WCAT Decision Number: WCAT -2013-01366 · WCAT Decision Number: WCAT -2013-01366 5 Workers’...

WCAT Decision Number: WCAT-2013-01366

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Workers’ Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1 Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898

WCAT Decision Number: WCAT-2013-01366 WCAT Decision Date: May 21, 2013 Panel: Andrew Pendray, Vice Chair _____________________________________________________________________ Introduction

[1] The worker, a teacher, was injured on September 29, 2009 when she fell to the ground after being run into by a student. Pursuant to section 239(1) of the Workers Compensation Act (Act), the worker appeals two decisions1

of the Review Division of the Workers’ Compensation Board (Board).

[2] In Review Reference #R0142576, the Review Division confirmed a February 9, 2012 decision of the Board. That Board decision made a number of determinations. First, it determined that the worker’s compensable injuries arising out of the September 29, 2009 fall were limited to a back strain, a left shoulder strain, and a soft tissue injury to the left wrist. The Board further determined in that decision letter that those injuries had resolved by December 14, 2009, and that the worker had been left with compensable chronic pain of the neck and upper back which had become permanent conditions. Finally, the Board determined the worker had not experienced a significant change in or recurrence of her compensable conditions such that her claim ought to have been reopened for further temporary disability benefits in January 2010.

[3] In Review Reference #R0142575, the Review Division confirmed a March 7, 2012 decision of the Board which determined that the worker was entitled to a permanent disability award equal to 5.0% of total disability pursuant to section 23(1) of the Act, and that the worker was not entitled to have her permanent disability award assessed on a loss of earnings basis as provided for by section 23(3) of the Act. Issue(s) Review Reference #R0142576

[4] The issues under appeal in this decision are: • What are the compensable injuries under the worker’s claim?

• When did those compensable injuries resolve or become permanent?

• Is the worker entitled to a reopening of her claim for further temporary disability benefits in January 2010?

1 Review Reference #R0142576 and Review Reference #R0142575


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Review Reference #R0142575

[5] The issues in this appeal are: • Did the Board correctly estimate the worker’s entitlement to a permanent disability

award on a functional impairment basis as provided for by section 23(1) of the Act?

• The issue is whether the worker is entitled to have her permanent disability award assessed on a loss of earnings basis.

Jurisdiction and Procedure

[6] This appeal is brought pursuant to section 239(1) of the Act, which permits appeals from Review Division decisions to the Workers’ Compensation Appeal Tribunal (WCAT), subject to the exceptions set out in section 239(2) of the Act.

[7] Subject to section 250(4) of the Act, the standard of proof in an appeal is the balance of probabilities. Section 250(4) provides that in a matter involving the compensation of a worker, if the evidence supporting different findings on an issue is evenly weighted, the issue must be resolved in a manner that favours the worker.

[8] Section 250(2) of the Act requires WCAT to apply published policy of the board of directors of the Board, subject to the provisions of section 251 of the Act. The Rehabilitation Services and Claims Manual, Volume II (RSCM II), contains the published policy applicable to this appeal.

[9] The appeal proceeded by way of oral hearing, which was attended by the worker and her legal counsel.

[10] Although the employer indicated that it would participate in the appeal, it did not attend at the oral hearing. The practice directive set out at Item #14.2.3.5 of WCAT’s Manual of Rules of Practice and Procedure (MRPP) sets out that where an oral hearing is scheduled, a participating respondent is normally expected to appear at the oral hearing, either in person or by telephone. The practice directive goes on to set out that:

If a respondent fails to appear at an oral hearing, and fails to make the necessary arrangements to participate by telephone, they will be deemed to have waived their right to participate further in the appeal. Where a participating respondent does not attend the oral hearing, either in person or by telephone, they may send in a written submission in advance of the oral hearing. For the purpose of participating in the appeal, WCAT will not provide a copy of the voice recording of the oral hearing or any new documentary evidence or argument that was submitted at the oral hearing or obtained by the panel after the hearing. Panels may, however, invite the


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respondent’s comments if the panel considers this to be necessary or helpful to its consideration. Where WCAT receives evidence establishing that the respondent was unavoidably delayed or otherwise prevented from attending the hearing, the panel will decide how to ensure the respondent is given an adequate opportunity to participate in the appeal.

[italics in original]

[11] Subsequent to the completion of the hearing, the employer contacted the WCAT Registry and indicated that it would send in a written submission, which it did.

[12] I did not invite the employer to provide that submission.

[13] The respondent employer did not provide any notice that it would not be appearing at the oral hearing, and did not make any arrangements to participate in the hearing via telephone. The respondent also did not provide its written submission to the tribunal in advance of the hearing. Further, the respondent employer provided no evidence indicating in any way that it was unavoidably delayed or otherwise prevented from attending the hearing. I find that the respondent waived its right to participate in this appeal further by failing to attend the hearing or to provide its written submission in advance of the hearing. I do not consider that it will be helpful or necessary to my consideration of this appeal to accept the employer’s late submission, and to obtain further rebuttal from the worker on that submission.

[14] I note that the worker also provided a report from a psychologist after the close of evidence and submissions in this appeal. I have not considered that report in reaching my decision. In electing to do so, I note that the worker’s representative candidly admitted in the covering letter providing the report to WCAT that the report in question dealt with conditions that were not before me on this appeal. Background and Evidence

[15] The worker is a school teacher. On September 29, 2009, she was run into by a student, which caused her to fall on her left side. The worker reported in her application for compensation that her left hand and hip had impacted the ground first, followed by her left shoulder. The worker also reported jolting the left side of her neck.

[16] The worker attended her regular walk-in medical clinic on that same date, where she was seen by Dr. Naidoo. Dr. Naidoo indicated that the worker was tender in the area of her left lateral neck and back, and he diagnosed her with an arm injury (ill defined sprains and strains). Dr. Naidoo indicated that the worker was limited by pain and as a result unable to work full time, full duties.


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[17] On October 2, 2009, the worker was seen by another physician, Dr. Muncey. At that time, the worker reported pain and stiffness in the neck, as well as headaches and constant pain in the right lower back, buttocks, and hips. On examination, Dr. Muncey found the worker to have tenderness of the left neck and upper back with restricted mobility of the cervical and lumbar spine. Dr. Muncey further indicated that the worker was tender in the area of her right lower back and right sacroiliac joint. She recommended that the worker attend for massage therapy.

[18] The employer’s October 7, 2009 report of injury to the Board indicated that the worker had reported a bruise to her left hand, along with pain in her left shoulder and neck, as well as pain in her left hip after the September 29, 2009 accident. The employer further indicated that the worker reported that the fall had aggravated her right hip pain that had been present prior to the fall.

[19] On October 8, 2009, Dr. Muncey indicated that the worker reported pain in her right lower back. On examination, Dr. Muncey again found the worker to have a tender right lower back and right sacroiliac joint, with decreased flexion and extension of the lumbar spine.

[20] By October 22, 2009, the worker was reported to be feeling a bit better, though she continued to report right-sided lower back pain and left neck pain. Dr. Muncey noted that the worker had tenderness in the left trapezius muscle and the right lower back and sacroiliac joint, along with decreased mobility in the cervical and lumbar spine.

[21] On November 9, 2009, the worker attended at an occupational rehabilitation program for assessment. At that assessment, the worker was noted to have reported that the pain on the left side of her lower back had completely resolved, but that she had pain on the left side of her neck and the right side of her lower back. The worker described her neck pain as stiffness and pain with movement (with minimal pain when her neck was still) and her low back pain as a dull achy feeling. No other areas of pain or other injury are noted in the assessment report. The occupational rehabilitation program indicated that:

The only apparent barriers to return to work are that she lacks the capacity for the prolonged standing and sitting aspects of her work due to poor core stability.

[22] In a December 10, 2009 report, Dr. Muncey indicated that the worker reported that she

was feeling better and getting stronger, though she continued to experience pain and stiffness in her neck and lower back pain. Dr. Muncey also noted, for the first time, that the worker had left wrist pain and left shoulder pain. Dr. Muncey noted that the worker had restricted mobility in her left shoulder as well as pain with extension of the lumbar spine, and recommended a further month of physiotherapy.


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[23] The worker was discharged from the occupational rehabilitation program as fit to return to work without limitations on December 11, 2009. The program discharge report indicated that the worker’s cervical movements were full and pain-free except for right side flexion and right rotation. Lumbar spine movements were also full and pain-free except for extension and left and right side flexion which was full but painful at the end range. On examination, the worker was noted to have ongoing mild tenderness of her left upper trapezius and scapulae.

[24] At discharge, the worker was found to be able to perform the following functional tasks: • Lift 25 pounds from floor to waist height, with pulling and tightness in right hip; • Lift 25 pounds from waist to overhead with no problems; • Bilaterally carry 25 pounds in a box for a distance of 40 feet with no reported low

back pain; • Bilaterally push and pull 40 pounds with no reported low back pain; • Able to occasionally bend down to a student’s desk height fully with no pain; • Able to walk for 45 minutes without difficulty; and • Able to ascend and descend stairs without difficulty.

[25] The worker was noted to have indicated that she felt stronger, although she continued to experience some pain in the base of her neck and right buttock area.

[26] The Board terminated the worker’s wage loss benefits as of December 14, 2009, on the basis that the worker was to return to work at full-time duties on that date and would therefore not be experiencing any wage loss.

[27] Dr. Muncey provided an update on the worker’s return to work in a December 18, 2009 report. She noted that the worker had reported experiencing pain in her left wrist with typing upon her return to work. The worker also reported increased back pain after working, and that she was unable to sleep on her left shoulder. The worker specifically reported having trouble opening the door with her left hand, and that she was unable to bend, stoop, or kneel down to speak with students. On examination, the worker was found to have pain on the right side of her lower back with forward flexion, and decreased abduction of the left shoulder. As the worker was about to go on two weeks’ holiday, Dr. Muncey recommended she attempt to return to work again in January.

[28] On January 7, 2010 the worker contacted her Board case manager to request “the odd day off if her pain was too bad.” The case manager referred to low back pain, with ongoing problems in her shoulder, neck, and wrist to a lesser extent. The case manager referred the worker to her doctor.

[29] In a January 8, 2010 report, Dr. Muncey noted that he worker was experiencing pain in her back and left shoulder, as well as stiffness in her neck and headaches. The worker reported that she was having difficulty continuing to work, and Dr. Muncey suggested that the worker continue to work “as tolerated.”


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[30] In a January 10, 2010 report Dr. Muncey indicated that the worker had experienced increased shoulder pain and described difficulty moving her left shoulder and neck upon returning to work. Dr. Muncey noted that the worker had spasm and tenderness of the left trapezius and anterior and lateral deltoids, with decreased mobility of the neck and left shoulder. Dr. Muncey indicated that the worker was to go off work as of January 10 due to her ongoing pain issues.

[31] On January 13, 2010, the worker contacted the Board to request that her claim be reopened for further temporary disability benefits. She noted that she had experienced an increase in her symptoms, due to turning her head while working with the students and the chair she had to sit on at work which aggravated her back pain.

[32] Dr. Muncey reported on January 15, 2010 that although the worker had started to feel somewhat better after two physiotherapy treatments, she continued to be in a lot of pain, with decreased mobility. Dr. Muncey reported on January 22 that the worker again was feeling somewhat better; however, her back pain was such that she was only comfortable when lying down.

[33] On January 28, 2010, the worker informed Dr. Muncey that her left shoulder was improving with home exercises, but that she continued to experience pain in her left upper back and neck, as well as ongoing low back pain.

[34] The worker continued to complain of low back pain in February 2011, which she described on February 4, 2010 as a sharp stabbing pain while sitting. She also reported to Dr. Muncey that she had a stabbing pain in her hip, and that her left shoulder pain was improving. Dr. Muncey again noted that the worker had spasm in her left trapezius muscle. Nonetheless, Dr. Muncey indicated that the worker would return to work on February 22, 2011 as tolerated.

[35] By April 20, 2010, the worker was reporting constant pain in her lower back when sitting. She further reported neck stiffness, left shoulder pain, and tenderness in the right lower back and sacroiliac joint. Dr. Muncey found the worker to have a tender left trapezius muscle on examination, with limited left shoulder abduction.

[36] In a May 4, 2010 report, Dr. Muncey indicated that the worker was doing no better, with neck, back, and left shoulder pain. She indicated that the primary area of concern was the worker’s left shoulder and her neck. Dr. Muncey again noted that the worker had tender trapezius muscles, with a tender acromioclavicular joint. She indicated that the worker could try job shadowing two hours per day.

[37] On May 18, 2010, Dr. Muncey reported that he worker had attempted to work for one hour but had experienced burning left shoulder pain, neck stiffness, and headache, and, as a result, had left work early. The worker was noted to be working with a psychologist, and to continue to have right lower back pain and decreased left shoulder mobility and strength.


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[38] In a May 31, 2010 report, Dr. Muncey noted that the worker was seeing a counsellor regarding her chronic pain and “post traumatic stress.”

[39] At the request of the Board, the worker was examined by Dr. Struthers, a general practitioner with a diploma in sports medicine, on June 29, 2010. In his report of that examination, Dr. Struthers noted that: • The worker was psychologically distressed, and was at a high risk for developing a

pain problem or depression; • The worker reported constant left shoulder pain, radiating into the left neck; • The worker reported constant right buttock pain, but that she could walk for up to an

hour; and • The worker reported that she was limiting her lifting with both hands to 15 pounds.

[40] On examination, Dr. Struthers found the worker to have tenderness on the left side of her neck and the left upper trapezius, as well as tenderness in the rotator cuff area of her left shoulder. Low back tenderness was noted over the right posterior superior iliac spine and into the right buttock region.

[41] Dr. Struthers diagnosed the worker with mechanical right-sided lumbopelvic pain, likely on a soft tissue basis. He indicated that the source of that pain was likely not discogenic. With respect to the worker’s left shoulder, he noted that there appeared to be some left rotator cuff tendinopathy and impingement. Dr. Struthers indicated that there were no restrictions associated with those conditions and that it was hoped that she would be able to tolerate her pain and return to her teaching work.

[42] The worker was seen by Dr. Jaworski, a physiatrist, for assessment on August 25, 2010. Dr. Jaworski examined the worker, noting that she had tenderness in most fibromyalgia points. He further noted that x-rays of the worker’s lumbosacral spine showed that she had advanced osteoarthritic changes in the apophyseal joints that had not changed since 2006. Dr. Jaworski indicated that he queried whether the worker had a Pain Disorder (with fibromyalgic features) Associated with General Medical Condition (spondylosis, especially affecting apophyseal joints in the lumbosacral spine) and Psychological Factors.

[43] In a September 15, 2010 follow-up report, Dr. Jaworski provided the following:

Summarizing, the course of her condition is in keeping with Pain Disorder, as mentioned before. Since there is a component of spondylosis, the chances are that certain NSAIDs [non-steroidal anti-inflammatory drugs] may be more effective than others. In this context, I am putting her on Arthrotec beginning from 50 mg bid [twice daily]. That is to be supplemented with slowly progressive exercise program.


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[44] Dr. Jaworski reiterated his view that the course of the worker’s condition was consistent with a Pain Disorder Associated with a General Medical Condition and Psychological Factors, and recommended a multidisciplinary pain management program for the worker.

[45] Dr. Dray reviewed the worker’s file again on December 7, 2010. She indicated that, in her view, the worker had degenerative changes of the lumbar spine which pre-dated the September 2009 incident. She further indicated that she typically would have expected the injuries to the worker’s lumbosacral spine, neck/upper back and shoulder to have recovered in a six- to eight-week period.

[46] Dr. Dray further indicated that it did not appear that the worker experienced a recurrence or worsening of her compensable conditions on or around January 11, 2010, but rather that she had ongoing complaints during that period of time.

[47] A December 9, 2010 MRI of the worker’s left shoulder noted mild to moderate tendinopathy within the supraspinatus tendon.

[48] The worker was referred to a fibromyalgia clinic, operated by Dr. Hyams, a general practitioner with an interest in the management of chronic pain disorders. In his chart notes of his original consultation with the worker, Dr. Hyams indicated that his assessment was that the worker was suffering from fibromyalgia.

[49] A review of Dr. Hyams’ chart notes indicates, however, that his assessment of the worker’s condition changed from fibromyalgia to one of chronic bursitis (of the left shoulder and bilateral hips) and myofascial pain syndrome. By August 16, 2011, Dr. Hyams indicated that his assessment was that the worker had shoulder bursitis and hip bursitis. There was no reference to fibromyalgia or myofascial pain syndrome at that time.

[50] Dr. Dray reviewed the worker’s claim yet again on December 22, 2011. At that time, she opined that: • Although there was left hand bruising noted in the employer’s report of injury, there

was no subsequent mention of any left hand injury or left wrist pain until December 10, 2009. As a result, she was of the view that the worker did not sustain a left hand injury beyond that minor contusion;

• The worker had both left shoulder and low back pain complaints prior to the date of injury;

• The fibromyalgia features that the worker had in her left neck and upper back would be encompassed by the chronic pain that the worker continues to have in those areas;

• Radiological evidence seemed to indicate that the worker’s lumbar spine remained unchanged since 2006, and her pre-existing degenerative condition therefore did not appear to have been aggravated;


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• The worker likely experienced a sprain/strain of the left shoulder in the September 2009 fall, but did not experience an aggravation of her pre-existing symptomatic tendinitis;

• The worker did not experience any permanent injuries stemming from the physical strain/sprain injuries she sustained in the September 2009 fall, though she did appear to have ongoing chronic pain in relation to her left neck and upper back; and

• Nothing in the medical reports on file indicated that the worker experienced a significant change or deterioration in her compensable conditions when she returned to work in December 2009.

[51] In the February 9, 2012 decision letter which is the subject of Review Reference

#R0142576, the Board determined that: • The accepted injuries arising out of the worker’s September 29, 2009 incident were

a back strain, a left shoulder strain, and a soft tissue injury to the left wrist; • All of those injuries had resolved by the time the worker was discharged from the

occupational rehabilitation program in December 2009; • The worker developed chronic pain as a compensable consequence of her injuries,

and her claim was accepted for chronic pain of the neck and the upper back, which had stabilized as permanent conditions;

• The worker did not sustain aggravation injuries to either of her pre-existing conditions (degenerative disc disease and left shoulder tendonitis) in the September 29, 2009 incident;

• Fibromyalgia was not accepted as a compensable consequence of the September 29, 2009 incident, nor was an aggravation of that condition accepted as a compensable injury; and

• The worker ceased to be temporarily disabled as of December 11, 2009, and any inability to work subsequent to that date was due to non-compensable injuries.

[52] In the March 7, 2012 decision letter, which is the subject of Review Reference

#R0142575, the Board determined that the worker was entitled to a permanent disability award equal to 5.0% of total disability, pursuant to section 23(1) of the Act. That award consisted of two separate 2.5% awards for non-specific chronic pain (of the neck and the upper back). The Board further determined that the worker was not entitled to have her permanent disability award assessed on a loss of earnings basis as provided for in section 23(3) of the Act, as she was able to return to her pre-injury employment as a school teacher.

[53] Although the worker requested reviews of both the February 9 and March 7 decision letters, she did not provide submissions on review. Rather, on her request for review forms she indicated that she was requesting that her claim be accepted for a left hand injury with ongoing symptoms, fibromyalgia symptoms, aggravation of pre-existing left shoulder osteoarthritis/tendonitis with permanent residual symptoms, and a finding that she continued to be disabled by her compensable injuries. She further requested that


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she be provided with an increased section 23(1) award and that her permanent disability award entitlement be assessed on a loss of earnings basis.

[54] In its submissions to the Review Division, the employer submitted that the medical evidence available did not support a conclusion that the worker had sustained any sort of injury to her left hand beyond a contusion. The employer noted that there was no reference to the worker having left hand symptoms until approximately two months post-injury. The employer further noted that the worker had not been diagnosed with fibromyalgia, and that, in any event, the worker’s fibromyalgia symptoms constituted a chronic pain disorder. With respect to the worker’s shoulder, the employer noted that the worker had a longstanding history of symptoms in her left shoulder prior to the September 2009 incident, and that the evidence did not support a conclusion that she had aggravated that pre-existing tendonitis condition. Finally, the employer argued that the worker was fit to return to her pre-injury employment, and that, as a result, she was not experiencing a significant loss of earnings due to her injury and was not entitled to have her permanent disability award assessed on a loss of earnings basis. New Evidence at WCAT

[55] The worker provided two new medical reports prior to the oral hearing of this appeal.

[56] The first report is from Dr. Hyams, dated December 10, 2012. Dr. Hyams indicated that he first saw the worker on January 19, 2011. He indicated that the worker had reported to him that she had injured her lower back, left arm, left shoulder, and neck on September 29, 2009 when she was bumped by a student. Dr. Hyams further reported that the worker had informed him that most of the musculoskeletal symptoms she was experiencing at that time had commenced after the September 2009 incident. When asked if she had experienced concurrent fatigue following the September 2009 incident, the worker responded that she had.

[57] On examination, Dr. Hyams indicated that the worker had tender points in a variety of areas of her body. The remainder of his examination of the worker was generally described as unremarkable.

[58] Dr. Hyams indicated that he had diagnosed the worker with fibromyalgia, as well as mild osteoarthritis of the right knee and hips bilaterally. In reaching that diagnosis, Dr. Hyams indicated that when he assessed the worker in January 2011, she fulfilled all of the criteria for a diagnosis of fibromyalgia to be confirmed.

[59] Dr. Hyams indicated that he accepted from a review of the documentation set out by the Board case manager that the worker did experience a degree of musculoskeletal pain prior to the September 2009 incident. However, he opined that that incident had changed the course of the worker’s health, and that, as a result of that incident, she had developed “significant musculoskeletal injuries” which “developed into a chronic pain syndrome.” He noted further that his understanding was that the worker was not


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experiencing “widespread soft tissue pain” prior to the September 2009 incident and that:

Fibromyalgia or Myofascial Pain Syndrome can result from an anterior/posterior acceleration/deceleration injury, causing whiplash. Some patients do go on to improve following whiplash injuries. However, there is an unfortunate group of patients who develop chronic musculoskeletal soft tissue pain, either more localized myofascial pain syndrome or more widespread fibromyalgia as was the case in this situation. I, therefore, conclude that [the worker’s] fibromyalgia resulted as a direct consequence of the physical trauma that she experienced during the impact when she was knocked down and when she fell on the floor, causing these injuries.

[60] On the issue of the worker’s pre-existing conditions, Dr. Hyams referred only to the

worker’s hip and back osteoarthritis. He made no reference to her pre-existing shoulder condition. In any event, he opined that that:

There is a definite possibility that the accident may have expedited further degenerative changes with regard to her hip and lower back pain….the injuries that she sustained during the Workman’s Compensation injury, most likely caused a worsening of her osteoarthritis pain due to the fibromyalgia hypersensitivity that developed.

[61] With respect to the disabling nature of the worker’s condition, Dr. Hyams concluded that the worker remained disabled from working due to her fibromyalgia pain symptoms. He noted that the worker’s functional abilities were found to be: • 10 minutes of standing before having to change posture or sit down to rest her

spine; • 15 to 30 minutes of sitting; • 20 to 30 minutes of walking; • 2 to 3 pounds carrying on a persistent basis and 10 pounds on a one time basis; and • Significant depression.

[62] Dr. Muncey, the worker’s general practitioner, also provided a report dated October 10, 2012. In that report, Dr. Muncey indicated that the worker had been attending her clinic since April 2000. She noted that prior to the September 2009 incident, the worker had been seen in January 2006 for complaints of pain in her lower back and sacroiliac joint that had persisted for approximately six months. Dr. Muncey indicated that an x-ray taken at that time had shown the worker to have moderate osteoarthritis of the spine.


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[63] Of further note, in September 2006, the worker had been seen in relation to pain in her right knee, lower back, right sacroiliac joint, and neck. However, the worker reported in December 2006 that her symptoms had resolved except for her ongoing right sacroiliac pain.

[64] Dr. Muncey noted that when the worker was first seen subsequent to the September 2009 incident, she reported pain on the left side of her arm, wrist, and hip. Three days later, she complained of stiffness in her neck, headaches, and constant pain in her right lower back, buttocks, and hip. Dr. Muncey’s initial diagnosis was of soft tissue injuries to the neck and upper back, the left arm and the left wrist, as well as soft tissue injures to the right lower back and sacroiliac joint and aggravation of pre-existing osteoarthritis in the lower back and sacroiliac pain. Dr. Muncey indicated that she was of the view that those were the injuries that were likely caused by the September 2009 incident.

[65] With respect to the worker’s symptoms at the time of her report Dr. Muncey indicated that the worker continued to have complaints of significant pain in the lower back, neck, and upper back and left shoulder, along with headaches and severe fatigue. She noted that the worker had been diagnosed with a Pain Disorder Associated with a General Medical Condition and Psychological Factors by Dr. Jaworski, and that the worker had developed a number of psychological problems which Dr. Muncey related to her chronic pain. She concluded by indicating that her current diagnosis of the worker was as follows:

1. Chronic pain in neck in neck with secondary headaches. 2. Chronic pain in upper and lower back. 3. Fatigue and psychological symptoms related to the chronic back pain. 4. Aggravation of degenerative lumbar spine disease and pain in right sacroiliac

joint. [reproduced as written]

[66] Dr. Muncey indicated that she did not attribute the worker’s left shoulder tendinopathy

(or pain) to the September 29, 2009 incident. She further opined that:

[The worker] attempted to return to work twice, but she was unable to continue to work due to pain from her injuries. In my opinion it is likely that [the worker’s] physical and emotional injuries on September 29, 2009 have totally disabled her from working in any capacity.

Oral Hearing

[67] The worker testified that while she had experienced some pain prior to the September 29, 2009 accident, she had generally been active and felt fine. She


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acknowledged that after suffering a knee injury in 1994, her back had never gotten back to normal, which she attributed to walking with an altered gait.

[68] In describing the September 29, 2009 accident, the worker noted that she had fallen on her left hip and her extended left arm at the right wrist. She described experiencing pain on her left side, generally, at the neck, hip, shoulder, and wrist.

[69] The worker stated that her pain subsequent to the accident was different than that which she had experienced prior to it. She explained that she now had pain which she felt in her entire body, as well as feelings of fatigue. She indicated that at the time of the hearing she was limited to 30 minutes of walking, after which she would need to lie down due to increased pain, whereas prior to the accident she was a regular hiker.

[70] The worker stated that while at the occupational rehabilitation program, she had experienced lower back, neck, and shoulder pain. She explained that she had not been using her left wrist while at the program and, as a result, did not express any difficulties with that wrist. She indicated that she had felt that she was getting a little bit better while at the program, and that, although she continued to experience pain, she had wanted to return to work.

[71] Upon her return to work, however, she experienced an increase in her pain. The worker stated that the sitting, standing, and the mental demands of her teaching duties were simply too much. Specifically, she described her back as seizing when either sitting or standing. She further described increased pain in her left shoulder and neck, as well as feelings of fatigue. Her pain continued to be too much after the Christmas break, and she was unable to continue with her return to work.

[72] The worker stated that she felt that her pain increased on her return to work, and she noted that while at the occupational rehabilitation program, she had the ability to lie down and rest when necessary, whereas she did not have that opportunity while at work.

[73] The worker was asked about her subsequent reports of right shoulder and left ankle pain, and, although she initially indicated she could not recall when those symptoms commenced, she later indicated that she had begun to experience what she described as a burning pain in her right shoulder approximately six months after the accident.

[74] The worker testified that, at the time of the oral hearing, she continued to have lower back, shoulder, and neck pain on a constant basis, though she stated that her “fibromyalgia” pain would come and go. She also experienced fatigue and headaches. All of her pain symptoms were lessened when lying down.


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Reasons and Findings Review Reference #R0142576 What are the compensable injuries under the worker’s claim?

[75] A preliminary issue arises as to whether I have jurisdiction to make a determination as to whether the worker had sustained a psychological injury as a compensable consequence of her September 29, 2009 injuries (namely a Pain Disorder Associated with a General Medical Condition and Psychological Factors). The worker submitted that I did.

[76] I indicated at the oral hearing, however, that I was of the view that the evidence before me did not provide a clear indication that the worker had in fact been diagnosed with a Pain Disorder Associated with a General Medical Condition and Psychological Factors. I noted further that the Board had not adjudicated the compensability of that condition at first instance, and that ,in my preliminary view, the combined effect of those two facts led to a conclusion that I did not have jurisdiction to address the issue of the compensability of a Pain Disorder Associated with a General Medical Condition and Psychological Factors.

[77] After further consideration, I remain of that view.

[78] Although there was some indication that the worker’s presentation was consistent with a Pain Disorder Associated with a General Medical Condition and Psychological Factors2

, I find that she had not in fact been diagnosed with that condition at the time that the February 9, 2012 Board decision letter was issued. I do not consider, therefore, that the Board ought to have made a decision on this issue before issuing the February 9, 2012 decision letter such that this is a case where section 246(3) applies. As no adjudication of the issue of the compensability of a Pain Disorder Associated with a General Medical Condition and Psychological Factors appears in the decision letter before me, I have not considered the issue of the compensability of a psychological Pain Disorder condition in this appeal.

[79] I pause to note that well after the close of evidence and submissions in this appeal, the worker’s representative provided WCAT with a copy of a psychological assessment report which appears to diagnose the worker with a Pain Disorder, as well as a Major Depressive Disorder. However, I further note that the worker’s representative indicated in her request for that report that it was her intention to make a request to the Board to provide a preliminary adjudication of such a psychological condition if one were to be diagnosed. Given my conclusions above regarding my jurisdiction, I am of the view that that is the appropriate step for the worker to take with respect to her newly diagnosed psychological condition.

2 As noted by the physiatrist, Dr. Jaworksi, in his consultation reports.


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[80] The worker does not take issue with the Board’s finding that she sustained strain injuries to her lower back and left shoulder which arose out of the September 29, 2009 fall, nor did she take issue with the conclusion that she had sustained a soft tissue injury to her left wrist on that date. As a result, I have not considered the issue of the compensability of those conditions further in this appeal.

[81] I turn then, to the claimed injuries that the Board denied, as it is those decisions with which the worker has taken issue. Fibromyalgia

[82] Subsection 5(1) of the Act states that a personal injury must “arise out of and in the course of” a worker’s employment before that worker will be entitled to compensation. Generally, this means that not only must the injury occur at work, but that some aspect of the work activity caused the injury. Thus, the evidence must establish that there was something in the employment that had causative significance in producing the injury. A speculative possibility that this might be so is not sufficient to satisfy the provisions set out under this subsection.

[83] In the February 9, 2009 decision letter the Board indicated that it would not accept fibromyalgia as a compensable consequence of the worker’s September 29, 2009 injuries as the evidence did not support a conclusion that the worker had been diagnosed with that condition, and the evidence did not support a conclusion that that condition could be caused by an injury.

[84] That portion of the Board’s decision indicating that the worker had not been diagnosed with fibromyalgia by February 2012 is clearly wrong. The Board received, in November 2011, Dr. Hyams’ chart notes. Those chart notes set out that Dr. Hyams had diagnosed the worker with fibromyalgia.

[85] The larger issue is whether the worker’s fibromyalgia condition was the result of her September 29, 2009 injuries.

[86] I note, as the Board did in the February 9, 2012 decision letter, that fibromyalgia is not specifically recognized by the Board as an occupational disease. I do not consider that anything turns on that point. Policy item #27.35 specifically recognizes that a worker may suffer from an unspecified or multiple tissue disorder which is not categorized as any of the clinical entities described in policies #27.11 through #27.34. Such claims must be considered on their own merits.

[87] Further, it is clear that in this case the worker is attributing her fibromyalgia as having developed as a consequence to the injuries she experienced in the September 29, 2004 fall. As set out in policy item #25.10, a condition that is attributed to or is the consequence of a specific event or trauma will be treated as a personal injury and will be adjudicated in accordance with the policies addressing personal injury.


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[88] Policy item #22.00 states that the minimum requirement before one event can be considered as the consequence of another is that it would not have happened but for the other. Looking at the matter broadly and from a “common sense” point of view, it should be considered whether the work injury was a significant cause of the further injury. If it was, then the further injury is sufficiently connected to the work injury so that it forms an inseparable part of it for compensation purposes. The work incident need not be the only or even the predominant cause of the injury in question, but it must be a significant one.

[89] From Dr. Dray’s perspective, fibromyalgia is a condition of unknown etiology which causes widespread pain, tenderness, stiffness, and general fatigue. Dr. Dray did not provide any opinion as to the cause of the worker’s fibromyalgia condition, rather, she simply indicated that, in her view, that condition was encompassed by her ongoing chronic pain condition.

[90] On the other hand, Dr. Hyams has indicated that his view was that the worker’s fibromyalgia developed as a direct consequence of the worker’s neck injury, which he understood to be a “whiplash” type injury. Specifically, Dr. Hyams indicated that:

Fibromyalgia or Myofascial Pain Syndrome can result from an anterior/posterior acceleration/deceleration injury, causing whiplash.

[91] With respect, I am unable to accept Dr. Hyams’ opinion. In my view, it is based on the

improper assumption that the worker sustained a very specific type of “whiplash” injury to her neck in the September 2009 fall, as set out in the above excerpted portion of his report. In my view, the evidence does not support that the worker sustained such an injury. While it is true that the worker described experiencing pain in her neck subsequent to the September 2009 fall, and was diagnosed with a soft tissue injury to her neck, she at no time was diagnosed with a whiplash injury. It is perhaps of note that a review of Dr. Hyams’ report appears to indicate that he only had medical information regarding the worker’s injuries dating back to August 25, 2010, nearly a year subsequent to the fall.

[92] The medical information before me indicates that the worker sustained a soft tissue injury to her neck arising out of the September 29, 2009 fall. It does not indicate that the worker sustained the very specific type of injury described by Dr. Hyams as being associated with the development of fibromyalgia.

[93] After considering the above, I am of the view that there is insufficient evidence to conclude that the worker’s fibromyalgia is a compensable consequence of the September 29, 2009 fall. It is unnecessary for me to speculate as to what did in fact cause the worker to experience that condition. The appeal is denied on this issue.


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Aggravation of pre-existing left shoulder tendonitis

[94] Policy item #26.55 provides that evidence that a pre-existing disease has been significantly accelerated, activated, or advanced more quickly than would have occurred in the absence of the work activity is confirmation that a compensable aggravation has resulted from the work. The policy further provides that aggravation of a pre-existing disease that is attributed to a specific event or trauma will be treated as a personal injury and will be adjudicated in accordance with the policies concerning personal injury.

[95] In this appeal, the worker’s position is that her pre-existing left shoulder tendonitis condition and degenerative lumbar condition were both aggravated by the September 29, 2009 fall. It is therefore the policies concerning personal injury (as opposed to those concerning occupational disease) which apply to this appeal.

[96] Policy item #15.10 provides that if an organ of the body is deteriorating, possibly through disease, and had reached a critical point at which it is likely to become a manifest disability, the disability is generally considered to be the result of natural causes and not compensable. Where the deteriorating condition was not likely to reach a critical point and become a disability about the time of the work injury in the absence of some exceptional strain or other circumstance, but the employment activity triggered that disability, then the employment situation is generally considered to have substantial causative significance, and the disability is compensable.

[97] Policy item #22.20 provides that where a worker has a pre-existing non-compensable condition which is aggravated and rendered disabling by a work injury, the Board does not deny a claim for compensation just because the injury would have caused no significant problems if there had been no pre-existing condition. Rather, the Board will accept that it was the injury that rendered the condition disabling, and will pay compensation accordingly.

[98] The evidence before me is that the worker was first diagnosed with left rotator cuff tendinitis in September 2007. Dr. Dray reviewed the history of the worker’s injury and noted that:

Worker reported to the employer on September 29, 2009 that she fell onto her left side on that day and “jolted” her left shoulder however on reviewing the initial medical reports specific mention of the left shoulder was not made until report was made by the OR1 [occupational rehabilitation 1 program] clinician, (see assessment report of November 12, 2009) that the worker had pain in both of her shoulders with lifting. It wasn’t until the 20th of November 2009 that the AP [attending physician] provided specific comment of the left shoulder (“left shoulder very painful” and left shoulder strength was decreased). This is about six weeks post injury and no findings to support an injury more significant than a sprain strain of the left shoulder were provided.


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If it is accepted that the worker did “jolt” her left shoulder on the date of injury and had symptoms which were not documented by her AP until the 20th of November 2009 then the most reasonable injury related diagnosis would be that of a left shoulder sprain/strain superimposed on pre-existing symptomatic tendonitis with no convincing medical evidence supporting an aggravation of the pre-existing tendonitis.

[99] The worker has not provided any medical which indicated that she aggravated her left

shoulder tendonitis condition in the September 2009 fall. Even in her October 12, 2012 report, Dr. Muncey does not indicate that she was of the view.

[100] Given the above, I am inclined to accept Dr. Dray’s analysis. I find that the worker did not sustain an aggravation injury to her pre-existing left shoulder tendonitis arising out of the September 29, 2009 fall.

[101] I turn then to the issue of the worker’s pre-existing degenerative lumbar spine condition. Aggravation of pre-existing degenerative lumbar spine condition

[102] As Dr. Dray indicated, there does not appear to be any compelling radiological evidence to support a conclusion that the worker’s pre-existing degenerative lumbar spine condition was aggravated (made worse) in some way by the September 29, 2009 fall. Specifically, Dr. Dray noted that the radiologist who reviewed the October 13, 2009 x-ray of the worker’s lumbar spine indicated that there did not appear to be any significant change in appearance from the 2006 x-ray of the worker’s lumbar spine.

[103] However, Dr. Muncey has indicated that prior to the September 29, 2009 fall, although the worker had some pain in her lower back due to her degenerative condition, she did not receive pain medication for those complaints and did not require any time off work for that pain. Dr. Muncey indicated that subsequent to the fall, the worker complaints of back pain were significantly increased and that the worker was generally disabled by that pain. This view is consistent with the worker’s evidence at the oral hearing, which was that although her low back was never quite right prior to the fall, her low back pain was significantly increased as a result of the September 29, 2009 fall. She specifically described that subsequent to the fall she would need to lie down to relieve her back pain which resulted from the simple activity of standing or sitting, whereas she had not had that type of difficulty before.

[104] After considering the evidence, I am satisfied that it is at least as likely as not that the worker sustained an aggravation injury to her pre-existing degenerative lumbar spine condition arising out of the September 29, 2009 fall. In short, while the worker had some back pain prior to the fall, her reported low back pain symptoms were greatly increased subsequent to that fall. While the radiological findings of the worker’s lumbar spine may not have changed, it is clear, as indicated by Dr. Muncey, that her pre-existing condition and the symptoms associated with that condition were


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significantly activated. I allow the appeal on this issue. It is for the Board to determine what, if any, benefit entitlement arises from my decision in this regard, including whether she is entitled to permanent disability benefits relating to this compensable injury. When did the worker’s compensable injuries resolve or become permanent?

[105] The worker did not take issue with the Board’s determination that her strain injuries had resolved by the time she was discharged from the occupational rehabilitation program on December 11, 2009, and that by that date she had developed chronic pain of the neck and upper back. There is no medical evidence before me which would suggest that that decision was in error, and I therefore find that the Board was correct in that regard.

[106] The February 9, 2012 decision letter did not, however, make a decision as to when the worker’s chronic neck and upper back pain conditions stabilized as permanent impairments. The Board did indicate in the memorandum attached to the March 7, 2012 decision letter that the accepted permanent of the worker’s chronic pain conditions was March 30, 2010, as that date was six months subsequent to the date of injury (the first date upon which the worker’s pain could in fact be accepted as chronic pain pursuant to Board policy). As the worker again did not take issue with that conclusion, and I consider it to be consistent with policy, I find that the Board was correct in its decision in that regard.

[107] The worker’s aggravation injury to her pre-existing degenerative low back condition had also been present for six months by March 30, 2012, with little change in her reported symptoms. While Dr. Muncey had generally referred the worker for further physiotherapy treatment, she did not provide any indication in any of her reports during early 2010 that she was of the view that the worker’s aggravation injury was likely to undergo a significant improvement within a 12-month period (as required by policy item #34.54 for an injury to continue to be considered to be a temporary one). Given that fact, I am satisfied that the worker’s low back aggravation injury had stabilized as a permanent condition as of March 30, 2010. It is for the Board to determine what benefits flow from my decision in that regard. Is the worker entitled to a reopening of her claim for further temporary disability benefits in January 2010?

[108] The law applicable to reopenings is found in section 96 of the Act. Section 96 states, in part, that:

(2) Despite subsection (1), at any time, on its own initiative, or on application, the Board may reopen a matter that has been previously decided by the Board or an officer or employee of the Board under this Part if, since the decision was made in that matter,


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(a) there has been a significant change in a worker's medical condition that the Board has previously decided was compensable, or

(b) there has been a recurrence of a worker's injury. (3) If the Board determines that the circumstances in subsection (2) justify a change in a previous decision respecting compensation or rehabilitation, the Board may make a new decision that varies the previous decision or order.

[109] Policy item #C14-102.01 explains that “a significant change in a worker’s medical

condition that the Board has previously decided was compensable” means a change in the worker’s physical or psychological condition. It does not mean a change in the Board’s knowledge about the worker’s medical condition. A “significant change” would be a physical or psychological change that would, on its face, warrant consideration of a change in compensation or rehabilitation benefits or services.

[110] I am of the view that the worker did experience a significant change in her medical condition that would warrant further temporary disability benefits between the time she returned to work on December 14, 2009 and going off work again on January 15, 2010.

[111] It is clear from a review of the evidence that although the worker was doing relatively well with respect to her compensable low back, neck, and upper back pain conditions at the time she was discharged from the occupational rehabilitation program, she experienced a significant increase in her pain symptoms shortly after returning to work. Those pain symptoms increased to the point that she was no longer able to complete her regular employment duties. I consider such an increase in the worker’s compensable pain symptoms to constitute a significant change in her medical condition.

[112] In making this decision, I acknowledge that Dr. Dray indicated in a December 20, 2010 opinion memorandum that there was no objective medical evidence to support that the worker experienced a worsening of her compensable condition in January 2010. Pain, of course, is a subjective condition. I accept the worker’s evidence that her pain was significantly increased by January 15, 2010 as compared to the pain she was experiencing when she returned to work on December 14, 2010. As a result, I place little weight on Dr. Dray’s opinion that the worker did not experiencing a significant change in her compensable medical condition in January 2010.

[113] As I have accepted that the worker experienced a significant change in her compensable medical condition, I turn to the issue of whether the worker was temporarily disabled from her employment by that significant change.

[114] Sections 29 and 30 prescribe the level of wage loss compensation to be paid, depending on whether a worker’s disability is total or partial, respectively.


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[115] As explained in policy items #33.00, #34.10, and #35.30, wage loss benefits are payable where an injury or disease resulting from a person’s employment causes a period of temporary disability from work. These benefits usually commence shortly after the initial acceptance of the claim and may be for total disability (under section 29 of the Act), or partial disability (under section 30).

[116] I find that the worker’s increased pain symptoms did cause her to be temporarily

disabled from her employment as of January 15, 2010. I note that the worker had attempted to complete her employment duties, and accept her evidence that she simply did not feel that she was able to continue due to her pain. After examining the worker on a number of occasions, Dr. Muncey indicated that she agreed with that conclusion and determined that the worker ought to be off work. There is no medical evidence near in time to January 2010 which would indicate that Dr. Muncey had erred in reaching that conclusion. I note that even when the worker saw Dr. Struthers in June 2010, he indicated only that he hoped that the worker would be able to tolerate the pain in returning to her job as a teacher in September 2010. I do not consider that comment to be evidence that the worker was not temporarily disabled from her employment as of January 15, 2010 due to her compensable medical conditions. The appeal is allowed on this issue.

[117] It is for the Board to determined the extent of the worker’s entitlement to temporary disability benefits, commencing on January 15, 2010. In this regard, I note that it would appear that the worker in fact engaged in at least one further attempted return to work in 2010, prior to her conditions becoming permanent as of March 30, 2010. Review Reference #R0142575

[118] It is necessary to note at the outset of my reasons in this appeal that the only permanent conditions that the Board was considering in addressing the worker’s entitlement to permanent disability benefits under section 23(1) were chronic pain of the neck and back. Those two conditions were also the only permanent conditions considered by the Board in addressing whether the worker’s permanent disability award ought to be assessed on a loss of earnings basis as provided for by section 23(3) of the Act.

[119] While I have now accepted that the worker also experienced an aggravation injury to her pre-existing degenerative lumbar spine condition arising out of the September 29, 2009 accident, and that that condition became permanent as of March 30, 2012, that condition does not form part of my consideration of the worker’s entitlement to permanent disability benefits in this appeal. The Board will need to consider what, if any, entitlement the worker has to further permanent disability benefits in relation to her permanent aggravation injury at first instance.


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Did the Board correctly estimate the worker’s entitlement to a permanent disability award on a functional impairment basis as provided for by section 23(1) of the Act?

[120] Although the worker indicated at the outset of the oral hearing that she was taking issue with the Board’s decision in this regard, she indicated during submissions that she accepted that the two 2.5% awards that she had received for her accepted permanent chronic pain conditions were the maximum award she could receive for those conditions, as provided for by policy item #39.02.

[121] I see no error in the Board’s decision to award the worker 2.5% permanent disability awards for her permanent neck and upper back chronic pain conditions respectively. Given the worker’s submissions, I find that the Board’s decision in this regard was correct. The worker’s appeal of this issue is denied. Is the worker entitled to have her permanent disability award assessed on a loss of earnings basis?

[122] Section 23(3) of the Act provides the Board with the discretion to calculate a worker’s permanent disability award on a loss of earnings basis if specific circumstances have been met:

23 (3) Subject to sections 34 and 35, if

(a) a permanent partial disability results from a worker's injury, and (b) the Board makes a determination under subsection (3.1) with

respect to the worker, the Board may pay the worker compensation that is a periodic payment that equals 90% of the difference between

(c) the average net earnings of the worker before the injury, and (d) Whichever of the following amounts the Board considers better

represents the worker's loss of earnings: (i) the average net earnings that the worker is earning after

the injury; (ii) the average net earnings that the Board estimates the

worker is capable of earning in a suitable occupation after the injury.

[123] As can be seen in section 23(3)(b), a loss of earnings award may only be provided by

the Board if it has already made a determination under section 23(3.1) of the Act.

[124] Section 23(3.1) requires the Board to consider whether the combined effect of the worker’s occupation at the time of the injury and the worker’s disability resulting from the injury is so exceptional that the compensation determined under the functional


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impairment method does not provide the worker with appropriate compensation for the compensable permanent disability. In undertaking that consideration, section 23(3.2) requires the Board to consider the ability of the worker to continue in the worker’s occupation at the time of the injury or to adapt to another suitable occupation.

[125] Policy item #40.00 sets out the procedures for determining whether a worker’s situation is such as that set out in section 23(3.1) and is therefore entitled to an assessment pursuant to section 23(3) of the Act. The policy indicates that the Board will determine whether a compensable disability has made it unlikely that a worker can continue in the time-of-injury occupation or adapt to another suitable occupation without incurring a significant loss of earnings which could not have been anticipated under the section 23(1) method of estimating a worker’s long-term loss of earning capacity. In considering whether the worker has experienced a significant loss of earnings, the policy item explains that:

…the Board takes into consideration the difference between the worker’s pre-injury earnings and the combined total of the worker’s post-injury earnings and the amount awarded under the section 23(1) method of assessment.

[126] As I have indicated above, the only permanent conditions that were accepted when the

Board conducted its consideration of whether the worker was entitled to have her permanent disability award assessed on a loss of earnings basis were chronic pain of the neck and upper back.

[127] I do not accept that those conditions, on their own, prevented the worker from returning to work as a teacher. In my view, the evidence is that the worker’s low back injury played a far larger role in preventing her successful return to work than did pain in her neck or upper back. The worker’s testimony at the oral hearing indicated that the difficulties that she experienced with respect to her work lay mainly with her low back pain, and the mental strain of returning to work.

[128] Dr. Dray indicated that the worker would not have any medical restrictions with respect to her neck and upper back chronic pain, though she would likely have limited tolerance to overhead work and repetitive neck movements. While I accept that the worker’s employment duties as a teacher would likely require to engage in both of those activities on occasion, I do not consider that her chronic pain conditions and the limitations associated with those conditions would prevent her from working as a teacher. The evidence, in my view, is that, absent her low back condition, the worker would have been capable of performing the functional demands of a teacher.

[129] I find that the worker’s permanent disability resulting from her chronic neck and upper back pain would not have prevented her from continuing in her time of injury occupation as a teacher. As a result, I find that the combined effect of the worker’s occupation and her disability resulting from the injury (taking into account only the permanent conditions


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of chronic neck and upper back pain) is not so exceptional that the compensation provided under section 23(1) does not provide her with appropriate compensation.

[130] The appeal is denied on this issue. Conclusion

[131] I vary Review Reference #R0142576, in part. I find that: • The worker’s fibromyalgia is not a compensable injury; • The worker did not sustain a compensable aggravation injury to her

pre-existing left shoulder tendonitis condition arising out of and in the course of her employment;

• The worker did sustain an aggravation injury to her pre-existing degenerative lumbar spine condition which arose out of and in the course of her employment on September 29, 2009;

• The worker’s compensable injuries stabilized as permanent conditions on March 30, 2010; and

• The worker experienced a significant change in her compensable medical condition such that her claim ought to have been reopened for further temporary disability benefits as of January 15, 2010.

[132] I confirm Review Reference #R0142575. The Board correctly estimated the worker’s

entitlement to an award pursuant to section 23(1) of the Act at 5.0% of total disability. Further, I find that the worker was not entitled to have her permanent disability award assessed on a loss of earnings basis. Expenses

[133] The worker has requested reimbursement for the expense of obtaining the reports of Dr. Hyams and Dr. Muncey.

[134] Subsection 7(1)(b) of the Workers Compensation Act Appeal Regulation states that WCAT may order the Board to reimburse a party to an appeal for expenses associated with obtaining or producing evidence submitted to WCAT. MRPP item #16.1.3 notes that WCAT will generally order reimbursement of expenses incurred in producing evidence if the evidence was useful or helpful to the consideration of the appeal or it was reasonable for the party to have sought such evidence in connection with the appeal.

[135] Both of the above noted medical reports were helpful to my consideration of this appeal, and I find that it was reasonable for the worker to have sought to obtain them in connection with the appeal.


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[136] MRPP item #16.1.3.1 states that WCAT will usually order reimbursement of expert opinions at the rates or fee schedule established by the Board for similar expenses. MRPP item #16.1.3.1 goes one to state that:

A WCAT panel has the discretion to award reimbursement of an expert opinion in an amount greater than the fee schedule in limited circumstances. If the bill or account exceeds the Board fee schedule, the party seeking reimbursement of the full amount must explain the reasons the account exceeds the fee schedule and why the panel should order reimbursement of the full amount. In the absence of a request and a satisfactory explanation of the circumstances, WCAT will limit reimbursement to the fee schedule amount. Examples of the limited circumstances include whether the case is so difficult that it required significant time and effort, the length of the report, and/or whether the detail and analysis of the report is uncommon.

[137] The Board’s fee schedule amount for a “Medical-Legal report” is $873.12. That same

fee schedule provides for an amount of $1,458.60 for a “Medical-Legal Opinion.”

[138] After reviewing the descriptions provided by the Board’s fee schedule, I am satisfied the reports of both Dr. Hyams and Dr. Muncey satisfy the criteria of “Medical-Legal Opinions.”

[139] The amount requested for reimbursement for Dr. Muncey’s report is $958.00. That amount is less than the fee schedule amount for a “Medical-Legal Opinion” and I order that the Board reimburse the worker the requested amount for the expense of obtaining that report.

[140] Dr. Hyams, on the other hand, has billed $1,602.00 for the preparation of his “Medical-Legal Opinion.” The worker did not provide any explanation as to why the amount requested for Dr. Hyams’ report exceeds the Board’s fee schedule. Given MRPP item #16.1.3.1, I find that, in the absence of such an explanation, Dr. Hyams’ report ought to be reimbursed at the Board fee schedule amount. I therefore order that the Board reimburse the worker $1,458.60 for the expense of obtaining Dr. Hyams’ report. Andrew Pendray Vice Chair AP/gw

WCAT Decision Number: WCAT -2013-01366 · WCAT Decision Number: WCAT -2013-01366 5 Workers’...

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