WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1543/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1543/15 BEFORE: M. Crystal: Vice-Chair HEARING: July 28, 2015 at Toronto Oral DATE OF DECISION: July 31, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1708 DECISION UNDER APPEAL: WSIB ARO decision dated October 11, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Ms. M. Kozycz, Legal Clinic Law Student Did not participate Ms. M. Wolosiuk, Polish 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. 1543/15 REASONS (i) Introduction [1] This appeal was heard in Toronto, on July 28, The worker appeals the decision of Appeals Resolution Officer (ARO) P. Luck, dated October 11, That decision determined, among other things, that the worker was not entitled to further benefits during the period from October 3, 1994 to December 30, [2] The worker appeared and was represented by Ms. Monica Kozycz, a summer law student at a legal clinic. The employer did not participate in the appeal. The worker testified at the appeal hearing. Submissions were provided by Ms. Kozycz. Ms. Marta Wolosiuk, served as an interpreter of the Polish language. (ii) A synopsis of the case under appeal [3] The worker sustained an injury to her right wrist as a result of a workplace accident that occurred on August 3, At the time of the accident the worker was employed by the accident employer, an operator of a food processing plant. At the hearing, the worker testified that her job for the accident employer involved the washing and packaging of vegetables, and that she performed this work on an assembly line. The injury occurred on a gradual onset or disablement basis, due to repetitive strain, and no specific incident occurred to cause the worker s injury. In 1993, the Board allowed initial entitlement to benefits for the worker s injury to the right wrist, and initial entitlement to benefits is not contentious in this appeal. [4] The Board awarded the worker a 2% non-economic loss (NEL) award for the injury to the right wrist, however this award was increased to 5% on reconsideration in [5] The worker was unable to continue in her employment with the accident employer, and the Board initiated vocational rehabilitation (VR) services for the worker in January At the hearing, the worker testified that she was born and educated in Poland, had come to Canada in 1990, and that she had very poor English language skills when she began her VR program in She indicated that, in her employment with the accident employer, the worker had coworkers who spoke Polish with her, but that when she had to discuss anything with a supervisor who did not speak her first language, she had difficulty being understood. Accordingly, the main focus of the worker s VR services was training in English as a Second Language. According to the VR Closure Report, dated June 8, 1994, on file, the accident employer subsequently offered the worker modified work, which she performed on two days in May 1994, after which she withdrew from the employment. [6] The Board concluded that the employment offered by the accident employer in May 1994 was suitable for the worker, and further that she was not entitled to benefits for psychotraumatic disability, in relation to psychological difficulties that the worker had claimed were related to her work injury. The worker appealed the Board s decisions on these issues to the Appeals Tribunal, and in Decision No. 859/02, dated September 18, 2007, the Tribunal determined that the work that had been offered by the accident employer to the worker in 1994 was not suitable for her, and the Board was directed to determine the worker s entitlement to benefits which flowed from this determination. In addition, the Panel in Decision No. 859/02 determined that the worker was entitled to benefits for psychotraumatic disability and directed the Board to conduct a NEL assessment of the worker to determine her level of entitlement to NEL benefits for

3 Page: 2 Decision No. 1543/15 psychotraumatic disability. As a result of an assessment carried out in 2008, the Board determined that the worker was entitled to a 20% NEL award for psychotraumatic disability. When this award was combined with the workers previous 5% NEL award, the worker s total NEL award was determined to be 23% (the AMA Guides, 3 rd edition, which is the primary rating schedule for NEL awards, directs that certain values shall be combined according to a mathematical formula included in the Guides. When values are combined according to the formula, the resulting value is usually somewhat less than the sum of the values). [7] In keeping with the direction provided in Decision No. 859/02, the Board determined the worker s entitlement to income replacement benefits (i.e., temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and future economic loss (FEL) benefits), during the period commencing October 3, 1994, and the worker appealed the Board s operating level decisions on this entitlement to the Board s Appeals Division. The ARO decision, dated October 11, 2012, which is the subject of this appeal, determined that the worker was not entitled to full benefits during the period from October 3, 1994 to December 30, 1996 (the order at the conclusion of the ARO decision stated that there is no entitlement to benefits for the period October 3, 1994 to December 30, 1996, however, it is apparent from the file and from other statements in the decision that, prior to the ARO decision, the Board had awarded the worker TPD benefits during the period from October 3, 1994 to August 27, 1997, based on the difference between her pre-accident earnings and the minimum wage, and that the ARO probably intended to state in her order that, during the period from October 3, 1994 to December 30, 1996, the worker was not entitled to further benefits beyond that which had already been awarded). On December 30, 1996, Dr. Janusz S. Swierczek, psychiatrist, provided a report which indicated that the worker would benefit from psychotherapy and anti-depressant medication, and the ARO awarded the worker full benefits from December 30, 1996 to August 27, The ARO also made further awards of income replacement benefits in relation to subsequent time periods, which are not under appeal in this proceeding. [8] In reaching the conclusion that the worker was not entitled to full benefits during the period from October 3, 1994 to December 30, 1996, the ARO noted that no argument has been put forth that [the worker] was engaged in job search activities during this period, and that during the period in question, she was not temporarily totally disabled, she was not engaged in a medical rehabilitation program for her compensable injuries and she was not available for suitable employment. [9] At the hearing, evidence was presented to demonstrate that during the period from October 3, 1994 to December 30, 1996, the worker was engaged in an extensive self-directed job search, she was engaged in a program of medical rehabilitation which would aid in her return to work, and that she took further ESL courses, which improved her English language skills and also aided her in getting back to work. The worker testified that she obtained work on some temporary assignments for a new employer, assembling promotional literature and mailings beginning in or about August 1997, and that she was employed by a different new employer, performing similar work, on an ongoing basis from about 2001 until March 2013, when she retired from employment at age 66.

4 Page: 3 Decision No. 1543/15 (iii) Applicable law and policy [10] The workplace accident which is the subject of this appeal occurred on a gradual onset or disablement basis, and August 3, 1993 was established as the date of accident. Accordingly, the worker s entitlement to benefits in this appeal is governed by the Pre-1997 Act ( the Act ). [11] In this appeal, the worker is seeking full TPD benefits. These benefits are provided for by section 37(2)(b). Section 37(2) states: 37 (2) Where temporary partial disability results from the injury, the compensation payable shall be, (a) where the worker returns to employment, a weekly payment of 90 per cent of the difference between the net average weekly earnings of the worker before the injury and a 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) (ii) 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 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. [12] The case materials also included Operational Policy Manual Document No , on the subject of Definitions for Adjudicating Pre-1998 Claims. The policy document states, in part: Full benefits A worker who has a temporary total disability as a result of a work-related injury is entitled to full benefits (90% of NAE [net average earnings] for pre-1998 claims, or 75% of gross earnings for pre-1985 claims). A worker who has a temporary partial disability as a result of a work-related injury and who has not returned to work is entitled to full benefits provided that the worker is willing to co-operate in a MR [medical rehabilitation] program or WR [work reintegration] activities which, in the WSIB's opinion, will assist in returning the worker to gainful employment, or available for suitable employment that is available to the worker. (iv) The issue under appeal [13] The sole issue to be determined in this appeal is whether the worker is entitled to full TPD benefits during the period from October 3, 1994 to December 30, (v) Analysis [14] At the appeal hearing, the worker testified that she participated in an extensive selfdirected job search during the period from October 3, 1994 to December 30, The case materials included a several page document prepared by the worker in her own handwriting. The document listed several potential employers to whom the worker applied for employment

5 Page: 4 Decision No. 1543/15 between March 1994 and July The case materials also included a typewritten version of the document which was translated into English. The document listed 30 potential employers to whom the worker indicated she applied for employment during this period. The dates on which the worker applied to these potential employers are listed on the document, and they are spread throughout the period noted above, although there are gaps in the chronology, sometimes of a few months. [15] The worker testified, however, that she kept this list so that she would not apply to the same establishment more than once, (i.e., rather than as proof of a job search), and that she did not record all of the potential employers to whom she applied for employment during the noted period. She stated that she applied to at least twice as many potential employers during the period than are listed on the document. [16] The worker testified that, in pursuing employment from 1994 to 1996, she first applied to employers who spoke Polish and served a Polish clientele, and that she made these applications on her own, without assistance. She stated that when she was not able to obtain employment in this manner, she sought the assistance of a family friend who had good English language skills, and was also seeking employment. The worker testified that her husband drove her and the friend to various locations to apply for employment, and that the friend assisted her with the applications. The case materials included an affidavit, dated June 3, 2015, sworn by the friend. The affidavit stated that the affiant helped the worker to apply for employment between 1994 and 2001, except for a period in 1997, when the worker was employed in a temporary assignment. The affidavit stated that the affiant went out with the worker, beginning in late 1994, once or twice per week to look for employment, and that on these occasions, they typically visited three to five businesses. The affidavit stated that the affiant personally helped [the worker] apply in person to at least 100 jobs. [17] The worker also testified that she believed that during the period from October 3, 1994 to December 30, 1996, she undertook further ESL training on her own initiative, although she could not be certain about the dates when she participated in this training. She noted that she had to stop the training because she was unable to concentrate on the course after her mother passed away. I note that the passing of the worker s mother was referred to in a report prepared by the worker s psychiatrist, Dr. Swierczek, dated December 30, That report stated that the worker s mother died last year (i.e., in 1995), and I am satisfied that the worker participated in some ESL courses during the period between October 3, 1994 to December 30, I am also satisfied that the worker did not have strong English language skills in 1994, as is disclosed by the VR documentation prepared in 1994, which recommended ESL courses to prepare the worker for new employment, and that the ESL courses that she took on her own initiative during the period from October 3, 1994 to December 30, 1996 should be considered to have been a vocational rehabilitation program which would aid in getting the worker back to work within the meaning of section 37(2)(b)(i) of the Act. [18] In her submissions, the worker s representative also indicated that the worker had participated in a program of medical rehabilitation during the period between October 3, 1994 to December 30, In this regard, the case materials included: A report dated November 8, 1995, prepared by Ewhenia Lachmaniuk, the worker s physiotherapist, which stated that the worker had undertaken 22 physiotherapy treatment sessions from August 24, 1995 to the date of the report; and

6 Page: 5 Decision No. 1543/15 A report, dated November 17, 1995, prepared by Dr. Jerzy Ochocinski, the worker s family physician, which stated that, since September 1994, the worker had participated in quite vigorous therapy and a steroid injection to the inflamed tendon of the right hand. [19] The worker s representative also indicated that the worker began psychiatric treatment in November 1996 with Dr. Swierczek to treat her compensable psychiatric condition, although this treatment was provided by Dr. Swierczek only during the last two months of the period between October 3, 1994 to December 30, [20] I am satisfied from this evidence that the worker participated in medical rehabilitation during the period between October 3, 1994 to December 30, 1996, and that this treatment was a medical rehabilitation program which would aid in getting the worker back to work within the meaning of section 37(2)(b)(i) of the Act. [21] At the hearing, the worker s representative also indicated that the worker undertook medical treatment during the period from October 3, 1994 to December 30, 1996 to treat chronic paranasal sinus disease, and to treat a left trigger finger condition, both of which appear to be non-compensable conditions. The representative pointed out that section 37(2)(b) refers to medical rehabilitation which would aid in getting the worker back to work, and does not specify that the medical treatment contemplated by the provision must be in relation to a compensable condition, so long as it assists the worker to return to work. [22] Although I agree that section 37(2) is not explicit on the point, in my view, that provision should be interpreted in light of section 52 of the Act, which addresses the subject of rehabilitation, and states that the Board shall take measures and expenditures to aid in getting the injured worker back to work and to assist in lessening or removing any handicap resulting from their injuries I interpret this provision to mean that the Board shall sponsor workers in rehabilitation programs which are designed to address a worker s compensable injuries. Accordingly, in my view, the fact that the worker participated in medical treatment during the period from October 3, 1994 to December 30, 1996 to treat non-compensable conditions does not support entitlement pursuant to section 37(2) during that period. [23] Nevertheless, I am satisfied that, during the period from October 3, 1994 to December 30, 1996, the worker participated in an extensive self-directed job search, to assist her in getting back to work, and that she would be entitled to full TPD benefits during this period, pursuant to section 37(2)(b)(i), on that basis alone. The fact that she also participated in some medical rehabilitation in the form of physiotherapy and psychiatric treatment to address her compensable conditions, as well as some ESL courses, during this period, enhances the evidence in support of entitlement to full TPD benefits during this period, pursuant to section 37(2)(b)(i). [24] The fact that the worker was partially disabled during the subject period, does not appear to be contentious in this appeal. In this regard, I note that the worker is in receipt of a 23% NEL award reflecting permanent partial impairment, and that the Board made subsequent awards to the worker pursuant to section 37 of the Act, which are not under appeal, on the basis that the worker was partially disabled. [25] Accordingly, I find that the worker is entitled to full temporary partial disability benefits during the period from October 3, 1994 to December 30, 1996.

7 Page: 6 Decision No. 1543/15 DISPOSITION [26] The appeal is allowed. [27] The worker is entitled to full temporary partial disability benefits during the period from October 3, 1994 to December 30, DATED: July 31, 2015 SIGNED: M. Crystal