APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230094
OBJECTING PARTY: Worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: Employer, not participating
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: VIDEOCONFERENCE – May 17, 2023
HEARD by: Stephanie Waters, Appeals Resolution Officer
ISSUES
The worker objects to the following Case Manager (CM) decisions:
- The March 4, 2022 decision that determined:
a. The worker was fit to perform the job duties of dump truck driver as a suitable occupation (SO) on a full-time basis.
b. From January 1, 2018 to January 21, 2018 inclusive, the worker would receive partial loss of earnings (LOE) benefits based on actual earnings.
c. From January 22, 2018 to May 16, 2018 inclusive, the worker would receive partial LOE benefits based on his ability to earn median SO wages (xx per hour), 40 hours per week, because he was voluntarily underemployed.
d. Effective May 17, 2018, the worker’s partial LOE benefits would be locked in to age 65 based on experienced SO wages (yy per hour), 40 hours per week, because he was voluntarily underemployed.
- The March 20, 2023 decision denying entitlement for psychological treatment because objective medical findings did not support the worker was below his Non-Economic Loss (NEL) level for chronic pain disability (CPD).
BACKGROUND
The worker’s date of hire was November 18, 2004. On May 17, 2012 while working as a roll-off truck driver, this now 41-year-old worker injured his lower back performing his regular duties. The worker originally received entitlement for a lower back strain and returned to modified duties with the employer. The worker requested a particular route that the employer did not grant in November 2012, and the employer terminated the worker in March 2013. The worker found new employment at car dealerships as a shuttle driver/car jockey from February 2014 until he moved and began work as a dump truck driver in May 2017. The worker performed this job until he quit on September 7, 2018.
On September 6, 2017, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) granted entitlement for CPD and a NEL determination for the same. The worker received a 15% NEL benefit for his CPD condition in July 2018. In a decision of November 26, 2018, the CM denied entitlement for a recurrence of the worker’s compensable injuries on September 7, 2018.
On August 18, 2021, the WSIAT granted entitlement to partial LOE benefits from February 2014 to January 1, 2018 based on the worker’s actual earnings for this period. The WSIAT did not rule on LOE benefits beyond this period.
In a letter of March 4, 2022, the CM determined the worker was fit to perform the job duties of dump truck driver on a full-time basis. For the period of January 1, 2018 to January 21, 2018 inclusive, the CM extended the partial LOE benefit based on actual earnings as supported by the WSIAT decision. For the period of January 22, 2018 to May 16, 2018 inclusive, the CM determined the worker was voluntarily underemployed and paid partial LOE benefits based on the worker’s ability to earn median wages ($xx per hour), 40 hours per week, in the SO of dump truck driver. Effective May 17, 2018, the CM locked in the worker’s partial LOE benefits based on experienced SO wages ($xx per hour), 40 hours per week, because the worker was voluntarily underemployed.
The worker’s representative objected to this decision and submitted an Appeal Readiness Form as well as other documents to support their appeal. This included a report from a psychologist dated November 20, 2022. The psychologist opined the worker could not return to his pre-injury job of truck driving and recommended psychological counselling as well as an interdisciplinary pain rehabilitation program.
On February 13, 2023, the CM confirmed their decisions made in the March 4, 2022 letter. In another letter of March 20, 2023, the CM denied entitlement for psychological treatment because objective medical findings did not support the worker was below his NEL level for his CPD condition. The worker’s representative submitted another Appeal Readiness Form to object to this decision.
AUTHORITY
Operational Policy Manual
Published
17-01-02 Entitlement to Health Care 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 18-03-06 Final LOE Benefit Review 19-02-10 RTW Assessments and Plans
January 3, 2023 September 1, 2021 April 9, 2021 November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:
The worker is entitled to treatment with an interdisciplinary pain rehabilitation program.
The SO of dump truck driver is not suitable or sustainable for the worker’s functional restrictions and compensable impairment.
Since I determined the dump truck driver occupation is not suitable, I will return the file to the operating area to determine a suitable occupation in terms of the worker’s transferable skills, functional abilities, earning potential, and work availability. I request the operating area then determine entitlement to LOE benefits from January 1, 2018 up to and including a final LOE benefit lock-in to age 65 while considering the newly identified SO in a new written decision.
The worker’s appeal is allowed in part.
Worker’s Oral Testimony
The worker began working with the employer as a truck driver when he was 21 years old. Before this, the worker performed various jobs as a grocery clerk, painter, machine shop worker, and car jockey. After his injury, the worker did light duties with the employer including clerk work, filing, and picking up garbage with a grabber until the employer terminated him in March 2013. The worker felt unable to start a new job doing his pre-injury work because he was unable to do physical labour or prolonged sitting, which would cause sharp throbbing pain in his lower back.
The worker started as a shuttle driver/car jockey with XXX in 2014 until March 2015. He worked Monday to Friday approximately 7:30am to 5pm daily. The worker was “up and down” and did not have to do any prolonged sitting. He sat for 3-4 hours maximum per shift driving 5-30 minutes at a time. The worker left this position because they kept giving him more work but no opportunity for advancement.
The worker briefly worked as a lot clerk with YYY after March 2015, moving cars and cleaning the lot. He worked Monday to Friday and similar hours to his job at XXX. The worker only sat for a maximum of two hours throughout each shift with no prolonged sitting. He did not have problems with his back during this time. However, YYY asked him to perform physical labour clearing snow at the beginning of winter that the worker was unable to do as a result of his back pain so he left.
The worker began as a car jockey/porter with ZZZ from approximately November 2015 until he moved to City A in February 2017. The worker sat for up to two hours per shift on a non-constant basis as he moved cars around the lot. He had a similar schedule as his work with XXX and YYY, and earned about $xx.00 per hour. He left this position because there was no opportunity for advancement and he lost his house following his injury.
The worker began as a dump truck driver with Company B on May 1, 2017. The worker was scheduled five days per week and anywhere from 4-12 hours per day depending on the weather and work to be done. The worker explained the dump truck season usually ran from May to December each year followed by a seasonal layoff. He added that there is never dump truck driving work between March and May because the ground is too moist and soft. There was also no work during or immediately after heavy rain when the ground was too muddy. The worker testified he was unaware of these aspects of the work before he started the position and learned about them while in the role. He began this role earning $xx.00 per hour, which increased to $xx.00 per hour by the end of 2018.
From May 2017 until July 2018, the company had a contract bringing asphalt for highway paving. The worker was able to tolerate this work because it was smoother driving on pavement and he was often waiting to drop off the asphalt, allowing him to get out of the truck and take occasional stretch breaks. Despite this, the worker testified he still had back pain from sitting while driving and he called into work sick approximately once per week due to this pain during the entire period he worked as a dump truck driver.
From January to April 2018, the company was able to offer the drivers part-time work, working one week and off the next. The worker collected Employment Insurance (EI) benefits for his weeks off. The worker stated being off work every second week helped some of his back pain but by Wednesday of his scheduled weeks working his back pain would return and worsen. The worker continued to lose time from work approximately once per week due to back pain during this time. The worker resumed full-time hours in May 2018.
As of July 2018, the company had a new contract driving materials for a quarry. The quarry was open from about 7am to 5pm daily and the worker would drive the dump truck to and from the quarry during this time, five days per week. The worker stated he drove for 10 hours straight each day due to time constraints with the dump trucks in a row waiting for their turn. The worker could take a washroom break if necessary but did not have scheduled breaks and would eat in the truck. The worker described very prolonged sitting while driving and waiting as well as constant bouncing from driving over dirt and potholes at the quarry. The company gave him a good seat in the truck that helped initially, but it was not enough to help with his pain from the bouncing at the quarry. The worker described sharp, throbbing back pain and difficulty getting in and out of the truck as a result.
The worker quit the dump truck driving position in September 2018 because he could not take the pain anymore and he was told WSIB would re-train him. The worker testified that he would have tried to finish the season (until December 2018) but would have quit the dump truck role even if he was not told he would be re-trained due to the pain the work caused. When training did not occur, the worker prepared submarine sandwiches at a shop earning minimum wage from November 2018 until COVID closed the shop in March 2020. The worker then earned $xx.00 per hour as a cook in seasonal restaurants from June to September in 2021 and 2022.
The worker stated he talked to others in the trucking industry but he was unable to find any lighter truck work in his area. The worker stated that current trucking work required sitting all day driving and/or physical labour. The worker did not apply to these positions because he felt unable to do prolonged sitting or physical work due to his back pain and restrictions. The worker testified he does not feel able to return to dump truck or other truck driving even at limited hours as he gets older and his pain worsens. When asked, the worker confirmed he would consider returning to a car jockey position in future since there are car dealerships in City B near him. However, currently he may have a job opportunity in a kitchen to start in September 2023. The worker also confirmed he has not received any psychological or pain management treatment for his CPD because he cannot afford it, but believes it could be beneficial.
Worker’s Position
The worker’s representative stated the following positions and arguments:
The LOE lock-in should occur two years after the WSIAT granted a NEL for CPD rather than on May 17, 2018.
The worker should receive LOE benefits based on his actual earnings up to the lock-in date.
The worker’s LOE benefits should be locked in based on his ability to earn minimum wage at 40 hours per week. The worker’s representative argued medical reports and the 2021 WSIAT decision support the worker was unable to sustain work as a dump truck driver due to his CPD and limited sitting restrictions. The representative added there was no vocational assessment or occupational study to determine if the dump truck position was occupationally viable for the worker’s limitations. Lastly, the representative noted the worker was not making $xx.00 to $xx.00 per hour as a dump truck driver due to seasonal layoffs, weather, and time off due to his back pain.
The worker should receive assistance with psychological treatment since multiple medical reports recommend it but the worker never received treatment for his CPD.
Employer’s Position
During a telephone conversation on February 14, 2023, the employer’s representative confirmed they did not intend to participate in the worker’s appeal.
Assessment of Entitlement
1. The worker is entitled to treatment with an interdisciplinary pain rehabilitation program.
The worker’s representative argued the worker should receive treatment for his CPD because multiple medical reports recommend it but the worker never received any psychological or pain management treatment. Information on file supports this position. I find the worker is entitled to treatment with an interdisciplinary pain program since multiple medical opinions on file supports the benefits of this treatment for his CPD.
Policy 17-01-02 (Entitlement to Health Care) states that a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.
In a report of July 14, 2014, an orthopaedic surgeon diagnosed the worker with chronic pain disorder and stated specific treatments for chronic pain are essential. On October 15, 2014, a psychologist stated the worker would benefit from an interdisciplinary pain rehabilitation program to assist with his ongoing difficulties coping with pain and emotional factors influencing his pain experience. On February 13, 2018, a psychologist indicated the worker’s chronic pain and physical limitations were barriers for recovery. They stated the worker may benefit from cognitive behavioural interventions to increase his adaptive coping, anger management, and pain management. The October 2014 psychologist assessed the worker again and provided an updated report on November 20, 2022 indicating the following:
[The worker] has continued to struggle with ongoing chronic pain symptomatology and significant emotional adjustment symptomatology. These conditions have, in my view, become magnified and unduly prolonged in the absence of meaningful intervention… He has undergone numerous mental health assessments, but, from what I can gather, he has had no meaningful mental health treatment.
When reviewing various mental health reports on file, I do have somewhat of a concern of [the worker’s] apparent tendency to dismiss or deny his own mental health concerns, and this potentially leading potentially [sic] to a lack of urgency regarding required interventions… It is my view that [the worker] would have benefited more from an approach in which necessary treatment was arranged on his behalf…
He requires… enrolment in an accredited interdisciplinary pain rehabilitation program… [to] assist him with pain coping techniques, functional restoration, and trying to optimize his ability to seek meaningful employment whether it be sustaining his current employment, seeking alternative employment or considering retraining.
I acknowledge various medical reports also recommend psychological treatment for adjustment disorder, for which the worker does not have entitlement in the claim. However, I am satisfied the medical evidence on file clearly demonstrates that multiple medical professionals completed in-person assessments and interviews with the worker and concluded an interdisciplinary pain program and pain management treatment was necessary, appropriate and sufficient specifically for the worker’s CPD.
The worker testified he has not received any psychological or pain management treatment because he cannot afford it. The worker also stated he believes this treatment could be beneficial and indicated his pain is getting worse over time. Although entitlement to a deterioration is not before me, I note the worker has not had the benefit of a pain program in the past despite the WSIAT accepting his CPD as compensable and medical reports recommending a pain program for the worker’s CPD from 2014 to 2022. As a result, I find the worker is entitled to treatment with an interdisciplinary pain rehabilitation program to provide pain coping methods and assist with the worker’s ongoing return to work efforts.
2. The SO of dump truck driver is not suitable or sustainable for the worker’s functional restrictions and compensable impairment.
The worker’s representative argued the position of dump truck driver was not suitable for the worker’s CPD and sitting restrictions, and asked that the worker receive LOE benefits based on his ability to earn minimum wage at 40 hours per week. I agree that dump truck driver is not a suitable occupation for the worker’s functional abilities, and that the worker is capable of working 40 hours per week, though I am unable to rule on LOE benefits at this time for the reasons I will discuss within my analysis.
The position of dump truck driver is not suitable.
Policy 19-02-10 (RTW Assessments and Plans) defines a suitable occupation (SO) as a category of jobs suited to a worker's transferable skills that are:
- safe,
- consistent with the worker’s functional abilities,
- restores the worker’s pre-injury earnings to the extent possible, and
- available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
I find the role of dump truck driver is not suitable specifically because medical evidence, findings of fact from the WSIAT, and the worker’s testimony demonstrate the position is not consistent with the worker’s functional abilities.
On October 15, 2014, a psychologist concluded a sedentary, clerical position would be more appropriate for the worker than his pre-injury truck driving work due to his CPD and psychological factors exacerbating and maintaining his pain complaints. Following an assessment on December 8, 2017, a psychiatrist noted the worker was working full-time as a truck driver and his only limitation was chronic pain. Similarly, following an assessment on February 5, 2018, a psychologist documented that the worker reported pain as a major barrier to his employment as a dump truck driver. The worker stated he called in sick or left work early some days because he could no longer manage the pain. The psychologist identified the worker’s chronic pain and physical limitations as a barrier for recovery and negative indicator for return to work.
The worker participated in a Functional Capacity Evaluation (FCE) on October 17 and 18, 2018. The physiotherapist noted the worker limited some activities prior to objective signs of maximal performance due to reports of sharp lower back pain. However, the physiotherapist indicated the worker’s perceived abilities were consistent with his objectively identified functional abilities during the evaluation, and the worker’s functional limitations were consistent with his physical impairments and diagnosis. The physiotherapist identified the following abilities and limitations:
- Able to perform sitting, standing, and walking to an occasional basis
- Requires changes of position on an occasional basis with no periods of prolonged positions o Demonstrated ability to sit up to 20 minutes and stand up to 24 minutes
- Able to perform overhead work and forward bending on a rare basis
- Able to perform load handling within a sedentary physical demand level
- Able to perform fingering and handling on a frequent basis, self-paced, not dictated by time.
Within the FCE report, the physiotherapist documented that the worker reported not being able to tolerate prolonged sitting while driving or driving over uneven ground. The physiotherapist concluded the worker would be able to work eight hours per day, five days per week, in a sedentary category of work.
A psychiatrist provided a response to questions from the worker’s representative on May 31, 2019. The worker’s representative asked if the worker’s current work restrictions would cause him difficulty as a truck driver. The psychiatrist concluded the worker would not have difficulty as a truck driver from a psychiatric perspective but may have difficulty due to his back pain.
In a follow-up report of November 20, 2022, a psychologist noted the worker described dump truck driving as less physically demanding than his pre-injury work, but the pain with sitting in the truck in addition to bouncing around in the vehicle was too much. The psychologist determined the worker was unable to return to his pre-injury position of truck driving, and documented the worker was unable to sustain work as a dump truck driver, due to his persistent pain levels and psychological conditions.
The worker’s representative also referenced findings of fact made by the WSIAT in their August 18, 2021 decision to support their argument that the dump truck role was not suitable. Although the decision is on file in its entirety, I will summarize a few of these relevant findings:
The worker returned to dump truck driving in 2017 but experienced worsening low back pain. The worker testified that he missed days from work because of pain. He also relied to a certain degree on the seasonal downturns in the dump truck job during which he worked fewer days and could better control the attendant low back pain experienced (para. 56).
Under financial pressure, he returned to the more lucrative job of dump truck driving but found this increased his back pain symptoms… He reported ongoing symptoms of interrupted sleep, morning soreness and stiffness in his back and constant pain varying in intensity and aggravating factors of prolonged sitting, driving over rough terrain and prolonged standing (para. 58).
For the period of February 2014 to January 1, 2018… the Panel accepts that the worker was not underemployed but rather, was limited in the types of positions he could maintain as a result of his compensable injuries and limited recent transferable skills (para. 60).
During the hearing, the worker stated he talked to others in the trucking industry and learned that all current trucking work required sitting all day and/or physical labour. The worker testified that he felt unable to work as a dump truck driver, even at limited hours, due to his back pain limiting his ability to sit for prolonged periods or perform physical tasks. The worker explained he was initially able to tolerate the dump truck work because he was driving over smoother pavement, he could get out of the truck for occasional stretch breaks, he had a good seat in the truck, and he worked variable hours from 4-12 hours daily. The worker also stated the seasonal layoff period temporarily helped with his back pain during the weeks he was off work.
However, the worker testified the prolonged sitting and bouncing while driving caused ongoing and worsening back pain over time and resulted in him calling in sick to work approximately once per week. He indicated the driving to and from a quarry caused even more back pain since he drove over uneven dirt and potholes and sat while driving approximately 10 hours straight without an opportunity for stretch breaks or positional changes.
I accept the worker’s testimony regarding the nature of working as a dump truck driver including the prolonged sitting, driving over uneven ground, and limited opportunities for positional changes or stretch breaks. The worker’s testimony is consistent with other information available on file regarding this type of occupation provided to the operating area, medical professionals, and the WSIAT. I also accept the worker’s testimony regarding his limitations due to his lower back injury and CPD as well as the impact dump truck work had on his functioning and pain levels. Medical reports on file consistently support the worker’s compensable conditions prevent him from performing physical work beyond the sedentary physical demand level or any prolonged positioning including sitting, and lead to a requirement for positional changes to manage his pain. The October 2018 FCE also identified an intolerance for driving over uneven ground.
I considered the fact that the worker remained employed as a dump truck driver from May 2017 until early September 2018. I do not find this means the role of dump truck driver is suitable. Instead, I am satisfied that evidence on file including the worker’s testimony establishes the worker was having ongoing and increasing difficulty sustaining his work in this position. I find evidence supports the worker attempted to maintain this work for financial reasons but was only able to continue the job for a limited period due to accommodations from the company (a good seat) and time off work resulting from variable hours, seasonal shortages of work, and calling in sick approximately once per week. This aligns with the WSIAT’s findings in their August 2021 decision.
Based on medical evidence, the WSIAT’s findings of fact, and the worker’s testimony, I find the occupation of dump truck driving is not consistent with the worker’s functional abilities and is therefore not suitable or sustainable.
The worker is capable of working 40 hours per week.
The worker’s representative argued the worker should receive LOE benefits based on his ability to work 40 hours per week. I find information on file supports the worker is employable at 40 hours per week.
The worker testified he worked five days per week at 4-12 hours per day as a dump truck driver from May 2017 to July 2018, and five days per week, 10 hours per day, from July to September 2018. Although the worker had difficulties maintaining this work and called in sick weekly, the worker indicated this resulted from the type of work he was doing as a dump truck driver including prolonged sitting and driving over uneven ground. The worker has demonstrated his ability to sustain full-time employment as a car jockey at three dealerships between 2014 and 2017, and working in the food service industry after he quit dump truck driving in fall 2018. The physiotherapist also concluded the worker could work eight hours per day, five days per week, when working within his abilities based on the worker’s overall performance during the FCE in October 2018. For these reasons, I find the worker has demonstrated his ability to sustain full-time employment despite his compensable conditions and medical evidence supports this.
I return the issues of identifying a new SO and subsequent LOE benefits to the operating area.
I agree with the worker representative’s position that the dump truck driver position is not suitable and the worker is employable at 40 hours per week. With that said, there is not enough information on file for me to confirm another SO. Without identifying a SO, I am unable to fairly and appropriately review the worker’s LOE benefits from January 1, 2018 up to and including the lock-in of benefits under Policy 18-03-02 (Payment and Reviewing LOE Benefits) and Policy 18-03-06 (Final LOE Benefit Review).
The worker did not provide any testimony indicating the car jockey position was unsuitable for his functional abilities or transferable skills. Within their August 2021 decision, the WSIAT similarly noted, “As a car jockey, the worker testified he could continue to use his driving skills but for limited periods of time, which was more tolerable as a result of his compensable lower back pain” (para. 61). However, there is no updated wage or availability information regarding car jockey work in 2018 for me to confirm this position meets the definition of a SO provided in Policy 19-02-10 (RTW Assessments and Plans).
Additionally, I note the worker testified he made approximately $xx.xx per hour as a car jockey before starting as a dump truck driver in 2017. By comparison, the Employer’s Report of Injury/Disease (Form 7) indicates the worker made $xx.xx per hour when his injury occurred. I am mindful that Policy 19-02-10’s definition of a SO includes an elimination of a wage loss to the extent possible. However, the information on file and lack of a work transition consultation makes it unclear whether there is a more suitable job than the car jockey position for the worker’s transferable skills, functional abilities, and earning potential.
For these reasons, I will return the file to the operating area to determine a suitable occupation in terms of the worker’s transferable skills, functional abilities, earning potential, and work availability. I request the operating area then determine entitlement to LOE benefits from January 1, 2018 up to and including a final LOE benefit lock-in to age 65 while considering the newly identified SO in a new written decision.
CONCLUSION
I find:
The worker is entitled to treatment with an interdisciplinary pain rehabilitation program.
The SO of dump truck driver is not suitable or sustainable for the worker’s functional restrictions and compensable impairment.
Since I determined the dump truck driver occupation is not suitable, I will return the file to the operating area to determine a suitable occupation in terms of the worker’s transferable skills, functional abilities, earning potential, and work availability. I request the operating area then determine entitlement to LOE benefits from January 1, 2018 up to and including a final LOE benefit lock-in to age 65 while considering the newly identified SO in a new written decision.
The worker’s appeal is allowed in part.
DATED June 1, 2023
Stephanie Waters Appeals Resolution Officer Appeals Services Division