WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
dECISION nUMBER: 20090061
OBJECTION BY: Worker
WORKER: Participating
REPRESENTATIVE: Worker
EMPLOYER: (Did not participate)
ISSUE
The worker seeks entitlement to full loss of earnings (LOE) benefits from February 11, 2008 to February 26, 2008.
HOW THE ISSUE AROSE
This worker had a gradual onset of right wrist pain from typing and using a computer mouse in November 2007. The disablement, a gradual onset type of accident was accepted for initial entitlement given the diagnosis of right wrist tendonitis and confirmation of the type of work the worker was doing in the course of her employment.
The date the worker reported the injury to her employer, November 21, 2007, was the date accepted as the date of accident. The worker continued to perform her regular work duties and health care benefits were allowed for treatment of the injury.
In February 2008, the adjudicator was advised that the worker had lost time from work starting from February 11, 2008. A medical report dated February 21, 2008 was received from the worker’s physiotherapist providing restrictions for work. Based upon the medical information that indicated that the worker was capable of work with restrictions, the adjudicator denied loss of earnings from February 11, 2008 to February 26, 2008. This decision was communicated to the worker in a letter dated February 28, 2008.
Further medical information was received that indicated that the worker was unable to work from February 11, 2008 and the adjudicator obtained a medical opinion from the WSIB medical consultant to clarify the level of impairment.
Based upon the medical consultant’s opinion that the medical information received did not support total disability, the adjudicator determined that the worker was not entitled to full LOE
benefits from February 11, 2008 to February 26, 2008 and provided the worker with a decision dated April 14, 2008 confirming the denial of LOE benefits.
The worker submitted a letter of objection dated August 28, 2008. With this information, the adjudicator reconsidered the decision of April 14, 2008, however the decision was unchanged. The worker was advised of the reconsideration decision in a letter dated October 1, 2008.
As the worker was dissatisfied with the outcome of the reconsideration decision, she launched an appeal through her representative.
AUTHORITY
Operational Policy- 18-03-02 - Payment of LOE Benefits
Best Approaches Guides - Recognizing Time to Heal – Assessing Timely and Safe
Return to Work
RESOLUTION METHOD AND PROCESS
The worker’s representative has requested a decision without a hearing and has submitted correspondence to support the worker’s objection.
Initially, the employer indicated their desire to participate in the objection through completion of the Employer’s Participant Form; however in correspondence dated October 14, 2009, I was advised that the employer will not be participating in this appeal.
ASSESSMENT OF THE EVIDENCE
In assessing the issue in dispute, I have had regard for all the information in the claim file and in particular, the following categories of information and evidence as summarised below:
Operational Policy
Adjudication Support Document
The worker’s statements
The representative’s submission
Medical information on record
1. Operational Policy
Policy Document 18-03-02 - Payment of LOE Benefits
In this policy it states, in part, “A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins… If the nature or 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.”
2. Adjudication Support Document
Best Approaches Guides - Recognizing Time to Heal – Assessing Timely and Safe
Return to Work
This guideline provides the following advice, in part, for adjudication,” It is recognized that there are cases where “rest” is an appropriate form of treatment and required in order to speed recovery and facilitate a successful return to work. This should be determined based on an assessment of the nature and degree of the injury in each case.”
3. The Worker’s statement
The worker’s letter of August 28, 2008 provides the following information. The worker indicates that that she had an onset of pain in her right wrist beginning on November 9, 2007. As the pain persisted she advised her employer on November 21, 2007 and sought medical attention on November 26, 2007. She was diagnosed with tendonitis.
The worker states that she saw her physiotherapist on November 28, 2007 and he recommended a brace for her right hand and advised her to rest her wrist as much as possible. Through conducting her regular work, by December, 2007, the worker indicated that she began to experience symptoms of both wrists. Her family doctor suggested she stop her usual activities at work and at home. The worker continued working and self accommodated.
On December 10, 2007, she was seen by her family doctor. She states that despite the changes that were made at her workstation and her attempts at staying off the keyboard and minimizing the use of the mouse, her symptoms were worsening. He doctor told her that the next step was rest from work. The worker states that the area she was working in was short-staffed and was involved in year-end activities and therefore she was reluctant against her doctor’s advice to be away from work. She stated that she had pre-planned vacation from December 22, 2007 to December 31, 2007, and anticipated that this period of rest would help.
The worker states when she saw her family doctor on January 7, 2008, he advised her to stop work as her symptoms were not improved. The worker stated that she resisted due to her workload. At that time her left wrist was painful as well and she booked a follow up appointment for February 2008.
The worker also explained that when she saw the physiotherapist between January 7, 2008 and February 11, 2008, he told her that the best treatment for her condition was total rest from activities that exacerbate her symptoms. On February 11, 2008 when she was assessed by her family doctor, she had pain with even simple tasks such as washing her hair. At that time, her doctor advised her that she was
not to return to work for at least two weeks and the worker was provided with a medical note.
The worker states that while she was off of work, she received physiotherapy treatment three times weekly and after 10 days she was getting better. The worker explains that she returned to a graduated return to work, modified duties on February 27, 2008.
4. The Representative’s submission
The following is a summary of the arguments submitted by the worker’s representative in their letter dated September 1, 2009:
The worker was assessed by the family doctor on November 26, 2007 and was diagnosed with right wrist tendonitis and physiotherapy and an ergonomic assessment were recommended.
The worker continued to experience pain despite informal changes to her work methods.
By December 2007, the worker began to experience symptoms in her left wrist. The worker continued to work because her work area was short-staffed and she was conducting year-end activities.
The family doctor, in his medical report of January 7, 2008, indicated that the worker’s condition was not improved and he discussed time off work with the worker, which was recommended by the physiotherapist. The doctor noted that the worker was reluctant to take time off work.
In the medical report of February 11, 2008, the doctor indicated that the worker’s bilateral wrist condition was unchanged, even after ergonomic improvements in her workstation. The worker’s family doctor advised her to take two weeks off work to rest her wrist.
The representative points out that the worker’s doctor and physiotherapist recommended a complete break from work for healing and settling of the inflamed tendons in her wrists.
The representative submits,”According to much the literature available, rest is often the prescribed treatment for tendonitis to allow for the inflammation of the tendons to subside.”
The representative submits, “The prescribed rest did, in fact, improve Ms.__(the worker’s) symptoms and she was capable of returning to modified duties and reduced hours following her 2-week respite”.
The representative also states that the worker, “...is a conscientious individual who holds a responsible position...She was reluctant to take time off work due to the demands of her job and only did so at the insistence of her treating physician after symptoms failed to subside while working.”
The attached letter from the worker’s family doctor dated August 18, 2009 provides the following information:
Confirmation of the dates he saw the worker regarding her wrist condition(s); November 26, 2007, December 10, 2007, January 7,2008, February 11, 26, March 25, April 15, September 22, November 4, and December 2, 2008.
At the appointment of January 7, 2008, the worker and doctor discussed the physiotherapist’s recommendation of taking time off work to allow the worker
complete rest. The worker told her doctor that she wanted to wait a month due to business at work.
On February 11, 2008, the doctor recommended a two week leave from work to rest her wrists. The diagnosis at the time was bilateral wrist tendonitis with anticipated improvement with rest.
The doctor stated that the two week leave from work was suggested by the worker’s physiotherapist as well as herself, in an effort to allow some healing and settling of the inflamed tendons in the wrists.
When the worker was follow-up on February 26, 2008; the worker indicated that her wrist had improved and as a result of rest from work. At that time, the worker was allowed to return to work on modified duties and hours.
5. Medical information on record
The following is a summary of the issue specific medical information on record:
February 11, 2008 - Family doctor’s note
The doctor wrote, “Due to ongoing worsening wrist tendonitis, ___ (the worker) will be off work effective immediately. I will re-evaluate a graduate return to work on February 26, 2008.”
February 15, 2008 - Physiotherapist’s Treatment Extension Request
The diagnosis provided by this treating practitioner is bilateral wrist tendonitis. He notes that the worker had reduced range of motion and indicated that the worker’s functional limitations were: repetitive use of hands, gripping and typing.
February 21, 2008 - Health Professional’s Continuity Report (REO8)
In this report, the physiotherapist indicated that the worker has bilateral wrist tendonitis. He also provided task limitations for work of lifting and the use of upper extremities.
February 26, 2008 - Family doctor’s note
In this note, the doctor indicated that the worker was assessed on this date and that the worker is able to return to modified duties.
March 7, 2008 – Physiotherapist’ letter
In this letter the therapist indicated that the worker received physiotherapy treatment under his supervision for several weeks. He stated that the initial plan was to keep the worker on modified duties and the plan was implemented for several weeks with no success. The symptoms of the worker’s right hand were worsening and new symptoms occurred in the left hand, which he opined was secondary to overuse.
He stated that in February 2008, because the worker’s condition was worsening even with modified work, it was agreed upon by the worker’s family doctor and the physiotherapist that it was medically necessary for the worker be off of work for two weeks (February 11, 2008 to February 26, 2008) and then a return to modified duties on a graduated basis.
In this letter, the physiotherapist apologised for any confusion that his previous medical reporting may have caused with regard to the worker’s level of disability from February 11, 2008 to February 26, 2008.
Analysis
This worker’s claim was allowed for right wrist tendonitis as a disablement, gradual onset, type of accident occurring in the course of the worker’s employment in November 2007 and the worker began physiotherapy treatment on November 27, 2007. The worker continued her regular work, self accommodated, and by December, 2007 there was also medical evidence of left wrist tendonitis. The worker’s entitlement was expanded to include left wrist tendonitis when the adjudicator determined that there was a causal relationship between the type of work the worker was doing and bilateral tendonitis.
The worker was off of work from February 11, 2008, however LOE benefits were denied because the adjudicator determined that the medical information from the worker’s physiotherapist did not support full disability. The worker was dissatisfied with the adjudicator’s decision of February 28, 2008 disallowing her full LOE from February 11, 2008 to February 25, 2008 and she advised the adjudicator that the physiotherapist had made an error in advising that she could remain at work.
The adjudicator contacted the physiotherapist who confirmed on March 7, 2008 and March 12, 2008 that there was confusion in the completion of the medical reporting of the worker’s level of disability of February 11, 2008. The physiotherapist advised and reported in a new medical report that the worker’s condition had worsened and after consulting with the worker’s family doctor they both felt that, with evidence of increased tenderness of the wrists, the worker should remain off work.
With this information, the adjudicator requested a medical opinion of the Workplace Safety and Insurance Board (WSIB) medical consultant. The medical consultant opined that the medical information did not support that the worker was totally incapable of working. The adjudicator denied full LOE from February 11, 2008 based on a conclusion that the worker could have continued on modified duties.
When I assess all of the evidence on record, I find that there is credibility in the worker’s statements and support for allowance of full LOE benefits from February 11, 2008 to February 26, 2008 when considering the circumstances that lead to the worker’s time off of work due to the recommended treatment.
The worker stated that between, November 21, 2007 and February 11, 2008, the condition of her wrists gradually got worse as she continued to perform her regular work. Initially, she self accommodated and on January 8, 2008 her work station was ergonomically adjusted. Even with the accommodations, the worker stated that, her condition was painful, even personal hygiene tasks were difficult. She stated that she continued to work against her treating practitioners’ advice because of work (her work area was short of staff and there was year-end work to complete).
I accept the worker’s explanations with respect to the chain of events that occurred leading up to the requirement of her lost time. In the worker’s submission and as well as her representative’s submission, it is very clear that the worker was performing work and attempted to do modified work as was recommended by her physicians. The employer has not provided information that contradicts the worker’s statements, even after receiving full access to the claim file. Both of the worker’s treating practitioners have stated that the worker was advised to be away from work as early as January 7, 2008 and they confirmed that it was the worker’s decision to remain at work because of work responsibilities.
The worker’s statement is a reasonable explanation in light of her situation at work: given, the time of year and that the worker performs a financial role for her employer.
The worker stated that by February 11, 2008 she was in a lot of pain and was advised not to work for two weeks. The worker’s statement of her condition on February 11, 2008 is also supported by her treating practitioners. In the form 8 completed by the family doctor it states, “Due to ongoing worsening wrist tendonitis, ___ (the worker) will be off work effective immediately. I will re-evaluate a graduate return to work February 26, 2008.”
The policy criteria for allowance is full LOE indicates that, “ If the nature or 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.”
In this case, although, the medical information does not fully provide evidence of total disability, the worker’s treating practitioners’ recommended that the worker is required time away from work to rest and allow the” inflamed tendons” (bilateral wrists) time to heal.
The Adjudicative Advice Document, Best Approaches Guideline provides the following advice, in part, for adjudication,” It is recognized that there are cases where “rest” is an appropriate form of treatment and required in order to speed recovery and facilitate a successful return to work. This should be determined based on an assessment of the nature and degree of the injury in each case.”
While, I accept the medical consultant’s opinion, that the medical information does not support that the worker was totally disabled as of February 11, 2008, the medical consultant’s review only included the worker’s right wrist tendonitis and the medical consultant did not have the opportunity to consider the doctor’s opinion of the need for rest as an alternate form of treatment, that would prevent the worker from being at work.
I find that time to rest and recover is an acceptable form of treatment given the circumstances in this case: the medical evidence supports that the worker’s symptoms worsened with continued work and by February 11, 2008, her doctor, recommended absence from work to allow the healing of the worker’s wrist tendons.
The worker cooperated fully in the health care measures and with her treating practitioners’ recommendations: to remove herself from work in order to rest and recover.
In this case, the nature of the worker’s condition and the acceptable form of treatment prevented the worker from working between February 11, 2008 and February 26, 2008.
Based on the policy criteria, the doctor’s recommended form of treatment necessitating time away from work to “rest”, I conclude that the worker is entitled to full LOE benefits from February 11 to February 26, 2008.
CONCLUSION
The worker’s objection is allowed. The Business Unit is requested to process full loss of earnings from February 11, 2008 to February 26, 2008 inclusive.
DATED November 30, 2009
G. Matthew
Appeals Resolution Officer
Appeals Branch