1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 376/08 BEFORE: A. Morris: Vice-Chair HEARING: February 7, 2008 at Toronto Oral DATE OF DECISION: June 9, 2008 NEUTRAL CITATION: 2008 ONWSIAT 1601 DECISION(S) UNDER APPEAL: WSIB ARO decision dated January 31, 2006 APPEARANCES: For the worker: For the employer: Seemal Patel, Legal Aid/Ass. Robert Boswell, Lawyer 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. 376/08 REASONS (i) Introduction  These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by the worker from the decision of Appeals Resolution Officer (ARO), D. McParland, dated January 31, That decision concluded that the worker was entitled to Loss of Earnings (LOE) benefits for the period from February 27, 2001 to May 18, He was not entitled, however, to LOE benefits for the periods from July 27, 1999 to February 27, 2001, and from May 18, 2001 to age 65, on the basis that the employer had suitable work available which was within the worker s low back and right knee restrictions. (ii) Background History of Accident  The worker is now 70 years old. He turned 65 in December, On March 19, 1999, when he was 61 years old, he was working as a glazier, lead hand, for a window company when he suffered injuries to his shoulder, back, hip, knee and ankle. He was turning a buggy loaded with sealed glass units when the front unit began to fall. He reached over to stop the unit from falling when a second glass unit fell over, hitting him on the shoulder, back, hip, knee and ankle. He went down on his hands and knees. The unit which struck the worker was approximately 114 inches by 55 inches, and weighed between 200 and 225 pounds according to the Form 6 Worker s Report of Injury/Disease. The worker had worked for the employer since Injuries  The worker was assessed at a Regional Evaluation Centre (REC) in July, The REC report of July 30, 1999, showed a diagnosis of lumbar contusion/strain, underlying spondylolisthesis L5 on S1 and pre-existing right knee osteoarthritis. An MRI of the right knee on August 1, 2000, showed a complex tear posterior horn of medial meniscus with associated displaced fragment of meniscus and a ACL tear which was complete. There were degenerative changes elsewhere. The worker underwent arthroscopic surgery of the right knee on February 27, NEL  The Board awarded the worker a Non-Economic Loss (NEL) benefit of 36% for the back and knee injury on July 10, The Board granted the employer 75% Second Injury Enhancement Fund (SIEF) relief on account of the worker s pre-existing back and knee conditions. Non-compensable conditions  In June, 1999, the worker s family doctor, Dr. Chan, referred the worker to a cardiologist for angina pectoris. The worker underwent successful triple bypass surgery on October 8, 1999.
3 Page: 2 Decision No. 376/08 CPP  The worker did not return to work after the workplace accident of March 19, He applied for Canada Pension Plan (CPP) disability benefits in November, 2000, and CPP accepted his application. The medical report which accompanied the application for CPP disability benefits listed the lower back and knee injury as the impairments which prevented the worker from working. LOE Benefits  The employer offered the worker modified work immediately after the accident. The worker declined, indicating that he was unable to drive. The Board initially accepted the worker s claim for health care benefits only.  Board Medical Consultant, Dr. Bishop, reviewed the worker s medical information in Board Memo #17, dated October 28, He indicated that entitlement for a permanent impairment (PI) of the low back could be accepted as a symptomatic aggravation of the underlying spondylolisthesis. Standard back restrictions would apply. A PI for symptomatic aggravation of underlying arthritis in the right knee could also be accepted. Standard lower extremity limitations would be appropriate as a guideline.  The CA, following the review by Dr. Bishop, advised the worker that he could pay LOE benefits from the date of the accident until July 27, 1999, the date of the REC report. The REC report clarified the worker s level of impairment at that time. He was partially and not totally impaired from working. The CA confirmed this decision in a letter to the employer dated February 21, Appeal to ARO  The worker appealed the decision of the CA which denied LOE benefits subsequent to July 27, 1999, to the ARO, and claimed LOE benefits from July 27, 1999, until age 65. The worker turned 65 years old in December, The ARO, in the decision of January 31, 2006, allowed entitlement for the knee surgery of February 27, 2001, and concluded that the worker was entitled to LOE benefits during the recovery period from February 27, 2001, until May 18, The ARO otherwise upheld the decision of the CA with respect to LOE benefits on the basis that the worker was partially impaired with restrictions, and had refused suitable modified work at no wage loss.  The worker now appeals to the Tribunal. (iii) Issue  The issue on this appeal is whether or not the worker is entitled to LOE benefits for the periods from July 27, 1999 to February 27, 2001; and from May 18, 2001 to age 65 (December, 2002). The Board denied LOE benefits during these periods of time on the basis that the worker had refused suitable work offered at no wage loss.  Since the worker was injured on March 19, 1999, the Workplace Safety and Insurance Act, 1997 (the Act) applies.
4 Page: 3 Decision No. 376/08 (iv) Decision  I have concluded that the worker is not entitled to LOE benefits for the periods from July 27, 1999 to February 27, 2001; and from May 18, 2001 to age 65 (December, 2002). (v) Analysis Applicable Law and Policy  Section 43(1) of the Act provides that a worker who has a loss of earnings as a result of the injury is entitled to payments under this section.  Section 43(2) provides that the LOE benefit payable is an amount equal to 85% of the difference between the worker s net pre-injury earning and the net earnings that worker earns or is able to earn in suitable employment after the injury. The phrase is able to earn imports a concept of deemed ability to earn. If a worker is in fact not working after the injury, but is able to earn money in suitable employment, LOE benefits are based on what it is estimated the worker can earn in suitable employment.  Board OPM Document No defines suitable employment as any work that the worker has the necessary skills to perform, or the worker is able to acquire the necessary skills to perform, and does not pose a health or safety risk to the worker or co-workers.  Section 40 of the Act sets out the obligations of the workplace parties to co-operate in the early and safe return to work of the worker. These obligations include the obligation of the employer to provide suitable employment that is available and consistent with the worker s functional abilities; and the obligation of the worker to assist the employer to identify suitable employment that is available and consistent with the worker s functional abilities.  Board OPM Document No which deals with the goal of early and safe return to work (ESRTW) and the roles of the parties defines available work as work which exists with the accident employer at the pre-injury worksite, or a comparable worksite arranged by the employer. Modified Work  The employer offered the worker modified work immediately following the workplace accident. The worker s evidence was that he was familiar with the modified work offered, and that he could have performed the modified work. The work itself was within his functional capacity. He was unable, however, because of his injuries to travel from his home to his workplace.  The employer wrote to the worker as late as October 11, 2000, advising that modified work continued to be available to him. Medical Evidence  The worker s family doctor, Dr. Chan, referred the worker to a specialist, Dr. Pflug, with respect to his workplace injuries following the accident. Initially Dr. Pflug reported that the worker was unable to do any modified work. He then wrote to the employer on May 26, 1999,
5 Page: 4 Decision No. 376/08 after receiving specifications with respect to the weights involved in the modified work, that he had no objection to the worker returning to modified work for two hours per day for two weeks, four hours a day for two weeks and six hours a day for two weeks and full time modified work for two weeks. After eight weeks further progression would depend on the findings on a CT scan and on clinical findings.  Dr. Pflug wrote to Dr. Chan, however, on June 24, 1999, advising that he had given in to the employer s urging when he wrote the letter of May 26, He indicated to Dr. Chan that the worker was unable to drive to work.  Earlier in the report of June 24, 1999, Dr. Pflug had indicated that the worker could not drive for any distance and that his daughter had driven him to the appointment with Dr. Pflug. Dr. Pflug stated that the worker found himself weak, at times staggering, and had had a fall injuring his right leg. Dr. Pflug did not specify a reason for the worker feeling weak. In the same report he noted that Dr. Chan had in the meantime referred the worker to Dr. Gupta for angina pectoris. The worker was booked for an arteriogram. The worker also had diabetes and diabetic mild mixed motor sensory polyneuropathy.  The worker had a triple bypass in October, 1999 which was successful. While the evidence shows that the worker s heart condition did not prevent him from working following recovery from his bypass surgery, it is nevertheless reasonable to infer from the evidence that the worker s angina, investigations with respect to his heart condition, and the upcoming bypass surgery were primary reasons that the worker did not work between June, 1999 and late October or November, There is no evidence or suggestion that the worker s heart condition was related to the workplace injury.  A report from the Scarborough Pain Clinic dated November 1, 1999, indicated that the worker s angina pain was gone following the bypass surgery, but that his low back pain had basically gone back to square one. The report noted that the worker s knee was better.  Dr. Pflug, in a report dated November 12, 1999, indicated a diagnosis with respect to the back and with respect to coronary disease which was improved. He did not mention the right knee. He was doubtful that the worker would be able to return to his pre-accident job or any job involving repetitive lifting and bending. He felt that the worker should be considered for future economic loss and non-economic loss settlement.  The only restrictions mentioned in Dr. Pflug s letter of November 12, 1999, were repetitive bending and lifting. The modified work offered by the employer did not involve repetitive bending and lifting.  In a report dated February 9, 2000, Dr. Pflug thought it unlikely that the worker would get back to work. He felt that the worker s disability was severe and prolonged.  Dr. Chan referred the worker to Dr. Wong with respect to his back. Dr. Wong, in his report of March 14, 2000, indicated that he had reviewed the report from the REC centre and felt that from his findings, the worker s condition had deteriorated from that described in the REC report. Nevertheless, he did not suggest that the worker was totally disabled. The worker would
6 Page: 5 Decision No. 376/08 not be able to do activities that required prolonged sitting of more than 15 minutes at a time as well as any repetitive bending, pushing and pulling.  In a report of May 18, 2000, Dr. Wong also indicated work restrictions with respect to the back injury rather than total disability. In this report, he also indicated that the nature of the worker s injury was that a heavy object dropped on to his dorsal spine area caused a fracture which had now healed. There is no evidence in any other medical report in the Case Record that the worker had a fracture to his spine and it is not clear what Dr. Wong means by this.  Dr. Wong referred the worker for the MRI of the right knee which detected the tears in the right knee described earlier. In his report of August 21, 2000, following the MRI, Dr. Wong indicated that the complex right knee injury would disable the worker in terms of prolonged standing and walking.  Dr. Wong, in a report dated June 24, 2004, indicated that the worker could have done some kind of work 12 weeks after his bypass surgery. He suggested sitting and standing limitations as well as no heavy pulling, pushing and lifting. He sent a clarifying letter to the worker s representative dated August 12, 2006 in which he indicated that return to work for a person with his multiple injuries is of course dependent on his general conditioning as well as the availability of the work. The worker s condition would have to have been monitored.  I am satisfied that the worker was partially impaired and not totally impaired from working as a result of his workplaces injuries of March, I am also satisfied, as acknowledged by the worker, that the modified work offered by the employer would have been suitable for the worker s restrictions. The worker did not try the work but his evidence was that as a lead hand, he was familiar with the work. The worker s position is that his injuries did not prevent him from doing the modified work. They prevented him from travelling to work. Travel  Board OPM Document No , as indicated above, defines available work as work which exists with the accident employer at the pre-injury worksite, or a comparable worksite arranged by the employer.  The modified work offered by the employer was located at the worker s pre-injury worksite. The work was therefore available.  The worker s evidence was that his work was a 40 to 45 minute drive from his home, 50 or 60 minutes in rush hour.  Dr. Pflug, in his report of June 24, 1999, suggested that the worker could not drive any distance and that his daughter had driven him to the appointment. He did not suggest that the worker could not sit in a car for any length of time.  None of the other medical reports in the Case Record mention restrictions on driving specifically. A Functional Abilities Form dated May 19, 1999, completed by Dr. Chan, indicated that the worker was limited in operating motorized equipment but gave no reason for this limitation. A Form 26 progress report dated May 11, 1999, completed by Dr. Chan, specifically
7 Page: 6 Decision No. 376/08 indicated that there were no medical restrictions which prevented the worker from operating a motor vehicle. This Form 26 also indicated that the worker could use public transport. There is no evidence that any of the worker s doctors wrote to the Ministry of Transportation advising that the worker s driver s licence should be removed because of his medical condition.  The only other restrictions mentioned in the medical reports which could be interpreted as driving restrictions, are restrictions against prolonged sitting. Whether the worker was driving himself to work, or being driven to work by someone else, he could have accommodated his prolonged sitting limitation by exiting the highway to stretch. The worker did not consider using an available toll road route which might have shortened the journey to work.  The worker gave evidence that he did not think that anyone from his work lived near him or east of him who could have given him a lift to work but he did not contact his work to see if there was someone with whom he could car pool.  A supervisor who lived east of him had given him a lift to attend a medical examination arranged by his employer at a doctor s office close to the work place. The supervisor had stopped the car periodically to permit the worker to stretch. The worker did not ask if this supervisor could give him a lift to work on a regular basis. He did not have the supervisor s phone number, but he did not ask his employer for the number.  The worker had his relatives drive him to doctor s appointments but he made no effort to see if someone could drive him to work.  The worker acknowledged at the hearing that the work offered by the employer was suitable, and also sustainable in that it was work which needed to be done on a regular basis. His reason for not accepting the work was that he could not drive. The fact is, however, that while he mentioned driving, he also presented himself as being totally disabled.  The REC report of July, 1999 indicated that the worker stated his opinion that he remained unfit for his usual work and that he was experiencing too much pain to consider other employment. At the time the worker may very well have been incapacitated at that time by his as yet untreated heart condition. When the worker applied for a CPP disability pension in 2000, presumably it was also on the basis that he was disabled from doing any kind of work.  The employer offered the worker suitable modified work which was available at his pre-injury worksite. It would likely have been more difficult for the worker to travel there after his injury than before it, but there were no restrictions on his driving as a result of the workplace injuries other than sitting tolerance and he could have accommodated this with rest periods, either as a driver or as a passenger. He did not make any effort to find an alternate method of getting to work if he felt that he could not drive himself. In my view, it is not enough for the worker to simply tell his employer that he cannot drive and expect his employer to come up with a solution. In these circumstances, where the employer offered suitable work at the pre-injury worksite work travel to and from the pre-injury workplace remained the primary responsibility of the worker, especially over a more than three year period between the date of the accident and the worker s retirement.
8 Page: 7 Decision No. 376/08 Conclusion  I find that the employer provided suitable modified work at no wage loss to the worker. This work was available at the pre-injury worksite. The worker s injuries might have made it more difficult for him to travel to work but they did not prevent him from travelling to work. The worker could have sought methods of travel to work which accommodated his difficulties and did not make any effort to do so. Had the worker accepted the work offered by the employer during the time periods in question, he would not have suffered a wage loss. The worker is therefore not entitled to any further LOE benefits.
9 Page: 8 Decision No. 376/08 DISPOSITION  The appeal is dismissed.  The worker is not entitled to LOE benefits for the periods from July 27, 1999 to February 27, 2001; and from May 18, 2001 to age 65 (December, 2002). DATED: June 9, 2008 SIGNED: A. Morris