WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2053/07

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2053/07 BEFORE: S. Ryan: Vice-Chair HEARING: September 11, 2007 at Hamilton Oral DATE OF DECISION: June 16, 2008 NEUTRAL CITATION: 2008 ONWSIAT 1670 DECISION(S) UNDER APPEAL: S. Marangoni, Appeals Resolution Officer, January 5, 2006 APPEARANCES: For the worker: For the employer: T. Cook, a consultant WSIB Specialist 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. 2053/07 REASONS (i) Introduction [1] In the decision of January 5, 2006, the Appeals Resolution Officer (ARO) granted the worker s appeal, in part. He determined that the DCF Bundle Sort job was not suitable even with the accommodations recommended by a Board Ergonomic Specialist. He directed the Board to reinstate Loss of Earnings (LOE) benefits from July 6, 2004, and provide the worker with Labour Market Re-entry Services (LMRS). The ARO denied the worker initial entitlement for a left elbow injury. [2] At the outset of the hearing, I discussed the issue agenda with the representatives. Mr. Cook confirmed correspondence in the Case Record that indicated the worker wished to withdraw the issue of initial entitlement for a left elbow injury. I accepted that request following confirmation that the worker understood that any future appeal of that issue to the Tribunal will be subject to the time limit provisions of the Workplace Safety and Insurance Act (the WSIA). The representatives agreed that the only issue to be decided in this appeal is the issue appealed by the employer: whether or not the modified job of DCF Bundle Sort offered to the worker in July 2004 was suitable. Implicit in this issue is an ancillary issue of whether or not the worker cooperated in the Early and Safe Return to Work (ESRTW) process. (ii) Background [3] In November 2001, the worker developed pain in her right elbow. She was diagnosed initially with right lateral epicondylitis. Subsequently, she was also diagnosed with radial tunnel syndrome. The Board s Operating Branch accepted that the condition was causally related to her employment as a Postal Clerk and granted her entitlement to Loss of Earnings (LOE) benefits while she participated in conservative health care treatment. [4] On June 4, 2002, the worker returned to modified duties in an AO Sort job with the accident employer at reduced hours. However, the pain in her right arm persisted and the Board s Operating Branch determined that the modified duties offered at that time were not suitable. [5] On February 19, 2003, the worker underwent surgery to decompress her right medial tunnel. The worker s symptoms persisted despite her participation in post-operative health care treatment. [6] In December 2003, a work-hardening plan was developed for the worker to return to modified duties on a graduated basis to a DCF Bundle Sort job. The worker did not attempt the modified duties on January 6, 2004, as contemplated in the plan, because she was concerned that the job was not suitable. Accordingly, the Board made arrangements for an ergonomic assessment. [7] On March 1, 2004, the worker underwent a Non-Economic Loss (NEL) assessment for the residual impairment in her right arm and was subsequently granted a 5% award.

3 Page: 2 Decision No. 2053/07 [8] In early April 2004, the worker attended the workplace and attempted the DCF Bundle Sort job. There is a dispute about the duration of that effort. The worker maintains that she tried it for 20 minutes; the employer maintains that she tried only one lift of a bundle and stopped her effort. [9] On May 18, 2004, a Board Ergonomic Specialist attended the workplace and assessed the DCF Bundle Sort job. He concluded that the job exceeded the worker s medical restrictions, but that the job could be rendered suitable with the implementation of specific additional accommodations. [10] On June 30, 2004, the workplace parties met and the accident employer advised the worker that it was willing to meet all of the accommodations recommended by the Ergonomic Specialist. The worker refused to attempt the job on the grounds that her treating physician recommended that she not attempt any job that required repetitive activity with her upper extremities. [11] The Board s Operating Branch determined that the accident employer could have fully implemented appropriate accommodations and that the DCF Bundle Sort job was suitable for the worker s condition. LOE benefits were terminated effective July 6, The worker appealed and, as noted above, the ARO found that the DCF Bundle Sort job was not suitable. The ARO also granted the worker entitlement to LMRS. At the time of the Tribunal hearing, the worker was participating in LMRS for employment as a Social Worker. (iii) Testimony of RB, Occupational Health and Safety Officer (Employer Witness) [12] RB testified that he has 18 years experience as an Occupational Health and Safety Officer and 17 years experience in WSIB matters. During the period of ESRTW negotiations with the worker in this appeal, he was responsible for claims management and was directly involved in this case. [13] RB explained that the accident employer utilises the services of an external medical and health care provider for advice on medical and occupational health issues. In this case, the accident employer hired an occupational therapist as well as a vocational rehabilitation specialist for additional support in the employer s effort to provide suitable modified work for the worker. [14] RB confirmed that in June 2003, the worker was offered an AO Sort job which entailed sorting packages weighing less than three pounds each. However, this job was deemed unsuitable by the Board because it involved repetitive movement of the worker s arms. [15] RB recalled that, following a meeting with Board personnel in September 2003, the position of DCF Bundle Sort was identified as a potentially suitable job for the worker. An occupational therapist hired by the accident employer formulated a graduated return to work plan which anticipated that the worker would start on January 6, 2004, at two hours per day, two days per week. The plan anticipated that the worker would gradually increase her hours of work over the ensuing weeks. However, the worker expressed concern about the appropriateness of the medical restrictions and specifically her ability to lift up to nine lbs. A meeting was held between the worker, her union representative and RB and it was determined that the worker

4 Page: 3 Decision No. 2053/07 should obtain clarification from the Board about her restrictions. The worker did not return to work at that time, but continued to participate in medical treatment and investigation. [16] RB recalled that, at the employer s request, the Board made arrangements for an ergonomic review of the DCF Bundle Sort job. In the meantime, RB sent a letter dated April 5, 2004 to the worker explaining how the job could be performed within her restrictions and noted her brief attempt to perform the job. In that letter, RB advised: The worker was advised that she could pick up the bundles of mail with both hands and she was shown how this could be done without using her thumbs to grasp the mail. She was to work at her own pace and notify the supervisor of any concerns she may have after starting the duties. After picking up one 9 lb. bundle at waist height, the worker indicated she would be unable to do the job. [17] On May 18, 2004, J. Fedora, Ergonomic Specialist, met with the worker, a union representative and RB and together they reviewed the DCF Bundle Sort job. Another worker performed the job for the ergonomic assessment. In his ensuing report, Mr. Fedora identified the worker s medical restrictions as follows: Bilateral Wrists No rapid repetitive movement of wrists and hands R[ight] Upper Extremity (including the elbow, wrist, hand) No repetitive movement of involved joint against resistance, i.e. twisting/pulling/pushing/gripping. The worker is limited to lifting 9 lbs. [18] J. Fedora concluded that the job exceeded the worker s medical restrictions because it required frequent to constant lifting, carrying and gripping involving forces up to approximately 8 lbs. and because it required occasional pushing/pulling forces of up to 14 lbs. with both arms when using a binny cart. However, Mr. Fedora also advised that the job could be brought within the worker s medical restrictions if specific adjustments were made: frequent micro-breaks ranging in durations of one-to-two minutes co-worker assistance to push a full binny avoid dispatching full polyflutes job coaching to assist the worker in developing optimal techniques return to work on a graduated basis [19] RB testified that he had some concerns with Mr. Fedora s report because of its potential negative impact on the worker s successful return to work. He advised, however, that the accident employer was fully prepared to implement the adjustments recommended by the Ergonomic Specialist. [20] In a report addressed to the Board dated June 30, 2004, RB advised: On June 30, 2004, Operations manager, CS, Safety officer, RB, Health services JB and KR and an Occupational Therapist, M-LN, met with the worker and her union representative. The [accident employer] reviewed the Board s Ergonomist report and the recommendations with the worker and advised that we were willing to meet all the

5 Page: 4 Decision No. 2053/07 recommendations outlined in the report. A work hardening plan was developed in detail with the worker The employee acknowledged receiving Mr. Fedora s report and advised us that she took it to her two specialist[s], who advised her that she could not return to work. [21] A Work-Hardening Plan was attached to the letter of June 30, 2004, and set out a schedule of graduated hours between July 6 and August 15, [22] RB explained that there was no production quota in the DCF Bundle Sort job. He stated that the worker would have been permitted to take micro-breaks as recommended by Mr. Fedora and that it was hoped she would be able to increase her tolerances. He stated that an occupational therapist and vocational rehabilitation specialist would have been available to provide the worker with job coaching. RB testified that the duty to work with heavy polyflutes would have been assigned to another worker. [23] RB stated that it was hoped that the worker would be able to increase her physical tolerances over the period of the graduated work plan (which was later extended to September 13, 2004) and that eventually she would no longer require micro-breaks. RB stated that if the worker was unable to increase her tolerances, the accident employer would possibly review or alter the existing plan with the assistance of the occupational therapist. [24] With respect to other available jobs, RB testified that a Driving/Courier job, desired by the worker, was found by the Board to be unsuitable because of the requirement to engage in repetitive steering. A Retail job was considered by the accident employer to be unsuitable because the worker would be required to do more than sell stamps. She would be required to manipulate parcels and packages of various sizes and weights. (iv) Testimony of the Worker [25] The worker testified that she wanted to continue working with the accident employer because she had 31 years of seniority with the accident employer. She confirmed that for 10 years she performed a DCF Belt job which required her to work rapidly with her arms to pick up and sort bundles on a line. [26] In his report of May 27, 2004, the Ergonomic Specialist described the DCF Bundle Sort job as follows: Job Design No set production quotas placed upon worker. Work is generally self paced. Mail volumes could fluctuate day to day. Worker would be working day shift between the hours of 8:00 a.m. to 3:00 p.m. Workers are given two 15 minute breaks and ½ hour lunch. Relevant Workstation and Tool Design Worker would be handling a binny cart (handling height 33.5 inches) to transport mail from conveyor to sorting workstation with a dimension of approximately 10 feet by 10 feet. Worker would be sorting into 3 baker s racks that are filled with polyflutes. Worker would be placing mail into poly flutes between the heights of 52 and 28 inches. Job Duties - Retrieve binny cart from conveyor area and transport to sortation racks.

6 Page: 5 Decision No. 2053/07 - Sort mail into required polyflute - Place empty polyflute into baker s rack once co-worker takes away full or complete polyflute. - Return empty biny cart to conveyor area. [27] With respect to the DCF Bundle Sort job, the worker explained that she would take bundles from a binny and place them onto a 45 degree angle surface at her workstation. She stated that she would then sort them into baker s racks and polyflutes. She testified that this required her to move her arms as high as above shoulder height and as low as below knee level. She stated that sorting mail required her to bend her elbow and that there was no way to avoid repetitive use of her hands, wrists and arms in this job. [28] The worker testified that she attempted the job in the spring of 2004 for a duration of 20 minutes. The worker testified that her right forearm swelled up and that she showed her swollen arm to those who were observing that day including the occupational therapist. She stated that only her union representative acknowledged the swelling. [29] The worker testified that no other co-worker worked in her immediate vicinity, so she could not understand how she could have reliable access to a co-worker for assistance with heavier items. [30] Ms. Fleming questioned the worker about the duration of her attempt of the DCF Bundle Sort job. The worker testified that she removed over 20 bundles, but did not completely empty one binny. She stated that she managed to fill some polyflutes. She reiterated that the occupational therapist was present on the day she attempted to work and showed the occupational therapist the swelling in her arm. [31] The worker agreed that while there was no specific production quota in the DCF Bundle Sort job, if she could not produce at a minimum rate the mail stream would slow down and this would affect the production of other workers. [32] The worker confirmed that, at the time of the hearing, she continued to participate in LMRS which began in October She successfully completed a high school equivalency program and was pursuing a two-year diploma program in Social Work. [33] Ms. Fleming questioned the worker about her attendance record while participating in LMRS. Information in the LMRS documents indicate multiple absences from classroom training. The worker testified that she was unwell in April 2007 and underwent surgery for three abscessed teeth in June In answer to Mr. Cook s questioning, the worker testified that she made up for all the lost time from LMRS. [34] I asked the worker about her ability to drive. She stated that she drives with her left hand for short distances only within city limits. She stated that long distance driving causes numbness in her hands.

7 Page: 6 Decision No. 2053/07 (v) Submissions [35] On behalf of the accident employer, Ms. Fleming filed submissions under cover letter dated October 18, She reviewed the history of this case and emphasised the accident employer s efforts to provide the worker with suitable modified work. She noted that the accident employer hired an occupational therapist to assist the worker with job coaching and that the accident employer liaised closely with the Board to provide the worker with duties within her medical restrictions. [36] The accident employer s representative acknowledged the conclusions reached by the Board s Ergonomic Specialist that the job of DCF Bundle Sort was not suitable when examined on May 18, She emphasised, however, that he also concluded that the job could be made suitable with specific adjustments. Ms. Fleming cited letters in the Case Record from the accident employer which confirmed its willingness to implement the changes recommended by Mr. Fedora. [37] Ms. Fleming submitted that the worker failed to co-operate in the Early and Safe Return to Work (ESRTW) process. Specifically, she noted that the worker failed to even attempt the DCF Bundle Sort job in July Ms. Fleming asked the Tribunal to find that the job offered to the worker was suitable, that the worker refused to attempt it and, therefore, that the worker has no entitlement to LOE benefits or LMRS beyond July 6, [38] On behalf of the worker, Mr. Cook offered submissions under cover letter dated November 23, The worker s representative submitted that the worker s decision to refuse the DCF Bundle Sort job was supported by her treating physiatrist, Dr. Chari. Mr. Cook submitted that the worker s restrictions included those recommended by Dr. Karr, Board Medical Consultant, which was to avoid repetitive and/or sustained gripping. Mr. Cook cited Mr. Fedora s observation at page 4 of his May 27, 2004 report: Worker would be gripping on a frequent to constant basis. Worker would be handling such things as binny cart, mail/mail bundles/empty polyflutes,. Both bilateral and unilateral gripping is performed. Grasping type is influenced by the size/shape/weight of mail and worker s practices. [39] Mr. Cook questioned the sustainability of this job. He submitted that, notwithstanding the absence of a specific production quota, the worker s inability to keep up with even minimum production expectations would inevitably become an issue for the accident employer because it would adversely affect the production process. [40] Mr. Cook submitted that the DCF Bundle Sort job required repetitive, sustained or constant gripping, pinching or grasping of mail or binnys and that even if the recommendations of Mr. Fedora were implemented, these changes would not have removed the job s inherent physical demands. (vi) Analysis [41] I have carefully considered all of the evidence in the Case Record, testimony of RB and the worker as well as the submissions of Ms. Fleming and Mr. Cook.

8 Page: 7 Decision No. 2053/07 1. Was the modified job of DCF Bundle Sort offered to the worker in July 2004 suitable? [42] Under section 126 of the WSIA, the Board has identified Operational Policy Manual (OPM) Document # , Early and Safe Return to Work (ESRTW) The goal of ESRTW and the Roles of the Parties as an applicable policy in this appeal. That policy defines suitable work as work that: is within the worker s functional abilities the worker has, or is capable to acquire, the necessary skills to perform does not pose a health or safety risk to the worker or coworkers, and if possible, restores the worker s earnings. [43] In her submissions of October 18, 2007, Ms. Fleming also raised the issue of whether or not the worker co-operated in the ESRTW process. [44] In the ESRTW phase of entitlement, LOE benefits are determined by reference to section 43 of the WSIA. Payment of benefits is contingent upon specific requirements described in section 43(3) and (4): (3) The amount of the payment is 85 percent of the difference between his or her net average earnings before the injury and any net average earnings the worker earns after the injury, if the worker is co-operating in health care measures, and (a) his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan (4) The Board shall deem the worker s earnings after the injury to be the earnings that the worker is able to earn from employment or business that is suitable for the worker under section 42 [45] Additionally, subsection 43(7) states: 43(7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, (a) in health care measures; (b) in his or her early and safe return to work; or (c) in all aspects of a labour market re-entry assessment or plan provided to the worker. [46] The employer s obligations during ESRTW phase is described under subsection 40(1) of the Act which reads: 40(1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by, (a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker s recovery and impairment; (b) attempting to provide suitable employment that is available and consistent with the worker s functional abilities and that, when possible, restores the worker s pre-injury earnings;

9 Page: 8 Decision No. 2053/07 (c) (d) giving the Board such information as the Board may request concerning the worker s return to work; and doing such other thins as may be prescribed. [47] The worker s obligations during the ESRTW phase is descried under subsection 40(2) of the Act which reads: 40(2) The worker shall co-operate in his or her early and safe return to work by, (e) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker s recovery and impairment, (f) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker s functional abilities and that, when possible, restores his or her pre-injury earnings; (g) giving the Board such information as the Board may request concerning the worker s return to work; and (h) doing such other things as may be prescribed. [48] OPM Document # , Early and Safe Return to Work (ESRTW) Workplace Party Co-operation which states: Employer co-operation The Act sets out minimum requirements for employers of workers regarding co-operation 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 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. [49] The evidence before me clearly establishes that the accident employer fully cooperated in the ESRTW process. The accident employer maintained contact with the worker and the Board and took extra steps to facilitate the worker s return to work. In particular, I note that the accident employer hired an occupational therapist and a vocational rehabilitation specialist to assist in identifying suitable modified work and was prepared to provide the worker with job coaching to assist her in developing optimal techniques.

10 Page: 9 Decision No. 2053/07 [50] The evidence before me indicates that the worker did not attempt the DCF Bundle Sort job in July She held the view that she was not physically capable of performing it. The evidence indicates that the worker did attempt the DCF Bundle Sort job in April The worker s failure to succeed in the job at that time is consistent with the subsequent finding of a Board Ergonomist who determined that the job was not suitable. Mr. Fedora advised, however, that with the implementation of specific changes, this job could be suitable for [the worker] (my emphasis). [51] I find that despite the accident employer s best efforts, obvious commitment to the ESRTW process and willingness to implement the changes recommended by the Board Ergonomic Specialist, the job of DCF Bundle Sort was nevertheless unsuitable for this worker s right upper extremity impairments. [52] Although there are variations in the description of the worker s medical precautions in the Case Record, the description offered by Dr. A.W. Karr, Board Medical Consultant, in Memorandum #59, is generally consistent with all of them. He recommended that the worker avoid repetitive movement of the right elbow against resistance such as pulling, pulling and twisting as well as repetitive or sustained gripping. [53] Dr. V.R. Chari, a specialist in physical medicine and rehabilitation, treated the worker on a regular basis and repeatedly recommended that she avoid repetitive use of her upper extremities. I acknowledge Ms. Fleming s submissions regarding the opinion of Dr. V.R. Chari. She submitted that he did not demonstrate an awareness of the modifications to the DCF Bundle Sort job and, therefore, his opinion ought to be discounted. With respect, I do not agree. [54] In a report dated June 9, 2004, Dr. Chari commented specifically on the Ergonomic Specialist s report and its recommendations: [S]he gave me a copy of the ergonomics report of May 2004 authored by Mr. Jeff Fedora (Ergonomist at WSIB) with respect to the proposed DCF bundle sort ([The worker] felt that this job is the same/similar repetitive job that she has held with [the accident employer] for many years and associated with recurrent [musculoskeletal] symptoms). Interestingly, the report does conclude that in my opinion [the] job demands in the modified/alternative job of DCF sortation exceed the worker s medical precautions and could contribute to an aggravation of worker s bilateral wrist/right upper extremity injury. However, this job could be suitable for [the worker] with implementation of the suggested accommodations which include micro-breaks ranging from 1-2 minutes, avoidance of lifting more than 9 lbs., job coaching and returning to work on a gradated basis. Dr. Chari opined: From what I know of [the worker s] condition and her medical/work history, I really do not recommend another repetitive job however undemanding it may be physically, because of the potential risk of aggravating her symptoms due to repetitive strain. [55] Dr. Chari demonstrated a satisfactory understanding of the DCF Bundle Sort job as well as the recommendations of Mr. Fedora.

11 Page: 10 Decision No. 2053/07 [56] Dr. Chari repeatedly advised that the worker was not capable of any type of work that required repetitive use of her hands. In his note dated May 19, 2004, Dr. Chari wrote: Unless a non-repetitive office type of job is available, I will strongly recommend that [the worker] be off work until further evaluations are completed (my emphasis) [57] I agree with Ms. Fleming that it is not clear what type of office job Dr. Chari had in mind because presumably most office jobs would involve typing, filing etc. My interpretation of Dr. Chari s comments, however, is that he was simply suggesting the worker attempt any job that involved a lot less repetitive activity with the hands, wrists and elbows. In his opinion, the DCF Bundle Sort job (even after adjustments) required repetitive activity with the hands, wrists and elbows. [58] Dr. Chari s opinion is consistent with other medical evidence including the Functional Abilities Evaluation (FAE) report dated July 16, That report indicated that the worker underwent 21 tests aimed at measuring the function in her hands, elbows and arms. The report indicated that when compared with other individuals of the same gender and age, the worker s overall hand function was 1%, elbow function 50% and shoulder function 80% of the average. [59] In my view, even with the changes recommended by Mr. Fedora (which he suggested could make the job suitable), the job of DCF Bundle Sort would nevertheless require repetitive bilateral and unilateral activities with the hands, wrists and elbows (i.e. lifting, carrying, pushing pulling, gripping). It appears to me that continuous use of the hands, wrists and elbows was an inherent and inescapable feature of the DCF Bundle Sort job. Given the worker s specific impairments in her right arm, right lateral epicondylitis and radial tunnel syndrome, the introduction of micro-breaks, co-worker assistance, lighter polyflutes, job coaching and graduated hours would not, in my view, enable her to avoid repetitive use of her right arm in the performance of this job. [60] The worker did not fail to cooperate in ESRTW process. She followed the advice of her treating specialist and declined a job that I find was unsuitable. The worker s absences from classroom training in the LMRS process is not, in my view, evidence of her failure to cooperate in the ESRTW process with the accident employer. Indeed, her absences were related to non-compensable health issues. I note that according to a LMRS progress report dated December 20, 2006, the worker put in 12.5 hours of additional class time to more than make up for what she missed.

12 Page: 11 Decision No. 2053/07 DISPOSITION [61] The appeal is denied. DATED: June 16, 2008 SIGNED: S. Ryan

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