WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 374/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 374/16 BEFORE: V. Marafioti: Vice-Chair HEARING: February 9, 2016 at Toronto Oral DATE OF DECISION: April 1, 2016 NEUTRAL CITATION: 2016 ONWSIAT 863 DECISION(S) UNDER APPEAL: WSIB ARO decision dated September 18, 2013 APPEARANCES: For the worker: For the employer: Interpreter: J. Bartolomeo, Lawyer Did not participate Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 374/16 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer ( ARO ) A. Rivet dated September 18, That decision concluded that the worker was entitled to partial Loss of Earnings ( LOE ) benefits from November 12, 2001 to September 28, The ARO also concluded that the worker was entitled to full LOE from September 29, 2006 to November 30, The worker s objections were therefore allowed in part. [2] The worker attended and provided testimony. Mr. Bartolomeo provided submissions. (ii) Background [3] The ARO succinctly set out the background facts of this case. I have reviewed the entirety of the documentary record and the following background facts are summarized and briefly noted. [4] On November 1, 2000 the worker sustained a crush injury to the left foot. A permanent impairment was recognized for this injury by the Workplace Safety and Insurance Board ( WSIB or the Board ). The worker subsequently developed chronic lower back pain that was eventually allowed by the WSIB in A permanent impairment for the lower back was also recognized. The worker developed psychological issues as well and was also granted psychotraumatic disability entitlement by the WSIB. [5] The worker was granted a 5% Non-Economic Loss ( NEL ) award on March 11, 2002 for the left foot. In 2007 the NEL was increased recognizing the lower back condition and in August 2007 the NEL was again increased due to the worsening of the left foot. In September 2007 the worker s NEL was increased encompassing the left foot, right knee and lower back. On March 17, 2009 the worker s NEL was increased to 43% with the recognition of his psychotraumatic disability. [6] Immediately following the injury the worker returned to work for the employer on November 2, 2000 until he was terminated by the employer in November The worker was granted full Loss of Earnings ( LOE ) benefits from November 13, 2000 to November 11, [7] The worker was granted partial LOE benefits from November 12, 2001 to November The WSIB Case Manager determined that the worker had been partially disabled during this period and capable of performing a job in elemental occupations NOC 2214 at minimum wages. In 2006 the worker was deemed unemployable. The worker claimed total disability for the period in question and objected to the payment of partial LOE benefits. The ARO in a decision of September 18, 2013 concluded that partial LOE benefits were confirmed from November 12, 2001 to September 28, The ARO concluded that the worker was entitled to full LOE from September 29, 2006 to November 30, The worker s objections were allowed in part. (iii) The issue [8] I must determine whether the worker is entitled to full Loss of Earnings ( LOE ) benefits from November 12, 2001 to September 28, 2006, the lock-in point.

3 Page: 2 Decision No. 374/16 (iv) Law and Board policy [9] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (the WSIA ) took effect. Pursuant to section 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies as applicable to this appeal. The Legal Services Division of the Board confirmed that the following packages, Revision No. 9, would apply to the subject matter of this appeal. Package No. 73 Worker s Co-operation, Obligations-decisions prior to February 15, 2013 Package No. 233 LOE Benefits decision prior to July 1, 2007 Package No. 300 Decision Making/Benefit of Doubt/Merits and Justice [10] The policies will not be duplicated here for practical reasons. I have considered the policies in the context of the legislation in arriving at my decision. As the accident occurred in the year 2000 the Workplace Safety and Insurance Act, 1997 (the WSIA ) applies. In particular I note section 43 of the Act which states the following: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. (v) The Vice-Chair s findings and conclusions [11] I begin my analysis of the issue under appeal by noting that I have considered the totality of the evidence before me, including the documentary record, the worker s testimony and the submissions from Mr. Bartolomeo. I have also considered the applicable law and Board policy in finding, on a balance of probabilities, that the worker is entitled to full loss of earning benefits from November 12, 2001 to September 28, 2006 for the reasons that follow. [12] Full LOE are paid when an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered, but the worker has made reasonable efforts of co-operation with the WSIB or has engaged in other activities such as active health care treatment reasonably aimed at improving employability and minimizing the LOE. [13] I consider the worker to be a credible reliable witness whose testimony was given in a straightforward manner without exaggeration and which was collaborated by the documentary evidence.

4 Page: 3 Decision No. 374/16 (vi) The worker s position [14] I have considered the testimony from the worker and the submissions from Mr. Bartolomeo and I summarize the worker s position as follows. [15] The worker s position is that the WSIB failed to properly adjudicate this claim for the period in question. The worker indicated that there was no way he could return to work as a machinist after his accident and his medical condition limited his ability to return to competitive employment. Mr. Bartolomeo submitted that the Board failed to recognize that the worker was competitively unemployable ; a concept not recognized in WSIB policy but recognized in Tribunal decisions. It is the worker s position that he was unable to obtain and perform suitable work because of his compensable injury. [16] Mr. Bartolomeo submitted that it is clear from the medical evidence and testimony from the worker that he was not able to return to work. Mr. Bartolomeo also referenced Decision No. 2342/06 in support of his position. [17] I have considered the decision which dealt with loss of earnings and employability. On review of all of the evidence, I find that the worker was unable to continue to work his preaccident work as a labourer. I find that he was competitively unemployable and entitled to full LOE benefits during the period in question. [18] Although not addressed in the Act or Board policy, Decision No. 2342/06 states that the concept of competitively unemployable arises out of Tribunal Case Law as a consideration of the cumulative effect of medical, psychosocial, and employment factors related to the workplace injury that would reasonably impact a worker s ability to obtain and sustain suitable employment. In one respect, the concept widens the prospect of the worker s ability to establish unemployability beyond strict medical grounds. Yet, the concept also requires that the cumulative effect of the factors considered achieve the same result as a finding of total medical disability that is unemployability arising from the injury (see Decision Nos. 114/06, 2150/05 and 2380/05). (vii) The medical evidence [19] Although I have reviewed and considered all of the medical evidence, I found the following to be most relevant. [20] This claim was originally established when the worker suffered a crush injury to the left foot. MMR was achieved in 2001 for the left foot injury and a permanent impairment (NEL) award was initially allowed at 5%. As noted above, there were further NEL assessments and awards. I note that the worker has gone through several doctors assessments and treatments with work-hardening with no success. [21] The worker was seen by Dr. R. Johnston, psychiatrist, who reported on December 9, 2004 to Dr. M. Manjos, the worker s family physician, indicating that the worker was having an adjustment disorder with mixed disturbance of emotions and conduct. The doctor indicated that he never had any success treating this type of condition and considered that the long-term outlook for a productive and independent adjustment was poor. The worker was also seen by Dr. R. McMillan, Physical Medicine and Rehabilitation Specialist, who reported to Dr. Manjos on May 21, 2005 that the worker was disabled due to his pain symptoms. He indicated that the worker s ambulation and back pain would benefit from the use of a single point

5 Page: 4 Decision No. 374/16 cane. It was noted that the worker did not receive any significant improvement from the back injection and the doctor did not see that continuing with the injections would be beneficial. I note that the worker s family physician Dr. Manjos reported on October 13, 2004 that the worker s low back condition was directly related to his foot injury. Dr. Manjos concluded that the worker s antalgic gait was caused by his crush injury which in turn caused him to walk abnormally resulting in back pain. [22] The worker was also assessed by Dr. A. Ghouse, physiatrist, for an independent medical examination and a report was filed dated May 14, Dr. Ghouse indicated that the worker would have multiple limitations. The limitation would be permanent as the worker s condition has not changed over the last several years. The worker would be limited in undertaking activities that are required for long standing, prolonged walking or climbing. The worker would also be unable to undertake any activities that require balance or use of chairs or working near moving machinery or automobiles. The worker was also limited in undertaking activities that require squatting, kneeling and the multiple limitations were considered permanent in nature. [23] As noted above the worker was initially granted 5% for his crush injury, subsequent entitlements including low back in 2007 and psychiatrist entitlement as well. I note that the total NEL award for the worker is 43% which is a significant award. (viii) The LMR plan [24] In addition to the medical evidence I also note the LMR plan proposal. In arriving at the LMR plan, an assessment was carried out. The report from Cascade Disability Management dated July 19, 2007 concluded that no services were warranted for the worker. The conclusion was based considering the worker s significant compensable medical issues and current level of physical and psychological functioning. The worker s physical impairments were considered permanent and improvement was not expected. A Suitable Employment or Business ( SEB ) that met the required criteria of being safe, within the worker s functional abilities, within the worker s aptitudes and current or potential range of skills, and mitigated the pre-injury wage, was not considered realistically achievable given the outcome of the assessment of the worker s functioning and numerous physical and psychological barriers. The worker s multiple barriers, according to the assessment, could not be overcome to a level which enabled the worker to be competitively employable for the majority of positions within any SEB on a full or part-time basis in the labour market. [25] I note that the worker s work history as a machinist reflects a consistent employment pattern prior to his compensable injury. Following the accident, the worker required the use of a cane as his mobility was significantly impaired. His pain levels were reported to be very high and he experienced psychological impairment as noted in the medical evidence above. As the worker s work history involved physical work, the worker expressed concern about being able to return to work given his physical and psychological difficulties. The worker complained of a chronic pain condition with psychological symptoms that would be a barrier to his employability. The worker had multiple restrictions of a permanent nature and his chronic pain was also associated with major depressive disorder and associated anxiety disorder. The psychosocial stressors were considered severe from a loss of independence, financial problems and chronic pain. It was indicated in the LMR proposal and plan that the worker had been disabled for several years, and was unable to work in any capacity due to his chronic pain.

6 Page: 5 Decision No. 374/16 [26] I am satisfied that the worker s pain intensified despite treatment and left him with a very restrictive lifestyle. I am satisfied, in summary, that the worker was considered to have significant barriers to any Labour Market Re-entry considering his chronic pain and psychological stressors. The LMR report indicated that the worker was not malingering and that the worker s good work history was supportive of concluding that the worker would be working if he were able to do so. (ix) Conclusions [27] After reviewing all of the evidence in this case and considering the testimony and submissions, I find that the worker was competitively unemployable during the period in question because of his compensable injuries both physically and psychologically. The worker s employment history essentially consisted of working as a CNC setup operator and performing machining positions. His pre-injury work was no longer suitable given his medical condition. The worker has been seen by a variety of doctors during the period in question including Dr. Samways, who diagnosed the worker with chronic pain in 2004 and recommended that the worker be seen by a pain specialist as well as be treated for depression. The worker was seen by psychologist Dr. Johnson in December 2004 and also by the other doctors, as noted above, indicating both physical and psychological problems. [28] In summary, I find that the worker was unable to work from November 12, 2001 to September 28, 2006 due to his compensable conditions, both the compensable physical and psychological conditions. Based on his prior work history, his education, medical restrictions, both physically and psychologically, and subsequent NEL awards, I find that the worker was unable to work during the period in question. In my view, it would be very unlikely that the worker would attract any serious interest by prospective employers in the competitive labour market given his multiple restrictions. The worker is therefore entitled to full LOE benefits for the period in question. I found that he did cooperate with all aspects of his return to work obligations. He had legitimate reason for not being able to return to work and he was essentially unemployable during the period in question.

7 Page: 6 Decision No. 374/16 DISPOSITION [29] The worker s appeal is granted. The worker has full Loss of Earnings benefits from November 12, 2001 to September 28, DATED: April 1, 2016 SIGNED: V. Marafioti