WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20120002
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative
ISSUE
The worker is objecting to the denial of full loss of earnings (LOE) from August 20, 2007.
HOW THE ISSUE ARISES
The worker was hired by the accident employer on October 6, 1997.
On August 10, 2006 while employed as a lift truck operator/machine operator he was getting off the tow motor when his right foot caught on the edge of the lift truck and the worker landed on his back and left shoulder. Initial medical attention provided by the treating physician on August 11, 2006 diagnosed a lumbar strain and left RC tendonitis. Entitlement to various loss of earnings (LOE) was awarded from August 22, 2006, and currently receives partial LOE from August 20, 2007.
As a result of a permanent impairment to his low back on August 20, 2008 was awarded a 33 per cent non-economic loss (NEL) award to the low back strain.
Subsequently treatment and entitlement was granted for depression receiving an additional 20 per cent psychiatric award – class 3, a total NEL award of 53 per cent.
Since it was determined the employer was unable to accommodate the worker in appropriate light duties was offered labour market re-entry (LMR) services. The worker was sponsored in the suitable employment or business (SEB) of light delivery driver - National Occupational Classification (NOC) 7414.
In August 22, 2007 the worker was informed that at the end of the program the worker was capable of earning entry wages of $8.66 per hour over a 40 hour work week with projected wages $346.40 resulting in a partial LOE effective August 20, 2007.
In a letter dated April 26, 2001 the adjudicator informed the worker’s representative that based on a review of the worker’s organic and non-organic impairment determined the worker was capable of securing employment denying their request for full loss of earnings (LOE) from the date benefits ended on August 20, 2007.
This is the issue for determination.
AUTHORITY
Operational Policy Manual (OPM) Document:
18-03-02 – Payment of LOE Benefits
19-03-04 – Entitlement to LMR Plans.
ASSESSMENT OF THE EVIDENCE
I have considered the information contained in the claim record and the previous submissions provided by the worker’s representative dated June 8, 2011, May 5, 2011, January 24, 2011 and the current submission dated February 13, 2012 with Dr. Waldenberg’s medical report, I conclude that some additional entitlement to benefits is warranted. In arriving at my decision I have considered all the evidence and the following is a summary of my assessment.
The worker’s representative feels that the evidence in the file supports the worker remained unemployable as a result of his workplace injury due to the organic impairment and psycho-traumatic condition. The acceptance of the psycho-traumatic condition on a permanent basis resulted in a material change in circumstance and a significant increase to the level of disability accepted at the time of the LMR program. On this basis he requests full LOE benefits to be reinstated from the time LMR ended on August 20, 2007 and to adjust the partial LOE to full LOE benefits. The medical documentation outlines the worker’s daily intake of WSIB approved pain medication which includes Oxycontin. The combination of his physical injury and depression render the worker unemployable. The medical documentation supports this position of entitlement to full LOE. Additionally the worker was assessed by Dr. Kiraly, the NEL roster psychiatric physician who commented that the worker was not a candidate for retraining and as such believes that he is unemployable, the worker is totally disabled entitlement to full LOE.
The record shows a MRI was taken on January 9, 2007. Dr. McGinley reported a mild L4-5 broad based disc bulge eccentric to the right abutting the right L4 nerve root.
The worker underwent a multidisciplinary health assessment on January 18, 2007 and examined by Dr. Robert. The physical examination revealed a 5’ 10” weighing 285 pounds and has a pendulous abdomen. He was recommended to participate in a six week course of physiotherapy to include abdominal strengthening and flexion exercises for the lumbar spine.
Orthopaedic examination by Dr. Aubin on April 30, 2007 commented he consumes Oxycontin 40 mgs two per day, muscle relaxants and Prevacid for GI irritation. The worker has multilevel disc disease with instability causing entrapment of the S1 root requiring a weight reduction program and active physiotherapy.
Orthopaedic Surgeon, Dr. Ostrowski on November 15, 2007 provided further opinions. He commented that regarding the low back there is no indication for surgical intervention and needs a weight loss and exercise program. In terms of his leg giving out, he has very early arthritis of the right hip and right knee suspecting a meniscus tear of the non-compensable right knee.
Dr. Aubin in follow-up on March 3, 2008 examination revealed the worker must work on is weight reduction program and active physiotherapy and rehab program continues to have entrapment to his nerve root on the right side S1 secondary to degenerative disc disease (DDD) causing central and lateral recess and foraminal narrowing.
Dr. Kumaran, Psychiatrist, examination August 21, 2008 diagnosed an adjustment disorder with depression continuing to consume medication.
Dr. Kiraly examination of September 24, 2009 reported that the worker continued to remain unemployed. He diagnosed major depression chronic, severe and treatment resistant, has mixed chronic pain syndrome to two psychological factors and a medical condition. He would benefit seeing a psychiatrist and receiving ongoing psychotherapeutic support and remains with an impairment class 3 or moderate impairment that is impairment levels compatible with some but not all useful function and is not well enough to take part in a rehabilitation program in his present condition.
Dr. Semple, Psychologist, on October 15, 2009 diagnosed major depressive disorder with chronic pain in his back, right leg as a result of his workplace injury, sleep disturbances requiring ongoing psychotherapy sessions. He does not feel the worker is ready to return to a LMR in the near future lacking confidence, needing psychotherapy to resolve his depression and anxiety and sense of hopelessness.
In follow-up on December 29, 2009 gained some valuable insight into his depression but remained depressed over his lack of employment.
Dr. Waldenberg on January 3, 2012 commented that he agrees with the two prior reports that the workers depression arises from his chronic pain which is a consequence of his work injury. In his opinion his ongoing chronic pain and major depression renders him unemployable from any occupation.
The record further shows the worker participated in a transferable skills analysis providing a report dated May 10, 2007. The worker maintains at the time of the accident he injured his neck, left shoulder and low back as a result of the fall. Educational background revealed he completed a grade 12 as a youth and had very limited computer skills. He is primarily employed since 1985 as a machine operator/tow motor driver up to the date of accident. Primary occupations for consideration included light delivery driver, production clerk, purchasing clerk, dispatcher and retail sales person. The worker attended a job search skills training program which provided him with the skills in pursuing employment within the suitable employment or business (SEB) however, the SEB identified reported a wage loss.
In my assessment of the evidence the record shows that the adjudicator accepted entitlement for a low back injury sustained at work on August 10, 2006 where the worker received full LOE ending on August 20, 2007. Initially he was assessed for an organic award for his low back receiving 33 per cent for a non-operated back. Subsequently psychiatric entitlement along with treatment was recognized and due to a permanent impairment class 3 – moderate impairment psychiatric 30 per cent when combined equals 53 per cent. The worker was sponsored in a labour market re-entry (LMR) program to pursue the SEB of light delivery driver on a full time basis and was unsuccessful in obtaining employment at the end of the program. Based on my above analysis I find the worker partially impaired, not totally impaired and at best the worker is able to work 20 hours per week based on his organic permanent restrictions for his low back and the ongoing psychiatric moderate depression, including other non-compensable impairments outlined. In conclusion I find the worker employable at 20 hours per week based on my assessment.
CONCLUSION
I deny full LOE from August 20, 2007.
I allow partial LOE from August 20, 2007 based on an hourly work week of 20 hours per week.
The worker’s objection is allowed in part.
DATED February 29, 2012
M. Palmieri
M. Palmieri
Appeals Resolution Officer
Appeals Branch