WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100102
OBJECTION BY: Worker and Employer
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
ISSUES
Initial entitlement (Employer)
Reduction of Loss of Earnings (LOE) benefits effective November 19, 2008 to December 19, 2009 (Worker)
HOW THE ISSUES AROSE
The worker was employed as a masonry contractor with the employer. On September 10, 2008 he reported an injury to his left shoulder while dismantling scaffolding on a job site. He was laid off work the same day but the employer offered modified work by October 2008.
The claim was allowed and the worker was pain LOE benefits from September 11, 2008. His LOE benefits were reduced effective November 19, 2008 based on his ability to work full alternate days on modified duties that were available with the employer. The decision letter is dated December 15, 2008.
The worker objected to the payment of partial LOE from November 19, 2008 to December 19, 2008.
The employer later objected to the allowance of the claim and payment of benefits in their letter of April 13, 2009. The issues brought forth by the employer were reviewed by the Case Manager however entitlement and payment of LOE benefits were confirmed in the letter of October 30, 2009.
The employer’s objection was also referred to the Appeals Branch for further consideration.
AUTHORITY
Relevant operational policies:
11-01-01 – Adjudicative Process
19-02-02 – The Goal of Early and Safe Return to Work (ESRTW) and Roles of the Parties
METHOD OF RESOLUTION
A hearing was scheduled on May 14, 2010 to address the worker’s and employer’s objections, however the worker did not show up. It was agreed between the parties in attendance to resolve the issues through written submissions.
The worker representative also withdrew their objection to the closure of LOE on June 15, 2009.
ASSESSMENT OF THE EVIDENCE
I have carefully considered all of the available information and relevant operational policies in reaching this decision.
Initial entitlement
The worker’s report of injury (Form 6) dated September 24, 2008 indicates he injured his left shoulder on September 10, 2008 while dismantling a portion of a scaffold weighing about 75 lbs. He claimed to have immediately reported the injury to his foreman and had two co-workers who also witnessed the injury.
The employer’s report of injury (Form 7) dated October 3, 2008 confirms that the accident was immediately reported to his foreman that day. A different co-worker was listed as a witness to the incident.
The employer attached a letter to the Form 7 with further accident details. It confirms the accident history provided by the worker in his report and indicates the foreman offered to take the worker for medical treatment if the worker requested, however it did not appear to be a serious injury.
They claim the worker initially refused medical treatment and continued working until about a half hour before quitting time when he stopped because it appeared to the other workers that he was not interested in continuing to work. Their letter also expresses their concerns about the validity of the claim because of his poor work ethic and sparse medical evidence of an injury in the hospital reports. They also laid him off from work that day so he could be returned to the union hall to find other employment.
The worker did obtain medical treatment later that day at a local hospital and complained of pain and tenderness in the left shoulder. He was diagnosed with a soft tissue injury and recommended to treat it with anti-inflammatory medication and see his family doctor.
The physiotherapist reported after examining him on September 18, 2008 that he had pain, tenderness and tingling in his left arm and reduced strength and reduced range of motion in the rotator cuff.
The Case Manager who reviewed the file for initial entitlement was satisfied that the criteria for allowance was met noting the immediate reporting and medical attention obtained and concluded that the employer’s issues with the worker did not detract from those facts.
The employer later submitted a letter dated April 13, 2009 further questioning the allowance of the claim and payment of benefits. They referred to several issues including his poor attendance for the short time he worked for them, his initial refusal to seek medical attention for the injury, an apparent prior claim that was denied, a Form 6 that was not completed until two weeks after the accident and witnesses listed by the worker who were not working with him at the time of his claimed injury as reasons they questioned the claim.
The employer indicated in the letter that the only witness was another labourer who was working with the worker at the time who felt the worker was “obviously faking an injury to get out of doing work that he did not want to do”. They state that the witness and foreman concluded that if the worker did not want medical attention then there was not a lot wrong with him.
The employer representative provided a statement from their witness in their final submission with questions they would have asked him at the hearing had it proceeded. In it, the witness confirms being aware of the worker claiming to have injuring his left shoulder on the day of accident after descending a scaffold. He confirmed the worker mentioning that his shoulder was ‘sore’. The witness statement also confirms the foreman asked the worker if he needed to go to the hospital but he refused at the time because he was ‘alright’.
The submission also contains a statement from the owner of the company that indicates he was not aware of a WSIB claim until he was contacted by the WSIB Case Manager later in September 2008. He also states the worker was sent back to the union hall after September 10, 2008 because they were not pleased with his work and they were not aware he sought medical treatment after he left the job site that day.
The worker representative provided a statement from the co-worker in his submission dated June 18, 2010 who said he drove the worker to the hospital after his shift that day. The employer representative objected to the submission from this witness because he was not previously identified as a witness and his statement was not provided within the required timeframe.
What is proven, regardless of the admissibility of the witness statement, is that the worker sought medical attention and was treated for a left shoulder injury following his shift on September 10, 2008. The other indisputable facts are that the worker’s injury was witnessed by a co-worker and the matter was also reported to his foreman immediately. The employer’s references to the worker’s poor work methods, attendance and the rest do not diminish these facts.
Decision-makers may consider the following when examining proof of accident,
- Does an accident or disablement situation exist?
- Are there any witnesses?
- Are there discrepancies in the date of accident and the date the worker stopped working?
- Was there any delay in the onset of symptoms or in seeking health care attention?
Based on my assessment of the evidence, proof of accident has been established and the above criteria are met.
Subsequent medical evidence including an MRI done on January 9, 2009 showed mild tendonitis and inflammation that necessitated anti-inflammatory medication and a strengthening and endurance program. The employer’s belief that the worker was ‘obviously faking’ an injury holds no weight particularly when compared against the above facts.
Therefore initial entitlement is confirmed.
Reduction of Loss of Earnings (LOE) benefits effective November 19, 2008 to December 19, 2009
The employer initially laid off the worker immediately on September 10, 2008 seemingly because they were not pleased with his job performance. However, they later called the WSIB on October 30, 2008 to indicate they wished to offer him modified work.
The employer provided the worker a Functional Abilities Form (FAF) to help arrange modified duties. Upon speaking with the physiotherapist on November 6, 2008, the Case Manager was informed the worker had only attended 4 times in the last 6 weeks. The worker was informed of the importance of attending therapy.
The employer called the Case Manager on November 13, 2008 to report they were having difficulties reaching the worker. However, the recommendations from the FAF dated November 7, 2008 were provided to them.
The employer called the Case Manager on November 19, 2008 to state they had spoken to the worker the previous day and had arranged for him to return to light duty cleaning at his old worksite on that day however the worker did not show up.
The worker was contacted on November 25, 2008 and stated he had spoken to the employer about returning to modified duties on alternate days as listed on the FAF but the employer had arranged for him to return to work for full weeks.
In his objection form dated May 29, 2009 the worker indicated the employer had requested he work at an alternate jobsite in Paris but he had no transportation or public transportation available to get him there. The Case Manager informed the worker that he had previously worked at that site in the past so the offer was reasonable. In previous discussions with the worker he indicated that he had been evicted in January 2009 and that his car had been repossessed in February 2009.
The employer’s letter of April 13, 2009 itemizes their attempts at returning the worker to modified work from November 4, 2008 and the difficulties they encountered to the point where the Case Manager agreed that the worker was not cooperating in the return to work process and reduced his benefits effective November 19, 2008 based on the schedule outlined on the FAF.
The workplace parties (employers and workers) must co-operate and be self-reliant in returning the worker to suitable and available employment.
The FAF dated November 7, 2008 clears the worker to return to full days on alternating days where he avoided use of the left arm starting on November 17, 2008. The following FAF dated December 16, 2008 cleared the worker for modified work at partial hours starting on December 18, 2008 avoiding use of the left arm.
The evidence supports that the worker was not compliant in the ESRTW process during the time his benefits were reduced from November 19, 2008 to December 19, 2008. I am not satisfied the worker made the necessary effort to discuss any concerns or alternatives with his employer.
Therefore, I confirm the decision to reduce LOE benefits for the period in question.
CONCLUSION
Entitlement is confirmed.
The reduction in LOE benefits from November 19, 2008 to December 19, 2008 is confirmed.
The worker’s and employer’s objections are denied.
DATED July 12, 2010
D. Giannobile
Appeals Resolution Officer
Appeals Branch