WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100073
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: May 31, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUE
The worker objects to the denial of entitlement to Loss of Earnings (LOE) benefits between March and June, 2009 for medical treatment/physiotherapy.
HOW THE ISSUE ARISES
On January 23, 2001, the worker, who was employed as a Mechanical Maintainer, injured his low back when he bent over and moved a soot blower. He was diagnosed with a lumbar strain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. Initially, there was no lost time however the worker laid off on June 28, 2001 as a result of ongoing problems. The recurrence was accepted and the worker returned to work in December, 2001. He subsequently claimed a recurrence from June 20 to July 2, 2006 and from July 11 to 17, 2006. Entitlement for these recurrences was accepted as was further lost time in November, 2006 and December, 2006. The worker continued to receive chiropractic care and his file was reviewed by a WSIB Chiropractic Consultant on October 11, 2007. At that time, it was noted that it may be reasonable to accept further entitlement on a supportive/maintenance basis but it was unclear whether or not this was a case for further entitlement. An Independent Medical Examination was then conducted in November, 2007 following which the worker was referred for a Non-Economic Loss (NEL) assessment.
The worker subsequently had further recurrences from February, 2007 to May, 2008. He then claimed further lost time to attend medical treatment/physiotherapy for various days between March 26, 2009 and June 12, 2009. He lost eight hours for each day he received treatment. His request for reimbursement for lost time to attend medical appointments between March and June, 2009 was however denied in letters of September 23, 2009 and October 6, 2009. The worker objected to the adverse decisions made and his file was referred to the Appeals Branch for consideration. In the meantime, the worker was granted a 14% NEL award in June, 2009.
AUTHORITY
18-03-06 – Final LOE Benefit Review
ASSESSMENT OF THE EVIDENCE
Worker Testimony:
He is employed with his employer and has been there since April, 1998. The initial accident led to several recurrences. He is unsure of the dates of the recurrences or the date of the last recurrence. His physiotherapy treatments between March and June, 2009 were a couple of hours. The treatments were covered by Great West Life. Lost time was not covered by the WSIB. At that time, he had lower back pain related to herniated discs and bulges. His mid back also hurt and at times the pain spread to his neck. He was experiencing severe back pain. He had lost time in the past that was mostly covered by sick time at work but WSIB also covered lost time in the past. He received physiotherapy at the Brantford Hospital. The corporate doctor initially told him to go to physiotherapy at Brantford Hospital and his family doctor referred him there. He was attending three days per week over a 12 week period. He does not think going for physiotherapy after hours was possible at Brantford Hospital as the physiotherapists worked until 3:00. When he attended, it would take him approximately one hour one way to attend as he had to stop half way. On the days when he was not attending physiotherapy, he was at work. He found that the physiotherapy was helping him.
He feels the time should be covered as he wants his back fixed and he will do anything to get it fixed. He tries to miss as little work as possible. At the time he was attending physiotherapy, he was attending five appointments per week to attempt to do whatever he could to fix his back and remain at work. He therefore feels his time should be covered. He has tried to co-operate in any way he could and he has complied with anything that has been suggested for him. Attending physiotherapy helped him to remain in the workplace. He has a lot of years to go and he wants to keep working.
He was referred to the letter of February 24, 2010 submitted by the company doctor. He confirmed this doctor suggested he attend physiotherapy at Brantford Hospital and he made the recommendation because the worker continued to have back pain. He has pain seven days per week and he does his best to relieve it. He did not go to a physiotherapist closer to home as the physiotherapy centre at the Brantford Hospital has a good reputation and the doctor recommended it as he thought it would be most beneficial.
He was referred to the letter of February 24, 2010 from the employer submitted by the Maintenance Manager. The manager was aware of the worker’s condition and he was in agreement with the worker’s attendance at physiotherapy. He thinks after the 12 weeks of physiotherapy, there was improvement although the drive to and from ‘beat me up a little bit’.
He denies missing any time from work this year so far as a result of his back problems. The physiotherapist taught him a home exercise program. He had been given a home exercise program prior to that but the exercises were pretty basic. The physiotherapists gave him different exercises to perform with an exercise ball and different stretches and exercises.
Closing Statement:
In closing, the worker’s representative argued that during the twelve weeks in question, the worker was co-operating throughout the whole process. He participated in different ways to mitigate his circumstances and try to get better. The twelve weeks of physiotherapy is no different. He was coming along, learning different techniques and attending physiotherapy kept him at the point where he could go into work and was actually going into work. He learned different techniques in physiotherapy which he continued at home and which allowed him to continue to work. The worker has not missed any time as a result of his back problems probably in part attributed to the techniques he learned at physiotherapy. There is a question of why the worker attended in Brantford. The worker however co-operated with the recommendations of the doctor who suggested the Brantford clinic. Both the doctor and the worker’s supervisor support the worker’s treatment. He referenced memo #29 that provides a history of this case. Given the circumstances, he requested that the lost time to attend the physiotherapy treatment from March to June, 2009 be accepted as it is reasonable. It allowed the worker to stay in the workplace and the worker continues to stay employed.
Decision:
I have considered all of the evidence pertaining to this case. What is important to note is that this case was at the 72 month final review stage as of January 23, 2007. In cases where LOE benefits are requested subsequent to the 72 month lock-in date, benefits may be extended beyond that date if the worker is either co-operating in a Labour Market Re-entry (LMR) plan or there is a significant deterioration in the worker’s condition subsequent to the 72 month mark. In this case, the worker was not involved in an LMR plan as he continued to be employed by the employer. Benefits can therefore not be considered on the first basis. When reviewing the policy for payment of LOE benefits when there is a significant deterioration, the policy is clear that benefits may be paid where the information supports the worker has a significant temporary deterioration and benefits may be paid until the worker recovers from the significant temporary deterioration as supported by objective medical evidence. The policy goes onto state that while a worker may take an occasional day off from work, this quite often is not indicative of a significant deterioration.
In this case, the worker was considered to have reached a point of Maximum Medical Rehabilitation in November, 2007. He was assessed for his NEL award in June, 2009 and was granted a 14% award. The medical documentation on file both before and after March, 2009 does not confirm that his condition was significantly worse in either March, April, May or June. A Form 26 dated April 28, 2009 notes the worker required treatment for maintenance therapy. The objective findings relating to his condition however remained the same. Following the treatment, the worker himself submitted a Continuity Report on July 29, 2009 indicating that he continued with constant flare-ups and back pain suggesting that the treatment had not significantly improved his condition and it appeared to have remained constant. Given the medical reporting on file and noting the legislative requirements to allow LOE benefits subsequent to the 72 month lock-in date, I am unable to consider the worker’s request for reimbursement of lost time for the periods between March and June, 2009 as I am unable to conclude that there was a significant deterioration in his condition during that time.
CONCLUSION
Based on the evidence outlined in this decision, I am confirming the denial of LOE benefits to attend physiotherapy treatment between March and June, 2009.
The worker’s objection is denied.
DATED June 2, 2010
S. Marangoni
Appeals Resolution Officer
Appeals Branch