WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 780/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 780/14 BEFORE: J. Noble : Vice-Chair A.D.G. Purdy : Member Representative of Employers J.A. Crocker : Member Representative of Workers HEARING: April 24, 2014 at Hamilton Oral DATE OF DECISION: July 29, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1639 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated March 10, 2010 and November 26, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Mr. D. Porter, Paralegal Not participating None 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. 780/14 REASONS (i) Issues [1] The issues to be decided in this appeal, with reference to the ARO decision dated March 10, 2010, are whether the Suitable Employment or Business (SEB) of Elemental Services is suitable for the worker; and whether the worker should have entitlement for full Loss of Earnings (LOE) benefits in Claim C. [2] The issue to be decided in this appeal, with reference to the ARO decision dated November 26, 2012, is whether the worker should have entitlement for a Non-Economic Loss (NEL) assessment for hernia injuries of November 10, 2003 in Claim A. (ii) Background (a) Claim A [3] On November 10, 2003, the worker was replacing an empty oil drum with a full one and slipped and felt sharp pains in his groin. The original diagnosis was umbilical hernia, right inguinal hernia and groin pull. The worker was referred to a specialist on November 24, 2003 and 3 hernias were identified in the assessment, including bilateral inguinal hernia and umbilical hernia. The worker had surgery on December 9, 2003 for all 3 hernias. [4] It was recommended that the worker could return to work on February 23, The Board paid LOE benefits from the date of injury until it was determined that the worker recovered from the surgery. No permanent impairment assessment took place. (b) Claim B [5] On January 6, 2005 the worker slipped and fell, and reported to the employer that he had hurt the groin, elbow and low back. The diagnosis was low back pain. An ultrasound from April 4, 2005 did not find evidence of a recurrent hernia. The specialist stated in a report dated August 12, 2005 that the worker had a groin strain. (c) Claim C [6] On December 15, 2005 the worker reported an onset of groin pain while lifting at work. The claim was initially allowed for health care benefits. The worker had further surgery on May 2, 2006 for a ventral and umbilical hernia and further surgery on November 14, 2005 for a recurrent ventral and umbilical hernia. The Board granted entitlement for these surgical procedures. [7] The worker claimed for entitlement for a recurrence starting in May of The Board granted entitlement for the recurrence, including entitlement to hernia repair surgery on July 3, The worker returned to work on August 20, [8] In a letter to the worker dated June 29, 2010, the Board advised that the worker s previous Non-Economic Loss (NEL) award of 15 percent for the low back was increased to 28 percent to reflect the worker s general surgery under Claim C.

3 Page: 2 Decision No. 780/14 (d) Claim D [9] On May 13, 2008 the worker reported to his employer that his hernia condition was acting up and required medical attention. The worker reported that he had been lifting cases when he felt pain in his stomach area and his back. [10] The employer advised the WSIB that there were concerns about the accident claim, since the worker had numerous previous surgeries regarding the hernias, and since the worker was on modified duties and under active treatment for the back and the hernia complaints. [11] The Board accepted that the worker sustained a personal injury by accident arising out of and in the course of the worker s employment, and entitlement for low back strain was granted. Entitlement for the hernia condition was also eventually granted. [12] The employer requested amalgamation of this accident claim into a prior claim, and the Board initially denied the request. [13] The worker was granted entitlement for a permanent impairment with respect to the back under Claim D. The accepted diagnosis regarding the permanent impairment was Lumbar strain; Chronic Mechanical Low Back Pain. In a letter to the worker dated November 25, 2009, the Board advised that the NEL award for the back was rated to be 15 percent. [14] The accident employer was unable to provide suitable work for the worker, and the worker was referred for Labour Market Re-Entry (LMR) services. The Suitable Employment of Business (SEB) goal was Elemental Service occupations. In a decision dated March 2, 2010, the Board Case Manager stated that the worker s LMR plan was completed and the worker was entitled to receive partial LOE benefits, based on the deemed ability to earn wages in the SEB. The decision dated March 2, 2010 stated: As noted in our previous correspondence, June 26, 2009, you were referred for a labour market re-entry (LMR) assessment. A plan was developed following a review of the assessment, and the rehabilitation goal of other elemental service occupations was identified as your suitable employment or business (SEB). This SEB was considered to be both a suitable and attainable vocational objective for you. Your LMR plan has been completed and upon reviewing the wages identified for that SEB, we note there would be a partial loss of earnings (PLOE) as compared to your preinjury earnings. Based on my review of the claim, and the information provided from the LMR plan, the SEB earnings of $10.25 per hour were identified. Noting this is less than you pre-injury earnings, you are entitled to receive PLOE benefits based on your ability to earn $10.25 per hour. Therefore, your benefits have been adjusted to reflect your ability to earn this wage, and you will continue to receive PLOE benefits based on your ability to earn this wage. (e) ARO decision under appeal dated March 10, 2010 [15] The ARO decision under appeal dated March 10, 2010 considered the employer s appeal issue of whether the worker s entitlement for a hernia under Claim D - the May 13, 2008 accident claim should be amalgamated into Claim C - the December 15, 2005 accident claim - as a recurrence of the earlier injury. The employer s appeal was allowed. The ARO decision dated March 10, 2010 stated: I conclude that there is compatibility of the problems in May 2008 to the prior problems in particular to [Claim C] as the worker returned to work in August 2007 to modified duties and continued on those duties until his further layoff and medical attention in

4 Page: 3 Decision No. 780/14 May As there is continuity and compatibility I accept that entitlement should be allowed on a recurrence basis and [Claim D] should be amalgamated into [Claim C]. There was no significant new accident in May 2008 warranting entitlement on a new claim basis. Benefits should be transferred. Entitlement includes the recurrent hernia and the back as a permanent aggravation of a pre-existing condition. [16] The ARO decision dated March 10, 2010 also considered the worker s appeal issue of entitlement for a permanent impairment for the hernia condition. The ARO decision allowed the worker s appeal in this regard, citing an earlier decision, granted entitlement for a permanent impairment for the hernia under Claim C. The ARO decision stated: The worker is entitled to [a] NEL determination for his ongoing hernia impairments as was first determined by the case manager in memo 27. The employer s objection is allowed and the worker s request for the NEL determination is granted. Conclusion The worker s objection is denied. However the operating area is directed to arrange for the NEL determination for the recurrent hernia diagnosis previously determined but not yet implemented. The employer s objection is allowed in part. [Claim D] is to be amalgamated into [Claim C] and benefits transferred. [17] The ARO decision dated March 10, 2010 also considered the worker s appeal issue of entitlement for full LOE. The ARO decision dated March 10, 2010 denied the worker s appeal and stated: I carefully reviewed the documentation surrounding the LMR process. I noted that the worker had been referred for LMR as the employer closed operations and no work was available with them. At the time of his layoff from work in May 2008 he was earning $19.34 hourly for full time employment. The psycho-vocational assessment stated that the worker had a licence class G. However he was not bondable due to an impaired driving charge. He has a grade 10 education but stated he was a terrible student. The worker started with the employer in After testing it was found the worker was in the borderline range with his full IQ in the extremely low range. Vocabulary was at the grade 7.2 level and reading comprehension at grade 3, spelling at grade 5.5 and mathematical computation at grade 4.0. Reference was made in the report to disability behaviour being present. He was thought to be best suited to training on the job or in skill training programs of study. For direct placement he could in principle consider some occupations within NOC 662, sales, 665 security and 668 elemental service occupations. He was offered a placement at the [ S. Towers ] in [an Ontario town], but declined it as the ramp which led to the placement facility was too steep. The worker representative submitted pictures of this ramp in the February 24, 2010 submission. There were pictures attached to support the argument that the ramp was not safe for the worker as the incline was too long for a person such as the worker to take a projection unit up and down the ramp each day. This was a ticket taker position; the worker declined the unpaid work placement as the ramp was too steep. Despite the worker representative s submission that to use the ramp would not be safe it is not clear that the worker would have been required to use the ramp to take equipment up and down but and even if he did it would be within his restrictions. The ramp is for wheelchairs, the worker is not prevented from using stairs. The work was within his restrictions but he chose not to take this opportunity.

5 Page: 4 Decision No. 780/14 The representative s argument is that the worker is not employable given the personal and vocational characteristics of the worker. Given the worker s lack of education and transferable skills it is apparent that he was paid very well in his pre-injury employment but that does not make him unemployable at present. He is not employable at $19 per hour but that is not too say he is unemployable. The worker is presenting himself as unemployable and has not been demonstrating an effort to become employable; he had opportunities for work placement which he turned down. I find that the worker is capable of the identified SEB of elemental services and his request for full LOE is denied. [18] The worker appeals this decision to the Tribunal. [19] In a letter to the worker s representative dated May 21, 2010, the Board Case Manager stated that the ARO decision dated March 10, 2010 had been implemented, and stated: The ARO accepted that the SEB of elemental services was appropriate and based on this, denied the request for full LOE. Your request that LMR be revisited is not supported given the ARO decision. Effective February 18, 2010 your client is in receipt of partial LOE. I am adjusting the minimum wage used to $9.50 per hour from $10.25 per hour used. The minimum wage of $10.25 only comes into effect March 31, [20] In a letter to the worker dated May 21, 2010, the Case Manager stated that the ARO decision dated May 21, 2010 was implemented and the amalgamation of claims resulted in a slightly higher LOE benefit payment to the worker. The letter to the worker dated May 21, 2010 stated: As directed all documents, benefits (HC & Loss of earnings and 15 percent NEL) from [Claim D] are being merged into [Claim C]. This amalgamation/merging of claims will result in a slightly higher wage loss benefit payable to you, as the pre-injury wages escalated with indexing under [Claim C] are higher than the layoff wages used to pay benefits under [Claim C]. An adjustment cheque is forthcoming. [21] The worker was subsequently granted an increase in the NEL award under Claim C for the condition recurrent abdominal hernia (ventral). In a letter to the worker dated June 29, 2010, the Board stated that the worker previously received 15 percent for the low back, and this had been increased to 28 percent to reflect the worker s General Surgery. [22] The worker requested entitlement for a NEL assessment for the work-related groin injury under the November 10, 2003 accident claim Claim A. [23] In a decision dated June 17, 2010, under Claim A, the Case Manager denied the worker s request, and stated: Under this claim the worker sustained a hernia while in the course of his employment on November 10, Claim was allowed and loss of earnings benefits were paid from November 13, 2003 until he returned to work regular duties on February 23, In a medical report from his family physician dated February 19, 2004 it states that the worker has completely healed from his hernia repair. At that time it was determined that the worker had fully recovered from his injury and his claim was finalled accordingly. There is no ongoing entitlement in this claim, no medical to support a permanent impairment. Therefore I am denying entitlement to a noneconomic loss award. [24] The worker appealed to the ARO.

6 Page: 5 Decision No. 780/14 [25] The ARO decision under appeal dated November 26, 2012 considered the issue of whether the worker should have entitlement for a NEL assessment for a groin injury under Claim A (the November 10, 2003 accident claim). The ARO decision dated November 26, 2012 denied the worker s appeal and stated: A worker s degree of permanent impairment is expressed as a percentage of total impairment of the whole person. In determining whether there was a measurable permanent impairment, I considered the following: On February 19, 2004 the surgeon completed a Physician s Progress Report (Form 26) and indicated that the worker appeared to be completely healed from his hernia injuries. The worker underwent an ultrasound test on April 4, 2005 that showed there was no evidence of any repeat inguinal hernias. The surgeon s report of August 12, 2005 states that there was a bit of weakness on the worker s left side; however, it was not consistent with a recurrent hernia. He concluded that the worker had developed a bit of a groin strain from a slip on the ice that occurred earlier in There was no indication that the worker struggled with or was incapable of performing his regular pre-injury duties following his return to work on February 23, I find that there is a lack of objective medical evidence to suggest that the worker had a permanent and measurable physical or a functional abnormality following his recovery from his surgery. Based on the evidence, it is my conclusion that the worker achieved full recovery from the work-related injury of November 10, As such he is not entitled to a NEL determination. Conclusion The medical evidence does not support that the worker has a residual permanent impairment associated with the November 10, 2003 work-related injury. Therefore he is not entitled to a NEL assessment. [26] The worker appeals this decision to the Tribunal. (iii) Law and policy [27] The accidents occurred in 2003, 2005 and 2008, and therefore the Workplace Safety and Insurance Act (WSIA) is applicable to this appeal. Sections 2, 43 and 46 of WSIA are applicable and provide in part as follows: 2(1) In this Act, permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery; ( déficience permanente ) 43(1) 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; (b) 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;

7 Page: 6 Decision No. 780/14 (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. (2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable employment or business after the injury. However, the minimum amount of the payments for full loss of earnings is the lesser of $15, or the worker s net average earnings before the injury. (3) The amount of the payment is 85 percent of his or her pre-injury net average earnings less any earnings the worker earns after the injury if the worker is co-operating in health care measures and, (a) his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan. (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; or (b) if the Board determines that the worker does not require a labour market re-entry plan, the earnings shall be deemed as of the date this determination is made. (7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, (a) in health care measures; (b) in his or her early and safe return to work; or (c) in all aspects of a labour market re-entry assessment or plan provided to the worker. 46(1) If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. [28] Pursuant to section 126 of WSIA, the Board advised that the following Policy Packages are applicable to this appeal: #36 (Revision #8) LOE Benefits; #37 Reviewing LOE benefits as of July 1, 2007; #50 Suitable and Available Employment benefits as of July 1, 2007; #61 NEL Entitlement; #146 Cooperating in LMR decisions as of July 1, 2007; and #300 Decision Making/Benefit of Doubt/Merits and Justice. (iv) Conclusions (a) Permanent impairment for hernia under 2003 accident claim [29] On the issue of whether the worker should have entitlement for a NEL assessment for hernia injuries of November 10, 2003 in Claim A, the Panel finds for the worker. [30] The Panel finds that the weight of the evidence, including the medical evidence, indicates that the worker has a permanent impairment as a result of the hernia injuries of November 10, 2003 under Claim A. The Panel finds, in accordance with the applicable

8 Page: 7 Decision No. 780/14 legislation and policies, that the worker therefore has entitlement for a NEL assessment under Claim A. [31] The Panel notes at the outset that pursuant to section 46 of WSIA, if a worker s injury results in permanent impairment, the worker is entitled to compensation for his non-economic loss. We also note that pursuant to section 2 of WSIA, a permanent impairment is defined as an impairment that continues to exist after the worker reaches Maximum Medical Recovery (MMR). [32] Turning to this aspect of the worker s appeal, the worker s representative submits that the worker should have entitlement for a NEL assessment for hernia injuries of November 10, 2003 in Claim A. The worker s representative submits that the compensable hernia condition that the worker sustained under Claim A the November 2003 injury was a different hernia condition than the condition for which he received a NEL award under Claim C. The worker s representative submits that the file information indicates that under Claim A the worker was granted entitlement for bilateral inguinal hernias and also for an umbilical hernia. The worker s representative submits that under Claim C, the worker was granted entitlement for a permanent impairment for the condition recurrent abdominal hernia (ventral). The worker s representative submits that the worker had surgery and an ongoing impairment under Claim A which was never compensated though a NEL assessment. [33] The Panel concludes that the worker has entitlement for a NEL assessment for hernia injuries of November 10, 2003 in Claim A, for the following reasons. [34] First, the Panel finds that the weight of the evidence indicates that the worker had ongoing restrictions, including a requirement for modified work, following the November 2003 injury, and following the surgery dated December 9, 2003 which was performed to correct the hernias. [35] The Panel observes in this regard that the worker testified at the hearing. The worker testified that he required modified work and had restrictions when he returned to work following the 2003 injury and the resulting surgery. [36] The worker testified that he started working with the accident employer in 1985, and the employer operated a canning business that processed peaches and pears and other products. The worker stated that the employer s business closed in around May or June of [37] The worker testified that from 1985 to 2003 he had the same job, which was greaser and labourer. The worker stated that a greaser s duties are to grease all the fittings on the machines. The worker stated that a labourer works on the line wherever needed. [38] The worker stated that in 2003 he had the first injury, after lifting barrels of oil for an extended time period, he then he was moving a barrel and it slipped and he slipped with it. The worker stated that he got pain in the groin and his belly popped and he went to the nurse. He states that then the supervisor rushed him to the hospital. [39] The worker states that he had surgery a while later, and the surgeon told him he had 3 hernias. [40] The worker states that after the surgery he returned to light work. The worker testified that the employer kept him on light duty after that. He states that then, each year from August to November his duties were to check labels on cans to make sure they were on properly, and to

9 Page: 8 Decision No. 780/14 remove dented cans from the line. The worker states that for another 4 months of the year he still did greaser duties, but these were easier duties because he only greased smaller things and he could sit down a lot. The worker states that he was also provided with a grease gun with a big extension on it, so that he could point it at the area, whereas before he had to crawl under machines to apply grease in the correct areas. The worker states that these new grease guns were given to everyone who performed the job so the greaser job got easier for everyone, and it worked out well for him too. The worker states that this was his work pattern for the years after the 2003 injury, performing light duty label and can checking work from August to November; and performing lighter duty greasing work for another 4 months. [41] The worker testifies that sometimes when he was on the modified duties after 2003 he would still do some lifting no matter what to help get the job done, and that was how he was repeatedly injured and got more hernias. [42] The worker states that as time when on and he had further hernias and surgeries, the employer took care of him making sure that his jobs continued to be light duty. The worker states that he did continue occasionally lifting things to help out because that was what you had to do working in a cannery. [43] The worker testifies that on May 13, 2008 he was injured when he was lifting boxes. He states that his groin started burning and then his back and belly hurt a lot. The worker states that he went to the emergency department. [44] The worker states that he still has problems with his back, and this permanent impairment was recognized under one of his WSIB claims. [45] The Panel has considered the worker s testimony in this regard. The Panel places significant weight on the accuracy of the worker s testimony, since the worker appeared as a candid witness and since the worker s testimony was not contradicted by any of the other evidence before the Panel, including the documentary evidence. The Panel finds that it is significant that the worker remained on modified duty work subsequent to the 2003 injury under Claim A, until he stopped working for the employer in 2008, and we conclude that this evidence indicates that the worker likely had ongoing restrictions, including restrictions against heavy lifting, in relation to the compensable injuries under Claim A. The Panel concludes that the worker s requirement for ongoing work modifications and activity restrictions indicates that the worker likely had an ongoing impairment that continued following the time that the worker reached maximum medical recovery. [46] Second, with respect to the submission of the worker s representative that the compensable hernia condition that the worker sustained under Claim A the November 2003 injury was a different hernia condition than the condition for which he received a NEL award under Claim C, the Panel finds that this submission is persuasive. The worker s representative submits that the file information indicates that under Claim A the worker was granted entitlement for bilateral inguinal hernias and also for an umbilical hernia. The worker s representative submits that under Claim C, the worker was granted entitlement for a permanent impairment for the condition recurrent abdominal hernia (ventral). The worker s representative submits that the worker had surgery and an ongoing impairment under Claim A which was never compensated though a NEL assessment.

10 Page: 9 Decision No. 780/14 [47] The Panel has considered this submission, and we note that in a report dated May 2, 2008, Dr. C.F. Muir, general surgery, stated: [The worker] presented with yet another hernia. He is known to me from his previous hernia originally beginning in December For a period of time he has some ongoing pain but on this occasion he presents with yet another lump. Examination of the abdomen shows him to remain grossly obese. There is a subumbilical incision from his previous umbilical hernia repair but he now has a ventral hernia above his umbilicus. This appears to be a new hernia. A recheck of his groin showed no evidence of recurrent hernia. We plan therefore to repair a ventral hernia. Obviously [the worker s] fascia is less than robust and hopefully he will do well with this repair. I don t think he will require a mesh on this occasion. [48] We see that Dr. Muir stated that he had seen the worker in 2003 for a hernia condition. The Panel notes in this regard that according to the Operative Report dated December 9, 2003, Dr. Muir was the surgeon that performed the operative procedure Repair of Bilateral Inguinal Hernias with Mesh and Repair of Umbilical Hernia, all with injection of Local Anesthetic, regarding the worker s injuries under Claim A. [49] We find that Dr. Muir s report dated May 2, 2008 indicates that in 2008, the worker was seen for a ventral hernia, and that was a new hernia in a different location that the umbilical hernia that was repaired in [50] The Panel concludes from this evidence that it is likely that the worker s NEL assessment and award granted under Claim C for the condition recurrent abdominal hernia (ventral) was an assessment that pertained to a different hernia condition than the worker suffered under Claim A. As we have noted above, the condition under Claim A was the condition bilateral inguinal herniae and umbilical hernia, according to Dr. Muir s diagnosis dated February 19, The Panel finds that the evidence indicates that the worker s hernia condition under Claim A was a permanent impairment, that has not been compensated through a NEL assessment. [51] Since the worker has a permanent impairment as a result of the November 2003 injury, the Board is directed to provide the worker with a NEL assessment in that regard. [52] The Panel is aware that the Board concluded that there was no ongoing impairment in relation to the 2003 hernia since the worker s physician Dr. Muir stated in a report dated February 19, 2004 that the worker had completed healed. We find, however, that a close examination of the medical documentation indicates that there was some question as to whether the worker had fully recovered. We note in this regard that in a Physician s Progress Report to the Board dated February 19, 2004, Dr. Muir stated: Diagnosis: Bilateral Inguinal herniae/umbilical hernia. Current symptoms and physical findings: Seems to be completely healed. [53] We see that the report dated February 19, 2004 from Dr. Muir stated that the worker seemed to be healed. [54] We also note that in a subsequent report to the Board dated October 14, 2004, Dr. Muir stated:

11 Page: 10 Decision No. 780/14 I saw [the worker] after his surgeries on January 26th and February 19 th. On his January 26 th visit he was having ongoing tenderness, particularly with respect to his testes. I thought he might have an epididymitis so I gave him some Septra. At that time we were uncertain when he could return to work. I saw him again on February 19 th and he had improved, though he still had a slightly sore left testicle. Return to work was recommended on February 23 rd. [55] We see that Dr. Muir s report dated October 14, 2004 noted that the worker had ongoing tenderness on his visits in January and February In the Panel s view this evidence indicates that although the worker was cleared to return to work, he had ongoing tenderness in relation to the compensable injury. The Panel also notes that while the worker was cleared to return to work in February of 2004, the evidence indicates that the worker returned to modified lighter work, and remained on modified work during the following years until [56] In summary, the worker has entitlement for a NEL assessment for the hernia injuries of November 10, 2003 in Claim A. [57] Based on all of the foregoing, this aspect of the worker s appeal is allowed. (b) SEB and Full LOE [58] On the issues of whether the Suitable Employment or Business (SEB) of Elemental Services is suitable for the worker; and whether the worker should have entitlement for full Loss of Earnings (LOE) benefits in Claim C, the Panel finds in part for the worker. [59] The Panel finds that the weight of the evidence, including the medical evidence, indicates that the SEB of Elemental Services is likely suitable for the worker. The Panel finds, however, that the weight of the evidence indicates that the worker is not likely to achieve earnings in the SEB above the minimum wage, and the worker is not likely able to work and achieve earnings for more than 20 hours per week, given the personal and vocational characteristics of the worker and the physical restrictions related to the compensable impairments. The Panel finds, in accordance with the applicable legislation and policy, that the worker has entitlement for an increase in the partial LOE benefits payable from on or about February 18, 2010, when the worker s LOE benefits were adjusted to partial LOE, to reflect the ability to earn the minimum wage in the SEB based on 20 hours per week. [60] The Panel notes at the outset that section 43(1) of WSIA provides that a worker has entitlement for LOE payments where there is a loss of earnings as a result of the injury. Section 43(4) provides that the Board shall deem the worker s earnings after the injury to be the earnings that the worker is able to earn in a SEB that is suitable for the worker. [61] Turning to this aspect of the worker s appeal, the Panel observes that the ARO decision under appeal dated March 10, 2010 concluded that the worker was employable in the SEB Elemental Service Occupations. In a decision dated May 21, 2010, the Case Manager concluded that the worker could work in that SEB at the rate of the minimum wage of $9.50 effective February 18, 2010, and at the rate of the minimum wage of $10.25 effective March 31, In a subsequent decision dated January 26, 2012, the final LOE review decision, the Case Manager concluded that the worker could work in the SEB on a full time basis earning $14.69 per hour from January 1, 2012 to age 65. [62] The worker s representative submits that the worker is unable to work and should have entitlement for full LOE benefits from February of The worker s representative acknowledges that there is no medical opinion on file that states that the worker cannot work.

12 Page: 11 Decision No. 780/14 [63] As we have stated above, the Panel concludes that the worker is likely capable of working in the SEB of Elemental Services, since the SEB is likely suitable for the worker. The Panel concludes, however, that the work placements offered to the worker were not likely suitable. The Panel also concludes that the worker is not likely able to achieve earnings in the SEB above the minimum wage, and the worker is not likely able to work and achieve earnings for more than 20 hours per week, given the personal and vocational characteristics of the worker and the physical restrictions related to the compensable impairments. We make these findings for the following reasons. [64] First, the Panel notes that according to the file documentation, the worker has permanent physical restrictions with respect to the back condition and the hernia condition under Claim C. We note in this respect that in a report to the file dated June 24, 2009 under Claim C, Dr. Steinnagel, Board Medical Consultant, stated that the worker s restrictions were permanent and were as set out in the Regional Evaluation Centre (REC) report from October of The Panel has reviewed the REC report dated October 16, 2008, and we note that the REC assessment was a Multidisciplinary Health Care Assessment, for the purpose of clarifying the worker s medical status and prognosis, as well as any restrictions. The REC report was authored by Dr. R. McMillan, physical medicine and rehabilitation, and Ms. D. Gillis, physiotherapist, and stated: Diagnosis: Lumbar strain Mechanical low back pain Recurrent abdominal hernia. Restrictions: [The worker] should avoid any activities involving heavy lifting or repetitive bending of the lumbar spine. These activity restrictions are permanent. [65] We see that according to the REC report dated October 16, 2008, the worker has permanent restrictions to avoid any activities involving heavy lifting or repetitive bending. [66] The Panel concludes that the worker has rather significant restrictions related to the compensable back and recurrent hernia conditions. [67] Second, the Panel finds that the worker s NEL rating quantum under Claim C indicates that the back and recurrent hernia conditions are significant. We note in this regard that the worker s NEL award under Claim C for the back and recurrent hernia conditions is 28 percent, which we find to be significant. The Panel further observes that in this decision, we have granted entitlement for a further permanent impairment as related to the hernia injuries under Claim A the November 2003 accident claim - and the Board has been directed to provide a NEL assessment in that regard. The Panel finds that it is likely that the worker s NEL quantum will increase to reflect a greater permanent impairment and it is possible that the worker s recognized compensable restrictions may also increase. The Panel finds that the worker s permanent impairments are significant, as related to the back condition and the hernia conditions, and that these permanent restrictions are a significant factor that likely limit the worker s ability to work for more than 20 hours weekly in the SEB. [68] Third, the Panel places significant weight on the worker s testimony regarding the job placements that were offered to him during the LMR process, and we conclude that these job

13 Page: 12 Decision No. 780/14 placements and opportunities were likely not suitable for the worker. We conclude that in declining these job opportunities the worker was not being uncooperative with the LMR process. [69] The Panel notes in this regard that the worker testified regarding the job placements that were offered to the worker during the LMR process. The worker testified that the Board gave him Labour Market Re-Entry (LMR) help, and the employer where he had worked for 23 years since 1985 closed in June The worker stated that he was offered work placements but they were not suitable for him. The worker stated that one work placement option was to work at a hotel facility, and the job was to work in the movie theatre. The worker states that the duties included taking the tickets; then going into the theatre at the end of the movie and cleaning the theatre and putting everything in garbage bags; then placing the full garbage bags into a garbage bin; then taking the big garbage bin each day and wheeling it up a hill to the outdoor garbage area. The worker testified that when he saw the requirement to push a full bin uphill he told the WSIB caseworker he could not do that job, especially when the road was icy, and he thought that the WSIB caseworker agreed with him. [70] The Panel has considered the worker s testimony in this regard, and the Panel also viewed pictures of the hill location in question. The Panel concluded that the hill was a rather steep outdoor hill covered in snow and ice. The Panel finds that this particular work placement was likely not suitable for the worker given the worker s permanent restrictions to avoid any activities involving heavy lifting or repetitive bending. In our view the job duties of cleaning the movie theatre and putting all items in garbage bags likely involved repetitive bending, and the job duties of then placing the full garbage bags into a garbage bin likely involved some heavy lifting. The Panel also finds that the evidence indicates that the job of pushing a full garbage bin up a hill was not likely suitable for the worker given the compensable conditions including the back injury and the recurrent hernia condition. We conclude that in declining this job opportunity the worker was not being uncooperative with the LMR process. [71] The Panel notes that the worker also testified regarding another work placement that was considered, that is, working in a different hotel in the laundry/linen department. The worker states that his duties would have been to load large washing machines and driers with the linen. The worker states that he believes that linens he would be handling were extremely heavy in large amounts, and he did not think that the job was suitable because it was too heavy because of the lifting. The worker states that he thought he would be injured again doing this job. [72] The Panel has considered the worker s testimony in this regard, and we agree that it is likely that this laundry department job was not suitable for the worker given the requirement to repetitively lift laundry into machines. We conclude that in declining this job opportunity the worker was not being uncooperative with the LMR process. [73] The worker also testified at the hearing that another work placement that was considered was working in a car dealership and the worker s job would be to clean vehicles by washing the outside and vacuuming the inside. The worker states that he thought this job was unsuitable for his back restrictions, and so did the owner at the car dealership. The Panel agrees with this conclusion, and we find that this job suggestion was likely not suitable for the worker s restrictions of avoiding repetitive bending. We conclude that in declining this job opportunity the worker was not being uncooperative with the LMR process. [74] Fourth, the Panel finds that the evidence indicates that the worker does not have significant transferrable skills, and we find that as a result of the personal and vocational skills of

14 Page: 13 Decision No. 780/14 the worker, the worker would not be likely to achieve more than the minimum wage in a SEB job. [75] The Panel observes in this respect that the worker was seen and assessed for a Psychovocational Assessment in June of 2009, further to a referral from the Board. In a Psychovocational Assessment report dated June 29, 2009, Ms. R. Billet, vocational assessor, Ms. L. Alpaugh, and Dr. K. Zakzanis, psychologist, stated that the worker was seen, tested and assessed on June 22, 2009 for the purpose of evaluating the worker s ability to successfully integrate into the workforce. The Psycho-vocational Assessment report dated June 29, 2009 stated: Recommendations and Occupational Options Summary of Results [The worker] is a 48 year old male who, while working as a greaser/factory labourer sustained a low back injury and hernia. Testing suggests average vocabulary scores with below average scores in reading comprehension. Low scores were noted in word reading, written spelling and math computation. Scores within the lower extreme were revealed in sentence comprehension. Upgrading and Retraining Considerations Based on the above assessment [the worker] would be best suited to training on the job or in skill training programs of study. He would require academic upgrading of his literacy skills for entry-level clerical or semi-clerical occupations. As well he would require upgrading for any occupations or retraining programs that require anything other than basic numeracy skills. [The worker] did indicate that he is limited in terms of what he could be trained for due to his early difficulties in school with math and reading. [76] The Psycho-vocational Assessment report dated June 29, 2009 concluded that the worker could in principle consider some occupations for direct placement or with a period of on the job training providing they are within his physical restrictions, including the occupations other sales and related occupations (telephone solicitor); security guards and related occupations; and other elemental service occupations (ticket taker, parking lot attendant). The Psycho-vocational assessment also stated that the worker s scores in the Career Ability Placement Survey tests were within the below average range overall, and the overall General Intelligence Testing indicated the worker s IQ tests fell within the borderline range, and the extremely low range of intelligence. [77] The Panel has carefully reviewed the findings in the Psycho-vocational Assessment report dated June 29, We conclude that while the report stated that the worker could in principle consider some direct placement occupations, the report indicated that the proviso would be only if the occupations were within the worker s physical restrictions. The report also indicated that the worker had low scores in reading, writing and math computation, and extremely low scores in reading comprehension, and fell within the extremely low range of intelligence. The Panel infers from this evidence that it would be difficult for the worker to find suitable work that he could perform on a full time basis, given the worker s personal characteristics and in light of the rather extensive compensable physical restrictions.

15 Page: 14 Decision No. 780/14 [78] We further observe that according to the evidence, the worker was employed by the accident employer for over 20 years, performing essentially the same labouring job, with some modifications as of 2004 when the worker returned to work following the 2003 hernia injury. We conclude that the worker did not likely obtain significant transferrable skills while employed by the accident employer. We also note that the documents on file indicate that the worker did not complete high school, and the worker testified that he did not have a good education. [79] The Panel finds that the weight of the evidence indicates that the worker does not have significant transferrable skills, and we find that as a result of the personal and vocational characteristics of the worker, the worker would not be likely to achieve more than the minimum wage in a SEB job. [80] Finally, the Panel notes that the worker testified that he had conducted a job search, and had not secured a suitable job. [81] The worker testified in this regard that since his LMR file was closed and his benefits reduced by the Board, he has continued to look for work. The worker stated that he had many interviews, but did not get a job yet. The worker stated that he looked for parking lot attendant jobs, or anything he thought he could do. The worker stated that he kept a list of his job search. [82] The Panel observes that the worker s job search list is included in the case materials for the appeal, and it appears to indicate that the worker has continued to look for work, at least intermittently. [83] The Panel concludes that the weight of the evidence indicates that, while the worker is likely capable of working in the SEB of Elemental Services, and the SEB is likely suitable for the worker, the work placements offered to the worker were not likely suitable. The Panel also concludes that the worker is not likely able to achieve earnings in the SEB above the minimum wage, and the worker is not likely able to work and achieve earnings for more than 20 hours per week, given the personal and vocational characteristics of the worker and the physical restrictions related to the compensable impairments. [84] The Panel is aware that the worker s representative submits that the worker should have entitlement for full, rather than partial, LOE benefits from February of 2010, since the worker is not employable. The Panel does not accept this submission. We find that there is a lack of evidence that indicates that the worker is unable to work in any capacity. We note in this regard that there is no medical evidence before us that indicates that the worker is unable to work, and the worker s representative acknowledges that there is no medical opinion on file that states that the worker cannot work in any capacity. We find that this is significant in the circumstances of this case, especially since the LMR Psycho-vocational assessment concluded that the worker was employable in a job that fit the medical restrictions. In our view the weight of the evidence indicates that the worker is likely able to achieve earnings in the SEB at the rate of the minimum wage, and the worker is likely able to work and achieve earnings for 20 hours per week. [85] In summary, the worker is entitled to an increase in the partial LOE benefits from on or about February 18, 2010, to reflect the worker s ability to achieve earnings in the SEB at the rate of the minimum wage, 20 hours per week. [86] Based on all of the foregoing, this aspect of the worker s appeal is allowed in part.

16 Page: 15 Decision No. 780/14 DISPOSITION [87] The appeal is allowed in part. [88] The worker has entitlement for a NEL assessment for hernia injuries sustained on November 10, 2003 under Claim A. [89] The worker is entitled to an increase in the partial LOE benefits from on or about February 18, 2010, to reflect the worker s ability to achieve earnings in the SEB at the rate of the minimum wage, 20 hours per week. DATED: July 29, 2014 SIGNED: J. Noble, A.D.G. Purdy, J.A. Crocker