Worker v. Employer, 2010 CanLII 52786

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

claim: 20100114

OBJECTION BY: The Worker

EMPLOYER: Not Participating

HEARING DATE: June 10, 2010

PARTICIPANTS: Worker, Worker’s Representative, Witness

ISSUES

The worker requests:

1. Recognition that his accident-related impairments present a barrier to his re-integration into the labour market.

2. A labour market re-entry (LMR) assessment to determine a suitable employment or business (SEB) and as necessary a LMR plan.

3. The payment of full loss of earnings (LOE) benefits from April 10, 2009.

HOW THE ISSUES ARISE

This claim recognizes a workplace accident on November 30, 2001, in which the worker injured his right shoulder. The attending health care practitioners diagnosed a strain of the right shoulder and referred him for an extensive period of chiropractic treatment with little improvement in shoulder pain and discomfort.

An ultrasound of the right shoulder on August 19, 2009 identified some pathology in the biceps area. The worker saw an orthopaedic specialist on January 27, 2003 and he diagnosed rotator cuff tendonitis, injecting the shoulder with depomederal. On the follow-up assessment of April 9, 2003, the specialist reported the worker had derived improvement from the injection and he recommended permanent precautions on upper extremity use.

The employer did its best to accommodate these accident-related precautions and the worker essentially remained in the workplace. An MRI scan on December 15, 2003 identified tendonopathy, bursitis but no overt tears within the right shoulder. This led the orthopaedic specialist to carry out an arthroscopic debridement and decompression of the right shoulder on March 30, 2004, in which he found a rotator cuff tear.

The worker convalesced from the surgery; the orthopaedic specialist approved a return to permanently accommodated work duties as of January 3, 2005 and the employer provided these on a transitional basis as of that date. On February 9, 2005, the worker received a 15% permanent impairment non-economic loss (NEL) rating for the right shoulder.

The employer shut down its operations at the plant where it employed the worker and placed him on permanent layoff as of April 9, 2009. He asked the operating area for financial and return to work assistance on May 4, 2009. The case manager advised the worker that he would not receive this assistance in the letter dated May 11, 2009. He concluded that the worker had performed work duties as a machine operator for over four years and he could return to work in this capacity in the open labour market.

The worker's representative objected to this decision on May 29, 2009 and he submitted an objection form with additional information on July 10, 2009. The operating area confirmed that its decision remained correct and referred the issues to the Appeals Branch on July 30, 2009.

AUTHORITY

Operational Policy Manual documents:

• 15-06-01 Entitlement Following Work Disruptions: General
• 15-06-03 Entitlement Following Work Disruptions: Permanent Layoffs
• 18-03-02 Payment of LOE Benefits
• 18-03-03 Reviewing LOE Benefits (Prior to Final Review)
• 18-03-06 Final LOE Benefit Review
• 19-02-02 The Goal of ESRTW and the Roles of the Parties
• 19-03-02 LMR Assessments
• 19-03-03 Determining Suitable and Available Employment or Business, and Earnings
• 22-01-03 Workers' Co-operation Obligations

EXHIBITS

Exhibit # 1: The worker's grievance of September 4, 2008 with the employer's responses of September 12, 2008 and October 21, 2008.

Exhibit # 2: A note dated June 7, 2010 confirming the worker's visits to Dr. Annie Pollet at CPM Pain Management Clinic from February 23, 2010 to June 7, 2010.

Exhibit # 3: Dates of visits to Dr. Rawieh El-Sayegh, MD (family doctor) from March 23, 2004 to April 23, 2010.

Exhibit # 4: A medical report dated May 8, 2010 from Dr. Y. Fahmy, MD (current family doctor).

ASSESSMENT OF THE EVIDENCE

The worker provided testimony at the hearing about:

• Commencing employment with the accident employer in its automotive stamping and assembling operations in Milton on October 20, 1997.
• Not having any workplace accidents of significance before injuring his right shoulder on November 30, 2001.
• The employer placing him on accommodated work duties from January 7, 2002 until his right shoulder surgery of March 30, 2004.
• Receiving a quality control certificate in early 2004, applying for such work placement with the employer in following years but not being successful.
• Receiving assignment to a series of workplace assignments that met his upper extremity precautions on his return to work after the surgery.
• These work duties involving the production of parts for manufacturers of smaller motor vehicles.
• The employer assigning him to work duties as a utilities worker with a female co-worker for a period of time before it eliminated this position too.
• Working on machining of small parts and the quality control inspection of small parts next – all activities with very light or very minimal upper extremity use.
• The employer arranging for him to receive accreditation as a lift truck driver and assigning him to such work activity in the few weeks before it shut its plant down.
• Working as a machine operator but the employer having the ability to assign him to any work duties in the same salary band.
• Looking for office work duties under the direction of the federal employment insurance (EI) agency and receiving benefits for this activity since April 10, 2009.
• Making three contacts for employment daily using the EI site and other employment-related internet sites, totalling over 300 since April 2009.
• Receiving responses from a security firm and a waste management firm but no job offers.
• Having a limited employment profile (machine operator) with the accident employer and in general.
• Hoping to receive training to qualify for work duties in an office setting in order to have a better future for himself and his family.
• Having an accounting background and working as a supervisor of supplies in an office setting in his home country of Egypt before immigrating to Canada.
• Attending English language training for nine months after his arrival and having a reasonable command of the language.
• How he has applied for office type of training through EI but a decision on this remains pending.

The co-worker witness provided testimony at the hearing about:

• Working for the accident employer for a period of 16 years.
• Being active in the union local and holding the position of president for two terms, a vice-president for two terms and as a committee man at other times.
• Knowing the worker though the workplace but not socially.
• Becoming involved in his job placement after the workplace accident because the employer was not providing accommodated work duties all of the time, as it was required to do.
• The worker being an experienced machine operator who was capable of undertaking a wide range of assignments in the employer's plant.
• The employer doing its best to provide workplace accommodations at no wage loss but he had no permanent job assignment, other than machine operator.
• The employer not making over time (OT) hours available to the worker on his accommodated work duties; the worker filing a grievance and the employer assigning him to work duties exceeding his upper extremity precautions.
• Putting the grievances on hold while the employer went through the bankruptcy process but it ultimately shut down the plant operations.

The worker's representative submits that the case manager decision is fundamentally flawed. He remained in the same salary band as a machine operator following the right shoulder surgery of March 30, 2004; however, the work assignments he received respected precautions on repetitive and forceful upper extremity use. It is unlikely he would receive such workplace accommodations as a machine operator in the open labour market.

The worker has a permanent impairment of the right shoulder and his attending specialist and family doctors confirm that he requires precautions on a permanent basis. He has background in accounting and has business experience in his homeland and he is motivated to pursue such work here in Canada. The worker's representative submits that the worker's circumstances clearly qualify him for a LMR assessment, possible LMR services and full LOE benefits from April 10, 2009.

The operating area reviewed the worker's case in May 2009. The worker explained his circumstances to the case manager, including the employer assigning him to an ever declining list of alternate job assignments prior to the plant shut down. The case manager then concluded that the worker remained capable of undertaking all types of employment as a machine operator in the open labour market, in spite of the permanent impairment of the right shoulder.

The set precautions for the worker's right shoulder condition are no repetitive use of right upper extremity and any lifting or carrying with the right upper extremity. According to the worker, the employer went to great lengths in order to meet these precautions and in fact, assigned him to work duties exceeding them on numerous occasions since 2005. With the help of his union, he was able to pressure the employer to minimize the inappropriate work assignments, as much as possible.

The scenario set out by the worker is completely supported by the file documentary evidence and his testimony at the hearing has resolved any questions I might have had about the veracity of his situation. I have no doubts that the employer provided as much accommodation as possible for the worker in its heavy work environment. The operating area conclusion that he could return to a machine operator position in the open labour market without any accommodations is clearly incorrect.

The employer's efforts to accommodate the worker since 2002 and again from 2004 to 2009 have resulted in a lock in of no accident-related LOE as of November 2007. Under the policy for final LOE benefit reviews, it outlines the circumstances in which situations such as the worker's become eligible for further consideration:

Co-operating in ESRTW at 72-months The WSIB defines the workplace parties’ co-operation in ESRTW activities to include

• the accident employer and worker initiating and maintaining communication with each other throughout the worker’s recovery and impairment
• identifying and securing suitable and available work (employer attempting to provide suitable work/worker assisting the employer to identify suitable work)
• providing relevant worker’s information to the WSIB concerning the worker’s return to work
• notifying the WSIB of any difficulty or dispute concerning return to work.

The WSIB generally considers the workplace parties to be co-operating in ESRTW at the 72-month period if

• the employment relationship between the workplace parties has been maintained
• the workplace parties are actively attempting to identify suitable and available jobs or in the process of arranging a return to work consistent with the worker’s functional abilities
• neither workplace party is refusing to abide by his, her or its co-operation obligations.

When considering whether to conduct a review of LOE benefits after the 72-month period for workers who are co-operating in ESRTW, the WSIB considers the following factors such as whether

• job suitability/sustainability concerns existed prior to the 72-month period
• the job being performed post-72 months is highly accommodated
• the worker experiences further or additional reduction of earnings after the final review due to a job change or another situation directly related to the injury
• there is evidence that the worker is having difficulty performing the job (e.g., frequent lost time from work due to the work injury, inability to increase or need to decrease the number of hours of work), and/or
• there is an indication that the accommodated job is temporary or could cease due to employment circumstances..

A worker’s post-72 month job is generally considered highly accommodated if it

• includes significant work or workplace modifications that would not generally be available in the general labour market
• pays the worker at a rate significantly higher than what the employer pays for similar jobs, or is one where the productivity required of the worker is significantly lower than would normally be expected
• was created especially for the worker (e.g., tasks and work processes have been specifically accommodated for the worker’s impairment and are not likely to exist with, or be provided by, another employer), or
• is eliminated, restricts the worker’s ability to find new employment with similar medical precautions/accommodations in the general labour market

Noting the worker's circumstances and the guidelines above, I conclude that it is appropriate to review the worker's case for LMR and LOE benefit purposes as of April 10, 2009. The operating area will arrange for the worker to undergo a LMR assessment to determine an appropriate SEB and as appropriate provide him with a LMR plan. The worker will receive full LOE benefits from April 10, 2009, having regard for EI benefits received. The continuation of full LOE benefits are predicated on the worker's co-operation in these directed activities.

CONCLUSION

I conclude that:

1. It is appropriate to review the worker's case for LMR and LOE benefit purposes as of April 10, 2009.

2. The operating area will arrange for the worker to undergo a LMR assessment to determine an appropriate SEB and as appropriate provide him with a LMR plan.

3. The worker will receive full LOE benefits from April 10, 2009, having regard for EI benefits received.

4. The continuation of full LOE benefits are predicated on the worker's co-operation in these directed activities.

The worker's objection is allowed.

DATED July 23, 2010

L. J. Vaccarello

Appeals Resolution Officer

Appeals Branch