WORKPLACE SAFETY AND INSURANCE
BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090063
OBJECTION BY: Worker
EMPLOYER: (Not Participating)
REPRESENTATIVE: Worker Representative
HEARING DATE: October 7, 2009
ATTENDEES: Worker, Worker Representative
ISSUES:
The worker in this case is requesting that (1) full loss of earnings (LOE) benefits be allowed from January 3, 2008 on the basis that the injuries sustained preclude a return to the pre-injury employment, and, (2) that he be granted health care costs for physiotherapy and weight loss programs.
HOW THE ISSUES ARISE:
On February 4, 2007 this then 47 year old worker sustained compensable injuries to both knees when his skis did not release when externally rotated. At the time of injury the worker had been employed with Devils Glen Country Club since December 27, 2006 as a Level 1ski race coach. Pre-injury wages were reported as $125.00 per day. The worker was also concurrently employed with another ski lodge as a Level 1 ski and snowboard instructor.
Both employers offered non skiing duties which the worker accepted and performed until the end of the ski season in March 2007. Partial loss of earnings (LOE) benefits were paid based on the hours worked from February 5, 2007 until March 24, 2007. Full LOE benefits were allowed as of March 24, 2007.
The worker was diagnosed with bilateral knee strain and a possible meniscus tear of the left knee. Treatment post accident was conservative consisting of analgesics and physiotherapy.
After assessment at a specialty clinic it was determined that there was a meniscus tear of the left knee and a complete tear of the left ACL, a surgical repair was required. The right knee was diagnosed with a Grade 2 MCL sprain and was anticipated to achieve a full recovery.
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As the employers could not continue to accommodate the worker, a referral was made for labour market re-entry (LMR) services on May 16, 2007. After assessment it was learned that the worker had completed a recreation and leisure diploma program in 1992 and a 3 year business administration diploma program in 1993.
Surgery was scheduled for the left knee on June 14, 2007. As a result LMR services were placed on hold until recovery from the surgery was achieved.
In July 2007 the worker requested payment for swimming pool access as recommended by his physician. He was informed that pool admission was not a covered benefit as it was not supervised by a health professional.
On July 31, 2007 the LMR service provider recommended a suitable employment or business objective of Administrative Clerk (NOC 144) to take advantage of the worker’s prior diploma programs and transferrable skills. In order to access this SEB a 4 week job search training program was recommended.
The creative job search training program was scheduled from August 20, 2007 until
September 14, 2007. The worker did not attend this job search program as he elected to move to Elliot Lake and a local program was not available.
It was then determined that the worker would benefit from computer upgrading in order to access the identified SEB. Approval was granted for this amendment to the LMR plan and the worker commenced training on October 9, 2007.
In the medical report dated November 27, 2007 Dr. Cameron, orthopaedic specialist, indicated that the worker had full range of motion in the left knee, no effusion, and a solid ACL repair. It was further indicated that the worker could return to his pre-injury employment as a ski instructor with a knee brace.
On December 19, 2007 the adjudicator contacted the LMR service provider and indicated that the LMR plan should be discontinued as the worker was deemed fit to resume his pre-injury employment by the treating physician. As a result LMR services closed on December 21, 2007.
LOE benefits were discontinued as of January 2, 2008 based on the worker being medically able to resume his pre-injury employment.
The worker, through his representative, submitted a 137 page report arguing that he was not capable of returning to his pre-injury employment.
On August 1, 2008 the WSIB medical consultant reviewed the existing medical reporting and offered the opinion that the worker’s weight gain and physical conditioning were not related to the compensable condition but due to the worker’s personal behavior. In
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addition it was indicated that according to the medical information the worker could return to the essentials of the pre-injury job of ski instructor.
On October 15, 2008 an 11% Non Economic Loss (NEL) award was granted in recognition of the left knee impairment.
According to the file record the worker objected to the closure of LOE benefits and the denial of health care services on June 27, 2008.
AUTHORITY:
Policy No: 17-01-02: Entitlement to Health Care Policy No: 18-03-02 : Payment of LOE Benefits Policy No: 19-03-03 : Determining Suitable Employment or Business
ASSESSMENT OF THE EVIDENCE:
The worker representative argued through the original objection form, related file documents, and worker testimony that the worker was not capable of resuming his pre-injury employment due to the extreme physical nature of the associated job duties. In addition it was argued that given the loss of the left leg quadricep mass and the fact that the worker was required to wear a brace that the risk for further injury was high.
It was argued that the specialist was not fully aware of the physical demands of the pre-injury employment and that the WSIB had initially accepted that the worker could not return to the pre-injury employment.
Furthermore it was argued that the worker was not given a functional capacities evaluation as recommended medically and that his subsequent weight gain and quadriceps loss was a direct effect of the compensable injury.
The employer participant form was not returned regarding this objection.
In reaching this decision I had regard for the worker arguments, worker testimony, the Board record, Operational policy, and the Act.
Testimony of the worker:
The worker testified that he was employed by the accident employer on a part time basis as an Alpine race coach which required a specific high level certification. The physical demands of this position required that the worker demonstrate high speed racing techniques, high speed turns through racing gates, and at times one legged skiing.
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He further testified that in his concurrent employment he was employed as a full time ski and snowboard instructor requiring specific certification. The physical demands of this position while not as demanding as those associated with the Alpine race coach position still required physical demonstration of downhill skiing, turns, and emergency stop techniques.
He stated that due to the loss of his left quadriceps mass and the necessity to wear a brace that he could not perform the duties of a ski instructor or Alpine race coach as required. He further stated that he did attempt ski instructor duties with a new employer in January 2008 but could not continue after two weeks due to specific limitations caused by the knee brace and the risk of further injury.
The worker stated that during the ski season his weight remained static due to his daily physical activity. After the accident he gained weight despite changing his eating habits to a healthier life style. He attributed this weight gain to an inability to exercise and be physically active.
He indicated that he could not afford the necessary weight loss programs and physical training to recover to his pre-injury state.
With respect to his LMR plan he stated that he put forth his best effort and was willing to continue.
Payment of LOE benefits from January 3, 2008:
Policy 18-03-02, payment of LOE benefits, stipulates:
"A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings benefits beginning when the loss of earnings begins.
If the nature and seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker's LOE benefits."
According to policy 19-03-03, determining SEB, it stipulates that:
"The WSIB determines the suitable employment or business (SEB) for a worker when deciding whether the worker requires a labour market re-entry (LMR) plan.
A suitable employment or business (SEB) represents a category of jobs suited to a worker's transferable skills that are safe, within the worker's physical abilities, and reduce or eliminate the loss of earnings (LOE) resulting from the injury."
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In reviewing the circumstances of this case it is noted that the WSIB initially accepted that the worker could not return to the pre-injury employment and as a result approved LMR services.
Upon receipt of the specialist’s report of November 27, 2007 the adjudicator discontinued LMR services and the active physiotherapy program which was scheduled for an additional 3 months.
The discontinuation of these programs occurred in January 2008 and severely disadvantaged the worker as the pre-injury employment was seasonal in nature and is usually secured in the preceding fall. As a result neither employer could employ or accommodate the worker.
As indicated, the worker attempted to resume his ski instructor duties with a new employer but could not continue beyond 2 weeks due to the limitations associated with the compensable injury.
The pre-injury employment was for an Alpine race coach. In memo #124 the WSIB medical consultant confirmed that the worker could not perform advanced level ski instruction. As a result the worker could not have returned to the pre-injury employment.
In addition, in this memo the medical consultant offers the opinion that a functional capacity evaluation and work hardening program would be of no benefit as they did not relate to the specific physical demands of a ski instructor.
The WSIB cannot support a weight loss program or gym membership as these activities are usually not provided or monitored by a health care professional except in extreme cases.
Given this medical information, it is not reasonable to expect that the worker could return to the duties as a ski/snowboard instructor without the risk of further injury or the ability to perform the full associated duties.
As a result I find that the worker is entitled to full LOE benefits from January 3, 2008.
In addition, as the worker cannot return to the pre-injury employment I find the worker is entitled to a resumption of the LMR program to train for alternate employment.
Reimbursement for physiotherapy and weight loss programs:
Policy 17-01-02, entitlement to Health Care stipulates:
“A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.”
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The worker was involved in a physiotherapy program which was discontinued 3 months before it was scheduled to end. As a result of the discontinuation of this program the worker continued to experience a loss of quadricep mass which now measures 4 cm in difference. This is a significant indication loss of left leg strength and mobility loss.
I find that there is no justification for a weight loss program or strength training program as the worker cannot resume the pre-injury employment.
However, I find that the worker is entitled to the continuation of the physiotherapy program which was medically recommended and prematurely discontinued
CONCLUSION:
I conclude that full LOE benefits are in order from January 3, 2008.
I conclude that the worker is entitled to a resumption of the LMR program to train for
alternate employment.
- I conclude that the worker is entitled to the continuation of the physiotherapy
program which was prematurely discontinued.
- I conclude that there is no justification for a weight loss program or strength training
program as the worker cannot resume the pre-injury employment.
The worker’s objection is therefore allowed in part.
DATED this day October 28, 2009
R. Sheridan
Appeals Resolution Officer Appeals Branch