WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1117/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1117/07 BEFORE: S. J. Sutherland : Vice-Chair HEARING: May 7, 2007 at Sudbury Oral DATE OF DECISION: May 16, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1301 DECISION(S) UNDER APPEAL: Appeals Resolution Officer, M. St. Hilaire, dated March 9, 2005 APPEARANCES: For the worker: P. Aubut, a Consultant For the employer: D. Sangiuliano, Office of the Employer Adviser Interpreter: N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1117/07 REASONS (i) Introduction [1] Both the worker and the employer appealed from the decision of the Appeals Resolution Officer, M. St. Hilaire, dated March 9, In that decision, the Appeals Resolution Officer concluded that the calculation of the worker's final future economic loss (FEL) award was correct; the worker was not entitled to any further supplementary benefits; and the worker was not entitled to a 100% FEL award. [2] The worker is seeking a finding that he is unemployable and is entitled to a 100% FEL award and further supplementary benefits. [3] The employer asks that the worker's request for a 100% FEL award be denied, that further supplementary benefits be denied; and that the worker's final FEL award be based on the earnings of a fully experienced accounting clerk. (ii) Background [4] The employer manufactures mining equipment and supplies. [5] The worker was 52 years old at the time of the hearing. He injured his back on six occasions before he started working for the employer in this appeal. The dates of those injuries were March 5, 1986; January 13, 1987; June 6, 1988; September 27, 1988; January 19, 1989; and October 23, He was working for different employers when he sustained each injury i.e., six different employers were involved in the worker's six prior claims. [6] The worker began working for this employer, as a welder and general labourer, on October 29, He twisted his low back on December 2, 1996, when he bent over at work. The worker's Report of Injury said that he was bending to grind a weld and the grinder weighed about five pounds. The employer's Report of Injury said that he bent over to pick up a two pound hammer. The materials contained a "Report of Accidental Injury" that was dated December 2, 1996, and was signed by the worker and his supervisor. The report said that the injury happened when the worker was "twisting + bending down." The report asked "explain what the employee was doing in the effort involved." The response was "pick up hammer on floor." The document also asked to identify the size and weight of the equipment. The response was "2 lb. hammer." Given that the document was prepared on the date of the accident and the worker signed it, I accept it as being an accurate description of the accident. [7] Dr. W. Durocher treated the worker on December 2, Dr. Durocher diagnosed an "acute back strain." [8] An x-ray taken on December 5, 1996, showed "no significant degenerative changes." [9] The worker returned to his regular job duties with the accident employer on December 16, He and the employer had a dispute with respect to his salary and the worker quit on January 30, 1997.

3 Page: 2 Decision No. 1117/07 [10] The worker contacted the Board on a date that is not clear from the record and asked for health care and temporary total disability benefits, effective May 21, [11] The claims adjudicator allowed the worker entitlement to benefits for a recurrence, on September 8, [12] The worker attended a multidisciplinary health care assessment on October 8, The assessors diagnosed mechanical low back pain and said that the worker's prognosis was "good." The physiatrist who examined him, Dr. A. Graham, said that the worker had achieved "a full functional recovery now with no persisting impairment." The assessors recommended that the worker not do any heavy lifting, sustained or repetitive flexion activities, or prolonged repetitive bending for three weeks, following which he could progress as tolerated. [13] On January 2, 1998, a junior adjudicator determined, based on the multidisciplinary health care assessment report, that the worker was fit to return to work and did not have a permanent impairment. The junior adjudicator closed the worker's benefits, effective October 29, The worker objected to that decision. [14] The claims adjudicator, on December 17, 1998, found that the worker had never recovered to his pre-accident condition and he had permanent restrictions of no prolonged and repetitive bending, heavy lifting, or maintaining prolonged positions. Since the worker could no longer perform his pre-accident work and did not try to find alternate work, the claims adjudicator allowed him temporary partial 50% benefits from October 29, 1997 until May 21, The worker objected to that decision on December 29, 1998, and asked for vocational retraining. [15] The claims adjudicator referred the worker for labour market re-entry assistance. After vocational testing, the worker and the service provider submitted a labour market re-entry plan that required academic upgrading to Grade 12, a two-year training program at a community college with the goal of becoming a welding technician/inspector, a job-search training skills program and a period of job searching. The claims adjudicator accepted the proposal on May 4, [16] Dr. D. Harding assessed the residual impairment in the worker's low back on May 20, Following Dr. Harding's assessment, the Board granted the worker a 13% non-economic loss award. [17] The worker's entitlement to a FEL award was reviewed on May 27, The claims adjudicator used the labour market re-entry goal of welding inspector, which had projected net average earnings of $ per week. The worker's pre-accident net average earnings were $ per week. The worker received a FEL award of $ per month and a supplement of $1, per month, while he was engaged in the labour market re-entry program. [18] The worker had difficulty with mathematics and did not complete that aspect of his academic upgrading. He asked for, and received, a one-year extension. He enrolled in the college programs for which he met the prerequisites (welding drafting, computer applications I and communications I) and began attending college on September 6, 2000.

4 Page: 3 Decision No. 1117/07 [19] The worker appealed with respect to the allowance of temporary partial 50% benefits between October 29, 1997 and May 21, 1998, and requested full benefits until May 18, The employer cross-appealed with respect to the worker's initial entitlement to benefits and his ongoing benefits. The worker withdrew his appeal. The employer's appeal proceeded in the worker's absence. In a decision dated November 29, 2001, Appeals Resolution Officer, M. Evans, denied the employer's objections. [20] The worker's FEL award was reviewed on May 31, The worker was cooperating with his labour market re-entry program. The goal of welding inspector remained suitable. The claims adjudicator adjusted the worker's pre-accident net average earnings to $ per week. His projected net average earnings as a welding inspector were $ per week. His FEL award was increased to $ per month. His ongoing supplement was approved. [21] The worker began his first year of formal community college training on September 20, He immediately ran into difficulties. His attendance was sporadic for various reasons. He had two special-needs children and a third child who required surgery. His father was ill. The worker got married and went on a honeymoon. He took a vacation. His wife had a difficult pregnancy. The service provider recorded that the worker was "preoccupied with his son's condition and his family situation. Worker reports he is also worried about his WSIB appeals hearing and the outcome of this file issue." The worker fell downstairs at his home on November 13, He broke the little finger of his left hand, cracked his left fifth and sixth rib and injured his buttocks and lower spine. He missed school on March 4, 5, and 6, He withdrew from a course titled Engineering Materials I because of difficulty with the course content, on March 5, [22] The worker failed all his classes in the winter semester of the welding inspector program. He attended a vocational assessment on July 31, That assessment indicated that the worker could be successful in the field of accounting/business administration. The claims adjudicator agreed with the change in labour market re-entry program and the worker began a 35-week course to become an accounting clerk. That program started on October 1, [23] The employer objected to the second labour market re-entry program, on November 20, Appeals Resolution Officer St. Hilaire denied the employer's objection in a decision dated May 20, [24] The worker successfully completed the accounting clerk course on May 9, He elected not to participate in a job-search training program and commenced a job search on May 10, The job search was scheduled to end on December 31, The worker was unemployed and a three-month extension was granted. The worker was still unemployed and the job search was extended to June 30, [25] The final review of the worker's FEL award took place on July 12, The claims adjudicator used the earnings of a fully experienced accounting or related clerk in the North Bay and Timmins areas. She escalated the worker's pre-injury earnings to $ per week. She deemed that as an accounting clerk, the worker would have net average earnings of $ per week. She adjusted his FEL award to $ per month. That decision was effective from

5 Page: 4 Decision No. 1117/07 June 1, 2004 until April 1, The claims adjudicator advised the worker that he would no longer receive supplementary benefits. [26] Mr. R. Aubut, who was then the worker's representative, objected to the claims adjudicator's decision on July 19, On August 13, 2004, Mr. Aubut said that the worker was unemployable because of his compensable back injury and should receive a full FEL award. [27] As noted above, Appeals Resolution Officer St. Hilaire denied the worker's appeal in her decision dated March 9, [28] The worker appealed to the Tribunal. (iii) The worker's testimony [29] The worker testified that he started working when he was 16 years of age and has worked all his life. He worked in road construction, commercial fishing, carpentry, general labour, tree planting, etc. All his jobs involved manual labour. He had a welding ticket, which meant he could find a job any place. He assured me that if he was healthy enough to work, he would be working. [30] The worker said that he earned $13.50 per hour when he worked for the accident employer. He was earning $31.90 per hour in his previous job but it was in construction and the job ended. [31] The worker stated that life since the December 2, 1996 accident has not been "very nice." He could no longer do the things that he was able to do before that injury. He gave as examples, skating, playing baseball, playing with his children, having regular sex with his wife, and going to movies. He said that he can cut the lawn but suffers for days afterwards. He used to shovel snow but stopped last year because his sons were big enough to do it and he was in pain afterwards. He cannot drive long distances. He feels "dopey" if he takes pain killers. He has a hard time cleaning himself after going to the bathroom. He cannot wash his lower extremities when he takes a shower. He cannot walk very far. He bought a stationary bicycle because he felt it would give him some exercise but he finds it difficult to pedal "very much." A friend gave him some free weights but he cannot use them because "it hurts too much." He was concerned that his children do not want to do things because he cannot do them. He went bankrupt. He had to sell his car because he could not afford insurance. He has nothing to look forward to. The only thing that helps the pain is to lie down with his knees up. [32] The worker said that he lives in Kirkland Lake. A friend drove him to Sudbury the day before the hearing. [33] The worker described his labour market re-entry program as follows. He attended academic upgrading for two years. He could take breaks as needed during his academic upgrading. The first labour market re-entry plan was to return to work as a welding inspector. He attended college to achieve that goal in Kirkland Lake. He could not do the regular college course because he could not sit to do the work and his condition got worse as the semester went on. Sitting at a computer and typing caused him "vicious pain" in his back. He could work on the computer for 45 minutes or so and then needed a half-hour break. When he returned to the

6 Page: 5 Decision No. 1117/07 computer, he could work for perhaps a half-hour but still needed a half-hour break. The amount of time that he could spend working reduced while his need for breaks increased. [34] In response to questions from Ms Sangiuliano, the worker acknowledged missing a lot of time from school but said he could not remember why he had been absent. When Ms Sangiuliano reviewed the documentary evidence with respect to the reasons for the worker's absences, the worker confirmed them. [35] Ms Sangiuliano pointed out that the worker did not report having medical problems when he had difficulty with school. The worker stated that he wanted to work. He was told that the schools would make provisions for his back but they did not. When he was attending school, he could sit for a while but he reiterated that stretching his arms to type hurt his back. He sometimes took two-hour rest breaks. He could not remember if he complained about back pain to the service provider but thought he probably did. [36] The Board gave him another chance and he attended school in North Bay from September 2002 until May His wife was pregnant with their daughter and was having problems with her pregnancy. Therefore, he asked to take the course through correspondence but this was denied. He rented a cottage in North Bay and stayed there, alone. He did a little cooking but most of the time he ate take-out food. There was maid service at the cottage so he did not do any cleaning. He was not sure of the distance between Kirkland Lake and North Bay but said it took him about 4½ hours to drive each way. He had a comfortable car with a lumbar support and took breaks along the way. He went home to Kirkland Lake every Friday and returned to North Bay for classes on Monday morning. In the second program, he was also allowed to take breaks as needed. He graduated with honours. He recalled being offered a job-search program but did not take it because he took a similar program in college. He now has qualifications but cannot find a job. He did a job search on his own, although once a month he went to Timmins to discuss matters with the service provider. He did not know how many résumés he sent out. He said that he only got one letter back and it said they hired someone else. He never got to the interview stage. [37] It was the worker's evidence that he "knew in [his] heart that he could not sit for eight hours." He had a family to support and if he told the Board he could not work, his benefits would have ended. [38] The worker said that he was receiving benefits in the order of about $1,726 per month under the Ontario Disability Support Program and his FEL award of $224 per month. His Ontario Disability Support Program benefit fluctuates, depending on how much money his wife earns. Half of her wages are deducted from his benefits. [39] The worker was taking the following medications at the time of the hearing: Tylenol 3, 1 Meloxicam, 2 Amitriptyline, 3 Omeprazole, 4 and Domperidone. 5 He said that he sees his family 1 Tylenol #3 is a combination of acetaminophen and codeine. It is used for the relief of mild to moderately severe pain. 2 Meloxicam is used to relieve pain, tenderness, swelling, and stiffness caused by arthritis.

7 Page: 6 Decision No. 1117/07 physician every two months. He has seen two specialists; Dr. M. Ford and Dr. J. Remus, both of whom are orthopaedic surgeons. They say they cannot operate on his back. His family doctor says that his condition is getting worse and will continue to do so. He has not looked for work because there is nothing he can do. He thought that he was totally disabled as far as working is concerned. He has considered various job options but there are none that provide the flexibility that he needs. [40] I asked the worker about his work history. He said that the job that paid him $31.90 per hour was in Dryden, in construction, and only lasted six days. He thought that he probably worked seven or eight months of the year on average. [41] I also asked the worker about his decision to quit his job with the accident employer in January The worker explained that the employer had five or six welders but none had a welding ticket. He had one. When he interviewed for the job he told his supervisor that he would take the job but wanted a raise. He was told he would get one in three months. When the three months passed, he asked for the raise and was told he would have to work another three months. In addition, he "got attitude" from the foreman when he returned to work after being injured. His work was never good enough or fast enough. He said that he had been taking 10 to 12 Tylenol 3 s per day to keep working. He probably would have continued doing so if the employer had given him the promised raise. (iv) Law and policy [42] On January 1, 1998, the Workplace Safety and Insurance Act (WSIA) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries that happened before January 1, All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. [43] Section 4(1) of the pre-1997 Workers Compensation Act provides that where personal injury by accident arising out of and in the course of employment is caused to a worker, the worker is entitled to benefits in the manner and to the extent provided by the Act. Tribunal cases generally have interpreted the test for causation to be whether the work accident was a significant contributing factor to the disability. [44] A change that is relevant to this appeal is that the Appeals Tribunal is now required to apply Board policy in accordance with sections 112 and 126 of the WSIA. Prior to this, the Tribunal did consider and apply Board policy in deciding appeals, although the prior Act did not contain this express provision. [45] As is required by section 126 of the WSIA, the Board advised the Tribunal of the policies that are applicable in this appeal. 3 Amitriptyline is also known as Elavil. It is a tricyclic antidepressant and is sometimes used to alleviate the anxiety component of depression. 4 Omeprazole is used to treat ulcers, gastroesophageal reflux disease (GERD), and erosive esophagitis. 5 Domperidone increases movement through the digestive system. It is used to treat symptoms of stomach disorders. It may also be used to prevent nausea and vomiting caused by certain medications.

8 Page: 7 Decision No. 1117/07 (v) Conclusions (a) The calculation of the worker's final future economic loss (FEL) award [46] The claims adjudicator described the calculation of the worker's final FEL benefits in the following terms, in a letter dated July 12, 2004: As noted, the WSIB [Workplace Safety and Insurance Board] operational policy states that at the time of the final FEL review, if a worker remains unemployed on completion of the LMR program, then the earnings used to calculate the FEL award are those of a fully experienced worker in that SEB [suitable employment or business]. I have reviewed the Human Resources and Development Canada (HRDC) statistics, in regards to the average earnings for someone securing employment as an accounting or related clerk in both the North Bay and Timmins areas. The earnings indicated for the most experienced workers is approximately $19.50 per hour. Noting your experience and location, I used an average of the medium [sic] wages paid to obtain the average wage for an accounting clerk. This is $13.55 per hour or $ per week. Therefore, at this time, your FEL benefit will be calculated based on the earnings of $ per week. [47] The Appeals Resolution Officer provided a somewhat fuller explanation. He said: The Final FEL review (R2) was conducted in June The earnings of the current SEB of Accounting and related clerk's (NOC 1431) were used to calculate the FEL R2 benefit. The adjudicator noted that the projected wages for his occupation at the start of the worker's program was $13.97 per hour in However, the 2001 wage survey showed that the wages in Timmins were $8.43 low - $13.68 medium - $13.45 mean - and high of $19.65 per hour. The wage survey provided wages in the North Bay area of $9.60 low - $13.53 medium - and high of $19.33 per hour. Noting [the worker] resided in Kirkland Lake, which was between Timmins and North Bay, the adjudicator used the average of the mean and mediums for both Timmins and North Bay. The calculation was: equals divided by 3 equals per hour. Therefore, the FEL final benefit was calculated using $13.55 per hour resulting in a net average projected earning of $ weekly. [48] Ms Sangiuliano asks that the earnings of a fully experienced worker, not the median wage, be used in the final calculation of the worker's FEL award. [49] The Board's Operational Policy Manual, Document No , titled Reviewing FEL Benefits, states: Labour market re-entry (LMR) ends If a worker has a wage loss upon completion of an LMR plan, the FEL benefit is based on the greater of the most recent wage guide information for the SEB earnings identified in the LMR assessment, or actual earnings of the worker, see , Determining Suitable Employment or Business, and Earnings. [50] It is not clear to me whether the mean (or average) wage used in the calculation of the worker's FEL benefit was the average wage of fully experienced accounting and related clerks or if it was

9 Page: 8 Decision No. 1117/07 the average wage of all clerks. It is also unclear whether the 2001 wage survey was the most recent survey in June (b) The worker's entitlement to further supplementary benefits [51] The Board's Operational Policy Manual, Document No , also addresses the matter of FEL supplementary benefits. That portion of the policy says: FEL supplements - 60 months post-initial determination After 60 months post-initial determination, workers receiving a FEL benefit (including a FEL sustainability benefit) may be entitled to a FEL supplement if: the worker is participating in an LMR plan and the plan is not completed when the 60th month review point is reached, or the worker experiences a significant deterioration in his/her medical condition, and the worker cooperates and participates in a medical rehabilitation program. [52] The worker completed his labour market re-entry program on June 30, The claims adjudicator reviewed his FEL award on July 12, The worker testified that he has not looked for any work since he finished his labour market re-entry program. It is clear, therefore, that he was not involved in a self-directed labour market re-entry plan. There was no evidence before me that would indicate that he has sustained a significant deterioration in his condition. Accordingly, there is no basis on which to grant the worker FEL supplementary benefits. (c) The worker's entitlement to a 100% FEL award [53] Mrs. Aubut argued that the worker was unemployable because of his low back injury and entitled to a 100% FEL award. With respect, I disagree. [54] The accident from which this appeal arises was a minor one. As noted in section (ii) of this decision, the worker twisted his back as he bent down to pick up a 2 pound hammer from the floor. It cannot be said that the accident rendered the worker totally disabled. Indeed, the medical reporting indicated that the worker simply suffered a back strain. [55] Also noted in sections (ii) and (iii) is the fact that the worker returned to his regular job duties but quit about six weeks later, over a salary dispute. There was nothing to indicate that the worker could not have continued working. In fact, the worker testified that if the employer had given him the raise he requested, he would have continued to work. [56] The Board found that the worker has a permanent impairment as a result of the compensable injury. Following an assessment of the impairment, the worker received a 13% non-economic loss award. The quantum of the award is indicative of a fairly minor residual impairment. [57] The worker has had two labour market re-entry plans. The first was designed to assist him in becoming a welding inspector. When he failed that course, the Board offered him a second labour market re-entry plan, from which he graduated with honours. In all, the worker attended school and received full benefits from May 1999 until June The worker had significant personal problems that interfered with his progress, some of which are documented in the materials. However, there is remarkably little medical attention and remarkably little complaint about physical problems. I note the following, in particular:

10 Page: 9 Decision No. 1117/07 the worker's permanent restrictions were no prolonged or repetitive bending, heavy lifting, or maintaining prolonged positions; the job goal of accounting or related clerk met those restrictions; the psychovocational assessment that was carried out in July 2002 indicated that the worker could be successful in clerical occupations; the worker attended the accounting clerk program between September 16, 2002 and May 9, 2003; the only medical attention that the worker received when he was attending the clerical program between September 16, 2002 and May 9, 2003 was in December 2002 and January 2003, when he had influenza; there is no mention of the worker's compensable back injury in any of the service provider's progress reports while he was in school between September 16, 2002 and May 9, 2003; the service provider's progress reports do not indicate that the worker had any concerns or complaints about keyboarding; the worker was capable of driving for 4½ hours, twice a week while he was in school, to visit his family; the Appeals Resolution Officer recorded, in his decision, that the worker testified "Just sitting at the computer at the Employment Insurance office aggravated his back pain," which is somewhat different from the worker's testimony at the hearing before me; the service provider's reports dated February 11, March 24, and June 30, 2004, had a heading "Discussed the worker's compensable injury." There was no mention of the worker's back in the February 11 report; the worker reported that his back was "not too bad lately" on March 24, the June 30, report said: The worker reported that his back is really good on some days and stiff on other days. He stated that today his back was stiff and sore. the June 30 report recorded that the worker had two job offers which he declined: the first because it was in Timmins and he could not afford to move; the second, because it only paid minimum wage; the service provider's final report was on June 30, She had a telephone interview with the worker in which he said that he was "glad we had a phone interview because his back becomes sore from the drive to Timmins." the last medical report with respect to the worker's compensable injury was a note dated March 6, 2001 from the worker's family physician, Dr. E. Jordan. That note said: "taking Tylenol #3 TID and Zantac POB 10 due to ongoing back pain." [58] The worker has a 13% non-economic loss award. There is no basis on which I could find that he is unemployable because of his compensable low back injury.

11 Page: 10 Decision No. 1117/07 DISPOSITION [59] The employer's appeal is allowed. [60] The worker's appeal is denied. [61] The Board is directed to review the R2 calculation of the worker's FEL award and ensure that the earnings of fully experienced accounting and related clerks and the most recent wage survey, as of June 2004, are used. [62] The worker is not entitled to further FEL supplementary benefits. [63] The worker is not entitled to a 100% FEL award. DATED: May 16, 2007 SIGNED: S. J. Sutherland