WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 972/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 972/11 BEFORE: S. Shime : Vice-Chair V. Phillips : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: April 18, 2011, at Hamilton Oral DATE OF DECISION: June 10, 2011 NEUTRAL CITATION: 2011 ONWSIAT 1476 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated December 17, 2009 APPEARANCES: For the worker: For the employer: Interpreter: S. David Gorelle, Lawyer M. Blythe, Paralegal 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. 972/11 REASONS (i) Introduction to the appeal proceedings [1] The accident employer ( AE ) appeals a decision of the ARO, which concluded that the worker was entitled to full loss of earnings ( LOE ) benefits for the short-term layoff from July 10, 2008 to September 8, The ARO rendered a decision based upon the written record without an oral hearing. [2] The employer was represented by Mr. S. David Gorelle. The Return to Work Coordinator testified as a witness for the employer. The worker testified on his own behalf and was represented by Mr. M. Blythe, a licensed paralegal. The Panel reviewed the testimony of the witnesses, the submissions of the parties and the exhibits in the Case Record in reaching its decision. (ii) Issue [3] The issue before the Panel is whether the worker s LOE during the work disruption from July 10, 2008 to September 8, 2008 is due to the worker s employment situation or his workrelated impairment/disability. [4] The appeal is denied for the reasons set out below. (iii) Background [5] The following are the basic facts. [6] The now 45 year old worker started as a temporary ironworker with the accident employer in April All trades people are listed as temporary workers at the AE due to the ongoing work disruptions. The worker was injured on March 12, The worker was diagnosed in the Health Professional s Report, dated March 20, 2008, with a grade 2 sprain of the ACL in his right knee. The worker attended physiotherapy from March 20, 2008 to May 7, 2008 according to the Case Record. [7] On May 8, 2008, the worker was seen by Dr. S. Richie, an orthopedic surgeon, who noted the following: He has a medial transverse as well as an oblique parapatellar scar in the knee. His range now is through to about 120. He has a small amount of fluid in the knee and probably in his contralateral knee as well. There is no collateral instability, but a feeling of a Grade I or II Lachman and a I or II drawer. He has some ridging along the medial side. There is crepitus as he moves his knee. There is some minor discomfort on the lateral side as well. There is no rotational pain. DIAGNOSIS: This man had an open meniscectomy 30 odd years ago and undoubtedly has osteoarthritic changes in the medial compartment. His current injury likely damaged some of the articular cartilage or may have given a bone bruise. I think this knee should be treated conservatively still with on-going therapy.... [8] An MRI, dated May 29, 2008, stated as follows:

3 Page: 2 Decision No. 972/11 Volume loss involving the medial meniscus with increased signal as described above which could represent a retear or postoperative change. Partial tear of the anterior cruciate ligament. Degenerative change with some cartilage thinning and subchondral sclerosis in the medial compartment as described above. [9] A letter to the worker s family doctor from Dr. Richie, dated June 11, 2008, diagnosed the worker with an arthritic medial knee from pervious open meniscectomy and a partial ACL rupture. On July 8, 2008, Dr. Richie examined the worker again and noted as follows: He is having ongoing discomfort with [the knee] especially with steps or squatting.... Examination shows medial sided discomfort still as before, good range of motion, no fluid. This man has an osteoarthritic knee. He has had a previous open medial meniscectomy. There is a suggestion of partial ACL rupture which may be old or new. [10] The worker underwent surgery on August 29, The Claims Adjudicator denied the worker s request for LOE benefits during the work disruption in a letter, dated August 11, This decision was overturned by the ARO in the decision dated December 17, It is this decision that the AE now appeals to the Tribunal. [11] The worker reached MMR on March 3, 2009 and has permanent restrictions of no squatting, climbing, kneeling or pivoting as per Board Memorandum # 29, dated March 25, He was granted a 7% non-economic loss in November (iv) Law and policy [12] Since the worker was injured in 2008, 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. [13] 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: Package # 36 LOE benefits Package # 37 - Reviewing LOE benefits as of July 1, 2007 Package # 74 Work Disruptions Layoffs Package # 86 - Early and Safe Return To Work with Accident Employer- DOA as of January 1, 1998 Package # 300 Decision Making/Benefit of Doubt/Merits and Justice [14] We have considered these policies as necessary in deciding the issues in this appeal, in particular: Operational Policy Manual ( OPM ) Document No , Entitlement Following Work Disruptions: General ;

4 Page: 3 Decision No. 972/11 OPM Document No , Entitlement Following Work Disruptions: Short-term and Long-term Layoffs [15] OPM Document No reads as follows: SHORT-TERM LAYOFFS PARTIAL WORKFORCE For workers who are involved in a short-term layoff that involves only part of the workforce, the decision-maker has to consider the following 1. The employer's re-employment obligations 2. The workplace parties' co-operation obligations in ESRTW 3. The cause of the loss of earnings-is the worker's loss of earnings during the work disruption primarily due to the employment situation, or the work-related impairment/disability. Each of the preceding steps must be followed sequentially as detailed below. [16] OPM Document No also details the following analysis: Factors suggesting employment situation The worker's lack of qualifications (i.e., worker with more qualifications would not be laid off). The worker is working for a new employer (i.e., has demonstrated that the worker's injury does not pose a barrier to acquiring new employment). The worker needs minimal or no accommodation. The worker's lack of seniority (i.e., worker with more seniority would not be laid off). The worker chooses not to exercise bumping rights or chooses to be laid off. Factors suggesting work-related impairment/disability The worker is still receiving WSIB-approved active (non-maintenance) health care treatment (e.g., physiotherapy) on a frequent basis. The worker is in the early phase of recovery (i.e., recent date of accident/recurrence/ deterioration). The worker requires a high degree of accommodation; tasks and work processes have been specifically accommodated for the worker. The worker is unable to bump a co-worker with less seniority due to his/her work-related impairment/disability. Decision-makers need to exercise judgement in these cases to make sure there isn't more than one injured worker able to bump into the same job. If there is more than one, only the worker with the highest seniority would get the benefit of this factor weighed in his/her favour. (v) Testimony of the employer s return to work coordinator [17] The witness testified to the following information: [18] She has worked at the accident employer for five years. Her job is to assist with return to work and workplace safety issues. The AE is a nuclear facility which generates electricity. The

5 Page: 4 Decision No. 972/11 worker was an ironworker and was listed as an Appendix A mechanic. He would assist with work on valves, replace valves in the pump house, work on the rapid deployment platform and perform shop work. On the rapid deployment platform, employees would make sure that the platform was not contaminated by loose radiation. The employees would wipe down the platform with Windex to keep it clean. In the shop, ironworkers would communicate on a headset with workers in valve room and also act as entry monitors. Ladder climbing and scaffolding work is approximately 20 % to 25% of the regular duties of an ironworker, other than the ironworkers on the shop floor. [19] The AE has breaks in employment from time to time due to either a lull in work or the completion of a project. When a project ends, there is no work at the AE for Appendix A workers. All ironworkers were impacted by the layoff from July to September When there is a break in work, the employees put their name on a list and stay at home until they are called back to the AE. The list is put together by the union and the management at the AE. All Appendix A and Building Trade workers are listed as temporary by the AE. A break is a shortterm layoff. The employees use the breaks as holiday periods. A record of employment is issued to workers on breaks so they can claim unemployment insurance. [20] The worker had his accident on March 12, He was walking to the parking lot and slipped on some ice. The paramedic from the AE came out to treat the worker and he was subsequently taken to the hospital. The worker returned to modified duties. The worker engaged in on-site physiotherapy at the AE, but he did not have any Board sponsored medical care as far as she is aware. The modified duties were in the shop. The duties involved cleaning and servicing machines and keeping the shop floor clean. The worker performed modified duties until the layoff. The worker did not have significant accommodation while he was on modified duties. The work after the accident was the same as before the accident as there are always ironworkers working on the shop floor. The AE provides bicycles and golf carts at the worksites for all workers to get around. [21] The worker returned to work on September 8, He returned to work as an Appendix A mechanic and had permanent physical restrictions when he returned to the AE. He was deemed a modified worker in September 2008 as he had climbing and walking restrictions. The worker is currently still on modified duties. The worker s RTW was successful. (vi) Testimony of the worker [22] The worker testified to the following information: [23] He has been an ironworker since He has worked at over 100 employers throughout North America during that time. The work has ranged from twelve hours to two and a half years at any given employer. He got work at the AE five years ago through the union hall. In January 2008, he was recalled to work. He received security clearance and his certificate of qualification to work at the AE s facility. Some ironworkers would have both clearance and the certificate, but not every ironworker. He was at the AE from January to June [24] In order to get union jobs as an ironworker, there are three methods. 1. Rise to the top of the union list through seniority;

6 Page: 5 Decision No. 972/11 2. Name recall; and 3. Solicit work independently. [25] When workers are laid off on breaks, the AE can recall 50 % of the workers by name (name recall) and the other 50% must be off the seniority list. In order to solicit work, an ironworker would call previous employers and then the employer would request the worker by name during a recall for a job. [26] In North America, workers get jobs through an ironworker hotline that lists all jobs throughout North America. Workers also go through their own local unions. The worker performed ironwork at the AE for 2 years prior to his accident. After he was recalled in January 2008, the worker performed regular ironworker duties. This involved heavy rigging, climbing, heavy lifting and working with cranes. The ironworkers would set up the cranes and tear them down at the end of a project. The lifting was between 25 to 100 pounds during a regular shift. The worker would also help to set up and put in place the rapid deployment platforms. Smaller deployment platforms weigh approximately one tonne. Larger deployment platforms weigh eight tonnes. In the shop, the work would involve pulling, pushing and lifting. [27] After his accident in March 2008, the worker was assigned to modified duties on the shop floor due to his restrictions. He performed fire watch which entails checking that there are no fires. He also worked as the entry monitor. This job involved recording the entry and exit of all employees as well as recording the tools that were being brought in and out of the shop. He also worked doing atmospheric gas testing in which he would run gas sniffers and test for oxygen. The worker also worked in decontamination which involved a lot of standing, but not very much lifting. His physical restrictions included no extended walking, no extended standing, no stairs, no climbing, no scaffolds and lifting to be determined by worker. [28] When he was laid off in June 2008, the worker did not have bumping rights as all ironworkers were laid off at that time. He put his name on the union list to be recalled as he was not eligible for union benefits until he refused a job due to his physical restrictions. Union halls will not dispatch physically restricted workers so he would never be able to turn down a job and get union benefits. He did not look for work independently as he was awaiting surgery. He was physically incapable of performing ironwork due to his knee. The surgeon told him to stop physiotherapy until after his surgery. [29] The worker was called back for modified duties in September He did not receive calls for any other jobs other than the AE. He does modified work on the shop floor currently. He had prior knee surgery when he was 12 years old and had an arthroscopy at age 14. He started work at the AE on April 3, (vii) Employer s submissions [30] The employer s representative submitted that the Claims Adjudicator made the correct decision and the ARO findings should be overturned. Mr. Gorelle asserted that the issue for the AE was not one of money, but rather it was an appeal on principle. Mr. Gorelle submitted that the wrong message would be sent if a worker is paid benefits when he should not be receiving them. The representative submitted that it is not fair to provide compensation where a worker is fit and able to receive remuneration. He suggested that this argument was one of merit and

7 Page: 6 Decision No. 972/11 justice in the compensation system. Mr. Gorelle pointed to the issue of employability and submitted that by July 10, 2008, the worker was four months after his compensable accident and that he was able to work for remuneration. He cited the worker s functional abilities form ( FAF ) from July 2008 to illustrate that by July 10, 2008, the worker s condition had improved. [31] The representative also submitted that the worker was not engaged in active health care treatment from the Board and that the AE had not provided a high degree of accommodation. He argued that the flow of the project evolved into decontamination work. Mr. Gorelle submitted that the worker performed ironwork after the accident and that he was capable of performing that work with a different employer during the short-term layoff. He submitted that the worker had not looked for work and had not incurred a wage loss. He argued that, but for the surgery, the worker would have continued working until his surgery. The representative suggested that it was not fair for this worker to receive compensation during the period of the short-term layoff from July 10, 2008 to September 8, 2008 when his co-workers did not receive payment. He noted that the worker s ACL was not torn and that the surgery revealed largely pre-existing arthritis. [32] Mr. Gorelle submitted on redirect that the worker could have found work in the general labour market and that there was no evidence before the Panel that the worker could not find work that did not involve heavy physical labour. (viii) Worker s submissions [33] The representative submitted that the Panel should affirm the decision of the ARO and deny the employer s appeal. Mr. Blythe submitted that the circumstances of this worker fall squarely within the policy and that the worker fits the criteria for a work-related impairment under the policy. [34] Mr. Blythe submitted that employability was the issue before the Panel and whether the worker s loss of earnings was due to his compensable accident. He submitted that the worker s duties were highly modified even though the worker was performing ironworker duties. Mr. Blythe suggested that the worker was not in the early phase of recovery as per the policy until after his surgery had been performed. He submitted that the worker had physical restrictions and due to the highly physical nature of ironwork, the worker was unable to work as a result of his restrictions. He suggested that on previous layoffs, the worker had found work from other methods than the union list. (ix) Analysis [35] In this case, the Panel reviewed the sequential steps as laid out in OPM Document No regarding determination of LOE benefits for this worker. The parties do not dispute the first two steps in the ladder. Rather, the issue before the Panel is whether this worker s loss of earnings during the work disruption from June 10, 2008 to September 8, 2008 was primarily due to the employment situation or the worker s work-related impairment/disability. [36] The Panel finds based on the evidence that the worker s loss of earnings during this period was related to his work-related knee impairment. The Panel affirms the decision of the ARO and denies the employer s appeal. The reasons are set out below.

8 Page: 7 Decision No. 972/11 [37] The employer asserted three arguments regarding the chart listed in OPM Document No and outlined in the policy section above to support its position. The worker was not in the early phase of recovery by June The representative cited the FAF, dated July 7, 2008, as support for this argument. The worker was not in Board-approved active medical care such as physiotherapy pursuant to OPM Document No and OPM Document No ; and The worker did not require significant accommodation and was still performing the work of an ironworker after his accident. [38] The Panel will approach each argument in order. The Panel finds that the worker was not in the early stages of recovery until after he had undergone surgery on August 29, As noted by the employer, the worker s FAF, filled out by Dr. Richie on July 8, 2008, clearly reflects a difference in capabilities from the previous FAFs dated March 27, 2008, April 17, 2008, and May 7, However, the FAFs were filled out by the worker s physiotherapist on the prior dates and the FAF, dated July 2008, was filled out by the worker s orthopedic surgeon. The Panel notes that the forms have some aspect of subjectivity depending on who fills out the relevant sections. The Panel finds that these differences do not necessarily reflect a significant change in a worker s capabilities, but rather the subjective view of the reporting party. In this case, the orthopedic surgeon would only examine the worker on a limited basis. Thus, the surgeon would fill out the form in a different manner from a physiotherapist who was intensively working with an injured worker. [39] Moreover, even if the worker had experienced some improvement in his physical condition, which would be expected to some degree in most cases, the Panel finds that the difference in capabilities reflected in the July FAF does not imply that the worker was no longer in the early phase of recovery. In fact, the medical evidence suggests otherwise. [40] In May and June, the worker was undergoing conservative medical treatment which primarily involved physiotherapy and over the counter medicines. Dr. Richie suggested in his letter, dated May 8, 2008, that the worker should continue to be treated conservatively with physiotherapy. However, by July 8, 2008, the same date as the FAF cited by Mr. Gorelle, Dr. Richie was recommending surgery for the worker and considering a possible ACL tear in the worker s right knee. While the worker ultimately did not have a tear, the recommendation of surgery signals a clear deterioration in the worker s status as well as long-term prognosis by the medical professionals. [41] Based on the recommendation of Dr. Richie, the worker discontinued physiotherapy and awaited surgery which was performed in August The Panel accepts the submissions of the worker s representative that the worker s early phase of recovery started after he underwent surgery. Prior to that time, the Panel finds that the worker was undergoing conservative, albeit unsuccessful, treatment to improve his prognosis. Moreover, even if the Panel were to find that by June 2008, the worker had completed the early phase of recovery, the Panel finds based on other factors cited below, that the worker s lack of employability was work-related from June to September 2008.

9 Page: 8 Decision No. 972/11 [42] The Panel finds in this case that the worker required a high degree of accommodation. While the employer submitted that the worker was performing ironworker duties on the shop floor and, therefore, did not require significant accommodation, the Panel does not accept these submissions. When the worker returned to work in March 2008 after his accident, he was placed on the mechanical maintenance shop floor where he performed modified duties as an entry monitor, fire watch person and gas tester among other tasks. It is noteworthy that the AE designated these job tasks as modified ironworker duties both before and after the worker s accident and surgery. [43] The Panel finds that while there are ironworkers who perform shop duties, they are not the regular duties of an ironworker for the majority of the time. The worker s RTW specialist testified that approximately 20% to 25 % of an ironworker s duties involved ladder climbing and scaffolding work. The worker also testified that iron work involved extensive lifting of heavy rigging and setting up and tearing down of cranes and scaffolding. The worker testified that in the 20 years that he worked as an ironworker, his work involved primarily heavy physical labour. [44] The Panel accepts that, at times, ironworkers rotate duties or perform less physical work at the completion of a project. However, the Panel is not persuaded that the worker only required minimal accommodation. The Panel finds that the worker performed highly accommodated duties on the mechanical maintenance shop floor in the period after his accident. While the worker may have performed some of these duties prior to the accident due to the winding down of the project, these duties were only a small portion of the worker s job. [45] Moreover, the worker testified to the heavy nature of his regular ironworker duties at the AE from January to March He testified that he was climbing, lifting rigging and other materials that weighed between 25 to 100 pounds, and setting up cranes and deployment platforms. The worker s duties from March to June 2008 and subsequent to his surgery in August 2008 are radically different from the heavy physical ironwork that he was performing prior to the accident on March 12, This factor alone suggests a high degree of accommodation for this worker under these circumstances. [46] While the representative for the AE suggested that the worker could have found work in the general labour market as outlined in OPM Document No which may have been less physically demanding, the Panel does not accept these submissions. The Panel finds that it is not realistic to expect a worker awaiting knee surgery to find a short-term job in either the general labour market or as an ironworker. Employability under OPM Document No is defined as follows: Employability refers to the worker's ability to earn income and find alternate employment in the general labour market. Factors that influence a worker's employability include but are not limited to work-related impairment(s)/disabilities other non-compensable disabilities level of education (including special certificates/licenses), and/or transferable skills and aptitudes. [47] In this case, the worker was a highly skilled tradesman who had worked in the ironworker trade for over 20 years. In June 2008, he was awaiting knee surgery. The Panel is persuaded that the worker was not employable as either an ironworker or in the general labour market due

10 Page: 9 Decision No. 972/11 to his compensable work-related impairment. The Panel accepts the testimony of the worker that the union hall would not recommend injured workers for jobs. Therefore, the employer s argument that the worker had not turned down ironwork, cited in the Claims Adjudicator s letter as well, is not meaningful to this Panel. The issue is whether the worker was employable and the Panel finds that the worker was clearly not capable of performing the full range of ironworker duties. While the employer submitted that the worker was subsequently not found to have an anterior cruciate ligament ( ACL ) tear, the worker and the surgeon both believed that he might have a tear in July and August The Panel finds that it is unrealistic to expect this worker to be recalled or solicit ironwork with an ongoing knee injury. [48] Moreover, while the AE suggested that this worker could have looked for less physical work in the general labour market, the Panel does not accept these submissions. The worker had no transferable skills or aptitudes that would make him employable in an office or sedentary position. Moreover, once the worker explained his restrictions to a potential employer and informed the employer that he was awaiting surgery, the worker would have become unemployable. The issue is not whether the worker could have looked for work in the general labour market, but whether he was able to earn income and find alternate employment in the general labour market. Given the worker s physical restrictions, level of education, lack of transferable skills, and pending surgery, the Panel is persuaded that the worker was not employable due to his work-related knee impairment. But for the worker s right knee impairment, he would likely have found work in his own trade during the work disruption. [49] The employer also submitted that the worker was not in Board- approved active health care treatment during the period of the short-term layoff as he was not engaged in physiotherapy or other active therapy to treat his knee injury. The Panel finds, however, that the worker was still in Board-approved active health care treatment from June 2008 to September The worker testified that his surgeon, Dr. Richie, recommended that he stop physiotherapy in order to prevent possible further damage to his right knee. The Panel finds that as long as a worker is actively engaged in seeking medical treatment and following the recommendations of his treating doctor, he is in Board-approved active health care. It would not be logical that a worker would be denied benefits on the basis that he is not undergoing active therapy when he is following the recommendations of a medical professional. While the policy cites physiotherapy as an example, the Panel finds that active medical care treatment also includes attending all medical appointments, medical imaging appointments and following the recommendations of the treating physicians. In this case, the worker attended all medical appointments as well as medical imaging appointments during the period in question and was, therefore, engaged in active Boardapproved health care treatment.

11 Page: 10 Decision No. 972/11 DISPOSITION [50] The employer's appeal is denied. DATED: June 10, 2011 SIGNED: S. Shime, V. Phillips, M. Ferrari