to do between 200 and 400 books per day since November 1999.

[65] The witness has said that she believed the worker stopped in March 2000 because her request for a March break holiday had been turned down. When the request was refused, the worker came in immediately afterward with a note from her doctor, dated March 8, 2000, stating that physiotherapy was required. The worker stopped work on March 8. With respect to the letter of March 27, 2000, the witness denied that the worker was fired.

[66] The witness denied ever telling any employee to bring a doctor’s letter or be fired. She denied complaining about the number of books the worker processed.

[67] She stated that the worker left work again on June 10, 2002 and returned to work on February 10, 2003, again at the same modified duties. And she stated that she did not witness the alleged behaviour of AH, described by the worker in her testimony.

[68] Under questioning from Mr. Ublansky, the witness said that she could not recall when the two books per minute modification was put in place, agreeing that it was not in the report of the ergonomics specialist in November 1999. She stated that she was aware of the medical restrictions in place since November 1999. She stated that she could not recall the conversations in April and May of 1999 between AH, the worker and herself, which is described at pages 238 and 239 of the Case Record. She stated that she never had any conversation about whether the worker’s injury was genuine: the witness stated, “she has an injury.”

(vi) Second witness, the former human resources manager, AH. [69] Testifying for the accident employer, AH stated in that she had been human

resources manager for the accident employer between 1993 and August 1999, when she left the company. The worker referred extensively to her notes found at page 278 of the Case Record. She stated that the worker first complained of right arm pain in December 1998, shortly after a slowdown in the company’s business when the worker was moved from her regular job on Book Return into the mailroom in order to avoid a layoff. The new mailroom job involved removing already opened letters from trays, removing the contents and sorting the mail into piles, she said.


[70] The witness stated that when the worker brought notes from her doctors in March 1999 she carefully explained the provisions of the company’s short term disability benefits plan to the worker and how to obtain physiotherapy benefits.

[71] When the worker returned to work in April 1999, after four weeks on the company’s short term disability benefits plan, the worker returned to what the witness described as “light duty” work in the mail department. In early May, the worker asked to return to her regular duties in Book Returns, but AH stated that she told the worker she could only return to her regular job when her doctor indicated that she was fit to return to regular duties. On May 10, 1999, the worker came with a note from her doctor that she was fit to return to her regular job. The witness stated that under questioning, the worker told her that she had asked the doctor to write the note. AH testified that she admonished the worker for doing this and did not allow her to return to the Book Returns job. She stated that there was a discussion between the witness and the worker about what would happen if the worker could not return to her regular job.

[72] The witness testified that during the TTC strike in April 1999, the worker was the only employee not to attend work until the strike was over.

[73] The witness stated that the worker asked for a day off on May 14, 1999 to see a specialist and to take vacation May 15 and 16. She stated that the worker advised her on May 17 that she would be off for six weeks and that she could no longer do the modified mailroom job.

[74] AH denied the allegations made by the worker in her testimony, that she had told the worker “to get out”, or that she had fired the worker, or that she had confined her in the office, or that she had threatened to sue if the worker claimed WSIB compensation.

[75] The witness testified that during the worker’s absence in March and April 1999 the worker repeatedly told her that she was not taking physiotherapy treatment because she couldn’t afford it, and the witness said that she repeatedly explained to the worker how to apply for either short-term disability or OHIP coverage. However under questioning from Mr. Ublansky, the witness could not explain the discrepancy when he showed her the receipts the worker received for physiotherapy between March and May 1999.

[76] The witness stated that she advised the Board about rumors that the worker was working as a cashier while she was off work, and that the worker was “coached” into claiming total disability benefits. AH testified that she did so in order to get guidance from the Board as to how to handle the situation. She stated that she did have doubts about the validity of the worker’s compensation claim.

[77] The witness stated that the worker successfully met the productivity quota in the mail department with no problem until the week of May 10, 1999 when her productivity fell 50%. On May 14, she stated that she sent the worker a letter


informing the worker that her performance was unacceptable and that she must get her productivity back. She stated that the worker had not provided any specific medical restrictions at that time and that the doctor’s medical restrictions were required before further accommodation could be made to the worker’s job.

[78] The witness denied that the worker misunderstood or misinterpreted her statements and intentions and she stated that she was always caring and compassionate in her dealings with her employees.

(vii) Third witness for the accident employer: KN. [79] KN testified that she took over from AH as human resources manager in

September 1999 and that she tried to ensure that a second return to work effort for the worker would be successful. She reviewed for the Panel the activities in the fall of 1999 that involved the Board Ergonomics Specialist and the modifications to the worker’s workstation that led to the worker’s return to work in November 1999. She referred to the 13 specific modifications in the Ergonomist’s report and indicated that they were all implemented immediately.

[80] The witness denied any knowledge that the worker was so upset by the November 3, 1999 meeting that she fainted at home and was ill for a week, with symptoms of deafness.

[81] She stated that the new restrictions were cleared by the worker’s family physician, Dr. Shin, who added an additional restriction -that the worker be given rest breaks whenever she felt they were needed- and the worker returned to work on November 16, 1999 and worked through until March 2000 with no indication of difficulty whatsoever.

[82] KN stated that on March 6, 2000, the worker requested a week off during March break, but that this could not be accommodated because of the existing vacation schedule. On March 8, she said that the worker brought a note from Dr. Mewa which she found unsatisfactory because it had no specific restrictions or advice. She said the worker returned later on March 8 with a second note from Dr. Shin which stated that the worker was no longer able to work. At the conclusion of the second discussion on March 8 the worker went into the warehouse to say goodbye to her co-workers, telling them that she would not be returning to work. The worker left the office and did not return until the following year.

[83] On March 13, the witness said, she wrote to the Board that the worker’s claim was not legitimate. Her reason, she stated, was that there had been no complaints whatsoever between November 1999 and March 6, 2000.

[84] The witness stated that the worker did not work overtime during this second return to work phase (November 1999 to March 8, 2000), but when Mr. Ublansky showed her the overtime pay stubs found in the Case Record, she conceded that she had worked overtime.


[85] The witness denied the worker’s written statements that the worker was still lifting heavy books, or that she told the worker that the Board would reopen her file. She also stated that the worker was not terminated at any time from her employment.

[86] The next contact with the worker after March 2000 was in February 2001, after they had received the ARO decision in October 2000. In response to the February 2001 letter instructing the worker to return to work, the worker advised KN that she could not return because she had tuberculosis.

[87] The witness testified that a third return to work effort was initiated based on a third-party medical assessment from Dr. Glosser at Medysys, who prepared a set of three new medical modifications with the assistance of Dr. Mewa. The worker returned to work August 23, 2001 and returned to her modified duties in Book Return based on the original 13 restrictions from the her ergonomist and the three new restrictions from Dr. Glosser. The worker remained at this job until she laid off again in October 2002.

(viii) Submissions of the worker’s representative

[88] Mr. Ublansky began by recalling that the worker's claim for repetitive strain injury to the shoulder/neck was allowed by the Board, effective December 1998 and benefits were paid until November 16, 1999. The worker returned to work with the accident employer after the REC report predicted a full recovery in for 4/6 weeks. Despite the prognosis of full recovery, he noted that the Board did conduct an ergonomic assessment. Medical restrictions and ergonomic adjustments were imposed. The worker then worked continuously from November 1999 at modified work until she laid off work due to exacerbation of pain in March 2000. She returned to work in August 2001.

[89] He noted that, despite the REC prognosis, the accident employer obtained an independent assessment from Dr. Grosser in May 2001 and as a result of this report, further restrictions and limitations as well as work station modifications were imposed on a permanent basis. Mr. Ublansky submitted that this established the accident employer’s acceptance of the fact that the worker had a permanent impairment in the shoulder/neck.

[90] Mr. Ublansky reviewed the medical evidence in detail, and argued that the evidence does establish an organic-based permanent impairment, including rotator cuff tendonitis, and a torn supraspinatous tendon, according to the ultrasound test of June 2001. MRI testing also established underlying cervical degenerative disc disease at C4-5, C5-6, and C6-7. On June 21, 2001, Dr. Charleboix diagnosed frozen right shoulder.

[91] Mr. Ublansky also submitted that the medical evidence established the presence of fibromyalgia and clinical depression, both directly related to employment factors. He reviewed the testimony and the medical evidence to argue for the existence of marked life disruption.


[92] Mr. Ublansky cited the reports from Dr. Lim in February 2001, which he submitted established that the worker's absence from work was due to the severity of her clinical depression which became acute after March 2000.

[93] He addressed the issue posed by Board Operational Policy Manual, Document #03-03-05 with respect to Board policy which requires a chronic pain disability award to incorporate all aspects of the worker’s permanent impairment, and excludes a separate organic award for the same condition. He argued that in reality, the worker suffered from three interacting and interconnected conditions; the organic permanent impairment in the shoulder/neck, fibromyalgia and depression and that each of the three interacting conditions arose from the worker's employment.

[94] Mr. Ublansky submitted that in March 2000, the worker stopped work on the advice of Dr. Lim. Under the provisions of the Board's ESRTW scheme, a functional assessment was required at that point in time but, for a number of reasons, this was not done until May of 2001. Moreover, there was no contact from the accident employer to the worker until February of 2001, because, according to the testimony of KN, the accident employer was waiting for the decision of the Appeals Resolution Officer, which did not arrive until October 2000. Contact was not re-established with the worker until February 2001, following which a functional assessment was conducted, which resulted in additional medical restrictions and work place modifications. The worker's delay in returning to work after May 2001 was caused by an unrelated medical concern, but the worker did return to work in August 2001, and was therefore cooperating with her ESRTW obligations.

[95] Mr. Ublansky also reviewed Tribunal Decision numbers 2898/00, 2043/99, 609/02, 1621/01,1368/98 and 1986/98.

(ix) Submissions of the employer's representative

[96] Mr. Fogel submitted that the worker's condition was a simple right shoulder/neck pain with no evident organic cause other than the ultrasound indication of a small tendon tear and that there was no evidence that the condition would disable the worker from her regular work or that it led to chronic pain disability.

[97] He submitted that over a 4 ½ year period, the worker repeatedly refused to return to work and had no objective medical assessments to justify her refusal to perform the modified work provided by the accident employer.

[98] Mr. Fogel also submitted that there was no evidence of psychotraumatic or a chronic pain disability to justify awards under Board policy.

[99] He argued that after November 16, 1999, suitable modified work at no wage loss was available from the accident employer, the worker was not impaired and


her refusal to return to work constituted a failure to cooperate out of the provisions of section 43(3) of the Act.

[100] He noted that there was evidence that the worker had fabricated a note from Dr. Shin with respect to her ability from work, and stressed that the REC report had given a prognosis of full recovery as early as May 1999. With respect to the worker's psychiatric condition, he submitted that the evidence established that the worker's depression was firstly, not severe, and secondly, was caused by a stress reaction to the perceived behaviour of the accident employer, and as such, constituted mental stress, which was excluded under Board policy from entitlement to compensation.

[101] Mr. Fogel noted the evidence that there were no complaints from the worker to the accident employer between November 1999 and March 3, 2000 and no problems were evident until the worker was denied a request for a vacation during the March break of 2000.

[102] Mr. Fogel also disputed Dr. Mewa’s diagnosis of fibromyalgia, arguing that there was no evidence that the diagnostic test of trigger point sensitivity had been conducted. He also noted that Dr. Mewa reported on November 11, 2002 that the worker's chronic pain was controlled by medication.

[103] With respect to Dr. Lim’s assessment, Mr. Fogel argued that it was clear from Dr. Lim’s reports that the worker's condition was stress-related and therefore not a compensable condition.

[104] Mr. Fogel submitted that the accident employer always accommodated the worker and provided suitable modified work at all times, and that the worker failed to fulfil her obligation under the Act to participate in her early and safe return to work at suitable modified employment between March 2000 and August 2001.

[105] Under questioning, Mr. Fogel stated that he was "not denying that there was anything there" from the medical perspective, but he submitted that there was no medical evidence that the worker was disabled from doing the suitable modified work provided by the accident employer. He reviewed her behaviour between February 2001 and her return to work in August 2001 as indicative of a person who was deliberately evading a return to work without cause. His conclusion was that the evidence established that the worker was not impaired from returning to work and under the provisions of section 43(1) she was not entitled to LOE benefits and further, that the worker had failed in her cooperation obligations under the provisions of section 43(3) of the Act.

[106] Mr. Fogel also submitted that the medical evidence did not support entitlement for a permanent impairment for the neck/shoulder.

[107] He argued that the worker's allegations in testimony against the accident employer were "scandalous" and cast doubt upon the worker's own credibility.


He stressed again his argument that the accident employer had done everything humanly possible to accommodate the worker and had kept her in employment throughout this entire period, even to the present date, despite her behaviour and her prolonged absences from work.

[108] Finally, Mr. Fogel reviewed the cases submitted by Mr. Ublansky, submitting that the evidence in this case failed to establish that the worker's earning capacity was impaired or that she was unable to perform the suitable modified work which was in fact available from the accident employer.

(x) The Panel's conclusions

[109] This appeal involves two distinct issues. The first issue is whether the worker is entitled to a permanent impairment award resulting from the compensable injury to her right shoulder and neck arising from a repetitive strain accident dated December 12, 1998. A sub-issue is whether the basis of such permanent impairment would be organic or non-organic. The second issue is whether the worker is entitled to LOE benefits after November 16, 1999.

[110] It should be noted at the outset that, under the provisions of Board Operational Policy Manual, Document #03-03-05, an organic and chronic pain disability award for the same area of injury cannot be stacked.

(xi) Permanent Impairment [111] The first issue to consider is whether the worker is entitled to benefits for a

permanent impairment resulting from the accident of December 12, 1998. The worker's claim for a right shoulder injury was accepted by the Board as a compensable repetitive strain injury involving her right shoulder and neck, effective December 12, 1998.

[112] Initially the accident employer did not file a claim with the WSIB, and covered the worker instead through its private insurance carrier. The worker returned to work on April 6, 1999 and worked until May 17, 1999. She then received full LOE benefits from the Board until she returned to work on November 16, 1999, at which point benefits ceased.

[113] In August 1999, the Board medical consultant accepted that the worker's repetitive strain injury was work related. (Board Memo #14). The previous month, the issue of a permanent impairment for the worker's right shoulder condition was raised by the Claims Adjudicator in Board Memo #11. However this opinion was questioned by the nurse case manager in the Board Memo #17 and #18 on the grounds that the worker's pain symptoms appear to be "functional" and "whole body". And about the same time, in September 1999, the accident employer intervened with the Board to suggest that the worker's claim was not genuine and should be overturned.

[114] Despite the refusal to award entitlement for a permanent impairment, it is the view of the Panel that the Board decision makers proceeded to act as though a


permanent impairment did exist. An ergonomist was assigned to the case, who in turn proceeded to issue instructions to the accident employer for significant modifications to the workplace on the basis of what can only be considered to be an assumption of permanent medical restrictions. The Panel finds that in autumn of 1999 both the Board and the accident employer effectively acted as though the worker did have a permanent impairment to the right shoulder/neck, even though entitlement had not been granted. We also note the testimony of the witness, DM, who stated that she believed that the worker had a genuine injury which required medical restrictions subsequent to the worker's return to work in November 1999.

[115] Turning to the medical evidence in the Case Record, the Panel notes, firstly, that there is evidence that the underlying cause of the worker's acute right shoulder/cervical condition was a torn supraspinatous tendon, which was not diagnosed until Dr. Charleboix ordered ultrasound testing in July 2001.

[116] However, prior to that, the rheumatologist Dr. Mewa, who had treated the worker since March 1999, had already diagnosed the development of a fibromyalgia condition as of April 24, 2000, citing multiple tender points which are characteristic of this condition. Dr. Mewa confirmed the diagnosis in subsequent reports.

[117] The Panel finds, on the basis of the medical evidence that, on a balance of probabilities, the worker developed a fibromyalgia condition subsequent to her compensable repetitive strain injury.

[118] Entitlement to compensation for fibromyalgia is governed by the provisions of Board Operational Policy Manual, Document #03-03-05, Chronic Pain Disability/Fibromyalgia. (See above, paragraph x.)

[119] The Panel finds that the worker meets the five criteria for entitlement under Operational Policy Manual, Document #03-03-05. The worker's fibromyalgia condition is, according to the medical evidence, related to the work injury which occurred December 12, 1998. Chronic pain has been caused by the injury, and the pain has persisted since 1998 to the present date. The degree of pain, which is diffuse over the worker's whole body, is inconsistent with the organic findings in the right shoulder and neck. And finally the condition has led to periods of total disability and the imposition of permanent medical restrictions and permanent modifications to the workplace which were essential to accommodate the worker's condition. It is worth commenting that were it not for the extensive modifications to the workplace and the profoundly light duty nature of the employer’s available modified work, it is questionable whether this worker would be competitively employable elsewhere.


[120] There is also evidence of marked life disruption in the worker's social, occupational, personal and home life.

[121] The Panel finds that the worker's fibromyalgia condition is a compensable condition related to her accident of December 1998, and the worker has entitlement to a NEL award under the provisions of Operational Policy Manual, Document #18-05-11.

[122] While there is evidence that there is organic injury in the worker’s shoulder, the evidence is that the worker’s symptoms are not adequately accounted for by her organic injury and under the provisions of Operational Policy Manual, Document #03-03-05, compensation for this condition is subsumed into the non-organic award on a whole person basis.

[123] In addition to the worker's fibromyalgia condition, the worker has a major depressive disorder which has been thoroughly documented by the treating psychiatrist, Dr. Lim, from the time that he began psychiatric treatment in October 1999 until his final reports in February 2003. Dr. Lim has explicitly attributed the worker’s depressive disorder to the, "aftermath of her injury," in his report of February 3, 2001.

[124] Mr. Fogel submitted that the worker’s depression was a stress reaction to actions of the employer and as such, was not compensable. However, the Panel accepts the evidence of the treating psychiatrist Dr. Lim as determinative in this point.

[125] The Panel finds on the basis of the medical evidence that the worker's major depressive disorder is related to the accident of December 12, 1998 and that the worker has entitlement to a NEL award for this condition.

(xii) LOE benefits [126] The second issue before the Panel is whether the worker is entitled to LOE

benefits after November 16, 1999.

[127] It must be observed at the outset that this case manifests a rather startling degree of mis-communication between the worker and her employer over a period of some three years. The Panel will observe that this miscommunication would appear to be a feature of the behaviour of both parties in this appeal. A review of the worker's testimony, compared with the testimony of the three witnesses for the employer, reveals a history of misinterpretation, misapprehension and mixed messages that was constant throughout the period in dispute.


[128] On its part, the accident employer seems to have taken extraordinary measures to retain the worker as an employee after her repetitive strain injury in 1998. There are three separate efforts to return the worker to her job: in the spring of 1999, in November 1999; and in the spring of 2001. There is yet another such effort outside the period under appeal, in February 2003.

[129] The evidence before us indicates that the first return to work effort was not entirely successful. Despite the accident employer's stated desire to assist the worker to return to work in suitable modified employment, the evidence is that the work was not suitable, according to the Board ergonomic specialist. And at precisely the same time that the accident employer was attempting to provide suitable modified work, the employer was simultaneously contesting the legitimacy of the worker's claim, reporting second-hand hearsay rumours about the worker to the Board and communicating directly to the worker that her position at the company was insecure. This appears to indicate a certain degree of double or mixed messages that would understandably undermine any return to work project.

[130] During this same period, between March 1999 and November 1999, the worker's interpretation of the accident employer’s admittedly mixed messages was, to say the least, unusual. The worker has testified that the accident employer made statements to her, threatening to sue her doctor if he treated her as a WSIB claim. She testified that she was locked in the office and that she was fired in March 1999. The Panel finds that these statements entirely inconsistent with the other evidence. They are completely belied by the actions of the employer over a three-year period to provide safe and suitable work for this employee with no loss of wages.

[131] The evidence led by Mr. Fogel from the witnesses DM and KN is accepted by the Panel as evidence that the employer made serious and effective efforts to accommodate the worker’s condition, which the witness DM stated was, in her view, genuine. The worker’s workstation was modified so that all lifting was eliminated, the workstation was re-aligned to ease the pressure on her right shoulder, and a two book per minute maximum was put in place. The Panel accepts that the accident employer did provide suitable modified work within the worker's medical restrictions and that this work was available after November 16, 1999, without interruption.

[132] The Panel does not accept that the worker's layoff from work in March 2000 was related to her compensable condition. The worker's own explanation to her supervisor, according to her own testimony, was that her prolonged absence between March 2000 and August 2001 was partially attributable to her concern that she had tuberculosis. It is also noted that the worker’s absence from work in the spring of 2000 was attributable to the worsening of her depressive disorder at


that time. However, Dr. Lim has documented that the worker's depression was completely under control as of March 2000, to the extent that he had discharged her from his care, and that the re-emergence of her major depressive condition in the spring of 2000 was result of the worker's own decision to discontinue taking her prescribed medication.

[133] In summary, the Panel finds that subsequent to November 16, 1999, suitable modified work at no wage loss was available from the accident employer. While the worker’s condition was not insignificant, it is the Panel's view that the modified work made available by the accident employer was within her medical restrictions. Her absence from work, beginning in March 2002, was not in the Panel's view, related to a deterioration of her condition, but rather was, in the first instance, a reaction to denial of her request for a March break vacation. Her prolonged absence from work was, according to the medical evidence, due to the worsening of her depressive disorder which was precipitated by her refusal to take her prescribed medication (Paxil). In voluntarily discontinuing her medication, which had effectively controlled her depressive disorder, the worker has failed to mitigate her circumstances as is required under the provision of section 43(7)(b) of the Act.

[134] This provision establishes that cooperation with health care measures are a condition of eligibility for ongoing LOE benefits.

[135] There is no other medical cause identified in the evidence, aside from the worker's depressive disorder, to account for the worker’s absence of work between March 2000 and February 2001.

[136] Between February 2001 and August 2001, the worker’s absence from work is attributable to her concern that she was suffering from a non-compensable condition, tuberculosis. And the fact remains that the accident employer continued to hold suitable modified work at no wage loss available for this worker and had even arranged for additional testing in 2001 to determine if additional workplace modifications were required.

[137] The worker's duties, as described in testimony and demonstrated by the employer's witness, fully met the worker's medical restrictions. In fact, the Panel would observe that the tasks required in the job provided for this worker were about as light as is possible to contemplate .

[138] The Panel finds that suitable modified work at no wage loss and within the worker’s functional capacity and medical restrictions was available from the accident employer between March 2000 and August 2001. Entitlement to LOE benefits during this period is denied on this basis.


THE DECISION

[139] The appeal is allowed in part.

[140] The worker is entitled to a NEL award for a compensable fibromyalgia condition, including clinical depression, and the Board is directed to provide a NEL assessment under the provisions of the rating schedule set out in Board Operational Policy Manual, Document #18-05-11.

DATED: This 15th day of April 2004.

SIGNED: R. McClellan, M. Bullivant, F. Jackson.

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