WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 201820013
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer (not participating)
HEARING: Hearing in Writing
HEARD by: H. Shaw, Appeals Resolution Officer
DATED: March 6, 2018
ISSUES
The worker is objecting to:
The quantum of the non-economic (NEL) benefit for her low back, which was determined by the NEL Clinical Specialist (NCS) to be 21% in the redetermination decision of November 14, 2017; and
The suitability of the suitable occupation (SO) of Customer Service and the payment of partial loss of earnings (LOE) benefits from May 30, 2017. The Case Manager’s decision of October 2, 2017 determined the worker’s previous SO of Security Guard was no longer suitable. The SO of Customer Service was considered suitable with SO earnings of $11.40 per hour for 40 hours per week. Partial LOE benefits were paid from May 30, 2017 to reflect the new SO earnings.
BACKGROUND
The worker was employed in construction. On July 24, 2006 she was involved in a motor vehicle accident (MVA) when her vehicle was struck by another vehicle on the front passenger side. She sustained injuries to her neck, low back and right shoulder. She was 46 years old at the date of injury and is currently 58 years old.
Permanent impairments were recognized for her right shoulder, low back and for a psychotraumatic disability. The NEL ratings are summarized in the following list:
Her right shoulder was rated with a 14% NEL benefit on December 24, 2010. It was increased to 16% on January 28, 2015 and to 17% on August 17, 2017.
On December 6, 2013 she was rated with a 20% psychotraumatic impairment.
On November 3, 2015 she was rated with a 6% NEL benefit for her low back after it was offset for a pre-existing condition. It was increased to 14% on August 17, 2017 with an offset for a pre-existing condition. On November 14, 2017, the offset applied in the redetermination decision was reversed and the NEL benefit for the low back increased to 21%.
Her total NEL benefit in the claim is currently 46%.
The worker was provided with Work Transition (WT) services. The recommended SO was Security Guard. At the end of the plan it was determined she had the capacity to earn $13.00 per hour in the SO and her loss of earnings benefits ended as of November 26, 2012 because a continuing wage loss was not expected based on determined earnings in the Security Guard SO.
On October 2, 2017 the Case Manager determined the Security Guard SO was no longer suitable.
Decisions
On August 17, 2017 the NEL benefit for her right shoulder and low back were redetermined. The new rating was 21% for the low back and 17% for the right shoulder. The low back rating was reduced by 7% for a pre-existing condition. The total NEL benefit increased to 43%.
On November 14, 2017, the reduction for the pre-existing condition that was applied to the low back NEL in the redetermination of August 17, 2017 was removed.
The decision of October 2, 2017 determined that effective the permanent worsening date for her low back and right shoulder impairment (May 30, 2017), the SO of Security Guard was no longer suitable. The SO of Customer Service was considered suitable with SO earnings of $11.40 per hour for 40 hours per week. LOE benefits were adjusted effective May 30, 2017 to reflect the new SO earnings.
AUTHORITY
Operational Policy
18-05-03 Determining the Degree of Permanent Impairment
11-01-05 Determining Permanent Impairment
19-03-03 Determining Suitable Occupation
18-03-06 Final LOE Benefit Review, published January 2, 2015
ANALYSIS
I have considered all of the available information, legislation and relevant operational policies in reaching this decision.
NEL Quantum - Low Back
On the Appeal Readiness Form dated October 18, 2017, the worker representative indicated they were disputing the 7% reduction of the low back NEL benefit for the pre-existing low back condition in the decision of August 17, 2017. Noting the reduction for the pre-existing condition was reconsidered and overturned in the decision of November 14, 2017, I contacted the worker representative’s office to confirm if they were still objecting to the NEL quantum. They confirmed they were still objecting to the quantum of the NEL benefit for the low back in the redetermination of November 14, 2017. No additional submissions were provided.
The employer is not participating in this appeal and has provided no submission on the rating of the NEL benefit.
I find the NEL benefit for the low back was appropriately redetermined on November 14, 2017, for the reasons set out below.
According to Policy 18-05-03, a worker who has a work-related permanent impairment is entitled to a NEL benefit based on the degree of her work-related permanent impairment. The decision-maker uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, a report from an independent medical assessment, to determine the degree of permanent impairment. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides).
Policy 11-01-05 defines impairment as a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss. A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury.
Based on the AMA Guides, three criteria are considered when establishing NEL ratings for spinal impairments: abnormal motion, impairments due to specific disorders of the spine under Table 53 on page 80 of the AMA Guides and neurological disorders.
Range of motion values were provided by the worker’s doctor in a report dated May 15, 2017. She had 40° lumbar flexion, 5° extension, and 5° for both right and left lateral flexion. I reviewed these values using Tables 60 and 61 from the AMA Guides and found she had a 15% impairment for abnormal motion, which is consistent with the rating determined by the NCS.
I find it was also appropriate to include a 7% rating for specific disorders of the spine, to reflect the degenerative disc changes evident in the MRI of March 29, 2008. I find the medical evidence did not establish a neurological disorder resulting from the lumbar spine impairment, noting the MRI did not show any nerve root compression. The 15% rating for abnormal motion was combined with the 7% rating for the disc disorder using the Combined Values Chart from the AMA Guides, which resulted in a 21% total impairment rating for the low back.
I find the low back impairment was appropriately rated at the redetermination on November 14, 2017, as it was consistent with the operational policies, AMA Guides and the medical evidence.
SO Suitability and LOE Benefits
I find the Security Guard SO has not been suitable since December 1, 2012. I also find the worker has been able to work in the Customer Service SO since that date, earning minimum wage for 15 hours per week. My reasons are explained below.
On the Appeal Readiness Form dated October 18, 2017, the worker representative objected to the new SO of Customer Service, the hours worked per week and the SO wage of $11.40 per hour. No additional submissions were provided. The employer is not participating and provided no submissions.
Policy 19-03-03 defines a suitable occupation 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 Work Transition (WT) Plan Proposal dated March 1, 2012 recommended Security Guard, NOC 6651, as the SO. The physical requirements involved sitting, standing and walking, some upper limb coordination and handling light loads less than 10kg. At that time, only a 14% right shoulder impairment was recognized, with permanent precautions of avoid heavy pulling, pushing, repetitive lifting and overhead work.
The worker completed the plan and passed her security guard examination in June 2012. The WT plan was closed on November 30, 2012. No LOE benefits were paid beyond November 26, 2012 because her post-injury determined earnings in the Security Guard SO were higher than her pre-injury earnings. This was expected to be the final review of LOE benefits because the claim was more than 72 months from the date of injury.
After November 2012, the worker experienced a permanent worsening of her condition. In May 2013 she was determined to have a permanent impairment for a psychotraumatic disability for a major depressive disorder. She reached MMR for the psychotraumatic impairment on December 1, 2012. In December 2013 she was rated with a 20% NEL benefit for the psychotraumatic condition, which increased her total NEL benefit in the claim to 31%.
A further worsening of her condition was recognized with the allowance of a permanent impairment for her low back. A decision from the Appeals Services Division on October 8, 2015 allowed a permanent impairment for a chronic low back strain, which reached MMR on September 26, 2008. The accepted restrictions for her low back are: no repetitive trunk movements, bending, lifting, prolonged weight bearing, prolonged positions, low level work, heavy pushing/pulling against resistance and twisting.
Policy 18-03-06 allows the WSIB to review the LOE benefit post 72 months if the worker experiences a significant deterioration in the work-related injury. This meant the worker’s LOE benefits could be reviewed when a permanent psychotraumatic impairment was recognized.
Although no psychological restrictions were recognized at the time the permanent psychotraumatic impairment was established, on May 18, 2017 the following permanent psychological limitations were recommended:
The worker reported decreased concentration and therefore may only be capable of reduced activity and productivity due to fatigue and decreased concentration.
She may have difficulty with tasks with deadlines, time pressures, high expectations, complex activities or multi-tasking.
She reported decreased attention span and memory and therefore may have difficulty working in situations where there is an immediate risk for injury if concentration lapses.
I find the newly recognized psychological limitations were not based new medical information. They were based on her reported symptoms identified in the NEL assessment in December 2013 and reflected her level of functioning as of the MMR date of December 1, 2012.
In the decision of October 2, 2017, the Case Manager found the Security Guard SO became unsuitable as of the permanent worsening date for her low back and right shoulder impairment, which was May 30, 2017. After considering all the evidence, I find the Security Guard SO was unsuitable as of December 1, 2012 when she reached MMR for the psychotraumatic impairment.
The suitability of the Security Guard SO was assessed by a Work Transition Specialist (WTS) in a consultation report dated September 12, 2017. The consultation report determined Security Guard was not suitable for the worker, considering the precautions for her low back and the limitations resulting from her psychotraumatic impairment. Her decreased concentration and attention span, fatigue and difficulty working in situations with an immediate risk of injury were considered barriers to working as a Security Guard, noting the need to react swiftly in an emergency situation.
The evidence suggests the Security Guard SO was not suitable based on the worker’s psychological limitations. I find those limitations were present as of December 1, 2012, even though not formally recognized by the WSIB at that time. For that reason, I find the Security Guard SO was not suitable as of December 1, 2012 when the worker reached MMR for her psychotraumatic condition.
The WT Consultation report of September 12, 2017 recommended Customer Service, NOC 1453, as a suitable direct entry SO. I find the evidence supports Customer Service would have been a suitable SO for the worker since December 1, 2012. It is a SO she could perform without additional training, noting she had transferable skills from previous work as an administrative assistant and from her WT plan. Although some types of Customer Service jobs might exceed her psychological limitations, I find there are job titles within the SO that would be suitable, as they would not involve high levels of concentration, time pressures or deadlines. The WT consultation report identified jobs such as information clerk, counter enquiries clerk, kiosk information clerk, and courtesy desk clerk. Information in the WT consultation suggests those jobs would be sedentary in nature and would allow positional changes consistent with her restrictions. The WT consultation report also determined there were jobs available in the Customer Service SO. Based on the above, I find the Customer Service SO meets the policy criteria of being suited to the worker’s transferable skills, safe and consistent with her functional abilities.
Based on the psychological limitations recommending reduced activity and productivity due to fatigue and decreased concentration, I find it unlikely the worker would have been able to sustain full time employment from December 1, 2012. In May 2013 she worked as a construction flag person but was able to remain at the job for less than two weeks before she stopped work due to increased symptoms.
According to Policy 19-03-03, when a return to full-time hours is not feasible due to the work related injury, consideration may be given to a SO with part-time hours. In 2016 and 2017 she volunteered as a lunch room monitor at her grandson’s school for approximately 1.5 hours per day. It would likely be difficult to find part-time work for only 1.5 hours per day, but noting she reported to the WTS that she enjoyed working as a lunch room monitor and did not identify problems with managing the physical or emotional demands of that activity, I find it reasonable that she would be capable of working more than 1.5 hours per day. I find three hours per day is a reasonable expectation, noting it would not require significantly more time than she had been doing as a lunch room monitor and being available for 15 hours per week would allow her to competitively apply for part-time customer service positions.
When determining earnings for the SO, Policy 19-03-03 directs that the earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. The earnings are established based on whether the WT plan:
involves the worker acquiring a new skill set or entering a new field. If this is the case, updated entry-level wages are used to determine post-injury earnings, or
is designed to improve a worker’s existing or transferable job skills. If this is the case, updated mid-level wages are used to determine post-injury earnings.
The WT consultation report indicated that entry-level wages in Customer Service would be minimum wage, which was $10.25 per hour in 2012. I find minimum wage is an appropriate wage expectation, noting the worker’s limitations and Customer Service is a new field for her.
In summary, I find the Security Guard SO was not suitable based on the worker’s psychological limitations and those limitations were present when she reached MMR for the psychotraumatic impairment on December 1, 2012. I also find since December 1, 2012 the worker had the skills and abilities to work in Customer Service at minimum wage for 15 hours per week. I find she is entitled to partial LOE benefits from December 1, 2012.
CONCLUSION
I conclude:
The quantum of the non-economic (NEL) benefit for her low back was appropriately redetermined in the decision of November 14, 2017.
The Security Guard SO was not suitable as of December 1, 2012. Since December 1, 2012 the worker had the skills and abilities to work in Customer Service at minimum wage for 15 hours per week. She is entitled to partial LOE benefits from December 1, 2012 based on those part-time hours and earnings.
The objection is allowed in part.
DATED March 6, 2018
H. Shaw
Appeals Resolution Officer
Appeals Services Division