WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090079
OBJECTION BY: The 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 benefits, from January 26, 2009 to February 26, 2009.
HOW THE ISSUE ARISES
On October 29, 2003, this then 26 year old communications technician was working in a crouched position and as he stood up, his right knee locked and he felt a pop sensation in the knee. Entitlement was accepted for a right knee torn meniscus requiring arthroscopy on December 1, 2003.
There was no claim for lost time until the worker laid off work with recurrent right knee symptoms on July 31, 2007. The recurrence was accepted and the worker underwent further arthroscopy, meniscectomy and debridement, on May 2, 2008.
The worker was paid loss of earnings (LOE) benefits for his lost time extending from July 31, 2007. On September 11, 2008, the employer offered the worker modified duties at no wage loss, working office duties in the company’s estimation department. The worker initially declined the duties, citing pre-existing psychiatric difficulties and a phobia of working in an office setting.
The worker was paid full LOE benefits while awaiting supportive psychiatric reports. Once received, the medical reporting from the worker’s treating psychiatrist, however, was not considered to support the worker was precluded from returning to the offered modified duties. Consequently, LOE benefits were closed on January 26, 2009 (January 26, 2009 decision).
Full LOE benefits were restored on February 26, 2009, at which point, the employer advised they could no longer accommodate the worker with permanent modified duties. The worker was then referred for labour market re-entry (LMR) services. The worker objected to the denial of LOE benefits from January 26, 2009 to February 26, 2009, and this matter is now under consideration.
AUTHORITY
Operational policies:
18-03-02, Payment of Loss of Earnings Benefits
19-02-02, The Goal of Early and Safe Return to Work (ESRTW) and the Roles of the Parties
19-02-03, Workplace Party Co-Operation
RESOLUTION METHOD AND PROCESS
The worker’s representative requested a decision based on the file evidence and further submission.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision on the presenting issue, I have considered the evidence on file and submission made.
On September 11, 2008, the accident employer had offered the worker light duties at no wage loss in their Estimating Department. They noted the modified work would take into consideration the worker’s limitations and mainly include office work which could be carried out from a seated or standing position. While these duties were, at the time, considered physically suitable to the worker’s partial right knee impairment, the worker revealed he was attending treatment for pre-existing psychiatric difficulties and had a phobia of working in an office, which he felt precluded a return to such duties. The worker’s representative was asked to provide supportive medical documentation from the worker’s psychiatrist.
In the interim, in Memo # 12, the then claims adjudicator documented on September 12, 2008;
“I called [the accident employer] who also received iw rep’s letter. I advised her to wait until I have the report and rule accordingly. She had no issues.
I called and left a msg for iw rep that, I received his letter and stated that the worker has co-operated and been honourable to date.” I advised I will wait for the mental health report and adjudicate accordingly and noted that we’ll likely revert to waiting for the worker’s knee to progress to the point where an essential duties ruling can be made.”
From this conversation, it is clear the employer had no issue in awaiting the necessary psychiatric reports, prior to consideration of the worker’s ESRTW to the indicated modified duties.
Despite the worker representative’s efforts in securing the necessary psychiatric reports, associated clinical notes were not received until December 23, 2008, with a subsequent narrative report dated February 2, 2009.
Although it was determined that the submitted medical did not offer sufficient evidence to support the worker had a phobia with working in an office environment, I note that when the January 26, 2009 decision was made, there was no contact with the worker to determine his then co-operation in ESRTW. There was also no contact with the accident employer, prior to benefit closure to determine if the previously offered modified duties remained available.
The worker representative’s subsequent February 15, 2009 and February 17, 2009 letters, while not in agreement with the adjudicator’s January 26, 2009 findings, did note a commitment from the worker to return to the suitable work which had been previously offered. In my judgement, the evidence does not establish the worker was unco-operative in his ESRTW once the submitted medical was received and reviewed.
It is also relevant that, while a permanent right knee impairment was considered likely, the employer’s September 2008 modified work offer was to be only temporary, as noted in memo # 22. As well, although the employer had agreed in September 2008, with the adjudicator’s decision to await the results of the further medical review, they had in fact filled the modified work position only three weeks after the worker had declined the offer. The employer, however, had failed to inform the adjudicator or the worker of this until February 19, 2009 (memo #28), when the employer also indicated they would attempt to secure other modified work for the worker.
A return to work (RTW) meeting with the workplace parties was then arranged for March 4, 2009. However, on February 26, 2009, the RTW specialist advised they had had a very lengthy conversation with the employer, who advised they would not be able to accommodate the worker with a permanent modified job.
I have assessed the evidence. Policy 19-02-03, relating to Workplace Party Co-operation, provides that;
“If the WSIB determines that a worker is not co-operating in ESRTW activities, the decision-maker notifies the worker of the –
obligation to co-operate in ESRTW
finding of non-co operation, and
consequences of this finding (i.e., reduction or suspension of benefits).
Notice is given verbally (if possible), and confirmed in writing in every case (emphasis added).
The WSIB may reduce or suspend a worker’s benefits if, after notifying the worker of the obligation(s) to co-operate, the worker,
fails to demonstrate co-operation, and
does not have a legitimate reason for not co-operating.”
In my judgement, the evidence does not demonstrate the worker was unco-operative in early and safe return to work with the accident employer. Notwithstanding this finding however, it is noteworthy that contrary to policy, the worker was not advised of his co-operation obligations, or the consequences of non-cooperation, prior to benefit closure. It is also relevant, that the previously offered modified/office duties which were only temporary, were no longer available on January 26, 2009, and had not been available for some time. The accident employer offered no alternate modified duties, either. It was specifically because of this lack of permanent modified duties with the accident employer, that full LOE benefits were restored on February 26, 2009, and the worker referred for LMR services. On these grounds and, noting the worker’s interval continued compliance in his medical rehabilitation, I consider he is entitled to full LOE benefits from January 26, 2009 to February 26, 2009, as claimed.
CONCLUSION
The worker is entitled to full LOE benefits from January 26, 2009 to February 26, 2009.
The worker’s objection is granted.
DATED September 23, 2009.
S. van Veen
Appeals Resolution Officer
Appeals Branch