Workplace Health, Safety & Compensation Review Division
WHSCRD Case No: ________
WorkplaceNL No: ________
Decision Number: 16055
Keith Barry
Review Commissioner
The Review Proceedings
1. This review application hearing was held at the Review Division in Mount Pearl, NL on
January 12, 2016. The worker attended the hearing and represented herself.
2. The employer participated in the hearing process and was represented by Candace Harry, via
teleconference.
3. WorkplaceNL did not attend or participate in the hearing process.
Introduction
4. On June 28, 2004, the worker filed a report of injury to her lower back, which she noted
occurred on January 26, 2004 and was a result of her employment as a customer service
representative. The claim was accepted for compensation. Initially there was no time loss
from work. However, there have been a number of recurrences that have resulted in lost
time, the most recent being May 22, 2013.
5. Prescribed treatments and medical investigations have included physiotherapy, clinic based
occupational rehabilitation and an EMPOWER assessment. An easeback to work program
was unsuccessful due to ongoing symptoms.
6. A September 18, 2014 functional assessment found the worker capable of a part-time
workday at a limited/sedentary degree of strenuousness.
This was reviewed by
WorkplaceNL’s occupational therapy consultant who provided the opinion that a four-hour
workday for sedentary work was safe and reasonable.
7. As the employer was unable to accommodate the worker’s functional tolerances the worker
was referred for a labour market re-entry assessment. In a report dated February 16, 2015,
four suitable employment options were identified. In a decision dated March 4, 2015, the
worker was advised by her case manager she was capable of working and earning in NOC
668, Other Elemental Service Occupations for a four-hour day at the sedentary/limited level
of strenuousness.
8. The March 4, 2015 decision was appealed and in an Internal Review decision dated June 2,
2015 the worker was advised her claim had been referred back to the case manager to
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confirm her functional/physical ability to work a four-hour day at the sedentary/limited level
of strenuousness. A new functional assessment was completed on June 22, 2015 confirming
the worker’s ability to work a four hour day at a sedentary/limited level of strenuousness.
9. In a decision dated July 8, 2015, the worker was advised by her case manager that there was
no change in the March 4, 2015 decision which considered her capable of working and
earning in a four-hour day at the sedentary/limited level of strenuousness. The worker
appealed and in an internal review decision dated September 8, 2015, she was advised her
appeal was disallowed. This decision was reaffirmed in a later internal review decision
dated September 25, 2015. The worker appealed to the Review Division.
Issue
10. The worker is requesting a review of the decision of WorkplaceNL dated September 25,
2015 and is requesting I find her not capable of working and earning in any capacity and
entitled to full extended earnings loss benefits.
Outcome
11. I find WorkplaceNL acted in accordance with the Act, regulations and policies and did not
err in its decision dated September 25, 2015 finding the worker capable of working and
earning in NOC 668, Other Elemental Service Occupations. With respect, the review is
denied.
Legislation and Policy
12. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety
and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28.
13. Also relevant and considered in this case are Sections 19(1), 60(1), 73(1), 74(1), (2) and (3),
89.2(1) and (2) of the Act, along with Policy RE-14: Labour Market Re-entry, Policy RE-15:
Determining Suitable Employment and Earnings and Policy EN-20: Weighing Evidence.
Relevant Submissions and Positions
14. The worker began her presentation with a reference to the labour market re-entry assessment
specifically the amount of time she spent in a sitting position and the effect the sitting had on
her overall health. She noted she was required to remain sitting for approximately two hours
a day for the entire five days it took to complete the assessment. This was a total of ten
hours for the week. In addition, each return trip required she sit for another 40 minutes,
which equated out to a total of two hours and 40 minutes each day for all five days.
15. The worker indicated, following the assessment each day, she was in significant pain and
discomfort and at the end of the week her overall condition had deteriorated to the point that
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she had to book an appointment with her family physician. The worker questioned how the
occupational therapists could determine she was able to sit and work for four hours a day,
when she could barely tolerate sitting for two hours and 40 minutes to participate/complete
her labour market re-entry assessment each day.
16. The worker noted, despite informing the labour market re-entry planner and her case
manager of the difficulties she was having with sitting for two hours and 40 minutes each
day, her concerns were never recorded in the file. The worker reported when she informed
her case manager she had booked an appointment to see her family physician, the case
manager told her the determination she could work a four hour day had been made and
nothing her doctor said could change this determination.
17. The worker referenced the Form 8/10, ‘Physician’s Report’ dated March 11, 2015
completed by her family physician following the above noted appointment wherein the
physician stated, ‘Unable to tolerate 4 hours of sitting w/o pain buttock/leg/numbness foot’.
18. The worker also referenced an additional Form 8/10, ‘Physician’s Report’ also dated March
11, 2015, wherein the physician indicated, in addition to the above, the following:
‘*Addendum 15/3/18: Flare up 5x back & radicular legs post OT [the employer] asseme
(sic)’
19. The worker referenced her permanent functional impairment assessment dated April 16,
2015, wherein the physician stated:
‘On examination today, there are signs of muscle spasm and tightness,
together with a loss in terms of strength and endurance of activity. There is
decreased range of motion. There is neurological involvement. These
findings would all be in keeping with a considerable mechanical back pain
with radicular features and would be compatible with the injury which [the
worker] has sustained, together with the passage of time since the injury.’
As a result, the worker noted the physician awarded her an impairment rating of 27.5%
which represented a 15% increase over the 12.5% rating she received in April 2010. The
worker believed this significant increase clearly indicated there had been a determination in
her condition. She particularly highlighted the reference by the physician to ‘neurological
involvement’.
20. The worker commented on the internal review decision, specifically, the background
information provided by the internal review specialist. She noted his reference to the
various treatments she had such as physiotherapy, chiropractic, and acupuncture. She
pointed out, despite her best efforts; none of these treatments gave her much relief.
21. The worker provided some additional background information, noting that she worked three
years with the company before her injury in January 2004. As for the mechanism of injury,
the worker noted this was the result of a faulty chair which slipped back one day when she
attempted to sit down at her workstation. She noted she instinctively reached for her desk to
steady herself, causing her back to twist awkwardly. Initially, the pain was not too severe,
but when it became worse she went to her family doctor, who ordered a CT scan. She noted
the CT scan dated August 3, 2004, indicated a disc herniation at the L4-L5 and a disc bulge
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at L5-S1. She noted she has been attempting to deal with her back symptoms, including
sleep problems, ever since her injury and only medication allowed her to cope.
22. Following the worker’s presentation, Ms. Harry expressed the employer’s position that the
medical evidence supported WorkplaceNL’s position that the worker was capable of
working a four hour day at a sedentary/limited level of strenuousness and this decision
should be upheld.
23. WorkplaceNL’s position was contained in the internal review division decision dated
September 25, 2015. The internal review specialist referenced, in a separate correspondence
on September 25, 2015, a previous decision he had provided the worker dated September 8,
2015, which upheld the July 8, 2015 decision by the case manager that the worker was
capable of working in NOC 668, Other Elemental Service Occupations.
24. However, the internal review specialist noted, ‘Prior to the appeals paragraph and
following the rendering of the decision, I indicated that your file was referred back to
WorkplaceNL to re-examine your entitlement however this had already been completed in
the July 8, 2015 decision by the Case Manager and was included in my letter in error’. As a
result, the internal review specialist advised the worker he was forwarding his original
‘decision of September 8, 2015 with today’s date and the error corrected’. The internal
review specialist went on to indicate, ‘My September 8, 2015 decision which upheld the July
8, 2015 decision of the Case Manager remains unchanged.’ He concluded, noting his
amended decision dated September 25, 2015, ‘will replace the September 8, 2015 decision’.
25. The internal review specialist referenced the worker’s letter of appeal, highlighting her
comment that two of her treating health care providers, namely the family physician and
acupuncturist, expressed the opinion she is unable to work four hours a day.
26. The internal review specialist noted in decisions determining suitable employment and
earning, there is a two part test which must be satisfied. The evidence must confirm the
worker has both the physical/functional ability and educational/skills background for the
identified NOC category.
27. The internal review specialist referenced his previous decision dated June 2, 2015, wherein
he referred the worker’s claim back to her case manager to ‘re-examine your physical
functioning with regards to workday tolerance’.
28. The internal review specialist referenced a clinic based occupational rehabilitation discharge
report dated July 2, 2014, wherein the occupational therapist indicated the worker was
capable of a four hour workday at a ‘partial limited’ degree of strenuousness. The internal
review specialist referenced a claim note dated July 16, 2014, wherein WorkplaceNL’s
medical consultant stated:
‘Based on my review of the pertinent medical documentation for claim # …, it
appears that this worker has had all of the appropriate investigations and
consultations with respect to her compensable low back injury. She also
underwent various treatment modalities including massage therapy,
physiotherapy, occupational rehab and more recently acupuncture. There
may be some value in a trial of chiropractic manipulations. A review by the
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chiropractor consultant could help determine if this would be a worthwhile
venture or not.
With regards to employability, the medical suggests that [the worker] has
some functional tolerances at least to a sedentary level. An updated
functional assessment may be of benefit. The Occupational Therapy
Consultant’s opinion is suggested in this regard. Should you decide to
approve a trial of chiropractic care, any functional assessment would be best
completed after finishing chiro’.
29. The internal review specialist also referenced a claim note dated July 17, 2014, wherein the
occupational therapy consultant provided the following:
‘I have reviewed this file and thank you for the detailed note. I agree with
[the medical consultant] that an updated functional assessment would be
useful in this case. While she did not demonstrate any significant gains in
CBOR, this was targeting the pre-injury work which is completed in standing
only and required lifting up to 20lbs.
I would suggest a targeted functional assessment which will focus on
sedentary seated work. Testing should include her ability to perform seated,
desktop and computer work. A detailed review of the daily activities should
also be completed. I do not feel that a lifting protocol is required nor is any
low level work such as squatting, bending, kneeling, etc. Sustained overhead
work is also not required. I feel that these activities would needlessly
potentially flare her symptoms’.
30. The internal review specialist referenced the September 18, 2014 report from the
occupational therapist who completed the functional assessment, which indicated the worker
demonstrated an occasional tolerance for sitting and a minor tolerance for walking, static
and dynamic standing’. The internal review specialist noted, based on postural related
tolerances, the occupational therapist indicated the worker had a less than part-time workday
tolerance to complete sedentary job demands.’
31. Following the functional assessment report, in a claim note dated October 10, 2014, the case
manager requested an opinion from the medical consultant as to whether they should ‘seek
another medical opinion, such as an Ortho review’. The medical consultant, in a claim note
later the same day, stated:
‘I am familiar with this claim and have completed a review of the up to date
medical documentation and pertinent information since my last involvement.
This worker has had several recurrences of her low back problems with the
most recent in May of 2013. Since that time she has had a repeat CT scan of
the lumbar spine and a consultation with a neuro surgeon. She then was
assessed by the Empower Team in the winter of 2014. No further
investigations or consultations were recommended.
She has completed all appropriate treatment modalities including
physiotherapy, chiropractic, occupational therapy and acupuncture.
Unfortunately there has been no significant functional improvement. It is
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more probable than not that a consultation with an orthopedic surgeon will
not result in any surgical solution and continued “conservative” treatments
will likely be advised. From a medical standpoint the likely hood (sic) that
any other novel treatments will result in functional improvement is low’.
32. The internal review specialist requested further clarification from the occupational therapist
who completed the September functional assessment. In her addendum to the September,
2014 report, the therapist indicated there were ‘inconsistencies between subjective reporting
and the demonstrated assessment results’, stating:
‘Given the above noted inconsistencies between [the worker] demonstrated
ability in comparison to subjective reports of abilities, the client’s subjective
reports are not reliable. Clients minor walking and standing tolerance in
conjunction with occasional sitting tolerance demonstrated, does not provide
the client with a part-time workday, however, in considering subjective
reports such as sitting for 1 hour durations and walking for 20-30 minutes
daily this workday tolerance may change. Based on the client’s reports of
abilities at home for sitting and walking, as well as her reported ability to
prepare meals, complete home cleaning tasks and spend time on the
computer, the client demonstrates a part-time workday tolerance of a
limited/sedentary degree of strenuousness. To be successful completing
sedentary job demands, an ergonomic set-up workstation review would be
recommended’.
33. The internal review specialist referenced a claim note dated November 26, 2014 wherein
WorkplaceNL’s occupational therapy consultant provided the following opinion on the
functional assessment and the related addendum:
‘This is a 45 year old former customer service representative with a call
center who originally sustained an injury to her low back in 2004. During
this more recent recurrence she was working at [another employer]. I
reviewed this file on July 17, 2014 (as did [the medical consultant]) as we
felt this worker should have some workday abilities given the medical on this
claim.
When she last saw [the neurosurgeon] in December 2013, he noted that
while she did (sic) degenerative bulging discs in her low back, which was
causing intermittent problems, he noted that the CT completed in 2013 did
not differ from the one completed in 2009. Her low back issues are not
surgically correctable.
She participated in a functional assessment in mid September of this year
where she demonstrated less than a part-time workday ability according to
the provider, however in reviewing the report in detailed (sic); the worker
outlines a daily routine which would support at a minimum a part-time
workday ability for sedentary work. She reported being able to walk in 30
min. durations, perform all of her activities of daily living including meal
preparation, cleaning up, light housework and reported performing computer
work in up to 20 min. durations. This was supported by her ability to sit up
to 30 min. during the assessment.
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The provider submitted an addendum to her report noting that a part-time
workday would not be unreasonable or unsafe for this worker particularly in
light of her reported abilities at home. The medical on this claim would also
support a part time workday ability for sedentary work.
Based on the medical on this claim, the worker’s reported abilities at home,
demonstrated sitting tolerances, [the medical consultant’s] comments dated
July 16, 2014 and the provider’s opinion as noted in the addendum to the FA
dated November 20, 2014. I do feel that a 4 hour workday for sedentary
work is both safe and reasonable for this 45 year old worker with previous
experience with this type of work as a customer service representative’.
34. The internal review specialist summarized the relevant facts in the worker’s case stating:
‘[The occupational therapist’s] opinion was that you had a less than parttime workday tolerance and even in the addendum her opinion did not
change regarding your demonstrated abilities. [The occupational therapist]
found your subjective reports regarding your abilities to be unreliable yet
provided the opinion that if these subjective reports were utilized then you
would demonstrate a 4 hour workday tolerance. The Occupational Therapy
Consultant did use the subjective reports to establish your functional
abilities. Your demonstrated functioning was found to be reliable by [the
occupational therapist] where you reported that you were able to do more
than was demonstrated in the assessment. Your physician … has supported
your current functional ability since March 5, 2015 indicating that you are
unable to tolerate 4 hours due to pain and radicular features in your leg’.
35. As a result of the above referenced inconsistencies and the worker’s family physician’s
opinion that she was ‘unable to tolerate 4 hours due to pain and features in your leg’, the
internal review specialist, in his decision dated June 2, 2015, referred the worker’s claim
back to her case manager to re-examine her functional ability.
36. An updated functional assessment was completed on June 22, 2015 by a different
occupational therapist who reported physical testing of the worker’s ‘lifting, pushing and
pulling, postural tolerances, ambulation tolerances, upper and lower extremity tolerances’.
37. The internal review specialist noted the occupational therapist provided an analysis of the
worker’s tolerance stating:
‘[The occupational therapist] noted that the workday tolerance is determined
based upon a combination of objective analysis of demonstrated tolerances
as well as symptom responses associated with each. Also taken into
consideration are the medical diagnosis, your endurance and level of
physical fitness, time off work since your injury, and frequency, severity and
consistency of pain reports and behaviors from start to finish during
functional testing. [The occupational therapist] reported frequent sitting
tolerance and walking tolerance, and occasional standing tolerance. She
also noted an increase in pain reports and behaviors.’
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38. The internal review specialist noted, based on the information collected in the assessment
with the above referenced considerations, the occupational therapist reported the worker was
capable of a ‘4 hour workday tolerance at the sedentary level of strenuousness’.
39. The internal review specialist noted the worker’s functional tolerances had been previously
provided to the labour market re-entry planner who completed an assessment with the
worker. In a report dated February 16, 2015, the planner identified four direct entry labour
market re-entry options which suited the worker’s physical abilities. He noted the planner
identified NOC 668, Other Elemental Service Occupations as the preferred option due to the
fact that the worker satisfied the educational/transferable skills requirement for jobs in that
cluster. He noted jobs in this option were limited in degree of strenuousness and allowed for
postural flexibility between sitting and standing, if necessary.
40. With respect to the opinions of the worker’s family physician and acupuncturist that she was
unable to work, the internal review specialist noted their opinions ‘preceded the updated
functional information gathered in the recent functional assessment’. As a result the
internal review specialist upheld the July 8, 2015 decision of the case manager the worker
was capable of working and earning at a four-hour sedentary degree within her functional
abilities and restrictions.
Analysis
41. I find, after listening to the worker’s presentation and reading her correspondence received
by WorkplaceNL on July 29, 2015, her primary argument for determining she was unable to
work and earn in any capacity was due to the fact her opinion was supported by her treating
health care providers, specifically her family physician and her acupuncturist.
42. After reading the September 25, 2015 internal review decision and hearing Ms. Harry’s
comments at the hearing, their primary argument for determining the worker had the ability
to work and earn in the identified NOC Code was because the evidence supported the fact
she had both the functional/physical ability and the educational/skills background to perform
the duties. As such, they believed WorkplaceNL’s decision was made in accordance with
legislation and policy.
43. My role as a Review Commissioner is to review the decision of WorkplaceNL and
determine if WorkplaceNL, in making that decision, acted in accordance with Act,
regulations and policy. Section 60(1) of the Act states:
‘An issue related to a worker’s entitlement to compensation shall be decided
on a balance of probabilities and, where the evidence on each side of an
issue is equally balanced, the issue shall be decided in favour of the worker.’
Policy EN-20: Weighing Evidence provides direction to decision makers when faced with
conflicting medical evidence. It states:
‘Decision makers must assess and weigh all relevant evidence. This
necessarily involves making judgments about the credibility, nature and
quality of that evidence as they determine the weight of evidence on either
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side of an issue. Decision makers must weigh conflicting evidence to
determine whether it weighs more toward one possibility than another.
Where the evidence weighs more in one direction then that shall determine
the issue.’
The principle is equally relevant in this instance:
‘When addressing conflicting medical evidence, decision makers will not
automatically prefer the medical evidence of one category of physicians or
practitioners over that of another. Decision makers shall consider the
following criteria in deciding what weight to give to such evidence:
a.
b.
c.
d.
e.
the expertise of the individual providing the opinion;
the correctness of the facts relied upon by the provider of the opinion;
any issues of bias or objectivity with the opinion;
subjective versus objective medical evidence; and
the findings of any relevant scientific studies referenced by a qualified
medical practitioner.’
44. I note the worker began her presentation by questioning how WorkplaceNL could accept the
findings of her June, 2015 functional capacity assessment, especially the determination she
possessed the ability to sit for four hours a day. She noted she was barely able to tolerate
sitting for two hours a day while she was being assessed by the LMR planner along with the
forty minutes it took to make the return trip.
45. While I believe the worker sincerely believes that she lacks the functional/physical ability to
work in the identified NOC Code, the issue under review is whether the evidence on file
supports WorkplaceNL’s determination that she possessed the functional ability and
education and skills background to work in NOC 668, ‘Other Elemental Service
Occupations’.
46. I note, in his decision, the internal review specialist referenced a previous decision he had
made on the worker’s ability to work and earn in alternate employment dated June 2, 2015.
The internal review specialist referenced a clinic based occupational rehabilitation discharge
report dated July 2, 2014, wherein the occupational therapist indicated a partial limited
degree of strenuousness with a four hour work day tolerance. The occupational therapist
noted, ‘No gains noted from attending CBOR’ and listed the restrictors as ‘Limited Standing
and Low Level activities’. As a result, the internal review specialist referred the file back to
the worker’s case manager to re-examine the function with regards to workday tolerance.
47. I note, in determining the worker’s physical functioning, the case manager requested an
opinion from a WorkplaceNL medical consultant who, in a claim note dated July 16, 2014,
stated in part:
‘With regards to employability, the medical suggests that (the worker) has
some functional tolerances at least to a sedentary level. An updated
functional assessment may be of benefit. The Occupational Therapy
Consultant’s opinion is suggested in this regard’.
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48. The case manager also requested an opinion from one of WorkplaceNL’s occupational
therapy consultants who, in a claim note dated July 17, 2014, expressed her agreement with
the medical consultant with respect to obtaining an updated functional assessment focusing
on ‘sedentary seated work’. I note the occupational therapist consultant pointed out that a
reason why the worker failed to make any significant gains in clinic based occupational
rehabilitation was due to the fact ‘this was targeting the pre-injury work’ which was
completed in standing only and required lifting up to 20 pounds.
49. I note a functional assessment was completed by the worker on September 18, 2014,
focusing on sedentary tolerances such as desk top and computer work along with overall
sitting ability. The occupational therapist indicated the worker demonstrated an occasional
tolerance for sitting and a minor tolerance for walking and static/dynamic standing. Based
on these results, I note the occupational therapist indicated the worker demonstrated ‘a less
than part-time workday tolerance to complete sedentary job demands and should sedentary
work be considered, a work station review would be recommended’. I note, the
occupational therapist also stated a sedentary position which the worker had previously
attempted had resulted in a flare-up of symptoms.
50. I note, the occupational therapist was requested by the case manager for further clarification
with respect to the results of the September 2014 functional assessment. In an addendum
received by WorkplaceNL on November 20, 2014, the occupational therapist stated the
worker’s ‘subjective reports are not reliable and there are significant discrepancies that
exist’.
51. The occupational therapist concluded the addendum stating:
‘Given the above noted inconsistencies between [the worker’s] demonstrated
ability in comparison to subjective reports of abilities, the client’s subjective
reports are not reliable. Client’s minor walking and standing tolerance in
conjunction with occasional sitting tolerance demonstrated, does not provide
the client with a part-time workday, however, in considering subjective
reports such as sitting for 1 hour durations and walking for 20-30 minutes
daily this workday tolerance may change. Based on the client’s reports of
abilities at home for sitting and walking, as well as her reported ability to
prepare meals, complete home cleaning tasks and spend time on the
computer, the client demonstrates a part-time workday tolerance at a
limited/sedentary degree of strenuousness. To be successful completing
sedentary job demands, an ergonomic setup workstation review would be
recommended.’
(emphasis mine)
52. I find essentially, while the occupational therapist found the subjective reports of the
worker’s functional ability unreliable, she indicated, based on the worker’s subjective
reports of her functional abilities in her daily living, she would be capable of a four-hour
workday at a limited/sedentary degree of strenuousness.
53. I note WorkplaceNL’s occupational therapist consultant was asked to provide an opinion
on the results of the September 2014 functional assessment, in light of the occupational
therapist’s addendum. In a claim note dated November 26, 2014, the occupational
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therapist noted, despite demonstrating a ‘less than part-time workday ability’, the worker
outlined a daily routine which would support, at a minimum, a part-time workday ability
for sedentary work. The occupational therapist consultant noted the worker’s reports of
being able to work in 30 minute durations, perform all daily living activities (meal
preparation, cleaning/light housework, etc.) and the ability to perform computer work in up
to 20 minute durations. I note as a result, the occupational therapist consultant concluded
by stating:
‘Based on the medical on this claim, the worker’s reported abilities at home,
demonstrated sitting tolerances, [the medical consultant] comments dated
July 16, 2014, and the provider’s opinion as noted in the addendum to the FA
dated November 20, 2014, I do feel that a 4 hour workday for sedentary work
is both safe and reasonable for this 45 year old worker with previous
experience with this type of work as a customer service representative.’
54. I note, despite the opinions by the occupational therapist in her November 2014 addendum
and the occupational therapist consultant in her November 2014 claim note, the worker had
the functional ability to work a four-hour workday at a limited/sedentary level of
strenuousness, the internal review specialist in his June 2, 2015 review was not satisfied.
He noted the occupational therapist’s opinion was formulated on unreliable information.
The internal review specialist also found, since the occupational therapist consultants used
the same subjective reports, then her ‘opinion on workday function carries little weight as
the opinion was extrapolated from unreliable subjective reports’. I find the internal review
specialist was correct to refer the matter back to the case manager to re-examine the
worker’s functional ability. This, I find, to be especially relevant given his comment the
worker’s family physician has, ‘supported your current functional ability since March 5,
2015 indicating that you are unable to tolerate 4 hours due to pain and radicular features
in your leg’.
55. With respect to the opinion of the family physician, I note the worker had been followed by
the same family physician since her injury in 2004. I note in his last Form 8/10 report,
dated March 5, 2015, the worker’s family physician provided the following comment with
respect to the worker’s ability to return to the workforce:
‘Unable to tolerate 4 hours of sitting w/o pain buttocks/leg/numbness foot’
56. I note the family physician provided an addendum to the above referenced From 8/10
report, which stated:
‘Unable to tolerate 4 hours of sitting w/o pain buttock/leg/numbness foot’
‘Addendum 15/3/18: Flare up 5x back & radicular legs post OT [clinic name]
asseme (sic)’
57. I also note another one of the worker’s treating health care physician, who provided
acupuncture treatments, also weighed in on the worker’s ability to return to the workforce.
In her last Form 8/10 report dated August 21, 2014, the treating physician indicated there
were, ‘no long term improvement from all the G.T.T. (acupuncture) + stretching she has
done since my 1st assessment: No further G.T.T. indicated and unable to tolerate
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chiropractic care and no response to physio or work hardening’. I will return to both of
these reports later.
58. I note, following the direction provided by the internal review specialist in his June 2, 2015
decision, the case manager requested an updated functional assessment which was
completed on June 22, 2015 by a different occupational therapist.
59. I note the occupational therapist began her report by pointing out she was specifically
asked to focus on the worker’s workday tolerance and level, postural tolerances (i.e. sit,
stand and walking), overall endurance and functional abilities.
60. With respect to assessing workday tolerance, I note the occupational therapist provided the
following:
‘From a clinical perspective, workday tolerance is determined based upon a
combination of objective analyses of demonstrated tolerances such as sitting,
standing, and walking, as well as symptom responses associated with each.
Also taken into consideration are medical diagnosis, endurance and level of
physical fitness, time off work since injury, and frequency, severity, and
consistency of pain reports and behaviours from start to finish of functional
testing.’
The occupational therapist indicated, based on the above referenced analysis/information;
the worker demonstrated the following results:
‘Functional:
•
•
•
Sitting tolerance is projected as Frequent, 30 minute durations
Standing tolerance is projected as Occasional, 20 minute durations
Walking tolerance is projected as Frequent, moderate distances.’
The occupational therapist also indicated pain reports were noted to increase slightly from
start to finish of physical testing in terms of intensity.
61. With respect to endurance, the occupational therapist indicated the worker had been off
work since 2013 and noted little change in functional status since her functional assessment
in September 2014. The worker noted she was ‘independent with self-care and basic
activities of daily living, but notes she requires flexibility to pace herself and change
postures in order to tolerate her daily routines’. Based on the above and other factors, the
occupational therapist felt the worker had the functional ability to work a four-hour
workday at a limited/sedentary level of strenuousness within the functional abilities
outlined in her report.
62. With respect to the Form 8/10 reports provided by the worker’s family physician and
acupuncturist, already noted earlier in this decision, I note the internal review specialist
made reference in his June 2, 2015 decision to the Form 8/10, ‘Physician’s Report’ from
the family physician dated March 5, 2015, which supported the worker’s inability to
‘tolerate 4 hours due to pain and radicular features in your legs’. As a result of this report
and the fact the opinions of the occupational therapist and occupational therapy consultant
relied upon what were admittedly ‘unreliable, subjective reports’, the internal review
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specialist correctly decided to refer the worker’s claim back to the case manager to reexamine the worker’s functional ability, leading to the updated functional assessment on
June 22, 2015, which had already been noted. I believe this was appropriate at the time,
given the ambiguity in the functional abilities information and the inconsistencies in the
reasoning in the existing decision. The new assessment was intended to clarify matters, as
indicated in the referral question, and this is what happened.
63. I note in the Supreme Court case of Bulger v. Workplace Health Safety and Compensation
Commission, the judge stated:
‘[54] The difficulty arises because the Review Division saw the case resting
on its acceptance of one medical report over another. In my view, when a
physician who has treated an individual for many years, submits a report
saying there has been a deterioration in his patient’s condition, it must be
considered very seriously. I do not believe the Review Division gave it the
weight it deserved.’
The opinion of a family physician always has to be taken seriously as a medical doctor.
This would be particularly important, as Bulger suggests, where the worker’s family
physician is offering a different opinion on deterioration or clinical history, as the family
physician is in a good position to evaluate this. However, I do not believe the family
physician has any necessary advantage in quantifying earning capacity. The issue in this
claim is the worker’s ability to work four hours a day, as was determined by the
occupational therapist following her updated functional assessment in June 2015.
64. I note however, other than expressing his opinion on the worker’s inability to ‘tolerate 4
hours of sitting’ and providing a diagnosis of ‘radiculopathy’, the physician provided no
objective findings, functional or otherwise, to support his opinion. I note the family
physician, in his previous Form 8/10 dated September 4, 2014, other than indicating the
diagnosis ‘Radiculopathy’, again failed to provide any objective findings. I also note the
family physician, in his September 2014 report, made no mention of the worker’s inability
to work, other than the reporting ‘Off’.
65. Also, the treating physician seems to be assuming the worker would be expected to sit for
four hours a day. That is not what the worker was matched to. The worker’s capacity is
described in terms of an overall level of strenuousness, but the 2015 functional assessment
clearly identifies the frequencies of a number of postures, together with recommended
durations. Had the worker been matched to a purely sedentary position with no ability to
change positions, the treating physician’s opinion likely would have carried more weight.
However, the identified option does not require this, so the assumptions are not entirely
accurate. The 2015 functional assessment accepts the four hour tolerance on the basis of
the worker having the ability and flexibility to alternate posture.
66. I have also reviewed the most current Form 8/10 reports from the worker’s physician who
provided her acupuncture treatments. In addition to the physician’s comments in her final
Form 8/10 dated August 21, 2014, already referenced, I note the physician goes on to state,
‘I don’t feel she is matched with any work, but O.T. may suggest otherwise after an F.C.E.
(if done)’. I note in her previous Form 8/10 report dated July 31, 2014, the physician
stated, ‘Zero hours until flare up settled. Not matched with any job at [the employer]. No
therapy will treat [the worker’s] symptoms to get her back to an active job.
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Retraining/sedentary work only’. I note in her previous report dated July 3, 2014, the
physician adds the comment that the worker, ‘should look into alternative sedentary work
or retraining’. I find, on a balance of probabilities, what the worker’s acupuncturist is
essentially saying is the worker is unable to work in jobs similar to her last job, which
caused her symptoms to flare up, but she is capable of ‘alternate sedentary work’.
67. I have given serious consideration to the opinions of both the worker’s family physician
and her acupuncturist, albeit more so to the opinion provided by the family physician that
that of the acupuncturist. When I read the comments from the acupuncturist, referenced
above, I find she is not saying the worker is not capable of working, but is only unable to
return to the same type of duties she was doing to cause a recurrence/flare up of her
symptoms. In fact, the acupuncturist, in her August 21, 2014 appeared to be deferring the
issue of the worker’s employability to an occupational therapist stating that an ‘O.T. may
suggest otherwise after an F.C.E. (if done)’. I note in her previous report dated July 31,
2014, the acupuncturist recommends, ‘Retraining/sedentary work only’, which supports the
conclusion reached by the occupational therapist following the completion of the updated
functional assessment in June 2015.
68. When weighing evidence on the balance of probabilities, the assignment of weight is
influenced by the authority of the evidence, its basis, its origin, etc. In this particular case,
while the worker has claimed she is unable to work four hours a day, which is supported by
her family physician in his March 5, 2015 Form 8/10 report, I find on a balance of
probabilities, this is not supported by the evidence. WorkplaceNL has thoroughly
investigated the matter to the point of overturning previous opinions from a different
occupational therapist and agreed to, by one of their occupational therapist consultants and
referring the matter back to the case manager to obtain another functional assessment. In
this case, the balance of probabilities is the test, which brings me to Section 60(1) of the
Act.
69. In this case, there is some evidence on both sides of the issue. The family physician’s
report provides some support for the worker’s claim. However, I find the weight to be
placed on the physician’s opinion is diminished by the fact he has provided no functional
objective information to support his conclusion and on the basis of an assumption there is a
full four-hour sitting requirement. I also note the physician’s opinion predated the updated
functional information obtained in the June 2015 functional assessment.
70. By contrast, the determination by WorkplaceNL, that the worker has the functional ability
to work a four-hour workday at a sedentary level of strenuousness, with noted restrictions,
is supported by the evidence. The updated June 2015 functional assessment provides a
direct objective assessment on the worker’s functional ability, as determined by a licensed
occupational therapist, who has a particular expertise in making such determinations. I
note the occupational therapist began her report by outlining the reason for the updated
functional assessment which was to ‘focus on the workday tolerance and level, postural
tolerances (site, stand and walking), overall endurance, and functional abilities’. I find
this to be a clear indicator the occupational therapist was well aware of the purpose of the
assessment.
71. I find, on a balance of probabilities, the determination by WorkplaceNL is supported by the
objective evidence such as the updated functional assessment. While there is conflict in the
evidence, I conclude WorkplaceNL did resolve it by a proper weighing, both under Section
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60(1) and Policy EN-20: Weighing Evidence. As a result, the application of Section 60(1)
of the Act, with respect to the worker’s functional abilities does not provide for a finding in
favour of the worker.
72. With respect to the issue of whether or not the worker has the educational/skills
background to perform the duties within the identified NOC Code, I refer to the February
16, 2015 labour market re-entry report. I note the medical evidence, specifically the July
31, 2014 Form 8/10, ‘Physician’s Report, indicated the worker was unable to return to the
employment which resulted in her most recent recurrence (May 22, 2013). As a result, the
worker was referred for a labour market re-entry assessment as per section 89.2 of the Act,
which states:
‘89.2(1) The commission shall provide a worker with a labour market re-entry
assessment where
a) it is unlikely that the worker will be re-employed by his or her
employer because of the nature of the injury;
b) the worker’s employer has been unable to arrange work for the
worker that is consistent with the worker’s functional abilities and
that restores the worker’s pre-injury earnings; or …
…
(2) The commission shall determine, after reviewing the results of an
assessment, whether a worker requires a labour market re-entry
plan in order to enable the worker to re-enter the labour market and
reduce or eliminate the loss of earnings that may result from the
injury, and shall determine the employment that is suitable for the
worker.’
73. The labour market re-entry planner identified four direct entry employment options which
he considered safe, suitable and within the worker’s restrictions. I note based on the
psychometric testing results summarizing the worker’s academic functioning and
achievement, the labour market re-entry planner felt the worker was qualified to work in
NOC 668, Other Elemental Service Occupations.
74. I note the worker had completed her high school diploma which satisfied the educational
requirement for jobs in NOC 668, Other Elemental Service Occupations. I note the labour
market re-entry planner referenced the numerous transferable skills which she had
developed throughout her work history, stating:
‘Throughout [the worker’s] working career she has utilized her general
learning and verbal ability to attain relevant transferable skill for reemployment. [The worker] has used her previous training and work
experience as a Telemarketer, Food Counter Attendant, Cashier, Service
Station Attendant and Fish Plant Worker in as much as assisting and
communicating with the general public, providing customer service, accepting
payment for food orders and following instructions. All of these offer her
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excellent relevant transferable skills and provide positive skills, abilities and
characteristics for employment seeking.’
75. From a physical perspective, I note jobs in the identified NOC Code option are limited in
degree of strenuousness and provide for postural flexibility between sitting and standing,
which will be required by the worker. As a result, I find, on a balance of probabilities, the
worker had the necessary capacity and educational/skills background to work in the
identified NOC Code.
76. The issue before me is whether or not WorkplaceNL erred based on the worker’s argument
“that she is not capable of working and earning in any capacity”. However, the worker’s
capacity to work in alternate employment was assessed by a licensed occupational
therapist, who, as already noted, has a particular expertise in evaluating functional
capacity. I note the occupational therapist, while recognizing the worker’s restrictions,
particularly, her postural tolerances, still was able to determine the worker had the
functional/physical capacity to work and earn in the identified NOC Code 668, Other
Elemental Service Occupations at four-hours a day at a limited/sedentary level of
strenuousness.
77. The Act, as specifically noted in Section 74, is based on the disability model. A worker
becomes entitled, under Section 73, to benefits for loss of earnings capacity if there is a
loss of earnings capacity ‘resulting from’ the injury. WorkplaceNL, upon reviewing the
worker’s capacity, may estimate the wages which the worker is considered capable of
working and earning. In other words, if the worker has the transferable skills and
functional capacity to work in some alternate form of employment, WorkplaceNL may
estimate the wages associated with the options that are within the worker’s capacity. As
clarified in Policy RE-15: Determining Suitable Employment and Earnings, capacity is the
relevant factor, not the availability of the employer at the time of the decision. Section 74
states in part:
‘(1) Where injury to a worker results in loss of earnings beyond the day of
the injury, the commission shall estimate the effect of the injury on the
loss of earning capacity resulting from the injury and shall ensure
compensation to the worker on the basis of the estimated loss.
(2) For periods of wage loss after December 31, 1997, the rate used for
calculating a worker’s loss of earning capacity shall be 80% of the
difference between the worker’s average weekly net earnings at the
commencement of his or her loss of earnings resulting from the injury,
subject to the maximum prescribed amount under subsection 80(8), and
the average weekly net earnings the worker is estimated to be capable of
earning at a suitable employment after sustaining that injury.
(3) The commission for the purpose of subsection (2) may determine that a
worker is capable of working in suitable employment and estimate the
wage he or she could earn in that employment.’
(emphasis mine)
78. Section 74 of the Act gives WorkplaceNL the authority to ‘estimate’ the wage the worker
can earn in the suitable employment option provided WorkplaceNL can demonstrate the
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worker has both the functional/physical ability and educational/skills background to work
in the identified NOC 668, Other Elemental Service Occupations . If the worker has the
capacity/skills for the suitable employment and the suitable employment exists in the
Province of Newfoundland and Labrador, WorkplaceNL may offset the worker’s earnings
loss benefit to the extent of the worker’s remaining earning capacity. While this model is
frequently criticized, it is the model contained in the Act and Policies. In this case,
WorkplaceNL followed it, so there is no error on the part of WorkplaceNL for me to
correct.
79. As a result, I find on a balance of probabilities, the weight of evidence supports
WorkplaceNL’s determination the worker had both the functional/physical capacity and
educational/skills background for the identified NOC 668, Other Elemental Service
Occupations.
Decision
80. I find WorkplaceNL acted in accordance with the Act, regulations and policies and did not
err in its decision dated September 25, 2015 finding the worker was capable of working and
earning in NOC 668, other Elemental Service Occupations. With respect, the review is
denied.
Review Denied
Keith Barry
Date
Review Commissioner
KB/jr/sb
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