WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100023
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
HEARING DATE: JANUARY 19, 2010
ISSUE
Entitlement to loss of earnings (LOE) benefits from October 29, 2007 to July 7, 2008.
HOW THE ISSUE ARISES
The worker was born in 1970. She began working for the employer, a linen and laundry service on September 15, 1999 as a general helper. On October 12, 2007, she slipped on plastic and fell landing on her tailbone. The initial diagnosis is soft tissue injury low back.
The worker was initially paid loss of earnings (LOE) benefits from October 15 – 29, 2007. Entitlement to LOE benefits beyond October 29, 2007 was denied as the employer offered modified work which was determined to be suitable. This decision is outlined in the November 13, 2007 letter. On behalf of the worker, her representative objected to the closure of LOE benefits.
The worker was assessed at the Regional Evaluation Centre on April 15, 2008, and diagnosed with; accident related: a sacral contusion, probable axial loading injury of the lumbar spine, pain behaviours, and non-accident related: degenerative disc disease (DDD) at L5-S1.
The prognosis remained to be determined, and it was recommended that she be assessed at the Functional Restoration Program. She was considered disabled pending the assessment and possible treatment recommended.
Arrangements were made for the worker to undergo assessment and treatment at the Functional Restoration Program beginning July 7, 2008. Full LOE benefits were restored from July 7 – August 18, 2008, while the worker attended the FRP program. However, the denial of entitlement to LOE benefits for the period October 29, 2007 – July 7, 2008 was confirmed as outlined in the January 5, 2009 letter.
A graduated return to work plan was developed at FRP, but she did not return to work immediately as she was undergoing medical investigations for an unrelated condition. The worker returned to modified duties on November 3, 2008 beginning at two hours per day. She received LOE benefits for subsequent periods of lost time for medical appointments as outlined in memos #59 and #77.
In a letter dated September 16, 2008, the employer objected to the payment of LOE benefits during the FRP assessment, and requested SIEF cost relief. The adjudicator considered this request, and obtained an opinion from a WSIB medical consultant on the severity of the pre-existing condition. The consultant provided his opinion that the pre-existing condition was minor, as outlined in memo #51. The consultant also noted there was evidence of an organic permanent impairment on the basis of an axial loading injury of the lumbar spine, with underlying degenerative disc disease (DDD).
The adjudicator applied 50% SIEF cost relief as outlined in the October 8, 2008 letter, and the non-economic loss (NEL) assessment process was initiated.
In a letter dated October 16, 2008, the employer objected of the quantum of SIEF cost relief. The adjudicator provided information to the employer regarding the appeals process as outlined in the January 5, 2009 letter. The employer objected, and the issues of SIEF cost relief as well as the worker’s objection to the denial of LOE was referred to the Appeals Branch.
The worker’s representative requested an oral hearing to address the worker’s issue. As the worker’s representative would not be available for a hearing for several months, the employer’s issue was addressed separately in my appeals resolution officer (ARO) decision dated May 7, 2009. SIEF cost relief was increased to 75%.
The worker underwent a NEL assessment and was granted a 22% NEL award on April 30, 2009. In a letter dated May 7, 2009, the representative object to the quantum of the NEL award for time limit purposes. To date, there has been no objection form received, and the issue has not been reviewed by the NEL clinical specialist. The representative was advised that this issue could not be added to the agenda.
The worker has continued to be accommodated by the employer performing modified duties. She has been undergoing treatment at a pain clinic, and was receiving nerve blocks and trigger point injections, paid for by the WSIB. Entitlement to this continuing treatment was reviewed by the case manager and medical consultant as outlined in memo #104.
The medical consultant noted that as the worker gets less than a week’s benefit, and continues to require weekly injections, this would suggest a lack of cumulative effect. If they were truly of benefit, one would expect a gradual increase in interval between injections over time. He did not recommend continuing this treatment. The case manager considered this opinion and denied entitlement to the injections as outlined in the August 10, 2009 letter. The representative objected to this decision and completed an objection form September 8, 2009.
The issue of entitlement under the chronic pain disability (CPD) policy was reviewed by the case manager as the FRP discharge report provided a diagnosis of a pain disorder with both psychological factors and a general medical condition. A medical opinion was requested on April 29, 2009, as outlined in memo #96. The medical consultant provided their opinion that an organic permanent impairment was evident, and the worker does not meet the criteria for CPD entitlement. A formal decision letter was not issued at that time.
In a letter dated September 8, 2009, the worker’s representative requested entitlement under the CPD policy. Entitlement to CPD was formally denied as outlined in the case manager’s September 11, 2009 letter. The representative objected to this decision and completed an objection form October 22, 2009.
Prior to the commencement of the hearing, the worker’s representative advised that they were not pursuing the issues of; entitlement under the CPD policy, and entitlement for the injections. The only issue on the agenda is entitlement to LOE benefits from October 29, 2007 to July 7, 2008
The employer elected to participate in the appeals process, and attended the hearing.
AUTHORITY REFERENCE
Operational Policy: 18-03-02 Payment of LOE Benefits
EXHIBITS
- An undated letter from Dr. Kreidstein with a Service Canada date stamp January 15, 2008.
- Two excerpts from the internet; one from Medicine Net entitlement Coccydynia (tailbone pain), and one from the College of Physicians and Surgeons provide Dr. Kreidstein’s credentials.
- Copies of 3 WSIAT decisions.
ASSESSMENT OF THE EVIDENCE
In reviewing the issue before me, I have considered the information in the claim file record, the positions of the workplace parties, the worker’s testimony, and the relevant policy. I conclude that the worker is entitled to full LOE benefits during this period.
Worker’s Testimony
The worker provided testimony regarding her work accident, treatment, pain experience, activities of daily living, and current status. She testified in a credible straightforward manner, consistent with the claim file record.
The worker started working with the employer in 1997 or 1998, as a machine operator. The accident occurred when she was carrying a load of napkins, and she slipped and fell landing on her tailbone. She felt severe pain and thought she had broken her back. She could not move and she was carried to the first aid room. The office manager drove her to her family doctor.
She was in severe pain and her tailbone area was swollen. She had x-rays and was advised by her doctor not to work until they determined the problem. She was referred to Dr. Kreidstein and first saw her on October 15, 2007. Dr. Kreidstein told her not to work and to return to see her in 6 weeks. She saw her again two weeks later, and Dr. Kreidstein completed a form for her employer stating she was unable to work.
The worker stated the first time she was offered modified work was when the employer sent her another form on November 9, 2007 which was mailed to her. The worker did not call the employer, but responded to their letters.
The worker continued to have a lot of pain and swelling, and Dr. Kreidstein referred her to physiotherapy after about her 3rd or 4th appointment with her. She was assessed on December 27, 2008, but did not start physiotherapy until January or February 2008, as WSIB had to approve the treatment. She went for about 5 weeks, and then it was stopped as the WSIB would not pay, although it was helping. The worker confirmed that copies of all of the Functional Abilities Forms (FAF) on file were provided to her employer.
The worker confirmed that she applied for EI benefits, but as she delayed in applying, it was already into her 15 week benefit period and she was only paid for a short time. The undated letter on file from Dr. Kreidstein which is date stamped Service Canada was likely provided to EI. The letter confirms she is unable to work in any capacity.
The worker confirmed that she spoke to her claims adjudicator about 3 or 4 times. She did not recall getting the employer’s letter dated January 24, 2008, but stated she could not have worked then anyway.
The worker confirmed that due to her pain she had depression and anxiety. She was unable to do things for herself of her kids, and could not do her own household chores. Her mother did all of the cooking and cleaning, and her kids helped. She also required assistance with her personal grooming. All of this took a toll and it was hard to cope. She was not sleeping, was not eating, and was in constant extreme pain in her low back and tailbone. At times the pain would travel into her legs.
The depression began about 4 – 5 weeks after her fall. Dr. Kreidstein referred her to a psychiatrist, who she saw only once. He prescribed amitriptyline, and other pills to help her sleep, eat and cope with the pain. She did not have any further appointments, and followed up with Dr. Kreidstein. The medication was paid for by her drug plan at work. She is still taking amitriptyline, Lyrica, and Oxy-cocet 2 – 3 times per day. The worker denied any psychological problems prior to the accident.
The worker confirmed that after FRP the WSIB paid for her physio and she started going again. She was asked about the June 2, 2008 physiotherapist’s report that notes problems urinating. She advised that it was very painful and she was not voiding properly. Dr. Kreidstein was aware of this and an ultrasound confirmed that her bladder was emptying.
The worker confirmed that she went to the worksite visit arranged by FRP on August 21, 2008, but did not go on the tour. She was experiencing rectal bleeding, which has resolved. She underwent tests which were ok. She explained by August 2008 she was still depressed, but the pain was a little better and her stress levels were better. She returned to work in November 2008 to modified work. Her job involves folding towels and bar wipes. She began at graduated hours, and started regular hours in January 2009. She is able to cope, and usually stands as this is more comfortable. She did have a special chair recommended by FRP, but someone stole it. The employer agreed to get her a replacement chair. Her supervisor lets her lie down at first aid as needed.
The worker is managing to continue to work full time. She leaves early on Wednesday to get injections. She explained that they are paid for by OHIP. She feels the injections are helping her, and understands that they are nerve blocks. When she stops her tailbone gets swollen. She feels her mental status is much better, it is still not 100% but is much better.
She does not do a home exercise program or stretching. When she sits, she sits on one side, she is more comfortable standing and lying down. She is sleeping better, and is able to do more at home. She is self sufficient in her personal grooming, and her daughter helps with the housework. She tries to go for walks, and her walking tolerance is better. The worker feels that she was totally disabled from October 2007 to July 2008, and still has pain.
Employer’s Position
On behalf of the employer, the representative outlined their position. He noted that the worker’s testimony was credible, and their concern was that Dr. Kreidstein simply stated the worker was unable to work, which was not helpful.
The employer was concerned that the claim went through so many claims adjudicators, and even ended up in Sudbury. He feels if the worker had of been referred to FRP sooner, instead of one year later the situation could have been resolved. He noted that when LOE was restored the employer’s accident cost statement ballooned, and feels that the WSIB did not to their job. They had to fight for 75% SIEF, and this issue is currently at WSIAT.
The WSIB should take responsibility. He noted that when the return to work was handled appropriately it resulted in a success story. It is their position that the worker should be paid LOE benefits for the period in question, and the administration of the costs will be sorted out.
Worker’s Position
The worker’s representative noted in their opening statement that the worker should be paid LOE for the period October 29, 2007 – July 7, 2008. The LOE was reinstated once she went to the FRP program, and he feels that due to the combination of the low back pain, the permanent impairment, and the chronic pain condition diagnosed by the REC and FRP, it was impossible for the worker to return to work until the fall of 2008.
After the employer’s representative’s statement, the worker’s representative did not feel that a further closing statement was necessary. He agrees with the employer and feels that full LOE should be paid during this period.
Analysis
As noted in Operational Policy 18-03-02, 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. If the worker does not co-operate, the WSIB may reduce or suspend the worker’s LOE benefits.
In this case, I find that the medical evidence supports that due to the nature of the worker’s injury, she was unable to return to work until the Fall of 2008. This is supported by her family doctor, her treating specialist Dr. Kreidstein, the REC, and FRP. The worker sustained a tailbone, and axial loading injury of the lumbar spine, which resulted in a permanent impairment. The worker also experienced a temporary psychological reaction to her pain and inability to sleep, eat, and perform her normal everyday activities, which required treatment. This was also a factor in her level of impairment during this period.
The worker co-operated fully in her medical rehabilitation and early and safe return to work plan. Upon completion of the FRP program, the worker returned to modified duties with her employer. The employer continues to accommodate her restrictions, and agrees that the worker should be paid LOE for this period. The employer’s attitude and willingness to accommodate the worker should be commended. It is hoped that the worker’s condition will continue to improve and she can maintain her employment.
CONCLUSION
I conclude that the worker is entitled to LOE benefits from October 29, 2007 to July 7, 2008.
The worker’s objection is allowed.
DATED: January 22, 2010
D. McParland Appeals Resolution Officer Appeals Branch