WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2011/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2011/14 BEFORE: R. Nairn: Vice-Chair HEARING: October 30, 2014 at Oshawa Oral DATE OF DECISION: February 26, 2015 NEUTRAL CITATION: 2015 ONWSIAT 455 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated February 8, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. N. Best, Paralegal Ms. A. Ibrahim, Company Personnel 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 7th Floor 505, avenue University, 7e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2011/14 REASONS (i) Introduction [1] The worker, born in 1962, started with the accident employer s motor vehicle assembly business in [2] On approximately November 22, 1994, the worker reported an onset of pain in his right arm which he related to the repetitive nature of his job duties. As noted in Memo #11 of October 6, 1995, the WSIB (the Board ) recognized that the worker's right wrist/forearm condition was compensable with Dr. J. Roos of the Board opining that the diagnosis of tendonitis was compatible with the worker's job history. The worker's claim was allowed and he was granted various periods of temporary compensation benefits. [3] As noted in Memo #17 of September 16, 1998, entitlement in the claim was eventually expanded to include symptoms the worker was experiencing in his left forearm which were the result of overcompensating for the right arm and doing repetitive work. [4] In December 1999, the worker was advised that he was being granted a 15% Non- Economic Loss ( NEL ) award for his compensable injuries diagnosed as bilateral flexor tendonitis, on an organic basis. [5] According to the decision on appeal, since the worker was accommodated at work with no wage loss, a formal future economic loss ( FEL ) determination was not completed. [6] In 2001, the worker claimed entitlement to temporary total disability benefits for lost time which he asserted was the result of a recurrence of his compensable injuries. In 2004, the Board conducted an ergonomic review of the duties the worker had been performing in 2001 and as noted in a memo of March 26, 2004, the Ergonomist concluded that there were risk factors present that could have contributed to the development of [the worker s] neck and bilateral shoulder injury. After reviewing the comments from the Ergonomist, the Board Adjudicator in Memo #60 of May 12, 2004, concluded that the rear seat load job function was not suitable for the worker's permanent restrictions and therefore the worker was granted temporary total disability benefits from July 19 to August 28, 2001, September 24 to 26, 2001, October 1 to 26, 2001 and October 29 to November 13, In a decision dated May 12, 2004, the Adjudicator confirmed that the worker was being granted temporary total disability benefits for the periods of time in The Adjudicator also confirmed that there was no medical evidence on file to suggest a significant or permanent impairment relating to the shoulders or the neck. The Case Manager also confirmed that the worker did not have any psychotraumatic entitlement as the Sector Medical Consultant feels that there does not appear to be any diagnosis suggestive of a psychiatric disorder and entitlement was also denied for a back condition under this claim. [7] In a decision dated March 8, 2006, an Appeals Resolution Officer ( ARO ) confirmed the operating level s decisions with respect to entitlement for the neck, shoulders and further benefits in [8] On approximately May 26, 2008, the worker laid off work, claiming a recurrence of his compensable injuries. He applied for short-term disability ( STD ) benefits from the accident employer but that application was denied on June 11, According to the decision on appeal, the employer subsequently determined that the worker had contravened the terms of the

3 Page: 2 Decision No. 2011/14 collective agreement by remaining off work without appropriate medical evidence/authorization and in late June 2008 the worker's employment was terminated. The worker launched a grievance with respect to his termination and a settlement was eventually reached in which the worker accepted a buyout package from the employer. [9] The worker requested that he be granted ongoing temporary total disability benefits from May 2008 claiming that he had suffered a recurrence of his compensable injuries. In Memo #72 of April 17, 2012, a Board Case Manager noted: The DOA in this claim is 24 Nov 1994 and the worker has entitlement to a 15% NEL benefit for bilateral flexor tendonitis which was rated on 13 Apr No FEL decisions have been made in this claim to date. ( ) According to the employer, the worker was terminated on 23 Jun 2008 as they found the worker to be in violation of section 54E of the collective agreement - he had applied for STD in early June 2008 and this was denied on 11 Jun E of the collective agreement states that an employee has 5 days to return to work following a denied sick leave. The worker remained absent beyond the 5 days and the employer subsequently terminated the worker on 23 Jun The union grieved the termination and as part of a negotiated settlement, the worker accepted the Special Attrition Buyout Program offer on 12 Sep the worker had been employed with [the employer] since 04 0ct as part of the offer, the worker received a onetime $100, lump sum payment. Based on the above information, the wage loss subsequent to June 2008 appears unrelated to the compensable injury - the wage loss appears to be related to a termination and subsequent negotiated settlement in which the worker voluntarily accepted a buyout package. [10] In a decision dated July 6, 2012, the Case Manager confirmed the denial of entitlement to benefits after May 26, 2008 and noted: [The worker] had suitable work available to him. He stopped working and applied for and was denied STD benefits. He was terminated due to an employment situation and not as a result of his compensable injury. Noted, he did voluntarily accept a settlement or buyout. [The worker] took himself out of his employment. As such, he is not entitled to any additional LOE benefits. The May 26, 2008 recurrence is denied. [11] The worker objected to the conclusions of the Case Manager and the matter was eventually referred to an ARO. In a decision dated February 8, 2013, the ARO denied the worker's appeal and concluded: The May 2008 layoff and STD application was attributed to depression stemming from employment issues. As per the AE s May 23, 2008 letter the STD application was denied and the AE requested the worker provide supportive medical evidence for consideration of a leave of absence. Alternatively the worker was to return to work within five days in accordance with the CBA. Although the STD claim was formally denied June 11, 2008 the worker remained off and did not provide the medical documentation as required for the CBA. As of June 23, 2008, the AE terminated the worker's employment on the basis the worker had violated the CBA. File documentation did not reflect the absence of

4 Page: 3 Decision No. 2011/14 modified work prior to the worker's employment termination, nor did the worker provide evidence to support unavailability of modified work. Through the worker's grievance regarding his employment situation, the worker voluntarily opted for a special attrition buyout program/settlement. This did/does not reflect a recurrence/deterioration of injury or AEs inability to have provided modified work regardless of a plant closure, rather it endorsed the worker's choice to end the employment relationship. It was noted the worker s identified employment issues earlier in file documentation. The employment concerns adversely affected the worker's disposition towards work. Despite the employment issues the worker had not pursued them through the union/grievance or other methods. It appears the buyout/settlement presented a positive solution to the worker's employment issues but did not demonstrate a basis for post-may 2008 entitlement to LT benefits. Following worker s employment termination and buyout/settlement, medical reporting showed emerging non-work ailments adversely influenced the worker's overall health status and ability to work. (ii) Issues on appeal [12] The issues to be determined in this case are whether the worker suffered a recurrence of his compensable injuries on May 26, 2008 and whether he is entitled to ongoing temporary total disability benefits thereafter. (iii) The worker's testimony [13] In his testimony the worker confirmed that he started with the accident employer in about 1988 and up until the time of the onset of his arm condition in 1994, he worked at a repetitive job which involved installing doors on vehicles at a rate of 65 and hour or 450 a shift. He testified that the work was significantly repetitive and taxing such that workers alternated between this job and installing windshield wipers every 30 minutes. [14] In approximately 1994, the worker experienced a gradual onset of pain in his right arm which he related to the repetitive nature of his duties. He described experiencing pain which radiated from his fingers on the right hand up to his shoulder and into his neck. With the pain he was experiencing in his right side, he began to use his left arm more and this led to him developing similar symptoms on the left side. [15] The worker continued with the accident employer after the onset of his bilateral arm condition. He testified that because of his relatively low seniority, it was difficult for him to be provided with more than a day or two of modified work at a time. He found that he was frequently placed on duties which violated his restrictions but he did not argue and did the best he could out of a fear of being reprimanded if he couldn t keep up to the production requirements. [16] The worker testified that prior to the onset of his injuries, he had an awesome relationship with management. That relationship deteriorated however, during the last 10 years of his time with the employer. During that time, he found the workplace very stressful as he was frequently arguing with the employer about modified duties and was struggling to do his job. [17] According to the worker, in late 2007/early 2008, he was placed on a modified job which required him to install television sets in vehicles for rear seat viewing. It took about seven minutes to attach each unit to the ceiling of the vehicle and he might perform this activity anywhere between 90 and 150 times a shift. The task involved working with your head up and

5 Page: 4 Decision No. 2011/14 inserting four screws to hold the unit into place. The worker testified that this work made his arms feel sore. [18] The worker testified that he laid off on approximately May 26, 2008, because he could not do the work any longer due to his arm pain. He was taking Tylenol No. 3 for pain at the time. The worker confirmed that when he laid off, he applied for sickness and accident benefits from the employer's insurer. He acknowledged that in addition to his bilateral arm pain, he was experiencing symptoms of depression and back pain. He was also suffering with an abdominal aneurysm. [19] The worker confirmed that after his employment was terminated, he filed a grievance through his union. Since the truck plant where he had been employed was going to close, they had discussed him returning to other modified duties in the car plant. The worker testified he was advised by the union that he would be under even more scrutiny from management were he to transfer to the car plant and as such, he decided to take the buyout package and terminate his employment. The worker also indicated that because of his abdominal aneurysm, he had been instructed to keep his blood pressure as low as possible and therefore elected not to continue the dispute with the employer. [20] The worker has not been employed since leaving the accident employer. (iv) Analysis [21] Pursuant to section 126 of the Workplace Safety and Insurance Act, 1997 (the WSIA ), the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies in this case is Operational Policy Manual ( OPM ) Document No entitled Recurrences. This policy provides in part: Policy A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity. If a significant new work-related accident occurs, the WSIB establishes a new claim. Guidelines Recognizing a recurrence Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker's current clinical condition to that following the initial accident. The decision-maker considers whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition). Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence.

6 Page: 5 Decision No. 2011/14 Continuity To establish continuity (i.e. a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g. has the worker become unable to participate in household duties, or social or recreational activities?). In complex cases, the decision-maker may consult with WSIB medical sta1ff before making a decision. [22] At the outset, it is worth acknowledging that there is no dispute that at the time of the events under consideration here, the worker was experiencing pain and discomfort in his arms. The Board has acknowledged that the worker has a permanent impairment for bilateral flexor tendonitis and he has been granted a 15% NEL award in respect of that permanent impairment. That being said however, the worker now claims to have suffered a recurrence or a deterioration of his compensable injuries on about May 26, 2008, and he claims entitlement to temporary total disability benefits thereafter on the grounds that this compensable injuries contributed significantly to his decision to leave the employer. Having considered all the evidence before me however, I find that the worker s claim fails to establish, on a balance of probabilities, that the worker suffered a recurrence on May 26, 2008 or that his compensable injuries contributed significantly to his wage loss thereafter. In reaching that conclusion, I have taken particular note of the following: In his testimony the worker acknowledged that for about seven months prior to his layoff in May 2008, he had been performing the modified duties which he claimed led to his decision to layoff. I was not referred to evidence of any significance suggesting that the worker had ever advised his union or the employer about concerns he had with the suitability of this particular job. As noted above, the Board policy, which the Tribunal is required to apply, indicates that in order to identify a recurrence, there must be clinical compatibility between the original injury and the current condition or at least a combination of clinical compatibility and continuity. The first medical report following the worker's layoff was the May 26, 2008, report completed by Dr. S. Citron for the employer's sickness and accident benefits insurer. In that report, Dr. Citron describes the worker's complaints as depression. The primary diagnosis is described as chronic depression. The secondary diagnosis is multiple body and joint pain. Dr. Citron does not make reference to the worker's bilateral arm condition. The worker has no entitlement for depression under this claim. Dr. Citron s comments about multiple body and joint pain are consistent with a subsequent report dated March 22, 2011, from Dr. J. Mayer (neurosurgeon) who indicated that the worker does have a chronic pain syndrome and symptoms indicative of degenerative cervical disc disease. The worker has no entitlement

7 Page: 6 Decision No. 2011/14 for his neck or chronic pain disability under this claim. He has a 15% organic NEL award for a bilateral arm condition. In the form which the worker attached to his sickness and accident benefits application, he was asked do you claim that this disability was caused by your work for [the employer] or any other employer? The worker responded yes, constant harassment since first filed for RSI I interpret the sickness and accident documentation to suggest that it was the worker's poor relationship with his employer and the feelings of depression which resulted from that relationship which were the factors that contributed significantly to his decision to accept a buyout package. About 2.5 months later, on August 6, 2008, Dr. Citron completed a Physician s First Report (Form 8) in which he provided a diagnosis of depression [with] repetitive strain injuries right arm. Dr. Citron described the patient s history of injury as recurrence of old injury see claim no. above. Pain both elbows & depression. Dr. Citron does not provide any explanation for the 2.5 month delay in suggesting that the worker's layoff in May 2008 had been caused by a recurrence of his compensable injuries. I prefer to place greater evidentiary weight on the medical documentation created at the time the events occurred and I therefore place limited weight on Dr. Citron s August 2008 report.. In his Worker s Continuity Report of August 7, 2008, the worker was asked do you feel your present problems are the result of your original work injury?. The worker replied yes, chronic pain, repeated use of both arms, constant harassment from management, refusal of notes. I interpret this reporting to suggest that the significant factors leading to the worker's decision to layoff were noncompensable i.e. his deteriorating relationship with the employer and his chronic pain. In his testimony the worker acknowledged that there were non-compensable factors which contributed to his decision to leave the employer. These included depression, back pain and an abdominal aneurysm. I was not referred to medical evidence of any significance providing an explanation as to how the duties the worker was performing contributed to his layoff in May [23] Given the state of the evidence currently before me, I am unable to conclude that the worker suffered a recurrence of his compensable injuries on about May 26, I find no clinical compatibility between the organic bilateral arm condition and the 2008 neck or pain disability. While I do not dispute that the worker continues to experience bilateral arm pain, for the reasons noted above, I find, on a balance of probabilities, that the factors which made a significant contribution to his decision to leave the employer were non-compensable i.e. his deteriorating relationship with management, his depression and widespread/chronic pain including non-compensable neck pain, back pain and his abdominal aneurysm. While it is possible that his compensable arm pain contributed to his decision to leave the employer, I find that the effect of the non-compensable conditions was so significant that it rendered insignificant, any contribution by the compensable injuries.

8 Page: 7 Decision No. 2011/14 [24] I also find, on a balance of probabilities, that any loss of earnings which the worker experienced after May 26, 2008, was based on his decision to terminate the employment relationship rather than on his compensable injuries. There is no evidence of significance before me to suggest that the employer would not have been able to continue offering modified duties after May 26, They had been providing modified work since the onset of the worker's problems in In fact, in his testimony, the worker acknowledged that there were discussions about the worker being transferred to other work in the car plant given that the truck plant in which he had worked was closing. Rather than attempt the modified work, the worker decided to terminate his employment because of a fear he would be under increased scrutiny were he to accept this transfer. [25] Similarly, I was not referred to evidence of any significance which commented upon the level of the worker's disability after Following the Physician s First Report of August 6, 2008, the next medical reporting on file is a March 22, 2011 report from Dr. Mayer which confirms the worker had surgery for an abdominal aneurysm, had a heart attack and an angioplasty on March 10, He was diagnosed as suffering chronic pain syndrome and symptoms indicative of degenerative cervical disc disease. The worker has no entitlement under this claim for these conditions. This reporting suggests that if the worker was unable to work after he left the employer in May 2008, it was, more likely than not, due to noncompensable conditions. [26] In summary, after considering all of the evidence before me, I find, on a balance of probabilities, that the worker did not sustain a recurrence of his compensable injuries on May 26, 2008 and he is not entitled to temporary total disability benefits thereafter.

9 Page: 8 Decision No. 2011/14 DISPOSITION [27] The worker's appeal is denied. DATED: February 26, 2015 SIGNED: R. Nairn