WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2399/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2399/16 BEFORE: D. McBey: Vice-Chair HEARING: September 20, 2016 at Toronto Written DATE OF DECISION: October 20, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2866 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated June 3, 2015 APPEARANCES: For the worker: For the employer: Interpreter: A. Tidbury, Paralegal D. Doran, Paralegal 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. 2399/16 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated June 3, 2015, which concluded that the worker was not entitled to loss of earnings (LOE) benefits from February 6, 2013 to February 25, The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issue [2] The sole issue under appeal is whether the worker is entitled to LOE benefits from February 6, 2013 to February 25, 2013 arising from injuries sustained on November 22, (iii) Background [3] The now 52-year-old worker started as a police constable with the accident employer in She sustained a compensable right shoulder injury on March 8, 1998 for which she was awarded a 5% non-economic loss (NEL) award under a prior claim. She has been performing permanently modified work duties as a Differential Response Officer (DRO) since 2002 in respect of permanent restrictions related to the right shoulder injury. The worker suffered recurrent flare ups of this injury requiring treatment over the years, in 1999, 2000, 2001 and 2006, while another flare up related to a change in duties in 2004 was allowed as a separate claim on an aggravation basis. [4] An ARO decision dated January 2, 2015 awarded the worker entitlement in a separate claim for mild right carpal tunnel syndrome (CTS) and minimal borderline (carpal tunnel) lesion of the left wrist as of September 19, 2011, although no LOE benefits were awarded in this claim. [5] In the claim currently under appeal, the worker has entitlement for right epicondylitis and right triceps tendonitis injuries sustained November 22, 2012 as a result of keyboarding. She began physiotherapy for these injuries on January 24, 2013 and continued working until February 6, 2013, when her family doctor provided a note recommending two weeks off work to allow more effective treatment of her elbow condition. She returned to work as approved by a subsequent report from the family doctor, after attending an early and safe return to work (ESRTW) meeting with the employer and a Board ESRTW Specialist on February 26, (iv) Law and policy [6] Since the worker was injured in 2012, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [7] Section 43 of the WSIA provides in part that: 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; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1).

3 Page: 2 Decision No. 2399/16 (3) The amount of the payment is 85 per cent of the difference between his or her net average earnings before the injury and any net average earnings the worker earns after the injury, if the worker is co-operating in health care measures and, (a) his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan. 1997, c. 16, Sched. A, s. 43 (3); 2000, c. 26, Sched. I, s. 1 (6). (7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, (a) in health care measures; (b) in his or her early and safe return to work; or (c) in all aspects of a labour market re-entry assessment or plan provided to the worker. 1997, c. 16, Sched. A, s. 43 (7). [8] As noted above, the issue before the Tribunal is the worker s entitlement to LOE benefits. Under section 43(1) a worker who has a loss of earnings as a result of a compensable injury is entitled to LOE benefits. Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [9] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #224 LOE Benefits benefits as of July 15, 2011 Package #232 Work Reintegration Package #300 Decision Making / Benefit of Doubt / Merits and Justice [10] I have considered these policies as necessary in deciding the issues in this appeal, and in particular, Operational Policy Manual (OPM) Document No Payment and Reviewing LOE Benefits (Prior to Final LOE Review), regarding the circumstances in which Treatment with No Return to Work is appropriate: If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker's LOE benefits. (v) Analysis [11] The appeal is allowed for the reasons set out below. [12] As noted above, this worker has a permanent right shoulder disability that has required ongoing accommodation since Superimposed upon this, the Board has recognized entitlement for mild right carpal tunnel syndrome in a different claim as well as right epicondylitis and right triceps tendonitis injuries in the claim currently under appeal. The injuries in the current claim were sustained in the course of the worker s permanently modified duties.

4 Page: 3 Decision No. 2399/16 [13] In these circumstances, the threshold question of entitlement to LOE benefits under the current claim is whether the nature or seriousness of the injury completely prevented this worker from returning to any type of work during the period in question. In determining this threshold question, the test is whether the latest injury was a significant contributing factor causing the loss of earnings under section 43(1) of the Act. [14] If the medical rationale for the absence satisfies this test, then the only other question is whether the worker co-operated in health care measures as recommended by her attending health care practitioner and approved by the WSIB. On the other hand, if the medical rationale were inadequate to explain the worker s absence from work, the availability of suitable work, co-operation in an early and safe return to work would then have to be considered. [15] The treatment prescribed for this worker s compensable right elbow injury was physiotherapy. It appears that the physiotherapist was the first to suggest that the worker s response to therapy was being hindered by her continuing work duties. Dr. Mazzuchin (a naturopathic doctor and physiotherapist) stated in his progress report of April 10, 2013: It was my recommendation for time off of work after original assessment due to the severity of inflammation limiting med rehab options and possibility of aggravation on the job and during med rehab treatment. [16] Dr. Mazzuchin s assessment of the severity of the worker s right elbow inflammation and its relationship to ongoing work duties must be interpreted in the context of his professional qualifications. Dr. Mazzuchin s reports indicate that his treatment of the worker has been as a physiotherapist. On January 31, 2013 he reports that he is treating the worker for right lateral epicondylitis with acupuncture, pain modalities, three types of therapy and exercise, twice a week for eight to ten weeks. He records the presence of inflammation and rates the worker s pain at 10 out of 10. He indicates that he is not aware of pre-existing or other conditions or factors that may impede his patient s recovery. [17] I find that Dr. Mazzuchin s qualifications and description of the worker s inflammation and twice-weekly treatments alone does not establish medical grounds for an absence from work. [18] This leaves me with the reports of the family doctor, Dr. Garrioch, who has treated the worker in respect of prior compensable injuries and indicates his awareness of the worker s overall medical condition in his reporting. It was he who provided the note of February 6, 2013, authorizing the worker off work for two weeks for her right elbow WSIB injury. Although he provides no rationale in that note, he subsequently wrote on February 26, 2013: Off work Feb 6 [to] Feb 25/13. R. elbow was not improving therefore time off work was necessary medical (sic). [19] In this same report, submitted on a Form 26, Dr. Garrioch mentions concurrent right tennis elbow, CTS and repetitive strain as components of the worker s overall condition. He further states: I put her off work February 6, 2013 February 25, 2013 at request of Dr. Mazzuchin to facilitate improvement in condition. [20] Then, in a functional abilities form (FAF) dated February 9, 2013, Dr. Garrioch states that the worker is capable of returning to work with restrictions indicating limited use of hands for gripping and pinching, lifting up to 5 kg. with the further notations:

5 Page: 4 Decision No. 2399/16 1. Standard carpal tunnel precautions 2. Unable to wear bulletproof vest 3. Unable to fire shotgun [21] It seems that this FAF that has muddied the waters in this claim, as it fails to mention any precautions that can be unequivocally associated with a right elbow disability. However, the file also contains a FAF filled in by the physiotherapist on February 27, In contrast to Dr. Garrioch s FAF, the physiotherapist indicates a restriction on bending, twisting or repetitive movement of the right forearm and recommends here and in a separate letter that the worker wear a lateral epicondylitis brace during work. [22] The evidence of the FAFs has a bearing on two issues: first, whether the right elbow injury was a significant factor in the medical rationale for authorizing the worker off work, and secondly, whether the worker was completely prevented from working during this period. [23] Dealing with the first issue, I find that Dr. Garrioch s FAF does not outweigh his note of February 6, 2013 and progress report of February 26, 2013 in assessing the significance of the right elbow injury for the layoff. I note that OPM Document No distinguishes between FAF evidence and clinical evidence in issues of initial entitlement: The FAF does not contain either clinical or diagnostic information. It does not replace the health professional s reporting requirements to the WSIB. [24] Although this is not a case of initial entitlement, I find that the same reasons apply with regard to Dr. Garrioch s use of an FAF in this case. I find it is more likely than not that the doctor filled in the form to indicate a range of other factors relevant to this worker s rehabilitation, but did not intend to contradict his clinical opinion that the worker needed to be off work chiefly due to her right elbow condition. [25] Given this analysis, I find that the preponderance of medical evidence establishes that this worker was initially authorized completely off work for two weeks for the reason that her right elbow injury was not improving with physiotherapy. I further find that Dr. Garrioch later reviewed this original assessment and extended his authorization to February 25, based on his clinical evaluation of her right elbow condition, including the assessment of the physiotherapist. I find that these opinions establish that the right elbow injury was a significant factor in the worker s absence from work and loss of earnings in the period under appeal. [26] Turning to the second issue of the worker s functional abilities during this period, I find that Dr. Garrioch s February 9, 2013 FAF does not outweigh Dr. Garrioch s clinical opinion and the physiotherapist s assessment of the right elbow inflammation in the course of treatment. Considering the evidence on functional ability, I find that the preponderance of evidence favours the finding that the worker was completely prevented from working due to her right elbow condition in the period under review. While Dr. Garrioch s FAF does raise a concern, I find that this concern is mitigated and clarified by the other reporting. Even if the evidence on this issue were approximately equal in weight, I would be bound to resolve the benefit of doubt in favour of the worker s entitlement. I therefore find that the injury subject to this appeal completely prevented the worker from working in the period under appeal. [27] As a result, the sole remaining question is whether the worker co-operated in health care measures as recommended by her attending health care practitioner and approved by the WSIB. In this respect I note that the worker complied with the advice of her attending physician and

6 Page: 5 Decision No. 2399/16 with her prescribed treatment plan, participated in the process of evaluating her ability to return to work as facilitated by the Board and successfully returned to work when authorized to do so. I therefore find that this worker participated in health care measures so as to entitle her to LOE benefits for the period under appeal. [28] With regard to actual earnings in the period under review, there is some ambiguity in the evidence before me. In her submissions on behalf of the worker, Ms. Tidbury states that the worker worked February 6 and appends a chart (case record addendum 3, pp ) indicating that the next four days were designated as rest days, without specifying whether earnings were lost in respect of those days. The same appended chart shows February 21 to 24, 2013 as rest days, again without specifying whether earnings were lost in respect of those days, whereas Ms. Tidbury does state that the worker was paid for February 25 and 26. In these circumstances, where I have insufficient evidence to resolve the issue of the worker s actual losses, I find that the worker is entitled to full LOE benefits in the period under appeal February 6 to February 25, 2013, subject to evidence of actual earnings lost.

7 Page: 6 Decision No. 2399/16 DISPOSITION [29] The appeal is allowed as follows: 1. The worker is entitled to LOE benefits under section 43 for her loss of earnings in the period from February 6, 2013 to February 25, DATED: October 20, 2016 SIGNED: D. McBey