Worker v. Employer, 2018 CanLII 67180

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20180029 Objecting Party: Worker Represented by: Representative Respondent: Employer - not participating Hearing Date: April 23, 2018, Toronto Heard by: D. Hart, Appeals Resolution Officer Dated: May 23, 2018

ISSUES

The worker is objecting to:

1. The case manager’s decision dated September 14, 2017 denying entitlement to restrictions for the psychotraumatic disability.

2. The case manager’s decision dated December 7, 2017 notifying the workplace parties:

   • The worker is partially impaired.
   • The worker’s loss of earnings (LOE) benefits were adjusted effective December 2, 2017 to reflect his ability to earn entry-level wages in the suitable occupation.

3. The work transition specialist’s decision dated September 20, 2017 notifying the worker of WSIB sponsorship in the work transition plan and the suitability of the suitable occupation (SO) of light assembler.

BACKGROUND

The background details are well documented in a previous Appeals Resolution Officer’s (ARO) decision dated November 8, 2016 so I will not repeat them here.

At the time of that decision, the worker was receiving full LOE benefits while a Work Transition (WT) program was placed on hold so he could participate in continuing medical treatment.

By July 27, 2017, the decision-maker documented the worker agreed to reconnect with the WT specialist to discuss WT options. In the meantime, the worker was receiving treatment for a psychotraumatic disability.

Case manager’s decision September 14, 2017:

• Entitlement granted to adjustment disorder with anxiety and depressed mood on a temporary basis.
• There are no psychological restrictions and further entitlement would be reviewed once treatment is completed and a psychological discharge report is in the file

The worker agreed to continue the WT program that had been placed on hold and the SO of light assembler was elected.

WT specialist’s decision September 20, 2017:

• WT plan was scheduled to begin on September 11, 2017 and end on December 1, 2017
• On completion of the WT plan, the LOE would be adjusted to reflect the worker’s ability to earn entry level wages in the SO of light assembler

The worker was expected to complete two weeks of job search training activities and 10 weeks of employment placement in the WT program. He did not complete the activities as outlined citing pain issues and the WT specialist closed the WT program on December 1, 2017.

Case Manager’s decision December 7, 2017:

• The worker remained partially impaired due to the organic and non-organic conditions
• LOE benefits would be reduced to reflect the worker’s ability to earn entry level wages in the SO of light assembly

The worker is objecting to these decisions and the matter has been referred to the Appeals Services Division for a review.

AUTHORITY

Policy 11-01-05: Determining Permanent Impairment

Policy 18-03-02: Payment and Reviewing LOE Benefits (Prior to Final Review)

Policy 19-02-01: Work Reintegration Principles, Concepts and Definitions

Policy 19-03-05: Work Transition Plans

ANALYSIS

I considered the relevant legislation and operational policies, the evidence in the file, the worker’s testimony and the worker’s representative’s submission in making this decision. I find:

• The worker has no restrictions for the psychotraumatic disability
• The SO of light assembler is suitable
• The worker is partially impaired and his LOE benefits were appropriately adjusted on closure of the WT plan.

The following is a summary of my assessment.

Restrictions for the psychotraumatic disability:

On June 14, 2016, Dr Abbas, a psychologist, assessed the worker. The psychologist diagnosed adjustment disorder with anxiety and depression. The worker’s global assessment of functioning score was 50.

The decision-maker granted entitlement to a psychotraumatic disability on a temporary basis for the diagnosis of adjustment disorder with anxiety and depressed mood and determined the worker did not have any related restrictions. The decision-maker informed the workplace parties once treatment was completed and there was a psychological discharge report on file, she would review the evidence to determine whether the worker’s condition was permanent.

There is a follow-up report dated May 18, 2017 which documented the worker had completed ten sessions of cognitive based training.

In a discussion with WSIB case manager on June 15, 2017, the psychologist reported the worker was doing well with treatment and engaging in activities that were praise worthy like doing English and writing. He added the worker also demonstrated motivation and the ability to accept things and move on with his life by learning new things like playing chess. The psychologist opined the worker would be an excellent candidate for retraining which would be a good distraction from the injury. However, he felt the worker would benefit from additional therapy during work transition activities.

The psychological discharge reported dated January 19, 2018 documented the worker had shown good progress. The psychologist reported the worker’s social relations had improved and with motivation and hard work he improved his English and computer skills significantly. The psychologist wrote the worker is now adjusted and prepared to take a job that he may be able to do within his physical limitations. He felt the worker had reached maximum medical recovery and was now discharged from any psychological treatment.

The worker testified he is unable to concentrate due to depression but is on no medication for this condition. He added that Percocet taken for pain relief affects his ability to concentrate and be alert. He was discharged from psychological treatment in January 2018 but he continues to feel depressed, frustrated and angry.

The worker’s representative argued the psychological report dated January 19, 2018 diagnosed an adjustment disorder with a global assessment of function and score of 50. This suggested the worker would have problems dealing with work, family and social obligations. He added the worker takes four Percocets daily and cannot concentrate as a result so he could reinjure himself. The worker is also irritable because of his physical and mental problems.

I acknowledge the worker’s representative’s position but I find the evidence does not support the worker had any restrictions due to the psychotraumatic disability. The worker’s testimony about his inability to concentrate and ongoing irritability are incongruent with the psychological discharge report. Moreover when the worker attended a psychovocational assessment on March 22, 2016, he informed the psychologist he did not feel psychologically or emotionally impaired.

I prefer the documented opinion of the psychologist who treated and praised the worker’s efforts and reported at the time of discharge the worker was able to return to work he was physically capable of doing. The psychologist did not recommend any restrictions or follow up treatment for the worker for the psychotraumatic disability.

I find the worker does not have any restrictions for the psychotraumatic disability.

Level of Impairment:

It is the representative’s position that the worker cannot work in any capacity as he has a 24 percent NEL award for his low back which is significant. He is unable to sit or stand for long and takes four Percocets daily which hampers his concentration. The representative argued the worker is not capable of working on a full-time basis if at all.

Policy 18-03-02 provides direction for when a worker is entitled to full LOE benefits. It states if the nature or seriousness of the injury completely prevents a worker from returning to any type of work or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full loss of earnings benefits providing the worker cooperates in health care measures and all aspects of the work reintegration process.

The worker testified he does not feel capable of working in any capacity due to his physical impairment. He described constant low back pain radiating to his shoulders and across his abdomen to his left thigh which is numb. He stated his walking is limited to 15 to 20 minutes at a time, he cannot bend, lift, push or pull any weight and he can only sit for half an hour. The worker stated he also experiences headaches and neck pain due to a non-compensable motor vehicle accident that occurred after the compensable incident. The worker stated he takes four Percocets daily for pain and Tylenol Extra Strength for headaches. The Percocet allows him to sleep two hours at a time, twice nightly.

The medical records overwhelmingly show the worker is partially impaired and a full functional recovery was unlikely. The functional abilities form of September 15, 2016 documented the worker was not capable of returning to work. However, in contrast to this statement, the doctor identified limitations and wrote the worker’s physiotherapy treatments were completed, his abilities maximized and he was unlikely to improve any further. The doctor added the worker was unable to do his previous work. Given the inconsistencies in the reporting, it appears the doctor was referencing the worker’s pre-injury job when reporting the worker was unable to work.

The doctor’s chart notes recorded the worker continued to experience pain and took Percocets daily. In spite of this, the doctor did not indicate the worker was unable to work and in fact he encouraged activity.

The family physician was aware of the worker’s retraining efforts in the WT program and only documented he discussed and empathized related challenges with the worker. There was no recommendation or documentation to the WSIB that the worker was unable to participate in WT or suitable employment activities.

I find the medical evidence does not support the worker was totally impaired due to the low back condition. Additionally, the psychological discharge report indicated the worker was essentially discharged from psychological treatment with no related restrictions.

I do not see evidence that the worker was totally impaired and incapable of participating in work transition activities or returning to suitable employment from either a physical or psychotraumatic disability perspective. I find the worker remained partially impaired and capable of participating in the WT program.

The worker’s work transition plan closed December 1, 2017 and subsequent to this, the decision-maker adjusted the worker’s LOE benefits to reflect his ability to earn entry level wages in the SO of light assembler on a full time basis.

When a worker completes a work transition program or when the work transition plan is closed, the worker’s benefits are adjusted accordingly. In this case, the worker’s work transition program was closed and his benefits were adjusted appropriately.

While I find the worker remained partially impaired, I also considered the opinion from the psychologist who conducted a psychovocational assessment prior to the start of the WT program. Particularly I note the assessor felt that since the worker had not worked for several months at that time, it would be reasonable for him to start work at four hours daily and gradually increase until he was able to do eight hours. I see no reason not to apply that assessment in this case. The worker has not worked since the accident, and I find it would be reasonable to start him in the workforce at four hours daily. I note he takes four Percocets daily which he states affects his concentration. In my view, working four hours daily would give him the flexibility to accommodate issues relating to medication management and pain control and would increase his chance for success in the workplace.

I find the worker capable of working 4 hours daily or 20 hours weekly. These hours can be revisited at the time of the periodic reviews and any required adjustment made accordingly.

Suitability of the SO of light assembler:

It is the worker’s representative’s position that the worker has a 24 percent non-economic loss award for his low back which is significant. He stated the job of light assembler is described as light heavy and this is not suitable for a worker who has a 24 percent NEL award and cannot sit or stand for very long. The worker cannot do full-time work and maybe able to work 20 hours weekly earning minimum wage.

The worker’s representative argued the worker had no work transition or transferrable skills assessment and no assessment for the specific job. The job of light assembly is light heavy which is not suitable for a person with a 24 percent non-economic loss award for the low back. Moreover, the worker has an adjustment disorder and a global assessment of functioning score of 50 suggesting problems dealing with work, family and social obligations.

The worker testified he would like to work but feels unable to do so. He stated the work transition specialist selected the suitable occupation of light assembly and he had no input. He recalled being sponsored in a program to be retrained as a light assembler. There was some computer training for three to four weeks but this did not help him become capable of working as a light assembler. The worker stated he was expected to learn how to look for work using the computer. He denied having any tests to determine whether the job was a fit for him and there was no discussion about the type of work involved in light assembly. Furthermore, he was not provided with any skills to do this job.

Policy 19-03-05 Work Transition Plans states the WSIB determines if a WT plan is required based on the following:

• Information about the worker including medical, functional and vocational
• Discussions between the WSIB and the workplace parties regarding SOs available with the injury employer
• Information received from the workplace parties or third party providers through assessment reports
• SO information relating to the local and broader labour market

Contrary to the worker’s representative’s assertion, a WSIB WT specialist met with the worker initially and conducted a WT assessment on February 24, 2016. The worker later underwent a psychovocational assessment (PVA) on March 22, 2016.

The assessor noted the worker was clinically capable of performing work at the sedentary level and because he had not worked for several months, it would be reasonable for him to start at four hours daily and gradually increase while he continued to undergo treatment until he achieved eight hours. The psychologist opined the worker should observe the following restrictions in any suitable occupation:

• Occasional lifting of 10 pounds from waist to shoulder height,
• No lifting from floor to waist,
• No lifting above shoulder height,
• Walking, standing, sitting and using stairs as tolerated
• Avoid using ladders
• No repetitive bending, twisting or low level work
• Avoid any sustained posturing of the lumbar spine in one position.

Based on the results of the assessments and the worker’s restrictions, the SO of light assembler NOC code 9498 was selected. It was determined this was a SO the worker could do without training. The worker did not provide any alternative SOs and the WT specialist documented that he expressed a high level of interest in this SO and agreed with it.

NOC 9498 – other assemblers and inspectors includes assemblers and inspectors who assemble and inspect a variety of products ranging from light to heavy. The worker was encouraged to expand his job search to include employment in the NOC code 9535 which includes assembling, finishing and inspecting plastic parts and finished products. The WT specialist counselled the worker to focus his job search activities bench assembly type positions and assembly and or inspection of lighter products such as jewelry and plastic parts.

Policy 19-02-01 Work Reintegration Principles, Concepts and Definitions states a suitable occupation represents a category of jobs suited to a worker’s transferrable skills that is safe, productive, consistent with the worker’s functional ability and that to the extent possible restores the worker’s pre-injury earnings. A suitable occupational must be available with the injury employer or in the labour market.

I acknowledge the worker’s testimony that he did not feel he was given the skills to do a job as a light assembler. I also note the file documentation that shows the worker did not appear to fully participate in the WT process. The purpose of the WT plan was not to provide the worker with the skills to do the job as a light assembler but rather to prepare him to be able to use all potential avenues to look for suitable work. The employment placement portion of the WT plan was to assist the worker in locating employment opportunities to provide him with some experience in the field. The file evidence shows the worker did not appear to follow up with any leads for potential employment placement so did not acquire any related job skills. Nonetheless, employers in the SO of light assembly typically provide on the job training so this would not preclude this SO. The worker is aware of his restrictions and was provided with some training on how to conduct an appropriate job search. I note the worker was also provided with a resume and a generic cover letter to assist in his job search activities. In my view, the worker was provided with the skills to obtain work in the SO.

I find the SO of light assembly is suitable for the worker. The worker would have to be always cognizant of his restrictions when looking for work in the SO and only seek employment that does not violate his restrictions.

The worker’s representative contends the SO of light assembly is categorized as light-heavy and not suitable for a worker with a 24% NEL award for the low back. I agree there may some occupations that are heavy but the SO is quite varied and the worker would have to restrict his job search to occupations that are suitable for him. As previously discussed there are no restrictions to be observed for the psychotraumatic disability.

I find the SO of light assembler is suitable for the worker. There are jobs in this category that are safe, productive and consistent with the worker’s functional abilities. Entry level earnings for this SO is lower than the worker’s pre-injury earnings and the WSIB will compensate the worker for 85% of the difference in salary. There is no opportunity for work with the injury employer but the WT specialist conducted labour market research in the worker’s local labour market and determined the SO is available. She presented documentation in support of her findings so I have no reason to question that jobs in the SO of light assembler are available in the worker’s local labour market.

CONCLUSION

I conclude:

• The worker has no restrictions for the psychotraumatic disability
• The SO of light assembler is suitable
• The worker is partially impaired and his LOE benefits were appropriately adjusted on closure of the WT plan. However I find the worker is capable of working 4 hours daily or 20 hours weekly. These hours of work can be revisited at the time of the periodic benefit reviews and any required adjustments made accordingly.

The worker’s objection is granted in part

DATED May 23, 2018

D. Hart Appeals Resolution Officer Appeals Services Division