Worker v. Employer, 2019 CanLII 103808

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190076

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer (Not Participating)

HEARING: Oral Hearing on April 15, 2019

HEARD by: S. Johnson, Appeals Resolution Officer

ADDITIONAL ATTENDEES: Worker’s friend

DATED: May 2, 2019

ISSUES

The worker objects to:

1. The Case Manager’s (CM) decision letter dated October 13, 2009 and reconsideration decision letter dated August 15, 2016 that concluded the worker is partially disabled and fit to participate in the Board-approved Labour Market Re-Entry (LMR) plan for the suitable employment or business (SEB) of Retail Sales Clerk (NOC 6421)

2. The CM’s decision letter dated October 13, 2009 and reconsideration decision letter dated August 15, 2016 that concluded the SEB of Retail Sales Clerk (NOC 6421) is suitable for the worker’s work-related bilateral elbow injury.

3. The CM’s decision letter dated October 13, 2009 and reconsideration decision letter dated August 15, 2016 that adjusted the worker’s loss of earnings (LOE) benefits following the closure of her LMR plan based on her ability to earn $10.00 per hour for a 40 hour work week in the Board-approved SEB of Retail Sales Clerk (NOC 6421).

4. The CM’s decision letter dated November 3, 2009 and reconsideration decision letter dated August 15, 2016 that concluded the worker’s LOE benefits as of the final review date on November 1, 2009 was adjusted based on the updated frequently paid wages of $14.68 per hour for a 40 hour work week in the Board-approved SEB of Retail Sales Clerk (NOC 6421). This adjustment resulted in the elimination of any ongoing LOE benefit payments beyond November 1, 2009.

5. The CM’s decision letter dated June 25, 2018 that denied entitlement to Chronic Pain Disability (CPD).

BACKGROUND

On October 27, 2003 this production assistant was walking when her feet became caught in some plastic wrappings on a skid. In the course of this event, the worker began to fall forward. She put her arms in front of her to break the fall. The worker was taken to the emergency department of the Oakville-Trafalgar Memorial Hospital where she was diagnosed with a bilateral elbow radial head fracture. The worker’s arms were casted from the elbow down to the wrist region. The orthopaedic surgeon recommended the worker would be off from work for a period of 12 to 16 weeks.

The Operating Area allowed initial entitlement to LOE and health care benefits for the worker’s bilateral elbow radial head fracture.

During the period from April 17, 2004 to May 8, 2007 the worker attempted a return to work to modified duties on several occasions performing off line assembly work, printing pail labels and some training as a forklift truck driver. The worker was incapable of returning to her regular job duties as a production assistant due to repetitive reaching, fine motor hand use, forceful pushing, pulling, heavy lifting and carrying requirements.

On May 8, 2007 the employer was unable to provide the worker with modified work duties. In January 2008 the worker was referred for LMR Services to assist in a return to work in the labour market. The LMR plan for the SEB of Receptionist/Switchboard Operator (NOC 141) was originally approved. The dynamics of the LMR plan included the following:

• Academic Upgrading and Computer Training at Summit Learning Centres from March 3, 2008 to May 29, 2009.
• Business Receptionist Program at Summit Learning Centres from June 1, 2009 to December 11, 2009.
• Job Search Training Program (JSTP) at Crawford Health Care Management from December 14, 2009 to January 15, 2010.

On May 22, 2008 an 11 per cent Non-Economic Loss (NEL) benefit was granted that recognized the permanent impairment in the worker’s bilateral elbow region. The accepted diagnosis for NEL rating purposes was a bilateral lateral epicondylitis injury.

The case record documents this worker experienced a legacy of challenges with absences from her LMR training program to the extent she received verbal notice (Memo 98) regarding the impact on her LOE benefits and written notice of her co-operation obligations. By August 31, 2009 the LMR Service Provider reported the worker was behind and missing much of her program (Memo 124). The Operating Area switched the worker’s LMR plan to a direct-entry four week JSTP program in the SEB of Retail Sales Clerk (NOC 6421) (Memo 124).

In a decision letter dated October 13, 2009 and in a reconsideration decision letter dated August 15, 2016 the CM concluded the worker was partially disabled and fit to participate in the Board-approved LMR plan for the SEB of Retail Sales Clerk (NOC 6421).

In a decision letter dated October 13, 2009 and in a reconsideration decision letter dated August 15, 2016 the CM concluded the SEB of Retail Sales Clerk (NOC 6421) was suitable for the worker’s work-related bilateral elbow injury.

In a decision letter dated October 13, 2009 and in a reconsideration decision letter dated August 15, 2016 the CM adjusted the worker’s LOE benefits following the closure of her LMR plan based on her ability to earn $10.00 per hour for a 40 hour work week in the Board-approved SEB of Retail Sales Clerk (NOC 6421).

In a decision letter dated November 3, 2009 and in a reconsideration decision letter dated August 15, 2016 the CM concluded the worker’s LOE benefits as of the final review date on November 1, 2009 was adjusted based on the updated frequently paid wages of $14.68 per hour for a 40 hour work week in the Board-approved SEB of Retail Sales Clerk (NOC 6421). This adjustment resulted in the elimination of any ongoing LOE benefit payments beyond November 1, 2009.

In a decision letter dated June 25, 2018 the CM denied entitlement to Chronic Pain Disability (CPD).

These are the issues for determination.

AUTHORITY

WSIB Operational Policy Manual Document No:

11-02-02 Lost Time Claims (published November 3, 2008)

15-04-03 Chronic Pain Disability (published February 15, 2013)

18-03-02 Payment of LOE Benefits (published August 1, 2007)

18-03-03 Reviewing LOE Benefits (Prior to Final Review) (published July 3, 2007)

18-03-06 Final LOE Benefit Review (published July 3, 2007)

19-03-03 Determining Suitable and Available Employment or Business, and Earnings (published July 3, 2007)

ANALYSIS

I have carefully considered the claim file information, relevant policy, legislation, and testimony provided by the worker and her representative at the oral hearing on April 15, 2019 in reaching this decision.

1. Denial of Entitlement to CPD

I find entitlement to CPD is denied.

I had regard for the Operational Policy Manual (OPM) Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – that sets out the guidelines for a worker to qualify for CPD entitlement when it results from a work-related injury. This policy outlines the following conditions that must exist for a worker to qualify for entitlement to CPD:

• a work-related injury
• chronic pain is caused by the injury
• the pain persists for six months or more beyond the usual healing time of the injury
• the degree of pain is inconsistent with organic findings
• the chronic pain impairs earning capacity

Worker Representative Submission:

The worker representative submits this worker’s case fits squarely into all of the five threshold criteria in the OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – to favour entitlement to CPD. In support of this position, the worker representative highlighted the following:

• This worker was involved in an unusual work incident on October 27, 2003 that resulted in a bilateral elbow fracture injury.
• Prior to the work incident of October 27, 2003 this worker had no physical or psychological issues or problems.
• The worker’s pain patterns and experiences far exceed what is normally expected from this type of injury and has worsened over the years.
• The worker has been left with CPD since the work incident of October 27, 2003.
• All of the health professionals who treated the worker did not express a medical opinion to suggest the worker experienced an improvement in her bilateral elbow condition.
• The worker should have achieved a full and complete recovery from her bilateral elbow fracture injury.
• The physicians who treated the worker believe the worker’s pain is out of sync with her bilateral elbow fracture injury.
• Prior to the work incident of October 27, 2003 the worker maintained an active lifestyle.
• Since the work incident the worker has withdrawn from all social activities, she does not participate in sports or dancing, she is unable to grocery shop alone, she ingests pain medications on a regular basis, she has losses of relationships, her sleep is disturbed due to her bilateral elbow pain and she stays at home most days watching television.

Specific reference was made to the following relevant medical evidence that is consistent with the worker’s evidence regarding her ongoing chronic pain symptoms:

• In a medical report dated February 8, 2010 the physical and medicine rehabilitation specialist concluded the worker presents with chronic upper extremities myofascial pain, she reached maximum medical recovery and her function will be primarily determined by her level of pain rather than any specific physical limitations.
• In the clinic note dated July 13, 2011 the physician documented the worker was seen with chronic pain, incomplete control of pain with Oxycontin and poor sleep habits.
• In a medical report dated February 22, 2011 the specialist documented the worker was seen in initial consultation at the Burlington Pain Care Chronic Pain Management clinic for assessment of her bilateral elbow condition and pain symptoms.

The worker representative acknowledged there are medical reports missing in this worker’s case. Despite this matter it was put forth the worker went on to participate in extensive medical rehabilitation programs and ingested a gambit of medications with no significant improvement in her overall pain symptoms, experiences and functional abilities in both elbows.

The worker representative contends the non-work related motor vehicle incident on March 7, 2013 did not break the chain of causation. In support of this position, the worker representative relied upon a medical report dated August 26, 2013 that documented the worker was treated for injuries to the back and neck regions arising from the motor vehicle incident of March 7, 2013. The worker representative submits the medical evidence is consistent with the worker’s evidence. In her testimony the worker detailed with particularity the motor vehicle incident of March 7, 2013:

• She was driving a GMC Jimmy when she was T-boned by another driver who ran a stop sign.
• She sustained injuries to her back and hip regions.
• She described her arms hurt more than before the incident.
• She was taken by ambulance to the hospital from the accident scene and she stayed overnight for observation.
• The issue is still unresolved in terms of a settlement with no court date.
• She did not sustain any broken bones.
• There was no substantial impact on her arms and elbows.
• She attended a 10 week physiotherapy program for her back and hip injuries.

The essence of the worker representative’s position is this worker’s chronic pain was established well before 2010 and has continued to date. It was put forth the worker’s symptoms and pain experiences arising from her chronic pain disability can be reasonably placed in the 20 per cent to 25 per cent rating schedule which accurately and appropriately reflects the degree of her impairment and impact in all spheres (social, occupational and personal).

The central issue in this appeal is whether or not all five of the conditions in the OPM Document No. 14-05-03 – Chronic Pain Disability (published February 15, 2013) – are met and supported by the evidence.

Criterion 1: A work-related injury occurred:

I find a work-related injury occurred.

The OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – states the evidence must support a claim for compensation for an injury has been submitted and accepted.

There is no dispute that the first criterion in the OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – has been met as a claim for compensation for this worker’s bilateral elbow fracture and severe epicondylitis injury arising from the work incident of October 27, 2003 has been submitted and allowed by the Operating Area. There is no need to revisit previously resolved matters.

Criterion 2: The chronic pain is caused by the injury:

I find the worker’s chronic pain is caused by the injury.

The OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – sets out the evidence must demonstrate the following:

• subjective or objective medical or non-medical evidence of the worker’s continuous, consistent and genuine pain since the time of the injury, and
• a medical opinion that the characteristics of the worker’s pain (except its persistent and/or its severity) are compatible with the worker’s injury and are such that the physician concludes that the pain resulted from the injury.

The worker representative rebuts the Operating Area’s finding the worker’s pain levels have been continuous yet not consistent. In support of this position the worker representative relied upon the medical evidence. None of the several health professionals who treated this worker for her bilateral elbow injury expressed a medical opinion to suggest she experienced an overall improvement in her bilateral elbow condition since the work incident of October 27, 2003. The medical reports have consistently and clearly documented the worker’s ongoing complaints of pain and symptoms in her bilateral elbow region. I agree.

I am persuaded by the weight of the objective medical evidence that chronicles the worker’s ongoing complaints of bilateral elbow pain since the work incident of October 27, 2003. There is little medical evidence to suggest the worker’s pain was exaggerated or due to something other than the work incident of October 27, 2003. This is not the case. In reaching this finding I relied upon the orthopaedic surgeon’s discharge report dated May 23, 2008. In this report the orthopaedic surgeon concluded the worker has plateaued in terms of recovery from her work-related injury arising from the work incident of October 27, 2003. She has a partial recovery and she will require permanent restrictions for her bilateral elbow impairment. The orthopaedic surgeon did not express a medical opinion to suggest the worker’s chronic pain was attributable to other causes. This finding is consistent with the medical evidence submitted to the worker’s case approximately three years later. In a medical report dated February 22, 2011 the Medical Director of the Burlington Pain Care program documented the following:

She has had bilateral fractures of the radial head on October 27, 2003 after a fall. This is certainly going to be an etiological factor in her discomfort. The left elbow was casted for two and a half months and the right was casted for four and a half months. I assume these fractures were quite substantial as it is unusual to cast radial head fractures for such a prolonged period of time.

None of the reports suggested the worker’s ongoing symptoms were not due to her work-related bilateral elbow injury arising from the incident of October 27, 2003.

I am persuaded by the weight of the medical evidence that supports the worker’s chronic pain symptoms are caused by the work-related bilateral elbow fracture injury.

Criterion 3: The pain persists 6 or more months beyond the usual healing time of the injury

I find the worker’s bilateral elbow pain persists six or more months beyond the usual healing time of the injury.

This evidence is reflected in the medical information on record and is not contentious. In support of this finding I relied upon the CM’s decision letter dated June 25, 2018 that concluded the worker has met this criterion as her pain has extended six months beyond the expected recovery time of November 6, 2007 which is approximately four years after the work incident of October 27, 2003.

Since I have already found the second criterion has been met according to the OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – there is no need to revisit previously resolved matters regarding the worker’s continuous, consistent and genuine pain arising from the work incident of October 27, 2003 and resulting bilateral elbow injury.

Criterion 4: The degree of pain is inconsistent with organic findings

I find the degree of the worker’s pain is not inconsistent with the organic findings.

The worker representative submits the Operating Area has attempted to attach the worker’s pain to an organic condition and is uncertain as to how this is possible. It was put forth this worker sustained a bilateral elbow fracture injury that should have gone on to achieve full recovery. This did not happen. All of the health physicians who treated this worker believe her pain is out of sync with her bilateral elbow fracture injury. I am unable to agree with this position.

This worker suffered a bilateral elbow fracture injury that went on to fully heal yet left her with a residual bilateral lateral epicondylitis impairment. In support of this finding I relied upon the NEL Clinical Specialist’s NEL Rating for Wrist, Elbow and Shoulder report dated May 22, 2008 that concluded an 11 per cent NEL benefit was granted in recognition of a permanent bilateral elbow impairment. The accepted diagnosis for NEL rating purposes was a severe bilateral lateral epicondylitis condition.

I first considered the nature and the extent of the worker’s work-related bilateral lateral epicondylitis injury to properly consider whether her pain condition and experiences are inconsistent with the organic findings. It is significant that the nature of the organic injury itself must be considered to properly assess whether the worker’s pain is inconsistent with that injury. If the pain is predominantly attributable to an organic cause, then the worker will be granted entitlement for the organic injury. Alternatively, if the pain is predominantly from psychological sources, then the pain will be reviewed for consideration of entitlement under the CPD policy. In her testimony, the worker detailed with particularity her symptoms and pain experiences arising from her work-related bilateral lateral epicondylitis injury summarized below:

• She has constant pain and she ingests Advil, Extra-Strength Tylenol and muscle relaxant medications.
• It takes her a while to get dressed due to the pain in her arms.
• She usually watches television all day.
• She currently lives with her daughter and boyfriend in an apartment.
• She has difficulties carrying items.
• She wakes up due to the pain in her arms.
• She has never slept a full night since the work incident.
• Her pain levels get so severe at times she described her arms are paralyzed.
• She gets a maximum of three to four hours of sleep and then she wakes up due to the pain in her arms. She will take some pain medications and watch television if she cannot go back to sleep.
• She has Trazadone to help with her sleep yet described it helps sometimes yet not often.
• She cannot do grocery shopping.
• She feels she is worse than she was in 2017.
• She experiences an increase in pain when she uses her arms.
• The pain is like a stabbing, shooting severe feeling that can last for hours and happens quite often (four to five times each week she experiences this debilitating pain).
• She did see a psychologist in 2018 for eight sessions to help her psychologically.
• She has no social life and she does not participate in any social activities.
• She described herself as socially withdrawn.
• She is not interested in doing anything as she is in too much pain.
• She gets severe migraines now and has since the accident (two to four each week).
• She never had headaches before the accident.
• She tried Lyrica for her headaches yet this did not help.
• Before the work incident she used to play baseball, participate in a pool league and go out dancing with friends.

I accept this worker’s bilateral elbow condition has become chronic in the sense that her symptoms and pain experiences have persisted over an extended period of time despite medical treatment plans and interventions. It is entirely understandable the plausible explanation is the worker has chronic pain based on her attendance at a pain management program administered by a pain specialist.

I acknowledge the worker representative’s submissions on behalf of the worker that the chronicity of her pain symptoms and experiences combined with the lack of success she has experienced with medical treatment plans, are indicators that suggest her symptoms are not explained by the organic condition. I am unable to agree with this position. In my view, the chronicity of an injury and pain symptoms is not, in and of itself, sufficient to satisfy the fourth criterion in the OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013). Simply put, as long as the degree of pain is consistent with the work-related injury, a worker is appropriately compensated on the basis of an organic NEL benefit and not through entitlement to CPD. It is instructive that there is a subtle distinction between chronic and ongoing pain and chronic pain disability as defined in the Board’s policy on CPD. This distinction is set out in the fourth criterion that requires the degree of a worker’s pain is inconsistent with the organic findings as supported by medical evidence that confirms this inconsistency. I find this criterion has not been met.

In reaching this finding I accord significant weight to the medical evidence that supports the conclusion the predominant cause for the worker’s ongoing pain symptoms and experiences is organic in nature. I have taken particular note of the following:

• In a medical report dated September 13, 2007 the rheumatologist concluded the worker presents with a history of bilateral elbow pain in keeping with the diagnosis of medial and lateral epicondylitis. In this report Kenalog injections were recommended to assist with her pain symptoms.
• In a medical report dated May 23, 2008 the orthopaedic surgeon documented the worker has plateaued in terms of her recovery, she is going to have a partial recovery and she will need permanent restrictions. No further follow-up was recommended or required.
• In a medical report dated December 10, 2008 the rheumatologist concluded the worker “has evidence of soft tissue problems of the upper limbs consisting of bilateral lateral epicondylitis and left medial epicondylitis.” No further treatment was recommended other than an injection at the lateral epicondyle (left side).
• In a medical report dated June 5, 2009 the rheumatologist documented that, based on her clinical presentation, the worker has bilateral medial epicondylitis and recommended injections as well as possible alteration of pain medications to better manage her bilateral forearm spasms and pain from bilateral epicondylitis.
• In a medical report dated October 30, 2009 the specialist concluded the worker’s complaints are of musculoskeletal issues mostly related to bilateral and medial severe epicondylitis and no evidence of underlying nerve injury. The only potential treatment was a referral to a physiatrist for evaluation and management of her chronic pain symptoms arising from her bilateral and medial severe epicondylitis.
• In a medical report dated February 22, 2011 the medical director at the Burlington Pain Care management clinic concluded the diagnosis was bilateral chronic epicondylitis and a possible bilateral supraspinatus tendonitis, rule out tear. No interventional strategies were recommended or required other than a trial of Hydromorph Contin to assist with pain relief over a 24 hour period.

I find it significant as of May 23, 2008 the orthopaedic surgeon concluded the worker’s bilateral elbow condition had plateaued and a partial level of recovery was achieved with the requirement for permanent restrictions.

I had regard for the worker representative’s position that the worker’s pain levels are above the level expected for her bilateral elbow impairment. I do not agree. I prefer the weight of the medical evidence from the orthopaedic surgeon and two rheumatologists who all expressed medical opinions that concluded the worker’s symptoms and pain experiences are in keeping with the diagnosis of bilateral elbow epicondylitis. It is instructive that none of the health professionals expressed a medical opinion to suggest the worker’s reported level of pain was beyond that expected from her bilateral elbow condition. The worker’s pain level is not arising from an unknown aetiology which cannot be explained organically. Rather the medical evidence strongly suggests the genesis of the worker’s ongoing symptoms and pain experiences are due to the bilateral lateral epicondylitis condition.

I did not overlook the worker’s extensive testimony at this oral hearing that documented a legacy of challenges arising from her bilateral elbow pain symptoms and experiences. I accept this worker’s ongoing pain symptoms are explained on the basis of an organic injury to both elbows and it is expected her condition will persist given her level of partial recovery with the requirement for permanent restrictions since May 23, 2008.

I find the fourth criterion in the OPM Document No. 15-04-03 – Chronic Pain Disability (published February 15, 2013) – has not been met as the weight of the medical evidence does not provide a basis to conclude the degree of the worker’s bilateral elbow epicondylitis pain, while characterized as intractable pain in both arms, is inconsistent with the organic findings. Accordingly, there is no need to consider the remaining CPD criterion as the worker’s appeal for CPD entitlement cannot succeed.

I conclude entitlement to CPD is denied.

2. Level of Impairment

I find the worker was partially disabled with respect to her work-related bilateral elbow epicondylitis impairment.

I had regard for the OPM Document No. 18-03-02 – Payment of LOE Benefits (published August 1, 2007) – that sets out the threshold criteria for the payment of full LOE benefits. This policy states if the nature or seriousness of the injury completely prevents the worker from returning to any type of work, the worker is entitled to full LOE benefits, providing that the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.

I considered the OPM Document No. 11-02-02 – Lost Time Claims (published November 3, 2008) – that states while the worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits. The clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.

This policy goes on to state decision-makers monitor the claim through the use of progress reports, which are reviewed as often as the severity of the injury dictates to ensure the worker is recovering as expected. Decision-makers determine, through the review of clinical information, when a worker is fit to go back to his/her pre-injury work or suitable and available work.

The essence of the worker representative’s position is that this worker is totally disabled due to her CPD condition and she is unable to return to any type of employment since her LMR plan was closed by the Operating Area in 2009. In support of this position, the worker representative relied upon the worker’s evidence presented at this oral hearing and documented on pages seven and eight of this decision. Specific reference was made to the worker’s letters submitted to the case record regarding her inability to return to any type of work due to her work-related bilateral elbow condition summarized below:

• In a letter dated January 15, 2010 the worker documented she has been medically authorized to remain off from work due to her right and left arm injury. She experiences daily pain, she has trouble moving her arms and she is suffering from depression that is affecting her concentration. The worker documented she does not feel capable of returning back to work.
• In a letter dated August 5, 2011 the worker documented she is still permanently unable to return to work due to her bilateral arm injury. She described she is unable to grasp, lift or carry anything with her hands and arms, she has severe chronic pain, numbness and tingling in both arms and hands. The spasms cause her to experience migraine headaches and shortness of breath that has required emergency hospital treatment.

Fundamentally, the issue before me is whether or not the medical reports completed by the health professionals support the worker is prevented from returning to any type of work due to her work-related bilateral elbow epicondylitis impairment.

I find the criteria in the OPM Document No. 18-03-02 – Payment of LOE Benefits (published August 1, 2007) – and the criteria in the OPM Document No. 11-02-02 – Lost Time Claims (published November 3, 2008) – have not been met as the weight of the medical evidence does not suggest the nature and seriousness of the worker’s bilateral elbow impairment completely prevented her from returning to any kind of work. In support of this finding relied upon the following medical evidence:

• In the Psycho-Vocational Assessment (PVA) report dated January 25, 2008 the psychologist did not express a medical opinion to suggest the worker was not a candidate for a return to the labour market. In this report the psychologist concluded the worker will require special needs assistance for note-taking or written work if in a retraining environment and she may also require a work environment with a broad range of positive ergonomic features to accommodate her bilateral elbow condition. Several on-the-job training occupations were recommended as well as occupations with necessary upgrading and retraining to align with the functional restrictions for the worker’s bilateral elbow impairment.
• In the Shoulder and Elbow Specialty Clinic Discharge Report dated May 23, 2008 the orthopaedic surgeon concluded the worker has plateaued in her recovery from her bilateral elbow impairment and she is going to have a partial recovery with permanent restrictions. No further active medical treatment plans were recommended or required other than continue to perform exercises she can manage comfortably and pursue the pain management end of her problem. No follow-up appointment was made.
• In the EMG report dated January 15, 2009, a comparison to previous investigations done in 2007 was completed and testing observed no significant deterioration. In fact, the ulnar sensory amplitude at the fourth digit of the left was somewhat improved since the last time investigations were done in 2007.
• In a medical report dated October 30, 2009 the specialist concluded the worker’s complaints are of musculoskeletal issues mostly related to bilateral and medial severe epicondylitis and there was no evidence of underlying nerve injury. In addition, the specialist observed the left ulnar ultrasound was normal as compared to the previous test in 2007.
• In the physician’s clinic chart notes for the continuity period from December 14, 2008 to July 26, 2012 the worker was seen in regular medical attention for renewal of medications.
• In a medical report from the Burlington Pain Care program dated February 22, 2011 the medical director concluded the worker’s findings on clinical evaluation were in keeping with bilateral chronic epicondylitis and treatment consisted of medication management for adequate pain control. No further interventional strategies were recommended or required.

I find the worker’s medical treatment that consisted of medications for pain control to manage her bilateral elbow epicondylitis symptoms does not constitute active health care treatment reasonably aimed at improving overall recovery outcomes. In her testimony the worker described she eventually eliminated the use of prescribed narcotic medications some time ago as her physician was concerned about the addictive nature of these medications. The worker currently uses Advil, Extra-Strength Tylenol and muscle relaxants to manage her symptoms arising from her work-related bilateral epicondylitis condition.

The worker’s evidence is consistent with the medical evidence. In reaching this finding I relied upon the physician’s clinic chart note dated May 10, 2012 that documented there was no reason why the Oxyneo is not working for pain given it is equivalent to the dose of Oxycontin the worker used. The physician concluded the only logical explanation is abuse and the worker was no longer renewed the medication after June 2012 and advised on alternative medications (NSAIDS) as well as seeking another provider if she was not happy with the treatment recommendation. The worker testified she was ingesting up to 10 Oxyneo a day. The medications continued with her new physician until approximately two years ago when she successfully weaned herself off from the Oxyneo.

There is no dispute that there is a complete absence of medical evidence from July 2012 to the date of this hearing with the exception of a medical report dated April 3, 2018 from the physician at the St. Joseph’s Healthcare Hamilton Clinic who treated the worker for a non-work related left elbow fracture injury sustained from a fall on March 7, 2018.

I am persuaded by the weight of the medical evidence that strongly suggest the policy requirements in the OPM Document No. 11-02-02 – Lost Time Claims (published November 3, 2008) – and the OPM Document No. 18-03-02 – Payment of LOE Benefits (published August 1, 2007) – have not been met to objectively support the worker was totally disabled and unfit to return to any type of work.

3. Suitability of SEB of Retail Sales Clerk (NOC 6421)

I find the SEB of a Retail Sales Clerk (NOC 6421) is suitable.

According to the OPM Document No. 19-03-03 – Determining Suitable and Available Employment or Business, and Earnings (published July 3, 2007) – a SEB represents a category of jobs suited to a worker’s transferable skills that are safe, within the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SEB must be achievable after LMR and available in the local labour market to the extent the worker has a reasonable prospect of actually acquiring the job.

The worker representative petitioned the worker is totally disabled and unfit to return to any type of employment in the labour market. I have already resolved the issue concerning the worker’s level of fitness.

I first considered the worker’s evidence regarding her vocational background. In the LMR Plan Proposal Summary Report dated February 19, 2008 the service provider documented the worker’s employment history and experience as follows:

• Prior to 1999 (dates uncertain) the worker was employed as a server at Tim Horton’s (minimum wage was reported to be $5.75 per hour) followed by operating washing and drying machines at a laundry facility (minimum wage at that time was $6.85 per hour).
• In late 1990 she was employed as a machine operator printing labels on balloons.
• From 1999 to 2003 she worked as a waitress in a tavern serving food, performing sales transactions and preparing food.
• In September 2003 (one month before the work incident on October 27, 2003) she was hired with the employer as a production assistant putting plastic handles on plastic pails.

The case record documents that, during the period from April 17, 2004 to May 8, 2007, the worker attempted a return to work to modified duties on several occasions with the employer performing off line assembly work, printing pail labels and some training as a forklift truck driver. The worker was incapable of returning to her regular job duties as a production assistant due to repetitive reaching, fine motor hand use, forceful pushing, pulling, heavy lifting and carrying requirements. Effective May 8, 2007 the worker stopped working as the employer was no longer able to provide her with suitable work to accommodate the functional restrictions for her work-related bilateral elbow impairment.

In her testimony the worker provided additional information regarding her vocational activities following the official closure of LMR Services on October 2, 2009 as follows:

• She attempted to work in a candy factory on two separate occasions for one month on each attempt. She was required to take the candy off the assembly line, pack the candy, place the candy on skids and lift boxes of chocolates weighing five to ten pounds. She was unable to remain at work as she had too much pain in her arms. She could not recall the exact time she was employed in this capacity.
• She delivered newspapers (daily) from about 2012 until her non-work related motor vehicle incident on March 7, 2013. She delivered newspapers for about one year. She drove her vehicle from house to house and she described it was hard on her arms to carry the newspapers.
• She attempted employment at Tim Horton’s for one and one half months working the night shift. She was performing all duties that included making coffee, serving coffee and cleaning. She was unable to continue due to the pain in her arms.
• She secured full-time employment at a car manufacturing plant for about three months as a trim press operator. She was lifting gates to trim excess aluminium off from the parts. The weight of the gates ranged from two pounds to 10 pounds (heaviest). She was hired full-time (40 hours per week). She stopped working due to the pain in her arms. She advised her employer her bilateral arm condition was due to a previous work incident. There was no claim filed and no light work available. She stated this was about six months ago when she last worked.

I considered the first element in determining a SEB in accordance with the OPM Document No. 19-03-03 – Determining Suitable and Available Employment or Business, and Earnings – (published July 3, 2007) – that states a SEB is within a worker’s functional abilities. I find the SEB of a Retail Sales Clerk (NOC 6421) is within the worker’s functional abilities for her work-related bilateral elbow injury.

In support of this finding I relied upon the OPM Document No. 19-03-03 – Determining Suitable and Available Employment or Business, and Earnings (published July 3, 2007) – that states the WSIB uses the National Occupational Classification (NOC) to help identify a SEB and earnings for a worker. The NOC is a comprehensive system that classifies and describes occupations in the Canadian labour market according to skill level as well as skill type. The decision-maker determines the worker’s SEB using the NOC system.

In my assessment of the valid reliable vocational evidence from the Canadian NOC Career Handbook, I observe the physical descriptors for the SEB of a Retail Sales Clerk (NOC 6421) include:

• Body Positions (2) – Standing and/or Walking – work activities primarily involve standing or walking. Examples include: cutting and styling hair, dispensing prescribed medications to customers, preparing and cooking meals and delivering mail.
• Limb Co-ordination (1) – Upper Limb Co-ordination – work activities involve co-ordination of upper limbs. Examples include: keyboarding, performing maintenance services such as oil changes, lubrications and tune-ups, operating video cameras and instructing students in sign language.
• Strength (2) Light – work activities involve handling loads of 5 kg but less than 10 kg. Examples include: repairing soles, heels and other parts of footwear, filing materials in drawers, cabinets and storage boxes, preparing and cooking meals and repairing paintings and artefacts.

I observe there is an expansive list of examples of job titles in the NOC Career Handbook for the unit group for the SEB of a Retail Sales Clerk (NOC 6421) that include, yet certainly not limited to: clothing salesperson, counter clerk (retail), retail sales associate/clerk, fruit clerk, sales order clerk/greeter, record store sales clerk, newsstand clerk etc.

I then reviewed the physical descriptors for the SEB of a Retail Sales Clerk (NOC 6421) in the context of the worker’s permanent functional restrictions for her work-related bilateral elbow impairment. The case record documents the worker’s permanent functional restrictions, included: no repetitive movement of the involved joint against resistance (pushing, pulling and lifting), avoid repetitive gripping, avoid prolonged flexed static positions and avoid any direct pressure on the medial side of the left elbow (Memo 85, Shoulder and Elbow Specialty Clinic Multidisciplinary Health Care Assessment Report dated December 10 2007 and Ergonomic report dated June 26, 2008).

I am persuaded by the evidence that the worker’s functional restrictions for her work-related bilateral elbow impairment are in direct alignment with the achievable SEB of a Retail Sales Clerk (NOC 6421). She would not be exposed to activities that exceeded her permanent functional restrictions. In reaching this finding I accord significant weight to the PVA report dated January 25, 2008. In this report the psychologist concluded the worker could consider direct placement or a period of on-the-job training in the NOC Minor Group 642 Retail Salespersons and Sales Clerks with potentially suitable unit groups NOC 6421 Retail Salesperson and Car Rental Agent. It was recommended that some occupations (not all) may require modifications and/or the incorporation of ergonomic features to accommodate the worker’s physical limitations.

The psychologist is a medical expert with specialized training in the identification of potentially suitable alternative occupations based on the worker’s personal vocational characteristics, previous work experience, education and current functional abilities. The opinions expressed in the PVA report are well-grounded and supported by a battery of psychometric testing administered to the worker at the time of the PVA assessment.

The medical evidence is consistent with the worker’s evidence. In her testimony the worker confirmed she was provided with all of the necessary assistive and learning devices to promote her success in her LMR plan. On direct questioning by the Appeals Resolution Officer (ARO), the worker confirmed she also had no issues regarding the training environment. Despite the vocational interventions that included an ergonomic evaluation and recommendations for assistive devices, the worker described she was in constant pain while she attended the training program. In my review of the vocational reporting documents I observe the worker’s deficits and barriers were adequately addressed by the service provider and the worker was provided with the necessary accommodations to remove any challenges she experienced while she participated in her Board-approved LMR plan.

I then considered the worker’s employment-related aptitudes, abilities, and interests in accordance with the OPM Document No. 19-03-03 – Determining Suitable and Available Employment or Business, and Earnings (published July 3, 2007). I find the worker had the functional abilities and aptitudes to pursue employment in the SEB of a Retail Sales Clerk (NOC 6421). In support of this finding I relied on the worker’s evidence. In her testimony, the worker described her past employment experience and education that is consistent with the case evidence. I am persuaded by the worker’s evidence that her previous history of work experience in the customer service industry (server, waitress and laundry mat attendant), combined with her work experience as a production associate, would make her an attractive candidate for potential employers in the SEB of a Retail Sales Clerk (NOC 6421). This is exactly what happened. In her evidence, the worker described she did make several attempts to independently secure alternative employment at Tim Horton’s, a newspaper courier/delivery person, candy packer and a press operator.

I accept change is often difficult and the worker expressed the view she did not feel she was able to return to any type of work due to her pain symptoms and experiences arising from her work-related bilateral elbow impairment. While I am empathetic to this view, I find the worker was provided with the opportunity to manage this change to promote a successful return to work outcome with the provision of LMR Services.

I am persuaded by the weight of the medical and vocational evidence that the worker could perform work in the SEB of a Retail Sales Clerk (NOC 6421). The psychologist determined these are the jobs that would be suitable for the worker on a direct-entry basis with some short-term on-the-job training.

The worker representative did not advance evidence to suggest that there were omissions or errors in the LMR plan for the SEB of a Retail Sales Clerk (NOC 6421).

I find the SEB of a Retail Sales Clerk (NOC 6421) is appropriate and in keeping with the worker’s academic aptitudes, background, work experience and functional restrictions for her work-related bilateral elbow impairment in accordance with the threshold criteria in the OPM Document No. 19-03-03 – Determining Suitable and Available Employment or Business, and Earnings (published July 3, 2007).

4. Adjustment of LOE Benefits Following Closure of LMR Services on October 2, 2009

I find the worker’s LOE benefits following the closure of LMR Services on October 2, 2009 are to be adjusted based on her ability to earn entry-level wages ($9.50 per hour) in the SEB of a Retail Sales Clerk (NOC 6421) on a full-time basis (40 hours per week).

The OPM Document No. 18-03-02 – Payment of LOE Benefits (published August 1, 2007) – states earnings may be determined when it is confirmed that a worker is not entitled to an LMR plan, or a worker completes an LMR plan. This policy goes on to state that, to determine earnings, the WSIB identifies a SEB for the worker using information gathered in an LMR assessment and the National Occupational Classification (NOC). The earnings for the identified SEB are determined using current wage and labour market information.

The OPM Document No. 18-03-03 – Reviewing LOE Benefits (Prior to Final Review) (published July 3, 2007) – states if a worker has a wage loss upon completion of a LMR plan, the LOE benefit is based on the most recent wage information for the SEB earnings identified in the LMR assessment, if the worker is not working or is working in the SEB but is under-employed.

I accord the greatest amount of weight to the vocational consultant’s Service Completion Report dated October 14, 2009 that documented the valid Human Resources Development Canada (HRDC) Labour Market Information Wage Guide entry-level wage for the SEB of a Retail Sales Clerk (NOC 6421) is $9.50 per hour across Ontario. Attached to this report was a copy of several job postings that documented an average starting wage of $9.50 per hour and many wages not reported (to be negotiated). It is instructive the two jobs listed at a starting wage of $10.00 per hour were for part-time work weeks (less than full-time) and the jobs listed at $9.50 per hour were at full-time work weeks (40 hours). In this report the vocational consultant documented that, while the employment prospects in this SEB were good, the National Job Futures lists the employment prospects as “limited” because the number of job openings is anticipated to match the number of those applying for positions. Attached to this report was a copy of the Ontario Job Futures information for the SEB of a Retail Sales Clerk (NOC 6421) that detailed with particularity the following:

• Work prospects are limited because employment grew at an average rate.
• The unemployment rate is 7%.
• Outlook for work prospects continues to be limited because the employment growth rate will likely be close to the average.
• The number of job seekers will likely exceed the number of job openings.
• Wages will be affected by background, the size of the company, benefits and the region (urban or rural).

At the time the LMR plan was officially completed on October 2, 2009 the worker was not working. I observe the worker had not worked for approximately two years from 2007 to 2009 and she had not worked in the retail service industry since 2003. In addition, despite the expansive list of jobs available in the minor group for the SEB of a Retail Sales Clerk (NOC 6421), the psychologist who completed the PVA testing recommended that some occupations (not all) may require modifications and/or the incorporation of ergonomic features to accommodate the worker’s physical limitations.

I find it significant the worker’s LMR plan was switched from the SEB of a Receptionist/Switchboard Operator (NOC 141) to the SEB of a Retail Sales Clerk (NOC 6421) as a last resort direct-entry option for the worker to complete before the final review of her LOE benefits scheduled on November 1, 2009. I am persuaded by this evidence the Operating Area, as well as the LMR Service provider, recognized the worker was only able to achieve wages without any type of formal retraining program. This is exactly what happened.

The worker representative did not advance information to suggest the wage data at the time the worker’s LMR plan was officially completed on October 2, 2009 was in any way erroneous or unreliable.

I find the worker’s LOE benefits as of the official closure of LMR Services on October 2, 2009 are to be adjusted to reflect her ability to earn the determined entry-level Ontario minimum wage of $9.50 per hour in the SEB of a Retail Sales Clerk (NOC 6421) on a full-time basis (40 hours per week). This finding is consistent with the OPM Document No. 18-03-02 – Payment of LOE Benefits (published August 1, 2007) – that states earnings may be determined when a worker completes an LMR plan.

5. Adjustment of LOE Benefits as of Final Review Date on November 1, 2009

I find the worker’s LOE benefits as of the final review date on November 1, 2009 are to be based on her ability to command updated entry-level wages ($9.50 per hour) in the SEB of a Retail Sales Clerk (NOC 6421) on a full-time basis (40 hours per week).

The OPM Document No. 18-03-06 – Final LOE Benefit Review (published July 3, 2007) – sets out the criteria when the final LOE benefit review occurs before the worker is able to find a job. This policy states the SEB-identified earnings for the purposes of locking in the LOE benefit until age 65 are based on the available wage information as of the LMR completion date. When the final review occurs before the worker is able to find a job, if the WSIB originally used entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the LOE benefit.

I am of the view the worker’s LOE benefits should not have been based on the wage information an experienced worker would earn in the identified SEB of a Retail Sales Clerk (NOC 6421). This worker completed her LMR plan approximately one month before the final review date on November 1, 2009. I find the timing between the closure of LMR Services on October 2, 2009 and the final LOE benefit review on November 1, 2009 to be unreasonable to expect the worker to secure employment in her trained Board-approved SEB of a Retail Sales Clerk (NOC 6421).

The result of the determination made by the Operating Area to adjust the worker’s LOE benefits at a higher wage eliminated a wage loss effective November 1, 2009 to the age of 65. This is a substantial consequence experienced by the worker. Simply put, this worker experienced a change in her LMR plan to the SEB of a Retail Sales Clerk (NOC 6421) on September 2, 2009, her LMR plan was officially closed on October 2, 2009 and her final LOE benefit review completed on November 1, 2009.

The issue before me is how to properly and fairly apply the determined SEB wage provisions detailed in the OPM Document No. 18-03-06 – Final LOE Benefit Review (published July 3, 2007) – when this worker completed her LMR plan on October 2, 2009. She did not have the opportunity to secure employment working in the Board-approved SEB when the final LOE benefit review was completed approximately one month later on November 1, 2009. I am persuaded by this evidence it would be incongruous to deem the worker to be able to earn the wages of a fully experienced worker as of November 1, 2009.

In reaching this finding I had regard for the process of deeming the worker’s earnings at the final LOE benefit review based on a fully experienced worker in the context of the worker’s personal and vocational characteristics. I considered what this particular worker, given her personal and vocational characteristics, could reasonably earn in the SEB of a Retail Sales Clerk (NOC 6421) if she was fully experienced. In my review of this issue I have taken particular note of the following facts:

• The date of the work incident is October 27, 2003.
• The worker returned to work with the employer to suitable modified work duties during the period from April 14, 2004 to May 8, 2007.
• The employer was no longer able to provide the worker with permanent suitable work duties to accommodate the functional restrictions for her work-related bilateral elbow epicondylitis impairment.
• The worker was originally sponsored in the LMR plan for the SEB of a Receptionist/Switchboard Operator (NOC 141).
• On September 2, 2009 the worker’s SEB was amended to a direct-entry SEB of Retail Sales Clerk (NOC 6421) as she would not be able to complete the program within the original projected time period.
• The worker did not have a high school diploma and the new SEB was not designed to provide her with one.
• The worker has not worked in the retail sales industry for six years since 2003.
• Her past employment experience in the retail sales industry dating back to 2003 was at the Ontario minimum wage entry-level earnings capacity.

Given the above personal and vocational circumstances of this worker, I am of the view that the worker’s final LOE benefit should be based on updated entry-level wages for the SEB of a Retail Sales Clerk (NOC 6421) reported to be the Ontario minimum wage of $9.50 per hour. It is unlikely this worker would have found employment in the SEB of a Retail Sales Clerk (NOC 6421) at wages greater than entry-level ($9.50 per hour) at the time of her final LOE benefit review on November 1, 2009. I also find the worker’s personal and vocational characteristics, combined with the limited prospects for employment in the SEB of a Retail Sales Clerk (NOC 6421), lead me to conclude an experienced worker with these personal and vocational circumstances would only be able to earn entry-level wages. This finding is consistent with the OPM Document No. 18-03-06 – Final LOE Benefit Review (published July 3, 2007) – that sets out in some cases the wages of an experienced worker may be at or close to the maximum earnings identified in the wage information, and in other cases, it may not.

I had the benefit of this worker’s evidence presented at this oral hearing. I find this worker falls into the category of workers who, although may be experienced, earn less than the average or median wage because of their particular circumstances. Therefore, I do not find the projected average or median wages of a fully experienced worker in the SEB of a Retail Sales Clerk (NOC 6421) accurately reflect the earnings this worker could achieve as of the final LOE benefit review date on November 1, 2009. At best, this worker can be expected to earn incrementally higher wages associated with the legislated raises in the Ontario Minimum Wage.

This worker had approximately four weeks from the closure of her LMR plan on October 2, 2009 to the date of her final LOE benefit review on November 1, 2009 to secure employment in the SEB of a Retail Sales Clerk (NOC 6421). This limited time provided the worker with little chance to acquire the experience and skills necessary to obtain a job in the SEB of a Retail Sales Clerk (NOC 6421), especially in the median to upper wage ranges of this SEB.

In reaching this finding I relied upon the vocational consultant’s Service Completion Report dated October 14, 2009 that provided an expansive job search list of available employment opportunities in the worker’s local and surrounding labour market. In my review of this evidence I observe most of the jobs available in the SEB of a Retail Sales Clerk (NOC 6421) require completion of high school with a starting wage of $9.50 per hour. A large number of the jobs posted indicated “wages to be negotiated” and the jobs available at wages higher than $9.50 per hour require completion of high school, college or vocational/technical training.

I find the worker’s LOE benefits as of the final review date on November 1, 2009 are to be adjusted to reflect her ability to earn updated entry-level wages ($9.50 per hour) on a full-time basis (40 hours per week) in the SEB of a Retail Sales Clerk (NOC 6421).

CONCLUSION

I conclude:

1. Entitlement to CPD is denied.
2. The worker is partially disabled with respect to her work-related bilateral elbow epicondylitis impairment and fit to return to suitable work.
3. The SEB of a Retail Sales Clerk (NOC 6421) is suitable.
4. The worker’s LOE benefits are to be adjusted as of the official closure of LMR Services on October 2, 2009 to reflect her ability to earn entry-level wages ($9.50 per hour) on a full-time basis (40 hours per week) in the SEB of a Retail Sales Clerk (NOC 6421).
5. The worker’s LOE benefits are to be adjusted as of the final review date on November 1, 2009 to reflect her ability to earn updated entry-level wages ($9.50 per hour) on a full-time basis (40 hours per week) in the SEB of a Retail Sales Clerk (NOC 6421).

The worker’s objection is allowed, in part.

DATED: May 2, 2019

S. Johnson

Appeals Resolution Officer

Appeals Services Division