WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20100033
OBJECTION BY: Worker
EMPLOYER: Out of Business
ISSUES
The worker is objecting to the June 6, 2009 and August 18, 2009 decisions denying temporary total disability (TT) benefits from April 22, 2009 to June 27, 2009 when he returned to working as a commissionaire however working part-time hours. Although the worker did eventually return to work performing his full time duties (40 hours per week) effective October 2009, he feels that he is unable to sustain this employment and should be determined to be totally unemployable. In the alternative, he feels he should be determined to be employable on a part-time basis only.
HOW THE ISSUES ARISE
Under claim XXXX5672 this worker was injured on January 18, 1986 when a door hit him in the head while hauling road material causing him to sustain a neck injury. A diagnosis of whiplash was made and on April 18, 1976 he was granted an initial 5 per cent permanent disability award in recognition of his permanent neck injury.
Under the most recent claim XXXXXXXX the worker was granted entitlement for hand/arm vibration syndrome (HAVS) also known as white hands syndrome as well as for bilateral carpal tunnel syndrome (CTS). This was the result of his work as a miner/driller dating back to 1987. Under this claim the worker was initially granted a 6 per cent permanent disability award for CTS in both wrists, a 4 per cent permanent disability award for HAVS for both hands/arms and a bilateral enhancement factor of 2.5 per cent for a total permanent disability award of 12.5 per cent.
As this worker's condition deteriorated, a further pension assessment was conducted on April 16, 2009 in Ottawa. At this time the Workplace Safety and Insurance Board (WSIB) medical consultant conducting the permanent disability examination noted deterioration in the worker's neck and bilateral hand, bilateral arm and bilateral wrist conditions. As a result of this assessment the worker's permanent disability award was increased to 12 per cent for the left hand/arm/wrist, 10 per cent for the right hand/arm/wrist, with a bilateral enhancement factor of 5 per cent retroactive, with arrears paid three months prior to Dr. Bedard's October 4, 2007 report. Moreover the permanent disability award for the worker's neck was also increased to 15 per cent with arrears paid three months prior to the request for physiotherapy of June 26, 2007.
Following his permanent disability reassessment of April 16, 2009, this worker did immediately return to work as a commissionaire however subsequently contacted his case manager on May 5, 2009 informing that he had been unable to work since April 22, 2009 because the pain medication he was taking caused him to fall asleep on the job. The case manager reviewed the worker's most up to date medical information and determined that the May 1, 2009 most up to date medical information from Dr. Bedard simply noted increased weakness and numbness bilaterally in the worker's hands and arms. Complaints of cervical pain, weakness and numbness in both hands were also noted as well as limitations on lifting and use of upper extremities. As there were no comments or concerns noted with the prescribed medication the case manager concluded that the medical information on file did not support a further deterioration in the worker's permanent disability level (as was assessed on April 16, 2009) or his ability to return to work. As a result the worker's lost time beyond April 22, 2009 was denied. This was outlined in the case manager's decision dated June 11, 2009.
As the case manager indicated that she would be willing to review any additional medical information in support of lost time, she agreed to review a June 2, 2009 medical report which was later received from Dr. Bedard. Upon review of the medical information the case manager reconsidered her decision however upheld her prior decision noting that the limitations provided by Dr. Bedard had not changed. This was clearly outlined in a letter dated June 11, 2009.
On June 22, 2009, Dr. Bedard wrote to the WSIB as he believed that the June 11, 2009 decision by the case manager was based on a misunderstanding on the part of the case manager regarding the two medical progress reports he had completed. In his letter he clarified that the worker was actually off work due to pain in both hands which kept him awake at night and then caused him to then fall asleep while at work. This medical information was then referred to the WSIB medical consultant for further review and opinion. On August 18, 2009 however the case manager again upheld her previous June 11, 2009 decision denying the lost time. This was also outlined in a decision letter dated August 18, 2009.
The worker is now objecting to the June 11, 2009 and August 18, 2009 decisions.
AUTHORITY
The Workmens' Compensation Act (R.S.O.) 1970 and Operational Policy Manual Document:
18-06-03 Definitions for Adjudicating Pre-1998 Claims
METHOD OF RESOLUTION
It was agreed that the appeal be handled as a decision without hearing. The worker was given an opportunity to provide written submissions however simply relayed his concerns via telephone conversations with me which I have clearly documented on November 25, 2009 and December 21, 2009.
ASSESSMENT OF THE EVIDENCE
In reviewing this objection, I have had regard for the claim file information, information provided by the worker during telephone conversations on November 25, 2009 and December 21, 2009, as well as for relevant policy and legislation.
Throughout my discussions with this worker it appears that he feels he is still being misunderstood by the Operating Area. As such, I attempted to clarify the situation. The worker indicated that he had to stop working effective April 22, 2009 from his commissionaire job because he was having a lot of trouble sleeping at night. He confirmed that he only sleeps two hours per night as during the night, (while sleeping) he gets a lot of pressure at the end of his fingertips which causes him to wake up. He indicated that he also wakes up because from his forearm down to his fingertips he gets extremely cold/freezing for some reason. Although he acknowledged that this is likely the result of poor circulation, he said he still felt he had been misunderstood by the Operating Area as the medications were not causing the problems but they were also not helping resolve his problems. He also confirmed that he has not been sleeping well since having compensable left sided CTS surgery in June 2008 and that this problem has been ongoing ever since. He has seen his doctor about these problems and he has since been prescribed about five to six different medications however these have not helped. He has even taken Oxycontin at one point but this medication was apparently too strong for him and as a result, he was falling asleep everywhere. At this time, he stated that he would not have been able to continue driving to and from work as well as continue working job for eight hours as a commissionaire for five days per week. The worker is therefore requesting that he be determined to be unemployable or that at the very least his working days be reduced to part-time with the WSIB paying him the difference.
Since he stopped working effective April 22, 2009 this worker did return to work (on a part-time basis) effective June 27, 2009. During our telephone conversations, the he said that he only returned to work on a part-time basis (June 27, 2009) as he was apparently off work too long prior to returning to his work as a commissionaire and therefore lost his permanent post where he was working 40 hours per week. He therefore worked part-time from June 27, 2009 to October 2009 where he has now returned once again to a permanent post working 40 hours per week. Although he did return to working full-time (40 hours per week), he confirmed that he misses many days of work as he feels he cannot really sustain working 40 hours per week. He did say that he could likely manage part-time only if he was compensated for the other days as at the present time, he is struggling to go to work as much as he can as he needs the money.
He further indicated that he often falls asleep at his desk (small naps) where he can't be seen and this is how he has been managing since returning to work on June 27, 2009. He has also managed to change his shift from 5:30 a.m. to 1:30 p.m. which then lets him get home a little earlier and more importantly beat the traffic as he commutes from Quebec to Aylmer which is about a 25 to 30 minute commute (one way) without traffic.
Finally he has also informed that his doctor has now diagnosed him with having bursitis in the left wrist for which he had CTS surgery in the past. His left hand is also now currently burning because of the bursitis.
ANALYSIS
Although it does appear that the worker's problem was initially misunderstood, it appears that this was later clarified in a letter sent to the worker dated October 1, 2009 by the Director of Pre-1990 Claims (Mr. John Jachna). In his letter Mr. Jachna did in fact confirm that on June 22, 2009 Dr. Bedard wrote to the WSIB and clarified that this worker was actually off work due to pain in both hands which kept him awake at night therefore causing him to fall asleep at work. As such this medical information was then referred to the WSIB medical consultant for his review and opinion. Although the worker did add more details surrounding his objection during our telephone conversation, I accept that all in all the Operations Division did actually understand the issue at hand.
I have since reviewed the medical reports sent in by the worker's family doctor dated May 5, 2009; June 2, 2009 as well as June 22, 2009 and agree that although this worker is having trouble sleeping at night, he is not totally disabled from working. This worker did return to work as a commissionaire and these duties appear to be in line with the limitations provided by the doctor on the reports previously mentioned. The doctor has indicated limitations for lifting and use of upper extremities only which is not an issue when working as a commissionaire.
The WSIB medical consultant did review this medical information and according to his opinion the reports from Dr. Bedard do not offer sufficient objective medical findings supporting that this worker is unable to work in his regular full time job as a commissionaire. Even if this worker is being prevented from sleeping because of his pain in his forearms and hands, this worker should be consulting with his family doctor to continue working at resolving this issue. Nontheless, many individuals even without injury suffer from sleep disorders (i.e. sleep apnea) which also prevents them from sleeping at night however they are still required to continue working full time jobs and working with their doctor to help resolve the problem. I therefore see no reason to determine that this worker is unemployable or to reduce this work hours to part-time status.
As such the evidence suggests and I conclude that this worker should still be able to perform his normal duties as a commissionaire on a full time basis working 40 hours per week despite having trouble sleeping at night. I therefore agree with the WSIB medical consultant's opinion as well as the claims decisions dated June 11, 2009 as well as August 18, 2009 denying the worker's lost time from April 22, 2009 onward.
CONCLUSION
The worker's objection is denied.
Dated: April 12, 2010,
S. Godin
Appeals Resolution Officer
Appeals Branch