WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090068
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker Representative
HEARING DATE: N/A
ATTENDEES: N/A
ISSUE
The worker objects to the denial of Loss of Earnings (LOE) benefits from July 29, 2008 to
August 25, 2008.
HOW THE ISSUE ARISES
This then 20 year old industrial cleaner on July 28, 2008 slipped and landed on his back. The incident was immediately reported and medical attention sought. A diagnosis of contusion with pain into the right leg was noted.
Entitlement was accepted, however, LOE benefits were not granted as the condition was not considered to be totally disabling, with modified duties available.
Subsequently entitlement was accepted for a recurrence of October 2, 2008. Medical investigations (CT Scan) revealed the presence of an L4-S1 disc herniation with impingement upon the transversing right S1 nerve root. The worker was not a surgical candidate; however, an epidural steroid injection was undertaken in March 2009. Benefits were awarded to January 9, 2009 when the worker returned to modified duties.
The issue of LOE benefits for the period July 31, 2008 to August 25, 2008 was addressed by the claims adjudicator in the decision dated August 22, 2008. It was concluded the back condition did not render the worker totally disabled, with the modified duties available, thus benefits were denied. This is the issue for determination.
AUTHORITY
Operational Policy Document:
18-03-02 Payment of Loss of Earnings (LOE) Benefits
19-02-03 Early and Safe Return to Work
19-04-06 Suitable Employment
RESOLUTION METHOD & PROCESS
The worker’s representative submitted a 60 Day Decision Option Form dated
September 15, 2009.
ASSESSMENT OF EVIDENCE
The appeals resolution officer has considered the information on record.
Operational Policy Document 18-03-02 speaks to the subject of “Payment of Loss of Earnings (LOE) Benefits.” The policy indicates a worker who experiences a LOE as a result of a work-related injury is entitled to LOE benefits provided proof of injury can be established.
The guidelines attached to the policy indicate" 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 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."
Though the workplace parties have an obligation as it relates to co-operation in the Early and Safe Return to Work Process as set out in Operational Policy Document 19-02-03, decision-makers in ruling on an individual's level of impairment must rely on the medical documentation submitted by the attending physician. Objective clinical findings must be provided and be clear as to an individual’s ability in either returning to work or alternatively support the worker's inability to undertake any type of work.
Operational Policy document 19-04-06 “Suitable Employment” is defined as work which the worker possesses the necessary transferable skills, is safe and within the worker’s functional abilities and reduces or eliminates the loss of earnings resulting from the injury.
In reviewing the medical documentation proximal to the date of injury, it is reasonable to conclude the condition was acute, rendering him totally disabled. The injury completely prevented the worker from returning to any type of work prior to
August 25, 2008. He was experiencing radiation into his leg, was unable to sit comfortably and was instructed to refrain from work. He was also prescribed medication, including Percocet.
In reviewing the documentary evidence, the worker was fully complying with his obligations under the Act and Board Policy when he followed the physician’s instructions not to return to work. The physician’s report dated July 28, 2008 was explicit in that a return to work was not indicated as they were continuing to investigate the worker’s condition.
The physician’s progress report of August 11, 2008 again documents the worker was not capable of resuming employment. In this respect, the appeals resolution officer accepts the opinion of the treating physician who undertook an examination of the worker and was in the best position to assess his physical capabilities/limitations.
The appeals resolution officer does not dispute the employer demonstrated a willingness to provide modified employment, however the worker was in the acute phase of the recovery and his restrictions were not yet delineated.
Though the claims adjudicator in memorandum 6 states the worker was capable of returning to modified duties which accommodated the restrictions identified on the physician’s form 8, the appeals resolution officer having reviewed the July 28, 2008 and August 11, 2008 reports, no restrictions were identified. To the contrary, section 5 of the respective reports indicates the worker was not to return to work.
Furthermore, if the worker had not followed the physician’s instructions, one could argue he would have been in direct violation of his obligations pursuant to section 43(3) and (7) of the WSIA. Essentially the worker was cooperating with health care measures. During the period in question, the worker consulted his physician and it was not until August 18, 2008 that he was cleared for a return to modified employment as of August 25, 2008.
CONCLUSION
In the judgement of the appeals resolution officer, the worker is entitled to full LOE benefits from July 29, 2008 to August 25, 2008 as the nature or seriousness of the injury completely prevented him from returning to any type of work. Furthermore, he was in compliance with his obligations under section 43(3) and 43(7) of the WSIA.
The worker’s objection is therefore allowed.
DATED October 5, 2009 at Toronto, Ontario
M. De Marco
Appeals Resolution Officer
Appeals Branch