WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2315/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2315/10 BEFORE: R. McCutcheon: Vice-Chair HEARING: November 22, 2010, at Hamilton Oral DATE OF DECISION: March 10, 2011 NEUTRAL CITATION: 2011 ONWSIAT 591 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) R. Sheridan dated June 29, 2009 APPEARANCES: For the worker: For the employer: Mr. A. Jones, Union Representative Mr. D. Doran, Ministry of Government Services 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. 2315/10 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals a decision of the ARO, which was rendered based upon the written record without an oral hearing. The decision under appeal concluded as follows: a) The worker was not entitled to a permanent impairment assessment for trigger finger affecting the left and right middle fingers and the right thumb under a claim with an accident date of June 28, 2000; and b) The worker was not entitled to a full FEL award from November 17, 1999, under a claim established with an accident date of July 26, [2] These are the issues in this appeal. (ii) Background [3] The now 70 year old worker started as a hairdresser with the accident employer, a psychiatric hospital, in [4] There are two workplace accident claims at issue in this appeal. In 1994, the worker reported an onset of right shoulder pain that she attributed to several issues with the set-up of her hairdressing station. The employer accommodated the worker with shorter shifts and modified duties. The worker received physiotherapy for her right shoulder condition. The ergonomic problems in the hairdressing station were eventually addressed and the worker returned to work at modified duties. The Board allowed this claim with an accident date of July 26, [5] It was eventually accepted that the worker had permanent precautions to avoid working above shoulder height, and no strenuous or repetitive work above the right shoulder. In February 2000, the worker was assessed a 10% NEL award for the right shoulder. [6] The worker worked on a graduated return to work program from September to November 17, On October 1, 1999, the worker advised the Claims Adjudicator that she was working four hours per day, but since she could not do hair, she was really not doing anything. As of November 17, 1999, she stopped working, on the advice of her family physician. [7] The WSIB determined that the worker was entitled only to a nominal FEL sustainability award, effective November 1, The WSIB based this decision upon the finding that the employer offered suitable work at no wage loss. This decision was communicated in a letter dated May 18, The worker objected to this decision in a letter dated June 7, [8] In subsequent FEL reviews, the worker s FEL sustainability benefit was confirmed as of November 1, 2001 and November 1, [9] The worker pursued objections to the FEL determinations. In December 2001, the ARO remitted the issue to the operating area, noting that there does not appear to be any confirmation of permanent light work having been identified. There were delays in the appeals process, and

3 Page: 2 Decision No. 2315/10 the decision under appeal was eventually rendered in June The worker objects to the ARO s decision and seeks a full FEL award as of November 19, She also seeks NEL assessments for her conditions of right middle trigger finger, left middle trigger finger, and right thumb trigger finger. [10] In the meantime, the WSIB also granted entitlement for bilateral carpal tunnel syndrome and right thumb trigger finger. The accident date was deemed to be June 28, 2000, the date of first treatment. The worker underwent carpal tunnel decompression on the right in June 2000 and on the left in July The WSIB also accepted entitlement for left and right middle trigger finger. Surgery was performed on the left middle trigger finger in November 2003 and on the right in June The WSIB accepted entitlement for the surgery, but found that the worker was not entitled to NEL assessments for the trigger finger conditions, finding that there was no permanent impairment. The worker was assessed for a 10% NEL award for bilateral carpal tunnel syndrome in June 2007 (the 10% award was reduced to 9% when combined with the NEL award for the right shoulder). (iii) Law and policy [11] The pre-1997 Workers Compensation Act applies to the worker s claim with an accident date of July 26, The Workplace Safety and Insurance Act, 1997 (the WSIA ) applies to the worker's claim with an accident date of June 28, The WSIA applies to this appeal. [12] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: (iv) #61 NEL Entitlement; #66 FEL Decisions as of January 1, 1998; #68 FEL Benefits as of July 1, 2007; #300 Decision Making/Benefit of Doubt/Merits and Justice. Summary of the worker s testimony [13] The worker confirmed that she began employment with the accident employer in 1989 and had worked as a hairdresser since she was 19 years of age. With the accident employer, her duties included everything that a beauty salon would do, including shampoo, hair cut, setting permanents, coloring, and manicures. She also did make-up application sometimes. She performed these services for clients who were residents of the psychiatric hospital. She did men s haircuts at times if the barber was not there, but mostly she did women s hair. She worked five days per week from 8:00 a.m. to 4:30 p.m. The salon was located within the hospital. [14] The employer hired another hairdresser the year the worker left, but before that, she worked by herself all the time. She sustained a shoulder injury in 1994 and went on a modified work program. In 1998, she worked half a day. She returned to full duties, and then went off again. She stopped working early in She went to her doctor and was off work for two to three months. She received physiotherapy. Her last day worked was in November 1999.

4 Page: 3 Decision No. 2315/10 [15] She attended a Regional Evaluation Centre (REC) on two occasions. They recommended exercises but she was not getting better. She returned to work through her employer, but they did not have any duties for her. [16] The worker was referred to a Modified Work Program Plan, dated September 29, That document indicates that the modified work assignment would include the following: 8:30 a.m. 12:30 p.m. - assist with various crafts with the Leisure Life Skills Instructor until modifications were completed within the hairdressing salon; Some manicures and organizing work for her beauty salon; Some haircuts on cooperative clients who can sit with the right arm height for the worker. [17] The worker testified that there was a meeting with the employer, and she was asked what she could do. She said that she would do anything except lift her arm. They had nothing for her. [18] She did some tidying in the craft shop for a period of time, at the suggestion of her boss, K.B. The employer was attempting to find a job for her. Work in the canteen was suggested, but this was ruled out because the worker could not reach high shelves. Working at the switchboard was also considered and ruled out. With reference to the modified work plan of September 29, 1999, the worker testified that she worked only in the mornings for a while. She went back to an eight-hour day, but there was nothing to do. The worker testified that she helped the Leisure Life Skills Instructor for a while, but it did not last long. She might help if a patient needed help, for example, with knitting and sewing. Five to ten patients might need help. The craft club was open from 8:30 am to 12:30 pm. It was not open in the afternoon. [19] With regard to the modifications to the hairdressing station, the employer suggested putting in a platform so she would not have to lift her arms. To the worker, this seemed silly. The platform was never built because it did not make sense. She only did one to two manicures per day. There was only so many she could do. She did some organizing after another hairdresser was hired. She supervised the new hairdresser, answered the phone, and checked supplies. She was not allowed to do hair. It would not take very long to help in the salon. She tried to do a few hair cuts for cooperative clients before September 1999, but her arm could not take it. She did not attempt this after September [20] There was a follow-up meeting in October The employer did not have anything for her to do. Craft assistant was not a job. She did not have the proper qualifications for a job as a recreational craft instructor. In September 1999, in the afternoons, she did clean-up in the craft room. The instructor had other projects. The clean-up would not take long. She might put wool and supplies away and put needles in order. It was all spotless. After cleaning up, there was nothing to do. She did not assist with crafts for long, perhaps three weeks. The Leisure Life Skills Instructor said she did not need the worker s assistance. The worker testified that she discussed this with her supervisor, K.B. The worker testified that she was good at crafts, but did not have qualifications as a recreationist, and was therefore not allowed to have a full-time job in this area.

5 Page: 4 Decision No. 2315/10 [21] The worker stopped working in November At that time, she was doing nothing, just walking the hallways. K.B. knew that she had nothing to do, but she could not find anything suitable. Every other possible alternative job involved lifting the arms. The worker testified that her arms were so bad that she could not even reach to fasten her seatbelt. Dr. Tuchon, her doctor, told her to stay home because her arm was just getting worse. K.B. said the employer had nothing for her to do. There were no other medical reasons for her to go off work. The employer has not contacted her since that time. She would love to work, but not just walking the hallways with nothing to do. [22] The worker was referred to a WSIB memorandum dated January 26, 2004, which indicated that the employer offered suitable work as a recreational craft instructor. The worker stated that the employer tried to give her work in this area, but she could not do this work because she was not certified. [23] The worker confirmed that she did claim sick benefits for November 18 to December 31, 1999 and January 1 to May 25, After that, she received long term benefits. [24] She moved to St. Thomas. She did speak to her claims adjudicator about moving. The worker told the claims adjudicator that she would go into work if they could find her a job. She would have loved to work. When her doctor put her off work, it affected her mentally and physically. She felt it was the best job ever. [25] She had surgery on both wrists. The worker felt that the left wrist carpal tunnel syndrome was coming back. Her right thumb is sometimes sore, but she tries to forget about it. Her left middle finger is stiff, sore, and hard to bend. Her right middle finger is the same. She does not have much strength in her hands. [26] In cross-questioning, the worker was referred to a Modified Work Program Plan dated November 6, That document noted that the worker had restrictions against above shoulder arm movements and heavy lifting. Attached to the modified work plan was a memorandum from the coordinator of clubs and program services, S.S. The worker confirmed that she did have discussions with S.S. and J.M., the employee health manager. The worker did not specifically recall a discussion about choosing activities within her comfort zone. They did review her restrictions. They called her doctor on one occasion. The worker recalled a discussion about what the patient volunteers could do, such as cutting and perms. At one point, there were four patient volunteers working at the salon. They could not cut hair, because they were not licensed. The memorandum referred to S., who was a hairdresser, not a volunteer. The worker would supervise the volunteers, sweep and shampoo. It was not up to the worker to hire S. The clubs and programs coordinator, S.S. was the worker s boss. S. ended up working in the worker s place. She was a hairdresser and was qualified to do what the worker could do. [27] At first, S. was only in just a few days a week. The four patient volunteers did shampoo, took rollers out, and helped clean up. The patient volunteers were there to keep them busy and feel good that they had a job. They created more work for her, but she did not mind. The number of clients per day varied. Every day, she did different floors, depending on how sick the patients were. There was no quota.

6 Page: 5 Decision No. 2315/10 [28] The worker described the idea of a platform in the salon as a joke. At one point they wanted to put the hairdresser s chair in a hole. It did not make sense. They described a complicated set-up. It did not make sense, so they did not do it. The worker stayed in her shop, which was spotless because she was not doing hair. [29] The set-up of the sink was changed in the 1990 s, after her first claim. The set-up of the sink area required repetitive reaching. The ergonomic changes really helped, but the damage was already done. [30] She was getting paid to do nothing. The Leisure Life Skills Instructor said she did not need her. She tidied up in the craft shop. When she was done, she had free time. No one suggested to her to receive training to become a recreationist. She helped with crafts because she could knit, crochet, and paint. She did crafts as long as she did not have to lift her arms or lift her elbow away from her body. She tried to decorate the Christmas tree, but it hurt. [31] The worker was referred again to the modified work plan dated September 29, 1999 and signed by the worker and K.B. The worker explained that K.B. replaced S.S. and supervised the whole group involved in clubs and recreation services. At that time, the goal was still to return to work at the salon. She did manicures sometimes during the day. There was not much to organize at the salon because she was not cutting hair. At that time, the new hairdresser was either part-time or casual. The worker s attention was drawn to the statement in the modified work plan that she would do some haircuts with cooperative clients. The worker said that she did not recall doing that after September 29, She did sign the modified work plan, but then she got to work and the things outlined in the report did not happen. [32] There was another meeting in October The worker was not involved in that meeting. She was told what to do after meetings. There were no quotas to meet. [33] In mid November, the worker stopped working because her right pain would not go down. The worker s physician told her she could never go back to work. She was not doing much at work. It was impossible not to lift her arm in her job duties. In 1999, she did not do a lot of haircuts. Just walking the halls did not help her condition. Her areas of pain include the back, shoulder blade and neck. She was in pain all the time. The doctor said that she would get worse if she kept working. [34] At the workplace, the patients did not understand that if the worker cut one person s hair, she could not do another. The only alternative was to just close the door and not go out. The clients were there and would come and ask her to do their hair. She told her supervisor that patients were coming in and asking her to do hair. If the worker was walking the halls, patients would ask questions. By November, the worker was not in the craft room anymore because the Life Skills supervisor had said that she did not need the worker s help. The worker did discuss this with K.B. [35] The worker testified that doing manicures did not worsen her arm condition, but some patients did not like their hands being touched, so it was not easy. Most patients were cooperative with haircuts, but some needed to be held down by three nurses. Over time, they learned to trust the worker when they got their hair done.

7 Page: 6 Decision No. 2315/10 [36] The employer's representative asked the worker why she did not report to the WSIB when she stopped working in November The worker testified that WSIB staff knew. K.B. had told her to apply for short term disability benefits. She did not recall a discussion with the Claims Adjudicator in November [37] The worker s attention was drawn to a Worker s Progress Report dated January 25, She recalled receiving them because she filled them out. She did not know if she received one in November She was really upset at that time because her doctor had put her off work. She had no idea to whom she had to report. She went by the advice of her boss, K.B., who told her to apply for short term disability benefits. She received no income for eight weeks, but could not recall which year. She received long-term disability benefits from the insurer until she reached age 65 in March The worker stated that she would go back to work if she could find something. [38] The worker re-located around 2003 because her condition had become very bad. She had a hard time reaching to put on her seatbelt. She has not had further physiotherapy. She had been off work four to five years by She is able to drive. [39] The employer's representative referred to a note in the NEL Activities of Daily Living (ADL) Analysis Form, which indicated that she had a problem with writing and keyboarding. The worker testified that she did not type at work. She does occasionally go on the computer, but she does not type. She uses a computer mouse at home, but did not use the computer at work. She did have a computer at home. She does her own hair. Her son helps her. She lives with her son in an in-law suite. He helps her with tasks at home. [40] The worker s attention was drawn to a WSIB memorandum dated January 20, That memorandum noted that the worker had said that there was nothing to do. The worker said that K.B. told her that was nothing for her to do. One manicure in eight hours was a long day. The worker was also referred to a memorandum dated December 19, 2001 from the ARO to the claims manager, noting that the worker had nothing to do at work. The worker confirmed that she was just walking the halls. [41] The worker was referred to a rehabilitation clinic note dated September 20, The report noted that the worker had a history of sleep apnea, type 2 diabetes, hypertension, bilateral carpal tunnel syndrome, gastro esophageal reflux disease (GERD), and took numerous medications. The worker testified that she has had sleep apnea for eight to ten years. She testified that her inability to sleep more than four to five hours per night was due to her shoulder pain, rather than sleep apnea. She developed type 2 diabetes in her sixties. It runs in her family. She does not have high blood pressure. GERD was caused by her sleep apnea. [42] She received long term disability benefits to age 65 on the basis that she was disabled from her home position. The worker did not recall reports for the insurer and whether they evaluated her ability to work. The insurer told her that she had to apply for Canada Pension Plan disability benefits. [43] The worker testified that she brought in a doctor s note when she stopped working in November The doctor took her off hairdressing completely.

8 Page: 7 Decision No. 2315/10 [44] I drew the worker s attention to a letter from the employer dated March 17, 2005, which said that she went off work in November 1999 due to non-compensable reasons. The worker disagreed with that information. She did not go off work for non-compensable reasons. She did speak to the author of that letter, but she did not get anywhere with her. She was not sure if she had spoken to the author of the letter in November [45] The worker provided further information regarding the idea of putting in an 18 platform for hairdressing. This would not work, because then she could not see the client s hair and she would be bending all the time. She did supervise the volunteers, but they never cut hair. Only two of them could give a shampoo and perhaps put the hairdressing cape on. (v) Conclusions and analysis [46] The appeal is allowed for the reasons set out below. In approaching the issues in this appeal, I have accepted the worker s straightforward and uncontroverted testimony, which was also consistent with her statements to the WSIB during the adjudication of this claim. a) Entitlement to NEL awards for left and right middle finger and right thumb trigger finger 1. Applicable statutory provisions and case law [47] Section 46 of the Workplace Safety and Insurance Act, 1997 and section 42 of the pre Workers Compensation Act provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [48] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [49] Permanent impairment means impairment that continues to exist after a worker reaches maximum medical recovery (formerly referred to as maximum medical rehabilitation under the pre-1997 Act). [50] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised) (the AMA Guides). [51] The WSIB and the Tribunal s case law have recognized that a different approach is required for the assessment of repetitive strain injuries. The approach was reviewed in Decision No. 217/10 (February 11, 2010): The prescribed rating schedule for rating a permanent impairment is generally the AMA Guides. However, the Board also has a practice for rating RSI impairments using different criteria. The document entitled Adjudicative Advice Permanent Impairment (NEL) Rating Guideline for Upper and Lower Extremity Repetitive Strain Injuries (RSI) outlines the Board s practice for rating RSI impairments. It states:

9 Page: 8 Decision No. 2315/10 Noting the parameters which have been set out in the existing AMA guides, in order to appropriately assess ratings of RSI conditions, the NEL Department in 1998 established a rating practice. This practice was developed to ensure consistency and fair recognition of permanent impairments in repetitive strain type injuries. When the worker s NEL assessment shows normal ROM [range of motion], we apply the permanent impairment (NEL) rating guideline for upper and lower extremity RSIs. The following charts depict the long-standing, established practice Depending on the impact in each of the categories, there is a prescribed percentage awarded. Each category has a specified range and is subject to a maximum percentage As with all NEL ratings, the degree of permanent impairment is expressed as a percentage of total permanent impairment of the whole person (WP). RSI Rating for Upper Extremity (UE) 1. Physical Findings Pain and tenderness Swelling Scarring (if surgical history) Decreased ROM Inflammation 2. History Current functional disorder as a result of the RSI 3. Treatment Example of past or present ongoing treatment Steroid injections Physiotherapy Analgesic/anti-inflammatory meds Splints/tensors Braces/supports Surgery 4. Activities of Daily Living (ADL) Difficulties with basic function (e.g., self care/ personal hygiene/ sleep) Regional functions are impaired (e.g., hand dominance of affected limb/joint) Cognitive impairment is noted (e.g., emotive, stress) Interactive activities are impaired (e.g., social/ leisure) Total 3% UE, Range (0-3) 1% UE, Range (0-1) 2% UE, Range (0-2) 3% UE, Range (0-3) 9% UE = 5% WP

10 Page: 9 Decision No. 2315/10 The RSI criteria in the above chart can also be used in instances where there are non repetitive injuries in the upper and/or lower extremity, such as non surgical fractures or traumatic strains or sprains, which, when assessed, show no abnormal findings with which to calculate a NEL benefit under the AMA Guides. [Emphasis added; footnote omitted] [52] In Decision No. 217/10, the Vice-Chair went on to review Tribunal case law addressing the WSIB s use of the RSI criteria: The Board s use of the RSI criteria has been explained in previous Tribunal decisions, such as Decision Nos. 1630/05, 2622/01 and 575/05. In Decision No. 2622/01, in response to an inquiry from the Tribunal Counsel Office regarding its practice of the using the RSI criteria, the Board responded that: Since August 28, 1998, ratings of functional impairment due to RSI have been based on the following: History (including pain produced by repetitive movement of the extremity): contributing 0-1% impairment of the upper or lower extremity; Physical findings (such as abnormal motion, swelling, inflammation, surgical scar): contributing 0-3% impairment of upper extremity or 0-2% impairment of lower extremity ; Treatment (surgery, physiotherapy, medications, orthosis): contributing 0-2% impairment of upper or lower extremity; and Effect of activities of daily living (including movement of preferred extremity): contributing 0-2% impairment of upper or lower extremity. Thus, for a single level of involvement, the maximum impairment of upper extremity would be 1% + 3% + 2% + 3% = 9%, which corresponds to a 5% impairment of the whole person In Tribunal Decision No. 575/05, the vice-chair explained that the practice of using the RSI guidelines originated as a method to ensure that, where there were no clinical findings such as would attract a NEL award under the AMA Guides, a worker would still receive an award. The Board s practice generally works to ensure that a permanent impairment is recognized where a NEL assessment under the AMA Guides would not produce an award. The Vice-Chair further acknowledged that in fact, RSI NEL awards frequently occur without a NEL assessment from a roster physician. This was also confirmed in Decision No. 1630/05 where the Board explained that the NEL clinical specialist will revert to the RSI protocol so that the worker would not have a 0% NEL which would be the case without using the RSI guidelines. [53] The worker's representative also cited Tribunal and ARO decisions which are consistent with this approach. 2. Analysis of the facts of this case [54] The WSIB took the position that the worker s surgeries corrected her trigger finger problems and she was therefore not entitled to NEL assessments. Based upon the foregoing case law and the WSIB s Adjudicative Advice Document addressing permanent impairment rating for repetitive strain injuries, I find that this approach was incorrect. The WSIB s Adjudicative Advice Document clearly stipulates that RSI Rating chart is used when the worker s has a

11 Page: 10 Decision No. 2315/10 normal range of motion. Furthermore, the worker required surgery for her trigger finger conditions, which is an element to take into account according to the RSI Rating chart. [55] Dr. J. Mai, family physician, reviewed the history of the worker s compensable conditions in a report dated August 23, 2006: [The worker] has had surgery on her right thumb and third finger for trigger finger and surgery on her right wrist for carpal tunnel syndrome. She also had surgery on her left third finger for trigger finger and on her left wrist for carpal tunnel syndrome. [The worker] has been my patient since May We have discussed these injuries at various visits as they related to her shoulder injury but did not look at these areas specifically. [The worker] did not complain about them because she didn t feel that anything further could be done and she continues to just deal with the pain. I do not feel any further treatment will help her. She reports that both hands are very weak and as a result she has great difficulty opening jars and gripping things. She has swelling of her hands daily especially around the MCP joints. She experiences burning down both hands to the fingertips. She also has bilateral forearm pain up to her elbow on a daily basis. On her visit on August 21, 2006, her grip strength was about 50% normal bilaterally. She indeed had swelling over her MCP joints. She also had positive Tinel s and Phelan s tests. I believe [the worker] still currently suffers with carpal tunnel symptoms bilaterally as she continues to have numbness and weakness. The range of motion in her fingers is normal indicating that the trigger fingers have improved since surgery. [56] Although the worker has recovered the range of motion in her fingers, the fact of the treatment and need for surgery in the fingers warrants a NEL assessment, based upon the WSIB s Adjudicative Advice document as well as the Tribunal s case law. [57] Accordingly, I find that the worker is entitled to a NEL assessment for the following conditions: right middle trigger finger; left middle trigger finger, and right thumb trigger finger. b) Entitlement to a full FEL award from November 17, 1999 [58] Section 43 of the pre-1997 Act, as amended, governs FEL benefits. Generally speaking, a worker is entitled to a FEL award based upon the difference between escalated pre-accident earnings and the amount the worker is able to earn in suitable and available employment. [59] In 1999, there was little persuasive evidence demonstrating that the employer was in a position to provide the worker with a permanently modified suitable job. I note in particular the following documentary information: Modified Work Program Plan, September 29, 1999: This document states that the duties in the craft club would only continue until modifications were completed within the hair salon, indicating that this was not a permanent position. Memorandum September 29, 1999, ergonomic specialist M. Persia: Ms. Persia confirmed that the repetitive shoulder movement could not be eliminated from the worker s hair dressing position. If a platform was built and raised by 12, then it was her opinion that above-shoulder level work could be eliminated. It is

12 Page: 11 Decision No. 2315/10 undisputed that the platform was never built and I accept the worker s testimony that it was unworkable. WSIB Memorandum dated September 30, 1999: this documented a telephone conversation with J.M. of the employer. J.M. noted that the worker was working modified duties at four hours per day at that time, with a plan for a gradual increase in hours to full time. J.M. stated that the employer would continue to provide suitable modified duties based upon no repetitive shoulder movement, but she does not know if this will become permanent or not. Memorandum dated October 1, 1999: this documented a telephone conversation between the Claims Adjudicator and the worker. The worker stated that she was working four hours a day, but since she cannot do hair she feels she really is not doing anything. The worker noted that she was supervising the shop, making sure areas were clean, assisting where possible in the salon and the craft shop. The claims adjudicator noted that the employer is now going to review whether or not they can provide permanent modified work, or if C/A and I/W have to look at options outside Memorandum dated October 12, 1999: telephone conversation between the Claims Adjudicator and J.M. J.M. was still awaiting a meeting with management regarding permanently accommodating the worker in her return to work. J.M. wondered whether the worker could perform any haircuts throughout the day. The Claims Adjudicator gave the opinion that the worker should be able to perform the odd haircut, as long as repetitive shoulder movement does not occur. Dr. T.H. Wallace, orthopedic surgeon, October 4, 1999: the worker had classic symptoms of impingement syndrome. Unfortunately, she could not take oral antiinflammatory medication. She was high risk for acromioplasty, and Dr. Wallace could not offer other treatment. Dr. Wallace stated that repetitive shoulder activity and anything above shoulder height was not possible for the worker and she should be restricted from performing these activities indefinitely. ARO Decision, June 26, 2009: the ARO contacted K.B. in June K.B. confirmed that the employer did not have an actual position for the worker and was simply providing duties to keep her occupied. [60] The foregoing documentary evidence does not support that there was a plan to permanently accommodate the worker in suitable employment. By November 29, 1999, the employer was still looking at permanent accommodation. The employer did not implement the proposed platform idea, which tends to support the worker s view that this idea was not practical. I find that the worker s description of how this would not work accords with basic common sense. [61] The mainstream view reflected in the Tribunal s jurisprudence is that merely sitting and doing nothing cannot be considered meaningful work and, therefore, does not constitute suitable modified work (see, for example, Decision No. 572/95R (August 15, 1998)). I accept the worker s testimony that there was very little to do at work between September and November 1999, and she spent most of her time wandering the halls. She was able to help in the craft room

13 Page: 12 Decision No. 2315/10 for a time, but the Leisure Life Skills Instructor did not need her on a regular basis. She was often walking the halls with nothing to do. This would lead to requests from patients for a hair cut, and the only alternative was for the worker to stay within the salon. Performing the odd haircut and occasional tidying would not fill up eight hours per day. I find that the employer did not offer the worker meaningful work and there is no evidence of an actual offer of permanent, suitable, full-time work. [62] The employer's representative referred to the letter from J.M. of the employer, which asserted that the worker went off for non-compensable reasons. This is not a medical opinion, and this statement by the employer is not persuasive in the absence of supporting medical evidence. I prefer the worker s sworn testimony that she stopped working due to her compensable conditions. [63] The employer's representative referred to documents which showed the employer s willingness to accommodate. In 2003, a human resources staff person from the employer advised the claims adjudicator that the worker was not given a letter confirming permanent modified employment, but she was performing modified work at no wage loss. They were looking at a new position for her. This information, however, is inconsistent with the information that was provided to the ARO in the course of this appeal, as noted above. Although I accept that the employer showed a willingness to accommodate, the fact remains that no permanent, full-time suitable job was offered to this worker. The employer had the opportunity to formulate a long term plan for the worker s return to work between September and November 1999, but no offer of suitable and sustainable work was made. [64] The employer's representative argued that the worker exercised her choice of insurance carrier, and that there was a legal effect to her choice. The employer's representative did not refer to any statutory authority or case law in this regard. Although the worker did receive insurance benefits, she did continue to object to the WSIB s decisions. The worker in fact objected to the WSIB s FEL decision of May 18, 2000 in a timely fashion, through a letter dated June 7, The employer's representative argued that all parties assumed that the LTIP benefit through the insurer was the proper scheme. I find that there is no basis to conclude that the worker waived her rights to claim WSIB benefits. In fact, section 16 of the WSIA prohibits any waiver of entitlement: 16. An agreement between a worker and his or her employer to waive or to forego any benefit to which the worker or his or her survivors are or may become entitled under the insurance plan is void. [65] In essence, the employer's representative suggested that there was an agreement between the employer and the worker that LTIP benefits were the appropriate scheme and the worker would not claim benefits under the WSIA. Such a waiver is void pursuant to section 16. The employer's representative did not produce any other authorities in support of this argument, and I find that section 16 of the WSIA precludes such an interpretation. [66] The employer's representative submitted that the worker did not take strong medications for her conditions, and suggested that this reflected upon her level of impairment. I note that the worker was unable to tolerate other anti-inflammatory medication, as Dr. Wallace reported in October She had also experienced a negative reaction to shoulder injections in the past.

14 Page: 13 Decision No. 2315/10 Therefore, the worker s medication intake does not undermine the extent of her impairment. The attempt at an injection in the past indicates that her treating physicians felt that her condition warranted more aggressive intervention. Surgery was considered, but this was a high risk for the worker. [67] The employer's representative referred to the opinion of Dr. Holmes, orthopedic surgeon, dated September 8, Dr. Holmes concluded that the worker was disabled from her former job, and noted that she did not have any other specific training. As noted above, the employer inquired as to whether the worker would be able to perform haircuts on an occasional basis. Although the worker agreed to this when it was put to her by the claims adjudicator, this would have contravened the recommendation of Dr. Wallace s opinion that the worker should not do any work above shoulder height and would also be inconsistent with Dr. Holmes opinion. The fact that the employer suggested that the worker continue to perform some haircutting duties indicates that there was a lack of suitable and sustainable work for her perform. [68] The employer's representative emphasized that a rehabilitation clinic note of September 2006 indicated that the worker had non-compensable conditions, including GERD, sleep apnea, and type 2 diabetes. The employer's representative submitted that only the worker s family physician recommended that she could not work at all, and did not provide any reasons. Although the worker did have non-compensable conditions, the evidence does not support that these factors overwhelmed the role of her compensable impairments. The evidence supports that the primary barrier to the worker s return to work was the impairment of her right shoulder. The bilateral carpal tunnel syndrome also contributed to her inability to return to work. The employer did not offer permanent suitable work and the worker was not offered any retraining. [69] In summary, the worker s compensable condition was the primary reason she stopped working in November The employer did not offer suitable work that was available on a permanent basis. Given the worker s age, lack of transferable skills, and compensable conditions, I find that she was unlikely to earn any income in employment after November 17, Therefore, in accordance with section 43 of the pre-1997 Act, she is entitled to a full FEL award.

15 Page: 14 Decision No. 2315/10 DISPOSITION [70] The appeal is allowed as follows: a) The worker is entitled to a NEL assessment for the following conditions: right middle trigger finger; left middle trigger finger, and right thumb trigger finger. The maximum medical recovery date for each of these conditions is remitted to the WSIB to consider, subject to the usual rights of appeal. b) The worker is entitled to a full (100%) FEL award from November 17, 1999, to the date she reached age 65. DATED: March 10, 2011 SIGNED: R. McCutcheon