WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110034
OBJECTION BY: Worker, Worker Representative
PARTICIPANTS: Worker, Worker Representative
HEARING: N/A
ISSUES
The worker requests right shoulder entitlement.
She also objects to the February 10, 2010 case manager’s decision that deemed her capable of working full time in the suitable occupation of customer services representative.
HOW THE ISSUES ARISES
This now 52 year old female worker injured her low back unloading a pallet of product on October 3, 2007. She was diagnosed of having mechanical low back with sciatica. An unsuccessful return to modified work was attempted in the spring of 2008. It was then determined that she would not be able to return to work with the employer where she had been employed since 2001.
Arrangements were made for the worker to participate in labour market re-entry (LMR) activities. She commenced academic upgrading in October 2008 with the goal of being able to retrain in the field of dental receptionist or like position. She progressed slowly and was unable to carry a full course load due to ongoing pain issues. In January 2010 the Workplace Safety and Insurance Board (WSIB) case manager decided to terminate sponsorship in the retraining and instead ruled that following job search training the worker would be capable of returning to work in the field of customer service representative (CSR). As explained in the letter of February 10, 2010 the worker’s Loss of Earnings (LOE) benefits beyond February 28, 2010, when the LMR program ended, would be based on her ability to work full time as a CSR earning minimum wage.
The worker’s low back condition is considered permanent in nature. Following assessment a 27% non economic loss (NEL) benefit has been granted reflective of the degree of permanent impairment in her low back.
In January 2010 the worker‘s representative requested that entitlement be extended to include the worker’s right shoulder. The worker advised that she was ascending stairs when she had an onset of low back pain. She attempted to catch herself by grabbing the railing and wrenched her shoulder. Subsequently, having to use her arms to pull herself up from a seated position due to her weak low back continued to aggravate the shoulder. In a decision dated June 14, 2010 the case manager denied this request.
AUTHORITY
Operational Policies:
15 05 01 Resulting Form The Work Related Disability
19 03 03 Determining Suitable Occupation
15 04 02 Psycho Traumatic Disability
RESOLUTION METHOD AND PROCESS
The employer did not participate in the objection. The worker’s representative was contacted on July 12, 2011 and the file discussed. It was agreed that a decision could be rendered based on the information on file.
ASSESSMENT OF THE EVIDENCE
Shoulder Entitlement
The worker advises she injured her right shoulder in March 2009 when she grabbed a railing when her back gave way while on a stairway.
Medical evidence in the form of an ultra sound dated March 22, 2009 confirms the presence of a partial thickness tear in the rotator cuff area.
The family doctor’s chart notes mentions a shoulder complaint in his entry of March 10, 2009 but there is no history of injury provided. The family doctor’s progress report of July 28, 2009 provides a new additional diagnosis of “RTC tear right shoulder” which he related to the worker’s need to use the shoulder push / pull self up and down due to the low back pain. The psychologist’s report dated June 28, 2010 also provides a history of the back giving way on the stairs and injuring the right shoulder as a result. At the time the worker claimed the right shoulder injury occurred she was involved in monthly visits with the March of Dimes, the LMR service provider. The LMR reports do not specifically mention the stairway incident. There does not appear to be any lost time from school due to the shoulder injury however, I note the worker cancelled an LMR appointment in April 2009 due to “neck pain”.
The worker other than attending school was not involved in any physical activities around the time of the alleged shoulder injury. Reports on file note that the worker was limited in her activities of daily living due to her low back pain. Medical and vocational reporting also document periodic episodes of acute low back pain.
The family doctor’s chart notes when viewed as a whole are brief and do not typically provide much detail beyond diagnostics and treatment notes. I do not put much weight then on the fact that the doctor’s March 10, 2009 note does not provide a history of injury given the brief nature of his entries. There is however a consistency in the reporting from the worker, the psychologist and the happening of the ultra sound exam. Further, I am satisfied that once injured, the right shoulder would be aggravated by the worker needing to rely more on her upper body strength to perform task normally done by her low back. On the balance, I am satisfied that the right shoulder complaint is as advised by the doctor in his July 2009 progress report secondary to the low back. This is re stated by the doctor in his letter dated June 23, 2010:
Whether the pain was from her leg giving out due to back pain as the patient reported or whether the pain was from pulling herself up and down due to her low back pain, the fact remains that the injury was directly related to her low back pain.
On balance, I am in agreement with the family doctor and extend entitlement to the right shoulder.
Loss of earnings benefits beyond February 28 2010.
The February 10, 2010 decision letter notes, quite correctly I think, that the original vocational plan for the worker was overly optimistic. It consisted of academic upgrading followed by formal training at a community college in the field of health care office assistant. A review of the labour market re entry (LMR) reports reveal the worker progressed slowly, had difficulty attending school for the full day and was only able to carry a partial course load. At the time the decision was made to change the suitable occupation goal to something that did not require retraining the worker had not been able to reach her goal of high school equivalency let alone start the specific retraining course.
In addition to her physical limitations which include limited lifting, no repetitive bending, twisting and no prolonged sitting or standing the worker now likely has right shoulder restrictions. As well, since April 2010 the worker has been seeing a psychologist at the request of the family doctor for depression and anxiety. Memos 111 and 113 of the file record note the request for psychological counselling. In memo 111 dated July 8, 2010 the case manager indicates that the conditions of anxiety and depression will be accepted and treatment for the same extended. The case manager deferred to the nurse case manager how long the cognitive therapy being recommended should continue. In the view of the case manager the initial report from the psychologist did not support a degree of total disability and as a result the payment of partial LOE benefits as outlined in the February 10, 2010 letter was to continue. In addition, the memo also notes that an entitlement decision on psycho traumatic disability was being deferred until the results of the treatment were known.
The nurse consultant in memo 113 states that the case manager had accepted that the conditions of “anxiety and depression is part of this case file”. The nurse consultant then approved the counselling sessions. The file record reveals that the worker first saw the psychologist on April 22, 2010. Reports are on file dated June 28, 2010, November 21, 2010 and more recently June 23, 2011. I have reviewed these reports in detail. In my opinion they reveal an individual who is struggling with the effects of a significant work related injury.
The first report makes it clear where the psychologist stood with regard to the worker’s employability and participation in LMR activities:
It is apparent at this time that [the worker] is not competitively employable and would be unable to participate in labour market re entry. Her ability to return to the workforce or to re enter a LMR program can be assessed on an ongoing basis as treatment progresses. However, it bears mention that she has already attempted retraining and that her program was cancelled by the WSIB because she was unable to handle the (sedentary) physical demands of part time school. The prognosis for successful rehabilitation is very poor.
The last report received from the treating psychologist a year later dated June 23, 2011 does provide an update on employability:
It remains the case that [the worker] is disabled form working at any job and would not be able to participate in labour market re entry. As noted in previous reports she is not able to participate in many activities of daily living independently, and there is no improvement noted with respect to function in that regard over time….. The prognosis for successful vocational rehabilitation is very poor.
There are no competing medical reports on file since February 2010. The only reporting on file suggests quite clearly that the worker is significantly disabled both physically and psychologically and is not able to either work or participate in vocational retaining. This stands in contrast to the February 10, 2010 decision that suggests the worker is capable of working full time in a customer service position earning minimum wage.
I am cognizant that psycho traumatic disability has not been granted in this claim. However, the file record is clear that the conditions of anxiety and depression were being accepted as part of the file. Treatment for the conditions has been allowed for an extended period of time. It had been hoped that treatment would lessen the symptoms and for this reason entitlement to psycho traumatic disability was being deferred. I suspect that what was being deferred was a ruling on whether the worker has developed a permanent psycho traumatic disability as allowing for the treatment in essence accepts entitlement for the non organic conditions at least on a temporary basis. In any event, when I consider both the worker’s significant low back condition, the now granted right shoulder and having regard for the psychologist’s reports on file and the accepted conditions of anxiety and depression it is my view that the evidence supports that the worker was not able to return to work as a customer service representative or in any other capacity beyond February 28, 2010. Full Loss of Earnings benefits are directed to be paid from February 28, 2010 to date.
The operating area is further directed, noting that treatment has not resulted in significant gains and noting the duration of the symptoms, to rule on whether or not the worker has a permanent psycho traumatic disability related to the work accident.
The issue of the workers entitlement to ongoing loss of earnings benefits is subject to periodic reviews and is also dependent on any material change of circumstance up to the legislative lock in date which in this case will occur in October 2013.
CONCLUSION
Right shoulder entitlement is granted.
Full Loss of earnings benefits are granted from February 28, 2010.
The operating area is directed to rule on the presence of a permanent psycho traumatic disability.
The worker’s objections are granted.
DATED This day July 15, 2011.
R. P. Horne
Appeals Resolution Officer
Appeals Branch