APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220086
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
(Not participating)
HEARING:
HEARING IN WRITING
HEARD by: F. AMORIM, appeals resolution officer
DATED: APRIL 20, 2022
ISSUES
The worker is objecting to the following:
The determination that they can work full-time
The quantum of the non-economic loss (NEL) ward for the right foot;
The denial of entitlement to the right knee and surgery as a secondary condition;
The work transition (WT) plan.
BACKGROUND
On March 1, 2018, this now mid-fifties year-old superintendent was loading 30 to 40 pound scaffolding into a truck. The scaffold slipped and dropped onto their right foot. They were treated at the hospital the same day and diagnostic imaging showed mid-foot fractures. They were seen by a surgeon and provided with an aircast.
The claim was allowed for health care and full loss of earnings (LOE) benefits. Entitlement was granted for a right lisfranc fracture and fractures of the 2nd and 3rd metatarsals.
The worker returned to pre-injury accommodated work at reduced hours on November 5, 2018. The operating area authorized the payment of partial LOE benefits.
In January 2019, the worker was assessed at the Lower Extremity Speciality Clinic. The report provided an occupational diagnosis of delayed union of the second and third metatarsal bones of the right foot. Further investigation were ordered as well as a home exercise program.
In March 2019, the worker claimed entitlement for the right knee as a secondary condition. They underwent surgery on the right knee on June 11, 2019 for a torn meniscus.
In October 2019, the operating are determined the worker attained maximum medical recovery (MMR) on August 27, 2019. A permanent impairment was also identified for the right foot.
In a letter dated December 4, 2019 the NEL Clinical Specialist (NCS) determined the worker was entitled to a 2% non-economic loss (NEL) award. The worker objected to the NEL quantum and the NCS upheld the decision in a letter dated March 28, 2020.
On April 2, 2020, the worker experienced a temporary work disruption due to his employer having to close its operations because of the COVID-19 pandemic. The employer re-opened in June 2020 and were unable to accommodate the worker’s restrictions as of June 22, 2020. The worker was referred for return to work (RTW) services.
The worker underwent non-compensable surgery on August 21, 2020, and was unable to participate in return to work activities. In November 2020, the worker representative indicated the worker was able to resume RTW activities.
In a letter dated February 9, 2021, the case manager (CM) denied entitlement for the right knee and the surgery. The CM also concluded the worker was fit for full-time work and entitled to full LOE benefits from June 22, 2020.
From March 2021 until January 2022 the worker participated in RTWS activities aimed at identifying a suitable occupation (SO). In a decision dated January 13, 2022 the RTWS determined the worker would be sponsored in a RTW plan for the SO of property management.
The worker objects to the decisions dated December 4, 2019, February 9, 2021 and January 13, 2022 and the issues have been referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
15-05-01 Resulting from Work-Related Disability Impairment 18-05-03 Determining the Degree of Permanent Impairment 19-02-10 RTW Assessment and Plans
February 15, 2013 November 3, 2014 November 30, 2020
Administrative Practice Document: Permanent Impairment rating guidelines for acromioplasty, repetitive strain injuries and splenectomy
ANALYSIS
The worker’s appeal is allowed in part. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
The worker representative (WR) completed an Appeals Readiness Form (ARF) on August 9, 2021 and February 23, 2022. The submission on the issues was written as follows:
“We feel the documentation on file supports our requests and warrants a further review”
Issue 1 – Ability to work full time
I find the worker is capable of working full time.
I note the worker attended a functional abilities evaluation (FAE) on December 17, 2021. The report concluded that based on the diagnosis and non-compensable limitations the worker demonstrated the ability to work in the light demand level. The assessor also indicated that based on the results of the FAE, the worker was capable of working on a full-time basis.
I find the FAE reports are consistent with the medical reporting from the Speciality Program. In August 2019, Dr. Rofaiel indicated the worker should gradually increase the hours worked until they reached regular hours. There was no indication in any of the Specialty Program reports that the worker’s injury would require a permanent restriction around the amount of hours the worker was capable of working. While I recognize the worker has a permanent injury and requires permanent accommodations, there is no medical evidence to support the worker is unable to work full time.
Issue 2 – NEL Quantum
I find the worker is entitled to a new NEL evaluation.
The Administrative Practice Document “Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy” explains that the AMA Guides caution that an evaluation for a repetitive strain injury should take place after the worker has worked for six to eight hours. Since this is not administratively possible and noting that often if a worker is examined for a repetitive strain injury without being exposed to work like conditions the NEL rating may be 0, due to the lack of any restrictions at the time of exam, the Board developed an alternate rating schedule.
In this appeal, it is important to note that the case is not a repetitive strain injury but is rather a traumatic injury to the worker’s right foot. The NEL Evaluation dated December 2, 2019 indicates the range of motion for the left ankle was near normal and as a result, the practice document was used to rate the functional impairment. I note the injury is to the right foot and not the left ankle. In addition, the Administrative Practice Document referred to above suggests using the guideline where applying the AMA Guides would result in an unfair result. The definition of unfair is not provided. The NEL Clinical Specialist also did not note how the use of the AMA Guides would result in an unfair result.
Lower extremity impairments are found on pages 55 through to 78 of the AMA Guides. I note the reports from the Speciality Clinic provide objective clinical information that indicate reduced limitation in function in the worker’s right foot were present even when the worker had not worked six to eight hours. For example, in the August 2019 report, which is the date MMR was attained confirmed the worker was working four hours a day. Dr. Rofaiel noted the worker continued to have right foot pain and tenderness along the second and third metatarsals. The worker reported numbness on the top and bottom of their right foot and altered sensation. They ambulated with antalgic gait. There was also reduced range of motion in dorsiflexion, plantarflexion, inversion and eversion. X-rays of the right foot showed persistent non-union fractures at the base of the second and third metatarsals with minimal displacement. All of the above are clinical findings which, in my opinion, could be rated under the AMA Guides.
The Administrative Practice Document is to be used when the injury is a repetitive strain and/or when using the AMA Guides would result in an unfair rating. In this case, I find the prerequisites required under the Administrative Practice Document do not exist and the NEL evaluation should have used the prescribed AMA Guides. As such, the worker is entitled to a NEL determination of the degree of permanent impairment of the right foot based on the AMA Guides.
Issue 3 – Secondary Condition
I find the worker is not entitled to benefits for the right knee as a secondary condition.
Policy 15-05-01 states workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.
The worker claims that as a result of the compensable injury they developed right knee problems. They relate the problems to walking on uneven ground, compensating for the injury and altered gait.
The medical reporting on file confirms the presence of a tear in the right knee. The worker underwent arthroscopic surgery in June 2019 to repair the torn meniscus. It is noted that the worker was also treated at the Lower Extremity Speciality Program for the right foot problem. The report of January 2019 indicated the worker experienced right knee pain which they attributed to walking. A diagnosis for the right knee problem was not provided. In the March 2019 Speciality Program report it was noted the worker presented with significant antalgic gait given their preference to walk on the lateral side of the right foot. An occupational diagnosis of non-union second and third metatarsal was provided. Non-occupational diagnoses were identified as Type 2 diabetes and smoking. The June 2019 Speciality Program report indicated the worker was having right knee surgery on June 11, 2019. There was no change in the occupational and non-occupational diagnoses provided by the assessment team. The August 2019 Speciality Program report indicated the worker continued to ambulate with an antalgic gait. The relevant occupational and non-occupational diagnoses remained the same.
In reviewing the claim file documentation, I am unable to establish that the worker’s right foot injury and the resulting antalgic gait caused the meniscal tear. I note the worker was experiencing knee pain which was clearly noted in the Speciality Program reports. I also note the worker was ambulating with an antalgic gate and favoured the lower extremity. There is insufficient evidence to support the right foot condition caused the right knee meniscal injury. I note the surgeon who treated the worker at the Specialty Program did not provide a diagnosis for the right knee condition although they were aware of the worker’s right knee issues. The worker was treated by another surgeon and there is no indication in the medical evidence the right foot problem was a significant contributing factor which lead to the right knee issues and subsequent surgery.
As I am not satisfied the worker’s right knee problems are attributed to the compensable right foot issues, entitlement cannot be extended under policy 15-05-01. As such, entitlement for the right knee as a secondary condition is denied.
Issue 4 – RTW Plan and Suitable Occupation
I find the RTW plan and the SO of property management is suitable and appropriate.
Policy 19-02-10, RTW Assessments and Plans states that when a worker suffers a work-related injury, the workplace parties work together with the WSIB to enable the worker's return to work.
If there are challenges that impact the worker's return to work that the workplace parties cannot resolve on their own, the WSIB conducts a return-to-work (RTW) assessment.
Following the RTW assessment, if necessary, the WSIB develops a RTW plan that outlines the assistance and services the worker requires to enable their return to work with the injury employer or in the labour market.
The WSIB conducts the RTW assessment and develops the RTW plan in collaboration with the workplace parties and, where necessary, the worker's treating health professional.
The policy goes on to say that to develop a RTW plan (with training), the WSIB generally identifies a SO for the worker. 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, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
The WSIB makes every effort to provide the worker with effective and meaningful input and choice when determining a SO. For example, the worker is encouraged to suggest possible SOs and provide any supporting research.
The WSIB considers a number of factors when determining a SO, including:
the worker's functional abilities, transferable skills, education, aptitudes and interests
the worker's work-related and non-work related impairments/disabilities, including non-physical disabilities such as a learning disability, and any other human rights-related accommodation requirements
the worker's pre-injury earnings and work hours (a worker would not be expected to significantly increase their work hours in the SO)
labour market trends and the likelihood of the worker being able to secure and maintain employment in the SO
the SO has a reasonable prospect of continuing in the longer term, and
whether the SO is achievable within a reasonable cost structure.
In some cases, the WSIB may determine that no SO is appropriate for the worker based on various factors, including those listed above.
As a result of the compensable right foot injury the worker has the following permanent limitations:
No lifting floor to waist
No sustained low level work
No ladders
Walk, sit, stand and stair as tolerated
Micro breaks and task rotation as needed
With respect to the physical suitability of the position, I note that according to the career handbook, the physical activities for property administrators include limited strength with work activities that primarily involve sitting. Standing and/or walking may occur but is incidental to the work being performed. Work activities involve handling loads up to 5kg. The position involves but is not limited to preparing and administering contract, co-ordinating repairs, compiling records and preparing reports. While this is not an exhaustive list of all the duties, the duties appears to include a variety of tasks which are compatible with the worker’s permanent limitations.
With respect to skills, I have considered the SO requires the completion of secondary school and may require training courses, a vocational program in property, a strata management or real estate. Experience as a property clerk, contract clerk, or administrative officer are usually required.
I note the results of a Psycho-Vocational assessment performed by Dr. K. Lawson, a certified psychologist outlined in the report dated November 2, 2018. The results of the assessment were reported as follows:
General Learning Ability: mid average
Verbal ability: low average to mid average
Numerical ability: low average
Spatial perception: mid average to high average
Form perception: low average to mid average
Clerical perception: below average to low average
Motor coordination: low average to mid average
Finger dexterity: low average to mid average
Manual dexterity: mid average
The assessment indicated the worker was most interested in occupations that are objective, methodical and innovative. Overall, it was reported the results suggested the worker would be capable of upgrading and pursing up to a long-term post-secondary training program. With respect to potential SO options, among others, the assessment identified the title of property administrators as a suitable job. This job would allow the worker to focus on his experience as a building superintendent. They would require upgrading in English literacy, math skills and require retraining.
In my view, the worker had input and choice into the SO. The worker expressed interest in property management and in particular, condominiums. The RTW plan includes academic upgrading and computer skills training to improve the worker’s skills. The plan also includes a Condominium Management Program Certificate. The completion of program will provide the worker with a license and education which will improve the worker’s marketability in the labour market.
I note the SO profile for property administrators is outlined in a memo dated January 13, 2022. The wage data from the Government of Canada job bank indicated the employment outlook was fair for the 2019-2021 period. It was noted that over the last decade, strong performance in construction has resulted in an increased demand for property administrators. I also noted the Ontario Job Profiles for the 2021-2025 period reported “above average” job prospects in the labour market. Job postings confirmed there were several opportunities located on different resources utilized by individual seeking employment and included the Government of Canada Job Bank and Indeed.ca. The evidence supports the SO is available and in demand in the current local labour market.
I accept the RTWS opinion that the SO identified for the worker is appropriate and aligns with the provisions of policy 19-02-10. The claim file documentation supports the SO is within their functional abilities, transferrable skills and aptitudes. The RTW plan developed with input from the worker will provide them with new skills which will enhance their employability. They have reasonable prospects of securing employment and maintaining employment in the SO which should continue into the long term. As such, I find the SO is suitable and the RTW plan is appropriate.
CONCLUSION
I conclude:
The worker is able to work full-time.
The worker is entitled to a NEL determination based on the AMA Guides.
The worker is not entitled to benefits for the right knee.
The RTW plan and SO are suitable and appropriate.
The objection is allowed in part.
DATED April 20, 2022
F. Amorim
Appeals Resolution Officer
Appeals Services Division