DECISION NUMBER: 20230127

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER – NOT PARTICIPATING

HEARING: VIDEOCONFERENCE HEARING

HEARD by: S. VAGADIA, APPEALS RESOLUTION OFFICER

DATED: SEPTEMBER 5, 2023

ISSUES

The worker objects to the following decisions:

1. A Return to Work Specialist’s (RTWS) March 11, 2019 decision that found the job duties offered by the employer were suitable.

2. A Case Manager’s (CM) March 18, 2019 decision that found the worker was unable to resume work because of a non-compensable medical condition. Loss of earnings (LOE) benefits from March 11, 2019 were denied.

3. A CM’s April 25, 2019 decision that denied secondary entitlement to a left shoulder injury (a small partial thickness tear to the supraspinatus tendon).

4. A CM’s December 18, 2020 decision that denied entitlement to a chronic pain disability (CPD).

5. A CM’s September 4, 2019 decision that denied entitlement to a psychotraumatic disability.

6. A RTWS November 25, 2020 decision that confirmed the suitable occupation (SO) of Accounting Technicians and Bookkeepers.

7. The CM’s December 18, 2020 decision also reduced LOE benefits, effective December 18, 2020 by the wage in the SO as the worker was no longer participating in his RTW plan.

BACKGROUND

Entitlement was granted to a right shoulder strain and rotator cuff tear due to an August 7, 2018 accident. The worker was tightening a bolt with a wrench. He resumed work from September of 2018 to November 13, 2018, the date of his compensable shoulder surgery. The worker raised concerns about the suitability of the duties he performed. Full LOE benefits were approved from the date of surgery.

The worker was hospitalized for a non-compensable medical condition from March 3 to 5, 2019. A RTWS March 11, 2019 decision found the job duties offered by the employer were suitable. The worker was expected to return to work on March 11, 2019. A CM’s March 18, 2019 decision denied LOE benefits from March 11, 2019. The CM found an inability to resume work because of a non-compensable medical condition was not the responsibility of this claim.

The worker attempted to return to work on April 15, 2019 but left after a few hours. He has not worked in any capacity since that time.

A CM’s April 25, 2019 decision denied secondary entitlement to the left shoulder. The worker indicated it was due to overcompensation, including the performance of unsuitable work duties prior to his surgery.

A CM’s June 18, 2019 decision denied secondary entitlement to a neck and upper and lower back injury. A CM’s September 4, 2019 decision denied entitlement to a psychotraumatic disability.

A CM’s October 2, 2019 decision denied entitlement to right carpal tunnel syndrome (CTS).

A January 7, 2020 CM decision restored LOE benefits from October 23, 2019. This was because the employer was no longer able to provide suitable duties.

A Nurse Consultant’s (NC) January 14, 2020 decision denied entitlement to medical cannabis.

The worker was granted a 13% non-economic loss (NEL) award on March 4, 2020 for his right shoulder. On September 14, 2020 his driver’s license was suspended.

In October of 2020, the worker was referred for work transition assistance. The SO of Accounting Technicians and Bookkeepers was determined with the worker’s input. The details were reaffirmed by the RTWS in a November 25, 2020 decision letter. This was also the date the worker was given a warning letter by the school, which advised his conduct was inappropriate and his program would be terminated if it did not change. The worker denied the school’s allegations and confirmed he would continue to participate in the program. However, the worker did not continue with his retraining.

A CM’s December 18, 2020 decision denied entitlement to CPD. The CM also reduced LOE benefits, effective December 18, 2020 by the entry-level wage in the SO.

On March 11, 2021 the worker was granted a CPP disability benefit. It was retroactive from March of 2019.

A RTWS May 18, 2021 decision confirmed the closure of the WT plan.

A CM’s August 27, 2021 annual review decision indicated the worker continued to receive partial LOE benefits based on the projected earnings in the SO. A CM’s September 6, 2022 annual review decision noted the worker was in receipt of a CPP disability pension. It was less than the projected earnings in the SO, resulting in no change to his LOE benefits.

Lastly, a CM’s March 20, 2023 reconsideration decision confirmed entitlement to the left shoulder remained denied.

AUTHORITY

Operational Policy Manual	Published
15-05-01 Secondary Conditions Resulting from Work-Related Disability / Impairment	February 15, 2013
15-04-03 Chronic Pain Disability	September 7, 2018
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)	January 2, 2018
19-02-01 Work Reintegration Principles, Concepts, and Definitions	December 3, 2012

ANALYSIS

Worker testimony

The worker spoke about the modified duties offered in September of 2018. He was told he would be overseeing the press and not doing anything physical. However, that was not the case. He ran the press and was performing almost all of his regular duties.

The worker advised the CM of his difficulties. The CM stated they would speak to the employer’s Human Resources (HR) department. Shortly thereafter the worker had a meeting with HR. HR said they would speak to his supervisor. The supervisor was upset, asking why the worker did not speak to him first before going to HR. He told the supervisor he would speak to HR again. He told HR to “not worry about it” because he did not want to be involved in arguments / confrontations. The worker tried to “brush it off” and work to the best of his ability.

The worker briefly spoke about the demands of his pre-accident job working on the press lines. There were six presses and he worked on all of them. The modified role was supposed to involve supervisory duties (helping operators when needed) and tasks such as making labels. Instead he had no choice but to lift etc. His supervisor advised him to get help with lifting when needed but 99% of the time no one was available, forcing him to do it. On the few occasions he asked co-workers for help, they said they were too busy and could not assist him.

A RTWS memo dated November 8, 2018 was noted:

• The worker confirmed the details were appropriate on paper (it seemed suitable) but not in practice.
• For example, some tasks required the use of both hands. This included having to clear parts that got stuck.
• There was a helper (in addition to his role as an operator). However, the helper was on the other end of the machine doing their own job and therefore unable to assist him.
• He was not supposed to do certain tasks (such as levelling the scrap bin). However, in reality he had no choice but to do so.
• They worked on a quota system which made it difficult to get help from co-workers.

The supervisor told him he did not know what jobs to give him and suggested he switch to the day shift because it had more people available to help. It was ok the first few days as there were more co-workers to help him. However, it did not last. He had help initially but then co-workers refused. This was because they had to leave their lines (stop their presses) to assist him. Productivity was important and everyone expected quotas to be achieved even if he was on modified duties. The worker was in great pain, to the point he was in tears on occasion. He was afraid he would lose his job if he did not meet production expectations.

The worker was to return to work 3 months after his November 13, 2018 surgery. He was told the job involved receptionist duties. However, the position was filled by someone else and the employer stated they had nothing else to offer him.

In March of 2019 he was again offered a modified job. He tried it in April of 2019 for one day but it was not suitable. Once again the tasks required the use of both hands (removing parts that got stuck was one example). He sought medical attention and advised the employer he could not do the work. Their solution was for him to get help from co-workers, which was not possible.

A RTWS memo dated April 25, 2019 was noted. The worker was expected to perform his regular duties except for staging and welding. He did not return to work as the remaining duties were still not suitable. They required the use of both hands. In addition, despite the employer’s claims that help was available, in reality this was not the case.

The worker began experiencing left shoulder pain about 2 weeks after his initial return to work in September of 2018. This was approximately when he was switched from the night to day shift. He forced himself to continue to work, making his condition worse. He received physiotherapy treatment and had an ultrasound which revealed a left shoulder tear. Going off work did not improve the condition of either shoulder.

The worker also developed psychological symptoms due to his injury. This included stress, anxiety, anger, depression, and sadness. He struggled with sleep and activities of daily living. His relationship with family and friends was also impacted. He had no such difficulties before the accident. He was treated with medication, which helped.

The worker continued to experience difficulties with his right shoulder after his surgery. He complained to his doctors until they finally referred him for a new MRI in September of 2019. It confirmed the surgery was not successful (he had another tear). Further surgery was not recommended.

The worker indicated his driver’s license was suspended due to his injury. This was done by his doctor after he almost got into an accident. The WSIB paid for his transportation subsequently. He also noted he was approved for a CPP disability benefit about 2 years ago.

The worker briefly spoke about his education and work experience. He came to Canada when he was 16 and was in school to grade 11 (he did not graduate). He always worked in the automotive industry and positions included being a Lead Hand. His WSIB return to work (RTW) plan included computer upskilling. He tried his best but was in pain and had difficulty concentrating / comprehending what he read. After completing the computer course he began academic upgrading (also online). He advised the new teacher he was in a lot of pain. The teacher said they could not help him with his pain. The worker asked how he was expected to continue. This led to an argument between them. He asked for a new teacher but was advised no one else was available. As a result, he stopped participating in this RTW plan. He noted he had similar arguments with his family. The worker denied swearing at the teacher. The school said he should apologize. The worker’s response was that he could not apologize for something he did not do.

The worker indicated he had no experience in the SO. He also has limited computer skills. He can use the internet but has difficulty with emails. He is more of a “hands on” guy. His son helped him log onto today’s hearing. He has not looked for work because of his injury; no one would hire or accommodate him.

Today, the worker’s most significant issues are his right shoulder, followed by his upper back (between the shoulder blades) and left shoulder. He is not capable of employment or retraining because of his physical injury and pain as well as his low mood, which prevents him from being around people. He is also unable to focus or concentrate. His present limitations include difficulty lifting, walking, standing, and sitting. He is able to bend and climb stairs.

Worker representative submission

• The worker attempted to perform the unsuitable duties offered by the employer from September of 2018 to his surgery in November of 2018. He was not properly accommodated.
• It was a very busy work environment and the worker performed duties beyond his restrictions. This resulted in his left shoulder injury (due to overuse / overcompensation). The medical evidence on file, including the conclusions from the treating orthopaedic surgeon, supported this view. There was a strong temporal relationship between the development of the left shoulder symptoms and the duties the worker performed.
• The worker was entitled to full LOE benefits from March 11 to October 23, 2019. He attempted to return to work on April 15, 2019 and had to leave after a couple of hours due to the lack of suitable duties.
• WSIB policy also permitted the approval of LOE benefits for up to 4 weeks if there was a post-accident, non-work-related change in circumstance. This meant the worker was entitled to LOE benefits for the period from March to April of 2019 when he was briefly dealing with a non-compensable medical condition.
• The April 25, 2019 RTWS plan seemed appropriate in theory but not in practice. The worker was unable to work at his own pace and had no help from co-workers.
• The worker was entitled to a permanent left shoulder impairment. This was supported by the preponderance of medical evidence.
• The worker’s ongoing issues were work-related, as evidenced by the failed surgery. His psychological symptoms were therefore not the result of other factors, as suggested by the CM.
• The worker was entitled to a psychotraumatic disability or in the alternative CPD. He met the criteria of both policies.
• The issues with the RTW plan were due to the worker’s significant pain and psychological condition. There was an argument with the teacher but the worker disputed the school’s conclusion that he was at fault.
• The worker was not capable of gainful employment due to a combination of his organic and non-organic symptoms. In addition, he had no transferable skills and very limited computer skills. His condition rendered him totally impaired. In the alternative, he was only capable of part-time direct-entry work at minimum wage.

1. The suitability of the modified duties offered by the employer

I find the duties the worker performed prior to his surgery and the duties offered by the employer subsequent to his surgery were not suitable. I note the following in arriving at my decision.

Policy 19-02-01 defines suitable work as work that is safe, productive, consistent with a worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings. The policy also provides a definition for “accommodation.” This means any modification to the work or the workplace, including but not limited to reduced hours, reduced productivity requirements, and/or the provision of assistive devices, that results in work becoming available that is consistent with the worker’s functional abilities and that respects applicable human rights legislation.

In this case, the worker outlined the issues he had with the duties he performed prior to his November 13, 2018 surgery during his testimony at the hearing. I find his statements were corroborated by the evidence in the claim. For example, in a November 5, 2018 RTWS memo he indicated he was essentially performing his regular duties. The worker’s “resistance” to further WSIB involvement echoed his statement at the hearing (that he did not want to be involved in further confrontations and would just work to the best of his ability). The employer raised concerns that he was performing tasks beyond his ability and not following their instructions.

The November 7, 2018 RTWS plan noted the worker was performing tasks beyond his precautions because he was unable to get help when needed. The workplace parties also discussed possible job opportunities for the worker’s return following recovery from his upcoming surgery.

In January of 2019, the employer indicated they had suitable work opportunities involving the operation of a Zamboni or a press machine. The latter only involved visual observation and pressing a start/stop button, with co-workers doing everything else. However, as outlined in a January 11, 2019 RTWS memo, the worker continued to raise concerns about the feasibility of the employer’s proposal. In reality, there was no one readily available to assist with the operation of the press, forcing the worker to do it himself. The RTWS had personally been on the shop floor and given the volume, confirmed it would not be easy to get someone else’s attention quickly. The RTWS found the worker’s concerns were valid and stated that although the employer had good intentions, the plan did not seem feasible given the prior issues.

Therefore the employer’s RTW plan was not suitable at this time. This was to be reassess once the worker’s condition improved.

A different RTWS had a meeting with the employer (only) on March 7, 2019. The worker had just been discharged from the hospital for a non-work-related condition and was unable to participate at that time. The new RTWS concluded the employer was able to provide suitable work with accommodation. The duties involved inspecting parts, levelling a scrap bin, sorting parts for quality issues, and cleaning a stamp die. The accommodations included:

• Emptying a smaller bin into a larger bin more frequently
• Getting help from co-workers
• Not performing tasks beyond his restrictions
• Using a chair
• Alternating between both hands
• Having no set quotas

The worker was to begin on March 11, 2019. He declined, citing concerns with the employer’s ability to properly accommodate him. It was also noted he was recovering from a non-compensable condition.

However, as noted in an April 17, 2019 memo, the worker attempted to work on April 15, 2019 but was unable to work more than a few hours.

Another RTWS meeting took place on April 18, 2019 (both the worker and employer participated). Duties such as Staging/Welding, Break Press, and Building Boxes were found to be suitable with accommodation. The accommodations again included obtaining the assistance of co-workers. The worker maintained his concerns.

Of particular relevance were developments that occurred towards the end of 2019. After continuing to raise complaints about his right shoulder with his treating healthcare practitioners throughout the year, the worker was referred for another MRI. The September 18, 2019 MRI confirmed the surgery in November of 2018 was not successful. The worker had a complete tear and further surgery was unlikely to be successful. The new evidence confirmed the worker had permanent restrictions, which included avoiding lifting, carrying, pushing, pulling, and reaching with his right upper extremity. Based on these updated precautions the employer confirmed none of the duties they had available were suitable.

I find the return to work efforts (prior to the end of 2019) were based on restrictions that did not accurately recognize the nature of the worker’s condition. This was in part due to medical evidence that incorrectly suggested the surgery was successful. I also place greater weight on the January 11, 2019 RTWS opinion, given they personally assessed the workplace and heard fully from both parties prior to rendering their decision.

In summary, given the nature of the worker’s compensable restrictions, which were not properly illuminated until the end of 2019, I find the duties offered by the employer were not suitable. They were not consistent with the worker’s functional abilities as required by policy 19-02-01.

2. The denial of LOE benefits from March 11, 2019

I find the worker is entitled to full LOE benefits from March 11 to October 23, 2019 less his earnings on April 15, 2019. I note the following in arriving at my decision.

Policy 18-03-02 in part states a worker is generally entitled to full LOE benefits if they are able to return to some form of work (and cooperating) but the WSIB determines no suitable work is available. In this case, I note my finding that the duties offered by the employer were not suitable. I also note there is no evidence to suggest the worker did not fulfil his cooperation obligation.

It is also worth noting the following:

• In January of 2019 a RTWS concluded the employer was not able to provide suitable work.
• The worker was unexpectedly hospitalized March 3 to 5, 2019 due to a sudden non-work-related condition. This prevented him from participating in a meeting with a RTWS scheduled for March 7, 2019. That meeting continued with just the employer instead of being rescheduled.
• Memos from the CM and RTWS in early March of 2019 indicated full LOE benefits would continue for 4 weeks (to April 8, 2019) under policy 15-06-08.
• However, on March 18, 2019 the CM concluded LOE benefits would end effective March 11, 2019, the date the worker was to begin the duties offered by the employer.

Lastly, I note that based on the corrected restrictions, the operating area restored LOE benefits from October 23, 2019. However, I find the same precautions held true subsequent to the worker’s surgery. Consequently, I conclude full LOE benefits should have been restored from March 11, 2019 as the requirement of “suitable work” was not fulfilled.

3. Secondary entitlement to the left shoulder

I find secondary entitlement to the left shoulder is in order. I note policy 15-05-01 in arriving at my decision. It explains that secondary conditions 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.

In this case, the worker first referenced having left shoulder/arm pain in October of 2018. An October 19, 2018 RTWS referral memo is one example. The worker returned to work in September of 2018 to duties that I find were not suitable. He performed duties beyond his restrictions and as a result, over-compensated with his left upper extremity. It is relevant that the left shoulder symptoms occurred at work prior to his surgery.

In reviewing the medical evidence I note the following:

• A March 14, 2019 specialty clinic report noted the worker continued to complain of left shoulder pain.
• The worker stated the same in a March 21, 2019 pain clinic report and a March 29, 2019 physiotherapy report. He attributed his left shoulder pain to mainly using his left arm at work subsequent to his right shoulder injury.
• An April 1, 2019 left shoulder ultrasound found evidence of a partial thickness tear and biceps effusion.
• Lastly, a February 8, 2021 report from the orthopaedic surgeon at the specialty clinic indicated it was possible the left shoulder injury was due to overcompensation.

In my view, the requirements of policy 15-05-01 have been met. There is a causal relationship between the work-related right shoulder injury and the subsequent left shoulder impairment. The worker had to perform unsuitable work, over-compensating with his left upper extremity. He noted his new pain weeks after returning to work and advised the WSIB accordingly at that time. All of the treating healthcare professionals, including the orthopaedic surgeon, commented on “compatibility” and concluded a causal relationship was either possible or probable. Secondary entitlement is granted.

4. Entitlement to CPD

I find entitlement to CPD is in order. Policy 15-04-03 outlines the five pre-requisite criteria. They are:

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.

In denying CPD, the CM noted there was no entitlement to the left shoulder as well as other areas of injury being claimed (the neck, back, and right wrist). The CM also found the pain complaints were consistent with the organic findings.

There is no dispute the worker had a work-related injury, meeting the first criterion.

The second criterion requires subjective or objective medical or non-medical evidence of the worker's continuous, consistent, and genuine pain. In addition, a medical opinion is required, which concludes the characteristics of the worker's pain (except its persistence and/or its severity) are compatible with the injury and resulted from the injury. In this regard, I first note that I have accepted entitlement to the left shoulder. Although whether the worker’s reported neck and back symptoms were the result of a specific secondary condition/diagnosis is not an issue before me, I note medical evidence on file concluded the pain symptoms were related to the compensable shoulder impairment. Specifically, I note reports from the specialty clinic dated September 24, 2020 and February 25, 2021. They concluded the worker had a component of right-sided cervicothoracic / cervicogenic myofascial pain that was consistent with a chronic pain syndrome. Given the medical evidence and the statements provided by the worker throughout the claim file as well as during his testimony at the hearing, I find the requirements of the second criterion have been met.

The third criterion requires a medical opinion regarding the usual healing time of the injury, the worker's pre-accident health status, and the treatments received. In addition, the evidence must support the worker’s pain was 6 or more months beyond the usual healing time for the injury. In this case, the operating area granted a permanent impairment for the right shoulder. This supports the worker’s pain persisted beyond the usual healing time. The medical evidence on file also supports this conclusion. For example, the worker’s ongoing pain complaints were highlighted in specialty clinic reports dated June 6 and August 13, 2019. I also note the CPP disability application completed by the family doctor on August 27, 2019.

The fourth criterion requires a medical opinion which indicates the inconsistency between the degree of pain and the organic findings. In this regard I note the March 14, 2019 specialty clinic report which indicated the worker’s significant pain presentation and subjective symptoms were inconsistent with the objective findings. I recognize the MRI in September of 2019 and subsequent medical reports confirmed the failed surgery and new right shoulder tear. However, the specialty clinic found the new evidence did not negate entitlement to a chronic pain condition. For example, the February 25, 2021 report noted the previous surgery was unsuccessful but concluded the worker still had myofascial pain that was consistent with CPD. In summary, I find the medical evidence supports the organic findings, including the failed surgery, were not consistent with the degree of the worker’s pain.

The final criterion requires subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption. The medical evidence on file, in particular the reports from the treating psychologist, as well as statements provided by the worker in the claim file and in his testimony at the hearing support this criterion has been met. For example:

• A May 15, 2019 report note from the family doctor indicated the worker’s chronic pain was affecting his mood and mental health.
• The July 17, 2019 CPP application (completed by the worker) and August 27, 2019 application (completed by the family doctor) spoke to the impact the worker’s chronic pain had on his life. This included an impacted sleep, stress, depression, and concentration difficulties.
• A psychologist’s September 17, 2019 report found the worker’s functioning in all important areas of living was affected. This prevented him from working. This view was supported by a pain clinic as outlined in their March 3, 2020 report.
• In September of 2020 the worker’s driver’s license was suspended due to his chronic pain.
• A November 19, 2020 report from the family doctor concluded the worker’s psychological condition and chronic pain rendered him totally impaired and incapable of employment or retraining.

In summary, I find the 5 required criteria to grant CPD under policy 15-04-03 have been met. I also find the worker achieved maximum medical recovery (MMR) on February 25, 2021 (the date of the specialty clinic assessment) and a residual impairment is evident. The worker is entitled to a NEL referral accordingly.

It is also my view, based on the preponderance of medical evidence on file, that the worker’s condition prevented him from working in any capacity. I place weight on the opinions from the family doctor, treating psychologist, as well as pain clinic. All concluded he was unable to work or be retrained.

Policy 18-03-02 states full LOE benefits are in order if the nature or seriousness of an injury/disease completely prevents a worker from returning to any type of work. I find that to be the case here. The worker is entitled to full LOE benefits (offset by his CPP award) accordingly. My decision does not preclude material change reviews or a final review in August of 2024.

5. Entitlement to a psychotraumatic disability

Given entitlement has been granted to CPD, the worker is not entitled to a psychotraumatic disability.

6. The SO of Accounting Technicians and Bookkeepers

Given my view that the worker was totally impaired, the SO was not suitable.

7. The reduction of LOE benefits by the wage in the SO effective December 18, 2020

Given my view that the worker was totally impaired, he is entitled to full LOE benefits (offset by his CPP award).

CONCLUSION

As outlined in the above decision I conclude:

1. The job duties offered by the employer were not suitable.
2. The worker is entitled to full LOE benefits from March 11 to October 23, 2019 less his earnings on April 15, 2019.
3. Secondary entitlement to the left shoulder is granted.
4. Entitlement to CPD and a NEL review is granted.
5. Entitlement to a psychotraumatic disability is denied.
6. The SO was not suitable as the worker was totally impaired due to his CPD.
7. The worker is entitled to full LOE benefits from December 18, 2020 less his CPP award (effective March 11, 2021).

The worker’s objection is allowed in part.

DATED September 5, 2023

S. Vagadia Appeals Resolution Officer Appeals Services Division