DECISION NUMBER 924 / 94 SUMMARY

Transcription

1 DECISION NUMBER 924 / 94 SUMMARY The worker suffered an arm and shoulder injury in The worker appealed a decision of the Hearings Officer denying full temporary benefits from March 1991 to September 30, The worker cooperated with rehabilitation. He participated in a work assessment. He took steps to return to employment. He consistently asked the Board for non-dominant hand training. He looked for suitable work without the assistance. The worker was not disqualified from receiving full benefits. The appeal was allowed. [6 pages]

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 924 / 94 This appeal was heard on November 10, 1994, by a Tribunal Panel consisting of: J. McGrath: Vice-Chair, C.J. Robb : Member representative of employers, F. Jackson: Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the decision of the Workers' Compensation Board Hearings Officer, M. Prpic, dated January 19, This decision denied the worker entitlement to a restoration of full temporary disability benefits between March 15, 1991, and September 30, 1991, on the grounds that the worker was unavailable to cooperate in a vocational rehabilitation program and also unavailable for employment during that period. The worker appeared and was represented by G. Newhouse, lawyer. The employer did not participate although duly notified. THE EVIDENCE The Panel marked the Case Description materials prepared by the Tribunal Counsel Office as Exhibit #1. Addendum #1 was marked as Exhibit #2. The worker testified under oath. THE NATURE OF THE CASE The worker injured his left shoulder and neck in a compensable accident on September 22, Temporary total disability benefits were paid until April 1990, and then full temporary partial benefits were paid while the worker was engaged with the Vocational Rehabilitation Department at the Board. He began an eight-week assessment at Scarborough Enterprises for the Physically Disabled on September 17, 1990, and in its report of November 20, 1990, the worker was deemed competitively unemployable. As a result, his vocational rehabilitation file was closed and his benefits reduced to temporary partial benefits at the 50% level as of March 15, The full temporary partial benefits were restored on September 30, The worker maintains that he did nothing to disqualify himself under section 40(2)(b) of the pre-1990 Act and in fact cooperated in every possible way, therefore he was entitled to temporary partial benefits of 100%. THE PANEL'S REASONS (i) Factual background

3 2 The Panel found this 35 year old worker to be a credible witness. That finding, together with the submissions of the worker's representative and the Panel's complete review of the documents before us, leads us to make the following findings of fact: 1. The worker is left-hand dominant. 2. The worker's symptoms resulting from his compensable injury flare up when he uses his left hand or arm causing disabling pain to radiate from his neck, down his left arm into his hand and causing his left hand to turn a bluish, purple colour. These symptoms are a product of use, so they are not necessarily apparent on any specific examination and they have remained with little improvement to the present time. 3. On July 31, 1990, the worker's treating specialist, Dr. L.R. Perlin, rheumatologist, recommended that the worker retrain his right hand and arm to take over the tasks of the left one. The Board did not follow this recommendation until later in The reason the Board's vocational rehabilitation caseworker sent the worker to Scarborough was to determine his capability for working. The worker's family physician considered that this would be a good assessment tool. 5. While there, the worker mostly used his right hand and arm, albeit awkwardly, but even the relatively short times he did use his left hand, he suffered flare-ups in his symptoms described above and on several days had to leave early because of these. The worker also missed ten days of the program because of acute tonsillitis. At the end of the program his arm was worse. 6. He was deemed competitively unemployable because of poor attendance, poor work attitude, low pain tolerance and a developing reduced work tolerance in his last week of attendance. 7. In December 1990, the worker's vocational rehabilitation caseworker asked him what work he would like to do and he suggested that maybe he could try going back to training horses. The caseworker told him to look into it and if that did not work, she would close his vocational rehabilitation file. No attempt was made by the caseworker to determine whether this work was suitable for this injured worker. 8. The worker asked his family physician for pain medication so he could work with the horses, but his doctor refused to do this, stating that he must work without medication. The worker knew he could not do the work without pain medication and he did not return to this job. It was subsequently

4 3 determined in January 1992 that this work was totally inappropriate for the worker's injury. 9. When his benefits were reduced, the worker continued to write to the Board requesting ongoing vocational rehabilitation assistance and also assistance in obtaining non-dominant hand training. He did some job searches himself. 10. On May 1, 1991, the Board's Dr. Mead examined the worker for a pension rating, but was concerned about what was actually the matter with the worker and deferred a decision until the worker was examined by Dr. A. Mailis, the Director of the Pain Investigation Unit at the Toronto Western Hospital. Dr. Mead accordingly wrote to Dr. Mailis expressing his concerns about the diagnosis of the worker's injury and asking her for a complete investigation. Unfortunately the Board did not follow through on making an appointment with Dr. Mailis and the worker finally had to investigate the delay and make the appointment himself after waiting several months. Meanwhile, for a reason that is unclear to the Panel, the Board had the worker reassessed for a pension disability by Dr. Baichwal on September 30, Dr. Baichwal awarded 0%. After many tests and consultations, Dr. Mailis was able to diagnose neurogenic thoracic outlet syndrome. 11. For reasons which again are not entirely clear to the Panel, the Board restored full temporary partial benefits to the worker on September 30, (ii) Conclusions Section 40(2)(b) of the pre-1990 Act (now section 37(2)(b)) states: 40(2) where temporary partial disability results from the injury, the compensable payable shall be, (a) where the worker returns to employment, a weekly payment of 90% of the difference between the net average weekly earnings of the worker before the injury and the net average amount that the worker is able to earn in some suitable employment or business after the injury; or (b) where the worker does not return to work, a weekly payment in the same amount as would be payable if the worker were temporarily totally disabled, unless the worker, (i) fails to co-operate in or is not available for a medical or vocational rehabilitation program which would, in the Board's opinion, aid in getting the worker back to work, or

5 4 (ii) fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable for the worker's capabilities. This section creates a presumption of entitlement which can be displaced if the evidence indicates that one or more of the disqualifying situations is present. This "disqualification" approach has been adopted by the Tribunal in several decisions (see WCAT Decision Nos. 1 (1985), 1 W.C.A.T.R. 1; 2 (Interim) (1986), 1 W.C.A.T.R. 7; 2 (Final) (1987), 4 W.C.A.T.R. 1; 9 (1986), 1 W.C.A.T.R. 23; 59 (1987), 5 W.C.A.T.R. 17; 529 / 87 (1987), 6 W.C.A.T.R. 158; 302F (1988), 8 W.C.A.T.R. 30; and 250 / 88 (1988), 9 W.C.A.T.R. 264). The effect of this approach is to place the onus on the Board to provide evidence to rebut the presumption of entitlement. In the Panel's view, this was not done in this case. On the contrary, all of the evidence indicates the worker's willingness to cooperate in every way with his medical and vocational rehabilitation and his willingness to work at any available suitable employment. In point of fact, the Panel has difficulty in seeing how the worker could have done more. He engaged in the work assessment program, which was really only to establish what work he could do. He took steps to return to previous employment, which even the Board later determined was totally inappropriate. He consistently asked the Board to implement non-dominant hand training for him as recommended by his treating specialist, which the Board later saw fit to do for him. He looked for other suitable employment without any help from the Vocational Rehabilitation Department. He eventually made his own appointment with Dr. Mailis because the Board somehow slipped up in this. In spite of all this, the Board closed his vocational rehabilitation file and reduced his benefits apparently based on the fact that the Scarborough assessment found him competitively unemployable and also that he was unable to return to the work of horse training, which the Board later deemed inappropriate in any event. For all of the above reasons, we disagree with the Hearings Officer's decision and find that the worker had not disqualified himself from full benefits pursuant to section 40(b)(2) of the pre-1990 Act. THE DECISION The appeal is allowed. The worker is entitled to full temporary partial benefits from March 15, 1991, to September 30, DATED at Toronto, this 30th day of November, SIGNED: J. McGrath, C.J. Robb, F. Jackson.