CSST- fireworks

This is a complex and laborious file in which the client, in spite of some setbacks, did not get discouraged and for which she must receive all the credit. She did not come to see me at the beginning of the incident, which is why I have to explain the stages prior to my involvement.

The client suffered a work accident during a kart race, a marketing activity for her employer. She injured her right foot with a fracture of the cuboid bone as well as a sprained right ankle. Her injuries did not evolve positively; a complication arose under the aspect of a new diagnosis recognized by the CSST:  a right foot algodystrophy reflex. One of the medical synonyms of algodystrophy reflex is the sympathetic dystrophy syndrome, diagnosis which gives you chills on the back since pain is an intrinsic part of it.

Her attending physician agreed, at first, by giving her functional limitations of category IV of the Institut de recherche en santé et sécurité du travail du Québec. The functional limitations, regardless of the location of the injury, are usually divided into 4 categories and the fourth category is the one which has the most important limitations; it adds, to the limitations of a purely physical nature, a consideration relevant to chronic pain which prevents any gainful employment except, at best, part-time work only, according to a schedule established by the worker.

The CSST received the attending physician’s evaluation report by which they were bound until further notice.  It was very unlikely that the CSST would accept this report without reacting; they thus asked the opinion of their designated medical practitioner who allowed important limitations of category III but excluding all considerations of the chronic pain, even if it implies that the chronic pain justifies some of them, as it appears in the following description:

  1. Client must be encouraged to do sit-down work with travel that would be required to go to or leave work.
  2. Client should have the possibility to have a period of 5 to 10 minutes every hour to do stretching or flexibility  exercises.
  3. She should not have to do work that requires standing, running, jumping, crawling, working in a crouched or kneeling position.
  4. She should not have to work on ladders or stepladders.
  5. It should be noted that the client is impaired in her right foot and that it would be necessary to consider the fact that to drive a vehicle properly, she would have to either be able to show that she is able to drive safely or that she could get formal  permission to drive a vehicle with her left foot.
  6. Client should not have to carry loads other than in a backpack style, ideally the lightest possible, and evaluating in a discretionary manner, to loads of about ten kilos which she could normally carry this way.
  7. In conclusion, the client should have the possibility to use a cane when necessary and a removable travel boot also when necessary.

The CSST transmitted a copy of the designated practitioner’s evaluation to the attending physician who agreed with the category III limitations but maintaining nevertheless a permanent impairment which results in a single payment, the compensation for physical damages, to which clients often attach too much importance at the expense of the income replacement compensation.

However, there was a problem: the attending physician acted without the knowledge of the client who should have been informed immediately. The CSST, unaware of this, rendered the decision based on the attending physician’s evaluation ; they declared themselves bound by his conclusions relating to the evaluation of the permanent impairment and to the functional  limitations of the attending physician and they declared that the worker is able to  work as an employee at a reception and information desk where, from the perspective of the CSST, she will have the opportunity to stretch her feet from 5 to 10 minutes every hour.

That is when the client consulted me.

I then exerted, in the name of the client, the appropriate remedies against the two decisions rendered by the CSST ; as a result, the Service de la révision administrative rendered two decisions; the first one declaring void the evaluation of the worker’s physician on the grounds that by failing to inform the worker of the contents of his report, he had ceased to act as the attending physician and the second decision, to declare premature the decision of capacity since the functional limitations were not yet definitively established.

These decisions had the effect of forcing the CSST to follow the procedure for medical assessment provided by law, which provides that in the presence of two differing evaluations from the worker’s physician and the physician designated by the CSST, a third evaluation is requested from a physician member of the Medical Assessment Board, who declared a permanent impairment of 6% and the functional limitations described below  :

  1. Client should be encouraged to do a job that would be essentially sitting with travel necessary to get to work.
  2. She must be able to plan, every hour, to have a period of 5 to 10 minutes to do stretching exercises..
  3. She must not do work that requires standing, running, jumping, crawling or working in a crouched or kneeling position.
  4. She should not have to work on ladders or stepladders.

The CSST made decisions that resulted from this assessment; it endorsed the conclusions of the physician member of the Medical Assessment Board by which they are bound as they were bound before to the decisions taken by the attending physician and reinstated the  job  of reception and information clerk.

This time, the administrative review made two decisions confirming that in the first instance even if her lawyer invoked with strength and conviction that, in doing so, the CSST illegally reconsidered the decision on the permanent impairment, which leaves the worker no other choice but to file a dispute at the Commission des lésions professionnelles.

The time had come to obtain a medical evaluation by our own medical expert to challenge that of the member of the Medical Assessment Board.  The conclusions of the worker’s medical expert chosen by yours truly were to the effect that the limitations fell under category IV, which could not be detrimental before the hearing at the Commission des lésions professionnelles.

The hearing finally arrived; the worker’s lawyer asked the Commission des lésions professionnelles to proceed on the medical questions and to keep the question of capacity to work at a reception and information desk for a later hearing: indeed, the question of capacity depends very much on the answer to the question of functional limitations; practically, the category III means that a certain capacity of work remains; the category IV, none.  If the answer is negative, it may become appropriate to obtain an expertise by an occupational therapist on the worker’s real capacity to do the work even if the limitations belong more to category III than category IV. Indeed, occupational therapists and not the doctors are the real specialists for the capacity to work.

The decision of the Commission des lésions professionnelles was at last rendered. It resolved the questions that were raised as follows:

  1. It partly invalidated the decision rendered by the Révision administrative de la CSST and gave the functional limitations described as follows :
    Existence or evaluation of the functional limitations:
    • The client must be encouraged to do work which would be essentially sitting with travelling to go to or leave her work.
    • She must be able to have, every hour, a period of five to ten minutes to do stretching or flexibility exercises.
    • She must not do work that requires standing, running, jumping or working in a crouched or kneeling position.
    • She should not have to work on ladders or stepladders.
  2. and reconvened the parties to a later hearing to solve the question of suitable employment.

The end of the story: the limitations selected belong to category III and the question of capacity will be discussed at a later hearing.

The worker’s lawyer however noticed that the Commission des lésions professionnelles had omitted to rule on the issue of permanent impairment for which they were seized in the setting up of the decision even if it rules clearly and unequivocally in its reasonings.

Thus the lawyer asked the Commission des lésions professionnelles to rectify its decision, which it did willingly, which had the effect of restoring the worker’s attending physician‘s permanent impairment against that of the ruling of the Bureau d’évaluation médicale.

Nevertheless, it became imperative to obtain an expert evaluation by an occupational therapist, which was done. The conclusion of the expert was that the worker is unable to perform the task of a reception and information clerk. There were only two employments of this kind existing in the suburban town for which she had no choice but to go by car while her driver’s license was suspended; moreover, each trip would have cost $30.00 each way by taxi. The expertise was filed in the file.

There was a new hearing at the Commission des lésions professionnelles during which the client was struck with a painful episode that required a postponement. Back from the postponement, the administrative judge made it clear to the worker’s lawyer that it was useless to continue the hearing as it would allow the appeal; consequently, the decision was rendered; the worker was declared unable to perform the work at a reception or information desk and the file, returned to the CSST for the rehabilitation, if possible, to continue.

After some procrastination on the part of the CSST but also on behalf of the worker who cannot admit to herself un-employability, the decision was rendered; the client will receive the income replacement indemnity until the age limits permitted by law.

This file, which is an example of the perseverance of the client, shows that several roads lead to Rome.