DECISION NO. 2215/10

Transcription

1 v WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2215/10 BEFORE: V. Marafioti: Vice-Chair HEARING: November 10, 2010 at Toronto Oral DATE OF DECISION: January 31, 2011 NEUTRAL CITATION: 2011 ONWSIAT 234 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated June 18, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Ms. O. Crimi, Paralegal 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. 2215/10 REASONS (i) Introduction [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) dated June 18, That decision concluded that the worker was not entitled to a reassessment of his non-economic loss ( NEL ) award as the medical evidence did not establish that there had been a significant deterioration below the 10% NEL level. The ARO found that the worker was not entitled to full loss of earnings (LOE) benefits up to age 65 as his medical and vocational circumstances did not warrant it. [2] There is also an ARO decision dated July 26, 2006 which found that the worker s Suitable Employment or Business (SEB) was suitable once it was focused on the general clerical and telephone duties. The ARO found that since the worker would not be able to perform all the duties of the range of work within the SEB because of his restrictions or more specialized training, the entry level wages should be no more than $8 per hour. The ARO on July 26, 2006 also found that the worker needed to complete the Labour Market Re-entry (LMR) program by being placed in a bona fide job placement within his restrictions similar to the last one he was placed in which was not completed. The ARO indicated that the worker would be performing duties of a receptionist and clerical work. The ARO found that the worker has been cooperative throughout his LMR program and that the worker should not be penalized because the job placement was not appropriate for his restriction or that he was terminated prematurely. The worker was granted entitlement to full LOE benefits from the date of the decision and the duration of the job placement. (ii) Background [3] The facts of this case are not in dispute. The worker sustained a left foot crush injury on February 7, 2003 when he was pushing a machine into a spray booth area. The machine tilted over onto his left foot. [4] The worker was diagnosed with a compound fracture of the left foot with severe injury to the metatarsal head and proximal phalanx. The worker underwent surgery for debridement and reduction and fixation of the left big toe. [5] Following recovery, the worker was referred for a NEL assessment and he was granted a 10% NEL award. [6] The worker was also referred for LMR services as the employer did not have suitable modified work available for him. The worker participated in his LMR program and was deemed by the Board to be capable of returning to employment as a customer service, information and related clerks, National Occupational Classification (NOC) code The worker s representative originally objected to the suitability of the SEB and claimed that the worker was incapable of working at all due to a combination of his compensable injury, lack of transferable skills, and age. As indicated above, the ARO in his decision of July 26, 2006 found that the worker was not totally unemployable. The ARO found that the worker was capable of sedentary work and found that the SEB was valid for certain aspects of that type of work, namely, general clerk and telephone duties. The ARO found that the worker required a placement opportunity

3 Page: 2 Decision No. 2215/10 and granted the objections in part. The ARO also found that the worker would be capable of earning entry level wages of $8 per hour. [7] Following the implementation of that ARO decision the Board referred the worker for further LMR services and he completed the job placement opportunity in June of At that time the determination was made that the worker s partial LOE benefits would be paid at the rate of $8 per hour. [8] On behalf of the worker, the worker s representative, Ms. Crimi requested a NEL reassessment and payment of full LOE benefits on the basis that the worker was unemployable. (iii) The issues [9] The Vice-Chair must determine whether the worker is entitled to a redetermination of the NEL award of 10%. The Vice-Chair is also to determine if the worker is entitled to full LOE benefits from June 6, 2008 to age 65 rather than the partial LOE benefits already granted. (iv) The law and Board policy [10] On January 1, 1998, the Workplace Safety and Insurance Act 1997 (WSIA) took effect. However, pursuant to section 102 of the WSIA, the Workers Compensation Act continues to apply to pre-1998 injuries. [11] Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [12] The Legal Services Division of the Board confirmed that the following policy packages, Revision No. 8, would apply to the subject matter of this appeal. Policy Package #33 - LOE Benefits Decisions as of July 1, 2007 Policy Package #39 - Final LOE Review Benefits as of July 1, 2007 Policy Package #50 - Suitable and Available Employment Benefits as of July 1, 2007 Policy Package #64 - NEL Re-determination Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [13] The policies will not be duplicated here for practical reasons. I have considered the policies in arriving at my decision in the context of the legislation. As the accident date occurred in February 2003, the WSIA applies. (v) The Vice-Chair s analysis and conclusions [14] I note that according to Operational Policy Manual (OPM) Document No on the subject of Re-determinations and Re-calculations, the WSIB may consider a worker s request for a re-determination of his existing NEL benefits provided that the worker s degree of permanent impairment was previously determined to be greater than zero; the worker s condition has deteriorated significantly since the last NEL determination and 12 months have passed since the worker s last NEL decision. The policy indicates that a significant deterioration refers to a

4 Page: 3 Decision No. 2215/10 marked degree of deterioration in the work-related impairment that is demonstrated by a measureable change in objective clinical findings. We must therefore look at any new medical reports and all health care information added to the file since the last NEL determination. The most recent medical findings are compared with the clinical condition of the body part, system, or function at the time of the last NEL determination to evaluate whether there is evidence of a significant deterioration. [15] Under review of the medical evidence, I note in particular the following medical reports from the worker s treating physicians. [16] The worker was assessed by Dr. J. Corless for NEL purposes on September 20, The worker was granted a 10% award as a result. The worker was seen by Dr. D. Stevens at Sunnybrook Hospital for the crush injury. Dr. Stevens concluded as follows: It is my opinion that this gentleman will likely require a first MP fusion and exploration of the deep peroneal nerve to assess and resect any neuroma in this region. The timing of this depends on his response to the orthotics. He will see our Orthotist today for modification. According to [the worker] he is seeing another surgeon in downtown Toronto. I have not made arrangements for any further consultations. [17] This report was dated November 3, The worker was seen for the foot consultation by Dr. T. Daniels who reported on November 22, 2004 as follows: On examination of his foot he has good pulses. The left first web space has increased tenderness to this area and has decreased sensation to the adjacent toes in the first web space. He has decreased sensation as well of the dorsal aspect of the foot and increasing sensitivity to touch and cold of the talar foot. He has dorsiflexion and plantar flexion range of motion of between 5 to 10 degrees in the left metatarsophalangeal joint, though this is not painful and not the cause of his problems. He has known symptoms of a Morton s neuroma as well. X-rays revealed osteoarthritis involving the first metatarsophalangeal joint and no other major deformities to account for his symptoms. My clinical impression at this stage is that he has got a reflex sympathetic dystrophy like picture as well as a deep peroneal nerve injury stemming from his injury at the time of his crush injury. He also has some symptoms of diabetic neuralgia that is causing pain radiating proximally. I have suggested that the symptoms be reduced with the aid of a splint and was prescribed articulating AFO brace for him and this should curtail much of the pain. There is nothing further that we could offer for him and he should be symptomatically much better with his brace. [18] On April 18, 2005 Dr. Daniels reported that the worker had osteoarthritis of the first metatarsophalangeal [MTP] joint, but there was absolutely no pain when forcing the worker through dorsiflexion and plantar flexion in this area. Dr. Daniels once again reinforced to the worker that there is no surgery that can help him with his problem. [19] Dr. J. Corless reported to the worker s family physician Dr. Marshall on November 28, 2006 as follows: At the present time he does have pain in the MTP joint of his great toe but it is not with him all the time and he is not taking a lot of medication for this. Clinically and radiographically, he has severe post traumatic arthritis of the MTP joint of his great toe. The only treatment available for him would be to fuse the MTP joint. At

5 Page: 4 Decision No. 2215/10 the present time he is not interested in having surgery but is aware that it might become necessary in the future if the pain becomes more of a problem. [20] The worker was seen by orthopaedic surgeon Dr. K. MacCon, orthopaedic surgeon. The worker went to Dr. MacCon for an update on his left foot. This doctor initially saw this worker on February 7, 2003 for the left foot. Dr. MacCon reported on November 12, 2007 as follows: This gentleman might be improved by a fusion of the first metatarsal phalangeal joint although I think this highly unlikely. He may be improved himself but not to a point where he ever could work again. From my perspective this gentleman has a significant injury to his left foot which has left him in his own mind totally disabled. I do not feel any surgery I or anyone else can do is going to make the slightest bit of difference to his long term outcome and his return to the workforce. He has already been seen in Sunnybrook Center for Independent Living by Dr. Steven. It may be worthwhile sending him back to one of the specialists or clinics funded by WSIB for further assessment. He has been seen by Dr. Daniels who from my perspective this gentleman could not have got a better opinion from. If Dr. Daniels cannot fix it, it means it cannot be fixed and certainly it would be very presumptive of me to proceed with any surgery that Dr. Daniels didn t think of before this. From my perspective I have nothing to offer this gentleman and I would suggest the status that now exists will continue indefinitely no matter what is done or not done. I have nothing further to offer this gentleman and as such I am discharging him back to the care of his family physician who may elect to send this patient on to WSIB for further evaluation. [21] The worker was seen by Dr. I. Majesky regarding the left foot on May 10, Dr. Majesky reported as follows: There is moderate hallux valgus. There are multiple bony fragments seen in the soft tissue of the distal end of the left first metatarsal bone and first metatarsal phalangeal joints which are well corrugated and the result of an old injury. There is evidence of moderately severe, most likely secondary osteoarthritis in the first metatarsal phalangeal joint. There is considerable amount of sclerosis seen of the proximal phalanx of the left great toe and also distal end of the first metatarsal bone. The changes may be due to chronic osteomyelitis. Localized deformity of the distal end of the left fourth metatarsal bone is the result of an old healed fracture of these bones. There is mild osteoarthritis and some intertarsal and interphalangeal joints. Large bony spurs are demonstrated in the plantar and posterior aspect of OS calcis. No recent fracture is seen. [22] Dr. M. Ho, the Board s Medical Consultant, reviewed the file on August 25, 2008 and reported as follows: CONCLUSION: Lt foot remains at NEL level and fit for mod. act. when recent subjective complaints and objective findings are compared with the same of last NEL assessment of 20/9/05. No indication of NEL re-determination now. Restrictions include no excessive walking and standing.

6 Page: 5 Decision No. 2215/10 [23] I find that the medical evidence as a whole does not support a deterioration in the worker s NEL level. The worker s MTP joint fusion has not occurred and the representative provided no further medical evidence to indicate objective findings such as of flexion, extension, pronation and supination of the foot ankle to indicate deterioration since the assessment of September The worker, therefore, is not entitled to a NEL reassessment as the medical evidence does not support deterioration below the 10% level. (vi) Full LOE benefits to age 65 [24] I have reviewed the LMR activities and the vocational assessments completed on this worker. The assessment did indicate that the worker had multiple barriers to employment such as mature age, functional limitations, low education level and limited transferrable skills. The assessment indicated that the worker would require job placement assistance. [25] The assessment also indicated that the worker s transferable skills were mainly related to manual jobs. According to the assessment this type of work would likely be unsuitable because of the worker s physical restrictions. This vocational assessment was completed by the Ontario March of Dimes in October [26] The worker s medical restrictions included walking, kneeling, crouching and crawling. In addition the worker was to avoid prolonged weight bearing, rough ground walking, and climbing stairs. [27] I note that the assessment results showed that the SEB most suitable for the worker was NOC 1453 Customer Service, Information and Related Clerks. [28] On my review of the LMR activities and results, I note in particular that the worker generally did very well. He was described as motivated, courteous, cooperative and diligent. The worker demonstrated good work ethics. The worker did express concern at the very start of the LMR about being too old to be in school. There were some issues with pain as a result of his compensable injury and his non-compensable diabetes was also producing hardships. Overall, the feedback from the service providers was very positive. [29] I note that the worker s family physician Dr. E. Marshall on April 4, 2006 indicated that the worker was only able to undertake a very sedentary position. [30] I note that the worker was placed in an LMR program which included academic and literacy upgrading, computer training, customer service and job search training. As noted above the worker has standard restrictions for a foot injury given the medical information. I note that the ARO L. Giacometti on July 26, 2006 found that the SEB was suitable once it is focused on the general clerical and telephone duties, since the worker would not be able to perform all the duties of the range of work within the SEB because of his restrictions or lack of specialized training. The ARO concluded that the entry level wages would be no more than $8 an hour. Therefore the LOE benefits were established with wages of $8 per hour. Furthermore the ARO on July 26, 2006 concluded that the worker needed to complete his LMR program by being placed in a bonafide job placement within his restrictions similar to the last one he was placed in which was not completed. He does note that the worker has been cooperative throughout the LMR program and that the job placement system was not appropriate for his restrictions and it

7 Page: 6 Decision No. 2215/10 was terminated prematurely. The worker was granted entitlement to full LOE benefits from the date of July 26, 2006 and the duration of the job placement activities. [31] Given the medical evidence available to me and noting the NEL assessment of the worker, I am satisfied that the worker s employability should be confirmed as did the ARO officer in the June 18, 2009 decision. The worker has been given extensive LMR assistance and was deemed capable of returning to the chosen SEB of customer service information related clerks as per the ARO decision of July 26, [32] I see no objective evidence in front of me to conclude that the worker is not employable. In my view, the evidence does not support that the worker is not able to perform work for which he has received extensive LMR training. I see no compelling reason to change or vary the ARO decision on this matter. There is little evidence presented to me by Ms. Crimi, particularly of an objective nature, to indicate that the worker is unemployable. I therefore find that partial LOE benefits provided by the Board are appropriate in this case.

8 Page: 7 Decision No. 2215/10 DISPOSITION [33] The worker s appeal is denied. The worker is not entitled to a redetermination of the NEL award and the worker is not entitled to full LOE benefits from June 6, 2008 to age 65 rather than the partial LOE benefits already granted. DATED: January 31, 2011 SIGNED: V. Marafioti