WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2138/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2138/16 BEFORE: Z. Onen : Vice-Chair M. Christie : Member Representative of Employers S. Roth : Member Representative of Workers HEARING: August 25, 2016 at Toronto Oral DATE OF DECISION: September 12, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2414 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 15, 2014 APPEARANCES: For the worker: For the employer: Interpreter: P. Sacco, Paralegal Not participating E. Pistarelli (Italian) 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. 2138/16 REASONS (i) Introduction [1] The worker appeals a decision of the Appeals Resolution Officer (ARO) which denied him entitlement to full loss of earnings (LOE) benefits from August 1, 2008 to September 6, 2012 when he turned 65. The ARO also refused the worker s claim for a redetermination of his non-economic loss (NEL) benefit. (ii) Issues [2] The issues under appeal are: 1. Whether the worker is entitled to full LOE benefits from August 1, 2008 to September 6, Whether the worker is entitled to a redetermination of his NEL benefit for his right shoulder injury. (iii) Background [3] The worker is 69 years old. He was born and raised in Italy, where he completed his education up to the Grade 3 level, after which he helped his father with farming. Then in 1968 he moved to Switzerland, where he worked as a carpenter until He immigrated to Canada in He was exposed to some minimal language training on his arrival. He started to work as a drywall installer and taper, and he continued in this work until his early retirement at age 61 in August He states he retired early due to his right shoulder injury. [4] The workplace injury, which is the subject of this appeal, occurred on March 18, The worker was 58 years old at the time. He was helping his foreman move boxes of cement weighing 27 kilograms. He lifted a box of cement onto his right shoulder. He testified that he felt a crack in his right shoulder when he slipped on wet pavement and tried to steady his load. That evening, his right arm and right shoulder were painful and the worker sought medical help from his family doctor, Dr. A. Masellis, on the following day. [5] The eventual diagnosis of the injury was a right rotator cuff tear. The worker did not want to stop working after this injury and he continued to do so while receiving conservative treatment. He testified that he was able to continue to work, with medication and he could take a break when the pain became too intense. The Workplace Safety and Insurance Board (WSIB or the Board) accepted entitlement and provided health care benefits for chiropractic treatments. From time to time in 2006 and 2007, the worker attended his doctor and stated that his right shoulder condition was worse. Dr. Masellis provided the Board with notes confirming this. The worker was provided with benefits for chiropractic treatment. On August 1, 2008, the worker stopped working due to an aggravation of his right shoulder pain which prevented him from continuing. Dr. Masellis reported to the Board that the worker was unable to work. The worker saw Dr. R. Vandersluis, an orthopaedic surgeon. Dr. Vandersluis recommended surgery to repair the rotator cuff tear and this surgery took place on April 13, [6] On January 3, 2013, the Board determined that the worker was entitled to partial LOE benefits starting on August 1, 2008, until he reached age 65 on September 6, These

3 Page: 2 Decision No. 2138/16 benefits were partial based on the Board s determination that the worker was not totally disabled and that he could perform entry level jobs, which it defined as Other elemental occupations. The worker objected to this decision and appealed to the ARO who confirmed his partial LOE benefit. [7] The worker received a 7% NEL benefit for this injury on March 21, The worker sought a redetermination of the level of his NEL benefit, stating that his right shoulder condition had deteriorated. The Board refused the request, stating that there was no evidence of a significant deterioration. The worker appealed this decision to the ARO who confirmed the earlier decision to refuse the redetermination. [8] During the time he worked as a drywall installer from 1972 to 2008, the worker sustained other workplace injuries. On February 26, 1979, he suffered an injury to his right shoulder while carrying a pail weighing approximately 23 kilograms. The diagnosis was right shoulder strain. The worker was unable to work for a period and returned to work on May 9, The Board paid temporary benefits during the period of disability. [9] On July 26, 1982, the worker suffered an injury to his right wrist and hand. He stopped working after this injury. The worker returned to work on September 22, 1982, however he had periods of disability, subsequently, due to aggravation of the injury. His injury was initially difficult to diagnose. He saw Dr. S.E. Mackinnon, plastic surgeon, who diagnosed a compression problem with the worker s radial sensory nerve with diminished sensation. The worker received vocational rehabilitation services from December 1984 to October 1985, in an effort to transition to other employment, requiring less stress on his injured right hand and wrist. His primary complaint at this time was pain exacerbated by the activity at work. The rehabilitation effort was not successful from the worker s point of view and he returned to work as a drywall installer in the fall of The vocational rehabilitation closure report of October 22, 1985, indicates that at that time, he returned to work at a lower wage rate, because he was unable to do the entire job. The worker testified at the hearing of this appeal, that he continued to work with the help of a splint, which he wore while at work. The worker received a permanent disability pension of 4% for this injury in July [10] The worker suffered an injury to his low back on February 2, 1988, when he fell off scaffolding. The diagnosis was mechanical low back pain. The worker s low back condition did not resolve fully. He required periodic benefits for absences from work as well as chiropractic therapy. The worker was assessed for a permanent disability benefit resulting in a 10% rating for this injury. The Board s Assessor noted that the worker s condition was likely to deteriorate. The worker continued to work as a drywall installer when he returned to work after this injury. The evidence indicates that he was able to do so by taking reduced hours at times and restricting his work to repairs rather than installing drywall. (iv) Law and policy [11] The injury at issue in this appeal occurred in 2005 and as such, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA). The Board has identified policies it has deemed to be relevant to this appeal, contained in Policy Packages #33, #37, #52, #133, #224, #235, #264, and #300, Revision #9. We will refer to these as necessary in our reasons.

4 Page: 3 Decision No. 2138/16 (v) Entitlement to full LOE benefits [12] The worker seeks entitlement to full LOE benefits from August 1, 2008, when he stopped working until September 6, 2012, when he turned 65 years of age. LOE benefits are payable under section 43(1) and (2) of the WSIA. Section 43(1) sets out when the benefits are payable: 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. 1997, c. 16, Sched. A, s. 43 (1). [13] Section 43(2) sets out the amounts to be paid: (2) Subject to subsections (3 and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. [14] Under section 43(2), a worker who is partially impaired may receive partial LOE benefits on the basis that he or she can earn the difference in modified or suitable work. In this case, the Board determined that the worker was capable of entry level or elemental work, and so his LOE benefit was reduced by the amount the Board determined he could earn in such a job. [15] We start our analysis with the Board s finding that the worker was partially and not fully disabled from August 1, 2008 to September 6, The worker had three different injuries for which he had permanent injury benefits; a low back permanent disability pension of 10%, a NEL benefit for his right hand of 4% and his right shoulder rating at 7%. Cumulatively, these injuries no doubt limited what the worker could do, however, they did not rule out some form of employment. The worker s doctors reported on his condition during this period. [16] The worker s treating family physician throughout most of his life in Canada was Dr. A. Masellis. The evidence before us shows that the worker attended Dr. Masellis, complaining of aggravations in his right shoulder injury from time to time after the 2005 injury. On April 11, 2006, Dr. Masellis wrote to the Board advising that the worker was suffering from increased right shoulder pain and weakness in his right hand. Dr. Masselis concluded his note stating: He seems to have developed a re-exacerbation of the rupture of his right biceps tendon. He needs another course of chiropractic treatment. On August 23, 2007, Dr. Maselis provided the Board with a note stating: On today s examination, he is definitely suffering from a re-exacerbation of pain in his right shoulder. He is extremely tender over his right rotator cuff region. The range of motion shows severe restrictions in every direction. He also shows a moderate decrease in power in his right arm and hand. Even though he continues to work, I feel that he should have another full 12 weeks course of chiropractic treatments. I feel that the Board should approve this treatment plan.

5 Page: 4 Decision No. 2138/16 [17] In August 2008, Dr. Masellis wrote to the Board advising of the worker s condition. On August 20, 2008, Dr. Masellis provided the Board with a lengthy report setting out the assessment and treatment history for the worker s right shoulder. This report indicates that in 2008, the worker continued to complain to his doctor of aggravation of his right shoulder injury in April, May and June. On September 10, 2008, Dr. Masellis stated the worker was complaining of increased pain in his shoulder and increased weakness in his right arm and hand. Dr. Masellis went on to state: At this time a claim should be reopened for total disability and I feel he should be reassessed at the Board. [18] On December 2, 2008, Dr. Masellis again wrote to the Board and stated that in his view, the worker was disabled from his work-related injury to his right shoulder. The worker was referred to an orthopaedic surgeon for assessment, Dr. R. Vandersluis, who saw the worker for the first time in April His report of a second visit by the worker is dated June 24, 2009: [The worker] is a 61-year-old gentleman who was initially seen in my office on April 18 th, Unfortunately a note was not dictated at that time. He is seen regarding his right shoulder. He has been unable to work since August of He is a drywall man. He does repetitive overhead activity and this caused him pain. He was aggravated by his work. He took Advil and over the counter anti-inflammatories with no relief. He tried physiotherapy. He has not had injection. [19] The diagnosis was rotator cuff tear. Dr. Vandersluis recommended surgical repair. The surgery took place on April 13, After the surgery, the worker continued to complain of pain and impairment. A report by Dr. Vandersluis dated April 13, 2011, states that although the worker had full range of motion in his right shoulder, the rotator cuff strength was limited by pain and there were positive impingement signs. The worker was complaining of pain in his right arm. The worker testified that after this, he discussed a second surgery with Dr. Vandersluis; however, the doctor was not encouraging about improvement and so he decided he would not proceed with it. [20] On June 27, 2010, Dr. Masellis provided the Board with a comprehensive report concerning the worker s right shoulder injury, and the history since the worker stopped working in Dr. Masellis stated in part: Visits in 2009 remained regular and frequent. He visited me on January 13, 2009, April 8, 2009, May 19, 2009, June 2, 2009, June 23, 2009, July 8, 2009, August 11, 2009, September 8, 2009, October 13, 2009, November 10 and 17, 2009, December 17 and 22, Throughout this timeframe his shoulder continued to remain markedly restricted and painful. He had been referred to Dr. Vandersluis, specialist. There was no improvement during this period of time that would have enabled a return to work. He remained totally disabled from any and all work.. In my opinion, continuing to work with a damaged shoulder led to the eventual significant deterioration in This then led to [the worker] stopping work entirely, being unable to continue working. Further investigations carried out by Dr. Vandersluis confirmed the tear and necessitated surgery. He has not been able to resume working since he stopped in August 2008 and in my view, it would not have been safe for him to do so. It is still not reasonable to have him return to construction work. In light of his age, poor linguistic skills and the fact that he has no other skills I am not sure that he is a candidate for any other type of work. I continue to maintain that he is disabled and should be getting paid by the WSIB.

6 Page: 5 Decision No. 2138/16 [21] Dr. Masellis was satisfied that the worker could not safely return to his work as a drywall installer. The medical evidence shows that the worker was quite limited in what he could do, largely due to the aggravation of his right shoulder injury. Nevertheless, in our view, a preponderance of the evidence points to the conclusion that the worker was not totally disabled and unable to work in any occupation during this time. [22] The worker is therefore subject to the provisions of section 43(2), which states that his LOE benefit is to be calculated based on what he earns, or is able to earn in suitable and available employment. The question that remains is what suitable employment the worker could undertake between August 1, 2008 and September 6, 2012, and how he would obtain it. [23] The WSIA sets out a process for determining suitable employment. Where a worker is unable to return to work with his or her employer at the time of injury, section 42(1) requires that the Board provide the worker with a labour market re-entry assessment and to take additional steps under that section to return the worker to work as required: 42. (1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist: 1. If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury. 2. If the worker s employer has been unable to arrange work for the worker that is consistent with the worker s functional abilities and that restores the worker s pre-injury earnings. 3. If the worker s employer is not co-operating in the early and safe return to work of the worker. (2) Based on the results of the assessment, the Board shall decide if a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury. (3) In deciding whether a plan is required for a worker, the Board shall determine the employment or business that is suitable for the worker and is available. [24] The Board has developed policy guidelines to support the adjudication of assessments for the purpose of determining a suitable occupation. Operational Policy Manual (OPM) Document No titled Determining Suitable Occupation reflects the requirements under section 42 and provides guidelines for their implementation. The policy states in part: Initially, the WSIB conducts its own assessment of transferable skills (i.e., an inventory of a worker s job skills and experience). If this doesn t result in the identification of a SO, the WSIB arranges for an external (WT) assessment. The WT assessment assists the workplace parties and the WSIB to determine what services and activities are necessary to facilitate a worker s successful WR. The worker is expected to be an active participant in identifying a SO that maximizes existing skills, interests, and aptitudes in order to restore, to the extent possible, the worker s pre-injury earnings. The WT assessments must look at all of the worker s impairments/disabilities including those that are work-related and non-work-related (e.g., including non-physical disabilities such as a learning disability) in accordance with human rights legislation. All impairments must be taken into account in identifying a SO for the worker.

7 Page: 6 Decision No. 2138/16 [25] The worker asked the Board for benefits shortly after he stopped working in August 2008, however, the process to determine his entitlement took some time. The worker received benefits from the employer s disability insurer from November 7, 2009 to November 6, 2011, when that entitlement ran out. After this, he applied for and received Canada Pension Plan disability benefits. The Board collected information about earnings and employers for some time and the Board adjudicated the worker s entitlement to LOE benefits in early [26] As the worker was not incapable of performing any work, the Board was obligated to consider what, if any, SO the worker could have undertaken in August 2008 and later. Pursuant to section 42 of the WSIA, which we cited earlier, in order to do this assessment, on February 9, 2012, the Board s Work Transition Specialist (WTS) interviewed the worker by telephone with the assistance of an interpreter. Her report of the same date documents this interview. The report noted the worker s low back injury and his permanent disability benefit of 10%. It does not mention his permanent injury to his right hand. The report noted that the worker has limited oral English language skills. He is not literate in English. He has limited skills in Italian. The worker had a class G driving license and could only drive an automatic car with his left hand. He had only worked as a drywall installer since his arrival in Canada in He had no other certificates or other evidence of training or skill. [27] The WTS concluded her report stating: Based on the information collected from the client regarding his employment, educational work history and transferable skills and based on the NOC and labour market information, it is being recommended that the client was likely suitable to secure employment under NOC Other Elemental Services back in August 1, [28] The report went on to state that no educational requirements were set out for this type of elemental job and so it was suitable for the worker. Examples of jobs in this category that the worker could perform were parking lot attendant, car jockey and funeral attendant. [29] On January , based on the WTS recommendation, the Board s Adjudicator notified the worker that the worker had entitlement to partial LOE starting on August 1, 2008, on the basis that he was able to undertake one of these elemental occupations during the period in question. His benefit was reduced by what he was deemed to be able to earn in such an occupation, working full-time. It was determined that the worker did not require any additional training to find one of these elemental jobs. [30] The WTS report does not discuss the worker s injuries. As we noted, the hand injury is not included in the report. The worker s evidence at the hearing was that he was able to work with his injuries, but he used splints on his right hand and accommodations in order to do this. [31] As we noted earlier, under section 43(2), a worker is paid partial benefits where it can be shown that he or she can undertake suitable employment. In this case, for the reasons that follow, we have determined that given the nature of his physical impairments, and in particular the 2005 work injury which caused him to stop working in drywall, as well as his personal attributes, there was no reasonable basis on which to conclude that he could undertake any type of employment after he stopped working as a drywall taper on August 1, [32] In order to conclude that a worker can undertake some form of suitable employment, we must first be satisfied that he is capable of searching for and obtaining that employment. In this case, the WTS and the Board Adjudicator decided that the worker required no further training to

8 Page: 7 Decision No. 2138/16 obtain elemental work. A successful WT requires a successful job search. For that reason, WT plans often include a job search element. It is important to keep in mind that in obtaining an elemental job, the worker was seeking work in a new field. He needed skills to approach employers and to present himself as a candidate to strangers who did not know him well. The worker testified that in his previous trade of drywall installer, he essentially worked with the same group of people during his entire working life in that field. [33] The Panel is satisfied on the evidence that there were significant barriers to the worker s ability to obtain any employment at all between August 2008 and September At the beginning of the period, he was already 61 years old. The worker has essentially no English language skills. All communications between the worker and the Board throughout this claim were either through his family or an interpreter. He required an interpreter at the hearing of this appeal. Unless he sought and obtained employment in an environment that accommodated his ability to communicate, he would more likely than not be unable to perform the work. The worker is not literate in English. His education level in Italy is Grade 3 or 4. There are few working environments where, even in an elemental job, a person could succeed in obtaining employment without functional spoken English and some literacy. Internet job searches are basic to any job search. Lack of computer literacy is a significant hurdle to overcome when looking for work in a new field, and the worker had no knowledge of computers. Finally, the worker was suffering from three different workplace injuries during the period in question, including his right shoulder injury which was clearly aggravated and caused him significant pain and dysfunction. He underwent surgery in 2010 to try to address his pain and limitations. Based on the foregoing, we conclude that there is very little likelihood that the worker could have found any sustainable employment in August 2008, or later. As we have found that it is highly unlikely that he would have been able to obtain suitable employment during the period in question, he is therefore entitled to full LOE benefits from August 1, 2008 to September 6, (vi) Entitlement to a redetermination of the worker s NEL rating for his right shoulder injury [34] Sections 47(9) and (10) of the WSIA provide that if a worker with a permanent impairment greater than zero suffers a significant deterioration in his or her condition, and 12 months have passed since the Board s most recent determination concerning the degree of impairment, the worker may request that the Board once again assess the degree of the worker s permanent impairment. Board OPM Document No , Redeterminations defines the term significant deterioration as follows: A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measureable change in objective clinical findings. [35] In this case, the worker has a 7% NEL benefit for his right shoulder injury, provided to him on March 21, He is therefore eligible to be considered for a redetermination. The question for the Panel is whether he has sustained a significant deterioration in his condition since the assessment in [36] The worker s NEL assessment took place on November 29, The assessing physician was Dr. S. Athaide. The worker complained of pain in his right shoulder going down to his wrist. He also complained of right hand problems. The worker described his pain as moderate, stabbing, especially when he was using his shoulder.

9 Page: 8 Decision No. 2138/16 [37] The assessment results showed that the worker had mild joint crepitation with motion, which was rated as mild. The worker s right shoulder range of motion showed the values below: Flexion 80 degrees Extension 60 degrees Adduction 30 degrees Abduction 90 degrees Internal rotation 90 degrees External rotation 60 degrees [38] The activities of daily living were described as affected by the right shoulder injury including sleeping and walking. The worker stated he gave up bowling. All communications with the worker during the assessment took place with his daughter as interpreter. [39] After 2008, Dr. Masellis described the worker s right shoulder condition as worse. He reported to the Board on June 27, 2010, that when he stopped working in August 2008, the worker s shoulder had deteriorated: When he saw me in August 2008 (August 20) he advised me that his shoulder had gotten so bad that he was forced to stop working as a result. My notes indicate that the worsening started to be problematic as early as June 11, 2008, when he visited me that date complaining of worsening pain in his right shoulder. He was markedly tender and showed very little range of motion and markedly reduced power and strength in the right arm. His next visit was on September 10, Again, no change was noted. He was markedly worse. Subsequent visits in 2008 were on September 23, 2008 and on November 17, [40] The Panel accepts that the worker s condition had likely deteriorated by August 2008 from 2006, when the NEL assessment took place, but there is also evidence that it improved subsequently, when he underwent surgery on April 13, Dr. Vandersluis who carried out the surgery, saw the worker after the operation on follow-up. His note of this visit is dated April 13, 2011, one year after the surgery: [The worker] is a 63-year-old gentleman seen today with regard to his right shoulder. He had a rotator cuff repair. He has a C6 radiculopathy postoperatively. His range of motion is full. He still has radiating pain in the C6 distribution of his right upper extremity. Examining him today, right shoulder normal neutral and vascular status. Neck and elbow full range of motion, no bony tenderness. Glenohumeral joint, 0 to 180 degrees of forward flexion, abduction, internal rotation L5, external rotation 40 degrees, 4+5 rotator cuff strength, limited by pain, tender anterolaterally. Positive impingement signs. No AC joint scapula thoracic sternoclavicular tenderness or instability. Diagnosis: Status post rotator cuff repair and radiculopathy. [41] The worker testified about his right shoulder condition. He stated that his condition worsened until he had to stop working. He stated that after the surgery of 2010, he still continues to experience right shoulder pain and weakness. He takes non-prescription anti-inflammatory medications. He is unable to perform small tasks, such as using a screw driver. He testified that he returned to his surgeon after the surgery, because of the pain and limitation he still continued to experience. The surgeon stated that they could undertake a second surgery, but the results were not guaranteed. The worker then decided against any further surgery. [42] NEL benefits are awarded under section 46 and section 47 of the WSIA. Section 47 states:

10 Page: 9 Decision No. 2138/ (1) If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment. (2) The determination must be made in accordance with the prescribed rating schedule (or, if the schedule does not provide for the impairment, the prescribed criteria) and, (a) having regard to medical assessments, if any, conducted under this section; and (b) having regard to the health information about the worker on file with the Board. [43] The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). [44] Sections 47(9) and (10) of the WSIA, provide that if a worker with a permanent impairment greater than zero suffers a significant deterioration in his or her condition, and 12 months have passed since the Board s most recent determination concerning the degree of impairment, the worker may request that the Board redetermine the degree of the worker s permanent impairment. Board OPM Document No , Redeterminations defines the term significant deterioration as follows: A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings, see , Final FEL Benefit Review, , Final LOE Benefit Review. [45] In this case we compared the worker s condition as documented in 2006, with his condition as documented in more recent medical reports and based on his own description of deterioration. The test under the WSIA is that a significant deterioration must be found to have taken place. Our review of the evidence does not show such a deterioration taking into account the worker s April 2010 surgery. Even if the worker s condition deteriorated in 2008, the report by Dr. Vandersluis documenting his findings one year after surgery, shows that the worker had a full range of motion in his right shoulder. He was still complaining of pain and there was evidence of his surgery, however his condition was improved when compared objectively with the findings reported by Dr. Masselis in his 2010 report. The Panel is satisfied that a preponderance of the evidence points to the conclusion, that even if the worker suffered an increase in his impairment in 2008, the surgery of 2010 addressed this to a degree and there is little or no evidence of a significant deterioration between the condition as described in the post-surgery report and the worker s assessment in The worker is therefore not entitled to a redetermination of his NEL benefit for his right shoulder injury.

11 Page: 10 Decision No. 2138/16 DISPOSITION [46] The appeal is allowed in part as follows: 1. The worker is entitled to full LOE benefits under section 43(1) from August 1, 2008 to September 6, The worker is not entitled to a redetermination of his NEL benefit for his right shoulder injury. DATED: September 12, 2016 SIGNED: Z. Onen, M. Christie, S. Roth