WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1632/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1632/14 BEFORE: R. McCutcheon: Vice-Chair HEARING: September 3, 2014 at Toronto Oral hearing DATE OF DECISION: March 30, 2015 NEUTRAL CITATION: 2015 ONWSIAT 689 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) S.M. Elliott dated October 6, 2011 APPEARANCES: For the worker: For the employer: Interpreter: H. Kamal, Paralegal Not participating W. Kler, Punjabi 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. 1632/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which concluded that: The worker did not have entitlement for Chronic Pain Disability (CPD); and The worker was not entitled to a full future economic loss (FEL) award from July 1, 2008, onward (R2). (ii) Issues [2] The issues under appeal are as follows: 1. Entitlement for CPD; 2. Entitlement to a full FEL award from July 1, 2008 (R2 FEL date). [3] At the outset of the hearing, the worker's representative noted that the worker had begun part-time employment in The worker seeks a full FEL award to that date, and partial benefits based upon his actual earnings thereafter. I advised the worker's representative that this request raised a potential issue with adjusting the FEL after the final review date. In light of my conclusions, however, it was unnecessary to consider the time period issue. (iii) Background [4] The worker, who was 55 years of age at the time of the hearing, started as a cleaner with the accident employer in July On November 20, 1997, he injured his left shoulder when he fell from a ladder. [5] The worker was assessed at the Regional Evaluation Centre (REC) in February and October The diagnoses were strain of the left acromioclavicular joint and strain of the left upper trapezius and the REC evaluators expected the worker to make a full recovery. The worker continued to have symptoms, and, on December 7, 1998, he underwent surgery in the form of an excision of the outer end of the left clavicle. [6] The WSIB accepted that the surgery was related to the workplace accident. In August 2000, the worker s non-economic loss (NEL) award for the left shoulder was rated at 9%. [7] The worker s FEL award was initially determined in December 1998, with an effective date of February 1, The adjudicator noted that the worker s pre-accident earnings were $8.25 per hour, 40 hours per week. The adjudicator determined that the worker should be able to return to either his pre-accident duties or restore his pre-accident earnings with another employer. On this basis, the adjudicator concluded that the worker was entitled to a nominal FEL sustainability benefit. The worker also received a FEL medical rehabilitation supplement while he participated in active physiotherapy treatment. Treatment included Depomedrol injections, anti-inflammatory medications, and painkillers. In September 2000, the WSIB approved the worker s request for reimbursement for a cervical collar.

3 Page: 2 Decision No. 1632/14 [8] The worker s FEL award was reviewed again in 2003 to At that time, the worker was still receiving a medical supplement and the FEL sustainability award was confirmed. The adjudicator noted that worker s NEL award would be redetermined once he reached maximum medical recovery and the FEL award would be reviewed after that. For reasons which are unclear from the file, a NEL redetermination did not take place. [9] Approximately four years later, in June 2008, the WSIB undertook another review of the worker s FEL award. The adjudicator noted that the worker was 50 years of age at that time and had applied for Canada Pension Plan (CPP) disability benefits. The adjudicator concluded that the worker should be able to obtain employment in an entry level type job (NOC Code 668 Other Elemental Services) at minimum wage The adjudicator also found that the worker was not entitled to a retraining program in view of his low pre-accident wages. Although the worker was not fluent in English, the adjudicator felt that this was not an impediment, since it did not prevent him from obtaining employment before the accident. In June 2008, the adjudicator noted that the worker had received a medical rehabilitation supplement for an extended period of time, when he was not entitled to it. The adjudicator decided not to attempt to recover the overpayment of benefits on the basis that it would be unfair to the worker. In summary, effective July 1, 2008, the worker was found to be entitled to a FEL sustainability award to age 65 (R2). [10] The worker has not been provided with any vocational rehabilitation/labour market re-entry (LMR) assistance following his injury. It appears that the accident employer did not offer any form of employment to the worker after his injury. The worker completed a form entitled Vocational Rehabilitation Contact Worker, in The worker indicated that he had spoken to his employer in January 1998, but arrangements had not been made to return to work. The worker indicated that he could do alternative jobs with the employer that did not require his left arm to move or lift. He indicated that the movement of his left shoulder was limited, most movements caused pain, and he could not lift anything. Most of the pain occurred from the neck to the left shoulder. There was no further vocational rehabilitation or LMR contact with the worker. [11] The worker testified that he found part-time employment in or about June He works part-time delivering pizzas. The worker testified that he had to return to work for financial reasons, because his wife was laid off and had to take a job with less pay. For four or five years, he did not look for work. Last year, his financial situation worse, so he needed to look for work. The worker could not remember how many places he went, but he went to retail establishment rather than factories. He visited in person to look for jobs. His education was to the 10 th grade in India. He does not speak English and that has made it harder to find a job. (iv) Law and policy [12] Since the worker was injured in 1997, the pre-1997 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1997 Act, as amended, unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the "WSIA") also apply to the appeal. [13] FEL awards are governed by section 43 of the pre-1997 Act. Subsection 43(1) provides that a worker is entitled to compensation for future loss of earnings arising from the injury.

4 Page: 3 Decision No. 1632/14 [14] Pursuant to subsection 43(3), the FEL benefit is based upon the difference between the worker s net average earnings before the injury and the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. [15] Subsection 43(7) sets out a list of factors which must be considered in determining the worker s FEL award: 43(7) For the purposes of subsection (3), in determining the amount that a worker is likely to be able to earn in suitable and available employment, the Board shall have regard to, (a) the net average earnings, if any, of the worker at the time the Board determines compensation under this section; (b) any disability payments the worker may receive for the injury under the Canada Pension Plan or the Quebec Pension Plan; (c) the personal and vocational characteristics of the worker; (d) the prospects for successful medical and vocational rehabilitation of the worker; (e) (f) what constitutes suitable and available employment for the worker; and such other factors as may be prescribed in the regulations. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: #10 Chronic Pain Disability; #50 Suitable and Available Employment benefits as of July 1, 2007; #66 FEL Decisions as of January 1, 1998; #70 Section 43(9) FEL Supplement; #300 Decision Making/Benefit of Doubt/Merits and Justice. [17] I have considered these policies as necessary in deciding the issues in this appeal, as set out in the analysis of the issues, below. (v) Overview of the medical evidence [18] The following is a summary of the relevant medical evidence on file: Dr. Shepherd, orthopaedic surgeon, November 2, 1999: Dr. Shepherd performed the surgery in December 1998 and noted that the worker was seen with continuing problems regarding his left shoulder. On examination of the shoulder, there was no particular swelling. The incision was well healed although perhaps a little wider than Dr. Shepherd would have liked. There was a negative impingement test. Upon review of a repeat x-ray, Dr. Shepherd was not sure why the worker was having continued shoulder discomfort as he could not see any evidence of further pathology. Further surgery was not recommended. Dr. Shepherd, June 14, 2000: Dr. Shepherd noted that the worker did not do well following the surgery. The worker continued to have problems with his shoulder and had not returned to work since his injury of November His pain bothered at night and during the day. The worker had been off work for three years. There were not a lot of positive findings either on clinical examination or radiological examination which indicated definite

5 Page: 4 Decision No. 1632/14 pathology. A lot of the findings were subjective. A second surgery may not help with a partial tear of the rotator cuff without definite evidence of impingement. Noting that the worker had been off work for three years and was unlikely to get back to work, Dr. Shepherd suggested that a second opinion might be helpful. Dr. M. Pinto, rheumatologist, August 10, 2000: The findings were compatible with a chronic cervical pain and a mild regional fibromyalgia. Dr. Pinto recommended continued physiotherapy and range of motion exercises and the use of local measures for the region. MRI Left Shoulder, September 4, 2002 (compared to previous examination of April 29, 2000): The previously noted partial tear of the left supraspinatus tendon was not as well visualized on the current examination, which could be due to either interval improvement or to degradation of the images. There was, however, no evidence of a full thickness tear and the remainder of the examination was unchanged. Dr. Pinto, October 2002: The worker was seen in follow-up. The worker s left shoulder was still active with pain which was increased by the cold weather. He remained on Voltaren SR 75 mg bid and Elavil 25 mg. He also received B12 injections on his visits. Clinically, there was considerable tenderness in the left shoulder with pain in the anterior rotator cuff fibres. There was also tenderness and spasm of the trapezius muscles with loss in range of motion of the left shoulder. Dr. Pinto recommended continuation of range of motion exercises and consideration of a local steroid injection into the shoulder. Dr. Shepherd, orthopaedic surgeon, gave the opinion that surgical intervention was not indicated and conservative management should continue. Physiotherapist s treatment extension request, May 15, 2003, Mr. B. Carty: The worker s functional limitations at that time consisted of limited reach overhead and strength. Factors delaying recovery included his reported pain levels. On examination, shoulder flexion was 135 degrees, adduction 105 degrees; strength 4/5 for left shoulder, and pain behaviours. Complete recovery was expected in three to four months : The worker was in India for an extended period and there are reports from the Hind Hospital summarizing the worker s treatment. In December 2005, it was noted that the worker was feeling much better. One note indicated that the worker had an old soft tissue injury with complaints of left shoulder pain and limitation of abduction of the left arm. Dr. Mander, Attending Physician s Statement of Continuing Disability, July 2006: In this form completed for the worker s application for disability insurance benefits through the employer, that the worker was unable to use his left arm for lifting and pulling and that he could not handle his regular job. Dr. Mander, Attending Physician s Statement of Continuing Disability, August 22, 2008: Dr. Mander indicated that the worker had left shoulder symptoms since He was not ready for return to regular work or alternative work at that time. The worker was unable to use the left arm for lifting and pulling so he could not do his work. Dr. Carbin, orthopaedic surgeon, November 19, 2008: Dr. Mander, family physician, referred the worker to Dr. Carbin for assessment of his left shoulder pain related to an injury when he fell from a ladder in The worker had persistent pain in his shoulder

6 Page: 5 Decision No. 1632/14 and paresthesia down his arm and the pain seemed to be getting worse. The worker demonstrated a functional range of shoulder movement, but it was quite painful. Dr. Carbin did not believe that the worker would be a good surgical candidate but recommended an MRI to confirm the degree of pathology in the worker s rotator cuff mechanism before considering treatment alternatives. MRI left shoulder, November 29, 2008: There was no evidence of a rotator cuff tear. Findings were in keeping with mild subacromial/subdeltoid bursitis. Dr. Carbin, December 3, 2008: Dr. Carbin reviewed the MRI results and reassured the worker that there was no pathology within his shoulder and that he did not require surgery. The weakness and gap related to the excision of the outer clavicle was obvious and Dr. Carbin felt that this accounted for the worker s persistent pain around the left side of the neck and his shoulder girdle muscles. The worker had a Cortisone injection into the tender area of the muscle mass and was referred to physiotherapy. He continued to receive medications through his family physician, but Dr. Carbin reassured the worker that he did not require surgery. Form 8, December 16, 2008, completed by physiotherapist: The worker reported an onset of left shoulder pain after a fall from a ladder. The worker had had shoulder pain since then. There was a moderate decrease in passive range of motion, a mild decrease in active range of motion, and decreased strength. The diagnosis was left shoulder bursitis. Treatment plan consisted of exercises, joint mobilizations, and TENS/heat. No work limitations were identified. Dr. Ahmed, October 25, 2010: Dr. Ahmed became the worker s family physician in June Dr. Ahmed noted that the worker had chronic back pain and left shoulder pain. He took Meloxicam 7.5 mg and baclofen 10 mg bid. He was also seeing a chiropractor. The worker noted minimum improvement in his pain. Dr. D. Armstrong, orthopaedic surgeon, October, 2011: Dr. Armstrong had referred the worker for a neurology consultation with Dr. Ganesan, neurologist, due to the potential for cervical radiculopathy. Dr. Armstrong noted that the cervical pathology was not borne out to be a significant issue upon review by the neurology service. (vi) Conclusions and analysis (a) CPD entitlement [19] The appeal is allowed on this issue for the reasons that follow. [20] Operational Policy Manual (OPM) Document No (contained in Policy Package #10) provides that the following eligibility criteria must be met before entitlement is recognized for CPD: 1. A work-related injury occurred; 2. Chronic pain is caused by the injury; 3. The pain persists six or more months beyond the usual healing time of the injury; 4. The degree of pain is inconsistent with organic findings; 5. The chronic pain impairs earning capacity and causes a marked life disruption.

7 Page: 6 Decision No. 1632/14 [21] The policy also sets out the type of evidence usually required to establish that the criteria have been met. [22] In this case, it is undisputed that a work-related injury occurred. To show that the chronic pain is caused by the injury, Board policy requires evidence of the worker s consistent, continuous, and genuine pain following the injury and supportive medical opinion. In this case, the medical evidence supports that the chronic pain is caused by the injury. There is no evidence of previous left shoulder complaints. The records document his ongoing pain and attempts at several different forms of treatment, including physiotherapy, chiropractic, and injections. [23] There is no suggestion in the medical reports that the worker s pain is not genuine or is attributable to any cause other than the workplace injury. [24] The primary issue in the worker s claim for CPD is whether the degree of pain is inconsistent with the organic findings. In this regard, the CPD policy notes: Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder, see , Psychotraumatic Disability) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy. [25] The WSIB concluded that the worker s pain was adequately explained by his organic post-surgical condition. In particular, the ARO noted Dr. Carbin s opinion in December 2008 that the weakness and gap related to the excision of the outer clavicle was accounting for the persistent pain around the left side of the neck and his shoulder girdle muscles. In November 2001, Dr. Pinto noted that the worker s findings were compatible with persistent rotator cuff symptoms related to the previous tear. [26] On review of the medical evidence as a whole, however, I find that it supports that the nature and extent of the worker s pain is not fully explained by the organic findings. I have noted the following in reaching this conclusion: Due to the worker s ongoing pain, the worker was referred for several diagnostic investigations, most of which were negative or showed only findings in keeping with a mild subacromial/subdeltoid bursitis. In December 2008, Dr. Carbin reviewed the results of the MRI and reassured the worker that there was no pathology within his shoulder and he did not require surgery. The physiotherapist noted in January 2002 that the worker s recovery was significantly delayed due to his currently reported pain levels. The physiotherapist recommended a multi-disciplinary health care assessment for this reasons. The physiotherapist also noted that the worker demonstrated significant pain behaviours. Dr. Ganesan reviewed the EMG results, which showed no evidence neuropathy or active radiculopathy in the muscles. Dr. Ganesan concluded that the bulk of his pain on the left side is non-neuroanatomical. There was no reproducible radicular symptomatology on examination. Dr. Ganesan referred the worker back to his family doctor and Dr. Armstrong for follow-up.

8 Page: 7 Decision No. 1632/14 Dr. Pinto provided a diagnosis of chronic cervical pain and a mild regional fibromyalgia in August Although the diagnosis of fibromyalgia was not repeated, this reference indicates that Dr. Pinto concluded that the worker s pain was not fully explained by the organic findings. [27] In summary, although the worker has an organic condition which partially explains his pain, the medical evidence supports that there is a lack of pathology in the shoulder to fully explain the extent and duration of the worker s neck and left shoulder pain. Ongoing diagnostic investigations undertaken in an effort to identify an organic cause for the worker s pain did not reveal significant findings. [28] The documentary evidence and the worker s testimony demonstrate the presence of marked life disruption in accordance with Board policy. The worker s vocational life was disrupted in that he could not continue his pre-accident job as a cleaner. He testified that he socializes less than he used to and no longer plays sports. The worker used to play hockey, football and soccer prior to the injury. No one offered him a job because of his hand, but he was able to find a job within his community working approximately three hours per shift. He drives with one hand. It is hard for him, but he needs to do this. He is able to drive for short periods. In his job, he needs to drive less than 10 minutes at a time. He sees relatives and friends less often because of his injury. He helps with household chores to the extent that he can. The worker s activities include going for walks, shopping if he can carry items with one hand. He lives with his wife, two children and in-laws. His wife helps him with many self-care tasks. He can drive up to 15 to 20 kilometres. He is right-handed. [29] The worker testified that his medication include Tylenol #3, one tablet two to three times per day; Meloxicam, a muscle relaxant; amitriptyline for sleep; and medications for gastrointestinal upset caused by the other medications. The worker testified that the medications provide partial relief of his pain. [30] In summary, I find that the worker meets the entitlement criteria of the CPD policy. The ongoing medical reports demonstrate that the worker s CPD condition is permanent. The worker is entitled to a NEL assessment. The worker's representative did not make submissions regarding the date of maximum medical recovery (MMR) and that may be determined by the WSIB. (b) Entitlement to FEL benefits as of July 1, 2008 [31] The worker s appeal is allowed in part on this issue, for the reasons that follow. [32] The WSIB s statement of applicable policy included OPM Document No , Determining Suitable and Available Employment or Business, and Earnings. This policy defines a suitable employment or business (SEB) as a category of jobs suited to a worker s transferable skills that: Are safe Are within the worker s functional abilities Reduce or eliminate the loss of earnings resulting from the injury Are achievable after LMR, and Are available in the local labour market. Available means that employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job.

9 Page: 8 Decision No. 1632/14 [33] The SEB is the group of occupations identified within a NOC minor group. OPM Document stipulates that the majority of the specific jobs within a SEB category should be suitable and available and within the worker s functional abilities. Decision-makers should only identify jobs within the unit group NOC that are suitable and available for the worker. The ARO concluded that the worker restore his pre-accident earnings in employment in NOC 1453 (Customer Service) or NOC 6683 (Other Elemental Service Occupations). [34] The WSIB accepted that the worker s left shoulder injury would preclude jobs involving repetitive use or heavy lifting with the left shoulder. I find that the worker s compensable left shoulder injury and chronic pain significantly limited the scope of jobs that would be suitable for him, noting that the WSIB chose not to provide LMR assistance of any kind to the worker. The worker has limited transferable skills, having been employed in farming and labouring jobs in the past. He is not able to speak English fluently and does not write in English. He requires an interpreter for communication. The ARO suggested that the worker could perform jobs such as theatre attendant, but it is likely that some English fluency would be required for many attendant jobs. He also lacks the skills and training for customer service positions, even if he were able to find a position in an environment where his first language is spoken, as the ARO decision suggested. He might have been capable of restoring his earnings if he had been provided with some vocational assistance, but no assistance was provided. In these circumstances, I find that he was not in a position to restore his pre-accident earnings in full-time employment in view of his relevant personal and vocational characteristics. [35] Nevertheless, I am unable to give effect to the worker's representative s submission that the worker was unemployable and should be entitled to a full FEL award as of July 1, Despite the extensive medical reporting on file, there is little support for a conclusion that the worker could not function in any employment capacity. The only report to specifically endorse this position is Dr. Mander s Attending Physician Statement of August I note, however, that this report provides limited detail in support of the conclusion that the worker was not capable of any form of work. In addition, Dr. Mander indicated that there had been little change since the previous report. In this regard, an earlier Physician s Statement of Continuing Disability, dated July 2006, indicated that the worker was unable to use his left arm for lifting and pulling and that he could not handle his regular job; however, Dr. Mander did not indicate that the worker was disabled from any other occupation, although there is a space on the form to indicate as such. In the later report, there is no specific information about how the worker s clinical condition has changed. More recently, in October 2010, the worker s current family physician, Dr. Ahmed, indicated that the worker had chronic back pain and left shoulder pain, but did not provide restrictions or suggest that the worker was incapable of any form of work. There are also numerous ongoing reports from several specialists, none of which indicate that the worker is precluded from performing any sort of part-time work within his restrictions. In these circumstances, I find that a single report from the family physician, dated August 2008, is insufficient evidence to support a full FEL award on an ongoing basis from that time. [36] In my view, the evidence shows that the worker was capable of earning income in part-time employment as of July 1, In this regard, I note that the worker testified that he started working part-time in June He works as a pizza delivery person. He found this job because his wife was laid off and had to take a job with less hours and pay; therefore, he needed to find work for financial reasons. He works a total of 12 to 15 hours per week. He is able to manage this job using one arm only.

10 Page: 9 Decision No. 1632/14 [37] The worker s testimony indicates that he did not conduct an extensive job search until he was motivated to do so for financial reasons in During his testimony, the worker was specifically questioned about his job search efforts, and it does not appear that he engaged in an active job search until approximately 2012 or He was not able to estimate how many employers he contacted and my attention was not drawn to any records showing evidence of an active job search until 2012 or In addition, my attention was not drawn to any medical evidence to suggest that his compensable condition and ability to secure employment had changed or improved in The worker began actively looking for work at that time because he needed to do so for financial reasons, rather than any change in his compensable medical condition. [38] An R2 FEL review remains in effect until a worker reaches age 65 and is not adjusted except in circumstances specified by the applicable legislation. Tribunal decisions stand for the proposition that some changes in a worker's situation that occur after R2 may be taken as evidence that sheds light on the worker's actual circumstances at the time of the FEL review (see, for example, Decision No. 1334/03). In this case, I find that the evidence of the worker s current ability to work part-time sheds light on the extent of his ability to earn as of the final FEL review date, July 1, Accordingly, his FEL award as of July 1, 2008 ought to be calculated based upon the ability to work 15 hours per week at minimum wage. [39] As I noted at the hearing, the worker's representative s request for an adjustment to the FEL award in June 2013 potentially raised a further issue with regard to the statutory time periods for the review of FEL awards. Pursuant to amendments enacted under the WSIA and OPM Document No , Reviewing FEL Benefits, the WSIB shall not review a FEL award more than 60 months after the initial determination. A FEL award is not adjusted after the final review date, subject to exceptions specified in section 44 of the WSIA. In light of my conclusions, set out above, it was unnecessary to consider the time period issue.

11 Page: 10 Decision No. 1632/14 DISPOSITION [40] The appeal is allowed in part as follows: 1. The worker is entitled to benefits under the CPD policy, including a NEL assessment. The MMR date of the worker s CPD condition is remitted to the WSIB to determine, subject to the usual rights of appeal. 2. The worker is entitled to a partial FEL award, effective July 1, 2008, based upon deemed part-time earnings at minimum wage, 15 hours per week. DATED: March 30, 2015 SIGNED: R. McCutcheon