WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100094
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: January 25, 2010
PARTICIPANTS: Worker, Worker’s Representative
ISSUE
The worker is objecting to the February 6, 2008 decision which reduced the worker’s benefits to partial loss of earnings benefits following the conclusion of Labour Market Re-entry (LMR) services. The worker contends she is unemployable, contrary to the April 28, 2009 decision.
HOW THE ISSUE ARISES
On February 4, 2003, while employed as a cleaner, the worker injured her lower back lifting an industrial mop bucket full of water. The worker was 36 years old at the time of injury and had been with her employer for only one month.
The worker’s claim for a lumbar strain was allowed for health care and full loss of earnings (LOE) benefits. Treatment was conservative, consisting of therapy and medication. A return to modified work was attempted in April 2003, however, it was unsuccessful. The worker underwent a Regional Evaluation Centre (REC) assessment in July 2003 – although no restrictions for physical activity were recommended, it was recognized that prolonged standing, prolonged sitting, repetitive bending and heavy lifting could increase her symptoms.
Entitlement to Chronic Pain Disability (CPD) was accepted in the claim – the worker was awarded a 35 per cent Non-Economic Loss (NEL) award in November 22, 2006. As a result of her permanent impairment and the employer’s inability to offer modified work, the worker was referred for LMR services in late 2006.
The worker underwent LMR services in early 2007 in the approved Suitable Employment or Business (SEB) of Other Elemental Service Occupations. She began ESL in March 2007 and completed it in December 2007, despite numerous absences, attaining the required grade 6 level of functioning. The then underwent Job Search Training and completed the LMR program on January 25, 2008.
Following the completion of LMR services, the worker’s benefits were adjusted to partial based upon her ability to secure entry-level wages in the SEB for which she was trained. The worker objected to this decision, claiming she was competitively unemployable.
Upon receipt of her completed Objection Form, the adjudicator upheld the decision to adjust the worker’s benefits following the completion of LMR and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
18-03-02 Payment of LOE Benefits
19-03-03 Determining Suitable and Available Employment or Business, and Earnings
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the worker’s sworn testimony, the applicable law and policy and for the arguments presented.
The worker testified she underwent LMR services for approximately six months, where she took ESL and math. She stated she experiences pain in her shoulders, left upper leg, stomach and panic attacks. When asked if she has searched for work following the completion of LMR services, she indicated she has not as she believes she is permanently disabled. She indicated her physician stated she cannot return to work.
The worker advised she is still receiving cortisone injections for her pain every three months for her back – they help only a little after receiving them, but then they wear off. She also indicated she takes medication for stress, for her stomach, for her ulcer, for her cholesterol, diabetes and her pain, though she testified she has not taken much Oxycodone for the past six months and limits her intake to one per day.
An average day consists of the worker waking up at 9:00 or 10:00 am – she dresses on her own. She does nothing in the morning and in the afternoon, merely sitting up, getting up, depending on her pain, and often watching television. Sometimes she prepares food, at other times it is her sister who does so. She testified she does not sleep much, only 1-2 hours at most. Her sister and stepmother help with the cleaning of her home.
The worker indicated she supports herself with the partial LOE cheques she receives. She confirmed she is able to stand for 15 minutes on average, and is able to walk 10 minutes, though she can only lift small items and has difficulty bending down. She confirmed she had applied for Canada Pension Plan Disability benefits, however, was declined.
Mr. Mehra reviewed the worker’s restrictions and indicated she is limited insofar as her activities of daily living. He was of the view that given a myriad of factors, namely, her level of education, her work history, her injury, and her inability to return to work, she was competitively unemployable and should be entitled to full LOE benefits.
Review of the medical information confirms minimal objective findings – CT scan of the spine conducted in late 2003 was within normal limits. Dr. Soon-Shiong, orthopaedic surgeon, indicated in his 2004 report the worker had no clinical or radiographic findings of any major significance and he reassured her no restrictions would be placed – he encouraged her to be as active as possible. The worker was also assessed by Dr. Chen, physiatrist, who, following EMG studies, concluded her examination had been within normal age-adjusted limits.
The worker’s impairment was predominantly on the basis of her perceived pain, hence the CPD award and NEL quantum.
The worker’s description of her physical capabilities at the hearing appeared consistent with the REC report of 2003, i.e. she had difficulty with prolonged standing, prolonged sitting, repetitive bending, and was limited to lifting lighter items. I find the worker’s selected SEB falls within the above physical precautions, and several occupations within her SEB noted in the LMR plan would therefore be within her physical precautions.
The worker testified and the file information supports she is restricted insofar as her activities of daily living, such as cleaning and engaging in sporting activities with her children. However, despite the degree of reported pain and the documented depression, I do not find the medical information and the worker’s testimony supports an inability for her to engage in work within her SEB which is light, and falls within the limited physical strength level.
CONCLUSION
I conclude the worker is not competitively unemployable and that she remains capable of securing work within the SEB for which she was trained.
The worker’s objection is therefore denied.
DATED February 23, 2010
L. Diaz
Appeals Resolution Officer
Appeals Branch