Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Claim: 20180004
Objecting Party: Worker
Represented by: Legal Representative
Respondent: Employer [not participating]
Hearing: June 28, 2017
Heard by: K. Gowans, Appeals Resolution Officer
Interpreter: Croatian
ISSUES
The worker objects to:
(1) The July 29, 2014 Case Manager decision which denied entitlement to the left wrist;
(2) The quantum of the non-economic loss (NEL) granted for chronic pain disability (CPD) as outlined in the NEL clinical specialist’s decision dated September 7, 2016;
(3) The denial of full loss of earnings (LOE) benefits subsequent to August 4, 2014 based on the determination that she can work full-time, earning minimum wages, in the Suitable Occupation (SO) of Other Support Occupations, NOC 6742 as outlined in the Case Manager decision dated March 3, 2017.
BACKGROUND
On June 12, 2014, this then 55 year old housekeeper slipped and fell while exiting an elevator. Initial entitlement was accepted to the upper back as well as a right chest wall strain. Diagnostic reporting identified several rib fractures for which entitlement was also accepted.
The worker subsequently requested extended entitlement to include the neck, right shoulder and left wrist. Entitlement to these areas was denied in the Case Manager decision dated July 29, 2014. In a prior Appeals Resolution Officer (ARO) decision dated July 21, 2015, extended entitlement to the neck and right shoulder was denied. No decision was rendered on the issue of entitlement to the left wrist.
The same ARO decision denied entitlement to LOE benefits subsequent to August 4, 2014 on the basis that the worker was found to be non-cooperative in the work reintegration process.
A recent ARO decision dated August 3, 2016 accepted extended entitlement to chronic pain disability (CPD). In a decision dated September 7, 2016, a 10 percent non-economic loss (NEL) benefit was accepted for the CPD permanent impairment.
In a decision dated March 3, 2017, the Case Manager accepted that the worker remained partially impaired following the allowance of CPD entitlement. It was accepted that the worker was capable of performing direct entry work in the Suitable Occupation (SO) of Other Support Occupations, NOC 6742, earning minimum wage benefits on a full time basis. As such, the worker was granted partial LOE benefits effective August 4, 2014 based on an ability to earn $11.40 per hour in the identified SO.
The worker disagrees with the above noted decisions and has brought the case forward to the Appeals Services Division for further consideration. The worker representative has identified that the worker disagrees with the denial of left wrist entitlement, the quantum of the NEL award granted for CPD as well as the finding that she is capable of returning to work in the SO of Other Support Occupations, NOC 6742. Instead, the worker claims to be unemployable and seeks entitlement to full LOE benefits subsequent to August 4, 2014.
AUTHORITY
Policy Document : 11-01-01 Adjudicative Process
Policy Document : 15-02-01 Definition of an Accident
Policy Document : 15-02-02 Accident in the Course of Employment
Policy Document : 18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
Policy Document : 19-03-03 Determining Suitable Occupation
ANALYSIS
Issue 1: Left Wrist Entitlement
For the reasons set out below, I find there is no basis to accept left wrist entitlement in this claim.
The Worker’s Report of Injury (Form 6) completed by the worker on July 15, 2014 describes the accident as occurring while she was exiting an elevator. She indicated that she slipped and fell on her back due to the floor being wet. She recorded on the form that she injured her upper back and right rib cage area. There was no mention what-so-ever of a left wrist injury.
The worker completed a second Form 6 on July 22, 2014. She expanded on the areas of injury by listing the head, neck, chest, right shoulder and left hand. Again, there was no mention of the left wrist being hurt, nor did she indicate that the left wrist was involved in any way with her fall to the floor.
A Health Professional’s Report (Form 8) completed by Dr. Nedimovic on June 16, 2014 provided a diagnosis of upper back contusion and right chest wall pain. X-rays were ordered to rule out rib fractures. Of note, there was absolutely no mention of any left wrist injury or symptoms. Dr. Nedimovic’s separate chart entry from June 16, 2014 as well makes no mention of a left wrist injury.
The chart entries from June 24, 2014, July 8, 2014 and July 14, 2014 also make no reference to a left wrist injury.
The first mention of left wrist symptoms is found in the chart entry from Dr. Nedimovic dated July 22, 2014, approximately 6 weeks post accident. Dr. Nedimovic references the worker complaining of pain in the right chest wall, neck, spine, right shoulder and left wrist. She referenced that the worker “fell down on left outstretched wrist” but did not clearly state whether this event took place at the time of the accident, or whether it occurred sometime later. As has been noted, there was no reference to a fall on an outstretched hand in the worker’s Form 6 reporting or the prior medical reporting. She did not provide a diagnosis but indicated that an x-ray would be ordered. The left wrist x-ray performed on July 22, 2014 found no evidence of any fracture or dislocation.
On July 24, 2014, Dr. Richardson of the Kinetics Medical and Rehabilitation Centre examined the worker and noted she was complaining of pain in her neck, right shoulder, back and left thumb. There was no mention of left wrist pain, nor was a diagnosis provided for the left wrist.
Subsequent reports on file make scant to no reference to the left wrist pain. Of note, the worker was seen for an Independent Physiatry Assessment by Dr. Newall on December 14, 2015 at the request of her insurance company. She described the accident as occurring when the worker turned to her right while exiting from an elevator. She recorded that the worker advised her that “she slipped and fell onto her right side and then onto her back”. There was no reference to any left wrist involvement at the time of the accident.
On examination, Dr. Newall reported that the worker had a full range of motion (ROM) in her upper limb joints, with no indication of a reduced ROM affecting the left wrist. She diagnosed the worker with a left wrist sprain/strain but went on to state that the condition is “now asymptomatic”.
In the July 21, 2015 ARO decision, extended entitlement to include the right shoulder and neck was denied based on the “significant delay in the worker reporting an injury of (sic) her neck and right shoulder, to the employer, the treating practitioners or the WSIB”. She noted that the first mention of pain to these areas [and in this case as well, the left wrist] did not occur until July 22, 2014.
At the hearing, the worker testified that at the time of the accident, she fell on her right side and her back. Initially in her testimony, she did not reference her left wrist in any way in relation to the accident. However, when asked directly about the left wrist, she testified that she believes it was hurt when she used her left arm/hand to lift herself up after she fell.
She confirmed that she finished her shift and continued working for the next 2-3 days until the pain in her chest and rib area became too much for her to continue. When asked why she did not mention the left wrist on either of her Form 6’s, the worker testified that the pain on her right side was initially so intense that it overwhelmed her other pains. It was only after the right sided pain subsided that she began to notice the pain in her left wrist.
The worker representative submitted that initial entitlement to a left wrist sprain should be accepted in the claim, based on the diagnosis provided by Dr. Newell.
Policy
WSIB policy document 15-02-01 relates to the issue of initial entitlement. In part, the policy states the following:
“Accident includes
A wilful and intentional act, not being the act of the worker
A chance event occasioned by a physical or natural cause, and
A disablement arising out of and in the course of employment.
The policy goes on to advise of the following:
“A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
“The definition of disablement includes:
A condition that emerges gradually over time
An unexpected result of working duties.
Furthermore, policy document 11-01-01 describes the process used by decision makers to establish if initial entitlement in a claim is in order. In part, the policy reads as follows:
“All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the ‘five point check system’.
An allowable claim must have the following five points
An employer
A worker
Personal work related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history.”
To determine proof of accident, the following excerpt from the policy is noted:
“Decision-makers may consider the following when examining proof of accident,
Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there a delay in the onset of symptoms or in seeking health care attention?”
Assessment
When I assess all of the available information in the claim file, I find I am unable to establish proof of a work related accident occurring to the left wrist in this claim.
In reaching this conclusion, I found the following evidence particularly relevant to the issue:
The mechanism of injury was such that the worker slipped and fell on a wet floor, landing on her right side and back. There was no left wrist involvement at the time of the accident;
The worker subsequently completed two separate Form 6’s and failed to make any reference to a left wrist injury;
The worker was seen by her family doctor, Dr. Nedimovic, on four separate occasions between June 12, 2014 and July 14, 2014 yet there was absolutely no mention made in any of the chart entries of a left wrist injury;
The first mention of left wrist pain was found in the chart entry dated July 22, 2014, almost 6 weeks post-accident. There has been absolutely no continuity information supplied to file to support that the complaints made 6 weeks later were related in any way to the slip and fall accident of June 12, 2014.
The only diagnosis provided to file for the left wrist was made by Dr. Newell in late 2015. However, she also noted that the left wrist sprain was asymptomatic.
Given the significant delays in reporting a left wrist injury, as well as the even more significant delay in being diagnosed with an asymptomatic wrist sprain, I find there is no basis to accept initial entitlement to a left wrist sprain in this claim.
Issue 2; NEL Quantum for CPD
The worker representative submits that the 10 percent NEL award granted for CPD is too low and does not adequately reflect the worker’s level of ongoing permanent impairment. Instead, he feels that the worker’s award should be increased to at least 20 percent, reflective of a moderate impairment.
However, upon review of the available medical evidence, including the testimony provided by the worker at the hearing, I find that the 10 percent NEL benefit is an accurate reflection of her permanent impairment for CPD.
Policy
WSIB policy document 18-05-11, entitled Assessing Permanent Impairment Due to Mental and Behavioural Disorders provides in part:
The WSIB attempts to determine the degree of the worker's permanent impairment by considering all relevant health care information in the claim file.
The WSIB then rates the condition using the Mental and Behavioural Disorders Rating Scale, which combines elements of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 3rd edition (revised), (the AMA Guides) with the WSIB's Psychotraumatic and Behavioural Disorders Rating Schedule.
The following scale, in part, applies to the assessment of permanent impairment benefits for psychotraumatic disability:
Class 2, Mild impairment (5-15%) - impairment levels compatible with most useful function
There is a degree of impairment of complex integrated cerebral functions, but the worker remains able to carry out most activities of daily living as well as before. There is also some loss in personal or social efficacy and the secondary psychogenic aggravations are caused by the emotional impact of the accident.
There is mild to moderate emotional disturbance under ordinary stress. A mild anxiety reaction may be apparent. The display of symptoms indicates a form of restlessness, some degree of subjective uneasiness, and tension caused by anxiety. There are subjective limitations in functioning as a result of the emotional impact of the accident.
Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function
There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress.
In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.
The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.
The NEL rating was performed on September 6, 2016 utilizing the medical information contained in the claim file. The evaluation criteria for the rating is based on a worker’s level of function in four distinct areas: (1) Activities of Daily Living; (2) Social Functioning: (3) Concentration Persistence and Pace; and (4) Adaptation to Stress.
I have reviewed the NEL clinical specialist’s ‘Evaluation Sheet’ rating report dated September 6, 2016 wherein the CPD impairment was rated at 10 percent. In reaching this determination, the clinical specialist relied on the psychiatric report provided by the worker’s psychiatrist, Dr. Ligate, dated August 10, 2015 as well as the physiatry report from Dr. Newell dated December 14, 2015. I considered the NEL clinical specialist’s summary of the medical reporting that is contained in the NEL evaluation rating sheet and confirm that it accurately reflects the contents of the reports used.
When assessing the worker’s limitations related to performing her activities of daily living (ADLs), it was noted that the worker is able to sleep through the night and is mostly independent in personal ADL’s and was capable of performing light housework.
Socially, it was confirmed that the worker remained in a long term, supportive marriage with 2 adult children. She lives with her husband, who is noted to have health issues as well. The worker is able to walk to her sister’s house [a short distance away] daily for coffee.
The worker’s concentration, persistence and pace identified issues with concentrating while watching TV, with the worker preferring to read during the day. The psychiatric report confirmed that the worker’s concentration, attention and recent/remote memory were all grossly intact.
Regarding adaptation to stress, the psychiatric report documented that the worker showed a wide range of affect, with thought and speech being normal. The worker did not feel capable of working due to her pain which has led to inactivity and social isolation.
The clinical specialist assessed the relevant information available and determined a 10 percent NEL rating, which is in the mid-range of the mild impairment category.
At the hearing, the worker confirmed that she remains off work due to her pain complaints. The only medication she is on is Gabapentin, which is a medication used to treat neuropathic pain. She does not take anti-depressants or other pain relieving medication. She testified that she gets a lot of pain in her back when she sits for long periods of time, and that she often gets “shocks” down her legs. Of note, the worker did not display any pain behaviours what-so-ever in the 1 hour long hearing, and did not move or adjust herself from the seated position the entire time.
She did not identify any specific sleep disturbances and confirmed that she awakes in the morning to have coffee and a light breakfast. She watches TV throughout the day and uses the internet to check emails etc. While she stated that she needs help from her husband and son throughout the day, it must be noted that the son is not home during the day and her husband is also disabled, having suffered a prior heart attack and stroke.
She advised that she is in receipt of Canada Pension Plan – Disability (CPP-D) benefits as well as long term disability benefits through her company’s insurer.
The representative submitted that the worker’s CPD award should be increased to the low end of the moderate level, or approximately 20%.
Assessment
When I assess all of the available information in the claim file, I find no flaw in the NEL clinical specialist’s assessment of the worker’s CPD condition at 10%, within the Class 2 Mild Rating. I am satisfied that the symptoms described in the medical reporting on file are consistent with the subjective descriptors outlined in the Class 2 rating description.
The subjective reporting confirms that the worker is capable of looking after her own personal needs and does not require supervision or direction. The worker remains capable of carrying out most activities of daily living as well as before, albeit slower. She remains close to her family and is capable of doing light household chores including shopping and meal preparation. While there are subjective limitations associated with her pain complaints, I agree with the clinical specialist’s interpretation that these are mild in nature.
Given the NEL clinical specialist’s expertise in conducting NEL ratings for CPD, and having regard for the findings presented in the relevant medical documentation, I find that the 10 percent whole person impairment value is appropriate and adequately reflects the worker’s level of permanent impairment for her compensable condition. As such, the worker’s appeal on this issue is denied.
Issue 3: SO Suitability, Employability and LOE Benefit Rate Subsequent to August 4, 2014.
For the reasons set out below, I find that the worker is capable of earning direct entry, minimum wage benefits in the identified SO subsequent to August 4, 2014 and therefore confirm the Case Manager’s decision to pay partial, and not full LOE benefits subsequent to this date. However, I also note that the worker may be entitled to an LOE rate adjustment subsequent to August 4, 2014 based on the actual minimum wage in effect from August 2014 until it was increased to $11.40 per hour on October 1, 2016.
The SO of Other Support Occupations, NOC 6742 was recommended after a comprehensive review was conducted by a WT specialist and was found to meet the worker’s functional capabilities and aptitudes. The accepted precautions that are to be observed include avoiding heavy lifting, prolonged weight bearing such as sitting, standing and walking, as well as avoiding low level work and reaching. It has also been recommended that the worker limit tasks that involve time pressures and high expectations for productivity.
The WT specialist spoke with the worker on January 4, 2017 and noted that she was of Bosnian background and had immigrated to Canada in 2000. Her entire working career while in Canada was as a cleaner for a couple of employers. The worker confirmed having a basic knowledge of computers and was able to receive/send emails to friends and family.
Based on the worker’s limited transferable skills, the WT specialist identified the SO of Other Support Occupations, NOC 6742 which she indicated was an essential part of the hospitality industry for which the worker had been was employed in. Possible occupations identified within the SO as being suitable included laundromat attendant, theatre usher, ticket taker and toll booth attendant.
She noted that the worker would be expected to earn minimum wages in the SO, which in 2017 were listed as being $11.40 per hour.
The detailed medical assessment conducted by Dr. Newell in December 2015 provided limitations that included limited weight bearing, no pushing or pulling, limited tolerance for upper extremity movements of reaching, carrying, lifting, crouching or stooping. She estimated that the worker’s likelihood of returning to work was guarded.
The worker representative submits that the worker’s age [she was 56 years old in August 2014], her limited English skills and her compensable impairment all prevent her from returning to meaningful employment. As such, he requests that entitlement to full LOE benefits [less the applicable CDP offset] be accepted subsequent to August 4, 2014.
Assessment
When I assess all of the available information in the claim file, I find that the worker was, and remains, capable of employment in the identified SO of Other Support Occupations, NOC 6742 subsequent to August 4, 2014. As such, the request for full LOE benefits subsequent to this date is denied.
WSIB operational policy 19-03-03, entitled Determining Suitable Occupation notes, in part:
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.
In this case, I accept that the research put forth by the WT specialist in relation to the identified SO meet the requirements of the policy and are well within the worker’s identified precautions for her 10 percent CPD award.
As has already been noted in this decision, the 10 percent permanent impairment rating falls within the mild rating category for CPD awards. This would be in keeping with performing work that is sedentary in nature as outlined in the characteristics of the proposed SO.
I acknowledge the worker’s limited transferable skills as well as limited English speaking skills, however also note that the worker is able to communicate with her numerous treating practitioners and assessors on a reasonable basis. I agree with the WT specialist that the worker would be capable of performing some form of direct entry work that does not require retraining or much formal education.
I also find it reasonable to conclude that the worker would only be capable of earning minimum wage benefits in any occupation she obtains. I note that the LOE benefits subsequent to August 4, 2014 have been based on an ability to earn $11.40 per hour, however this minimum wage only came into effect on October 1, 2016. I therefore direct that the worker’s partial LOE benefit subsequent to August 4, 2014, up to October 1, 2016, be adjusted to reflect the various minimum wages in effect during that period. The appeal is allowed in part.
CONCLUSION
The worker’s appeal is allowed in part.
(1) The request for extended entitlement to a left wrist sprain is denied.
(2) The 10 percent NEL quantum granted for CPD is confirmed.
(3) The request for full LOE benefits subsequent to August 4, 2014 is denied. The suitability of the SO of Other Support Occupations, NOC 6742 is confirmed. I also confirm the Case Manager’s decision to process partial LOE benefits from August 4, 2014 to date based on projected minimum wages in the identified SO.
However I note that the LOE benefits subsequent to August 4, 2014 have been based on an projected minimum wages of $11.40 per hour. Yet, this minimum wage only came into effect on October 1, 2016. I therefore direct that the worker’s partial LOE benefit subsequent to August 4, 2014, up to October 1, 2016, be adjusted to reflect the various minimum wages in effect during that period. The appeal is allowed in part.
DATED July 27, 2017
K. Gowans
Appeals Resolution Officer
Appeals Services Division