WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1454/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1454/10 BEFORE: R. Nairn: Vice-Chair HEARING: July 26, 2010 at Hamilton Oral DATE OF DECISION: November 23, NEUTRAL CITATION: 2010 ONWSIAT 2666 DECISION(S) UNDER APPEAL: WSIB ARO decision dated March 19, 2009 APPEARANCES: For the worker: Ms. S. Backus, UFCW Locals 175 & 633 For the employer: Interpreter: Did not participate None 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. 1454/10 REASONS (i) Introduction [1] At the time of the events under consideration here, the worker, born in 1974, was employed as a mixer/operator in the accident employer s frozen bakery products business. She was hired by the accident employer in July [2] In approximately June 2006, the worker (who is right handed) began to experience an onset of pain and discomfort in the area of her right elbow which she related to the repetitive nature of her job as a mixer. The Health Professional's Report of June 22, 2006 provided a diagnosis of R lateral epicondylitis. [3] The WSIB (the Board ) recognized the worker s right arm condition as compensable and she received various periods of loss of earnings ( LOE ) benefits. Information on file indicates that in the months which followed the onset of the worker s problems, she performed a variety of modified duties for the accident employer. [4] On December 13, 2006, the worker was referred to the WSIB s Upper Limb Speciality Clinic at St. Joseph s Hospital in London. In the report which followed that assessment, Dr. J. Roth advised in part: [The worker] has findings of lateral epicondylitis of her right elbow. At present [the worker] is unable to work at jobs requiring repetitive activities or heavy lifting, gripping or pinching with her right hand. She will be seen by our Return to Work Coordinator today. [The worker] will continue to use her counterforce brace at work. [5] The worker was seen again at the WSIB Upper Limb Speciality Clinic on February 7, 2007 and in his report which followed that visit, Dr. Roth indicated: [The worker] has attended therapy without significant benefit. [The worker] has had right elbow symptoms since June At present [the worker] is unable to work at jobs requiring repetitive activities or heavy lifting, gripping or pinching with her right hand. She does continue to work full hours but at modified duties. [6] In testimony provided at this hearing, the worker indicated that she laid off work on approximately February 26, 2007, after experiencing a sudden increase in her right arm pain while performing clerical duties assigned by the employer. The worker s family physician, Dr. A. Vohra, provided a note dated March 6, 2007, which indicated: The above named is having ongoing problem [with] R elbow and waiting for her MRI & further treatment from Dr. Pyper (ortho). She is having worsening of her symptoms since & is unable to work

3 Page: 2 Decision No. 1454/10 [7] With the worker having laid off work, information on file indicates that on April 4, 2007, a Board Ergonomist visited the workplace and, along with the worker and representatives, viewed the various modified jobs the worker had been performing. In the resulting report dated April 17, 2007, the Ergonomist indicated: 6.0 Conclusions and recommendations Conclusions: It is the opinion of this Ergonomist that accommodations are required in the modified job to ensure it is suitable. Without accommodations the physical demands of the job exceed the worker s medical precautions of no gripping/pinching in combination with awkward shoulder, forearm and wrist postures and could contribute to an aggravation of the worker s right elbow/forearm injury. Recommendations: The recommendations below are suggestions to help workplace parties reduce risk factors in the job in order to make the job suitable. Alternative solutions can be explored that still reduce the identified risk factors but provide a better fit for the workplace parties. It is the responsibility of all parties to continually evaluate the recommendations to ensure they are decreasing the risk or meeting desired outcomes. When boxing files, angle the box forward 45º to minimize shoulder abduction and forearm rotation. Provide worker with pull out or height adjustable platform to accommodate both split keyboard and mouse on the same level. Top of platform should measure 5-7 centimetres below worker s seated elbow height (worker s elbow height in QC office was 67.5 centimetres and 72 centimetres depending on seat pan height). Provide the worker with split keyboard to reduce forearm pronation and wrist extension/deviation while keying. Consider suggestions outlining discussion relevant to mousing. Provide worker with alternate stapler that requires less force to activate. An automatic stapler is another option. Provide worker with alternate three hole punch that is in working order and requires minimal force to activate or, the employer can also provide an automatic three hole punch. [8] In her testimony the worker indicated that immediately following the Ergonomist s visit, a return to work mediation was held and conducted by a Board Return to Work Mediator. In Memo #43 the Mediator indicated: Terms and details of the agreement: Rights and obligations of early and safe return to work was discussed in detail and agreed upon. Position: Cycle Count (Office Administration) The WSIB ergonomist has reviewed the positions with the employer, employee and union. It is her opinion that the physical requirements do not exceed her restrictions, therefore the job has been deemed suitable.

4 Page: 3 Decision No. 1454/10 A report outlining the findings will be forwarded by the ergonomist and to the workplace parties under separate cover. The employee will be providing a copy to her medical practitioner. The start date has yet to be confirmed, as the employee is scheduled to be seen by her specialist within the next two weeks. Upon clearance, she will advise the employer to arrange a start date. The WSIB claims adjudicator will also be advised. [9] The file materials contain a copy of a May 10, 2007 letter from the employer s representative to the worker which, it was claimed, was sent by registered mail. The letter indicates in part: I write to you today to present to you the enclosed offer of suitable modified work, which I advised you of in my voice mail message and subsequent phone conversation today, May 10, Please be advised that modified work remains available for you within your functional capabilities. You advised me that you would not be at work on Friday, May 11, and that on Monday, May 14 you have an appointment with Dr. Pyper at which time you will ask him to complete a Form 26. We have discussed the need for the workplace parties diligence in ensuring that you resume earning regular wages. [10] In testimony provided at this hearing, the worker denied ever receiving a copy of the May 10, 2007, letter. [11] In a decision dated April 27, 2007, the Claims Adjudicator denied the worker LOE benefits for her lost time after February 2007 noting: An ergonomist assessment was done on April 4, 2007 and a return to work mediation was done on April 5, The ergonomist report confirmed that the cycle count job was suitable. The jobs of filing and data entry were not suitable without accommodations and could cause an aggravation of your left elbow. I spoke to your employer and they are going to make necessary accommodations. However, at this time although the filing and data entry job could have caused an aggravation to your left elbow, I do not have medical to confirm an aggravation occurred that caused you to go off work. At this time I am unable to pay for loss of earnings benefits as I do not have a confirmed date that you went off work and medical to support that you suffered an aggravation of your left elbow that rendered you totally disabled and not able to work as of February 26, 2007 (the date you state you went off). Once the medical information comes to file I will review it to determine entitlement to loss of earnings benefits. [12] As noted in Memo #72 dated December 6, 2007, with the worker still off work in late 2007, the worker s current representative requested that the Claims Adjudicator arrange for another return to work mediation. The Claims Adjudicator denied the request however, noting that told her that mediator and ergo done in April 2007 and not required again.

5 Page: 4 Decision No. 1454/10 [13] In testimony provided at this hearing, the worker indicated that she eventually returned to work in a supervisory capacity on approximately February 25, She was informed about the availability of this job by a friend and co-worker. [14] The worker had surgery performed on her right elbow on September 16, 2008, when Dr. J. Pyper performed a right elbow lateral release. [15] The worker objected to the Board s refusal to grant her LOE benefits for her lost time between February 28, 2007 and February 25, 2008 and this issue was eventually forwarded to an Appeals Resolution Officer ( ARO ). In a decision dated March 19, 2009, the ARO granted the worker s appeal in part, awarding her 50% partial LOE benefits between February 2007 and February In so doing, the ARO concluded: based on the medical reporting provided I conclude that the worker, during that period of time under appeal, was partially disabled and fit for suitable modified duties. Based on the ergonomic reporting I conclude that the modified duties provided by the employer were, as a whole, not suitable for the worker s right elbow condition. The employer s letter of May 10, 2007 was as noted by the worker not received. This is a point of contention in the file. The worker did acknowledge receiving the letter of June 20, She attended a meeting with the employer in early July This did not result in a resolution of the modified duties question. I note that both the employer and worker felt that each should contact the other concerning the matter of modified duties. Noting the early and safe return to work policy it should be a collaborative effort. I however do feel that the employer should be more responsible in that they would have been more aware of the necessary procedures to follow. The worker stated that she participated in a meeting with the employer in July 2007 that did not result in the offer of modified duties. The employer did not contest this. Given that I consider the worker to have been fit for appropriate modified duties from February 2007 to February 2008 and that suitable modified duties were not available for the worker, and it was understood it appears by both parties that they were still waiting for each other to initiate the return to work process, I support the payment of 50% LOE for the period in question. (ii) Issue on appeal [16] The issue to be determined in this case is whether the worker is entitled to full LOE benefits for the period from February 28, 2007 to February 25, 2008, rather than the 50% partial LOE benefits granted. (iii) The worker s testimony [17] In her testimony, the worker confirmed that she started with the accident employer in 2003 and that the employer was involved in making and then freezing baked goods. Between 2003 and 2006 she worked between 7 a.m. and 3 p.m. Monday to Friday on a machine which wrapped the baked goods in plastic. [18] In approximately June 2006, the worker was successful in obtaining a job as a mixer. The duties of this job included scooping ingredients and as time passed, she began to experience pain and discomfort in her right elbow and forearm. The pain reached the point where she was

6 Page: 5 Decision No. 1454/10 unable even to hold the scoop. The worker, who is right handed, found it very difficult to perform the job with her left hand and therefore advised her employer and sought medical attention. [19] The worker testified that her family physician diagnosed her as suffering from right tennis elbow and she recalled being off work for a few weeks. She recalled coming back to work in about August 2006 and initially, was provided with a variety of clerical tasks to perform. These included doing some data entry, filing and photocopying in the shipping and receiving area and also doing filing and placing files in boxes in the quality control office. According to the worker, it was not unusual for her to report to work at 7 a.m. and have to wait until 8 a.m. before someone would come in to advise her what she would be doing. The employer frequently had difficulty finding work for her to do. [20] In August 2006, the worker was also assigned to do the cycle count job which required her to walk through the facility and count how many skids there were of various products and materials. Her count would then be recorded and compared with the inventory number on computer records. The worker testified that this job was fairly easy and might be done twice a week. It would only take an hour or two to complete. The worker testified that she never had any difficulties performing this job and, contrary to suggestions in the case materials, no one from the employer ever indicated there was a problem with her counting. [21] The worker also was asked, in approximately October 2006, to work at a job which required her to peel stickers off a sheet and place them onto cardboard containers. According to the worker, there were 5000 of these flattened cartons on a skid and it was not unusual for her to have to complete 10 skids or 50,000 cartons. This task might be performed once a week. It was necessary for her to complete this task rather quickly because others on the assembly line were waiting for the boxes. She found that this job increased her right arm pain because of its repetitive nature. [22] At one point, the employer also asked if she was interested in returning to her plastic wrapping job. She had done this job before and knew it was very repetitive since the operator had to constantly be correcting errors. [23] On approximately February 26, 2007, the worker was performing some clerical duties and as she went to place a document into a filing box, she experienced a sudden increase in her right arm pain. She went to see her family doctor who advised that if she could not be provided with suitably modified duties then she should not return to work. A doctor provided her with a note which she passed along to the employer. [24] The worker testified that of all the duties given to her by the employer, she spent most of her time doing clerical and filing work. This included not only putting items into a filing cabinet but also placing older documents into cardboard boxes. She was also required to use a three hole punch (which was difficult to operate) and a stapler. [25] The worker confirmed that on April 4, 2007, the Board Ergonomist came to the workplace and viewed all of the modified duties she had been performing. According to the worker, the Ergonomist indicated that she would be considering the matter further and providing

7 Page: 6 Decision No. 1454/10 a report to her and the employer at a later date. The worker indicated that immediately after the Ergonomist s visit, the return to work mediation was held in one of the employer s boardrooms. There was no specific talk at this meeting about jobs that might be offered because the mediator had not yet completed her report. The mediator did not comment on the suitability of the work but indicated only that she would be providing her report at a later date. [26] Under questioning from her representative, the worker indicated that she never received the May 10, 2007, letter allegedly sent by the employer s representative. She also denied ever receiving a phone message from this individual. [27] The worker did acknowledge however, that she received a letter from the employer in June 2007 arranging a meeting in July She attended this meeting, with a union representative and it was the employer s position that since they could not have her working only a few hours a week at the cycle count job, they had no modified duties for her. [28] The worker indicated that she never heard from the employer again and although she could not be absolutely certain, she felt she must have contacted them asking about the availability of work in the months which followed. In February 2008, she got a call from a coworker and friend who indicated that a vacancy had been posted for a job as a lead hand. The worker went into the worksite, filled out the necessary application and was given the job by the employer. The worker testified that the job does not violate her restrictions and is a much more responsible job than she had before. She works side by side with the supervisor and is required to see that her particular line is functioning properly. She is also responsible for recording various data and has never had any problem doing so. She continues in this position to the present day. [29] The worker indicated that she had surgery on her right elbow in September 2008 and it currently feels fine. [30] It is the worker s understanding that none of the Ergonomist s recommendations from April 2007 have ever been acted upon by the employer. (iv) Analysis [31] Operational Policy Manual ( OPM ) Document No entitled The Goal of ESRTW and the Roles of the Parties provides in part: Policy The workplace parties (employers and workers) must co-operate and be self-reliant in returning the worker to suitable and available employment. Guidelines Definitions Suitable work -- is work that is within the worker's functional abilities the worker has, or is able to acquire, the necessary skills to perform does not pose a health or safety risk to the worker or co-workers, and if possible, restores the worker's earnings.

8 Page: 7 Decision No. 1454/10 Available work -- is work that exists with the accident employer at the pre-injury worksite, or at a comparable worksite arranged by the employer. Roles of the workplace parties The workplace parties must co-operate with each other in the ESRTW process. Cooperation means maintaining communication with each other working towards identifying a suitable and available job for the worker, and fulfilling reporting obligations to the WSIB [32] In this case, the worker has not disputed that during the period between February 2007 and February 2008, she was partially disabled and would have been capable of performing suitably modified duties, had they been offered. In his report of December 13, 2006, Dr. Roth of the WSIB s Upper Limb Specialist Clinic described the worker's restrictions as repetitive activities or heavy lifting, gripping or pinching with her right hand. [33] As noted in the decision on appeal, the ARO, after reviewing the information on file, concluded that the modified duties provided by the employer were, as a whole, not suitable for the worker's right elbow condition. Having had the opportunity to review the medical reporting and consider the worker's testimony, I would agree with the ARO s conclusions on that issue. With the possible exception of the cycle count job, all of the jobs performed by the worker required repetitive use of her right dominant hand. This was also the conclusion of the Board Ergonomist, who, in her April 17, 2007, report concluded that accommodations are required in the modified job to ensure it is suitable. There is no evidence before me to suggest that the modifications suggested by the Ergonomist were ever implemented and the worker's testimony is that as far as she is aware, they were not. [34] While the ARO was of the view that for all intents and purposes the employer had not offered suitably modified duties, full LOE benefits were not granted for the period under consideration because he felt the worker had not been cooperating in the ESRTW process. Having had the opportunity to review the case materials and consider the testimony provided by the worker however, I find that I am led to a different conclusion. [35] In my view, there is sufficient evidence available to justify the worker's conclusion that between February 2007 and February 2008, the employer had no suitable work available for her. That evidence includes: The Board Ergonomist visited the worksite on April 7, 2008, and in the report which followed that visit, the Ergonomist indicated that the jobs offered to the worker would have to be modified before they could be considered suitable. There is no evidence that the modifications suggested by the Ergonomist were ever implemented. I accept the worker's uncontradicted testimony that she did not receive the May 10, 2007, letter from the employer s representative. While this letter was purported to have been sent by registered mail, there is no accompanying documentation to confirm that it was ever picked up by the worker.

9 Page: 8 Decision No. 1454/10 The worker attended a meeting in July 2007 with the employer and I accept the worker's uncontradicted testimony that she left this meeting with an understanding that the employer had nothing to offer her since they did not want her doing only cycle count for a couple of hours a week. It was the worker's understanding that the employer would be in touch with her when they had something available. Having had the opportunity to consider the worker's testimony about the nature of the duties she was offered since the onset of her right arm problems in 2006, I would agree that the employer does not appear to have had a specific modified job for her to perform. The job the worker was assigned each day appeared to depend on what the employer needed to have done that particular day. As the worker noted in her testimony, there were many days when she would report for work at 7 a.m. and sit and do nothing in the lunchroom until someone came in and assigned her to a job. Most of the jobs she was able to complete in a couple of hours. In addition to being unsuitable, the duties were also not sustainable. As the employer eventually acknowledged in the meeting in July 2007, they were no longer able to justify paying a worker to perform only a couple of hours of work a day. While she could not recall any details, the worker felt that she must have contacted the employer at some point during late 2007 to ask about available jobs because if she had not, the employer would likely have decided she had abandoned her position. Memo #72 documents that in December 2007 the worker s representative contacted the Board asking that another return to work mediation be arranged. Presumably, this request was made on the basis that the worker was interested in getting back to work. The Claims Adjudicator refused the request however. It was the worker, with the assistance of a friend, who took the first step in securing new employment in February [36] The available evidence satisfies me that the worker did not fail to cooperate fully with the WSIB and the employer and that the employer did not offer suitable or sustainable work during this time period. As such, I am satisfied that she ought to be granted full LOE benefits for the period in question.

10 Page: 9 Decision No. 1454/10 DISPOSITION [37] The worker s appeal is allowed. [38] The worker s is entitled to full LOE benefits from February 28, 2007 to February 25, DATED: November 23, SIGNED: R. Nairn