WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100076
OBJECTION BY: Worker
EMPLOYER: Participating
HEARING DATE: March 29, 2010
PARTICIPANTS: Worker, Worker’s Representative, Employer
ISSUE
The worker is objecting to the denial of entitlement to partial loss of earnings (PLOE) benefits for the period October 18, 2007 to November 26, 2007.
HOW THE ISSUE ARISES
This file was established with an accident date of October 10, 2007 after the worker, employed as a contract administrator with a community housing corporation indicated on his Worker’s Report of Injury/Disease (Form 6), that he tripped over uneven sidewalk and steps and fell backward onto the ground sustaining an injury to the low back and hip area.
Benefits were accepted by the claims adjudicator.
The adjudicator considered ongoing entitlement in the correspondence of November 23, 2007, the adjudicator noted that after speaking to the chiropractor modified duties and partial hours of work were discussed and the chiropractor confirmed that he knew that the worker was performing modified duties as co-ordinator and that there was no physical activity requirements to the modified position, and confirmed that the worker was physically capable of performing these modified duties at a full-time capacity. The adjudicator noted that the worker was advised by voicemail on November 13, 2007 of the ability to perform the work on a full-time basis, and also noted that a medical report indicated the worker was able to return to work with no restrictions and full-time hours as of November 20, 2007.
In further correspondence of May 5, 2009, the adjudicator noted that loss of earnings (LOE) benefits had been denied on the basis that the worker was provided with suitable modified duties accommodating medically supported precautions relating to the low back injury, the letters provided by the doctor as well as the chiropractor had been considered, and while there was objective medical evidence to support the precautions associated with the low back injury, there was no medical evidence to support the inability to perform suitable duties on a full-time basis. The modified duties had been reviewed by the adjudicator and there was no repetitive bending, no lifting or climbing, no twisting or climbing ladders associated with these duties, and it was concluded that the worker had the ability to perform these duties on a full-time basis and as such would not receive PLOE benefits.
The worker has objected to this decision.
AUTHORITY
Operational Policy Manual (OPM) documents:
- 19-02-02 – The Goal of ESRTW and the Roles of the Parties
- 19-02-03 – Workplace Party Co-operation
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
All of the information on the clam record has been carefully considered, particularly as it relates to the denial of entitlement to PLOE benefits for the period October 18, 2007 to November 26, 2007.
At the time of the hearing, the worker testified that he had been with the employer since 1986 and at the time of the 2007 accident was working as a Contract Administrator which involved administering contracts to completion in regard to repairs and maintenance to public housing. He would sometimes work in the office, which he estimated would be approximately one and a half to two hours per day, and the balance of his work day would be spent on site where he would meet with staff and his job would involve stair climbing, ladder climbing and going up on roofs et cetera.
On October 10, 2007 he was leaning back and tripped on a curb and fell backwards and hurt the left hip and low back area. The site superintendant was with him at the time and he indicated that he felt a sharp pain at the time that he fell and the incident was immediately reported. He had prior work related back injury a few years previous and is in receipt of a non-economic loss (NEL) benefit for his back, and he finished his shift on that date but the pain was radiating into his left leg by the end of the shift.
He saw his doctor and was diagnosed with a back strain.
He recalled meeting with the employer on October 16, 2007 in regard to a return to work plan, and the plan was that he would stay in the office and not go out to job sites. He testified that the employer wanted him to work full-time days but the doctor indicated that he should work four hours per day, and he indicated that his drive into work was approximately 45 minutes and by the time he got to work his left leg was stiff and sore. He found the prolonged seating in the office was a problem for him and he would get up and stretch and this would help temporarily, but the pain would get worse as the day went on and by midday he was in pain and had difficulty completing his day. He indicated that to the best of his recollection he worked the modified job full-time from October 11, 2007 to October 18, 2007, and at that time he reduced his hours to four hours per day as he found that after working four hours per day he was in significant pain and was not able to continue with a full shift, and also had the recommendation of his chiropractor and family doctor to only work four hours per day.
Following his four hour shift, he would attend the chiropractor and would then go home and rest where he would lie on the couch and also do his stretches and home exercises.
All of the information on the claim record has been carefully considered.
The worker provided testimony in a credible and straight forward manner, and the accident was reported immediately, the worker sought medical attention, and also co-operated in the Early and Safe Return to Work (ESRTW) program in that he attended a return to work meeting with the employer and then attempted to work the modified job on a full-time basis, but found that after four hours per day his pain had significantly increased to the point where he found that he could only work part-time hours.
The worker indicated that the 45 minute drive into work aggravated his condition and after four hours at work his pain increased on a daily basis to the point where he found it necessary to see the chiropractor after completing the four hour shift and would then return home where he would rest and do his home exercises and stretches.
The worker is a long-term employee, having been with the employer since 1986, and I am satisfied that he co-operated in the ESRTW process in that he attempted the full-time modified job that was offered by the employer but could not continue on a full-time basis due to increased pain. In addition, the worker had the authorization from his family doctor to only work four hours per day, which he did, and then attend chiropractor treatments, and he was told by his doctor to return to full-time duties on November 27, 2007 which he did.
The worker followed the advice of his doctor and returned to work for four hours per day, and then returned to work on a full-time basis as of November 27, 2007, and as such is entitled to PLOE benefits for the period October 18, 2007 to November 26, 2007.
CONCLUSION
The appeals resolution officer (ARO) grants entitlement to LOE benefits on a partial basis from October 18, 2007 to November 26, 2007.
The employer has indicated that the worker did receive partial advances for this period of time.
The objection is granted.
Dated: March 30, 2010
D. Mosser
Appeals Resolution Officer
Appeals Branch