WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1552/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1552/16 BEFORE: L. Gehrke : Vice-Chair M. Falcone : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: June 14, 2016 at Toronto Oral DATE OF DECISION: June 29, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1734 DECISION(S) UNDER APPEAL: WSIB Appeals Officer (ARO) decision dated January 15, 2014 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented 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. 1552/16 REASONS (i) Introduction [1] The worker appeals a decision of the Appeals Resolution Officer (ARO), which concluded that the worker was not entitled for permanent impairment or to ongoing loss of earnings (LOE) benefits beyond March 27, 2012 as a result of an injury to her left shoulder suffered on November 18, 2010 and subsequent surgery. The ARO confirmed this decision in a reconsideration decision dated October 13, [2] For the reasons below, the Panel allows the worker s appeal. (ii) Issues [3] The issues under appeal are as follows: 1. Entitlement for permanent impairment of the left shoulder as a result of an injury suffered on November 18, 2010 and subsequent surgery Did the worker suffer a physical or functional abnormality or loss related to the left shoulder injury that continued after maximum medical recovery (MMR)? If so, she would be entitled to an assessment for a non-economic loss (NEL) award. 2. Entitlement to LOE benefits after March 5, 2012 Did the worker suffer a loss of earnings after March 5, 2012 as a result of the left shoulder injury? If so, she would be entitled to benefits for any resulting loss of earnings (LOE). Did her work stoppage on March 5, 2012 or the permanent layoff on March 27, 2012, break the chain of causation between the injury and her loss of earnings? If so, she would not be entitled to any further LOE benefits. (iii) Background [4] The following are the basic facts. [5] On November 18, 2010, the worker, who was employed as a chef, injured her left shoulder when she turned a grocery cart filled with groceries. The worker is left-handed. When injured, she was 41 years old. [6] She continued to suffer left shoulder pain and was assessed by the Workplace Safety and Insurance Board (WSIB or the Board) Hand and Wrist Specialty Program on June 27, 2011, who diagnosed left shoulder subacromial impingement with AC (acromialclavicular) joint symptoms. As a result, the worker underwent surgery consisting of a left shoulder arthroscopic subacromial decompression and distal clavicle resection in August 2011 by Dr. C.J.H. Veillette of the WSIB Surgical Specialty Program. X-rays of the left shoulder in February 2013 and March 2015, and an ultrasound in May 2013, all by Dr. D. Hendrie, radiologist, showed widening of the AC joint, described as a widening of the distance between the distal end of the left clavicle and acromion process. Dr. Hendrie commented that this widening of the AC joint was presumably related to previous surgery. An MRI performed in June 2015 by Dr. D. Pugh, radiologist, found: The AC joint is widened on the basis of prior separation or injury or excision of distal clavicle previously.

3 Page: 2 Decision No. 1552/16 [7] The worker received post-surgical therapy for six weeks in 2011 and then transitioned into the Worker Rehabilitation Program. The discharge report of the Worker Rehabilitation Program dated December 23, 2011, notes that the worker faced an ongoing barrier to her return to work as a cook, that being a [p]hysically demanding job. Her pre-injury work as a cook was considered to be medium work according to the Dictionary of Occupational Titles, Appendix for Physical Demand Levels. The report commented that the worker has the potential to perform at the light level of physical demands. The Client s capabilities do not match all the job demands as a Cook. The report recommended that the worker be re-employed with the following temporary restrictions: Limit forward and overhead reaching to occasional basis with the left upper extremity; Limit forceful and repetitive left handed activities such as cutting, peeling, stirring, mixing and kneading to occasional; and Limit lifting and carrying as quantified. The worker returned to modified duties in her pre-injury job as chef. [8] In January 2012, the surgical specialty program occupational therapist recommended a gradual transition back to full duties at work, with the following accommodations and work restrictions: I would recommend that her employer allow her some leeway getting back to her full duties and transitioning to her full workload. I would recommend that to prevent potential exacerbations, that she be able to limit her activities as required for heavier/repetitive lifting and gets assistance for these activities. I would also recommend assistance with groceries as this seems to be an area where there is increased potential for exacerbation of her previous injury. I put these in place over the next 8-12 weeks to help her transition back into her full work duties. [9] On February 23, 2012, the surgical specialty program s kinesiologist and return to work coordinator wrote to the worker s employer, providing recommendations for modification of the worker s duties, including: 1. [The worker] will continue to progress her hours and full time return to her pre-injury hours is anticipated around March 21, [The worker] will get carry out assistance at the grocery store to reduce the amount of lifting required. It is recognized that shopping may take some increased time as a result and the employer has no issues in that regard. 3. [The worker] will have options with respect to unloading the groceries at the facility. Options include taking more trips back and forth to her vehicle to reduce the load (consequently taking more time) or waiting for staff to assist her. [10] On March 5, 2012, the worker left work, claiming that she was ill. She took one week off claiming sick leave, and a second week of pre-arranged holidays. On March 27, 2012, the employer notified the worker that she was permanently laid off because the employer was closing. [11] The Board terminated the worker s LOE benefits on March 5, 2012, based on a finding that she was no longer co-operating in the return to work program. [12] On August 15, 2012, the surgical specialty program provided its final follow-up report. The report indicates the worker felt her shoulder was approximately 96% improved. She complained of some mild intermittent left anterior shoulder pain that seems to be more in the biceps distribution. She also voiced concern about returning to future work in her same field due to the repetitive nature of her job. On examination, she had excellent range of motion but does have some mild symptoms through her proximal biceps with Speed s test positive. The impression of the assessors was that she was able to do activities as tolerated with no specific

4 Page: 3 Decision No. 1552/16 restrictions. It is possible that she may have an exacerbation of symptoms with repetitive shoulder-level activities. Repetitive tasks at or above shoulder level may exacerbate some of her biceps symptoms. No formal functional restrictions were recommended. (iv) Law and policy [13] Since the worker was injured in 2010, 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. [14] Specifically, sections 43 and 46 govern the worker s entitlement for NEL and LOE benefits in this case. [15] Section 43(1) provides in part: 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. [16] Section 46(1) provides: 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. [17] Permanent impairment is defined by section 2 as a physical or functional abnormality or loss that continues to exist after the worker reaches maximum medical recovery. [18] 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 [19] The standard of proof in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), 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. [20] Pursuant to section 126, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Policy Package #38 Recurrence; Policy Package #74 Work Disruptions - Layoffs; Policy Package #224 LOE Benefits - benefits as of July 15, 2011; Policy Package #261 NEL Entitlement; and Policy Package #300 Decision Making/Benefit of Doubt/Merits and Justice. [21] 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; OPM Document No , Entitlement Following Work Disruptions: Permanent Layoffs; OPM Document No , Payment and Reviewing LOE Benefits (Prior to Final Review);

5 Page: 4 Decision No. 1552/16 OPM Document No , Determining Maximum Medical Recovery (MMR); and OPM Document No , Determining the Degree of Permanent Impairment. (v) Analysis [22] The appeal is allowed for the reasons set out below. (a) Entitlement for permanent impairment [23] We conclude that the worker suffered a permanent impairment as a result of her left shoulder injury on November 18, She is entitled to an assessment for a NEL award for this permanent impairment. Our reasons follow. [24] We find, based upon the August 15, 2012 final report of the surgical specialty unit that the worker was at that date, at MMR and continued to suffer from a physical or functional abnormality or loss. The August 15, 2012 report shows that the worker had reached a plateau in her recovery. Her left shoulder condition did not improve after this. [25] X-Ray, ultrasound and MRI investigations of the left shoulder over the years since the injury have consistently shown a widening of the AC (acromioclavicular) space. The radiologist who conducted the MRI opined that this space widening was due to a prior separation or to prior excision of the distal clavicle. The radiologist who conducted the x-rays and ultrasound thought that the AC space widening may be or was presumably, a result of previous surgery. The surgical report indicates that the surgery performed on the worker s left shoulder as a result of her injury included resection of the distal clavicle. Based on this evidence, we find, on a balance of probabilities that the AC space widening constitutes a physical abnormality that resulted from the injury and has continued after MMR. [26] We conclude that the worker also suffered a left shoulder functional abnormality or loss that continued after MMR, which was a result of her injury and consequent surgery. The August 15, 2012 surgical specialty unit report shows functional abnormality or loss that continued after MMR. If she performed repetitive tasks at or above shoulder level with her upper left extremity, she was at risk of an exacerbation of her left shoulder symptoms. We accept the worker s testimony that she was unable to perform her previous duties as a chef, particularly those involving heavy lifting and repetitive work, such as chopping and slicing. (b) Entitlement to LOE benefits after March 5, 2012 [27] We conclude that the worker continued to be entitled to LOE benefits after they were discontinued in March Our reasons follow. (c) Entitlement after the March 5, 2012 work stoppage [28] We find that the worker had not yet returned to her full work capacity when she stopped working on March 5, The February 23, 2012 surgical specialty program report and letter to the employer set out a number of recommendations for modification of the worker s duties, including staff assistance and extra time for grocery shopping. [29] When the worker stopped working on March 5, 2012, she was performing modified duties and was not yet working full hours. She testified that she was not provided with the recommended staff assistance or extra time for grocery shopping. Even using a mandolin slicer,

6 Page: 5 Decision No. 1552/16 the job still involved repetitive cutting and chopping. She did not feel safe lifting boiling pots. She required assistance with groceries and with heavy lifting. [30] The worker described an altercation on the day she left work with the co-worker who was her job partner while she was building up to her regular hours. The subject of the altercation was the retrieval of a bag of onions, which the co-worker had asked her to do. She felt that she was being harassed and feared for her job. She felt that she did not get the support she needed with groceries and heavy lifting. She took five days sick leave because of the stress of the situation at work. She took the next week as previously scheduled vacation time. [31] We find, based on these facts, that the work stoppage on March 5, 2012 was related to the worker s modified duties as a result of her injury. She was participating in the return to work program recommended by the surgical specialty unit. She had not yet returned to her full hours or full duties. She was not being provided with the staff assistance she needed to perform her duties. The subject of the altercation was her work duties. [32] We do not find that the worker failed to co-operate with her return to work. She was clearly upset and fearful for her job, and may have over-reacted to the co-worker s request. However, we accept that she felt that she could not cope with the stress return to work situation. Her loss of earnings continued to be the result of her injury. Therefore the worker was entitled to continued LOE benefits under section 43 when she stopped working on March 5, (d) Entitlement after the March 27, 2012 permanent layoff [33] On March 27, 2012, the employer permanently laid off the worker due to the closure of the employer. OPM Document No provides that a worker who is unable to continue working because of a permanent layoff, and whose employability is clearly affected by her work-related impairment and associated clinical restrictions, may qualify for additional LOE benefits and labour market re-entry (LMR) services. [34] We find that this policy applies to the worker in this case. When she was permanently laid off, she was impaired by her injury. Her employability in her pre-injury occupation as a chef was clearly affected by her work-related left shoulder impairment. She required assistance with heavy and repetitive work, according to the recommendations in the February 2012 surgical specialty program report and letter to the employer, and according to her testimony. We accept the findings in that report and the worker s testimony that after her layoff, she sought work as a chef, but was unable to perform the required duties due to her shoulder injury.

7 Page: 6 Decision No. 1552/16 DISPOSITION [35] The appeal is allowed as follows: 1. The worker is entitled to permanent impairment of the left shoulder. 2. The worker is entitled to benefits for loss of earnings resulting from her left shoulder injury from the date they were terminated in March [36] The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. DATED: June 29, 2016 SIGNED: L. Gehrke, M. Falcone, K. Hoskin