WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1831/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1831/15 BEFORE: J. Goldman : Vice-Chair M. Christie : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: September 2, 2015 at Toronto Oral DATE OF DECISION: September 29, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2150 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated October 15, 2012 APPEARANCES: For the worker: For the employer: Interpreter: P. Giudice, Paralegal N. T. of the accident employer 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. 1831/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated October 15, 2012, which denied him entitlement to loss of earnings (LOE) benefits from May 24, 2011 to January 31, The ARO rendered a decision based upon a written record without an oral hearing. (ii) Issues [2] The issues under appeal are as follows: 1. Entitlement to LOE benefits from May 24, 2011 to January 31, 2012; and 2. Suitability of the modified work offered by the accident employer. (iii) Background [3] The following are the basic facts. [4] On August 25, 2009, the now 65-year-old former firefighter and captain, employed with the accident employer since 2008 in a dietary kitchen staff position, reported an injury to his right shoulder. The Board accepted entitlement to a right shoulder rotator cuff tear related to his job duties, on a disablement basis. [5] The worker underwent rotator cuff repair and acromioclavicular joint resection surgery on March 9, Entitlement to LOE benefits was allowed as of March 9, On May 23, 2011, the worker was to return to modified work in the Just Wash Your Hands program, where he was to conduct an internal audit. Permanent restrictions included no overhead use of the right arm/shoulder, and no repetitive use of the right arm. [6] The worker contends that the work duties to which he was assigned were beyond his restrictions, and discontinued the modified work after one week. [7] In correspondence dated July 11, 2011, the Case Manager concluded that the modified work offered by the accident employer was suitable and restored the worker s pre-injury earnings. The Case Manager denied LOE benefits from May 24, 2011 to January 31, 2012, when the worker underwent further right shoulder surgery, which Dr. Michael Mckee, the orthopaedic surgeon who performed the operation, described as a rotator cuff repair of a large to massive rotator cuff tear. [8] On November 22, 2012, the worker was granted a 9% non-economic loss (NEL) award for a right shoulder permanent impairment. [9] In his decision dated October 15, 2012, the ARO denied the worker entitlement to benefits from May 24, 2011 to January 31, 2012, the date of his second right shoulder surgery, when LOE benefits were restored. The ARO found that the modified work offered by the accident employer was within the worker s functional limitations related to his right upper extremity. [10] The worker s objection to the ARO decision is the subject of this appeal.

3 Page: 2 Decision No. 1831/15 (iv) Law and policy [11] Since the worker was injured in 2009, 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. [12] Specifically, section 43 of the WSIA governs the worker s entitlement in this case. [13] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [14] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight. [15] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Policy Packages: 223; 224; 227; 300 [16] We 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 (Prior to Final Review) ; and OPM Document No , Suitable Work. (v) The worker s testimony [17] In 2008, the worker retired from a 34-year career as a firefighter. In July 2008, after completing a culinary skills course, he was hired as a member of a dietary kitchen staff. The worker underwent right shoulder rotator cuff repair surgery on March 9, Although initially, the surgery was considered to be successful, his severe pain did not abate. Further diagnostic tests revealed a recurrent large rotator cuff tear. The worker was seen by Dr. Mckee on February 24, 2011, at which time further surgical intervention was discussed. The worker was placed on a waiting list for surgery in October He underwent a surgical repair of a recurrent right rotator cuff tear on January 31, [18] The modified work to which the worker was assigned in May 2011 involved pushing a cart, which he did with his left arm, and extensive walking from floor to floor along long corridors. Because of his recurrent rotator cuff tear, he found that walking jarred his right shoulder and significantly increased his pain. He was only able to perform the modified duties for one week. As requested, the worker provided his employer and the Board with Functional Abilities Forms (FAFs) completed by his treating physicians who indicated that he was unfit for any type of work. The worker was unable to perform any activities during the period in question. He stayed at home waiting for the surgery which was performed on January 31, The worker returned to modified duties after the second surgery. When it became apparent that he would not be able to return to his regular duties as a dietary worker, after two months, the worker decided to retire from his employment.

4 Page: 3 Decision No. 1831/15 (vi) Submissions [19] Mr. Giudice, the worker s representative, submitted that the worker is entitled to full LOE benefits from May 24, 2011 to January 31, Under normal circumstances following successful rotator cuff surgery, the modified duties to which the worker was assigned in May 2011, were within the usual shoulder disability medical restrictions. However, as indicated in the medical evidence, the worker s original surgery was not successful, necessitating further repair of a recurrent rotator cuff tear, described by Dr. Mckee as massive. At no time was the worker cleared to return to any type of work, including modified work. Mr. Giudice referred to the medical evidence which indicates that the worker was authorized off work by his treating physicians, all of whom concluded that the worker was unfit for any type of work while awaiting surgery. Mr. Giudice submitted that throughout this period, the worker participated in a medical rehabilitation program. [20] Mr. Nazarewich, the employer s representative, submitted that the worker was not entitled to full LOE benefits from May 24, 2011 to January 31, The accident employer provided suitable modified work which the worker was capable of performing given the nature of his injury. The modified work which was offered was extremely light and did not require the use of the worker s right arm. The worker s treating physicians were not provided with information about the modified duties to which the worker was assigned, they were therefore, not able to assess the worker s ability to perform the work offered. As well, there was no medical evidence to indicate how extensive walking impacted the worker s right shoulder condition. In light of his actions, Mr. Nazarewich questioned the worker s intention to return to any type of employment following the first right shoulder surgery. (vii) Analysis [21] The appeal is allowed for the reasons set out below. [22] In the present case, the worker contends that he was not capable of performing the modified duties to which he was assigned, and that his treating physicians authorized him off work during the period in question. (a) Entitlement to LOE benefits from May 24, 2011 to January 31, 2012 [23] Section 43 of the Act contains the following provision: Payment for loss of earnings 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. 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; (c) two years after the date of injury, if the worker was 63 years of age or older on the date of injury; (d) the day on which the worker is no longer impaired as a result of the injury.

5 Page: 4 Decision No. 1831/15 [24] OPM Document No , Payment of LOE Benefits, provides that A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings benefits beginning when the loss of earnings begins. The payment continues until the earliest of The day on which the worker is no longer impaired as a result of the injury [25] The policy provides guidelines for the payment of full LOE, as follows: If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits. [26] In the present case, the Panel has concluded that the worker was not capable of working during the period in question, and that consequently he is entitled to full LOE benefits from May 24, 2011 to January 31, [27] The worker underwent right rotator cuff repair on March 9, In his report dated April 23, 2010, Dr. J. W. Pepin, orthopaedic surgeon, who performed the surgery, envisaged that the worker would recover sufficiently to return to work within eight weeks. However, as noted in the Physiotherapist s Treatment Extension Request, recovery was prolonged because of the severity of the injury. Dr. Pepin s report dated October 14, 2010, indicated that the worker continued to have pain and weakness and that the operation has not really helped him. Dr. Pepin noted that despite the passage of time, anti-inflammatory medications and surgery [the worker] seems to be no better. Further investigation was recommended to determine the cause of the worker s continued problems. In his report dated November 29, 2010, Dr. Pepin opined that the worker has probably re-torn his cuff. Further surgery is considered in light of the worker s severe pain. Dr. Pepin indicates that in the interim the worker is not capable of any gainful employment. [28] In his report dated February 24, 2011, Dr. Mckee, orthopaedic surgeon to whom the worker was referred, noted that the most recent MRI reveals a large recurrent rotator cuff tear. [29] In his report dated August 2, 2011, Dr. Zaheer Kukkadi, orthopaedic surgeon, examined the worker with regard to his problematic right shoulder. Dr. Kukkadi opined that it is quite likely that the worker will require grafting and possible more complex operations. [30] Dr. Mckee in his report dated October 21, 2011, placed the worker on a waiting list as of today for further surgery to repair what Dr. Mckee described in his report dated February 20, 2012, as a massive rotator cuff tear. The worker underwent the surgery on January 31, [31] It is clear from the evidence cited above that the worker had not recovered from the initial right shoulder surgery on March 9, He continued to suffer from severe pain and weakness which was due to a significant recurrent right rotator cuff tear, as noted by Dr. Mckee. Thus, although the modified duties to which the worker was assigned were suitable in most cases following a shoulder injury and rotator cuff repair surgery, they were not suitable in the worker s particular circumstances in light of the re-tearing of his rotator cuff tendon revealed in the MRI performed on October 30, [32] As noted by Mr. Giudice the various FAFs completed by the worker s treating physicians indicate that the worker was unfit for any employment during the period in question. The FAF dated May 25, 2011, completed by Dr. J. K. Azad, a day after the worker was to return to his modified duties, states that the worker is unfit for any job and that he is authorized to be off

6 Page: 5 Decision No. 1831/15 work indefinitely. The FAF completed by Dr. Pepin on May 31, 2011, states that the worker is unlikely to ever return to work. The FAF completed by Dr. Kukkadi on August 2, 2011, indicates that the worker is physically unable to return to work until his right shoulder surgery, which occurred on January 31, The worker testified that the second surgery was successful and that he returned to modified duties following his recovery. [33] After a careful review of the evidence, the Panel has concluded that the worker was not capable of performing the modified duties offered by the accident employer because of the severity of his right shoulder condition and the re-tearing of his rotator cuff requiring further surgery. [34] The worker is, therefore, entitled to full LOE benefits from May24, 2011 to January 31, [35] We have further concluded that, in the present circumstances, the modified duties offered by the accident employer were not suitable in light of the severity of the worker s injury, and the opinions of his treating physicians that the worker was unfit for any type of work during the period in question.

7 Page: 6 Decision No. 1831/15 DISPOSITION [36] The appeal is allowed. The worker is entitled to full LOE benefits from May 24, 2011 to January 31, [37] 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: September 29, 2015 SIGNED: J. Goldman, M. Christie, M. Ferrari