Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2017 News | July 2017 | CSR Chronic pain from pre-existing condition, not workplace injury Worker's chronic pain and anxiety weren't reported at time of workplace accident but resembled earlier conditions BY JEFFREY R. SMITH AN ONTARIO worker's chronic pain and anxiety is the result of pre-existing conditions and not a workplace accident in which she suffered relatively minor in- juries, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The worker began working as a receptionist and telephone interviewer for a government agency in 1986, starting as a part- time employee working 32 hours per week. The worker also had a medical history that included low back pain from degenerative disc disease and sciatica, as well as anxiety and depression — she was off work from 2001 to 2003 because of anxiety and depres- sion, continuing to take medica- tion for them when she returned to work. On Nov. 6, 2007, the work- er was in the office when she tripped on a rug. She fell forward onto a desk, injuring her upper back, right arm, and left toe. She continued working for the rest of the day and didn't see her family doctor for nearly a month. When the worker saw her family doctor on Dec. 3, she said she had hurt her right arm, had sprained her left big toe, and felt pain radiating from her upper back to her neck. The doctor diagnosed a sprain in her up- per spine and contusions to her arm and toe. The worker began attending physiotherapy, which continued for five months. She filed an injury report with the Ontario Workplace Safety and Insurance Board (WSIB) in- dicating she injured her upper back, right arm and wrist, left shoulder, and left toe. At the end of the worker's physiotherapy in April 2008, the physiotherapist indicated that the worker had "occasional pain" in her upper back but she should continue to improve over the next four to six weeks. The worker was able to per- form her normal duties at her desk until July 18, 2008, when pain in her middle and lower back flared up. She had to take time off work and received loss- of-earnings benefits from the WSIB. She eventually under- went a multidisciplinary health care assessment in April 2009. In the assessment, the worker reported "constant, sharp pain in the right shoulder and constant burning in the low back and left leg." The physiatrist performing the assessment concluded that the worker's anxiety was a factor in her chronic pain disorder — the worker's overreaction to the pain in her back and leg made it difficult for the physiatrist to ac- curately assess her. The worker had an EMG that came back mostly normal, ex- cept for some subtle changes in her left leg. An MRI of her right shoulder revealed mild bursitis. The assessment's conclusion was that the worker had chronic pain disorder with her left leg, right shoulder and back, along with anxiety disorder. The WSIB determined the worker was able to return to her regular duties in her pre-accident job, since the job involved mostly sitting at a desk without moving too much. An ergonomic assess- ment found that the worker's job was within her medical re- strictions, which included no bending, overhead work, or lift- ing. The WSIB ruled the worker could return to work in June 2009, but the worker didn't agree and refused to participate in the return-to-work plan. As a result, the WSIB terminated her loss- of-earnings benefits. The worker appealed to the Ontario Workplace Safety and Insurance Tribunal. The tribunal referred to the WSIB's policy document on chronic pain disability, which stated that benefits for such a condition must create a "marked life disruption" and it must have "characteristics compatible with a work-related injury, except that it persists for six or more months beyond the usual healing time for the injury." The policy document listed several aspects of marked life disruption, including con- stant pain, aggravation of pain by certain activities, pain from mov- ing body parts, restricted move- ment, and difficulty with sleep. The tribunal found that the worker had a pre-existing histo- ry of lower back pain and anxiety before the workplace accident, and the worker's report of injury listed her upper back, right arm and wrist, and left toe — not her lower back or right shoulder. The medical reports also listed these same areas. The tribunal noted that the worker was able to continue working after the accident and while she underwent physio- therapy without complaining of pain to her doctor. In addi- tion, the physiotherapy report in April 2008 indicated she was well on her way to recovery, with only some occasional pain in her upper back. This led to the con- clusion that her injuries were rel- atively minor, said the tribunal. In addition, the multidisci- plinary medical assessment re- ported pain in the worker's right shoulder and constant burning in the low back and left leg. The worker didn't injure either of these areas in the workplace ac- cident. There were some com- plaints of upper back pain in the assessment, it appeared the ma- jor complaints were those other areas, the tribunal said. The tribunal also pointed to the assessment's report that the worker's anxiety disorder was contributing to her chronic pain disability. There was no report of increased anxiety immediately following the accident, so its re- appearance months later around the time of the assessment made it likely it wasn't related to the ac- cident. As a result, the tribunal concluded that the "fairly minor work injury" didn't significantly contribute to the worker's chron- ic pain disability and she wasn't entitled to compensation for it. "I find that the worker's loss of earnings was not the result of the injury," said the tribunal. "Her compensable injuries had resolved to the point where the worker could have returned to her pre-accident employment, which was sedentary in nature." For more information see: • Decision No. 1187/16, 2017 CarswellOnt 6907 (Ont. W.S.I.A. Trib.). Credit: Shutterstock/ESB Professional

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