WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100162
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
HEARING DATE: August 10, 2010
The hearing did not proceed. An informal discussion occurred with the worker representative the day prior to the hearing. It was agreed that I would proceed to a decision based on this discussion.
ISSUES
The worker objects the decision dated September 30, 2009 which reduced the benefits payable following the closure of LMR services.
The worker objects to the decision dated November 3, 2009 which advised the worker of the loss of earnings benefits payable at the final review.
HOW THE ISSUES AROSE
Entitlement was accepted with an accident date of February 11, 2002 for bilateral carpel tunnel syndrome (CTS) related to hand cutting cheese. The worker was treated surgically on July 19, 2002 with a bilateral endoscopic carpal tunnel release.
The worker returned to graduated work as of November 13, 2002 and was at full-time hours as of mid-December 2002.
The worker was assessed at the Hand and Upper Limb Clinic (HULC) in December 2002. She was expected to improve over the following 3 to 6 months and modified duties were recommended until she improved completely.
The worker was permanently laid-off as of February 5, 2004. An ongoing impairment was accepted.
The worker was referred for labour market re-entry (LMR) services in August 2004. The suitable employment or business (SEB) of Clerical Occupations, General Office Skills was approved in November 2004. This involved upgrading followed by a four week job search program. The worker commenced upgrading in November 2004.
In the meantime, the worker was seen at the HULC in September 2004. Her symptoms were more in keeping with ulnar nerve neuropathy than median nerve neuropathy. Electrodiagnostic testing was done. The median nerve studies were normal but the ulnar nerve studies on the left were markedly abnormal. She was reassessed by HULC in October 2004 and diagnosed with left ulnar neuropathy of the elbow-cubital tunnel syndrome-neurapraxia.
The worker went to have an anterior subcutaneous transposition of the left ulnar nerve on April 5, 2005. The medical reporting on the claim identified improvement with the procedure. In September 2005, the worker requested surgery on her right wrist but then decided against it. The doctor advised her the results might not be as good as on the left.
The worker was assessed for a non-economic loss (NEL) award on December 21, 2005 and rated at 34 percent on April 6, 2006 for the diagnoses of bilateral wrist CTS with median nerve releases, bilateral elbow cubital syndrome, and left ulnar nerve transposition.
The LMR plan was amended in January 2006 to include formal training. The worker completed academic upgrading in February 2006. She successfully obtained her GED. She then began a 12 week receptionist program at College. This was followed by an Executive Administration Program. Formal training was completed in November 2006. This was followed by a one month placement with VON which began November 27, 2006. She attended a 4 week job search program in January 2007.
The worker disputed the suitability of the SEB at the end of the LMR plan. In June 2007, the adjudicator noted the worker had difficulties throughout the program with the keyboarding activities and any repetitive work with her hands. She requested a medical opinion on whether a permanent impairment was evident and whether the worker was at MMR.
In July 2007, a medical consultant opinion supported that the worker was at MMR and a NEL reassessment was in order. He provided restrictions for repetitive pinching and grasping.
In January 2008, the adjudicator concluded that the SEB of General Office Clerk was likely suitable as the tasks varied. The worker advised her that she could not work on the computer for any time or do prolonged writing. LMR services were reopened to examine the suitability of the SEB.
The worker attended a NEL reassessment on February 7, 2008 and this was rated on April 10, 2008. The NEL award increased to 36 percent.
The worker was referred to a Functional Abilities Evaluation (FAE). She attended the assessment on February 11 and 12, 2008. The FAE concluded that the jobs of general office clerk, record management and filing clerk were not within her capabilities but the position of receptionist should be within her capabilities.
The SEB was changed to receptionist, National Occupation Code (NOC) 141. The worker was provided with a two week enhanced job search program and job search assistance to locate a special work placement. She was placed with the Red Cross as a receptionist from June 2, 2008 to July 25, 2008.
There was concern that this placement was not a true reflection of reception work as there were limited tasks. Although, the issue was really one of physical suitability and not education, the service provider recommended that the worker be given another program to enhance her job skills. In September 2008, the worker was approved to attend a 44 week Medical Office Administration Diploma Program from November 24, 2008 to September 25, 2009. In the interim, she took a related night course. The program included a 6 week cooperative placement.
The worker completed the academic portion of her program and did her placement as a medical office assistant at a hospital in Ingersoll.
Following the completion of the LMR program, the worker’s loss of earnings benefits were adjusted to reflect entry-level earnings in the SEB of $9.75 per hour from September 25, 2009. The worker was advised of this in the decision dated September 30, 2009.
The final review of the worker’s loss of earnings benefits was based on earnings of $10.25 per hour. The decision dated November 3, 2009 advised the worker that this new rate was effective October 16, 2010.
AUTHORITY
11-01-05 Determining Maximum Medical Recovery (MMR)
15-03-01 Recurrences
18-03-02 Payment of LOE Benefits
18-03-03 Reviewing LOE Benefits
18-03-06 Final LOE Benefit Review
18-05-09 Redeterminations and Recalculations
19-03-03 Determining Suitable Employment or Business, and Earnings
ASSESSMENT OF THE EVIDENCE
The worker representative argued that the worker has a significant disability. Therefore, practically speaking, the worker is not employable.
I accept that the worker has a significant disability and this would limit her employment options but I do not accept that she is unemployable. The worker was able to complete two LMR plans which included upgrading to a GED level, three formal training programs, three placements and job search training. This is not consistent with being unemployable. The worker attended the LMR programs regularly, managed the physical demands of the programs and successfully completed four programs (including getting the GED).
I am satisfied that the worker has the ability to compete for and maintain employment within her physical tolerances.
I considered the following in my examination of her earnings capacity:
The worker’s resume shows that from 1996 to 1997, the worker attended the Graphic School of Hair Design and graduated with honours.
During the period 2004 to 2009, under WSIB sponsorship, the worker completed her GED, a medical receptionist program, an Executive Administration Program, a Medical Receptionist Program. She also had job search training twice and was provided with assistance to locate a placement.
The worker was a machine operator with the accident employer from 1999 to 2004 and a bindery operator from 1998 to 1999 with a Publication company. Prior to this she worked as a data entry clerk from 1989 to 1992.
The worker attended a special work placement, 7 hours per day with VON from November 27, 2006 to December 22, 2006 as a General Office Clerk. There is a very positive report which supported that she was generally suited to this work. The report noted that she did display some signs of pain and discomfort. She was permitted to work at her own pace and take micro breaks as needed. She worked up to six hours.
Memo 68a supports that the worker reached maximum medical recovery about four months following the left wrist surgery on April 5, 2007. This would be early August 2007. A NEL reassessment was subsequently arranged with a 2 percent increase in the award to 36 percent. Restrictions were identified for repetitive pinching and grasping activities.
The FAE conducted in February 2008 indicated that it would appear that the worker may be able to tolerate work in NOC 1414, Reception and Switchboard Operators but not other positions in the SEB (NOC 1411, General Office Clerks or NOC 1413, Records Management and Filing Clerks). It was noted that the description of NOC 1414 was that a receptionist greets people, directs them to areas in the facility, operates as a switchboard operator (headset recommended for the worker), and has short requirements for typing and short handwriting. It was noted that the worker’s lifting, pushing/pulling and carrying tasks should not exceed the limits that were observed and measured over the two day testing.
The worker expressed concerns that the placement at the Canadian Red Cross was not a true indicator of her abilities to handle reception work because it lacked extensive job tasks. The Work Placement Progress Report dated July 8, 2008 identified that the worker did not report pain since she began but that she had down time and spent time reading because there was not enough work to fill her time. This involved a seven hour work day.
The LMR completion report dated September 28, 2009 indicated that the worker’s restrictions were avoid lifting more than 5 kilograms, avoid repetitive lifting and avoid repetitive pinching, gripping, pushing and pulling. This report noted that the worker enjoyed her placement at the Ingersoll hospital but complained that the amount of filing that she did bothered her hands. She was advised to take proper breaks and vary her work activities. The worker was reported to have enjoyed working with her co-workers. Her placement was from 9 a.m. to 4 p.m. I assume that she had an hour for lunch.
The worker representative argued that the chosen SEB was not suitable. The worker is able to complete for some but not most jobs in the SEB. I am satisfied that the worker has the skills and abilities to work in many receptionist positions. However, positions which involve periods of repetitive filing or computer use would not be suitable.
The worker’s partial loss of earnings benefits have been based on minimum wage. The worker was given several training programs to qualify for a minimum wage job. Clearly, she did not require the amount of retraining provided to qualify for a minimum wage job. However, the fact that she was able to engage in this extensive LMR activity leads to conclude with certainty that she is employable in suitable work.
The worker would be qualified to work in SEB 6683, Other Elemental Service Occupations. This includes Beauty Salon Attendants, Laundromat Attendants, Ticket Takers and Ushers. This work requires limited strength and minimal upper strength co-ordination. There are no specific education requirements. The worker has the general learning ability required for this work as demonstrated by her ability to complete the LMR plans. I am also satisfied that the worker has the required interpersonal skills for this work based on the placement reports on the claim record. This work pays at or close to minimum wage which is what the worker’s partial loss of earnings were based on to age 65.
The worker representative argued that given the worker’s significant upper extremity impairment that she could only work part time. I agree that she has a significant impairment as evidenced by the 36 percent NEL award. The worker has a repetitive strain injury with nerve damage. She has some residual numbness in her left hand which is better than the numbness in her right hand according the September 2005 report from the HULC. As evidenced by her progress in the LMR plan, she has been very functional with her impairment. She has demonstrated the ability to be involved in placements up to six hours per day performing reception and office duties. I am satisfied that she is capable of working 6 hours per day in SEB 6683 and in SEB 1414, although some jobs may not be suitable SEB 1414.
CONCLUSION
SEB 6683, Other Elemental Services Occupations and many jobs in SEB 1414, Reception and Switchboard are within the worker’s skills and abilities.
The worker is competitively employable six hours per day, 30 hours per week at $10.25 per hour, minimum wage.
Loss of earnings at the final review of loss of earnings benefits are to be paid from September 25, 2009 based on earnings of $10.25 per hour, thirty hours per week.
The objection is allowed, in part.
DATED August 27, 2010
Judy Cantwell
Appeals Resolution Officer
Appeals Branch