WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20090046
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: June 09, 2009
ATTENDEES: Worker, Worker Representative
ISSUE
The worker is objecting to the future economic loss (FEL) award outlined in the decision letter dated May 17, 2008.
HOW THE ISSUE ARISES
On August 16, 1994 the worker was employed as a packer. She reported a gradual onset of right upper back pain. The diagnosis was tender medial scapula border and soft tissue strain of the shoulder and back. She received conservative treatment.
In September 1995 she was referred for labour market re-entry (LMR) services. Vocational testing identified a suitable employment or business (SEB) of bookkeeping/accounting clerk.
In April 1996 a FEL benefit was granted based on the identified SEB.
In October 1996 she received a 2 per cent non-economic loss (NEL) award in recognition of her right shoulder impairment.
In April 1998 the subsequent R1 FEL award was confirmed based on the identified SEB.
On December 8, 1998 she underwent a neck fusion. Entitlement for neck and back complaints were denied.
A previous appeals resolution officer (ARO) decision September 3, 1999 confirmed the denial of back and neck entitlement. A further objection to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) May 5, 2003 concluded the worker had entitlement for neck and upper back as related to the right shoulder injury.
In April 2001 the final R2 FEL award was confirmed with the previous SEB however average earnings of $12.45 per hour were used. This was based on her being capable of permanent modified duties with restrictions in terms of heavy lifting, repetitive activity, no above shoulder work, no work in an awkward posture. She was also to be allowed micro breaks and have accommodations in place to allow for changes in posture and sound ergonomics.
On July 14, 2003, a return to work advisor reviewed the SEB and concluded with the provision of proper assistive devices, the SEB remained suitable.
In October 2003, the NEL award was increased to a total of 28 per cent.
A review of entitlement for chronic pain disability (CPD) was denied in December 2003. This has not proceeded to the Appeals level.
The worker representative objected to the SEB stating it was unsuitable given the worker’s total compensable condition and he also argued she would be only capable of minimum wage in this job, on a part‑time basis.
Another ARO decision dated November 10, 2004 concluded the SEB of bookkeeping clerk and accounting clerk were not suitable given the worker’s compensable condition and concluded further LMR services would not be in order or cost effective. The ARO stated the medical profile was not indicative of total disability. The worker was motivated to return to work, believed she was capable of doing so and was able to eventually complete her educational program. However given the impairments of her neck, right shoulder and back in conjunction with a significant level of medication, the ARO concluded she would be capable of minimum wage employment on a part‑time basis. The ARO ordered the FEL be recalculated from April 1, 1998 on the basis of part‑time employment (at 24 hours per week) at minimum wage.
The FEL awards were recalculated from April 1, 1998 based on $6.85 per hour, 24 hours per week. This resulted in a large adjustment cheque forwarded to the worker in December 2004.
There was no further contact from the worker or representative for two years. In memo 112 the worker representative contacted the operating area to request a NEL reassessment.
Additional medical reporting was obtained and reviewed by the Workplace Safety and Insurance Board (WSIB) medical consultant. He was of the view there was a worsening in her condition and would be entitled to a NEL redetermination.
In February 2008 the NEL award was increased by 8 per cent for a total of 36 per cent. This increase was for the right shoulder and neck.
As a result of the increased NEL award, the worker representative believed she was unable to perform part‑time employment and requested the FEL award be reconsidered. The operating area indicated an increase of 8 per cent did not change her medical precautions. They confirmed as per the ARO decision of November 2004, she was capable of part‑time employment at minimum wage.
The worker disagreed with this decision.
AUTHORITY
The following document was utilized from the Operational Policy Manual:
18-04-20 – Final FEL Benefit Review.
EXHIBIT
Exhibit #1: March 31, 2006 report from Headache and Pain Relief Centre – submitted by worker representative.
ASSESSMENT OF THE EVIDENCE
The worker indicated the last ARO decision dated November 10, 2004 stated she was able to work 24 hours per week. She testified she did not feel capable of working at all. She last worked in 1998 when she was involved in an LMR program. She is currently 60 years of age and believes her condition has worsened since the 2004 ARO decision.
She explained she had very limited range of motion in her right shoulder and was unable to move it and had very little strength in her right arm. She was able to lift a little bit with her left arm. She added the range of motion of her neck was quite limited and almost totally seized up and she cannot rotate her neck without intense pain. She experiences headaches if she tries to do anything and gets sick and typically this would last two to three days. She takes over the counter medications such as Advil.
The worker had problems walking and her legs were weak and as a result she was unable to go far and she frequently stumbled. She has had no control over her legs. She was able to sit for a little longer and then she would have to lie down in bed.
She advised she had difficulty reaching as well and had a stool in every room and if she could not reach something with her left arm she simply did not. She was unable to lift at all with her right hand as it was very weak.
The worker stated she had trouble with her activities of daily living and trouble bathing. She spends most of her days in her pyjamas and barely goes out. Her sister and daughter come to help out with the household chores. She also mentioned she was losing her voice and had trouble remembering or concentrating on anything, even reading an article.
She experienced disturbed sleep and goes from bed to bed in the house back and forth and sleeps a maximum of four hours per night and drifts off periodically during the day. She cannot drive because she cannot turn her neck and the medication causes drowsiness. She also mentioned she takes sleeping pills.
On a typical day the worker wakes up at 8:00 or 9:00 a.m., has her coffee and takes her medication then she will lie down in bed and watch television. By noon, she gets up, has something light to eat and then lies down again. At 3:00 p.m. she takes her medications and lies down again until 5:00 p.m. when she has something to eat. She does not make meals anymore and eats prepared or fast foods; things she can microwave very easily.
She had surgery to her C5-6 level in 1998 and had no improvement at all from this surgery and stated it was clearly not successful. She saw the neurosurgeon last in 2008 and he stated there was nothing more he could do for her and that she cannot work.
The worker saw Dr. O’Doherty who gave her a cortisone shot but there was no change in her situation and there was no further follow up.
She saw Dr. Zitney, a pain specialist who put her on Oxycontin and stated there was nothing else he could do for her. She sees her family physician Dr. Phillips, approximately once a month for her medication renewal and he has told her she cannot work and gave her a handicap sign.
The worker did not believe she could do any work whatsoever because she spends most of her day in bed and in a lot of pain.
She denied any other health issues but mentioned she had puffy eyes. She has had no other financial assistance from any other source. She is living in a house that was made into four apartments and she cannot afford to move. She currently lives alone and her daughter and granddaughter moved out approximately one and a half years ago. She stopped cooking at least three years ago and sticks to quick microwave meals.
The worker advised that every time she sees her doctor he says she cannot work and she sees her condition getting worse. At present, she can get up from bed for short periods of time during the day. She turns her whole body in order to look at anything. She walks one block to Dr. Phillips and another block to the pharmacy to refill her prescription. She added the less she does the better because it means less pain.
The worker representative submitted the worker is currently 60 years of age and has not worked since 1998. He was of the view since the 2004 ARO decision her condition has worsened. He referenced the WSIB medical consultant’s memorandum 115 stating there was a worsening of her right shoulder and neck condition but he indicated the restrictions were appropriate. The worker representative was of the view the medical consultant never treated the worker and was the only doctor to say she was able to work 24 hours per week and all her attending physicians and specialists have indicated she was unable to work at all. He referred to Dr. Zitney’s report entered as Exhibit #1 as evidence supporting she was unable to work. He also referred to the September 25, 2006 report from Dr. O’Doherty stating she cannot use her upper limbs and she has severe neck restrictions.
The worker representative referred to the November 28, 2006 report from Dr. Moulton who confirmed the worker had no range of motion in her neck and severe pain and she only had some reasonable range of motion in her right arm but he indicated she cannot work. In addition, Dr. Phillips in his letter of January 15, 2007 advised she could not raise her arm or lift her neck and her condition was worse.
The worker representative indicated as a result of the NEL reassessment in February 2008 her NEL award was increased to 36 per cent and the reporting showed her range of motion was worse than the previous NEL assessment. He also referred to Dr. Phillips’ letter of June 4, 2008 outlining the numerous medications she was taking. He was of the view based on this information and the worsening of her condition, the worker was unemployable and entitled to 100 per cent FEL benefits or at least a FEL benefit demonstrating she was capable of working fewer than 24 hours per week.
ANALYSIS
This ARO has conducted a comprehensive review of the claim file and carefully considered the worker’s testimony as well as the submissions made by the worker representative.
The worker sustained a gradual onset injury in 1994 that resulted in permanent restrictions on heavy lifting, repetitive activity, no above shoulder work, and no work in awkward postures. She was also to be allowed micro breaks and have accommodation to allow for changes in posture. She received LMR services and a SEB was identified for bookkeeping and accounting clerk. Her FEL benefit in 1996 was based on this SEB and the SEB wages.
In October 1996 she received a 2 per cent NEL award in recognition of her right shoulder impairment. Both the initial D1 and subsequent R1 FEL award was based on the identified SEB. She last worked in 1998 at the age of 49. In December 1998 the worker had neck discectomy and fusion surgery at C5-6.
As a result of a WSIAT decision in May 2003, entitlement was extended to the neck and upper back as related to the original right shoulder injury.
In October 2003 the worker’s NEL award was increased to 28 per cent to include the additional neck and upper back entitlement.
The ARO decision in November 2004 concluded the SEB was not suitable given her compensable condition and further LMR services would not be in order. The ARO ordered the FEL award be reconsidered based on a minimum wage of $6.85 per hour, 24 hours per week effective April 1998. This implementation date coincides with the R1 FEL review period.
A further NEL redetermination conducted in February 2008 resulted in an increase in the worker’s NEL award from 28 per cent to 36 per cent.
The worker representative argued based on this increased NEL award, the worker was unemployable and entitled to a full FEL benefit.
Policy 18-04-20 “Final FEL Benefit Review” states, in part:
The WSIB shall not review the FEL payments more than 60 months post-initial FEL determination, unless:
- before the 60-month post-initial FEL determination period expires, the worker fails to notify the WSIB of a change in circumstances or engages in fraud or misrepresentation in connection with his or her claim for benefits under the insurance plan, or
- the worker was provided with a labour market re-entry (LMR) plan and the plan is not completed when the 60-month post-initial FEL determination period expires, or
- after the 60-month post-initial FEL determination period expires, the worker suffers a significant deterioration in his or her condition that
- results in a redetermination of the degree of permanent impairment
- results in an initial determination of a permanent impairment
- is likely, in the WSIB’s opinion to result in a redetermination of the degree of permanent impairment, or
- after the 60-month post-initial FEL determination, the worker suffers a significant temporary deterioration in his or her condition that is related to the injury.
Further in this policy, it states, the WSIB may review the FEL benefit after the 60-month post-initial FEL determination if the worker suffers a significant deterioration in his or her work-related condition.
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
To determine if there is evidence of a significant deterioration, decision-makers should consider factors such as:
- the need for further active medical/health care intervention to improve the worker’s condition
- establishment of objective medical evidence to support a significant deterioration
- evidence of increased medical precautions or whether functional abilities have changed (i.e., evidence of an increase in restricted activities may support a finding of significant temporary deterioration)
- job change impacts.
I have reviewed these concerns and note at the time of the 2004 ARO decision, the worker representative argued the worker was only capable of a minimum wage job on a part‑time basis and the worker had agreed with this. At that time the ARO ruled the SEB was not suitable given her compensable condition and indicated given her personal and vocational characteristics, she would be best suited for a minimum wage job on a part-time basis at 24 hours per week. Her physical restrictions have remained the same.
Her NEL award of 28 per cent already included the right shoulder and neck impairment. Since then the NEL award was increased by a further 8 per cent to a total of 36 per cent for additional neck impairment. However, this NEL quantum does not equate with total impairment. Her permanent precautions have remained essentially the same.
The WSIB medical consultant reviewed the file on several occasions with the additional medical reporting. He confirmed the right shoulder and neck findings made it appropriate to arrange a NEL redetermination. However he added the same restrictions as before were appropriate. I accept this opinion as the WSIB medical consultant had the benefit of the entire file with all medical reporting and investigations.
The worker has not worked for a number of years and is currently 60 years of age. At the time of the R2 FEL decision in 2001 she was 53 years of age.
She acknowledged she walks one block to her family doctor and another block to the pharmacy. She stopped cooking for herself and her family by 2006.
Based on her testimony and her appearance, the worker presents as more disabled than the file evidence would suggest and looks older than her stated age. She spoke of her inability to go out and that she spends most of her day in bed. This was not supported by the file evidence pertaining to the compensable impairment only. She denied any other health issues and there was no evidence on the file record to suggest she had any other non‑compensable factors.
However, given the compensable injury alone and the 36 per cent NEL award, the worker should be capable of some type of employment given the quantum of the NEL award. Although she has various complaints of pain given she is in receipt of a 36 per cent NEL award it would be expected she would experience pain on a somewhat regular basis.
The worker demonstrated an ability and willingness to work on a part‑time basis at minimum wage at the time of the 2004 ARO decision. She has now stated her condition has worsened since then. The medical documents submitted to the file and presented and referenced by the worker representative at the hearing indicated she was unable to work even on a part‑time basis.
On review of the medical reporting, I find the objective medical evidence has not significantly changed to the extent the worker would be considered unemployable. I am not persuaded by the evidence on file she is totally unemployable as a result of her compensable injury of 1994 covered under this claim file.
From the evidence on file and the policy requirements, the worker’s permanent precautions have not changed significantly. She is not engaged in any significant active medical treatment. Her ability to work on a part-time basis at a minimum wage job has remained the same. I also find no basis with which to alter the projected part-time hours lower than 24 hours per week.
CONCLUSION
The worker’s objection is denied.
The FEL award using minimum wage of $6.85 per hour, on a part time basis of 24 hours per week is confirmed.
DATED July 20, 2009
G. Pinto Appeals Resolution Officer Appeals Branch