Worker v. Employer, 2010 CanLII 49223

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100095

OBJECTION BY: Worker

EMPLOYER: Not Participating

HEARING DATE: June 17, 2010

ATTENDEES: Worker, Worker Representative

ISSUES

1. Suitability of the modified job and

2. Level of disability from February 23, 2009

HOW THE ISSUES AROSE

On October 24, 2006, while employed as a deli manager, the wire from the cheese cutter snapped and jerked the worker’s right arm. The initial diagnosis was rotator cuff tendonitis right shoulder and a small tear of the right deltoid. Initially, there was no lost time as the worker continued to work doing light duties for a brief period of time and then returned to full duties as a supervisor given that she was able to monitor her own activities. The worker had a recurrence in August 26, 2007 that was allowed. Surgery (repair of the tear) was done in April 2008. The employer offered pre-accident accommodated modified work that the worker returned to in October 2008.

Based on the shoulder and elbow clinic report of December 5, 2008 that confirmed the worker was partially disabled and fit for modified work, loss of earnings (LOE) benefits were granted to December 1, 2008.

The employer made another written offer on December 24, 2008 that included a graduated increase in hours. The modified work was considered to be within the precautions as outlined by the medical report of December 2008 and the objective medical information in the file. The worker was advised that she was not entitled to LOE benefits until she participated in the RTW plan. The worker returned to work on December 29, 2008 on a graduated return to work plan, attaining her pre-accident hours on January 28, 2009. As outlined in the decision dated February 3, 2009, the worker was granted partial LOE benefits in keeping with the graduated RTW plan. Subsequently, she was also granted full LOE benefits from December 1 to 29, 2008 on the grounds that she was partially disabled but a return to work plan was not in place, nor was the return to work intervention that was proposed and suggested implemented.

In the decision dated March 17, 2009, the worker was granted partial LOE benefits from December 29, 2008 to January 26, 2009, the date the modified work plan ended. The additional period of physiotherapy from January 26 to March 9, 2009 was approved. It was determined that a permanent impairment had resulted and maximum medical recovery (MMR) was reached by March 9, 2009, the date that the physiotherapy ended.

On September 30, 2009, the worker representative was advised that there was no entitlement to the thumbs in this claim.

In December 2009, worker was rated at 14% for right shoulder non economic loss (NEL).

AUTHORITY

Operational policies:

19-04-06 Suitable Employment

18-03-02 Payment of LOE Benefits

ASSESSMENT OF THE EVIDENCE

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.

The worker representative’s stance is that the modified work was not suitable. He noted that the issue was clouded by the other claim for bilateral thumbs. He submitted that the worker made a genuine effort by returning to work several times, however, her right shoulder condition continued to deteriorate. She improved when she was off work, but had a recurrence as she ended up doing exactly the same type of work. Dr. Jakovcic authorized the worker to be off work until she saw the specialist. He noted that physiotherapy was denied because the worker had reached a plateau. He submitted that this was in contrast to what the specialist stated.

The worker’s testimony in part:

She started with the accident employer’s in 1995 in the dairy department. Her regular duties consisted of doing approximately 100 packages of cheese an hour but she did not do this on modified work. She also packaged meat and became meat manager. She worked five shifts, 48 hours a week.

After her surgery, she returned to modified work. She was instructed to do what she could starting at 4 hours and increasing to regular hours and duties.

In October 2008, she did paper work for 1 hour a day; vacuum packing and trimming of bags; re-arranging; lifting windows to change prices on tarts etc. She re-injured her right shoulder and went off work from October 6 to 15, 2008.

She returned to work on December 29, 2008 to the same job and worked to February 2009. She worked behind the counter but couldn’t serve and there was constant lifting. The modified duties included constant gripping and pinching especially with the paper work. There were repetitive duties like pricing. She had to stretch to get to the weight machine. She had to put things in the display area piece by piece. There was pushing and pulling as the trucks of material had to be moved. She was working in a cold area.

In January 2009, there were no managing duties. She did packaging for an average 2 hours/ shift and on some days did it straight through. The vacuum lifting lid was about 20 lbs which she lifted with her right hand for an average of 1-2 hours. She did labelling and pricing for about 2 hours. She had to repetitively pick up from a tray with her left hand to place on a scale. She picked up the label with her right hand. She used both hands to date and price - one to pick up and the other to move. She had to stretch about 2 ft to pull the truck. She did this for about ½ to 4 hours. She couldn’t do the demo job as it was repetitive and she had to use both hands.

She can’t do returns because she would have to pick up items and it was repetitive work.

When she returned to regular work in February 2009, she was also cutting cheese, serving customers and putting heavy boxes on shelves.

In February 2009, she received physiotherapy, acupuncture and massage therapy.

The last modified work offer was made in January 2009. She has been in contact with the employer but there was no further offer of modified work. She spoke to the employer a couple of weeks ago.

File evidence noted:

Claim 24035601 was established for the October 5, 2005 right thumb injury. A permanent impairment was not evident.

The worker advised that the cheese/meat counters are above waist level and require some bending. The stretch is far. She did inform the supervisor of her problem.

The worker returned to modified work, graduated plan, on October 6, 2008 but stopped on October 15, 2008 due to pain. The new return to work graduated plan was as per the correspondence of December 24, 2008. She was to start at 4 hours graduating to 8 hours by February 2, 2009 and to regular hours and duties by February 9, 2009. The employer stated that, at no time, would she be instructed to perform work that exceeded her medical restriction. The duties were to manage and do office work/ paper work. The limitations were: lifting up to 2 kg occasionally and 1 kg frequently; no above shoulder activity; no repetitive movement of right shoulder; limited ability to grip, pinch, turn and flip; limited pushing and pulling with right arm and no exposure to cold. She returned to graduated work effective December 29, 2008.

Dr. McGoey’s report of September 19, 2008 noted complaints of residual stiffness and soreness in right shoulder. She was to continue exercising for range of motion and strengthening.

On September 24, 2008, Dr. McGoey noted residual stiffness in the shoulder. He stated that the worker cannot do heavy or overhead work and light duties which would not involve much with her right shoulder. On examination she could abduct to about 95 degrees. She had residual stiffness in her shoulder. She declined cortisone injection. She was to continue exercising and strengthening.

Dr. Smith, physiatrist’s report of September 26, 2008 stated that the worker had a frozen shoulder and was running into secondary problems with her sternoclavicular joint. She thought that the worker needed to be off work and agreed with Dr. McGoey that she stay off until December 2008.

On December 4, 2008, Dr. McKee, orthopaedic surgeon, noted that the worker continued to have significant symptomology in and around the right shoulder. The shoulder was stable and the arm was neurologically intact. He did not recommend surgery but rather an aggressive course of physiotherapy for a progressive stretching and strengthening program. He thought that she was suitable for light duties with restrictions of no overhead work, no repetitive resisted flexion/extension of the shoulder and no repetitive heavy lifting.

Dr. Smith saw the worker in May 2009 mainly for the thumbs. The shoulder was much better

Dr. McKee, on July 9, 2009, thought that there was no single objective diagnosis that would explain all of her various symptomology. He stated that she certainly has some residual rotator cuff impingement in her right shoulder. However, he thought that there was dramatic functional overlay to her problems. He recommended a functional restoration program (FRP).

Dr. Jakovcic, in her letter of October 14, 2009, stated that every time the worker returned to work, she was often pushed to do more than she should. When she saw the worker on

February 23, 2009, the worker had severe pain in her thumbs radiating up into her forearms and right shoulder pain. She was able to do very light work for very short periods of time if she has frequent rests in between. She should avoid any repetitive work; lifting or above shoulder work; and carrying more than 5 lbs.

Board policy/ guidelines state:

Suitable employment - is any work that

• the worker has the necessary skills to perform, or
• the worker is able to acquire the necessary skills to perform, and
• does not pose a health or safety risk to the worker or co-workers

Job suitability To evaluate the suitability of the job, the workplace parties and/or decision-maker consider the above, and the

• worker's functional abilities
• degree of the worker's impairment and medical prognosis of the injury, and
• worker's aptitude for the job's tasks and duties.

Analysis and findings:

Given the entitlement in this claim is for right shoulder, I have accepted the physical restrictions as provided by Dr. McKee (restrictions of no overhead work, no repetitive resisted flexion/extension of the shoulder and no repetitive heavy lifting).

According to the employer’s offer of modified work, the worker was to start at 4 hours graduating to 8 hours by February 2, 2009 and to regular hours and duties by February 9, 2009. The employer stated that at no time was she to perform work that exceeded her medical restriction. The duties were to manage and do office work/ paper work. The limitations were: lifting up to 2 kg occasionally and 1 kg frequently; no above shoulder activity; no repetitive movement of right shoulder; limited ability to grip, pinch, turn and flip; limited pushing and pulling with right arm and no exposure to cold. She returned to graduated work effective December 29, 2008.

However, the worker testified that, in January 2009, there were no managing duties. She did packaging for an average 2 hours/ shift and on some days did it straight through. The vacuum lifting lid was about 20 lbs which she lifted with her right hand for an average of 1-2 hours. She did labelling and pricing for about 2 hours. She had to repetitively picking up from a tray with her left hand and place on a scale. She picked up the label with her right hand. She used both hands to date and price - one to pick up and the other to move. She had to stretch about 2 ft to pull the truck. She did this for about ½ to 4 hours. She couldn’t do the demo job as it was repetitive and she had to use both hands. She can’t do returns because she would have to pick up items and it was repetitive work.

I found the worker’s evidence credible as she testified in a straight forward and candid manner and there were no inconsistencies in her statements. While the modified offer as outlined in the correspondence of December 24, 2008 is in keeping with the worker’s physical restrictions, I note that they were temporary and the worker was expected to return to her pre-accident job hours and duties.

Also, the modified duties as described by the worker exceeded the physical restrictions as outlined by Dr. McKee as there was some repetitive resisted flexion/extension of the shoulder and there was repetitive lifting some of which was quite heavy. Therefore, I find that the modified work that the worker was actually performing was not suitable.

In light of the NEL, the worker’s physical restrictions are permanent; therefore, the pre-injury job is not suitable as it exceeds the worker’s restrictions for the right shoulder. There is no indication of the employer offering any further modified work. The worker maintains that she has been in contact with the employer. As the medical evidence supports partial impairment and the ability to do modified work with restrictions, the worker is to be referred for a labour market re-entry (LMR) assessment that should include contact with the employer to determine a suitable employment or business (SEB). As such, I am granting full LOE benefits from the date the worker stopped working, which appears to be February 23, 2009, to the date of the LMR assessment.

CONCLUSION

The worker is entitled to:

1. A LMR assessment and

2. Full LOE benefits (less the insurance benefits received) from the date she stopped working in February 2009 to the date of the LMR assessment.

The worker’s objection is granted.

DATED July 21, 2010

J. Pereira

Appeals Resolution Officer

Appeals Branch