Estate of worker and executor of estate v. Employer, 2021 CanLII 97498

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Number: 20210014

Objecting Party: Estate of worker and executor of estate

Represented by: law professional corporation

Respondent: Employer, self-represented, not participating

Hearing: Hearing in Writing

Heard by: Stephanie Waters, Appeals Resolution Officer

Dated: August 6, 2021

Issues

The worker’s representative objects to two Case Manager (CM) decisions.

1. The January 24, 2020 decision that denied entitlement for chronic pain disability.
2. The July 10, 2020 decision that denied entitlement to any loss of earnings (LOE) benefits after the permanent work disruption on December 16, 2015.

Background

This worker’s date of hire was February 25, 2012. On May 6, 2012, the worker was in his 40’s and worked as a skilled labourer. The worker fell approximately 23ft from scaffolding, struck a piece of cross bracing as he fell, and landed on the ground. The worker remained off work and had surgery on his pelvis and right hip on May 8, 2012.

The claim has been allowed for fractures to the worker’s right hip, left shoulder, three ribs, and pelvis, as well as right hip osteoarthritis and sacroiliac joint dislocation and disorder. The employer requested cost relief under the Second Injury and Enhancement Fund, which was denied on June 4, 2013. The worker received an 11% Non-Economic Loss (NEL) benefit for permanent impairments to his lower back, pelvis, and right hip on March 12, 2020.

The worker received full LOE benefits beginning May 7, 2012, and then received partial LOE benefits when he returned to accommodated work with his employer on August 15, 2013. The worker performed sedentary work until September 13, 2013 when he had surgery to remove surgical hardware from his hip and pelvis. The worker remained off work until he gradually resumed his pre-injury duties beginning July 7, 2014.

The worker participated in a work hardening program in October and November 2014. It was determined the worker had functional restrictions related to walking, sitting, standing, lifting, stair and ladder climbing. The worker continued to report pain but kept working with his employer until he was permanently laid off due to a shortage of work on December 16, 2015. The worker never returned to work after this date. The employer stated that prior to the layoff, the worker was setting up and tearing down pumps and hoses, and moving equipment by operating forklifts, bobcats, and other construction equipment. The employer also stated they offered the worker an opportunity to transfer to a new position but the worker declined because he did not have a driver’s license to reach the new worksite.

On January 6, 2016, the worker had surgery on his right shoulder for a condition unrelated to this claim. An orthopaedic surgeon in 2018 and a chronic pain specialist in 2019 determined the worker had chronic pain related to his compensable injuries. The worker passed away on January 2, 2020.

On January 24, 2020, the CM denied entitlement for chronic pain disability. They explained medical reports indicated the worker’s pain was consistent with his organic findings. On July 10, 2020, the CM denied entitlement to any LOE benefits after the permanent work disruption. They explained they could not determine the worker’s wage loss following the layoff resulted from his compensable injuries.

The worker’s representative objected to these decisions and submitted an Appeal Readiness Form.

Authority

Operational Policy Manual

Published
15-04-03 (Chronic Pain Disability)	September 7, 2018
15-06-03 (Entitlement Following Permanent Work Disruptions)	November 3, 2014
18-03-06 (Final LOE Benefit Review)	January 2, 2018

Analysis

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find:

1. Entitlement for chronic pain disability is not in order;
2. Entitlement to partial LOE benefits is in order following the permanent work disruption on an ongoing basis beginning December 17, 2015.

As such, the worker (estate) appeal is allowed in part.

Worker’s Position

It is the worker representative’s position that the worker is entitled to benefits for a chronic pain disability. They argued medical evidence shows the worker suffered from a severe and prolonged disability due to pain beyond the expected healing of his orthopaedic injuries. The representative added that the worker’s injuries did not heal and impaired his earning capacity.

It is also the worker representative’s position that the worker should receive LOE benefits after the work disruption on December 16, 2015. They argued the Record of Employment (ROE) confirms the worker was laid off indefinitely and the employer did not offer work after December 2015. The worker’s representative also argued medical evidence supports the worker’s compensable injuries made him unable to work in his own occupation or any other suitable occupation. To support their position, they referenced medical reports on file from the orthopaedic surgeon, the pain specialist, and family doctor indicating the worker had high levels of pain and was unable to work.

Employer’s Position

The employer did not return the Respondent Form. They are not participating in the appeal.

Assessment of Entitlement

1. I find entitlement for chronic pain disability is not in order.

It is the worker representative’s position that the worker is entitled to benefits for a chronic pain disability based on the medical evidence on file. Information on file does not support this position. When making my decision, I considered the policy that explains the five conditions that must exist to allow benefits for a chronic pain disability.

Policy 15-04-03 (Chronic Pain Disability) states that for a worker to qualify for compensation for chronic pain disability, the following conditions must exist, and must be supported by all the indicated evidence:

1. A work-related injury occurred;
2. Chronic pain is caused by the injury;
3. The pain persists 6 or more months beyond the usual healing time of the injury;
4. The degree of pain is inconsistent with organic findings;
5. The chronic pain impairs earning capacity.

The worker’s representative argued the medical evidence supports the worker had a severe and prolonged disability due to pain from the work-related injuries that persisted beyond the expected healing time and impaired his earning capacity. I do not dispute this argument. Medical reports and clinic notes in 2018 and 2019 from the worker’s doctor, orthopaedic surgeon, and pain specialist confirm the worker had chronic pain caused by his injuries and this impacted his working ability and earning capacity.

With that said, all five conditions described by Policy 15-04-03 must exist to allow entitlement for chronic pain disability. I find entitlement for chronic pain disability is not in order because the fourth condition is not satisfied. Specifically, I find medical evidence establishes the degree of pain the worker experienced was consistent with his organic findings.

Clinic notes from the worker’s doctor from 2014 until 2018 demonstrate the worker consistently reported pain in multiple areas including his right shoulder, groin, hips, pelvis, back, and left chest wall. A physiatrist assessed the worker and completed a consultation report on November 3, 2014. The worker reported pain and tenderness affecting his ability to stand, walk, and sleep. The physiatrist concluded the worker’s symptoms and findings were consistent with right hip osteoarthritis and sacroiliac joint disorder.

An orthopaedic surgeon assessed the worker and wrote a consultation report on November 19, 2018. The orthopaedic surgeon concluded the worker had ongoing and permanent pain and physical limitations directly attributed to his compensable injuries. They stated the worker’s disability was prolonged and impaired his earning capacity. The orthopaedic surgeon stated the worker’s symptoms were consistent with his injuries.

A pain specialist assessed the worker and completed a consultation report on February 25, 2019. They confirmed the worker had chronic pain caused by the work injuries, persisted for longer than six months, and impaired the worker’s earning capacity. The pain specialist documented the worker’s degree of pain was consistent with his organic findings for the injuries sustained.

I considered the medical documentation on file and placed significant weight on the opinions provided by the orthopaedic surgeon and pain specialist. This is noting they are experts in their field and reached their conclusions after assessing the worker in person. Both specialists confirmed the worker had prolonged and chronic pain caused by his injuries. However, both specialists clearly stated the worker’s symptoms and degree of pain were consistent with his organic findings and injuries. There are no medical reports on file establishing the worker’s degree of pain was inconsistent with his organic findings. Noting this, I find not all conditions exist in accordance with Policy 15-04-03 (Chronic Pain Disability), and entitlement for chronic pain disability is not in order.

2. I find entitlement to partial LOE benefits is in order following the permanent work disruption on an ongoing basis beginning December 17, 2015.

It is the worker representative’s position that the worker is entitled to LOE benefits after December 16, 2015 when he was permanently laid off due to a shortage of work. Information on file supports this position. When making my decision, I considered the policy that explains how entitlement is considered following a permanent work disruption.

Policy 15-06-03 (Entitlement Following Permanent Work Disruptions) states that to determine if the worker’s additional loss of earnings results from his/her work-related injury/disease, the decision-maker identifies a suitable occupation (SO) for the worker and determines if the worker requires WSIB assistance to re-enter the labour market in that SO.

Policy 15-06-03 adds:

To determine if the suitable work performed prior to the work disruption is the worker’s SO, the decision-maker considers the following factors.

a) Does such work exist in the general labour market? b) Does the worker have the transferrable skills/qualifications that would allow him/her to obtain such work in the general labour market? c) Do the earnings paid for such work in the general labour market restore the worker’s pre-injury earnings to the extent possible?

If the answer to a, b, and c is yes, the suitable work performed prior to the work disruption is the worker’s SO. The worker has already demonstrated the work-related injury/disease does not prevent him/her from working in the SO, and therefore any additional loss of earnings would be due to the economic circumstances of the work disruption rather than the work-related injury/disease.

However, additional LOE benefits may be payable if the employer has been paying wages significantly higher than the industry based estimate for that work in the general labour market. LOE benefits would be calculated based on the difference between the industry based estimate of the SO earnings and the pre-injury earnings.

For the reasons that follow, I find entitlement to partial LOE benefits is in order following the permanent work disruption on an ongoing basis beginning December 17, 2015.

The worker’s representative argued the employer did not offer the worker additional work beyond December 2015, and the ROE confirmed the worker was laid off indefinitely. The ROE on file indicates the worker’s last day of paid work was December 16, 2015. He was laid off due to a shortage of work and the end of the contract or season. In a letter dated June 26, 2020, the employer stated they offered to transfer the worker to another project but the worker declined due to the worksite location and because he did not have a driver’s license.

There was no activity in the file between April 2015 and January 2018. There is no contemporaneous information from the worker or employer about the work disruption or any subsequent offer from the employer for the worker to transfer to a new project. Noting this, I cannot conclusively determine whether the employer offered new employment to the worker after the December 2015 layoff. For this reason, I focused my assessment on the suitable work the worker performed before the work disruption and whether this was the worker’s SO. I will also address the worker representative’s argument that medical evidence supports the worker’s injuries made him unable to work in his own occupation or any other suitable occupation.

Summary of Relevant Medical Reports and Documentary Information

In November and December 2014, a physiotherapist documented the worker’s functional abilities and restrictions at the end of a work hardening program. The worker could walk for about 20 minutes, sit and stand as tolerated, lift up to 50lbs, push and pull up to 145lbs, complete ladder climbing as tolerated, and climb three to four flights of stairs. The worker was restricted from bending/twisting repetitive movements of his right hip.

In a clinic note dated October 19, 2015, the worker’s doctor stated the worker needed to stop his job and be retrained for a less physical job. On December 7, 2015, the doctor documented the worker would be off work for six to eight months following a right shoulder surgery. On May 14, 2018, the doctor indicated the worker had been off work since 2015 and the worker was unemployable due to chronic pain.

The worker completed an application for Employment Insurance benefits in June 2017. The worker indicated he completed high school, and he was laid off due to a shortage of work on December 16, 2015. The worker was paid $31.60 per hour when he was laid off. The worker stated he had been unable to work as of December 16, 2015 due to medical reasons and he did not receive WSIB benefits but did receive benefits from Manulife.

In November 2018, the worker told the orthopaedic surgeon that he worked until December 2015, then had shoulder surgery, and was unable to return to work since that time. The worker stated his shoulder later recovered and his ongoing limitations were the result of his compensable injuries. The worker also indicated he took a diploma course in 2018 for heavy equipment operation, but was not successful due to his ongoing pain. The orthopaedic surgeon stated the worker’s impairment prevented him from resuming his pre-injury work, but he may be able to complete sedentary or lighter work within his physical abilities.

In February 2019, the worker informed the pain specialist that he worked modified duties driving a cart until December 2015. At that time, he started having problems with his shoulder and his pelvis pain became more severe. The worker was having difficulty with his work and driving due to pain, and he did not return to work after his shoulder became aggravated. The worker indicated he could not finish the training to operate heavy equipment due to severe pelvic pain. The pain specialist stated the worker could not do his own job or any job due to his injuries and chronic pain.

In correspondence dated June 26, 2020, the employer stated the worker was performing duties of a civil labourer before the layoff. The worker moved equipment around site, primarily setting up and tearing down pumps and hoses because the project had a large amount of dewatering requirements. When speaking with the CM in July 2020, the employer clarified the worker was operating machinery equipment such as forklifts and bobcats to move equipment around the site. The worker stepped in and out of the cab, performed his duties using the machinery, and did not complete any physical lifts. The worker’s representative also spoke with the CM in July 2020 and indicated the worker stated he was unable to continue his training program due to vibrations.

I find entitlement to partial LOE benefits is in order following the permanent work disruption on an ongoing basis beginning December 17, 2015.

I find the suitable work performed before the work disruption was the worker’s SO and he did not require WSIB assistance to re-enter the labour market in that SO. The worker drove a cart, forklift, bobcat, and other machinery to move construction equipment and materials around the worksite. The employer highlighted that the worker primarily assisted with setting up and tearing down pumps and hoses for dewatering required on site.

I find this type of work exists in the general labour market in a SO of material handlers – equipment operators (NOC 7452.2). This is because employees at other companies would perform similar work. There is no indication there was significant accommodation made to the worker’s tasks, work processes, productivity, or work schedule for the worker’s impairment. There is also no evidence the employer spent money or effort to modify the equipment used by the worker to accommodate his impairment.

The National Occupational Classification Career Handbook states that a general learning ability is required, and some secondary school education may be required for equipment operator positions. There is no specific training or certificate required for the role. Work activities primarily involved sitting, standing and walking, and may include some bending, stooping, kneeling or crouching. The role required medium strength for handling loads up to 44lbs. The worker would require motor coordination and manual dexterity to operate equipment by manipulating hand levers, foot pedals, and steering devices. The work could include some exposure to vibration.

Considering the above, I find the worker had the transferrable skills and qualifications that would allow him to obtain this type of work in the general labour market without WSIB assistance. The worker completed high school and the worker’s resume on file confirms he had a proven ability to safely operate heavy equipment. The worker could transfer this skill to work as an equipment operator in the general labour market.

Additionally, I find the physical requirements of the SO are within the worker’s functional restrictions due to his compensable injuries at the time of the work disruption. The worker would not be required to walk for long periods of time, climb more than four flights of stairs, lift more than 50lbs, push/pull more than 145lbs, or perform repetitive bending/twisting of the right hip. There was no medical restriction to avoid exposure to vibration due to the worker’s injuries at the time of the work disruption.

I understand the family doctor stated the worker would be off work for six to eight months due to a surgery that occurred shortly after the work disruption. I am unable to pay full LOE benefits for this period noting the worker’s surgery and subsequent limitations were related to a non-compensable right shoulder condition.

I also understand the worker’s representative argued medical evidence shows the worker could not work in any occupation due to his pain. With that said, in 2015 and 2018, the worker’s doctor and orthopaedic surgeon indicated the worker could not resume his pre-injury physical job, but could perform lighter or sedentary duties within his restrictions. It was not until 2019 that the pain specialist stated the worker was unable to perform work in any occupation due to his pain. I find contemporaneous evidence establishes the worker was able to perform lighter or sedentary work based on his work-related injuries and limitations, and demonstrated his ability to perform work as an equipment operator prior to the work disruption.

With this in mind, I find the earnings paid for this type of work in the general labour market would only partially restore the worker’s pre-injury earnings. The worker’s pre-injury gross average earnings were $1,548.54 per week. The Government of Canada Job Bank shows that in 2015, equipment operator wages in the Toronto region were between $11.25 per hour (low), $15.00 per hour (median), and $24.25 per hour (high). Since the worker had experience operating equipment in the past and there are no medical reports indicating the worker needed to work part-time hours due to his injury, I find the worker would likely be able to earn a median wage in the SO working 40 hours per week. However, earning $15.00 per hour, 40 hours per week, would result in weekly gross earnings of $600.00. This would only partially restore the worker’s pre-injury earnings.

In summary, I find the worker demonstrated that his injuries did not prevent him from working in the SO before the work disruption, he was capable of earning in the SO of equipment operator without WSIB assistance, but SO wages in the general labour market would not fully restore his pre-injury earnings. I find a portion of the worker’s additional loss of earnings after the work disruption resulted from his work-related injury. As such, in accordance with Policy 15-06-03 (Entitlement Following Permanent Work Disruptions), I find the worker is entitled to partial LOE benefits following the permanent work disruption.

Partial LOE benefits will be based on the difference between the worker’s pre-injury earnings and the median SO wages of $15.00 per hour at 40 hours per week. These partial LOE benefits are in order on an ongoing basis beginning December 17, 2015.

Policy 18-03-06 (Final LOE Benefit Review) states that if the WSIB determines there is a change to account for in the LOE benefit (e.g., post-injury earnings have changed), the LOE benefit is recalculated prior to being locked in. Otherwise, it is locked in as is.

Archived Job Bank data shows the median wage for this SO was $15.00 per hour in 2016 and 2017, and $15.50 per hour in 2018. I note the median SO wage stayed the same from 2015 to 2017, and changed in 2018. Assuming there were no material change in circumstances, I find the worker’s partial LOE benefits should be locked in based on median SO wages of $15.50 per hour, 40 hours per week, at the time of lock-in on May 6, 2018 until the date of death. This is in accordance with Policy 18-03-06. With that said, I will return the duration and level of LOE benefits flowing from this decision to the operating area to review if there was any material change in circumstances.

Conclusion

I find:

1. Entitlement for chronic pain disability is not in order;
2. Entitlement to partial LOE benefits is in order following the permanent work disruption on an ongoing basis beginning December 17, 2015.

The worker (estate) appeal is allowed in part.

DATED August 6, 2021

Stephanie Waters
Appeals Resolution Officer
Appeals Services Division