WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1331/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1331/13 BEFORE: G.R.W. Gale : Vice-Chair B. M. Young : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: August 11, 2014 at Toronto Oral DATE OF DECISION: October 1, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2098 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 16, 2012 APPEARANCES: For the worker: For the employer: Interpreter: J. Johal, Paralegal Not participating N/A 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. 1331/13 REASONS (i) Background and issues [1] The Workplace Safety and Insurance Board (the Board ) granted the worker initial entitlement for a low back injury caused when he twisted his back at work on March 26, The employer immediately offered modified duties, and the worker s claim for loss of earnings (LOE) benefits was denied at the Board because the worker failed to carry out the safe, suitable and sustainable modified duties assigned to him by the accident employer. [2] In these circumstances, this appeal by the worker raises the following issues: his objection to the Board s finding that the duties offered by the employer to the worker between April and October of 2009 were within the standard low back restrictions, resulting in suitable modified job duties between April and October of 2009; his objection to the Board s finding that the worker had experienced a full recovery from back his injury by August 10, 2009; the denial of LOE benefits for the worker after October of [3] After confirming the above issue agenda, the worker s representative Mr. Jass Johal advised the Panel that the suitability of the worker s post-injury modified duties with the accident employer was the central issue under appeal. (ii) Worker testimony [4] The worker testified that he was 54 years old at the time of our hearing. He was hired by the accident employer as a machine operator in June of His initial tasks exposed him to toxic resin and he was required to wear full protective clothing in a pre-pack operation which required him to put resin into a machine. In June of 2008, some resin spilled on his coveralls and feet and he sustained a rash for which he was granted LOE benefits in June, 2008 and again in January and February of [5] The worker was assigned to a new job in mid-2008, which required him to load cable materials into a machine with the help of a set-up man, because he could not do this work by himself. [6] The worker testified that he did not really like this work, but the accident employer declined to give him a lighter job. He told the Panel that his work on the cable machine called for a lot of movement from one end of the processing machine to the other. This was required to measure the cable and stop the machine if it was not turning out a cable product to the correct specification. [7] Following his low back injury, the worker was assigned to another job in April of However, he testified that a co-worker who was assigned to assist him kept disappearing to visit friends on the plant floor, and coming back to help the worker only when the worker sought him out for assistance. [8] The worker was taken to the accident employer s Early and Safe Return to Work document titled (ESRTW) Modified Work Plan & Physical Demands Form dated March 23, 2009 and contained in evidence. With the worker s name and the low back area of

3 Page: 2 Decision No. 1331/13 injuries noted at the top of the form, it included the following text under the title Modified Job Duties : Job Task: [The worker] is currently in training for the Cabler 1 position. [The worker] will be learning all aspects of the cabling function by observation only. He will not be required to set-up the cabling machine, changing reels of wire and changing rolls of mylar on the taping heads. When standing and walking, [the worker] may able [sic] to do so on ergonomic matting. [The worker] may also sit using the stool provided at the machine. Essentially, [the worker] will be allowed to alternative [sic] between sitting and standing and take micro breaks when needed. (Emphasis added) [9] Below these provisions, the accident employer s form indicated that the worker would not be required to do any lifting or carrying, and that his tolerance for standing, sitting or walking was to be at will. After reviewing this material, the worker testified that he basically had the same job he had worked before his injury, and that he had complained to the accident employer about the alleged modifications. However, the worker added that he did not make any written complaint to the accident employer, and that his wage earnings were fully paid by the company between April and October of He told the Panel that is still seeing his family physician and a specialist, and he occasionally takes medication to feel better. [10] Following his departure from the company in October of 2009, the worker told the Panel that he attended college to train as an electrician, and that he is still waiting for the appropriate authorities to issue his No. 309 Electrician s Licence. In the meantime, he has accepted jobs through an employment agency, but they generally proved to be too heavy for his condition. [11] At this point, the worker was asked to review a report from a Regional Evaluation Centre (REC) written by an Orthopaedic Surgeon and Registered Physiotherapist at the Altum Health Centre in the Toronto Western Hospital site of the University Health Network and dated August 9, The report was prepared for his family physician and the Board with the worker s consent. The medical assessment involved a different back pain encountered by the worker on a new job in January of 2011, almost two years after the injury and claims raised in this appeal. Quoting a statement by the worker and setting out the specialists summary referral questions, that REC report included the following: HEALTH HISTORY [The worker] reports that he is healthy and has had no previous injuries in the past other than a back injury 20 years ago which fully resolved. CURRENT MEDICATIONS He is taking Gabapentin and Arthrotec a) What are the client s current medical and return to work restrictions? In the meantime he is fit for full-time modified duties. Modifications include lifting less than 10 pounds, and no repetitive bending or twisting. b) What is the duration of these restrictions? Four weeks in total, but with active rehabilitation these restrictions can be gradually lifted as progress is made. Ongoing activities and abilities can be determined by regular Functional Ability assessments, completed by the treating therapist. c) Are these restrictions temporary or permanent?

4 Page: 3 Decision No. 1331/13 These restrictions are temporary. 7. Are there other obstacles that need to be addressed to ensure the client's safe and sustainable return to work? None identified at this time. [12] The worker made no particular response to the initial section of the above quoted report, in which he indicated to the REC specialists that he had been healthy and had no previous injuries in the past other than a back injury 20 years ago which fully resolved, i.e., an injury in The worker also told the Panel that he had a job in 2011 packing beer cases, before which he had other employment through the agency. He received employment insurance benefits for a year and then went on social assistance to support his family. [13] Shortly after the worker s accident date of March 26, 2009, the Board sent the worker a letter dated April 2, 2009, which included the following statements of the Board s position on his claim: Please note that the medical information on file indicates that you are able to return to work with physical restrictions. Your employer has confirmed that there was work available for you immediately following your incident. It is my understanding that you were in training and accommodations were made for you to ensure no heavy lifting was required. It is noted that you lost time from work from March 21 up until April 1, 2009, which is when you returned to work. These accommodations are still available. Section 40 (2) of the Workplace Safety and Insurance Act (WSIA) states that a worker is to co operate in his or her early and safe return to work. When a worker is partially disabled and modified / suitable work within the worker s physical restrictions is available but not accepted, there is no entitlement to loss of earnings (LOE) benefits. Please be advised that I have allowed your claim for health care benefits only. I am unable to pay you loss of earnings benefits for the days you missed from work because there is no medical information on file supporting total impairment and the need for time off from work completely. [14] After reviewing the above portion of the Board s letter, the worker testified that he did not receive the letter in April of The accident employer also wrote to the worker in a letter dated April 6, 2009, which included the following: It has come to our attention that you have failed to follow [the accident employer s] Early and Safe Return to Work Procedures. This issue was first raised during a previous WSIB claim when you were off work Jan 26 th, 2009 to Feb 10 th, 2009, due to a rash. [Name], Health and Safety Supervisor, made several attempts from Jan 29 th, 2009 to Feb 2 nd, 2009 to get in touch with you to offer you modified duties. However, you failed to return any of [name s] messages. Modified duties were available as of Feb 2 nd, 2009, as we placed you in the Cabler 1 position. You failed to contact [name at company] until Feb 9 th, 2009 which resulted in unnecessary lost lime. Recently, you have claimed that you injured your lower back on Mar 20 th, Specifically, on Mar 23, 2009, you were instructed by [name] to bring a WSIB Functional Abilities Form to your medical appointment that was scheduled that day. [Name] also advised you that the Company has a duty to accommodate you and that we would provide you with modified duties based on your doctors restrictions. You agreed and communicated to [name] that you felt that you were capable of performing modified duties. You told [name] that you would have the form completed that day and that you would report to work for the afternoon shift that day. The FAF was not picked up prior to

5 Page: 4 Decision No. 1331/13 your appointment which led to the form not being reviewed by your physician and causing unnecessary lost time. Furthermore, on March 25 th, 2009, you once again communicated to [name] that you were capable of performing modified duties, as you were still in training for your new position and no physical labour would have been required. [Name] had advised you that you must inform your doctor regarding [the accident employer s] accommodation, as [the accident employer] had suitable modified duties available and you agreed that you were capable of working. On all three occasions, you did not return to work on the days that you communicated to [name]. [Name] had communicated to you that you were placing yourself in a position where WSIB may not pay you loss of wages. (Emphasis added) [15] The worker told the Panel that he did receive the above letter from the company, recording the modified duties and the employer s concern that the worker s conduct might put him in a position where the Board would pay him any LOE benefits. [16] The accident employer wrote again to the worker on April 14, 2009, as follows: As you are aware [the accident employer] has been providing you with modified duties as per your attending physician's recommendation. To be more specific, the Health & Safety Supervisor at [the accident employer] had asked that you limit all physical activity and further instructed you to only observe the other operators while in the initial training phrase [sic] of your recent transition into this position. On April 7 th, 2009 while you were working on restricted duties you had gone to your Supervisor and explained to him that your back was sore. The Supervisor asked you why your back was sore and you stated it was sore because you were cutting cable. You then requested to leave early for the day because of your condition.... In addition, [name] Human Resources Manager and your supervisor [name] personally met with you on Thursday April 9, 2009 to clearly explain that you are not to work outside your restrictions. You mentioned during this meeting that you were going to go to your attending physician to have your restrictions lifted. You were cautioned again not to do anything at all but train and observe until such time these restrictions are lifted. It should be noted that you said in the meeting that you don't think you have any problems with your back and that you had an old injury from a long time ago. (Emphasis added) [17] The worker also confirmed that he received this hand delivered letter from the company, and also that the text in which he was quoted above is correct, including the worker s statement soon after the accident that he didn t have any problems with his back, and that he planned to ask his doctor to lift his restrictions. [18] The worker was next asked about Functional Abilities Form (FAF) prepared for the Board by Dr. Larry Bacher at the Malvern Medical Clinic on March 30, 2009, which form stated that the worker should be assigned to light duties with no setup of rods. The same physician issued an RX note also dated March 30, 2009 and stating this patient will be able to return to modified work in two days. Light duties only. [19] After reviewing these materials from Dr. Bacher, the worker told the Panel that he always followed his doctor s advice and thus sought to carry out and fulfill the restrictions involving modified, light duties. However, he also testified that the accident employer made him work on

6 Page: 5 Decision No. 1331/13 the cable machine with help from a co-worker who kept disappearing, only to return to fix a breakdown or deal with other problems. [20] The worker s employment was terminated by the company on October 6, 2009 and he testified that he did not recall receiving any of the severance, vacation pay or other benefits offered by the company, although he was previously making between $700 and $800 a week. [21] Mr. Johal next took the worker and the Panel to a report from Dr. Kevin M. Grant, an orthopaedic surgeon specializing in spinal disorders, dated February 17, That report referred to the worker s new back pain complaint in January of 2011 cited above, and included the following statement: On examination today in clinic he is average sized. He was aligned in the sagittal and coronal planes. There was pain to palpation within the paraspinal musculature of the lumbar spine on the right hand side.-his range of motion was diminished slightly in forward flexion secondary to pain. A neurological examination was performed in the lower extremities which revealed normal motor sensations and reflexes. He had no evidence of nerve root tension and no evidence of myeolopathy [sic]. I do have imaging to suggest lumbar spondylosis. There is foraminal stenosis at L3-4 that does compromise the exiting L3 nerve root. In summary this 50 year old gentleman is now just over a month following a lifting injury at work. Certainly his lumbar spondylosis could be contributing to his low back pain but I think the vast majority of his symptoms are coming from a soft tissue injury resulting from a heavy lift. He has no signs in keeping with a radiculopathy on physical exam. I explained to him that the main stay of treatment for this condition is non-surgical. Activities such as physiotherapy, acupuncture, chiropractic treatments, massage, or a visit to a pain clinic may be beneficial. With his current set of symptoms he may be limited to repetitively bend, lift, or twist his low back. I think he should remain on modified duties. [22] When the Panel pointed out that this material did not relate to the claims or issues under appeal, Mr. Johal asked us to consider a Worker s Report of Injury/Disease (Form 6) to the Board dated January 17, 2011 and recording a lower leg injury arising from the worker s need to load boxes from a skid to a conveyor belt. Mr. Johal pointed out that, in its letter of February 17, 2011 to the employment agency, the Board confirmed that health care benefits would be allowed, and that it would consider LOE benefits once earnings data was made available to the Board. Again, the Panel noted to Mr. Johal and his client that these materials were generated in a new and separate Board claim file, and did not relate to the issues or claims under appeal. [23] The Panel and Mr. Johal next looked at a series of clinical notes prepared by one of the worker s treating physicians. The notes are very difficult to decipher and the representative and the Panel members confirmed that there did not appear to be any entry relating to the worker s back injury in March of Mr. Johal then indicated that his worker s evidence was complete and we invited him to make closing submissions on the merits of his client s appeal. (iii) Closing submissions [24] As before, Mr. Johal submitted that the only issue under appeal was the suitability of the modified work provided by the accident employer. While the record suggested a very light duty involving the observation and training of work on the job, the worker s testimony had indicated that he was essentially assigned to the same job he undertook before his injury. Accordingly,

7 Page: 6 Decision No. 1331/13 Mr. Johal argued that the worker s evidence should be taken to have established that the modified work was not safe and sustainable. [25] Mr. Johal also pointed out that the worker had written to a Case Manager at the Board on December 13, 2010 in relation to his earlier job dealing with toxic resins. The letter included the following passages: I have to inform you that I started working in [accident employer] located at [address] as Pre-Preg Operator from June 18, 2007, my job duties was to pour liquid fiber glass in the bucket and put in the machine from the bucket, that was one of my duty [sic]. I was very happy from my work, the reason was? [sic] it was very easy job physically and suitable for my lower back, I can not [sic] lift very heavy items continuously [sic]. I never had any big lower back problem while working in Pre-Preg Department. Few months later I got rashes on my skin from liquid fiber glass, I am still suffering like a hell from those rashes. In Febuary [sic] 2009 my Dermatologist Dr Sophie L. R. Hofstader wrote a letter to transfer me to different department where I will not have no contact with liquid fiber glass. Febuary [sic] 2009 I was removed from Pre-Preg Dipartmerit [sic] located at [address] and put me in Cabler Department which was located at different location, it was very heavy job, lots of heavy pushing heavy lifting, it was not suitable for my lower back. I requested [accident employer] management to give me another job as I was hurting my back. They moved few employees from Cabler to different department in [address] location but they did not move me insted [sic] they started giving me warning letters for termination and all dirty games. [26] After our review of this material, Mr. Johal confirmed to the Panel that he could not refer us to any doctor s report stating that the modified work offered by the accident employer was not suitable, safe and sustainable. Instead, he referred us to a physiotherapist s Treatment Extension Request dated June 29, 2009, in which form the physiotherapist noted that the required treatment would start at the end of June, 2009 and end on August 10, The Panel noted that the latter date coincides with the Board s finding that the worker had experienced a full recovery from his back injury by August 10, Mr. Johal then concluded his submissions. (iv) Analysis and conclusions [27] The accident date established for the worker s claim under appeal was March 26, Accordingly, his rights and claims are governed by the provision of the Workplace Safety and Insurance Ace, 1997 (the Act) together with those Board policy provisions which were considered to be relevant to the merits of this appeal, which policy provisions the Panel has considered in the course of developing its decision, including: Package No. 36 LOE Benefits; Package No. 37 Reviewing LOE benefits as of July 1, 2007; Package No. 61 NEL Entitlement; Package No. 86 Early & Safe Return to Work with Accident Employer DOA as of January 1, 1998; Package No. 300 Decision Making/Benefit of Doubt/Merits and Justice.

8 Page: 7 Decision No. 1331/13 [28] We will first point out that medical advice and evidence, or related scientific data, does not have to provide an absolute and certain connection between a workplace injury and its consequences. However, a Tribunal Panel must be satisfied, on the balance of probabilities, that a workplace accident and injury, here claims arising from pain in the worker s back, has not been addressed and adequately dealt with by the provision of suitable, safe and sustainable modified work duties. To put this another way, a worker who wishes to challenge the suitability of postinjury modified duties must submit cogent and independent evidence which supports and persuasively establishes the worker s position that the employer s modified duties were not suitable. The simple assertions of the worker will generally not suffice, especially in the face of clearly documented evidence that such modifications were assigned by the company and did meet the physical demands and appropriate restrictions called for by the workplace back injury. [29] During his testimony at our hearing, the worker asserted that he effectively did the same cabler job he had carried out before his back injury. He told the Panel that a co-worker was assigned to help him, but that helper tended to disappear from his work area. This aspect of his evidence raised some questions for the Panel. First, if the worker was not working in accordance with the restrictions and modified duties provided and recorded by his employer, whose details we have quoted in these reasons, he was in breach of his duties to co-operate in his ESRTW activities under the provisions of Board Operational Policy Manual (OPM) Document No forming part of Policy Package # 86 cited at the outset of this analysis. Such a breach would have authorized the Board to reduce or suspend his benefits, although we note that the worker was paid health care benefits and suffered no loss of earnings before his employment ended in October [30] The worker also told us that he did receive the company s letter quoted in paragraph [13] of these reasons, which recorded his agreement that he was capable of performing his suitable modified duties as provided by his employer and confirmed by his doctor. After reviewing that correspondence created soon after his accident date, the worker assured the Panel that he always sought to comply with his doctor s advice and to perform his modified duties. With this background, we cannot accept the inference that the worker was not given suitable modified work, or that he was forced to carry out tasks beyond his restrictions or capabilities. In the end, the worker s suggestion that he did not have safe, sustainable and suitable work between March and October of 2009 cannot be accepted or relied on to support his position that the employer was in breach of its ESRTW obligations in terms which would support this appeal. [31] In light of these observations, the Panel has carefully reviewed the documentary record and the worker s testimony, and that review has led us to the following findings of fact which support and inform our conclusion in this appeal: the worker was granted initial entitlement for health care benefits arising from his low back injury claimed to have occurred on March 26, 2009; as early as March 23, 2009 the accident employer recorded that the worker was currently in a training program for a cabler position, and that he would be learning all aspects of the cabling function by observation only, and that he would not be required to set-up the cabling machine, changing reels of wire and changing rolls of mylar on the taping heads as recorded in its ESRTW Form quoted in paragraph [7] of these reasons; those modified duties clearly addressed and provided work which met the standard low back restrictions and suitable tasks called for in response to a back injury;

9 Page: 8 Decision No. 1331/13 by mid-april of 2009 the worker told that company that he had no problems with his back, and that he would ask his family physician to lift his work restrictions; the Board eventually concluded that the accident employer had provided the worker with suitable, safe and sustainable modified duties on the same day the worker s claim was submitted to the Board under Dr. Bacher s Form 6 Report dated March 23, 2009; as a result of the Board s review of the various materials submitted by or for the accident employer, the worker s objection to the finding of suitable modified work was denied at the Board; the available evidence, including the final report from the worker s physiotherapist cited in paragraph [25], above, supports the Board s ruling that the worker had recovered from his low back injury by August 10, 2009; the worker did not sustain any loss of earnings between his injury date and the termination of his employment on October 6, 2009; there is no documentary evidence in the record to establish that the worker contacted the Board to express concern that his modified duties were not suitable; as quoted in these reasons, in August of 2011, the worker told the assigned specialists in a REC centre that he is healthy and has had no previous injuries in the past other than a back injury 20 years ago which fully resolved ; the worker acknowledged receiving the company s letter of April 14, 2009, which effectively set out the company s provision of suitable modified duties and warned the worker about the Board s possible denial of his claim for LOE benefits; furthermore, as noted in the decision of the ARO at the Board, the worker acknowledged that he received another warning from the employer stating that he had been specifically told that his duty was to observe only; there are no medical reports in evidence indicating that the worker was complaining about his difficulty with the modified work duties; and in his closing submissions, Mr. Johal candidly agreed that there was no independent evidence in the Record from a treating physician or specialist stating that the modified duties described and provided by the accident employer were not safe, suitable or sustainable for the worker. [32] In the light of these findings, the Panel has concluded that, on the balance of the probabilities raised by all the evidence, the worker has failed to establish a finding that the employer s modified duties were not suitable. He was paid his earnings until the termination of his employment, prior to which the Board s finding that his injuries were resolved by August of 2009 is fully supported by the available evidence. Accordingly, the worker s challenge of the modified duties cannot be accepted, nor can his claim for LOE benefits beyond October of Our findings of fact and the impact of those findings on this appeal have led the Panel to conclude that the worker s appeal must be denied.

10 Page: 9 Decision No. 1331/13 DISPOSITION [33] The worker's appeal is denied. DATED: October 1, 2014 SIGNED: G.R.W. Gale, B. M. Young, C. Salama