WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2003 ONWSIAT 634 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 425/03 [1] This appeal was held in London on February 19, 2003 before Vice-Chair, T. Carroll. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Mrs. S. Marangoni, Appeals Resolution Officer (ARO) at the Workplace Safety and Insurance Board, (the Board), dated October 1, [3] The ARO denied the worker full loss of earnings (LOE) benefits from July 7, 1999 to October 25, [4] The worker attended the hearing and gave evidence. He was represented by Mr. Wally Polischuk of the CUPW - Ontario Region. [5] The employer was represented by Mr. Chris Ramsay, barrister and solicitor. THE RECORD [6] The Vice-Chair had before him the Case Record that was marked as Exhibit #1. Addendum No.1 to the Case Record was marked as Exhibit #2. Addendum No. 2 to the Case Record was marked as Exhibit #3. A hearing ready letter from the Tribunal, dated October 18, 2002, was marked as Exhibit #4. Exhibit #5 was Addendum No.3 to the Case Record. THE VICE-CHAIR S REASONING (i) Preliminary Issues [7] Exhibit #2 contained a letter from the Board that confirmed that the following policy packages, revision #5, applied to the subject matter of this appeal: Policy Packages: 183; 300 Package #183 - Early and Safe Return to Work and LOE Benefits Package #300 - Decision Making/Benefit of Doubt/ Merits and Justice (ii) Background - Finding of Fact [8] The Vice-Chair, after reading the Case Record materials and after hearing the testimony of the worker, found the following as fact: [9] The worker was 50 years old at the time of the hearing and had worked as a letter carrier with the employer for 26 years.

2 Page: 2 Decision No. 425/03 [10] On January 22, 1999 the worker suffered a compensable left knee injury. The worker laid off work on February 3, 1999 and returned to work (four hours modified work per day) on May 11, The worker had a left knee recurrence on May 11, [11] The worker was off work from May 11, 1999 to May 25, [12] The worker then returned to modified work four hours per day. The worker s modified job duties required him to work two hours per day sorting mail and two hours per day delivering mail. [13] In sorting the mail the worker was required to obtain the mail (regular size letters) and bring them to a four foot high table. The worker would then reach and place the letter in a cabinet that contained mail slots marked with various geographical locations. The worker would periodically be required to lift a mail container containing irregular mail from the floor to the table. The mail container would weigh from 20 to 35 pounds. [14] In carrying the mail the worker would be required to walk and deliver mail to residential homes. The worker would be required to carry a 25 to 35 pound mail pouch over his shoulder when delivering the mail. [15] The worker s left knee restrictions were walking and standing for no more than two hours, sitting for four hours and limited step and stair climbing. [16] On June 18, 1999 the worker reported that he injured his left shoulder while lifting the mail container. The worker continued to work until July 6, 1999 when he went off work. The initial medical diagnosis was a strain of the left shoulder and left rhomboid muscle. [17] The worker was referred to the Canadian Back Institute (CBI) for physiotherapy treatments on July 7, On July 9, 1999 the physiotherapist stated that the worker had mechanical cervical spine pain radiating into his shoulder and upper arm. [18] An x-ray of July 8, 1999 showed degenerative cervical spondylolysis at the C5 and C6 levels. [19] The worker attended the physiotherapist on a regular basis from July 7, However, there was no aggressive therapy performed on the worker s neck, left shoulder or arm due to the worker s reports of pain. The worker received only mild manipulation and counselling from his physiotherapist until a CT scan was completed in September [20] In July 1999 the worker s family physician, Dr. D. Offer, advised the worker that he should not return to work until the CT scan was performed. [21] The worker saw Dr. G. Koponen, a neurologist, in August The doctor s diagnosis was a muscle strain of the shoulder and neck. There was a mild C7/8 radiculopathy with no acute denervation in any root distribution. Dr. Koponen suspected most of the worker s problems were due to a soft tissue injury. Dr. Koponen wanted to see the x-ray and CT scan.

3 Page: 3 Decision No. 425/03 She recommended that the worker continue with his physiotherapy but made no comment in regard to the worker s ability to return to work. [22] A CT scan of September 2, 1999 demonstrated a moderate sized osteophyte posterior to the left of the midlines at the C6-7 level that was narrowing the left C6-7 neuroformina. The radiologist recommended a follow up MRI scan to better evaluate the worker s C6-7 spine level. [23] The worker, after the CT scan, began to see his physiotherapist twice a week for treatment consisting of light exercises, stretching, massage and ultra sound. [24] The worker continued to see Dr. Offer twice a week and Dr. Offer advised that the worker not return to any type of work until he had received the results of the MRI. Dr. Offer was aware of the nature of the modified duties that the worker was performing prior to his shoulder accident. [25] In a report of September 23, 1999 Dr. Offer stated that the worker was not to perform any work pending the results of the MRI and a subsequent neurological consultation. Dr. Offer prescribed Celebrex and Flexeril and recommended that the worker continue his physiotherapy. [26] On October 12, 1999 Dr. D Souza, Medical Advisor at the Board, stated that the worker had a cervical disc bulge and standard back restrictions applied. [27] The MRI was performed on October 15, 1999 and showed a small focal left postereolateral disc protrusion at the C5-6 level which might be impinging on the existing left C6 nerve root. There was also a left postereolateral C6-7 uncovertebral osteophyte causing significant stenosis at the left C6-7 neuroforamen. [28] On October 18, 1999 the worker conferred with Dr. Koponen. Surgery was discussed but the worker preferred to continue with physiotherapy and medication with a gradual return to work. [29] Dr. Offer then directed the worker to return to work on modified hours (four hour per day) effective October 25, Dr. Offer noted that the worker had a chronic shoulder problem and lifting was restricted to 25 pounds. The worker did return to modified work on October 25 and to full time duties in December [30] Dr. Offer, in medical reports to the Board in January and February 2000, stated that he had ordered the worker off work from July to October due to the worker s complaints and to await the results of the CT scan and the later MRI. Dr. Offer stated that the worker was directed not to work to avoid further or permanent nerve damage. [31] The worker, during the period from July to October 1999, provided the employer with three Occupational Fitness Assessment (OFA) forms signed by Dr. Offer. The forms were provided on July 19, 1999, August 17, 1999 and October 21, The worker also contacted his supervisor by telephone on a regular basis to advise him of his medical condition.

4 Page: 4 Decision No. 425/03 [32] The employer did not make any job offer to the worker (modified or otherwise) from July 7, 1999 to October 25, THE VICE-CHAIR S CONCLUSIONS [33] The ARO did not extend the worker full LOE benefits from July to October 1999 as she concluded that the worker was not totally disabled during this time period and there did not appear that there was evidence to suggest that suitable modified work would not have been made available to him within his restrictions. [34] The Board s Operational Policy Manual (OPM) Document # speaks to Early and Safe Return to Work (ESRTW) and states, in part: Employers and workers are obliged under the Act to co-operate in the worker s early and safe return to suitable and available employment. Workers and employers (the workplace parties) and if possible, health care practitioners, are responsible for resolving return to work issues in the workplace. The workplace parties must co-operate and be self-reliant in achieving an early and safe return to work (ESRTW)... Current information about the worker s functional abilities is critical to the return to work process. One source of this information is the health care professional treating the worker who provides functional abilities information to the workplace parties upon request. The WSIB pays for this functional abilities information if the health professional uses the WSIB functional abilities form. If the workplace parties do not co-operate in the ESRTW process, the WSIB may levy a penalty and/or suspend benefits. [35] The Board s OPM, Document # defines employer and worker co-operation as follows: Employer Co-operation The Act sets out minimum requirements for employers of injured workers regarding cooperation in the ESRTW process. Employers are required to contact the worker as soon as possible after the injury occurs and maintain communication throughout the period of the worker s recovery or impairment, attempt to provide suitable employment that is available, consistent with the worker s functional abilities, and when possible restores the worker s pre-injury earnings, and give the WSIB any information requested concerning the worker s return to work. Worker Co-operation The Act sets out minimum requirements for workers regarding co-operation in the ESRTW process. Workers are required to contact the accident employer as soon as possible after the injury occurs and maintain communication throughout the period of recovery or impairment,

5 Page: 5 Decision No. 425/03 assist the employer as required or requested to identify suitable work that is available, consistent with the worker s functional abilities and when possible restores the worker s pre-injury earnings, and give the WSIB any information requested concerning the return to work. [36] The Vice-Chair, after considering the earlier findings of fact and the Board s relevant policy, came to a number of conclusions as outlined below. [37] The worker, for the time period from July to October 1999, was not totally disabled but he had significant medical restrictions in regard to his left shoulder and neck as well as his left knee. [38] The modified work that the worker was performing in July 1999 was not suitable for the worker based on his neck and left shoulder difficulties. The reaching and lifting (of the container) and the carrying of a mail pouch, while delivering mail, would put this job outside the worker s upper back restrictions. [39] The worker was not uncooperative with the employer or the Board during the relevant time period. The worker maintained continuous contact with the employer and Board and provided medical information as required. [40] In regard to the requirement that the worker assist the employer in identifying suitable work, special circumstances applied to this case. The worker did not request modified work from the employer. However, it was not unreasonable for the worker to be reluctant to attempt modified work as the worker s family physician was adamant that the worker not attempt any work based on the worker s pain complaints initially and the subsequent findings of the diagnostic testing (x-ray - July 8, 1991, CT scan - September 2, 1999 and MRI October 15, 1999). The diagnostic tests (that were gradually more sophisticated) confirmed that the worker might possibly have serious and permanent disabilities at the C5-6 and C6-7 levels. [41] It was reasonable for the worker to adhere to Dr. Offer s advice that he should avoid modified work for safety purposes. This was credible advice based on subjective symptoms, clinical examination and the results of the diagnostic testing. [42] Further, the worker was not advised by another physician or a Board representative (prior to October 25, 1999) that he was capable of returning to modified work. [43] The Vice-Chair, based on this fact situation, concluded that the worker was not being uncooperative in failing to present himself to the employer for modified work. [44] In these circumstances, if the employer wanted to challenge the worker s position, the employer would be required to offer work that was, in its opinion, suitable and available. The worker, after his June 1999 injury, had restrictions in regard to his neck and left knee. The previous modified work was no longer suitable for him. There was no reason to presume, as did the ARO at the Board, that the worker was aware of other modified work that was available to him. The workplace (and the availability of jobs) was controlled by the employer. The worker could not assist the employer in identifying suitable jobs unless a specific job/jobs (modified or not) were first identified by the employer and presented to him.

6 Page: 6 Decision No. 425/03 [45] If a job (or potential job) had been identified by the employer this would have allowed the worker to consult with his family doctor (or specialist) in regard to the suitability of the work duties and then decide whether to attempt the job. This is the usual method of identifying a suitable job as set out in Board policy # In the unique circumstances of this case, co-operation as defined by Board policy, required the employer to offer a specific job to the worker. The failure of the employer to offer a job prevented the worker taking further steps in the ESRTW process. [46] Therefore, the Vice-Chair concluded that the worker was not uncooperative with the Board or the employer during the time period from July to October The worker, during this time period, pursued medical treatment that improved his physical disabilities and allowed him to return to full time employment. [47] The Vice-Chair ultimately concluded that the worker was entitled to full LOE benefits from July 7, 1999 to October 25, THE DECISION [48] The worker s appeal is allowed. DATED: March 18, 2003 SIGNED: T. Carroll