Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20100077
OBJECTION BY: Worker
EMPLOYER: Participating.
REPRESENTATIVE: Worker, Employer
ISSUE
The worker requests entitlement to loss of earnings (LOE) benefits from March 12 until March 19, 2009.
HOW THE ISSUE ARISES
This 50 year old Assistant Produce Manager was allowed entitlement for the gradual onset for a right shoulder injury that took place February 15, 2009. Modified work was offered by the employer and reviewed by the Workplace Safety and Insurance Board (WSIB) return to work specialist, which led to the decision of March 12, 2009. It was accepted that the modified work was suitable and available. Entitlement to LOE benefits was therefore limited to March 11, 2009.
AUTHORITY
Operational Policy Manual (OPM) document(s):
- 18-03-02 – Payment of LOE Benefits
- 19-02-01 – Overview and Early and Safe Return to Work
- 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 for Timely Return to Work
RESOLUTION METHOD AND PROCESS
The parties agreed to address the issue under objection via written submissions. The worker's representative provided a written submission dated March 23, 2010. The employer’s representative was advised of the details in the written submission and felt a reply was not necessary.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In arriving at my decision I have considered the information in the claim, the written submissions as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies. I find, on balance, the evidence supports the worker’s objection and the following is a summary of my assessment/observations.
Subsequent to the shoulder injury the worker was offered modified work and according to a telephone conversation with the adjudicator on March 9, 2009, he did not agree with returning to work, feeling the job was not suitable and wished to follow his doctor’s orders.
It was noted that the March 4, 2009 modified work offer was not in writing and according to the return to work specialist, it required clarification of specific duties. Following discussions, suitable modified work was made available, effective March 11, 2009, which included no lifting over one kilogram, culling vegetables, directing part-time employees, training and computer reports. The plan included the restriction of no right arm use.
The worker objected to the denial of LOE benefits on the basis that “my doctor would not allow me to return to work in any capacity until I was assessed by a specialist. We were very active in trying to get into see a specialist quickly and as soon as I saw one and the specialist cleared me to return to work I advised my employer and returned as soon as possible.”
This information was basically reiterated in the representative’s written submission of March 23, 2010. It was felt that, through determination and extraordinary measures the specialist appointment was arranged within a week. The worker’s doctor advised him his arm should be in a sling and movements restricted. The representative felt the worker would not have been able to perform the modified duties of culling vegetables and sweeping. It was also noted that the worker was on painkillers and anti-inflammatory medication at that time.
The medical information in the claim includes the progress report of February 24, 2009 that diagnosed a right shoulder strain. The treatment plan included rest, analgesics, ultrasound and physiotherapy. Restrictions included the use of the upper extremity. The ultrasound of March 3, 2009 was reported to show full thickness tear of the right supraspinatus tendon. The medical note of March 4, 2009 stated the worker was unfit to return to work and was to see an orthopaedic specialist for further instructions. The note did not provide any functional information with respect to the worker’s shoulder impairment.
The orthopaedic specialist was seen on March 16, 2009 and noted the worker is right hand dominant. He had painful range of movement and “fairly good strength in the shoulder”. The specialist stated the ultrasound showed a small tear and the worker required MRI due to the suspicion of a torn rotator cuff, and that he should have physiotherapy treatments.
The attending physician’s further report of March 20, 2009 noted the worker was seen again on March 17 and felt that he was fit to return to modified work. On April 29, 2009 the orthopaedic specialist reported the MRI showed “some tendonopathy but no rotator cuff tear.” It was indicated that the worker needed to continue on modified work. The May 27, 2009 report stated that the worker was fit to return to full duties.
While I note the medical notes authorizing the worker to remain off work offered no medical basis against returning to modified work, I also note the worker is right hand dominant and “culling” vegetables and computer work would likely be difficult to carry out. There was certainly no delay in seeing a specialist, within one week, or returning to the modified work on March 19, 2009, followed by a return to regular employment.
In view of this, I do not see reasons to doubt the worker’s statements with respect to his doctors advising him to keep his arm in a sling and not to return to work until he was seen by an orthopaedic specialist. I therefore find in favour of the worker and allow entitlement to LOE benefits for the period; March 12 – 19, 2009.
CONCLUSION
The worker is entitled to LOE benefits for the period of March 12 – 19, 2009.
The objection is allowed.
Dated: April 22, 2010
B. Romano Appeals Resolution Officer Appeals Branch