SUMMARY DECISION NO. 3276/00. Suitable employment. DECIDED BY: Newman DATE: 15/12/2000 NUMBER OF PAGES: 7 pages ACT: WCA

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1 SUMMARY DECISION NO. 3276/00 Suitable employment. DECIDED BY: Newman DATE: 15/12/2000 NUMBER OF PAGES: 7 pages ACT: WCA

2 2000 ONWSIAT 3566 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 3276/00 [1] This appeal was heard in Toronto on December 6, 2000, by Tribunal Vice-Chair E. Newman. THE APPEAL PROCEEDINGS [2] The worker brings this appeal from the decision of Appeals Resolution Officer Sheridan, dated April 1, [3] The worker attended, represented by Mr. Collin Bennett. The employer participated by providing written submissions, authored by Brian Ogilvie, claims specialist. THE RECORD [4] The worker gave evidence under oath. The following documents were considered: Exhibit #1: Case Record; Exhibit #2: Hearing-ready letter; Exhibit #3: Employer s submissions dated November 13, THE NATURE OF THE CASE [5] The worker seeks entitlement to a period of temporary benefits from August 22, 1997, to November 20, During this time, the worker asserts that although the employer provided modified work, the work was not suitable given the nature of her compensable right wrist and arm disability. [6] The employer s position is that the work was suitable, that it was approved by the Board s Caseworker, and that it was within the worker s restriction. THE REASONS [7] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers' Compensation Act, which continues to apply to pre-1998 injuries. All references to the Act in this decision mean the applicable Workers' Compensation Act. [8] A change relevant to this appeal is that the Appeals Tribunal is required to apply Board policy in accordance with sections 112 and 126 of the WSI Act. While the Tribunal previously did consider and apply Board policy, the Act did not contain this express provision.

3 Page: 2 Decision No. 3276/00 [9] Policies relevant in the instant case have been identified by the Board. They include Operational Policy Manual, Document # dated April 30, 1991, pertaining to suitable employment. That policy, in part, provides: For the purposes of section 54(b) of the Act, suitable employment is any job which the worker has the necessary skills to perform, is medically able to perform and which does not pose a health or safety hazard to the worker or any co-worker [10] The policy continues to explain through guidelines that evaluation of the suitability of the proposed work includes determinations of whether the worker has the necessary skills, is medically able to perform the task, and can comply with any health and safety requirements of the workplace. [11] In the instant case, the worker began to suffer from symptoms in her right wrist in or around December of By March of 1997 she found herself incapable of performing her work as an assembler of automotive parts for this employer. The worker was seen by the Regional Evaluation Centre in July of 1997, which reported as follows: [The worker is a 36 year old assembler, who was seen in the Regional Evaluation Centre at the Orthopaedic and Arthritic Hospital. On July 22, 1997, she underwent a Multidisciplinary Evaluation by N. Travers, Physiotherapist, and Dr. P. Marks, Orthopaedic Specialist. Reports provided by the referral source were reviewed prior to the Multidisciplinary Assessment. The following is a report based on the information obtained from he client on the day of he assessment as well as the objective findings of our evaluation. Work Status: This client has worked for [the employer] for 7 years. Her job description as an assembler includes repetitive hand work of pushing, pulling and also involves sitting or standing. She is not currently working and last worked on March 25, She states that after the complaint of right upper extremity pain on March 21, she had returned to work for 3 days with restrictions. She could not handle her duties and stopped working on march 25, Previously, she has worked in an assembly line capacity. History of Injury: This client s complaints date back to December At that time, she started to notice pain in her right arm with repetitive arm movements while working. The symptoms increased in her right arm until March 21 when she could not continue her regular duties. She was seen by a physician who gave her work restrictions limiting her wrist flexion and extension. As well, she was given medications and physiotherapy. She has been seen by Dr. Shore for orthopaedic review who suggested active exercises. As well, she was reviewed by Dr. Armitage who performed nerve conduction tests on May 27, These studies were normal. She went for physiotherapy for 3 ½ months from March until July daily for 45 minutes each visit. Her treatment included ultrasound, strengthening, stretching and a home program which she does 3-4 times per day for up to 25 minutes. She has had a bone scan and the report dated April 29, 1997 showed some increased uptake in the acromioclavicular joints with early degenerative change. As well, she had plain radiographs obtained of her right elbow and right wrist on April 25 which are negative for bony pathology. Current Situation: This right hand dominant client notes 45% improvement in her symptom complex overall. The pain in her elbows is described as an intermittent ache. She describes some

4 Page: 3 Decision No. 3276/00 associated numbness in the palmar aspect of her ring and little finger in the morning. Her symptoms are aggravated with cleaning and opening doors. Her discomfort eases with taking medications and doing her exercises. She describes no nocturnal discomfort in this regard. She does rate this as 6 out of 10 on a pain rating scale. An intermittent ache is described in the anterior aspect of the right shoulder. Her discomfort is aggravated with lifting the right arm up or brushing her teeth. She does not describe any nocturnal discomfort. Her current activity level includes light cleaning, cooking at home, and watching T.V. She states that her husband helps somewhat around the house. Previous to this, she did enjoy gardening and was able to manage all the household cleaning. Past History: This client did have an injury in 1988 to her right knee. She was off work for 2 to 3 days. She has no disability pension and denies any previous involvement in motor vehicle accidents. Her general medical health is good and she has not previously had any surgeries. Medications include Diflunisal and Tylenol #2. Personal History: This client was born in India and has lived in Canada for 9 years. She has a university level education. She currently lives with her spouse and 2 children aged 3 ½ and 5½ years. She denies consumption of alcohol or smoking. She is currently receiving WCB benefit. Physical Review: This client stood 165 cms tall and weighed 71.5 kg with an average build. Her presentation and affect was pleasant and cooperative. Resting blood pressure was 110/74 mmhg. Musculoskeletal Review: Specifically with regards to musculoskeletal examination, she was wearing a Neoprene thumb splint. She had poor sitting posture and sat in a slouched position with protracted shoulders. Her left upper extremity movements were painful to all maneuvers. She had no observed muscle wasting or atrophy in the arms, hands, or hypothenar eminences. Her cervical spine demonstrated a full range of motion including flexion, extension, side bending and rotation. Her shoulders demonstrated full flexion and abduction. She had a painful arc beyond 90 o with abduction and some pain at the end of range of rotational movements. Her elbow and wrist examinations were unremarkable. There is no crepitus felt at the elbow or shoulder. Grip testing with the Jamar Dynamometer revealed measurements of 31, 31, and 29 kg on he left and 16, 24, and 24 kg on the right. She had negative Speeds and Yergasons testing with regards to long head of biceps tendon. She had negative Hawkins and Neer impingement signs. She had negative Phalen s and Tinel s testing at the elbow or wrist. Neurologically, she was intact with regards to myotomes and reflexes. She described some subjective decreased sensation in her right ring and little digits in the palm and the anterolateral aspect of her forearm. Impression: Clinical impression is that of a 36 year old client who sustained a right elbow strain. Recommendations: No further investigations are contemplated at this time. This client should pursue an independent home exercise routine and increase and normalize all activities immediately. As well, she should pursue general conditioning. She had no medical restrictions for physical activity. She may, however, have some temporary functional limitations for heavy lifting and repetitive upper extremity use over the next 4 to 6 weeks. She should certainly try to increase her tolerance over the interval. Final Diagnosis:

5 Page: 4 Decision No. 3276/00 Right elbow strain. Prognosis: One would otherwise expect a full recovery in this client over the next 2 to 3 months. [12] It was after the period of temporary disability which is the subject of this appeal that the Board ultimately did determine that the worker suffered from a permanent condition of her right wrist, now recognised by a 5% Non-Economic Loss award. [13] The period which we must address on this appeal is the period of approximately three weeks, occurring between the initial onset of the disability, and the point at which the worker settled into a work pattern in which permanent restrictions were applied and accommodated. [14] Relevant to the instant period, the worker attempted to return to work in August of It was August 6, 1997, that she began to work at four hours a day, first on the LTS line. This work required her to exert pressure with the thumb of her right hand, and the worker found that this caused pain to the wrist. She worked two hours, complained that it was inappropriate work, and the employer responded by asking her to stop. [15] According to the worker, it was within a few days that the Board s Caseworker attended to explore the difficulty. The Caseworker agreed that the job was not suitable, and it was agreed that the worker would make an effort to perform the press job. [16] The worker did perform the press job first at four hours a day. She found it painful after a period of four hours, but stuck with the plan for the first week. [17] According to the graduated hours agreed to, the worker continued to perform the next week, now at six hours. The worker says that she continued to suffer pain. [18] By the third week of the graduated return to work program on the press job, the worker complained of additional onset of pain, and decided that she was incapable of performing the job. She did attend at her family doctor, who has corroborated her evidence. [19] By a Physician s First Report dated August 25, 1997, family physician Dr. Uppal suggested that the Board re-open its case. He reported that the worker returned to work on August 6, 1997, that she performed four and then six hours a day, working toward eight hours a day. According to Dr. Uppal s report, the work was repetitive and was contrary to his instructions. He added that the worker was not capable of performing eight hours a day, and that she has suffered a flare up of her compensable disability in consequence of her effort to perform the modified work. Dr. Uppal suggested the worker stop working, and he referred her to Dr. Jurgen Kontor who saw the worker on September 10, Dr. Kontor reported as follows: This patient has repetitive strain problems with her right hand and arm. She definitely has had an intermittent dequervain s tendonitis which at times bothers her at the end of the day. The area was remarkably nontender to pressure and motoring during the examination today, however. She also describes numbness of the tips of the ring and little fingers. She states that several times a day, in fact on many occasions during her working day, she needs to press

6 Page: 5 Decision No. 3276/00 the hypothenar base forcefully and is likely t raumatizing the ulnar nerve in this area, producing the neuropraxia and decreased sensation symptoms she describes. Her motor power is excellent. There is good strength through the intrinsics. This patient has been tried on various anti-inflammatories including Voltaren. I basically reinterated to the patient that her work may be overcoming the capabilities of her right dominant upper extremity. She will be fitted with a scaphoid type sand splint to keep the base of the right thumb at rest so it does not produce further dequervain s problems. She has been placed on anti-inflammatories. She has had nerve conduction studies performed previously which I will obtain from Dr. Kathleen Armitage. These obviously relate to the ulnar nerve problem in question. [20] According to the worker s evidence for the next six to eight weeks she wore a splint, and followed her physician s instructions. These are stipulated clearly in the report of Dr. Uppal dated September 19, 1997: This is further report as an extension of her original injury to (R) arm/wrist. She has been seen by Dr. Kontor and is in (R) wrist and forearm splint. Advised no work at all with (R) hand. She can do work 8 Hrs/day with left hand only. She should avoid usage of (R) hand as she can not flex, [illegible] or flex her (R) wrist due to medical condition and splint. Use of (R) hand will further change the medical condition. [21] According to the employer s written submissions, the job which the worker performed during her effort to return to graduated hours was well within her restrictions. The job did not involve movements beyond the worker s medical restrictions, as those were stated. [22] Based upon the stated restrictions, it is easy to understand the employer s concern. On paper, the job does not appear to violate the restrictions. However, each case must be evaluated based upon its own individual facts, and according to the individual merits which apply. The analysis should not be limited to an analysis of the paper. It must include the worker s actual experience. [23] As evidenced by this worker s continued and repeated attempts to return to modified work, and her ultimate success in so doing, I conclude that she was a reasonably well motivated individual. Given that finding of fact, I conclude that the worker s complaints about the job which she performed during this claim period were valid complaints. They may not have been anticipated by the physicians who dictated her initial restrictions, but they were, in this worker s experience, workplace activities which aggravated her compensable disability. [24] Notwithstanding this worker s effort to comply with the return to modified work program, the work during this period of time was beyond her physical abilities. The worker s representative submits that during this period of time she required the additional medical rest prescribed by Dr. Kontor and Dr. Uppal. I agree. [25] During the period in question, the worker was in my view partially disabled in consequence of compensable disability, and co-operating with an appropriate program of medical rehabilitation. She is therefore entitled to full temporary partial disability benefits for the period claimed.

7 Page: 6 Decision No. 3276/00 THE DECISION [26] The worker s appeal is allowed. The Board will pay full temporary partial disability benefits to the worker from August 27, 1997, until November 20, DATED: This 15 th day of December SIGNED: E. Newman.