Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100201
Objection By: Worker
Participants: Worker, Worker Representative, Employer, Employer Representative
Hearing Date: November 30, 2010
Issue
The worker claimed entitlement to loss of earnings (LOE) benefits from September 24, 2008 and continuing.
How the Issue Arises
The worker suffered a low back contusion and strain when he slipped and fell backwards on a conveyor on September 28, 1992.
The worker was noted to have degenerative disc disease (DDD) and underlying spondylolisthesis.
The worker was granted an 18 per cent non-economic loss (NEL) award for the residual permanent impairment.
The worker was able to return back to modified employment with the accident employer, however, claimed a recurrence and requested LOE benefits from September 24, 2008 when he claimed he was bumped out of a modified job due to cut backs with the employer.
Further LOE benefits were not allowed at the operational area as the medical evidence also indicated that the worker was suffering with a herniated disc for which entitlement was not granted.
At the hearing, the worker provided testimony and the employer confirmed the worker’s evidence.
Authority
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Document(s):
15-03-01 – Recurrences
19-03-03 – Determining Suitable Employment or Business, and Earnings
11-02-02 – Lost Time Claims
Assessment of the Evidence
The worker testified that following his injury in 1993 he returned back to work initially as a supervisor and then on various production jobs. He testified that he was always accommodated either by the accident employer or self accommodated by not performing any tasks that were detrimental to his low back condition. He stated that he had ongoing pain and limitations since returning to work. He noted that he performed a variety of jobs including:
Supervisor,
Dye Set Operator,
Forklift Driver,
Press Operator,
Tape Applicator and
Forklift Driver.
He noted that there was a strike of three months’ duration and following his return from the strike he was given the job of working on the Sequencer using the Manipulator.
The worker testified that the job required him to use the Manipulator to pick up a bumper off of a conveyor from 6 different locations (cells). Each cell moved a bumper every 6 minutes. He, therefore, had to pick up one bumper per minute and move it to another conveyor. The worker noted that the farthest cell was some 50 feet away which meant that he had to walk a total of a 100 feet combined in order to move the bumper.
The worker stated that he found this job to be difficult due to his back limitations. He testified that the amount of walking, twisting, pushing and pulling were all aggravating factors to his low back.
He advised his supervisor that he was unable to complete this job and was told that nothing else was available and he should go home. He, therefore, went home and was off from
September 24, 2008. The worker stated that a few days later, his Union Representative called him in to work. On arrival at work, he was asked by his foreman why he was here. He advised the foreman that the Union had called him in for a job. The foreman then advised him that he was not aware of any job available for him and that he should go home.
The worker testified that he was later called by the accident employer and offered the same Sequencer job again. By that time, he had decided to proceed with surgery for the herniated disc in the lower back. The surgery was performed on July 3, 2009.
The worker testified that between September 24, 2008 and July 3, 2009 he did look for alternate lighter work, however, was unsuccessful.
Since the surgery, the worker stated that he has not looked for modified work. He was notified by a letter dated April 19, 2010 that he was placed on permanent lay off by the company. The worker testified that his specialist has recently suggested that he perform sedentary work only.
The employer’s representative confirmed the evidence of the worker and noted that due to cut backs in the employment, the worker had been bumped into various jobs due to his lack of Union seniority. Eventually, the Sequencer job was the only one available and as of April, 2010, the employer is no longer able to accommodate his limitations.
In looking at the available evidence, the worker has had limitations with respect to the compensable low back condition since the injury of 1993. He has been accommodated by the employer until September 24, 2008. As of September 24, 2008, the worker was unable to continue working due to the lack of modified work with the employer. As the worker had significant limitations, it is unlikely that he would have been able to obtain suitable work without the assistance of labour market re-entry (LMR) services.
The worker is, therefore, entitled to full loss of earnings (LOE) benefits from September 24, 2008 up to the date of his surgery on July 3, 2009.
The worker is not entitled to LOE benefits from July 3, 2009 up to the date of the Hearing as he has been disabled during this time due to his non-compensable low back surgery. (Should the Workplace Safety and Insurance Board (WSIB) in future accept the disc surgery, then the issue of benefits beyond July 3, 2009 up to the date of the hearing can be revisited).
The worker is entitled to LMR services from the date of the Hearing (November 30, 2010) and continuing as he is willing to participate in the LMR program.
Conclusion
The worker is entitled to full LOE benefits from September 24, 2008 until July 3, 2009.
The worker is also entitled to full LOE benefits from November 30, 2010 and continuing with adequate participation in a LMR program.
The worker’s objection is allowed.
DATED: December 7, 2010
N. Kissoore
Appeals Resolution Officer
Appeals Branch