Worker v. Employer, 2011 CanLII 72557

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20110016

OBJECTION BY: Worker

WORKER: Participating

EMPLOYER: Not Participating

ATTENDIES: Worker, Worker Representative, Interpreter

HEARING DATE: January 19, 2011

ISSUES

The issues in dispute were previously delineated in my letter of January 6, 2011 and are outlined below:

1. The Suitability of the Suitable Employment or Business(SEB)

2. The level of Loss of Earnings (LOE) post LMR

3. The level of LOE post 72 months ( August 2010)

4. Psycho traumatic disability entitlement.

HOW THE ISSUES ARISE

This then 37 year old seamstress developed bilateral hand and wrists issues diagnosed as tendonitis due to the repetitive nature of her work. The accident date is considered to be August 24, 2004.

Due to her impairment, initially assessed at 15%, it was not considered that she would be able to return to work as a seamstress. A labour market re entry plan was developed that would see her get language training and eventually return to work as a customer service representative. The worker appealed this proposed plan and the matter was reviewed by an Appeals Resolution Officer (ARO). In a decision dated August 22, 2005 the ARO considered a suitable employment or business objective of accounting clerk to be more appropriate for the worker.

She completed the training. She was able to secure employment part time with H&R Block during the 2007 / 2008 tax season but suffered a flare in her condition

In early 2009 it was ruled that the worker was below her 15% NEL. In addition, she had developed depression and anxiety which the treating practitioners related to her work accident. The Workplace Safety and Insurance Board (WSIB) funded treatment for the psychological condition. Full Loss of Earnings benefits were restored as of May 14, 2009 as it was considered the worker had deteriorated below her 15% NEL. LOE benefits continued until September 29, 2009 when in a decision dated October 13, 2009 the operating area ruled she had returned to her previous level of impairment of 15%. Partial LOE benefits were then paid based on an earnings capacity of 20 hours week earning $9.25 an hour as an accounting clerk. In August 2010 when the level of LOE was reviewed for the final legislated -72 month- review the operating area adjusted the earnings expectation to $15.90 an hour on the basis that the worker over the next 22 years of employment would have opportunities for raises and would be able to earn this higher amount.

The worker through her representative appealed the September 2009 adjustment on the basis she remained below her 15% level of impairment and the SEB of accounting clerk was no longer suitable. They subsequently objected to the 72 month lock in level. In pre hearing discussion it was also agreed given the history of the file that the issue of psycho traumatic disability would be added to the issue agenda.

AUTHORITY

Operational Policy

19 03 08 Determining the Suitable employment or Business ( pre December 2010)

15 04 02 Psycho traumatic disability

18 03 06 Final LOE Review.

Other

Appeals Practice and Procedures, September 2010

ASSESSMENT OF THE EVIDENCE

Testimony

The worker provided sworn testimony at the hearing. She confirmed she is currently 43 years old. She immigrated to Canada in 1985 and worked initially at a mushroom farm and later a cashier in a fast food restaurant as well as a factory worker in a meat processing plant. She commenced employment as a seamstress with the accident employer in 2003. She was responsible for putting logos on clothing apparel. She was subject to a production quota.

She described that her arms are in constant pain ranging from 6 out of 10 to 8 out of 10. She wears bilateral splints and uses a Tens machine both of which were present while she testified at the hearing. She also displayed a degree of pain behaviour and frequently changed position and would move her arms and stretch to get comfortable. At times she had to change position or get up for a period. Her medications include Tylenol #3 twice daily Celebrix and Mylon- Vanlafaxine which she takes daily at a dose of 187 mg., increased from a previous 37 mg a day.

She described her desire to return to work. Her ultimate goal was to obtain work in accounting at either Revenue Canada or London Life. She now realizes this is not possible. She worked diligently at the retraining activities but needed medication. She went to school for four hours a day and managed as best she can. The job positions at HR block and the Cash Store were short term seasonal jobs. There was a degree of keyboarding that aggravated her bilateral arm condition. She was only able to manage with increased drug medication, typically requiring 4-5 Tylenol # 3 to get through the day. She found both the schooling and job positions very difficult but she persevered as she wanted to work and succeed. She had to fight through the pain. She advised that for the second tax season after working with H R Block they declined to take her back. She was unable to perform the job tasks at the Cash Store.

She recalls being referred to Dr. Reist by the WSIB nurse case manager as she was feeling so bad and could not do anything. She attended CAMH on two occasional as she was a feeling so bad she was thinking of hurting herself.

She no longer attends physiotherapy but has maintained a home exercise program. She estimates she does the prescribed stretches four times a day for 15 minutes at a time.

The worker went into some detail as to her activities of daily living. She is independent in self care but does not do any household chores. She denied doing any cooking, vacuuming or laundry. She does not grocery shop but will on a good day accompany her spouse or daughter on shopping trips. She has difficulty sleeping and described an interrupted sleep pattern rising 4-5 times night and estimates receiving 4-5 hours of interrupted sleep. He has a bedroom in the basement because it is dark. She rises and her husband will bring to the bedroom her breakfast. On a bad day she may not leave the room remaining in pyjamas and resting in her room. She will put a towel down at the door threshold to block out any light. She has found that she is intolerant to bright lights and loud noises. She has reduced the wattage in all of her light bulbs to accommodate her light insensitivity. She is easily irritable and moody.

On better days she may get dressed but finds this time consuming and painful. She may make herself a cup of noodles for lunch in the microwave but otherwise spend the day inside watching TV and resting. At home she described herself as being “like a baby- not able to do anything”. She goes out rarely and has discontinued driving. She is forgetful and has little interest in things. She sees the doctor monthly. Due to her forgetfulness the doctor now has a habit of phoning her to remind her of the appointment. She experienced headaches severe in nature approximately 4 times a week. Her bad days vary but estimates that the number of days she would be room bound to be 4-5 days a month.

Pre accident she was an active young mother and recreationally would go biking or roller blading. She was active in her local faith community attending the temple several times a week. She no longer goes as part of their tradition is to bring food and she can no longer cook. Coincidently, the interpreter who is also a member of the same Faith community confirmed that the worker while previously active has not been seen at the temple for quite some time.

ANALYSIS

Suitability of the SEB

I note that the initial labour market re entry assessment recommended the SEB of accounting clerk. This was based on the psycho vocational assessment and the worker’s own interest in this area. On submitting the recommended SEB to the WSIB, the case manager raised concerns believing the SEB would violate her permanent restrictions identified as no repetitive use of her hands or arms of any nature. The WSIB case manager as a result would not support the SEB of accounting clerk. Instead the SEB of customer service representative was pursued. I note that the worker subsequent lobbied to have the SEB of accounting clerk allowed in her case. This was consistent with her career goal of working for Revenue Canada or an insurance firm. The issue was eventually reviewed by an Appeal Resolution Officer (ARO). He allowed the SEB of accounting clerk noting the workers motivation and the cost effectiveness of the accounting course. The worker completed the course requirement and found work in the field, part time and seasonal in nature. In the spring of 2009 the worker contacted the WSIB to advise she had not been able to secure employment and that her condition had worsened. She was now suggesting the SEB was not suitable for her condition. The issue was reviewed by one of the WSIB’s medical consultants (MC) who wrote the following on March 30, 2009 and documented in memo 94a

This worker was likely required to work outside her restrictions noting the lawyer’s letter and the likely job duties of an accounting clerk. This would therefore likely render her below her NEL level.

The job duties referred to by the MC is data entry and keyboarding. I too am in agreement that these activities would involve repetitive use of the arms and are beyond the workers restrictions. This was initially identified by the case manager however due to the worker’s protestations and documented motivation it was felt she would succeed in the SEB of her choice. This was not the case. The worker’s testimony described the difficulties she had in the two short term attempts at work in the SEB. The WSIB MC suggested that her attempts at returning to unsuitable work caused her compensable condition to flare and put her below her 15% permanent impairment level as recognized by the NEL. It seems logical that any further attempt at the same duties would also result in a further flare of her condition

Psycho traumatic disability

It should be noted that the issue of psycho traumatic disability was not initially identified in the objection form of December 8, 2009. However following my review I noted that the worker ‘s disability appeared to include a degree of depression and anxiety. The WSIB had been paying for this condition to be treated for an extended period of time. In order to properly address whether or not this worker could return to the designated SEB of accounting clerk or indeed be capable of returning to the work force in any capacity, noting the documented psychological condition affecting the level of functioning, it was my view the worker’s psychological condition had to be taken into account. The Appeals Practice and Procedures document, September 2010 contemplates such a situation and the appropriate portion is outlined below:

Where additional issues do present themselves but have not been ruled on by the BU, they may be added to the issue agenda for resolution by the ARO if; the participating parties agree to have the issues added; and information necessary to resolve the issues is available to the ARO and to the other party without extensive additional enquiry; and there is no prejudice to the non-objecting party….Situations may occur where, regardless of whether the issue has been raised by either party, the issue is determined by the ARO as necessary to deal with in order to give proper effect to the real merits and justice of the case. The ARO has the authority to add such an issue to the issue agenda but must notify the parties/representatives.

In this particular case the accident employer has chosen not to participate in the appeal. The worker’s representative was advised well in advance of the hearing that the issue of psycho traumatic disability would be added to the issue agenda.

The same WSIB medical consultant in the same memo (Memo 94a) also documents what appeared to be a developing accident related psychological condition.

The worker had earlier been seen by a psychologist. She underwent a course of psycho therapy for her depression and apparently had a good response to this. However, her doctor notes the worker has suffered chronic depression and has been on an anti depressant in an attempt to control her symptoms. The doctor states her depression appears related to her chronic forearm pain. Noting the doctor’s assessment, this worker may have suffered a psychiatric illness as a result of her workplace injury. Consideration might be given to a referral to the worker to the traumatic stress service program at the London Health Sciences centre to better evaluate this.

The suggested referral did occur and the reports from the centre are on file. The assessors were asked a number of questions and they responded in the discharge summary of June 6, 2009. The questions are bolded below and the response italicised.

1. Diagnosis

Major Depressive Disorder, recurrent moderate

Chronic bilateral wrist pain; bilateral carpal tunnel syndrome

2. Comment on the relation between the accident and its sequelae and current psychological condition

The workplace accident is a major contributor to the major depressive disorder, which has been exacerbated by the persistence of pain and its interference of in her functioning

4. Is the client able to work in any capacity? Yes or No. If Yes provide specific precautions. If no provide explanation.

No due to severity of depressive symptoms and pain related difficulties

The report mentions co existing stressors including her husband’s recent job loss and financial restrictions. The worker testified that her husband is now gainfully employed. It also notes a fair to guarded prognosis to a return to work and suggested she had not yet achieved maximum medical recovery and suggested further psychological counselling sessions. The suggested treatment was then approved by the WSIB and the worker underwent 10 sessions with a psychologist. In her discharge report of January 20, 2010 the psychologist made the following comment:

…she appears to be permanently disabled by her pain to work in any capacity beyond 1-2 hours/ day. Indeed, despite [the worker’s] desire to work and her multiple attempts to resume work, she has not been able to sustain working even on a part time basis( ie 3-4 hours) due to her pain difficulties, which then exacerbates her psychological distress. Furthermore, her pain continues to intensify whenever she attempts to perform daily tasks for a prolonged period of time despite pacing and taking frequent breaks. As such I do not believe that [the worker] will be able to work even on a part time basis

To my mind there is convincing un rebutted evidence that worker has developed a psychological condition -major depression that is related to her work accident and its sequel. Policy 15 04 02 psycho traumatic disability indicates that psychological entitlement can be granted when it is shown that the worker has developed a psychological condition due to “extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury”. In my view she meets this criteria noting the findings of the traumatic stress service program and the psychologist. Noting the length of time that has now transpired and the current prognosis I consider the psycho traumatic disability to permanent in nature and direct a non economic review for the same.

Employability

At the time of discharge from the traumatic stress service program the worker was not able to return to work due to her psychological symptoms. She required additional treatment. The suggested additional treatment was arranged but the January 20, 2010 report indicates that further improvement leading to an ability to return to work could not be achieved. Based on her presentation at the time of the hearing there is no reason to believe that she has improved in the last year. The decision to reduce LOE benefits in September 2009 was on the basis that the worker had returned to her previous level of organic permanent impairment or was back to her 15% NEL level. There is no indication that the worker’s non organic features were taken into consideration and indeed there was no ruling on file concerning the worker’s entitlement to non organic entitlement. I have now ruled that she has a psycho traumatic disability. The evidence establishes to my satisfaction that she was completely disabled from work beyond September 29, 2009 and full LOE benefits are directed to be restored.

Level of LOE post 72 months.

The WSIB is required by legislation to review the level of the worker’s loss of earnings at the 72 month period post accident. This occurred in August 2010. In August 2010 the worker was not employed. She had as a result of her combined organic and now recognized non organic conditions a total loss of earnings. She is entitled to full LOE form August 2010 until she turns 65 years of age. At the time of the 72 month review the worker was relatively young at the age of 43. She potentially has 22 more years in the workforce. However, she has been substantially out of the workforce since 2004. She has significant organic and non organic conditions. Her restrictions for the organic condition alone are significant being no repetitive uses of her upper extremities of any nature. This limits, in my opinion, her ability to compete in most jobs. Her non organic condition has not seen much in the way of improvement despite extensive treatment following the May 2009 assessment. In May 2009 her prognosis for a return to work was fair to guarded. This was based on the hope the worker would respond positively to the suggested counselling sessions. She unfortunately did not. The psychologist is unequivocal in her assessment that the worker is not likely to be employable even a on a part time basis. I agree.

Full LOE benefits to age 65 are directed.

CONCLUSION

1. The SEB of accounting clerk is not suitable.

2. Full LOE benefits are restored from September 29, 2009.

3. Full LOE post 72 months (August 2010) is directed to age 65.

4. Psycho traumatic disability entitlement is granted and a Non Economic Loss review directed.

The objections are granted.

DATED March 31, 2011

R. P. Horne

Appeals Resolution Officer

Appeals Branch