[1]                                         The now 54 year old worker was hired as a security guard by the accident employer in early 2007. On February 10, 2015, she slipped on a wet floor falling onto her right knee and landing on her back. The worker also reported a groin injury from twisting. She was seen in the Emergency Department of the local hospital, where right knee, right sided back pain and hip pain were noted. A right knee ultrasound from February 14^th was normal. The worker returned to regular work for one day on February 16^th. A March 13^th CT scan demonstrated multilevel DDD, most notable at L4-5.

[2]                                         Around the same time (early March), the worker returned to work but could not continue, complaining of pain.

[3]                                         Over the next few months, the worker attended a number of medical appointments and treatments took place. Various diagnoses were advanced, including: adjustment disorder, pain disorder, sacroiliac joint disorder, lumbar strain, somatic symptom disorder, and fibromyalgia.  Of note, the worker attended the Mount Sinai Hospital Function and Pain Program (FPP) in early 2016. The discharge report noted mild improvement and advised the worker was functioning at the low sedentary strength level. The prognosis for a return to work was poor.

[4]                                         The worker has not since returned to work.

[5]                                         The worker now appeals a November 7, 2016 decision in which the ARO determined the worker did not have entitlement to loss of earnings (LOE) benefits beyond February 16, 2015 (save for the time period attending the FPP). The ARO also concluded the worker did not have entitlement for either chronic pain disability or for psychotraumatic disability.

[6]                                         The worker also appeals a subsequent June 2017 decision in which the ARO determined there was no permanent impairment on an organic basis for the lower back, right hip and right groin.

[7]                                         Accordingly the issues before me for determination are:

[8]                                         Since the worker was injured in 2015, the Workplace Safety and Insurance Act, 1997 (the “WSIA”) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

[9]                                         Specifically, sections 13, 42, 43 and 46 of the WSIA govern the worker’s entitlement in this case.

[10]                                      Pursuant to section 126 of the WSIA, the Board provided the relevant policy packages, Revision #9, applicable to the subject matter of this appeal. I have considered these policies as necessary in deciding the issues in this appeal.

[11]                                      I turn first to entitlement for CPD. If there is entitlement for this condition, then entitlement on a psychotraumatic basis and organic basis become moot, as CPD cannot be stacked. For the following reasons I find the worker does have entitlement for CPD:

[12]                                      Board Operational Policy Manual (OPM) Document No. 15-04-03, entitled “Chronic Pain Disability,” states 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 as follows in explaining the application of the policy:

[13]                                      The Board has compiled a chart to outline how the criteria for chronic pain disability are to be assessed:

[14]                                      This case meets the threshold criterion in that I have determined the worker's pain is not predominantly attributable to psychotraumatic or organic causes. It must now be established whether the worker meets the five criteria itemized in policy.

[15]                                      First, there is an accepted, compensable injury, this occurring on February 10, 2015. Second, while the initial reporting suggested the worker would recover shortly – the February 10^th hospital record indicated the worker would need two days’ rest – it is clear from the ensuing investigations (ultrasound and CT scan) and medical appointments that the worker continued to have symptoms. Importantly, the September 2015 Regional Evaluation Centre report (some 7 months post-injury) provided an organic diagnosis (lumbar strain, right groin and right knee strain), but advised there was evidence of non-organicity present, recommending the worker participate in a FPP and that a return to work be deferred. There is no suggestion on file that the worker's pain (relating to the right hip, lumbar spine and groin) evolved from anything other than the workplace accident.

[16]                                      Third, I find the worker's pain has persisted 6 or more months beyond the normal healing time of the injury. The accident occurred on February 10, 2015. One would expect resolution of soft tissue injuries within a number of months. Yet, a year later, the worker was just finishing the Mount Sinai Hospital FPP, with ongoing symptoms noted, as well as a poor prognosis being given. Since then the worker has seen several physicians, all of whom confirm the worker has ongoing problems that would be accurately captured under the chronic pain disability policy. For instance, in May of 2016, Dr. D. Torrington diagnosed the worker as having chronic pain; in July of that year, psychiatrist Dr. S. Tozman advised the worker had a somatoform pain disorder; and, more recently, physiatrist Dr. V. Kekosz saw the worker in November of 2017 and advised she had soft tissue pain syndrome.

[17]                                      Fourth, the medical documentation describes pain that is out of proportion to the injuries incurred and which does not have an organic basis based on clinical testing. That is, a right knee ultrasound was normal and CT scan demonstrated only multilevel DDD. No physical cause for the right groin symptomatology has been identified.

[18]                                      Fifth, I am satisfied the worker's CPD has manifested in marked life disruption (MLD) vocationally, socially and emotionally. Board policy explains that marked life disruption (MLD) is the only useful measure of disability or impairment in chronic pain cases. It states, “Marked life disruption indicates the effect of pain experienced by the worker and the effect of the worker's activities of daily living, vocational activity, physical and psychological functioning as well as family and social relationships. The policy advises the disruption can be minor or major but must be consistent and all three aspects of the worker's life: social, occupational, and home life, must be present.

[19]                                      I find the worker's pain has been constant and that it has impaired her physical functioning – as set out in the FPP report. There are numerous reports documenting the depression and anxiety the worker has displayed, secondary to her pain experience. In particular, psychiatrist Dr. Tozman diagnosed the worker as having an anxiety disorder and a major depression in his correspondence from July of 2016 and July of 2018.

[20]                                      I have relied on, and generally accepted, the worker's testimony as to her functioning. She described limitations in respect to sitting, standing and walking. Her stated restrictions were in accordance with her demeanour in the hearing itself. That is, the worker did not sit for extended periods without standing. The worker described having a circumscribed personal life, where her family helps her wash her hair and doing chores (although she does live by herself). Her son is in the same building and her sister is 20 minutes away, so they can assist on a regular basis. The worker explained that she will occasionally drive two minutes to go to a local coffee shop, but she does not socialize much. The worker described needing “to be alone.”

[21]                                      The worker acknowledged that she had taken Lorazepam for anxiety on occasion prior to the accident but now takes more of it and more regularly.

[22]                                      In cross questioning the worker agreed she had undergone some counselling pre-accident, mostly about relations with her husband. She did not recall an anxiety disorder diagnosis in 2008, but did recall there being one in 2012. The worker agreed she went to counselling, but that concerned her husband. She also explained she had some incontinence issues in late 2012 related to doing some detoxing.

[23]                                      She also agreed she had taken two sick days on February 8^th and 9^th, 2015. It was her recollection that she was using up her sick days, but she did not dispute the suggestion that she was also experiencing problems in her marital relationships. With respect to her husband, the worker testified that they had married in 2008, separated in 2010, had gotten back together in 2015 to provide the worker with some assistance, and in 2016 he left for good. The worker's son lives in her building and her sister is 20 minutes away.

[24]                                      In establishing whether there has been genuine MLD, I have considered the submissions of both representatives. I note the worker's representative’s submissions that not one physician has suggested the worker was malingering or acting out of secondary gain motivation. Ms. Perciasepe acknowledged the REC report commented that there was a difference between the worker's reported ability and her observed behaviours, in that she reported being able to sit for 10-15 minutes, but did, in fact, sit for 40 minutes. Ms. Perciasepe submitted that it would be normal to be more guarded when directly examined, and more relaxed when not. She also referenced Tribunal Decision No. 337/10 and its discussion of honest exaggeration. That is, a worker may present as more disabled out of fear of pain or to avoid pain. This does not necessarily lead to a conclusion that the pain is not present.

[25]                                      Mr. Whitten has submitted that credibility is critical to a reliable diagnosis of CPD. He argued the worker had a history of depression and anxiety prior to the workplace injury. When asked, he clarified that there was a documented history of anxiety, and agreed that depression had not been diagnosed pre-accident. Mr. Whitten pointed out that the Form 8 suggested a full return to work in two days. He also noted the REC report’s list of functional abilities was somewhat different than that provided in the FPP. He queried why the worker could remember certain aspects of the return to work process and not others. Mr. Whitten pointed out the medical reports suggested the worker could perform light sedentary work, but the worker stated she didn’t feel capable of any return to work. Lastly, Mr. Whitten submitted the worker's DDD and anxiety predated the accident, and suggested her current symptoms related to her pre-accident symptoms, and did not flow from the minor workplace incident.

[26]                                      I agree with Mr. Whitten’s point that credibility is central to a determination regarding chronic pain disability. Mr. Whitten has argued that, because the worker's account is not credible, MLD cannot be established or, in the alternative, linked to the work injury itself.

[27]                                      As has been set out in Board policy, chronic pain is subjective and can only be felt or described by the person experiencing it. Thus, that person’s testimony is central to a determination of entitlement for chronic pain disability. It is also the case that, with chronic pain, the degree of pain experienced is out of sync with the objective findings and, therefore, to a disinterested observer, there may seem to be aspects of exaggeration present. Those aspects of “exaggeration” should not, in and of themselves, be detrimental to a finding of genuine entitlement for chronic pain, since an enhanced sense of pain can be a legitimate basis for chronic pain entitlement.

[28]                                      Nevertheless, a worker's testimony must be perceived as reliable and consistent with the known facts, even if the individual’s sense of his or her pain is enhanced. Otherwise, the credibility of the worker will be called into question and, with it, the reliance that can be placed on that person’s testimony as to marked life disruption.

[29]                                      In the end, I find the worker's testimony as to her symptoms and MLD to be generally reliable. That is, I acknowledge she has downplayed her anxiety symptoms prior to the work injury. The documentation is clear that she did have periods of anxiety and these did not likely all concern her husband in that, by her own testimony, she was separated during 2014 when one bout of anxiety was recorded. It is possible that the separation may have been a difficult period in and of itself, so I do not consider this to be a deliberate misstatement on the worker's part. It does seem, however, that there was some generalized anxiety present prior to the work injury.

[30]                                      Nonetheless, I find that the worker was functional and able to perform her job for eight years prior to the work injury and this accords with her testimony. In that regard, there is no demonstration of MLD prior to the work injury. The fact that she had been diagnosed with an anxiety disorder does not go to establishing she could not do her regular work. It does suggest that the worker would be vulnerable to events or situations that might exacerbate her condition.

[31]                                      I accept that there might be some overlay to the worker's current presentation. Whether that is conscious or unconscious I do not know. I accept that the worker genuinely believes herself to be significantly disabled. I find that there is a reliable demonstration of chronic pain symptoms dating from soon after the work injury. No physician has suggested the worker is malingering or feigning symptoms. That the worker may present with heightened pain symptom is part and parcel of chronic pain disability. For instance, whether the worker could, as of the REC assessment, sit for 15 or for 40 minutes, the fact remains that her sitting capability was compromised. I find the evidence demonstrates her functioning was reduced, even if not as severely as she felt it was. On examination, for example, her lumbar range of motion was observed to be greatly reduced. I also note that the worker reported she was able to stand for 15 to 20 minutes but the REC report commented that she stood for five minutes without balance deficits (suggesting an observed deficit greater than the reported one). Her walking was also observed to be limited.

[32]                                      This is by way of saying that, while the degree of chronic pain disability may not be clearly established, the preponderance of the evidence substantiates that it is present and constitutes a significant disability. I find as a fact that the worker's ADL have changed in very sphere since the work injury, and I further find the compensable accident to have been a significant contributing factor. I also find the worker's anxiety has increased since the work injury; the depression and adjustment disorder diagnoses were not present prior to the work injury and are in line with the diagnosis of CPD.

[33]                                      Lastly, I do not accept that the worker's current condition flows from a pre-existing condition. The DDD clinically identified would have been present prior to February of 2015 but there is no suggestion that the worker had symptomatic back pain prior to the work injury. Further, there is no clear evidence that the clinical findings would account for the worker's current symptoms.

[34]                                      Thus, there is entitlement for chronic pain disability and, as it has been ongoing for a number of years at this point, I find the condition permanent and the worker is entitled to a permanent impairment award for her CPD. The quantum and maximum medical recovery date is remitted to the Board for its determination, subject to the usual rights of appeal.

[35]                                      As neither psychotraumatic disability nor organic disability can be stacked with a chronic pain disability award, those elements of the worker's appeal become moot. I will not discuss them further.

[36]                                      As I have found the worker has entitlement to chronic pain disability, including a permanent impairment for this condition, it follows that I find her condition never returned to its pre-accident plateau.

[37]                                      LOE benefits are contingent on a number of factors. First, and foremost, the worker must have a loss of earnings flowing from the workplace injury.

[38]                                      I find that the worker's chronic pain disability resulted from the workplace injury and therefore has contributed to a loss of earnings flowing from the injury. It is accepted that the worker could not return to her pre-accident work.

[39]                                      The next factor involves the worker's participation in an early and safe return to work. In this case, I accept the employer offered modified work that it believed was suitable and safe. I accept that it followed up with the worker and explained, generally, what office work would look like. I accept the testimony of the employer's witness that he could and would have made further modifications to the office work offered her in the early spring of 2015. He also advised that the job was one the company created for employees in need of modified work; it was not a full time job. I accept, however, that it was available for the worker in 2015.

[40]                                      However, given that chronic pain disability was not recognized at the time of the original modified work and the extent of the worker's disability was not known, I cannot say the work offered in February of 2015 was suitable at that time. Initially, the worker returned to regular work and it is accepted she was not able to sustain that work. As noted above, the employer did offer a generic kind of office work, which  the worker's physician advised she was unable do. I accept that the employer made a bona fide offer and was interested in returning the worker to employment. In closing submissions the employer's representative asked what more the employer could have done in terms of cooperating in its statutory responsibilities. The answer is that the employer did everything it was supposed to do. I accept the employer met its obligations as required in law and policy.

[41]                                      Nonetheless, the fact that the employer fulfilled its responsibilities in offering modified work does not necessarily signify that work was appropriate for the worker at that stage – February/March of 2015. The worker was undergoing regular and frequent treatment after her benefits were terminated in February of 2015. The September 2015 REC report advised that a return to work was to be deferred until the worker attended an FPP.

[42]                                      Accordingly, I find the worker was unable to return to modified duties until she underwent the FPP program in February of 2016. Accordingly, she is entitled to full LOE benefits for this period.

[43]                                      As of her discharge from the Mount Sinai Hospital FPP, the worker demonstrated the “ability to perform tasks at the Low-Sedentary strength level,” which the assessors thought met the demands of her modified duties from a purely physical perspective. The report noted the worker had advised she did not have the computer skills necessary to perform the work. The reports gave restrictions of no bending/twisting of the lumbar spine and a work environment that allowed for self-pacing and the ability to alternate tasks and take frequent micro stretch breaks. In respect to her psychological status, the report noted the worker's condition was associated with significant distress, but mood was not identified as a significant barrier to her return to work. It also suggested a prognosis for return to work was poor. The restrictions noted above suggest to me that part-time work would have been more feasible (given the requirement for frequent breaks, self-pacing and limited movements of the lumbar spine), but the report does not suggest the worker was unable to perform any work.

[44]                                      The worker has testified that she would not have been able to return to clerical work and that she did not possess the skills to carry out the functions. That may be the case, but she did not contact the employer to ask for either training or further accommodations. Further, I cannot find she was unable to do any work. The assessment and treatment at the FPP was comprehensive. The follow-up note from the worker's family physician in May of  2016 advised the worker was unable to perform any kind of work. However, I do not give as much weight to his one paragraph conclusion as I do to the detailed assessment provided by the FPP.

[45]                                      I am mindful that, by February of 2016, the employer was no longer contacting the worker about a return to work and, similarly, the worker was not in touch with the employer. Nonetheless, as of the worker's discharge, I find she was no longer completely disabled, and was capable of low sedentary work, probably in a part time capacity. I do not doubt the worker's sincere belief that she could not perform any work, but that is not what was indicated in the FPP assessment. Had she attempted sedentary work and been unable to perform it on a sustained basis, I would have been adjudicating on a different set of facts. In the absence of a finding of total disability, I cannot find that the worker's failure to look for employment signifies that no kind of employment would have been suitable. 

[46]                                      I think it likely, given the evidence before me – primarily the final report from the FPP - that the worker would have been capable of low level sedentary work only on a part-time basis. This work was not offered to her in February of 2016 by the accident employer but neither did she enquire about the possibility.

[47]                                      Given the employer advised in testimony that the job was not a full time position, it may not have been available for her in the spring of 2016 and it does not seem as if it is available on a full time sustainable position.

[48]                                      In determining retrospective benefits, I have had regard for the WSIB Adjudicative Advice document entitled, “Practice Guideline for Ordering LOE Benefit Arrears under WSIA,” dated March 2002. That document states that 100% benefits are payable where an impairment exists that prevents a worker from returning to pre-injury employment and no suitable employment has been offered, but the worker is making reasonable efforts to secure suitable employment or engaging in other activities (e.g., active health care treatment) reasonably aimed at improving employability and minimizing loss of earnings. Partial LOE (equivalent to 85% of the difference between the pre-accident earnings and the amount the worker is able to earn in the SEB) is payable where an impairment exists that prevents the worker from returning to pre-injury employment; no suitable employment has been offered to the worker, but the worker has not made reasonable efforts either to secure suitable employment or improve his/her employability. The post-accident earnings are to be based on the SEB identified through an LMR [or WT] assessment as achievable without training. Lastly, the document specifies that partial loss of earnings (equivalent to 85% of the difference between the pre-accident earnings and the current post-accident earnings) is payable where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered to the worker but the worker has found a job and is currently earning. Where the worker has attempted to mitigate the wage loss by actually finding a job, current earnings are used. An LMR assessment may or may not be ordered depending on such factors as whether the worker has a permanent impairment and the significance of the loss of earnings. In this case, I find the worker would be entitled to partial LOE benefits based on the difference between her pre-accident earnings and the amount she could earn working part-time (maximum of 20 hours a week) in a SEB achievable without training.

[49]                                      I come to this conclusion, but not because the employer failed to offer modified work in the first instance. The employer did offer modified work in February and March of 2015. The worker refused (on the advice of her physician) and the Board terminated benefits. The employer reasonably came to the conclusion it had met its obligations. It could not have known that, in 2019, the worker would retrospectively be granted entitlement to chronic pain disability and entitlement to LOE benefits for the period between February of 2015 and February of 2016. There was no reason for the employer to offer modified work in 2016. However, while the worker did not inquire, it is also the case that she might reasonably have thought there was no point and it was no longer available. Accordingly, I find suitable, modified work was not specifically offered to the worker in February of 2016, but neither did she look for such employment. Therefore, following the Adjudicative Advice Document, partial benefits, as set out above, would be in order.

[50]                                      I have come to my conclusion on retroactive LOE benefits based largely on the FPP final report. There is limited documentation as to the worker's present functioning and it may have deteriorated. The worker has entitlement to a permanent impairment award for her CPD. Once the quantum of her disability is established, the Board is to offer her a Work Transition (WT) assessment (which could include an up-to-date functional abilities evaluation) to ascertain if the worker would benefit from such services. The nature and extent of LOE benefits once the worker's degree of permanent disability and WT assessment are established are remitted to the Board for its determination.

[51]                                      The appeal is allowed in part as follows: