Worker v. Workplace Safety and Insurance Board, 2011 CanLII 72555

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20110013

OBJECTION BY: Worker

WORKER: Participated

ISSUE(S)

The worker is objecting to the denial of supplementary benefits from September 10, 2010, denial of a medical cane, a non-economic loss (NEL) redetermination and future economic loss (FEL) calculations and effective date.

HOW THE ISSUE(S) ARISES

The worker was hired with the accident employer on September 12, 1987.

While employed as a merchandiser on May 13, 1997 the worker was placing stock away when she lifted a box off a skid and felt pain in her left lower back. When treated by the family physician on May 14, 1997 was diagnosed with a low back strain. Initial entitlement to temporary total disability benefits (TT) was approved from May 14, 1997 to July 29, 1997 when she returned to suitable employment at no wage loss.

Subsequently, on February 12, 2000 as a result of the permanent impairment to her low back was awarded 17 per cent.

As a result of the appeals resolution officer (ARO) decision on October 27, 2005, determined based on the evidence, the worker was entitled to further temporary total and temporary partial disability benefits from July 29, 1997 to September 8, 2000.

In a letter dated November 9, 2009 the case manager provided the worker with a status letter. The worker contacted the case manager in March 2009 to advise that she was laid off temporarily by her employer and as a result allowed full benefits from March 31, 2009 up to the recall date. Upon further contact the employer had decided to layoff the worker permanently with no further recall she was entitled to LMR services and benefits.

The worker was awarded full TT disability benefits from March 31, 2009 to February 1, 2010 while involved in a LMR service program.

In a letter dated March 4, 2010 a review of FEL benefits was granted. The suitable employment or business (SEB) of cashier and related occupations with an hourly wage of $9.50 was accepted and the worker was awarded a FEL D1 award from February 1, 2010 to February 1, 2012.

In a letter dated September 9, 2010 indicated the worker had successfully completed the LMR plan as of September 9, 2010 with closure of supplementary benefits. The worker would continue to receive the FEL D1 benefits until February 1, 2012.

In a further letter dated March 8, 2011 based on the medical documentation provided had determined that there is no indication that the recent medical documentation of November 24, 2009 to grant entitlement to NEL reassessment. In June 2010 the worker had made a request for a cane from the St. John’s Orthopaedic and based on no ongoing evidence confirming any change in the medical condition denied the worker’s request. The FEL award was based on the pre-accident wages and prior benefits were based on layoff earnings while in receipt of TT disability benefits not requiring an adjustment.

These are the issues for determination.

AUTHORITY

Operational Policy Manual (OPM) Documents

18-03-02 – Payment of LOE Benefits

18-04-14 – Reviewing FEL Benefits

18-04-19 – Objections to FEL Determinations

19-03-03 – Determining Suitable Employment or Business and Earnings

19-03-04 – Entitlement to LMR Plans

RESOLUTION METHOD AND PROCESS

On July 26, 2011 the worker submitted the 60 day decision option form wishing to proceed with a decision without a hearing.

ASSESSMENT OF THE EVIDENCE

I have considered the information on record. Upon assessing the information provided by the worker, along with the additional submissions, I conclude that the worker is entitled to some additional benefits. At arriving at my decision, I have considered the evidence on file and the following is a summary of my decision. It should be noted that only the above outlined issues are before the ARO. Any additional issues the worker requests can be forwarded to operations including any requests on the calculations of her pre-accident earnings basis at the time of the May 13, 1997 accident.

The worker is of a position that she disagrees with the stopping of her supplement and the Workplace Safety and Insurance Board (WSIB) did not provide her with training that was sufficient in nature. She also disagrees to the denial of the NEL redetermination on the basis that she has suffered a significant deterioration and she is much worse. Her physician has authorized a medical cane which is warranted and requests reimbursement. She requires the cane because her condition is much worse than before. Lastly she objects to the FEL retroactive date requesting an earlier date which in essence would grant her LRI contributions for many years missed; along with the FEL calculations.

The records show that the worker received entitlement for the area of permanent impairment resulting from a small right disc herniation. She was examined by the prior roster physician on October 15, 1999; Dr. Maggisano, reported flexion from the neutral position, 30 degrees, extension from neutral position, 10 degrees.

Since the roster examination the worker was seen by the orthopaedic surgeon, Dr. Seligman at the Fracture Clinic on November 15, 1999. He had reported that the worker had returned to working full time duties, but her pain had become much more severe and returned to working four hours a day. The latest progress report from the family physician is dated November 19, 2009. The patient presents with complaints of low back pain, more on the right side with intermittent extension into the legs, intermittent pains in the left. The worker has continuous tenderness at the lumbosacral junction with guarded decreased flexion and extension of the back with SLR 10 degrees seated.

Reference to 18-05-09 – Redetermination and Recalculations Policy states:

"The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that

the worker's degree of permanent impairment was previously determined to be greater than zero
the worker's condition has deteriorated significantly since the last NEL determination, and
12 months have passed since the worker's last NEL decision."

I find and accept the opinion from the case manager that a significant deterioration from the roster physician examination of 1999 has not occurred, not warranting entitlement to a NEL redetermination. Overall I find a significant deterioration in her medical condition has not occurred denying her request for a further examination. In addition, in reviewing the medical documentation and request for a cane is denied on the basis that a significant medical deterioration in her condition of the low back has not resulted warranting a cane.

The record shows that the worker was provided with LMR services and a report submitted dated December 21, 2009. Prior to LMR the worker was employed from 1987 to 2009 as a material handler, grocery clerk and store shelf stocker determined to be unsuitable and not within the worker’s medical precautions. The worker was recommended to pursue the SEB - National Occupational Classification (NOC) code 6611, cashier within her medical restrictions.

The worker participated in computer training followed by job search training and six months of monitored job search to assist in pursuing the SEB of cashier. LMR services had ended on September 7, 2010 with no employment obtained. At the end of the closure the worker indicated she would continue with her independent job search program and pursuit of employment within the established SEB.

In my analysis and review, entitlement has been granted by the case manager for the low back injury of May 13, 1997. As a result of the permanent impairment the worker was awarded a 17 per cent NEL award on February 12, 2000. Entitlement to additional benefits were granted on October 27, 2005 following a successful ARO decision with benefits up to September 8, 2000. Subsequently, the worker continued to receive ongoing benefits until the layoff of 2009 subsequently she was awarded LMR services. In weighing the evidence I find the worker was provided with a suitable SEB of cashier and provided with sufficient training acquiring new skills to pursue further employment. Therefore, based on my analysis the worker’s request for additional supplementary benefits beyond September 2010 is denied.

Furthermore based on my review of the information provided, a FEL D1 should have been calculated retroactively to March 31, 2009, the date the worker was placed on full benefits and when the worker was permanently laid off by the accident employer. Therefore, I grant a FEL D1 retroactive date to April 1, 2009 for two years extended to April 1, 2011(not the previous FEL D1 established as February 1, 2010) and subsequently, the worker is entitled to a FEL R1 effective April 1, 2011 for three years based on the previous CM calculations.

Lastly, in reviewing the FEL calculations the worker was appropriately paid a FEL award based on her pre-accident wages as reflective of policy and not the layoff earnings as requested.

CONCLUSION

I deny entitlement to a NEL redetermination and a cane.
I deny entitlement to supplementary benefits from September 10, 2010.
I uphold the FEL calculations based on pre-accident wages.
I allow a FEL D1 retroactive date effective April 1, 2009 to April 1, 2011.
I allow a FEL R1 effective April 1, 2011 for three years.

The workers objection is allowed in part.

DATED August 31, 2011

M. Palmieri

Appeals Resolution Officer

Appeals Branch