WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100174
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
ISSUE
The worker is objecting to the Case Manager’s May 21, 2009 decision and specifically, the finding that the worker has the skills and functional abilities to earn minimum wage in the suitable and available employment or business (SEB) of Other Sales and Related Occupations.
HOW THE ISSUE ARISES
On June 6, 2002 a wall-mounted filing cabinet fell and struck the worker’s right upper extremity. Initial adjudication of the claim was delayed due to legal action that was subsequently withdrawn.
On February 19, 2009 the Case Manager referred the worker’s file for a non-economic loss (NEL) assessment for permanent right forearm impairment. The NEL clinical specialist determined there was sufficient medical evidence to proceed with a rating and the worker was awarded a 7% NEL benefit for right forearm myofascial pain. The worker was advised of the NEL rating and benefit in a form letter dated March 14, 2009.
On May 21, 2009 the Case Manager wrote to the worker to confirm the following:
Initial entitlement and permanent impairment was accepted for “soft tissue injury” right arm
Full loss of earnings (LOE), less short-term disability benefits, was accepted for the period June 6, 2002 to August 29, 2003
Effective August 29, 2003 the worker was fit to return to work with restrictions for avoiding repetitive movements of the right forearm against resistance which could include movements such as gripping and pinching, twisting, pushing and pulling
The pre-injury duties exceed the worker’s functional abilities
The worker did not make any effort to mitigate her wage loss
The SEB of Other Elemental Sales Occupations was suitable and within the worker’s functional abilities with SEB earnings equal to minimum wage
Effective August 29, 2003 the worker was entitled to partial LOE based on the ability to earn minimum wage
On June 1, 2009 the worker representative wrote to the Workplace Safety and Insurance Board (WSIB) objecting to the suitability and availability of the SEB. On the Objection Form signed June 23, 2009 the representative requested full LOE benefits from August 23, 2003 to age 65.
The worker’s objection was referred to the Appeals Branch and on October 29, 2009 the representative provided a submission arguing that additional precautions of no overhead work or lifting greater than 10 pounds she be recognized in her restrictions and providing additional evidence to support her argument that the SEB is not suitable or available.
AUTHORITY REFERENCES
Policy Document 19-03-03, Determining Suitable and Available Employment or Business, and Earnings
RESOLUTION METHOD AND PROCESS
The worker representative provided a written submission. The employer is not participating.
ASSESSMENT OF THE EVIDENCE
The worker representative’s October 29, 2009 submission states, in part,
“It remains (the worker’s) position that she could not even work at a minimum wage job given her skills and difficulties she experienced and continued to experience with her compensable arm injury…
Regardless, the compensable injury significantly impacts her dominant arm. We would suggest additional precautions of no overhead work or lifting greater than 10 lbs. would be reasonable given her symptomatology and the objective findings of swelling, tenderness, tingling, decreased grip strength and muscle wasting as noted in the medical reports.
She has constant aching and any minor movement puts her arm into spasm from her elbow to her wrist. If she does grip or grasp anything for a longer period of time (5 minutes) her pain levels increase to 8/10. She is unable to grip a pen and write anything more than a couple of sentences. If she attempts to write longer her arm freezes up.
She has tried to use a computer at home and after 5 minutes her arm turns cold inside and out and begins to spasm. The same occurs when she carries a plate of food. She cannot reach overhead without excruciating pain and has altered her duties at home so that she paces herself and takes many breaks or no longer partakes in certain activities. She experiences difficulties grocery shopping with gripping and grasping, reaching, lifting items and well as packing them into bags. She cannot pack or unpack her own groceries and requires help with these activities.
Although she did work as an RN she does not have many transferable skills…The office manually charted and she did not use a computer in her employment. She does not have experience with programs such as word, excel or any accounting or bookkeeping programs and does not know how to use these programs…
While some minimum wage jobs may be within her restrictions such as a greeter, there is an issue of availability with this type of job. There is only one store which currently employs a greeter – Wal-Mart. There are only 3 stores within a 60 km radius of (the worker’s home), with only one directly in (the worker’s home town).”
The worker has not objected to the 7% NEL rating and therefore, my decision must take into consideration the objective findings representative of that 7% rating for right forearm myofascial pain.
I reviewed the medical evidence used to determine the 7% NEL benefit. Dr. Clifford’s report of October 31, 2002 states, in part,
“Currently, she reports episodic symptoms of “deep heavy ache” in the right forearm – once again, most prominent from the elbow into the wrist. She denied the former feelings of “tight, hard pain”. There was also no report of numbness, tingling or paresthesia. She reports that she does have tingling always except while spasms going.
These symptoms would occur periodically (eg. 4-5 times per day), associated with repetitive activity (emphasis added)…”
Dr. Roth’s report of May 23, 2003 states, in part,
“She has been investigated with plane radiographs, EMG, and bone scan, which have all been negative. She has tried physiotherapy including the multiple modalities which have helped her with some of her symptoms but not fully relieved them…
On examination today…Her motor strength is reduced and grip strength was 8kg on the right versus 22 on the left. She has 6-mm two-point discrimination in the median and ulnar nerve distributions of both hands (emphasis added). She has tenderness to palpation over both the flexor pronator mass as well as the supinator mass. There is also tenderoness in both the cubital tunnel, about the medial elbow, as well as over the lateral epicondyle. She is unable to localize a maximal point of tenderness in that the whole arm is tender.
On further enquiry, she denies any skin changes over the area and no flushing or erythema that would be consistent with an RSD. She does complain though of a feeling of cold sensation trickling down along the forearm…
The thought is that (the worker) may have had a soft tissue injury to her forearm which is slow to heal. There is no objective bony or neurological pathology to be identified. We recommend ongoing conservative measures with physiotherapy as well as possible use of a forearm splint. A tennis elbow type of brace could be employed as well…”
Dr. Batorowicz’s report of August 15, 2003 states, in part,
“She is taking for pain and discomfort Advil 600 mg 2-3 x a day. She has constant feeling of tingling inside of the right forearm. She has pain of the right shoulder with movement against resistance and she experiences the muscles spasm because of dropping objects on occasion. She saw Dr. Roth who advised her to use the splint and she was also seen by a neurologist…
On physical examination…The peripheral pulses including the radial and ulnar pulses of right hand were regular and present. There was no discolouration of the right hand versus left except for less suntan on the right forearm because of using the splint during the day.
There was no interosseous muscle wasting, however, the right forearm was a little bit thinner than the left secondary to disuse or limited pronation and supination when wearing the splint.
There was no extensive sweating of hands. They were symmetrical and venous system was symmetrical as well. The range of motion of the MP joints, wrist, dexterity and sensation seems to be intact, however, there was collapsing weakness to pulling and dorsiflexion of the right hand and it is because of the discomfort.
Pronation and supination was full, however, it was uncomfortable and there was tenderness of the brachial radialis tendon. Also, the right lateral epicondyle was very tender to palpation as compared to the opposite one…
IMPRESSION:
Rather myofascial type of pain with the brachial radialis tendonitis and symptoms of tennis elbow.
RECOMMENDATION:
Rather then using the splint, the patient might use the tensor with activities, continue with her physiotherapy, especially squeezing the soft ball…We offered her the Cortisone injection into the tender tendons and epicondyle, but at present (the worker) declined…”
On March 7, 2009 the worker’s family physician wrote to the WSIB stating,
“I have not seen (the worker) with respect to this injury since July 21, 2003. I did see her October 3, 2005 but this was regarding an unrelated matter…
She has not returned to work as a nurse in this medical clinic, where she was previously employed and where the accident occurred. I do not know whether she has been able to return to any other employment or if she has any ongoing medical restrictions.”
In comparing the complaints and findings in the medical reports with the complaints reported by the worker representative, I find there is inconsistency in the complaints. The complaints cited by the representative are significantly greater than the clinical reporting but yet the evidence suggests the worker has not sought treatment or advice from her family physician since July 2003. In my assessment of the credible clinical evidence, including the NEL rating, the worker’s right forearm impairment does not render her completely unable to work. I also find the restrictions stated in the May 21, 2009 to be reasonable given the degree of permanent impairment accepted.
While I do not agree with the worker representative’s position on the worker’s fitness to work, I do agree that the SEB identified exceeds the worker’s functional abilities. Policy document
19-03-03 states,
“A SEB represents a category of jobs suited to a worker’s transferable skills that
are safe
are within the worker’s functional abilities
reduce or eliminate the loss of earnings resulting from the injury
are achievable after LMR, and
are available in the local labour market.
“Available” means that employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job.”
The WSIB uses the National Occupational Classification (NOC) to help identify a SEB and earnings for a worker. The SEB is represented by the three-digit minor group NOC code and earnings are established using the four-digit unit group NOC code(s).
The case manager identified the SEB Other Sales and Related Occupations, NOC code 662. There are three unit groups within this SEB:
Service Station Attendants, NOC code 6621
Grocery Clerks and Store Shelf Stockers, NOC code 6622
Other Elemental Sales Occupations, NOC code 6623
Specific emphasis was placed on the unit group Other Elemental Sales Occupations. Within this unit group there are five sub-unit groups:
Direct Distributors, NOC code 6623.1
Door-to-Door Salespersons, NOC code 6623.2
Street Vendors, NOC code 6623.3
Telephone Solicitors and Telemarketers, NOC code 6623.4
Demonstrators, NOC code 6623.5
The only realistic sub-unit group is Telephone Solicitors and Telemarketers; however, this tends to be a high pressure industry and would likely lead to repetitive use of the right hand and arm. As such, I am unable to conclude that it is within the worker’s functional abilities.
I also researched the SEB Library, Correspondence and Related Information Clerks, NOC code 145. There are four unit groups within this SEB:
Library Clerks, NOC code 1451
Correspondence, Publication and Related Clerks, NOC code 1452
Customer Service, Information and Related Clerks, NOC code 1453
Survey Interviewers and Statistical Clerks, NOC code 1454
I focused on the unit group NOC code 1453, Customer Service, Information and Related Clerks. Customer service clerks in retail establishments answer questions and investigate complaints regarding establishments’ goods, services and policies, and provide services such as receiving payments and processing requests for services. Examples of job titles are complaints clerk, counter enquiries clerk, courtesy desk clerk. Information clerks provide information to the public about goods, services, schedules, rates, regulations and policies of establishments in response to telephone and in-person questions. Examples of job titles are bus information clerk, hospital information clerk, tourist information clerk, counter enquiries clerk. This unit group NOC is within the worker’s skill level and although the physical demands require some use of the right upper extremity, I am unable to conclude that they would require repetitive use of the right upper extremity. Given the worker’s nursing background, she would be a desirable candidate for a hospital information clerk position.
With respect to SEB earnings I am unable to conclude that potential employers would like offer more than minimum wage and therefore, the current SEB earnings are appropriate.
CONCLUSION
I conclude that:
The SEB Other Sales and Related Occupations is not within the worker’s functional abilities.
The SEB Library, Correspondence and Related Information Clerks is suitable and within the worker’s functional abilities.
The SEB earnings of minimum wage are appropriate.
The worker’s objection is allowed, in part.
DATED this 22nd day of September, 2010.
L. King
Appeals Resolution Officer
Appeals Branch