FD: ACN=1004 ACC=R FD: DT:D DN: 609/87 STY:PANEL: Thomas; Robillard; Jago DDATE:23/07/87 ACT: 40(3) [old 41(2)], 40(2)(b) [old 41(1)(b)] KEYW:

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1 FD: ACN=1004 ACC=R FD: DT:D DN: 609/87 STY:PANEL: Thomas; Robillard; Jago DDATE:23/07/87 ACT: 40(3) [old 41(2)], 40(2)(b) [old 41(1)(b)] KEYW: Temporary partial disability (level of benefits); Availability for employment (considering self totally disabled); Degree of earnings impairment; Sewing machine operator. SUM: The worker appealed and the employer cross-appealed from a decision of the Hearings Officer reducing benefits to the 50% level from March 1985 until April 1987 when the worker was awarded a 15% provisional pension. The worker was a sewing machine operator who injured her shoulder, neck and back while picking up a bundle of clothing in April Benefits were reduced in March 1985 when the Board determined that the worker was partially disabled but the worker claimed to be totally disabled. The worker began a job search in March 1987 after learning that she would be getting only the 15% pension. Considering the medical reports and the worker's evidence of her condition throughout the period, the Tribunal found that the worker's condition was essentially unchanged from March 1985 when she claimed to be totally disabled to March 1987 when she was capable fo conducting a job search. Even if the Vocational Rehabilitation Division did not become involved, it would have been reasonable for the worker to undertake a job search. The Tribunal agreed with Decision No. 2 that it was impractical to set individual levels of temporary partial disability. The Tribunal was not prepared to interfere with the long-standing Board policy and interpretation of the Act of reducing benefits to 50%. Further, it would be wrong to assume that the pension assessment level based on "impairment of earning capacity" reflected the "degree of earnings impairment" for reduction of benefits under old s.41(2). The appeal and cross-appeal were denied. PDCON: TYPE:A; S DIST:S WCAT DECISIONS CONSIDERED: 2, IDATE: HDATE:28/05/87 TCO:B. Arnott KEYPER:J. Ragusa; J. Cordiano; T. Carroll XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 609/87 This appeal was heard on May 28, 1987, by: J. Thomas : Panel Chairman, W.D. Jago : Tribunal Member representative of employers, M. Robillard: Tribunal Member representative of workers. THE APPEAL PROCEEDINGS The worker appeals the April 17, 1986, decision of the Workers' Compensation Board's Hearings Officer, M.C. Turner. The employer crossappeals. The worker attended the hearing and was represented by J. Ragusa, constituency assistant to J. Cordiano, MPP. The employer was represented by T. Carroll of the Office of the Employer Adviser. The Panel was assisted at the outset of the hearing by B. Arnott of the Tribunal Counsel Office. THE EVIDENCE The worker gave oral evidence under oath through an Italian interpreter. The Case Description was marked as Exhibit #1. Three addenda to the Case Description were marked as Exhibits #2, #3 and #4. THE NATURE OF THE CASE The Hearings Officer concluded that after March 1, 1985, the worker was partially, and not totally disabled. The Hearings Officer confirmed entitlement to 50% benefits after March 1, The worker contends that she was totally disabled after March 1, 1985, and, accordingly, should be entitled to full benefits after that date. The employer does not dispute that the worker was at least partially disabled after March 1, 1985, but contends that benefits should have been set at a level less than 50%, given the nature and degree of the worker's disability. The worker was awarded a 15% provisional pension, effective April The representatives agreed that this appeal does not cover the time period after the pension award. THE PANEL S REASON (i) Background On April 17, 1984, the worker injured her left shoulder, neck, and back while picking up a bundle of clothing. At the time of her accident, she was employed as a sewing machine operator. Entitlement to temporary total disability benefits was established.

3 2 The worker has not returned to work since her accident, with the exception of a period of approximately two hours on September 17, 1984, when she unsuccessfully attempted to return to work at the accident employer. The worker was admitted to the Board's hospital between October 26, and November 21, The worker was discharged "as being fit for employment permanently modified to restrict repetitive trunk movement, heavy lifting and prolonged weight bearing." Psychiatric entitlement was later denied. On the basis of information obtained from the worker, through her daughter, in February 1985, the Rehabilitation Division concluded that the worker was of the view that she was not capable of performing even light duties. As a result, the worker's benefits were reduced to the 50% level effective March 1, They have remained at this level since March 1, 1985, until the 15% pension award in April (ii) The worker's description of her condition After March 1985, the worker told the Panel that she continued to see her family doctor on a regular basis and, in addition, continued to carry out an active physiotherapy program. She has been receiving physiotherapy treatments on a daily basis. She continues to take pain medication. The worker told the Panel that she has been looking for work for the past month and a half. Her job search activities commenced in March 1987 after she learned that her benefits were being reduced from 50% to 15%. Apparently, she was contacted at that time by the Rehabilitation Division and she indicated that she was prepared to look for employment. She said that over the past month she has contacted about 20 companies in an attempt to find light work. Presently she is looking for work every day. She indicated that although she was not certain that she could do light work, she felt that she would probably be able to work at a job that allowed her to vary her position. She indicated to the Panel that her back is extremely painful if she is required to stand or sit for extended periods of time. Six months ago, the worker was seen by Dr. Charendoff, an orthopaedic surgeon. In a report dated January 7, 1987, Dr. Charendoff described the worker's complaints as follows: [the worker] was seen in consultation December 23, She states that her lower back is worse in the last year and this occurred spontaneously. She experiences pain in the right side and small of her back. She also experiences pain in the left side of her neck, left suprascapular region radiating down the left upper extremity once in a while to involve her fingers. When asked about changes in her back condition over the past six months, the worker indicated that her condition is essentially unchanged. Six months ago, the worker described a pain condition that appears to have deteriorated over the past year. However, now she says that condition is no different than her present condition. Yet she says her present condition permits her to look

4 3 for modified employment. In our view, the worker's testimony, combined with her description of complaints to Dr. Charendoff, leads to the conclusion that, during the period in question, the worker was capable of looking for and doing modified employment. (iii) The medical reports The medical reports are mixed on this issue. The worker's family doctor, Dr. Rose, and her chiropractor provided a number of progress reports indicating that the worker was incapable of doing usual or modified employment. As previously indicated, the Workers' Compensation Board reached a different conclusion during her admission to their hospital in October and November They felt that she was capable of modified employment. The worker was referred to Dr. Charendoff in March At that time, Dr. Charendoff noted that the lumbar spine movements were restricted to 50% of normal with discomfort. Slight tenderness was noted. A CAT scan was performed in June 1985, and apparently disclosed a small herniated disc. A consultation report prepared by Dr. Bold, at Humber Memorial Hospital, in October 1985, describes "some legitimate cervical and lumbar muscle spasm, but she has an enormous emotional overlay here." The worker was examined on March 17, 1986, by Dr. R. Babyn, at the request of the accident employer. Dr. Babyn was unable to "demonstrate any organic abnormality to justify her total disability and to support her complaints." The worker was seen by Dr. M. West, an orthopaedic surgeon, who, in a report dated May 15, 1986, noted a marked restriction in the worker's range of motion of her lumbar spine. Dr. West confirmed that the worker "clinically does appear to be in a considerable amount of discomfort and I feel it is very difficult for her to be involved in the kind of work that she previously was doing." More recently, the worker was assessed by Dr. D.Y. Sutherland, of the Workers' Compensation Board, who recommended a provisional pension award of 15% for her disability. The worker's family doctor and chiropractor have not provided reports that explain their reasons for stating that the worker was unable to work in 1985 and The other medical reports which contain more detailed information about the worker's range of motion do not conclude that the worker is totally disabled. In our view, the worker's description of her condition over the past two years and the medical reports lead us to conclude that after March 1, 1985, the worker was partially and not totally disabled. (iv) The level of benefits The circumstances in which a partially disabled worker is entitled to full benefits are set out in section 41(1)(b) of the pre-april 1985 Workers'

5 4 Compensation Act. 1 A partially disabled worker is entitled to full benefits unless the worker fails to accept suitable available work or fails to cooperate in or be available for a medical or vocational rehabilitation program aimed at getting the worker back to work. There is no evidence in this case that the worker was offered suitable modified employment. The issue is whether she failed to comply with the rehabilitation requirement. Previous decisions of this Tribunal have discussed the underlying purpose and rationale of section 41(1)(b). For example, in Decision No. 59, the Panel stated at page 3: It appears to this Panel that the purpose of section 41(1)(b) is to provide a mechanism for the payment of full benefits to partially disabled workers in order to encourage them and to provide financial support as they are rehabilitated into the work force again. Provided they are making serious and sincere efforts to return to the work force, the Act provides for the payment of full benefits so as not to discourage workers during their rehabilitation process. That Panel went on to conclude that in most cases, a worker will be expected to perform a reasonable job search as part of the rehabilitation program. In this case, was it reasonable to have expected the worker to conduct a job search in 1985 and 1986? On the one hand, the worker's contention that she was totally disabled appears to have been supported by her family doctor and chiropractor. It is difficult to conclude from their reports whether they were actively encouraging the worker in this regard or whether they were simply reporting the worker's description of complaints. What concerns this Panel is the fact that the worker says that her condition has remained essentially unchanged over the past two years and she is now able to conduct a job search. The commencement of job search activities was not precipitated by an improvement in her condition. It did not come as a result of receiving advice from her doctor that she could now look for work. It happened when her benefits were reduced from 50% to 15%. We agree with the worker's representative that there is some confusion surrounding the communication between the Vocational Rehabilitation Division and the worker in early However, in our view, the fact that the worker's condition has remained essentially unchanged over the past two years and she is now able to look for work supports a conclusion that the worker probably was capable of looking for work over the past two years. Even if the Vocational Rehabilitation Division did not become actively involved with this worker, we think it would have been reasonable for the worker to undertake a job search. As a result, we conclude that she was disqualified from receiving full benefits under section 41(1)(b). 1 See Appendix

6 5 The employer argues that the level of benefits should be less than 50%. The employer's representative points to the fact that the worker was assessed for a 15% permanent disability pension earlier this year. In Mr. Carroll's submission, if the worker's condition has remained essentially unchanged over the past two years, the degree of her earnings impairment has never been more than 15%. In Mr. Carroll's submission, section 41(2) requires the Board to set a level of compensation that is proportionate to the degree of earnings impairment resulting from the accident. The impairment of this worker's earnings capacity has been set at 15%. In Decision No. 2, the Hearing Panel discussed the reasons for the Board's policy of awarding benefits at the 50% level. At page 18 the Panel stated: The Board's reasons for not making an individual determination as to what amount would in fact be proportionate to the degree of earnings impairment in each case, are practical and sensible. The problem is that it is in the nature of temporary partial disabilities that the degree of earnings impairment is not constant. It changes daily as the temporary partial disability moves through the healing process from a point at which the degree of disability is high to the point where it may eventually disappear altogether. A determination of the degree of earnings impairment at one point of time will not continue to fairly reflect the actual situation throughout the period of entitlement. In exercising its authority under section 40(3) to "determine" the amount proportionate to the degree of earnings impairment, the Board has adopted a determination policy which resolves the impracticality of making an actual, one time determination which would fairly reflect a non-static situation. It has resorted to a common average figure which it is satisfied is likely to be at least fairly reflective of the average experience in the majority of cases. In effect, the Board has interpreted the words "proportionate to the degree of earnings impairment" to be an average level of impairment for all partially disabled workers and has set that average at 50%. There are, no doubt, a number of other ways to interpret that phrase. However, as was noted at page 13 of Decision No. 915: With regard to interpretation issues, the principle that the Board's position not be interfered with except for substantial reason presumably would mean that in situations where the wording of the statute is, in fact, ambiguous, the fact that the Board had previously applied one of the possible interpretations to a large number of cases would be a proper consideration for the Appeals Tribunal to take into account in making its own decision as to the interpretation that should apply. In such circumstances,

7 6 the Appeals Tribunal's adoption of a different interpretation ought not to turn merely on a particular panel's professional opinion as to the relative elegance of two arguments. It ought to reflect that Panel's conviction that the reasons for adopting the other interpretation are substantial. We agree with the Decision No. 2 Panel that the impracticality of setting individual levels of temporary partial disability has driven the Board to use a more convenient interpretation. To adopt Mr. Carroll's submission would make it necessary for the Board to undertake individual assessments of partially disabled workers. We would be altering a long-standing interpretation of a section of the Act that the Board has applied in thousands of cases. We agree with the Decision No. 2 Panel that the Board's policy is a practical and sensible one. We are not prepared to interfere with it in this case. In addition, it would be wrong, in our opinion, to conclude that the pension assessment level necessarily reflects the degree of earnings impairment. The pension level represents the impairment of earnings capacity. It is estimated from the nature and degree of the injury, usually by reference to a rating schedule. On the submissions before us, we are not prepared to accept that the degree of earnings impairment contemplated by section 41(2) can be determined from a pension assessment which is based on the impairment of earnings capacity. THE DECISION The appeal and cross-appeal are denied. DATED at Toronto, this 23rd day of July, SIGNED: J. Thomas, W.D. Jago, M. Robillard.

8 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 609/87 APPENDIX 41(1) Where temporary partial disability results from the injury, the compensation shall be,... (b) where the worker does not return to work, a weekly payment in the same amount as would be payable if he were temporarily totally disabled, unless he, (i) fails to co-operate in or is not available for a medical or vocational rehabilitation program which would, in the Board's opinion, aid in getting him back to work and in lessening or removing any handicap resulting from his injuries, or (ii) fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable for his capabilities.