SUMMARY DECISION NO. 143/97 Suitable employment. The worker slipped and fell in January 1992, injuring her low back and hip. She was awarded a 28% NEL award for her low back condition. The worker appealed a decision of the Hearings Officer denying temporary benefits after September 1993. On the evidence, modified work offered to the worker in September 1993 was not suitable. The worker was not entitled to further temporary benefits but was entitled to reassessment of her FEL award. The appeal was allowed in part. [6 pages] PANEL: Flanagan; Anderson; Apsey DATE: 15/07/97
WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 143/97 [1] This appeal was heard in Toronto on February 10, 1997, by a Tribunal Panel consisting of: W.F. Flanagan: Vice-Chair, R.H. Apsey : Member representative of employers, J. Anderson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker is appealing a decision of Hearings Officer dated November 10, 1995. That decision concluded that the worker was not entitled to further temporary benefits beyond September 20, 1993. [3] The worker appeared and was represented by C. Topple. The employer was notified of the hearing but did not participate. THE EVIDENCE [4] The Panel considered the Case Description (Exhibit #1) and Addendum #1 to the Case Description (Exhibit #2). The Panel also heard oral evidence from the worker. THE NATURE OF THE CASE [5] The worker sustained an accident at work on January 27, 1992, when she slipped and fell, striking her right wrist and hip on the floor. She continued working and sought medical attention on March 6, 1992, when she was diagnosed with a lumbar sacral strain with right sciatica. She continued working and attended physiotherapy, until June 8, 1992, when she laid off work due to her ongoing condition. The worker was granted a 28% NEL award on April 7, 1993, for her low back condition. She attempted a return to modified work on June 21, 1993. She laid off work on September 14, 1993, claiming that she was no longer able to work due to her condition. Her benefits were closed on September 20, 1993, on the basis that in the Board s view, the worker was not totally disabled and was able to return to the modified work available to her. [6] The worker is seeking entitlement to: (a) temporary total disability benefits subsequent to September 20, 1993; (b) a FEL assessment on the basis that suitable, modified work was not available to the worker; and (c) entitlement to ongoing vocational rehabilitation assistance. The issues for the Panel to determine are: (a) whether the worker was temporarily totally disabled subsequent to September 20, 1993, such as to entitle her to temporary total disability benefits pursuant to section 37(1) of the Workers Compensation Act; (b) whether the modified work available to the worker was unsuitable, such as to entitle the worker to a FEL award pursuant to section 43 of the Act; and (c) whether the worker is entitled to ongoing vocational rehabilitation assistance.
Page: 2 Decision No. 143/97 THE PANEL S REASONS (i) The worker s testimony [7] The worker, 57 years old, testified that she worked with the accident employer for 14 or 15 years. She did a variety of jobs with the accident employer. She started out sewing materials for furniture, and later worked filling the back of sofas. She was employed full-time. She also worked making buttons for sofas and chairs. Much of the work was piece work. She described the buttons job. There would be a box full of material out of which the buttons would be made. She would find the correct size of button for the job, and noted that a typical sofa required 30-40 buttons. She would use a machine to cut the material, and then the button machine to attach the correct material to each of the buttons. She was doing this job prior to her injury on January 27, 1992, and she could perform the job without any difficulty. She was doing the buttons job for three hours a day, and piece work for five hours a day. [8] The worker denied having any problems with her back prior to her accident on January 27, 1992. The worker described her accident. She was moving a large dolly on wheels when she fell injuring her right wrist and hip. She went to the company nurse who gave her some Tylenol. She continued working until June 1992 when she was unable to continue working due to pain. During this time, she continued doing the buttons job for three hours a day and the piece work for five hours a day. After her lay-off from work, she received physiotherapy but it was not of much help. [9] In June 1993, the accident employer called her and told her she needed to return to work. Her doctor did not want her to return to work, but she wanted to try. The Board also told her she had to return to work or her benefits would cease. She started working two hours a day, and this was later increased to three and then four hours a day. She worked for two weeks at four hours a day and was then unable to continue, laying off work on September 14, 1993. She was asked to work on the button machine, doing the same job she had done on this machine before her accident. Initially, no modifications were made to the job, however her chair was eventually lowered. The worker stated that this did not help her. The material for the buttons was located on the floor in a large box about the height of a table top. The bundles of material would weigh about three to seven pounds. She would walk over to the box and get the material out of the box. She would pick up two or three bundles at a time to avoid too much bending. She would be required to bend into the box to pick up the material. She would be required to go to the box for more material about two or three times each hour. She was not offered any assistance with the job. She was required to push the material into the button machine and this caused lower back pain. She had to stand while operating the machine. She was not able to keep up with the required production and other workers would be waiting for her to finish. She found it very difficult to cut the material and to bend down to pick up the material. [10] The worker stated that she informed her caseworker that she had trouble with the job. No other possible modified work was discussed. Finally she was unable to continue and she told her doctor this. She stopped work and the accident employer did not contact her after that point. There were no further meeting with her caseworker to discuss any vocational rehabilitation. [11] Since that time, the worker stated that she has never returned to work. She has remained at home. She is now in receipt of a Canada Pension, and she had applied for this pension even prior to 2
Page: 3 Decision No. 143/97 returning to work in June 1993. However, the worker stated that she would like to return to suitable modified work within her restrictions, although she is not sure what it is she could do. Her doctor has not approved any return to work. [12] She described her current condition. She takes two or three Tylenol every day and is in constant pain. She has low back pain and headaches. (ii) Medical evidence in the worker s file [13] The worker suffered her accident on January 27, 1992, as indicated in the Employer s Report of Accidental Injury dated March 10, 1992. The Physician s First Report, dated June 8, 1992, completed by Dr. J. Barettara, family doctor, notes that the worker was first treated on March 6, 1992, with complaints of low back pain and was diagnosed with a lumbar sacral strain with right sciatica (disc protrusion). She was later diagnosed with right sciatic nerve irritation by Dr. D. Katz, physical medicine and rehabilitation specialist, in his report dated July 6, 1992. A CT scan performed on July 8, 1992, indicated changes at L4-5 consistent with a disc herniation on the right at this level. The worker continued to seek treatment, and returned to work with the accident employer in June 1993. [14] The worker laid off work on September 14, 1993, and has not returned to work since this date. A report by Dr. Barettara, dated September 14, 1993, indicates that the worker is experiencing increasing pain in back, right leg and right neck and has signs of a disc protrusion right side and worsening. Dr. Barettara states that he does not think she can be involved in a graduated work program nor do I think she will be able to tolerate her present job. [15] The worker was examined by Dr. P.C. Fang, orthopaedic surgeon. In his report dated September 30, 1993, he notes the worker s complaints of right sciatica pain and the results of the July 1992 CT scan indicating a herniated lumbar disc at L4-L5 level. He notes her return to modified work for three months and adds that her disability has been increasing. He concludes that the worker is not fit for work. [16] In his report dated December 20, 1993, Dr. Barettara notes that he saw the worker on September 14, 1993, with increasing pain in the right side of the neck and right leg, especially in the knees. At that time, he authorized her to remain off work. She was seen again on October 20, 1993, without much improvement in her condition. He adds that in his opinion the worker s medical condition deteriorated during the graduated work program. [17] The worker was reviewed for a FEL award by the Board. In a memorandum dated December 16, 1993, the FEL adjudicator reviewed the worker s file and concluded that the modified work at no wage loss offered to the worker was in keeping with her physical abilities. In a letter dated December 23, 1993, the worker was informed that the Board had denied her a FEL award on the grounds that suitable modified work at no wage loss was available to her. [18] In a report dated November 18, 1996, Dr. Fang notes the results of lumbosacral spine x-rays on October 22, 1996, which indicated some mild degenerative change, but the L4-5 lumbar disc space was normal. 3
Page: 4 Decision No. 143/97 (iii) The reasoning [19] The issues for the Panel to determine are: (a) whether the worker was temporarily totally disabled subsequent to September 20, 1993, such as to entitle her to temporary total disability benefits pursuant to section 37(1) of the Workers Compensation Act; (b) whether the modified work available to the worker was unsuitable, such as to entitle the worker to a FEL award pursuant to section 43 of the Act; and (c) whether the worker is entitled to ongoing vocational rehabilitation assistance. [20] Upon a careful review of the evidence, the Panel finds that the modified work available to the worker at the time of her lay-off in September 1993 was not suitable. Accordingly, the Panel finds that the worker is entitled to a FEL reassessment. Although the work was not suitable, the Panel does not find that the evidence indicates that the worker was temporarily totally disabled at this time, and accordingly denies temporary total disability benefits subsequent to September 20, 1993. Finally, as regards vocational rehabilitation assistance, the Panel finds that there are no grounds at this point in time to instruct the Board to extend further vocational rehabilitation assistance. [21] First, as regards the worker s entitlement to a FEL assessment, the Panel notes and accepts the medical opinions offered by the worker s treating physicians at the time of her lay-off in September 1993. Dr. Barettara s report, dated September 14, 1993, states that the worker is not able to tolerate her present job. Dr. Fang s report dated September 30, 1993, also notes that the worker is not fit for work. Dr. Barettara s report dated December 20, 1993, notes that the worker s medical condition deteriorated during the graduated work program. Although efforts were made by the accident employer to provide the worker with suitable modified work, the Panel finds that the medical evidence indicates that the worker was unable to perform the work offered by the accident employer. The Panel thus disagrees with the Board s rationale for denying the worker a FEL award and finds that the worker is entitled to a FEL reassessment. [22] Second, as regards the question of the worker s entitlement to temporary total disability benefits subsequent to September 20, 1993, the Panel finds that the medical evidence, although supporting a finding that the modified work was not suitable, is insufficient to find that the worker was temporarily totally disability subsequent to September 20, 1993. The Panel notes that Dr. Barettara s report dated September 14, 1993, indicates that the worker s condition was worsening, and Dr. Fang s report dated September 30, 1993, also states that the worker s disability has been increasing. Finally, Dr. Barettara s report dated December 20, 1993, notes that the worker s condition deteriorated during the graduated work program. However, the Panel also notes that there is no evidence that the worker sought any unusual medical treatment subsequent to September 20, 1993. The worker had already been assessed for a NEL award in April 1993, and was awarded a 28% NEL award. This indicates a very significant and permanent low back condition. There is no evidence that the worker suffered a specific recurrence while attempting the modified work in question. There is also no particular evidence that the worker s condition has in any way improved since her lay-off from work. Rather, it appears that the worker s condition has remained essentially consistent since the time of her lay-off, at a level consistent with her 28% NEL award. In short, the evidence indicates that the modified work was simply beyond the worker s physical restrictions, and she accordingly laid off work on September 14, 1993. The Panel finds that she did not lay-off work due to any particular worsening of her condition, 4
Page: 5 Decision No. 143/97 resulting in a temporary total disability. As a result, the Panel denies entitlement to temporary total disability benefits subsequent to September 20, 1993. [23] Finally, as regards the worker s entitlement to further vocational rehabilitation assistance, the Panel notes that the worker is now 57 years old, has not worked since September 1993, and continues to suffer from a significant and permanent low back condition. Although the Board may at some point determine that further vocational rehabilitation assistance is in order, the Panel does not find that there are any grounds at this point in time to extend further vocational rehabilitation assistance. THE DECISION [24] The appeal is allowed in part. The Panel finds that the worker is entitled to a FEL reassessment, based on the Panel s finding of fact that the modified work at no wage loss made available to the worker from June 1993 to September 1993 was not suitable. DATED: July 15, 1997 SIGNED: W.F. Flanagan, R.H. Apsey, J. Anderson 5