Worker v. Employer, 2010 CanLII 96238

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

decision number: 20100190

OBJECTION BY: Worker

EMPLOYER: Not participating

REPRESENTATIVES: Worker

HEARING DATE: July 13, 2010

ATTENDEES: Worker

Worker Representative

ISSUES

The worker objects to the decision dated January 14, 2010 and seeks the following:

1. A Non-Economic Loss (NEL) assessment

2. Loss of earnings (LOE) benefits from June 24, 2007

3. A Labour Market Re-entry (LMR) assessment

HOW THE ISSUES AROSE

Claim A – On January 27, 1993, this then 28 year old labourer reported right wrist and forearm pain related to her job duties. The claim was initially accepted for right wrist and forearm tendonitis and following an Appeals Resolution Officer decision, entitlement was extended to include the left wrist. The worker received full temporary total (TT) benefits from January 28, 1993 to May 26, 1994. The claim was reopened and full TT was restored from October 16, 1996 to April 1, 1998, during which time the worker was involved in LMR services and was retrained as a Computer Support Specialist.

A Future Economic Loss (FEL) was awarded from April 1, 1998 with supplementary benefits paid to October 31, 2000.

The worker was referred for a NEL assessment and the award was determined to be 27% for impairments to both wrists, elbows and shoulders.

Claim B - On February 8, 2005, this then 40 year old quality inspector slipped on ice in the parking lot and sustained injuries to the left shoulder and left elbow. Although a claim was registered with the WSIB, no further action was taken due to outstanding information and a decision was not rendered.

The claim was re-opened and following a field investigation ongoing entitlement was accepted for the left shoulder and LOE was approved from May 9, 2005 to November 5, 2007, less assignable benefits to the worker’s insurance carrier.

Following a review by the WSIB medical consultant, it was determined that there was no permanent left shoulder impairment and the worker was fit to return to the pre-accident job. LOE was rescinded to June 24, 2007, exclusive, as the worker accepted a voluntary severance package from the accident employer effective June 23, 2007.

All parties were informed of this decision in a letter dated January 14, 2010.

AUTHORITY

Operational Policy Document 11-01-05 Determining Maximum Medical Recovery (MMR)

18-03-02 Payment of LOE Benefits

18-03-03 Reviewing LOE Benefits (Prior to Final Review)

18-05-03 Determining the Degree of Permanent Impairment

19-03-01 Overview

19-03-02 LMR Assessments

19-03-04 Entitlement to LMR Plans

19-03-05 LMR Plans

ASSESSMENT OF THE EVIDENCE

The worker provided testimony. She acknowledged she had a prior claim for injuries to both hands and both wrists due to the use of vibratory tools. She stated this was a nerve injury and she had radiating symptoms up the arm to the shoulder and therefore, received entitlement for the left shoulder.

The worker confirmed she was hired with the accident employer as an inspector of automobile air bags in the department titled Customer Focus. She stated that material handlers would deliver 40 lb boxes to her work station, with each both containing 20 air bags. She would take out five bags at a time, unfold them and spread them out on a lighted table. She would inspect the bags for damage, turn them over and inspect the sewed tags. She would then refold the bags and place them back into the box. She would re-tape the box and lift it to the floor to be removed by a material handler.

The worker confirmed she had no difficulty doing this work and required no modification to the job or assistance of any kind.

The worker stated that after the accident of February 8, 2005 she had an injury to the rotator cuff. She experienced “terrible, terrible” pain and weakness in the shoulder and lack of strength to the point that she was dropping things. She also experienced a snapping and clicking noise if she reached with the left shoulder.

The worker testified that the injury of February 8, 2005 was a different sort of pain and in a different area than that of her prior claim. She explained that the injury required two surgeries; one to repair the rotator cuff and the second for inflammation. The worker was attending physiotherapy in June 2007 and was getting a little better. She was told by the physiotherapist that it would take time for her to heal. However, her treatment was interrupted at this time as the physiotherapist was moving and she developed a very severe sinus infection. She was on antibiotics and an anti-inflammatory and eventually had surgery to drain the sinus. She stated she was “barely functioning” during this time. She was in terrible pain and the shoulder was weak.

When questioned about the acceptance of a severance package, the worker explained that she had no source of income and did not know if the WSIB would accept her claim. She was not receiving any assistance or support and therefore accepted the severance package.

In November 2007 she recovered from the sinus infection and attempted to return to physiotherapy treatment. However, her insurance carrier would not cover the costs and she was on a wait list for treatment at a local hospital. In early 2008 she was assessed and provided with treatment on a monthly basis. The treatment consisted of acupuncture, TENS and treatment with an elastic band. She has attended monthly until recently as she has commenced hydrotherapy.

She remains under the care of her family doctor and sees him twice monthly. She currently takes Percocet on a daily basis but could not provide the dosage. She will also take Tylenol #3 if the pain is bad. She has not returned to see the surgeon and her family doctor was awaiting the outcome of her appeal to determine if he would refer her back for an orthopaedic assessment.

In terms of activities of daily living, the worker stated she is able to take care of personal hygiene. She finds reaching to take dishes from a cupboard difficult and putting on her seatbelt in the car. The worker stated that any outward reaching with the left arm causes pain. The worker was noted to have her left arm held close to her side and no movement was detected. When questioned, the worker stated it is natural to guard an injury.

The worker stated she has not worked since accepting her severance package as she only has use of one arm and no one will employ her. She stated she cannot do retail work as she would be unable to handle stock or hang clothing. In terms of her previous employment as a retail manager, she stated the job still required opening stock, lifting, pushing and pulling and she would be unable to do these duties. She further stated that she is not fit enough to work and did not think anyone would hire her. She remains hopeful that her shoulder will be fixed as there is still something wrong, despite the two surgeries.

The worker’s representative was of the opinion that his client did not achieve her previous level following the February 8, 2005 slip and fall. He submitted that the Case Manager relied on range of motion and relied on interpretation of the medical reports from the insurance carrier. He submitted that the medical reporting supported three new and significant findings not present at the time of the NEL rating in 1999. These are weakness, drooping of the shoulder and reduced external rotation and despite two surgeries, the worker has been left with a separate and more severe impairment than that from 1999.

The worker’s representative submitted that the insurance carrier concluded the worker could not do her pre-injury job and was capable of a light, clerical job only. He submitted there was no consideration of the worker’s restrictions and no analysis as to if retail sales would be suitable. He further maintained there was no analysis made on the availability of those jobs.

The worker’s representative asked that a determination be made on maximum medical recovery and that his client be referred for a NEL determination. He maintained there has been no determination of his clients functional abilities and in the absence of a SEB, full LOE should be payable, and in the least, partial LOE based on minimum wage.

In considering this objection I have had regard for the testimony of the worker, the closing argument from the worker’s representative, the claim file evidence as well as the applicable policy and law.

Non-Economic Loss Assessment

At the time of the NEL assessment under the prior claim the following findings for the left shoulder was noted:

• flexion 145 degrees

• extension 30 degrees

• adduction 35 degrees

• abduction 155 degrees

• internal rotation 35 degrees

• external rotation 80 degrees

The worker sustained further injury to the left shoulder in the work accident of February 8, 2005. The family doctor noted symptoms in the AC joint and rotator cuff tenderness and an arthrogram of May 9, 2005 revealed no evidence of a full thickness tear in the rotator cuff tendon, but a partial tear was not ruled out.

Following the MRI of August 7, 2005 the worker was referred to Dr. D. Mackinlay and was assessed on February 15, 2006. Dr. Mackinlay recommended an arthroscopic examination. This was carried out on April 19, 2006. The operative report noted the procedure was on the right shoulder, however, this is an error and should read left shoulder. The post-operative diagnosis was Type 2 SLAP lesion superior, anterior and labral pathology. The procedure involved a left shoulder arthroscopic debridement and biceps anchor stabilization.

In follow-up on June 1, 2006, Dr. Mackinlay noted the worker had increased left shoulder pain and limited motion following a second accident three weeks prior. The doctor recommended active physiotherapy and in follow-up on July 13, 2006, no improvement was noted and the glenohumeral joint was injected in an attempt to reduce the worker’s pain and increase her mobility.

The worker underwent a repeat arthroscopy on December 4, 2006 and a compete debridement and biceps release was carried out. The worker commenced post-operative physiotherapy on December 15, 2006 and on May 11, 2007 the physiotherapist provided a report to the insurance carrier. The report indicated the worker continued to complain of constant discomfort and tenderness along the anterior and axillary aspects of the left shoulder and rated her pain as being 8-9 out of 10. The report reads:

• On examination, she did not appear to be in any pain distress. She did not exhibit any pain magnification behaviour. She was independent in all transitional movements, i.e. standing, sitting, lying. She demonstrated the ability to ascend/descend a flight of 13 stairs with the use of a hand railing. Her left shoulder is slightly depressed compared to the right side. There is evidence of muscular hypotrophy of the left shoulder and scapular muscles. There is also redness and swelling involving the left hand. On casual observation, active movement of the left shoulder is somewhat guarded. Resisted muscle testing of the left shoulder revealed Gr.IV strength, as per the Oxford Strength Scale. The weakness demonstrated during resisted shoulder testing appears to be due to pain inhibition rather than any neural deficits. She voiced an exacerbation of shoulder pain symptoms during resisted shoulder flexion, abduction and external rotation. There was no evidence of glenohumeral joint instability. Apprehension Test was normal. The client reported an increase in shoulder pain at end-range of all shoulder movements. Bicipital tendon impingement tests were normal. Neural tension testing revealed decreased extensibility involving the left upper extremity. Dermatomal testing revealed normal sensation to tactile and thermal stimuli. Myotomal testing was unremarkable. Deep tendon reflex testing of the upper extremities was normal.

The physiotherapist recorded the following:

• extension 20 degrees

• flexion 160 degrees

• abduction 140 degrees

• external rotation 45 degrees

As per the report dated July 20, 2007 the worker’s final treatment date was June 22, 2007 and the following was recorded:

• extension 30 degrees

• flexion within normal limits

• abduction 160 degrees

• external rotation 60 degrees

• internal rotation 40 degrees

The physiotherapist noted the worker had responded well to range of motion and stretching exercises but continued to complain of anterior and lateral upper arm discomfort.

On May 31, 2007 the worker saw Dr. Mackinlay and the report reads:

• [The worker] is seen in follow up of her shoulder. She is six months. She complains of lateral pain in her arm, pain from her clavicle across the lateral shoulder with crepitus in this area. She was recently started on anti-inflammatories which she is not sure is helping or not. Her range of motion, however, is full and her strength is improving and I think she is gradually improving as her strength improves. The plan is to progress her in physiotherapy. Hopefully she will settle down with strengthening. I will review her is two months’ time and if she is not improving by then, we will try an injection to her shoulder joint and hopefully she will settle down.

Having assessed all evidence, I concur with the position of the worker’s representative. Although the range of motion figures are similar to those recorded at the time of the NEL assessment of February 4, 1999, there is evidence of deterioration in extension and external rotation as outlined in the progress note of May 28, 2007. Furthermore, the worker has undergone two surgeries to the left shoulder, and in my view, this warrants the benefit of a further NEL review. The worker continues to report generalized weakness in the left extremity as well as pain and this is supported in the medical reports from the physiotherapist and orthopaedic surgeon.

LOE benefits from June 24, 2007

This worker was paid LOE to November 5, 2007, exclusive and these benefits were later rescinded to June 25, 2007, exclusive. It was determined that the worker was fit to resume the pre-accident job as an inspector of vehicle airbags, titled Customer Focus Associate. This decision was made on the basis that there was no additional impairment following the work accident of February 8, 2005.

I note the Physical Demands Analysis (PDA) for the Customer Focus Associate position along with the worker’s testimony and conclude that the pre-accident job is not suitable. The job involved frequent waist to shoulder reaching, above shoulder reaching, and forward reaching as well as lifting of boxes to floor level. These duties would exceed the restrictions for left shoulder impairment.

I further note that, although the statement from the employer in the investigation notes suggest they would have accommodated the worker had the claim been handled as a WSIB claim, all evidence suggests that the worker filed through the insurance carrier on the employer’s recommendations. I further note that as per M#5, the employer was informed the claim was allowable in November 2006 yet no attempts were made to determine the worker’s functional abilities or offer modified work. Due to administrative delays, a written decision was not rendered until October 2008 by which time the worker had elected to accept a voluntary exit package.

This being said, and although the worker does not feel she is employable in her current medical condition, she is considered partially impaired. She has transferrable skills noting her previous employment in retail management and her experience with the accident employer in a quality control position. However, there is an absence of evidence to allow me to conclude whether maximum medical recovery (MMR) has been reached and if so, what the worker’s current functional abilities are. The worker requires an up-to-date medical assessment arranged either by the family doctor or the Nurse Consultant and a determination of the functional abilities.

LMR Assessment (LMRA)

Following the medical assessment and determination of the worker’s functional abilities, a referral for an LMRA is in order to identify a SEB and to determine if a LMR plan is required for this worker to re-entry the workforce.

CONCLUSION

For the reasons outlined in the body of this decision, I conclude the worker has a permanent left shoulder impairment resulting from the work accident of February 8, 2005. The case is to be referred to the NEL department for quantification of the permanent impairment once a determination has been made on MMR

The issue of LOE from June 24, 2007 is left to the operating area following a determination on MMR and an assessment of the worker’s functional abilities.

The objection is allowed, in part.

DATED August 18, 2010

P. Luck

Appeals Resolution Officer

Appeals Branch