WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180053
OBJECTING PARTY: Worker
REPRESENTED by: Worker Rep
RESPONDENT: Employer
REPRESENTED by: Employer Rep
HEARING: Oral Hearing on July 17, 2018
HEARD by: L. Diaz, Appeals Resolution Officer (ARO)
DATE: August 16, 2018
ISSUE
The worker objects to the October 16, 2017 decision regarding the suitability of the Suitable Occupation (SO) of Light Delivery Driver.
BACKGROUND
On September 17, 2015, while employed as a Material Former / Door Assembler, the worker was cleaning a glue rolling machine when his right elbow inadvertently struck the emergency bar, which in turn accidentally activated the machine and caused his right hand to be pulled in, resulting in a serious injury to his right hand. The worker was 50 years old at the time of injury and had been with his employer since January 2011.
Entitlement in the claim was accepted for a right ring finger amputation at the middle phalanx and a right small finger amputation at the proximal phalanx, for which the worker was granted an 8% Non-Economic Loss (NEL) benefit. Entitlement was also accepted for Major Depressive Disorder and a related permanent impairment, for which the worker received a 10% NEL benefit. When combined, the worker’s whole person impairment award was 17%.
As a result of the worker’s inability to return to his pre-injury employment due to his psychological impairment, he was referred for Work Transition (WT) services in May 2016. However, the worker contended he was medically unfit to participate in WT services.
Although the worker claimed he was disabled and incapable of participating in WT services, in an October 4, 2016 decision, an ARO concluded the worker was not totally impaired and that it was appropriate that WT services were initiated. The worker has been participating in the ESL component of his WT program.
The worker’s accepted physical precautions are as follows: sedentary level of work with the right hand, with occasional light tasks; and, he is to be cautious with sustained or forceful gripping with the right hand. According to the February 21, 2017 decision, the worker’s psychological restrictions include the following: not working around the same or similar environment that was connected to the accident, including the worksite and a factory environment. Limitations include cognitive difficulties with attention, forgetfulness and concentration. It was noted the worker should avoid tasks with deadlines, tasks requiring multi-tasking, and tasks with an immediate risk of injury should his concentration lapse.
WT Specialist’s decision
According to the October 16, 2017 WT Specialist’s decision, following discussion and meeting with the worker the previous month, it was determined that the most suitable SO would be that of Light Delivery Driver as it was within the worker’s functional abilities, was available in the general labour market, and the worker had or would acquire the skills to perform the job.
Worker’s position
According to the December 27, 2017 Intent to Object Form, it was the worker’s position that the WTplan is not suitable as he is competitively and totally unemployable.
AUTHORITY
The following Operational Policy Manual documents apply:
19-03-03 Determining Suitable Occupation
ANALYSIS
I find the selected SO of Light Delivery Driver is suitable. In arriving at this decision, I have had regard for the file information, the worker’s testimony, the arguments presented, and the applicable Policy.
Worker’s testimony
The worker testified he attained a grade 8 education in Sri Lanka. He was then employed in a cement factory in Sri Lanka following which he immigrated to Canada in 1989. He advised he became employed as a dishwasher within two weeks of coming to Canada. He was then employed at a wood factory for 17 years where he built kitchen cupboards and doors. The worker was then employed for five years with his accident employer.
Upon questioning by the worker representative, the worker described his accident history. The worker representative then questioned the worker about his ongoing pain symptoms and asked him to describe his symptoms, and the frequency of the symptoms. As it then appeared that the worker representative was addressing the issue of the worker’s level of impairment, I informed him that if he was intending to make an argument regarding to the worker’s level of impairment, I reminded him that there was already an ARO decision on file that addressed this issue and I did not have the jurisdiction or the authority to revisit this issue. With respect to the worker’s physical and psychological precautions, I advised him that if he had concerns with respect to the worker’s accepted physical and psychological limitations, this was not part of the issue agenda and would need to be appealed separately. He confirmed he was not appealing this particular issue at this time.
Following questioning by the employer representative, the worker confirmed he has a driver’s license. He indicated that his wife does most of the grocery shopping, though occasionally he will pick up one or two items just himself, but he tries to help out as much as he can. He indicated the longest distance he typically drives is the 25 km to xxxxx hospital and back. The worker confirmed that although he drives he has a fear of driving now, but he copes with his fear, though sometimes he tends to forget his way around.
The worker confirmed he is currently participating in retraining and finds that his principal issue at the moment is that he forgets things. In addition, he stated he cannot write or sit for long periods of time.
Upon questioning by myself, the worker advised that he did have direct input into his SO selection, however, he did express some concerns at the time. When asked why he would have a fear of driving given that his injury occurred at his workplace, the worker indicated that driving reminds him of his accident. When I pointed out that he drives 25 km to therapy, the worker indicated that although he does drive, he has concerns with driving continuously as he finds himself upset by events around him.
When I asked the worker if there was any other SO he would have preferred, he responded that he has anxiety and fear, however, he did not indicate there was another SO he would have preferred.
In closing, the worker representative argued that although the worker possesses a driver’s license, his testimony confirmed he could not drive for extended periods of time as a result of his anxiety and nervousness, and that his current driving patterns are not continuous and long-term. He indicated the worker’s preference was to not be around people.
The worker representative also pointed out that from a physical perspective the worker does not use his right hand for much. In addition, he indicated that many businesses require that individuals have their own vehicles. He was of the view that whether the worker could perform another SO was not the issue, that the current SO is not appropriate. He also pointed out that the worker has entitlement to Canada Pension Plan (CPP) disability benefits.
It was the employer representative’s position that the selected SO was indeed suitable. He pointed out that this SO adhered to the worker’s psychological precautions of not being around machinery and his accident employer. Furthermore, although the worker indicated he preferred not to be around people, the employer representative pointed out that the WT progress reports noted he was interacting well with his classmates and others. In summary, it was his view that based upon the worker’s restrictions, and the fact that there was no medical information to support he could not drive, the SO remained suitable.
Analysis
Policy 19-03-03, Determining Suitable Occupation, records the following in part with respect to the definition of a SO:
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.
With regards to the physical suitability of the SO, as is noted on page 2 of this decision, the worker’s physical restrictions include: sedentary level of work with the right hand, with occasional light tasks; and, he is to be cautious with sustained or forceful gripping with the right hand. Although the worker representative indicated the worker does not use his hand for much, the file medical information does not support the worker is incapable of using his hand. The file medical reports, particularly the more recent Physiotherapist’s reports, confirm the worker’s right hand is sensitive to touch and that he has decreased range of motion and strength. It was also noted the worker had limited gripping and writing endurance with his right hand. The Lifemark April 13, 2018 report noted that he had a grip strength with his right hand that was at level 2, i.e. grip strength with his right hand was 13 lbs, with his left it was 20 lbs. The December 19, 2017 WSIB Surgical Specialty Clinic follow-up report noted the worker was fit for work within the sedentary level but would have difficulty with tasks involving fine motor activities such as keyboarding and handwriting due to the amputations. It was recommended that these activities be self-paced.
Research conducted by the WT Specialist confirms that Light Delivery Drivers sit and drive for most of a shift. The SO is often focused on deliveries, which includes fast foods or light industrial parts, and as a result, there is typically no heavy lifting.
In summary, when comparing the worker’s physical precautions to the job of Light Delivery Driver, I find it is within the worker’s physical abilities. With respect to the worker’s concern relating to driving, I note he has demonstrated the ability to continue driving as he presently drives himself to therapy at a distance of 25 km.
From a psychological perspective, the worker’s limitations include not working around the same environment, i.e. machinery, in factory settings, or at his previous workplace. It is also noted that the worker reported difficulty with attention, forgetfulness and concentration. Despite these limitations, I note the worker has demonstrated the ability to perform the principal function of his SO job, i.e. driving.
The worker also testified that the accident has made him fearful of driving. However, I note this concern has not been documented in the medical reports submitted to file, and as a result, from a medical perspective, I find there is no contraindication to the worker pursuing a SO as a Light Delivery Driver.
With respect to the availability of the SO in the labour market, according to the Government of Canada job bank, employment prospects for this SO are noted to be ‘fair’ in the worker’s geographical region. Furthermore, labour market information confirms there is job availability in the worker’s local labour market.
Although the worker representative expressed concern relating to the fact that some employers require persons to use their own vehicle, labour market information also confirms that other employers do not. At the appropriate time, the worker should therefore refine his job search efforts to those employers who provide a vehicle.
The worker representative also pointed out that the worker is currently in receipt of benefits from CPP disability. In response to this suggestion that the worker ought to be considered unemployable, I would point out that the WSIB adjudicates its’ claims based upon our Act and Policies, and we are not bound by findings or conclusions of CPP disability decisions-makers.
In summary, having regard for the prior ARO decision which concluded the worker was partially impaired, and having regard for his accepted physical and psychological restrictions, the SO requirements, and the current and projected labour market, for the reasons previously indicated, I find the selected SO is suitable.
CONCLUSION
I conclude the SO of Light Delivery Driver is suitable.
The worker’s objection is therefore denied.
DATED: August 16, 2018
L. Diaz
Appeals Resolution Officer
Appeals Services Division