WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100103
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: August 25, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUES
The worker has objected to the loss of earnings (LOE) lock in quantum in the decision of August 10, 2009. It is the position of the worker and his representative that the worker is only able to work part-time.
The worker has objected to the denial of a non-economic loss (NEL) award redetermination as outlined in the decision dated April 27, 2009.
HOW THE ISSUES AROSE
This worker was employed as an installer and sustained an injury to his back July 20, 2003. A labour market re-entry (LMR) plan eventually was developed to help the worker acquire the skills necessary to secure full time employment as a dispatcher within the suitable employment or business (SEB) 147 – recording, scheduling and distribution occupations.
The worker was assessed for a NEL award May 18, 2004. He was granted a 19 per cent award for mechanical back pain with sciatica imposed on degenerative changes. The worker completed his training and obtained a transportation operations specialist diploma from CATI June 3, 2005. The worker was scheduled to attend job search training from June 3 to June 24, 2005 at the Job Finding Club in Woodstock however the training was unnecessary as the worker was hired for a position with a Waste Management Company in London. This was the place the worker had been in a job placement through the LMR plan. The worker was employed part-time in that position working 20 to 25 hours per week.
The LMR final report of June 29, 2005 indicated the worker reported continuing to experience back pain due to his compensable medical condition and that the pain had worsened since commencing the job. The worker attributed the pain to the long hours of work without breaks and commuting from his home in Ingersoll to London. The worker was continuing to take Oxycontin for relief of pain symptoms and continued to experience lack of sleep due to pain symptoms. The report indicated that the worker, with the support of his physician, continued to maintain the ability to only work approximately four hours per day.
The report indicated the supervisor at the waste management company was pleased with the worker’s performance during the placement and the reported rate of pay was $10.00 per hour. The worker relayed that he enjoyed the job however he continued to experience significant back pain preventing him from working more than four hours a day on a regular basis. The closing report indicated that the worker was disputing the adjudicator’s assertion that he was capable of working 40 hours per week and it was determined the worker would likely initiate an appeal to that effect.
A medical report from the worker’s treating physician October 2, 2006 indicated that the worker did have a neck impairment however he continued to have difficulties also with his back and at that time was totally disabled from any employment. The worker was unable to sit or stand for a period of more than ten minutes without having to stretch or rest. This particular report did suggest that the worker was off work awaiting neck surgery and there is no neck entitlement in this claim.
A subsequent medical report from the treating physician dated December 21, 2006 indicated that the back pain had become progressively worse and the worker was unable to complete five hours of work at the job he had been in. There was no improvement despite numerous treatments and the worker was scheduled to see an orthopaedic surgeon. Restrictions included no sitting for greater than 20 minutes with the need for frequent rest periods.
The case was reviewed by a WSIB medical advisor in memorandum 44 dated February 1, 2007. The medical advisor indicated that after reviewing the medical documentation and in comparing the range of movement in degrees from a medical report October 2, 2006 compared to the previous NEL, the worker was worse than the NEL. The permanent worsening date was October 2, 2006.
The case manager reviewed the claim in memorandum 45 and indicated that the worker had been retrained as a dispatcher and the work seemed physically suitable however the worker’s condition had deteriorated as the range of motion had permanently decreased. This memorandum indicated that even with the decrease in range of motion the worker should be able to do the work he had been retrained to do on a full time basis and no LOE benefits were reinstated subsequent to this worker stopping work in 2006 based on his physician’s advice.
The worker did undergo a NEL award reassessment July 12, 2007 and the award was increased to 27 per cent.
The claim was eventually reviewed for the LOE lock in in 2009. As indicated in memorandum 56, it was determined that the wage would be based on the average in the SEB. Noting the worker was not employed in the SEB at the time of the review, the hourly rate used to determine the worker’s LOE benefit was $17.70 per hour at full time hours.
This memorandum also indicated there was no basis for a NEL award redetermination as there were no findings to support a permanent significant worsening. Although the worker had complained of increased pain symptoms and had been prescribed more medication, a medical report from July 17, 2009 did not provide range of motion indicators and it was determined that the worker was adequately represented for his impairment with the 27 per cent award.
The issues before the appeals resolution officer (ARO) are the quantum of the LOE lock in as outlined in the decision of August 10, 2009 and the denial of a NEL award redetermination as outlined in the decision of April 27, 2009.
AUTHORITY REFERENCE
The final review of a LOE benefit is assessed in accordance to Operational Policy Document 18-03-06. .
Determining the degree of permanent impairment is assessed in accordance to Operational Policy Document 18-05-03 which includes the criteria for redeterminations.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
Issue 1
Subsequent to completing the LMR training, the LMR final report noted that the worker was working approximately 20 hours per week with the employer with whom he had a job placement. The report recognized the worker was working approximately 20 hours per week and was having difficulty due to the prolonged sitting required in the type of work that he was doing as a dispatcher.
During the hearing, the worker indicated that he would start work at approximately 1:00 p.m. and although he was only scheduled to work to 5:00 p.m., he was often there until 6:00 or 6:30 p.m. as he had to stay at work until every truck had returned to the Dispatch Area and the worker had to do the paperwork to prepare for the following days dispatches. The worker stated that there were two of them on dispatch and they were assigning approximately 200 dumps per day which the worker considered to be a busy schedule. According to the worker’s testimony, 75 per cent of the work was on computers and 25 per cent was on telephones. There was little time for breaks as the place of business was busy. The worker indicated he also had a substantially long drive to and from work.
During the hearing, the worker’s representative indicated that subsequent to the worker performing the job activities the evidence would indicate there was a significant deterioration in his condition and this is substantiated by the fact that the NEL award was increased to 27 per cent. On this basis, it should be accepted that the worker is not capable of full time work in the SEB specifically since the SEB requires prolonged sitting.
The worker did testify that his family physician requested he stop working in 2006 and the worker did so. He was unemployed for approximately one year when a friend was able to help him find employment with a limousine company. The worker testified that he was working approximately 20 to 25 hours per week doing clerical work in the office. Subsequent to that the cleaner quit and it was requested that the worker do the cleaning activities for the cars. The worker tried to do this but found the twisting and lifting for the cleaning aggravated his back. By that point in time, the employer had hired a contract worker to do the office work. The worker had been receiving a salary of $300.00 per week when he commenced employment April 1, 2007 however he stopped working in October or November 2008 due to the fact he could not continue cleaning. Subsequent to that, the employer requested he work as a limousine driver 15 to 20 hours per week which the worker continues to do. The worker stated that he does short runs, specifically weddings, and is able to take several breaks and only drive short distances.
In reviewing the evidence in the claim, the ARO is satisfied that this worker’s physical impairment in his low back enables him to work up to 25 hours per week in the designated SEB even though he is not currently working as a dispatcher. He has the skills and ability to do this type of work and could seek out employment of this nature in an environment that would enable him to sit or stand as needed.
There is however no indication the worker has been able to work any longer by way of medical documentation and in fact it was recognized during the LMR plan that the worker was only able to work part-time hours without substantial increase in pain. Given the fact the worker’s NEL award was increased substantially after participating in the workforce on a part-time basis, the ARO accepts the maximum this worker can work is 25 hours per week. As such, the LOE lock in will be altered to represent $17.70 per hour for a 25 hour work week for the purpose of calculating the lock in benefits.
Issue 2
This worker currently has a fairly high NEL award based on an examination July 12, 2007.
Although the worker has stated that his pain symptoms are worse and he takes more medication, the ARO finds no objective medical documentation to indicate that the worker’s condition is worse than what was noted at the time of the NEL award assessment. Range of motion can change based on aches and stiffness as well as mechanical back pain however at this time, there is no evidence of a significant permanent deterioration.
CONCLUSION
The worker’s calculation for his final lock in is to be altered to represent $17.70 per hour for a 25 hour work week.
There is no basis for a NEL redetermination at this time.
The worker’s objection is therefore granted in part.
Dated: August 30, 2010.
S. M. Elliott
Appeals Resolution Officer
Appeals Branch