WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2054/13

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2054/13 BEFORE: J. Goldman: Vice-Chair HEARING: October 31, 2013 at Toronto Oral No post-hearing activity. DATE OF DECISION: November 6, 2013 NEUTRAL CITATION: 2013 ONWSIAT 2362 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated June 29, 2012 APPEARANCES: For the worker: For the employer: Interpreter: P. Sacco, Paralegal Not Participating 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. 2054/13 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, dated June 29, 2012, which concluded that the identified Suitable Occupation (SO) of an electronic assembler (NOC #9483) was appropriate, and that the worker s loss of earnings (LOE) benefits were correctly reduced to reflect the difference between his pre-accident earnings and his projected wages in the SO. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The issues under appeal are as follows: 1. The suitability of the identified SO of an electronic assembler; and 2. The reduction in LOE benefits based on the SO of light electronics assembler. [3] The appeal is allowed for the reasons set out below. (iii) Background [4] The following are the basic facts. [5] On April 27, 2004, the now 54-year-old worker, employed since 1988 as a labourer in a cemetery, sprained both knees and his back when he fell into a grave and landed on a casket. The diagnosis was lumbar strain. [6] The worker returned to modified work provided by the accident employer. However, he continued to suffer recurrences and to lose time from work. The Board accepted entitlement to benefits for the recurrences. [7] On April 3, 2010, the worker was assessed for a non-economic loss (NEL) award, and in June 2010, he was granted a 15% NEL award for a low back permanent impairment. [8] In May 2010, the worker suffered another recurrence and was scheduled to be off work until August However, since the employer was no longer able to provide the worker with modified work, he was referred to Work Transition (WT) services. On January 19, 2012, WT services personnel met with the worker who informed them that he was not willing to participate in WT services, claiming that he was totally disabled and unable to perform any work. [9] As a result, Board Case Manager requested WT services to identify a direct-entry position which does not require any training. WT services recommended the SO of electronic assemblers as suitable. WT services noted that the worker would be somewhat limited in the labour market due to his physical restrictions. [10] The worker s LOE benefits were reduced to reflect the difference between the worker s pre-accident earnings and his projected wages in the identified SO. Partial LOE benefits were confirmed at the 72-month lock-in decision in April [11] In January 2011, the worker was granted CPP disability benefits. [12] In his decision dated June 29, 2012, the ARO determined the following:

3 Page: 2 Decision No. 2054/13 Noting the worker s relatively low NEL award of 15 per cent for his low back, and the SO identified, I am satisfied that the reduction in loss of earnings benefits based on the SO of electronic assembler is in order As such, I am confirming that the worker s loss of earnings benefits were correctly reduced to reflect the wage loss in the suitable occupation, as the worker remains fit for suitable employment [13] The worker s objection to the ARO decision is the subject of this appeal. (iv) Law and policy [14] Since the worker was injured in 2004, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [15] Specifically, section 43 of the WSIA governs the worker s entitlement in this case. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Policy Packages: 73; 224; 229; 300 [17] I have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual (OPM) Document No , Payment and Reviewing LOE Benefits ; OPM Document No , Determining Suitable Occupation, dated December 1, (v) Testimony [18] The worker testified that since his immigration to Canada in 1978 at the age of 18, he has performed physically demanding work as a labourer and as a foreman/labourer. The worker completed Grade 6 in his native country and has had no further formal education. The worker indicated that his back condition has deteriorated significantly since his accident. He cannot sit, stand or walk for any length of time. He walks with a limp. His back pain radiates to both his legs, causing numbness in his left leg. He is prescribed strong pain and anti-spasm medication to control his pain which produce side effects such as drowsiness. His sleep is disrupted constantly because of pain. [19] Although the worker thought that he could continue with modified work in August 2010, he is no longer able to do any work. The worker referred to his CPP disability pension and to the reports provided by his treating caregivers which recognize that he is not capable of any employment. (vi) Submissions [20] Mr. Sacco, the worker s representative, submitted that the worker is not capable of gainful employment as indicated in the CPP disability application and the reports submitted by his family physician and chiropractor. The worker s condition has deteriorated significantly. Mr. Sacco noted that at the time the SO of electronic assembler was identified as suitable, the

4 Page: 3 Decision No. 2054/13 worker was already in receipt of CPP disability benefits which were granted on the basis that the worker is unable to work because of worsening back pain. Mr. Sacco submitted that the worker is competitively unemployable and entitled to full LOE benefits to age 65. (vii) Relevant Medical Evidence [21] In his report dated June 22, 2010, Dr. Andre Stillo, D. C. indicated that the worker suffers severe low back pain and back spasms which leave him totally incapacitated. Dr. Still notes frequent recurrences. On July 25, 2011, Dr. Stillo notes that the worker s prognosis is poor due to the chronic nature of his injury and re-occurrences that he has had in the past. On October 22, 2013, Dr. Stillo indicates that the worker s response to treatment has been poor, that there has been little improvement and that he has suffered a permanent disability. [22] In his report dated August 6, 2010, Dr. Lance B. Majl, a neurologist, notes that the worker has chronic lower back pain, and that he has side effects of drowsiness from the medication he is prescribed. [23] In his report dated July 21, 2011, Dr. Salwa Ibrahim, the worker s family physician, indicated the following: [The worker] has developed a chronic and severe pain in his lower back, the pain radiates to his left leg with numbness and tingling sensation. He is also complaining of severe pain in his right leg. [The worker] is having trouble walking, sitting, bending or lifting [The worker s] walk is very limited and he drags his left leg. [He] is disabled physically and mentally with his chronic pain, unfit to return to his job and can not [sic] be trained for any other job. [24] The CPP disability application, which Dr. Ibrahim completed in September 2010, indicates that the worker is unable to work, that he experiences severe pain when walking, bending, lifting or doing any repetitive movement, that he has a severe limp and that he drags his left leg. [25] In his report dated July 29, 2013, Dr. Ibrahim notes that the worker has a severe and prolonged disability and as a result he is incapable of pursuing any gainful occupation. (viii) Analysis [26] In arriving at my decision, I have carefully considered all of the available information in the Case Record, the worker s testimony and his representative s submissions. [27] In the present claim, the worker contends that he is incapable of gainful employment, and that, consequently, he is entitled to full LOE benefits subsequent to April 27, 2010 (the 72-month lock-in date). [28] Entitlement to LOE benefits in this appeal is governed by section 43(1) of the Act, which states in part: 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;

5 Page: 4 Decision No. 2054/13 (b) The day on which the worker reaches 65 years of age, if the worker was 63 years of age or older on the date of the injury Earnings after injury (4) The Board shall deem the worker s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and, (a) if the worker is provided with a labour market re-entry plan, the earnings shall be deemed as of the date the worker completes the plan [29] OPM Document No , Payment of LOE Benefits, stipulates that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits until, among other things, the day on which the worker s loss of earnings ceases; 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. [30] OPM Document No , Payment and Reviewing LOE Benefits, stipulates that at the final review of a worker s LOE entitlement, LOE benefits will be based on the worker s deemed suitable employment or business (SEB) earnings, even if the worker did not return to work. [31] OPM Document No , Determining Suitable Occupation, describes a SEB as follows: Guidelines: A SEB represents a category of jobs suited to a worker s transferable skills that are safe, within the worker s functional abilities, and reduce or eliminate the loss of earnings (LOE) resulting from the injury. [32] Thus, the four criteria within the guidelines for determining the suitability of a SEB are as follows: Suited to a worker s transferrable skills; Safe; Within the worker s functional abilities; and Reduces or eliminates the loss of earnings resulting from the injury. [33] In determining a SEB, the Board considers the worker s functional impairment, skill type, skill level, employment history, and transferrable skills. [34] In the present case, I have concluded that the worker is not capable of gainful employment, and that, consequently, the SO of light electronics assembler is not appropriate. In coming to my decision, I have taken the following into consideration. [35] Although, as noted by the ARO, the worker has a relatively low NEL award, the medical evidence indicates that he suffers from frequent recurrences of low back flare ups and is severely impaired. I noted at the hearing that the worker was unable to stand straight, needed to change position frequently, and that he walks with a limp, dragging his left leg. [36] The worker has very limited education. Although he speaks English fluently, he has limited reading and writing capability. He has few transferrable skills. Since the age of 12,

6 Page: 5 Decision No. 2054/13 when he left school, he has worked as a labourer, performing heavy physical work, work which he is no longer capable of doing because of his medical restrictions. The WT Specialist noted that the worker would be limited in obtaining direct-entry positions due to his physical restrictions. The worker continues to take strong pain medication, which has been noted by his treating physician to have side effects. [37] The worker is in receipt of CPP disability benefits based on Dr. Ibrahim s assessment that his prognosis for recovery was poor, that his back condition and pain were progressively worsening and that, consequently, he was unable to work. [38] In the present case, even if the worker was capable of performing some work occasionally, given his frequent low back flare ups, it would be sporadic at best and would not constitute employability, that is, the ability to obtain and sustain suitable employment. [39] Decision No.835 grappled with the question of the proper standard for deciding whether a worker is partially or totally disabled for the purpose of employability. The decision analyzed the situation of a worker who can sometimes work and sometimes is too disabled to work. That decision came to the conclusion that in order to decide whether a worker is totally disabled, it must be determined whether the worker was capable, on a fairly regular basis, of performing any work. The concept must be relative, not absolute, and the ability to perform work on a very occasional basis does not mean that the total disability had ceased. [40] In Decision No. 2342/06, the Vice-Chair defined the term competitively unemployable as follows: The concept of competitively unemployable is not defined or addressed in the Act or Board policy. It arises out of Tribunal case law as a consideration of the cumulative effect of medical, psycho-social, and employment market factors related to the workplace injury that would reasonably impact a worker s ability to obtain and sustain suitable employment. In one respect, the concept widens the prospect of a worker s ability to obtain and sustain suitable employment. In one respect, the concept widens the prospect of a worker s ability to establish unemployability beyond strict medical grounds. Yet, the concept also requires that the cumulative effect of the factors considered achieve the same result as a finding of total medical disability, that is, unemployability arising from the injury. [41] In conclusion, I find that the worker s loss of earnings is a result of his workplace injury. I further find that the worker is totally disabled for the purpose of employability, resulting from his physical disability. He is, therefore, entitled to full LOE benefits subsequent to April 27, 2010, because the nature or seriousness of the injury completely prevents [him] from returning to any type of work, and the loss of earnings is a result of his workplace injury.

7 Page: 6 Decision No. 2054/13 DISPOSITION [42] The appeal is allowed as follows: 1. The SO of an electronic assembler is not appropriate; 2. The worker is entitled to full LOE benefits as of April 27, [43] The quantum of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: November 6, 2013 SIGNED: J. Goldman