Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20100165
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: October 19, 2010
ATTENDEES: Worker, Worker Representative, Interpreter
ISSUES
Percentage of the worker’s non-economic loss (NEL) award
NEL redetermination.
Full loss of earnings (LOE) benefits from August 1, 2007 which was the date of the 72 month final LOE lock-in on the basis the worker was unemployable.
HOW THE ISSUES AROSE
This then 31 year old bakery worker claimed for a repetitive strain injury to his upper extremities resulting from his work duties as a bakery worker. An accident date of July 19, 2001 was established. Loss of earnings (LOE) benefits were paid from July 22, 2001 up to but not including December 4, 2001. Benefits were stopped on that date as it was determined the worker had achieved maximum medical recovery with no permanent impairment being evident.
The worker then claimed a recurrence which was allowed by a previous Appeals Resolution Officer in a decision dated June 5, 2004. Among other things she found the worker was entitled to ongoing LOE benefits, recognition of permanent impairment in the upper extremities along with a non economic loss (NEL) assessment. She also found the worker’s pre-accident job of bakery worker was unsuitable and ordered a functional abilities evaluation (FAE) be conducted and then a labour market re-entry (LMR) assessment. Rather than referring the worker for an FAE the Operations Section referred the worker to a Work Readiness Program which also included a FAE at the commencement and conclusion of the program.
With respect to permanent impairment, the initial NEL assessment occurred on
January 4, 2006. The worker was assessed for bilateral hand, wrist, elbow and shoulder impairments. Once the results were reviewed by a WSIB NEL Clinical Specialist a second assessment was requested as range of motion findings as recorded in the Work Readiness Program physiotherapy report of February 18, 2005 were much better than those recorded in the NEL assessment. The second NEL assessment occurred on July 28, 2006. Once the results of the second NEL assessment were reviewed the worker was granted a 16 percent NEL award as per the NEL Clinical Specialist’s decision of August 11, 2006.
The worker representative objected to the decision.
The Case Manager reviewed the case to determine whether a NEL redetermination was warranted. He/she requested medical guidance from a WSIB Medical Consultant to determine whether the worker was below his degree of permanent impairment and whether his medical precautions had changed. The Medical Consultant indicated there were insufficient objective medical findings to determine whether the worker’s degree of permanent impairment had deteriorated. With respect to medical precautions it was suggested the worker undergo a focused FAE to determine whether they had increased.
The FAE occurred on September 2nd and 3rd, 2008. When the results were received a WSIB Medical Consultant was asked to comment on 1. whether the worker was worse than his degree or permanent impairment, 2. his level of impairment and 3, his medical precautions. The Medical Consultant opined that based on the objective findings provided the worker was not worse than the degree of permanent impairment recognized by his NEL award. With respect to medical precautions he/she noted there was not a significant difference between those of the recent FAE and the previous medical precautions taken from the April 25, 2005 physiotherapy discharge report. With respect to the worker’s level of impairment the Medical Consultant opined the worker continued to be considered partially impaired.
In a decision of February 25, 2009 the Case Manager denied the NEL redetermination. In addition, the decision pointed out the 72 month LOE lock in occurred as of August 2007 at which time the worker’s ongoing LOE benefits were based on minimum wage of $8.00 per hour.
The representative objected to the decision.
With respect to return to work activities the worker participated in a labour market re-entry (LMR) assessment as directed by a previous ARO. A suitable employment or business (SEB) of light retail sales NOC 6421 was accepted. A LMR plan was established. The worker was enrolled in an English as a Second Language Program which started on October 11, 2005 and appeared to have been completed around the end of June 2006. At that time he had attained Level 4 English. He then began academic upgrading around July 17, 2006 with the objective of him obtaining Grade 12 equivalency. The program was to be completed as of
February 9, 2007. The worker did not complete the program for various reasons which included failing to complete homework assignments, absenteeism from school, family and financial stressors, increased pain associated with his work injuries and side effects of medication which interfered with his concentration. As a result, his academic upgrading was discontinued and he moved into the next phase of his training which was a twelve week placement at a Hudson Bay store in the men’s clothing department. The worker participated in the placement from
April 2, 2007 to June 22, 2007. During this period he was unable to increase his hours beyond four hours due to increased pain involving his upper limbs, side effects from increased medication for his pain which made him dizzy and confused and did not allow him to drive. During the placement period he was absent on twelve occasions with seven occasions being related to medical appointments or increased pain with the other occasions being related to family matters.
After the work placement was completed the worker participated in a creative job search techniques program after which the LMR plan ended on July 31, 2007. As of August 1, 2007 the worker’s ongoing LOE benefits were based on 85 percent of the difference of his net average earnings of his SEB which were determined to be $8.00 per hour over a 40 hour work week and his escalated pre-accident earnings. His pre-accident earnings were $10.50 per hour over a 40 hour work week. Also, the August 1, 2007 date corresponded with the worker’s 72 month final lock-in review of his ongoing LOE benefits. The partial LOE benefits established were locked into age 65.
In correspondence of May 3, 2007 which was prior to the completion of the worker’s LMR plan his representative objected to the SEB of Light Retail Sales as he indicated the worker was unable to perform the job at the Bay because it involved the use of his arms.
After completion of LMR the worker found work in a vegetable processing plant. This work increased his symptoms. His family physician provided a brief note of November 13, 2007 indicating the worker had to permanently avoid tasks that involved heavy or repetitive use of his hands/arms. The Case Manager in a December 19, 2007 decision found the work in the processing plant to be outside the worker’s medical precautions. However, he/she recorded the worker had completed a LMR plan which provided him with the skills to secure employment in retail sales The decision further indicated the worker was receiving partial loss of earnings until age 65.
The family doctor’s clinical notes showed the worker had been working in a janitorial capacity at certain times over the years and at the time of the oral hearing the worker continued to work in this industry mainly as a driver/supervisor but also performing cleaning activities on an occasional basis at reduced hours.
The worker’s objections are now before the Appeals Resolution Officer.
AUTHORITY
Operational Policy Manual documents
18-03-02 – Payment of LOE Benefits
18-05-03 – Determining the Degree of Permanent Impairment
18-05-09 –Redeterminations and Recalculations
19-03-03 – Determining Suitable and Available Employment or Business and Earnings
EXHIBITS
Note applicable.
ASSESSMENT OF THE EVIDENCE
In rendering this decision I have considered the record, the worker’s testimony, the representative’s arguments and Workplace Safety and Insurance Board (WSIB) policy.
In addition, the day prior to the hearing the worker representative’s office called and left a voice message asking that the percentage of the worker’s NEL award be added to the hearing agenda. It was added and heard on the hearing date.
In addition, there was an interpreter in the Arabic language present for the hearing. Even so, for the most part the hearing was conducted in English. The interpreter was only required when the worker did not understand questions posed to him in English. This process was agreed to by the worker and his representative prior to the commencement of the oral hearing.
Issue # 1: Percentage of non-economic loss (NEL) award
Testimony
The worker provided the following testimony in part.
He indicated he experienced problems with his hands, wrists, forearms, elbows and shoulders. He had no problems in his upper arms which I gather meant between the elbows and the shoulders.
He indicated the first NEL Medical Assessor spent considerable time examining him from his shoulders to his fingers while the second NEL Medical Assessor spent approximately 10 minutes with him. The second doctor just asked where he experienced pain and what his problem was. He asked the doctor if he/she wanted to test his hands, fingers and so on and he was told no. He indicated the second doctor did not touch him.
When I indicated the second NEL Medical Assessor had completed appropriate forms which included range of motion findings he once again indicated an examination did not occur.
Worker Representative’s Position
The worker representative’s arguments included the following.
He noted the NEL Clinical Specialist requested a second NEL assessment as the findings provided in the first NEL assessment were worse than those provided in a physiotherapy report. He acknowledged the worker could not object to the second NEL assessment taking place.
He suggested a reason for the difference in findings between the two reports was the worker had a flare-up before his second NEL assessment which meant he was taking more medication which in turn could have provided for a better range of motion.
He also noted the first NEL assessment took one hour and 20 minutes to complete while the other was considerably shorter. He also opined that he could not find anything in WSIB policy or in WSIAT decisions which indicated that one NEL assessment was taken exclusively over the other. He was of the opinion both assessments should be considered and the Clinical Specialist needed to weigh and consider both assessments when determining the percentage of the worker’s NEL award.
He also noted the NEL Clinical Specialist did not include the worker’s hands when determining the percentage of the worker’s NEL aware even though they created major problems for him.
He was of the opinion when all aspects of the worker’s impairment were taken into consideration he would be entitled to at minimum a 35 percent NEL award. In addition, he indicated if the worker was granted this percentage of award there would be no need for a NEL reassessment.
Policy
Workers who have a work-related permanent impairment are eligible for non-economic loss (NEL) benefits.
To rate permanent impairment, the WSIB uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, the report from a NEL medical assessment.
The policy document also recorded under what circumstances a second NEL assessment would be appropriate. The circumstances were as follows.
the findings in the first NEL medical assessment report and those in the claim file are significantly different, or
it was not possible to obtain a complete and accurate medical assessment.
The policy document also recorded the following in part.
The WSIB uses the new NEL medical assessment, along with any health care information in the claim file up to the date of the second NEL medical assessment, to determine the degree of the worker’s permanent impairment. Any part of the first medical assessment could also be used if appropriate (emphasis added).
Analysis
The first step in determining the percentage of a worker’s NEL award was to determine what impairment(s) had been accepted by the WSIB. As per memoranda number 67a dated
April 26, 2006 and 89a dated April 18, 2008, WSIB Medical Consultants recorded the worker’s impairments included repetitive strain injuries to bilateral shoulders, elbows, wrists and hands.
The second step was to have the worker assessed by a NEL Roster Physician. In this case two assessments were undertaken as the range of motion findings were deemed to be inaccurate when compared with the physiotherapy reports from the Empower Work and Life Readiness Program which the worker attended from February 16, 2005 to April 7, 2005 with the final report being dated April 14, 2005.
The two NEL assessments occurred within a six month period. The first assessment occurred on January 4, 2006 while the second occurred on July 28, 2006. There was a question raised as to whether the second assessment was indicative of the worker’s degree of impairment as according to the worker’s testimony the assessment was only ten minutes in length and the Medical Examiner did not examine him.
A review of information contained in the second NEL assessment showed that an examination did occur as degrees of range of motion findings were provided for the shoulders and wrists. Range of motion findings were not provided for the elbows and hands as function was considered to be within normal limits. In my opinion, this information could only have been provided after a physical examination had occurred.
With respect to the issue of time spent with the worker by each NEL Medical Examiner I was unable to provide a reasonable explanation as to the significant time differential. However, what could be said was regardless of the time spent with the worker both NEL Examiners completed the appropriate forms and recorded information they found relevant for determining the worker’s degree of permanent impairment. Forms completed by each were those relating to the hands, shoulders, elbows and wrists along with the “Other AMA Disorders” and Upper Extremity Neurologic Recording forms. They also completed the form relating to Activities of Daily Living which was not required noting the worker’s NEL award was based on organic findings.
In reviewing the two reports there were differences in information provided by each NEL Medical Examiner. Whereas the first NEL Medical Examiner found on examination the worker had abnormal range of motion findings in his bilateral elbows, the second NEL Medical Examiner found range of motion in the elbows to be normal. The second Medical Examiner’s findings in this regard were consistent with those recorded in the February 16, 2005 and April 14, 2005 physiotherapy reports from the Empower Work and Life Readiness Program. Both reports recorded range of motion in the elbows continued to be full and pain free bilaterally. Also,
The worker’s physician recorded in a July 10, 2006 medical progress report that the worker had good range of motion in all joints;
The first Medical Examiner recorded range of motion findings related to the thumb and fingers in both hands. However, she also recorded the worker could make a full fist although he complained of increased pain.
The second Medical Examiner found range of motion findings to be normal in the fingers and thumbs and noted the worker was able to fully clinch his fist so that fingertips touched the palm surface. Information recorded in the Empower Work and Life Readiness Program and by the worker’s physician in the July 2007 medical progress report did not record any objective findings with respect to the hands. The worker’s physician recorded the worker’s complaints as ongoing bilateral upper extremity pain/swelling and intermittent numbness. Objectively it was noted on examination the worker was tender over the forearms, MCPSs and wrists although he had good range of motion in all joints.
In looking at the Other AMA Disorder form, the first Medical Examiner recorded the worker had joint crepitation with movement in the wrists and shoulders and intrinsic tightness in the fingers. The second Medical Examiner crossed off this form. According to the AMA Guides a percentage of impairment could be given under this category when other factors had not adequately rated the extent of the impairment. It was my understanding that when there was range of motion deficits this was the information versus the information recorded on the Other AMA Disorder form which was used to determine the percentage of a NEL award.
With respect to similarities between the two NEL assessments, both recorded range of motion findings for the shoulders and the wrists although the ranges recorded by each were somewhat different.
With respect to the representative’s comment that the worker had taken more medication prior to his second NEL assessment, this assertion was not confirmed noting both the first and second NEL assessments recorded similar information relating to medication usage.
The first Medical Examiner recorded the worker used one to two Tylenol # 3 tablets when required whereas the second Medical Examiner recorded the worker usually took one to two Tylenol # 3 daily and sometimes 4. There was no recording that the worker had taken any or more medication on the date of the assessment.
In reviewing other medical reporting in the record prior to the NEL assessments I noted there was an October 28, 2003 report from worker’s specialist who recorded in part the worker’s sensory examination was within normal limits and that he had a full range of motion in the shoulders, wrists, MCP’s and IP joints with no evidence of joint swelling or deformity. Also, it was recorded there was no swelling over the dorsum of his hands.
Findings
In weighing the two NEL assessment reports I would concur with the NEL Clinical Specialist that the findings provided by the second NEL Medical Examiner were more in keeping with those provided by the Empower Work and Life Readiness Program between February and April 2005 and worker’s physician July 2006 medical progress report. These reports were considered important as they were the closest reports to the time of the two NEL assessments. By accepting the second NEL assessment report I acknowledge only the shoulders and wrists had rateable permanent impairments. If one accepted the first NEL assessment report or parts of it most certainly the worker’s NEL award would be higher than 16 percent as there would be percentage of impairments related to the hands and elbows. However, I have accepted the second NEL assessment to be the appropriate report to be used for purposes of determining the worker’s degree of permanent impairment (NEL percentage).
In accepting the second NEL report I also accepted the range of motion deficits recorded in the report to accurately reflect the worker’s degree of permanent impairment when assessed.
I also reviewed the NEL Clinical Specialist’s worksheet and found impairment percentages recorded to be accurate as was the calculation which provided for a 16 percent NEL award. As such, I accept the worker’s 16 percent NEL award appropriately recognized his degree of permanent impairment as it was at the time of his July 28, 2006 second NEL assessment.
Issue # 2: NEL Redetermination
Policy
The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that
the worker’s degree of permanent impairment was previously determined to be greater than zero
the worker’s condition has deteriorated significantly since the last NEL determination, and
12 months have passed since the worker’s last NEL decision.
Analysis
In this case criteria number one and three were met. The criterion which needed to be determined was whether the worker’s condition had deteriorated significantly form the last NEL determination.
The last NEL determination occurred in July 2006. As such medical reporting post July 2006 was reviewed to determine whether a significant deterioration in the worker’s degree of permanent impairment had occurred.
The worker’s physician provided several short narrative reports. However, he did not include range of motion findings which could be compared with the second NEL assessment report to determine on an objective basis deterioration had occurred. The reports in question were dated September 16, 2006, May 29, 2007, October 26, 2007 and October 14, 2009.
The doctor also provided a November 7, 2007 narrative report which recorded “the range of motion to all his joints in the upper extremities is generally full and only limited at times by pain.” Similar information was provided in a May 20, 2009 information letter addressed to the worker representative.
He also provided his clinical notes covering the period September 25, 2007 to
May 15, 2009. These reports did not provide range of motion findings for the upper extremities.
The only range of motion findings found in the record post the July 2006 second NEL assessment was from the two day FAE which was conducted in September 2008. With respect to the September 2008 FAE it was noted the worker had non compensable problems relating to neck, headaches and low back complaints which impacted the assessment. Range of motion findings were provided for the neck along with the bilateral shoulders. Range of motion findings were not provided for the elbows and wrist although grip strength was tested.
The findings related to the neck were not relevant to this case noting entitlement extended to the worker’s bilateral shoulder, elbow, wrist and hand impairments.
With respect to range of motion findings in the bilateral shoulders the following was recorded in the FAE report.
Right shoulder Left shoulder
Active forward flexion 135 degrees 145 degrees
Abduction 115 degrees 120 degrees
External Rotation 60 degrees 65 degrees
Internal Rotation 50 degrees 55 degrees
In reviewing the NEL report the following was noted.
Right shoulder Left shoulder
Flexion 160 150
Extension 170 175
Abduction 95 140
Adduction 105 155
Internal Rotation 30 10
External Rotation 105 80
Comparison
At the time of the September 2008 FAE the following range of motion findings had improved.
Right shoulder Left shoulder
abduction
internal rotation internal rotation
The following range of motion findings were worse.
Right shoulder Left shoulder
abduction
flexion flexion
external rotation external rotation
Although it appeared the overall impairment in the worker’s bilateral shoulders had increased, when I converted the degrees of range of motion into an impairment percentage using the AMA Guides, the degree of impairment was slightly better as it was 11 percent. This finding was based on the following.
From the NEL Clinical Specialist’s August 4, 2006 Worksheet
Range of motion measure Percentage of impairment (AMA Guides)
Right shoulder Left shoulder
Flexion 1 2
Extension 2 2
Abduction 4 2
Adduction 1 1
Internal Rotation 4 5
External Rotation 0 0
12 12
From the September 2008 FAE
Range of motion Range of motion Percentage of impairment
Measured (AMA Guides, pages 35, 36,
37 and figures 38, 41, 44)
Rt. Shoulder Lt Shoulder Rt shoulder Lt shoulder
Flexion 135 degrees 145 degrees 3 3
Extension Not given Not given 2* 2*
Abduction 115 degrees 120 degrees 3 3
Adduction Not given Not given 1* 1*
Internal Rotation 50 degrees 55 degrees 2 2
External Rotation 60 degrees 65 degrees 0 0
11 11
*extension and adduction findings were not recorded in the FAE. As such, the values found in the NEL assessment continued to be used.
Findings
Based on the available medical, evidence the worker’s degree of permanent impairment had not significantly deteriorated from the time of the initial NEL determination. As such, a NEL redetermination would not be in order.
Issue # 3 Employability
Testimony
The worker provided the following testimony in part.
Symptoms in the upper extremities
Hands
He indicated that his symptoms involved pain, numbness and swelling in both hands. He has worn splints for six or seven years and they help a bit. The swelling was only in his hands.
When at home and not performing any activities his pain level in both hands was four or five out of 10 with 10 being the worse pain and 0 no pain. When performing activities which involved use of his hands or activities such as, pushing, working overhead, writing, keyboarding, washing dishes and vacuuming, his hands would swell and his pain level would increase to 8 out of 10.
With respect to writing he is right hand dominant and could write for about one half hour before his hand became swollen and he experienced increased pain. When keyboarding his hands became swollen and turned blue.
Wrists
When using his hands he experienced a sharp pain in his wrists. He mainly used his right hand but when his pain increased he would use his left hand and then experience similar symptoms.
Forearm
He experienced pain and numbness in his forearms. The numbness in the forearms was more than in his hands and wrists.
Elbows
He had the same pain as in his wrists. He also had numbness.
Upper arms
No symptoms. (I gathered this referred to the area between the elbows and the shoulders).
Shoulders
He had a great deal of pain in his shoulders which went into his neck and head causing headaches. He indicated that his shoulders were always part of his problem.
Low back
He has a disc problem with involvement of the right leg. This developed in 2006. When driving, the pain in his back was 7 to 9 and when bending or pushing it was 8 to 10. The pain in his right leg would go down to his foot when driving or bending and was 10. He had the same symptoms while working at the Bay in 2007.
Overall pain level
The worker indicated his overall pain levels in 2007 were as follows.
Back 7 to 9
Neck and shoulders 7 to 9
Elbows 8 to 10
Forearms 8 to 10
Wrists 8 to 10
Hands 8 to 9
With respect to his work placement at the Bay he provided the following information.
The WSIB made arrangements for him to work at the Bay. When at the Bay someone showed him the activities he was to perform and told him how to speak with customers. His activities included putting merchandise back on the floor once a customer had tried it on, walking the isles, sorting clothes and putting stickers on clothes.
He indicated he was 165 cm. (approximately 5 foot four inches) tall. When putting merchandise on the shelves the shelves were at or above his shoulder height. When performing this activity he experienced increased pain in his fingers and hands.
He also indicated that putting stickers on the clothes increased his symptoms.
He told the Bay and WSIB about his problems. The WSIB sent someone to see him and he was told to take breaks every two hours or when he was in pain. He took breaks but his pain level did not return to what it was before his pain increased. For example, his pain level might be 4 to 5 to begin with and increase to 6. After his break his pain level remained at 6 versus 4 to 5. Also, he tried to take more breaks but was told by staff he could not do so. In his opinion, he required breaks every 15 minutes. During his placement he was to work four hours. However he was only able to work between two and one half hours to three hours per day even with breaks. Also, there were many times when he left work early.
The person the WSIB sent out to see him was not with him at all times.
He also indicated language was a barrier. He told the person sent by the WSIB to see him that customers were asking him many questions which he did not understand. With respect to his English he indicated the WSIB gave him one year to participate in English as a Second Language training and to obtain his GED before going on to college. His ESL was stopped in three months. He did not start his GED courses. At the nine month mark he was sent to the Bay. He told the WSIB he did not have an education and wondered how he could read tags and talk to customers. He cannot write English but could read a little bit.
He participated in the work placement for two months and not three as scheduled. He told the Bay he had a lot of pain and swelling in his hands and they were a different colour. The Bay did not say anything and he did not talk with his Case Manager. He did speak with the school and the March of Dimes and indicated the job at the Bay was too difficult and as a result it was stopped.
When I pointed out the reporting in the vocational rehabilitation section of his file showed he completed his twelve week work placement at the Bay he responded that he had not.
With respect to the suitable employment or business (SEB) of light retail sales he could not recall whether he agreed to it although he indicated it would have been a job he was interested in. He did not look for such work in his own community and indicated that he could not do such work although he did not elaborate.
Work performed after the work placement
After his placement at the Bay he worked as a dishwasher in a restaurant for about two weeks. His boss saw that his hands shook a lot and he was laid off.
In 2007 he worked in a warehouse of a friend sorting vegetables. Part of the job involved picking up boxes of vegetables. He worked 20 hours per week and worked for about two or three weeks making minimum wage. While working he had to increase his medication.
Between 2007 and 2009 he looked for work. He went to the March of Dimes a couple of times but they did not help him. He also looked at work where he would perform cleaning activities such as a cafeteria at a mall.
In 2008 he found work with a company called A plus which was a cleaning company. For two or three days of the week he was cleaning a car dealership. He took his wife with him to help. He worked between one and one and one half months before stopping due to pain.
He did not work after that up to December 2009.
Subsequent to December 2009 he returned to A plus working as a supervisor working a couple of hours per day. In this job he moved from place to place delivering cleaning supplies and machines to others for cleaning purposes. If he found an office was not cleaned properly he would have to do it. He performed this activity about once per week. When he did cleaning activities his symptoms increased. He earned $10.00 per hour while working.
When not working his day was spent watching television, going for walks and doing a bit of housework.
He has not applied for Canada Disability Pension (Based on the family physician’s reporting the worker had applied but denied on the basis he had an insufficient number of years worked to qualify for consideration).
Medication
Since he began working a couple of hours per day he takes 3 Oxycocets in the morning and 3 at night. In between he would take five to six Percocets. He indicated the side effects of the Percocet mediation were those of drowsiness, frustration, nervousness and dizziness.
His doctor wanted him to take less medication but if he did he would be in too much pain and would be unable to work. His doctor told him there was nothing more that could be done for him and that he should not be working.
Worker Representative’s Position
The representative provided detailed closing arguments on this issue. I have highlighted some of his comments for this decision.
When considering a worker’s employability all impairments need to be considered. A 2008 MRI of the neck showed the worker had problems at various levels of the cervical spine. These changes would have occurred gradually over time.
When undergoing a FAE in September 2008 the impacts of the worker’s non work related low back problems were not considered. He also read into the record the “Recommendation” section of the report which was found on page 11.
He referenced the narrative reports from his family physician dated May 29, 2007,
October 26, 2007 and March 31, 2008.
He also referenced various sections of LMR reports dated May 28, 2007, July 3rd and 9th, 2007 and the July 31, 2007 LMR Closure Report to show essentially that the work performed during the worker’s work placement exceeded his accepted medical precautions and increased his symptoms. He also noted there were side effects associated with his medication intake and the worker had a language barrier. He was of the opinion that based on a combination of the worker’s medical precautions and language barrier that if a position had been available at the Bay the company would not have hired him.
He also referenced various memorandum and medical reports which he was of the opinion supported a position the worker was unemployable.
In summary, he was of the opinion that when one took into consideration the worker’s lack of English and academic skills, along with his low back and neck impairments and his inability to use his arms the worker was unemployable. He opined if the worker could not perform light sales work what could be perform. He acknowledged the worker was working a couple of hours per day but was just holding on as the work activities increased his pain. He was also of the opinion the worker’s doctor was saying he could not work.
Analysis
The WSIB does not have a specific policy relating to employability. The closest policies relate to the Payment of LOE Benefits, Identifying a Suitable Employment and Business and the Merits and Justice of the case.
Pursuant to the policy relating to the Payment of LOE Benefits, one of the criteria cited for receiving full full LOE benefits was that of the nature or seriousness of a worker’s condition was such that it completely prevented a worker from returning to any type of work.
In this particular case the medical reporting did not support such a finding although I acknowledge the worker representative had a contrary interpretation of the medical evidence. My rationale was as follows.
Firstly, the worker was in receipt of a 16 percent NEL award at the time his full LOE benefits were stopped as of August 1, 2007. The 16 percent NEL award represented rateable permanent impairments in the worker’s bilateral shoulders and wrists. A 16 percent NEL award would not in of itself render a worker totally impaired.
Secondly, the medical reporting post August 1, 2007 from the family physician was not consistent in supporting a finding the worker was unable to work. In fact in his June 15, 2010 note to the WSIB he recorded in part that the narcotics the worker was taking (Oxycontin and Percocet as required) were well tolerated and definitely allowed for a better quality of life and ability to perform at work.
Other reports and clinical notes from the family physician recorded the following information in part.
In a May 29, 2007 brief “To Whom it May Concern” letter it was recorded the worker had been working 3 hours/day at the Bay since April 2, 2007. Despite the very light duties he is experiencing a significant amount of pain in the arms and hands. It would appear at this point that he is unable to tolerate even light work that involves the use of his arms.
October 26, 2007 report to the worker’s representative the doctor recorded the following in part.
He suffers from chronic myofascial pain in his upper extremities and has struggled to improve function since the initial injury in 2001. I continue to see him every 1 to 2 months and he was last in my office October 25, 2007.
He has chronic tenderness throughout his arms on examination. Though his joints are occasionally tender as well as the soft tissues, a rheumatologist has ruled out arthritis. His pain escalates significantly with even light use of his arms. His condition is severe and permanent. Of course, there is little work one can do when both arms are dysfunctional. In my opinion, he will remain unable to work for the foreseeable future at any job for which he is suited with respect to experience and education. Likely he could be retrained to do very light work perhaps 4 hours/day but even that would need to be restricted. As an example, he recently worked in a clothing store and experienced severe arm pain when handing the clothes and especially when he had to reach up. The present job of handling vegetables is part time and clearly inappropriate for him in that there is too much lifting. His symptoms have escalated since starting that job and he only does it because he must have some income to support his family.
November 7, 2007 note to the worker’s representative in which he recorded the worker’s range of motion to all his joints in the upper extremities is generally full and only limited at time of pain. He is always tender to palpation throughout the soft tissues of both his arms and hands.
November 13, 2007 note which recorded in part the worker needed to avoid permanently all tasks that involved heavy or repetitive use of his hands/arms.
March 31, 2008 clinical note in which he recorded Percocet at a dose of 4 tabs/day afford him significant pain relief of his pain and some improved function. It was also recorded long term prognosis was poor given that recent retraining and job placement attempts had failed.
October 10, 2008 clinical note recorded in part the worker was working for a friend cleaning office for 6 to 7 hours per night and was supposed to work 4 hours. It also recorded “clearly can work (on Percocets) and that is all that matters.
January 27, 2009 clinical note entry recorded in part the worker was taking Percocet and that they still worked well for pain and lasted four hours. It also recorded he was taking probably 8 per day when working.
May 15, 2009 clinical note entry recorded in part that before working the worker was taking about 2 Percocets per day and while working 5 to 6 per day. Without the medication the worker rated his pain in his bilateral shoulders/forearms/wrists at 9 out of 10 and with medication 4 to 5 out of 10. It was noted the worker was in more pain but the medication was helping and the worker was working. It was also recorded the doctor explained function vs. pain free was the goal in chronic pain.
May 20, 2009 information letter addressed to the worker representative. The doctor recorded in part that the worker had been working in a janitorial position which was not an ideal occupation for the worker due to the repetitive nature of the job. His use of Percocet had increased from 2 tabs/day up to 5 or 6 tabs per/day while doing the job. Overall his pain was now worse and he had only been able to continue in any work capacity because of the positive analgesic effect of the Percocet.
This man has a longstanding chronic problem that is not likely to improve in the foreseeable future. Any job using repetitive hand/arm motion will be poorly tolerated and in fact his present job had not surprisingly exacerbated his symptoms. Joint range of motion is usually full on examination though he is often tender to palpation diffusely over his arm/forearm musculature.
October 14, 2009 report recorded in part that given the chronicity of his pain and the fact he is trying to work I would like to change him to Oxycontin which will allow for more consistent pain relief and likely improve his sleep.
June 15, 2010 report recorded in part the worker had managed to return to work but it had significantly increased his pain. To keep him at work it is now necessary to maintain him on Oxycontin and Percocet as needed. The narcotics are well tolerated and definitely allow for a better quality of life and ability to perform at work. Side effects are minimal. Use of this medication is felt to be long term.
Thirdly the worker demonstrated he could work albeit it the work was outside of his medical precautions. In a May 6, 2008 clinical note from the family physician he noted the worker was working 7 hours per day performing janitorial work. In an October 10, 2008 clinical note entry the worker continued to work 6 to 7 hours cleaning offices for a friend. As of a January 7, 2009 clinical note entry it was recorded the worker was working at a cleaning job 5 hours/day with lots of pain at the end.
Fourthly, with respect to the worker’s neck and low back impairments these conditions currently would be outside of the worker’s accepted entitlement in this claim. From a WSIB perspective they would have no bearing on the worker’s ability to work or the selection of a SEB as they did not pre-exist his July 2001 work accident. The meaning of pre-existing in this context would be it played a part in the worker’s job selection. For example a worker with a bad back prior to a work accident might be limited to obtaining sedentary employment only. This conclusion was supported by relevant policy 19-03-03 in which the following was recorded in part.
In accordance with the Ontario Human Rights Code, when determining a SEB, the WSIB considers any pre-existing non-work related disability or condition a worker may have.
Fifthly, in my opinion it was counter intuitive to suggest the worker was unemployable when he had demonstrated the ability to work albeit in jobs which for the most part would be unsuitable. In addition, he was not working full hours. It was known from the medical reporting that the worker’s primary problem was that of pain which increased when performing repetitive work with his hands and arms. It was also noted the worker had a reduction in his pain levels for about four hours at a time when taking his medication.
His most recent job as a supervisor of cleaning staff in which for the most part he drove a vehicle from place to place delivering machines and supplies to staff appeared from his testimony to be suitable. He did indicate he had to clean offices about once per week which if done on a daily basis would be outside of his medical precautions. However, so long as the work was not repetitive it could be considered suitable.
In conclusion, based on the evidence I found the worker to be employable.
With respect to the suitability of the SEB of Light Retail Sales on a functional basis, I acknowledge the worker’s testimony with respect to increased pain with certain activities he performed. However, it must be remembered that the objective of the Job Placement was to provide the worker with the opportunity to learn the skills required to perform the SEB while also providing him with some practical experience. The fact that the worker indicated his pain increased when performing duties over his shoulder or buttoning shirts or folding clothes, tagging them and so on did not mean the SEB was unsuitable. It simply meant that applying for a sales position in the Bay in the men’s department might not be a good idea. Based on the NOC manual there were other positions in this SEB which might be suitable for the worker such as Counter Clerk, Department Store Clerk or Retail Sales Clerk.
With respect to having the skills to perform a position in light retail sales the worker’s testimony was inconsistent with information found in the LMR (Vocational Rehabilitation) section of the record.
Whereas the worker indicated he was to be given one year of English training but it was stopped in three months the record showed that he participated in the program from October 11, 2005 to approximately the end of June 2006 attaining Level 4 English.
Whereas the worker indicated he did not start academic upgrading to obtain his GED the record showed that he began training in July 2006 but it was stopped around February 2007 because he was not progressing for various reasons some of which were related to his pain experience and medication side effects and others due to family and personal issues.
Whereas the worker indicated he only completed two out of three months of the Work Placement the record clearly showed he completed the full program as evidenced by the detailed report dated July 9, 2007 from his Employment Support Worker, Kinesiologist.
The worker also indicated he had a language barrier because he did not understand what customers were asking him. At the hearing I found the worker spoke English and understood for the most part what was being said. More importantly the Employment Support Worker found the worker’s English not to be a barrier. In this regard he provided the following information in part.
The worker did demonstrate to work co-operatively with staff and the Evaluator, adhering to their advice and instructions when provided. While working, he remained productive and his quality of work was always high. He demonstrated to learn and apply and retain instructions provided by supervisors. The worker also managed to remain professional with customers and supervisors despite his reported pain levels and other discomforts related to medication.
On the issues of the worker’s language and academic upgrading as well as his participation in his Work Placement I accept the evidence in the record over the testimony of the worker due to its contemporaneous nature.
An important document in my opinion found in the LMR section (Vocational Rehabilitation) section of the file was the final report dated July 9, 2007 provided by the Employment Support Worker who specialized in Kinesiology. Although the worker indicated through his testimony that the Support worker was not with him all the time it was evident from the thoroughness of the report that the Employment Support Worker had sufficient information to comment on the worker’s general work readiness, the skills learned by the worker, his demonstrated abilities, the physical tolerances of the work and strategies he imparted to the worker to assist in pain management. The conclusion of the report was as follows.
Overall, the worker demonstrated the ability to work within the NOC 6421. Despite high levels of absenteeism, he was observed to gain great benefit from the placement, by learning the essential duties of a retail clerk. He would be well advised to continue implementing the strateigies made by this Evaluator in order to assist him sustain work within the NOC 6421.
Even if one found the SEB not to be suitable there were positions within SEB NOC 6683 Other Elemental Service Occupations which would include Car Jockey, Door Attendants, Parking Lot attendants and ticket takers which had no specific educational requirements. In other words the fact the worker did not have his Grade 12 equivalency would not be a barrier to obtaining this type of employment. The worker’s verbal English would not be a barrier either as demonstrated in the oral hearing and as reported by the LMR Service Providers.
Therefore based on the evidence I find the worker was employable in the SEB identified or in SEB NOC 6683 Other Elemental Service Occupations.
However I also found that the worker was only capable of working four hours per day at the time his LMR plan ended in July 2007. The reasons were as follows.
When participating in his job placement the worker was unable to increase his hours of work beyond four hours per day.
There was information provided by the worker’s physician which recorded the worker could work four hours on light duty (reporting of October 26, 2007 and October 10, 2008). Also he provided information which recorded the worker experienced a reduction in his level of pain for approximately four hours when taking his medication.
There was also objective evidence as provided by a September 2008 FAE with respect to the worker’s ability to function. Based on a September 5, 2008 assessment it was recorded in part the worker demonstrated tolerance was not greater than four hours, reduced productivity, poor response to repetitive, bilateral handling and reaching, a strength level within the “limited” range.….
Although the worker demonstrated an ability to perform more hours of work after his LMR plan was completed in work which was clearly considered to be unsuitable, it had been at a cost of the worker having to increase his intake of narcotic medication. This would not be an outcome the WSIB would be striving for.
CONCLUSION
The objection is allowed in part.
Denied
The percentage of the worker’s NEL award, determined to be 16 percent was confirmed.
A NEL redetermination was not warranted as available medical information did not support a finding the worker’s degree of permanent impairment has significantly deteriorated from that recognized by his NEL award
The worker was unemployable
Allowed
The worker was employable working four hours per day. As such, his loss of earnings benefits need to be recalculated commencing August 1, 2007 on the basis the worker could work four hours only.
DATED November 8, 2010
Bob Howarth
Appeals Resolution Officer
Appeals Branch