WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100048
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
HEARING DATE: N/A
ISSUE
The worker has objected to the decision of May 6, 2009 denying entitlement to loss of earnings (LOE) benefits beyond April 25, 2005. It was concluded that the worker’s wage loss beyond April 25, 2005 was not related to her work injury as she was partially disabled and the employer offered her suitable modified work.
HOW THE ISSUE ARISES
The worker reported that on February 23, 2005, she fell in the parking lot and injured her back and neck. The worker began her employment with the injury employer in 1995 as a Sales Associate. She was eventually promoted to the position of Department Manager of Sporting Goods.
Initially it was determined that the worker was injured during the course of her employment and entitled to compensation benefits. The decision was subsequently reconsidered and the initial decision was reversed.
After the worker’s benefits were cut off, she sued the owners of the parking lot. This matter was referred to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and in decision 2675/08 dated December 19, 2008, it was concluded that the worker’s right to commence an action against the parking lot owners for injuries sustained as a result of the slip and fall on February 23, 2005 was taken away by the Workplace Safety and Insurance Act (the Act). The Tribunal found that the worker was a person who was entitled to claim benefits under the insurance plan for an injury occurring in the parking lot on or about February 23, 2005.
In a letter dated January 15, 2009, the worker was advised by the operating area that her condition had reached maximum medical recovery (MMR) effective April 21, 2005 based on the information in the Functional Abilities Form (FAF) and that the evidence did not support an assessable neck or back impairment as a result of the work injury. The worker was advised that she was not entitled to a permanent impairment evaluation. LOE benefits were approved from February 25, 2005 to March 16, 2005, when she returned to work with the employer.
In a subsequent letter dated May 6, 2009, the worker was advised by the operating area that she did sustain a wage loss due to work-related injuries from May 16, 2005 to April 25, 2005 and that partial loss of earnings (PLOE) benefits were approved for this period of time. However, the decision was that the medical information lacked objective clinical findings to support a neck and back injury were causing the worker to remain totally disabled from April 26, 2005. The opinion was that the worker was partially disabled and that the modified work made available by the injury employer was suitable. The worker was advised that she was not entitled to LOE benefits beyond April 25, 2005 as the wage loss was not related to the work-related injury.
AUTHORITY
Operational Policy Manual (OPM) document(s):
- 18-03-02 – Payment of LOE Benefits
- 19-02-01 – Overview of Early and Safe Return to Work (ESRTW)
- 19-02-02 – The Goal of ESRTW and the Roles of the Parties
- 19-02-03 – Workplace Party Co-operation
- 19-02-04 – Functional Abilities Form (FAF) for a Timely Return to Work
- 19-04-04 – Determining Essential Duties
- 19-04-05 – Alternative Work Comparable to Pre-injury Job
- 19-04-06 – Suitable Employment
- 19-04-07 – Accommodating Workers
RESOLUTION METHOD AND PROCESS
The employer completed a Participant Form and indicated that they did not intend on participating in the appeals process.
The worker representative and the worker agreed to a telephone interview that was carried out March 2, 2010, obtaining additional information to support the worker’s contention that the wage loss between April 26, 2005 and June 12, 2006 was related to the work injury. The worker representative requested that a decision not be made at this time regarding permanent impairment.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
On March 2, 2010, the following information was obtained from the worker:
As a Department Manager of Sporting Goods, her job involved lifting 100 pound weight sets onto a cart, carrying six foot air hockey games and loading them into vehicles as well as putting away stock which was packed in cases of products weighing between 35 to 50 pounds. The worker maintained that the job involved heavy lifting as well as constant standing.
The worker recalled leaving work early on February 23, 2005. She called in the next day as she could not move. The employer sent her a taxi and she went into work and worked on the switchboard. She worked a few hours and went to a walk-in clinic. She recalled being off work for a while, (to March 16, 2005). She returned to work on March 16, 2005 on a gradual basis. Initially she did filing in the board room. She could sit and stand as required. However, she was needed in the sporting goods department. She was given a chair and asked to do what she could. In her opinion, she was basically performing her regular job, but she had a chair. She worked alone in the department and there was nobody to help her. She denied being offered the “buddy system”. Her job involved her regular duties which included helping customers and ordering supplies. She began working three hours a day and increased her time by 15 minutes every day. She pointed out that during lunch, she would often be responsible for her department as well as the department adjacent to her, which involved mixing paint and helping customers.
The worker stated that on April 12, 2005 she could not get anyone to help. She was helping a customer for around half an hour to 45 minutes. She was assisting with the purchase of exercise equipment. She went into the store manager’s office and told him that her condition had deteriorated and she needed help. She was told to do the best that she could. She was not offered any other assistance. While in the store manager’s office, she called her family physician who told her to come in. She stated that she went to the family physician’s office and was examined. She was told to remain off work. She brought a note from the doctor into the personnel office.
In the worker’s opinion the employer did not have suitable work available for her. She maintained that the employer was not in regular contact with her regarding offering her modified work. She recalled officially speaking with the employer on two occasions. She stated that she was told that if she could come back to her regular job then there was work available for her.
She initially received Employment Insurance (EI) benefits and then she received benefits from Manulife Financial that expired February 25, 2006. After her benefits ended, the worker started looking for other work. Her friend offered her a job spray painting cupboard doors. She would be spray painting with guns. Adjustments were made to accommodate her medical restrictions. She indicated that she would not have to lift more than 15 pounds. The job paid $10.00 per hour and there were no benefits.
The worker stated that she was still employed with the injury employer and, therefore, wrote the resignation letter as she needed income and had secured the modified job spray painting cupboard doors. The worker maintained that the resignation letter was written the same day as the exit interview and the date that the ROE was completed, which was June 2, 2006.
The worker stated that she continues to have pain in her lower back where she fell. She has difficulty with housework and gets assistance from her family. She is careful not to lift beyond 15 pounds as she experiences an increase in symptoms. She reported receiving massage therapy every two weeks, but recently increasing it to once a week. She also takes Advil medication.
I have reviewed the information that was submitted by the employer in a fax dated April 29, 2009 and note the following:
Although there is information regarding the job description as a Department Manager, it does not provide the physical demands of this position. Furthermore, it does not provide the physical demands of a Department Manager in Sporting Goods.
Although there is a copy of the modified job offer given to the worker in March 2005, the worker has indicated that the job of switchboard was only offered to her for one day.
The employer has indicated that if the worker had not resigned, the injury employer would have been able to offer her modified duties within the department manager’s job and accommodate her medical restrictions as outlined in the medical reporting. There is no indication that a specific job was made available for the worker at any time between April 2005 and June 2006.
The worker was initially diagnosed with hip contusion, whiplash injury and head injury. She was treated with physiotherapy. She attempted to return to work, but her condition deteriorated as it would appear that she was performing work which exceeded her medical restrictions. The job of Department Manager in Sporting Goods being done with the chair does not appear to be a suitable position. There is no indication any other work was made available to the worker. Furthermore, even if the worker was capable of performing this job, it is questionable whether this is actually sustainable given the nature of the injury employer’s business and the fact that the worker would have been expected to continue to serve customers and to deal with stocking of merchandise while sitting in a chair.
The worker’s treating physician reported on April 26, 2005 that she was not able to work at that point. In a report dated August 10, 2005 addressed to the worker’s previous representative, there is indication that the worker did not have any prior similar difficulties. She was seeing the physician on a regular basis. The examination showed that she was tender over the muscles of her neck and lower back. Her range of motion appeared to be normal, but she moved with stiffness and sense of pulling. The diagnosis was closed head injury now resolved and soft tissues injuries to neck and lower back that were ongoing. The family physician noted that the worker found little relief from physiotherapy and massage therapy and felt that the condition may not reach full recovery.
The worker was reported to have received physiotherapy on 38 occasions between March 9, 2005 and July 29, 2005.
On January 6, 2006, the worker was examined by a physiatrist, Dr. A. T. Ghouse, at the request of Manulife Financial. The opinion was that the worker could return to work where she would avoid any lifting or moving of weights of more than 40 pounds. Also she was to avoid prolonged standing and repetitive bending. The primary diagnosis was lumbar strain with occasional muscle tension headache. The impression was that the worker likely suffered a soft tissue injury of the cervical spine (cervical strain), but that this had now resolved. It was requested that the worker have x-rays and a bone scan carried out. If the injury was found to be soft tissue, then a full recovery was expected.
X-ray of the spine dated February 22, 2006 did not show any abnormality. The bone scan carried out March 3, 2006 also did not reveal any abnormalities.
On May 2, 2006, the family physician indicated that the worker was unable to return to her current employment with the injury employer and that she must resign as no other job was made available that met her restrictions.
Her family physician wrote on May 11, 2006 that the worker was not able to return to her pre-injury job and is seeking alternate employment in keeping with her medical restrictions. Although the family physician noted the opinion provided during the independent medical examination, he stated that he was not of the same opinion. The family physician pointed out that the worker was being seen regularly over the past year and that she had not improved to the point where she could return to her prior job. The worker found it tolerable and was able to cope as long as she did not have to lift or bend in a repetitive fashion.
Her employer had indicated to the worker that they would have her back only if she was able to do the essential tasks of her pre-injury job. She was not capable of doing this, so she made reasonable efforts to secure suitable employment with a new employer.
One hundred per cent LOE benefits are payable where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered, but the worker is making reasonable efforts to secure suitable employment or engaging in other activities (such as active health care treatment) reasonably aimed at improving employability and minimizing LOE.
In this case, the worker was receiving health care treatment beyond April 25, 2005. In order to mitigate her wage loss, she did apply and receive EI benefits and then she subsequently received benefits from Manulife Financial. Her benefits were discontinued in February 2006 and then she did make reasonable efforts to secure suitable employment. She began modified work with a new employer in June 2006.
I have reviewed the information provided by the injury employer and am not satisfied that it supports that the worker was offered suitable modified work subsequent to April 25, 2005. Her injury prevented her from returning to pre-injury employment and no suitable employment was offered. She made reasonable efforts to secure suitable employment and, therefore, is entitled to full LOE benefits from April 26, 2005 to June 12, 2006, less the benefits received.
CONCLUSION
I have concluded that the worker is entitled to full LOE benefits from April 26, 2005 to June 12, 2006, less the benefits she received. I also direct that permanent impairment be evaluated by the operating area given the medical information from the family physician indicates that the worker does have a residual impairment as a result of the work-related injury of February 23, 2005.
The objection is allowed.
Dated: April 8, 2010
M. E. Ryczko
Appeals Resolution Officer
Appeals Branch