WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100160
OBJECTION BY: The worker
REPRESENTATIVE: Worker Representative
EMPLOYER: Not Participating
ISSUE
The worker is claiming to be unemployable as of the date of the 72 month loss of earnings (LOE) lock-in.
HOW THE ISSUE ARISES
On October 25, 2002 this then 35 year old right hand dominant general labourer was using a cross saw when he sustained a near amputation of his left index finger at the level of the proximal phalanx. The diagnosis was that of near amputation of the left index finger with open fracture and laceration of the extensor tendon and radial digital nerve. Surgery occurred in the form of open reduction and internal fixation of the proximal fracture, repair of the extensor digitorum communis and radial digital nerve.
Subsequent to the surgery the worker began physiotherapy and continued to be followed by his plastic surgeon. As part of his medical management he was assessed at a WSIB Hand Clinic in November 2003. Based on the assessment it was recommended the worker be referred for assessment at the WSIB Functional Restoration Program (FRP) and if found not to be a suitable candidate for the program he should be referred for a psychological assessment. In addition, the examiner suggested the finger be amputated to provide the worker with better hand function. The worker’s attending specialist agreed but the worker declined the surgery.
The worker underwent a comprehensive psychological assessment on January 15th and 16th, 2004. He then underwent an intake assessment at the FRP on January 22, 2004 and was considered a suitable candidate for the program. He attended the FRP program between January and March 2004 for pain management and functional restoration. At the end of the program a recommendation was made for the worker to receive further psychological treatment. In addition, it was recorded that although the worker required additional psychological treatment, such treatment did not constitute a barrier to the worker becoming involved in labour market re-entry (LMR) activities to assist him in returning to the workforce.
With respect to whether the worker had sustained a permanent organic impairment, the date of maximum medical recovery was determined to be March 26, 2004. As of that date the WSIB accepted a permanent organic impairment had occurred. As such, he underwent a non-economic loss (NEL) assessment on August 28, 2004 after which he was granted a nine percent NEL award as per the October 19, 2004 decision.
Subsequently, entitlement under the WSIB’s psychotraumatic disability policy was granted and a permanent impairment accepted. The accepted diagnosis was that of phobia to machinery, depressive disorder and pain disorder. A further NEL assessment occurred on November 28, 2005. Once the reporting was available the worker’s degree of psychotraumatic disability was determined to be 30 percent.
However, as a NEL award was a holistic award, when the 30 percent non organic impairment was combined with the nine percent organic impairment (not added) using the AMA Guides Combined Values Chart, his total award was increased to 36 percent. The decision was dated February 3, 2006. Of the 36 percent NEL award, the worker was only entitled to an additional 27 percent noting he had previously received 9 percent.
With respect to early and safe return to work activities, in June 2003 the worker’s specialist indicated the worker could perform one handed work. With the assistance of a WSIB Ergonomist the worker was to return to modified work on a graduated hour’s basis commencing July 21, 2003. The expectation was the worker would be able to increase his hours of work to eight as of August 18, 2003. The worker did not return to work as scheduled as he claimed an inability to perform any type of work.
The WSIB agreed up to the point he was discharged from a Functional Restoration Program in March 2004. At that point the WSIB’s position was the worker could perform modified work. Unfortunately, returning to work with the employer was not an option primarily because the worker would be exposed to machinery and specifically the machine which caused his injury.
As such, the worker was entitled to a labour market re-entry (LMR) assessment. With respect to LMR activities, the worker was first seen by a LMR Service Provider in June 2004. On July 12, 2004 he participated in a psychovocational assessment after which a LMR Assessment and Plan Proposal dated July 30, 2004 was prepared. Based on the Plan a suitable employment or business (SEB) of Other Elemental Service Occupations NOC 668 was identified. Based on the LMR Plan Proposal it appeared that three unit groups were identified of which only one was deemed to be within the worker’s functional abilities as well as being safe and within the worker’s skill set post LMR assistance. The unit group in question was Other Elementary Service Occupations which included Beauty Salon, Door, Funeral, Laundromat and Parking Lot Attendants and Ticket Takers.
The worker participated in his LMR plan which included English as a Second Language Training and a four week Creative Job Search Training Program. He commenced his English training on September 7, 2004 and completed it on October 28, 2005. His Creative Job Search program went from October 28, 2004 to November 25, 2005 at which time he had successfully completed his plan.
During the period the worker participated in LMR activities he received full LOE benefits. As of November 25, 2005 his full LOE benefits were adjusted to partial LOE benefits using potential earnings of $7.50 per hour as of November 25, 2005. The decision was dated December 9, 2005. The worker did not object to this decision.
Subsequent to the completion of LMR service, the worker applied for a Canada Disability Pension (CDP) benefit which was granted by a Review Tribunal decision in September 2006. The WSIB did not use the award to offset the worker’s partial LOE benefit as it did not exceed his weekly deemed earnings of $300.00.
In November 2008 the worker’s final LOE review was to have occurred. However, it was deferred until information relating to his CDP benefit was received. Once available the Case Manager in a March 24, 2009 decision decided the worker had the skills to obtain employment in the identified SEB at earnings of $11.00 per hour over a 40 hour work week. Based on these earnings the worker’s partial LOE benefit was adjusted downward effective November 1, 2008.
In a May 18, 2009 objection form the worker representative was claiming for full LOE benefits from the date the final LOE review was effective.
The worker’s objection is now before the Appeals Resolution Officer.
AUTHORITY
Operational Policy Manual Documents
11-01-03 – Merits and Justice
18-03-02 – Payment of LOE Benefits
19-03-03 – Determining Suitable and Available Employment or Business and Earnings
RESOLUTION METHOD AND PROCESS
The worker representative agreed to a decision without a hearing based on the evidence in the record.
ASSESSMENT OF THE EVIDENCE
In rendering a decision in this case I considered the record and WSIB policy. With respect to the issue of unemployability the WSIB does not have a specific policy to reference. The closest policies relate to the payment of LOE benefits, the identification of a suitable employment or business (SEB) and the merits and justice of a case.
In considering all of these policies I noted the following.
From a medical perspective the following was known.
The worker had entitlement for both organic and non organic impairments. His organic impairment related to an injury to his non dominant left index finger for which he was in receipt of a 9 percent NEL award. Medical precautions related to no activities requiring forceful or repetitive grasping/handling/or fingering with the left hand while lifting/carrying/pushing/pulling activities were restricted to the “limited” physical demand level which meant he could handle loads which did not weigh in excess of 5 kilograms.
The worker also developed a psychiatric condition which the WSIB accepted as being related to his left index finger injury. He underwent a non-economic loss assessment for his non organic condition in November 2005. The worker’s permanent impairment relating to his non organic entitlement was determined to be 30 percent which was not quite the midpoint of the moderate category under the WSIB’s rating schedule for psychotraumatic disability. The only medical precaution identified was that of working with machinery where the potential for injury existed.
Relevant medical reporting up to the time of the NEL assessment showed the following.
The worker had participated in a six week Functional Restoration Program (FRP) from January to March 2004 to treat his chronic pain disorder in an effort to improve his pain coping skills and functional tolerances. At the time of discharge his ability to perform activities was within the “limited” level which meant he could handle loads up to 5 kg.
Barriers to recovery were recorded as a phobia of working with machines along with his level of depression. Even though his mood had improved significantly while in the program there was a concern the worker might deteriorate once outside of the structure of the FRP. As such, it was felt he might benefit from individual psychological therapy for treatment of his depression and to continue to work on pain management skills. It was also reported there were no psychological findings which required psychological restrictions. His Global Assessment of Functioning (GAF) which did not include impairment in functioning due to physical (or environmental) limitations was 61 to 70.
The worker’s GAF score equated to someone with mild symptoms.
May 20, 2004 first report prepared by psychiatrist. He recorded in part that the worker had been under his care since December 23, 2003 as a result of an October 25, 2002 work injury. The report recorded that after his accident the worker gradually developed symptoms of anxiety, phobias, excessive startle, poor sleep, nightmares, depression, feelings of detachment from people, loss of interest, obtrusive thinking, tendency for paranoid content in thoughts, poor concentration and poor memory. A diagnosis of post traumatic stress disorder was given.
The diagnosis of post traumatic stress disorder was not accepted as being the working diagnosis in this claim. In addition there was no GAF score recorded.
The worker underwent a FRP Booster session on June 29, 2004 with the report being dated July 6, 2004. The report recorded in part the worker had indicated he was able to apply coping strategies such as exercising four days a week for one hour, relaxation once weekly when stressed or depressed, medication for mood which had been helpful, pacing strategies, using recommended assistive devices, being more active around his house.
In addition the worker reported he was engaging in more household activities such as cutting vegetables, light dusting, dropping the children at school, playing with his children and so on. He also reported he found the recommended assistive devices very helpful and continued to use them as they had allowed him to be more functional around his home.
There was an August 23, 2004 report from a psychologist. Axis 1 diagnosis was that of major depressive disorder, severe with melancholic features. The GAF score provided was 52. The psychologist also recorded the worker participated in his psychotherapy and appeared to be benefitting from it.
The worker’s GAF score of 52 equated to someone with moderate symptoms.
In a follow-up report of December 3, 2004 from the psychologist the GAF score was 63 even though the worker’s mood was described as low. At the time of the assessment the worker was participating in ESL classes and was having some difficulty which appeared to trigger feelings of humiliation resulting from early life situations at school. Other than the recent downturn in mood the psychologist had noted the worker’s mood had brightened and he reported positive changes in his life. He also commented spontaneously on how much his emotional state had improved over the past few months compared to his baseline.
His GAF score of 63 equated to someone with mild symptoms.
Based on the psychologist’s April 2, 2005 closure report the worker was able to cope with his present challenges and the prognosis for the future was good. He noted the worker did not meet the criteria for any DSM IV diagnosis at the time.
An April 6, 2005 report from the worker’s treating psychiatrist portrayed a completely different picture of the worker with respect to his symptoms.
In his October 11, 2005 report the psychiatrist recorded in part the worker had chronic and residual symptoms that included depression, low energy, withdrawal, loss of interest and paranoid contents. The prognosis was recorded as guarded.
The worker was seen by a psychiatrist for purposes of a NEL assessment on November 28, 2005. The report was dated December 1, 2005. Based on the assessment the examiner diagnosed pain disorder associated with both psychological factors and a general medical condition and features of post traumatic stress disorder. The WSIB accepted the former diagnosis but not the later.
With respect to activities of daily living the worker reported he had some difficulty dressing due to pain, weakness and loss of dexterity in the left hand and arm. He had difficulty eating but was independent with personal hygiene activities such as washing, bathing, brushing his teeth, shaving and grooming although these activities took longer to perform. Walking was limited to twenty minutes due to fatigue and he was very uncomfortable travelling in a car due to anxiety. Use of the upper limb for work such as pushing, pulling, holding, reaching and carrying was limited. He acknowledged feeling depressed and anxious and he had difficulty coping or adapting to stress. He had withdrawn from friends and family and he had lost interest in previously enjoyed activities.
I noted that while receiving medical treatment the worker was able to participate in labour market re-entry activities from July 2004 to November 25, 2005 when he successfully completed his LMR plan.
With respect to other non medical information the following was noted.
The percentage of the worker’s non organic NEL award was not known until February 3, 2006 which was after the time his LMR plan had been successfully completed and his loss of earnings benefits adjusted to $7.50 per hour as per the Claims Adjudicator’s December 9, 2005 decision.
The worker did not object to the decision. In addition it was not revisited after the worker’s NEL award was increased.
After the December 9, 2005 Claims Adjudicator’s decision which adjusted the worker’s full LOE benefit to a partial LOE benefit the following medical reports became available. One report was completed by the worker’s plastic surgeon and was for purposes of the worker applying for a Canada Disability Pension (CDP). The report dealt with the worker’s injured left index finger only. The specialist recorded the worker’s prognosis for recovery was poor without surgery to amputate the finger. The specialist was of the opinion surgery could help with the worker’s pain and hand function.
A copy of the worker’s attending psychiatrist’s August 14, 2006 report which was prepared for a CDP Review Tribunal Hearing relating to the worker’s application for a CDP benefit pension recorded the following in part.
The psychiatrist first saw the worker on December 22, 2003 and had seen him approximately once per month since. He noted the worker continued to have psychiatric symptoms with variable severity depending on situational stressors. The list of symptoms was quite extensive. They included the following.
Anxiety
Poor sleep with nightmares
Poor concentration and memory
Psycho-motor retardation
Impaired judgement
Depression
Sense of pessimism and low self esteem
Excess guilt
Social fears and avoidant behaviour
Poor anger control
Inability to make decisions.
The Axis 1 diagnosis was that of major depression with paranoid features while the Axis III diagnosis was that of pain and deformity due to work injury. The Global Abilities Function score was 45
The GAF score of 45 equated to someone with serious symptoms.
With respect to non medical information a review of the LMR section of the file showed the following.
The worker participated in a psychovocational assessment on July 12, 2004. The results showed the worker’s performance IQ was extremely low. With respect to academic levels his spelling and reading (decoding) were at a grade 1 level, his reading comprehension at a preschool level and his arithmetic at a grade 2 level.
In essence the worker was functionally illiterate in the English language.
In the LMR Assessment and Plan report it was noted the worker spoke Punjabi fluently, and could read and write it a little. He spoke little English. His employment history was that of a farm labourer on a family farm in India. When he came to Canada his first job was that of a labourer in a chrome plating company for approximately six years and then with the accident employer for approximately one year as a labourer.
With respect to the SEB identified the following was noted.
Based on the LMR Assessment and Plan report dated July 30, 2004 a suitable employment or business (SEB) of Other Elemental Service Occupations NOC 668 was identified. Based on the LMR Plan Proposal it appeared that three unit groups were identified of which only one was deemed to be within the worker’s functional abilities as well as being safe and within the worker’s skill set post LMR assistance. The unit group in question was Other Elementary Service Occupations which included Beauty Salon, Door, Funeral, Laundromat and Parking Lot Attendants and Ticket Takers.
Of interest was the fact the LMR Service Provider recorded the following information under the heading “Job Postings”.
No jobs were identified specifically for Parking Lot Attendants or Ticket Takers/Ushers. Most of these jobs are filled by employers through networking. One position was found for a Dry Cleaning Counter Clerk.
Based on the November 29, 2005 Individualized Job Search Training Report it was recorded the worker’s Creative Job Search Training was being geared towards a position of Parking Lot Attendant although it was known as early as July 2004 that no positions were available.
In addition, the LMR Service Provider contacted an employer to determine the job qualifications and duties related to a Parking Lot Attendant. The following information was recorded.
Qualifications
The applicant must be able to read, write and understand English. There is no specific level of education required. Workers must be able to fill out the revenue report at the end of the shift, and to read memos from head office. They must be able to write well enough to fill out a complaint form when there is a complaint at their work site on their shift. This form is designed to allow the worker to tell their side of the story when there is a complaint.
Duties
The worker must be able to perform basic operations in mathematics to calculate amount owed. No experience in customer service, cash register operation or computer operation was required. The worker should be polite, however. The job requires the employee to take the ticket, and figure out the amount owed by multiplying the number of hours in the lot by the hourly rate.
The worker participated in a LMR plan which included English as a Second Language Training and a four week Creative Job Search Techniques Program. He commenced his English as a Second Language program on September 7, 2004 and completed it on October 28, 2005. Although he appeared to do okay with respect to marks obtained, it was evident from the reporting from the academic upgrading agency the worker did not have a good grasp of English and Mathematics. Based on Academic Report # 13 the following was recorded in part under the heading “Barriers”.
In Power English, the worker had difficulty with word order exercise and, as a result, required a great deal of help from his instructor in order to complete these exercises. The worker also confused when to us (sic) the article a/an with words that began with the letter /u/ (e.g. an umpire and a union). In addition, he had trouble identifying misspelled words in sentences, correcting verbs, using subject pronouns and conjugating verbs in the present, past and future tenses. Therefore independent review of these problematic areas is advised.
In vocabulary, the worker had trouble constructing sentences with the given words on his tests and spent a great deal of time trying to recall the definitions of the words. He also had great difficulty identifying if the highlighted word was used correctly in the given sentence.
With respect to math, the worker continued to have significant difficulty with sections involving fractions; therefore any sections dealing with fractions were eliminated from both the text and the tests. Furthermore, although the worker performed well on his initial two tests, he required a great deal of assistance from his instructor. The worker had difficulty understanding the questions and could not remember how to complete many of the questions. He also continued to have difficulty moving decimals to their correct places and had trouble with basic subtraction and multiplication. In addition, the worker did not line up his numbers correctly when dividing, which resulted in inaccurate answers. Regular independent review of these areas is, therefore, imperative in order for the worker to develop a better understanding as well as to enhance his retention.
Findings
Assuming a position of Parking Lot Attendant was available to the worker he did not have the qualifications to perform this job even after LMR assistance was provided. Firstly, the assistance granted to the worker was minimal. He simply received approximately thirteen months of English as a Second Language training and four weeks of Creative Job Search Techniques Assistance. It was quite clear from the Academic Upgrading Reports the worker was not job ready at the time his LMR plan concluded as he struggled in all three aspects of the English language those being reading, writing and speaking, all of which were key elements for obtaining a Parking Lot Attendant position or for that matter any other position of a non physical nature. It was recorded in many places that an interpreter was required to explain things to the worker. An interpreter should not have been required if the worker’s English skills were at a job ready stage.
His difficulty in learning even basic English was most likely related to his extremely low I.Q. as noted through psychovocational testing noting his upgrading instructor consistently recorded he was well motivated to learn. Based on the psychovocational evaluation results the worker’s employment opportunities were limited even if he had a basic command of the English language. Although the report also suggested there might be some direct entry positions such as School Crossing Guard, Usher/Ticket Taker/Toll Booth Attendant it was not explained how the worker would be able to perform such jobs without a working knowledge of English. All of these positions involve some interaction between the person doing the job and the public.
In my opinion one might get away with a worker having limited if not nonexistent English skills if he/she were working in a position where there were other workers who spoke his/her language as well as English so as to provide instruction and/or guidance and where the person was not dealing directly with the public. These types of jobs were generally more physical in nature and it was known the worker’s organic impairment precluded him from performing such work.
As such, for the worker to have any chance of success at any non physical position he needed to be able to speak, read and write English at a basic level. He was unable to do so at the time his LMR plan was completed.
In addition, there was the worker’s organic and non organic medical condition to take into consideration. Although the worker’s organic impairment in of itself would not have made him unemployable, when one considered the affects of his psychiatric condition on his ability to function, both conditions were most certainly significant factors in his ability to work. Based on the various medical reports it appeared the worker’s mental state improved while being treated by a psychologist and while participating in LMR activities. However, once he completed his LMR activities his mental state deteriorated as per Dr. Jain’s report of August 14, 2006 even though he continued to receive psychotherapy, counselling and medications. The psychiatrist recorded the worker’s GAF score as 45 in August 2006 which equated to someone with serious symptoms. At the time of his NEL assessment in November 2005 the worker was found to have moderate impairment which would equate to a GAF score of between 51 and 60. As such, it could be seen that deterioration in the worker’s emotional state had occurred even though the WSIB had not formerly recognized the deterioration noting the worker’s NEL award at the time of the final LOE review remained at 36 percent.
One final point, the worker received a Canada Disability Pension. A full copy of the decision was found in the correspondence section of the file. One of the findings of the Review Tribunal was that based on the worker’s psychiatric care, in combination with his ongoing deformity and pain, and associated problems involving sleep, concentration and emotional problems, provided a finding that the Appellant’s disability was severe according to the CPP test of disability at December 2004. Although findings from the CDP Review Tribunal were not binding to WSIB decision makers it was an independent body which came to the same conclusion as I did although it appeared I had more information to work with.
CONCLUSION
The objection is allowed. The worker was unemployable at the time the final LOE review occurred. His LOE benefits are to be adjusted accordingly. The worker is in receipt of a Canada Disability Pension. I leave it to the discretion of Operations to determine whether an offset to the worker’s LOE benefit is required.
DATED October 14, 2010
Bob Howarth
Appeals Resolution Officer
Appeals Branch