Highlights of Noteworthy Decisions

Decision 1294 19
M. Keil
  • Credibility
  • Chronic pain (genuineness)

The worker suffered a concussion and soft tissue injuries to his neck, shoulder and low back when he slipped and fell in April 2015. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for chronic pain disability and denying a NEL award for permanent psychotraumatic disability.

According to Board policy, one of the criteria for entitlement for chronic pain disability is impairment of earning capacity, with evidence demonstrating the persistent effects of the chronic pain in terms of consistent and marked life disruption. The policy goes on to state that, because pain is a subjective phenomenon, marked life disruption is the only useful measure of impairment in chronic pain cases.
This brought the Vice-Chair to consideration of the genuineness of the worker's symptoms. Since chronic pain is subjective, the worker's testimony is central to a determination of entitlement for chronic pain disability. With chronic pain, the degree of pain experienced is out of sync with the objective findings and, therefore, there may seem to be aspects of exaggeration. However, those aspects of exaggeration should not, in and of themselves, be detrimental to a finding of genuine entitlement for chronic pain since an enhanced sense of pain can be a legitimate basis for chronic pain entitlement. Nevertheless, a worker's testimony must be perceived as reliable and consistent with known facts, even if the worker's sense of pain is enhanced. Otherwise, the credibility of the worker will be called into question and, with it, the reliance that can be placed on the worker's testimony as to marked life disruption.
In this case, the worker's pain presentation has been consistent over time. However, he has not been reliable in reporting regarding his pre-existing condition (resulting from a non-compensable motor vehicle accident in 2005) and regarding return-to-work activities.
The Vice-Chair found that the worker's unreliability in those two areas was not a bar to his entitlement for chronic pain disability. Notwithstanding his under-acknowledgement of his pre-existing condition, he worked full-time from 2006 until the accident in April 2015, with no attendance or performance issues. Further, the worker's attitude to the return-to-work process may have an impact on LOE benefits but does not go to whether he has entitlement for chronic pain disability.
The Vice-Chair concluded that the worker had entitlement for chronic pain disability. Accordingly, there was no entitlement for psychotraumatic disability, because stacking is not allowed.
The appeal was allowed in part.