workplace safety and insurance appeals tribunal …wsiat.on.ca/decisions/2007/656 07.pdf ·...

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

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

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

DECISION NO. 656/07

BEFORE: J. Noble : Vice-ChairB. Wheeler : Member Representative of EmployersF. Jackson : Member Representative of Workers

HEARING: March 21, 2007 at TorontoOralPost-hearing activity completed on August 8, 2007

DATE OF DECISION: December 10, 2007

NEUTRAL CITATION: 2007 ONWSIAT 3165

DECISION(S) UNDER APPEAL: WSIB ARO decision dated December 2, 2002; the declaration from the Appeals Branch dated October 25, 2005; and the decision of the Claims Adjudicator dated October 4, 2005.

APPEARANCES:

For the worker: Mr. M. Green, Lawyer

For the employer: Not participating

Interpreter: None

Decision No. 656/07

REASONS

(i) Issues

[1] The issues to be decided in this appeal are whether the worker should have entitlement for temporary total benefits from December 13, 1993 in Claim A; whether the worker should have entitlement for full loss of earnings (LOE) benefits from April 20, 2001 in Claim B; whether the worker should have entitlement for chronic pain disability, and psychotraumatic disability under Claim B; and whether the worker should have entitlement for the right shoulderunder Claim B.

[2] The worker’s representative advised the Panel during the hearing that the issue of entitlement for Fibromyalgia was not being pursued by the worker.

(ii) Background

(a) Claim A

[3] Pursuant to this claim, the Board accepted entitlement for a right carpal tunnel syndrome(CTS) as causally related to the worker’s duties packaging pastries. The onset of CTS symptoms occurred in the summer of 1992, and an initial accident date was established in July of 1992. The worker continued working until she laid off in June of 1993. The Board determined that the condition had resolved without permanent impairment, and benefits were closed effective December 13, 1993.

[4] The worker claimed further problems related to CTS in March 1998. The worker had commenced employment with a new employer in October 1994 in a position that required the repetitive use of her hands as a cook. The Board concluded that the CTS of 1993 had resolved to the point that there was no assessable permanent impairment, but that from 1994 to 1998 the worker continued to suffer the occasional effects of the largely asymptomatic CTS condition. The Board determined that the worker’s employment from 1994 to 1998 aggravated this condition until it left the worker impaired and unable to return to her pre-injury employment in March of 1998. The Board granted entitlement under a new claim, Claim B.

(b) Claim B

[5] The Board granted entitlement to loss of earnings benefits (LOE) under this claim from March 12, 1998 for a bilateral carpal tunnel syndrome.

[6] The Board determined that the worker was unable to return to her pre-injury employment given the permanent impairment that resulted from her bilateral carpal tunnel syndrome.

[7] The worker was referred for a non-economic loss (NEL) assessment and was granted an 8 percent NEL award in August 1999. The 8 percent NEL award consisted of a 3 percent award for the left wrist combined with a 5 percent award for the right.

[8] The worker was referred for Labour Market Re-entry (LMR) services in June 1999. The SEB that was originally chosen for the worker was maitre’d. The worker was referred for upgrading, but then the worker moved to an area of the province where this upgrading was unavailable. At the same time the Board determined that the worker’s CTS syndrome imposed

Page: 2 Decision No. 656/07

precautions on her use of the computer keyboard which made the SEB of maitre’d inappropriate especially if waitress duties were added, as they likely would be in her new area of the provincewhere restaurants were generally smaller and required employees to perform a variety of duties. It was concluded that the worker’s new SEB was to pursue a career in retail sales. The Board determined that this new SEB required no upgrading and a three week job search program was provided which concluded on April 24, 2001. The worker did not obtain employment at that time, and partial LOE benefits were paid based on the SEB earnings potential of $6.85 per hour.

[9] The Board denied entitlement to conditions other than CTS, including entitlement to psychiatric impairment and fibromyalgia.

[10] In a decision dated October 4, 2005, the Board Claims Adjudicator denied entitlement for a right shoulder condition. This decision was confirmed as a final decision of the Board in a letter dated October 25, 2005 from the Board Appeals Branch.

(iii) Medical Evidence

[11] In a report dated July 9, 1993, Dr. S. McKenzie, neurologist, stated that the worker did repetitive work in an assembly line type job for a bakery, and was diagnosed with carpal tunnel the previous year and given a wrist splint. Dr. McKenzie stated that he ordered EMG and nerve conduction studies with respect to the worker’s wrists and they revealed no evidence at present of carpal tunnel syndrome in either hand. Dr. McKenzie stated:

Although this woman has a good history for carpal tunnel type complaints in past, it was likely relatively mild and has been improved by using a wrist splint as well as a reduction in workload probably. At present, it sounds like she has more problems in her hand because of tendinitis or tenosynovitis at the wrist. I can’t estimate the degree of pain that is being contributed by the previous wrist fracture.

[12] The worker was assessed at a Board Regional Evaluation Centre (REC) onDecember 1, 1993 with respect to the right wrist and hand. In a joint REC report dated December 1, 1993, Dr. M. Martin, orthopaedic surgeon, and Mr. M. Hunt, physiotherapist, stated that the worker had been assessed with a variety of investigations including x-rays, EMG and nerve conduction studies and nuclear scans, and none of these investigations had revealed any significant abnormality. The joint report stated:

Based on the clinical assessment today there were no significant objective findings. As there is full mobility and no indication of any swelling or increased muscle tone, I do not feel that physiotherapy would be of benefit at this time. She should be encouraged to continue with her regular activities. Summary and Diagnosis: This is a 41 year old woman with an 18 month history of pain, swelling and numbness in the right wrist and hand, refractory to medication, splinting, injections etc. She has seen a variety of consultants who have not been able to define the problem with x-rays, bone scanning and EMG studies. On today’s examination there are no specific signs of a physical impairment.

[13] In a report dated December 7, 1993, Dr. I. Von Althen, internal medicine, stated that the worker was seen for an assessment of her rectal bleeding. Dr. Von Althen stated that the worker’s diagnosis was likely ulcerative proctitis or left sided colitis.


[14] In a report dated January 19, 1994, Dr. B. Kim, physical medicine and rehabilitation, stated, in a nerve conduction and electromyography report with respect to the worker’s right wrist and arm, as follows:

Interpretation of Data: The sensory and motor conduction velocity and latency of the median and ulnar nerves on the right side is now completely normal. I read Dr. Sharma’s EMG report which concluded mild carpal tunnel findings. Certainly her condition has improved now due to the time off. Therefore her residual symptoms are tendonitis. She will have to cope with the symptoms and seek for a different job. She has the help of a wrist splint on the right side. Maybe a short period of physiotherapy might also prove helpful.

[15] In a report dated March 3, 1994, Dr. S. Kesmarky, orthopaedic and upper extremity surgeon, stated:

X-rays of May 28, 1993 show a tiny avulsion fracture or a joint mouse on the radial side of the CMC joint of the thumb. A bone scan report of October 14, 1993 is normal in the right hand and wrist. This woman appears to have DeQuervain’s tendonitis of her right thumb and flexor tendonitis of her wrist. There may still be a very slight degree of residual carpal tunnel syndrome…. I think with this tendonitis at various locations, she is unable to return to her previous type of work which requires repetitive use of the hand.

[16] In a report dated March 15, 1994, Dr. W. Heslop, internal medicine, stated that he had seen the worker who had a one month history of left ankle swelling. Dr. Heslop stated that the worker presented with a monarticular arthritis of unexplained origin.

[17] In a report dated April 21, 1994, Dr. Kesmarky stated that the worker had a resolved right carpal tunnel syndrome. Dr. Kesmarky stated that the worker had DeQuervain’s tendonitis of the right thumb and some flexor tendonitis of the wrist. Dr. Kesmarky stated that there were minimal findings of DeQuervain’s tendonitis during the examination on April 21, 1994. Dr. Kesmarky stated:

I am uncertain why she is still having numbness but I do not think she should have further injections to the carpal tunnel and carpal tunnel decompression is not indicated unless her electrodiagnostic studies are positive. She just appears to have some diffuse muscle tenderness and was prescribed Zostrix cream to the hand and was asked to use the splints as needed.

[18] In a report dated July 8, 1994, Dr. W. Silecky, rheumatologist, stated that the worker had swelling and pain in the left ankle that developed in December of 1993, and she had swelling of the right knee. Dr. Silecky stated:

About two years ago she developed symptoms of carpal tunnel affecting the right hand and had two injections and was treated with a splint. The hand also swelled for about a week around the time of onset of her symptoms. Other health problems include a history of ulcerative proctitis… for which she was treated with Asacol as well as with enemas. Dr. vonAlthen felt that she could tolerate anti-inflammatories and did not feel that the arthritis was related to the proctitis…. Examination: …The right knee is warm, has a large effusion, and fairly marked tenderness. There is also swelling over the lateral aspect of the left ankle with some warmth and tenderness. Skin examination was normal, but she has fairly marked pitting of the fingernails. Summary and recommendations: There is more to explain here than what can be attributed to an injury of the knee. First of all she has three joints that are affected. Secondly, there is a significant inflammatory


component here. With the presence of nail pitting I wonder if this could be psoriatic arthritis, even though no psoriatic plaques were seen.

[19] In a report dated July 25, 1994, Dr. W. Cecutti, family physician, stated that the worker had carpal tunnel syndrome which was appropriately treated and which had resolved, and that the worker further suffered from an undiagnosed DeQuervain’s tenosynovitis which was present during and after her employment.

[20] In a report dated September 26, 1994, Dr. Silecky stated that he thought the worker had an inflammatory oligo-arthritis, possibly psoriatic arthritis.

[21] In a report dated January 3, 1995, Dr. Kesmarky stated that there were no findings in the worker’s right shoulder and elbow, and that in the right wrist there were really minimal signs of tendonitis. Dr. Kesmarky stated that x-rays taken that day showed a mild degree of degenerative disc disease at C5-6 and C6-7 with disc space narrowing. Dr. Kesmarky stated:

This patient continues to have some mild tendonitis of her right thumb and wrist but does not really appear to have carpal tunnel syndrome clinically. As well she has some neck pain on the basis of degenerative disc disease.

[22] In a report dated May 11, 1995, Dr. Sharma, physical medicine and rehabilitation, stated that it was suspected that the worker’s cervical spine disc disease was responsible for her right arm and hand pain. Dr. Sharma stated that the bone scan done on January 5, 1995 showed slightly increased activity in the lower cervical spine suggesting facet joint degenerative disease. Dr. Sharma stated that the worker’s associated medical problems included psoriatic arthritis and ulcerative colitis. Dr. Sharma stated that the worker was now a cook, and experienced some difficulty in repetitive wrist movements during her cooking activities. Dr. Sharma stated:

On the basis of clinical examination, she definitely appears to have a cervical disc disease, but in addition, her carpal tunnel syndrome also appears to have worsened. I did perform an electrodiagnostic study today..., and as compared to the study done in July 1992, the right side carpal tunnel syndrome is definitely worse.

[23] In a report dated April 11, 1996, Dr. Silecky stated that the worker had an episode of pain and swelling in the left knee that lasted for about 2 months and then settled down spontaneously. Dr. Silecky stated that the worker’s other problem was pain in the back, which woke her up after 3 or 4 hours.

[24] The worker was seen for a consultation at the Rothbart Pain Management Clinic on January 30, 1997, by Dr. L. Horak, family physician. In a report dated February 6, 1997, Dr. Horak stated that the worker had been suffering from headaches for approximately 20 years. Dr. Horak stated that the headaches were daily, and once a week she developed a severe headache all over the head. Dr. Horak opined that the worker was suffering from supraorbital neuralgia and spondylogenic headache. The treatment was a series of nerve blocks.

[25] In a report dated September 12, 1997, Dr. Silecky stated that approximately 2 weeks earlier the worker developed swelling in both ankles. Dr. Silecky stated that the reasons for the swelling were unclear.


[26] In a report dated October 30, 1997, Dr. D. Ross, respirologist, stated that the worker was assessed with respect to bilateral hilar adenopathy and large joint inflammatory oligo-arthritis most likely in keeping with sarcoidosis. Dr. Ross noted that the worker was mildly short of breath, with some wheezing and chest tightness. The worker also had some ankle swelling andlow back pain, and complained of fatigue, malaise, and decreased energy levels. Dr. Ross stated that the worker presented to the Emergency Room and placed on Ventolin. Dr. Ross stated:

The clinical and investigative picture is that of acute stage 1 sarcoidosis. Her fleeting oligo-arthritis may well be on the basis of an underlying diagnosis of sarcoidosis.

[27] In January of 1998 the worker underwent an operation, that is, a gastroscopy and colonoscopy, with biopsies of antrum taken. The post-operative diagnosis was small hiatal hernia, and otherwise normal.

[28] In a report dated March 13, 1998, Dr. J. Singh, physical medicine and rehabilitation, stated that the worker’s diagnosis was carpal tunnel syndrome of a mild to moderate degree, with the possibility of tenosynovitis of the tendons in the carpal tunnel. Dr. Singh injected the right carpal tunnel with Depo-Medrol.

[29] In a report dated June 2, 1998 Dr. S. Sharma, physical medicine and rehabilitation, stated that the worker was seen for joint pain including the back, shoulder and knees. Dr. Sharma stated that the worker’s carpal tunnel syndrome was mild, and that there was no urgency to have carpal tunnel surgery done since the severity was best classified as mild.

[30] In a report dated September 14, 1998, Dr. K. Sealey, psychiatrist, stated that the worker was seen for assessment of symptoms resulting from muscle tension headaches and poor stress management. Dr. Sealey stated that the worker stated she had been having problems with headache for 3 years, and that she had sinus pains and had been diagnosed as having a cyst in one sinus. Dr. Sealey stated:

[The worker’s] problems seem to be tied into a recent work history. [The worker], who comes originally from Yugoslavia, migrated here in 1998. Prior to coming here she worked in an office doing clerical duties for 15 years after having failed her exams related to the study of astronomy. She had not been able to continue studying as she needed to work for financial reasons. When she migrated here with her husband she had two children ages 7 years and 3 months. She stayed at home for two years. She took up her first job in 1990 and worked at a pastry restaurant for about two or three years. She described her boss at that time to be very rude.

In 1993 she got another job with a pastry factory. She worked for one year before developing a problem with her hand, carpal tunnel syndrome. She was sent for a bone scan which was normal and subsequently she was let go from her job. In 1994 she began working at a hotel in the kitchen. She described that although she loved to cook, she found the job stressful. She described work conditions as being hot with no breaks and being incessantly on the go. She felt stressed as she would often have to get up at 4:15 in the morning to get there in time to start breakfast. She worked up until March of 1998. In August of 1997 she developed a rash on her chest and face. She had seen Dr. K. Buttoo who told her immunity was low and she was sent for an x-ray. She had one week’s holiday but the rash persisted and she felt ill. By September she had become very ill and was coughing with pains in her chest when breathing. She had a repeat x-ray at Oshawa General Hospital and was told that she had either TB, cancer or sarcoidosis. Eventually she was diagnosed as having inactive sarcoidosis.


She says that she tries to be strong but she gets irritable. She feels anxious and nervous and shaky on the inside. Her sleep is fair, her appetite is good and she described her energy as fair with greater tiredness in the mornings.

On Mental Status: She presented as an anxious woman with some pressured speech. She seemed very intent on getting her story out and having it accepted. She was not psychotic nor suicidal. She was stressed, especially having to deal with her work environment. She was irritable, probably mildly depressed…. Her insight is likely limited and she seems to relate most of her symptoms to external factors and somatic complaints without any connection with psychological traits. A diagnosis was made ofdysthymia and a possible depressive disorder.

[31] In a report dated May 12, 1999, the Board Nurse Case Manager stated that the worker’s restrictions pertaining to the permanent impairment in the hands and wrists bilaterally, were:

Lifting - Avoid repetitive movements of the involved joint against resistance; Carrying –avoid repetitive movements of the involved joint against resistance; pushing – avoid repetitive movements of the involved joint against resistance; and with respect to handling, fingering and gripping – avoid repetitive movements of the involved joint against resistance especially gripping.

[32] In a report dated August 3, 1999, Dr. Sharma stated that he saw the worker on that date, and she had stopped working July 8, 1999. Dr. Sharma stated that the worker did not report significant improvement in her shoulder, neck and hand pain.

[33] The worker had a MRI of the spine on August 22, 1999. The impression was stated to be “C6-C7 mild central disc herniation causing mild thecal sac flattening.”

[34] In a report dated July 13, 2000 Dr. Sharma indicated that the worker had the condition of fibromyalgia.

[35] In a report dated December 9, 2000 Dr. Y. Kwamie, psychiatrist, stated that the worker had been referred to him, and he stated:

[The worker] stated that she had “millions of problems” and despite the fact that she has seen several physicians and specialist, nobody wants to listen to her. She reported that in her country of origin, Yugoslavia, she previously worked in an office but she was unable to find an office job here in Canada and ended up working in restaurants, which she found stressful. She eventually obtained a job working as a cook at the [second accident employer] in Oshawa and in 1993 was diagnosed with carpal tunnel syndrome affecting her right wrist. She has subsequently developed carpal tunnel syndrome in her left wrist. She listed several different medical problems that she has had including Sarcoidosis, asthma, gastric bleeding, ulcerative colitis, arthritis, thyroid problems, chronic low back pain, migraine headaches, nose bleeds, hiatus hernia with reflux, and fibromyalgia.

With all these medical problems, [the worker] stated that she has been unhappy for several years and the knowledge that she will have these chronic medical problems for the rest of her life makes her even more depressed. She has been involved with [the WSIB] for the past few years and she has been offered retraining in Hotel Management but she indicated that she would have great difficulty in handling the course and does not believe that her chances of finding a job at her age are good.

She reported crying spells, poor sleep, weight gain of about 50 pounds in the past seven years, poor memory and poor concentration. Also she is irritable and her libido is low. With regard to suicidal ideation she stated that she does not want to live the way she is but denied any plans for suicide….”


Given [the worker’s] multiple medical problems it is quite understandable that she has become depressed and frustrated. Psychiatric intervention is not likely to be of much real help, however, she was advised to increase her dosage of Effexor to 225 mg daily. She was offered a follow up appointment in the new year.

[36] The worker was assessed at the Peterborough Regional Health Centre, Mental health services on August 22, 2001 and September 18, 2001, by Dr. J. Maher, psychiatrist. In a report based on the 2 assessments, Dr. Maher stated:

The patient says that she has been sick since 1993 with multiple medical problems and chronic pain….

She says that, prior to 1992, she was never depressed although she admits to being unhappy since moving to Canada in 1988. All of her physical problems have led to significant anxiety and she says the worrying just serves to make her pain even worse…. She says she saw a Psychiatrist, named Dr. Sealey, in Ajax in 1998 on a monthly basis for one year. She was seeing Dr. Kwamie in Oshawa fro December 2000 to February 2001. She says she only saw him about three times and that he could not do anything to help her.

Past Medical History:

1 Fibromyalgia for two years.

2. Arthritis for eight years with problems with her ankles, knees, and hands.

3. History of headaches and migraines.

4. Ulcerative colitis since 1993.

5. Chronic back pain with worsening over the past six years.

6. Asthma for three years.

7. Sarcoidosis since 1998.

8. Carpal tunnel syndrome in one wrist since 1992 and in the other wrist since 1998.

9. Nose bleeds and problems with a cyst in her sinus for the past year.

10. She reports an enlarged thyroid for one year but says that her thyroid levels have been normal.

11. Problems with her voice and throat as a result of “talking too loud”; she says she has been sent to a Speech Pathologist.

12. She says that her “biggest problem” has been the gastric bleeding that is brought on my medications that could otherwise provide some relief from her various medical problems. She was diagnosed with ulcerative colitis in 1993.

13. Hysterectomy in 1991.

14. Hiatus hernia with reflux for the past three years….

The patient married in 1978 and says that this relationship is adequate. It was her husband’s idea to immigrate to Canada in 1988 and she continues to be ambivalent about being here.

[37] Dr. Maher stated that the worker’s diagnosis was adjustment disorder with depressed and anxious mood, generalized anxiety disorder and insect phobia.

[38] In a report dated July 13, 2002, Dr. T. Cohodarevic, pain consultant, stated that the worker was assessed for her total body pain on July 9, 2002. Dr. Cohodarevic stated:


[The worker] is a 50 year-old right-handed woman who has a history of sarcoidosis since 1997, migraine headaches since ten years ago, ulcerative colitis since 1994, Crohn’s disease since 1999, asthma since 1997, depression since 1998, hysterectomy in 1991, right CTS since 1992, left CTS since 1994, multiple episodes of upper gastrointestinal bleeding in 1993, ’95, ’98 and June 2002. [The worker] states that her pain started in 1992 when she developed work related right hand and arm pain and was diagnosed with CTS….

[39] Dr. Cohodarevic stated that an that x-ray of the right shoulder in December 2001 was unremarkable; that an MRI lumbar spine October 2001 showed degenerative changes at multiple levels and a small to moderate right paracentral disc herniation at L5-S1 level indenting and displacing slightly the origin of the right S1 nerve root; that February 2002 tests showed mild CTS bilaterally; and that an MRI of the cervical spine in August 1999 showed mild central disc herniation causing mild thecal sac flattening at the C6-7 level. Dr. Cohodarevic stated that his impression was that the worker had a pain disorder associated with medical and psychological factors.

[40] In a report dated December 30, 2002, Dr. Silecky stated that the worker had a long and complicated history, and was found to have sarcoidosis in 1997. Dr. Silecky stated that the worker also had carpal tunnel syndrome and back pain with numbness in her left leg. Dr. Silecky stated that the worker also had depression, and was seeing a psychiatrist in Peterborough and was on Effexor. Dr. Silecky stated that the worker also had inflammatory bowel disease (Crohn’s disease), and was seeing a gastroenterologist, Dr. Bain, for her bowel and for reflux; the worker reported that she had two bleeds from her gastrointestinal tract that summer, but did not require transfusion. Dr. Silecky stated that another problem that the worker had was total body pain for which she was assessed by a pain consultant; the worker was on a waiting list for a pain management program at McMaster. Dr. Silecky stated:

At the present time, this lady’s main problems are total body pain, depression, carpal tunnel syndrome, and symptoms consistent with sciatica with ongoing investigations by Dr. Perrin. There is no evidence of recurrence of her inflammatory arthritis, and she has no features of psoriatic arthritis. I cannot recommend any additional treatments. Certainly, I do not think she is capable of functioning in the workplace.

[41] In a report dated January 24, 2003, Dr. Richards stated that he had seen the worker with regard to chronic right shoulder pain. Dr. Richards did not provide a diagnosis pertaining to the right shoulder, and stated that he did not think that surgical treatment for the shoulder pain would be helpful.

[42] In a report dated February 19, 2003, Dr. R. Richards, surgeon in chief, department of surgery, Sunnybrook and Women’s hospital, stated that the worker was a patient under his care. Dr. Richards stated:

[The worker] has chronic shoulder pain, degenerative disease of the thoracic and lumbar spine and a disc herniation. [The worker] is only capable of sedentary occupational activity with no prolonged sitting or standing. She is not capable of heavy lifting, overhead activity or any kind of repetitive or forceful activity with her right arm. In addition [the worker] has a history of sarcoidosis, inflammatory bowel disease, mild asthma, depression, gastroesophageal reflux, back pain, carpal tunnel syndrome and sciatic. [The worker] used to work as a cook. She is certainly disabled for this occupation. [The worker] has been diagnosed as having a pain disorder with


psychological factors and apparently referred to a pain management program at McMaster University. Given the above I doubt that [the worker] would be employable.

(iv) Testimony

[43] The worker testifies that she is now 54 years of age and she came to Canada in December of 1988. The worker testifies that prior to coming to Canada she worked in her native Yugoslavia as a bookkeeper for 13 years. The worker testifies that she is married with two children.

[44] The worker testifies that after she came to Canada she stayed at home with her children for a couple of years and then obtained her first job in 1990. The worker testifies that her first job was working in a shop that made pastries and that also had a restaurant area. The worker states that she had to take this job because her English was a problem. The worker states that this was the worst job ever. The worker states that her duties involved cleaning, selling and making food, washing dishes and the worker states that she cut a lot of strawberries by hand. The worker states that she cut strawberries everyday for two to three hours.

[45] The worker states that she worked at this shop from 1990 to 1992. The worker testifies that she felt bad because she had to work there because she was actually a bookkeeper. The worker states that she also had pain in her wrists because she had to hold the knife to cut the strawberries. The worker states this was a full-time job.

[46] The worker testifies that she left this job in 1992 and obtained a job across the street at a pastry factory, and there her job was packing pastries into trays and boxes. The worker states that 20 days later her wrists became a problem for her and her hands were swollen and painful. She states that she started getting cortisone. The worker states that Dr. Campbell told her that she was able to work however then the family doctor said that she could not work.

[47] The worker states that the Board paid benefits to her from June of 1993 until December 13, 1993 with respect to a right wrist condition.

[48] The worker states that when the Board closed her benefits in December of 1993 her wrist was not better. The worker states that the Board ignored her.

[49] The worker states that she went to Unemployment Insurance and got benefits from that source for looking for work. The worker testifies that she filled out forms every two weeks. She states that she was looking for a job. The worker states that the only job that was offered to her was to work in a kitchen in a hotel. The worker states that she started this job on October 26, 1994, and her duties were initially making sandwiches and soup for approximately one month. The worker states that after that she became a cook in the kitchen.

[50] The worker states that her duties as a cook were to come in in the morning and set up for the breakfast buffet. She cooked the eggs and the bacon and the potatoes that were in the buffet. The worker states that she cracked 200 to 300 eggs on a weekday and on a weekend she sometimes cracked 1000 eggs. The worker states that she did this job until 1998. The worker states that she became full-time in 1997 and at that time she worked 40 hours per week.


[51] The worker was asked when her right shoulder problem started. The worker states that she thinks that these problems started because she had to cook a lot of eggs at the hotel in the kitchen. The worker states that this was a heavy job where she had to lift pails of eggs. The worker states that she had to lift heavy trays of bacon and cook the bacon on a tray. The worker states that she made 70 to 80 trays of bacon. The worker states that she had to steam potatoes and cut them into slices and then bake them. The worker states that the other duty that may have aggravated her right shoulder was holding the spatula to cook eggs. The worker states that this job was a lot of hard work and some of the items that she had to lift and carry were frozen. The worker was asked if she used a cart and she testified that sometimes she did not have time.

[52] The worker states that before she stopped working in March of 1998 the first thing that happened was that in October of 1997 she was diagnosed with sarcoidosis. She states that this had to do with her immune system. The worker states that she took four months off work due to the sarcoidosis as of October 1997 and came back to work in February of 1998. The worker states that she then worked for three or four weeks and that is when she developed pain in her hands up into her arms. The worker states that the chef gave her the salad bar rather than cooking but this made her hands worse because everything was cold.

[53] The worker states that she had to wait almost six months for the WSIB to pay her in relation to her March 1998 WSIB claim. The worker states that this was terrible financially and she had no other source of income.

[54] The worker testified that her claim was eventually accepted and the Board sent her for a labour market re-entry (LMR) program. The worker states that she attended her LMR Program for upgrading and this was from approximately 9 a.m. to 12 or 1:00 p.m. each day. The worker states that they forced her to do typing because they told her that that was part of the program. The worker states that it was hard for her because she also had to write, however, her goal was toget a better job. The worker states that she occasionally missed time from school because of pain however the school told her she could not miss too many days. The worker states that she also had psychiatric problems.

[55] The worker states that dealing with the Board was so stressful and often she did not know who to deal with. The worker states that she went to a psychiatrist because she was in pain and she saw Dr. Sealey.

[56] The worker states that the upgrading did not give her anything. The worker states that she already had high school. The worker testifies that sometimes she had to teach the teacher about math in the upgrading course because she knew better than the teacher how to do math. The worker states that the English component of the course was good for her. The worker states that her mood was bad at the course and she was frustrated and in pain.

[57] The worker states that her upgrading ended in February 2001 when she finished her training program. The worker testifies that the Board would not send her to college because they stated that all the programs involved a computer and she could not use the computer because of her hands. The worker states that the Board told her she had to look for a job selling lottery tickets. The worker states that her attitude towards a job selling lottery tickets was awful.


[58] The worker states that when the Board told her she had to sell lottery tickets her Adjudicator did not want to talk to her and the Adjudicator’s supervisor was worse. The worker states that she explained that selling lottery tickets involved punching a computer with her hand and in Peterborough there was only one place like that. The worker states that the Board told her to look for a job in Oshawa.

[59] The worker states that she felt ready to kill herself and was in a very bad mood and was frustrated.

[60] The worker states that she has had different types of headaches and she does not really remember when they all started.

[61] The worker states that in 1993 or 1994 she got ulcers and colitis.

[62] The worker states that she had a jaw joint problem known as TMJ and she thinks it started when she was still living in Yugoslavia. The worker states this did not really bother her.

[63] The worker states that her colitis and Crones disease started in 1993. She states that this happened because she was taking anti inflammatories for her hands. The worker states that when she started seeing the psychiatrist Dr. Seeley in 1998 her worst problem was her hands plus the stress of dealing with the WSIB.

[64] The worker states that she stopped working in 1998 and the first reason was because of her hands.

[65] The worker states that now on an average day she does not do too much because her health problems have been building up. The worker testifies that in 2006 she had a knee surgery on her left knee and she could not walk too much. The worker states that this knee scope is only temporary relief and she is facing a knee replacement. The worker states that this is related to her arthritis.

[66] The worker states that she moved from Peterborough in 2005 with her family and now lives in Whitby.

[67] The worker states that she drives but only for short distances. The worker states that she does cooking but only the easy cooking and not the heavy cooking. The worker states that she cannot do mopping and she cannot do laundry if she has to lift her arm. The worker states that she is on medication to sleep and she cannot sleep without it.

[68] The worker states that she can no longer read or go for walks or volunteer at her church as she used to do. The worker states that she can no longer garden like she used to do. The worker states that because of her health condition she is not happy to be with people for too long.

[69] The worker states that she sees her family doctor every two to three weeks. The worker states that now she is diabetic and she has to have a blood check-up once a month. The worker states that she takes oral medication for her diabetes.


[70] The worker states that she saw the specialist Dr. Singh in 2006 and she also saw a knee surgeon in 2006. The worker states that she had a colonoscopy in November of 2006. The worker states that she saw the psychiatrist last year three times, and now the family doctor prescribes the medication that the psychiatrist used to prescribe. The worker states that she talks to Dr. Cecutti when she goes to her appointments with him; he is her family doctor for 15 years.

[71] The worker states that after the upgrading program she did not work and she did not look for work. She states that she did not feel she could because she has so many conditions.

[72] The worker states that she thinks her shoulder started to bother her in 1996. The worker states that Dr. Richards has recently put her on a waiting list for surgery on her right shoulder. She did not talk to Dr. Richards about this rather he just made this decision.

[73] The worker states that she receives the Canada Pension Plan disability pension which pays $467 per month. The worker states that her partial LOE benefits from the Board pay $163 bi-weekly.

[74] The worker states that she is upset that in 1993 the Board cut her off with just a phone call and they said they spoke to Dr. Campbell. The worker states that she cannot find in her file why she was cut off in 1993 and that was the cause of all her problems. The worker states that there was no report from Dr. Campbell there was just a telephone conversation.

(v) Post-Hearing Activity

[75] Subsequent to the hearing, the Panel requested that the Tribunal Counsel Office (TCO) provide further medical information with respect to the condition Sarcoidosis. In particular, the Panel sought to obtain information regarding the condition Sarcoidosis that indicated the main characteristics of the condition; and the effects of the condition over time in the usual course, including the effects of the condition up an individual’s ability to function. TCO asked the Tribunal’s Medical Liaison Office (MLO) for assistance, and MLO provided 2 excerpts from UpToDate, a medical database which is updated on a regular basis. The excerpts provided were: Clinical manifestations and diagnosis of sarcoidosis, and Patient Information: Sarcoidosis. This post-hearing information was provided to the Panel and to the worker’s representative. The worker’s representative was invited to provide post-hearing submissions with respect to the new information.

[76] The Panel observes that the excerpt titled Clinical manifestations and diagnosis of sarcoidosis stated in part as follows:

Sarcoidosis is a multisystem granulomatous disorder of unknown etiology that affects individuals worldwide and is characterized pathologically by the presence of noncaseating granulomas in involved organs….

Sarcoidosis can involve all organ systems. The most prominent sites of extrapulmonary disease include the skin, eyes, reticuloendothelial system, musculoskeletal system, exocrine glands, heart, kidney, and central nervous system.

[77] The Panel further observes that the excerpt titled Patient Information: Sarcoidosis stated in part as follows:


What is Sarcoidosis? Sarcoidosis is a disorder marked by the presence of small nodules (granulomas) of inflamed tissue in the body’s organs. It almost always involves the lungs, but can also affect the skin, eyes, nose, muscles, heart, liver, spleen, bowel, kidney, testes, nerves, lymph nodes, and brain….

Musculoskeletal system: Ten to fifteen percent of patients may have musculoskeletal involvement, resulting in arthritis, changes in bone structure, or muscle discomfort and pain.

(vi) Submissions

[78] The worker’s representative submits that the worker should have entitlement for temporary total (TT) disability benefits from December 13, 1993 because she could not return to her previous work due to the residual tendonitis symptoms. The worker’s representative submits that the Panel has jurisdiction to grant TT benefits to the worker based on tendonitis symptoms rather than CTS symptoms, since the Board granted initial entitlement for a right wrist impairment, and the right wrist tendonitis is within the scope of the right wrist impairment.

[79] The worker’s representative submits that the worker should have entitlement for the right shoulder based on the causal relationship between her duties as a cook and the right shoulder problems. The worker’s representative submits that the Panel must weigh 2 opposing medical opinions on this point, namely the report of Dr. Richards and the report of Dr. Shapiro. The worker’s representative submits that the Panel should prefer the report of Dr. Richards.

[80] The worker’s representative submits that the worker should have entitlement for a psychiatric condition of depression, or in the alternative, entitlement for Chronic Pain Disability (CPD). The worker’s representative advised the Panel that the issue of entitlement for Fibromyalgia was not being pursued by the worker. The worker’s representative submits that the worker has been diagnosed with depression and chronic pain, and this is significantly related to her compensable problems. The worker’s representative submits that the worker’s hand, wrist and shoulder problems were the most significant barrier to her return to work, and that was a significant part of her depression.

[81] The worker’s representative submits that the worker should have entitlement to full LOE benefits from April 20, 2001, because she was unemployable, taking into account her left wrist, her right wrist, her right shoulder, her depression, and her lack of transferable skills.

[82] With respect to the post-hearing information obtained by the Tribunal concerning the condition Sarcoidosis, the worker’s representative submits that the worker’s sarcoidosis was classified as Grade 1, for which regression occurs in 75% of cases. The worker’s representative submits that there is no suggestion in the medical evidence that the worker’s right shoulder condition has any connection to her sarcoidosis. With respect to the worker’s psychological condition, the worker’s representative submits that there is no question that the worker had non-compensable condition which played a role in her mental state, and sarcoidosis was merely one of several non-compensable conditions that the worker suffered from; the issue is whether the compensable conditions and their effects played a significant role in the development of the psychological condition.


(vii) Law and Policy

[83] Section 37(1) of the pre-1997 Worker’s Compensation Act (the pre-1997 Act) is applicable to this appeal and provides as follows:

37(1) Where injury to a worker results in temporary total disability, the worker is entitled to compensation under this Act in an amount equal to 90 per cent of the worker's net average earnings before the injury so long as temporary total disability continues or until the worker begins receiving payments under section 43.

[84] Sections 13 (1) and 43 of the Workplace Safety and Insurance Act (WSIA) are also applicable to this appeal and provide in part as follows:

13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

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

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

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

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

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

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

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

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

However, the minimum amount of the payments for full loss of earnings is the lesser of $15,312.51 or the worker’s net average earnings before the injury.

[85] Pursuant to section 126 of WSIA, the Board advised that the following Policy Packages are applicable to this appeal: #11 (Revision #5) – Psychotraumatic/Chronic Pain Disability –DOA as of January 1, 1998; #31 – Secondary or Non-Compensable Conditions; #35 –Continuing Entitlement/NEL – DOA from January 2, 1990 to December 31, 1997; #202 – Partial LOE/Adjustment to Level of LOE; and #300 – Decision Making/Benefit of Doubt/Merits and Justice.

(viii) The Panel’s Conclusions

(a) TT after December 1993 pursuant to Claim A

[86] On the issue of whether the worker should have entitlement for temporary total disability benefits (TT) from December 13, 1993 in Claim A, the Panel does not find for the worker.

[87] The Panel finds that the weight of the medical evidence does not indicate that the worker was temporarily totally disabled from December 13, 1993. The Panel finds that the weight of the medical evidence indicates that the worker had essentially recovered from the compensable right


carpal tunnel syndrome condition as of December 13, 1993. The Panel finds that the evidence indicates that the worker was capable of working and looking for work from December 13, 1993.

[88] The Panel finds that the weight of the medical evidence indicates that the worker had essentially recovered from the compensable right carpal tunnel syndrome condition as of December 13, 1993. In this regard we observe that the worker was assessed at a Board Regional Evaluation Centre (REC) on December 1, 1993, with respect to the right wrist and hand. In the opinion of both Dr. Martin the orthopaedic surgeon, and Mr. Hunt the physiotherapist, the worker had no significant abnormality, and no significant objective findings at that time. We observe that the REC report stated that the worker had full mobility of the wrist and hand with no swelling, and the report stated that there would be no benefit to physiotherapy. The report stated that the worker should continue with her regular activities, since there were no signs of a physical impairment. The Panel places significant weight on the medical opinion provided in this report since as an orthopaedic surgeon, Dr. Martin is qualified to provide this opinion and since his opinion was shared by the physiotherapist Mr. Hunt. The Panel also places significant weight on the medical opinion provided in REC report since Dr. Martin and Mr. Hunt had an opportunity to examine the worker, and since the examination pertained specifically to the issue of the level of the worker’s impairment as related to her right wrist and hand injury.

[89] The Panel observes that other medical reports contained in the Case Record suggest that the worker’s compensable right carpal tunnel syndrome condition had likely resolved by December 13, 1993. In this regard we observe that in his report dated July 9, 1993, the neurologist, Dr. McKenzie, stated that as of the date of his tests and examination of the worker on July 9, 1993, there was no evidence that the worker had carpal tunnel syndrome in eitherhand, and Dr. McKenzie opined that the worker’s carpal tunnel syndrome had likely initially been relatively mild. The Panel places significant weight upon Dr. McKenzie’s opinion since he tested the worker and since as a neurologist he is qualified to provide an opinion on the likelihood of the presence of a carpal tunnel syndrome.

[90] We note that other medical reports contained in the Case Record suggest that the worker’s compensable right carpal tunnel syndrome condition had likely resolved by December 13, 1993. Dr. Kim, physical medicine and rehabilitation, stated in his report dated January 19, 1994 that the sensory and motor conduction velocity and latency of the median and ulnar nerves on the right side was completely normal. Dr. Kesmarky, orthopaedic and upper extremity surgeon, stated in his report dated March 3, 1994, that while the worker appeared to have DeQuervain’s tendonitis of the right thumb and tendonitis of the wrist, there was only possibly a very slight degree of residual carpal tunnel syndrome. Dr. Kesmarky later stated, in his report dated April 21, 1994, that the worker had a resolved right carpal tunnel syndrome. In his report dated January 3, 1995, Dr. Kesmarky stated that the worker had really minimal signs of tendonitis, but did not really appear to have carpal tunnel syndrome. Finally, we note that in his report dated May 11, 1995, Dr. Sharma, physical medicine and rehabilitation, stated that it was suspected that the worker’s cervical spine disc disease was responsible for her right arm and hand pain.

[91] In the Panel’s view, the medical evidence, taken together as a whole, indicates that the worker had essentially recovered from the compensable right carpal tunnel syndrome condition


as of December 13, 1993. Accordingly we find that the worker was not entitled to temporary total benefits following December 13, 1993 under Claim A.

[92] The Panel further finds that that the evidence before the Panel indicates that the worker was capable of working and was looking for work from December 13, 1993. The Panel concludes based on this evidence that the worker was not totally disabled from December 13, 1993. In this regard we observe that the evidence indicates that during the period from December 1993 to October 26, 1994 the worker testified that she was in receipt of Employment Insurance benefits and was looking for work, according to her testimony at the hearing. The worker testified that she was looking for work and filling out Employment Insurance cards. We further observe that the evidence indicates that the worker in fact did find work in a hotel kitchen in October of 1994.

[93] The worker’s representative submits that the worker had ongoing symptoms beyond December of 1993 and that these were ongoing residual temporary symptoms which the doctors related to right wrist tendonitis or DeQuervain’s tendonitis of the right thumb. The worker’s representative submits that this tendonitis was related to the compensable carpal tunnel syndrome, and therefore the worker should be entitled to total disability benefits fromDecember 13, 1993 in Claim A. The Panel cannot accept this submission for two reasons. First, the Panel is not persuaded that the medical evidence clearly establishes that the worker has right wrist tendonitis or DeQuervain’s tendonitis of the right thumb, given that Dr. Sharma opined in his report dated May 11, 1995 that the worker’s cervical spine disc disease was responsible for her right arm and hand pain. Second, the Panel is of the view that the information contained in the Case Record does not indicate that the worker has been granted entitlement under Claim A for either right wrist tendonitis or DeQuervain’s tendonitis of the right thumb. Accordingly the Panel does not conclude that it would be appropriate to grant temporary total disability benefits from December 13, 1993 in Claim A based on ongoing symptoms related to right wrist tendonitis or DeQuervain’s tendonitis of the right thumb.

[94] Based on all of the foregoing, the Panel finds that the worker does not have entitlement for temporary total disability benefits (TT) from December 13, 1993 in Claim A.

(b) Right shoulder

[95] On the issue of whether the worker should have entitlement for the right shoulder under the 1998 claim (Claim B) the Panel does not find for the worker.

[96] The Panel finds that the weight of the evidence, including the medical evidence, indicates that the worker’s right shoulder problems pre-existed her employment with the second accident employer, which employment began in October 1994. We find, accordingly, that the right shoulder problems cannot be related to the worker’s employment pursuant to Claim B. In the Panel’s view the medical evidence indicates that the worker’s right shoulder tenderness pre-dates the March 1998 onset, and indicates that the worker has had right shoulder trouble since 1993. The Panel further finds that the weight of the medical evidence does not indicate that the worker has a right shoulder condition that is likely the result of her work duties as a cook. We find that other causes for the worker’s right shoulder pain are suggested in the medical reports.


[97] The Panel notes that in a report dated June 25, 1993, Dr. D. Campbell, physiatrist, stated that the worker was tender in the neck over the anterior muscles, and had tightness in the pectoral and shoulder girdle. Dr. Campbell opined that it was possible that some of her symptoms were referred from the neck, and that it was possible that she had a partial thoracic outlet syndrome relating to tightness in the neck muscles and her posture. Dr. Campbell recommended postural exercises to stretch and strengthen the shoulder girdle, and anterior chest wall muscles. We note that an x-ray of the worker’s cervical spine and right shoulder was performed on July 5, 1993, which indicated degenerative spurring and moderate disc space narrowing in the cervical spine, but no bone or joint abnormality in the right shoulder.

[98] The Panel also notes that in his report dated May 11, 1995, Dr. Sharma stated that the worker complained of tenderness in the shoulder region.

[99] The Panel observes that the Doctor’s First Report of Accident to the Board under Claim B, from Dr. W. Cecutti, family physician, dated March 13, 1988, stated that the worker had increased pain in the right shoulder. In the Panel’s view, Dr. Cecutti’s reference to increased right shoulder pain is a reference to the worker’s pre-existing right shoulder pain.

[100] In the Panel’s view the medical evidence indicates that the worker’s right shoulder tenderness pre-dates March 1998, and the worker has had trouble since 1993.

[101] The Panel further finds that the weight of the medical evidence does not indicate that the worker has a right shoulder condition that is likely the result of her work duties as a cook.

[102] The Panel observes in this regard that in his report dated December 18, 2001, Dr. Satyendra Sharma, physical medicine and rehabilitation, stated that the worker was diagnosed to have sarcoidosis, ulcerative colitis, and cervical degenerative disc disease. Dr. Sharma stated that when he saw the worker last in July 2000 she was experiencing more discomfort in the neck and shoulders as well as numbness and tingling in the hands. Dr. Sharma stated that on examination the worker had multiple trigger points in the shoulders, arms andneck. Dr. Sharma opined that most of the worker’s problems were related to degenerative joint and disc disease as well as fibromyalgia complicated by her long duration depression. In the Panel’s view, Dr. Sharma’s opinion with respect to the cause of the worker’s right shoulder pain relates the right shoulder pain to the worker’s non-compensable degenerative joint and disc disease as well as fibromyalgia, and we find that these causes cannot be related to the worker’s duties as a cook from October 1994 to 1998. The Panel places significant weight on Dr. Sharma’s opinion since he examined the worker, and since as a specialist he is qualified to provide an opinion on the causes of the worker’s pain.

[103] The Panel also observes that in his report dated December 18, 2001, Dr. R. Richards, surgeon-in-chief at the Sunnybrook and Women’s College Health Sciences Centre, stated that the worker had pain in her right neck, shoulder and arm, and he opined that the worker had myofascial pain. In his report dated February 2, 2002, Dr. Richards stated that the worker’s bone scan showed some early degenerative changes at multiple sites in the worker’s skeleton. Dr. Richards stated that in addition to her myofascial pain, the worker had pain secondary to cervical spondylosis and mild arthritic changes elsewhere in her skeleton. In the Panel’s view, this evidence also indicates that the worker’s right shoulder pain is likely the result of


myofascial, as well as non-compensable cervical spondylosis and mild arthritic changeselsewhere in her skeleton.

[104] The Panel notes that the evidence indicates that the worker was diagnosed with sarcoidosis in October 1997. We observe that in his report dated October 30, 1997, Dr. Ross, respirologist, stated that the worker had a large joint inflammatory oligo-arthritis most likely in keeping with sarcoidosis. In the Panel’s view, given that the shoulder can be considered to be a large joint, the worker’s sarcoidosis condition is suggested as a possible cause of the right shoulder pain.

[105] We are aware that the worker’s representative has submitted that there are 2 opinions on file concerning the cause of the worker’s right shoulder problems, that is, the opinion expressed by Dr. Richards in his report dated November 11, 2004, and the opinion expressed by Dr. Shapiro, Board Medical Advisor, dated September 9, 2005. The worker’s representative submits that the Panel must weigh these 2 opinions, and that the Panel should prefer Dr. Richards’ opinion – which states that the worker’s shoulder pain is likely work-related –because Dr. Shapiro is wrong when he stated that the first report of right shoulder pain occurred 3 months after the worker’s job had ended in 1998.

[106] The Panel has carefully considered the submissions of the worker’s representative and the medical evidence. In our view, as we have discussed above, the medical evidence taken as a whole indicates that the worker’s right shoulder problems pre-dated her employment as a cook with the second accident employer. We find, accordingly that the worker’s right shoulder pain cannot be attributed to her work as a cook with the second accident employer under Claim B.

(c) Psychotraumatic entitlement

[107] On the issue of whether the worker should have entitlement for a Psychotraumatic disability under Claim B, the Panel does not find for the worker.

[108] The Panel finds that the weight of the evidence, including the medical evidence, indicates that the worker is unfortunately suffering from several serious medical conditions, all of which have contributed to the worker’s depression. The Panel finds that, on a balance of probabilities, the medical evidence does not indicate that the worker’s bilateral carpal tunnel syndrome condition, for which the worker is in receipt of a total 8 percent NEL award, has made a significant contribution to the worker’s depression. The Panel finds that it is more likely that the worker’s depression is causally related to the other serious and disabling conditions from which she suffers.

[109] We note that the worker’s medical condition was summarized by the psychiatrist Dr. Maher, in his report based on his assessments dated August 22, 2001 and September 18, 2001, in which Dr. Maher stated:

The patient says that she has been sick since 1993 with multiple medical problems and chronic pain….

She says that, prior to 1992, she was never depressed although she admits to being unhappy since moving to Canada in 1988. All of her physical problems have led to significant anxiety and she says the worrying just serves to make her pain even worse….


She says she saw a Psychiatrist, named Dr. Sealey, in Ajax in 1998 on a monthly basis for one year. She was seeing Dr. Kwamie in Oshawa from December 2000 to February 2001. She says she only saw him about three times and that he could not do anything to help her.

Past Medical History:

1. Fibromyalgia for two years.

2. Arthritis for eight years with problems with her ankles, knees, and hands.

3. History of headaches and migraines.

4. Ulcerative colitis since 1993.

5. Chronic back pain with worsening over the past six years.

6. Asthma for three years.

7. Sarcoidosis since 1998.

8. Carpal tunnel syndrome in one wrist since 1992 and in the other wrist since 1998.

9. Nose bleeds and problems with a cyst in her sinus for the past year.

10. She reports an enlarged thyroid for one year but says that her thyroid levels have been normal.

11. Problems with her voice and throat as a result of “talking too loud”; she says she has been sent to a Speech Pathologist.

12. She says that her “biggest problem” has been the gastric bleeding that is brought on my medications that could otherwise provide some relief from her various medical problems. She was diagnosed with ulcerative colitis in 1993.

13. Hysterectomy in 1991.

14. Hiatus hernia with reflux for the past three years….

The patient married in 1978 and says that this relationship is adequate. It was her husband’s idea to immigrate to Canada in 1988 and she continues to be ambivalent about being here.

[110] The Panel notes that in his report dated December 9, 2000, the psychiatrist Dr. Kwamie also stated that that the worker’s depression is related to her multiple medical problems.

[111] The Panel also notes that in her testimony at the hearing, the worker stated that she is troubled by more recent additional non-compensable medical conditions, including a left knee condition which made walking difficult and for which she is facing a knee replacement operation in the future, as well as a recent diagnosis of diabetes.

[112] The Panel finds, based on the evidence before us that it is not reasonable to conclude that the worker’s carpal tunnel syndrome condition has made a significant contribution to her depression. In the Panel’s view it is more likely that the worker’s other serious health problems, including, arthritis, degenerative disease of the thoracic and lumbar spine and disc herniation, chronic low back pain, migraine headaches, ulcerative colitis, thyroid problems, and the disease sarcoidosis, have made the significant contribution to her depression.

[113] The Panel further observes that in addition to the worker’s numerous medical problems contributing to her depression, Dr. Maher notes that the worker reported being unhappy since moving to Canada in 1988, a move which she indicated was not her idea, and which she


continued to be ambivalent about. We observe that the worker testified at the hearing that when she came to Canada she had to work in a pastry shop from 1990 to 1992, and she felt bad because she had to work there because she was actually a bookkeeper in Yugoslavia. We conclude based on the medical evidence, and based on the worker’s testimony at the hearing, that the worker’s unhappiness at moving to Canada is likely also a contributing factor to the worker’s depression.

[114] The Panel further notes that in his report dated June 2, 1998, Dr. Sharma stated that the worker’s carpal tunnel syndrome was mild, and that there was no urgency to have carpal tunnel surgery done since the severity was best classified as mild. In the Panel’s view, this medical evidence indicates that the worker’s compensable carpal tunnel condition was a relatively minor factor in the worker’s overall medical condition, and did not therefore likely make a significant contribution to her depression.

[115] We are aware that the worker’s representative has submitted that the worker’s hand, wrist and shoulder problems were the most significant barrier to her return to work, and that was a significant part of her depression. The Panel finds that the evidence does not support this submission. We note at the outset that in this decision, the worker’s request for entitlement for the right shoulder is denied. We find that the medical evidence and the worker’s testimony indicate that the worker’s compensable CTS was not the most significant barrier to the worker returning to work. We note, as we have discussed above, that the worker was suffering from several serious non-compensable conditions, and we find on a balance of probabilities that these non-compensable conditions were the most significant barrier to the worker returning to work. We find that our conclusion is supported by the worker’s testimony. We observe that the worker testified at the hearing that after the Board sponsored LMR upgrading program she did not work and she did not look for work because she did not feel she could because she has so many conditions.

[116] In summary, the Panel finds that the evidence as a whole indicates that the worker has numerous problems, including medical problems. In our view the compensable bilateral carpal tunnel syndrome condition, which is described in the medical reports as mild, is likely a minor aspect of the worker’s overall condition, and was not a significant contributing factor to the worker’s depression.

[117] Based on the foregoing, entitlement for a Psychotraumatic disability, under Claim B, is denied.

(d) Chronic Pain Disability entitlement

[118] On the issue of whether the worker should have entitlement for Chronic Pain Disability (CPD) under Claim B, the Panel does not find for the worker.

[119] The Panel finds that the worker does not have entitlement for Chronic Pain Disability (CPD) under Claim B, pursuant to the Board’s CPD policy. The Panel finds that the weight of the evidence, including the medical evidence, does not establish that the worker’s pain can be attributed predominately to non-organic causes. The Panel finds that the evidence does not establish that the worker’s pain is compatible with the carpal tunnel syndrome, or resulted from the compensable carpal tunnel syndrome.


[120] The Panel observes that Dr. Cohodarevic, pain consultant, stated in his report dated July 9, 2002 that the worker had numerous medical conditions, including ulcerative colitis, Crohn’s disease, asthma, CTS, and upper gastrointestinal bleeding, and he assessed the worker for total body pain. Dr. Cohodarevic also stated that an MRI of the cervical spine in August 1999 showed mild central disc herniation causing mild thecal sac flattening at the C6-7 level. Dr. Cohodarevic opined that the worker had a pain disorder associated with medical and psychological factors.

[121] In the Panel’s view, the weight of the evidence, including the medical evidence, indicates that the worker is unfortunately suffering from several serious medical conditions, all of which have contributed to the worker’s pain. The Panel finds that, on a balance of probabilities, the medical evidence does not indicate that the worker’s bilateral carpal tunnel syndrome condition, for which the worker is in receipt of a total 8 percent NEL award, has made a significant contribution to the worker’s overall pain condition. The Panel finds that it is more likely that the worker’s pain is causally related to the other serious and disabling conditions from which she suffers, including the ulcerative colitis, Crohn’s disease, asthma, chronic back pain and upper gastrointestinal bleeding. We note that in his report dated June 2, 1998, Dr. Sharma stated that the worker’s carpal tunnel syndrome was mild, and that there was no urgency to have carpal tunnel surgery done since the severity was best classified as mild. In the Panel’s view, this medical evidence indicates that the worker’s compensable carpal tunnel condition was a relatively minor factor in the worker’s overall medical condition, and did not therefore likely make a significant contribution to her pain condition.

[122] The Panel finds that there is insufficient medical evidence contained in the Case Record to indicate that the worker’s compensable carpal tunnel syndrome made a significant contribution to the worker’s pain condition.

[123] Finally, the Panel finds that the evidence does not support a finding that the worker’s pain cannot be predominantly attributed to organic causes. We find that the medical evidence indicates that there are numerous organic causes of the worker’s pain, including the ulcerative colitis, Crohn’s disease, asthma, chronic back pain and upper gastrointestinal bleeding.

(e) LOE benefits

[124] On the issue of whether the worker should have entitlement for full Loss of Earnings (LOE) benefits from April 20, 2001 under Claim B, the Panel does not find for the worker.

[125] In the Panel’s view the partial LOE benefit that the worker has been provided with is the appropriate benefit in this case. The worker receives partial LOE benefits based on the Board’s determination that she is capable of working in a retail sales job in her SEB at the minimum wage of $6.85 per hour. We find that the SEB of a retail sales job is appropriate for the worker, taking into account her compensable condition which is bilateral carpal tunnel syndrome. In the Panel’s view this is the appropriate result and we make no change to the worker’s LOE benefit.

[126] The Panel observes that the worker has entitlement under Claim B for bilateral carpal tunnel syndrome, and the worker has been awarded an 8 percent NEL award with respect to this condition. We find that the evidence indicates that the SEB of a retail sales job is appropriate for the worker, taking into account her compensable condition which is bilateral carpal tunnel


syndrome, and taking into account her restrictions as related to the compensable condition. We note that in a report dated May 12, 1999, the Board Nurse Case Manager stated that the worker’s restrictions pertaining to the permanent impairment in the hands and wrists bilaterally, were:

Lifting - Avoid repetitive movements of the involved joint against resistance; Carrying –avoid repetitive movements of the involved joint against resistance; pushing – avoid repetitive movements of the involved joint against resistance; and with respect to handling, fingering and gripping – avoid repetitive movements of the involved joint against resistance especially gripping.

[127] In our view, the SEB of a retail sales job is within the worker’s restrictions, as related to the compensation CTS condition.

[128] In the Panel’s view the worker’s partial LOE benefit has been correctly calculated pursuant to the applicable legislation, in that the LOE benefit compensates the worker for the loss of earnings which results from the injury.

[129] Based on the foregoing, the appeal is denied.


DISPOSITION

[130] The appeal is denied.

[131] The worker does not have entitlement for temporary total disability benefits (TT) from December 13, 1993 in Claim A.

[132] The worker does not have entitlement for the right shoulder under the 1998 claim (Claim B).

[133] The worker does not have entitlement for or for a Psychotraumatic disability, under Claim B.

[134] The worker does not have entitlement for Chronic Pain Disability (CPD) under Claim B.

[135] The worker does not have entitlement for full Loss of Earnings (LOE) benefits from April 20, 2001 under Claim B.

DATED: December 10, 2007.

SIGNED: J. Noble, B. Wheeler, F. Jackson.

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