WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100036
OBJECTION BY: Worker
WORKER: Participated
REPRESENTATIVE: Worker
EMPLOYER: Participated
ISSUE
The worker is objecting to the decision to deny payment of full Loss of Earnings (LOE) benefits for the period July 01, 2008 to August 21, 2008.
HOW THE ISSUE ARISES
This now 63 year old Professional Driver injured his left knee on June 26, 2008 when his foot slipped on the running board of the tractor.
The original diagnosis in the claim was left medial collateral ligament strain. Functional Abilities Form’s (FAF)’s submitted to the claim file suggested the worker was unable to perform any work. The employer offered the worker clerical duties in the Chatham office as of July 1, 2008. The Adjudicator after reviewing the information submitted to the claim file concluded the worker was capable of handling the modified duties offered by the employer and that the worker was not entitled to LOE benefits beyond July 1, 2008. A letter confirming this decision was issued on July 24, 2008.
The worker disagrees with this decision, and his case has been referred to the Appeals Branch for further consideration.
AUTHORITY
Policy documents:
18-03-02 Payment of LOE Benefits
19-02-02 The Goal of ESRTW and the Roles of the Parties
19-02-03 Workplace Party Co-operation
RESOLUTION METHOD AND PROCESS
The worker representative was contacted and she opted for a decision based on a review of the information currently contained in the claim file. As the employer indicated they wished to participate in the appeal, they were also contacted and agreed to proceeding in this manner.
ASSESSMENT OF THE EVIDENCE
Upon assessing the available information contained in the claim record I find that the worker is entitled to LOE benefits up to his return to work date of August 21, 2008.
In arriving at my decision, I considered the evidence and submissions in the context of the relevant legislation and Workplace Safety and Insurance Board (WSIB) policy. The following is a summary of my observations and assessment of the evidence in reaching my conclusions.
File documentation
The Employer’s Report of Injury/Disease dated June 30, 2008 indicated that on June 26, 2008 the worker was getting into his tractor when his foot slipped on the running board and he felt a pain in his left knee. The report stated the worker began losing time from work on
June 27, 2008.
The employer submitted a copy of a letter sent to physicians outlining their return to work program. This letter was faxed on July 1, 2008. The letter listed 13 different duties but did not include any physical demands from these duties to identify which would fit with a knee injury.
The Worker’s Report of Injury/Disease dated July 4, 2008 confirmed the same accident history. The worker indicated that he discussed return to work with his doctor and that he was aware of the employer having modified duties available.
A FAF was completed by the family doctor on July 3, 2008. The doctor indicated on the form that the worker was physically unable to return to work at that time and that the worker would be reassessed in two weeks.
The family doctor also completed a medical report on July 3, 2008. The doctor indicated the worker had osteoarthritis in the knee and was to be off work and reassessed on July 17, 2008. The doctor also noted the worker had been seen by an orthopaedic surgeon on July 3, 2008, and was receiving treatment from a chiropractor.
A physiotherapy report was submitted to the claim on July 11, 2008. The diagnosis provided was left medial collateral ligament strain. The physiotherapist commented the worker could not work while participating in treatment at that time.
The employer spoke with the Adjudicator on July 11, 2008 in memo 2. The employer stated they had offered the worker modified duties on July 1, 2008 but this was declined as the worker advised them his doctor wanted him off work completely
The family doctor completed a further FAF on July 17, 2008. The doctor stated the worker was very disabled due to increased pain and was unable to do any activity. The doctor estimated the worker would be off until mid September 2008.
On July 24, 2008 in memos 4 and 6 the Adjudicator spoke with the worker and stated the positions offered by the employer were within the worker’s functional abilities. The Adjudicator advised the worker that he needs to co-operate with his return to work.
The physiotherapist submitted a progress report dated July 25, 2008. The report noted that the worker was just starting physiotherapy and that he was given new medications the previous week which were helping with his symptoms.
The family doctor submitted a progress report dated July 26, 2008 indicating the orthopaedic surgeon Dr. Sanders provided a diagnosis of sprained left knee with an underlying condition that was difficult to read on the form. The doctor stated the worker would be unable to work until September 2, 2008.
The Adjudicator spoke with the family doctor on July 31, 2008 in memo 10. The family doctor stated he considered the worker totally disabled as it was difficult to do much walking and the drive would be difficult because of the distance and time. The doctor stated a sitting job would be alright but he had concerns with the worker’s ability to get to and from work while continuing to seek treatment.
On August 5, 2008 the worker submitted a travel expense form for treatment at physiotherapy and visits to his doctor. The form showed that the worker was seeing his doctor once every two weeks and was attending physiotherapy twice a week starting July 22, 2008.
The worker submitted a letter dated August 11, 2008 in response to the Decision letter of July 24, 2008. The worker stated that he was aware of modified duties with the employer and did discuss these with his doctor. The worker stated that due to pain and swelling the doctor wanted him off his feet as much as possible and he did not want the worker to drive great distances. The worker stated he was riding in a car with a friend and his wife to go to physiotherapy.
The employer sent a further letter to the worker dated August 18, 2008 indicating they had continued to offer suitable modified work. The employer requested the worker contact the employer after the medical appointment to discuss details of his return to work.
On August 18, 2008 the family doctor completed a further progress report stating the worker had slow slight improvement and was still experiencing pain, weakness and swelling. The doctor recommended the worker could return to modified desk work on August 21, 2008.
The employer submitted an Employer’s Subsequent Statement on August 21, 2008 indicating the worker had returned to modified clerical duties on August 21, 2008.
The family doctor submitted a letter dated August 29, 2008. The doctor stated he saw the worker on July 3, 2008 and at that time hoped the worker could return to work in two weeks. The doctor indicated that when the worker was seen again on July 28, 208 that he was totally disabled and would not be able to return to work until September 2, 2008.
On March 27, 2009 the family doctor submitted a further letter in response to questions raised by the worker representative. The doctor stated that he felt the worker was able to do only a minimal amount of walking and that even though he could do a sitting job he required several weeks of physiotherapy to recover. The doctor stated that for this reason he felt the worker could not work a full eight hour day. The doctor stated the worker was getting a ride from a friend to go to physiotherapy and he considered the worker totally disabled.
Analysis
Policy on worker’s co-operation obligations 22-01-03 provides guidelines on when benefits can be reduced or suspended.
A worker who is receiving benefits under the insurance plan, or who is entitled to do so, is required to
- provide the WSIB with any information necessary to adjudicate the claim
- co-operate in health care measures the WSIB considers appropriate
- undergo an examination by a health professional selected and paid for by the WSIB
- undergo an examination by a health professional selected and paid for by the employer if directed by the WSIB
- co-operate in early and safe return to work (ESRTW)
- co-operate in all aspects of labour market re-entry (LMR) assessments and plans, and co-operate in all aspects of return to work (RTW) placement programs.
If a worker does not fulfill these obligations, the worker's benefits may be reduced or suspended.
If the WSIB determines that a worker is not co-operating with the obligation(s), the decision-maker notifies the worker of the
- obligation to co-operate
- finding of non-co-operation, and
- consequences of this finding (i.e., the reduction and/or suspension of benefits).
Notice is given verbally (if possible), and confirmed in writing in every case.
The WSIB may reduce or suspend a worker's benefits if after notifying the worker of the obligation(s), the worker
- fails to co-operate with the obligation(s), and
- does not have a legitimate reason for not co-operating.
In reviewing the issue in this claim, I note the worker was not advised in writing of his obligation to co-operate until the decision letter of July 24, 2008.
I also note the worker did discuss return to work with his doctor’s and was advised to remain off work as the doctor had concerns with the worker driving long distances to work while attending treatment.
The employer did indicate that a position was available in Chatham which was closer than his normal drive, and was the same distance as his drive to treatment. However, I note that the doctor reported to the WSIB that the worker was to stay off his feet as much as possible and was not to drive and in fact the worker was getting a ride with a friend to attend treatments which did not occur every day.
The evidence supports that the worker was not capable of driving the distance to perform the modified clerical duties following the accident. The evidence also supports that when the worker was considered capable of driving to the modified duties that he did in fact return to work.
I find the worker is entitled to LOE benefits for the period of lost time from July 1, 2008 to August 21, 2008.
CONCLUSION
The worker is entitled to LOE benefits up to his return to work date of August 21, 2008.
The worker’s objection is allowed.
DATED February 18, 2010
M. Flaherty
Appeals Resolution Officer
Appeals Branch