WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1818/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1818/08 BEFORE: M. M. Cohen : Vice-Chair E. Tracey : Member Representative of Employers R. J. Lebert : Member Representative of Workers HEARING: September 3, 2008 at Toronto Oral DATE OF DECISION: September 29, 2008 NEUTRAL CITATION: 2008 ONWSIAT 2575 DECISION UNDER APPEAL: WSIB ARO decision dated July 25, 2007 APPEARANCES: For the worker: For the employer: Interpreter: Marc Cianfarani, Paralegal Pat Occhicone Adina Carmosino 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. 1818/08 REASONS (i) Introduction [1] This is a worker appeal from a decision of Appeals Resolution Officer ( ARO ) M. Grunenko, dated July 25, 2007 denying the worker entitlement to full Loss of Earnings ( LOE ) benefits from February 13, 2004 to February 8, 2005 when the worker turned 65 years of age. (ii) Background [2] On June 6, 2003, the worker, a general labourer/assembler, born February 8, 1940, suffered an injury to his right middle finger. [3] The diagnosis was crush injury to the nail bed of the right middle finger. The x-ray showed a displaced fracture of the shaft of the distal phalanx. [4] Surgery was performed on June 11, 2003, by way of an open reduction and internal fixation, and the worker was cleared to return to modified duties on June 13, [5] The worker s recovery progressed smoothly and on September 12, 2003, the orthopaedic surgeon, Dr. C. Turley, stated that the worker can resume full activity. The worker returned to full duties on September 12, [6] On February 13, 2004, the worker was laid off as part of a downsizing move by the accident employer. [7] The worker was unable to locate new work. He claims that he continued to be accommodated by the employer until his layoff and that he could not get work because he did not return to his pre-accident state. [8] The ARO found that the worker was cleared to return to his regular work on September 12, 2003, that the worker sought no further medical attention through to February 13, 2004, that an ergonomist s report of June 2005 confirmed that the pre-accident job was suitable and that the worker had no concerns or problem with the job. The ARO also found no information to substantiate the worker s inability to secure the same type of job in the labour market. [9] The worker received a Non-Economic Loss ( NEL ) award of 8% for his residual impairment in September (iii) The issue [10] The issue is whether the worker could no longer work in his pre-accident job once he had been laid off in February (iv) The decision [11] The Panel finds that the worker was able to work in his pre-accident type of position following his layoff in February 2004.

3 Page: 2 Decision No. 1818/08 (v) The worker s evidence [12] The worker testified that he worked for the accident employer as a general helper/assembler for three years and that his duties consisted of assisting in shipping/receiving of materials, cutting and grinding of steel, picking up materials from the stock room, sweeping the floor, all being a variety of jobs in the nature of factory work. He said the job also involves some lifting. [13] He explained that the injury took place when he was lifting a pump from a table to a work place that weighed well over 50 pounds and required two people to lift. When the other end was dropped by a co-worker, the worker had to drop his end and suffered a crush injury to the nail bed of the right middle finger. He said he then went to a sink where he believes he passed out and recalls waking up in a van on the way to the hospital. On June 11, 2003, he had surgery by local anaesthetic and he returned to modified duties from June 13, 2003 until September 12, He explained that he is right hand dominant. [14] He stated that although he was cleared thereafter to resume his full duties, the accident employer continued to accommodate him and he had help lifting, an activity which he stated he had to perform several times per day. [15] He stated that there were three workers who usually worked together. [16] He claimed that he saw his family doctor every two to three weeks and was told to take Tylenol for his pain. [17] After he returned to work, he wore a protective glove or a single finger stall, the latter of which he kept in his pocket and used when he felt that he needed to do so. [18] He stated that his prior jobs were similar, being employed as general help involving moving parts, lifting and general labour. He said that after he was laid off, he looked for work. He stated he obtained work washing dishes at a restaurant, but found his finger not strong enough and lasted little more than an hour. [19] He explained that one of his jobs was to lift and cut steel and that one type of steel angle arm was 24 feet long and very heavy and that while he would use lifts or other mechanical devices, he needed help, notwithstanding that he was expected to move and cut the steel by himself. [20] He said he was concerned about loss of his job so he asked his orthopaedic physician to give him a note. The worker stated that he told Dr. Turley to write that he was fully recovered as he was afraid he was going to lose his job. [21] Prior to September 12, 2003, he was performing modified duties, such as putting things in a basket, mainly with his left hand. He agreed that he was never harassed or treated disrespectfully by the accident employer. His general supervisor, a man named Jim, took him to his hospital appointment on more than one occasion. At one point, according to the worker, Jim said you may have to go, never explaining what he meant, but the worker assumed that he was being threatened with loss of his job.

4 Page: 3 Decision No. 1818/08 [22] He said he still does not have full feeling in his finger. He summarized that he worked from September 12, 2003 to February 13, 2004 doing what he did before but would sometimes get help. [23] He agreed that he never complained to the Workplace Safety and Insurance Board (the Board ) that he could not do his regular duties before he was laid off in February 2004 nor did he complain to the Board thereafter until July 2004 when he claimed a recurrence of right hand injury due to the pain he had in his right hand. [24] After he was laid off in February 2004, he said he collected UIC benefits on the basis that he could work but had been unable to find work. (vi) Medical evidence [25] A Physician s First Report (Form 8) was provided by Dr. S. Gupta on June 6, the date of accident, and indicated that the worker had suffered a laceration of his right third digit and was referred for orthopaedic treatment. [26] The worker was treated by orthopaedic surgeon, Dr. C. Turley, who reported on the worker s progress as follows: June 9, worker suffered a crush injury to the nail bed of his right index finger and that on examination he has a denuded nail bed. X-rays showed a displaced fracture of the shaft of the distal phalanx with a four to five millimetre gap. The remedy was to perform an open reduction and internal fixation of the fracture under local anaesthesia with the patient having to have a k-wire in situ and a cylinder splint on the distal digit for a period longer than that. June 11, surgery was performed, worker advised to return to doing light duties on June 13, 2003, strictly with the use of his uninjured left hand. June 20, it would take two and a half weeks for the soft tissue of the nail bed to fully heal and that the k-wire would be in situ for six to seven weeks; he requires modified work duties, cannot lift or grip tightly or use tools or operate machinery; a note was given to the worker to this effect to provide to the employer. On July 4, the worker still cannot grip or lift at all with the right hand, and a note provided to this effect. The wire will need to stay in for a further four weeks. August 1, examination revealed the original denuding injury of the nail bed is now fully healed but the distal interphalangeal joint is still completely stiff; x-rays revealed that the fracture is perfect but a stable union has not yet been achieved and therefore the worker needs to wear his cylinder splint on the distal half of his finger; worker was fit for light work duties only and a note was provided to this effect. August 18, worker s right middle finger is fully healed and x-rays showed that the fracture was close to union. The worker still needs to wear the cylinder splint for about another two to three weeks; worker can flex the finger within a centimetre of the palm and his movement is progressing well. Once discontinuance of the cylinder, the worker would still need to work hard on grip strengthening and may be referred to physiotherapy. In the

5 Page: 4 Decision No. 1818/08 meantime, the worker can continue at his workplace doing modified work duties and cannot grip tightly or lift heavily with the right hand; a note was provided for the employer to this effect. September 12, Physician note stated that the worker can resume full activity. [27] The next medical information came from Dr. S. Sarai, the worker s family physician, dated July 14, 2004 indicating that the worker has a painful finger and that the injury is permanent. This note was provided to the employer who responded on July 22, 2004 stating that when [the worker] was laid off last February 13, 2004, he had resumed full-time activities since September 12/03 we are not aware of any recurrence of this claim. Dr. Sarai reported on July 30, 2004 that the worker has painful tip. He says he can t work. The doctor did not anticipate permanent restrictions. [28] On September 16, 2004, Medical Board Consultant Dr. M. Chain questioned whether the worker had undertaken physiotherapy (the worker stated in evidence that he attended a couple of physiotherapy sessions following Dr. Turley s consultations) and commented could still be a partial LOI, with the residual LD3 symptoms/signs with some rateable PI for NEL. [29] October 10, 2006, Dr. Chain, upon viewing Dr. Turley s notation that the worker had weakened grip strength and had residual dysesthesia at RD3 versus Dr. Sarai s Form 26 of July 30, 2004 indicating no permanent restrictions, opined that the worker would have restrictions to avoid heavy lifting with the right hand and to avoid forceful gripping/pinching activities, especially RD3. Also, if provided, the worker may wear thinsulate/or fingertip protection in RD3 if the hyperesthesia still exists despite the sensitizing therapy. (vii) Ergonomics report [30] An ergonomist visited the premises on June 10, 2005 with the worker present as well as Mr. Occhicone, a payroll administrator and the production foreman. The ergonomist described the job duties as cutting/grinding, positioning parts via helper or mechanical assistant, using a saw machine to cut square cuts as well as angle cuts, activate the saw machine and monitor the cut cycle and remove parts and repeat as required. A tow motor was used to move skids and forklift to elevate work. The worker also assists with material handling and assembly, fitting together bolts and flanges and tightening using wrenches and using nomadic and standard mechanics tools; installing small components, housekeeping and assisting with unloading trucks while using the forklift and may assist with preparing products for shipping. [31] The report stated that the worker expressed no concern regarding the suitability of his pre-accident work and while the worker had no restrictions per se, he obviously has some residual impairment. The report indicated that all work is bilateral in nature and is self-paced and of relatively short duration. [32] As to the heavy lifting, the report stated there is no lifting restriction per se. Unless prescribed this amount would be 10 pounds in the affected hand or 22 pounds in both hands bilaterally. Due to helper and mechanical assistance the restriction is not exceeded. [33] The ergonomist concluded:

6 Page: 5 Decision No. 1818/08 1. The pre-accident work is suitable; 2. The worker be permitted to stop and take discretionary rest breaks as required up to 15 minutes per hour as required; and 3. The injured worker will benefit from wearing a protective glove or a single finger stall. [34] In a letter dated January 13, 2005, the employer described the worker s pre-accident duties as follows: 1. Cutting and grinding of steel. The steel was setup by someone else for him to cut. 2. Assisted in the shipping and receiving of materials. 3. Operation of tow motor. 4. Picking up materials from the stock room and sweeping the floor assigned areas. Note: no heavy lifting was involved on tasks assigned to him the same duties that [the worker] was performing before the accident were assigned back to him upon return to normal work as per plant supervisor. (viii) Conclusion [35] Mr. Cianfarani submitted the worker s employability was impacted by his injury, and that combining his injury, his restriction and age, he was unlikely to get a job. He submitted that the NEL report of July 18, 2006 indicated that the worker cannot grip with his right hand, has loss of feeling in RD3, pain in right arm, low sensitivity, and morning sickness. This suggested that the repaired finger was not fine even though the doctor said he could resume full activity. He noted that the worker expressed some problems using his right hand in completing the activities of daily living analysis form. He referred to Dr. Chain s opinion of October 10, 2006 that the worker had permanent restrictions and, in particular, cannot do heavy lifting. [36] He noted that the worker testified that he attempted to work at a later job i.e. for one hour as a dishwasher and found it was not suitable. He submitted that the worker could no longer work as a general helper because of these limitations and could no longer do the pre-injury job when he was laid off. [37] Mr. Occhicone submitted that the medical evidence supports the position that the worker had recovered with sufficient ability to perform his regular job commencing September 12, The day after he returned to work, the worker seemed to be able to do whatever necessary lifting there was but that certainly there was mechanical assistance for his use. He expressed scepticism about the story that the worker could only last one hour as a dishwasher because he could not pick up a plate. He pointed out that the worker performed his regular duties for five months, that he did not seek any medical help for six months and that there is no evidence of a recurrence having to do with the pre-existing condition. The worker applied for and received regular UIC benefits and expressed no concerns to the ergonomist when his role was examined in June [38] Mr. Cianfarani responded that Dr. Turley s last medical note did not say he was cured and that the worker has since established a permanent impairment attributable to the work accident. He concluded that at age 64, with a permanent impairment and an 8% NEL award

7 Page: 6 Decision No. 1818/08 indicating restrictions and no experience at any other jobs, the worker would be entitled to ongoing LOE benefits. [39] The Panel relies upon the medical evidence and the lack of medical evidence in reviewing the history of this matter. Dr. Turley was reporting that the finger surgery was healing nicely, and on August 18, 2003 said that the worker needs to wear the cylinder splint for another two to three weeks, and then he needs to work hard on grip strengthening. The worker was cleared by Dr. Turley to resume full activity after seeing the worker in the outpatient plastic/hand clinic on September 12, In earlier reports, Dr. Turley said that he provided notes to the worker to give to the employer as to the performance of modified work duties. It is very unlikely that Dr. Turley would have provided a false report on the worker s ability to resume full work activity. [40] The worker then worked for five months and there is no medical information whatsoever to suggest he could not perform his regular duties. He said that he needed assistance sometimes. According to the worker s description, including the circumstances of the accident, it appears that if there was any heavy lifting involved, the worker would work in pairs or threes. It is also clearly apparent that the worker had available to him mechanical assistance if there was heavy lifting involved. The worker is now claiming in retrospect that he continued to be accommodated but there is no evidence, medical or from other witnesses, to confirm that he could not or did not perform his pre-accident work. [41] During the period in issue, February 2003 to February 2004, there are no medical reports that say he could not return to work. Even his family physician, Dr. Sarai, states he says he can t work but the physician does not say so himself, simply noting that the worker has a painful tip. [42] There is supporting evidence from the ergonomist that the pre-accident job was suitable, that it did not exceed heavy gripping restrictions, that the worker had no concerns or problems with the job and that the worker was able to wear, and did wear, the recommended finger protection as needed. [43] Given that the worker was cleared by Dr. Turley to return to regular work on September 12, 2003, that there is no confirming evidence of further medical attention sought from September 12, 2003 to February 13, 2004, that the worker voiced no concerns or complaints to the employer nor produced evidence from a physician that he was having difficulty doing his regular job for five months, we find these circumstances to be strong evidence that the worker continued to have the ability to perform his pre-accident type of work. The worker collected UIC benefits on the basis that he could work. The nature of the pre-injury job, as described by the ergonomist, is one in which an 8% NEL award would not appear to preclude, notwithstanding that the worker may not have been fully cured. [44] We accept that Dr. Turley was truthful in stating that the worker could resume his work activities. We conclude that the worker continued to have the ability to perform his pre-accident general labour/helper type work for the one year period following his layoff. The worker complained about a recurrence in July 2004 but there is no medical information to support such reoccurrence.

8 Page: 7 Decision No. 1818/08 [45] Based on all the foregoing evidence and circumstances, the Panel does not find support for the worker s claim for ongoing LOE until the date he turns 65.

9 Page: 8 Decision No. 1818/08 DISPOSITION [46] The appeal is denied. DATED: September 29, 2008 SIGNED: M. M. Cohen, E. Tracey, R. J. Lebert