WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100101
OBJECTION BY: Worker
EMPLOYER: Participating
ISSUE
Entitlement to Loss of Earnings (LOE) benefits following accident/injury on June 13, 2008
HOW THE ISSUE ARISES
The worker was a seasonal landscaper with the employer in Kingston, Ontario. During his third summer of employment, he developed left elbow epicondylitis related to his repetitive use of lawn care equipment. He recalled that on June 13, 2008 he suffered an immediate onset of left elbow and forearm pain after engaging the hand throttle on a self-propelled mower.
The injury was reported immediately and he sought medical attention in his hometown of Ottawa on June 16, 2008. He was diagnosed with a repetitive strain injury and advised to avoid using similar machinery to accommodate his injury. A Functional Abilities Form (FAF) dated June 26, 2008 cleared the worker for modified work where he avoided using the left arm.
The employer offered modified work using the right arm only but the worker refused indicating he was advised by his health professionals that he risked further damage to his left arm.
The Workplace Safety and Insurance Board (WSIB) decision letter of July 22, 2008 allowed the claim for left elbow tendonitis but denied payment of lost time benefits because the work offered by the employer was suitable.
The worker objected to the denial of lost time benefits and the matter was referred to the Appeals Branch for further consideration. In his Objection Form dated January 19, 2009, he requested payment of LOE benefits to the end of August 2008 which is when his employment contract with the employer was expected to end.
AUTHORITY
Relevant operational policy:
19-02-01 – Early and Safe Return to Work (ESRTW)
19-02-03 – Workplace Party Co-operation
19-02-02 – The Goal of ESRTW and the Roles of the Parties
19-02-04 – FAF
RESOLUTION METHOD AND PROCESS
Both the worker and employer agreed to proceed to a final decision through written submissions. The worker’s submission is dated June 23, 2010. The employer’s is dated June 28, 2010.
ASSESSMENT OF THE EVIDENCE
I have carefully considered all of the available information in reaching this decision.
The employer included a letter dated June 23, 2008 with their accident report (Form 7). The letter outlines their concerns with the development of the injury and their attempts at offering modified duties that did not involve his injured left arm while they awaited the FAF. They spoke with the WSIB Case Manager (C/M) on June 27, 2008 after receiving the FAF and indicated they were able to accommodate the precautions and would e-mail their offer to the worker.
A copy of their e-mailed offer dated June 27, 2008 is on file and indicates a start date of July 2, 2008 for partial hours. The job required him to pick up litter and garden weeding using his right arm/hand only. They were unable to offer full-time hours because there was a limited amount of this work available.
The worker replied in an e-mail dated June 30, 2008 that he was sore after physiotherapy and returning to work “would not be in my best interest right now” because he was advised to rest and had restricted use of his left arm. He indicated in his attachment to his injury report (Form 6) dated July 3, 2008 that since his injury he was limited in his ability to participate in normal daily activities and self-care and was not yet able to return to regular or modified work.
The FAF dated June 26, 2008 outlines precautions for a return to modified work. It recommends the worker avoid lifting, pushing and pulling with the left arm, pinching and gripping activities with the left hand and exposure of the arm to vibration. He would be reassessed in three weeks. A Functional Abilities Form (FAF) dated July 25, 2008 cleared the worker for modified work where he avoided using the left arm.
There is an exchange of emails on July 15, 2008. The employer appears to have followed-up with the worker on July 4, 2008 but had not heard back from him. The worker replied that he had been having physiotherapy in Ottawa the week prior and would continue to see him this week and would ask about his precautions. He indicated, however, that his left arm continued to restrict his abilities and that the WSIB had apparently not received his FAF recommending he remain off work for three weeks.
The employer replied that they would refax the form to the WSIB. They also clarify their understanding that the June 26, 2008 FAF did not allow him to remain off work for three weeks but cleared him for modified work.
The employer e-mailed the worker on July 29, 2008 after receiving the FAF of July 25, 2008 and offered modified work in accordance with the precautions for a further two weeks to August 13, 2008 again on partial hours. The modified work was the same as previously offered and required use of the right arm only. It also clarifies that he would not be required to carry a bag or broom and could work at his own pace. They acknowledged his reported concerns but indicated they were making the offers in accordance with the FAF information they were provided.
The worker e-mailed the company on July 30, 2008 that he spoke to his physiotherapist about a return to work but that he was hesitant about it because modified work could cause further injury. He indicated he would work closely with his physiotherapist and WSIB to ensure he returned to work at the proper time. The employer replied on July 31, 2008 and stressed that the modified duties did not require any use of the left arm and they would discuss any concerns he had about the work. They left the decision about a return to work to him and his best interests.
The employer’s e-mail to the worker dated September 15, 2008 indicates they sent him an e-mail on August 5, 2008 waiting for a response on their offer of modified duties but had not heard back from him. They felt there had been no effort by him to consider their offers. They indicated that all parties had verbally agreed that his contract would be over at the end of August because his lease was up and he would be pursuing employment opportunities in Ottawa where he was residing ever since he was injured. The employer indicated they would send his Record of Employment to his Ottawa address. They also reminded him that they paid him 44.5 hours of wage after his accident which they were not obligated to do.
The worker indicated in his submission of June 23, 2010 that he acknowledged and appreciated the employer’s offers of modified work but refused them because he was concerned about his well being. He reported that for some time after his injury, he could not get through a day without gravity causing his arm to go numb and that standing and repetitive activities were not advisable.
The employer indicated in their submission of June 28, 2010 that they offered work in accordance with the FAF’s they received but the worker made no effort to communicate his concerns or attempt the work.
WSIB operational policy 19-02-02 outlines the goals and roles of the workplace parties in the return to work process following a workplace injury. It states in part:
The goal of the ESRTW process is to return the worker to employment that is suitable and available, and if possible, restores the worker's earnings.
The workplace parties (employers and workers) must co-operate and be self-reliant in returning the worker to suitable and available employment.
Suitable work is work that:
- is within the worker's functional abilities
- the worker has, or is able to acquire, the necessary skills to perform
- does not pose a health or safety risk to the worker or coworkers, and
- if possible, restores the worker's earnings.
Available work is work that exists with the accident employer at the pre-injury worksite, or at a comparable worksite arranged by the employer.
The evidence contained in the claim is clear on certain matters. One is that the worker was found to be fit for modified duties by all of his treating professionals and the other is that the employer was diligent and met their obligation by repeatedly offering suitable modified work to the worker once they were informed of his medical precautions. The copies of e-mails sent between the worker and employer throughout summer of 2008 provide irrefutable proof of the employer’s efforts in this regard.
The underlying impression from the worker’s replies to their offers is that he was not equally diligent in considering their offers. This may have been partly related to him moving from Kingston to Ottawa after his accident and not being in close proximity to the work or partly due to information he was receiving verbally from the treating professionals about his fitness for work, but his inability to return to work is not supported by the FAF’s that were submitted to the claim.
The employer’s offer of one handed work was suitable given the medical condition at the time; however, the employer indicated the work was not available on a full time basis. Therefore, the worker is entitled to receive partial LOE benefits as the modified work would not have restored his pre-injury wage.
The medical evidence on file indicates the worker’s precautions lasted at least until the end of August 2008 when his employment contract was to end. The employer also advanced his regular wage for a period of time immediately following the accident which they were not obligated to do.
Therefore, I grant the payment of full LOE benefits until the start date for the initial offer of modified work, or July 2, 2008. The partial LOE is to continue based on the employer’s offer of work for 4 hours/day from that date to August 31, 2008.
The employer is also entitled to be reimbursed for the advances they paid the worker immediately following the accident on June 13, 2008.
CONCLUSION
The worker is entitled to full LOE benefits following his accident to July 2, 2008. He is then entitled to partial LOE from July 2, 2008 to August 31, 2008 based on working 4 hours/per day.
The employer is entitled to receive reimbursement for the 44.5 hours they advanced the worker immediately following his accident.
The objection is allowed in part.
DATED July 13, 2010
D. Giannobile
Appeals Resolution Officer
Appeals Branch