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WORKPLACE SAFETY AND INSURANCE BOARD
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## APPEALS RESOLUTION OFFICER DECISION
**DECISION NUMBER:** 20100166
**OBJECTION BY:** Worker
**EMPLOYER:** Out of Business
**HEARING DATE:** AUGUST 25, 2010
**REPRESENTATIVE:** Worker Representative
This was scheduled for a hearing. Instead, an informal discussion occurred with the worker representative.
## ISSUE
The final review of loss of earnings (LOE) benefits.
## HOW THE ISSUE ARISES
### Prior Claim
On June 16, 1992, the worker injured his left shoulder and left mid-thoracic area when pulling a pork hide in an overhead position. The worker was granted a 20 percent non-economic loss (NEL) award for chronic pain disability.
### Current Claim
On February 3, 2004, the worker, a 42 year old washer/loader noticed a gradual onset of left elbow pain. Entitlement was accepted for left epicondylitis. Loss of earnings benefits were paid for February 4, 2004.
By April 2, 2004, both elbows were sore. He was diagnosed with bilateral epicondylitis. On August 24, 2004, he provided a note to the employer that indicated he could not do regular work.
Entitlement was accepted for bilateral epicondylitis in September 2004. Full benefits were paid from August 24, 2004.
The employer offered modified work but the worker was reluctant to return indicating the work was not suitable for his elbows and shoulders. Entitlement for the shoulders was not addressed at this point; although, the need to do so was identified in memo 34 dated November 4, 2004.
A mediation and ergonomic assessment occurred in November 2004. The worker returned to modified duties as a glass cutter assistant on November 29, 2004. This was supposed to be full time work but memo 71 shows that the worker only worked part time. In December 2004, he told the nurse case manager that he had increased pain, especially at the end of the shift. He continued in these duties until he was laid off as of February 11, 2005. Full benefits were restored. The accident employer subsequently went out of business.
In the meantime, the worker was referred to the WSIB Upper Limb Clinic for assessment. A bilateral MRI of the shoulders was done and shoulder surgery was recommended.
The worker had a right shoulder arthroscopy on September 23, 2005 and a left shoulder arthroscopy on November 24, 2005. This was followed by physiotherapy. The medical documentation reported problems with pain control and medication use.
The worker attended a functional abilities evaluation in June 2006 and presented at the limited strength level.
In June 2006, the adjudicator indicated that the worker would be referred to a pain management clinic and then to Homewood for drug dependency treatment. In September 2006, the worker indicated he was reluctant to attend Homewood as he did not have care for his pet in his absence. He was waiting for referral to a pain clinic.
In December 2006, the adjudicator requested a medical opinion on entitlement for the neck. The referral memo indicated that entitlement included both elbows and shoulders. A review of the claim shows that a formal decision was not made on entitlement for the shoulders. The medical consultant did not support that the neck was related to the elbow or shoulder conditions in this claim.
In January 2007, the medical consultant indicated that the worker was partially disabled with significant restrictions for heavy lifting, forceful pulling and pushing and repetitive above shoulder work. With respect to the neck, he restricted working with the arms extended to the horizontal, heavy lifting and any rotational movement of the cervical spine.
The worker was referred for labour market re-entry (LMR) assessment in February 2007. The LMR assessment report did not recommended a plan for the worker comparing the barriers to employment to potential direct entry suitable employment or business (SEB) options.
In March 2007, the adjudicator accepted that the worker was not employable. Full LOE benefits were to be paid to February 2010 when the final review was due. The worker was told that unless there was some significant change in his condition that these benefits would continued to age 65.
The worker saw a neurosurgeon for his neck. The neurosurgeon report was reviewed by a medical consultant in August 2007. He noted degenerative disc disease at multiple levels in the cervical spine accounting for his neck problems. The medical consultant reiterated that these problems were not related to the injuries in this claim. A further medical consultant review in August 2008 confirmed this opinion.
A discussion occurred with the worker in February 2010 prior to the final review for loss of earnings benefits. He indicated that the drug dependency issue was resolved and that he was taking a manageable amount of medication. He reviewed the treatment he had received with regard to pain management. He was advised that a formal decision had not been made on entitlement for the shoulders. The worker indicated he was unable to work because of his physical injuries and the medication he was taking.
The case manager made a formal decision in February 2010 which granted entitlement for the bilateral shoulder condition and concluded that the drug dependency related to this claim had resolved. She concluded that the worker remained unemployable. This was reviewed by the manager who concluded that the worker was able to return to the workforce in an elemental service position on a part time basis.
The worker was provided with a 4 week job search assistance program. The worker disagreed that he was able to work but did attend the program. The worker was advised in the letter dated March 9, 2010 that partial loss of earnings benefits would be paid at the final review.
## AUTHORITY
18-03-02 Payment of LOE Benefits
18-03-03 Reviewing LOE Benefits
18-03-06 Final LOE Benefit Review
19-03-02 LMR Assessments
19-03-03 Determining Suitable Employment or Business, and Earnings
19-03-05 LMR Plans
19-03-10 Co-operating in LMR
## ASSESSMENT OF THE EVIDENCE
I am satisfied that the worker is unemployable. I considered the following:
- Memo 27 dated October 27, 2004 documented a call from the physiotherapist recommending a pain clinic.
- The worker returned to work with the employer for just over two months from late November 2004 to early February 2005. This worker did not agree that the job was suitable but he was able to perform it. The ergonomic report dated January 17, 2005 identified that the job was suitable. This job did not exceed the restrictions of:
- No repetitive movement of the involved joint against resistance
- Limit rotation (supination/pronation) pulling, pushing and lifting
- No repetitive gripping
I note the job did involve above shoulder reaching every six minutes but the ergonomist was satisfied that this would not aggravate the worker’s right shoulder injury.
- Entitlement was later accepted for a permanent impairment of the bilateral shoulders. The worker had shoulder surgery after the return to work with the employer on modified duties. As this work involved some above shoulder reaching, this job exceeded his restrictions with the expanded entitlement in the claim.
- The WSIB Upper Limb Specialty Clinic recommended a psychological assessment. This was done in February 2005. Dr. Shapiro diagnosed a Major Depressive Episode. At that time, he did not recommend pain management strategies. The worker did not express much interest in psychotherapy but was open to anti-depressants. It was recommended that if the worker’s condition worsened that he might benefit from individual therapy including pain management strategies and cognitive behavioural strategies to address depression and perhaps worry.
- The April 29, 2005 report from Dr. McMurtry of the WSIB Upper Limb Specialty Clinic identified that the worker could use his elbow for virtually any activity he wished but must avoid impact loading such as would occur with sports, shovelling, pneumatic drills,
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