Worker v. Employer, 2009 CanLII 50561

Appeals Resolution Officer Decision

Decision Number: 20090040
Objection By: Worker
Employer: Not Participating
Representative: Worker
Hearing Date: June 11, 2009
Attendees: Worker, Worker Representative

Issues

Entitlement for rheumatoid arthritis on an aggravation basis
Loss of earnings (LOE) benefits from November 11, 2007 and labour market re-entry (LMR) services due to the unsuitability of the modified job of sales associate

How the Issues Arose

On June 3, 2006, while employed as a stock manager, the worker developed a bilateral hand/ wrist injury. The initial diagnosis was repetitive strain injury (RSI). The worker was seen at the hand program where the diagnosis of RSI was confirmed. Permanent restrictions and modified duties were recommended. Her restrictions were for no repetitive movement of hands against restrictions, no repetitive gripping, forceful pinching, rotation, pulling, pushing, lifting, and maintain work surface at work level. The modified sales associate job was offered. The return to work (RTW) co-ordinator from the hand program, in the November 2, 2007 discharge report, considered the modified duties assigned to the worker to be safe and well within her restrictions. The worker returned to modified work on part time hours on November 27, 2006.

In September 2007, she was rated for her non-economic loss (NEL) award at 10%.

The worker stopped working on November 11, 2007 because she was unable to continue with the modified job. The medical report of November 2007 gave no objective clinical findings to support the worker’s inability to do any work. The evidence indicated that the bilateral hand condition was not worse than the level recognized by the NEL award. According to the January 11, 2008 ergonomist report, the job demands in the modified sales associate position did not exceed the worker’s medical precautions and should not contribute to an aggravation of the bilateral wrist injury. The ergonomist again confirmed the suitability of the modified job in the report of March 26, 2008. As the worker was not totally disabled, and suitable modified work at no wage loss was available, the January 25, 2008 decision denied entitlement to LOE benefits from November 11, 2007.

The worker representative, in the May 20, 2008 letter, stated that the worker had difficulties in increasing her hours and, despite all the efforts that the RTW co-ordinator did, only one on-site visit was made in June of 2007. The worker did the modified job until November 11, 2007 when she could no longer cope. He noted that the worker was not given appropriate notice of the ergonomist’s assessment. He also submitted that the worker’s job caused an aggravation of the rheumatoid arthritis (RA). His contention was that, even without this condition, the job was not suitable for her recognized permanent compensable condition.

Based on the opinion of the Board medical consultant regarding the RA, it was concluded that the RA was not caused or aggravated by the job duties. In the decision dated August 14, 2008, entitlement for the RA on an aggravation basis, and entitlement for labour market re-entry (LMR) services was denied. This decision also upheld the denial of LOE benefits from November 11, 2007.

Authority

Operational Policies:

19-04-06 Suitable Employment

18-03-02 Payment of LOE Benefits

Assessment of the Evidence

All the documentary evidence in the claim file record, the submissions made by the worker representative, the worker’s testimony and the relevant provisions of the legislation and Board policies were considered.

Suitability of the modified job

The worker representative’s submissions included:

The worker was still having difficulties even with the modified duties and hours on November 27, 2006.
On January 1, 2007, her hours were changed and the recommendations were that she should not hang clothes on clip style hangars or perform duties using the PIP system.
The RTW co-ordinator’s progress report of September 11, 2007 seemed to suggest that everything was working to plan but both the employer and worker indicated otherwise. When the employer called on September 13, 2007 they advised that the worker could not do the modified work e.g. hanging clothes and working with customers. The worker stated she was unable to cope.
The worker had pointed out inconsistencies of the evidence gathered. In particular the details of her modified work and what it actually involved. She believes that the assessment of the ergonomist was not based on the modified work duties that she was in fact doing. The duties consisted of collecting clothes that were tried on and then putting them back on the floor after folding, buttoning and zipping them. She had breaks but stacks of clothes would pile up and she felt a responsibility to keep the area tidy by reducing the pile.
The worker was unable to attend the ergonomist’s visit due to a prior appointment. She also was under the impression that the date was still being decided on. She would have brought up her concerns at the meeting.

The worker testified in part that:

The modified job of sales associate was to keep the sections maintained. The duties consisted of folding, keeping sections tidy, colour blocking, buttoning shirts, zipping pants etc. She had to place items from the change room back on the floor. No quotas were placed on her. She performed the repetitive work all day long. She spent four hours putting clothes back on the floor and the rest of the shift folding etc. She did take breaks when folding. Pacing was suggested but it did not work. She also tried the other suggestions but she still had pain.
In the change rooms, there were about 100 pieces that had to be folded etc. She put 10 pieces over her hand and carried everything else over her forearm (about 5 lbs).
She requested a transfer to the men’s section where it is basically the same as the women’s section but the volume was a little less.

File evidence noted:

On November 27, 2006, the worker returned to work on modified duties at part time hours. The occupational therapist/ RTW co-ordinator from the Trillium Health Centre met with the workplace parties to assess the duties in April 2007. Her restrictions were to avoid forceful gripping, the task of hanging clothes on clip style hangers, was eliminated. The rest of the duties were considered suitable. Some pacing techniques were suggested.
On September 13, 2007, the employer noted that the worker could not do the hanging of clothes and working with customers.
Worker’s letter of October 14, 2007 stated that she tried to the best of her ability to work but the swelling, stiffness and pain still persisted.
On December 12, 2007, the worker advised the adjudicator that she was off work since November 11, 2007 because the modified work made her hands worse. She had swelling and pain.
The medical report of November 13, 2007 indicated complaints of pain, stiffness and swelling. This was the same as her NEL assessment.
The ergonomist report of January 11, 2008 stated that the modified sales associate job duties were suitable. The medical precautions as outlined by the hand program report of April 10, 2007 were to avoid heavy lifting, grasping, forceful pinching and rapid repetitive activities of her hands. The duties consisted of providing in-store customer service involving assisting customers to find clothing and sizes, assisting customers to get set up in change rooms, provide alternate sizes or items as requested, folding clothing from the change rooms. Occasionally, the worker would have to hang items and place merchandise back on the store floor. She was not required to hang any pants or button shirts. All folding and handling of merchandise can be performed intermittently throughout the shift. There is no required repetitive or continuous folding. The employer confirmed there were never any specific expectations placed on the worker. Any folding or hanging of clothing is never performed in any repetitive or continuous manner and was not expected of her. She was able to take breaks and walk around as needed throughout her shift. Any duties that were too difficult for her would be assigned to co-workers. The ergonomist also found that the job demands should not contribute to an aggravation of the worker’s bilateral wrist injury.
Worker’s letter of January 28, 2008 stated that it was not “occasional” but “always” that she had to place back the merchandise on the store floor, and even though she did not hang any pants, she did button and fold the shirts, trousers and sometimes skirts when she was stationed at the change rooms. She was engaged in repetitive and continuous folding, putting clothes back on the sales floor, fastening buttons, throughout the day as long as customers come into the store. She was never stopped from doing this as this is what was expected of her. She was not able to take breaks as needed. When she returned from her break, she has to go back to her section and tidy up again folding and fastening as required. This was as per the company policy for every worker. The modified job does demand repetitive and continuous movements even though it may not extend for long hours.
The ergonomist’s report of March 26, 2008, which was in response to the worker’s letter dated January 27, 2008, noted that the worker’s reason with regard to her inability to attend the assessment, and found this unacceptable. Therefore, the assessment went on as planned. As the worker was not working since November 11, 2007, her providing available dates 11 and 15 working days later was not considered acceptable based on the reasoning of having medical appointments. The ergonomist again confirmed that the worker could work at her own pace. No one was standing over her telling her how quickly to work nor was she working on an assembly line requiring her to maintain a certain working pace. Customer flow within the retail clothing store is not continuous throughout the day requiring non-stop use of her hands.

Based on the medical evidence in the claim file, I find that the worker remains partially impaired and fit for suitable modified work. The November 2007 medical report provided no objective clinical findings to support the worker’s inability to do any work. The evidence indicated that the bilateral hand condition was not worse than the NEL level.

With regards to the suitability of the modified duties of the sales associate job, the following was noted:

The reports from the occupational therapist/ RTW co-ordinator and the ergonomist who reviewed the modified duties found the modified job were suitable as they were within the medical precautions as outlined by the hand program. However, the worker strongly disagreed with the duties described. She pointed out that there were discrepancies which she expressed in her letter of January 27, 2008 and again at the hearing. The ergonomist addressed these concerns but there was no return visit to the site or further discussion with the employer regarding the concerns. The ergonomist noted that the worker was able to take breaks and walk around as needed and that the employer had confirmed that all folding and handling of merchandise could be performed intermittently throughout the shift. With regard to the hanging of items and buttoning of shirts, the worker did not have to do these tasks. Any duties that were too difficult for her would be assigned to co-workers.
The worker’s testimony that this is not what occurred as there was an “expectation” that she perform the duties of folding and fastening as required to keep the place tidy.
The employer’s telephone call of September 13, 2007 stated that the worker could not do the hanging of clothes and working with customers.

In noting the job duties presented to the ergonomist, they would be within the worker’s restrictions as outlined in the hand program discharge report. However, the worker’s evidence is that this was not what she actually did. As the worker testified in a straight forward candid manner and was consistent in her statements, I found her to be a credible witness and have given more weight to her evidence. In my view, there is the strong possibility that the job duties outlined may not have been adhered too and this is evident in the employer’s statement in September 2007 when they stated that the worker could not do the hanging of clothes and working with customers. Their statement implies that she was expected to do these tasks and this is consistent with what the worker stated. According to the worker, there was an “expectation” that she perform the duties of folding and fastening as required to keep the place tidy. She testified that she was never stopped from doing this. I also note that, while the employer stated that any duties that were too difficult were to be assigned to co-workers, there does not appear that any specific individual or individuals were assigned to help the worker in such circumstances. This appears to be a case that what was stated on paper was not what was happening in practice thereby ending up with the worker having to exceed some of her restrictions. I also find that the worker is conscientious and has made a concerted effort to do and stay on the modified job for as long as she could.

On balance, I find it is more likely than not that the modified duties of the sales associate job did exceed some of her physical restrictions specifically those of no repetitive movement of hands, repetitive gripping, and forceful pinching when she did the folding, fastening of buttons and putting clothes back on the sales floor. On this basis, I find the modified job that the worker was actually performing was unsuitable. To determine a suitable and available employment or business (SEB), I am directing that the worker be referred for a LMR assessment that should not rule out the accident employer.

With regard to LOE benefits, as the worker is partially impaired and fit for suitable modified work but has not provided any evidence that she was in a self-directed LMR plan, her LOE benefit from November 11, 2007 to the date of her LMR assessment is to be based on a SEB without any training. Should the worker provide evidence of a self-directed LMR plan, the operating area may reconsider the entitlement to full LOE benefits for this period.

Rheumatoid arthritis

The worker representative submitted that the worker’s RA was aggravated by the repetitive movement of the modified work. He obtained information from the internet that stated the RA could be due to repetitive strain injury. He also referenced Dr. McKenzie’s report of May 20, 2009 that stated the repetitive strain was related to her work and it was the original instigator of the worker’s complaints.

File evidence noted:

Rheumatologist, Dr. Montgomery diagnosed rheumatoid arthritis on November 23, 2007. His reports indicate that the RA involved the fingers in her hands, knees, shoulders, ankles and other joints.
The Board medical consultant’s review of June 25, 2008, stated that the RA was an aggressive disease for which the immunosuppressive medications were recommended. He noted that there was clear involvement of both wrists and other joints on physical exam. He opined that the RA is not the responsibility of this claim as it was not caused by the job demands. He questioned whether the worker had RSI to begin with in June 2008 or whether this was the prodrome to the RA.
Neurologist, Dr. McKenzie’s report of May 20, 2009 stated that, over the years, the worker has had a number of complaints. There were musculoligamentous ones relating to repetitive use at her job as well as mild CT complaint. He stated that, over and above that, she has had rheumatoid arthritis and that all these combine to cause her symptomatology. He believed that there is an element of repetitive strain related to her work as the original instigator in these complaints.

Clearly the RA was not caused by the work duties and this is not being disputed. With regard to whether or not the duties aggravated the RA, I have noted the medical documentation on file. Though the worker was doing modified work that exceeded her restrictions, this in itself does not appear to have aggravated the RA. While Dr. McKenzie relates the repetitive strain to her duties, he does not express an opinion with regard to the relationship of the RA to the work duties. However, the Board medical consultant, who carefully reviewed all the medical reports on file, has addressed this issue and opined that the RA was not the responsibility of this claim. Therefore, on balance, I find that the RA was not caused or aggravated by the work duties and, as such, there is no entitlement for it in this claim.

Conclusion

The worker is partially impaired and fit for suitable modified work.
The modified job of sales associate was not suitable.
Entitlement is granted for a LMR assessment and partial LOE benefits (based on a SEB without any training) are in order from November 11, 2007 to the date of the LMR assessment.

The worker’s objection is granted in part.

DATED July 27, 2009

J. Pereira
Appeals Resolution Officer
Appeals Branch