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 Representative: [X] Form of Appeal: Oral hearing, held at Halifax, NS, August 18, 2010 WCB Claim No.: [X] Date of Decision: August 26, 2010 Decision: The appeal of the December 15, 2009 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Alison Hickey.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal of a decision of a Hearing Officer of the Board dated December 15, 2009, in which the Hearing Officer determined that full-time employment as a Customer Service Clerk [CSC] was both suitable and reasonably available employment for the Worker. The Worker appealed this decision to the Workers Compensation Appeals Tribunal on December 31, This appeal proceeded by way of oral hearing at which the Worker testified. Also testifying at the hearing were N. P. and the Worker s family doctor, Dr. Fox. Exhibit 1" at the hearing was Dr. Fox s curriculum vitae. Prior to the hearing, the Workers Adviser filed a diagnostic imaging report dated November 4, 2009, a report from Dr. Shatshat dated January 14, 2010, a report from Nova Spinal Care Inc., a report from Dr. Rosenburg dated January 20, 2010, reports from Dr. Shatshat dated March 8, 2010 and April 23, 2010, two outpatient consult reports, and a report from psychologist, Mark Russell dated May 14, ISSUE AND OUTCOME: Is work as a CSC suitable and reasonably available employment for the Worker? Work as a CSC is suitable and reasonably available for the Worker on a part time basis of four hours per day. ANALYSIS: The legislation applicable to this appeal is the Workers Compensation Act, S.N.S , c.10, as amended [the Act ]. Section 187 of the Act requires me to give the worker the benefit of the doubt, which means if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. On April 16, 2007, the Worker sustained an injury to his back and neck, while lifting luggage. The Worker had several courses of physiotherapy as well as other modalities of treatment but has continued to suffer from pain in the lumbar and mid-thoracic spine. The Worker has been found by the Board to have compensable chronic pain and entitlement to a 6% Pain-related impairment. Work as a CSC on a full time basis at eight hours a day has been found by the Board to be suitable and reasonably available employment for the Worker. It is the Worker s This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 position that he is unable to be gainfully employed in any capacity as a result of his compensable injury and he seeks a full Extended Earnings Replacement Benefit [EERB]. Board Policies and define what suitable and reasonably available employment is when considering a worker s loss of earnings, as defined by s. 38 of the Act. Policy states as follows: 1. Suitable employment is any employment which the worker has the necessary skills to perform, is medically able to perform, and which does not pose a health or safety hazard to the worker or any co-worker. Policy states as follows: 1. Employment will be said to be reasonably available if there are currently employment opportunities within the worker's home area and the worker has a reasonable chance of securing employment. The Worker was initially diagnosed by Dr. Fox, as indicated in his report of April 25, 2007, with an acute lumbar strain and mid-back strain. He stated that the Worker was to continue with physiotherapy and medication, which included analgesics and muscle relaxants. Dr. Fox s report of May 23, 2007 indicated the Worker had started a Tier 2 physiotherapy program but his condition had worsened since that time. It was Dr. Fox s testimony at the hearing, that the Tier 2 and then the Tier 3A programs of physiotherapy were not the best approach to the Worker s problem. He did not respond to gradually increasing levels of physiotherapy. The Worker was seen by Dr. Oxner, Orthopaedic and Spinal Surgeon, who provided a report on the Worker s condition dated November 15, Dr. Oxner noted that the Worker continued to have back pain despite physiotherapy. The Worker was reporting that the worst part of his pain was in the mid-thoracic region and low back but there was no significant sciatic pain, nor was the pain affecting his legs in a major way. The Worker s x-rays of the thoracic lumbar spine were relatively normal. Dr. Oxner stated that the Worker would have difficulty with heavy lifting and twisting in the short-term, but was hopeful that through a conditioning program he could get back to driving a truck or the shuttle bus of his pre-accident employer. The Worker commenced a Tier 3A program in December of In a Tier 3A biweekly progress report dated December 18, 2007, from the Worker s physiotherapist, Mark Williams, and Kinesiologist, Jana Nickerson, it was noted that the Worker participated in a functional assessment on December 18, Since his last assessment on November 28, 2007, he had demonstrated a 10 pound improvement in horizontal lifting while maintaining the rest of his demonstrated abilities. According to the December 18, 2007 assessment, the Worker was demonstrating material handling abilities which fell within the medium range as defined by the National Occupational Classification [NOC] system. His

4 4 vocational goal was noted to be a return to truck driving and his progress to date would permit him to achieve that goal. A Tier 3A progress report of January 2, 2008, noted that the Worker s material handling tolerances on a frequent basis improved since his last assessment. He was demonstrating material handling abilities in the medium range. The physiotherapist noted that because sitting typically needed to be performed at a frequent to continuous level for truck driving, strategies to increase the sitting tolerances were to be incorporated into his program. His ability to stand was reported at 20 minutes. His ability to sit was at 30 minutes and to walk at 20 to 25 minutes. A Tier 3A January 15, 2008 report, noted that the Worker demonstrated improvements in his material handling abilities but that he was limited by pain in his middle back and shooting down the posterior aspect of his left leg. His standing time was reported at 20 to 25 minutes, sitting at 35 to 45 minutes and walking at 20 to 25 minutes. Dr. Fox s report dated January 31, 2008, indicated that the Worker s work capabilities were at the medium level. He noted that the last testing on January 21, 2008, showed capacities that did not match the Worker s job demands. He stated at the hearing that the job demands referred to were those of the Worker s pre-accident job. Dr. Fox noted that since beginning the Tier 3A program in early December the Worker had been experiencing more symptoms, and he noted that the Worker had left sided sciatica. He testified that the leg problem was something that was not present immediately after his accident but developed later. He attributed it to referred pain from the Worker s lumbar spine. The Tier 3A Discharge Report from Mr. Williams and Ms. Nickerson is dated January 29, It noted that the Worker s ultimate program goal had been to demonstrate the functional abilities required to return to work as a driver. The report stated that the Worker had functional range of motion in his thoracic spine and C-spine as well as his low back, however, he was reporting ongoing mid-thoracic and posterior left thigh pain as well as low back pain. His material handling abilities fell within the light to medium range. He did not appear to be limited in sitting tolerance for the purposes of finding employment in truck driving. The Worker s functional capabilities as indicated in his January 29, 2008 physical abilities report were noted to be a more true representation of his abilities than his January 15, 2008 assessment. It was the conclusion of the Tier 3A team that the Worker demonstrated the functional abilities to return to truck driving, and that a job that provided brief periods of standing, walking and stretching throughout the shift would be most suitable for the Worker. His standing tolerance was reported at 20 minutes, his sitting at 30 to 40 minutes and his walking at 15 to 20 minutes. The Worker was assessed by Tom Stanley, Physiotherapist, on September 19, In

5 5 his report, Mr. Stanley stated that the best match for durable and successful work outcomes, considered first the work postures that created the least challenge to an injured individual, and then the individual s physical workload level. He stated that based on the assessment results, the Worker s sitting tolerance was judged at minimal, limited by thoracolumbar pain. His standing tolerance was judged at a level of minimal, limited by thoracolumbar pain and his walking was judged at a level of occasional, short distances, limited by thoracolumbar pain. He stated that the Worker reported an average of 3 to 5 hours per day spent recumbent, and further, reported low tolerance for sitting, standing, and walking. Mr. Stanley stated that those factors combined together would suggest a limited tolerance for work activity. Mr. Stanley noted that a transferrable skills analysis would be appropriate in determining what work would be suitable for the Worker. Such an analysis had been done. According to the career exploration report of Career Essentials, the Worker indicated that work in NOC classification 1453, CSC, would be a good match for his skills and abilities. He did express concern that work as a call centre agent would require him to sit for too long. The Career Essentials report indicated that an information call had been made to confirm that a call centre agent would be able to stand or move around and stretch at their station when working. According to the career exploration report from Career Essentials, the occupation of CSC does not solely involve work as a call centre agent, but encompasses other positions and includes individuals who provide customer services such as providing information, receiving payments and processing requests for services. The main duties listed under the NOC code 1453, are stated as; answering inquiries from customers, taking customer orders, investigating complaints, explaining types and costs of services offered, and processing claim payments and receiving payment for services. The strength level required is noted in the Labour Marker Information on file to be sedentary. When questioned at the hearing as to what he felt he could do, the Worker stated that he could not see how he could do anything given his pain. He did not see how, if he had such difficulty with pain while doing his daily activities at home, he could ever do any kind of job. This position is not supported by either Mr. Williams or Mr. Stanley. Mr. Stanley is not of the view, that the Worker is incapable of any work. His opinion is that the Worker is capable on an intermittent part-time work activities in the sedentary to light level, following the parameters for sitting, standing and walking which he set out in his report. The Worker has been found by Mr. Williams to be capable of a physical workload level of sedentary to light. The opinions of Mr. Williams and Mr. Stanley do not differ significantly regarding what type of job profile would be suitable for the Worker. They both suggest that a job featuring a mix of standing, walking and sitting would be required. Mr. Stanley s concern about the job of CSC, as stated in his report of October 1, 2009, was the sitting required. Mr. Williams determined based on his testing and observations of the Worker

6 6 over an extended period of time that the Worker had the sitting tolerance to be a truck driver of short distances which would involve an opportunity to stand and walk as well as sit. The Hearing Officer noted that positions in the classification of CSC typically involve an ability for the worker to change positions. Career Essentials confirmed this in relation to call centre work. The physical assessments of the Worker s abilities, demonstrate that the Worker is capable of employment with the proper posture variations, on at least, a part time basis. It is clear that in assessing the Worker s abilities, both the Tier 3A program and Mr. Stanley took into consideration the Worker s subjective complaints of pain. Mr. Stanley noted the Worker to have significant pain behaviour. Mr. Stanley noted that the Worker s perception of his low back pain-related disability was crippled. The Tier 3A initial report noted the Worker s unusually high level perception and pattern of somatic complaints and a very high level of functional complaints. Against the backdrop of this knowledge the tests were conducted and a picture of the Worker s abilities was arrived at. I have no reason to discount the results of functional testing in light of the fact that the Worker has been found to have compensable chronic pain. Mr. Stanley indicated that the Worker s psychological health was beyond the scope of the assessment he had done and should be considered in the decision for fitness to return to alternate work. I have considered whether there is sufficient evidence before me to warrant a finding that the Worker is unable to work because of psychological issues and have determined there is not. The Worker s psychological health was a factor in the findings of the Tier 3A team. Its final report was signed by a psychologist as well as the Worker s physiotherapist, and other team health care professionals. The report states that the Worker should be assisted with his anxiety issues for the period during which he will be attempting to find work. The Worker receives this assistance.there is no suggestion from the final Tier 3A report, that these issues will prevent him from returning to the workplace in any capacity. I have considered the opinion of Dr. Rosenburg, psychiatrist. In his report he suggests a reasonable therapeutic program to relieve the circular relationship of the Worker s depression and pain and states that he is reluctant to prognosticate on his future employability until he has demonstrated improvement in a therapeutic program. Dr. Rosenburg, however, does not appear to have been aware of the Worker s participation in the Tier 3A program, or of the findings regarding the Worker s abilities arrived at by the Tier 3A Team and Mr. Stanley, through testing. Still, it is clear that Dr. Rosenburg is of the view that the Worker s psychological condition could impact his ability to work. In addressing the questions before me, I have considered all of the evidence and attempted to assess the Worker s situation fairly and realistically given that evidence. The evidence does not support the conclusion that the Worker cannot work at all, however, I accept that the Worker has some difficulties both physical and psychological which would

7 7 make returning to the workplace on a full time basis, difficult. It was Dr. Fox s testimony, in essence, that while the Worker was not going to do any further physical damage to his back by working, the fact that his pain levels would increase, was enough for him to be considered unable to perform the duties of CSC. His opinion was to a large degree based on the Worker s pain reports, considering of course, all medical information on the Worker s condition including the diagnosis of ankylosing spondylitis. Dr. Fox did agree, however, with the conclusions of Mr. Stanley, which as I noted above, did not preclude a return to the workplace by this Worker. It was the opinion of Dr. Smith of the Pain Clinic, that the Worker was a long way from being economically productive. Dr. Smith s opinion is based to a large degree on the Worker s subjective pain reports. He stated in his June 15, 2010 report that, Any amount of activity he does seems to give him a significant amount of pain. He suggested that retraining might allow him to do work without being too physically active and that would improve his emotional state. Clearly getting the Worker back to some kind of work would be, in Dr. Smith s opinion, beneficial for him. The Worker acknowledged that the Board had provided him with a computer course, however, he was vague as to how long the course had lasted or whether he had completed the course, and further, stated that he hadn t learned anything in the course. He stated that his computer skills were limited to those taught to him by his fiancé and involved an ability to reply to an and go on Facebook. Despite this testimony, I do not accept that the Worker would be unable to operate a computer to the extent required by a CSC. He is not a person of below average intelligence according to the evidence, and while his computer skills may be rudimentary at present I do not accept the proposition that he is mentally incapable of performing such tasks as entering data with minimal on the job training. I have considered the reports of Mr. Williams as well as Drs. Rosenburg and Majaess that suggest that the Worker involve himself in increasing physical activity. He was given exercises to do at home by Dr. Majaess and Mr. Williams. From what I could gather from the Worker s testimony, however, he does not engage in any kind of physical activity as suggested by the health care providers who have treated him. I can appreciate that the Worker continues to experience pain as a result of his injury and the condition of ankylosing spondylitis. I further acknowledge that there is a level of depression at play here, arising from the Worker s circumstances. It is well documented in reports from Mark Russell and Dr. Rosenburg. Having reviewed the evidence as a whole, including all evidence on the Worker s physical abilities, skills, and psychological difficulties I find that while work as a CSC is suitable and reasonable available to him, he would be unable at this point to perform those duties on

8 8 a full time basis. I accept Mr. Stanley s suggestion that part-time work may be more realistic. To that end, I find the Worker capable of work as a CSC on the basis of a four hour day. As the Hearing Officer noted, employment prospects for CSCs in the Worker s home area are good according to Labour Market Information, and I accept the Hearing Officer s finding on that point. The Worker is presentable in appearance and is a relatively young man. He is articulate, of at least average intelligence, and has the necessary skill set to do work as a CSC. I find he has a reasonable chance of securing such employment. The Worker s Adviser argued that the occupation of CSC should be found unsuitable on the basis that the Board failed to identify any particular position within that classification which would be suitable for the Worker. He referred me to Decision AD (July 6, 2009, NSWCAT), wherein the Appeal Commissioner found that employment within the occupation classification of Other Elemental Service was not suitable for the worker. In that case, the specific advertised positions within that classification noted by the Board, involved duties which exceeded the worker s capabilities. The Appeal Commissioner found that this raised the question of whether any position within the classification would be suitable. He determined that greater specificity was required before it could be said that employment within that classification was suitable. I find that Decision AD is distinguishable on the evidence. The worker in that case established to the Appeal Commissioner s satisfaction that employment in that classification was not suitable for her. Here, there is no evidence of jobs within the CSC classification that would not be suitable for the Worker. Having said that, I would imagine that there may be specific jobs in the classification that may exceed the Worker s capabilities. That does not mean that work in that classification is unsuitable for the Worker. Section 38 of the Act states that the loss of earnings of the worker is (in general terms) the difference between the worker s earnings before the earnings loss and the amount the Board determines the worker is earning, or is capable of earning in suitable and reasonably available employment. Suitable employment is defined by the Board in Policy The word used in the Act and in the Policy is employment. The Board need not determine what constitutes a suitable job or position for the Worker. The Board is to assess the employability of the Worker and not determine his capability for a specific job. CONCLUSION: This appeal is denied. The Worker is not entitled to a full EERB. Work as a CSC is reasonably available and suitable for him on a part-time basis of 4 hours per day.

9 9 th DATED AT HALIFAX, NOVA SCOTIA, THIS 26 DAY OF AUGUST, Alison Hickey Appeal Commissioner