Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20100124
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: September 21, 2010
ATTENDEES: Worker, Worker Representative
ISSUE
The worker is seeking full loss of earnings (LOE) benefits on the basis of un-employability or, in the alternative, partial LOE benefits based on 5 hour a day from July 21, 2004.
HOW THE ISSUE ARISES
On January 16, 2000, while employed as a stocker, the worker experienced an onset of right elbow pain from the repeated hanging of clothes. The diagnosis was right lateral epicondylitis. In September 2001, the denial of entitlement for the neck and back was confirmed as unrelated to the accident of January 16, 2000.
Maximum medical rehabilitation (MMR) was reached by June 10, 2003. The physical restrictions included: no repetitive pinching or gripping with right hand, limited writing or keyboarding for 10-15 minutes at a time and lifting a maximum of 5 lbs. In January 2004, the worker was rated at 5% for the non economic loss (NEL) for the right elbow.
The adjudicator met with the worker and her manager on July 7, 2004 and it was concluded that the worker could work 8 hours a day. The employer was able to accommodate the worker on a permanent basis with restrictions of no heavy lifting or pushing and pulling with the right arm. She was to continue to check memberships at the front door of the store as well as work at the returns desk, which required minimal physical activity.
In the decision of June 6, 2007, entitlement for chronic pain disability (CPD) was accepted and MMR was determined to have been reached by March 8, 2002. The permanent restrictions remained the same and the modified work provided by the employer continued to be suitable. While the subsequent medical reporting stated that the worker was permanently unable to seek competitive employment, the clinical findings and medical restrictions were not supportive. Partial LOE benefits ceased effective July 21, 2004.
In August 2007 worker was referred to the Chedoke Pain Management Unit. In December 2007, the NEL quantum was increased to 30% to represent chronic pain disability.
AUTHORITY
WSIB Operational Policies:
19-02-03 Workplace Party Co-operation
19-03-03 Determining Suitable and Available Employment or Business and Earnings
18-03-02 Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE
The employer representative did not to attend the hearing and requested that the file evidence be relied on. 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.
Submissions
The worker representative’s position is that the worker is entitled to full or partial LOE benefits from June 21, 2004 on the basis that the worker had co-operated in her early and safe return to work (ESRTW) program and the modified job of greeter for 8 hours a day was not suitable. In the alternative, the worker was entitled to partial LOE benefits from June 21, 2004 based on 5 hours a day.
Her position is also that, from September 2005, due to CPD, the worker had reached a state of being competitively unemployable and entitled to full LOE benefits.
Her submissions included:
The medical evidence supports that, at the time of the recurrence in 2001, the worker’s condition had worsened.
The modified job was not within the worker’s restrictions. The right tools were not employed in the ERSTW program as an ergonomist assessment was not done in July 2002. The modified work was not properly addressed as there was a lack of recognition of the CPD by the WSIB until the worker had her non economic loss (NEL) rating in November 2007. At the July 7, 2007 meeting, the worker was not given the opportunity to have the adjudicator assess the modified job and there is no indication in the file that the adjudicator observed the modified job as memo #136, dated July 12, 2004, makes no mention of the membership job. Therefore, she was unaware of it and the physical demands involved. As such, this finding is incorrect. The greeter position was repetitive and the membership desk position wasn’t going to have the support that the worker thought she would get. She was having difficulty doing the modified job and made complaints but there was not much response.
The evidence supports that she is not a malingerer and has fully co-operated in the ESRTW process and increased hours to 6 ½ even though the functional abilities form (FAF) recommended 5 hours. She also was in a very active medical rehabilitation program and made a bone fide attempt despite lack of support from employer and the WSIB.
No further modified work was available from July 2002 to September 2005. The worker has worked for a long time with the employer and was aware of modified positions available. The modified work that was provided needed further tweaking perhaps because the employer did not have anything else available.
Several medical reports supported that she was competitively unemployable, in particular the reports of report of January 15, 2007, June 10, 2009 and April 13, 2010.
The worker’s testimony (in part)
In 2001, she worked full time at the “greet” and “exit” doors and on membership for about 6 months. She did not have any difficulty doing the job as it did not involve giving out coupons. At the greet door, she used a clicker/counter at ½ hour spans. She had to write on a piece of paper what the door count was and report it. The following ½ hour, she did the exit door checking buggies and marking receipts. She could change hands. Coupons came in during the end of 2001 or beginning of 2002. The clicker/counter is a round metal stop watch. She had to use her thumb constantly to click. She had to switch from one hand to the other. When fliers /coupons came out, she had to constantly hold coupons with one hand and the clicker in the other. The daily count on Saturdays and at Xmas time was high (about 300 card holders). It was 100-200 in the mornings and a little less after that. At the exit door, she had to look into buggies and mark receipts. She worked alone except on Saturdays when there were 2 workers. There were about 200 people a day consisting of members and non members. As she is right handed, she had difficulty to constantly write on receipts while standing.
She had pain on the right side of her neck, face and head. She was depressed. She advised Maria and Andy from Human Resources (HR) of her difficulties. No other modified work was offered.
In July 2002, she started working 2 hours a day on a graduated return to work basis as a greeter. She discussed the modified work with her doctor who agreed the job was not within her restrictions.
From 2003 to 2004, as an alternative, she asked to go to the membership counter. With the amount of people on membership, she thought she would have more back up. They may start with 5 workers but front end pulls them out as needed. She did the combined membership and greeter job. She keyed in 10-15 memberships in one hour. Keying in the applications took 10 minutes. She did them back to back. She was having difficulty and complained to HR.
At the July 2004 meeting with the adjudicator and HR, it was determined that she can work 8 hours a shift. However, the adjudicator did not see her doing the job. Her family physician came into the store a couple of times as he has membership. He saw her at both the greeter and membership jobs and agreed that it was not suitable for her. She stopped because the pain was too much.
She returned to work and had reached up to 61/2 hours with a half hour break 5 days a week. He doctor put her off work and referred her to a specialist, Dr. Rhydderch. The nerve blocks and cortisone injections did not help.
The employer did not offer any other modified work. Based on the number of years and positions held with this employer, she does not think there was any other suitable modified work available.
The membership job is now separate from the greeter position but they still have to help when needed. The membership job continues to entail repetitive keyboarding and cash. She has not looked for work elsewhere as she does not feel capable of working. She can’t even work on a part time basis. She is 51 years old and has been receiving insurance benefits and CPP since 2007 for her arm.
File evidence noted
The fracture clinic report of July 25, 2004 stated that the worker was to continue with light duties with permanent restrictions at five hours a day, five days a week.
The FAF dated October 15, 2004 outlined restrictions of no lifting more than 5 lbs and to increase hours to 6 a day, 5 days a week.
The employer’s May 2005 job analysis of the member service assistant job indicated that the duties included: clicking a handheld counter to count members entering the warehouse; reporting half-hourly; recording counts on weekly reports; handing out sales flyers; greeting exiting members; checking accuracy and validity of member’s receipt and comparing it to merchandise and marking receipt with highlighter.
The worker tried working 6 ½ hours but couldn’t and stopped on September 29, 2005.
Dr. Morro, orthopaedic surgeon, in the report of September 29, 2005 stated that the worker was to work 5 hours a day and be reassessed in 2 weeks.
The progress report of November 14, 2005 stated that the worker can’t work due to chronic right arm pain. The FAF of November 21, 2005, the progress report of January 10, 2006 and January 24, 2006 continued to indicate that the worker was unable to work due to chronic pain.
Dr. Rhydderch, from the Hamilton General Hospital Pain Centre, in the June 14, 2006 report, stated that the worker has a myofascial pain syndrome and gave her trigger point injections.
The family physician’s report of July 10, 2006 stated that the worker was permanently unable to seek competitive employment due to her right shoulder injury of January 16, 2000. There is no reasonable likelihood that this problem would resolve in the foreseeable future.
On January 15, 2007, Dr. Rhydderch also supported that the worker was ever going to be able to work again because any movement of her right arm, which is her dominant hand, exacerbates the pain.
Dr. Patterson’s NEL assessment of September 13, 2007 stated that the worker continues to have residual symptoms of depression and chronic pain which leave her disabled with respect to activities of daily living and socially.
Dr. Kish from the Chedoke Pain Management Centre, on October 29, 2007, recommended that the worker attend the chronic pain management unit.
In December 2007, the worker was rated at 30% for CPD. Class III moderate impairment levels are compatible with some but not all useful function.
Dr. Bradley, psychologist, in her report of February 9, 2009, recommended that she attended treatment sessions.
In June 2009, the occupational therapist recommended that the worker be followed regularly by a social worker.
The neurological consultation of October 22, 2009 by Dr.Gilaamm stated that the examination was within normal limits, however, the worker did have some give-away weakness with right elbow flexion, extension and shoulder movements related to pain.
The review by the Board medical consultant done on December 18, 2009 stated that the worker has a non compensation related cervical spine degenerative arthritis. He noted that the worker does not have entitlement to the cervical spine. The request for Botox injections for a headache related condition and right sided neck pain did not fall within the scope of this claim and was denied..
Dr. Gilaamm’s report of April 13, 2010 stated that the worker had a diagnosis of chronic myofascial pain in the right shoulder area and subsequently developed chronic headaches. He opined that the worker was unable to work at this time. He predicted that the likeliness of her to be able to return to work in the foreseeable future is very low because of her chronic pain.
Analysis
In this case, the worker’s entitlement for CPD was recognized only in 2007. Her NEL was increased from 5% for the organic to 30%. Her LOE benefits stopped effective July 21, 2004 and the operating ruled that, despite the increase from 5% to 30%, the worker was not entitled to further LOE benefits as the modified job offer remained suitable.
I agree with the worker representative that the modified job was not fully investigated by the Board in July 2002 to determine if it was suitable and consideration for CPD was not given as entitlement was not granted until 2007. It also appears that the membership job was not considered at the July 7, 2007 meeting. I have noted the job analysis provided by the employer of the membership desk. I found the worker’s testimony was in keeping with it. However, she added that, with the introduction of the flyer/coupons around 2001/2002 that had to be distributed as well, her ability to alternate duties by switching hands was restricted as both hands were now being used at the same time. The worker also testified that, at the exit door, the marking of the receipts was a problem. She had asked for the membership desk job thinking that she would get help but that did not happen.
I have accepted the worker’s testimony at the hearing as I found it was straightforward, credible and corroborated the evidence on file. She made a genuine effort to return to work and to increase her hours but was not able to go beyond the 5 hours. This appears largely due to the pain component. As CPD has been recognized, the genuineness of the worker’s pain must be accepted. In this case, the worker’s pain experience determines her functional restrictions rather than her functional restrictions of the original organic right hand/arm injury alone.
From June 21, 2004 to November 14, 2005, I find that the medical evidence supports partial disability and the ability to work 5 hours a day on modified work within the restrictions of no lifting more than 5 lbs. In reaching this finding, I relied on: the fracture clinic report of July 25, 2004; the October 15, 2004 FAF; and the orthopaedic surgeon’s report of September 29, 2005. Therefore, I am accepting that the worker was able to work 5 hours a day, 5 days a week for this period.
In reviewing the subsequent medical documentation on file, there is indication that there was a progression of the CPD symptoms by November 14, 2005, at which time, the treating physician opined that the worker became unable to return to gainful employment. While she also has degenerative neck problems, I find that the worker’s combined organic and non organic conditions are largely the cause for her total inability to return to work after November 14, 2005. The first indication of this is in the progress report of November 14, 2005 that stated that the worker can’t work due to chronic right arm pain. The FAF of November 21, 2005, the progress report of January 10, 2006 and January 24, 2006 continued to indicate that the worker was unable to work due to chronic pain. This is further supported in June 2006 by Dr. Rhydderch, who noted that the worker has a myofascial pain syndrome for which she received trigger point injections. By July 10, 2006, there is a suggestion that the worker may be permanently unable to seek competitive employment due to her work related right shoulder injury. Dr. Rhydderch, on January 15, 2007, stated that the worker was not able to work again because any movement of her dominant right arm exacerbates the pain. The NEL assessment of September 13, 2007 stated that the worker continues to have residual symptoms of depression and chronic pain which leave her disabled with respect to activities of daily living and socially. This suggests that the worker is to ready to return to gainful employment in the immediate future. The neurological consultation dated October 22, 2009 reported that the worker did have some give-away weakness with right elbow flexion, extension and shoulder movements related to pain. In the further neurological report of April 13, 2010, the neurologist stated that the worker had chronic myofascial pain in the right shoulder area and subsequently developed chronic headaches. He opined that the worker was unable to work at this time because of her chronic pain.
Noting that the majority of the medical opinion supports that the worker was unable to work due to CPD, I am accepting that the worker was unable to return to any type of work since November 14, 2005 and continues to be so. There is medical evidence to support that she was receiving ongoing medical treatment. She was seen at the Chedoke Pain Management Centre in October 2007 and attended the Chronic Pain Management Unit. She received psychological treatment sessions in 2009 and the services of a social worker. Noting that the worker’s dominant hand/arm was affected and according to Dr. Rhydderch, the worker was likely not able to work because any movement of her right arm exacerbates the pain. Also the side effects of the medication taken for the work related conditions must be considered. In this case, the worker was having sleep problems, nausea and difficulty concentrating which would make it difficult for her to work in a productive manner. However, as she is currently in rehabilitation measures to assist her in increasing her daily activities, I interpret this to mean that her un-employability may not be permanent.
On the balance of evidence, I find that the worker was able to perform the modified duties provided by the employer for 5 hours a day, 5 days a week for the period from June 21, 2004 to November 14, 2005. Subsequently, the majority of the medical opinion supports that, due to the CPD, the worker was unable to return to any kind of work. I have accepted that opinion and conclude that the worker is not yet able to return to gainful employment. In order to determine if the worker is permanently unemployable, I am directing that she be referred for a psycho vocational assessment, following which the operating is to determine her ability to return to gainful employment and benefits.
CONCLUSION
The worker is entitled to partial LOE benefits from June 21, 2004 to November 14, 2005 based on 5 hours a day, 5 days a week less any other monies received.
She is entitled to full LOE benefits from November 14, 2005 to the date of the psycho vocational assessment less Canada Pension disability and insurance benefits received.
The worker’s objection is granted in part.
DATED October 18, 2010
J.Pereira Appeals Resolution Officer Appeals Branch