WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
2015069
DECISION DATE:
May 12, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING:
April 16, 2015 - Windsor, Ontario
HEARD by:
H. Mohamed Appeals Resolution Officer
ISSUES
The worker representative on behalf of the worker is seeking the following:
Entitlement for degenerative disc disease (DDD) of the cervical spine and scattered interphalangeal joint osteoarthritis in both hands
Entitlement to Psychotraumatic Disability
Determining that the worker is totally disabled from any employment
Determining that the Work Transition (WT) Plan of Food Service Supervisor, including the subsequent amendment, be deemed unsuitable
Increase in the Non-economic loss (NEL) quantum for the organic injuries
BACKGROUND
On January 14, 2013, this then 55 year old head cook for a banquet hall reported a gradual onset of pain in both her hands and arms which she attributed to the nature of her job duties as a cook. Entitlement was accepted for bilateral hand tendonitis and a repetitive strain injury with an accident date of January 14, 2013. As the employer had no modified work available, the worker received loss of earnings (LOE) benefits from January 15, 2013 onwards.
The worker underwent a multidisciplinary (REC) medical assessment on March 13, 2013. The report concluded that the worker was suffering from bilateral carpal tunnel syndrome (CTS) and bilateral ulnar nerve dysfunction at the elbows. The assessment noted that the worker was suffering from primary osteoarthritis and that the pain may be referred from the cervical spine.
The worker was then assessed at the WSIB Surgical Speciality Program by Dr. ‘D’ on May 13, 2013 and was diagnosed with severe bilateral carpal tunnel syndrome, severe bilateral cubital tunnel syndrome, severe bilateral CMC osteoarthritis and diffuse moderate small joint osteoarthritis in both hands. Surgery was recommended however the worker decided that she was not prepared for any surgical intervention.
In the decision dated April 9, 2013, the Case Manager (CM) denied entitlement for osteoarthritis of the hands as well as the neck. Entitlement was however accepted for the bilateral CTS and the bilateral ulnar nerve dysfunction. In a subsequent letter dated January 2, 2014, the CM allowed entitlement to bilateral hand first CMC joint osteoarthritis. This was further clarified in the letter dated October 27, 2014 where entitlement to the cervical spine and interphalangeal joint arthritis remained denied. The worker representative objected to this decision.
In June 2013, the worker was referred to Dr. ‘L’, psychologist by her family doctor due to her anxiety and fear related to potential surgery and physical restrictions. Dr. ‘L’ diagnosed the worker with major depressive disorder, moderate with anxious distress and recommended ten psychotherapy sessions. The sessions were approved by the operating area however entitlement under the psychotraumatic disability policy was denied as outlined in the letter dated November 15, 2013. The worker representative objected to this decision.
The worker was referred for WT services in June 2013 and after undergoing a psycho-vocational assessment the suitable occupation (SO) of Food Service Supervisor (NOC 6212) was considered to be the best option for the worker given her interest, aptitudes and transferrable skills. As outlined in the September 5, 2013 letter, the plan included some upgrading, a private college program in Food Service Processing Supervisor and job search training. The worker representative objected to the WT plan claiming that the worker was unemployable due to her injuries. In a subsequent letter by the CM dated November 20, 2013, it was determined that the worker was not totally disabled from participating in the WT plan. The representative objected to this decision.
As the worker was struggling with her educational program, the worker was switched from the Food Service Processing Supervisor program to the Food Service Worker program, which consisted of 4 less courses. The SO itself was not changed. The representative objected to this change maintaining that the worker was totally disabled from any employment.
Since the worker elected not to have surgery, the CM referred the worker’s claim for a NEL assessment in March 2014. As outlined in the NEL Clinical Specialist’s decision letter dated April 10, 2014, the worker was granted a 19 per cent NEL award for her bilateral thumbs, however this was reduced to 14.25 per cent due to her pre-existing thumb osteoarthritis. She was also granted an 8 per cent NEL award for her bilateral elbows and wrists. This resulted in a combined NEL award of 21.25 per cent. The worker representative objected to the NEL quantum.
These issues are now before me.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
11-01-01 - Adjudicative Process
11-01-02 - Decision-Making
15-02-01 - Definition of an Accident
15-04-02 - Psychotraumatic Disability
18-03-02 - Payment and Reviewing LOE Benefits (Prior to Final Review)
11-01-05 - Determining Maximum Medical Recovery (MMR)
19-02-01 - Work Reintegration Principles, Concepts and Definitions
19-03-03 - Determining Suitable Occupations
WSIAT Discussion paper titled “Osteoarthritis” by Dr. Marvin Tile
EXHIBITS
Exhibit 1 - 12 colour photographs
Exhibit 2 - Medical paper “Osteoarthritis” by Wanda Lockwood RN
Exhibit 3 - Job posting
ANALYSIS
In arriving at my decision I have considered the information in the claim file, the written submission by the worker’s representative as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
- Does the worker have entitlement for degenerative disc disease (DDD) of the cervical spine and scattered interphalangeal joint osteoarthritis (OA) in both hands?
In reviewing the medical evidence, I am not persuaded that the worker has any entitlement to her cervical spine and nor does she have entitlement to the OA in both hands.
The worker testified that she came to Canada in 1998 and shortly after arriving started working with the accident employer as a cook and within a few years she was promoted to kitchen Manager. As kitchen manager her responsibilities included supervising staff, conducting inventory, hiring staff and making sure everything in the kitchen ran smoothly. However her primary responsibility was to cook and this involved preparing (cutting, peeling, chopping) and serving. The worker stated that despite her job title, she actually did a lot of the physical work herself especially since it was a paced environment. The worker provided 12 colour photographs (exhibit 1) which she went through at length describing the various aspects of her job.
The worker stated that she started feeling pain in both her hands but primarily her left dominant hand sometime around mid-2011 which became worse every time she had to cut, peel, chop or slice. She went to her doctor and was prescribed Ibuprofen. She did not miss any time off work and continued performing her regular job duties. The worker stated that she progressively got worse and at one point was unable to even hold a knife with her left hand. She noted that her employer started a “meals on wheels” program for seniors, which meant preparing an additional 300 meals on top of her regular job duties and this was causing additional problems. As such, she stopped working on January 14, 2013.
With respect to the neck, the worker stated that her neck pain started shortly after her hand pain and there is a stiffness that continues to this day and she needs to be careful when driving as she is unable to turn her head all the way.
The claim was allowed on a gradual basis for bilateral hand and arm injuries related to the worker’s pre-accident job duties as a head cook. According to the Worker’s Report of Injury (Form 6) dated February 2, 2013, the worker indicated that she had a gradual onset of injury due to her job duties which resulted in intense pain in both hands, involving the wrist and fingers, with pain sometimes radiating to the elbows. The worker made no mention of any neck problems. The worker stated that she started noticing the pain around August 2011. The worker had plenty of time to list all areas of injury she was attributing to her job duties noting that she completed this form nearly 3 weeks after making her claim.
The initial Health Professional’s Report (Form 8) from Dr. ‘B’ dated January 14, 2013 and the Physiotherapist Form 8 dated March 11, 2013 make no mention of any cervical issues.
The first and only mention of any potential cervical issues is noted in the REC report of March 13, 2013. During the physical examination, Dr. ‘R’ noted that there was some protraction of the cervical spine with some decreased range of motion. Given that the worker had pain in both upper extremities, Dr. R speculated whether there might be referred pain from the cervical spine and requested a cervical x-ray. It is worth noting that under the heading “current concerns and symptoms,” the worker made no mention of any neck complaints.
The X-ray of the cervical spine revealed multi-level degenerative changes (DDD) with some mild narrowing at C5-C6 and some left foraminal narrowing at the C3-4 and C4-5 levels due to uncovertebral joint hypertrophy.
Subsequent reports make no correlation of the cervical DDD to the worker’s ongoing bilateral arm symptoms. There are no EMG or nerve conduction tests to indicate that the worker’s symptoms are caused by the cervical spine.
The degenerative findings on the cervical x-ray are quite common in people over 50 and her symptoms are not clinically correlated to these findings. Just because Dr. R investigated the cervical spine to exclude any cervical aetiology does not mean that the worker sustained a neck injury or that she has entitlement to the findings that became apparent following the x-ray. The worker’s job duties have neither caused or aggravated nor accelerated the cervical DDD or the foraminal narrowing. More importantly, although the worker testified at the hearing that she had neck pain following her injury, the contemporaneous reporting makes no mention of any cervical symptomology and the medical reports do not indicate any cervical work related condition. As such, the worker does not have entitlement to the cervical spine.
With respect to the OA in the hands, the representative provided me with a paper titled “Osteoarthritis” by Wanda Lockwood RN (exhibit 2) which states that there are two types of arthritis – primary and secondary. The former is idiopathic with no known cause and the latter is usually caused by trauma or repetitive stress. The representative argued that given the job details provided by the worker which involved frequent hand use, as well as the job description on file which is not in dispute, the worker’s OA is secondary in nature and entitlement should exist.
I note that there has never been any mention of the worker suffering from secondary OA. The REC report and Dr. R’s independent consultation report dated June 24, 2013 only identified the OA as being primary in nature.
Dr. Marvin Tile notes in his WSIAT discussion paper titled “Osteoarthritis” that primary OA is a condition that is usually idiopathic and with high prevalence in society. It affects at least 60% in patients over the age of 60. Secondary OA however is mechanical osteoarthritis usually involving a single joint, and has a known cause. Most are caused by a biomechanical abnormality to the joint or limb or a direct injury to the joint (post-traumatic arthritis).
Further down in the paper under the question: does employment in heavy work for many years cause osteoarthritis? Dr. Tile provides the following response:
Clearly, a specific traumatic work related injury can lead to post traumatic OA, either by direct or indirect means. Indirect factors may be limb deformity in femoral or tibial fracture causing altered biomechanics, and late OA.
Also, if the joints were immobilized for long periods of time in abnormal positions such as a cast (e.g. an ankle in plantarflexion >90), joint stiffness and late OA may ensue.
Although there is extensive literature on this subject, in my opinion, there is no compelling evidence linking occupations requiring heavy work and arthritis.
Work related OA from repetitive stress is recorded, but the studies are not credible with respect to cause and effect. It is well accepted that radiographic changes of OA occur in some joints in 80% of individuals over age 55, therefore, it is difficult to attribute these changes to occupation, when they are so common in the general population.
Epidemiologic studies do not support a causal relationship to heavy work. Hip and knee arthroplasty, the two commonest forms of intervention for primary OA, show no such direct relationship, in fact, there is a slight preponderance of women, not engaged in heavy work; in men, there are just as many done in individuals with sedentary jobs, (professionals: judges, lawyers, doctors, office workers, etc) than in workers engaged in heavy work (construction, trades, etc), following the incidence of these jobs in the general population.
Individuals that do heavy work are no more likely to develop OA than those that do sedentary work; however, the heavy work may render the joint more symptomatic, creating the impression that osteoarthritis is more common in these workers.
Diagnostic imaging of the worker’s hands confirmed that she is suffering from OA with severe changes at the bilateral CMC joints. The reports note that the IP joints in all her digits are affected with the greatest changes being at the long finger DIP on the right as well as the ring finger.
As noted in memorandum 70, the operating area accepted entitlement to bilateral osteoarthritis of the first CMC joint of both hands after obtaining a medical opinion. The Medical Consultant provided a detailed review along with reference to medical literature which stated that first CMC joint OA is the second most common degenerative joint disease of the hand and it’s aetiology is multi-factorial in nature with one main underlying factor being laxity of the anterior oblique ligament which, in combination with repetitive stress loads on the joint, leads over time to cartilage loss, bony impingement and pain. The Medical Consultant did not provide an opinion on the OA of the hands, IP and DIP joints.
Although I do not dispute that the worker’s job duties required frequent use of her hands, I am not persuaded on the evidence that her job duties caused, accelerated or aggravated her primary OA. The evidence supports that primary OA is a condition that worsens with age and the fact that the worker testified that her condition continues to get worse despite not having worked in her pre-accident job for a number of year’s supports my position that this condition is not work related. In my opinion, the worker does not have entitlement to primary OA of her hands aside from the already accepted first CMC joint.
- Does the worker have entitlement to Psychotraumatic Disability?
I am persuaded that entitlement under the psychotraumatic disability policy should be granted.
Policy 15-04-02 notes the following:
Entitlement for psychotraumatic disability may be established when the following circumstances exist or develop
Organic brain syndrome secondary to - traumatic head injury - toxic chemicals including gases - hypoxic conditions, or - conditions related to decompression sickness.
As an indirect result of a physical injury - emotional reaction to the accident or injury - severe physical disability/impairment, or - reaction to the treatment process.
The psychotraumatic disability is shown to be related 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 reviewing the worker’s pre-accident medical history, I note that the clinical records indicate that the worker’s husband passed away by committing suicide in December 2008. The clinical entry dated March 31, 2009 notes that she was counselled by the doctor and the next two entries in July 2009 noted that the worker appeared stressed and anxious and that she reported weight loss and insomnia. There are no further clinical entries after this date until January 14, 2013 when the worker appeared anxious as a result of pain in both her hands.
The worker testified that she has never suffered from any depression or any other psychological condition or sleep disorder. The worker acknowledged that her husband suffered from depression and died in December 2008. Naturally this was very traumatising for her and she was anxious and stressed in the months after his death but she was never prescribed any medications and was not diagnosed with any psychological condition. With respect to the notations in the clinical notes with regards to counselling, she stated that this was just the doctor providing some basic reassurances and listening as opposed to actual counselling.
The worker testified that following the workplace injury she was hoping she would get better but instead her pain kept getting worse and that is when she realised that she is, “not good for anything,” and slowly started to withdraw herself from people. The worker stated that her concentration and memory are poor and recently she double dosed on her psychological medications and had to be taken to hospital. The worker testified that she enjoys seeing Dr. L and finds it helpful to talk about her problems with somebody. She later testified that she only found the sessions helpful while she was there but once she left her office she was back to square one. She also sees Dr. ‘S’, psychiatrist but only for medication purposes. She stated that the medications don’t help very much however the ones she takes at night help her fall asleep.
The WSIB Surgical Speciality Program assessment report of May 13, 2013 noted that the worker would require a total of 6 surgeries (3 on each side) to correct her bilateral CTS, bilateral cubital tunnel syndrome and CMC joint pain. At the assessment it was noted that the worker exhibited signs and symptoms of depression and anxiety. The worker’s score on the PHQ-9 questionnaire suggested that the worker may have a depressive mood disorder and may benefit from psychotherapy.
The worker spoke to the CM on May 21, 2013 (memorandum 29) and June 4, 2013 (memorandum 32) and advised that she was overwhelmed by what she was told at the hand clinic assessment and wanted to discuss the surgeries with her family doctor. The worker also told Dr. R on June 24, 2013 that she was terrified of undergoing surgery and wanted to see a psychologist. It was again documented in memorandum 37 that the worker was very scared of having surgery but had found a psychologist that she wanted to see. The operating area approved the initial assessment as well as 10 treatment sessions.
Dr. L’s report of July 16, 2013 noted that the worker was afraid of having surgery as she knows people who have had failed CTS surgery. She was scared of not being able to take care of herself and both her sons were against her having surgery. The worker reported that she was not eating or sleeping and felt she was not good for anything. Dr. L diagnosed the worker with Major Depressive Disorder, Moderate with Anxious Distress and recommended ten psychotherapy sessions. Her follow-up report of October 8, 2013 noted that the worker was very anxious with the WT process and did not feel like she was doing well and was not confident with her English. Further sessions were recommended.
The psycho-vocational assessment report dated July 16, 2011 noted that the worker presented with evidence of mood disorder characterized by symptomatology of both anxiety and depression on formal test measures. Dr. ‘Z’ recommended a formal, independent psychological examination to understand the breadth, severity and veracity of the worker’s reported symptoms. It does not appear that this was ever done.
The worker was seen by Dr. S on March 7 and April 23, 2014 and he diagnosed the worker with a major depressive disorder related to her workplace injury and prescribed her anti-depressants. In his letter dated May 26, 2014 addressed to the worker representative he confirmed his previous diagnosis and noted the worker’s global assessment of functioning (GAF) score at 50. In his opinion, the worker’s depression anxiety, sleep disorder and chronic pain render her totally disabled from working in any capacity.
I have also reviewed Dr. L’s letter dated January 27, 2014 addressed to the worker representative wherein she notes that the worker is suffering from high levels of anxiety as well as depression and that her activities of daily living have been impacted by her pain and psychological issues. She also felt, like Dr. S, that the worker would have a difficult time participating in any work.
Having carefully reviewed all the evidence, I am persuaded that the worker meets the criteria for entitlement to psychotraumatic disability. Although there was evidence of some anxiety and stress prior to the accident, there is no evidence before me that worker ever required any treatment and nor was she prescribed any medications.
For entitlement to be accepted the worker does not need to demonstrate that the work-related factors were the sole contributing factor to the onset of his psychological condition. It is enough to show that the work-related factors contributed significantly, regardless of the existence of other non-compensable factors which might also have contributed significantly. I do not dispute that loss of employment and the death of her husband played a role in the worker’s psychological symptoms but in my opinion, her organic disability and pain are a major contributing factor.
There is however insufficient information before me to make a formal ruling on whether her psychological condition is permanent. I am reluctant in accepting Dr. S’s opinion provided to the worker representative as evidence of a permanent psychological impairment on the basis that it lacks an element of objectivity. Policy 15-04-02 states that psychotraumatic disability/impairment is considered to be a temporary condition. Only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.
I am in agreement with Dr. Z that an independent psychiatric assessment needs to be conducted (with full validity scales) in order to determine the extent of the worker’s psychological symptoms , whether her psychological condition is permanent and whether she has reached maximum medical recovery. I would ask that the operating area make arrangements for the worker to attend a comprehensive psychological assessment and depending on the outcome of this assessment, the operating area can make a decision on whether a permanent psychological impairment is warranted.
I am reluctant to accept ongoing psychological treatment sessions on the basis that the worker testified that she saw very little benefit from the sessions with Dr. L other than having someone who listened to her problems. I will however leave this determination to the operating area once they have reviewed the independent psychiatric assessment report.
- Is the worker totally disabled from working due to her compensable injuries?
I do not believe that the current medical evidence supports that the worker is totally disabled from working in any capacity.
The medical evidence on file supports that the worker suffers from bilateral carpal tunnel syndrome, cubital tunnel syndrome and OA in her hands and thumbs. In reviewing the medical reports from Dr. ‘D’, Dr. R and Dr. ‘DS’, it is evident that the worker has restrictions with respect to the use of her hands and arms. None of these doctors have ever indicated that the worker was disabled from working in any capacity.
To be clear, Dr. D recommended surgery and noted that the worker had permanent numbness and tingling and objective signs of nerve dysfunction and stated that the worker was not fit to return to work due to her symptoms of diffuse pain but would be able to return to work gradually following her surgery. The worker however declined to have surgery and even at the hearing remained firm that she would not be considering any future surgical intervention.
The last medical report on file regarding the worker’s objective physical findings is the physiotherapy progress report dated January 29, 2014. This report provided objective findings and range of motion (ROM) measurement in degrees for the wrists, elbows and thumbs. The findings noted in this report do not correspond with total disability.
At the hearing the worker testified that pain interferes with all aspects of her life and she rated her pain at 8 out of 10 at rest and 10 out of 10 with any use (this was the same rating she provided Dr. D in May 2013). The worker was asked as to why she was apprehensive about surgery given that her pain cannot get worse than 10 out of 10. The worker stated that she is just afraid as she has never had surgery before. She said she has thought about surgery many times but just can’t seem to go ahead with it. She acknowledged that Dr. L has discussed surgery with her and has encouraged her to think about surgery but she just cannot do it. She stated that her pain is getting worse. She explained that the primary area of pain is in the wrists, her palms and the base of her thumbs. She said that when he makes a fist she feels sharp pain that radiates up her arm. She said that initially she had more pain in her left hand but now the pain is equal in both hands.
In terms of daily activities she stated that she doesn’t do any cooking or cleaning as this is done primarily by her son and she simply provides him with instructions on how to cook and what to buy. On good days she may do some light housework and clean a few dishes. She stated that she is not the type to stay in bed all day so she will spend a lot of time walking and “shaking” her arms as this provides her with some relief. She confirmed that she is capable of driving and continues to drive when needed.
The worker advised that she has a computer at home and uses the internet a few times a week to read the news or look up health tips. In the beginning she would use the computer to read up about her condition but then she stopped doing this as it was not helpful.
In terms of medications, the worker advised she takes Ibuprofen and Arthrotec for pain. For her psychological and insomnia condition she takes Concerta, Clonazepam, Temazepam and Teva-Fluoxetine. The worker testified that despite taking pain medications, the pain never goes away but it does provide her with some relief for up to two hours.
The worker advised that psychological sessions with Dr. L did not really help her help much. She said she enjoyed the sessions and looked forward to meeting with Dr. L and talking about her problems on a weekly basis but there were no real changes she noticed after the sessions ended.
In reviewing the psychological reports on file from Dr. S and Dr. L, both doctors feel that the worker is not psychologically able to work due to her anxiety and depression. However, a large component of this stems from her pain levels. Dr. L has mentioned this on various occasions and in her report dated December 4, 2014 she requests that the worker’s medical situation be reassessed. I find it interesting that the reason the worker was sent to Dr. L was to assist her in getting over her apprehension over surgery and yet Dr. L makes no mention of her discussions with the worker regarding this issue and any progress she made.
As I have already stated, the worker has an organic condition which according to Dr. D, a well-respected surgeon, can be corrected by surgery. The worker has chosen not to proceed with this treatment option. Although I fully accept that the worker has the right to refuse surgery, I believe that the worker’s condition is not totally disabling and can be improved with surgical intervention.
No evidence was provided by the worker or her representative with respect to the downside risk of undergoing CTS and Cubital Tunnel release. These procedures are extremely common today and would not have been recommended by Dr. D if they were not going to help. I realise that no surgery is going to guarantee complete resolution of symptoms, which is what the worker is looking for, but given that the worker rates her pain at 8 out of 10 at rest and 10 out of 10 with even the slightest use, I fail to see the downside risk to undergoing surgical correction. This leads me to believe that perhaps the pain isn’t as bad as she claims.
In my opinion, even without surgery, the worker is not totally disabled and is capable of working in some capacity. I realise that the worker rates her pain highly however pain is a subjective phenomenon and I cannot grant total disability on pain alone. The objective findings on file must also be considered and based on the last physiotherapy report which outlined objective ROM findings; I am not persuaded that the worker is totally impaired from working. Moreover, I found the worker’s testimony regarding her household activities and chores to be inconsistent to the file record. On page 4 of the psycho-vocational assessment it is noted that the worker was able to function adequately at home and said she was able to perform household chores, but stretched over a longer period of time. During the hearing she said she did very little household chores and it was all delegated to her son. Aside from the worker’s subjective reports of worsening, no medical evidence was provided to indicate that her condition is worse now compared to when she had the psycho-vocational assessment to support the sudden decrease in her functioning.
Based on the totality of the evidence before me, I do not believe that the worker is totally disabled from an organic or non-organic point of view.
- Is the SO of Food Service Supervisor suitable for the worker?
Based on my review of the evidence, I am not satisfied that the SO of Food Service Supervisor (NOC 6212) is a suitable occupation for the worker.
Policy 19-03-03 defines a SO as 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.
The policy goes on to state that the WSIB uses the National Occupational Classification (NOC) system, developed by Human Resources and Skills Development Canada (HRSDC), and labour market information (LMI) from the Ontario government as the primary source of LMI to help identify SOs and WT services the worker may require.
According to the NOC guide, Food Service Supervisors supervise, direct and co-ordinate the activities of workers who prepare, portion and serve food. They are employed by hospitals and other health care establishments and by cafeterias, catering companies and other food service establishments. Food service supervisors perform some or all of the following duties:
- Supervise, co-ordinate and schedule the activities of staff who prepare, portion and serve food
- Estimate and order ingredients and supplies required for meal preparation
- Prepare food order summaries for chef according to requests from dieticians, patients in hospitals or other customers
- Establish methods to meet work schedules
- Maintain records of stock, repairs, sales and wastage
- Train staff in job duties, and sanitation and safety procedures
- Supervise and check assembly of regular and special diet trays and delivery of food trolleys to hospital patients
- Ensure that food and service meet quality control standards
- May participate in the selection of food service staff and assist in the development of policies, procedures and budgets
- May plan cafeteria menus and determine related food and labour costs.
It is noted that the completion of secondary school is usually required as well as completion of a community college program in food service administration, hotel and restaurant management or related discipline or in the alternative several years of experience in food preparation or service is required.
The Career Handbook, which accompanies the NOC guides, notes that Food Service Supervisors are required to sit, stand and walk however limb coordination is listed as “0” which translates to not relevant and strength is listed as “1” which means limited.
The representative articulated that the worker is unable to work, regardless of the SO choice based on her organic restrictions as well as her psychological functioning. She noted that the worker’s aptitude ranged from below average to low average according to the psycho-vocational assessment report. The report also noted that given her psychological symptoms, she would have difficulty in participating in a WT program.
The worker testified that she has a grade 12 education from Croatia and was employed as a Kitchen Manager with the accident employer at the time of her injury. She argued that the SO was essentially her pre-accident job and she didn’t understand how going back to the same job that caused her injury would be considered suitable. The worker also provided a recent job posting from Calgary (exhibit 3) to show that the job of Kitchen Manager still requires hands on activities that are outside her physical precautions. The worker stated that her job duties involved supervising and hiring staff, scheduling, inventory and day to day management of the kitchen and yet she still had to cook and do all the heavy activities. She stated that having worked in the industry she was exposed to other Kitchen Managers and they all had the same hands-on duties as her.
The worker stated that the training program she was given was not very helpful because she already knew all the information and nothing was new. Yet on the other hand she stated that she struggled with the program and only passed because the teachers gave her a lot of assistance and helped her select the right answers to the multiple choice questions. She stated she needed constant supervision and was having difficulty with writing and using a computer. She stated that the resume she has on file was actually completed by the trainers and she didn’t do any of it.
After careful review of the facts, I am satisfied that the NOC of Food Service Supervisor is not suitable. I agree with the worker that the majority of these jobs would require some element of physical activity and frequent use of both hands. I reviewed a few job postings online and noted that the majority of them indicated that the job duties would require the worker to handle heavy loads and also require them to work in a fast paced environment. Given that the worker was already running a kitchen, it is more likely than not that the majority of the jobs in this NOC would require frequent use of the hands and upper limbs.
I disagree with the representative, however, that the worker is not capable of working and I have explained this in the previous section. I note that the psycho-vocational assessment highlighted a number of viable occupations, one of them being Customer Service Clerks (NOC 1453). This option was also presented as an alternative option for the worker by the WT Specialist. The worker is fluent in English and the psycho-vocational assessment noted that the worker was reading at a grade 12 level. I also had no problems communicating with the worker at the hearing. In my view, the worker is capable of working in the SO of Customer Service Clerk at an entry level wage of $11.00 per hour.
I do not believe that the worker requires any additional training with respect to the SO of Customer Service Clerks; however I will leave that determination up to the WT Specialist. Given that the worker has no prior work experience in this field, I will authorise ten weeks of Employment Placement Services (EPS) provided the worker is willing to fully engage and participate in the process.
Considering that I have determined the SO of food service supervisor to be unsuitable, the worker should be paid full loss of earnings (LOE) benefits from March 28, 2015 until she completes the EPS or any additional training. Should the worker decide not to participate and co-operate in this process, the worker would not be entitled to the full LOE benefits and benefits should be adjusted effective March 28, 2015 based on $11.00 per hour.
- Has the worker’s organic NEL quantum been appropriately rated?
Based on my review of the medical evidence, I am persuaded that the NEL quantum should be 27.25% as opposed to 21.25%.
The representative argued that the NEL Clinical Specialist (NCS) utilised the information on file to assess the worker and did not send the worker for an independent NEL assessment. She stated that the EMG report from Dr. DS stated that the worker had mild dysfunction of the median nerves at the wrist bilaterally and mild dysfunction of the ulnar nerves at the elbows. However, Dr. D noted that her condition was severe based on the testing she conducted and therefore an independent assessment should be carried out.
During the hearing, the worker had testified that Dr. D had carried out a paper test at the assessment before concluding that her nerve dysfunction was severe and the representative stated that this is the only accurate test and this contradicts Dr. DS’s mild dysfunction rating. She argued that the paper test is more accurate than the EMG and therefore a higher rating should have been accorded for motor and sensory deficits as per the AMA guides.
She also disagreed with the NEL award being reduced by 25 per cent for pre-existing impairment noting that there is no explanation given as to how the pre-existing condition was deemed moderate.
Legislation and WSIB policy provide that the degree of a worker’s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the “AMA Guides”).
The WSIB is not required by the WSIA to provide a medical assessment by a roster physician. Section 47(3) states that “the Board ‘may require’ a worker to undergo a medical assessment,” which confirms that an assessment by a roster physician is not mandatory and is only required if there is insufficient medical information to rate based on the file. Contrary to the representative, I do not consider the EMG findings of mild median and ulnar dysfunction to be incongruous to the diagnosis provided by Dr. D. As noted by Dr. DS, the mild dysfunction would be considered significant if the patient had symptoms of CTS and ulnar neuropathy, which she clearly did. In this case I am satisfied that there is sufficient medical evidence to allow for an accurate determination of the degree of permanent impairment.
Chapter 3 of the AMA Guides deals with impairments of the extremities. Section 3.1 deals with the “The Hand and Upper Extremity,” and Table 2 in that sets out the relationship of the impairment of the hand to the impairment of the upper extremity. Table 14 sets out impairments for specific nerves that affect the upper extremity. In this case the worker has impairments in both her ulnar and median nerves in both extremities.
Turning now the assessment itself, I note that the NCS determined that that worker was suffering from a 15% sensory deficit for the ulnar nerve and the median nerve. This falls within Grade 2 of table 10 which is defined as, “decreased sensation with or without pain which is forgotten with activity.” It is unclear why the NCS rated the worker at 15% when the range goes from 1-25%. There was no motor deficit noted and this was rated as 0%.
Although I agree with the classification for the motor deficit, based on my review of the evidence along with the worker’s testimony, I do not agree that the worker’s pain and numbness is forgotten with activity. Both the worker’s testimony and Dr. D’s report indicate that the worker’s pain is exacerbated with use and is almost constant. In my view the worker sensory deficit falls within Grade 3 of Table 10 which is defined as, “decreased sensation with or without pain which interferes with activity.” In my view the worker’s deficit should be rated at 30%.
Table 14 provides the maximum percentage loss of function due to sensory deficit for ulnar nerve is 10 % and median nerve is 40%. CTS however is usually rated at 35% since it does not involve the entire median nerve. As such, 30% of 10% equals 3% impairment for the ulnar nerve in both the left and right arms (as opposed the original 2%). In addition, 30% of 35% equals 10.5% impairment of the median nerve on both sides (as opposed to the original 5%).
So 3% impairment for the ulnar nerve plus 10.5% impairment for the median nerve equals a 13.5% left arm impairment. The same calculation would apply to the right arm and would also equal a13.5% impairment. Table 3 provides a conversion of the upper extremity impairment to the whole person. A13.5% impairment for the left arm equals 8% whole person impairment. Applying the same calculation on the right side also equals 8% whole person impartment. Combining these two values using the Combined Values Chart found on page 254 and 255 of the AMA guides equals 15% NEL for the upper extremities.
With respect to the CMC joint osteoarthritis, the NCS rated the thumb impairment at 45% for both the left and right thumb. Although NCS does not explain how this figure was determined, the value was derived from table 18 and 17. The description on page 50 of the AMA guides states that carpal instability from lunate and scaphoid pathology is classified as mild, moderate or major. The NCS classified the worker’s condition as severe, which equated to a 60%. Table 17 provides the impairment values for certain disorders of specific joints. CMC of the thumb is provided a maximum percentage value of 75%. Taking 60% of 75% provides an impairment percentage of 45%. This calculation applies to both thumbs.
A 45% digit impairment reduces to an 18% hand impairment which then reduces further to a 16% upper extremity impairment and a 10% whole person impairment (see tables 1, 2 and 3). When combining the 10% for the left thumb and 10% for the right thumbs equals a combined 19% whole person impairment as per the Combined Values Chart. Based on my review of the medical information and the AMA guides, I am satisfied that the calculations made by the NCS are accurate with respect to the CMC joint arthritis.
The NCS however reduced the 19% NEL rating for the bilateral CMC joint osteoarthritis by 25% based on the provisions outlied in policy 18-05-05. This reduced the NEL award for the bilateral thumbs to 14.25%.
Policy 18-05-05 notes that following:
When calculating NEL benefits for workers who have a pre-existing permanent impairment, the WSIB
rates the area of the body affected by the new permanent impairment
disregards any pre-existing permanent impairments affecting other areas of the body, and
factors out pre-existing permanent impairments affecting the same area of the body.
If the pre-existing impairment is not measurable, the WSIB
rates the total area's impairment, and
reduces this rating according to the significance of the pre-existing impairment (see pre-accident disability in 14-05-03, Second Injury and Enhancement Fund).
if minor, there is no reduction
if moderate, there is a 25% reduction
if major, there is a 50% reduction.
The medical evidence confirms that the worker has arthritis in her hands and thumbs and although entitlement to the CMC joint osteoarthritis was accepted as an aggravation, the evidence indicates that this condition is pre-existing and therefore in my opinion the NCS was correct to rate the significance of the pre-existing as moderate and apply the 25% reduction in the overall bilateral thumb rating.
In summary, I have determined that the appropriate NEL award for the worker’s bilateral CTS and bilateral ulnar neuropathy should be rated at 15% and the bilateral CMC joint osteoarthritis is rated at 14.25%. Combining the 15% and 14.25% using the Combined Values Chart, results in 27.25% whole person impairment.
CONCLUSION
Based on the foregoing reasons, I conclude:
There is no entitlement for degenerative disc disease (DDD) of the cervical spine or for scattered interphalangeal joint osteoarthritis in both hands
The worker has entitlement for Major Depressive Disorder under the Psychotraumatic Disability policy. There is however insufficient information to determine whether the worker has a permanent psychological impairment. As such, the operating area is asked to refer the worker for an independent psychiatric assessment in order to make a formal ruling on this issue.
The worker is not totally disabled from working.
The Work Transition (WT) Plan of Food Service Supervisor is unsuitable. The second SO option of Customer Service Clerk however is suitable and within the worker’s functional abilities. Full LOE benefits should be reinstated from March 28, 2015 and the worker should be provided with EPS, and any other services the WT Specialist sees fit, to assist her in finding employment provided the worker agrees to fully participate. If she chooses not to participate and co-operate in this process, then partial LOE benefits should be paid from March 28, 2015 based on $11.00 an hour.
The worker’s NEL quantum should be increased to 27.25%.
The worker’s objection is allowed in part.
DATED: May 12, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division