WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100185
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative
HEARING LOCATION: N/A
ISSUE
The worker is appealing for further future economic loss (FEL) benefits, as she contends she is incapable of her accepted suitable employment or business (SEB).
HOW THE ISSUE ARISES
This file is well summarized in the numerous appeals resolution officer (ARO) and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions, and will only be reviewed briefly here.
This now 50 year old was a painter and plasterer when she developed pain and stiffness in her right arm, shoulder and neck area by September 1, 1994.
There was an accepted diagnosis of cervical strain, rotator cuff strain and right sided carpal tunnel syndrome (CTS).
The January 6, 1995 regional evaluation centre (REC) report indicated remaining diagnoses of mild right sided CTS, right shoulder myofascial strain with trigger points.
The June 1995 Downsview Rehabilitation Centre Discharge Report recommended a return to work and permanent modified duties avoiding heavy lifting, overhead activity and repetitive forceful use of the right arm against resistance.
The worker received a 9 per cent non-economic loss (NEL) award in January 1997 in recognition of right wrist and right shoulder injuries.
In terms of vocational rehabilitation, it was found that there would not be any return to work possibilities with the accident employer. After vocational rehabilitation assessments, the worker was sponsored on a Bachelor of Social Work program at Ryerson University, starting September 4, 1996. She was also allowed to take additional courses at the University of Toronto.
However, the worker subsequently suggested that this would lead to an uncertain employment outcome. She then requested sponsorship in a Bachelor of Arts program at the University of Toronto followed by a one year program at a Teachers College. The request was denied.
The September 8, 1997 mediation officer decision allowed the worker a two year program to finish her Bachelor of Arts degree at the University of Toronto along with a one year course at a Teacher’s College.
Psychiatric entitlement was subsequently granted to the worker. This resulted in a 20 per cent NEL award by February 1998 for her psychotraumatic condition. The worker appealed the 20 per cent award.
The April 30, 1998 ARO decision upheld the 20 per cent award and denied the worker any increase.
The April 22, 1999 ARO decision denied the worker any entitlement to a left upper extremity condition and denied her entitlement to any chronic pain disability (CPD) or fibromyalgia condition.
The worker subsequently appealed for left upper extremity entitlement, an increase in her 9 per cent right upper extremity award and an increase in her 20 per cent psychotraumatic award.
The June 22, 1999 WSIAT decision confirmed the worker’s existing right upper extremity and psychotraumatic awards. It also denied CPD entitlement and left upper extremity entitlement.
The March 6, 2000 ARO decision allowed the worker’s appeal for entitlement to a Master’s level University program (to be completed in one and a half to two years), as it would completely eliminate any wage loss.
It appears that the worker had not been accepted at Teacher’s College, and she was on track to complete her Master’s degree in 2002. She then requested additional sponsorship, so she could obtain her PhD. This was denied by the operating area.
The October 16, 2001 ARO decision allowed the worker sponsorship for her first year of a PhD program. It was concluded that this would complete her LMR plan and restore her pre-accident wages. The three additional years requested by the worker for the completion of her PhD program were denied, as the one year program had completed the WSIB’s obligation to the worker.
The August 12, 2002 WSIAT decision confirmed the October 16, 2001 ARO decision. It concluded that the worker had been amply supported in her LMR plan. Her ability to perform the job of School Teacher was confirmed, and she found to have the capacity to earn wages as a school teacher. She had no further entitlement to any LMR services, and her capacity to obtain work in her SEB was upheld.
The January 20, 2003 WSIAT decision denied the worker any entitlement to a reconsideration of the August 12, 2002 decision.
The worker’s appeal for a NEL reassessment and for textbook coverage for her PhD program was allowed in the August 7, 2003 ARO decision. She was denied any entitlement to a NEL reassessment, and she was denied any coverage to books in her University program.
The worker requested neck entitlement, a NEL assessment for a neck permanent impairment and FEL supplementary benefits (based on her need for medical rehabilitation for her neck). The February 4, 2008 claims adjudicator letter denied these requests.
The November 20, 2008 ARO decision allowed for neck entitlement and for a neck NEL assessment to be arranged whenever the operating area determined maximum medical recovery (MMR) had occurred for the neck. FEL supplementary benefits were allowed from May 1, 2007 (when the worker discontinued work as a Research Assistant Tutor) to date. Ongoing benefits were to be reviewed by the operating area upon receipt of up-to-date medical documentation. The decision also denied the worker any entitlement to NEL reassessments for the right shoulder, right arm, right wrist or psychotraumatic impairment.
The December 17, 2008 ARO reconsideration allowed for a neck MMR date of June 28, 1995 for NEL purposes.
The August 11, 2009 ARO decision allowed the worker entitlement to a drug dependency program.
The November 26, 2009 WSIAT decision denied the worker any entitlement to NEL reassessments for her right upper extremity and her psychotraumatic impairment. She was also denied entitlement for her request for psychotherapy treatment coverage.
The March 2, 2009 NEL decision granted the worker an additional 3 per cent award (on top of her existing 27 per cent award) in recognition of her cervical condition. However, the worker objected to this decision, and her cervical condition was reassessed.
The November 9, 2009 NEL determination found that the worker’s NEL award should be increased due to the nature of the cervical condition. This led to a total 60 per cent award.
Further FEL supplementary benefits were denied in the January 18, 2010 case manager decision. It was concluded that the worker received sufficient supplementary benefits during her medical rehabilitation program, which allowed her to recover from her neck surgery. The recovery was considered complete. It was also concluded that the residual physical restrictions from her neck injury did not prevent a return to work in her accepted SEB. The WSIAT had already confirmed the SEB was compatible for her psychotraumatic and right upper extremity conditions.
AUTHORITY
Operational Policy Manual (OPM) document(s):
- 18-04-02 – FEL Presumption
- 18-04-03 – Date of Determination
- 18-04-05 – Initial Determination – Workers Who are Earning at Time of Determination
- 18-04-06 – Initial Determination - Where Suitable and Available Employment or Business has been Determined
- 18-04-13 – FEL Sustainability Benefit
- 18-04-14 – Reviewing FEL Benefits
- 18-04-19 – Objections to FEL Determinations
- 18-04-20 – Final FEL Benefit Review
- 19-03-03 – Determining Suitable Employment or Business, and Earnings
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I have reviewed the record and have examined the evidence. The key issues in this appeal include:
The limits on my decision making authority resulting from the WSIAT and ARO decisions found on the file, and
With the residual decision making ability left to me, the extent to which the worker’s compensable conditions prevent a return to work in her accepted SEB.
As indicated in the previous section, ARO and WSIAT decisions have determined that the worker has the mental and physical capacity to obtain and perform work as a teacher either in a school setting or a university setting. When the August 12, 2002 WSIAT ruling was made, the worker had a 9 per cent NEL award for her right upper extremity and a 20 per cent NEL award for her psychotraumatic condition.
Currently, the worker’s right upper extremity permanent impairment level remains at 9 per cent and her psychotraumatic condition remains at 20 per cent. Hence, I am required to accept that the worker has the psychological capacity and the right upper extremity capacity to perform work in her accepted SEB. I do not have the authority to change this.
In the worker’s submissions, she makes extensive reference to the psychological reporting on file to substantiate that she has been rendered incapable of a return to work in her SEB. She made reference to her cognitive capacity, her ability to concentrate, her ability to recall information and her ability to interact with students and colleagues. Dr. Kiraly also questioned whether her depressed mood, irritability and low stress tolerance would allow a return to work. Yet, I am unable to accept any of these arguments, as the previous WSIAT decision ruled that the worker’s 20 per cent psychotraumatic permanent impairment level was not a barrier to a return to work in her accepted SEB.
However, even if I had the decision making authority here I would not accept the worker’s arguments. There is extensive evidence that contradicts the worker’s assertions, and it appears in the form of her own extensive letter writing. If the worker had the cognitive, intellectual and interactive deficits that she asserts, she would not have the capacity to analyze such massive amounts of documented evidence, synthesize the details into logical arguments and express herself in such an erudite manner. This is clearly not reflective of an individual with psychological capacities that render her incapable of a return to work in the accepted SEB.
Regardless, this is a moot point, as I do not have the authority to find her psychologically incapable of her SEB.
Similarly I do not have the authority to find that her right upper extremity physical restrictions would prevent any return to work in her accepted SEB. This has already been determined by the 2002 WSIAT decision.
This only leaves the issue of the impacts of the worker’s cervical permanent impairment on her capacity to perform her accepted SEB. Does this condition prevent a return to work in the SEB? This is the only issue I can consider in this worker’s appeal.
In regard to this issue, the only reporting I note that comments on the worker’s neck capacity for the SEB is in Dr. Wong’s reports from the Ontario Health Clinics for Ontario Workers (OHCOW). Dr. Wong suggests that the worker is psychologically incapable of her SEB duties, but, as indicated, I do not have the authority to accept these arguments. Indeed, Dr. Wong indicated that the psychological condition is the main reason that the worker cannot perform her SEB.
Dr. Wong provided few details regarding the return to work barriers posed by the worker’s neck injury.
Dr. Wong suggested that the most significant physical barriers faced by the worker (by both her neck and right upper extremity) consist of her requirements to hold and carry books, move educational materials and sustain neck flexion while she reads, writes, or uses a computer. He advises that the barriers he listed were relayed to him by the worker in their conversation.
I have worked as a secondary school teacher, and I have worked extensively in the field of vocational rehabilitation. These suggested barriers are easily remedied by workstation accommodations. Indeed, I find that the barriers identified can be easily addressed with self-accommodation by the worker and simple planning on her part. There are specialized book holders, devices to adjust computer monitor height and distance as well as ergonomic seating to address other related barriers. She also has the option of interspersing her reading and writing times.
As a result, I find there is insufficient evidence to support that the worker’s cervical condition has rendered her incapable of her accepted SEB. Hence, her compensable condition does not prevent her from fully reapproximating her pre-accident income. She is not entitled to any further FEL benefits.
If the worker does appeal this decision to the WSIAT and appeals for recognition that the cervical condition renders her incapable of her SEB, the WSIAT will likely need to look at the November 20, 2008 ARO decision that accepted cervical entitlement. It would be a significant sub issue. That decision accepted that six weeks of set painting and plastering duties led to a neck strain condition that resulted in a need for significant cervical surgery some 14 years later. A medical opinion would likely be of assistance to the Tribunal before it proceeded to any decision.
CONCLUSION
I conclude:
Due to the constraints set out by the 2002 WSIAT decision, I have no authority to accept that either the worker’s psychotraumatic condition or her right upper extremity condition pose any barrier to her return to work in the worker’s SEB.
There is insufficient available evidence to support that the worker’s cervical condition would prevent any return to work in her accepted SEB. The few suggested barriers noted in the reporting could easily be addressed by workplace accommodations or even
self-accommodation by the worker. Hence, the worker does not have any further entitlement to FEL benefits in this claim.
If the worker appeals these issues to the WSIAT, the Tribunal will likely also need to review the acceptance of neck entitlement in the November 20, 2008 ARO decision, as it is integrally part of the worker‘s appeal for recognition of an incapacity to work.
The worker’s appeal is denied.
Dated: June 10, 2010
P. Prummel
Appeals Resolution Officer
Appeals Branch