WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100075
PARTICIPANTS: Worker, Worker’s Representative, Employer
HEARING LOCATION: N/A
ISSUE
Entitlement to loss of earnings benefits from March 6, 2005 to March 28, 2006.
HOW THE ISSUE ARISES
The worker was born in 1953. She began working for the employer, as a banquet server on September 19, 1988. A claim was registered with the WSIB On August 9, 2005, upon receipt of a Health Professional’s Report (form 8) dated July 26, 2005. The form 8 was based on an assessment of July 21, 2005, with an accident date of March 10, 2005. The diagnoses were; left shoulder pain/strain, bicipital tendonitis, subacromial bursitis.
As the claim was registered on a form 8, a letter was automatically sent to the employer requesting information and an Employer’s Report of Injury (form 7). The employer submitted a form 7 dated August 17, 2005, attaching a letter dated August 17, 2005.
The letter explained that the worker last worked on March 5, 2005. On March 7, 2005 they received a call from a neighbour advising that the worker had suffered a heart attack and would not be returning to work for some time. She requested that a short term disability claim be submitted on her behalf which was done and she received 6 weeks of sick benefits for angina and hypertension supported with medical documentation.
The worker spoke to her manager on June 4, 2005, advising that she was still very ill from a heart attack, and did not know when she could return to work. As there was no further contact, and failed attempts to contact her, a registered letter was sent on July 15, 2005. On July 21, 2005 a letter was received from the worker’s doctor including a consultation report confirming she was suffering from left shoulder pain.
The employer then received a call from the worker’s brother in law, advising that the worker did not have a heart attack, and was suffering from a shoulder injury sustained at work. He requested that WSIB forms be completed. The employer contacted the worker’s doctor on July 26, 2005 requesting that medical information be provided.
The worker completed a Worker’s Report of Injury (form 6) August 17, 2005. She stated she had problems with her left shoulder since November 2004, which she related to carrying heavy trays while serving. She confirmed that she did not report the injury to her employer.
A field investigation was conducted to obtain statements from the worker, employer, and co-workers, and obtain medical information. The investigation was completed on October 5, 2005, and medical information was requested. In a letter dated November 2, 2005 the worker was advised that no further action would be taken until the medical information was received.
In a letter dated November 8, 2005, the employer provided a timeline of events pertaining to the worker’s absence from work from March 8, 2005 to September 22, 2005. On behalf of the worker, her representative submitted a letter dated December 12, 2005 and provided medical information from both Canada and Guatemala. The worker had returned home for a visit to Guatemala from December 2004 to January 2005 and had sought medical attention.
All of the medical information including the family doctor’s clinical notes from 1996 was reviewed by the claims adjudicator and WSIB medical consultant as outlined in memos #9 and #10. The clinical notes confirm the worker stopped working March 7, 2005 due to stress and palpitations, and was seen by a cardiologist on March 8, 2005 with symptoms of chest discomfort of 4 days duration. After investigation the chest pain was thought to be non-cardiac in nature.
The first reference to a left shoulder problem is March 10, 2005, with range of motion being normal, and tenderness over the deltoid muscle. She was seen by another cardiologist on March 15, 2005 with a 4 month history of anterior squeezing chest pain radiating to the left arm everyday. A cardiac catheterization was done on March 24, 2005 which revealed minimum plaque in the distal left main. Left deltoid muscle tenderness was noted again on June 16, 2005, and she was referred to a physiatrist, Dr. Czok on June 23, 2005. Dr. Czok’s report confirms a full range of active of motion, with increased discomfort at the extremes of abduction and forward flexion. His impression was subacromial bursitis and rotator cuff tendonitis, and he injected depo-medrol.
The medical consultant provided his opinion that the diagnoses of subacromial bursitis and rotator cuff tendonitis would be compatible with the banquet server job. The clinical findings support that the worker would have been fit for activities that avoided strenuous, repetitive, or above shoulder level left arm duties since March 10, 2005.
The adjudicator considered this opinion as per memo #11, and accepted entitlement on a disablement basis. However, as the worker was fit for modified duties, and did not keep in contact with her employer, entitlement was accepted for health care benefits only, and loss of earnings (LOE) benefits were denied. This decision and the employer’s co-operation obligations are outlined in the March 16, 2006 letter.
The employer submitted a copy of a letter sent to the worker dated March 24, 2006 providing a Functional Abilities Form, and a physical demands analysis of the worker’s job. The worker contacted the adjudicator on July 28, 2006 (memo #14) and advised that she had returned to work on modified duties March 28, 2006.
The worker did not initially object to the March 16, 2006 decision. There was no further action in this claim until a letter was received from the worker’s representative dated
April 16, 2008, advising they wished to object to the March 16, 2006 decision, and enclosing correspondence from the worker to the employer and WSIB pertaining to the availability of the modified work. The employer contacted the adjudicator on May 8, 2008 (memo #21) advising that the worker was claiming a recurrence as of February 14, 2008. There is no further documentation pertaining to the issue of a recurrence from February 2008.
A new adjudicator reviewed the issue of LOE benefits from March 10, 2005, as outlined in memo #22 dated October 6, 2008. The adjudicator concluded that the worker was entitled to LOE benefits. However, I could not locate a corresponding decision letter and LOE benefits were not paid.
The worker requested claim file access on June 2, 2009, and her new representative submitted a letter dated June 2, 2009. This letter refers to memo #22, and questions why LOE benefits were not paid. A further review of this issue was done by another case manager on August 27, 2009, memo #25. The case manager concluded that memo #22 was incorrect, and the worker did not fulfill her co-operation obligations.
This decision is outlined in the case manager’s August 27, 2009 letter. The letter also notes that there is no objective medical evidence to support a recurrence in 2008, and explains that if LOE is being claimed, the worker should provide a full statement along with dates of lost time and medical evidence. The letter also explains that the issue of a permanent impairment will be reviewed when additional medical evidence is provided.
The worker’s representative submitted an objection form dated December 4, 2009, requesting full LOE benefits from March 2005 – April 2006. Attached to the form is a letter outlining his position, a copy of the timeline provided by the employer, and a copy of the employer’s March 24, 2006 letter to the worker. The case manager considered this information, and confirmed their previous decision.
The claim was referred to the Appeals Branch, and the worker’s representative has elected the 60 day decision option. The decision will be made based on the information in the claim file record.
AUTHORITY REFERENCE
Operational Policies:
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
22-01-03 Worker’s Co-operation Obligations
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In reviewing the issue before me, I have considered all of the information in the claim file record, the medical reports and opinions, and the relevant policies. I find that the balance of evidence supports that the worker did not co-operate in the early and safe return to work process.
As outlined in Operational Policy 19-02-03, both workplace parties have co-operation obligations to facilitate an early and safe return to work (ESRTW). The employer’s and worker’s co-operation obligations are as follows:
Employer co-operation The Workplace Safety and Insurance Act (the Act) sets out minimum requirements for employers of workers regarding co-operation in the ESRTW process. Employers are required to
- contact the worker as soon as possible after the injury occurs and maintain communication throughout the period of the worker's recovery or impairment
- attempt to provide suitable employment that is available, consistent with the worker's functional abilities, and when possible restores the worker's pre-injury earnings, and
- give the WSIB any information requested concerning the worker's return to work.
Worker co-operation The Act sets out minimum requirements for workers regarding co-operation in the ESRTW process. Workers are required to
- contact the accident employer as soon as possible after the injury occurs and maintain communication throughout the period of recovery or impairment
- assist the employer as required or requested to identify suitable work that is available, consistent with the worker's functional abilities, and when possible restores the worker's pre-injury earnings, and
- give the WSIB any information requested concerning the return to work.
In this case, the evidence supports that the worker did not report her lost time in March 2005 as being work related until mid July 2005. She confirmed this on her form 6, and in her statement to the investigator. The medical information provided to her employer to apply for short term disability benefits confirms that the diagnosis is angina and hypertension. The worker did not fulfill her co-operation obligation to report the injury, contact the employer as soon as possible after the injury, and maintain communication.
In his submission, the worker’s representative provides his view that once the employer was aware that the worker was claiming a work injury on July 22, 2005, a form 7 should have been processed, and a concrete offer of available modified duties should have been made. It is their position that the worker should be paid LOE benefits from March 2005, until the offer of modified work was made in the March 24, 2006 letter.
I have considered this position, but note that the evidence supports that the employer fulfilled their co-operation obligations. The employer’s statements have been consistent as outlined in their letter attached to the form 7, their statement to the investigator, and the timeline of events. Many attempts were made to contact the worker, even before they were aware she was claiming a work injury. Once they were aware that the worker was claiming a work related shoulder injury on July 22, 2005, they made further attempts to contact her, and also contacted her doctor. The worker refused to speak to the employer when her friend contacted them on August 8, 2005.
The entire situation could have been avoided if the worker had reported the shoulder injury to her employer when she first sought medical attention for it, and had maintained communication with them. It is apparent from the evidence before me, that the worker did feel that she was having heart problems and that was the reason she stopped working in March 2005. This is supported by the form completed for the employer dated March 17, 2005, the reports from the cardiologists dated March 15, 2005, April 12, 2005, and June 14, 2005, the consultation report dated March 8, 2005 from the cardiologist at the hospital, as well as the family doctor’s chart notes.
The report completed by the family doctor December 6, 2004 confirms that she was off of work from November 10, 2004 for chest pain not yet diagnosed. She had a stress test, and was put on blood pressure medication. The charts notes from August 2004 to March 2005 confirm ongoing monitoring of these conditions, and she also had an echocardiogram while in Guatemala on December 29, 2004.
The March 7, 2005 chart entry notes complaints of stress at work as her weekend schedule was given to someone else. Her cardiac risk factors are noted, and she has an appointment to see a doctor on March 15, 2005. The March 10, 2005 entry notes she was in hospital for elevated blood pressure and chest pains, with left arm pain and hand tingling. The chart notes from March 17, 2005 to June 16, 2005 deal with the cardiac symptoms, chest pain, anxiety, stress, depression and headaches, and the left arm is not noted until June 16, 2005 when she was referred to Dr. Czok.
A CT scan January 9, 2006 confirmed a small mild osteochondral bar at C6-7 causing minimal impression on the thecal sac. A bone scan February 8, 2006 was normal.
In his follow up report dated March 9, 2006, Dr. Czok comments on the test results, and feels she is recovering from a possible radiculopathy. However, she presents with residual left shoulder impingement and subacromial bursitis. On examination the muscle strength was normal, with full range of motion of the left shoulder. There was positive impingement test of the left shoulder. He notes she will try to return to work with light duties for 2 – 3 months.
In summary, there is no medical evidence to support that the worker was off of work due to shoulder problems from March 2005 to June 16, 2005. She was under investigation for a cardiac condition during this time. Once she sought medical attention for her shoulder, and was assessed by Dr. Czok on June 23, 2005, the medical evidence supports she was fit for modified duties within standard left shoulder restrictions. The worker did not fulfill her co-operations obligations by contacting the employer, and assist in identifying modified work. The worker had been employed with them since 1988, and had many options including; calling the employer, visiting the worksite, etc.
After the March 16, 2006 decision was communicated, the worker did return to modified work. The evidence since then confirms that the employer has continued to accommodate the worker’s restrictions. There is no evidence to support that this would
not have occurred earlier, had the worker reported the shoulder injury, responded to their attempts to contact her, and co-operated in the ESRTW process.
CONCLUSION
I conclude that the balance of evidence does not support that the worker co-operated in the early and safe return to work process. She is not entitled to LOE benefits from March 6, 2005 until March 28, 2006.
The worker’s objection is denied.
DATED February 25, 2010
D. McParland
Appeals Resolution Officer
Appeals Branch