WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180032
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer
HEARING: April 9, 2018, Toronto, Ontario
HEARD by: S. Marangoni, Appeals Resolution Officer
DATED: April 9, 2018
ISSUES
The worker objects to:
The denial of entitlement for the left hip and associated lost time for the left hip surgery from August 30, 2013 to March, 2014 - decision dated October 7, 2015;
The denial of entitlement to Loss of Earnings (LOE) benefits from April 14, 2015 to age 65 – decision dated November 16, 2015.
BACKGROUND
The WSIAT decision of October 1, 2014 provides a history of this case which will not be repeated here. As a result of the decision, the worker was granted entitlement for right hip osteoarthritis and the low back. The worker was subsequently awarded a 10% Non-Economic Loss (NEL) award of 10% for the low back and 8% for the right hip.
The worker’s representative then submitted a letter requesting entitlement for the left hip and associated benefits from August 30, 2013 to March, 2014, during which time the worker was recovering from a left hip total replacement. He also requested benefits from April 14, 2015 to age 65 as he claimed the worker was unable to continue working as a result of his compensable issues.
In a decision dated October 7, 2015, entitlement for the left hip (and associated benefits) were denied. In a subsequent decision of November 16, 2015, LOE benefits from April 14, 2015 were also denied. The adverse decisions were objected to and the file was referred to the Appeals Services Division for consideration.
AUTHORITY
11-01-01 – Adjudicative Process
15-05-01 - Resulting from Work-Related Disability
15-02-05 – Recurrences
18-03-02 – Payment and Reviewing LOE Benefits
ANALYSIS
Worker Testimony:
The worker provided testimony wherein he detailed his work history, educational history, job duties and details regarding the onset of his left hip issues. He also provided testimony detailing his reasons for leaving work in April, 2015.
Closing Statement:
In closing, the worker’s representative noted the February 10, 2009 report from OHCOW diagnosed the worker with left hip osteoarthritis with decreased range of movement and painful movement consistent with osteoarthritis, which was first evident in 2006. The report addressed the relationship between the right and left hip osteoarthritis and the worker’s job duties and noted they concluded there is a causal relationship between heavy work activity and osteoarthritis, and not necessarily repetitive movements. While the use of the pedal may have contributed to osteoarthritis in the right hip, he maintains the heavy work over four decades led to the osteoarthritis in the left hip. The report noted the worker did not fit the clinical picture for developing osteoarthritis. The worker’s symptoms progressed and Dr. Gross noted the worker had severe osteoarthritis in the left hip in the November 9, 2011 report, which was later by his family doctor, who also supported a relationship to the worker’s job, for which the worker underwent a hip replacement on August 30, 2013.
He maintained that it is clear, based on this OHCOW report the worker’s job duties were a significant contributing factor leading to the development of the left hip osteoarthritis. The standard is whether or not the work duties made a difference in the development of osteoarthritis and he argues the OHCOW report makes this clear any claim that this worker would have developed osteoarthritis in any case cannot be made.
With respect to LOE earnings, I advised that after hearing the testimony, I would be accepting this portion of the appeal without further review and no closing statement was made on this issue.
Decision:
I have considered all of the relevant information and I will deal with each issue individually below.
Entitlement for the Left Hip and LOE Benefits from August 30, 2013 to March, 2014:
I am confirming the denial of entitlement for the left hip and associated LOE benefits. The reasons are as follows:
Policy 11-01-01 allows for entitlement to be extended, in part, if there is medical compatibility between the work-related injury and the diagnosed condition;
Policy 15-05-01 stipulates that entitlement for a secondary condition is accepted when it is established that a causal link exists between it and the work-related injury;
The worker is claiming that the left hip issues are attributed to over-compensating because of the compensable right hip issues, as well as to the worker’s job duties;
With respect to the left hip being attributed to the job duties, the worker has been diagnosed with severe osteoarthritis of the left hip, which is a degenerative condition;
It is noted that at the time of the WSIAT hearing on September 29, 2014, the worker testified to the fact that the old pedal that had been used until 15 years prior, was 12” high and was more difficult to apply. The worker indicated that he only used his right foot for all the pedal work and the left would only be used sometimes for the smaller tasks. This testimony was provided under oath and I accept same
The worker also noted during the hearing today that the higher pedal was used for the first 10 to 15 years, following which the pedal was changed to one that was at floor level. He also testified to the fact that while the left foot would be used at times, the work was such that you would have to use the foot you were used to using in order to ensure the job was done correctly. The use of the pedal would, therefore, not have played a role in the development of the left hip osteoarthritis;
The worker’s representative has argued that the left hip osteoarthritis is attributed to heavy work over the course of the worker’s career. While I note that heavy weights were involved, the weights varied and there were cranes to help with the heavier dies. The weights were also not lifted on a consistent basis and the worker would have to lift heavy dies depending on the number of jobs on any given day. These could range from 3 to 10 per day. Given the job duties performed, although the OHCOW report findings are noted, I am not convinced that the worker’s job duties were a significant contributing factor in either developing or aggravating the left hip issues. As I find there is no compatibility between the work-related injury and the left hip osteoarthritis or between the worker’s job duties and the left hip osteoarthritis, I am unable to grant initial entitlement for the left hip under policy 11-01-01;
As far as accepting entitlement for the left hip being attributed to over-compensating for the right hip, the worker had surgery to the right hip in June, 2006. When the worker was followed-up on July 19, 2006 by Dr. Gross, it was noted that he was doing well. The worker was noted to lurch to the right side, but there was no significant leg length discrepancy;
On August 30, 2006, the worker was still doing well. It was noted the worker had severe osteoarthritis of the left hip, which was not symptomatic so far. Any ‘lurching to the right’ had clearly not affected the left hip by this time;
On November 24, 2006, Dr. Gross noted the worker’s right hip was doing very well. The left hip was noted to have issues with respect to severe osteoarthritis;
By May 2, 2007, one year after the right total hip replacement, the worker had no complaints with respect to the right hip with good range of motion. There was no contracting, no leg length discrepancy and the worker’s gait was normal. Since the right hip was doing so well post-surgery, I do not accept that there was over-compensating because of the right hip issues. This was not commented upon in the medical reporting;
On November 9, 2011, Dr. Gross noted that the worker presented with symptoms in the left hip. The worker was ambulatory with no need for external walking aides. Physical examination revealed the right leg was longer than the left by about 1 cm but there was good range of movement in the right hip;
On December 19, 2013, Dr. Forman opined that the hip problems were related to the worker’s limp and/or change in gait after his hip replacement due to the work-injury;
The file was reviewed by a Physician Consultant on October 6, 2015 who noted the opinion provided by Dr. Forman on December 19, 2013, but concluded that a WSIAT discussion paper by Dr. Harrington in 2005 noted that there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimetres. Given these findings, it was felt that the worker’s left hip problems were not attributed to over-compensating for the right hip issues;
In reviewing the claim file documentation, I accept the opinion of the Physician Consultant, especially noting that there was no leg length discrepancy reported until 2011 and even at that time, it was only 1 centimetre. The worker had a good result with the right hip surgery with no complaints by May, 2007. As already noted, the worker has severe osteoarthritis of the left hip, which I find was the significant contributing factor leading to the left hip issues and subsequent surgery, which I am satisfied would have occurred, regardless of the right hip issues;
As I am not satisfied the worker’s left hip problems are attributed to the compensable right hip issues, entitlement cannot be extended under policy 15-05-01;
As the lost time from August 30, 2013 to March, 2014 was attributed to the non-compensable left hip surgery and recovery from same, there is no entitlement to LOE benefits for this time period, either.
LOE Benefits April 14, 2015 to Age 65:
I am granting the worker’s request to LOE benefits from April 14, 2015 to age 65. The reasons are as follows:
Policy 18-03-02 allows for the payment of LOE benefits if the loss in earnings is attributed to the work-related injury;
Policy 15-02-05 allows for the payment of LOE benefits is the worker’s lost time is attributed to the initial work-related injury. Medical documentation is reviewed in order to determine whether there is a significant and marked degree of deterioration in the impairment demonstrated by measurable changes in clinical findings. A change in the ability to perform work can be considered when determining whether or not there has been a marked degree of deterioration;
This worker has been involved in the same line of work all his life. Even after his right hip surgery and left hip surgery, the worker continued to perform the essential duties of his job;
The worker finally laid off work on April 14, 2015 and claimed entitlement to LOE benefits as he indicated that he was unable to continue after this point. It should be noted that the worker retired as of April 14, 2015;
The operating area denied benefits as they concluded the worker chose to retire, but that the job he was performing at the time of his retirement continued to be within his capabilities. It was, therefore, determined that his LOE was as a result of the worker’s decision to retire and not as a result of his work-related injuries;
In reviewing the facts of the case, however, I do not agree. As already indicated, the worker continued to perform the essential duties of his pre-injury job as long as he was able. It is clear he was a hard-working individual who worked to the best of his ability as long as he was capable of doing so;
At the time of the WSIAT hearing on September 29, 2014, the worker testified to the fact that after he returned to work from his left hip surgery, he still stood all day long, lifted dies weighing between 50 to 100 pounds and changed dies eight to ten times per day;
The operating area concluded that the worker’s job at the time of his layoff in April, 2015 was within his restrictions as the worker was capable of sitting to rest and was able to obtain help from co-workers with respect to the heavy lifting. The worker did indicate he did get help on occasion, but there was no indication that he was able to rest. At the hearing, he testified to the fact that his duties consisted of the same duties he had always been performing, which included lifting the heavy dies, pushing the pedal and standing all day. While he was able to rest 2 to 3 minutes after the completion of the job, he was required to stand for most of his day;
He also noted that he was able to tolerate this work, however, over the years, his back pain progressed to the point where he was unable to continue;
When the worker was seen at the Specialty Clinic on April 13, 2015, they corroborate the fact that the worker had continued in his regular duties, but had to reduce to modified hours and over the last three weeks, he was only capable of working three days per week due to low back pain. The worker reported that he was going to retire as a result of ongoing low back pain and his employer’s inability to provide accommodated duties. They provided restrictions on lifting up to 35 pounds, maximum, occasional exerting up to 35 pounds of force or frequently exerting 15 pounds of force to lift, carry, push, pull or move objects. The worker was also restricted from constant lifting or carrying seven pounds and constant pushing or pulling greater than seven pounds of force. The job duties the worker performed up until the time of his retirement on April 14, 2015 would not fall within these restrictions;
While the worker advised the Case Manager in conversations of April 22, 2015 and November 12, 2015 that he was not interested in return to work and was going to retire, it is clear that he was unable to continue to work, in large part, as a result of his ongoing compensable low back issues;
The medical reporting confirms that the low back condition was deteriorating. On December 14, 2004, Dr. Corless saw the worker for back pain and right sciatica, but he continued to have good range of motion;
On September 12, 2006, Dr. Bandali reported that the worker had ongoing low back pain, with several episodes of back pain every few months;
The clinical reports confirm off and on low back pain between 2004 and a clinical note entry of December 19, 2013 confirms chronic back pain. However, there was no indication of issues with respect to range of motion;
By the time the worker was assessed at the Specialty Clinic on April 13, 2015, however, it was clear that the back issues had progressed. There was tenderness and reduced range of motion was evident in all areas. There had been a marked deterioration in his condition that would certainly have impacted upon his ability to be able to perform his work as of April 14, 2015, in accordance with policy 15-02-05;
Although the worker chose to retire as of April 14, 2015, it is clear that the reason he retired was because he was unable to continue in his duties as a result of his ongoing low back issues. The worker testified to the fact that had he not had his low back issues, he testified that he would have continued working until age 65 and that other than the accommodation made that would allow him to sit for 2 to 3 minutes following each job, there were really no other accommodates duties that would have fallen within his restrictions. I accept the worker’s testimony in this regard;
Given this evidence, I am satisfied that this worker’s LOE as of April 14, 2015 was clearly and directly attributed to his work-related injuries. He is, therefore, entitled to LOE benefits given the stipulations outlined in policy 18-03-02;
With respect to whether or not full benefits are in order, policy 18-03-02 allows for the payment of full LOE benefits if a worker is unable to return to any type of work. If a worker is deemed partially impaired, then full LOE benefits can continue if a worker is involved in health care measures and all aspects of the work-reintegration process;
It is noted the worker was partially impaired by April 14, 2015, as noted by the findings on the Specialty Clinic report. The worker was provided with the opportunity to participate in Work Transition services, but opted not to. The question then becomes whether or not it would have been reasonable for this worker to be involved in other return to work efforts following his retirement on April 14, 2015 up until the time he reached 65;
The worker testified to the fact that his education consisted of some high school. He never obtained his high school diploma and received no secondary school education. He worked in the same industry his whole life and has no other transferable skills. The worker was able to continue working at a physical job, however, was no longer capable of doing so and his employer was unable to provide him with accommodated work. He was also 63 years of age as of April 14, 2015, with other issues, both compensable and non-compensable, which would have made entering a new field of work highly unlikely, at most. This worker testified that he has no computer skills. Given these facts, I find the worker was, for all intents and purposes, competitively unemployable at the time his layoff on April 14, 2015. I find the worker would have been unable to return to any type of work as a result of his work-related injury. As per policy 18-03-02, he is, therefore entitled to full LOE benefits from April 14, 2015 up until age 65.
CONCLUSION
I am:
Confirming the denial of entitlement for the left hip and associated LOE benefits from August 30, 2013 to March, 2014;
Granting the worker’s request for full LOE benefits from April 14, 2015 to age 65.
The objection is granted in part.
DATED April 9, 2018
S. Marangoni
Appeals Resolution Officer
Appeals Services Division