Worker v. Employer, 2021 CanLII 76570

DECISION NUMBER: 20210011

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer

HEARING LOCATION: Videoconference

HEARING DATE: May 4, 2021

HEARD BY: D. Gowanlock - Appeals Resolution Officer

DATED: May 20, 2021

ISSUES

The worker is objecting to:

The Case Manager decision dated August 1, 2019 confirming the worker’s ability to work in the Suitable Occupation (SO) of Cashier as of May 15, 2015.
The Case Manager decision dated November 16, 2020 denying secondary entitlement to liver disease (cirrhosis).

BACKGROUND

According to the Employer’s Report of Injury – Form 7 the worker was hired by the employer as a Backhoe Labourer Operator. In early November 2014 the worker was using a wrench and experienced pain in the right shoulder. The worker reported the shoulder injury a few days later.

According to documentation on the case record, on the date of accident the worker was changing a tooth on a bucket. While performing this task and using a wrench to tighten a nut, the worker experienced right shoulder symptoms. Initial entitlement was accepted for a right shoulder strain injury. The worker attempted to return to work on November 10, 2014 however left work early on November 12, 2014 due to difficulties with turning his head and pulling himself in and out of the backhoe. At this time a cervical strain was diagnosed and entitlement was accepted for a neck injury.

In January of 2015, the worker was considered fit to return to pre injury duties and further entitlement to a loss of earnings benefit was denied and communicated in writing on January 9, 2015. The worker objected to this decision and the Appeals Resolution Officer (ARO) decision dated August 18, 2015 confirms the denial of a loss of earnings benefits after January 8, 2015 and the denial of ongoing entitlement for a neck injury.

The worker objected to the ARO decision and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated December 14, 2017 grants ongoing entitlement for a neck injury and confirms the worker’s entitlement to a loss of earnings benefit from January 8, 2015 until May 15 2015 at which time the worker return to modified duties with the employer. The adjudication of any further entitlement to a loss of earnings benefit after May 15, 2015 was remitted to the Board for further determination.

In a letter dated May 31, 2018, the worker was advised of on-going entitlement for a disc herniation injury of the neck. The neck injury was considered to achieved maximum medical recovery as of February of 2015. A permanent impairment was evident for the neck and the case was referred to the Non-Economic Loss (NEL) department. The worker was also considered able to return to work as a heavy equipment operator and therefore, the worker did not qualify for Return to Work services.

The worker objected to the May 31, 2018 decision and the ARO decision dated August 18, 2015 found that the worker did not have the functional abilities to perform the pre-injury duties of heavy equipment operator. The worker was granted entitlement to return to work services in order to determine a Suitable Occupation (S0) without training and potential retroactive entitlement to a loss of earnings benefit beyond May 15, 2015.

In March of 2019, the worker was awarded a 6% NEL benefit for the neck.

Subsequent to the ARO decision, a Return-to-Work Specialist (RTWS) conducted a consultation with a worker in order to determine a suitable occupation. On August 1, 2019 the Case Manager wrote to the worker confirming that the SO of Cashier was considered to be a suitable direct entry occupation. It was anticipated that the worker could earn entry level wages of $11.40 per hour based on a 40 hour work week. The worker was paid a partial loss of earnings benefit from May 15 2015 until January 14, 2019 at which time a full loss of earnings benefit was implemented while the worker participated in work reintegration activities.

In January of 2020 the worker was granted entitlement to a psychological assessment and up to twelve sessions of treatment.

As a result of an assessment at the Mental Health Specialty Program in March of 2020, a non-occupational diagnoses of cirrhosis of the liver was noted. In response to the worker’s request for entitlement to liver disease, a review of the worker’s medical reporting was requested through the Occupational Health Assessment Program.

After medical review conducted on November 11, 2020, the Case Manager wrote to the worker on November 16, 2020 denying entitlement to liver disease/cirrhosis.

The worker objects to be August 1, 2019 and the November 16, 2020 decisions.

AUTHORITY

The following WSIB operational policies apply:

15-05-01 Secondary Conditions - Resulting from Work Related Disability/Impairment

19-03-03 Determining Suitable Occupation

ANALYSIS

In my review, I have had regard for the worker’s testimony, case file documentation, relevant policy, legislation and the submissions put forth by the worker representative and the employer representative with respect to the issues. I have considered all the evidence and the following is a summary of my decision.

Worker Testimony

The worker provided the following testimony:

As a young boy he worked alongside his father and worked with heavy equipment.
After high school, he was employed as a roofer for 10 years. He found roofing to be physically demanding and it was hard on his knees and back when and they were always sore. He decided to make a change and worked in home building when presented with the opportunity by a friend. He worked as a carpenter’s helper.
His back is good however his knees have always been an issue and he attributes this to playing ball. He has arthritis in his knees.
Gradually over time, he learned how to operate heavy equipment. He described this as “seat time”, or training-on-the-job.
Prior to his employment with the employer, he was employed as a heavy equipment operator and labourer. He predominately used backhoes and excavators however used many tools and did a lot of shoveling.
While employed with employer he was always working out of town. He did not drink during work hours however after work, usually in the hotel, he would consume 3 to 4 beers every evening.
After the injury, after his benefits were stopped, his drinking increased. He attributes the increase in drinking to having no money coming in, being depressed and everything “crashing down around” him. He had to declare bankruptcy.
He was in pain all the time and unable to put his socks or shirt on. He was unable to stretch out his left arm and his left arm was always tingling and painful. His gut was too big. He was unable to turn his head due to neck pain.
In the summer of 2016 his drinking increased. He was involved in a lot of social activity where friends would come around to help him around the house. During this time his drinking increased to about 12 beers per day, sometimes more.
After the work incident, he assisted his wife with her cleaning business. He would do vacuuming and sweeping. In order to perform these activities he took pain medication which helped. He only worked at this sporadically. Eventually he stopped because he was no longer able to do this type of work.
He also obtained a job cutting grass and this increased his medication use.
For a long period of time he was on Percocet. He believes the last time he took this medication was October of 2016. He tried many medications over the years, however most of them did not help with a pain.
In May of 2017 his physician switched his medication to Oxycodone. His physician told him that she was “killing him” by prescribing Percocet due to the acetaminophen found in this medication, very dangerous for his liver condition. The Oxycodone worked much better for him and this reduced his pain and improved his function. He does not take any medication for nerve pain.
In 2018 he was helping a neighbour with his roofing and while climbing up a ladder, he fell 10 feet fracturing his right ankle. Currently the ankle is okay and he has had no further difficulties.
In 2019 he was involved in a motor vehicle accident and dumped his car in the ditch due to snow and ice. He injured his ankle however has had no further difficulties.
He has not been drinking since the assessment with the Mental Health Specialty Program in March of 2020. His current medications includes Oxycodone, a water pill, and vitamin B. He still sees his psychologist Dr. Wands once a week. He finds their sessions helpful.
Currently he is unable to lift, he cannot move his left arm or turn his neck. He is “not good”. He can only drive for 30 minutes and then he gets sore from bouncing around. He will have to stop, stretch and relax.
He is currently in receipt of a benefit from Canada Pension Plan Disability. He is currently participating in return to work activities and taking a computer course that he enjoys. He confirmed that prior to this training, he was computer illiterate. Although he is learning new programs like Skype and Zoom, he often forgets how to use them. He is currently working on a resume however does not feel that he is able to return to the labour market.
He remains on the liver transplant list at this time.

Worker Representative Submission

According to the worker representative, the suitable occupation of Cashier is not suitable for several reasons. First, the worker is unable to use his left hand and he has no finger dexterity. Second, despite the findings of the Case Manager, Cashier type positions specifically in an around the worker’s community do not exist. Further, Cashier type positions such as gas station attendant or a clerk in a store would be expected to stock shelves which is not physically suitable for the worker. If the worker was able to sit permanently and received proper training, maybe he could perform this type of work. However, the worker was not provided with appropriate training for the suitable occupation of Cashier until the current return to work plan was put into place and the worker was provided with training to obtain new skills. The worker representative questions how the worker would be able to secure and maintain employment as a Cashier without the proper training.

In addition, the worker representative references the Mental Health Specialty Clinic report where, under page 18, the assessors note that the worker’s prognosis for return to work would in any capacity appears guarded considering:

The worker’s chronic pain and use of narcotic medication would likely continue to impact his functional ability to work productively even with improvements in his health/symptoms.
The worker’s difficulties with reading and writing and his lack of motivation to work in any profession other than construction or environmental services, which most worker roles require physical activity.

It is the position of the worker representative that the worker is unemployable. The worker has several barriers to a return to successful employment.

In terms of entitlement to liver disease, it is the position of the worker representative that although the June 2014 medical reporting from the hospital notes that while liver enzymes were elevated, there were no alarm bells going off in terms of the worker’s liver condition.

Two years post-accident, and the fact that the worker’s physician prescribed Percocet containing acetaminophen which was not good for the worker’s liver, in conjunction with an increase in alcohol, caused the worsening of the worker’s liver condition.

The January 9, 2020 medication review notes that the worker’s Oxycodone had doubled and the worker was now addicted to pain medication as a result of the increase in medication. As a result, the Board referred the worker to the Mental Health Specialty Clinic. According to the specialty clinic, the worker’s increase in alcohol and medication is directly related to the injury. Memorandum #A0079 dated February 4, 2020 documents a conversation with the specialty clinic team wherein the aggravation of the alcohol use disorder and the opiate use disorder are conditions that were considered to be secondary to the work injury as well as well as the worker’s difficulties adjusting post-injury to limitations and job loss.

Employer Submission

According to the employer, they are aware that the November 2014 injury did not allow the worker to return to work to construction. The employer defers the decisions to the Board to consider and had nothing further to add.

Issue 1: Suitable Occupation (SO) of Cashier

I find that the SO of Cashier is not suitable. I arrived at this decision based on the following:

Policy

Policy 19-03-03 Determining Suitable Occupation states in part that a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available with the injury employer or in the labour market.

In determining a SO, the WSIB works with the worker and employer and considers

a worker’s functional abilities
a worker’s employment-related aptitudes, abilities, and interests
what jobs are available with the injury employer through direct placement, accommodation, or retraining
labour market trends, and the likelihood of the worker being able to secure and maintain work within the occupation with another employer, and
in accordance with applicable human rights legislation, any pre-existing non-work-related condition(s) (e.g., including non-physical disabilities such as a learning disability) a worker may have, as well as any other human rights-related accommodation requirements.

Case Details

The ARO decision dated November 28, 2018 found that the worker did not have the functional abilities to perform his pre-accident duties of heavy equipment operator/labourer (NOC 7421) as of May 15, 2015. The operating area was instructed to request Return to Work (RTW) services in order to determine if a suitable occupation (SO) without training could be identified prior to reviewing potential retroactive entitlement to loss of earnings benefits beyond May 15, 2015.

On June 24, 2019, a Return to Work Specialist (RTWS) prepared a RTW Consultation Report. In order to determine a suitable occupation (SO) without training, the worker’s physical abilities were identified, in addition to his work experience, learning ability and other vocational considerations. Of the seven occupations identified, the RTWS determined that the positon of Cashier (NOC 6611) was suitable for the worker.

In the August 1, 2019 decision letter, the Case Manager referenced policy 19-03-03 Determining Suitable Occupation and the Work Transition Consultation. The SO of Cashier was considered to be suitable from a physical perspective and based on the worker’s employment history, education and aptitude score.

Findings

The worker representative argues that the worker was not provided with appropriate training for the suitable occupation of Cashier until the current return to work plan was put into place and the worker was provided with training to obtain new skills. The worker representative questions how the worker would be able to secure and maintain employment as a Cashier without the proper training.

I determining whether the SO of Cashier is suitable and can be used for the payment of retroactive loss of earnings benefits as of May of 2015, I considered the following:

According to the Return-to-Work Consultation Report dated June 24, 2019, the worker has only ever worked in jobs as a construction labourer or a heavy equipment operator. The worker does not possess any computer skills and uses his phone for texting and calling only. Despite an employment background solely based on heavy physical construction work with no customer service or previous cashier experience, the RTWS determined that the worker would be able to secure employment in the position of a Cashier from May of 2015 until present.
The Work Transition Initial Worker Interview conducted on September 20, 2019 confirms that the worker does not have any formal heavy equipment operator training. He is self-taught and was hired without certifications. There is a possible learning disability. While the worker owns a personal computer, it is 10 years old and the worker confirms that his internet browsing and email experience is at the beginner level.
The Psycho-Vocational Assessment report dated November 10, 2020 confirms that the worker does not possess a high school education. He has potential learning disabilities and a weakness in working memory and processing speed, in addition to the non-compensable deterioration of his overall health caused by liver disease. The assessors recommended that in order to pursue short-term training, the worker would require academic upgrading up to a grade 10 level, prior to a short-term vocational program.
The RTW Plan Summary dated January 4, 2021 notes that the physical demands of a Cashier position include sitting, standing, walking and light strength demands. As a result of the workplace injury, the worker was restricted in terms of heavy lifting, overhead activities and was able to work only in a light to medium PD level. The physical demands of the position of Cashier were considered to be within the workers identified functional abilities. According to Job Bank Canada, some secondary school education is required for this position. Some employers may require a high school diploma. The worker has over 25 years of work experience and is bondable and the proposed training for the position of Cashier would provide him with the skills to seek employment in this direct entry suitable occupation.
The Government of Canada National Occupational Classification for the position of Cashier indicates that the worker would be expected to greet customers, establish or identify the price of goods, services or admission and tabulate total payment required using electronic or other cash register, optical price scanner or other equipment. The worker would also be expected to receive and process payments by cash, cheque, credit card or automatic debit. The worker would be expected to provide information to customers, calculate foreign currency exchange, calculate total payments received at the end of a work shift and reconcile with total sales. The worker may also be expected to stock shelves in clean out checkout counter areas.

Policy 19-03-03 states that a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. In my view, the RTWS recommendation that the worker could return to work in the position of a Cashier as of May of 2015 is unreasonable. I arrived at this decision based on the fact the current RTW Plan Summary dated January 4, 2021 requires that the worker participate in six weeks of Computer Literacy, followed by three weeks of computer support concurrent with Job Search Training followed by twelve weeks of Employment Services in order to be provided with the necessary skills to obtain work in the SO of Cashier.

According to the Psycho-Vocational Assessment, the worker would require lengthy upgrading to obtain his GED to move foreword with a retraining program. According to the RTW Plan, at a minimum, the worker would require 21 weeks of upgrading in order to pursue and possibly secure employment as a Cashier. To suggest that the worker had the skills in May of 2015 to pursue employment as a Cashier when the worker is currently enrolled in a RTW plan to obtain the required new skills, for the same SO, does not make any sense. To suggest that the worker had the necessary academic skills to obtain employment as a Cashier in May of 2015, is, as previously stated, unreasonable.

The worker’s functional abilities include no heavy lifting, no overhead activities and the ability to work only in a light to medium PD level. Given the fact that the worker could possibly be required to stock shelves and perform maintenance on a property while employed as a Cashier, supports that this SO is not suitable.

As a result of my analysis, I find that the SO of Cashier is not suitable for the payment of retroactive loss of earnings benefits as of May 15, 2015.

The Return-to-Work Consultation Report dated June 24, 2019 confirms that the worker assisted his wife with her cleaning business and he cleaned houses. The worker provided testimony confirming that he worked as a cleaner after his work injury. In reviewing the worker’s income tax information for the years 2015, 2016, 2017 and 2018, the worker reported income based on Industry Code 561722 – Janitorial. In my view, it is reasonable to conclude that the worker was able to work in the SO of Light Duty Cleaner – NOC 6731 as of May 15, 2015 until January 14, 2019.

Therefore, I find that occupation of Light Duty Cleaner was suitable for the worker as of May 2015. The calculation of the payment of a partial loss of earnings benefit from May of 2015 until January 14, 2019 is remitted back to the operating area to determine.

Issue 2: Secondary entitlement to liver disease (cirrhosis)

I find that criteria required allowing secondary entitlement to liver disease/cirrhosis has not been met. I arrived at this decision based on the following:

Policy

Policy 15-05-01 Secondary Conditions - Resulting from Work Related Disability/Impairment requires that for entitlement for any secondary condition to be accepted, there must be a causal link established between the secondary condition and the work-related injury.

Case Details and Findings

The worker representative argues that two years post-accident, and the fact that the worker’s physician prescribed Percocet containing acetaminophen which was not good for the worker’s liver, in conjunction with an increase in alcohol, caused the worsening of the worker’s liver condition. According to Homewood, the worker’s increases use of alcohol and medication is directly related to the injury.

In determining whether the diagnosed liver disease/cirrhosis is related to or caused by the neck injury in this case, I found the following medical documentation on the case record to be relevant to the issue:

The date of incident in this case is November 2014. As early as January 2015, less than two months after the date of incident, blood work confirms macrocytosis and thrombocytopenia possibly due to alcohol abuse, Vitamin B12 deficiency or uncommonly folate deficiency.
Clinical notes from January 2014 through to early January 2016 document the worker’s complaints and symptoms related to bilateral ankle pain, smokers cough, hemoptysis, neck, left shoulder pain and lower back pain. The worker reported drinking 4-6 beers a day for the last 20 years.
The August 2016 clinical notes documents the worker’s drinking and ingesting 7 tabs of Percocet a day. The worker complained of bilateral ankle edema and stiffness, neck and left shoulder pain from working three jobs. The worker reported nocturnal pain, pain with turning his neck and squatting down caused pain in the knees and ankles.
Dr. Sandhu’s December 2016 report notes that the worker has thrombocytopenia due to alcoholic liver disease. The physician notes that the worker continued to experience chronic fatigue and pains involving different joints.
The Medical Report completed for Canada Pension Plan Disability Benefits dated January 2017 notes that that the family physician started treating the worker for the main medical condition of severe alcoholism with thrombocytopenia secondary to chronic alcoholic liver disease and portal hypertension since June of 2002.
The May 2017 clinical note documents the worker’s complaints of ankle, back and knee pain that does not allow him to walk more than 5 minutes. His left shoulder and neck were a problem.
The June 2017 clinical note documents the change in medication to OxyNeo. The worker was able to clean 2-3 houses per day, work at some side jobs, renovations on a mountain such as carpentry with a buddy helping with heavy lifting.
In July 2017 the worker was assessed by Dr. Hemphill who notes that the worker has been a longstanding drinker and has suspected liver disease for many years. He was seen by Dr. Kaal ten years ago or so and there was evidence of suspected low platelets and cirrhosis with portal hypertension. Dr. Hemphill confirmed cirrhosis from alcohol with portal hypertension. There is no reference to a work-related injury or medication complicating the liver disease.
The August 2017 clinical note documents right knee pain after renovating a neighbour’s home.
The October 2017 clinical note documents the worker missing a step and having a bad fall, falling back down the stairs. Ongoing right knee complaints are noted. The worker was advised by Dr. Hemphill that his continuing to drink was life threatening.
In September of 2018, the worker participated in a sleep study for possible sleep apnea.
The October 2018 clinical note documents no change in the worker’s alcohol intake. He continued to clean houses up to 4 hours a day.
The November 2018 clinical note documents that the worker fell off a roof one month prior while under the effects of alcohol, sustaining an ankle fracture.
In December of 2019 the worker representative requested that the worker be provided with entitlement to increased use and abuse of alcohol and the resulting liver disease.
In January of 2020, the WSIB Physician recommended that the worker be referred for a medication review at the WSIB Medication and Substance Program.
In February 2020 the worker was assessed at the Mental Health Specialty Clinic. After completing a comprehensive assessment, the assessors confirmed occupational diagnoses of Alcohol Use Disorder, Opiate Use Disorder, Adjustment Disorder and rule out Somatic Symptom Disorder, pain. The assessors confirmed a non-occupational diagnosis of cirrhosis of the liver, rule out workplace relationship.
While in the Mental Health Specialty Clinic, the worker developed a blood infection and was hospitalized in February 2020.
The March 2020 clinic’s Medication and Substance Abuse Treatment Report notes that the worker presented with chronic, severe and co-morbid substance use disorders (opiate medication and alcohol). He reported a longstanding history of difficulties with problematic substance use that has resulted in significant medical, social, legal and functional issues. Up until recently, he had been resistant to change and treatment of his impairments despite coaching and encouragement from family and health professionals. Within the present assessment, he expressed being willing to participate in inpatient treatment. He acknowledged the nature of his difficulties and expressed understanding the rationale for inpatient before outpatient addictions treatment. DSM-5 diagnoses Opiate Use Disorder and Alcohol Use Disorder were noted in conjunction with a non-occupational stressor/contributor of end-stage liver cirrhosis.
In March 2020, the worker’s physician wrote to WSIB indicating that the worker has a substance abuse disorder that peaked in the recent year. According to the physician’s May 2020 letter, the worker has chronic left shoulder/arm (not the allowed right side) pain since the workplace injury and that he has used alcohol to decrease the pain.
In July 2020 the worker was seen by Dr. Lynch for an addiction psychiatry consultation. According to the worker, he started drinking heavily at the age of 15 and that by the time he reached his 20s, it was regular and heavy. His jaundice began in his mid-20s. His typical drinking pattern was approximately 6 to 12 beers a day. In the past 5 years, since the diagnosis of liver disease, this average has trended upward. Where he had taken breaks in the past, he had been drinking daily for the last 5 years. He sought treated at Homewood only because it was mandated by WSIB. He did not want to go as he felt he did not need it. The stay at the mental health clinic was “useless”. When asked about the obstacles that got in the way of him stopping drinking previously, the worker stated that “when your buddy gives you a beer, you take it” (emphasis added). Alcohol use resulted in a failure to return to employment. There is a clear history of on-going alcohol use despite knowledge of liver cirrhosis and jaundice.
In October 2020, the Case Manager requested a review of the case by a WSIB Physician in order to determine if the cirrhosis of the liver and pending transplant of the liver were the responsibility of this claim. In November 2020, the WSIB Physician provided a medical opinion. After completing a review of documentation on the case record, the WSIB Physician opined that there was no evidence provided to support that the worker’s cirrhosis of the liver and the subsequent evaluation for a liver transplant were related to the workplace injury of November 2014.

While the worker representative argues that the work-related neck injury and in particular, the increase in medication and use of alcohol are the reasons for the diagnosed cirrhosis of the liver, I am unable to make this finding. Medical reporting from 2014 through to 2018 confirms not only a neck injury but non-compensable left arm/shoulder pain, bilateral ankle pain and stiffness preventing the worker from walking, smokers cough, hemoptysis, lower back pain, knee pain, and more recently, in 2018, an ankle fracture. These are conditions that potentially could affect the worker’s use of medication and alcohol.

In determining whether the increased use of medication and alcohol caused the worker’s liver cirrhosis, I note that the worker continued to work after leaving his employment with the employer. The medical reporting confirms that at one point he was working three jobs. He was able to clean houses, work at side jobs such as renovations with heavy lifting. He renovated a neighbour’s home. He fell backwards eight steps and he fell off a roof fracturing his ankle. These are activities that have been confirmed by the medical reporting. It is possible that there are others. The worker felt that he was able to continue to work and to perform heavy physical activity, regardless of his neck injury under this case. In my view, it is difficult to state that only the neck injury in this case caused the worker’s increased medication and alcohol use.

The medical evidence supports that the worker’s neck injury in this case is only one of many injuries and co-morbid conditions that the worker has, that reasonably could have contributed to an increase in his medication and alcohol use.

Further, reporting from Dr. Hemphill in July of 2017 suggests that the worker’s liver disease had been going on since at least 2007. Dr. Hemphill did not attribute the worker’s liver disease to the neck injury sustained at the time of the November 5, 2014 work incident.

The longstanding presence of the worker’s liver disease is also confirmed by the Medical Report completed for Canada Pension Plan Disability Benefits dated January 30, 2017 wherein the family physician confirms that the worker was first treated for severe alcoholism with thrombocytopenia secondary to chronic alcoholic liver disease and portal hypertension since June of 2002, many years before the November 5, 2014 work incident.

I also relied on the February 3, 2020 Mental Health Specialty Clinic Report. After completing a comprehensive assessment, the worker was provided with occupational diagnoses of Alcohol Use Disorder, Opiate Use Disorder, Adjustment Disorder and rule out Somatic Symptom Disorder, pain. The assessors confirmed a non-occupational diagnosis of cirrhosis of the liver. This finding was confirmed in the March 5, 2020 Medication and Substance Abuse Treatment Report which notes the DSM-5 diagnoses of Opiate Use Disorder and Alcohol Use Disorder in conjunction with a non-occupational stressor/contributor of end-stage livers cirrhosis.

At the same time, Dr. Lynch in her July 2020 assessment of the worker, questioned the worker’s about obstacles that got in the way of him stopping drinking previously. The worker did not reference the after effects of the November 5, 2014 work incident and the resulting neck injury, rather, the worker stated that “when your buddy gives you a beer, you take it”. According to this physician, alcohol use resulted in a failure to return to employment, not employment related factors causing the use of alcohol. There is a clear history of on-going alcohol use despite the worker’s knowledge of his liver cirrhosis and jaundice.

As a result of my analysis, I am persuaded that the medical reporting does not provide a causal link between the work-related neck injury and development of cirrhosis of the liver and the need for a liver transplant. The medical evidence supports that the cirrhosis of the liver was already present at the time of the work related injury to the neck. Therefore, entitlement to cirrhosis of the liver/ liver disease remains denied.

The employer representative argues that the worker is unemployable, however, this issue has not as yet been addressed by the operating area. I note that the February 3, 2020 Mental Health Specialty Clinic report provides the occupational diagnoses of Alcohol Use Disorder, Opiate Use Disorder, Adjustment Disorder and rule out Somatic Symptom Disorder, pain. None of the diagnoses have been considered for entitlement. The operating area will need to render decisions for the Alcohol Use Disorder, Opiate Use Disorder and the psychological condition. Once these decisions have been made, a review for employability will need to be undertaken and the workplace parties advised accordingly.

CONCLUSION

I conclude:

The SO of Cashier is not suitable for the payment of retroactive loss of earnings benefits as of May 15, 2015.

It is reasonable to conclude that the worker was able to work in the SO of Light Duty Cleaner – NOC 6731 as of May 15, 2015 until January 14, 2019. The calculation of the payment of a partial loss of earnings benefit from May of 2015 until January 14, 2019 is remitted back to the operating area to determine.

Entitlement to cirrhosis of the liver/ liver disease remains denied.

The employer representative argues that the worker is unemployable, however, this issue has not as yet been addressed by the operating area. I note that the February 3, 2020 Mental Health Specialty Clinic report provides the occupational diagnoses of Alcohol Use Disorder, Opiate Use Disorder, Adjustment Disorder and rule out Somatic Symptom Disorder, pain. None of the diagnoses have been considered for entitlement and the operating area will need to render decisions for the Alcohol Use Disorder, Opiate Use Disorder and the psychological condition. Once these decisions have been made, a review for employability will need to be undertaken and the workplace parties advised accordingly.

The worker’s objection is allowed in part.

DATED May 20, 2021

D. Gowanlock

Appeals Resolution Officer

Appeals Services Division