WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100108
OBJECTION BY: Worker
EMPLOYER: Not Participating
ISSUE
The worker objected to the denial of entitlement to full loss of earnings (LOE) benefits from November 30, 2009.
HOW THE ISSUE ARISES
On November 15, 2007, the worker was working as a deli associate when some racks fell on her neck and left shoulder. The claim was allowed for the strain injuries of the neck, left shoulder, and left thumb. In July 2009 she received 26 per cent non-economic loss (NEL) benefit for the permanent impairment that resulted.
She received full LOE benefits from November 16, 2007 to July 22, 2008 at which time it was considered she was capable of returning to suitable work offered by the employer.
She received entitlement to partial LOE benefits from August 7, 2008 to February 9, 2009 for graduated work hours.
From February 9, 2009 to March 12, 2009 she worked at permanent, modified duties as a Store Greeter.
A recurrence was allowed with full LOE benefits from March 12 to November 30, 2009 at which time she was considered to be capable of returning to suitable work with the employer.
She received partial LOE benefits for a graduated work plan from November 30 to December 31, 2009 at which time she would be capable of returning to full work hours to permanent modified work.
The worker maintained she was unable to work at all and requested entitlement to full LOE benefits from November 30, 2009.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Document:
- 18-03-02 – Payment of LOE Benefits
RESOLUTION METHOD AND PROCESS
60 day decision option.
REVIEW OF EVIDENCE
The employer’s offer of modified work to the worker on November 18, 2007 stated the position of Store Greeter involved no heavy lifting or repetitive bending. A chair could be provided.
The offer of March 12, 2008 further stated that as part of this position, the worker would not be required to collect cards. There was no use of the left arm required.
The physiatrist’s report of August 20, 2009 stated cervical spine was moderately tender. Flexion was 60° with end pain and extension was 10° with end pain.
The left shoulder was moderately tender. Flexion and abduction were both 120° with end pain.
The worker was told she needed to be weaned off narcotics slowly by the family doctor.
The diagnosis was left RCT and adhesive capsulitis and cervical strain and disc bulges and small left C4-5 disc protrusion on MRI, neurologically stable at present.
On October 26, 2009 the case manager spoke to the employer regarding the worker’s return to work. The employer felt they likely could accommodate permanent restrictions but given prior difficulties with return to work and now a confirmed NEL benefit, it was agreed a return to work specialist meeting was necessary.
The case manager also called the worker who stated she was not happy with the decision that she was capable of modified work as she felt she was in too much pain. She was informed a return to work specialist meeting would be set up. The worker was reluctant but agreed to attend a meeting.
The return to work specialist memorandum of November 24, 2009 noted the worker did not attend the appointment. She was called to attend, but stated she was totally disabled and was not going to agree to modified work.
The employer was offering modified work as a Store Greeter, standing, checking bags, and speaking to customers. The worker would not be involved with shopping carts in any way.
She could have her hours graduated and take breaks as required.
The worker wrote on December 2, 2009 stating she was still very ill and had been told by her doctor that she was not fit to return to work until further notice.
Regarding the return to work meeting, she stated she did not understand how she was to attend a meeting that she was only informed about less than a few hours prior. The worker stated she did not receive any letters or telephone calls in regard to this meeting until the day of the meeting at approximately 10 a.m. when a gentleman from the Workplace Safety and Insurance Board (WSIB) called her, informing of the meeting to be held at noon.
She was unable to attend because she was scheduled to attend an appointment at the hospital. She did not believe she had declined to meet. She was unable to meet because of such short notice and considering she would need enough notice in advance to prepare transportation.
She did not understand how the case manager decided that she was able to return to work in consideration of all her medical issues and the medication she was on that made her drowsy, weak, and sometimes unable to take care of her own daily activities.
On December 11, 2009 the case manager spoke to the return to work specialist who stated the worker was contacted initially on November 20, 2009 regarding a return to work specialist meeting and again on November 24, 2009. She declined both times to attend meetings for return to work.
The neurosurgeon’s report of January 26, 2010 stated examination showed that the range of motion of her neck was markedly restricted. Her muscles were quite tense but she had a relatively normal neurologic examination with intact reflexes and good power.
It was noted her MRI scan showed degenerative changes in the cervical region but there was no surgically remediable lesion.
She was very concerned about the fact that she felt unable to get back to work. At the employer, she was undertaking some activity as a Store Greeter, but she found this to be impossible.
The specialist suspected there was a certain psychogenic magnification of her pain syndrome that would probably be quite resistant to any form of treatment.
It was recommended she lose weight. She would not benefit from any type of surgical treatment. One might consider cervical traction but she stated she had already exhausted physiotherapy. The specialist concluded he was not going to be of much help in her circumstances.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
The medical evidence on file did not establish any significant deterioration in the worker’s condition to support a total inability to work. The specialist’s report of January 2010 confirmed no further treatment was recommended. Therefore I conclude the worker was partially impaired and capable of performing suitable work with restrictions.
The employer was able to provide permanent, modified work as a Store Greeter at no wage loss. The work was within the worker’s restrictions and is therefore considered to be suitable for the worker.
As such, she is not entitled to full LOE benefits from November 30, 2009. She is entitled to the partial LOE benefits paid from November 30 to December 21, 2009 for a graduated work plan. From December 21, 2009 the worker should have been able to perform full time hours at the suitable work and therefore is not entitled to further LOE benefits.
CONCLUSION
Based on the evidence on file and for the reasons outlined, the worker is not entitled to full LOE benefits from November 30, 2009.
The worker’s objection is denied.
Dated this 12^th^ day of August 2010 at Toronto, Ontario
(Ms.) V. Escobar
Appeals Resolution Officer
Appeals Branch
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Enclosure