WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1608/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1608/10 BEFORE: M.C. Smith : Vice-Chair HEARING: November 24, 2011 at Sudbury Oral DATE OF DECISION: December 9, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2821 DECISION UNDER APPEAL: WSIB ARO decision dated May 4, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Ms. C. Voz, Office of the Worker Adviser Ms. D. Wright, Office of the Employer Adviser 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. 1608/10 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) Mr. R.P. Home, dated May 4, The worker was represented by Ms. Carol Voz, of the Office of the Worker Adviser. The employer was represented by Ms. Darlene Wright, of the Office of the Employer Adviser. Oral evidence was heard from the worker. Submissions were made by Ms. Voz and Ms. Wright. (ii) The Issues Objection to the suitable employment or business (SEB) of Trades Helper and Labourer, National Occupation Classification (NOC) Code 7612 Entitlement to further labour market re-entry (LMR) services (iii) Preliminary issue [2] The parties engaged in discussions before the commencement of the hearing in an attempt to consider the possibility of a resolution. I allowed the parties extra time after the scheduled start of the hearing to hold these discussions. After commencing the hearing, the representatives indicated that they wished to withdraw the issue of entitlement to further LMR services, and that the worker was now seeking entitlement to partial LOE benefits based on fulltime employment at minimum wages. (iv) Background [3] This now 47-year-old heavy equipment operator sustained a cervical injury as a result of performing his regular job. On February 20, 2003 the claim was allowed on a disablement basis, with an accident date of September 23, On April 28, 2004 the worker was granted a 22% Non-Economic Loss (NEL) award for his cervical spine injury. The ARO has provided a summary of the background to this case: [The worker] developed numbness in his arm on or about September 23, He was however able to continue working as a heavy equipment operator/mechanic for a lumber company until December 23, On that date he saw his doctor and was told to go off work. The diagnosis of carpal tunnel syndrome (CTS) was made but neck involvement was also suspected. Following further medical investigation it was concluded [the worker]'s arm numbness with associated neck pain was from a large central herniated disc at the C6-7 level of the cervical spine. [The worker] proceeded to surgery to repair the disc herniation on May 5, 2003 and then had a period of recovery in physiotherapy. The first return to work attempt occurred in November 2003 and consisted of a return to [the worker]'s regular job duties. It is noted that at the time both the claims adjudicator and the nurse case manager (NCM) of the Workplace Safety and. Insurance Board (WSIB) cautioned both the worker and the employer regarding the possible inappropriate return to regular work without restrictions. Somewhat predictably [the worker] had a flare up of his condition in early December 2003 following which the doctor recommended lighter duties. The employer did not have appropriate light duties and [the worker] was placed off work again.

3 Page: 2 Decision No. 1608/10 A one day Functional Capacity Evaluation (FCE) was arranged for January 6, This assessment recorded that [the worker] was more functional than initially thought and likely fit for medium heavy physical type labour. Following a labour market re-entry assessment (LMRA), it was concluded [the worker] already had the capacity and transferable skills to be a construction trade helper or labourer as described under NOC Code 7611 or other trade helpers and labourers described under NOC Code This was selected as the SEB objective. [The worker] enthusiastically completed a Creative Job Search Program and did well at the program. He and his doctor however disputed the findings of the FCE indicating [the worker] experienced a significant flare up of his symptoms after the assessment and therefore they disputed the accuracy of the findings. To address these concerns a four week five hour a day work-hardening program was arranged so as to assess [the worker]'s work capacity over a longer timeframe. The work-hardening did demonstrate a slightly lower level of functioning than the previous FCE but continued to maintain [the worker] was physically capable of the designated SEB. Effective April 26, 2004 [the worker]'s loss of earnings (LOE) benefits were reduced to reflect a post-accident earnings capacity of $11.10 an hour. The worker disputes that he is able to return to work within the designated SEB. Since April 2004 [the worker] has worked intermittently with the accident employer but they have been unable or unwilling to sustain his employment. [4] In a decision dated May 4, 2006 the ARO determined that the SEB objective of NOC 7612 was appropriate for the worker and that he was not entitled to any further LMR services. The ARO noted, however, that the worker lived in a small town where there were fewer job opportunities available, and that he was not interested in relocating to seek employment. The ARO further noted that although the worker had some transferable skills, he did not have any direct experience in the designated SEB. Consequently, the ARO determined that the worker s loss of earnings (LOE) benefits were to be based on the entry-level wage of $8.62 effective April 26, The level of LOE beyond the date of this decision remained subject to periodic review as per Board Operational Policy Manual Document # , Reviewing LOE benefits. [5] In correspondence dated May 24, 2007 the Claims Adjudicator informed the worker that his request for a NEL re-determination had been denied, because the most recent physical findings provided by Dr. R.M. Katsuno, family physician, did not indicate that there had been any deterioration in the worker s condition since his last NEL assessment. In addition, entitlement for the left arm was denied. [6] On October 22, 2008 the worker was informed that the Board had done a final (72-month) review of his LOE benefits. The Claims Adjudicator stated that the Service Canada wage guide for his area indicated that current wages for the SEB of Trades Helper and Labourer (NOC 7612) was in the range of $11 to $30 per hour, with an average of $17 per hour. The Claims Adjudicator also noted that the worker had done various jobs for the accident employer, including snow removal, maintenance, loader operator and welding, and that he was currently working for a construction and renovation company for 7 35 hours per week, earning $15 per hour. In light of the fact that the worker had another 22 years in the workforce, the Claims Adjudicator opined that the worker would be earning more than entry-level wages in the designated SEB, and used the average hourly wage of $17.00 for the calculation of the worker s partial LOE benefits.

4 Page: 3 Decision No. 1608/10 [7] The worker claims that his neck injury prevents him from working full-time in the designated SEB. However, the worker testified at the hearing that he is capable of working fulltime in a less physically demanding job. In this appeal, he is seeking entitlement to partial LOE benefits based on full-time employment at minimum wage. (v) Relevant Law and Policy [8] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to section 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and I have considered them as necessary. (vi) The worker s testimony [9] At the hearing the worker provided the following testimony: In addition to his compensable cervical spine injury he has a number of noncompensable conditions that cause pain in the low back, the mid-back, the elbows, the knees and various other joints. However his main problem is his compensable neck condition. He is currently taking Oxycontin for his pain twice a day -- morning and night. He uses a TENS machine almost daily for his neck, and applies ice to his neck when there is swelling. When he does any jobs that require physical labour he returns home in pain and must lie down. He has a Grade 10 education. Although he had been certified to do welding this certification has now expired. At any rate, he can no longer do welding because this job requires keeping your arms in the same position for an extended period of time an activity that aggravates his neck condition. He cannot drive a truck for the same reason keeping his arms in a fixed position on the wheel for any extended period of time affects his neck. The academic assessment that was done on December 9, 2003 recommended that the worker participate in a program for academic upgrading. However, the worker testified that he refused this offer because he anticipated that he would make a full recovery and be able to return to his pre-accident work, which he loved. He now regrets having refused the opportunity for formal retraining. The worker opined that the job of mechanic s helper actually required more physical labour than the job of mechanic. The worker testified that on some days he is unable to function at all because of his pain. He does some minor mechanical work in a garage for hours per week.

5 Page: 4 Decision No. 1608/10 During the past few years he has done some work for a construction company doing snowing plowing with a front-end loader, but found that the machine vibration hurt his neck. Also, the job required too much neck turning. His doctor has told him that he should not operate any machinery when he is on Oxycontin. He does not consider himself to be totally disabled from working. However, he can only work at a job which does not require above the shoulder lifting, and will allow him to work at his own pace. The worker testified that he would be capable of working as a Parts Counter Person for a car dealership, and that there are two dealerships in his area. He is confident that he could work full-time in a job that was not physically demanding and that was within his physical capabilities. (vii) Submissions of the worker's representative [10] Ms. Voz noted that the worker had done very well in his LMR program, thereby demonstrating that he was able to participate fully in a full-time program providing that it was not physically demanding. She argued that the worker was not capable of earning more than minimum wages, in light of his physical limitations and his lack of experience or knowledge outside of his pre-accident physical work. (viii) Submissions of the employer s representative [11] Ms. Wright stated that she agreed with the opinion of the worker's representative. She noted that both the Functional Abilities Evaluation (FAE) and the subsequent work-hardening program had demonstrated that the worker had limited capabilities. In light of these limitations, it would be difficult for him to secure employment in the designated SEB. She opined that the best solution for the worker was full-time work at a job which pays minimum wages, and that this solution was a win-win for all parties. (ix) Analysis [12] The LMR plan proposal of February 18, 2004 indicated that the worker could no longer work as a heavy equipment operator or mechanic because the required physical demands exceeded his physical capabilities. NOC 7612 was selected as the recommended SEB because the worker had transferrable skills in this profession, and because the FAE completed on January 6, 2004 indicated that it was physically suitable. [13] However, I am not persuaded that the worker would be able to find employment in this SEB for the following reasons: The section of the LMR plan proposal dealing with potential barriers indicated that the worker s opportunities for finding employment in the SEB might be limited. The report noted I advised the worker that he will have to look at occupations in speciality shops where he will not have to lift his arms over his shoulders. In light of the fact that the

6 Page: 5 Decision No. 1608/10 worker lives in a small town with few job opportunities, it would be very difficult to find such a position. The worker is currently taking Oxycontin, and has been advised not to handle machinery when on this medication. This limitation would further prevent him from doing many of the jobs in this SEB. [14] In light of these difficulties, and after considering the submissions, I find that the SEB was not suitable and that partial LOE benefits based on full-time employment at minimum wage, without the need for further LMR services, is appropriate. Given the worker s restrictions of avoiding heavy lifting, overhead activities and repetitive, forceful or sudden movements of the neck, work in the construction industry is not sustainable or suitable. In addition, given the worker s education level, current restrictions and lack of skills in other fields, I find full-time employment at minimum wage to be appropriate. [15] I am satisfied that there is evidence to support the settlement and that it is consistent with the Act and Board policy, and the merits and justice of the case.

7 Page: 6 Decision No. 1608/10 DISPOSITION [16] The appeal is allowed in part. Partial LOE benefits are to be based on full-time employment at minimum wage. The issue of entitlement to further LMR services is withdrawn. DATED: December 9, 2011 SIGNED: M.C. Smith