WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150033
DECISION DATE: February 17, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: Hearing in Writing
HEARD by: M. Barbeau, Appeals Resolution Officer
ISSUE
The worker objects to the decisions dated February 4, 2013 and July 29, 2014 which determined the worker was partially impaired and capable of earning $10.25/hour over a 20 hour work week in the suitable occupation (SO) of customer service representative, effective July 9, 2010.
The worker seeks a finding of total impairment and full Loss of Earnings (LOE) benefits effective July 2, 2010.
BACKGROUND
On April 11, 2005, the worker injured her right arm, shoulder and upper back when she pulled on a bed side curtain which jammed. The worker was diagnosed with a sprain/rupture of the right forearm and Complex Regional Pain Syndrome (Type 1).
The worker was subsequently awarded a 10% organic whole person non-economic loss (NEL) award for the right upper extremity and a 23% non-organic whole person NEL award under the psychotraumatic impairment policy for a major depressive disorder.
The worker objected to issues relating to her suitable employment or business (SEB – now referred to as suitable occupation -SO) and level of impairment. In a decision dated October 31, 2011, the Appeals Resolution Officer (ARO) determined the worker was capable of earning $10.25/hour over a 20 hour work week in the suitable occupation (SO) of customer service representative, effective July 9, 2010. Partial loss of earnings (LOE) benefits were adjusted accordingly.
Following the ARO decision, the operating area added to the areas of entitlement which now include the left upper extremity as a secondary condition. The worker was granted a 3% whole person NEL award for a sprain/tendonitis for the left forearm/wrist/thumb.
In light of the expanded areas of entitlement, the operating area revisited the issues of level of impairment, SO, and partial LOE benefits.
In decision letters dated February 4, 2013 and July 29, 2014, the operating area acknowledged the increased impairment but confirmed the finding of the previous ARO decision dated October 31, 2011.
The worker objected and her file was forwarded to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual (OPM) documents:
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-03-03 Determining Suitable Occupation
ANALYSIS
The worker representative provided a submission dated November 4, 2014 which includes the following arguments:
The worker’s combined organic upper extremity and non-organic impairments are significant, rated as a 36% NEL award;
Adjudicative advice document “Permanent Impairment (NEL) Rating Guideline for Upper and Lower Extremity Repetitive Strain Injuries” states the actual percentage of the award should not be used as the sole indicator of the seriousness of the permanent impairment;
The SO is unsuitable and it was determined prior to the rating of any impairments; the job involves upper limb coordination and is limited to light, which precludes the worker from this line of work;
The Best Approaches document “Return to Work Considerations – Workers with Psychological Entitlement and Chronic Pain Disability” suggests psychological issues should be considered in return to work activities;
There was no alternate SEB/SO as the worker was determined to be unemployable due to upper extremity and psychological barriers as recorded in Memo 113;
Based on her age, limited transferable skills, and significant organic/inorganic impairments, the worker should be viewed as incapable of work, even on a part time basis.
I have previously made rulings in this claim regarding the worker’s level of impairment, suitability of the SO and wage loss. I must now re-examine my previous rulings in light of the expanded areas of entitlement which now include the left forearm/wrist/thumb.
While I acknowledge the worker’s accepted/increased impairments, I am of the view the worker is partially impaired and the part time SEB of customer service representative remains suitable. I will further explain these findings.
File review
I note the FRP Discharge Summary dated May 9, 2008 stated that psychologically there were no specific restrictions preventing the worker from returning to gainful employment. The report added the following:
In summary, [the worker’s] personal commitment to being an active agent in her ongoing rehabilitation, that includes getting exercise, reduced activity avoidance, as well as adaptively managing her mood as well as her pain, will be beneficial.
The FRP Booster Report dated September 12, 2008 states the worker was on time for the day session, was neatly dressed and well groomed. As well, there were no signs of neither self-neglect nor significant distress. It is noted that in the group session, the worker expressed herself in a confident manner and asserted her ways of managing her condition.
I note the worker’s physical or psychological condition does not prevent her from travelling as there is mention in the medical record dated March 16, 2009 that she was travelling to Mexico.
I reviewed the NEL Psychiatric Assessment Report dated August 19, 2009. The assessment includes the following:
Activities of daily living are severely affected;
Slow to attend to basic functions of self-care and personal hygiene;
Sleep is poor, reduced and non-restorative;
It is hard for her to walk and travel longer distances;
Cognitive function is affected by chronic pain, depression and poor sleep;
Social function is affected and she avoids contact with family and friends; she has dropped hobbies and interests;
There was suggestion of moderately severe depression.
Analysis and findings
I am not convinced the worker is totally impaired/unemployable as suggested by the worker representative.
While the quantum of the NEL award is not necessarily and indicator of level of impairment, I note severe impairments are usually associated with very high NEL quantums.
I do not consider the increased NEL quantum for the left upper extremity of 3% to be “very high” and resulted in the worker becoming totally impaired as the result of the increased impairment.
I note the NEL quantum of 23% under psychotraumatic impairment did not result in any specific restrictions preventing the worker from returning to gainful employment.
I do not find, as suggested by the worker representative, that the combined total NEL organic/inorganic quantum of 36% to be suggestive the worker is now totally impaired.
I find there is evidence in this case which might lead one to question the worker’s level of impairment. The doctor who conducted the NEL psychiatric assessment stated the worker is slow to attend to basic functions of self-care and personal hygiene. Although the doctor did not state the worker could not attend to basic functions, I note the worker was on time, neatly dressed and well groomed for her FRP Booster session. The doctor also noted it was hard for the worker to walk and travel longer distances, yet there is evidence the worker could travel to Mexico in March 2009.
OPM document 19-03-03 “Determining Suitable Occupation” states a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available with the injury employer or in the labour market.
I note the previous decision to grant partial LOE benefits based on part time work already reflects the worker would experience issues with full time employment and the part time hours would allow for increased rest periods. I find the part time SO reflects the worker’s organic and inorganic impairments.
As a result of the above noted findings, I am of the view the worker remains partially impaired. I also find the SO of part time customer service representative is safe, consistent with the worker’s functional abilities, partially restores the worker’s pre-injury earnings and is available in the labour market.
CONCLUSION
The worker’s objection is denied.
DATED February 17, 2015
M. Barbeau
Appeals Resolution Officer
Appeals Services Division