NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim No.(s): [X] Oral Hearing, May 20, 2009, Digby [X] Date of Decision: July 16, 2009 Decision: The appeal of the October 23, 2008 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner David Pearson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker injured his low back in a lifting injury on November 15, He stopped working and filed a claim for compensation. The Board accepted that his injury was workrelated and provided compensation. The Board determined that the Worker had a five percent permanent medical impairment ( PMI ) as a result of the injury. The Worker was unable to return to his pre-accident job as a truck driver as a result of his injury. The Worker returned to work as a pizza delivery driver, but discontinued. The Board decided that the Worker had the capacity to work as a pizza delivery driver/food preparer and deemed him with earnings from this occupation based on his being able to work five hours per day. The Board decided that the Worker continued to experience a loss of earnings from his injury, and paid the Worker a partial extended earningsreplacement benefit ( EERB ), after subtracting the deemed earnings in the alternate occupation. The Worker subsequently returned to work at a fish plant, where he operated a fork lift. In September 2005, the Worker had to stop work due to an increase in symptoms. The Board accepted that these symptoms were compensable and topped up the Worker s partial EERB with a temporary earnings-loss supplement. It paid this supplement until May 22, 2007, the date on which the Board reassessed the Worker s PMI rating. As a result of the PMI reassessment, the Worker s PMI rating was increased from five percent to ten percent, based on the presence of documented radiculopathy. In 2008, the Worker s EERB was reviewed, but maintained at the same level. The occupation of pizza delivery driver and food preparer was found to still be a suitable and reasonably available occupation. The Worker appealed this decision to a Hearing Officer, but his appeal was denied in the October decision. The Worker appealed this decision to the Tribunal. The Tribunal appeal proceeded by oral hearing in Digby on May 20, The Worker and his spouse, S.S. testified at the hearing. The Worker s Adviser provided oral submissions. The Worker was the only statutory participant in attendance at the hearing. In advance of the hearing, the Worker s Adviser provided Dr. Mahar s September 8, 2008 medical-legal report, as well as the May 1, 2009 report of VickiLynn DeBruin, Employment Counselor. Following the hearing, the Worker s Adviser provided some enclosures that were absent from Ms. LeBruin s report. In addition, the Worker s Adviser requested an opportunity to make post-hearing submissions on the extent of my jurisdiction in the This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 appeal. I granted that request. On June 9, 2009, I received submissions on this point from the Worker s Adviser. I forwarded these submissions to the Board for comment, given the matter of my jurisdiction was in issue. The Board responded with submissions on June 16, ISSUE AND OUTCOME: Was the Worker s EERB properly determined at the time of the 36-month review? No. Employment as a pizza delivery driver/food preparer is not suitable or reasonably available employment to the Worker in his home area. Thus, his EERB requires recalculation. ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended (the Act ) applies to this appeal. Section 187 of the Act requires me to give the Worker the benefit of the doubt, which means that if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. The Worker asks that I overturn the present calculation of his EERB, as it is considers post-accident earnings from employment that he says is not suitable or reasonably available to him. An EERB is payable to a worker who experiences a loss of earnings as a consequence of a permanent impairment resulting from a compensable injury. Generally, an EERB is calculated on the basis of the loss of earnings remaining after a worker s post-accident earnings are compared against their pre-accident earnings. In some cases, the Board considers a worker s ability to earn an income in the EERB, even though the worker may not actually be employed in the occupation identified by the Board. This is authorized by the Act, provided the occupation identified meets two important criteria. It must be suitable and reasonably available to the worker. If the occupation does not meet one or both of these criteria, then the deeming of earnings is not authorized, and re-calculation of the EERB is necessary. In the present case, the Worker s Adviser has argued that the occupation of pizza delivery driver/food preparer meets neither of these criteria, and that the Worker s EERB should be re-calculated as a result.

4 4 The Worker was employed as a pizza delivery driver for six months in He received no income from this, as the Board maintained his compensation benefits for the duration of the employment. There is evidence that the owner of the pizza delivery business may not have had the Worker s best interests at heart when he hired him. The Worker s wife ended up caring for the owner s children each day, with no reward. In addition, the Worker was responsible for being available from 10 am daily until the wee hours of the morning seven days a week. The Worker would turn the ovens on at 10 am, to be ready for the 11 am opening. He would then stay at home (three doors away), and remain on call the whole day and night until such time as there was a delivery request. When he got a call, he went to the pizza business, picked up the pizza, delivered it in the owner s van, returned with the payment, and then returned home. The Worker did no food preparation, and says that he could not have done so if asked. He cannot hold a knife in his right hand to cut things because of a non-compensable hand condition. Once the six month period of sponsored work finished, the owner of the pizza business said that he did not know how he would pay the Worker. The Worker reported what had happened to the Board, and he was advised to stop working at the pizza business. The Worker s EERB had been determined on the basis of the Worker s deemed earnings as a delivery driver/food preparer. After the pizza delivery job ended, the Worker was able to find some employment within his capacities at a local fish plant, where he knew the owner. He drove forklift mostly, and was able to take time off as necessary when his back flared up, with that employer s blessing. The Worker re-injured his back in this role. His PMI rating increased from five percent to ten percent as a result of this injury. The ten percent rating recognized the objective evidence of radiculopathy resulting from the Worker s back injury. Ultimately, because of this second injury, the Worker could not return to this work. At the time of the 36 month review, the Board said that the Worker could still work as a pizza delivery driver/food preparer, and maintained his EERB at its previous rate. The Worker s Adviser provided additional medical evidence that bears on the Worker s employability. Dr. Mahar, physical medicine specialist, provided a September 8, 2008 medical-legal report. He reviewed the medical records, examined the Worker, and offered his opinion that the ten percent PMI rating was appropriate, but said the Worker could not perform food preparation because of his right hand deficit. He also said the Worker s functional

5 5 capacity was more in the sedentary range than the light level found at the time of the functional capacity evaluation in March He based this primarily on the fact of the Worker s inability to cope with the standing requirements of a light level occupation. Besides the standing requirement, Dr. Mahar indicated that the Worker did have some functional abilities, that they extended to the light work levels, but that he would not be able to perform the repetitive activities involved in food preparation. Dr. Mahar thought the Worker was physically capable of performing full-time work delivering pizza, but that the availability of sedentary unskilled and semi-skilled work in the Worker s area was limited. Ms. LeBruin s May 1, 2009 report addresses the availability of work in the Worker s area, and his ability to perform that type of work. Ms. LeBruin s opinion echoes that of Dr. Mahar. She says that the Worker does not have the capacity to do food preparation, mostly because of his right hand deficit. She says that he could work as a pizza delivery driver, but for the fact that this employment is not reasonably available in the Worker s area. Ms. LeBruin noted the labour market information as it pertained to the occupation of a food preparer and service counter attendants. She noted the physical demands required a combination of standing, walking, and lifting loads up to ten kg. Given Dr. Mahar s opinion that the Worker s abilities were in the sedentary range, Ms. LeBruin said the Worker s back problems alone would preclude this type of work. He would be unable to do the lifting, bending, turning required of this work, while maintaining the fast pace expected of this type of work. She said the physical abilities of a food preparer or counter attendant far exceeded the Worker s abilities. As for the pizza delivery job, Ms. LeBruin noted that the labour market information described the duties of a delivery driver generally, and that the pizza delivery driver was only one of the types of that occupation. Some of the types of jobs under delivery driver would be unsuitable, as they involved significant lifting requirements. With respect to the pizza delivery driver job, Ms. LeBruin said the Worker was capable, provided he had the discretion to not drive on bumpy roads that would exacerbate his back condition. Ms. LeBruin looked at the availability of jobs as a pizza delivery driver, however, and said that there were only two in the immediate area, and four within the Worker s home area. She noted that some of these were chain restaurants, where the expectation was that the incumbent would be part of a team, doing many different tasks, such as food preparation, cleaning, cutting vegetables, making pizzas, carrying out garbage, etc. Ms. LeBruin said she spoke with managers of several of these operations, and that all were unanimous in that no one individual is hired to simply deliver pizzas. The employee must be capable of doing all kitchen counter duties Of the two in the immediate area, Ms. LeBruin could not obtain specific information, but when she looked at job openings, there was only one

6 6 opportunity in the Digby area, as a food counter attendant. Ms. LeBruin stated that the Worker had some relevant transferable skills, as he has stocked shelves and taken inventory, but that he had no experience in the food services industry. She concluded from her interview of the Worker, and a review of his injury, his congenital right hand deficit, and his skill set, that the Worker s chance of finding work as a pizza delivery driver or as a food preparer are non-existent. I agree with the opinions of Dr. Mahar and Ms. LeBruin. With respect to the pizza delivery driver occupation, I accept Ms. LeBruin s evidence that the availability of this type of work in the Worker s home area is compromised, and further, that most opportunities also require food preparation, and multiple other tasks rather than simply being a pizza delivery function alone. The Worker s back injury, his right hand deficit, and his lack of experience in this field would be a significant barrier to him finding work in this field. While the evidence supports that the Worker could handle the duties of pizza delivery, he is incapable of the other duties that come along with that occupation. The Worker s EERB is based on deemed earnings from employment as a pizza delivery driver and food preparer. This is not suitable or reasonably available work to the Worker. As a result, his EERB requires re-calculation. I leave to the Board whether the Worker should receive a full EERB without estimation of earnings, or whether there is other suitable and reasonably available employment in his home area. The Worker s Adviser asked that in the event I found the job unsuitable, I extend that finding to the original EERB decision, rather than limit it to the 36-month review decision. The Worker s Adviser said that I had jurisdiction to affect the original EERB with my determination, made on an appeal at the 36-month review stage. She cited a Tribunal decision [Decision /771-AD (May 28, 2009, NSWCAT)] as support for that jurisdiction. The Board said that if the Tribunal finds the deemed occupation unsuitable, then it should be returned to the Board for a determination of what would constitute appropriate employment. With due respect, I do not think the Tribunal decision cited stands for the proposition put forward by the Worker s Adviser. In Decision /771-AD, that worker s EERB was being reviewed at the 36-month point. That worker s original EERB took into account deemed earnings in a particular occupation. At the 36-month review, the Hearing Officer said the question of whether said employment was suitable and reasonably available was moot, as it had already been decided at the time of the original EERB. At the Tribunal level, the Appeal Commissioner disagreed, and citing an earlier Tribunal decision, said it

7 7 was inappropriate to limit the scope of the 36-month review. The Appeal Commissioner found that there was authority to revisit whether the deemed occupation was suitable and reasonably available. In my view, the Appeal Commissioner was not intending to revisit the original EERB, and its consideration of deemed earnings. Rather, the Tribunal was merely saying that at the time of the 36-month review, the scope is not limited, and one is entitled to have the question addressed as to whether such employment is still suitable and reasonably available. I do not take Decision /771-AD to authorize the Tribunal to revisit the original EERB basis at the time of the 36-month review. My finding in the present case affects the Worker s EERB at the time of the 36-month review. It does not disturb the initial EERB, or the basis on which it was decided. CONCLUSION: The Worker s appeal is allowed. Employment as a pizza delivery driver/food preparer is not suitable or reasonably available employment. The Board will re-determine the Worker s EERB. TH DATED AT HALIFAX, NOVA SCOTIA, THIS 16 DAY OF JULY, David Pearson Appeal Commissioner